Appeal No.	EAT/1300/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 January 2002

Before
MR RECORDER BURKE QC
MISS C HOLROYD
MR D A C LAMBERT

MR Z IQBAL	APPELLANT

1) COMMISSIONER OF POLICE FOR THE METROPOLIS 2) NATIONAL TRANSCOMMUNICATIONS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR R KELLAR
(Of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

MR RECORDER BURKE QC
1.	This is the preliminary hearing of Mr Iqbal’s appeal against the dismissal by the Employment Tribunal at London (South), chaired by Mr Booth and, with Extended Reasons, sent to the parties on 7th September of last year of his claim that his employers, for all relevant purposes the Metropolitan Police, had been guilty of racial discrimination. There was a second Respondent before the Tribunal who has become the employer of Mr Iqbal as a result of a transfer to which the Transfer of Undertakings Regulations 1981 applied. The transfer is an issue to which we will refer later.

2.	The story is a sad one. Mr Iqbal is a Muslim of Pakistani origin. He was first employed by the Metropolitan Police in 1981. Between 1985 and 1995 he made 24 applications for promotion, none of which succeeded, save in one case in which he was offered a promoted post but at a lesser salary and, not surprisingly, rejected it. 

3.	After the last failure in 1995 he gave up applying for promotion; but he was distressed when, in his annual assessment for 1996/97, out of five boxes, in one of which an overall assessment has to be made, where box 1 is for truly outstanding performance and box 5 is the other end of the spectrum, he was marked in box 3 whereas a white colleague who Mr Iqbal regarded as less competent received a mark in Box 2. He appealed this decision through two stages but met with no success. As a result in February 1999 Mr Iqbal commenced grievance proceedings against this assessment and the failure to rectify it on appeal. That procedure in turn went through three stages; and again Mr Iqbal was unsuccessful on each occasion. 

4.	Due to the statutory time limits Mr Iqbal’s complaints to the Tribunal about his failure to gain promotion and his assessments were, at a preliminary hearing, excluded. The substantial hearing proceeded on the basis of three complaints of direct discrimination. While the Originating Application which Mr Iqbal presented to the Tribunal in August 1999 refers to indirect discrimination, it has become clear in discussion with Mr Iqbal and Mr Kellar, who has very competently represented him today under the ELAA Scheme, that the reference to indirect discrimination is a reference to the mechanism by which what the law describes as direct discrimination took place in this case and not a reference to what the law describes as a different type of discrimination namely indirect discrimination under Section 1[1](b) of the Race Relations Act 1976. This is a case which was, as a matter of law, a direct discrimination case only. 

5.	The basis of the complaints before the Tribunal was, firstly, the delay on the part of the Metropolitan Police in proceeding with Mr Iqbal’s appeals against the assessment for 1996/97 which we have described and secondly, the way in which the three stages of the grievance procedure were dealt with. The third complaint arose in a slightly different way and in a second Originating Application. Mr Iqbal was transferred under the Transfer of Undertakings Regulations to the second Respondents to the claim, who were outside contractors, when the function in which Mr Iqbal worked was contracted out by the Metropolitan Police. The complaint was that Mr Iqbal had been victimised in respect of protected acts, namely by making his complaints of racial discrimination in the grievance procedure and the presentation of his first Originating Application, by being transferred, against his will, to the contractors to whom the function in which he worked had been contracted out.

6.	The Tribunal directed itself as to the law in paragraphs 7 to 12 of its lengthy and detailed decision which it reached after a five-day hearing. It has not been suggested that the Tribunal’s self-direction was in any way erroneous. The Tribunal started from the position that, in respect of the three matters complained of, Mr Iqbal had been subjected to detriment. It directed itself to consider what were the employer’s explanation as to why Mr Iqbal had been treated as he was in those respects, to consider whether the explanation was inadequate or unsatisfactory and if not, to consider whether it should draw an inference of racial discrimination or victimisation. This was a manifestly correct approach to the issues which arose in the case. 

7.	The Tribunal concluded that, as to the initial appeal, there was nothing which indicated any significant delay. The second appeal was dealt with by a Mr Glaister. Of him the Tribunal were strongly critical. They said that the very substantial delay in Mr Glaister’s dealing with the appeal was inexcusable and that his attempts to explain it were untenable. However, they concluded, as a conclusion of fact, that, despite the delay and the abrupt terms in which Mr Glaister informed Mr Iqbal of his decision, there was nothing from which an inference that race had been a factor should be inferred. They based this conclusion on their factual finding, which finding is not criticised by Mr Iqbal or Mr Kellar on his behalf, that a white employee who had similarly appealed to Mr Glaister was dealt with in exactly the same way (see paragraphs 26, 27 and 50 of the decision).

8.	The point has been made on Mr Iqbal’s behalf that the merits of the white employee’s appeal were of an entirely different and lesser order than those of Mr Iqbal. However, what the Tribunal was considering was not the merits of the two cases but the process by which they were dealt with; and the comparison was as to the process not the merits. The Tribunal, it seems to us, were entitled to conclude that the white employee’s appeal had been dealt with equally badly as had Mr Iqbal’s appeal by Mr Glaister, and to conclude that they did not infer from the way in which Mr Glaister dealt with Mr Iqbal’s appeal that there had been racial discrimination. 

9.	The Tribunal went on to find, and it is not necessary for present purposes to set out all the reasoning in detail, that they could not draw an inference of racial discrimination in the case of any of the three stages of the grievance procedure. It was for the Tribunal to decide on the evidence whether to accept the explanations and account of the process which were given and whether to draw, or not to draw, inferences of racial discrimination so far as those matters were concerned. This was a lengthy, thorough and painstaking decision in which all of the relevant factors and many others were plainly in the mind of the Tribunal when they reached their decision. 

10.	In his Notice of Appeal, Mr Iqbal criticises the Tribunal for concentrating on the motives and acts of specific named individuals when it should have considered the treatment of him by the Respondents overall. The background to this is, of course, the well-known criticisms that have publicly been made of the Metropolitan Police as being “institutionally racist”, which criticisms were put before the Tribunal and of which they were conscious as, indeed, the decision reveals. Whether the Metropolitan Police can be seen to be institutionally racist or not, as which we make no comment, the difficulty is, so far as Mr Iqbal is concerned, that each individual case has to be examined on its own individual facts. In this case, leaving aside for the moment the transfer point, the racial discrimination was alleged to have occurred in the specific ways which we have identified and at the hands of specific individuals. All of those specific individuals were called to give evidence; their conduct of the matter was thus examined and the Tribunal was the body, and the only body, which was entitled to draw conclusions as to the accounts and explanations which they gave. They accepted these accounts and explanations, as they were entitled to do, and found no racial discrimination on the facts of this particular case.

11.	So far as the transfer is concerned, the Tribunal concluded that the transfer was a commercial decision which involved Mr Iqbal and others; the Tribunal were plainly entitled, as they did, to look at the transfer on that basis. 

12.	Mr Iqbal submits that the Tribunal fell into error in certain specific ways. Firstly it is submitted that the conclusion that Mr Glaister was not acting in a racially discriminatory manner was not supported by sufficient evidence or reasoning after the conclusion that his conduct of the appeal had been inexcusable. We have already dealt with the explanation which was given on Mr Glaister’s behalf. We do not believe it to be arguable that the conclusion that the Tribunal reached about his role in this matter was not supported by evidence or was not properly reasoned. 

13.	Secondly it is submitted that the Tribunal ought to have paid more attention, as indicating errors in the handling of the grievance procedures and appeals to the apology given to Mr Iqbal by Dr Taylor, the Director of Technology Operations, after his first Originating Application. We do not see that there is any arguable criticism of the Tribunal in this respect either. Dr Taylor made it clear that he was not going to, and could not, put right what Mr Iqbal said had gone wrong by way of giving him financial compensation or the promotion that he sought or, no doubt for that matter, correcting his box marking for something which had happened, by that time, some two to three years earlier. 

14.	What Dr Taylor was plainly apologising for, as the Tribunal found, was the failure of the Metropolitan Police to do enough to develop Mr Iqbal’s career. That criticism, which is not a matter which was put before the Tribunal as part of the complaints of racial discrimination, is echoed by the Tribunal in paragraph 55 of the decision where they record their concern that no manager appeared to have spotted that Mr Iqbal’s career was getting nowhere and had reached out to him to offer consultation and advice. We do not regard the Tribunal as having found, or having been under any obligation to find, that Dr Taylor’s apology must have led them, as a matter of law, to conclude that the procedures of which Mr Iqbal had complained had been tainted by discrimination. Nor do we regard it as arguable that, in failing to take into account what Dr Taylor said in reaching their conclusions about the appeals and grievance process, the Tribunal had arguably erred in law. 

15.	Our attention was next directed to paragraph 22 of the decision in which the Tribunal found that, although of those appointed in Mr Iqbal’s year, a far higher proportion of white staff had received promotion than non-white staff. Despite this, it was argued, the Tribunal failed to reach a conclusion in favour of Mr Iqbal as to discrimination. Further it was argued that the Tribunal got its statistics wrong in any event. It was proceeding, as it clear from paragraph 48, on the basis of 21 people who joined in Mr Iqbal’s year; 17 of those were white 4 were non-white; and 13 of the white group had been promoted but none of the non-white group. Those statistics were wrong because Mr Iqbal was asking the Tribunal to concentrate on and make a comparison in respect of those who were recruited in that year for his particular function or area of the technology section. Only 14 or 15 were recruited to that function; and of these who were white, all but one had been promoted.

16.	If the Tribunal got the statistics wrong or were looking at the statistics of too broad a group, as argued on behalf of Mr Iqbal, we do not regard that as a substantial error on their part; thus of their detailed decision can properly be described as no more than a matter of detail. The reason for that is whether Mr Iqbal had been the subject of discrimination in the refusal of promotion was not primarily before the Tribunal. The Tribunal was looking at the refusal of promotion only as a matter of background. In so far as it was a matter of background, the Tribunal at paragraph 48 of its decision concluded, looking at the matter generally, that it was not possible to come to any conclusion about the events of 1985-1995 i.e. the refusal of promotion, because of a paucity of evidence. 

17.	However, they did go on to say, in paragraph 48 of the decision, that the events of 1985-1995 caused the Tribunal to look at the events of 1997-1999 “ready to draw inferences if we rejected the Respondent’s explanation”. Having regard to the fact that they were unable to come to any conclusion about those events, that statement of approach appears to us to be one which was broadly in Mr Iqbal’s favour. Even if the statistics had been slightly different we do not see how the Tribunal could arguably have been expected to approach the matter in an any more favourable way. 

18.	Next it is said that, in the penultimate sentence of paragraph 22, the Tribunal have set out a judgment upon Mr Iqbal made in 1987 by some unidentified person which had, in the evidence before the Tribunal of Mr Hubbard, who was dealing with the third and final stage of the grievance procedure, been said to have been wrong and, as we are told by Mr Iqbal today, to have been invented and fabricated (although it is difficult to see how Mr Hubbard could, some twelve to thirteen years later, have thus described something which had been said much earlier by some other person). 

19.	It may be that the Tribunal, had they set out their decision more fully would have said something about that point but there is nothing to indicate that they relied for their conclusions, in any shape or form, upon that quotation from that assessment of Mr Iqbal in 1987, erroneous as it may. We do not regard it as arguable that any mistake, or omission made by the Tribunal, in this respect could be said to undermine the important conclusions reached by the Tribunal on the primary issue before it, namely were the explanations given by the employers satisfactory and, if not, should the Tribunal infer discrimination in relation to the appeals, and grievance procedures and victimisation in relation to the transfer years later.

20.	Looking at the matter broadly and taking into account all the criticisms that have been made by Mr Iqbal and on his behalf, we see no grounds on which it can be arguably said that the Tribunal erred in reaching the conclusions they reached as to the grievance procedure and the appeal. 

21.	As to the transfer, the Tribunal concluded, as we have indicated, that in effect there was no alternative to Mr Iqbal’s moving to the private company which had taken over the function in which he worked. They found as a fact, although Mr Iqbal plainly did not accept it, that Mr Iqbal had not applied for any vacancies within the Metropolitan Police at the time. That was a finding which they were entitled to make. Once that finding was made, then the fact, statistically, that there appears to have been an unfair distribution as between whites and non-whites in those who were transferred and those who were retained does not seem to us to be of any significance. If Mr Iqbal was not seeking a vacancy elsewhere within the service and his function was transferred then it could hardly be said to have been discriminatory or victimisation to have transferred him with it; and that is what the Tribunal concluded. We do not see how that conclusion can arguably be attacked. 

22.	For these reasons, although we have to say we have great sympathy for Mr Iqbal, as we think did the Tribunal in many ways, and we recognise, as did the Tribunal, that more could have been done to help him in his career, we do not see that the Tribunal’s decision on the complaints before them can arguably be the subject of an appeal; and thus the appeal is dismissed.