ADECCO UK LTD v MS F ALI [2007] UKEAT 0554_06_2302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0554_06_2302Case No Appeal Nos. UKEAT/0554/06/MAA & UKEAT/0094/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ADECCO UK LTDAPPELLANTMS F ALIRESPONDENT
Before
His Honour Judge Ansell Mr J Mallender Ms B SwitzerDate 23 February 2007
[1]APPEARANCES For the Appellant MISS JUSTINE HOW (Of Counsel) Instructed by: Adecco UK Limited Adecco House Elstree Way Borehamwood Herts WD6 1HY For the Respondent MR IAN DUNCAN Solicitor Messrs Mackintosh Duncan 103 Borough High Street London SE1 1NL SUMMARY RACE DISCRIMINATION Burden of Proof Other Losses Tribunal failed to make key finding to discrimination case as to whether at the time of the interview the position was still vacant – conflicting findings within the decision remedies decision failed to assess the loss of a chance. HIS HONOUR JUDGE ANSELL This has been a hearing of an Appeal against a liability decision of a Stratford Tribunal who heard the case on 15 June 2006 and who in a Reserved Decision sent to the parties on 14 August unanimously found that the Claimant's claim for discrimination both on racial and religion or belief grounds was well founded.[2]Subsequently although it is not formed part of today's Appeal an award of compensation was made by the Tribunal who held a Remedies Hearing on 20 October and awarded a sum of £5,400 loss of salary and £3,000 injury to feelings making a total of £8,400. An appeal has been filed against that decision and indeed was due to be sifted this week in the Preliminary Hearing system and we shall refer back to that again in a moment.[3]The essence of the Tribunal's findings was that the Appellants, a specialist employment agency had failed to put the Respondent through for a position with Citigroup because of her race, ethnicity and perceived religion and in particular because when she attended for the interview for the particular position she was wearing a traditional Muslim dress and headscarf. The essence of the Tribunal's decision is that at the time when the interview took place with Ms Cunningham of the Appellants which took place on the afternoon of the 20 September 2005 a position with Citigroup was still available. At the heart of the Appeal in this case is a complaint that within the Tribunal's fact finding process and in particular within their process of finding primary facts in order to shift the burden of proof under the Burden of Proof provisions both Section 54A of the Race Relations Act and Regulation 29 of the Employment Equality Religion or Belief Regulations 2003, the Tribunal had omitted to make what had to be a key finding in the case namely that the position was available at the time of the interview and that because of Ms Ali's dress and headscarf and all of that meant that she was not put forward for the position.[4]The background facts are that the Respondent is by race or ethnicity a black African Muslim woman who wears traditional dress and a headscarf. She has considerable IT skills as well as a chemical engineering degree obtained at University College London. The Appellant is a specialist recruitment agency finding staff for banks with a number of branches. The Tribunal was concerned with their branch at Devonshire Row at which a Ms Cunningham worked and most of the work for that branch related to finding staff for one client Citigroup in Canary Wharf and indeed we understand that Miss Thompson who was also an employee of the agency was based at Citigroup's premises.[5]On 25 August Citigroup registered a vacant post for a risk control administrator and in the next few days the Tribunal found that the Respondents alleged that they put forward both a Miss Patel and Miss Pusey, a black woman for that job. They also contend that Miss Pinto, a white woman was also put forward. The recruitment was put on hold at the end of August until 8 September when they changed the specifications slightly putting more emphasis on the need for administration. The Claimant had approached the Respondent at its Canary Wharf branch expressing an interest in seeking employment within banking. She was referred to the Devonshire Row branch and made contact on 14 September. The initial interview made on 14 th was for the Respondent to attend the offices for interview on 21 September. However, on the morning of 20 September, the day before the interview, the Tribunal found that Ms Cunningham contacted the Respondent informing her with a possibility of a position which might suit her and asked her to come in for an appointment that self same day.[6]At paragraph 3.9 of the Tribunal's findings were that Mrs Thompson told the Tribunal that early on the morning of the 20 th she was informed by Citigroup the position had been filled internally and she communicated this to the Respondents' recruitment consultants, including Ms Cunningham. She produced an internally generated document showing an email to this effect which was circulated at 10.53am. However, the Tribunal then went on to comment that there was no confirmatory evidence was adduced from or by Citigroup, nor was there corroborative evidence that the position was filled internally was the same one as that applied for by the Claimant.[7]The Tribunal accepted Ms Cunningham's evidence that she became aware of this email about an hour later namely at about midday. The Tribunal commented and noted that Ms Cunningham did not telephone the Claimant before hand to inform her that the position had been filled but allow her to come to the pre-arranged interview. That interview took place that afternoon. It was short. There was a dispute about the events that took place. The Tribunal made it clear that they accepted Ms Ali's version of events which is that it was only at the end of the interview that she was told that she was not suitable as her work experience was biased in favour of IT rather than administration. She claimed no mention was made about the need for banking experience. The Tribunal accepted that and then the Tribunal went on to say this:
"…She says (referring to Ms Ali) that although she lacked administration experience she asked for her name to be put forward to test the reaction of Citigroup and it was only at this stage that she was informed by Ms Cunningham that the post had been filled."
As we have indicated the Tribunal in paragraph 3.1.3 indicated that they preferred that version of events and the Claimant's belief was that she had been discriminated because it was only when Ms Cunningham saw her and became aware of her race/ethnicity and her headscarf that she was not put forward.[8]The Tribunal was therefore satisfied that Ms Cunningham did not inform the Claimant the position was filled until after conducting the interview. The Tribunal also found that Ms Cunningham made no attempt to contact Ms Ali after the interview to suggest any other vacancies that were available. At paragraph 5 of the Tribunal, they said this:
"…Although there is evidence that the Respondent, through Mrs Thompson, was aware the post was filled by 10.53am (and we stress the use of the word the post) and that Ms Cunningham became aware of this fact within about an hour, the reaction of Ms Cunningham in not contacting the Claimant and asking whether she still wished to attend interview that afternoon is surprising and calls for an explanation from the Respondent."
[9]The Tribunal's conclusion on primary facts was set out in paragraph 6 of the Decision and they say that the Tribunal is satisfied that it could conclude that the Respondent committed an act of discrimination and the reason that the Claimant was not put forward for the position with Citigroup was because of her race/ethnicity or perceived religion. They then shifted the Burden of Proof and came to a view that the Respondents had not discharged that Burden by showing that it did not discriminate against Ms Ali and made the findings that it did.[10]Paragraph 6 therefore, is at the heart of the Tribunal's findings and the criticisms that Miss How makes essentially about that finding is that the Tribunal have not in clear terms stated whether or not there was a position open at the time of the interview. She argues that the whole basis of the discrimination is that this lady was not put forward for the position because of her race/ethnicity and what Ms Cunningham saw at the interview, yet the Tribunal make no findings as to whether or not that position was still open. She argues that whilst they may have skirted round the issue and raised some matters that caused them concern they have not made that key finding.[11]Mr Duncan argues that on reading the Tribunal's Decision as a whole and the Tribunal's conclusions on discrimination it can only be read sensibly if it is on the basis that the Tribunal were not satisfied with the employer's evidence that the position had been filled. He points first of all to the comment in paragraph 3.9 where having dealt initially with the email being circulated at 10.53am the Tribunal made this comment "No confirmatory evidence was adduced from or by Citigroup, nor was there corroborative evidence that the position filled internally was the same one as that applied for by the Claimant.". Miss How argues that on the face of the documents that were presented to the Tribunal that in any event is a perverse finding because they were presented with a computer generated web based record that clearly shows the nature of the job and the fact of the withdrawal of the position at 10.53am. We understand from Ms Ali that the Tribunal were not satisfied that that document that she referred to the job that she was applying for.[12]The comment about the lack of cooperation is repeated at the end of paragraph 7 of the Decision where the Tribunal say this:
"…there is no confirmatory evidence from Citigroup, which could so easily have been obtained, dealing with the chronology of the post sought by the Claimant, that it was suspended for a time; that the specification changed, or that it was filled internally within their organisation."
In addition Mr Duncan points to two further matters one of which is that Ms Ali was not contacted before the interview to tell her that the position had been filled and the second one was the finding by the Tribunal that she was not told about the position being filled until the very end of the interview once as the Tribunal found she had pressed Ms Cunningham to be put forward for the position. Finally he reminded us of as it were the third strand of the strange behaviour that the Tribunal found which was Ms Cunningham's failure to enquire after the interview and to contact Ms Ali about any further appointments.[13]Indeed, on one reading of the Tribunal's Decision that failure to speak to her after the interview is almost set up by the Tribunal as a separate head of discrimination as the Tribunal in paragraph 9 speak of it being consistent with the Claimant not being considered for future vacancies on the grounds of race or religious discrimination. However, it seems to us the better way of looking at that paragraph is to simply view it as the Tribunal seeking further evidence in support of their main argument that she was not put forward for the original post because of discrimination.[14]Miss How argued that although the Tribunal raised these inconsistencies they failed to draw matters together and make the clear finding that they should have made in order to base the finding of discrimination. Indeed she argued that the reverse Burden of Proof cannot begin to apply if the Tribunal have not made clear findings of primary fact and that of course is a requirement that is well known from many recent cases flowing from this Court over the last few years that deal with the importance of finding primary facts and making clear findings on primary facts before the Burden of Proof shifts whether it would be under Section 54 or under the Regulations. In addition she argued that some of the Tribunal's findings were indeed perverse in terms of the fact that they appeared to have ignored the web based document and ignored the reasons given by Ms Cunningham as to why she did not make contact with Ms Ali after the interview.[15]The bulk of the Tribunal's findings do not sit comfortably with the sentence in paragraph 5 where they find specifically "there is evidence the Respondent through Ms Cunningham was aware the post was filled by 10.53am and that Ms Cunningham became aware of this fact within about an hour". Mr Duncan argued that the reference to the words "the post" in that sentence is simply to the post that Ms Cunningham was talking about. The Tribunal then go on to say that they are not satisfied that that was a self same post that sentence to our mind does not sit comfortably with the Tribunal's overall findings of discrimination.[16]We are left regrettably with the view unanimously held by all of us that the Tribunal's findings are not sufficiently clear on this key issue and whilst they have raised doubts about the Appellant's case that the post was no longer available at the time of the interview they have not made clear findings to that effect. The Tribunal were required to make such a finding in order to base their finding of discrimination and in particular that there is an inconsistency between the sentence in paragraph 5 and other findings in the Decision.[17]Regrettably, it would have been straightforward for a Tribunal to have made the finding if they wanted to that they were satisfied that the position was still available at the time of the interview but they should have said so and should have said so in clear terms because that would have then formed as it were a clear basis for the findings that they went on to make. The issue then arises as to what should flow from our conclusion. One view may be that we would simply send the matter back for the self same Tribunal to make supplementary findings on this particular issue. But the matter unfortunately does not rest there as we have mentioned there is an appeal against the remedies finding and Judge Ansell as well as the person responsible for the sift is of the view that there are defects in the Tribunal's fact finding as far as the remedies situation is concerned. For example, the Tribunal have not made any assessment within the Remedies Decision as to the chances that Ms Ali had of actually succeeding in the position if indeed there was a position but it seems to us the Remedies Decision also required a clear finding as to whether or not there was or was not a post available.[18]If there was a post available then the next stage would be to try and assess the chance that Ms Ali would have succeeded in obtaining that position. The damages appeared to have been awarded on the basis that she was in post and lost the job and how long will take her to find another job but that of course is not the appropriate method with a case of this sort. What the Tribunal have to assess when someone has been deprived of the right to seek a position or interview is the chance that that person would have succeeded and therefore it is a loss of a chance that has to be assessed.[19]Overall therefore one is left with the clear impression that there are unfortunately some faults in the fact finding process of the Tribunal in both the Remedies and the Merits Decision and we will order a new hearing. It should be to a new Tribunal who will have to consider the whole case afresh. We realise this will cause distress to Ms Ali whose course has succeeded as far as she is concerned thus far. But we hope that she understand the reasons why we have taken this course of action.[20]We would hope that bearing in mind the sums involved it might still be possible to mediate some form of settlement of this claim on as it is perhaps a no fault basis but the employers particularly might be able to take a realistic view of the economics involved and having yet more hearings involved for the sort of sums that are involved in this claim. It may well be that Ms Ali's award may not eventually be as large as she originally received because of the loss of a chance being properly assessed although the Vento portion may in fact still remain. We hope perhaps with those comments that there can be some sensible discussions between the parties who are both ably represented with a view to settling this action without there being yet more Tribunal litigation involved. There must it seems to us be a sensible economic basis for resolving the matter.