Appeal No.	 EAT/575/00 EAT/576/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 July 2000

				MR RECORDER BURKE QC
MR I EZEKIEL
MR G H WRIGHT MBE

EAT/575/00
MR G O GREY	APPELLANT

LONDON BOROUGH OF SOUTHWARK & OTHERS	RESPONDENTS
______________________________________________________________________________
EAT/576/00
MS W L DANIEL	APPELLANT

LONDON BOROUGH OF SOUTHWARK & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants:

EAT/575/00
MR G O GREY 

EAT/576/00
MS W L DANIEL	MR P DOUGHTY
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

	MR RECORDER BURKE QC:	Ms Daniel and Mr Grey were employed by the London Borough of Southwark respectively as Principal Technical Officer and Principal Planning Officer.  In August 1997 they were dismissed on the grounds of redundancy.

1	Mr Grey brought proceedings in the Employment Tribunal against the London Borough of Southwark and a number of its employees as named Respondents for unfair dismissal, for racial discrimination in relation to the dismissal, for victimisation and on the basis that he had been dismissed and had action taken against him for Trade Union reasons.

2	Ms Daniel, who unlike Mr Grey was not a Union Official, brought similar claims, save that there was no claim in her case based on Trade Union reasons.  

3	Those complaints, together with that of a third employee, Ms Kamara who had also been dismissed in the same circumstances, were heard by the London (South) Tribunal over a period in excess of 30 days between January and November 1999.  The Tribunal spent six days considering its decision.  On 14 March 2000 it promulgated its decision.  Its conclusion, so far as relevant today, was that by a two to one majority the complaints of racial discrimination and victimisation were rejected.  Unanimously, the complaint that Mr Grey had been acted against for Trade Union reasons was rejected, but also unanimously the Tribunal found that all three employees had been unfairly dismissed.  The Extended Reasons cover a mammoth 54 pages.  They recite how the Tribunal had before it 22 witnesses and over 3,000 pages of documentation.  The Decision is very detailed and is set out, as it appears to us, in an orderly, meticulous and reasonably comprehensive and comprehensible way.

4	Mr Grey and Ms Daniel now appeal against the Tribunal’s rejection of their complaint of racial discrimination and victimisation.  I should point out that in the IT1s it is clear that the complaint of racial discrimination and victimisation was in relation to their selection for redundancy and consequent dismissal on that ground.  There is no appeal against the rejection of the Trade Union reasons in Mr Grey’s case.  This is, of course, a Preliminary Hearing.  

5	We have to decide whether any of the grounds set out in the Notice of Appeal, as amplified by argument before us today, is properly arguable.  I have already said and I say again, that tribute should be paid to whoever drafted the Notice of Appeal; I suspect that that was Mr Grey.  He did a good job in circumstances which must have been extremely difficult.  It has made our task easier.  We have also had the benefit of helpful argument from Mr Doughty, representing Mr Grey and Ms Daniel under the ELAAS Scheme for which we are grateful.

6	We do not propose to go through the facts of these cases in detail.  To do so would take an age and is quite unnecessary.  It should be sufficient to say that, in the early part of 1997, Southwark decided to make economies within its Strategic Planning and Investment Business Unit of its Planning and Regeneration Division.  It was decided, among other things, that £100,000 of savings were to be made within the Unit which I have named, that those savings should be made by reducing staff numbers and that out of that Unit the staff numbers should be reduced by three out of seven employees on the PO3-PO4 grade.  Of those seven employees four were black.  Of the other members of the Unit three were black and the balance were white.  

7	An elaborate procedure was set up for selection of the three from the seven who were regarded as a pool.  In the event, after that procedure was carried through, the three Applicants, two of whom are now Appellants, were selected for redundancy.  All three who were selected were black, leaving one black as not selected and three whites as not selected within the group of seven.  

8	Throughout the lengthy history which led firstly to the selection of those three Applicants and their eventual dismissal after attempts had been made towards redeployment, the three Applicants and others complained bitterly about the process and the decisions which were being made in the course of that process.  When I use the word “bitterly” I mean it in no critical sense whatsoever, they had strong complaints to make.  I need not go into details.  These complaints in the form of formal grievance procedure complaints, made on more than one occasion, continued after the selection of the three Applicants for redundancy and during the period in which they were being considered for redeployment.  

9	The three Applicants together with the fourth black member of the pool submitted on 14 May 1997 a joint grievance concerning the rationalisation programme and other steps which were being taken towards the selection, which grievance was still going through procedure when the terminations of the Applicants’ employment took effect.  Three posts which came up during the redeployment process were not opened up to the Applicants.  The Tribunal was critical of the way in which the redeployment process was operated and those criticisms were a major factor in the Tribunal’s Decision that the employees had been unfairly dismissed.

10	At paragraphs 14 and 15, the Tribunal set out a substantial list of matters from which, on behalf of the Applicants, it was suggested that the Tribunal could infer that the dismissals and the selections which led to the dismissals were on racial grounds.  Most of those matters were common as between Mr Grey and Ms Daniel but there was not a total overlap.  

11	The Tribunal made extensive findings of fact and then, in section 11 of its Decision, it set out its conclusions and its reasons for coming to those conclusions.  It went through each of the numerous matters which had been put forward on behalf of the Applicants as giving rise to an inference that there had been racial discrimination in relation to the selection and the dismissal.  It was not suggested that either in the case of Mr Grey or in the case of Ms Daniel they omitted any of those matters.  

12	In the Notice of Appeal in each case, the Notice of Appeal being identical or virtually identical as between the two Appellants, each Appellant takes a series of points set out at paragraphs 7 to 14 of the Notice of Appeal.  It is important to point out, although I am sure Mr Grey and, indeed, anybody who comes here, Mr Grey, Ms Daniel and anybody else, knows full well that the Employment Appeal Tribunal is a Tribunal which does not hold a re-hearing of what happened before the Employment Tribunal and this Employment Appeal Tribunal cannot interfere with the finding of facts or with a decision of a Tribunal unless some error of law is demonstrated or unless a finding of fact is not supported by evidence or is perverse.  It is necessary to look at the points taken in the Notice of Appeal, enhanced by the argument of Mr Doughty today, to see whether there is an arguable point of law, bearing in mind the restricted parameters within which this Tribunal operates.  

13	Mr Doughty argued two preliminary general points.  The first is that in this Decision the Employment Tribunal did not set out the guidance as to the correct approach to the drawing of inferences of fact in the context of a racial discrimination claim, as set out by Neill LJ in the case of King v The Great Britain-China Centre [1992] ICR 517, and as adopted by Browne-Wilkinson L at paragraph 16 of his speech in the case Zafar v Glasgow City Council [1998] IRLR 36.  The Tribunal set out the relevant law which it proposed to apply, so far as is relevant for present purposes, at paragraphs 74 and 75 of its Decision.  No criticism in our judgment can be made of the direction as to the law of discrimination which it there gave to itself.  They do not, in those paragraphs, expressly refer to the inference-making process described in King and Zafar and it is perfectly true that in their Decision they do not, at any point, set out what is set out in terms in King and Zafar.  However, it is clear that they were perfectly well aware of the correct approach.  In paragraph 14 they record that Mr Grey’s complaint of alleged direct race discrimination, namely that he was dismissed, was not supported by direct evidence but he asked the Tribunal to infer that it was from the following matters and then they set out all of those matters.  When they come to express their conclusions about those matters in paragraphs 92 through to 98, a section which covers eight or nine pages of their Decision, they were clearly looking to see whether an inference of acting on racial grounds should be drawn.  They refer a number of times to the drawing of an inference and whether or not they were prepared to draw that inference.  It is not necessary, as a matter of law or otherwise in our judgment, for a Tribunal slavishly to set out the King and Zafar guidelines.  The issue in every case is whether they applied those guidelines and, in our judgment, it is not arguable that they did not apply those guidelines in this case.  It is, as we see it, manifest that they did.

14	The second general point that is put forward on behalf of these Appellants is that when the Tribunal came to deal with each of the matters relied upon, as giving rise to an inference of racial discrimination, the Tribunal did not consider each of those matters as a separate act of racial discrimination involving a separate detriment and requiring a separate analysis in each case with a conclusion at the end of the analysis, as to whether or not an inference was drawn by the Tribunal.  We do not agree with this argument and do not believe that it is properly arguable.  The discrimination relied upon, as we have already said, was discrimination in relation to the selection of these three employees for redundancy and their consequent dismissal after redeployment procedures, good or bad, failed.  It is not in our view necessary or even desirable that where there is an enormous list ,and I do not say that in any critical spirit either because there was a long history here and a number of matters about which the employees were complaining, that where there is such a long history with a long series of matters, the Tribunal should go into enormous detail to describe their reasoning in respect of each of those matters.  As it happens, in most of those matters, they do say expressly whether or not they were going to draw an inference and why.  In some they do not.  What appears to us to be significant and important is that in paragraph 91 the Tribunal says that it has worked through the various complaints and the items referred to in respect of each complaint.  It then sets out each of those matters relied upon in great detail and concludes at paragraph 99, in these words:

“99.  Viewed overall and taking into account all the less than satisfactory aspects of the Applicants’ treatment, the majority view is, that the Applicants were dismissed because they were redundant and that their selection for redundancy was not on racial grounds.”

15	For those reasons we reject the two general points.  It is now necessary to turn to the individual points which are taken in the Notice of Appeal as put before us today by Mr Doughty.  We will start with paragraph 7 because that is the first paragraph which contains such an individual point.  Paragraph 7 argues that the Tribunal misdirected itself in considering the complaints of Mr Grey and Ms Daniel that racial discrimination should be inferred from the targeting of the particular pool and the particular persons who were selected for redundancy within that pool and that the words which the Tribunal used in dealing with that point, namely that the decision was logical or logical at face value, wholly satisfactory or could not be faulted, contained a misdirection because it focused on the motive of the Respondents in selecting the pool and not whether this imposed any detriment which amounted to less favourable treatment on the grounds of race, whether conscious or unconscious.

16	We find it impossible so to read the Decision.  What the Tribunal did in considering this aspect of the case at paragraph 92, was to examine the decision as to who should be the pool for selection and to decide that it was logical and satisfactory and could not be faulted.  That does not, in our judgment, reveal at all that the Tribunal before concluding, as it did, was requiring that the Respondents should have acted from a discriminatory motive.  The Tribunal had in fact directed itself, at paragraph 75, that motive was irrelevant and we see nothing which indicates that later in its Decision it had forgotten or failed in any sense to apply the direction which it had correctly earlier given itself.

17	Next, paragraph 8 of the Notice of Appeal.  The argument here is that the Tribunal wrongly concluded that the Applicants had not appealed against their selection for redundancy.  The Tribunal certainly say in their Decision that the Applicants had not actually (and they used the word “actually”) appealed against their selection, but they record clearly in the course of the Decision that the Applicants had put in collective grievance procedure complaints and other individual grievance procedure complaints from which it was clear that they were challenging the selection and challenging it in strong terms.  Whether there was or was not a formal appeal does not seem to us to matter.  It is clear that the Tribunal accepted that the employees were protesting their selection vigorously through the grievance procedure and we see no reason to suspect that the Employment Tribunal made any error, as is alleged in paragraph 8.

18	We move on to paragraph 9 of the Notice of Appeal.  The subject matter of this ground of appeal, is the collective grievance complaint by the four black members of the pool which was commenced on 14 May 1997 which was subject, as the Tribunal found, to unnecessary delays and which, by the time the axe fell, had not got beyond stage one of the procedure.  Delaying and failing to facilitate the process of this collective grievance complaint was one of the matters from which both Mr Grey and Ms Daniel invited the Employment Tribunal to draw the inference that the Respondents’ decision was taken on racial grounds.  In paragraph 92 of its Decision the Employment Tribunal, in the course of going through all of the matters which it was said gave rise to such an inference, deal with this particular point under paragraph 14 (vii) on page 43 of the Decision (page 48 of the bundle in Mr Grey’s case); they deal with it at considerable length.  They were critical of a number of aspects of the handling of that grievance procedure.  They do not, in the case of this particular complaint, at the end of their examination of the facts expressly say whether or not they are drawing an inference of racial discrimination in relation to that particular matter.  Mr Doughty describes this as a lacuna and in a perfect world it would have been better, no doubt, if they had expressly set out in the case of this matter, as they did with other matters, what conclusion they had reached as to the drawing of an inference.  However, it seems clear to us that, looking at the Decision as a whole and not subjecting it to unnecessary stringent application of a magnifying glass, that the Tribunal was concluding on the whole, having examined the matters individually, that no inference as to acting on racial grounds was to be drawn and they have recorded their conclusion and their reasoning satisfactorily and sufficiently in our judgment.  We see no grounds on which this argument could be regarded as arguable.

19	Next, the ground set out in paragraph 10 of the Notice of Appeal.  That relates to the individual grievance that each Applicant put in.  The same point is made as that under ground 9 in general terms and we reject it for the same reason as it is not necessary to go into detail.

20	Paragraph 11 raises a different area.  It relates to the redeployment procedure.  On pages 50 and 51 of the bundle, as part of paragraph 92, the Tribunal investigated in detail what had happened, in particular in relation to the failure on the part of the Respondents to make three posts available to the Applicants for potential redeployment.  At paragraph 113 in the section in which they were dealing with unfair dismissal, the Tribunal concludes that the failures to operate the written redeployment procedure properly and failure to open up the posts which I have described, or some of them, to the Applicants for potential redeployment, was one of the principal reasons why they concluded that the dismissal was unfair.  In paragraph 98 the Tribunal, now dealing with racial discrimination and victimisation, says that:

“98.  The majority view is that the redeployment process, whilst displaying elements of lack of overall management and direction, did largely achieve the objective of bringing to the attention of the Applicants as redeployees the vacancies as they arose.”

21	Mr Doughty says that these passages reveal a contradiction which invalidates the Decision on an important area of the matters which had to be considered.  He says that, if the handling of the redeployment process was such as to amount to unreasonable behaviour, giving rise to a finding that the employees had been unfairly dismissed, how could it be that the Tribunal can consistently decide, as they appear to do in paragraph 98, that the failure to open up the three posts to the Applicants for potential redeployment, was “a genuine error” (to use the words used by the Tribunal in relation to two of the posts) and “understandable”(to use the word used by the Tribunal in relation to the third post, that of Project Manager).

22	With the greatest respect to Mr Doughty, we do not see that there is any real contradiction here at all.  It is one thing to say that objectively the behaviour of the employers in relation to redeployment process was unreasonable, it is another thing to say that because it was unreasonable, it was necessarily based on racial grounds which is a submission which Mr Doughty put forward.  Something can be entirely unreasonable objectively and yet, when an explanation is given, the explanation can be an explanation which is accepted by a Tribunal as genuine or understandable and therefore, an explanation which means that an inference of racial discrimination should not be drawn.  That is, in broad terms, what seems to us to have been the reasoning of the Tribunal in this case and we do not believe that in the case of this argument either it is open to attack.  

23	Paragraph 12 of the Notice of Appeal involves a similar argument or at least an argument based on the same passages in the Tribunal’s Decision relating to the redeployment process.  It raises again the argument that the reasoning of the Tribunal and its conclusions shows that they were looking at motive and considering that motive had to be established before a finding of racial discrimination could be made.  It is, in our judgment, simply not so.  There is nothing to reveal that they were looking at motive as opposed to applying the correct principles derived from King and Zafar.  

24	As to paragraph 13, the complaint here is that the Tribunal did not fully set out how and to what extent it explained or dealt with the facts that some of the replies to the Race Relations Questionnaire did not accord with the evidence of the Respondents’ witnesses.  At paragraph 89 the Tribunal said:

“89  During the course of the evidence the Tribunal’s attention was drawn to numerous replies to the questions set out in the questionnaires.  It was clear to the Tribunal that a few of the replies did not accord with the evidence given by the Respondent’s witnesses.  The Tribunal took these matters into account in deciding what, if any, inferences it was proper to draw.”

25	That passage not only reveals that they were correctly applying King and Zafar principles but also reveals they did take into account the discrepancy between the evidence and the questionnaires.  It was not, in our view, incumbent on them to explain any further in what was a very long, very detailed and very comprehensive Decision.  

26	Finally, paragraph 14 of the Notice of Appeal.  At paragraph 101, the majority, its view, having been recorded at paragraph 99 that the selection for redundancy was not on racial grounds, then goes on to explain why they do not agree with the minority member’s views.  The minority member’s views are set out at paragraph 102.  He believed that there were numerous matters which, taken together, gave rise to the drawing of an inference that the Respondents had acted on racial grounds.  Those matters involved a number of different employees and the majority clearly took the view that for those matters to amount to racial discrimination and victimisation on the facts of this case, there would have had to have been a deliberate conspiracy or coming together of the minds of a number of different persons who would have had to have been involved in what was happening and what was being done on the minority member’s view on racial grounds.

27	Mr Doughty argues that what was happening in paragraph 101 was that the majority of the Tribunal was, in effect, setting itself a test based on conspiracy ie there had to be a conspiracy to act on racial grounds before racial discrimination could be established.  We do not think that that is proper reading of this Decision.  What the majority of the Tribunal is saying in paragraph 101 is that, on the facts of this case and on the minority member’s views of those facts, those facts could only lead to the conclusion that the employers had acted on racial grounds if there had been conspiracy.  They may have been right or wrong about that; it is unnecessary for us, in our judgment, to analyse that; but what they were not doing was saying that their conclusion that there was not action on racial grounds was in any way dependent upon the existence of a conspiracy.  They had already recorded their conclusion at paragraph 99 and there is nothing to suggest that in reaching that conclusion, they had set themselves a test such as that asserted which would, of course, not have been consistent with the law.  So it appears to us that that ground is equally unarguable.

28	At some length (and I apologise for that) because it is a difficult and complex case, we have gone through each of the grounds of appeal.  This is a case which, of course, engenders deep and strong feelings and one can understand that Mr Grey and Ms Daniel will not be happy that their case has been dealt with as it has or at least that we have reached the conclusions that we have but I am afraid that, despite what has been argued and after looking at the case with great care, we have concluded that there are no arguable grounds in this case and therefore the appeal, in each case, must be dismissed.