THE LONDON BOROUGH OF HARROW v MR UTUM MUNGUR [1999] UKEAT 978_99_1410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 978_99_1410Case No Appeal No. EAT/978/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
THE LONDON BOROUGH OF HARROWAPPELLANTMR UTUM MUNGURRESPONDENT
Before
His Honour Judge J AltmanLord Gladwin of CleeDate 14 October 1999
[1]APPEARANCES For the Appellants MR R GREENING (of Counsel) Instructed by: Mr H Peart Principal Solicitor Harrow Legal Services London Borough of Harrow Civic Centre Station Road Harrow HA1 2UH JUDGE ALTMAN : This is an appeal by the employer from a decision of the Employment Tribunal sitting at London (North) on 11th, 12th, 13th and 14th May 1999. It comes before us by way of preliminary hearing to determine whether there is an arguable point of law to justify a full hearing before the Employment Appeal Tribunal. The essence of the appeal can perhaps best be expressed by starting with a quotation from the famous judgment of Neill LJ in King v Great Britain China Centre [1992] ICR 516 at 529A:
"If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."
[2]The point of law that arises, its seems to us, on the appeal to which I will refer in a little more detail in a moment, is founded on the proposition that this is guidance which is, in effect, permissive. Without that proposition there is the risk that the argument may be advanced that in the absence of a satisfactory explanation any finding that there was racial discrimination would be speculative. This judgment deals with that risk. But the argument arises in this case as to whether or not that is to be distinguished from a process by which an Employment Tribunal finds racial grounds because of the absence of a satisfactory explanation. What is complained of in this case is a mechanistic process which says, in effect, "there was no satisfactory explanation, therefore there was racial discrimination." Mr Greening argues that the proper application of the guidance in the King case still requires the Employment Tribunal to look at all the facts of the case in considering whether an inference should be drawn, and that this is to be done in the individual case not as a general process.[3]It seems to us that that does raise an arguable point of law.[4]Secondly, there are other matters raised in the Notice of Appeal. Mr Greening suggests that in a number of respects the Employment Tribunal, even if their decision is to be read as dealing with the facts of the case, made findings of fact which were inconsistent or inappropriate for their conclusion.[5]Thirdly, it is said, that even if the tribunal's decision is not to be read as making a mechanistic link between absence of explanation and racial discrimination, it must follow, Mr Greening says, that the absence of any reasons, apart from reference to the lack of explanation, leads to the conclusion that the tribunal failed to provide an adequate account of its reasons for inferring racial discrimination.[6]Those three matters, therefore, form the basis of the appeal on points of law which we find merit full argument. They are directed really to three aspects of the appellants' conduct as employers of the respondent.[7]The first relates to the non-appointment of the respondent as Assistant Manager at Bedford House on 13th March 1998. Paragraph 52 of the Employment Tribunal's decision sets out the matters which they took into account and they include in their findings the appointment of white candidates in earlier applications. As to the March 1998 appointment the respondent, two Asian candidates and the successful candidate were considered. The successful candidate is Irish. The Employment Tribunal found a breach of procedure in the interview panel constitution and they also considered the relevant experience of the successful candidate. They found no "concrete" evidence that her qualifications fitted the criteria. There was a body of evidence which arguably showed that she did fit the criteria and, it seems to us, arguable that the Employment Tribunal did not evaluate this, save to conclude, that it was not "concrete". Their conclusion at the end of paragraph 52 and the beginning of paragraph 53 is as follows:
"(1) We draw an inference from the evidence that the Respondent did not ensure that Ms Munnelly met the minimum criteria for the vacancy and because no explanation has been provided we draw an inference that Mr Mungur was less favourably treated on the grounds of his race. 53 It is therefore the unanimous decision of the Tribunal that Mr Mungur was not appointed on 13 March 1998 to the post of Assistant Manager because of his race and his complaint of racial discrimination in relation to this issue succeeds."
For the reasons that I have outlined, we are satisfied that there are arguable grounds of appeal as set out in the Notice of Appeal.[8]The second matter that the Employment Tribunal found as a basis for their conclusions related to the delays which occurred in dealing with the respondent's grievance. In paragraph 58 of their decision the Employment Tribunal set out the matters which they took into account in this connection. They found that there was no reasonable explanation for the delay. Their conclusion was:
"(j) The Tribunal took into account the explanations of the Respondent. They did not find the explanations as to why there was a delay from 7 August onwards satisfactory and indeed from 10 September onwards, there could be no excuse for failing to provide the outcome of the grievance hearing, that being when the balance of the information on this aspect was available. 59 The Tribunal draws an inference from the evidence that the reasons for the delay in dealing with Mr Mungur's grievance were because of his race. It is therefore the unanimous decision of the Tribunal that the Respondent racially discriminated against Mr Mungur in dealing with the delays in dealing with his grievance."
[9]In relation to the aspect of delay, we are satisfied that there are arguable grounds of appeal as set out in the Notice of Appeal.[10]The third matter of complaint is that the failure to appoint Mr Mungur to the post of Assistant Manager at Bedford House in accordance with the recommendation of Mr Alam was an act of racial discrimination.

(a) the recommendation of Mr Alam was quoted as follows:

"Perhaps the management would like to consider identifying and offering Mr Mungur an opportunity to work in a suitable temporary position with similar duties and responsibilities."
The Employment Tribunal then set out the matters which they took into account and they concluded at paragraphs 62 and 63:
"62 The Tribunal was not satisfied with the explanation provided for the failure to implement the recommendation of Mr Alam. We therefore drew an inference from that failure that the reason for failing to implement the recommendation was because of Mr Mungur's race. 63. It is therefore the unanimous decision of the Tribunal that the Respondent racially discriminated against Mr Mungur by failing to implement the recommendation of Mr Alam."
[11]In dealing with the grounds of appeal the three areas to which I referred in general at the outset of this judgment are relied on in the Notice of Appeal. Also relied upon is the argument that first, the evidence showed that the person who was alleged to have not made the appointment did not have it in his power to make the appointment and secondly, that the appointment would have offended the employer's Code of Practice, their Equal Opportunities Policy and the law. Reference is also made to the argument that the Employment Tribunal failed to consider the impracticability of that appointment in view of the respondent's absence from work due to sickness and subsequent suspension.[12]We found that the grounds of appeal as drawn raise points meriting argument in full before the Employment Appeal Tribunal.[13]It is very rare that it is necessary to request a Chairman to provide Notes of Evidence. It is recognised that that is a very burdensome task which cuts across the already heavy workload of Employment Tribunal Chairmen. However, we are satisfied in this case that it would greatly facilitate the hearing of this appeal if some Notes of the Evidence could be provided. We are assured by Mr Greening that they cover a fairly modest part of the very substantial hearing that took place before the Employment Tribunal. Accordingly, we have determined to request that the Chairman provide her Notes of Evidence as set out in the skeleton argument that we have received in this case and which I repeat as follows and we would ask that when the request is notified to the Chairman a copy of the grounds of appeal be included in case such has not been otherwise delivered.[14]The first aspect relates to the argument set out in Ground (1)(i), at b, d and e. It was summarised, helpfully, as relating to the issue as to whether or not Ms Munnelly met the criterion of 'Two years' work experience of working with people with a range of learning disabilities'. The Notes of Evidence that are requested are:
"a. Mr Mungur's own evidence (in cross-examination) dealing with the same post being readvertised in September 1998 and the whole of October 1998 interview/appointment process; b. Mr Lambrick's and Miss Bozier's evidence about their consideration of and conclusion that Ms Munnelly met the criteria in March 1998."
[15]The second area of Notes of Evidence that are requested relate to Ground (1)(iii) at e of the Grounds of Appeal concerning the issue about the alleged refusal or failure of Mr Fisher, a personnel manager, to appoint Mr Mungur to the Assistant Manager's post at Bedford House, without application or interview, when it was readvertised in September 1998. The Notes requested are:
"a. Mr Mungur's own evidence (in cross-examination) dealing with his complaint about Mr Fisher's role in the implementation of Mr Alam's recommendation; b. Mr Alam's evidence (in cross-examination) about his recommendation and its implementation and Mr Fisher's role."
[16]We direct that this matter be listed for appeal in Category C, for one day. We direct that skeleton arguments should be submitted not less than 14 days before the hearing.