Appeal No. EAT/92/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7th October 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J D DALY

	MR K M YOUNG CB

MR J CARLTON	APPELLANT

VEHICLE FINISHING SUPPLIES	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M BARTLET
(Representative)
Free Representation Unit

	JUDGE J HULL QC:  This is an appeal to us from the Industrial Tribunal sitting at Bedford.  They sat on the 13th October 1992 and their decision was promulgated on 3rd December 1992.  Mr Carlton complained to the Industrial Tribunal that he had been discriminated against because of his sex, arising out of his application to the Respondents for a post as van driver.

	The case is in our list under our practice direction for a preliminary hearing, because it appeared far from clear to those who considered the papers that there was any point of law here.  Therefore we have been concerned to hear whether there is any such of point of law on which we can properly allow the appeal to proceed and we have been assisted by Mr Bartlet of Counsel, to whom we are very grateful, instructed through the Free Representation Unit.

	The decision is a long and careful one.  I do not need to go through all the facts.  It appears Mr Carlton applied for the job of van driver;  so did various other people;  in fact before he had even been interviewed the job was given to a woman driver.  She apparently did not prove entirely satisfactory, and for some reason or other she left after about 3 weeks, but that is entirely beside the point. 

	Mr Carlton had certain grounds, as he believed, for suspecting that there was discrimination against him.  Again, I am not going to go into all those.  He laid those grounds before the Industrial Tribunal and we have had cited to us King v. The Great Britain China Centre [1991] IRLR 513;  Mr Bartlet referred us to what is said by Neill LJ at paragraph 38 onwards.  The Lord Justice pointed out what is only too well known in practice that it is rare for direct evidence of discrimination to be available (I should explain that that was a case of alleged racial discrimination);  he said:
		"Few employers will be prepared to admit such discrimination . . .  In some cases the discrimination would not be ill-intentioned but merely based on an assumption . . ."

and therefore, the Lord Justice gave certain indications as to what might be the proper approach.  He said:
		"(3) The outcome of the case would therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.  These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.

		(4) Though there will be some cases where, for example, the non-selection of the applicant for the post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race will often point to the possibility of racial discrimination.  In such circumstances the Tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds.  This is not a matter of law but, as May LJ put it in Noone, `almost common sense'."

We of course, respectfully accept what is said by Neill LJ with which Nourse LJ and Sir John Megaw agreed.  So the Court of Appeal were unanimous on that approach, and we look to see whether that approach was followed by this Tribunal in this case.  They heard the grounds which were put forward by the Applicant for his suspicions and they then set out that they had heard the evidence of the employers.  In one passage to which Mr Bartlet has particularly invited our attention, having dealt with the matters which they thought were a rather slender indication of prejudice, they say:
		"18. We then turn to other matters which are perhaps of greater weight.  The numbers of drivers are clearly predominantly female.  Furthermore, the person who got the job was a female and the replacement of that person was a female.  These perhaps point to what could be called a `female culture' in the driving sector of the respondent company.  Against this, the respondent has called evidence to the effect, firstly from Mr Piercy, that there is no policy of sex discrimination, and from Mrs Morgan that likewise she did not appoint out of any policy of sex discrimination.

		19. Although certain matters as a matter of office procedure seem to have been dealt with rather sloppily and by this I mean in particular the reference to the  earlier `night delivery' advertisement responses and those responding to the `local light deliveries' advertisement, we accept Mrs Morgan's evidence as to the basis of the selection.  There being no policy of sex discrimination, we accept that neither was the vacancy involved in an arrangement which preferred one sex to the other, nor in fact was the actual appointment made on that basis.

		20. Likewise we accept Mr Piercy's [he was the Managing Director and I think the proprietor of the Company] evidence that there was no company-wide policy in this regard.  Indeed, there are obviously some male van drivers although not in the same number as the females.  This points against a blanket policy in this respect."

It appears to us that this Tribunal proceeded precisely along the lines which Neill LJ indicated.  First of all they considered the grounds of suspicion, the grounds on which the Applicant felt suspicious that there was discrimination in this particular case.  They formed a view about those and as the Lord Justice said "they were entitled to draw an inference".  That does not mean that they are bound to draw it, the question whether the tribunal draws a particular inference is a question of commonsense, fact and experience, for the tribunal as an industrial jury, and it is not for us to interfere with such inferences as tribunals think it proper to draw unless it appears that they were plainly were guilty of an error of law;  took into account matters which they should not have done, or made some obviously erroneous decision of that sort.  Then they proceeded precisely as Neill LJ said they should do by hearing the evidence.  After saying that there might be a "female culture" they said "it perhaps points to that".  They then heard the evidence to see whether there was any evidence which could rebut that possible inference and they accepted Mrs Morgan's evidence and they accepted Mr Piercy's evidence.  That is exactly what Neill LJ and the other Lord Justices said that they should do if they thought it right.  These matters are for them, the Tribunal of fact, hearing the witnesses give evidence on oath and being questioned, if necessary, by the Tribunal and by the Applicant, and it is not for us to say whether they were right in drawing those conclusions of fact.  We are not entitled to interfere unless an error of law can be shown and we find no error of law and therefore on the substantive part of the appeal we think it is impossible to allow it to proceed.  

	Next Mr Bartlet complains of the Order for Costs which was made by the Tribunal.  Now Orders for Costs are peculiarly within the responsibility and prerogative of the Tribunal of first instance, as questions of discretion, so what we have already said applies with great force to them;  indeed so much so that in other jurisdictions appeals as to costs can only be brought with the permission of the Judge who actually makes the Order, unless it is quite clear that he has departed entirely from the ordinary rules about costs.  Here the employers, having been successful, asked for costs.  The Tribunal heard about a number of matters, some of which they considered quite irrelevant;  others they considered relevant.  They thought it right to consider the fact that this Applicant had made four other applications on the grounds of sexual discrimination to other tribunals or to their own Tribunal.  This was not to show that he was vexatious and frivolous but to show that he had experience of these matters.  They went on:
		"32. Where we do criticise him [referring to Mr Carlton] and find he acted unreasonably is in connection with embarking on a case such as this without making any contact with the respondent.  The case is not a strong one.  He started the proceedings without any effort to obtain from the respondent any explanation concerning sex discrimination and his fears relating to it.  If he had requested an explanation, he might well have been satisfied.  It is wrong, in the view of the Tribunal, to embark on a speculative case which is not strong, without making further enquiries concerning the complaint.  It is true that the applicant did keep watch after the telephone call on the Thursday and did observe a woman driver, but even so that did not give him a strong case and it was unreasonable to embark on the proceedings at this stage without more ado."

They refer to the provisions of the Industrial Tribunals (Rules of Procedure) Regulations 1985, Rule 11(1) saying that they are not to make an award of costs unless:
		". . . a party has in bringing or conducting the proceedings acted frivolously, vexatiously [as I say, they reject that] or otherwise unreasonably . . ."

It is suggested by Mr Bartlet that the Tribunal were there putting up some sort of principle which all applicants must adhere to.  We do not think they were doing anything of the sort. They were, in our view, dealing very fairly with various matters which were put forward. In other spheres of litigation, of course, it is elementary that litigation should not be commenced before some enquiry has been made or some notice has been given to the proposed defendant.  That is not an invariable rule at all but it is commonly expected, the "letter before action", either asking for satisfaction in money, or asking for an explanation.  This Tribunal felt that where there was a weak and speculative case, as they described it, being put forward the least that the Applicant could do, bearing in mind his long experience of this particular topic in front of tribunals, was to say "What is the explanation for this?  It all looks very wrong to me, it looks to me as if you are preferring women to men simply on that ground and that is why I did not get the job and I want an explanation."  That would have been a perfectly rational letter to write. If he had done that he might have received a very satisfactory explanation which would have prevented him from proceeding and saved a very great deal in costs.  Of course it is possible it would not have availed him anything.  The reply might have been thoroughly evasive;  in those circumstances he would have gone a long way towards proving his case.  So we do not think that this Tribunal, who knew so much more about the case than we do, erred in saying that it was unreasonable in the circumstances for this experienced litigant not to make enquiries and get in touch with the Respondents.  They made a moderate Order for Costs, it is a painful one no doubt for Mr Carlton, who we are told is in receipt of Social Security benefits.  Nonetheless this Tribunal was entitled to act, not as Mr Bartlet puts it as a sanction or as a penalty, but to compensate the employers to this small extent for the bringing of unjustified proceedings against them. 

	So the appeal can go no further, on the short ground that in neither of the matters which are canvassed can we detect any error of law.