MR A M SOORMALLY v DEPARTMENT OF SOCIAL SECURITY [2002] UKEAT 1085_00_2304

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1085_00_2304Case No Appeal No. EAT/1085/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A M SOORMALLYAPPELLANTDEPARTMENT OF SOCIAL SECURITYRESPONDENT
Before
His Honour Judge J R ReidDate 23 April 2002
[1]APPEARANCES For the Appellant MR W B PANTON (of Counsel) Messrs Wadesons Solicitors Southbank House Black Prince Road London SE1 7SJ For the Respondent MISS R DOWNING (of Counsel) Department of Social Security New Court 48 Carey Street London WC2A 2LS HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at Bedford. The hearing lasted over twelve days plus a reading day plus a discussion day. The decision was promulgated on 20 July 2000. That hearing was itself a rehearing. The decision of the Tribunal was that Mr Soormally had not been discriminated against or victimised on the grounds of his race.[2]The short factual background is this: that Mr Soormally is of Asian ethnic origin. He was born in Mauritius and came to the United Kingdom in 1961. He commenced his employment with what was then the DSS and is now the Benefits Agency as a Clerical Officer. In December 1980 he was promoted to Executive Officer grade, which is now called B3. He has been in that grade ever since that time having performed a variety of duties including detached duties with varied responsibilities over that period. When the Job Seekers Allowance was introduced it was both politically sensitive and high profile. In anticipation of its introduction the Respondent, the DSS as it then still was, decided to select Job Seekers Allowance Team Leaders from among its staff approximately nine months before the actual benefit was introduced. Mr Soormally expressed an interest and had an informal talk with a Mr Newell about this. There were many expressions of interest from various members of staff. A selection process took place (of which the Employment Tribunal were in fact critical) but the selecting panel's highest priority was to find staff having a high level of management skills. The DSS's genuinely held view was that these were the skills which were Mr Soormally's weakest which is why he was not selected.[3]After that unsuccessful application, Mr Soormally expressed an interest in a post which was advertised as a Benefits Agency Team Leader. There followed a further selection process which was, again, roundly criticised by the Tribunal. Three people were involved in the process; Mr Soormally, a Ms Robinson and a Mr Crawford. Of the three, Mr Crawford was treated differently from Mr Soormally and Ms Robinson because he only orally expressed an interest in the post to his own manager, and his manager, who was part of the selection process, did not prepare a report on Mr Crawford nor were Mr Crawford's previous performance appraisals available for consideration by the panel. Ms Robinson's manager submitted a hand-written report and Mr Waddingham, Mr Soomally's manager, prepared a hand-written report which could not be found for production to the Employment Tribunal. The panel considered these matters and also, it appears, considered various rumours and allegations, in particular, about Mr Soormally's difficulties in dealing with female staff.[4]The panel selected Mr Crawford and Ms Robinson and published the result of the selection. The published statement was misleading in three ways. It was clear that Mr Crawford, who had made his oral expression of interest and in respect of whom no report had been prepared, was not selected in accordance with the statement made. Mr Soormally, as the Tribunal held, when he saw the report written about him, received a report in a typed up version which differed from the version which had been in manuscript form before the selection panel. The third matter was that the panel had taken account of extrinsic material in the form of rumours and allegations.[5]Mr Soormally, being the one of the three who was not given a job, was aggrieved. He appealed against his Performance Assessment Review (PAR) for the years 95/96. He also made a complaint of discrimination. As a result of his complaint under the internal equal opportunities procedure there was an internal investigation which resulted in Mr Waddingham and Mrs Lambert, who had been part of the selection procedure, being disciplined and receiving warnings which were recorded on their files. After that these proceedings were commenced.[6]The complaints that Mr Soormally made and which were dealt with by the Employment Tribunal were four in number. Firstly, that he was discriminated against when the Respondent failed to select him for the Team Leader post in the Employment Service and Benefits Agency to deal with the Job Seekers Allowance in 1995, and again in 1996 when he was not appointed to the Benefit Agency Team Leader Post, the BA post, for which he applied. Secondly, that he was discriminated against when he was not temporarily promoted in 1998 following assessment by his Line Manager. Thirdly, that he was again discriminated against by his Line Manager in May 1999 when he was undermarked in his performance appraisal review. Lastly, that he was victimised because he had brought a complaint before the Employment Tribunal. As I have indicated, all of those complaints were dismissed.[7]This appeal is concerned only with a part of the first of those complaints. The appeal is limited to the question of whether the Tribunal erred when they held that he was not discriminated against in March 1996 when he was not appointed to the Benefit Agency Team Leader post, the BA post. Let us say at once that it is perfectly clear that the selection process which resulted in Mr Soormally being disappointed was deeply flawed. The Employment Tribunal so found. It is clear also that the flaws operated to Mr Soormally's disadvantage. He was the only one of the three applicants who did not receive an appointment. The Tribunal recognised all of that but it held that the disadvantage was not on racial grounds, that he was not discriminated against or victimised on the grounds of his race.[8]The three grounds of appeal which are set out in the Appellant's skeleton argument and which are still pursued are, first, that the Tribunal erred in law when it concluded at paragraph 12.9 of the reasoned decision that there was not a shred of evidence available from which to draw an inference of race discrimination. Second, it is said that the Tribunal erred in law in failing to consider comparative evidence which clearly showed the appellant to be treated less favourably on racial grounds. Lastly, it is said that the Tribunal misdirected itself in law in its approach to the comparative exercise in paragraph 14 of the reasoned decision.[9]The relevant paragraphs of the decision for these purposes are paragraph 12.9 and paragraph 14 and I will read those paragraphs now as I will have to return to them. Paragraph 12.9 was in these terms:
"The panel selected Mr Crawford and Ms Robinson. It rejected Mr Soormally. The panel published the result of the selection which is at pages 47-50 of the grey bundle. The published statement is misleading for it is clear that Mr Crawford was not selected in accordance with the statement made. Mr Soormally subsequently discovered that a report had been written by Mr Waddingham and requested to see a copy of it (page 52 of the grey bundle). It is telling that there is a hand-written note of a telephone conversation recording that Mr Waddingham "will amend, type & send" the report direct to Mr Soormally. It is apparent from the evidence before us that the selection panel in addition took account of extrinsic material when making its decision, taking note of rumours and allegations about the Applicant of which he was totally ignorant. Was the selection panel in acting as it did, consciously or subconsciously motivated by race? We find as a fact that it was not, as there is not one shred of evidence available to us from which it is possible to draw such an inference."
Paragraph 14 reads:
"We turn then to the BA posts. Once more we ask ourselves whether there was a difference of treatment? Without doubt, the Applicant as well as Ms Robinson was treated differently from Mr Crawford. Ms Robinson, like Mr Soormally, had been rejected for the JSA post. Ms Robinson and Mr Soormally are of different ethnic origins and yet they were treated alike; both were disadvantaged by the inclusion of Mr Crawford in what was to become the pool for selection of candidates. We conclude that both Ms Robinson and the Applicant were treated less favourably than Mr Crawford but not on the grounds of race for there is no difference in the ethnic origin of Mr Crawford and Ms Robinson, both of whom are white."
[10]The authorities to which we were referred in the course of argument were (perhaps inevitably these days) Nagarajan v London Regional Transport [1999] IRLR 572 and Anya v University of Oxford [2001] IRLR 377 . The particular passages to which our attention was drawn (and I need not, I think, read them) were paragraphs 12-14 inclusive, that is the first three substantive paragraphs of the speech of Lord Nichols of Birkenhead in Nagarajan, and the latter part of paragraph 9, beginning under the subheading 'Inferences' to the end, and paragraph 15 of Anya .[11]The first of the three points that is raised in the Notice of Appeal and is still persisted in relates to paragraph 14 of the decision. I have read the way in which it is set out in the skeleton argument. Paragraph 14 was the paragraph which dealt with the position of Mr Soormally in the pool of candidates. It was rightly said by Mr Panton, on behalf of Mr Soormally, that there is nothing in this paragraph which deals at all with the prejudice which Mr Soormally suffered as a result of not being appointed to the post. In our judgment this is not a defect in the decision. Paragraph 14 is dealing with one alleged aspect of discrimination, namely, that Mr Soormally was treated differently from and less advantageously than Mr Crawford because Mr Crawford made no written application, had no written report and did not have his performance reports before the panel. The Employment Tribunal concluded, and in our judgment inevitably concluded, that both Ms Robinson and the Applicant were treated less favourably than Mr Crawford but that was nothing to do with race because both Mr Crawford and Ms Robinson were white and it could not be suggested that there was a discrimination on the grounds of race when those discriminated against in favour of one white person were another white person and a person from an ethnic minority. In our judgment that ground of appeal is unsustainable because paragraph 14 is not dealing with the question of prejudice in non-appointment but only dealing with prejudice in the selection process. The question of prejudice by non-appointment is dealt with in paragraph 12.9.[12]The next ground that was raised is that the Tribunal erred in law in failing to consider comparative evidence which clearly shows the Appellant was treated less favourably on racial grounds. This related to evidence given by a Mr Baker on behalf of the Appellant. That evidence is noticeably not dealt with in the Extended Reasons. The only point at which Mr Baker is referred to by name is in paragraph 6, the first line of which reads:
"On behalf of the Applicant we heard his evidence and that of Mr M M Baker." and, after dealing with other matters, the Tribunal concluded that paragraph: "
On the totality of the evidence before us, we have made the findings of primary fact which are subsequently recorded below." What is said is that Mr Baker was an important witness because the complaint that Mr Soormally's dealing with female employees was inadequate was a complaint which applied equally to Mr Baker since the allegation apparently was that their conduct had had unfortunate effects on one particular female employee and possibly on another one. The complaint was that Mr Baker had thereafter been offered another post which was not promotion but gave him some prospect of broadening his skills because it was dealing with, and being in charge of, a group of some half a dozen people.[13]It is clear when one looks at the whole of the case is that the reason why this is not expressly dealt with by the Tribunal is not because they allowed it to slip their minds or because they wished to sweep it under the carpet. This was an extremely lengthy hearing and, not surprisingly, the Tribunal, in their decision were not going to deal with every conceivable point, good, bad or indifferent, which had been raised before them. The reason that Mr Baker's evidence was not dealt with so far as comparison is concerned is that by the end of the hearing it is pretty clear that there was not a live issue about Mr Baker as a comparator since the evidence was that Mr Soormally, having failed to get the job which he wished to get, had been offered, certainly one, and probably two, other alternative posts, of a type similar to that offered to Mr Baker. In those circumstances it is clear that there was no live issue about comparators which was exercising the minds of the Tribunal. That ground also seems to us to fail.[14]The remaining ground, and it seems to us to be the most substantive ground, is a complaint based in large measure on the passage in Anya , and I will read a small part of that:
"The function of the Tribunal is to find the primary facts from which they will be asked to [draw] inferences and then for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds"
. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision." Then, at the end of paragraph 15, the Court of Appeal said:
"On none of these issues, [the issues just set out] from first to last, did the industrial tribunal record any conclusion as to where the truth lay and what, if anything, it indicated in terms of racial bias."
[15]What is said here is that paragraph 12.9, which I have read already, gives rise to three matters which require explanation and from which an inference of discrimination could be drawn. It is said that the Tribunal have not considered those matters but have simply erred by saying that 'there was not one shred of evidence available to them' from which is was possible to draw the inference. It is said that matters earlier set out in paragraph 12.9 make it clear that there was evidence from which such an inference could be drawn. The first of those matters was, as I have already said, the misleading nature of the published statement relating to the appointments. So far as that is concerned, the way in which the published statement was misleading, in that it did not make clear that Mr Crawford was selected by a different process and indeed suggested that he was selected in accordance with the statement, when he was not, for the reasons I have already indicated, namely, no written report, no written application and no performance reviews available to the panel, that itself was a finding of fact and from it the Tribunal were perfectly entitled to say that it did not provide them with any evidence from which it was possible to draw an inference of racial discrimination.[16]Secondly, there is the fact that Mr Waddingham gave Mr Soormally a sanitised version of the report that was put before the committee and the panel. However, that clearly was not sanitised in any way to exclude any racial material, even if that was suggested to Mr Waddingham in the course of his evidence, which appears to be doubtful, given the Chairman's note and the difference between counsel as to what occurred. What one sees in paragraph 12.8 is that they reject Mr Waddingham's account that the typed up report was no more than the typing up of the handwritten report on the basis that the panel's reasoning for rejecting Mr Soormally was not consistent with the report unless something further was said in the handwritten report. The panel's reason for rejecting Mr Soormally were his lack of management expertise, in particular, the difficulty which it was alleged that he had with the female staff. The Tribunal made their findings of fact and it was perfectly open to them to say on those findings of fact that there was no shred of evidence available to them from which it was possible to draw an inference that the decision was consciously or subconsciously motivated by race.[17]Then, it is said, that the fact that the selection panel took account of extrinsic material, taking note of rumours and allegations about the Applicant of which he was totally ignorant, was a matter from which an inference of conscious or subconscious racial motivation could be drawn. But those rumours and allegations related to his difficulty with female staff and had nothing whatever to do with race. So, again, the Tribunal were entitled to say as they did that there was not a shred of evidence available to them from which it was possible to draw an inference of racial discrimination.[18]The distinction between this case and Anya is that, unlike the Anya case, in this instance the Industrial Tribunal did record its conclusion as to where the truth lay on the matters which were raised and did form a view that on those facts that there was nothing from which they could draw an inference of racial discrimination.[19]The Tribunal, it is true, might have expressed themselves rather more fully in one or two respects but it is clearly a painstaking and conscience decision reached at the end of a long and arduous rehearing and in our judgment, when properly construed and properly read as a whole, there is nothing in the decision which can be said to show any error of law. It follows that in our judgment the appropriate course is for this appeal to be dismissed.