EAT/292/01 MR T O AFOLABI v LONDON BOROUGH OF SOUTHWARK [2002] UKEAT 1024_00_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1024_00_0803Case No Appeal No. EAT/1024/00 EAT/292/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/292/01 MR T O AFOLABIAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENTEAT/1024/00 LONDON BOROUGH OF SOUTHWARKAPPELLANTMR T O AFOLABIRESPONDENT
Before
His Honour Judge J McMullenDate 8 March 2002
[1]APPEARANCES For the Appellant MR STEPHEN FLETCHER (of Counsel) Instructed by: London Borough of Southwark Head of Legal (Contract) Services 30-32 Peckham Road London SE5 8UB For the Respondent THE RESPONDENT IN PERSON JUDGE J McMULLEN QC These are two appeals arising out of Decisions with Extended Reasons made by the London South Employment Tribunal in a Decision on liability, promulgated on 4 July 2000, and on remedies promulgated on 9 January 2001. The Tribunal was chaired by Mr I MacInnes.[2]The appeal on liability is advanced by the London Borough of Southwark, who we will describe as the Respondent in these proceedings. The Applicant, Mr Afolabi, in the Tribunal proceedings has appealed against the quantum in the remedies hearing. There is no cross-appeal by the Respondent on quantum.[3]The Decision of the Employment Tribunal in relevant part was that:
"1.1 The Respondent unlawfully discriminated against the Applicant contrary to section 4(2)(b) Race Relations Act 1976 when it failed to appoint him to the post of Auditor Grade SO2 in June 1990. "1.3 The Respondent unlawfully discriminated against the Applicant, contrary to section 4(2) Race Relations Act when it failed to re-grade his post to Departmental Auditor on Hay Grade 10 in or about April 1999 at which time it treated white employees, Mr W Jordan, Ms K Draper and Mr D Coombes more favourably."
[4]Unusually, we have detailed comments from the Chairman, made pursuant to a direction of the Employment Appeal Tribunal (His Honour Judge Peter Clark, Mr Dawson and Mr Manners) at a preliminary hearing on 8 February 2001. The direction was made because it was contended by the Respondent that it had been found liable for a complaint for which it was unprepared and which had not been dealt with at the Tribunal hearing.[5]In the light of that allegation, the EAT ordered that affidavits or affirmations be produced in accordance with the EAT Practice Direction and that the Chairman should be offered the opportunity to comment upon the contents of those affidavits and affirmations. Thus it was that an affirmation was created by Dawn Martin, instructing solicitor in attendance and taking a note at the liability hearing, and a reply created by the Applicant, covering the points she made.[6]The Chairman, in detailed comments received by the EAT on 7 June 2001 dealt with the points made in the affirmation of Ms Martin and it is fair to say supplemented, by way of qualification, one finding the Tribunal had made. We would have reservations about accepting such later reasoning, but Mr Fletcher, appearing on behalf of the Respondent, takes no issue with the substance of the Chairman's comments. In those circumstances, we are happy to examine these comments and have found them very useful in dealing with the procedural irregularity alleged to have occurred in this case, about which we will say something later in this judgment. In a detailed Skeleton Argument produced for the purposes of the challenge on liability, Mr Fletcher has set forth a number of arguments which we will take in turn. The decision to extend time .[7]As can be seen from the finding of the Tribunal, it adjudicated in 2000 AD on an act of discrimination which occurred in 1990. By any standard that is an extraordinarily long period of time, over which to consider an allegation of race discrimination. It will be recalled that allegations of race discrimination are highly fact-sensitive and the evidence of witnesses is very important for the impact that has upon a Tribunal. The Tribunal was asked to exercise its discretion in this case.[8]The circumstances were that on 26 April 1999 the Applicant formally went through his personal file, amongst other documents, and discovered a handwritten note showing the comments and scores awarded by a member of the panel during the interview of him for the post of Auditor SO2 in 1990. The total points awarded were 15 out of a maximum 16, which showed, according to the Applicant that he would have been successful for the post he applied for. The Applicant had been employed by the Respondent in an auditing function from the 1970s and had an exemplary career with them.[9]In March 2000 the Applicant's contract of employment was transferred by the operation of TUPE to Deloitte where he carried on the same functions as with the Respondent. No point is taken at these proceedings about the correct Respondent which remains, for our purposes, the London Borough of Southwark.[10]Upon his seeing the personal file, the Tribunal found that the Applicant had an arguable case of racial discrimination. It found that he had no reason to inspect his file, and had no obligation to inspect it at any time, prior to May 1999. When he discovered the contents of the personal file he acted promptly in launching proceedings under the Race Relations Act . The first duty of the Tribunal, therefore, was to consider whether it was just and equitable to hear the case. The Applicant is of black West African origin and complained about his treatment as compared with white employees.[11]In deciding in his favour on the jurisdiction point, the Tribunal had fully in mind the difficulties in hearing evidence which would be unreliable, going back a long period of time, and it decided to exclude, as being unjust and inequitable and disproportionate, certain passages which were sought to be relied upon. Nevertheless, it did have the advantage of hearing live evidence from the interview panel members, Mr Dusu and Mr Bassett, about what occurred in 1990. It decided that it was just and equitable to allow the case to proceed.[12]That Decision is attacked on the ground that the Tribunal held, as a justification for going ahead, that the passage of nine years since the events in question, would be equally prejudicial to the Applicant who has to prove racial discrimination, as it would be to the Respondent. That, as Mr Fletcher accepts, is a finding that the Respondent would have suffered prejudice as a result of the late hearing of the allegation. It is also a finding that the Applicant would be prejudiced.[13]The law relating to the exercise of discretion by a Tribunal is accurately summed up in British Coal Corporation –v- Keeble [1997] IRLR 336 Mrs Justice Smith, EAT, as requiring, so far as is relevant to the facts in this case, an examination of:
"(a) the length of and reasons for the delay; (b) the extent to which cogency of any evidence is affected by the delay; (c) the extent to which the party sued had cooperated with any requests for information;"
To these brief factors can be added the conduct of the Applicant and the Respondent over the period of time, and in a comprehensive form, the presence or absence of any prejudice to the Respondent other than in simply allowing the claim to proceed.[14]We have also derived assistance from the approach to limitation periods in the unfair dismissal jurisdiction, particularly Walls Meat Co Ltd –v- Khan [1979] ICR 52 at 60. Brandon LJ said:
"The performance of an act, …. is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance, the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable."
[15]Bearing in mind the different language relating to unfair dismissal, we do consider that a strongly relevant factor for a Tribunal to consider is ignorance of an essential fact. There is no dispute in this case that the information obtained by the Applicant when he looked at his personal file was an essential fact upon which he was able to construct an arguable, and indeed, now as the Tribunal has found, a strong case of race discrimination.[16]As a matter of logic, once it is clear that there is a justifiable lack of knowledge, the only question for the Tribunal is whether it is just and equitable, bearing in mind the factors cited above, for the case to be heard. In this case, the attack on the Tribunal's decision has to cross the high threshold relating to exercise of discretion by an Employment Tribunal, in weighing the factors it had before it. In our judgment, that attack fails. The Tribunal demonstrated that it was prepared to exclude evidence which would be unreliable by virtue of the passage of time, but did have the advantage of hearing live witnesses and making decisions thereon, so the Tribunal cannot be faulted in its Decision to allow the case to go forward. The failure to appoint to Grade SO2[17]This arises out of a decision by the Respondent to advertise a number of audit positions in 1990. The salary was to vary according to qualification; no qualification was, however, specified in the audit posts advertised. The documentation before the Tribunal included a note of the requirement which was at one stage required for an appointment. The extent to which that requirement was observed was not in evidence before the Tribunal. The requirement specified was of at least part 1 of the CIPFA accountancy qualification, but there are a number of other points in the specification and neither we nor the Tribunal know precisely the extent to which they were required or simply desirable.[18]The Applicant attended for interview; the Tribunal found that the Applicant performed well and recorded that it was not disputed that the Applicant was the best and most experienced candidate. Of the two interviewers, Mr Dusu recommended the Applicant for Grade SO2. His colleague, Mr Bassett did not. In the event, both the Applicant and Mr Welsh, who he compared himself with, were appointed at Grade S6 which is below SO2. Initially, the Applicant had cited Mr Welsh, but during the course of the hearing it became apparent that the Applicant's claim, as recorded by the Tribunal, was of unfavourable treatment in deciding not to appoint him, as compared with a man who was white, with equal experience. Since Mr Welsh and the Applicant were both appointed at Grade S6, the notional comparator, therefore, was an important qualification to the discrimination claim.[19]The Tribunal heard from Mr Bassett and Mr Dusu, and heard submissions about the decision taker. It came to the conclusion that it was a Mr K Brown who decided that the Applicant should be put on Scale 6. Since the Applicant was the most experienced and best candidate, the Tribunal directed itself in accordance with King –v- Great Britain China Centre and Glasgow City Council –v- Zafar . It called for an explanation as to why the Respondent appointed the Applicant at Scale 6, having advertised for an SO2, and he coming out top of the panel of eight interviewed. The reasoning advanced by the Respondent was that the Applicant did not have the Part 1 CIPFA qualification.[20]The Tribunal reflected on that explanation, it considered whether there was an administrative error, or some other reason, rather than discrimination, to explain why the Applicant had not been appointed, and found none. It then decided that it did not believe the explanation given by the employer. It said if this was in reality such an essential element for grading at SO2 it did not understand why this had not been mentioned at some time earlier, either during the interview or by way of explanation for offering the Applicant Grade SO2 for which he had been invited for interview, and in particular when a letter of invitation was sent to him. That being so, the way was open to the Tribunal, pursuant to the authorities above, to find discrimination, although it was not bound to do so. It did so find. In our judgment, there was sufficient material upon which that decision could be made.[21]The direction as to the sequence of steps set out in those two authorities was a correct direction, and it appears to us to have been followed faithfully by the Tribunal. The appeal against this aspect of the Decision is therefore dismissed.[22]The Decision by the Tribunal relating to victimisation on contracting out was to dismiss the Applicant's claim and we may say no more about it.[23]It then turned to the third aspect of discrimination advanced by the Applicant and upon which, as we have recorded, the Tribunal made a Decision in the Applicant's favour. Here, the Tribunal considered the Applicant's claim that he had been graded at Grade 8 under the Hay Scheme, when he should have been Grade 10. The Employment Tribunal had the advantage that all of the members of the Tribunal had extensive experience of job evaluation exercises. As it happens, our own Appeal Tribunal has considerable judicial and practical experience of job evaluation and of pay structures in local authorities.[24]It is against that background that we have accepted Mr Fletcher's invitation to consider the realities, as he put it, of local authority departmental instructions and the restructuring of local government pay, in the late 1990s. We took that invitation to heart and have, ourselves, endeavoured to consider the material of a highly complex nature presented before the Employment Tribunal and distilled, if we may say so, in the Reasons of the Tribunal, into a clear and workable analysis.[25]The facts relating to this part of the Applicant's claim are that there was to be a change of approach by the authority to the work being done in various departments of an audit nature, and that there were to be changes in terms and conditions. At the outset, the Employment Tribunal adopted the description of issues carefully set by a previous Chairman, Mrs C Taylor, and the claim relating to the 1999 restructuring, that is whether the Respondent unlawfully discriminated against the Applicant when it failed to regrade his post of departmental auditor to Hay Grade 10 on or about April 1999. the comparators being Mr W Jordan, Ms K Draper and Mr D Coombes. Mr D Coombes had fallen out of this account since he did not appear to be a relevant comparator. Mr Jordan is, and Ms Draper was, in the original Decision of the Tribunal, a proper comparator against whom the Applicant compared himself and for whom the evidence shows that they were better treated in terms of pay than the Applicant. But in the comments of the Chairman, a qualification is made to the decision about Ms Draper which indicates that there may be an alternative explanation to the one which the Tribunal originally founded upon for her treatment. Despite this qualification, the Tribunal Chairman re-asserts the finding of fact in relation to Ms Jordan.[26]The claim made under this section was the subject of the affirmations and the comments and it is important to note that the Respondent has argued before us that the Tribunal made findings on liability, pursuant to a case which was not put by the Applicant. In the light of the Tribunal Chairman's comments, we reject that argument.[27]The Chairman drew attention to the fact that the Applicant on day one of the five-day hearing, had cited the fact that under the Hay scheme the Applicant and Ms Jordan and Mr Draper had become evaluated at the same level, Grade 9. He said this in his written witness statement "Horses were changed in mid-stream" and the Applicant is reported by the Chairman as saying:
" the comparators' grades were changed and Jordan was moved sideways and regraded Grade 10 while Draper was upgraded to 11"
The Chairman goes on:
"As far as we were concerned this was the issue identified at the hearing for directions, namely that the Applicant's claim was that Jordan and Draper were treated more favourably than he was "on or about April 1999" when they were graded 10 or above and he was only graded 9."
And the Tribunal goes on to record in greater detail at paragraph 10 in the Chairman's comments that the claim was made by the Applicant for Grade 10. We have no hesitation in accepting that approach because the contents of it are the subject of no issue taken on behalf of the Respondent. We are therefore satisfied that the claim was properly made and canvassed in evidence before the Employment Tribunal.[28]What is left, then, is the substantive Decision made by the Tribunal in relation to the Hay Grades. The appeal, on this point, is based upon a Notice of Appeal which includes grounds of perversity. We therefore approach this part of the case looking at whether no reasonable Tribunal could have come to the conclusion which it did.[29]We have carefully looked at paragraph 14 of the Reasons of the Tribunal, which extends for five pages. The Applicant's case was that he was originally in Grade 8 under the Hay Scheme and claimed to be in Grade 10. The officer responsible for grading, Ms Seymour, consulted a person at Hay with the Applicant's job description and that of Ms Draper and of Mr Jordan, both of whom were white. The response from the officer at Hay was that the evaluation of the Applicant was too harsh and he should have been Grade 9; that the grading of Mr Jordan was determined at Grade 10, but that the officer found little difference between the jobs done. In distilling the findings made by the officer at Hay and Ms Seymour, the Tribunal has made its own finding and decided that the recommendation of Hay was that the grading of all of them would equate to 9.[30]There was then a reorganisation. The Applicant was not told about this approach to grading. As a result of the reorganisation, Mr Jordan was restored to Grade 10 very quickly, and Ms Draper was ringfenced at Grade 11. The Tribunal found there were no primary facts showing racial discrimination, but was concerned that almost immediately after the restructuring, the posts determined to be Grade 9 of Ms Draper and Mr Jordan were the subject of grading or promotion, giving them Grades 10 and 11 respectively. In these circumstances, in what it described as "an extraordinarily short period of time" and contrary to the Respondent's normal policy of advertisement and application, the Tribunal came to the conclusion that "the restructuring of the jobs of Mr Jordan and Ms Draper was a sham designed to preserve their grading at Grade 10 at the least".[31]As a result of that finding, the Tribunal concluded:
" there was a culture of prejudice against the Applicant on the ground of his race (it being accepted that he was an excellent employee) and in favour of white employees within the Respondent's organisation, which manifested itself in this case over a period from at least November 1998 to December1999."
The Tribunal went on to hold, in a criticism of the Respondent, supporting its inference of race discrimination, that the Respondent failed, contrary to its normal policy, to give the information to the Applicant and to implement it for eight months, and that as soon as the posts had been designated according to the Hay Scheme, as 9, they were immediately regraded at 10 and 11. As the Tribunal held:
"This was virtually opposite to the way in which the Respondent treated the Applicant."
Thus the Tribunal found in favour of the Applicant.[32]Since this is an appeal on the basis of perversity, we ask ourselves whether any reasonable Tribunal, properly directed as to the law, could have come to the conclusion which it did in drawing those inferences. It is, of course, axiomatic that there will be little by way of evidence showing racial discrimination, and therefore inferences are of considerable importance to be drawn from primary facts. In our judgment there was material upon which the Employment Tribunal could base its conclusion, and draw inferences of racial discrimination, as a result of the facts which it found relating to the Applicant and Mr Jordan. That finding and the finding that the restructuring was "a sham" in our view survive the Chairman's qualification about Ms Draper, that her ringfencing may have been explained by reasons other than racial discrimination. Quantum[33]The case was adjourned for a remedy hearing when the Tribunal awarded the Applicant a total of £37,490.61. Extensive documentary material was available for the Tribunal to make its quantification, and it did so in various categories, giving financial loss, interest, injury to feelings and interest on that.[34]Issue is taken by the Applicant in his appeal against this Decision relating to the payments made to him from 1998 onwards. Broadly speaking, by succeeding in his claim, the Applicant's pay was increased by 20% in each of the years from August 1990 until February 2000.[35]The nature of the appeal concerns a payment made to the Applicant from 1997 for undertaking additional duties in the absence of the line manager. During this period, the Respondent awarded the Applicant an honorarium, totalling £6,182 to reflect the fact that he was working at a higher level, known as PO1. The Applicant complains that this figure, indicating a progression of two grades, should have been reflected in the award of the Tribunal when it, by its Order, increased the rate of pay of the Applicant to that equivalent to Grade SO2, or on the Hay Scale of 10.[36]The reason the Tribunal rejected that approach was that the Applicant produced no evidence to support his contention that he would have progressed above the bar in Grade 10, which attributed what is known as "Spinal Column Point 35" rates of pay. The evidence about a bar was contained in a policy cited as follows:
"Progression beyond the bar is achieved by a noticeable change in job content. It is determined (and may be limited) by the opportunity for increased capacity, the ability of the individual to undertake extra duties, affordability within the unit (this does not mean that no increments are paid but they may be limited due to financial constraints) and the requirement to control pay drift"
Having read that, the Tribunal concluded:
"We find as a fact that there was no practice or automatic right of progression beyond the bar"
[37]The response of the Respondent to this argument of the Applicant is that the Tribunal must have considered common sense when it made its award and effectively required the Applicant to give credit for the honorarium he received. Since the honorarium is based on his acting at level PO1, spinal column point 35, that would be absorbed in the payments made by Order of the Tribunal to bring him up to SO2 rate, or Grade 10 on the Hay Scale. In other words, the Council paid him more, by way of this honorarium, in recognition of the fact that a lower grade officer was doing a job at a much higher rate. But that would not apply, or would not apply to the same extent, where the officer was doing a job only slightly above him. In those circumstances, with the evidence in the state that it was before the Tribunal, the Tribunal, we hold, cannot be faulted in making the judgment which it did, that the Applicant would not have proceeded beyond the bar.[38]In addition to the above argument, the Applicant contended that his claim, as formulated before the Tribunal, was for parity with the actual rate of pay paid within Grade 10 of Ms Draper and Mr Jordan. This claim was made by the Applicant in his evidence and submissions were made upon it. We have seen a note taken by his colleague of that. That issue was fully before the Tribunal, therefore, and it decided not to accede to an Order which would make a payment equivalent to spinal column point 39.[39]The Tribunal decided that the claim the Applicant made for Hay Grade 10 was made out and any refinement for higher grade pay within Grade 10 was not. From the experience on this Appeal Tribunal of dealing with local authority agreements, which were ventilated by Mr Fletcher, we are sure that there are other reasons for the payment of the rate of pay within Hay Grade 10 to each of Ms Draper and Mr Jordan than race discrimination. The Applicant achieved the result he sought which was Hay Grade 10 and the Tribunal did not err in law in failing to refine that and award him a higher rate of pay within Hay Grade 10.[40]We are very grateful for the careful way in which Mr Fletcher has presented the arguments of the Respondent, and we are equally indebted to Mr Ofolabi for conducting the difficult exercise of being an advocate in his own cause and supplying us with the most careful argument and research in advancing his case.[41]We refuse the application for leave to appeal. There is no arguable point of law, in our view, arising out of the just and equitable exercise of discretion. The Employment Tribunal paid attention to the prejudice to the Respondent, while recognising there was prejudice to the Applicant, but it cannot be said that it erred in law in recognising prejudice to both of them. In our judgment, a question of law does not arise sufficient to justify our granting permission to appeal. In our view, the construction of the Tribunal's Reasons is not of a balancing exercise, but as we ruled in our judgment, it recognised the prejudice that there would be to the Respondent and made allowances for it.[42]As to the natural justice point, we cannot see how this point can be raised before the Court of Appeal now that no issue is taken with the comments of the Chairman which clarify the nature of the hearing which he conducted and which cite the passages in the evidence upon which the Tribunal relied when making its Decision, and therefore, Mr Fletcher, you must go and ask their Lordships.