MR P K W DE SILVA v LONDON BOROUGH OF CROYDON [2000] UKEAT 1160_99_1506

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1160_99_1506

Case No Appeal No. EAT/1160/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR P K W DE SILVAAPPELLANT

LONDON BOROUGH OF CROYDONRESPONDENT

Before

Mr Recorder Langstaff

Date 15 June 2000

[1]APPEARANCES For the Appellant MR S KUTTAPAN Representative MR RECORDER LANGSTAFF QC: This is a preliminary hearing in an appeal, which Mr De Silva seeks to bring against his employers, the London Borough of Croydon. He wishes to appeal against a decision of the Croydon Employment Tribunal, following a hearing over some 5 days in February and 3 in March 1999, the decision in which was promulgated as late as 9 August 1999 following that hearing. A review of this decision was refused on 1 October 1999.

[2]The Facts I have taken the background facts from the Employment Tribunal's extended reasons. They are these: - a) In November 1973 Mr De Silva joined the London Borough of Croydon as an Assistant Civil Engineer. b) In 1987 he applied for the post of Senior Assistant Engineer but was unsuccessful; a Mr Wickens, who we understand to be white, succeeded. c) In 1991, Mr Wickens was appointed Acting Assistant Director. Mr De Silva raised a grievance about the nature of that appointment. However, also in 1991 Mr De Silva was promoted to become Group Engineer (Highways Improvements). d) In 1992, Mr De Silva complained that when the post of Principal Civil Engineer was advertised, the interview system was unfair to him. e) He publicly criticised the equal opportunities policies of Croydon on 8 October 1992 at a forum, which was convened, as we understand it, to consider some of the equal opportunities aspects of work for the London Borough of Croydon. f) In 1993 Mr De Silva complained about the appointment of the Chief Executive, a Mr Wechsler. He accused the London Borough of Croydon of a breach of the proper and appropriate procedures.

[3]However his claim which was brought under the Race Relations Act 1976, complaining of unfair treatment with regard to promotion, did not directly arise out of any of these events. It was a complaint of direct race discrimination and victimisation because his employers failed to short list him for the post which had become vacant in November 1997 of Assistant Director (Environmental Management). As to direct discrimination of course the principles are well known. Under s.1 of the 1976 in essence 2 matters have to be proved, on a balance of probabilities, by a claimant. First that there has been less favourable treatment of the claimant than that afforded to other persons. Secondly that, that less favourable treatment has been because of his race. 73. "Mr De Silva was not shortlisted for interview, whereas certain others were. However, we were not satisfied that the failure to shortlist him was on the grounds of race. We accepted the Respondent's reasons for the failure to shortlist, and were satisfied that where the Respondent's shortlisters had failed to award Mr De Silva an M, this was in each case a genuine and justified score which was consistent with their scores of other candidates, regardless of their race." We pause there. That was a finding that they were as a Tribunal entitled to come to on the evidence before them. They might equally have come to other conclusions. It is - and this is important - a finding that there was no less favourable treatment. Of the 2 requirements to succeed in a claim under s.1, this Employment Tribunal thus concluded that there was neither less favourable treatment nor was there any racial discrimination or any racial reason for any such treatment as there might have been. First of all, is there evidence of actual bias? If not, has the matter been conducted in such a way that there might be a reasonable suspicion of bias, even though none might be proved? We say at once, there is no proof of actual bias. So far as reasonable suspicion is concerned, the test is not what was actually in the mind of one of the parties, but what the reasonable observer might have concluded. We cannot think, particularly in the light of the recent Locabail [2000] IAU ER 65 decision in the Court of Appeal, that the reasonable observer would have been justified in thinking that, the point having been raised with Mr De Silva and him having indicated that he was content for the claim to proceed, there was any reasonable suspicion of bias that an objective bystander would thereafter have entertained.