Appeal No. EAT/191/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 28 November 1991

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR J P M BELL CBE

	MS P SMITH

MOHAMMED BASHIR DARR	APPELLANT

BRITISH RAILWAYS BOARD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr R Seabrook
(Of Counsel)
	Messrs Nelsons Johnson & 	Hastings
	8 Stanford Street
	Nottingham
	NG1 7BQ

For the Respondents	Mr R Burns
(Of Counsel)
The Solicitor
British Railways Board
MacMillan House
PO Box 1016
Paddington Station
London W2 1YG

	MR JUSTICE TUCKER:  This is an employee's Appeal against a decision of the Industrial Tribunal held at Nottingham on 29 January 1990 whereby the Appellant's complaint of racial discrimination was dismissed because the Respondents did not treat the Appellant less favourably on racial grounds.

	The facts of the case are well set out in the Tribunal's reasons for their decision between paras. 1-6 inclusive and it is unnecessary to recite them.  Suffice it to say that the Respondents, the British Railways Board, had eight vacancies for conductors.  No fewer than 240 including the Appellant, applied for those jobs.  The Respondents' personnel manager, Mr Mason, had the task of sifting through the applications.  He reduced the list to 73 to whom interviews were offered.  The Appellant was not among them.

	According to the evidence which Mr Mason gave to the Tribunal, in view of the large number of applications he set an upper age limit of 50.  The Appellant was just over that limit.  Mr Mason told the Tribunal that the fact that the Appellant's application was typewritten and had not been handwritten counted against him and also the fact that the Appellant had not mentioned the circumstances in which his previous employment as a train guard came to an end.

	What the Tribunal said about those matters is set out in paras. 10,11 and 12 of their Reasons.  They said this:
"It seems quite remarkable to the Tribunal that the respondents should make their decision to reject the applicant on these considerations.  The applicant had years of relevant experience and could well have been expected to complete satisfactorily any further course of training for the duties of conductor which might have been required.  He still had 10 years of service to offer before reaching the normal retirement age of 65.

	It was quite unreasonable of the respondents to give no consideration to the applicant.  There is no reason to believe, however, that Mr Mason, who had never met the applicant, was influenced by reading his name on the papers.  It seems much more likely that the respondents had no wish to re-employ the applicant after he had successfully brought proceedings for unfair dismissal against them.  There is, however, no right for a person to complain to an Industrial Tribunal of an unfair failure to offer re-employment."

	The Tribunal has head the explanations given by the respondents and, although they cannot be regarded as satisfactory, they do not contain any reason for believing that the respondents were influenced in their decision by racial considerations."
	Complaint is now made about those matters in the following terms.  The Appeal is based on points of law:

	(a)That the Industrial Tribunal, in concluding that the Respondents failed to offer the Appellant an interview because they had no wish to re-employ the Applicant after he had successfully brought proceedings for unfair dismissal against them drew an inference that they were not entitled to draw, because it was unsupported by the primary facts as they found them to be:

	(b)The Industrial Tribunal failed to appreciate that the primary facts led  them inevitably to the conclusion that the Appellant had been discriminated against.

	As to that conclusion by the Tribunal about the Respondents not wishing to re-employ the Applicant after his previous proceedings against them, it is agreed that there was no evidence before the Tribunal on which they could draw the inference as to the Respondents' reasons for not employing the Appellant and that they were not entitled to draw such an inference.  In these circumstances the Appellant's Counsel submits that the decision arrived at by the Tribunal was perverse. 

	It is clear that the primary facts as found by the Tribunal did establish that the Appellant is a person of ethnic minority group and also that he had been discriminated against, but what they did not establish was the burning question in this case which is "was that discrimination made on racial grounds?".  The Appellant's Counsel submits that the primary facts further established that the Appellant was eminently qualified for the job and also submits that the explanations put forward by the Respondents for not selecting him were not only inadequate, but were rejected by the Tribunal.  The Tribunal's own conclusion as to the reason was conjectural and unsupported by any evidence.  "In the absence of any other explanation" says Counsel "the overwhelming inference is that the discrimination was on grounds of race" and Counsel submits that the Tribunal were perverse in reaching any contrary conclusion.

	Our attention has been called to the relevant authorities from which the proposition can be derived that where there is an inadequate, unsatisfactory or untrue explanation then it is open to the Tribunal to draw the inference that the discrimination was on racial grounds, but the Tribunal is not bound to do so and Counsel for the Appellant now accepts, despite passages in his skeleton argument to the contrary effect, that the burden of proving the case is on an Applicant throughout.

	Counsel for the Appellant submits that the importance of the unsupported finding of the Tribunal is that it shows that the Tribunal was looking for an alternative explanation to those advanced by the Respondents and that the only reason for that was because those explanations were rejected.

	We have paid very close attention to Counsel's careful submissions, but at the end of the day we can see not the slightest evidence, nor can we detect the slightest hint of any discrimination on racial grounds in this case.  There is no positive evidence of it and in our opinion there is nothing from which it could properly be inferred.  It may be that from an industrial relations point of view it was not a very sensible procedure on the part of the Respondents automatically to exclude applicants over 50, or because they submitted typed applications.  If there was any reason for that latter consideration they could have been asked for a submission to be made in writing.  The Tribunal were rightly critical of this.

	But there is no evidence to suggest that anyone over 50, not of the Appellant's racial group was selected for interview.  The Respondents have a large multi-racial workforce.  There is nothing in the evidence to suggest any reason for discrimination on the grounds of race to be applied to the selection of candidates for the position of conductor, not as has been said, could any proper inference be drawn to that effect.  The Appellant may be disappointed at the fact that he was not selected for a post for which he was well qualified, but in our view the Tribunal were entirely right to conclude, notwithstanding their unsupported conjecture of the reason for it, that there was no reason to believe that the Respondents were influenced in their decision by racial considerations.

	Accordingly this Appeal must be dismissed.