Appeal No.	 EAT/739/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1999
Judgment delivered on 17 December 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
LORD DAVIES OF COITY CBE
MR R N STRAKER

DR C ANYA	APPELLANT

(1)	UNIVERSITY OF OXFORD
(2)	DR STEVEN GEORGE ROBERTS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A HOCHHAUSER QC 
&
MR P STANLEY
(of Counsel)
Messrs Charles Russell
Solicitors
8-10 Fetter Lane
London EC4A 1RS	
For the Respondents	MR N UNDERHILL QC 
&
MS S ASHTIANY
Solicitor
Messrs Morgan Cole
Solicitors
Buxton Court
3 West Way
Oxford OX2 OSZ	

MR JUSTICE HOLLAND:	
Introduction
1.	Dr. Chinasa Anya is Nigerian by origin and black.  In 1990 he was awarded a PH.D degree by the University of Strathclyde, his subject being associated with Metallurgy and Materials.  On the 1st October 1994 he was appointed a Post-Doctoral Research Assistant (‘PDRA’) in the Department of Materials of Oxford University.  The appointment was for a fixed two year period terminating on the 30th September 1996.  During the subsequent two years he was supervised by Dr. Steven Roberts and the fellow PDRAs included Dr. Charles Lawrence who is white.  On the 1st October 1996 his contract was extended for a further three months so as to terminate on the 31st December 1996.  Meanwhile on the 24th August 1996 the University had advertised a position as a PDRA to be involved in a forthcoming ‘Brite-Euram’ project.  The advertisement specified a need for experience in ‘Sintering, characterisation and mechanical testing of ceramics’ and Dr. Anya did have experience in sintering.  He applied for the position as did over twenty others. 

2.	One of the latter was Dr. Lawrence.  In the event the shortlist for interview consisted of Dr. Anya and Dr. Lawrence.  The interview was held on the 12th November 1996, the interviewers being Mr. Briant, the Departmental Administrator, Dr. Jan Czernuska (a lecturer in the Department) and Dr. Roberts.  In the result Dr. Lawrence was preferred to Dr. Anya.  On the 16th December 1996 Dr. Anya complained to the Head of Department, Professor Cantor, protesting about various matters associated with the rejection of his application for the post.  In response Professor Cantor enlisted the aid of Professor Goringe and the two men inquired into the matter.  When they rejected his complaint Dr. Anya complained to the Vice Chancellor.  That served to initiate a Grievance Committee hearing and report, again resulting in rejection of the complaint.  In the meantime and on the 10th February 1997 Dr. Anya initiated a complaint against the University and against Dr. Roberts by way of an IT1 that alleged racial discrimination.  That complaint was heard by a Tribunal sitting at Reading over some eleven days on and between the 12th November 1997 and the 4th March 1998.  By way of a Decision and Extended Reasons of the 26th March 1998 Dr. Anya’s complaint was dismissed.  Against dismissal he appeals to this Tribunal.

Dr. Anya’s Case
3.	Before the Tribunal Dr. Anya’s case had several legs.  Taking the matter chronologically, he was alleging, in short:

a.	That during the two years under the supervision of Dr. Roberts, the latter had been in various ways uncooperative and disparaging

b.	That by way of a conversation in July or August on a day prior to the advertising of the post Dr. Roberts had expressly said to him ‘you can apply if you want, but you will not get it’.

c.	That on a proper reading of disclosed documents, it can be inferred that Dr. Lawrence was always ‘the preferred candidate’ so that the purported selection process was a charade.

d.	That the three man interview panel was biased against him in that Dr. Roberts had already evinced a discriminatory attitude and an expressly hostile view as to his prospects - and Mr. Briant was privy to Dr. Roberts views.

e.	That there was a ‘movement of goal posts’ shortly before the interview so that sintering experience ceased to be a requirement, thus easing the path of Dr. Lawrence who was not similarly experienced in that field.

f.	That following the interview there was an attempted cover-up of the reasoning underlying the decision on the part of Mr. Briant and Professor Cantor as evidenced by inconsistencies between the content of a purportedly explanatory letter written to Dr. Anya and the true circumstances.

4.	It is Dr. Anya’s further case that all the foregoing falls to be considered by reference to the approach classically adumbrated by Neill L.J. in King v Great Britain - China Centre (1992) 1.C.R. 516 at 528:

“..... From these several authorities it is possible, I think, to extract the following principles and guidance.  (1) It is for the applicant who complains of racial discrimination to make out his or her case.  Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.  (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases the discrimination will not be ill-intentioned but merely based on an assumption that “he or she would not have fitted in.”  (3) The outcome of the case will 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 and just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 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 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 L.J. put it in North West Thames Regional Health Authority v Noone (1988) I.C.R. 813, 822, “almost common sense.”  (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

5.	In the result Dr. Anya seeks to establish his case by way of findings as to the facts contended for, all as summarised above;  he invites a second finding that there was apparent discrimination against him;  he invites a further finding that there was a possibility that such was based on race;  and he urges that any alternative explanation as may be offered should be categorised as inadequate or unsatisfactory so as to leave an inference of racial discrimination as proven on balance of probabilities.

The Tribunal

6.	In the event the Tribunal responded to Dr. Anya’s case as follows.  First, in paragraphs 16 and 17 of the Extended Reasons it summarised his case under heading a. above, noting seven respects in which there was criticism of Dr. Roberts in the context of his relationship with Dr. Anya.  It further noted the respective responses and thus the conflicts but it made no attempt to make findings of fact so as to resolve these conflicts.  The flavour of the Tribunal’s approach emerges in sub-paragraph 16(a) of the Extended Reasons:

“During the course of his work as a PDRA, Dr. Roberts had given him less than adequate guidance into the areas of research that he should pursue.  Dr. Roberts did not accept that this was so and there was conflicting evidence on this particular issue.”

7.	Second, in paragraph 17 the Tribunal reviews the evidence relied upon for contention c. above, namely that Dr. Lawrence was always the preferred candidate, but again makes no findings specific to this matter.

8.	Third, in paragraph 19 the Tribunal addresses the matter of the conversation the subject of contention b. above:

“19.	The applicant states that on an occasion in late July or early August he had a conversation with Dr. Roberts.  There is a dispute as to the date of this.  The applicant says it was in late July.  Dr. Roberts says it was on 12 August 1996.  There is a dispute as to the content of the conversation.  The applicant discussed his future with Dr. Roberts.  Both Dr. Anya and Dr. Lawrence had known of the EPSRC and the Brite-Euram grant applications when they were submitted.  By that stage, it was known that the EPSRC application was unsuccessful, but that the Brite-Euram application had been or was about to be approved.  Dr. Anya spoke to Mr Briant and made it clear that he wished to be employed on the Brite-Euram project.  Mr Briant - not a scientist - was unable to make any commitment, but later mentioned the conversation to Dr. Roberts.  He advised that if the applicant spoke to him Dr. Roberts should be non-committal.  Dr. Roberts’ version is that on 12 August the applicant asked to see him and spoke to him about the Brite-Euram project making it clear that he was extremely keen to apply for it.  Dr. Roberts found the conversation embarrassing, but in view of the applicant’s remarks indicated to him that whilst he was free to apply if he wished to do so Dr. Roberts thought his chances were low.  Dr. Roberts subsequently wrote a brief note to Mr Briant recording elements of the conversation.  At that stage the advertisement for the post had not been published and it was not anticipated that an appointment would be made for several months.  On behalf of the applicant it was argued that such a remark as the applicant contended, ie. that he had no chance, amounted to less favourable treatment in that he had been given the most discouraging news of all.  On behalf of the respondent it was argued that the remark to the effect that the applicant had little chance coupled with an explanation, which Dr. Roberts said that applicant appeared not to accept as to his shortcomings, could amount to an advantage.  It was suggested that an explanation some months in advance of the areas to be addressed could have been of assistance to an applicant.  The Tribunal, whilst preferring the factual basis contended for by Dr. Roberts and so finding as to the date and the content of the conversation, acknowledged that there is scope for both points of view as contended for by the parties.”

9.	Thus, this time, there is a finding as to the basic facts (viz., that they are as contended for by Dr. Roberts), but no finding as to any inferences to be drawn therefrom.

10.	Fourth, in paragraphs 20 and 21 the Tribunal summarised the evidence as to the interview and noted the respective contentions as to the inferences to be drawn.  For its part, it largely avoided including its own inferences in these paragraphs.  Thus, it noted and adopted criticism of the arrangements for the interview as not meeting the University’s own policies;  further, it made an opaque contribution to the debate as to the significance of the composition of the interviewing panel:

“It was argued that the Applicant was thus faced with an interview panel who already slanted away from him when they were at least neutral towards his competitor, Dr. Lawrence.  This is an aspect which again the Tribunal considered;  one member of the Tribunal took the view that in these particular circumstances prior knowledge of the apparent strengths and weaknesses of an internal candidate was not necessarily less favourable treatment.”

11.	Fifth, in paragraph 22 the Tribunal notes the case as to the subsequent cover up but makes no findings save that which are implicit in the following passage:

“..... In many respects inconsistencies have been exposed in these documents between their contents and the evidence given subsequently and to this Tribunal.  Those are not without substance and we bear them in mind in the task we have to address, namely whether there has been less favourable treatment and, if so, whether it is attributable to the applicant’s race.  In this task we are entitled to rely on our assessments of the individuals who have come to us and given evidence.  It has been suggested to us that the respondents, and in particular Dr Roberts, have sought, ex post facto, to justify the decision that was made so as to deny that it was racially tainted.  We think there is some force in the suggestion that Dr. Roberts and Mr. Briant knew by August 1996 that they faced a potential personnel issue with the applicant.  Neither had any or any adequate equal opportunities training, but we are satisfied that they were anxious to ensure that they dealt with the applicant fairly, according to their limited familiarity with the equal opportunities policies and their legal duties.”

12.	Sixth, the Extended Reasons conclude as follows:

“23.	We have born in mind that we are dealing with individuals who are involved in leading edge research in a very specialised field.  It is, of course, quite impossible for this Tribunal to evaluate the relative scientific merits of the two candidates and we do not attempt to do so.  The appellant’s case has been argued in the footing that Dr. Roberts regarded him as a very poor scientist.  We do not think that this is a correct interpretation of the respondent’s case, in particular, of Dr. Robert’s attitude.  The applicant is a highly intelligent man who has a PhD from Strathclyde University.  He had achieved academic distinction, but was operating, with others, at one of the highest planes of academia.  We do not think Dr. Roberts intended to convey that he regarded the applicant as a poor scientist, simply that whilst he had strengths he also had weaknesses and that, in his view, these weaknesses were such that when compared with the mix of strengths and weaknesses that Dr. Lawrence brought Dr. Anya was the less favourable candidate.  It would be inappropriate for us to characterise any of the witnesses coming before us in this hearing as being untruthful, but we have to say that we regard Dr. Roberts and Professor Cantor as being essentially witnesses of truth despite the inconsistencies that were exposed under skilful cross-examination.
24.	The unanimous view of the Tribunal is that we are satisfied that the applicant received less favourable treatment in that Dr. Lawrence was appointed when he was not.  We are invited to draw the inference (that) was because of his race and not, as the respondents claim, on a genuine assessment of his scientific strengths and weaknesses.  We are disposed to accept the respondents’ explanation and in our view the evidence is not sufficient to justify us in drawing the inference of discrimination.”

The Appeal

13.	In a forceful address, Mr. Hochhauser QC submitted that it behoved this Tribunal to be guided by the passage cited from King v Great Britain - China Centre, op. cit., and that necessarily meant that its initial task was to find the facts.  Once such were found it was then its task to consider the totality of those facts when considering the subsequent issues:  whether discrimination was demonstrated, whether such raised race as a possible basis and the quality of the Respondents’ explanation.  Here, he submitted, the Tribunal had largely shirked the fact finding exercise - and in any event its approach to the remaining issues was haphazard and unsatisfactory.  As he put it in his skeleton argument:  “The Tribunal in this case fell into legal error in the way it approached the case.  It left undecided important disputes of primary fact.  It failed to analyse the evidence rigorously, or to view the evidence as a whole ..... the Tribunal appear to have picked up pieces of the jigsaw puzzle, but did not attempt to put them together in a coherent way.”  By way of reply, Mr. Underhill QC’s submission was well summarised in the last paragraph of his skeleton argument.

“18.	Overall, the grounds of appeal here are a good instance of an appellant trying to find issues of law by refined and unrealistic criticism of the Tribunal’s approach.  A lost because the Tribunal, having reviewed all the evidence (background and foreground), believe that the members of the Committee who appointed Dr. Lawrence reached their decision on a genuine and non-racial assessment of the merits of the two candidates;  and rejected A’s case that that explanation was cooked up after the event;  in particular, it accepted the evidence of Dr. Roberts (who N.B., is a personal Respondent in these proceedings) wherever there was a conflict with A’s evidence ......  That reasoning is fully apparent from the Reasons.  The decision is good in law.”

14.	This short summary does scant justice to the extent, vigour and skill of the respective submissions.  We trust that our disposal of this appeal sufficiently reflects our appreciation and understanding of the latter.

This Tribunal

15.	In a decision of this Tribunal (mystifyingly unreported) Qureshi v Victoria University of Manchester, 21st June 1996, EAT/484/95 an effort was made to assist Tribunals confronted by a complaint of racial discrimination reflecting wide ranging allegations of fact.  Thus the judgment includes the following passage:

“In the present case, it was necessary for the Tribunal to examine all the allegations made by Dr Qureshi  of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of.  There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint.  In the present case it was necessary for the Tribunal to find the primary facts about those allegations.  It was not, however, necessary for the Tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on “racial grounds” or on other grounds.  That is a misapprehension about the nature and purpose of evidentiary facts.  The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on “racial grounds”.  The fragmented approach by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds.  The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not.  The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference.  The Tribunal may find the force of the primary facts is sufficient to justify an inference of racial grounds.  It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision.”

This Tribunal

16.	After careful deliberation our conclusions are as follows:

a.	We readily acknowledge that that which was adumbrated by Neill L.J. was a systematic approach to the trying of complaints of racial discrimination, an approach aimed at reflecting the burden of proof, whilst giving opportunity for covert, potentially unacknowledged racial discrimination to be exposed.  By way of that approach, facts are found, discrimination (if any) identified on the basis of such facts;  the possibility of a racial basis (if any such) similarly identified;  and explanations sought and adjudicated upon.  All this is binding upon us - and we are readily loyal to the decision of this Tribunal in Qureshi  in so far as that tenders practical guidance to the fact finding Tribunal.  All that said, we reject the notion that the systematic approach inhibits a Tribunal from having any overview until the final stage.  Thus a Tribunal is inevitably concerned about materiality when receiving evidence and for that matter an overview is essential.  True, it may hesitate before curtailing on grounds of relevancy evidence tendered to it by the parties, given the premium on exposing that which may be covert, but it cannot abdicate its ultimate control over materiality to the parties.  Further, we reject the notion that a Tribunal is obliged to make findings on all issues as posed on the evidence whether or no such are material or necessary for disposal of the case.  Throughout, the practicalities of an effective Tribunal hearing demand the retention of control, which in its turn calls for a continuing overview of the case as a whole.  Here all was or should have been directed to the ultimate issue ‘racial discrimination, or no’ and it is inevitable and right that the Tribunal should be measuring its functioning whether in receiving facts or in finding facts by reference to a potential for contribution to the resolution of that issue.  In so far as there was an argument advanced to us to the effect that the systematic approach adumbrated by Neill L.J. inhibited the Tribunal from doing other than receiving all the evidence put before it and thereafter making all the findings of fact that are sought on the basis that until that exercise be complete the potential for evidence of discrimination and of the possibility of a racial explanation cannot be adjudged, we reject it.  The fact that a Tribunal may be slow to disappoint the expectations of the parties when fact finding, cannot prevent it from doing so when it deems it appropriate by reference to the bounds of materiality.  It cannot be wholly inhibited from setting the latter at any stage in the hearing.

b.	In the event the Tribunal placed no inhibitions on receiving evidence and did so over no less the eleven days, aided by skilled practitioners.  It plainly paid attention and no complaint is made about the summary of the evidence set out in the Extended Reasons.  We interpose:  it is difficult to conceive of any Tribunal listening to that evidence over that period of time with an eye to one essential issue ‘racial discrimination, or no’, without forming a well founded overall impression.  To this, we return shortly.

c.	Turning to the fact finding exercise, it is a matter of record that the Tribunal made no specific findings with respect to the treatment allegedly meted out to Dr. Anya in the period leading up to the selection issue.  Dealing with the balance of the case there are only such findings as can be discerned in paragraphs 19, 22 and 23, all of which are already cited in full in this judgment.  Plainly Mr. Hochhauser is factually correct in his submission that much potential fact finding has been avoided.  Further, he reasonably draws attention to the diffident and equivocal recital of alternative views as to the implication of certain events.  Additionally, it can fairly be noted that if the Tribunal had a policy about fact finding it did not express it.  

d.	Given then that there is material upon which Mr. Hochhauser seeks to have the appeal allowed and the matter remitted for a rehearing by a differently constituted bench, what is the weight of that material?  For our part we have found it quite impossible to look at the impugned fact finding exercise in isolation, that is, without an eye on the potential for a better fact finding exercise in giving a more definitive answer to the question, ‘racial discrimination or no’.  So soon as we turn to the prospects for proving racial discrimination, we are struck by the following.  First, no evidence of overt racial discrimination has ever been identified.  Second, so far the only proven act of discrimination with possible racial overtones is the rejection of Dr. Anya by the interviewers in favour of the white Dr. Lawrence - or, to be more accurate, the failure of Dr. Roberts, as abetted by Mr. Briant, to overrule Dr. Czernuska’s admittedly non-discriminatory rejection of Dr. Anya on academic grounds.  We write ‘so far’ out of deference to the complaint of inadequate fact finding but it is difficult to see what other facts once found could serve to make Dr. Anya’s case additional to the proven act more effective.  Dealing with the proven act, it is to be remembered that, as Mr. Underhill ruefully acknowledged, the discriminatory element was set up as inevitable by the earlier reduction of the short list to two persons, one black and one white so that whichever lost could have a prima facie complaint of racial discrimination - and, ironically, a rejected Dr. Lawrence might have had an arguably stronger complaint viz,:  ‘notwithstanding all the encouragement given to me I have been rejected and I allege that positive racial discrimination is the only answer’.  What should save the University from this self-created absurdity?  The answer should be that rebuttal of racially discriminatory inferences arising out of such a selection process will be readily achieved, absent some strong evidence peculiar to the situation which enables the inference to be maintained so as to be proven.  That prompts an overall view of this case and the presently apparent probabilities.  Some two years prior to this alleged piece of discrimination Dr. Anya  had been selected to join this Department - and we were told in argument the Dr. Roberts had played some part in his then selection.  The Department that he joined was, per the Tribunal, ‘involved in leading edge research in a very specialised field’.  In such circumstances it is, alas, possible that thereafter his academic skills were not properly fostered and utilised on freshly developed racial grounds but, absent compelling facts, such is plainly improbable.  Turning to the selection process it is, also, possible that he was the better candidate from the Department’s point of view but, that notwithstanding, was in the event rejected on grounds of race, but, absent compelling facts, such is plainly improbable.  Again, it is possible that Dr. Roberts was assisted directly or indirectly in achieving or concealing racial discrimination by the presumably adventitious rejection of Dr. Anya by the independent Dr. Czernuska and by the complicit conduct of Mr. Briant and Professor Cantor, but again, absent compelling evidence, it is plainly improbable.  Paradoxically any case suggesting complicit conduct on the part of Mr. Briant and Professor Cantor militates against a racial explanation - and indeed so soon as there is substituted for ‘racial grounds’, ‘grounds relating to personality, further or alternatively to academic skill’ that which is merely possible becomes seriatim readily probable.

17. 	We turn to the approach of the Tribunal and the practical guidance given by Qureshi, op. cit.  Each side claimed comfort from the latter in support of their respective submissions.  Each is entitled to do so.  Thus, that which this Tribunal there advocated in terms of finding and utilising facts is not to be found in the Extended Reasons and to that extent Qureshi provides support for the appeal.  That said, this Tribunal’s similar advocacy for an assessment ‘racial discrimination, or no’ by reference to an overview of the totality of the facts must have been, as we think, heeded.  Nobody in the context of a complaint of racial discrimination could have listened to evidence over so many days without a growing and legitimate realisation that Dr. Anya’s task of proving such was speculative to the point of being hopeless.  We think that the Tribunal obtained such an overview from the totality of that which was put before it and gave expression to it in the relatively brief general terms of the concluding paragraphs of the Extended Reasons.  We think further that any such overview must consciously or unconsciously have affected the Tribunal’s fact finding initiative:  why find the specific facts that are sought when it is obvious that none such are going to provide those compelling grounds that will turn that which we have identified as possible into that which has been proved as probable?  The answer to our rhetorical question as to the weight of the material identified by Mr. Hochhauser as a basis for allowing this appeal and remitting for a rehearing, is that it is insufficient given the overall lack of merit.  If we had a hint that systematic fact finding might uncover that which so far as resisted every investigory process then we would allow the appeal, but any such hint escapes us, leaving nothing to justify a rehearing.

18.	We reiterate our deference to the authorities.  We emphasise that this case features a complaint with such inherent improbabilities as in our judgment can properly curtail the fact finding process in favour of the mature, simple overview.

Post Script

19.	We learned that the representation of Dr. Anya by Mr. Hochhauser QC and Mr. Stanley as instructed by Charles Russell, solicitors, was a pro bono exercise.  They are to be warmly commended for their unstinting and generous efforts to support Dr. Anya and thus the public interest.  This Tribunal is truly grateful to them.