MR S S HUSSAIN v HM PRISON SERVICE [2002] UKEAT 690_01_1510

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 690_01_1510

Case No Appeal No. EAT/690/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S S HUSSAINAPPELLANT

HM PRISON SERVICERESPONDENT

Before

Mr Justice Burton

Date 15 October 2002

[1]APPEARANCES For the Appellant MR M SETHI (of Counsel) Instructed By: Messrs Lees Lloyd Whitley Solicitors 6th Floor Castle Chambers 43 Castle Street Liverpool L2 9TJ For the Respondent MISS R DOWNING (of Counsel) Instructed By: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS MR JUSTICE BURTON : This is an appeal by Mr Hussain, a Prison Officer in the service of the Respondent, Her Majesty's Prison Service Agency, against the dismissal by the Employment Tribunal at Reading in respect of a hearing on 28 and 29 March 2001 of his complaint of victimisation, contrary to the Race Relations Act 1976 .

[2]Mr Hussain has been represented today before us by Mr Sethi of Counsel who also represented him below, and we have heard Mr Sethi's courteous and forceful arguments at length. We have also permitted him to refer us to the written submissions that he made below, as amended by him in his handwriting, so as to be able to do our best to understand what in effect was said by him below. He told us that his written submissions, which had been exhibited perfectly properly in the bundle before us, were prepared at the end of the first day so that they did not quite represent what he said at the end of the second day, he submitted, but, to the best of his recollection, his handwritten additions would have constituted his script showing what he did additionally submit to the Tribunal and, as I have indicated, we have permitted him to put those before us.

[3]Miss Downing of Counsel has appeared today on behalf of the Respondent. She did not appear below and in the event we have not called on her, although we have had the benefit of her extensive skeleton argument.

[4]Mr Hussain made a complaint against his employers, the defendants, of unlawful race discrimination by an Originating Application dated 29 April 1999. That application was eventually dismissed in the Employment Tribunal, and such dismissal upheld on appeal to the Employment Tribunal, but at the date of the events with which the Tribunal in this case was concerned, those subsequent events had not occurred and there was still the outstanding complaint of race discrimination by him against his employers. There was thus, for the purposes of the three ingredients in the statutory tort of victimisation, clearly in existence a protected act, that is, his outstanding complaint.

[5]The circumstances were that he applied on 13 January 2000, by reference to the Training Department at HM Prison at Bullingdon, to take his Senior Officer's promotion exam for the year 2000. In the event, as will appear, he did not sit that exam, whereas others who had made applications were permitted to do so and the fact that he, unlike others, did not sit the exam is the unfavourable treatment, which is the second necessary ingredient for the purposes of victimisation.

[6]The third necessary ingredient is that which was in issue before the Tribunal and has been the subject matter of this appeal, namely whether he was submitted to that unfavourable treatment by reason of the protected act. It is clear to us that, in the light of the recent decision of the House of Lords in Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

, it is safe to gloss the words "by reason of", with the slightly more familiar word "because", and that the issue before the Tribunal is thus properly described as having been whether he was unfavourably treated because of his having been a complainant of race discrimination.

[7]There will be cases in which there will be issues such as, did the employer know of the protected act, or the relevant person on behalf of the employer? Was the unfavourable treatment conscious or unconscious? Was there more than one reason for the unfavourable treatment, such that there may be an issue as to whether the motive or reason for the unfavourable treatment can be said to have been only the protected act? Was the protected act or the existence of the protected act the real reason, the core reason, one of the reasons etc? But this case does not, fortunately, reflect any of those problems.

[8]There was a straightforward factual issue before the Tribunal in this case, the onus being on the claimant to establish it (although as a result of authority there is room for an evidential onus in certain circumstances to be placed on the employer, to which we shall return) namely, was the omission of the Appellant from the exam deliberate? If it was, then it was plainly done because of the protected act.

[9]The case put forward by the employer was that it was not deliberate, it was accidental. It was, as the Tribunal found, incompetent and the appeal is put forward on the basis that the conclusion by the Tribunal that there was not a deliberate omission of the Appellant but that his omission was unfortunate, accidental and incompetent, is challengeable on appeal.

[10]As far as challengeable on appeal is concerned, although Mr Sethi in the course of his submissions made certain submissions that there were, in some ways, misdirections of law, he did not in the event pursue those, or at any rate pursue them with any force, and the real nature of the appeal comes down to perversity, perversity put in the alternative by reference to, as is often the case, a lack of reasoning, or at any rate, a lack of showing of reasons, for which Meek v City of Birmingham City Council

[1987] IRLR 250

is prayed in aid.

[11]It is very often the more important in a race discrimination case that all the facts are very fully analysed and set out because, in a race discrimination case, as has been pointed out by Neill LJ in the well known passage in King v The Great Britain-China Centre

[1991] IRLR 513

, it is very difficult often to pin down the facts establishing discrimination. It is sometimes the case, as Neill LJ pointed out and has been subsequently approved in Zafar and Nagarajan , and other well known cases in the discrimination field, that the discriminator might not intend to discriminate, may not know that he is discriminating. He may have unconscious prejudices which drive him to the actions which he performs and, consequently, it is rare that one can identify a deliberate act of discrimination, and it is usual in discrimination cases for it to be necessary to find all the primary facts, and then draw inferences from them, sometimes painful ones, sometimes even against those who are, on the face of it, extremely liberal in their opinions in racial matters.

[12]This, however, is not a race discrimination case. It is, as we have earlier indicated, a victimisation case, but one in which the issue was simple and straightforward. Did the employer deliberately omit the Appellant from the exam? If he did, he victimised. If he did not, he did not. In this case, as in all others, it is important for this Tribunal, as with any judicial body, to weigh up the facts judicially, and having weighed them up and having fairly considered both the evidence and the arguments on both sides, to give reasons for their decision.

[13]It is not necessary for every single item of fact to be set out, for every single argument to be weighed up and disposed of, provided that there are sufficient reasons which show the conclusion and the reasoning behind the conclusion. The Respondent submits here that the Tribunal decision was correct.

[14]I have not referred to the fact until now that the decision was a majority decision. That, of course, does not affect the position so far as this Employment Appeal Tribunal is concerned. What it does, of course, is give some comfort and confidence behind an appeal, if the Appellant knows that he or she has managed to persuade at least one member of the Tribunal below, and though it is not directly relevant to the appeal, it does give, on occasion, in the dissenting part of the judgment, emphasis to the case which failed in the view of the majority, and which thus is being pursued on the appeal.

[15]In this case Mr Sethi only made occasional reference to the minority view of the Tribunal and rightly preferred to concentrate on his own submissions. One or two of the facts which, he indicated, ought to have been weighed more heavily by the majority, appear in that part of the decision below which reflects the decision of the minority, but that can be double-edged because, of course, it shows, so far as the facts are concerned, that those facts must have been in the mind of the majority and rejected by the majority. It would not, for obvious reasons, support a case that the majority must have ignored, or forgotten about those aspects of the case, rather the reverse. So, although this is a majority decision, it is on the reasoning of the majority that the Appellant must concentrate, in order to establish his case, and because this is effectively a perversity or a rationality appeal, this is one largely of the rehash of evidence and submissions which were looked at with care below.

[16]It is apparent to us, from looking at the majority decision, that this was a very careful judgment. This is not one of those cases where it can be said that the decision was simply out of touch with the evidence that was given. The highest the case can be put, by the Appellant, is that there were what he considers to have been important matters, which were not dealt with as he would have wished, or in some cases at all, in the reasoning of the Tribunal.

[17]The one thing that is quite clear to us is that Mr Sethi is not going to gain any comfort from Meek v City of Birmingham City Council . The reasons for the conclusion of the Tribunal are quite clear and that will become more apparent when we summarise, as we now propose to do very briefly, the history of the matter.

[18]On 13 January, as we have indicated, the Appellant wrote to the Training Department. He mentioned in that letter, as indeed was known at the Training Department but was set out by him for the avoidance of any doubt in the letter, that he was at that stage under suspension, because of investigations that were being carried out in relation to other matters, and he asked that his eligibility for taking the exam could be checked. He had not had a reply by 28 January and so he sent, by Recorded Delivery, a second letter dated 28 January 2000, enclosing a copy of his earlier letter. He additionally asked whether advice could be given to him about attending promotion classes and, if so, where. By coincidence, a response to his earlier letter was in fact sent on that very day, 28 January 2000. That letter was sent by Mrs Janet Crisp, the Director of Staff Development and Administrative Services in the Personnel Department, to the Governor of Feltham, asking if the Appellant could attend their promotion classes. She, as I understand it, had overall responsibility for both the Training Department and the Personnel Department.

[19]The applications to the Training Department were normally dealt with by the relevant senior Officer in that department who at that time, although only on an acting basis, was Mr Francis. Mr Francis gave evidence at the Tribunal that he had no recollection of receiving the Appellant's letters of 13 January and 28 January at all. Had he received them and been asked to deal with them, or been left to deal with them in the ordinary course, he would have himself have acknowledged them, put them into a relevant file, and when he compiled his list of proposed entrants into the exam, would have included the name of the letter-writer on that list unless, of course, although this was not in terms addressed, he had been found to be ineligible because suspended, which was the question which he asked in his letter of 13 January.

[20]Mrs Crisp, however, clearly did recall dealing with the matter, no doubt not because of her own independent recollection, but because she was the author of the letter of 28 January to the Governor of Feltham, which recorded that Mr Hussain was suspended, but equally recorded the fact that it was permitted for Mr Hussain to take the exam, while he was on suspension, and made the request for him to attend the promotion exam evening classes.

[21]On 11 February Mrs Crisp wrote further, this time direct to the Appellant, confirming his eligibility to take the promotion exam, and confirming that his name would be entered for the exam, and giving him the advice that he could attend the promotional classes, by way of evening class at Feltham, and that copies of the syllabus would be sent under separate cover. She plainly arranged, although I do not know if her evidence specifically was that she recollected it, for a copy of the exam syllabus to be sent by the Training Department to the Appellant's home address. It would seem that that needed to be done specifically because he was not, at that stage, in active employment but was suspended. At any rate, it was done.

[22]The procedure in relation to exams was laid down in a document called "Notice to Staff". That Notice to Staff, or the relevant Notice to Staff, was issued on 23 November 1999. It was, it seems, circulated to Training and Personnel, and the Secretariat, no doubt for onward advertisement and further circulation to anyone who applied to take the exam, and the procedure was thus quite patent. There was nothing hidden about the nature of the procedure.

[23]The date of the exam was set out in the document as being 9 and 10 May 2000 at 9 o'clock, as was the procedure to be followed; including the keeping of a record under 18.1 of the document, of the eligibility of those who applied - that is, no doubt, therefore a list of those who had applied who had been found to be eligible - and a duty to prepare a final alphabetical list of eligible candidates with surnames and initials, which it seems would be called annex D. The responsibility for ensuring that annex D was filled in correctly and signed and returned was on the governing Governor.

[24]We have had disclosed, in addition to that Notice to Staff, Annex D, signed by the relevant Governor, Mr Cann, on 23 February 2000, and it showed the numbers of those who had applied for the exam, then totalling 36, and Annex E, which was the final candidate list, which in the end consisted only of 21 names because, as was quite frequent, as we understand it, some people who had put their names in originally had subsequently withdrawn.

[25]The exams were held on 9 and 10 May 2000, but the Appellant knew nothing about them. He had not received the Notice to Staff, and it seems his name was not on the list of candidates compiled under Annex E. He was told a few days after the exams, by a senior Officer friend at Wormwood Scrubs, that the promotion exams had taken place. He telephoned someone in the Personnel Department, a Mrs Pickup, who told him that they had taken place, and she suggested, although it was quite clear by the time of the Tribunal that in fact she knew nothing about the circumstances and was only offering a surmise, that perhaps it had been assumed that he had withdrawn, because he had not attended the evening classes at Feltham. Mrs Pickup told the Appellant that she, from the Personnel Department, would advise the Training Department which was responsible for the promotion exam. The Appellant wrote to the Manager of the Training Department asking for a reply as to why he had not been told about the exam.

[26]Mrs Crisp on 25 May wrote to the Appellant apologising for the fact that his name had not been entered for the promotion exam, stating that it appeared to be due to administrative error, and that she was making enquiries to see whether anything could be done. It is plain that the Appellant took legal advice, because there then ensued, on 24 July, a Race Relations Act Questionnaire. On 1 August Mrs Crisp wrote to him apologising for the time it had taken to complete the enquiries and stating that his name was omitted from the list, when submitted to the examination unit, and thus he would not be able to take the examination until the following year. There was subsequently a reply to the questionnaire and then these proceedings were launched.

[27]The Tribunal concluded, as we have indicated, that this was not a deliberate act of exclusion but the result of incompetence. The relevant passage of the Tribunal's decision setting out the majority's conclusions is at paragraph 25 through to 30. It set out, in paragraph 24, that it was the unanimous view of the Tribunal that the administration of the Personnel and Training Department was "simply atrocious". The Tribunal also unanimously concluded that Mr Francis was a genuine witness, whose evidence was credible, but observed that his evidence did not take matters much further when the issues were to be determined by the Tribunal, because he did not recall the applications coming in, did not recall passing on any documents to Mrs Crisp and in the event did not deal with the matter at all. The negative side, of course, of that is that he did nothing to exclude the Appellant from the exam, either of his own motion or under any kind of instruction.

[28]The conclusion of the majority of the Tribunal begins at paragraph 25, when they set out that the reason for the Applicant's exclusion from the promotion exam "was not by reason of his earlier Tribunal proceedings, but was occasioned by the respondent's sloppy administrative procedures". The conclusion of the majority, in paragraph 26, was that the Applicant's application was passed by the Training Department directly to Mrs Crisp and said as follows:

"… either because it raised a question as to whether the applicant, being under suspension, would be eligible to take the exam which would not probably be known to the Training Department or, because having regard to the previous proceedings, any correspondence from him was treated with caution."

[29]The Tribunal then set out the fact that Mrs Crisp, as head of Personnel, was not certain regarding the Applicant's eligibility and had to seek clarification, although she took her time about doing so. They concluded that Mrs Crisp genuinely intended the Applicant to take the exam, having established his eligibility because she gave instructions to the Training Department that the syllabus should be sent to him, which was actioned, and she also made arrangements for the Applicant to attend promotion exam classes at Feltham and they accepted that she genuinely was concerned, when it became apparent that the Applicant had missed the exam. They concluded that Mrs Crisp's department was responsible for the unfortunate treatment of the Applicant and Mrs Crisp should have demanded prompt attention to this important issue, but they repeated their finding that this was sloppy administration and in no way directed against the Applicant. They considered the administrative hiccup to have arisen because the Applicant's initial letters were passed to Mrs Crisp by the Training Department and a copy not taken prior to their being passed to Mrs Crisp. If a copy had been made then, in Mr Francis' rather imperfect system, this would have been clipped with other applications and would have gone on his list.

[30]To compound matters Mrs Crisp, instead of returning the application to the Training Department, placed the correspondence on the Applicant's personal file in the Personnel Department. They concluded that Mr Francis was truthful and, in particular, that he did not amend his list on the instructions of a senior Officer, for instance Governor Cann, because of the Applicant's previous allegations against Governor Cann, and they ended, after their analysis of the evidence, in paragraph 30, as follows:

"In conclusion, the majority looking at the whole circumstances view it as fantastic that somehow the respondent and members of its senior management in a public body deliberately excluded the applicant from the promotion exams when they would have known there were bound to be serious repercussions. To us it was simply a most regrettable administrative mistake which might have been avoided by Mrs Crisp copying her reply of 11 February to the Training Department."

[31]The allegation by the Appellant was, as we have indicated, that this was deliberate. He, of course, was unable to give any direct evidence because he was simply the victim of events but, in his witness statement, he said as follows:

"It is my belief that as a result of commencing the Employment Tribunal claim the Respondent has victimised me in the promotion exam process by omitting my name from the list of candidates to take the exam."

[32]I indicated earlier that the Meek test appeared to us to have been satisfied because, in general terms, the reasons are quite apparent to the reader of the Tribunal. Given a clear choice before them the Tribunal did not accept that case and, for reasons which they set out, they concluded that (to use a colloquialism) the application by the Appellant to take the exam "fell through the cracks". It appears that, instead of the ordinary procedure being carried out by Mr Francis, a different procedure was followed and, although we will return to this point because it was relied upon by Mr Sethi, as set out in paragraph 26 of the decision to which we have referred, the matter was referred to Mrs Crisp for special dealing.

[33]As the Tribunal indicated in their findings, they concluded that they did not need to reach a concluded finding as to the reason for it, but they mentioned two possible reasons:(1) that there was the outstanding question which the Training Department could not resolve and which needed to be resolved and was resolved by the Personnel Department, about whether the Appellant could take the exam while suspended or;

(2) there was a need to treat this application carefully and specially (perhaps another colloquialism would be "with kid gloves") because of the outstanding discrimination claim and in those circumstances it was to be dealt with, with special attention by Mrs Crisp. Whichever of those two reasons it was, the Tribunal concluded that there was that special dealing which was successful in a way. The comment might, I suppose, be said "the operation was successful but the patient died", but, nevertheless, it was successful in this sense, that, on the findings of the Tribunal, Mrs Crisp did all that was necessary to deal with the special circumstances of the case before her, in the sense that she made sure that the Appellant got his syllabus and that he got his special training, which he in fact did not take up, and that he was in a position to take the exam, although suspended. What, on the Tribunal's conclusions, she did not do, and should have done, was just because he was being treated specially and separately, made sure that the Training Department were notified that he should be added back to the list of others who were going rather more straightforwardly through the system, and that she did not do, no doubt assuming, wrongly, that a copy had been taken of the letter by the Training Department. That was the decision of the Tribunal. They were not satisfied that there was a deliberate decision to exclude; they rather concluded that the exclusion came about in that way by what I have called "the falling through the cracks".

[34]Was that decision perverse? Was it open to the Tribunal on the evidence, was it evidence to which a reasonable Tribunal, considering all the facts, was entitled to come? That puts the case for perversity at its lowest although, of course, Mr Sethi is conscious of the fact that there are authorities, including recent authorities, which place the burden on a perversity case considerably higher than that test. But, for the moment, we are content to look at it on that basis, which perhaps includes within the perversity test an element of his alternative case that there were no adequate reasons given, never mind available, for the conclusion reached and perhaps even allows his argument that because, in this case, victimisation can be said to be akin to race discrimination, there may be the more need to set out the facts and/or the reasoning than in an ordinary case although, as I have already indicated, that was not the view of this Tribunal. But, putting the case for the Appellant at its highest, therefore, we can approach the submissions he has made on that basis.

[35]The Appellant has made a substantial number of points set out in his Notice of Appeal and this summary will not do justice to all of them, but certainly we have considered them all. His main case, although he indicated that, although first in time, it was not necessarily his main case, revolved round the question of the fate of the second letter. This is a reference to the letter of 28 January, the follow-up letter that was sent by him, when he had not had an answer to his first letter of 13 January. He complains, in relation to this, as to findings of the Tribunal. The Tribunal made findings in relation to the 13 January and 28 January letters in two places: the first is at paragraph 16. The Tribunal said as follows:

"… For Mrs Crisp's part, when she had investigated and confirmed the applicant's eligibility to take the exam notwithstanding his suspension, she had put those two letters on his personnel file."

The Tribunal returns to that, in paragraph 27, when the same point is made.

[36]Mr Sethi submits that, although there was evidence that the first letter, that of 13 January, was indeed passed to Mrs Crisp and was placed on the personal file, the fate of the second letter was not expressly dealt with. Mr Francis had no recollection of either letter, as we have indicated. Mr Sethi submits that there was no evidence given at the Tribunal, as to precisely what happed to the second letter, the letter of 28 January.

[37]It would appear that Mrs Crisp had started activating the 13 January letter, even before receiving the follow-up letter of 28 January, and her letter of 11 February does not refer specifically to either the 13 January or 28 January letter and, therefore, it seems that no specific evidence was put before the Tribunal as to what happened to that second letter. It may not have been considered in the course of the hearing of any particular significance.

[38]We have notes of evidence from the Tribunal, which indicate that there was evidence from Mr Francis as to his being asked about the letters, as we have already indicated; but the Chairman says that there was no evidence in the Chairman's notes, at any rate as to whether there was any discussion with Mrs Crisp about the letter of 28 January. In her witness statement Mrs Crisp, at paragraph 12, said as follows:

"I do not know why the [13 January] letter was not there [that is, on the Training Department's file] but consider the most probable explanation to be that, by mistake, no copy of Mr Hussain's letter of 13 January was taken when training passed it to me. I did not return the papers to training but placed them on Mr Hussain's personal file. This was not a deliberate attempt to prevent Mr Hussain from taking the exam."

She there uses the plural word "papers" which may indicate, particularly if the matter was not explored in cross-examination, a reference to both letters, rather than simply the singular letter of 13 January which she refers to in the first sentence of that paragraph.

[39]Mr Sethi submits that, as there was no basis on which the Tribunal could reach the conclusion that the 28 January letter was passed to Mrs Crisp and put by her on the personal file, therefore it is an inference that the Tribunal could and, in his submission, should have drawn that the 28 January letter had remained in the Training Department; and consequently that, even if the Training Department had missed the 13 January letter, the 28 January letter, which included a further copy of the 13 January letter, may have remained or, he says, in the absence of evidence, must have remained, with the Training Department. This was thus a matter which the Tribunal ought to have considered, when they concluded that there had been "the falling through the cracks" to which I have referred, namely that if in fact the Training Department retained information about Mr Hussain's application, it makes it the more likely that his name was put on a list by the Training Department in the ordinary way, rather than excluded from consideration because the whole matter had been passed into the lap of the Personnel Department and never passed back again.

[40]This makes a powerful closing speech submission. It is unclear to us whether he put it, at any rate, in those terms at all. There was plainly some reference to the second letter in the annotated notes to his closing submissions, but in nowhere near those terms, and certainly the consequence of the absence of evidence as to the fate of the second letter, is not at all spelt out in those submissions and it is wholly unclear to us that it would or could have been. Our conclusion as to this is as follows:(1) That Mr Sethi does not succeed in establishing that there was no evidence on the basis of which the Tribunal could have reached the conclusion that it did in paragraph 16 of its decision. It appears to us that it was an inference perfectly open for the Tribunal to come to, that, albeit there was no specific evidence about it, other than the short paragraph of Mrs Crisp's statement to which I have referred, the same fate followed the follow-up letter of 28 January as had occurred in relation to the letter of 13 January, namely that it went out uncopied straight over to the Personnel Department, and remained with the Personnel Department, and was excluded from consideration by Mr Francis.

(2) Even if it was not open to the Tribunal to reach that conclusion, particularly given that this does not appear to us to have been a large feature in the submissions below in any event, it does not appear to us to be capable of being argued that it was perverse of the Tribunal not to consider this matter, or that it would in fact have been a material factor, such as to cause them to change their minds in any event, and thus, however low the test of perversity is put, it is not reached in relation to this aspect; and, further, it is not open for this Tribunal to say that this particular possible factual argument, or submission, not having been emphasised or dealt with by the Tribunal, or they having reached some conclusion in relation to it on which there was no, or no sufficient evidence, could begin to found a case for challenging the very clear conclusions of the majority of the Tribunal that this was incompetence and not deliberate conduct.

[41]The second ground raised by Mr Sethi is by reference to paragraph 26 of the Decision (to which I earlier made reference) when the Tribunal suggests reasons why the letter was passed directly to Mrs Crisp. Mr Sethi makes submissions in relation to the following sentence, which I now set out in full:

"The majority believes that the applicant's original application of 13 January was passed by the Training Department directly to Mrs Crisp as being the senior person for both the Personnel and Training Department either because it raised a question as to whether the applicant, being under suspension, would be eligible to take the exam which would not probably be known to the Training Department or because having regard to the previous proceedings any correspondence from it was treated with caution."

He submits that the Tribunal ought to have decided between those two possibilities, and had they decided between the two and gone for the latter, then that would have been, at any rate, a large step towards a conclusion on victimisation on the basis alleged by the claimant.

[42]We are satisfied that that is not arguable and, at any rate, does not render the decision of the Tribunal challengeable, certainly not perverse. They were not, in our judgment, obliged to reach a conclusion in this regard. What they were being asked to conclude was that there had been a deliberate omission of this Appellant from the exam, and in their conclusion they decided that it had been incompetence, because of the transfer of the document, or documents, from the Training Department to the Personnel Department in the way described, and they then speculated as to the reasons why that occurred. That it occurred, they were entirely satisfied about; and therefore in our judgment, they did not need to do anything other than suggest a possible explanation as to why it occurred. But, even assuming we were wrong in that regard, and assuming therefore that, as Mr Sethi suggests they should have, and in the notional position that we are addressing, did go for the second alternative, namely that the reason it was transferred to the Training Department was in order to treat the matter with the more caution, "with kid gloves" as we mentioned earlier on in this judgment, it does not appear to us that that leads anywhere down the line of a conclusion that there was victimisation. What on that basis would have occurred would have been that, in order to ensure that the application was properly and fairly dealt with, and on the basis that it should be dealt with "with kid gloves", it was to be given special treatment, as it was in fact. However, there was then the incompetence to which we have referred. That takes the Appellant, even if that finding had been made, nowhere down the line to establishing that this was a deliberate intention to exclude the Appellant from the exam. The only inference that can be drawn would be that the intention was the reverse, namely to handle it "with kid gloves", if that was the conclusion, to ensure that it was properly dealt with, and not in order to exclude him from the exam. The necessary conclusion, if the Tribunal were to reach that conclusion, would have been that it was siphoned off from the Training Department in order to make sure that it was lost and forgotten about, and that was not the conclusion, or anywhere near the conclusion, of the majority. The act of victimisation was not the separate treatment of the application, but would have been the deliberate omission from the exam, and that is a different act of victimisation, and was found not to have occurred.

[43]There was then a number of matters which Mr Sethi submitted, and these constituted the third ground. He submitted that there was inadequate reasoning or that separately or cumulatively the points he makes justify a case of perversity. The first of such sub-issues is that the Tribunal draws no inferences from the absence of the two Governors (two, because there was a change-over during the relevant period between Governors Serjeant and Cann) from the Tribunal. Mr Cann signed the Annex D to which we have referred. The earlier application, the subject of the protected act, had complained that Governor Serjeant had inadequately investigated matters, such that he too would be part of the allegation of discrimination, and there was some minor mention of Governor Cann also and thus, it is suggested they could have had a motive for victimisation and there was no positive case made by the Appellant against them, nor could there have been, but the Respondent could have been expected to have called them because the Governor was overall in charge of the system.

[44]Mr Sethi does not allege that this is a case in which the Tribunal erred in not calling these witnesses of their own motion, and for understandable reasons he, himself, made no application for a witness summons. He did argue in his closing speech that inferences should be drawn from the absence of those two witnesses and he submits that the Tribunal should have drawn hostile inferences. In fact, although it is mentioned in the course of the decision by the Tribunal that neither of those two witnesses gave evidence, the Tribunal did not draw any hostile inferences. He said they should have done. It is plain, he says, therefore, there was an evidential vacuum.

[45]It is plain that the Tribunal took into account the evidence they did hear. They accepted the evidence of Mr Francis that he had played no role in relation to these applications by the Appellant which carries with it, as we earlier indicated, the negative factor that he was not involved in any conspiracy, or acting under any instructions from the Governors, to mislay the applications, or take any steps to exclude the Appellant, and there was the express finding that he did not act under any instructions by the Governors to make any alterations.

[46]As far as Mrs Crisp is concerned, her evidence was entirely believed. It is submitted by Mr Sethi that her credibility was not the be all and end all, but once again, if she had been a party to a conspiracy to exclude the Appellant from the exam, then she would have been found incredible by the Tribunal, as she was not.

[47]It appears to us that, on the evidence which was before the Tribunal, the Tribunal was entitled to take the view that they had sufficient for them to make up their minds that this was incompetence and that they did not need to hear denials by the two Governors in order to be satisfied to that effect but, in any event, that no hostile inference ought to have been found and, even if some such inference could have been drawn, it would have made no difference, and certainly the absence of it does not render the decision perverse, either taken on its own or with any of the other points.

[48]The same goes for the second sub-point which is made by the Appellant, that there was no express mention in the Tribunal that one of the grounds of discrimination, which was the subject matter of the earlier applications of protected act, was said to be of a similar kind to that now alleged, namely that on an earlier occasion it was suggested that the Appellant had been unfairly excluded from an equal opportunities course. Quite apart from the fact, of course, that his discrimination claims were subsequently dismissed, it appears to us that it would have been of no materiality, or certainly no sufficient materiality to amount to perversity not to mention it, that there had been that earlier allegation, when the issue was so clear in this case, namely was he deliberately omitted from the exam or not: a matter for a closing speech, if desired, but certainly not a matter for challenge to the finding of the Tribunal.

[49]The third sub-issue appeared at one stage to have some substance, because we had understood that it was being suggested by Mr Sethi that there was some kind of a staff bulletin which was deliberately withheld from the Appellant, quite separately from the exam procedures which, had it been sent to him, would have enabled him to find out about the exam, and that this withholding from him of something he might have been otherwise expected to be entitled to receive was a matter not mentioned by the Tribunal, and thus an important piece of evidence to support the case against the Respondent would not have been part of the ingredients. But it became wholly apparent in the course of submissions that this was a misunderstanding of Mr Sethi's submission. The Notice to Staff is what is referred to, to which we have already referred. It was a document that was sent out to all those who were taking the exam. Therefore, the fact that the Appellant did not get it does not add anything to the case that he was not summoned to the exam because he was not on the list. Had he received the Notice to Staff then, of course, he would have come along to the exam, because he would only have received it, if he had been on the list. As he was not on the list, he did not receive it. There was no separate allegation therefore, of cover-up, or deliberate omission. It is all part of the unfortunate fact that he was not on the list.

[50]In any event, the allegation was that he ought to have received the Notice to Staff. When pressed as to how it came about that he ought to have received it, Mr Sethi accepted that there was no specific evidence, as he recollected, and it all came back in the end to the case that he should have been sent it, if he had been on the list, but he was not.

[51]The fourth sub-issue, which was mentioned by Mr Sethi, related to the fact that there were apparently some notes taken by Mrs Crisp of her investigation into the matter which were not disclosed by her, and, as to which no order for disclosure was sought at any time by Mr Sethi but with regard to which, he submits, the Tribunal ought to have drawn adverse inferences. It appears to us that, particularly as he did not seek an order for their disclosure, particularly as he himself asserts that Mrs Crisp's subsequent thoughts and actions were of no particular relevance, the absence of criticism by the Tribunal of Mrs Crisp for not disclosing the documents, particularly as it would only, at best, go to her credibility, as to which there were other findings by the Tribunal, is just the kind of challenge, of a total collateral kind, which is discouraged by legislation, in emphasising that the appeals to this Court are on points of law and not points of fact.

[52]The sixth of the sub-issues relates to the fact that, in his submission, there were inconsistencies in the various explanations that were given at various times by the Respondent in relation to what had occurred. It is true that the initial reaction by the Respondent, as recounted by me earlier in this judgment with regard to Mrs Pickup, was that it might be that it had been assumed that he was withdrawn because he had not attended classes at Feltham. It soon became apparent that that was not the case and, although in fact that was repeated by reference to Mrs Pickup's evidence in the answer to the questionnaire, Mrs Crisp's answer was the one which was relied upon and which became ever clearer to have been the reality, so far as the Respondent is concerned, namely, that, like it or not, they had to accept there had been a very considerable incompetence, and it was simply the failure by the Training Department to keep a record, coupled with Mrs Crisp's failure to notify the Training Department, that had caused the problem.

[53]All those inconsistencies are as consistent with a slow realisation of a reluctance to accept incompetence, as they are with a deliberate cover-up, and nothing further can be made of that alleged failure by the Tribunal to rely on inconsistencies when any inference which Mr Sethi put forward would be, at best, equivocal.

[54]The next small point was hardly pursued by Mr Sethi, namely that the Tribunal did not mention the fact that there are no minority ethnic senior officers at HMP Bullingdon, or draw any inferences from it. It was hard to see what inferences, if any, could be drawn from that, when this is not a discrimination case but a victimisation case, as he himself accepted. He then finally relied, by way of sub-issue, on the fact that there was no sufficient consideration of the issue of credibility, that the Tribunal too easily relied on a conclusion that they reached, that both Mr Francis and Mrs Crisp were credible. That was a matter entirely for the Tribunal and, in any event, as we have already indicated, it appears to us unlikely that it could be said that the kind of deliberate cover-up, which is alleged by the Appellant here, could have occurred, if both those two witnesses were entirely honest and telling the truth, as the Tribunal concluded that they were.

[55]The fourth ground that Mr Sethi relied upon was by reference to the list apparently compiled of people who had applied to take the exam. It was that list from which it appears the Appellant was omitted, because he was never put forward for the exam. The Appellant would like to have established that he was originally put on the list but in some way erased from it. That would have required, of course, evidence very different from that which was put forward at the Tribunal, and believed at the Tribunal. In particular, it would have involved either complaisance from Mr Francis, or his active involvement, neither of which are consistent with the findings of the Tribunal. But, in any event, it was apparently originally said that there was no such document still in existence, and, on the first day of the hearing, Mr Sethi applied for its disclosure, and met that answer, and, consequently he obtained no order; and on that basis it appears that the Tribunal indicated they would draw no adverse inference about its non-disclosure, because of its being what was described as "a red herring". Overnight, or at any rate in the course of the following morning, whichever it is is not entirely clear, it became clear that such a document was still in existence, namely some kind of a list of candidates, probably in pencil as Mr Francis had opined, and the Respondents indicated that they would be in a position to have the document faxed to Court. It appears that that had not occurred by the time that the Respondents' Counsel made her closing submissions, and no application was made by Mr Sethi for an adjournment, or even for some delay while the fax arrived. When it came to his closing submission, he went ahead with them. It appears that in the course of his closing submissions, he asked the Tribunal to draw adverse inferences from the fact that the fax had still not arrived, notwithstanding what had been now revealed, namely that it did exist, and he, Mr Sethi, has told us that he recalls, although there is no evidence to support this in the decision of the Tribunal, or in the documents, that he, in the course of his submissions, invited the Tribunal to make an order for its production. The only reference to the position is in paragraph 33 of the Tribunal's Decision and it reads as follows:

"In submissions by Mr Sethi, he asked the Tribunal to review its interlocutory determination of the previous day's hearing at 3 pm in relation to issues regarding a final alphabetical list under paragraph 18."

[56]Mr Sethi suggests that that is a misunderstanding, or a misrecording, by the Tribunal because, of course, it would not have been the final list that would have been of any interest, but the earlier handwritten list, if there was such, showing the people who had made application to join the exam, to see whether that did or did not include Mr Hussain's name. The Tribunal continued:

"The Tribunal concluded it would make no order, the issue was a red herring and would not draw any adverse inference in relation to that dimension. The Tribunal unanimously pointed out to Counsel that it does not have power to review an interlocutory determination because this is not a decision within the ambit of Regulation 2(2). … The Tribunal however took note of what Counsel said and we looked at the issue in the course of our deliberations."

[57]Thus it appears that, notwithstanding it has now become apparent that the list existed, the Tribunal were not prepared to revise their conclusion of the day before, that they would draw no adverse inference from its non-disclosure. But, notwithstanding that, they considered the matter in their deliberations, namely considered the fact there was a list on which the candidates' names were entered.

[58]Mr Hussain submits not only that the Tribunal was wrong in not reviewing its decision of the day before, although he accepts he has put forward even now no appeal against that order, but that it led to error in relation to the way that they approached their decision-making. It appears to us very odd that Mr Sethi did not seek at the time, if it was so important to him, to see the document, before making or completing his closing submissions; where there had been a volunteering of the document as being available by the Respondent, and it was, in those circumstances, insufficient that in the course of his closing submissions he should make application to the Tribunal for them to reconsider the making of adverse inferences, without insisting on waiting for the document. In those circumstances it is hardly persuasive for him now to say, if he does, that this was a crucial document. However, it does not appear to us to be a crucial document. The reality is that the document was, it seems, at best, in pencil and if it had arrived by fax that afternoon it would have been only visible in pencil, or in fact a faxed copy of the pencil. It was not central to the issue, in our judgment, but in any event any inferences that can be drawn from it would not have been determinative in relation to the hearing below.

[59]Adverse inferences in relation to non-disclosure are, at best, relevant only to credibility. What the Tribunal said it considered (and we have no reason to doubt that they did consider it) was what impact such a document, leaving aside any adverse inferences in relation to non-disclosure, would have on their conclusion that the reality here was not that there had been a deliberate exclusion of the Appellant from the exam, but that he had "fallen through the cracks" from the beginning. It may well have been interesting to see the document. It would hardly be crucial unless there would something along the lines of rubbing out visible on the document, but in any event Mr Sethi did not pursue it below, and it is now too late for him to pursue it before us, and it does not render, in our judgment, the decision of the Employment Tribunal perverse or unreasoned.

[60]Finally, Mr Sethi submitted that the words which we have read from paragraph 30 of the Decision, show that the Tribunal had a closed mind. It is perhaps unusual for such strong language to be expressed by a Tribunal, that the suggestion that there had been deliberate exclusion was "fantastic", but they expressed it in conclusion, after looking at the whole circumstances. They did not say, "We came into this Tribunal not believing that HM Prison Service Agency could ever do anything so dreadful"; they listened to all the evidence and concluded, having heard the evidence, that the suggestion that was being made by the Appellant, unsupported by any evidence as the Tribunal concluded, was a fantastic suggestion, and although perhaps another Tribunal would, as Miss Downing in her skeleton argument has suggested, not use such strong language now, in the days post- Khan and other recent decisions, nevertheless it does not evidence, in our judgment in any way, a closing of mind by the Tribunal, far from it. They clearly here considered the whole circumstances very clearly and fully.

[61]In those circumstances there is no error of law. The matter which Mr Sethi briefly raised, by reference to paragraph 25, he did not pursue. Whereas it is plain to us that the reference to King was intended to be an analogy, it is equally plain to us that the Tribunal was not mistakenly thinking that they were dealing with a race discrimination case. As to facts, this is a conclusion where the Tribunal might have reached a different decision, favourable to the Appellant, as indeed the minority did, but they cannot be challenged by way of any error of law and thus this appeal must be dismissed.