Majid v Employment Service [1998] UKEAT 133_97_1510

EAT
Majid v Employment Service
[1998] UKEAT 133_97_1510 · 1998-10-15
MRS JUSTICE SMITH : This is an appeal from the decision of an Industrial Tribunal sitting at London (North) on two days in November 1995 and two days in October 1996. The Industrial Tribunal, whose decision was promulgated on 5 December 1996, rejected the Appellant's claims that the Respondents, the Employment Service, had discriminated against him on the grounds of his race and had victimised him because he had made a complaint of racial discrimination.The Appellant, Mr Majid, was employed as an executive officer (EO) at the Unemployment Benefit Office in Finsbury Park, North London. He presented an Originating Application on 10 November 1993, making complaints under the Race Relations Act 1976 . These were as follows:(a) From January 1992 until 11 January 1994 the respondents failed, without adequate explanation and in breach of established procedure, to accord him substitution (deputising) as the senior EO in the department in the absence of the Claims Administration Manager.(b) Following his promotion to EO on 1 February 1978, the respondents failed to accord him further permanent or temporary promotion to higher executive officer grade (HEO) despite the fact that all his annual reports had marked him as "fitted for promotion".(c) Reporting officers preparing his annual appraisals had undermarked him from 1992/3 by making negative comments on his communication and listening skills and approach to change.In addition to those three complaints of racial discrimination, he complained that he had been subjected to victimisation contrary to sections 2(1) (d) and 4(2) (c) of the Race Relations Act 1976 , by reason of his complaint by letter dated 15 July 1993, which related to his complaint about substitution. He alleged that there was delay in dealing with that complaint and also in completing his annual report. He alleged that there was obstruction to the securing of a change in his annual appraisal.The Tribunal found the following material facts, which we summarise from the decision.Mr Majid is of Asian ethnic origin. He was educated in Kenya and served in the Civil Service in that country for many years. He settled in the United Kingdom in April 1971 and joined the Home Civil Service in that year at the administrative officer (AO) grade in the Department of Employment. He was promoted to executive officer (EO) in 1978. From 1984 to 1987 he was engaged in fraud investigations based at the Holloway Office and thereafter he was employed in the same office as a Claimant Adviser. In that capacity he reported directly to Ms M. Hedley, who was the Senior Business Manager in North London, with whom he enjoyed a good personal and working relationship. It was not disputed by the Respondents that the Appellant performed his work as a Claimant Adviser efficiently and received annual appraisals in which he was marked "fitted for promotion".In early 1992 there was a structural reorganisation in North London, which resulted in changes affecting the Appellant. The Claimant Advisers had previously been an autonomous service working in the Area Office reporting directly to Ms Hedley. But from January 1992 the post of Claimant Adviser Manager was abolished and Claimant Advisers were assigned to local offices and came under the direct control of local office managers. Mr Majid was assigned to the Finsbury Park A office under the management of Mrs J. Bagwell. She had held that position since June 1991 and had Mrs T. Walker, an EO, as her established deputy.The Respondents' established procedure, set out in the Staff Handbook, for choosing substitutes who were to deputise in the absence of a manager, provided:(a) The person chosen for substitution is usually the senior suitable person in the section controlled by the absent individual.(b) If exceptionally the senior person is passed over in favour of someone else this must be on the basis of unsuitability for the job, rather than the fact that they may be somewhat less suitable than a more junior person. The reasons for arriving at the view should be clearly explained to the person before the decision is announced.Mr Majid was the senior EO in the Finsbury Park A Office and should normally have substituted for Mrs Bagwell in her absence. Mrs Bagwell consulted Ms Hedley and the Tribunal accepted Ms Hedley's evidence that she advised Mr Majid, at the time of his posting to the Finsbury Park office, that, as he had been undertaking a specialist advisory role and had been out of line management in a Benefit Office for some time, it would not be efficient for him to deputise for the local office manager. She said, and the Tribunal accepted, that he had at that time accepted her ruling.In October 1992 there was a further departmental reorganisation affecting the Finsbury Park Office, in that Mrs J. McLuckie-Townsend became one of the Business Managers at Finsbury Park with the title of Claims Administration Manager. This was a new post and there was no established deputy. All the staff under her control were EOs. Some of them were Claimant Advisers, including Mr Majid, and some were New Claims Advisers. Mrs McLuckie-Townsend did not know any of them well. Mr Majid was the senior EO. In consultation with the then Field Operations Manager, Mr Slater, it was decided that all Claimant Advisers and New Claims Advisers should be permitted to develop their skills by substituting for her in rotation. The Tribunal accepted that Mr Majid had raised no objection to Mrs McLuckie-Townsend's proposal and had said he would be happy to assist in the training of EOs.That situation continued until about March 1993, when there was a further reorganisation, resulting in a functional split of duties between Mrs McLuckie-Townsend and the other office manager. Mrs McLuckie-Townsend assumed responsibility for common services, support services, finance and premises. She appointed a Mrs M. Walsh as her deputy, because Mrs Walsh had previously been a deputy manager at another Job Centre and had run offices for quite a long period in the manager's absence. Also, in the view of Mrs McLuckie-Townsend, Mrs Walsh had excellent communication skills and a knowledge of financial systems. In making that appointment Mrs McLuckie-Townsend was aware that Mr Majid was the senior EO and was aware that under the substitution policy Mrs Walsh could only be preferred on the basis of Mr Majid's "unsuitability for the job". It was the evidence of Mrs McLuckie-Townsend that she discussed the question of substitution with Mr Majid in March 1993 and explained her reason for appointing Mrs Walsh. He expressed his concern at the effect upon his status in the office. She reassured him that he was viewed by his colleagues as an experienced officer and was respected. However, it was plain that Mr Majid did not accept the situation from March 1993 onwards.In July 1993, Mr Majid approached Mrs McLuckie-Townsend, giving her a draft letter complaining about his unfair treatment in respect of substitution. He sought her advice about what he should do. Mrs McLuckie-Townsend was concerned that he felt that he had been unfairly treated. She asked him how he wanted to proceed. He said he wanted her to think about the letter. He returned two days later with a letter dated 15 July addressed to the Area Manager, Mr Lupton, in which he repeated his complaint, although he did not name either Mrs Bagwell or Mrs McLuckie-Townsend as being personally responsible for the unfair treatment. He again sought Mrs McLuckie-Townsend's advice. There was discussion about Mr Majid's communication skills. Mr Majid was suggesting that he had been passed over in favour of Mrs Walsh because English was not his first language. Mrs McLuckie-Townsend said that no difficulty was experienced in understanding his English, but she told him that he did not show active listening skills, by which she meant that he did not always give relevant replies to questions and was not always open to new ideas or ways of working. At the end of the meeting she told him that she would keep his letter in her in-tray and if he wanted it back at any time, he could retrieve it. She said that in any event the issues raised in his letter could be dealt with at the job appraisal review, which would be due later that year. Mr Majid was then absent from work for some weeks.Mrs McLuckie-Townsend completed Mr Majid's annual performance appraisal for the period ending 31 January 1993. This appraisal was late. She did not complete it until 24 July 1993. Mr Slater, the counter-signing officer, added his comments on 30 July 1993. Mrs McLuckie-Townsend was later to explain to the Tribunal that the delay in completing the appraisals that year was because Mrs Bagwell had left the department without leaving appraisal notes and these were not received until March 1993.In any event Mrs McLuckie-Townsend sent Mr Majid a copy of his appraisal on 20 September and suggested a review on 24 September. That meeting was postponed at Mr Majid's request, because at this time he was preparing, or had prepared, a Race Relations Questionnaire, which was to be directed to the Regional Personnel Director of the Respondents. It was in fact received by that officer on 7 October 1993.Among other matters raised in the questionnaire, the following statement appeared:
"On 15 July 1993 Abdul Majid wrote to Peter Lupton his Area Manager complaining about being deprived of substitution, despite his seniority. He asked for a reply within 2 weeks."
Mr Lupton had not received the letter of 15 July at that time, because it had been retained by Mrs McLuckie-Townsend with Mr Majid's concurrence.As a result of enquiries which followed, the letter went to Mr Lupton, who immediately requested a report from Mrs McLuckie-Townsend as to why the letter had been retained by her. On 4 November 1993 Mr Lupton wrote to Mr Majid inviting him to a meeting to discuss the problem and suggesting that this meeting should take place after the review of his annual appraisal.Meanwhile, on 25 October 1993, Mr Majid completed his Originating Application in these proceedings and these were presented to the Tribunal on 10 November, before he had attended for his job appraisal review with Mrs McLuckie-Townsend and before he had attended any meeting with Mr Lupton, which was designed to resolve his complaint about substitution. The Tribunal heard evidence of subsequent events because, as they said, in a complaint of racial discrimination, events subsequent to the complaint may be relevant to the conduct and motives of the parties. They, therefore, set out their findings in respect of events subsequent to the presentation of the complaint before the Industrial Tribunal.The job evaluation review took place on 11 November 1993. In all the areas covered in the report Mr Majid had received a box 2 rating, which meant that his performance was significantly above requirements or a box 3 rating, which meant that his performance fully met normal requirements. He was said by both Mrs McLuckie-Townsend and Mr Slater to be "fitted for promotion". Mr Majid disagreed with the markings and some of the comments and at the review with Mrs McLuckie-Townsend she amended three comments, but did not feel able to amend the markings. Mr Majid was dissatisfied and in due course wrote to Mr Slater, seeking an interview with him, as the counter-signing officer under the grievance procedure. However, Mr Slater refused that application as being out of time. He was later to reconsider that refusal and undertake a further consideration of the job appraisal.Meanwhile, Mr Lupton considered Mr Majid's claim to entitlement to substitution and in a letter to Mrs McLuckie-Townsend on 11 January 1994 he expressed the tentative view that Mr Majid's complaint appeared well founded. He said:
"Having considered all these factors I can see no reason why, at this point in time Mr Majid is not considered the most senior person in your command for substitution purposes. I will need to convey this view to him when he comes to see me."
Mrs McLuckie-Townsend immediately accepted that that was right and she told Mrs Walsh that Mr Majid would substitute for her in future.Notwithstanding his previous refusal to consider Mr Majid's appeal, Mr Slater decided that he ought, now that he was in possession of all the relevant facts, to reopen the question of the appraisal and Mr Majid attended a meeting with him on 9 March 1994. Following that meeting and further discussions, Mr Slater upheld the original report on nine of the disputed items, but in respect of one disputed item he removed an adverse comment of Mrs McLuckie-Townsend's relating to working relationships. He also clarified what Mrs McLuckie-Townsend had meant by "listening skills" and he noted that this was not a comment on the Appellant's hearing difficulties. However, Mr Slater did not feel able to alter the box markings and his letter to the Appellant concluded:
"As stated to you on 9 March 1994 I feel I must take this opportunity to stress that I feel this is a good report and one which you can be well pleased with. Your achievements this year have again been acknowledged by your line manager and I feel sure you will continue to be supportive and well motivated."
Mr Majid was still dissatisfied with the outcome and he arranged a further meeting with Mr Lupton in April 1994. There was then another meeting between the managers, as a result of which Mr Lupton raised some of the box markings and altered the "overall performance" marking to box 2. He also made an amendment to the comments on "communications", but did not raise that marking. The "working relationships" box markings were uplifted from box 3 to box 2 and the "approach to change" box in the "promotability" assessment was uplifted from box D to box C.On 9 May 1994 Mrs McLuckie-Townsend completed Mr Majid's annual appraisal for the year ended 31 January 1994. That was a good report. She rated his overall performance as significantly above requirements (box 2) and as "fitted for promotion". Once again Mr Majid disputed the assessment on the ground that he expected a box 1 marking under "overall performance". Following that, under the disputed review procedure, some of the box markings were improved, but not the overall performance.Having set out their findings of fact, the Tribunal turned to consider the law which they should apply and after setting out the relevant statutory provisions, they cited the well known passage from the judgment of Neill LJ, in the case of King v The Great Britain China Centre [1992] ICR 516 at page 528 F. No criticism is made of the direction of law.The Tribunal then turned to consider first, the Respondents' failure to grant promotion to the Appellant. This was the complaint that there had been racial discrimination in the Respondents' failure since 1978 to promote the Appellant to the grade of HEO or to a post carrying the HEO grading, despite assessments in every year that he was suitable for promotion. The Appellant sought to rely on the paucity of information provided in answer to his Race Relations Act Questionnaire. However, the Respondents explained that applications for promotion from EO to HEO or to an HEO post, do not request the candidate to state his or her ethnic origin. Accordingly, it was not possible for the Respondents to provide figures showing what proportion of successful candidates had come from an ethnic origin other than white Caucasian. Nor was the Regional Personnel Manager able to say how many EOs in the region had had promotion markings for as long as the Appellant had had, but had not been promoted. This, he explained, would have required the detailed examination of some 8,000 files and this had not been done.The evidence was that Mr Majid had been interviewed by an HEO promotion panel in 1982 and 1985 but not in the other years. There was no evidence as to why he had not been promoted on those occasions, or why he had not been invited for interview in the other years. From October 1990 the system had changed. Instead of a general promotion to the higher grade, candidates were required to apply for specific higher grade posts. The Appellant had applied but had not been successful and there was no evidence as to why he had failed.The Tribunal observed that the Appellant's complaints about promotion were unparticularised and made years after the event. His last application for promotion had been made 12 months before his Originating Application to the Tribunal. Although the Tribunal do not say so in terms in their decision, it is apparent from their observations that they found that the Appellant had failed to discharge the burden upon him of proving that the Respondents had treated him differently from the way they treated or would treat other employees. They dismissed the complaint.In the written grounds of appeal Mr Munasinghe sought to challenge this finding as perverse, but he abandoned that argument in the course of his submissions and accepted that the material relating to the Appellant's failure to achieve promotion could only be regarded as background material in respect of the other features of this appeal.The Tribunal then turned to deal with the complaint that the Appellant had been denied his right of substitution. In respect of the period from January 1992 until October 1992, when Mrs Bagwell had retained her established deputy, even though she was junior to the Appellant, the Industrial Tribunal accepted Mrs Hedley's evidence that she did not consider the Appellant to be suitable for substitution at that stage, as he had been out of office management for so long. The Tribunal decided that, in these circumstances, Mrs Hedley would have made the same decision regardless of the racial origins of the two people concerned.In respect of the period between October 1992 until March 1993, when Mrs McLuckie-Townsend was in charge of the department and she had decided to allow several EOs to substitute as part of their training, the Tribunal found that the Appellant had been consulted about that and had consented to that course. He could not now, therefore, complain that he had been discriminated against on the ground of race.From March 1993 onwards, following the functional split of duties, Mrs McLuckie-Townsend had appointed Mrs Walsh rather than the Appellant. The Tribunal found that this was a breach of procedure, as indeed was conceded by the Respondents, unless the Appellant was assessed as being unsuitable. Although as the Tribunal found, Mrs McLuckie-Townsend considered that Mrs Walsh was more suitable, it could not be said that Mr Majid was unsuitable and they concluded, therefore, that the Appellant had been subjected to unfavourable treatment. Mrs Walsh was a white Caucasian. They observed that this treatment had been recognised as unfair by Mr Lupton in January 1994 and the position had been corrected. Mrs McLuckie-Townsend explained the reasons for her decision to the Tribunal, who had accepted them as honest and genuinely held. Their view was that Mrs McLuckie-Townsend had acted as she did, for reasons which honestly seemed good to her at the time, and were nothing to do with the Appellant's racial origins. She was concerned to ensure the efficient running of the office. She did not have confidence in Mr Majid's communication skills and considered that he was not the best person to fill the HEO position in the office at that time. They found that the unfavourabletreatment had not been on racial grounds.On this appeal, this decision is challenged as having been perverse. At one stage Mr Munasinghe sought to submit that the findings of fact were not supported by evidence, but that submission could not be made good. His principal argument was that the Industrial Tribunal had failed to take account of the Respondents' failure to provide answers to the Race Relations Act Questionnaire served in October 1993 insofar as those questions related to the issue of substitution. Mr Munasinghe submitted that no reasonable Tribunal could have failed to draw adverse inferences from the failure to provide answers and that this rendered the Tribunal's conclusion on this important issue untenable.It was not disputed, as we understand it, that the Respondents had failed fully to answer that part of the questionnaire which related to substitution. The complaint was that they had not set out their case on this issue. In those circumstances the Tribunal might suspect that the explanation eventually advanced at the hearing had been a recent invention, otherwise why not set it out in the questionnaire? But, in this case, it was clear on further investigation that Mrs McLuckie-Townsend's explanation for her decision was not a recent invention, but had been fully set out in an internal memorandum dated 2 November 1993, which she had sent to Mr Lupton. Why that explanation was not set out in the questionnaire we do not know, but in our view it cannot matter. It must have been obvious to the Tribunal that the failure to provide answers in the questionnaire was unimportant. Indeed, it does not appear to us that the point was investigated in any detail in evidence, as one would have expected if the point was to be relied upon. We think there is nothing in this point. Moreover, we consider that the Tribunal's conclusions on the issue of substitution are unassailable.We turn next to the complaint about the Appellant's appraisals. Although in the decision the section dealing with appraisals is headed "The complaint of victimisation" it covers both the complaint of racial discrimination, in respect of appraisals, and the complaint of victimisation. Initially, the Appellant was complaining that he had been marked down in his appraisals by Mrs McLuckie-Townsend in the 1992/1993 appraisal and that this had been because of his race. Certainly, Mrs McLuckie-Townsend had made some critical remarks about his performance and some of the markings she gave were eventually raised during the review or appeal procedures. But, as the Industrial Tribunal observed, it was her duty to give honest opinions and the Tribunal accepted as honest and reasonable, the reservations she had expressed about the Appellant's performance, particularly in respect of his communication skills. It was stressed by her that these were not connected with the fact that English was not his first language, but rather they were connected with his tendency not to listen to what other people were saying and to give long, confusing and sometimes irrelevant answers. The Tribunal's own observations supported this view of him.The Tribunal rejected the suggestion that Mrs McLuckie-Townsend had marked the Appellant down on racial grounds, and no basis was advanced before us as to why the decision of the Tribunal was perverse.So far as victimisation was concerned, the Tribunal found first that there was no culpable delay in dealing with the Appellant's letter of complaint dated 15 July 1993. As we have already indicated, they accepted Mrs McLuckie-Townsend's explanation that it was with the Appellant's agreement that she had kept the letter in her in-tray and had not forwarded it to Mr Lupton. Further, the Industrial Tribunal found that the Appellant's complaint was dealt with properly by Mr Lupton, when it was raised later in the year. They found that there was no unfavourable treatment in the way in which the complaint was handled.The Tribunal also rejected the suggestion that the delay in completing the annual appraisal was unfavourable treatment. The Appellant himself had accepted that appraisals were quite often late and insofar as there was any unusual delay in his case that year, the Tribunal accepted the explanation that part of the delay had been due to a change in staff from Mrs Bagwell to Mrs McLuckie-Townsend. Finally, the Appellant had complained that when his appraisals were amended and improved the deleted comments were left visible, but the Tribunal found that this was the usual practice.Mr Munasinghe suggested before us that these findings, which resulted in the dismissal of the Appellant's complaint that he had been victimised on account of having made a complaint of discrimination, were perverse. He submitted first, that the question had not been properly tackled. There was no finding that the making of a complaint in July 1993 was a protected act. It is true that that is so, but it appears obvious to us that that complaint was a protected act. He submits also that there was no finding of unfavourable treatment and that the Tribunal had not then gone on to consider whether there was a causal link between the protected act and the finding of unfavourable treatment.We reject that submission because, although there was no finding that the complaint was a protected act, there were findings that there was no unfavourable treatment. Therefore, it was immaterial that there was no finding of a protected act. We reject the suggestion that the Tribunal's approach to the question of victimisation was flawed.Finally, Mr Munasinghe has suggested that, looked at overall, the findings of the Tribunal were perverse. He submitted that when one looks at the totality of the evidence, one should be driven to the conclusion that there has been racial discrimination in this case. He reminded us that this was a man who had been marked as fit for promotion since 1978 and yet never promoted. Second, that he had been passed over for substitution in 1993 and third, that his annual appraisals had frequently been amended on review. Surely, he submitted, there must be racial discrimination at work. He reminded us that where one finds a difference in treatment and a difference of race, it is, or maybe, but a short step to the drawing of an inference that the unfavourable treatment was on racial grounds and yet, the Tribunal, in each case, declined to draw that inference.We do not know and cannot say whether our own conclusions would have been the same as this Industrial Tribunal had we heard the evidence for four days, as they did. We cannot say whether we would have drawn the inference of racial discrimination, but that is not the question. The question is whether the Tribunal have directed themselves correctly in law, as they plainly have, and whether their findings of fact were perverse. Mr Munasinghe was unable to point to any single finding of fact, which was unfounded in evidence, nor was he able to demonstrate any finding which was so against the weight of the evidence that no reasonable Tribunal could have made that finding.That really disposes of this appeal. However, we deal briefly with the allegations of bias made against the Chairman. Four affidavits were filed on behalf of the Appellant, complaining of unjustified interruptions of the Appellant's Counsel and improper attempts by the Chairman to assist the Respondents' witnesses to improve their evidence. The Chairman was invited to comment and refuted the complaints. The wing member, Mr Kurukulaaratchy, swore an affidavit dealing with the allegations in detail and denying that he had observed any such bias. Mr Munasinghe recognised the difficulty he faced in the light of the wing member's denial. We agree that he did, indeed, face a grave difficulty in that regard, as we find it hard to believe that an experienced wing member would be unwilling to express his reservations and doubts, if he felt that the conduct of a Chairman had been less than fair and impartial.We have read all the material ourselves, including the affidavit filed by the Respondents' Counsel, and we have referred ourselves to the case of Regina v Gough [1993] AC 646 . We do not think that the reasonable impartial observer of these proceedings would have thought that there was a real danger of bias against the Appellant in this case. For all those reasons this appeal is dismissed.