Appeal No. EAT/218/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 27th May 1994

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MISS A MACKIE OBE

	MISS A MADDOCKS OBE

COMMISSION FOR RACIAL EQUALITY	APPELLANTS

(1) MR G MARTIN-LAVAL	RESPONDENTS
(2) RESTAURANT LA GRILLADE

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR W D PANTON
(Legal Representative)
Commission for Racial Equality
Elliot House
10/12 Allington Street
London
SW1E 5EH

For the Respondents	NO APPEARANCE BY 	OR REPRESENTATION
ON BEHALF OF EITHER RESPONDENT

	MR JUSTICE KNOX:  This is an appeal by the Commission for Racial Equality against a decision of the Industrial Tribunal sitting on the 2nd January 1992 at Leeds, the 
decision having been sent to the parties on the 4th February 1992.  The decision was that the Respondents, Mr G Martin-Laval and a restaurant called "La Grillade" did not contravene Section 30 or Section 31 of the Race Relations Act 1976.  I will call that Act "the Act" since it is the only one in issue in this appeal.

	The context in which the Originating Application came before the Industrial Tribunal was that the Respondent, Mr Martin-Laval, who has not appeared and was not represented before us today, ran a restaurant, which is in fact the second Respondent, and wanted to obtain another experienced waiter.  He approached the Jobcentre at Leeds with a job specification and in due course on the 19th March 1991 he was `phoned by a Miss Haig, who worked at the Benefit Office to which the Jobcentre was attached, with news that she, Miss Haig, had an applicant for the position that had been advertised.  There was an irrelevant dispute as to the precise time of day at which that telephone call occurred.  There were relevant disputes regarding what was in fact said on the telephone between Miss Haig on the one side and Mr Martin-Laval on the other side.  Miss Haig herself did not immediately make a record of the `phone call.  She appears not to have thought that that was necessary nor that there was a case of racial discrimination involved, but her side of the conversation was heard by a supervisor, who gave Miss Haig instructions to note down what she had said and had been said to her, and this Miss Haig did about 10 to 15 minutes after the telephone call with Mr Martin-Laval.  That report then found its way to Miss Brown, who was not the supervisor but a superior officer in the organisation. Both Miss Brown and Miss Haig gave evidence, but the supervisor who overhead Miss Haig's end of the conversation did not give evidence to the Industrial Tribunal.  Miss Brown herself had a lengthy telephone conversation with Mr Martin-Laval two days later but that conversation is irrelevant because it is not suggested that in the course of that conversation Mr Martin-Laval was guilty of what is suggested to have been done by him when he rang Miss Haig, namely, to offend against Section 30 and Section 31 of the Act.  Those Sections read so far as material:
"It is unlawful for a person - 

(b)in accordance with whose wishes that other person is accustomed to act,

to instruct him to do any act which is unlawful by virtue of Part II or III, or procure or attempt to procure the doing by him of any such act.

31(1) It is unlawful to induce, or attempt to induce, a person to do any act which contravenes Part II or III.

(2) An attempted inducement is not prevented from falling within subsection (1) because it is not made directly to the person in question, if it is made in such a way that he is likely to hear of it."

The tie up with Part II is that there is the well known definition of direct discrimination in Section 1(1)(a) of the Act:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourably than he treats or would treat other persons."

and that definition has to be read into discrimination against applicants and employees. In particular, Section 4(1)(a) which provides:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a)in the arrangements he makes for the purpose of determining who should be offered that employment."

That is expanded in relation to employment agencies by the provisions of Section 14(1) which reads:
"It is unlawful for an employment agency to discriminate against a person -

(a)in the terms on which the agency offers to provide any of its services

(b)by refusing or deliberately omitting to provide any of its services;

(c)in the way it provides any of its services."

So far as the construction of the Act is concerned we were referred to and gratefully adopt what Neill J. said in the Commission for Racial Equality v. The Imperial Society of Teachers of Dancing [1983] IRLR 315, where at page 316 he said this, having read out the terms of Section 31:
"The Industrial Tribunal stated their conclusion on this part of the case in paragraph 26 of their reasons as follows:

`We think the word "induce" must imply an element of "stick or carrot".  A mere request, which is the highest that Mrs McBride's words could be put at, comes far short of an attempt to induce as covered by the section.'

With great respect to the Industrial Tribunal we for our part do not consider the word "induce" in section 31 can be so limited.  There may be cases where inducement involves the offer of some benefit or the threat of some detriment, but in their ordinary meaning the words "to induce" mean "to persuade or to prevail upon or to bring about".  In our judgment the intimation by Mrs McBride that "she would rather the school did not send anyone coloured" as "that person would feel out of place as there were no other coloured employees" did constitute an attempt to induce Mrs Patterson not to send coloured applicants for interview.  We consider the word "induced" is apt to cover the facts found by the Industrial Tribunal in the present case;  we see no reason to construe the word narrowly or in a restricted sense."

and in relation to Section 30, which uses the words to instruct, or procure or attempt to procure the doing of the prohibited act, Neill J. said this:
"Before we turn to the main problem presented by this section we should say something about the word `procure'.  The Industrial Tribunal came to the conclusion in paragraph 25 of their reasons that an expression of a preference was not an attempt to procure.  On this matter we regret to say that we disagree with the Industrial Tribunal.  It seems to us that in the context the words `procure' and `attempt to procure' have a wide meaning and are apt to include the use of words which bring about, or attempt to bring about a certain course of action."

and those wide interpretations are, we feel, appropriate to the way in which an industrial tribunal should approach any question under those two Sections.  Having said that, it remains the fact that the Originating Application contains an allegation of infringement of those Sections and at the end of the day it is for the industrial tribunal to find objectively whether there has been such an instruction, procurement or attempt to procure, or inducement or attempt to induce the prohibited act and it is to be noted that the prohibited act is the act of the person who is being instructed, induced or procured, to do the act in question.  That of course in this case is Miss Haig and objectively it had to be determined in the light of the primary facts found by the Industrial Tribunal whether there was an attempt by Mr Martin-Laval or an actual instruction, procurement or inducement for Miss Haig to do the prohibited act in question.  There is not much doubt as to what the prohibited act would have been.  It would have been on racial grounds not to offer the applicant that Miss Haig had, the chance of being employed by Mr Martin-Laval in his restaurant.  

	As already mentioned both Miss Haig and Miss Brown, but relevantly Miss Haig, gave evidence of what the telephone call between Miss Haig and Mr Martin-Laval contained.  That evidence was not in line with the evidence that Mr Martin-Laval, who appeared as a witness, gave to the Industrial Tribunal.  As the Industrial Tribunal itself said in paragraph 12:
"This is a case where the evidence of what was said has been conflicting."

and the Industrial Tribunal were divided.  The majority said this in the rest of paragraph 12 of their decision:
"Mr Martin Laval's recollection of what passed between him and Miss Haig on 19 March was not clear, even 2 days later when he spoke to Miss Brown.  That does not mean that his evidence of that conversation must be rejected in total.

13.  The majority of us are not able to say that we prefer the evidence of one witness to that of another.  We find that the name of Mr S [he was the candidate for the post of waiter] was not revealed early on in the conversation between Mr Martin Laval to Miss Haig from which a motive to discriminate could be discerned by her.  We do not accept Miss Haig's report verbatim.  We think that it may well contain inaccuracies because Miss Haig was not aware, when she had the telephone conversation, that she would need to report on it, and her supervisor, who had only overheard her side of the conversation, had made her aware that she considered that discrimination have occurred."

The minority view was quite different and that was:
"that there should be a decision that the alleged contravention of section 30 of the Race Relations Act 1976 did occur.  He [the minority Member] prefers the evidence of Miss Haig to that of Mr Martin-Laval.  He finds that Mr Martin-Laval was aware of the name of Mr S early on in the telephone conversation and he finds that Mr Martin-Laval had a reason for not wanting to interview Mr S, and that that reason was racially motivated.  He finds, further, that that [ie that it was racially motivated] was made apparent to Miss Haig when he instructed her not to send Mr S for interview."

The expression "racially motivated" has to be understood we think as being a reference to having been done on racial grounds rather than any reference to motive in the strict sense of the word.  It is, of course, trite law that if there is less favourable treatment on racial grounds, in a relevant context, that constitutes an offence against the provisions of the Act even though the actual motivation from the moral point of view of the person who has infringed the Act is of the purest sort.  Motive as such is strictly irrelevant to the question whether there has been unlawful discrimination and it is, perhaps, dangerous to use the word "motive" in an inappropriate context in the light of that well settled aspect of the law.  That also makes the sentence already quoted from paragraph 13 that there was insufficient information given by Mr Martin-Laval to Miss Haig from which "a motive to discriminate could be discerned by her", an unfortunate turn of phrase.  Taking the decision as a whole, we think that that is clearly a slip of the tongue, or a slip of the pen, for a compendious word intended to cover both Section 30 and 31, ie to cover instructions, procurement, inducements or attempts at any of those three.  But on any view the use of the word "motive" is not a happy one.

	There is also one other aspect of the matter which we find less than wholly satisfactory and that is the paucity of findings of primary fact.  The findings of primary fact are in fact only to be discerned in those two paragraphs 13 and 14, which I have already read and do not repeat, and it does increase the difficulties for industrial tribunals in approaching their decisions in these difficult cases if they do not set out as fully as practicable their findings of the primary facts.  However, there is one primary fact that undoubtedly is found clearly and that is that the name of Mr S was not revealed early on in the conversation between Mr Martin-Laval and Miss Haig.  Mr Panton, who appeared on behalf of the CRE, sought to persuade us, first, that the decision of the majority to prefer Mr Martin-Laval's account of the stage in the conversation at which the name of Mr S was revealed was a perverse one and that involves Mr Panton satisfying us that it was so clear that the minority view was correct that it was not a permissible option for the Industrial Tribunal to prefer the evidence given by Mr Martin-Laval.  We are unpersuaded that that very heavy onus is discharged of showing perversity.  True it is, as Mr Panton pointed out to us, that there are a variety of factors that tend towards Mr Walcott, the minority, being justified in preferring Miss Haig's evidence to that of Mr Martin-Laval.  Notably Mr Martin-Laval's recollection of what passed between them was none too good even two days after the occasion occurred, which was the relevant one, and a fortiori one would suspect it was not improved by the lapse of a year before the matter came before the Industrial Tribunal.  But those sort of considerations are considerations that go to the weight and validity of the evidence on one side or the other and they do not amount to a complete bar against an industrial tribunal preferring one account where there are two conflicting accounts of what happened on a particular occasion.  The case where an industrial tribunal is perverse in accepting one witness rather than another must, we feel, be of the rarest possible sort and there is no sufficiently overwhelming weight of evidence in favour of Miss Haig's version for us to reject the finding of the majority on this narrow point as being a perverse one.

	Once one finds that the name was not revealed early on but late on in the conversation the strength of the case to establish that there was an instruction or a procurement or an inducement, or an attempt at any of those to do a prohibited act by Miss Haig, becomes very much less obvious and we have, on balance, come to the conclusion that, making the correction which we think is implicit of the use of the word "motive" to the use of some compendious word that covers all the activities that Section 30 and 31 are intended to prohibit, one should interpret the decision of the Industrial Tribunal as a very succinct statement of the proposition that there was not enough evidence of what Mr Martin-Laval said to Miss Haig for the majority to be satisfied that there was such an instruction, procurement, inducement or attempt at any of them, established to their satisfaction.

	The Industrial Tribunal in fact went on to give what it described as "assistance to the Commission for Racial Equality" on what would be necessary for a contravention of Section 30 or 31 of the Act to occur.  We have to say that here too, we feel that there is insufficient ground for the Industrial Tribunal to reach the conclusions that they did express.  Notably they said this in paragraphs 19 and 20 of their decision:
"The contravention under sections 30 and 31 for which the Commission for Racial Equality must take the responsibility for bringing action, relies on a communication by one person to another, as a result of which the recipient is instructed, procured or induced to commit an act of racial discrimination.

We cannot envisage that a process of inference could possibly be appropriate here.  If the contravention can occur because of an inference drawn by the person spoken to that they are being instructed, procured or incited to discriminate, then there is confusion between the offence and the means of proving the same."

We are not persuaded that this is right because it does seem to us that a process of inference by the industrial tribunal is a legitimate and possible one in arriving at a conclusion on what we regard as being the significant question, namely, was there or was there not an instruction, procurement or inducement in the relevant communication between one person and the other.  That is, in a sense, an objective test to be applied.  The way in which the communication was understood by the recipient of the communication, may be a useful guide towards what, objectively seen, it amounts to, but is strictly speaking irrelevant.  The Industrial Tribunal has for itself to make up its mind whether there is the necessary instruction, procurement or inducement and we do not seek to improve what Neill J said in the case cited above on the question of what those two sections actually mean.

	In those circumstances we think that the additional guidance that the Industrial Tribunal, perfectly reasonably, sought to give was in fact not entirely accurate but that does not go to the validity of the actual decision itself.  It was patently an addition by way of obiter dictum for general guidance and the decision itself we find is one with which we have no jurisdiction to interfere because we treat it as a finding that there was not enough said by Mr Martin-Laval to Miss Haig for the offence under either Section 30 or 31 to have been established.  On that basis we dismiss this appeal.