MR D DASS v TOWER HAMLETS COLLEGE [1999] UKEAT 127_98_1907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 127_98_1907Case No Appeal No. EAT/127/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D DASSAPPELLANTTOWER HAMLETS COLLEGERESPONDENT
Before
Mr Justice Charles Miss D Whittingham Mr N D WillisDate 19 July 1999
[1]APPEARANCES For the Appellant MR T KEMPSTER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondents MR C J ROSEWEIR (Representative) Human Resource Management Consultant 206 Bridle Road Shirley Croydon CRO 8LH MR JUSTICE CHARLES : This appeal first came before us on 22 January 1999 for a preliminary hearing when Mr Dass, the Appellant, had the benefit of representation under the ELAAS Scheme. The Respondent to the appeal is Tower Hamlets College. On the first occasion I wrote a note following the hearing and directed that it be sent to the parties. That note is dated 22 January 1999 and is in the following terms:
"Mr Dass was represented by Peter Wallington who undertook to lodge a re-amended notice of appeal setting out four grounds of appeal as outlined to us within 21 days. In paragraph 18.1 of his affidavit sworn on 15th December 1998 (page 21 of the bundle) Mr Dass says that Ms Zera stated categorically that it was her intention to appoint a Sylheti for that post (i.e. the post of Assistant Principal etc.). The extended reasons make no reference to this evidence alleged by Mr Dass to have been given by Ms Zera, the Principal of Tower Hamlets College, during the hearing. In particular it is not referred to in paragraph 10 and on behalf of Mr Dass our attention was particularly drawn to paragraph 10(k) where it is said: 'Nor did the Tribunal find any evidence that he was treated less favourably either because he was from the Khulna region of Bangladesh not Sylhet, and that he was a Hindu not a Muslim. The Applicant's own witness, Mr Gani also rejected this suggestion'. We concluded that if, and we repeat if , this evidence was given by Ms Zera the second to fourth grounds of appeal outlined by Mr Wallington would be reasonably arguable. These grounds related to (a) Case (No 2) and thus in particular paragraph 10 of the Extended Reasons, (b) victimisation in respect of Case (No 3) and in particular the finding in paragraph 11(e), and (c) what was described as an over-arching point based on Wade v West Yorkshire Police . With more hesitation we decided on the same hypothesis that the first ground which related to Case (No 1) concerning part time work and was directed in particular to the finding in the first sentence of paragraph 9(1) of the Extended Reasons would also be reasonably arguable. We therefore directed that if Mr Wallington filed a re-amended notice of appeal signed by him setting out the grounds he outlined to us in 21 days this appeal should proceed and that Notes of Ms Zera's evidence should be obtained. We made it clear that if it is not established that Ms Zera gave such evidence it could not be properly represented to a Tribunal hearing this matter in the future on any issue, including costs, that we had concluded that the appeal was reasonably arguable."
[2]There followed a request for a review by Tower Hamlets and the matter returned for re-hearing on 17 June 1999. Before that date the first information coming from the Employment Tribunal was that the papers in this case had been lost. However, very shortly before 17 June this Tribunal was informed that the papers had been found and that they were being sent. The position was therefore reached on 17 June that the parties and this Tribunal knew the papers existed but none of us had them. That resulted in an adjournment.[3]Now we do have the Chairman's Notes of Evidence. Those Notes of Evidence do not disclose that Ms Zera gave the evidence that Mr Dass asserted in his original affidavit that she did give and which is referred to in my note of last January. Mr Dass still asserts that she did give that evidence and in a skeleton argument he put in (and which, as we understand it, he prepared himself) he casts doubt on the accuracy and authenticity of the Chairman's Notes.[4]Today, Mr Dass has again had the benefit of representation through the ELAAS Scheme and we say at once that firstly, we are of the view that he was very prudent to accept that help and secondly we are very grateful for it and, in our judgment, he too should be very grateful for it.[5]Counsel appearing under the ELAAS Scheme did not join Mr Dass' attack on the authenticity of the Chairman's Notes. In taking that stance in our judgment he was entirely correct. We do not accept that there is any reasonably arguable point that the Chairman's Notes are not authentic. Of course we accept that they do not contain every word that was said in evidence and, indeed, they will inevitably contain paraphrases. In respect of the part of Mr Dass' allegations concerning their accuracy we accept that the Chairman's Notes do not purport to set out every word that was said in evidence and therefore agree that the fact that the evidence Mr Dass says Ms Zera gave is not mentioned in those Notes, is not conclusive.[6]We were also referred in this respect to paragraphs 13 to 15 of Mr Dass' skeleton argument, where he deals with his recollection as to what Ms Zera said. We comment that those paragraphs are in far less stark terms than his earlier affidavit as to the assertion concerning selection for the relevant post.[7]The position today is therefore, as we see it, that as appears from my note an essential element of our reasoning in allowing this appeal to proceed was the assertion, and thus the possibility, that Ms Zera gave the evidence that Mr Dass alleged she gave in his original affidavit but now we know that that evidence is not recorded in the Chairman's Notes and the following factors are also relevant:(a) Mr Dass does not assert precisely when in Ms Zera's evidence she made the assertion he alleges and in this context we refer again to paragraphs 13 to 15 of his skeleton which puts the evidence in more general terms than his affidavit; and(b) Mr Dass was represented by Counsel before the Employment Tribunal and we have nothing from her confirming her recollection, either by reference to her notes, her skeleton argument or her memory. We have seen her skeleton argument and this does not contain any reference to the evidence that Mr Dass says Ms Zera gave. We regard that as significant because obviously the evidence would have been important. Given the lack of reference in the Chairman's Notes and points (a) and (b), in our judgment, it is inherently unlikely that Ms Zera gave the evidence that Mr Dass asserts she gave. We have reached that view for the following reasons: (i) that evidence is obviously important to the matters in issue, and in particular to the case dealt with in paragraph 10 of the Extended Reasons, and (ii) it is therefore likely that that evidence would have been recorded by the Chairman in his Notes or by Counsel in her submissions, or that Mr Dass would have known when it was given. The improbability or unlikelihood that Ms Zera gave such evidence is in fact compounded or confirmed by the fact recorded in the Extended Reasons that Mr Dass' own witness rejected the suggestion that he was treated less favourably because he came from the Khulna region of Bangladesh and not Sylhet (see paragraph 10(k) of the Extended Reasons).[8]We mention that Ms Zera has put in an affidavit asserting that she did not give the relevant evidence. So far as the competing assertions in affidavits of Mr Dass and Ms Zera are concerned we proceed on the basis that they are both honestly doing the best they can to recount their recollection to us. It is no part of our reasoning to prefer the written evidence of one or the other.[9]However, the totality of the circumstances we have listed seems to us to point inevitably to the conclusion that it is not reasonably arguable that Mr Dass could successfully establish before this Tribunal, on appeal, that Ms Zera gave the evidence referred to in my note dated 22 January 1999.[10]It follows, in our judgment, that the condition attached to, or the trigger for, our earlier decision that this appeal raised points of law that were reasonably arguable is no longer satisfied. So far as that condition, or trigger, is concerned it relates more directly to Ground 2, Case 2 in the Notice of Appeal that was prepared subsequently to the last hearing. But as my note also shows it was a trigger to us allowing the other grounds to proceed.[11]We therefore have to consider what we should do now. In our judgment the hearing before us today can be treated either:(i) as a review, pursuant to rule 33. That would be on the basis that the interests of justice require such a review. In our judgment it is clear that the interests of justice do so require such a review of the decision reached at the first preliminary hearing. Part of purpose of preliminary hearings is to avoid unnecessary expense for the Respondents. In the circumstances of this case where an assertion of fact that formed part of this Tribunal's reasoning on a preliminary hearing can no longer be advanced, in our judgment, the interests of justice require a review. The application for a review was not brought within the 14 day period referred to in Rule 33. Again, in our judgment, essentially for the same reasons justice requires that there should be an extension of time, also it is relevant that within that 14 day period the response had not been received from the Employment Tribunal as to what was in the Chairman's Notes, and we could instigate a review ourselves, or(ii) as an application to strike out on the basis that the grounds raise no reasonably arguable points of law, now that the condition, or trigger, relating to Ms Zera's evidence has disappeared, or(iii) as a renewed preliminary hearing. In our judgment our function on each such hearing is essentially the same and is to consider whether in the changed circumstances we remain satisfied that this appeal raises points of law that are reasonably arguable. If we are not so satisfied we should dismiss or strike out the appeal.[12]On the earlier hearing we have already found that a number of the points originally made by Mr Dass do not raise reasonably arguable points of law.[13]We now have to return to consider the points identified by Mr Wallington, who was the Counsel appearing under the ELAAS Scheme on the last occasion, on the basis that in arguing those points Mr Dass cannot rely on, or gain assistance from, the point that the Employment Tribunal in their Extended Reasons left out of account a piece of evidence that was obviously of central importance to one of the cases relating to discrimination, that is the evidence he alleges was given by Ms Zera.[14]In making submissions on behalf of Mr Dass, Mr Kempster accepted that he could no longer rely on that point relating to the evidence (and thus the trigger to our earlier conclusion) and the focus of his submissions, in our judgment correctly, was on what can be described in the Notice of Appeal as grounds 1, 3 and 4, although he did not abandon ground 2. The reason for that approach is that it is in respect of ground 2 that the evidence Mr Dass alleges was given by Ms Zera is of the most direct importance.[15]During the course of his submissions Mr Kempster also drew to our attention that today's newspaper reported that the case of Nagarajan v London Regional Transport [1998] IRLR 73 has been decided by the House of Lords. It appears from the newspaper report that the House of Lords have overruled the Court of Appeal in that case and have decided that the approach to cases of victimisation should be the same as, or similar to, the approach adopted in cases of direct race discrimination so that the approach in King v The Great Britain-China Centre [1992] ICR 516, as confirmed by the case Zafar v Glasgow City Council [1998] ICR 120 is to be applied. Importantly, the decision of the majority of the House of Lords is that to establish a case of victimisation it is no longer necessary for an applicant to show conscious motivation. Unsurprisingly, the Employment Tribunal could not have been aware of this when they reached their decision and we have been told, and accept, and as we would expect because both sides were represented before the Employment Tribunal, that the trilogy of cases referred to in the Notice of Appeal, namely King , Zafar and Nagarajan (in the Court of Appeal) were all referred to by the representatives of the parties before the Employment Tribunal.[16]This recent decision of the House of Lords has the consequence that it is open to Mr Dass through Mr Kempster to submit that a finding of victimisation can now be based on an inference of subconscious motivation. This was not the effect of the cases that were binding on the Employment Tribunal at the time they heard this case. At that time we consider that it was open to the Employment Tribunal to make a finding of conscious motivation based on inference from the primary facts, or the rejection of the Respondents' evidence as to motive or reasons based on their findings on other primary facts. But we accept that a finding of conscious motivation based on inference is less likely than one of subconscious motivation based on inference because the first in effect involves a finding that in giving their explanation for their actions the Respondents were not telling the truth.[17]I turn to deal with the matter by reference to the Notice of Appeal.[18]But at this stage I record that we have concluded that none of the grounds of appeal raise points that are reasonably arguable in law. As an overview the points come down to this, namely that in reaching their conclusions the Employment Tribunal do not demonstrate through their Extended Reasons that they have applied the relevant legal approach and tests.[19]The overview which we put on the case is that if one stands back and applies the approach such as that taken in the cases of Meek v City of Birmingham City District Council [1987] IRLR 250 and Martins v Marks & Spencer Plc [1998] IRLR 326 , to give two examples, it is clear to us what this Employment Tribunal decided and why they did so having heard (we think) four days of evidence and one day of submission, but certainly after a five-day hearing.[20]The nub of that is that in respect of each of the applications the Employment Tribunal decided on the evidence and in full knowledge of the protected acts relied upon by Mr Dass, the inconsistencies in some of the explanations given by the Respondents and the detail of the posts for which Mr Dass was applying, that the reasons why he was not appointed to any of the posts were based on his qualifications for those posts and had nothing to do with his racial origin or the fact that he had made earlier complaints which it was common ground were protected acts for the purposes of victimisation. In our judgment a fair reading of the Extended Reasons shows that in respect of all Mr Dass' claims of both direct racial discrimination and victimisation the Employment Tribunal made findings of fact as to the reasons why Mr Dass was treated as he was by the Respondents which had the result that all his claims failed. Further in this context it is in our judgment important to remember that the reasons for their actions given by the Respondents were considered in the context of the two types of claim and thus in respect of the claims for direct racial discrimination on the basis set out in King and Zafar (which now it seems from the decision of the House of Lords in Nagarajan applies to victimisation claims as well).[21]In reaching this conclusions we have had regard in particular to the following paragraphs of the Extended Reasons.

(k) which is in the following terms:

"Having considered these appointments in detail, the Tribunal concluded that there was no evidence to support the Applicant's contention that these candidates had been preferred because of race discrimination.

(o) is as follows: "

Furthermore, even if the lists had been consulted, it would not have assisted the Applicant in obtaining a position, because he was considered to be insufficiently qualified and not of a high enough standard." (ii) Turning to paragraph 10(c), it is in the following terms:
"The Applicant scored 6 out of 10 for his written presentation and 8 out of 20 for his oral presentation, totalling 14 marks. The bottom four candidates had marks ranging from 10 to 14.

(j) and (k) are in the following terms: "

However, a comparison between the Applicant and the successful candidate did not really assist the Applicant. The Applicant was only rated as joint seventh out of ten candidates by the assessing panel. Therefore even if the successful candidate had not been chosen, it was almost inconceivable that the Applicant would have been appointed. On the information before the Tribunal it was not possible to say that the Applicant was a better candidate than the others who were ahead of him. The Tribunal did not find any evidence to support the contention that the Applicant was marked down unfairly. Nor did the Tribunal find any evidence that he was treated less favourably either because he was from the Khulna region of Bangladesh not Silet, and that he was a Hindu not a Muslim. The Applicant's own witness, Mr Gani, also rejected this suggestion. Of the assessors, only one of the four was a Sileti. The others were of Indian and European origin. There were two Muslims, one Jew and one non-believer on the panel. The Tribunal concluded that the assessors were sufficiently diverse to make it most unlikely that any discrimination would have taken place on the grounds suggested by the Applicant.

(b) it is in the following terms:

"The job description made it clear that the part time tutors were required to teach teenagers or adults with specific learning difficulties, such as dyslexia, hearing or visual impairment. This is a specialist role, requiring training and experience in special educational needs. The Applicant did not have the appropriate training or experience.

(e) is in the following terms: "

The Tribunal rejected the argument that the Respondent had rejected the Applicant in order to victimise him for his earlier two complaints. The Tribunal did not detect any evidence to support the complaint of victimisation. The Tribunal doubted whether those involved in the selection procedure were even aware of his complaints, because of the lack of co-ordination and communication between departments.

(a) to (c) the Employment Tribunal say:

"(a) The Tribunal found no evidence to support the Applicant's complaints of race discrimination and victimisation. (b) The reason for the Applicant's lack of success in his application for part time appointments was that he did not have the qualifications which the managers of the College were looking for, and which successful candidates did have. In some areas he also lacked relevant experience. (c) The Tribunal formed the view that the Applicant had no idea prior to the Tribunal hearing that his managers at the College considered that he was under-qualified and not very good at his job when he was a permanent full time employee. Therefore he found his rejections inexplicable and concluded that they must have been on the ground of race. However, the Tribunal was satisfied that the managers were not motivated by racism. Ms Zera, in particular, was committed to working effectively in a multi-ethnic environment, and was well aware of the importance of avoiding any unjust racial bias."
[22]We now return to the specific grounds helpfully set out in a Notice of Appeal prepared by Mr Wallington, which have been added to in some respects today by Mr Kempster, by focusing on the lack of proper explanation.[23]Ground 1 relates to the facts found in Case 1, as described by the Employment Tribunal, and in the Notice of Appeal this appeal is based on an assertion that the Employment Tribunal failed to apply the principles and approach set out in King v The Great Britain-China Centre [1992] ICR 516 and confirmed in Zafar v Glasgow City Council [1998] ICR 120 . Additionally, today, Mr Kempster correctly points out that this case also involved an allegation of victimisation. He bases that on the description of the case given by the Employment Tribunal.[24]It is right to say that in the reasoning specifically directed to this case, which is in paragraph 9 of the Extended Reasons, no reference is made to the complaint based on victimisation. Equally, in the reasoning no mention is made of the cases of King and Zafar . There is in express terms no specific reasoning connected with the approach set out in those cases. It is these omissions which found the basis of the argument that the Extended Reasons are defective.[25]It is in our judgment unfortunate that these omissions took place, particularly having regard to the fact as we have recorded that submissions were made to the Tribunal based upon these decisions. However, we have concluded that a fair and proper reading of the Extended Reasons (and in this context we have cited particular paragraphs, but they must be read in the context of the Extended Reasons as a whole) show that the Employment Tribunal reached conclusions as to the actual reasons why Mr Dass was not short-listed and interviewed and that those reasons had nothing to do with the racial group to which Mr Dass belongs. They also concluded that he was not treated differently to any other job applicant having regard to his racial background or the racial group to which he belongs. This positive finding in our judgment clearly precludes an inference of direct racial discrimination being made. This is particularly the case when it is remembered that the Employment Tribunal refer expressly to the points or primary facts upon which Mr Dass relies in respect of this ground from which he no doubt sought to argue, or would seek to argue, that an inference should be made. These are set out in paragraphs 2 and 3 of the Notice of Appeal.[26]Turning to the victimisation claim, at the time the matter was before the Employment Tribunal this finding as to the actual reason would have precluded a finding of victimisation because at that stage the law was thought to be that the subjective conscious motive of the employer was relevant. For present purposes we will assume in Mr Dass' favour that it would be possible to argue in this case that the approach adopted by the House of Lords very recently should be applied. If one does that and stands back from the reasoning in respect of the claim of racial discrimination and has regard to the overall conclusion expressed in paragraph 12, it seems to us that there is no reasonably arguable point of law that this Employment Tribunal (or any Employment Tribunal on their findings of primary fact) would have concluded, by way of inference, or otherwise, that the decisions and actions of the Respondents although not affected in any way by direct racial discrimination were ones which were affected by the protected acts relied on let alone that those acts took a significant part in the reasoning of the Respondents.[27]It therefore seems to us that if one reads the Extended Reasons fairly in respect of Case 1 there is no reasonably arguable point of law in respect of both limbs of Mr Dass' case relating to that application, namely his claims of direct racial discrimination and victimisation.[28]Case 2, Ground 2. This relies specifically and directly on the allegation in paragraph 10(f) which we have set out that the Employment Tribunal erred in failing to record, or to take account of, the evidence that Mr Dass alleges Ms Zera gave. One can see that from paragraph 7 of the Notice of Appeal.[29]So this appeal on the basis of that assertion is no longer reasonably arguable. In this case again an allegation of victimisation was raised. Here again, reading the Extended Reasons as a whole and, in particular, the paragraphs we have cited dealing with the marking process and the finding that that was dealt with properly, in our judgment, it is clear that the Employment Tribunal found that the reason Mr Dass was not successful in his application for this job was that he was not properly or suitably qualified for it and by parity of reasoning with the points made in respect of Case 1, in our judgment, it is not reasonably arguable that Mr Dass could establish that the Employment Tribunal erred in law in reaching their conclusions on direct racial discrimination or victimisation in this case. In respect of the victimisation claim our reasoning is the same as in respect of Case 1 because here again victimisation was not expressly mentioned, and if anything the position is clearer in this case because of the marking process.[30]The other aspect of this ground of appeal is in paragraph 9(b) of the Notice of Appeal. In our judgment this falls away because it was only ever an alternative basis for the Employment Tribunal's decision. It cannot succeed if the first part of this ground fails on the basis of the hypothesis upon which the Employment Tribunal proceeded in dealing with this aspect of the case, namely that Sylhetis were a separate ethnic group. The fact that the Employment Tribunal proceeded on that hypothesis is, in our judgment, clear from paragraph 10(m) of the Extended Reasons which begins with the phrase "In any event".[31]We turn now to Case 3, Ground 3. This is dealt with in paragraph 11 of the Extended Reasons. Here the appeal is in respect of the Appellant's complaint of victimisation rather than his complaint in this case of direct racial discrimination. In our judgment, applying the approach referred to in paragraph 26 that is beneficial to Mr Dass, and thus an approach that it would have been open to the Employment Tribunal to infer victimisation based on subconscious motive, in our judgment in this case (and in the other cases) the content of the Extended Reasons make it quite clear that no such inference would have been made by the Employment Tribunal (or any other Employment Tribunal on the primary facts that they found) and we have therefore concluded that no reasonably arguable point of law is raised in respect of this case.[32]Generally, and unsurprising, we comment that this ground (as drafted) was based on Nagarajan as it then was, rather than as it now is. On an approach based on Nagarajan as it then was, it seems to us that absent the ability to say in respect of the trigger condition mentioned in my original note that the Employment Tribunal have left out of account a vital piece of evidence no reasonably arguable point of law is raised because the protected acts are referred to and taken account of.[33]Again, the central point is that the Employment Tribunal have made positive findings in respect of the reasons and motivation of the employers and those positive findings preclude the making of inferences that Mr Dass would now seek to rely on to establish direct racial discrimination and /or victimisation.[34]Ground 4 of the Notice of Appeal is what was described as an over-arching ground based on Wade v West Yorkshire Police and Others . In our judgment this ground raises no reasonably arguable point of law because having regard to the findings made and, in particular, the overall conclusions in paragraph 12, it is plain that the Employment Tribunal do take an overview and conclude on an overview under the heading "Conclusions" that on the facts Mr Dass has failed to establish his cases in respect of all the applications, both in respect of his claims for direct discrimination and victimisation.[35]For those reasons we have concluded that no reasonably arguable point of law is raised on this appeal and therefore it is dismissed.