MISS JAWHARY v IBCA LIMITED [1999] UKEAT 1053_98_2505

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1053_98_2505Case No Appeal No. EAT/1053/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS JAWHARYAPPELLANTIBCA LIMITEDRESPONDENT
Before
Mr Justice Lindsay Mr P M Smith Miss S M WilsonDate 25 May 1999
[1]APPEARANCES For the Appellant MR S JONES (of Counsel) Instructed by MESSRS MISHCON DE REYA SOLICITORS 21 Southampton Row London WC1B 5HS For the Respondent MR D GRIFFITH-JONES (of Counsel) Instructed by MESSRS FOX WILLIAMS SOLICITORS 39-45 Finsbury Square London EC2A 1UU MR JUSTICE LINDSAY: We have before us, by way of a full hearing, the appeal of Miss M Jawhary against IBCA Limited. Miss Jawhary has appeared today by Mr Shaun Jones, the Respondent IBCA by Mr Griffith-Jones. Miss Jawhary is Jordanian Palestinian. She is highly qualified as an economist and also has high qualification as a civil engineer. IBCA Limited has offices at many locations spread all over the world. In the papers it talks about London, New York, Johannesburg, Paris, Barcelona, Buenos Aires, Brisbane, Tokyo, Singapore and San Paolo. It may be that IBCA Limited should not have been the Respondent but rather IBCA Sovereign Ratings Limited, which is a subsidiary of IBCA. There is some indication in the papers that it was the subsidiary, IBCA Sovereign Ratings Limited, that actually employed Miss Jawhary, but no point was taken on that below or here and it is best left on the side.[2]The Sovereign Ratings business is described in the papers, specifically in the Notice of Appearance put in by the Respondent namely that it is engaged primarily in the compiling of in-depth country reports which comment on the macro-economic outlook, structural features and political aspects of the country in question and in assigning a credit rating to that country. The Notice of Appearance goes on to say that the information IBCA has is often price sensitive and describes the nature of work in rather more detail, more than we need for present purposes.[3]From 1 May 1996 to 8 January 1997 Miss Jawhary was employed as an economist at IBCA or, if that was properly the case, at the subsidiary company, but, at any rate, there she was. On 26 March 1997 she lodged an IT1, which was later substantially amended, which claimed racial discrimination and wrongful dismissal. Miss Jawhary succeeded on her claim for wrongful dismissal; there is, of course, therefore no appeal by her on that subject and no appeal, either, by the Respondent. Her immediate superior at IBCA, a Mr Huhne, was found to have acted in a high handed manner in relation to the dismissal but the Tribunal concluded that it was without that high handedness being on racial grounds. The circumstances were that Miss Jawhary had given written notice and she was working it through. Mr Huhne found her removing 8 disks from the office. He assumed (without looking into it adequately) that the reason why she was taking them was to advance her own career or to use elsewhere or at any rate (one way or another) to use company property for her own purposes. She was therefore required by him to clear out there and then and not return. Mr Huhne's explanations of these events were accepted by the Employment Tribunal but such high handedness was held to represent wrongful dismissal and a breach of contract. We mention wrongful dismissal simply to get it out of the way. There is no appeal on that subject and it was held by the Employment Tribunal that there was no racial content in the dismissal or the manner of it.[4]Turning specifically to racial discrimination, Miss Jawhary basically complained of three broad areas of discrimination; firstly in relation to pay, secondly in relation to the allocation or non-allocation of work to her and the nature of the work that was or was not assigned to her and thirdly in relation to that dismissal. In particular, she relied not on any one single event but on a series of events, especially involving Mr Huhne, spread over a period. We will need to turn to these particular events in more detail when we come to look at the particular grounds of appeal. Continuing at a rather broad level, she had alleged that Mr Huhne was a racist. Mr Huhne gave evidence. His explanations were accepted by the Employment Tribunal and there was, said the Tribunal, no evidence of direct discrimination. The Tribunal directed itself on the law.[5]In their paragraph 24 they say:
"There is no evidence of direct discrimination. We therefore have to look at the facts and ask whether we can draw inferences from those facts in accordance with the criteria set out in King v Great Britain China Centre (1992 ) in that (1) It is for the Applicant to make out his or her case. In this case we conclude that the Applicant has made out her case and that without an explanation these events could have occurred because of racial discrimination. (2) Can we draw any inferences, bearing in mind the explanations given by the Respondents. We accept the explanation that has been put forward by the Respondents in all these matters."
A little later they say of Mr Huhne:
"We accept Mr Huhne's explanation regarding the remarks of which the Applicant complains. There is no question that in the context of which they were made these were not remarks that could be taken as being directed at the Applicant on the grounds of her nationality or race."
The Employment Tribunal held, so far as concerns racial discrimination, that the claim of race discrimination failed.[6]We do not have the Chairman's notes of all or any of the evidence and neither side has requested that we should obtain them. Mr Shaun Jones for the Appellant states that when one looks in detail at the Tribunal's findings one can only conclude that it has failed properly to direct itself. Such an argument may very well fall foul of the dictum that the Tribunals' decisions are not to be gone through with a fine toothcomb and we have been referred to Piggot Brothers v Jackson . Mr Griffith-Jones for IBCA has drawn attention to the ratio of that case being that what a Tribunal's reasons have to indicate is, broadly speaking, why one side has won and why the other side has lost. He draws attention to that particularly in relation to the three key complaints of pay, allocation of work and dismissal. It is a notable feature that none of those three bedrock allegations has been challenged in any detailed way by Mr Shaun Jones. It is to be remembered, of course, that we can only deal with questions of law. The Tribunal below was the master of fact. Of course if some material conclusion appears for which there was no evidence whatsoever, then that error of fact then becomes an error of law. Equally if the Tribunal comes to a conclusion to which no Tribunal properly instructing itself could have come, then, again, one has an error of law usually characterised as "perversity". The test for perversity is indeed a stern one. One has to ask is it, for example, "outrageous" of the Tribunal to have decided as it had? Does the decision (to put it in the language of another case) fly in the face of informed logic? Is it an "impermissible option", to use the language of yet another case. With such broad considerations in mind, we turn to the particular of the grounds of appeal in Mr Jones's skeleton argument. It is convenient to take them under separate headings using the very headings that Mr Shaun Jones' skeleton uses. The first heading is as to Mr Huhne's remark on Miss Jawhary being refused a visit to Kuwait. The complaint is recorded by the Employment Tribunal as follows. When the Kuwaitis refused a visa, he (that is Mr Huhne) apparently said "it must be because the Kuwaitis think that all Jordanians are terrorists and now I cannot use my Middle-Eastern analyst in the Middle-East".[7]Mr Huhne's explanation was also recorded by the Tribunal. They say this:
"Mr Huhne in explanation stated as follows. That all these remarks were made in certain context and that the remark about Miss Jawhary's inability to visit Kuwait was made to make her more comfortable and to show his annoyance with the Kuwaitis for refusing her a visa."
It may well be (I do not think there is any disagreement between Counsel on this) that the remark should not have been "It must be because the Kuwaitis think that all Jordanians are terrorists" but rather that all Palestinians are terrorists". Even so, the explanation that was given to the Tribunal would seem to fit, namely that Mr Huhne was blaming the Kuwaitis' unreasonableness. That would still stand as a reason for the remark whether it was addressed as to Palestinians or Jordanians. The Tribunal heard the complaint and they heard the explanation and they accepted the explanation. The Tribunal could properly enquire into why it was that Mr Huhne said as he did and it was for them to conclude on the point and they did conclude on the point. We see no error of law on what was there essentially a question of fact best left to the Tribunal which saw and heard the witnesses on the question. Mr Griffith-Jones makes the point (and it is a fair one to be made) that in any event the issue was not probative in relation to the main issues of pay, allocation of work and the dismissal.[8]The second heading can be called the Appellant's Jordanian character. The complaint in the Notice of Appeal is this. During a visit to the Lebanon the Appellant had a conversation in Arabic with the Lebanese Prime Minister. The Appellant then told Mr Huhne that the Prime Minister's wife was also Jordanian. The Appellant alleged that Mr Huhne then criticised her saying her "Jordanian character was showing through". The Notice of Appeal continues on the same topic:
"In his evidence Mr Huhne has suggested that the Appellant had spoken at inappropriate length about her experience of Jordan, that he had criticised her but that the words that he had used were that her Jordanian "background" were showing through."
The ground of appeal is expressed as follows:
"The Tribunal's decision gives no indication that it had even appreciated that there was a dispute, let alone that it might be of some significance"
. It is quite plain that this incident is the incident that is dealt with in (iv) on our page 9 (paragraph 11(iv)) where it says "When on a visit with the Applicant Mr Huhne admits saying to her that it was not appropriate to discuss the situation in Jordan as their jobs as analysts in preparing the report was to elicit facts from the parties concerned and not to give their viewpoint on certain countries or their economies." A little later on the same page, Mr Huhne also gave an explanation regarding the Jordanian conversation stating that as her leader he had to make sure that conversations with clients were appropriate in the particular circumstances.[9]We also have to bear in mind, as cited earlier that the Tribunal said:
"we accept the explanation that has been put forward by the Respondents in all these matters"
. One cannot assume that because the Employment Tribunal does not deal at length with the matter and does not deal with it in every detail that the matter was not in mind, see in particular Retarded Childrens' Society v Day (1978) ICR 437 , page 444 Court of Appeal . Again we are unable to see any error of law in this particular dealing.[10]The third topic can be headed "The Arab Press" and, again, looking at the Notice of Appeal on this point and the nature of the complaint which Mr Shaun Jones touches on in oral address, it is as follows:
"During the same visit to Lebanon the Appellant drew Mr Huhne's attention to a headline in an Arab newspaper which suggested that there was a risk that Israel might be planning to attack Syria. His evidence was that he told the Appellant that he did not consider that the Arab Press had much credibility on that issue. The Tribunal found as fact that it was his intention to allay the Appellant's fears. There was no evidence before the Tribunal that Mr Huhne had any such intention and in effect the Tribunal constructed an excuse for his behaviour. In the giving of its oral decision the Tribunal indicated that it accepted that "the Arab Press" was unlikely to be objective in its reporting of relations between Israel and other Middle-Eastern countries. There was no evidence before the Tribunal that would have allowed it to have formed an informed view as to the objectivity of the Arab Press."
We have no Chairman's notes, as we have mentioned. The Respondent, IBCA, does accept on this subject that the evidence was that the Appellant had drawn Mr Huhne's attention to fears expressed in the Arab Press about a potential military confrontation in the Golan heights. The Appellant appeared to Mr Huhne to attach particular significance, in the context of work being done by the Respondent, to such reported fears. Mr Huhne did not feel that in the circumstances such fears, as reported in the Arab Press, were particularly significant, hence his comment as recorded by the ET at paragraph 11(ii). The ET accepted Mr Huhne's explanation.[11]It can fairly be said that the Tribunal expressed themselves on this point in a rather generalised and perhaps unevidenced way. That, of itself, is hardly sufficient to overturn a decision which is otherwise specific and reasoned. It is, again, a going through the decision with a toothcomb, the very process which one is enjoined not to do. As to whether the Employment Tribunal was itself insensitive to a particular ethnic minority, one would have thought that a person in Mr Huhne's professional position (having to take a view on economics and the press and other considerations) could surely have a view as to the credibility of the Arab Press on the limited subject of possible Israeli aggression against Syria, without that view necessarily having any racial component but rather a professional component judged from his own background. Quite what the position should have been, we cannot tell because we do not have the Chairman's notes and it is not for us to speculate. The Tribunal does say of Mr Huhne, in their paragraph 12:
"In addition he wanted to point out to her the difficulties of the press in making objective reports when the incident they were reporting was about their own country and very sensitive. One can see some force in that."
They continued:
"He wished to allay her fears that there was going to be an immediate military confrontation in the Golan heights between Syria and Israel."
Even if that latter finding, which is particularly complained of in the Notice of Appeal, was unjustified as being based on no evidence and perhaps also as not being within the range of permissible inference that was open to the Tribunal (as to which, given no notes we have to remain agnostic) even so, the preceding passage stands as an explanation which makes the point that there was no necessary racial component in the comment as to press credibility. Again Mr Griffiths-Jones takes the point that in any event it is on the very very periphery of any necessary assessment on the three substantive complaints of pay, allocation of work and the dismissal itself. It may be here that a point of view was expressed for which there was no true foundation of evidence and it might even be that the Employment Tribunal should not have drawn the inference about a wish to allay Miss Jawhary's fears. Even if that was the case, the matter seems too peripheral to amount to an error of law that touches the substance of the decision.[12]The next subject relates to the issue of whether it was right to conclude that there was no evidence of direct discrimination, that is what the Tribunal says. In effect that, as it seems to us, is shorthand for the Tribunal saying that on the evidence which it heard it was unable to conclude there was any proven case of discrimination within Section 1(1)(a) of the 1976 Act without relying on inference. That seems to be plain from the passage, which we read earlier:
"There is no evidence of direct discrimination. We therefore have to look at the facts and ask whether we can draw inferences from those facts in accordance with the criteria set out in King v Great Britain China Centre . "
[13]It is a conclusion of fact that they were entitled to come to, namely that in the sense that we have explained, there was no evidence of direct discrimination. Fact, as we have mentioned, is peculiarly the province of the Tribunal and again, on this subject, we find no error of law.[14]The next subject was whether Mr Huhne was a racist. The complaint is that the Tribunal appears to have approached the subject on the basis that it had to decide whether or not the Appellant had succeeded in establishing that Mr Huhne was a racist but that that was not a requirement of the 1976 Act. Rather the only question should have been whether the Applicant was treated less favourably on grounds of race - James v Eastleigh Borough Council (1990) IRLR 288 . It seems to us that the Tribunal dealt with the case in the way that it did because that was the way in which the matter was put to them by Miss Jawhary herself. It might well be that Mr Jones put the case a different way but Miss Jawhary does appear to have made an attack on Mr Huhne as a racist. In their paragraph 21 the Tribunal say:
"The Applicant alleges that all these things happened because Mr Huhne was a racist. This is a serious allegation to make which the Applicant appears to try to support by the allegations contained in the facts above."
[15]Evidence was then given for and against that particular issue - namely was or was not Huhne a racist - and the Tribunal concluded the point against Miss Jawhary. They said, "There is no evidence before us to show that Mr Huhne is a racist generally." It is unfair, as it seems to us, to suggest that the Tribunal saw that as some bull point. The same paragraph goes on to say:
"… the matters to which we are directing ourselves are to whether the Applicant was personally treated in a discriminatory fashion to her detriment because of her race i.e a Jordanian Palestinian. It is on these facts on which we base our conclusions."
[16]In paragraph 22 they say:
"Section 1 and Section 4 of the Race Relations Act states that the person discriminates against another if on racial grounds he treats him less favourably than he treats or would treat other persons and that it is unlawful if an employer treats an employee in the way that he affords him access to opportunities for promotion, training or other benefits or by dismissing him or subjecting him to any other detriment. "
[17]The Tribunal plainly went way beyond the subject of simply whether or not whether Mr Huhne was a racist and, as we have seen earlier, they specifically directed themselves in relation to the leading case of King v Great Britain China Centre . So, on that particular subject of whether Huhne was a racist, we see that the Tribunal was entitled to come to a decision because that was an attack that was made in the course of the case. It was entitled to come to a conclusion on the facts and it did come to a conclusion on the facts and no error of law there appears.[18]The next heading in the Notice of Appeal can be headed under the label "We are all prejudiced" and this stems out of the remarks in paragraph 21 of the Tribunal's decision where they say; "It is accepted that all persons have prejudices but most persons try to deal with others fairly and openly trying to overcome their prejudices regarding people of other nationalities or ethnic minorities." The complaint which the skeleton argument raises is as follows:
"The Tribunal's direction is in error in that (i) it appears to require that the Appellant established racial prejudice on the part of her employer whereas the Act imposes no such requirement and (ii) it suggests that a degree of prejudice is inevitable and acceptable provided that the employer tries to overcome it. The direction is likely to give a complainant the impression that the Tribunal is prepared to tolerate certain levels of prejudice."
[19]It seems to us that the remarks by the Tribunal really amount to no more than rather harmless philosophising. The Tribunal, in its paragraph, was addressing whether or not Mr Huhne is a racist. The next statement indicated that they held he was not and the Tribunal immediately went on with the passage we have already cited that said "and the matters we are directing ourselves are to whether the Applicant personally was treated in a discriminatory fashion to her detriment because of her race i.e. a Jordanian Palestinian. It is on these facts on which we base our conclusions."[20]It does not seem to us that it can fairly be said that the remarks about us "all being prejudiced" is a foundation for an impression that the Tribunal was prepared to tolerate certain levels of prejudice, which is the nature of the complaint or part of the nature of the complaint. It is in any event fair to point out that in a sense even the Act indicates that there are some forms of discrimination which are not justiciable, for example discrimination falling within Section 1 but falling outside Section 4 is, generally speaking, without any remedy. It is by no means every form of racial discrimination that is justiciable and so, at that sort of level, it could be said that some forms of discrimination are to be tolerated. Perhaps that is an irrelevant consideration but we do not see the remark here in question as being any more than harmless philosophising and we do not see in it any error law that had any true relevance in relation to the bedrock allegations in relation to pay, assignment of work and the dismissal itself.[21]The Notice of Appeal also raises the subject of perversity. It is very difficult to mount such an argument, as we have already mentioned. As for the undoubtedly unpleasant manner in which Miss Jawhary was dismissed, that was examined by the Tribunal and Mr Huhne's explanation was accepted. What they say in their paragraph 24 (4) is this:
"The explanation given by the Respondents that they thought she could have taken confidential material would have pertained when those others resigned" [two others were being referred to, Miss Elmore and Mrs Janet Krengel, who presumably were of the ethnic majority] "
However, we accept Mr Huhne's explanation about this. He knew that the Applicant was leaving very shortly and concluded without explanation when he saw 8 disks being taken from the office that she was removing them to further her own career or to use them elsewhere. As she was paid up until the end of January he believed that he was not acting [in]correctly. We accept that explanation. We do not believe that there was any racial motivation in this." A little later they say:
"Mr Huhne in a high handed way had dealt with the termination without any thought to the consequences."
[22]The reason which Mr Huhne gave is described by the Tribunal therefore as being not a reaction borne of racism or related to it or discriminatory but a reaction by what he took to be improper activity on Miss Jawhary's part and he was, moreover, not acting in a considered way but without thought to the consequences. We cannot describe that conclusion as outrageous or as flying in the face of informal logic or as being an impermissible option. The Tribunal heard his explanation and accepted it. He thought that she was removing company material shortly before leaving and during the course of working out her notice. He acted without any thought to the consequences. That is not necessarily the conclusion we would have come to – who is to know? We cannot say that it is not a conclusion that was open to this Tribunal as the finder of facts.[23]So much for the detailed grounds which Mr Jones advanced in the Notice of Appeal and has touched on. I have not mentioned one particular one that was in the skeleton argument that has not been touched on - the subject of language skills - but it was clear in the course of the hearing that nothing was to be advanced on that particular subject. Switching, therefore, to a rather more broad approach, Mr Jones reminds us that one can have justiciable racial discrimination without any conscious motivation being proved. He says, too, that one should approach explanations by Respondents with a degree of scepticism. Also he says that one must be alive to nuances, which should be detected by a Tribunal and should be dealt with and borne in mind in their final overall decision – yea or nay to racial discrimination.[24]We see force in all those considerations but it has to be borne in mind that it is for the Employment Tribunal alone to assess the evidence and to detect whatever nuances may be detectable. It is difficult enough to detect nuances when one hears the witnesses and sees them oneself. Even more difficult, perhaps to the point of impossibility, to do it at one remove in an appellate court or Tribunal. Essentially the question of nuances is to be left to the Tribunal itself and it is also to be left to the Tribunal with what degree of scepticism to approach such explanations as are given. This was an experienced Tribunal. They never say they were looking only to find conscious motivation, nor is that a necessary implicit conclusion to be drawn from such reasons as they do give. One cannot jump from the facts that a subject was not expressly mentioned to a conclusion that it was not mind.[25]We would confess to a certain unease about the Tribunal's decision and Mr Griffiths Jones himself accepts that it is not the best expressed of decisions. For all that, we have been unable to detect no error of law properly-so-called, least of all one that is in the central areas of pay, allocation of work and as to the dismissal itself. Accordingly we must dismiss the appeal.