MR A ALI v GLAXO WELCOME PLC [2002] UKEAT 0081_01_2003

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0081_01_2003

Case No Appeal No. EAT/0081/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A ALIAPPELLANT

GLAXO WELCOME PLCRESPONDENT

Before

His Honour Judge

Date 20 March 2002

[1]APPEARANCES For the Appellant MR BRITTENDEN (of Counsel) Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR For the Respondent MR M WHITCOMBE (of Counsel) GlaxoSmithKline Legal Operations - Corporate Two, New Horizons Court Brentford Middlesex TW8 9EP HIS HONOUR JUDGE J. McMULLEN QC This case is about compensation for race discrimination and Employment Tribunal procedure. It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal, Chairman, Professor Alan Neal, sitting at London (Central) on 4 October 2000, promulgated with Extended Reasons on 22 November 2000. It followed a decision by the same Tribunal on 22 June 1999 (the 'liability hearing') which took place over three days and one further day in chambers. The Applicant was not represented at the liability or the remedy hearing. The Respondent was represented at both hearings and before us by counsel.

[2]The Applicant is self-described as a black African of Nigerian origin. He is a highly qualified professional statistician. He claimed race discrimination and victimisation. The issue before the Tribunal, as it expressly directed itself on three occasions in its liability reasons, was the decision of the Respondent not to short-list the Applicant for a job in June 1998. The Tribunal decided that the Respondent was guilty of race discrimination but not of victimisation.

[3]The claim was based on a newspaper advertisement setting out a person specification for a post. The Respondent short-listed six applicants for the post. All of the applicants were of different ethnic origin from the Applicant. The Tribunal decided that there had been a clear distinction between the advertised selection criteria and those eventually applied by the Respondent. The Tribunal found that some candidates were short-listed for interview even though they did not by any stretch of the imagination satisfy the proclaimed criteria. Nor did the successful candidate. The Tribunal found that Mr Ali appeared to satisfy, or at least went significantly further than the majority of the eventually short-listed candidates towards satisfying, the criteria. He was not short-listed. The person responsible for the recruitment process, Dr Amphlett, was found by the Tribunal to have applied the selection criteria inconsistently in respect of the Applicant. The Tribunal concluded that Dr Amphlett had consciously intended to discriminate against the Applicant on grounds of his race by not short-listing him. Those are powerful findings by the Tribunal, expressed in sixteen pages of Extended Reasons.

[4]Both the Applicant and the Respondent appealed; the Applicant against the dismissal of his claim for victimisation and another matter; the Respondent against the primary finding. At a Preliminary Hearing all grounds of both appeals were dismissed. The remedy hearing, originally foreshadowed by the Employment Tribunal at its liability hearing, then took place in 2000. It decided to award the Applicant £8,000 by way of compensation for injury to feelings together with interest as appropriate. There is no appeal. It also decided to award £3,000 with statutory interest in addition in respect of financial losses.

[5]The Applicant appeals against the finding in respect of the £3,000 on the following grounds, as set out in a skeleton argument and oral submissions today, and as specifically focussed following a judgment by a different division of the Appeal Tribunal under Charles J. on 21 May 2001. The grounds are that the remedy decision did not contain sufficient reasons to indicate to the Applicant why he was awarded the £3,000 in compensation and that the decision disclosed insufficient reasons to indicate whether o r not an error of law had been made.

[6]As recorded by the Tribunal in its liability reasons, a very substantial amount of documentary material was adduced before it. At the remedy hearing further material was adduced. The Tribunal again reminded itself that the issue before it was the failure to short-list the Applicant and this of course is consistent with his Originating Application. In its approach to the findings of fact, the Tribunal made three primary decisions. First, it rejected the Applicant's complaint that the Respondent had been involved in a 'dirty tricks' campaign to affect his reputation. Secondly, even if the Tribunal had been inclined to accept the Applicant's contention, the issue would have been whether such conduct contributed to a disadvantage as a result of the act of discrimination found to have been committed on 9 June 1998. It did not appear to the Tribunal that the Applicant's inability to obtain employment since the commission of the unlawful act was something which flowed from the discrimination by the Respondent. Thirdly, the Tribunal looked at the pattern of job applications made by the Applicant to determine whether or not he had mitigated his loss. The Tribunal found in his favour that he had made reasonable efforts so to mitigate. None of those findings is challenged.

[7]In determining the value of the compensation which it felt it was just and equitable to award the Tribunal directed itself expressly by reference to the Race Relations Act 1976 . It had previously referred to the Employment Tribunal Rules of Procedure (at that time 1993) and the leading authorities. These were set out in summary form by the Tribunal which reported that it had given, in particular, detailed consideration to the guidance developed in Sharifi v Strathclyde Regional Council

[1992] IRLR 259

and other cases. Thus, when it descended upon the task of determining the remedy, apart from the remedy in respect of injury to feeling, it had in front of it further authorities, including Ministry of Defence v Cannock and Ministry of Defence v Wheeler (see below). The Tribunal accepted the Applicant's case as to injury to feeling, which, as we have indicated, is not the subject of appeal. On the other hand, the focus in this case is upon the award of £3,000. The Tribunal said this:

"The Tribunal has not received sufficient evidence upon which to undertake a "percentage chance" approach to the economic consequences suffered by the Applicant on account of the act of discrimination. In particular, it has not been possible to undertake with any degree of precision an exercise of the kind put forward by the Employment Appeal Tribunal in Ministry of Defence v Cannock , [1994] IRLR 509, and as indicated by the Court of Appeal as the approach in Ministry of Defence v Wheeler , [1998] IRLE 23. Consequently, taking a "loss of opportunity" approach, the Tribunal has endeavoured as best it can, to determine what sum of money would place the Applicant in the same position he would have been in but for the unlawful act. The Tribunal has reached the conclusion that compensation in the sum of £3,000 would achieve this end."

It is upon that passage that this appeal is founded.

[8]The Applicant contends that the Tribunal erred in law in that it failed to give a sufficient explanation of its reasons. The Respondent contends that the Tribunal was faced with a lack of evidence which ought to have been adduced by the Applicant in order to prove the loss which he was claiming. The Respondent contends that it is for the Applicant to show his loss. It will be recalled that the passages above refer to authorities in which detailed statistical material was placed before the Appeal Tribunal and the Court of Appeal respectively and that the Applicant, although representing himself, is a highly qualified statistician.

[9]The Tribunal plainly regarded itself as having to consider the competing strands of approach. On the one hand, the detailed arithmetic, statistical approach of a 'percentage chance' and on the other, as they put it, in the absence of sufficient evidence, the more broadly based loss of opportunity approach as advocated by the Appeal Tribunal in Scotland in Sharifi . Lord Coulsfield, in that case, considered that the assessment of proper damages in respect of loss of opportunity or disadvantage in the job market is notoriously difficult to ascertain. A broad and general assessment on a commonsense basis was what was called for – see paragraph 7 of that judgment.

[10]It is true that in the Tribunal's passage we cited Sharifi is not revisited, but given the Tribunal's detailed consideration of that case as reported in its direction on the law, Mr Whitcombe, appearing on behalf of the Respondent today, indicates that the Tribunal had considered the correct authorities; had been offered a choice as between the two approaches; by implication went with the Sharifi approach and did so because of the insufficient evidence adduced by the Applicant. The reasons include the well known phrase in personal injury litigation – 'The Tribunal has endeavoured as best it can to determine damages over a matter which is notoriously difficult to pinpoint'.

[11]We consider that there is some force in Mr Brittenden's complaint, on behalf of his client, that the passages above are not transparent. However, it is difficult to see, given the Tribunal's inadequate evidence before it, how better it could have assessed this element of damages. It is clear to us, having been referred to those very authorities upon which the Tribunal made its decision, that it was operating on the basis of what was a fair approach to the assessment of damages in a loss of opportunity case. One cannot say for certain what relationship there is between the £3,000 awarded and the £29,000 job the Applicant failed to be short-listed for. He was an Applicant for a position for which ultimately six were short-listed. It may be too crude and simplistic to take a simple fraction so that he has lost one sixth of the value of the job. Nevertheless, we consider that the Tribunal had in mind the relationship between the job forgone, possibly, but not certainly, as a result of his failure to be short-listed, and the amount of money which it decided he had lost for that failure to put him on a short-list four years ago. It is not a figure which is so surprising as to be categorised as perverse.

[12]Given the notoriously difficult territory over which this assessment of damages was made, we accept Mr Whitcombe's submission that the onus was upon the Applicant to produce some figures and so to inform the Tribunal as to its approach in its assessment in this element of the compensation. The Applicant makes clear in his affidavit directed to a ground of appeal which has been dismissed, that the Tribunal was concerned to obtain precise details of the value of the job lost. It therefore must, in our judgment, have had that in mind when assessing the figure of £3,000 plus interest for the financial loss flowing from the act of discrimination found against the Respondent.

[13]We are grateful both to Mr Whitcombe. and to Mr Brittenden for the careful skeleton arguments they have produced today and the oral justification for them. The appeal is dismissed.

[14]Leave to appeal is sought by Mr Brittenden, as he puts it, in order to preserve his client's position. The basis is that the interests of justice require an examination by the Court of Appeal of the relationship between Sharifi and Meek . It is submitted that the Applicant who was unrepresented should not be placed in difficulty by his failure to put forward proper information to justify his loss of opportunity.

[15]We consider that the figure challenged has only today been crystallised so that it is now suggested that the figure which would have been put forward is £5,000. We do not consider this raises a serious point of law to be argued before the Court of Appeal. The approach in Sharifi in discrimination cases has been approved in a number of cases and the broad approach accepted. We have pointed out that Mr Ali is a statistician and if we have had difficulty, at least during some of the argument today, in distinguishing the different approaches as a matter of arithmetic, such difficulty ought not to have occurred to a person with his professional qualifications. We therefore reject the application for leave to appeal.