Appeal No. EAT/782/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15 November 1995

	Before

	HIS HONOUR JUDGE P CLARK

	MRS P TURNER OBE

	MISS S M WILSON

MR K CHAUHAN	APPELLANT

MR G KATSOURIS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(Of Counsel)
Shubha Banerjee
Commission for Racial Equality
Elliot House
10/12 Allington Street
London
SW1E  5EH

For the Respondent	NO APPEARANCE BY OR 	ON BEHALF OF 	RESPONDENT

		JUDGE CLARK:   This is an appeal by Mr Chauhan against a reserved decision of the Manchester Industrial Tribunal entered on 30 June 1994, following two days of evidence and argument on 13 January and 7 March 1994, dismissing his complaint of race discrimination against the Respondent.  Before the Industrial Tribunal both parties were represented by Counsel.  Ms Monaghan who there represented the Appellant, presented his appeal.  The Respondent, having indicated in his answer that he relied upon the reasons given by the Industrial Tribunal, has chosen not to appear or be represented today.  We thus only heard argument from the Appellant, both orally and by way of written Skeleton Argument.  Having said that, it is right to say that Ms Monaghan has, so far as she is able to, pointed out matters adverse to her case in order to present a balanced picture.

	The Applicant's complaint, summarised in his Originating Application, was that he applied for the job of fruit and vegetable Manager with the Respondent.  He attended an interview with about twelve others.  He did not reach the final shortlist of two candidates.  He said that he was well qualified for the post in accordance with the Respondent's selection criteria.  He asked the Industrial Tribunal to conclude that the reason he was not short-listed was on the grounds of his race, contrary to the Race Relations Act 1976 and in particular Sections 1(1)(a) and 4(1) of the Act.  In reply the Respondent denied unlawful discrimination and contended that the two shortlisted candidates were preferred to the Applicant on the basis of the selection criteria which the Respondent applied, namely:

	"...length and relevance of previous experience, suitability of qualifications if any, an assessment of whether the candidate was likely to remain in the job for a long time or was using it as a stepping stone, and an impression of whether the candidate was likely easily to accept the rules of Kwik Save within whose store the franchise was held."

	A Section 65 questionnaire was served on behalf of the Appellant.  Question 5 asked:

	"Please list all the applications shortlisted for the said post by reference to:

	a)	ethnic origin.
	b)	previous experience.
	c)	whether external candidates."

To that question the Respondent replied:

	"Two candidates were short listed.  One was a Maltese Italian with 7 years experience as a self employed delicatessen manager.  The other was white English who had worked for 6 years in the fruit and vegetable department in Asda which was next door to the Kwik Save site.  Both were external candidates."

	In their extended reasons the Industrial Tribunal set out the background facts; detailing the nature of the Respondent's business, the interview, what happened after the interview, and indeed who carried out the interview, since a factual issue arose over that matter.  It found that the interviewer was not the Respondent himself as the Appellant alleged, but a Mr Fellows.  The selection criteria were set out in paragraph 11 of the decision, repeating those pleaded in the Notice of Appearance to which I have just referred.  They described the other shortlisted candidates and set out the Appellant's submissions.  In particular, it was contended on his behalf that no satisfactory explanation had been given by the Respondent for not shortlisting the Appellant.  At paragraphs 14-19, they quite correctly set out the proper approach to deciding the issue of whether or not unlawful discrimination has taken place.  They remind themselves that direct evidence of discrimination is rare.  Often it will be a matter of inference.  They refer to unconscious assumptions made by people which may lead to racial stereotyping and properly deal with the question of motive.  In particular, they recognise the need in this type of case to look to the Respondent for an explanation for his not selecting the Appellant and in so doing had in mind the guidance of Lord Justice Neill in King v The Great Britain-China Centre [1991] IRLR 513 at paragraph 38:

	"(4)	Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a 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 commonsense'."

	Having thus properly directed themselves as to the law, they conclude their reasons in this way at paragraph 20:

	"Having very carefully examined the evidence in this case we are unanimously of the view that the respondent did not discriminate in the arrangements he made for the purpose of determining who should be shortlisted and who should be offered the position of manager, or by refusing or deliberately omitting to offer the applicant employment."

	In this appeal Ms Monaghan takes three points.  Two are complaints of perversity.  The first is that looking at the findings of fact made - and she has taken us through them in some detail - the conclusion that an inference of racial discrimination ought not to be drawn, was an impermissible option.  Secondly, she says that the Industrial Tribunal's finding that the Appellant was interviewed by Mr Fellows and not the Respondent, was a perverse finding.  Her third point is a separate one, but not entirely unconnected with the thrust of her first point,  which is that the Tribunal's extended reasons did not in fact disclose adequate reasons for the overall conclusion which it reached.  We have been referred to the Court of Appeal decision in Meek v City of Birmingham District Council [1987] IRLR 250 and the judgment of Lord Justice Bingham which refers to the earlier authorities.  A Tribunal's decision should tell the parties why they have won or lost.  That principle is helpfully expressed by the then Lord Justice Donaldson in Martin v MBS Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198 page 202:

	"... The duty of an Industrial Tribunal is to give reasons for its decision.  This involves making findings of fact and answering a question or questions of law.  So far as the findings of fact are concerned, it is helpful to the parties to give some explanation for them, but is not obligatory.  So far as the questions of law are concerned, the reasons should show expressly or by implication what were the questions to which the Tribunal addressed its mind and why it reached the conclusions which it did, but the way in which it does so is entirely a matter for the Tribunal."

	Returning to this Industrial Tribunal's decision, it is clear to us that the Tribunal has failed to identify the explanation for selection, based on his own criteria, given by the Respondent and even if that explanation could be discerned, why it is that such explanation was found to be satisfactory by the Industrial Tribunal?  That question is not peripheral.  It is central to the Tribunal's reasoning: as the Tribunal itself acknowledged in paragraphs 15 and 18 of its reasons.  Moreover, the absence of any clue as to what explanation the Tribunal was considering and why it thought it was satisfactory, places both the Appellant and indeed this Tribunal, in difficulty in relation to the first ground of appeal.  Part of Ms Monaghan's argument was that, the employer's explanation related to how recent was the relevant experience of the shortlisted candidates compared with the Appellant.  She says that that did not form part of the criteria.  However, it is impossible for us to say whether there is any force in that submission, without adequate reasons emanating from the Tribunal on this vital aspect of the case.

	In these circumstances we reluctantly conclude that the inadequacy of the Industrial Tribunal's reasons amounts to an error of law.  We think the proper course is to allow the appeal and remit the case for a full re-hearing before a differently constituted Tribunal.  It further follows that it is neither necessary nor desirable for us to rule on Ms Monaghan's two further grounds of appeal, lest we should appear to express any view of the facts, which must be entirely a matter for the Tribunal to which this case is remitted.