Case No: A1/2001/0182
Neutral Citation Number: [2001] EWCA Civ 2005
IN THE HIGH COURT OF JUSTICE
CIVIL DIVISION
(ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL) 
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 18th December 2001.
B e f o r e :

                                                            THE PRESIDENT
LORD JUSTICE WARD
and

LORD JUSTICE KEENE

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	SHAWN SCOTT	Appellant	
	
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LONDON BOROUGH OF HILLINGDON	
Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
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Miss Gemma WHITE (instructed by Hodge Jones & Allen for the Appellant)
Mr J McMULLEN Q.C. and Professor R LEWIS (instructed by Corporate Legal Services, London Borough of Hillingdon for the Respondent)

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JUDGMENT
(As Approved by the Court)
Crown Copyright ©

LORD JUSTICE KEENE:

 1      	This is an appeal against a decision of the Employment Appeal Tribunal, 
presided over by His Honour Judge Peter Clark, whereby that Tribunal allowed an 
appeal by the London Borough of Hillingdon ("Hillingdon") against a finding by an 
Employment Tribunal that Mr. Scott had been victimised.   
2.	Mr Scott is of black Afro- Caribbean racial origin.   He holds an Honours degree in Chemical Sciences and a Masters degree in Public Social Administration, specialising in housing policy and management.   From 1 April 1992 until 31 December 1995 he was employed in the Housing Department in the London Borough of Ealing ("Ealing") as a housing advisory service manager.   He subsequently joined the Housing Department of the Royal Borough of Kingston-upon-Thames.   In February 1996 he presented a complaint of racial discrimination against Ealing to an Employment Tribunal by way of an originating application.   
3.	On 29 January 1997, whilst his complaint against Ealing was still waiting to be heard, he applied to Hillingdon for the post of Housing Needs Manager in the Housing Department.   That post had been advertised nationally.   He, with three other applicants, was shortlisted for the post following a selection process administered by two officers of Hillingdon, Mr Cheales and Mrs West.   The four shortlisted candidates were interviewed by a panel of three councillors, Mr Davey, Ms Allen and Mrs Dann on 2 April 1997.   Following those interviews the panel selected one of the four, a white male candidate, DW, for the post.   
4.	That decision, so the Employment Tribunal found, was made by the three councillors on 2 April 1997.   On the same occasion they decided that DW was the only candidate who was appointable.   In the event DW declined to take up Hillingdon's offer of the post and on 16 April 1997 the job was readvertised in the press, with a note that previous applicants need not reapply.   The appellant was distressed by this and telephoned Mr Cheales on 22 April and Mrs West on 1 May requesting feedback.   
5.	On 19 May 1997 the appellant's tribunal case against Ealing commenced and on 21 May it was adjourned part heard.   On 10 June 1997 Mr Scott presented his first originating application against Hillingdon to the Employment Tribunal alleging direct race discrimination.   The unlawful discriminatory acts alleged were first, Hillingdon's decision not to employ him and secondly, the decision not to consider him for the post if the preferred candidate, DW, dropped out.   
6.	The readvertised post was eventually offered to and accepted by an applicant of Asian racial origin in June 1997.   The resumed hearing of the appellant's case against Ealing began on 4 November 1997, but the claim was then settled.   However, during the hearing Mr Scott learned of communications between officers of Hillingdon and Ealing about his complaints against each local authority.   
7.	That led him to present a second originating application against Hillingdon, this time alleging victimisation.   In this application, dated 2 February 1998, he alleged in essence that Hillingdon's decision not to appoint him was made because of the action which he had taken against Ealing.   The scope of this complaint was subsequently extended to include the decision not to consider him for the post if DW were to decline it.   The case which he brought under this second originating application was succinctly summarised by the Employment Appeal Tribunal in its decision at para. 13:
"It was his case that he had done a protected act within the meaning of Section 2 (1)(a) of the Race Relations Act 1976, that is, brought a complaint of unlawful racial discrimination against Ealing in February 1996.   It is not disputed that that was a protected act within the meaning of Section 2(1)(a).   He alleged that the decision by Hillingdon on 2 April 1997 not to appoint him to the Housing Needs Manager Post and thereafter not to further consider him for that post if and when the chosen candidate, DW, dropped out, was less favourable treatment by reason of his having done that protected act than treatment afforded to others who had not done a protected act.   The issue was whether he had established the causal link between his non-selection for the post and the protected act."
8.	The Race Relations Act 1976 section 2(1), in so far as material for present purposes, provides as follows:
"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has - 
(a)     	brought proceedings against the discriminator or any other person under this Act; or
(b)	…………………
(c)	…………………
(d)	…………………
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
9.	It is not in dispute that to establish victimisation under that provision the 
complainant must establish that the discriminator knew or suspected that the complainant had done the protected act.   Without such knowledge or suspicion, there could be no causal link between the protected act and the less favourable treatment.   In the present case the emphasis of Mr Scott's complaint was on alleged knowledge on the part of the councillors on the panel of his protected act.   That is accepted by Miss White on behalf of the appellant.   
10.	The Employment Tribunal found that the panel at the final interview were not given copies of the notes made by the officers, Mr Cheales and Mrs West, at the initial interview, nor did they have copies of the answers which had been given by the candidates on that occasion or the scores attributed to them by the officers.   The three councillors did have the four candidates' application forms, the job description and specification for the post, and any test material supplied by the candidates at that initial interview.   
11.	The Employment Tribunal had, of course, to deal with the complaint of direct discrimination, as well as with the complaint of victimisation.   On the former complaint the Tribunal applied the approach indicated in King v Great Britain China Centre [1992] ICR 516, 528F-529C.  It concluded that the appellant had been treated less favourably than others and that there was a difference in race.   That left the crucial question in this part of the case: was the treatment on the grounds of Mr Scott's race?   Hillingdon had put forward the explanation that Mr Scott did not have one of the essential qualities necessary for the job, namely the ability to communicate orally with a non-professional audience.   The Tribunal found that difficult to accept.   But in the end it did not conclude that he had been treated less favourably because of his race.   There is no appeal against that finding, even though the Tribunal's reasoning on that issue may seem somewhat strange.   
12.	The Employment Tribunal's Extended Reasons then continue as follows:
"So what, if anything, is the explanation for the less favourable treatment?    We know from the guidance in King that we must look at the respondent's explanation and not supply our own, but from a perusal of the primary facts we believe that there is an explanation which we can infer."
13.	It then set out a number of facts, to which it will be necessary to return, but including the denial by all three councillors, who had given evidence before the Tribunal, of any knowledge of Mr Scott's race discrimination claim against Ealing at the time of the interviews on 2April 1997 or indeed until very much later.   The Extended Reasons then continue as follows:
"In the absence of any satisfactory explanation from the Respondent's and in the absence of any other reason, we cannot accept the Respondent's evidence that there was no knowledge on the part of one or more persons (be they Councillor or officer) that Mr Scott had brought a race discrimination claim against Ealing or that such person or persons would not have suspected that he had brought a race discrimination claim against Ealing.   While we could accept, albeit with considerable difficulty, that the panel might have preferred DW to Mr Scott for reasons that have nothing to do with race, we think it is legitimate from the primary facts found for us to infer on the balance of probabilities that the reason why he was denied selection as the next best candidate, and in particular why he was prevented from reapplying when the job was readvertised, was because he was targeted as a troublemaker and a person who had brought a race discrimination claim against a neighbouring authority.   We recognise the lack of hard evidence to justify this inference, but bearing in mind the difficulty which Mr Scott would have in producing such evidence we are satisfied that on the balance of probabilities it is the true and only explanation for the Respondent's conduct."
Hence the Employment Tribunal found that Mr Scott had been victimised.   
14.	The Employment Appeal Tribunal identified the issue on the victimisation claim as having been: did the Respondent know of the protected act on 2 April 1997, or put more precisely: did the three councillors who made the decisions know?   It examined the Employment Tribunal's reasoning and the inference drawn from primary facts that there was such knowledge.   It said at para. 34 of its Reasons:
"In our judgment it is not permissible for the Employment Tribunal to reason that because the explanation was advanced by the Respondent in answer to the direct discrimination claim was considered unsatisfactory and since the Employment Tribunal rejected the applicant's case that his less favourable treatment was on racial grounds, the only possible explanation was that he was so treated because he had done a protected act.   That seems to us to amount to an extension of the error in approach identified by the House of Lords in Zafar".
15.	That is a reference to the decision in Glasgow City Council  v Zafar [1997] 1WLR 1659.   The Employment Appeal Tribunal went on to say at para. 35:
"The flaw in the Employment Tribunal's reasoning was to jump from a finding of no racial discrimination to a finding that in those circumstances there must have been victimisation."
16.	It noted that what was required was a reasoned finding that the three councillors had the necessary knowledge on 2 April 1997 but that no such finding had been made.   It rejected a submission that this was a mere failure to give adequate reasons, justifying a remission of the case to a fresh Employment Tribunal.   The Employment Appeal Tribunal held that the lack of reasons was only part of the problem about the Employment Tribunal's decision, and emphasised that the Tribunal had not been entitled to draw the inference of victimisation in the absence of any findings to justify it.   
17.	The main ground on which that decision by the Employment Appeal Tribunal is now attacked is that the Employment Tribunal was entitled to infer knowledge of the protected act from the findings of fact which it made.   Miss White accepts that this case is concerned with the knowledge of the Respondent and not with mere suspicion that Mr Scott might have made a race discrimination complaint against Ealing, despite the emphasis put by the Employment Tribunal on suspicion in its conclusions quoted earlier.   Moreover, it is also conceded on behalf of the appellant that, in the circumstances of this case, the knowledge had to be that of the three councillors who made the decisions and not that merely of the officers, who seem to have played no material part in the final decision making process.   Nonetheless, it is submitted that the Employment Tribunal set out a number of primary facts found by it and from those the inference of knowledge could properly be drawn.
18.	Miss White stresses that the councillors knew that Mr Scott had been employed by Ealing and had moved from there to a job with another local authority at a somewhat lower salary.   It is said that that in itself must have raised suspicions about why he had left Ealing.   But, above all, she relies upon a finding that there had been "regular contact between the housing departments of the two boroughs", because each borough had a number of council tenants in the other's area.   It is accepted that the Employment Tribunal's inference necessarily implied that the three councillors were lying in the evidence that they had given that they did not know on 2 April 1997 of Mr Scott's race relations complaint against Ealing.   But once the Employment Tribunal had rejected their explanation for their decisions, the facts found were to be seen as capable of supporting the inference of knowledge.   Reliance is placed on the approach commended in discrimination cases in King v Great Britain China Centre and also in O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615.   An applicant in a case like this has difficulties in showing knowledge of the protected act and therefore such knowledge may have to be inferred.   Tribunals should be ready to draw such an inference.   
19.	I find these arguments unpersuasive.   It is quite clear that, in a case of this kind, knowledge on the part of the alleged discriminator of the protected act is a pre-condition to a finding of victimisation.   That is inherent in the statutory wording and it was spelt out by Lord Steyn in Nagarajan v London Regional Transport [2000] 1AC 501 at 519H, in a passage subsequently endorsed in Chief Constable of West Yorkshire v Khan [2001] UKHL 48, at para.56.   Lord Steyn said of section 2(1) that it:
"contemplates that the discriminator had knowledge of the protected act and that such knowledge caused or influenced the discriminator to treat the victimised person less favourably then he would treat other persons."
20.	The situation which arises under section 2(1) is therefore not identical to that with which a tribunal or court is dealing when faced with discrimination claims under section 1(1) of the Race Relations Act 1976.   In the latter type of case, knowledge by the alleged discriminator of the race of the complainant will rarely be in issue.    Normally the issue will centre around the effect of that knowledge: did it have a significant influence on the decision to treat the complainant less favourably?   As has been emphasised many times, that influence may be one of which the discriminator may not be aware.   It may be an unconscious influence: see Lord Nicholls of Birkenhead in Nagarajan, pages 511H-512D; also Glasgow City Council v Zafar at page 1664D.   It was for that reason that it has been recognised that there may be special problems of proof for complainants bringing discrimination claims under section 1.   Prejudice is rarely openly displayed, whether the discriminator is aware of his prejudice or not.   That is what lies behind the guidance given by this court in King v Great Britain China Centre.   That case was dealing with the specific difficulty facing complainants in discrimination cases of establishing that racial factors affected the decision.   
21.	But when one turns to whether or not a discriminator knew of a protected act, one is dealing with a different type of issue.   Establishing a person's knowledge of a fact is a process required in many branches of law and not in any sense one peculiar to discrimination cases.   There is in general usually less difficulty in establishing knowledge of a fact by means of extrinsic evidence, such as a document mentioning the fact or evidence of oral transmission of knowledge of the fact.   This is not what the guidance in King v Great Britain China Centre was directed at and in my judgment it was wrong of the Employment Tribunal to adopt an approach apparently based on that guidance when considering the issue of the councillors' knowledge.   
22.	The case of O'Donoghue, also relied on by the appellant, is again not relevant on this issue.   There was in that case clear evidence that some of the councillors knew of the appellant's strong feminist views.   None of the councillors denied knowing of those views, which she had freely expressed over a number of years.   The real issue there was not as to what the councillors knew but as to why they acted as they did.   In short it was a King v Great Britain China Centre case.   
23.	Even in cases where the issue is whether the alleged discriminator acted as he did because of the race of the complainant, it has rightly been emphasised that there must first be primary facts from which an inference that race was the reason may properly be drawn.   As was said by Balcombe LJ in Chapman v Simon [1994] IRLR 124 at para. 33(3):
"In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference.   If there are no such findings, then there can be no inference: what is done can at best be speculative".
24.	So the question here is whether there were primary facts found from which knowledge on the part of the three councillors of Mr Scott's complaint against Ealing could legitimately have been inferred, despite their denials of having had such knowledge at the relevant time.   The Employment Tribunal itself said that:
		"We recognise the lack of hard evidence to justify this inference."
25.	The primary facts which the Tribunal did find included the contacts generally at officer level between the Housing Departments of Hillingdon and Ealing, but there was no finding that either of the two officers involved in the initial interviewing at Hillingdon knew of Mr Scott's complaint against Ealing, far less that if either of them did know, such information had been passed to any of the councillors.   The Tribunal rejected the councillors' own explanation of their decisions, namely that Mr Scott did not have the ability to communicate orally with a non professional audience, and it also rejected the appellant's argument that the decisions had been made because of his race.   It followed from these findings that there must have been some other reason for the decisions, but as a matter of common sense and experience there could have been a number of other such reasons not requiring one to assume knowledge by the councillors of Mr Scott's complaint against a neighbouring borough.   It did not follow from the uncertainty about the reason for the decisions that the councillors knew of Mr Scott's complaint against Ealing.   That would be no more than speculation.   The fact that he had changed jobs at the end of 1995 from Ealing to Kingston-upon-Thames where he obtained a lower salary was perhaps an indication that he may have wanted to move from Ealing, or that he had had difficulties at Ealing, but there could have been many possible explanations for that.   It was not a pointer towards something as specific as him having made a race relations complaint against Ealing.   
26.	The reality is that there was no positive evidence of knowledge on the part of the three councillors.   They might have had such knowledge, but that is not enough, and the primary facts found by the Tribunal, even when taken cumulatively, did not justify the inference of such knowledge.   The Tribunal seems to have been conscious of the tenuous nature of its conclusion, since it was unsure as to whether it was the councillors or the officers who had the requisite knowledge or even whether it was knowledge as opposed to suspicion.   The imprecise form of this conclusion reached only underlines the absence of any proper basis for drawing the inference in question.   
27.	I for my part regard the Employment Appeal Tribunal as having been right in overturning the Employment Tribunal's conclusion.   There is a subsidiary point raised by Miss White, namely that, if the Employment Tribunal went wrong because it failed to make clear its reasons, the Employment Appeal Tribunal should have remitted the matter to a fresh Tribunal so that it could have spelt out its reasoning more clearly.   In that connection reliance is placed on the case of O'Kelly v Trust House Forte plc [1983] ICR 728.
28.	It is of course established law that, if the problem is merely that a Tribunal has not given the reasons for its decision with sufficient clarity for them to be understood, an appellant body should normally remit the matter for the deficiency to be made good.   Likewise, if such a Tribunal has adopted the wrong legal test and the correct test requires more facts to be found, then remission may be appropriate.   But neither of those situations exists here.   While there is some lack of clarity in the reasoning of the Employment Tribunal, that is not the principal difficulty with its decision.   One can discern that it was inferring knowledge on the part of the three councillors of Mr Scott's complaint against Ealing.   The fundamental deficiency in the decision is that the inference ultimately drawn was not a legitimate one in the light of the primary facts found.   It would not be appropriate to remit the matter so that the Employment Tribunal could seek to find further facts that would make its inference more capable of being upheld or so that a fresh Tribunal could reconsider the case.   This is a case where the Employment Appeal Tribunal was fully justified in concluding that the complaint of victimisation failed, given the facts found.   
29.	There is also in this case a Respondent's Notice raising allegations of procedural irregularity and bias on the part of the Employment Tribunal.   In the light of the conclusion at which I have arrived on the merits of the victimisation complaint, it is unnecessary to deal with the issues raised by the Respondent's Notice and I do not propose to do so.
30.	It follows that for the reasons given I would dismiss this appeal against the order made by the Employment Appeal Tribunal.
LORD JUSTICE WARD:
30.	I agree.
DAME ELIZABETH BUTLER-SLOSS P.
31.	I also agree.
Order: Appeal dismissed with the costs.
(Order does not form part of the approved judgment)