ADVANCE SECURITY UK LIMITED v MR M MUSA [2008] UKEAT 0611_07_2105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0611_07_2105Case No Appeal No. UKEAT/0611/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ADVANCE SECURITY UK LIMITEDAPPELLANTMR M MUSARESPONDENT
Before
His Honour Judge McMullenDate 21 May 2008
[1]APPEARANCES For the Appellant MRS K LIEBERT (Solicitor) Advance Security UK Ltd Legal Department Suite 5 Isleworth Business Complex St John's Road Isleworth Middlesex TW7 6NL For the Respondent MR LAURENCE BRUCE (of Counsel) Instructed by: Messrs Greenland Houchen Solicitors 38 Prince of Wales Road Norwich Norfolk NR1 1HZ SUMMARY PRACTICE AND PROCEDURE Bias, misconduct and procedural irregularity RACE DISCRIMINATION Burden of proof(1) An ET did not give the appearance of bias when the Employment Judge clarified for the Claimant-in-person the racial group he belonged to for the purposes of the Race Relations Act 1976.(2) The ET erred in finding the Claimant made out a prima facie case when it constructed an inapt hypothetical comparator.(3) The ET focussed on the wrong decision-maker and the judgment was perverse. HIS HONOUR JUDGE McMULLEN QC This case is about race discrimination and Employment Tribunal procedure. The judgment represents the views of all three members of this diverse division of the Employment Appeal Tribunal. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Respondent in those proceedings against a judgment of an Employment Tribunal chaired by Employment Judge Ash, sitting at Norwich over two days, registered with reasons on 14 November 2007. The Claimant represented himself, the case having been prepared by solicitors, and today is represented by Mr Lawrence Bruce of counsel. The Respondent is represented by Mrs Karen Liebert, its in-house solicitor.[3]The Claimant claimed race discrimination. The Respondent denied discrimination and put forward an explanation for the treatment of him.[4]The issues were set out by the Employment Tribunal but, since there is some dispute about them, we will deal with them when we discuss the arguments and come to our conclusions.[5]The Tribunal decided in the Claimant's favour. The Respondent appeals. Directions sending this appeal to a full hearing were given in chambers by Underhill J. In addition, he ordered affidavit evidence in respect of the allegations of an unfair procedure at the Employment Tribunal. Affidavits were sworn by the Claimant and Mrs Liebert and comments were received from the judge and two members. However, the papers were not put back in front of Underhill J when that process was completed.[6]The Employment Tribunal directed itself by reference to the relevant provisions of the Race Relations Act 1976: Section 11, Section 41 and Section 54A setting out, respectively, race discrimination in the employment area and the burden of proof and what we hold to be some of the leading authorities which are cited in its reasons. There is no dispute as to the account of the law, given by the Employment Tribunal, in paragraphs 13, 14 and 17 of its reasons and we will not rehearse them.[7]The setting for this case is the security industry. It is closely scrutinised so that security officers are placed in a position of trust and the employers are under a duty imposed by British Standard 7858 to combat identity fraud. There are restrictions on employment of persons subject to immigration control, pursuant to the Immigration (Restrictions on Employment) Order 2004 and, in particular, by paragraph 4.4. An employer must satisfy itself that where a document contains a photograph, the person in the photograph is the person in question. There are other obligations to ensure that documents are correct. The facts[8]The Claimant is a Jordanian national who describes his ethnic group, for the purpose of the litigation, as Middle-Eastern Arab Jordanian. He arrived in the UK in 2002 and was given indefinite leave to remain. He has been working here for five years and has relevant documents being about to obtain British citizenship. He has the British Security Industry accreditation as a security officer, regarded as valuable in this field.[9]The Respondent is a major security business employing 4,000 in the UK, which was, at the relevant time, recruiting in the Norwich area for security officers. The company employs a large number of black and minority ethnic employees and at least one Jordanian.[10]Apart from the Claimant, the other actors in this drama are Mr Lee Taylor, who conducted an interview with the Claimant, and Mr Mike Sterling, who conducted a telephone introductory conversation with him.[11]The Employment Tribunal made the following findings:
"7. … We have examined the passport and it is clear beyond doubt that the passport photograph was not hanging on at one corner because on three corners the film has not in any way been disturbed. It was no doubt off at one corner, as we can see from the passport today, and it may or may not have been stuck down a bit more firmly since, but we are quite satisfied that Mr Taylor is exaggerating, and exaggerating to some considerable extent, about the condition of the passport. 8. On the day following the interview, the Claimant telephoned Mr Sterling to get some feedback on his interview. He was told he was suitably qualified for the job and there is a dispute as to whether Mr Sterling used the word 'fake'. We have considered that matter and we think on the balance of probabilities he did, but we think maybe he said it in the context that they may be fake because there was a doubt as to the condition of the passport. Mr Sterling, we remind ourselves, of course was relying very much on what he was told by Mr Taylor and did not, as far as we know, see the original of the document. 10. The point has been made in submissions that when there is a doubt about documents of course the employer is under a duty to investigate further, and the fact that the requisite number of documents may have been produced may be negated by the fact that another document is produced which conflicts with the other documents. Absolutely right. But with great respect to the Respondents they have forgotten one thing: no documents were produced which conflicted one with the other. All the documents coincide; all the documents corroborate each other – the passport, the Home Office letter and the other documents. If Mr Taylor had taken the trouble to look at some other documents, which he did not, no doubt this situation would have been avoided. What we have to decide is why he did not look at the other documents and why he summarily rejected the passport without any further enquiry. 16. We look very closely at the explanation give by Mr Lee Taylor. Quite frankly, it is simply inadequate. There is no good reason, it seem to us, and we take into account the immigration statutory instruments that have been cited to us, why Mr Taylor, in the position he was in, presented with an applicant who he is satisfied was genuine, who had leave to remain in this country and had the right to work in this country, had documents which did not conflict one with the other, which had a slightly loose passport photograph at one corner, should reject him on that basis. On that basis and on that basis alone we would have to find for the Claimant. 18. We are satisfied that this treatment was afforded on the proscribed ground; that he was rejected, that he was 'put back', so to speak; that it was put to him that these documents might be false; that he was asked to contact the Home Office; that he was instructed to get a further status letter from the Home Office, all on the basis that he was a Middle-Eastern Arab. The same treatment would not have been afforded to him if he was a white South Africa, an Australian, someone who did not come from the Middle East. We are satisfied that, consciously, that was the reason for his rejection. 19. So we find against the Respondents both on the basis of the Shamoon test, also on the straightforward basis of using the hypothetical white comparator with a passport in exactly the same condition as the Claimant's with all the other documents (and that is the true hypothetical comparator) and lastly we decide against the Respondents on the basis of Igen Ltd v Wong. We do not accept that the explanation given by the Respondents, the Claimant having established a prima facie case, is adequate and in such circumstances we are bound by law to find for the Claimant and we so do."
[12]On the basis of those findings, a remedy hearing was set up. It has not taken place yet. Two significant features of this case are that the Claimant was not refused a job but his application was kept pending. He was "put back" following advice from the Respondent that he should put his passport in order. It is described by Mrs Liebert as a dodgy passport. He declined on the ground of cost. Irrespective of that defect, at the hearing before the Employment Tribunal, the Respondent offered the Claimant employment. He declined on the ground that he would not want to work for the Respondent now. The facts relating to the allegation of irregularity[13]The EAT is the fact finding body for complaints of bias and procedural irregularity by an Employment Tribunal. Mrs Liebert gave evidence to us on two aspects of unfair procedure which are contained in the Notice of Appeal. Her unchallenged evidence relates to how the Claimant describes himself for the purposes of the Race Relations Act , and she contends that her cross-examination of the Claimant on that matter was curtailed unfairly by the judge. She said that when asking the Claimant about his claim, and that his essential claim was that he was discriminated against on the ground that he was a foreigner, an answer was given by the judge, which was that he is Middle-Eastern Arab. Further questions on that were curtailed. The Claimant gives no evidence to us on that point. Neither the employment judge nor the members makes any comment about it having seen the affidavit. We will take Mrs Liebert's evidence as correct.[14]On the second issue, it is said that the judge, without consulting the members, said at the end of the oral hearing that the Tribunal would make a decision within 20 minutes. That is disputed. The judge said he would not have said this. Both members give different accounts but deny any pre-judgment. Mrs Liebert had to acknowledge that she has only two or three years' experience in employment law and had not seen this kind of conduct before. She said it gave the appearance of being unfair since the Tribunal had listened to over an hour of submissions from her and was about to make a decision within a mere 20 minutes. In due course, on mature reflection, she did not press this point. We can give our conclusions on both points at once.[15]As to the first point, we accept the evidence of Mrs Liebert. The question is; where does it go? The Claimant was unrepresented, a litigant-in-person who, articulate in English, nevertheless has it as his second language. In essence, the point made by the Claimant is that inappropriate questions were asked. We do not consider these were inappropriate, but once an answer is drawn which, as in this case might be that he complained because he was a foreigner, something more needs to be said, particularly where the Claimant is unrepresented. The employment judge was correct to refine the nature of the Claimant's case for him, otherwise it would be an admission in cross-examination which would destroy his case and that, plainly, was not fair to him. The employment judge did the correct thing in focusing on the racial group which the Claimant had advanced as the basis upon which he was discriminated against. He was, on the one hand, Jordanian. We are told that most Jordanians are Arabs. Jordan is in the Middle-East. For it to be put to him by the judge that his complaint was he was treated less favourably as a foreigner who came from the Middle-East, from a country called Jordan and he was an Arab, was not unfair to the Respondent. It did actually focus the attention of the Tribunal on the central ingredient of any race discrimination claim, namely identifying the racial group.[16]As to the 20 minute point, we make it clear that it does not even appear to be unfair for a judge to say that a decision may be forthcoming within 20 minutes. The timing of this was important. The Tribunal had sat for a day and heard all the oral evidence. On the second morning, it had a short written document from the Claimant and one from the Respondent. It plainly was following those matters as submissions were made. To give a prediction that it would give a judgment in 20 minutes reflects the care which will have gone into the joint consideration of this matter by the three members of the Tribunal over the preceding 24 hours. To indicate that a decision will be made, or might be made in 20 minutes, does not show, to an impartial observer that the Tribunal may be treating unfairly one party or the other see Porter v Magill [2002] 2 AC 537, per Lord Hope at paragraph 102. Actually, whose unfairness is it? As Mrs Liebert said, she had produced a long document. The Tribunal was taken through it, whereas the Claimant had only a short one. Is it wrong for 20 minutes' consideration of a case having heard submissions over the previous hour? That is entirely a matter of case management and discretion for an Employment Tribunal. No error could possibly occur as a result of it. A tribunal may say how long it is likely to take in consideration. That is the normal practice in this court so that the parties will be relieved of the stress of not knowing how long a decision will be forthcoming. Thus we dismiss both of the points about irregular procedure.[17]We turn now to the substantive points and will deal with each and give our conclusions one by one. Misunderstanding of fundamental and undisputed facts[18]It is contended that the Employment Tribunal, in the passages we have cited, wrongly allocated to Mr Taylor the decision making in this case and wrongly criticised him for making a summary decision without further enquiry. Our approach to both of these matters is affected by the judgment of Ralph Gibson LJ in British Telecommunications Plc v Sheridan [1990] IRLR 27, who indicated that misunderstanding or misapplying the facts may amount to an error of law where the Tribunal has got wrong a relevant and undisputed fact and then reached further conclusions which demonstrates the initial error. Again, our approach is made easy by the concession today by Mr Bruce that the Tribunal did indeed make those two errors of fact, for it was Mr Sterling who made the decision and he did, himself, inquire into the relevant documents submitted by the Claimant, albeit they had been faxed to him. So both of the criticisms of the Respondent, by reason of the actions of Mr Taylor, fail and thus the question is, as Mr Bruce acknowledges, whether or not the errors vitiate the whole decision. We will return to this point in due course, but it has to be said that the relevant question in a discrimination claim is to look at the mental processes of the person said to be discriminating for as Elias J in Law Society & Ors v Bahl [2003] IRLR 640 at 84, citing the speech of Lord Nicholls in Nagarajan , [1999] IRLR 572 said:
"Fourth in determining whether there has been direct discrimination, it is necessary in all save the most obvious cases for the tribunal to discover what was in the mind of the alleged discriminator. Since there will generally be no direct evidence on this point, the tribunal will have to make appropriate inferences from the primary facts which it finds. These points are succinctly made in the following passage of the judgment of Lord Nicholls in Nagarajan (p.575): 'Section 2 should be read in the context of s.1. Section 1(1)(a) is concerned with direct discrimination, to use the accepted terminology. To be within s.1(1)(a) the less favourable treatment must be on racial grounds. Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in the obvious cases, answering the crucial question will call for some consideration of the mental process of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.' "
The observations of Lord Nicholls were adopted and followed by Lord Rodger in Shamoon v Chief Constable of the RUC [2003] IRLR 285 at paragraph 134.[19]We reject the contention that the mental processes can be a joint issue. It is plain, from both Elias J's judgment, approved by the Court of Appeal, see [2004] IRLR 799 and the speech of Lord Nicholls, that the task is to look at the mental process of the discriminator. That two people discriminate, of course, is possible, but when examining a corporate respondent, it is necessary to find an individual human actor and, in this case, the Tribunal got the wrong one. There is no evidence that the mind of Mr Sterling was poisoned by anything of a race discriminatory nature said to him by Mr Taylor. The relevant examination, therefore, was of his, Mr Sterling's, mental processes. He gave evidence as to why he decided to do as he did and it seems to us that when the Employment Tribunal got the wrong man it made an error which vitiated its decision. It follows that the examination, such as there was, of mental processes in this case would have been of Taylor's. Mr Sterling gave only one explanation, which was that he found the problem in the Claimant's application was entirely associated with the imperfect passport photograph. If this were the only issue it would have to go back to the Employment Tribunal for it to re-examine. A prima facie case[20]We then turn to ground two: the criticism of the Tribunal that it had found that Claimant had established a prima facie case. It is contended by Mr Bruce that the Tribunal was entirely correct in showing that the Claimant had presented as a well qualified applicant who was of a different race from others and who had not been given employment. The correct approach to this is set out by the Court of Appeal in Madarassy v Nomura International Plc [2007] IRLR 246, where Mummery LJ, giving a judgment, with which Laws and Morris Kay LJ agreed, said this:
"56. The court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."
[21]He went on to explain the opportunity given to an employment tribunal to take evidence by way of explanation from a respondent when considering the first stage under the burden of proof, in that case of sex discrimination but relevant to ours. He said this:
"71. Section 63A(2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy. "
[22]The next issue in taking that approach, which is based upon acceptance by the Court of Appeal of the judgment of Elias J, President, and members in Laing v Manchester City Council & Ors [2006] IRLR 748, was what was the explanation given? In our judgment, the submission of the Claimant is correct and is not rebutted by Mr Bruce's contention that the Tribunal was looking at a number of facts. In this case, the Tribunal did not ask itself what more was required than the simple differences of treatment and racial group. That is clear from the findings which we have cited above in paragraph 15 of the Tribunal's judgment. The Tribunal does make exactly the error in Madarassy in our respectful judgment, for it shows that the Claimant established a prima facie case of discrimination simply from being a Jordanian national and an Arab and not being given the job immediately. The explanation for that was given by the Respondent; and we uphold the Respondent's submission that the Tribunal was, indeed, jumping from the conclusion that it felt the attitude of the Respondent to be unreasonable to it being discriminatory on the ground of race. This is contained in paragraph 16. That is the basis from which it inferred race discrimination by, as it was, Mr Taylor. We know that is wrong, but even if it were Mr Sterling it is still wrong because the Tribunal has fallen into what Mrs Liebert describes as "the Zafar trap", see Zafar v Glasgow City Council [1998] IRLR 36. It inferred discrimination from unreasonable conduct and that is not correct. As she engagingly summarised the approach of Elias J in Bahl , discriminatory conduct is unreasonable but unreasonable conduct is not necessarily discriminatory. See paragraphs 85 and 101.[23]In this case, there was no criticism of the genuineness of the belief of Mr Sterling that the passport photo was loose and that he had doubts about it. In those circumstances, the Respondent had put, at the prima facie stage, material upon which the Claimant could not assert that there was discrimination and the Tribunal was, therefore, wrong in those two findings.[24]Its findings are also affected by its choice of comparator, for it is necessary to select an appropriate comparator in order for any claim to reach a prima facie case of discrimination. The Tribunal found the correct comparator for the Claimant was a white South African, an Australian, someone who did not come from the Middle-East. The finding is muddled and wrong. Even Mr Bruce, in an illuminating image, said he was on very thin ice when he made this submission. He is quite right. Not only is the ice thin but he has unfortunately fallen through it in trying to support the Tribunal's judgment. The correct comparator for the Claimant is someone who has a defect in their passport. Mr Bruce acknowledged, at least, that it was relevant for the purposes of Section 3(4) of the Race Relations Act - the like for like inquiry - to consider whether there was something suspicious about the documentation of an applicant for employment by the Respondent. In this case there was. There is no doubt that Mr Sterling was genuine when he decided that there was something dubious about the photograph. That means that an attribute which must be factored into the relevant comparison is having a passport in the same condition as the Claimant's. Nowhere does this appear in the hypothetical comparator constructed by the Tribunal.[25]Secondly, the comparison is narrowed. Since we hold that the correct comparison has to include that attribute, it does not have to include the colour of the comparator's skin. The comparator is someone with a defective photo who is not of the same racial group as the Claimant. The Tribunal here wrongly invokes colour in the comparison. It shows that the comparison it had in mind is with a white South African and, we take it, Australian means a white Australian, and the qualification of someone who did not come from the Middle-East really means that both South Africans and Australians do not come from the Middle-East. But if what the Tribunal meant was someone who did not come from the Middle-East, it has committed another error. For the purposes of illustrating the error, it is necessary just to point to the fact there is at least one other ethnic group in the Middle-East: Jews. Thus the Tribunal made an error in its construction of the comparator. Construction of the comparator is of the essence of a claim; see Igen Ltd v Wong [2005] IRLR 258, paragraph 34 in the judgment of Peter Gibson LJ and a Tribunal which gets the comparator wrong will err, see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 at paragraph 39.[26]In constructing a prima facie case, the Tribunal has, therefore, committed errors in the selection of the comparator and in falling into the " Zafar trap". Perversity[27]We then turn to ground three, which is perversity. We acknowledge that the task for a successful Appellant is difficult; see Yeboah v Crofton [2002] IRLR 634 CA, per Mummery LJ, where an overwhelming case must be made out. The contention here is a combination of the arguments addressed to us in respect of the previous grounds. We have already found the Tribunal made a judgment based upon undisputed evidence which was wrong and, therefore, that constitutes a perverse finding. There is also perversity in the approach of the Employment Tribunal to the evidence given by Mr Sterling as to the needs of the security industry and the problem it had with combating identity fraud. The Tribunal here did perversely reject the explanation given by the Respondent, based upon the material which it had in front of it, when it considered the British Standard and the Immigration Regulations against what it was told in unchallenged evidence about the needs of the business for combating identity fraud. No reasonable Tribunal would have dismissed those explanations and this is a case which meets the test of an overwhelming argument. Conclusion[28]The Employment Tribunal has committed a number of errors. These are not errors which can be dealt with by remission to an Employment Tribunal. As we have held, the Claimant failed to make a prima facie case for the purposes of Section 54A. He had not identified to the right standard who the correct comparator is, nor did the Employment Tribunal focus upon the correct decision maker. It is submitted that there is only one conclusion. We agree. There is no point in sending this case back. If the only error was to focus the Tribunal's attention on Mr Taylor and not Mr Sterling, that would be different, but it made a number of errors which cannot allow the decision to stand. When a claimant fails to make a prima facie case, the correct approach is to dismiss the case, and since that is our conclusion on appeal, we allow the appeal and hold that the Claimant failed to prove his claim of race discrimination.[29]We would very much like to thank both Mrs Liebert and Mr Bruce for their succinct arguments today. The appeal is allowed.