GLAXO WELLCOME PLC v MR A ALI [2000] UKEAT 930_99_0304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 930_99_0304Case No Appeal No. EAT/930/99 + EAT/931/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
GLAXO WELLCOME PLCAPPELLANTMR A ALIRESPONDENT
Before
His Honour Judge CollinsDate 3 April 2000
[1]APPEARANCES For the Appellant (EAT/930/99). MR J WIGGINS Solicitor Tottenham Legal Advice Centre 745-758 High Street London N17 0AL. For the Appellant (EAT/931/99). MR N BOOTH (of Counsel) Instructed by: Ms J Hird Solicitor Group Legal Services Glaxo Wellcome House Berkeley Avenue, Greenford Middlesex UB6 0NN. JUDGE COLLINS: These are the preliminary hearings of two appeals arising out of the same decision of an Employment Tribunal sitting at London (North) whose extended reasons were promulgated on 22 June 1999 after a hearing which had taken place on 21-22 January, 30 March and 30 April. By their decision the tribunal held that the respondents Glaxo Wellcome Plc had discriminated against Mr Ali the applicant on racial grounds in relation to his application for a job. They also decided that Glaxo had not victimised him on racial grounds under S.2 Race Relations Act 1976 and adjourned the remedies hearing in relation to the finding of racial discrimination.[2]By his appeal, Mr Ali raises three points: The first is that one of the lay members of the tribunal had announced at the commencement of the hearing a connection with Glaxo. He argues that the way in which that was dealt with vitiated the procedure before the tribunal and that his case of victimisation should be reheard for that reason. He appears to be content with the finding of discrimination in his favour. Second, he argues that Glaxo's case that the relevant officers were unaware of a previous complaint of racial discrimination that he had made was so implausible that it was perverse of the tribunal to accept it. His third attack on the decision of the tribunal relates to their failure to insist on the disclosure of certain documents by Glaxo.[3]The appeal of Glaxo is an attack on the way in which the tribunal supported its reasons. While the conclusions of the tribunal could not be more clearly and graphically expressed, Mr Booth on behalf of Glaxo argues that the reasons should have been much more closely founded on an analysis of the facts which provided the grounds for those reasons and that a failure to do so means that the decision that the applicant was discriminated against on racial grounds is one which cannot be supported and should be remitted for hearing behalf a fresh tribunal.[4]The basic facts are that the applicant is now 55 years old. He is a black African who points out that he is Ethiopian and not Nigerian as the tribunal mentioned. I ought also to mention that his principal antagonist at the hearing was the person at Glaxo who was responsible for the job interviews. She is referred to throughout the tribunal's reasons as Dr. Amphlett although Mr Booth on behalf of Glaxo told us today that she does not in fact hold a doctorate and should properly be referred to as Miss Amphlett.[5]Mr Ali is a qualified mathematician and statistician and enjoyed a fixed term contract with Glaxo which had ended on 21 November 1995. In relation to the non-renewal of that contract he had made a complaint of racial discrimination. The extent to which that was investigated is not made clear in the judgment of the tribunal but an investigation appears to have taken place with no successful results so far as Mr Ali is concerned. In early 1996 he was rejected for a job as a clinical statistician and in the spring of 1998 he approached Glaxo to see whether or not there was any work available.[6]In 1998 a post became available as a senior statistician at Glaxo's premises at Stevenage and was advertised under the reference JW/O23. It was advertised in two stages and the short listing and interviewing procedure was also carried out in two stages. Mr Ali responded to the June 1998 advert and by the time his application was received which was about 9 June, the first stage of interviewing had already been completed. Between about 9 and 17 June his application was considered and by a letter dated 8 July he was informed that he was not being shortlisted. Miss Amphlett took that decision in consultation with Mr Borella. Six people were shortlisted of whom five turned up for interview, three white British, one Asian British, one Indian Asian, and one Chinese Asian. We make no comment as to whether it is correct, proper or desirable for these particular racial categories to be adopted but mention them because they are the ones mentioned by the tribunal and presumably used by Glaxo..[7]Now it was Mr Ali's case that the failure to shortlist him was on racial grounds and because he had previously made a complaint which amounted to a protected act for the purpose of S.2 Race Relations Act 1976. By way of general observation, it is to be remarked that the tribunal expressed themselves in unusually strong terms about the inadequacies of the management of this large organisation but as they pointed out, the defects and deficiencies in the personnel and human resources departments and their failure to give adequate training and support to persons in Miss Amphlett's position in relation to the selection of staff, does not mean that any less favourable treatment of this applicant was on racial grounds.[8]The tribunal made a number of detailed findings of fact and concluded that Mr Ali was treated less favourably than the six people who were shortlisted. In the broadest sense, he was treated less favourably because he was not shortlisted. The question for the tribunal was whether that less favourable treatment was on racial grounds. And they had in mind the decision of the Court of Appeal in King v Great Britain China Centre [1991] IRLR 513 which had been approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36 and asked themselves and answered the relevant questions. In paragraph 17 they held that Mr Ali had been subjected to less favourable treatment because he was not shortlisted. In paragraph 18 they decided there was a difference of race between Mr Ali and the shortlisted group. In paragraph 19 they held that the less favourable treatment was afforded to him in relevant circumstances for the purposes of the Act. And in those circumstances they correctly looked to Glaxo for an explanation as to why the applicant was treated less favourably and in so doing they concentrated, obviously enough, on the explanations given in evidence by the person who was responsible for making the decision, Miss Amphlett.[9]They had summarised her reasons in paragraph 16 (24) of their decision. Miss Amphlett told the tribunal that the shortlisting exercise had been carried out on the basis of candidates CV's and letters of application. She gave her reasons for not shortlisting the applicant in paragraphs 12 to14 of her prepared statement of evidence. In particular, her view of the applicant included that:
"Neither his CV or covering letter were directed towards my vacancy; neither addressed the requirements set out in the advertisements, that his CV showed a lack of attention to detail and that the general lack of clarity and conciseness in his CV made me feel that he did not have the skills needed for writing clear, concise reports of statistical analysis."
[10]Those would have been adequate reasons for not shortlisting Mr Ali if the tribunal had accepted them as being true. In the event it turns out that the tribunal formed a highly unfavourable view of Miss Amphlett as a witness and in paragraph 27 say:
"At first sight the observations made by Dr Amphlett in her prepared statement appear to the tribunal to be capable of distinguishing the applicant from other suitable candidates. And they continued: - "
When she was pressed in cross-examination to explain more precisely what she meant by those observations, the Tribunal became increasingly unimpressed by her explanations."[11]I shall not read out the rest of the relevant paragraphs which are at paragraphs 28 to 32 inclusive but it is apparent from the tribunal's reasons that they simply did not believe Miss Amphlett when she said that she relied on the matters set out in her statement as justification for not short-listing Mr Ali. They concluded that there was a conscious intention on her part to discriminate against him and having heard her explanations they either formed a positive view that she was consciously and deliberately motivated by racial grounds, alternatively it is to be understood that they drew that inference in the absence of a satisfactory explanation. That is the essence of the case in relation to racial discrimination.[12]So far as victimisation is concerned, notwithstanding the fact that they had formed such an unfavourable view of Miss Amphlett as a witness, they believed her when she said that at the time of the short-listing process she did not have in mind the possibility of Mr Ali having made a previous complaint of racial discrimination, although she was subsequently given information which enabled her to make the link between Mr Ali and the fact that she was aware that somebody had made a racial discrimination complaint previously. In view of the extremely unfavourable impression that they had formed of Miss Amphlett as a witness, the fact that they believed her on that point is a powerful conclusion by the tribunal.[13]Against that background we turn to the matters in each appeal. The questions of the member's position was considered in considerable detail by the tribunal in paragraphs 3 to10 of its decision. "The Member, Mrs Ihnatowicz declared that she, on one occasion in the course of professional dealings, had been in telephone contact with a Mr Smith, of Glaxo Wellcome, the Respondent. That contact was said to have been in the context of an application by her for an employed post with Glaxo Wellcome, an application which eventually did not succeed."[14]She declared this 'interest' because at some point it was thought that Mr Smith would be called as a witness and that she might perhaps have a difficulty if he were. In the event Mr Smith was not called as a witness and we do not regard the fact that she applied for a job with Glaxo which was unsuccessful on a date which was not identified as being sufficient grounds for her to excuse herself from taking part in the decision. If anyone had a right to object to her position it would have been Glaxo but Mr Booth, who represented Glaxo at the hearing, was content for her to proceed.[15]Mr Ali not being a lawyer was in a more vulnerable position in relation to these matters. Mr Wiggins on his behalf has drawn our attention to the helpful guidance given by Morison J. in the case of Wansbrough's Willey Hargrave v Ms C. Chaffin EAT 65/98 as to how a tribunal might approach such questions. It appears as though Mr Ali agreed that the matter should proceed on the first day of the hearing, thought better of it overnight and on the second day indicated that he was concerned about it and did not want the matter to proceed with the tribunal as constituted. We have been told today and Mr Ali has mentioned in his documentation, that he was concerned that the member might be in the same position as Mr Ali himself and wish to apply for further jobs with Glaxo and there might be a risk, or a perception of risk that she would make a decision in favour of Glaxo so as to smooth her subsequent job application.[16]We regard that as so speculative that it ought not to form any part of the decision making process. There was nothing in the position of that member which gave rise for either any clear case of bias or perception of bias against Mr Ali. We repeat that the only party that would have any conceivable grounds for objection would have been Glaxo. We cannot help adding the observation that notwithstanding Mr Ali's concern about that member he achieved the most resounding and emphatic findings of fact in his favour by unanimous decision of the tribunal.[17]So far as Mr Ali's claim that the decision of the tribunal was perverse is concerned, the asserted implausibility of Miss Amphlett's evidence as to whether she was aware of his previous complaint of racial discrimination must have been hotly in issue at the tribunal. The tribunal was disposed to be highly sceptical about any of the evidence which Miss Amphlett gave. Notwithstanding, they accepted her evidence on this point. Implausible or not the tribunal were entitled to come to the decision they did about her state of mind at the time. There is no basis on which we are entitled to go behind their finding of fact.[18]The questions relating to disclosure have been effectively addressed during the course of the argument before us. The three documents which Mr Ali was particularly concerned about were: any notes taken in relation to the short-listing. notes taken in relation to the interviewing. the original job requisition.[19]The tribunal appears to have been satisfied on the evidence at the hearing that there were no short-listing notes. They appear to have accepted that the interviewing notes should not be produced because as the applicant was not interviewed, they were not of relevance. A copy of the requisition form was before the tribunal, though not the original. The significance of that form was a suggestion that Dr Ebbutt might have signed it. Dr Ebbutt was a person who undoubtedly knew about Mr Ali's previous complaint of racial discrimination. The hearing was bedevilled, as the tribunal pointed out, by a confusion between Mr Ali's application for post JW/O23 and Dr Ebbutt considering him for a different post. In the event the copy appears to have been accepted by the tribunal. We derive all information about the documents from what Mr Booth has told us occurred at the hearing. Mr Wiggins after conferring with Mr Ali has not demurred to those explanations. So far as Mr Ali's appeal is concerned we find no reasonably arguable points of law which justify his case proceeding to a full hearing and we dismiss it.[20]I now turn to consider the appeal of Glaxo Wellcome. As we have stated the tribunal asked itself the questions which the law requires should be asked and gave very clear answers to those questions. The criticisms which Mr Booth makes may be illuminated by looking first at paragraph 28 of the tribunal's reasons which contain part of a bundle of paragraphs which contain their essential conclusions:- . "To put it at its kindest, the Tribunal formed the view that, despite various protestations to the contrary, Dr. Amphlett was not consistent or even-handed in applying the criteria in the original "person profile" to the six candidates who were eventually short listed for interview and to the Applicant."[21]The criticism made of that sentence is that the tribunal does not set out what the criteria were and does not set out in a list or tabular or other form the respects in which there was a lack of consistency or lack of even-handedness. We hope that we do no disrespect to Mr Booth's argument when we say that criticisms of that kind are laid in relation to each of the principal findings in paragraphs 27 to 32 of the judgment. The essential characteristics to be looked for in a tribunal's judgment are to be found in the well-known decision in Meek v City of Birmingham Council 1987 IRLR 250 . We intend to put no gloss whatsoever upon the words of Bingham LJ in that case. But it has to be remembered that even in a case like this, which is an important one for the parties and carries important implications for Glaxo's management, the tribunal is not expected to deliver a judgment which is capable of being analysed and marked like an examination question. It is intended to be a practical document which will set out the principal findings of the tribunal and its conclusions by reference to correctly stated principles of law, so that the parties will be able to understand clearly what the reasons are which led the tribunal to the decision to which it came.[22]The facts found by the tribunal are summarised in great detail in 32 subparagraphs of paragraph 16 of their reasons; they go through the whole history of the recruitment and short-listing exercise, explaining why they thought that Miss Amphlett was put in an impossible position by management, the deficiencies in her own approach which resulted and the inconsistencies and shifting of ground which they found. In our judgment the heart of this case was whether or not the tribunal accepted the oral evidence of Miss Amphlett as to the reasons why she distinguished between Mr Ali and the six candidates who were eventually short-listed. She gave explanations; the tribunal summarised those explanations and made it clear that they did not accept her evidence. They found her an unreliable and unacceptable witness and it seems to us that that essential summary shows that the findings of the tribunal and the reasons for their findings are abundantly clear.[23]Although we of course accept that it is possible to mount the kind of argument that Mr Booth has and show that the tribunal could if it had chosen to do so, enlarge on each of its reasons by appending to it a detailed analysis of each of the relevant pieces of evidence, in our judgment it was not incumbent on the tribunal to do so, since their reasons were so plain on the central issue of credibility. For those reasons, we think that there is no reasonably arguable point of law on Glaxo's appeal either and we shall dismiss it.[24]PERMISSION TO APPEAL[25]In accordance with the Court of Appeal practice direction, we have asked the parties whether they wish to apply for permission to appeal. Both have asked in order to protect their position. So far as Glaxo's appeal is concerned we have made it clear that the decision was really on a question of fact and we judge the tribunals reasons to be adequate. In Mr Ali's appeal we have taken the view that there is nothing in the bias point and the other matters are matters of fact also on which there is no reasonably arguable point. For those reasons, in both cases, we think there is no reasonably arguable case for the Court of Appeal and we refuse permission to appeal.