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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Warwick Park School & Anor v. Hazlehurst & Anor [2001] UKEAT 540_99_1902 (19 February 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/540_99_1902.html Cite as: [2001] UKEAT 540_99_1902

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APPEARANCES

 

For the Appellants	MS S BELGRAVE (of Counsel) London Borough of Southwark Legal Services South House 30-32 Peckham Road London SE5 8UB
For the Respondents	MR A KAIHIVA (of Counsel) Messrs John Itsagwede & Co Solicitors 163 Rye Lane London SE15 4TL


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal chiefly concerns the inference of direct racial discrimination. The Employment Tribunal at London (South) under the Chairmanship of Mr J. Warren heard three conjoined complaints between the 16th and the 25th March 1998 and met again in Chambers in late-June 1998 before sending their decision and extended reasons to the parties on the 4th March 1999. The Tribunal held that the Respondents, the Governors of Warwick Park School and the London Borough of Southwark, had discriminated on racial grounds against all 3 applicants. The Governors and the London Borough appeal.
2. In 1997 the Governors of Warwick Park School in the London Borough of Southwark decided to reorganise the School's management. Five new management posts were to be created. Applications were, in the first place, to be invited only from teachers already at the School. Amongst the applicants for some of the 5 new posts were the applicants below, Mr Hazlehurst, Miss Frith and Mrs Odle, all Afro-Caribbeans. They had white competitors. Of the 5 posts on offer, only 4 concern us and the competition was as follows:-

(i) Position 1 - Monitoring and Assessment Manager

1 black (Mr Hazlehurst) and 2 whites (Mr Sankey and Mr McKernan) applied. Mr Hazlehurst was not short-listed; the 2 whites were;

(ii) Position 2 - Day-to-day Manager

1 black (Mrs Odle) and 1 white (Ms Devine) applied. The white was short- listed, the black was not;

(iii) Position 4 - Key Stage 3 Manager

1 black (Miss Frith) and 2 whites applied (Mr Sankey and Mr Kemal, the latter being of Turkish extraction). Mr Kemal and Mr Sankey were short-listed, Miss Frith was not;

(iv) Position 5 - Key Stage 4 Manager

1 black (Miss Frith) and 2 whites (Mr Kemal and Mr Blewett) applied. The latter 2 were short-listed; Miss Frith was not.

3. Between the 15th July 1997 and 30th July 1997 the 3 Applicants presented their respective IT1s. Each complained that he or she had not been short-listed by reason of race and Mrs Odle also raised additional complaints. There was then a conjoined hearing, as we have mentioned, and the unanimous decision was that the respondents below, the Governors of the School and the London Borough, had discriminated against each of the Applicants "In their handling of the short-listing process". Mrs Odle's other applications, which were as to victimisation and harassment on the grounds of race, breach of contract and in relation to deduction of wages, were dismissed; there is no appeal against that dismissal.
4. On the 14th April 1999 the Employment Appeal Tribunal received a Notice of Appeal on behalf of both the Governors and the London Borough. Miss Belgrave appeared for the Appellants before us and had appeared for them as respondents below. The Notice of Appeal was substantially amended in July 1999. The 3 respondents to the appeal, the Applicants below, appear before us by Mr Kaihiva; he had not appeared for any of them below but they had been represented by a Solicitor or Counsel at the hearing before the Employment Tribunal. There is no cross-appeal.
5. The short-listing process was conducted by a panel of 3, the Reverend Dianna Hartley, Police Constable Smith and Mrs Aune, all of whom are white. We have the Chairman's Notes as to the oral evidence that each of them gave to the Tribunal below.
6. As we shall see, the Employment Tribunal inferred the presence of racial discrimination and it will first be useful for us to say something as to inference. The complaints of racial discrimination with which the Employment Tribunal were concerned were exclusively of direct racial discrimination within section 1 (1) (a) of the 1975 Act; our remarks as to inference are to be taken to be limited to that context.
7. A useful starting point in relation to inference is the well-known dictum of Neill L.J. in King -v- Great Britain China Centre [1992] ICR 516 at 528 f - 529 c and, in particular, the passages where he says, in relation to racial discrimination:-

"(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. ..........

(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 primary facts and draw such inference 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."

Neill L.J. had earlier cited a passage from North West Thames Regional Health Authority -v- Noone [1988] ICR 813 at 822 where May L.J. had said:-

" .... I would have thought that it was almost common sense that if there is a finding of discrimination and of difference of race and then an [in]adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."

8. In Chapman -v- Simon [1994] IRLR 124 C.A. Balcombe L.J. added at p. 128:-

"In order to justify an inference, a Tribunal must first make findings of primary facts from which it is legitimate to draw the inference. If there are no such findings, then there can be no such inference: what is done can at best be speculation."

At p. 129 Peter Gibson L.J. continued:-

"More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding rôle, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."

At the beginning of his judgment Peter Gibson L.J. had stated that complaints of racial discrimination were by their nature serious. To the respondents to them, especially those in professional positions, they represented very serious allegations and, because of that and because those who have suffered racial discrimination will have suffered a serious wrong, Employment Tribunals should perform their duties, he said, with meticulous care.

9. Not only are we, of course, bound by those decisions but we would very much wish to endorse the approach that they adopt. However, whilst nothing in those authorities requires that an Employment Tribunal should draw an inference as to the presence or, indeed, absence of racial discrimination only where that inference is the only one that can reasonably be drawn, we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have. Whilst there can, no doubt, be arrived at a stage at which, on the particular facts of a case, the presence of a number of entirely equivocal factors can seem to justify an inference of racial discrimination because an alternative view of the merely coincidental collocation of those factors is, on the particular facts, improbable, a common case, if that improbability is not shewn and if each factor relied on is in itself of no significance in support of the inference drawn, will be rather as it would be in mathematics; however many zeros one adds to zero the outcome is still zero. We do not say, in any such case where the primary facts are entirely equivocal and whatever explanations as are given point no more in one direction than in another, that the explanation for its inference to be given by a Tribunal need be so compelling that no-one, understanding it, could thereafter still regard the primary facts relied upon as equivocal or the explanation given as inconclusive. However, if, at first blush, every primary fact is equivocal or the explanations given point in no clear direction , we see it as an error of law on a Tribunal's part for it to give no explanation whatsoever of why what is apparently equivalent or inconclusive should end up being regarded as matter pointing in whichever direction they have inferred it to point. To give no explanation at all in such a case is not necessarily for the Tribunal to err in the drawing of inferences but rather an error of law in relation to the giving of adequate reasons, reasons satisfying the well-known test in Meek -v- City of Birmingham [1987] IRLR 251 C.A. where Bingham L.J., as he then was, said that a decision of an Employment Tribunal has to contain, inter alia, a statement of the reasons which have led the Tribunal to reach the conclusion which they do on the particular basic facts which they have found -see paragraph 8 in the IRLR report.
10. In assessing the adequacy of the primary facts found as support for the particular inference drawn it is necessary to appraise both the individual merits of the facts as support for the inference drawn and their cumulative effect - Qureshi -v- London Borough of Newham [1997] IRLR 264 C.A. at 266 paragraph 19 per Leggatt L.J. - but in the course of that appraisal it is important to recollect that it is not incompetence or unreasonableness as such which the Employment Tribunal should be looking to find present or absent. As Qureshi illustrates, incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority, a point, in effect, made in relation to unreasonableness in Glasgow City Council -v- Zafar [1998] IRLR 36 H.L. at p. 38 paragraph 12.
11. With such law in mind we shall turn to see what it was that in the case at hand was regarded as supporting the inference of racial discrimination at which the Tribunal arrived but we must first deal with a quite separate ground of appeal asserted by Miss Belgrave. She draws attention to the considerable delay between the last day of the evidence and argument, in late March 1998, and the promulgation of the decision and extended reasons in March 1999. She seeks to draw parallels with Goose -v- Wilson Sandford & Co., The Times 19th February 1998, C.A., of which we were supplied with a full transcript. However, whilst the delay in our case was prolonged, unfortunate and unexplained, we see no reason to suppose that the Tribunal had forgotten or overlooked any material evidence either by reason of the delay or at all. This ground of the appeal fails - and see Cobham -v- Frett, P.C., The Times 24th January 2001.
12. Returning, then, to the grounds said to support the inference of racial discrimination, the short-listing panel consisted only of whites but that, whatever (if any) weight it might otherwise have been appropriate to attribute to it, is, at is seems to us, of little significance here because it occurred by mischance. The panel had been intended to include Mrs Norma Gibbs, then the Head Teacher of the School, who is black, but she was unexpectedly taken sick at the last minute, was unable to attend and was replaced at short notice by the Deputy Head, Mrs Aune.
13. The Employment Tribunal commented that the School Governors had not at the time adopted the Equal Opportunity Policy which the London Borough had and they added that the short-listing panel paid no heed to that Southwark policy. However, that was no ground for any form of inference; the School had its own Equal Opportunity Policy and there is no finding by the Tribunal that the 3 on the short-listing panel even knew of the Southwark policy or that it would at the time have been open to them to adopt it, nor is there any finding that they were even aware that the School's own policy was (as it was) inadequate. That might signify ignorance but it is not a pointer to any racial ground.
14. The Employment Tribunal notes that the short-listing panel held a preliminary discussion before short-listing began and devised a scoring system that failed to fix (assuming one could fix) agreed standards or benchmarks to ensure consistency of marking. But it has to be borne in mind that the panel was not of, say, Human Resource Officers to whom short-listing was a frequent and familiar task but was of School Governors, namely Police Constable Smith, a Parent Governor, who agreed to be Chairman of the short-listing panel, the Reverend Hartley, a local Clergywoman, Chairman of the School Governors and Mrs Aune, Deputy Head of the School. It had not been their idea that there should be a short-listing; they had been requested to act by Mrs Gibbs. Mr Smith had never participated in a short-listing panel before. Those familiar with short-listing techniques (and I here include the 2 Lay Members sitting with me) see only too clearly that there were numerous defects in the way the short-listing was conducted but, so far from holding that the defects were used here to cloak racial discrimination, the Employment Tribunal expressly held that there had been no intentional discrimination on the grounds of race. The Employment Tribunal said "Unreservedly we do not believe that it was the panel members' intention to discriminate against the Applicants on grounds of race". They said much the same separately in relation to each of the 3 Applicants whose cases were then considered separately. In the circumstances the short-comings in the process and the absence of set criteria were at least as fairly attributable to incompetence, ignorance and unfamiliarity with short-listing on the part of the panel as with racial discrimination. There was no finding that in any material respect the panel was other than even-handed in its distribution of any such incompetence, ignorance or unfamiliarity with due process.
15. The Employment Tribunal recorded that the short-listing panel did not have a Local Education Authority Inspector to assist it and that the panellists acknowledged to the Tribunal that they should have had one. But there is no finding that one had been offered to them but had for any reason been refused. The point, whilst no doubt going to the competence and adequacy of the Governors' and Boroughs' arrangements, says nothing about discrimination on racial grounds. The same is to be said of the Tribunal's comment at the relatively scant paperwork that was laid before the panel.
16. The Tribunal next questioned whether there had needed to be a short-listing process at all; with so few candidates why not go straight to selection by interview? We see the force of the observation but we do not see it as a possible pointer to the presence or absence of racial discrimination.
17. Coming to the Tribunal's comments on the separate cases of the 3 applicants, a consideration which is important because of the frequent reference made to it by the Tribunal is that the panel members allowed "extraneous" matters to affect them when considering the marks to be given to each respective candidate in the short-listing exercise. "Extraneous" considerations in this context means considerations not arising directly out of the candidate's application form but from the respective members' own personal knowledge of the candidate derived other than from that form. The personal knowledge so taken into account was identified by the Tribunal and it was not held to be or include personal knowledge of or related to the respective races of the various competitors for the jobs. The point about extraneous considerations is made in relation to each of the applicants in several passages such as the following:-

"Mrs Aune and Reverend Hartley both allowed extraneous considerations to affect them when considering Mr Hazlehurst's application form and down-marked him as a result ..."

"Again the panel members own perceived knowledge of his abilities influenced their marking ..."

"Again the personal knowledge of the panel members was used to the advantage of the white candidate and to the disadvantage of the black."

"The Reverend Hartley and Mrs Aune when assessing {Miss Frith} and the other candidates relied on their own knowledge and/or information gained from other sources; they did not rely solely on the contents of the application form and took that knowledge and information into account when awarding the scores."

"Reverend Hartley and Mrs Aune took into account other matters known to them about the white candidates in a positive way and reacted negatively to Miss Frith ..."

"... All of the panellists took into account their knowledge of Mrs Odle ..."

"All members .... took into account Mrs Odle's volatility and perceived problems when dealing with Senior Management - these were not considerations appropriate in the short-listing process - but more appropriate to the interview."

"The short-listing process should have been completed by strictly assessing each applicant's completed application form for the post for which they applied ... The panellists all took into account positive personal information known of all the white candidates and negative information in respect of the black candidates .... It was clear to us that white candidates were treated positively in that respect from the panel's own knowledge but the black candidates were treated in a negative way."

18. Those are not the only possible citations to similar effect and the point plainly loomed large in the Tribunal's reasoning. But does it not need more explanation? There was no case made as to indirect discrimination, a case, for example, that the class of which the 3 panellists had personal knowledge was largely white and that in referring to their personal knowledge the panel was, albeit unintentionally, indirectly discriminating against the black applicants. Nor, on the facts found, including that in three of the four posts the white candidates outnumbered the black and that in the fourth case black and white were equal in number as applicants, is it a case where the inescapably limited statistics can be said to speak for themselves. Nor, even if taking into account extraneous knowledge may be frowned upon in the best ordered of short-listing processes, can it assuredly be said to be a real short-coming, especially when the panellists are not professionals experienced in the process. Given that the Tribunal "unreservedly" did not believe it was the panel's intention to discriminate there had plainly been no separate intent in any panellist nor any conspiracy between them to use personal knowledge to dress-up what was truly discrimination on racial grounds.
19. Moreover, on the Tribunal's own finding, reference by the panel to their own personal knowledge was expected by the panellists and perhaps by the candidates; the Tribunal say:-

"All panel members took the view that internal candidates might not elaborate in their application forms as much as if they were external candidates applying, as the candidates would assume that the panel would have some personal knowledge of their ability and experience and would take that into account."

20. If reference to personal knowledge need not be excluded and if (as was the case) the knowledge in question was of features of personal knowledge unrelated to race, then if the "unracial" personal knowledge of the panel happened to be, in relation to the whites, that it was truly such as tended to enhance their position and if the corresponding personal knowledge, in relation to the blacks, was truly such that it tended to lower them in the estimating process, the enhancement of the one and the disadvantage of the other would not be racial discrimination but simply a discrimination motivated by a proper and reasonable preference, including a preference by reference to acceptable personal knowledge, rather than one involving racial grounds. Indeed, once such personal knowledge of the panellists can be seen to be capable of being referred to without that being of itself discriminatory on racial grounds, then if it truly was to the advantage of one group and to the disadvantage of another there could have been a risk that it would have been discriminatory on racial grounds not to take it into account. A crucial test, as it seems to us, would have been whether there was any negative factor deriving from personal knowledge to the disadvantage of any white candidate or any ameliorating factor from personal knowledge to the advantage of any black candidate which could be identified as having been within the personal knowledge of any member of the short-listing panel but which then could be seen or could be inferred to have been ignored. Neither we nor Mr Kaihiva could find any hint of the existence of either type. Indeed, so far as one can tell the Tribunal never directed themselves to this test.
21. The Tribunal records that after the assessment process had been completed the panel noted that no black applicant had been listed and that at the time "They regretted that that was the case". There is no finding that the regret was insincere. The Tribunal went on to say that their selection had not raised "alarm bells" with the panel and that the panel did not consider they should review their decisions. But given that for each job the white applicants either outnumbered the black or were equal in number, it is far from clear that the fact that no black had been short-listed should have rung any "alarm bells". If each panel member looking to his or her own performance could see no racial discrimination (and the Tribunal, as we have mentioned, found that any racial discrimination was unconscious) then one would hardly expect "alarm bells" to sound and the notion that the Tribunal next mentioned - that wide disparities in the marking merited a second look at the scoring process- was a matter considered by the panel which took a conscious decision that they did not need to review their initial decision. In effect, the panel, having reflected on the point, considered that no alarm bell could be heard. That they were alive to the possibility of racial discrimination but honestly saw it not to be present is no significant factor suggesting its presence. In any event, if personal knowledge was to be taken into account wide disparities in the marking would not be unexpected as different panellists would be drawing on different knowledge.
22. There were occasional errors in the marking by the panel which were identified by the Tribunal but there is no finding that they were other than errors and in one case the inconsistency found (between the marks of Mr Hazlehurst and those of Miss Frith) was not as between black and white but as between two blacks. The Tribunal showed no wish to regard the mistakes alone as justifying that inference of racial discrimination which in the case of each of the 3 applicants the Tribunal inferred. They record that each of the panellists was shocked to be accused of behaving in a discriminatory way on the grounds of race; there is no suggestion that the shock was other than real. Given that the panellists were a Minister of Religion, a Policeman representing the parents at the school and the Deputy Head of the school one can see that the case was one of that class which, to use Peter Gibson L.J.'s phrase, was one in which the Tribunal needed to have performed their duties with meticulous care. As we have mentioned the Tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained. We are far from saying that there was no racial discrimination in this case; there may have been. We are not in any position to judge whether there was or not and it is not a question which is before us. What we do say, though, is that to ground their inference the Tribunal seems to have relied upon a series of factors each of which is either weightless as to the presence or absence of actionable discrimination or thoroughly equivocal. Quite the most important of them - the reliance on personal knowledge - is not, without more, indicative of discrimination on racial grounds and the obvious way of testing whether it did indicate such discrimination was not deployed and it has been left unexplained why this factor should have been given the considerable force the Tribunal seems to have ascribed to it. If, to revert to our earlier mathematical analogy, one has a series of factors each of which can equally be a number or zero, it is necessary, when asserting that the aggregate is a number, to say, however briefly, why some, at least, of the factors should not be taken to have been a zero. That the Tribunal did not do. In particular, why did it point to discrimination on racial grounds for the panel to have taken into account personal knowledge, given that there was no finding of any good of blacks nor any bad of whites which was in the mind of any of the panellists but was ignored? The error of law we see may not be one as to discrimination but it is one of explanation. The reasons for the crucial inference are not adequately given to satisfy Meek supra. Accordingly we allow the appeal and remit the matter to be heard afresh by a different Tribunal.