MR A M SOORMALLY v THE DEPARTMENT OF SOCIAL SECURITY BENEFIT AGENCY [1999] UKEAT 125_98_2303

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 125_98_2303

Case No Appeal No. EAT/125/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A M SOORMALLYAPPELLANT

THE DEPARTMENT OF SOCIAL SECURITY BENEFIT AGENCYRESPONDENT

Before

Mr Justice Holland Mrs E Hart Mr R N Straker

Date 23 March 1999

Mr Soormally is of Asian-Mauritian origin. He was born on the 13th July 1940; he came to this country in 1961; and he entered into employment with the Department of Social Security (or the DHSS as it then was) in 1974. He remains in that employment. He is an executive officer with the Benefits Agency, grade LO1/B3, working in the North Essex District. Towards the end of 1995 he sought to gain promotion by applying for a post as a Job Seekers Allowance Team Leader. In the event he was one of sixty applicants - five persons were appointed to such posts, the fifty-five rejects included Mr Soormally. He then applied for one of two positions as a Team Leader in the Benefit Agency Section. Initially there were only two applicants, a Miss Jane Robinson and Mr Soormally. After the closing date a white man, Mr Crawford applied. In the event it was Mr Soormally who was rejected. These experiences led Mr Soormally on the 2nd September 1996 to initiate a complaint against his employers ("the Respondents") to an Industrial Tribunal by way of an IT1 invoking 'Race Relations'. On the same day he also initiated an internal equal opportunities complaint. In the event the parties sensibly focussed on the internal complaints procedure (such involving the preparation of a Report) and for the time being left the complaint to the Industrial Tribunal in abeyance.

The Report

This has been put before us. We see that it is the product of two investigators, Mr K.A.G. Harris and Mrs S.M. Smith and is dated December 1996. In defining its remit, it recites the specific matters of complaint and then continues "To the direct question (Mr Soormally) was absolutely clear that the equal opportunities issue at the heart of his complaint is racial discrimination ..... (he) sees these latest events as the continuation of his past experience .i.e. in the absence of a non-discriminatory explanation of recurring decisions he has no option but to draw the inference that they are discriminating and he attributes that to race". Shortly thereafter the findings appear in terms:

"1. The complaint of discrimination relating to the selection process for Team Leaders is upheld. This finding is principally based on the fact that the selection process used were flawed and it cannot be shown that all candidates have been treated in a similar manner.

2. There is no evidence of overt discrimination on the grounds of race by either party named in the complaint. Nor have we identified any indications of racial prejudice. In the case of YL in particular there is documentary evidence of a pro-active stance on Eq. Ops."

We interpose: the two parties named in the complaint were Robert Waddington and Yvonne Lambert. The balance of the report consists of a careful analysis of evidence and conclusions. It is consistently critical of the processes that had been the matter of complaint.

The Letter

By an open letter of the 12th Mach 1997 Mrs Veronica Humphrey, a personnel manager with the Benefits Agency, wrote to Mr Soormally so as to communicate the effect of the Report. In the course of a full and thorough exposition, she acknowledged his contention that the occurrences complained of were discriminatory - and by reason of his race. She told him that she had received a copy of the investigators' report "..... and I am fully satisfied that a fair and thorough investigation has been carried out. On the basis of the evidence gathered, the investigators found the selection process for both the JSA and BA Team Leaders to be unfair because it could not be shown that all candidates were treated in a similar manner. The investigators could not find, however, any evidence of overt discrimination on the grounds of race by either Yvonne Lambert or Robert Waddington. In view of your impending appeal to the Industrial Tribunal I have enclosed a copy of the investigators report into your Equal Opportunities complaint ." The letter concluded:

"I will be seeking assurances from Keith Jones and Phil Earl who have operation responsibilities for North Essex District that future selection procedures are run in accordance with the Benefits Agency Equal Opportunities polices. The specific findings of the investigation will be discussed with Robert Waddington and Yvonne Lambert to ensure that the criticisms raised in the report are brought to their attention and that they receive the proper guidance for management of selection procedures in the future.

I hope that you are satisfied that this investigation has been conducted thoroughly and that the findings are supported by the evidence in the report and I trust that you will now be able to put these incidents behind you. If you are not satisfied, your full rights are outlined in the Benefits Agency Opportunities Procedure, paragraphs 807-811."

Subsequent Correspondence

The internal procedure having been brought to this conclusion, Mr Soormally (now represented by solicitors) and the Respondents gave attention to the Industrial Tribunal proceedings. By way of preface, it is to be noted that the Respondents had entered a Notice of Appearance dated the 10th January 1997. By such, it put racial discrimination and limitation in issue, essentially (as we think) as a holding exercise. Then,

21st April 1997 - Respondents to the Industrial Tribunal: asking if a fixture could be vacated:

"without prejudice, the only matter in issue will be quantum."

We interpose: a letter to the Tribunal could not be 'without prejudice': it was in effect 'open'.

27th May - Solicitors to the Respondents: referring to the letter of the 21st April, "Will you please confirm by open letter that in respect of each and every allegation made by our client in IT1 liability is admitted."

29th May - Solicitors to the Respondents: referring to the letter of the 27th May and subsequent telephone conversations, set out the five requirements stipulated by Mr Soormally to add to monetary recompense as a basis for settlement.

9th June - The Respondents to the solicitors, indicating in an open letter the extent to which they would be prepared to meet the additional requirements. It is to be noted that the letter includes "I am advised that as soon as these proceedings have concluded my client will consider disciplinary action against the officers in respect of whom complaints have been upheld."

27th June - Mr Soormally to the Respondents: he was now acting in person and he thought there could be merit in a 'without prejudice' discussion.

30th June - Mr Soormally to the Respondents: setting out 'without prejudice' his terms for settlement. It is material to note that his financial demand is very substantial.

11th July - The Respondents to Mr Soormally: responding 'without prejudice' to his requirements, item by item. The financial offer is far below that sought by Mr Soormally. Dealing with one aspect the letter asserts:

"In fact it is not the case that the present matter of discrimination is viewed as being very minor. Disciplinary procedures have commenced in the light of the Equal Opportunities grievance procedure report."

It concludes by informing Mr Soormally that in the event of no settlement being reached, the Respondents will be calling two witnesses (Mr Waddington and Mrs Humphreys); that a ruling would be sought about limitation; and that the time estimate was 3 to 5 days.

The remaining pre-hearing correspondence need not be further described. By way of an exchange of letters, matters relating to the hearing were dealt with.

The Hearing

This took place at Bury St. Edmunds over several days on and between the 17th September and the 3rd October 1997. By this stage Mr Soormally as Applicant had added a further application by way of a second IT1 dated 12th June 1997. This similarly alleged racial discrimination, this time in connection with his unsuccessful attempt to become a project leader in connection with the Homeless Project - an issue additional to that covered by the internal Report and the first IT1. In the event, the Industrial Tribunal rejected the complaint thus raised: that finding is not the subject of appeal and we say no more about it. Turning back to that which was the subject of the first IT1 and the internal Report, it is apparent that the stance of the Respondents had by now materially altered. Their case, as it appears from the Extended Reasons seems to be as follows:

1. There had been no discrimination against Mr Soormally on grounds of race;

2. In so far as he had been disadvantaged in connection with his job applications, that reflected procedures that were "at best chaotic and at worst negligent"; and

3. Neither the internal Report nor the letter of the 12th March admitted racial discrimination - the 'discrimination' referred to was of some nature other than racial, presumably personal.

It is observed that this stance elicited no comment from the Industrial Tribunal who in the event proceeded to cover ground similar to that covered by the investigators for the purposes of the Report. The conclusion of the Industrial Tribunal sufficiently appears from the last five paragraphs of the Extended Reasons:

"32. We are also very conscious that discrimination on the grounds of race is rarely directly evidenced. In this case we have looked to the employer for an explanation. We accept the employers explanation. We found the witnesses to be honest and accurate and are satisfied that they were not influenced at any stage by racial consideration.

33. We agree with the internal report the applicant was unfairly treated because of the procedures adopted by the respondent in making selections for the team leader posts. However, unfairness does not of itself lead to the inference that racial considerations have caused the detriment. We look at each incident and the cumulative effect of each incident to see if the whole is greater than the sum of the parts. We are satisfied that there is nothing in this case, no finding of fact, from which we can draw an inference against the respondents.

34. We are most concerned, as we indicated above, about the respondents procedures in selecting for Team Leader posts and are particularly concerned about the way the applicant was treated in respect of the selection for the Benefit Agency post. On any view of the matter such a selection was unfair. However we apply the guidance set out in the case of King together with the ratio decidendi of Glasgow City Council . Taking those cases together we are satisfied that the applicant has suffered a detriment as indicated above: that in some respects - but by no means all - he was treated unfairly but on no occasion was his treatment/detriment caused or motivated by racial considerations.

35. For all the above reasons we are satisfied that the claims are not well founded."

Whilst considering the Industrial Tribunal hearing certain points of fact merit attention:

1. Mr Soormally represented himself.

2. Seemingly, he did not object to the Respondents' decision to contend that the report did not find discrimination.

3. Seemingly again, he did at some stage try to put before the Industrial Tribunal the Respondents' letter of the 9th June 1997 but failed, the Industrial Tribunal ruling that it was without prejudice.

4. On any view, first, the Industrial Tribunal did not see the correspondence that has been reviewed above; and second, did not hear from either of the investigators who complied the report.

The Submissions

For Mr Soormally, Mr Panton made various submissions, one such being that the internal Report made a finding of racial discrimination which finding led to what, on a proper construction of the correspondence was an admission of such. Given that the Industrial Tribunal took none such into account - and indeed was led to assume the contrary - its findings and conclusion cannot be sustained. On behalf of the Respondents, Miss Downing contends that the finding of discrimination made by the investigators must have been related to some form of such other than racial. She further submits that the Industrial Tribunal was not entitled to see the correspondence: such was totally 'without prejudice', appropriately so since it reflected the forensic exercise of seeking to buy off the risk that there would be a finding against the Respondents. When agreement could not be reached because the financial demands of Mr Soormally were excessive, her clients were perfectly entitled to contest liability without excuse or explanation.

This Tribunal

This Tribunal starts by reminding itself that it is not a fact finding body. If there is an issue as to whether the investigators when making their finding meant racial or some other form of discrimination then it may be that that issue will have to be resolved elsewhere. We are however able to comment on the significance of the issue, and do so as follows:

1. If some discrimination other than racial was what the investigators were finding then, as it seems to us, Mr Soormally is once again the victim of some inexplicable discrimination, this time at the hands of the investigators, Mrs Humphrey and those conducting the correspondence that has been cited. It is clear beyond argument that he was complaining of racial discrimination - what else was he expected to infer from the report, the letter and the correspondence other than that he had secured a finding of such? Are the Respondents having yet again to invoke procedures that are "at best chaotic, and at worst negligent" to explain this sustained exercise in misleading him? In this context, we flatly reject the notion that the correspondence reflected the legitimate forensic exercise of 'buying off' a speculative claim. At no stage was the claim of racial discrimination (as distinct from the remedies for such) put into issue until the hearing. At no stage did the Respondents say:

'we reject your contentions, but to save on public resources, we will pay you a sum not to proceed with such'

. Quite the contrary, the terms that were under discussion by way of the correspondence properly reflected the extra - financial implications of a finding of racial discrimination, such including the potential disciplining of others concerned. It may be (we know not) that the disciplinary procedure contemplated as at the 11th July fell by the wayside because Mr Soormally did not accept the money then on offer, but if that be the case then again we are confronting chaos, further or alternatively negligence.

2. If indeed the investigators did find racial discrimination then Mr Soormally and the Industrial Tribunal can respectively complain that the Respondents misled them at the hearing. Of course the Respondents were entitled to put the fact of racial discrimination into issue before the Industrial Tribunal - their investigators did not bind them - but only on a 'cards face up' basis, namely (if such be the case) 'the investigators did find racial discrimination but on mature reflection we think that they were wrong', Of course that stance would inevitability raise questions as to when and why they decided to reject the investigators conclusion - but therein lies the raison d'etre of candour: the opportunity to have a full and fair enquiry.

Following on from this analysis, we wish categorically to reject the notion that Mr Soormally's complaints of racial discrimination were such as could be equated with a speculative personal injury damages claim - to be fought if they could not be brought off. Any such stance must be rarely if ever justifiable and it certainly had no place in this case. His complaints had an importance that was from being just financial. They affected him, his past and prospective career with the Respondents, those who he had blamed, the investigators and his superiors. It is fair to commend the early correspondence emanating from the Respondents as tacitly acknowledging these implications and it is only later that someone presumably decided 'if he will not accept our offer, we will contest liability' and thereby lost sight of what all this was or should have been about. It was disappointing to find this attitude still prevailing before us and we strongly urge that the foregoing strictures be urgently considered by the Respondents at a senior level. Of course, the Respondents are not obliged to accept the internal report, of course they are not obliged to read it as substantiating a complaint of racial discrimination, but in either event they should make their views known in a timely and clear fashion and not mislead Mr Soormally into thinking the contrary. Of course, the Respondents are not obliged to accede to the latter's demands, but that leads to a Remedies Hearing, it does not lead to an 'all bets off' stance. The Respondents must be seen to take racial discrimination as an issue serious in itself; viewing events following on from the 11th July, is not Mr Soormally entitled to regard them as supporting his contentions, and as feeding his suspicions - why did they mislead me? why did they change their position? had I accepted their offer, would not all this have been swept under the carpet supported (as Miss Downing candidly if surprisingly suggested) by settlement terms imposing a condition of confidentiality?

Disposal of the Appeal

We allow Mr Soormally's appeal. The Industrial Tribunal was not concerned - as it should have been - with the nature of the finding by the internal inquiry and with the representation of such to Mr Soormally. Essentially the full facts and issues were not put before it with the result that its present decision cannot be sustained.

We direct that the matter be remitted for a re-hearing before a freshly constituted Tribunal.

We further direct that copies of, respectively, the Extended Reasons and this judgment be sent to the Chief Executive of the Benefits Agency for urgent consideration of the issues raised and of the future conduct of the Agency with respect to this matter in particular and Race Discrimination issues in general. As to the issues raised, these are set out above - and we add the findings by the Industrial Tribunal in paragraph 10 of the Extended Reasons as to further discreditable conduct which can only serve reasonably to fuel Mr Soormally's suspicions of discrimination. As to the future conduct, the Chief Executive will no doubt make a decision as to whether now to proceed by reference to the apparent findings of the internal Report or whether to have a re-hearing. Further, whether or no there is to be a re-hearing, consideration will need to be given to the significance of racial discrimination to the Agency (is it simply a trigger for some confidential financial payment or does it have an integral and open importance to the Agency?) and to the role of candour in dealings with an Applicant and the Tribunal.

We would add: Mr Soormally and his advisors will no doubt reflect upon the wisdom of very substantial financial demands in this context: do not such simply divert attention from the significance of racial discrimination? and merely serve to promote cynicism about such?