Appeal No.UKEAT/0114/04/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 2004

Before
THE HONOURABLE MR JUSTICE RIMER
LORD DAVIES OF COITY CBE
MR J HOUGHAM CBE

OFFICE OF NATIONAL STATISTICS	APPELLANT

MR ABOWORK ALI	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr Jonathan Stanley
Solicitor
Messrs Eversheds 
Solicitors
1 Callaghan Square
Cardiff
CF10 5BT	
For the Respondent	The Respondent in person	

THE HONOURABLE MR JUSTICE RIMER

1	This is an appeal by the Office of National Statistics (“the ONS”) against the decision of an employment tribunal sitting at London South on 26 November 2003 and chaired by Mr MacInnes.  The applicant before the tribunal was Mr Abowork Ali, who is now the respondent to this appeal.   The tribunal’s decision was promulgated with extended reasons on 2 January 2004.  The decision was on an application by Mr Ali for leave to amend his originating application.   We need to say something about the background, which is as follows.

2	Mr Ali is black, of African origin.  He presented his originating application on 22 April 2000.   He complained compensation from the ONS on the grounds that he had been the subject of discrimination on racial grounds and had been victimised.  He set out the particulars of his complaint over 26 paragraphs.  He drafted them himself, or at least so we infer.  His particulars assert that he is a professional statistician, with training including a substantial amount of survey methodology, sample survey theory, and applications.  He is a graduate with an M.Sc. from the LSE.  He viewed the social survey division of the ONS as an ideal place to pursue his career given his training and background.  He started applying there for jobs in about 1981, in response to advertisements.  He details a certain amount of history in paragraphs 4 to 11 of his particulars and then, in paragraph 12, alleges that on 20 December 1999 he applied for a position with the ONS.   

3	He was invited for an interview, which took place on 27 January 2000.  He was not told of the result immediately, and so on 8 February 2000 he wrote to the ONS enquiring as to the outcome.   On 12 February 2000 the ONS wrote him a letter of rejection.  He asserted in his claim that his rejection was on the ground of his race.  He also claimed he had been victimised in circumstances which we do not need to detail but which were based on an alleged protected act in the nature of the writing of a letter to the Chancellor of the Exchequer.

4	The ONS served its IT3 on 18 May 2000.  It denied any discrimination against Mr Ali on racial grounds or any victimisation.  Mr Ali’s application came on for hearing before an employment tribunal over four days in December 2000, and February and March 2001.  It is common ground that the only case he was advancing at the hearing and on which the tribunal ruled was a case based on direct discrimination of the nature defined in section 1(1)(a) of the Race Relations Act 1976 and victimisation.   In particular, he was not advancing any claim based on indirect discrimination.  He does claim, however, that at that hearing he explored facts in evidence which might arguably be said to relate to a case of indirect discrimination, although Mr Stanley, who appears before us for the ONS, does not accept that is necessarily an accurate account of what happened at that hearing.

5	The outcome was that Mr Ali succeeded before the tribunal on his direct discrimination claim but failed on his victimisation claim.   At a remedy hearing held on 18 July 2001 he was awarded compensation of £32,993.75.  He apparently received some assistance from a solicitor in connection with that hearing but otherwise he had previously represented himself throughout the case and, as appears from what we have said, with some degree of success.

6	The ONS appealed against the decision on direct discrimination and Mr Ali cross-appealed against the decisions on victimisation and quantum.   The appeals came before this appeal tribunal on 23 August 2003.  The outcome was that, as we understand it, by consent the decisions of the employment tribunal were set aside and Mr Ali’s claim was remitted to the employment tribunal for a rehearing.  On the occasion of the hearing of his appeal, Mr Ali’s representative raised the point that he would or might wish to add a claim of indirect discrimination, that is discrimination of a nature identified in section 1(1)(b) of the 1976 Act.  We understand that this appeal tribunal told him that any application to raise such a claim must be advanced before the employment tribunal and was not a matter that the this appeal tribunal could deal with.  

7	The nature of the suggested indirect discrimination claim was not identified at the hearing before this appeal tribunal.  Nothing very much on that front happened until 26 November 2003 when there was a hearing before a chairman, Mr Snelson, sitting alone for the purpose of giving directions for the re-hearing.  Mr Ali was represented by Counsel, Miss Hill, who sought leave to amend the originating application so as to add a claim of indirect discrimination.  Counsel conceded to Mr Snelson there was currently no indirect discrimination claim raised by Mr Ali’s originating application, and explained that evidence would have to be adduced so as to explain the delay in raising the claim.  This was because Counsel recognised that the task of the tribunal would be to consider whether it would be just and equitable to allow the new claim to be made, the three month time limit for bringing discrimination claims having long since expired (see section 68 (1) and (6) of the 1976 Act). 

8	In view of the need for such evidence to be called, Mr Snelson took the view that he ought to adjourn the directions hearing to be heard instead by a tribunal of three and that is what happened.  By a fortunate turn of events such a panel of three was able to be constituted that same day, chaired by Mr MacInnes, and the hearing took place on the same day.  Miss Hill continued to represent Mr Ali and Mr Stanley represented the ONS.  Miss Hill had prepared and presented an amended originating application which was in the same form as Mr Ali’s original document saved that it included a new paragraph 25A which reads as follows:

“I believe the rejection from the post was both directly and indirectly discriminatory on grounds of race.  I base my claim of indirect discrimination on the fact that ONS had a policy of offering preference in recruitment to internal candidates.  The statistics show that black people are grossly under-represented within ONS.  Being an internal candidate was therefore a condition or requirement which had a disparate impact on black people and which was not justified”.

9	Miss Hill’s skeleton argument for that hearing outlined the background to the case and explained the proposed amendment.   She said that the alleged policy of the ONS was evident from its Recruitment Handbook, which states at para 2.1 that “External Recruitment should not take place until you are sure that there no suitable internal candidates”.  She disclaimed any suggestion that Mr Ali’s existing claim included a claim for indirect discrimination and explained that indeed it could not have done so because the existence of the alleged policy only became apparent to him during the disclosure process preceding the previous substantive hearing when he was served with, amongst other documents, the Recruitment Handbook.  Miss Hill conceded in her skeleton argument that: 

“Even then Mr Ali did not necessarily realise the significance of the policy in his case until he made requests for disclosure of the CV’s of the other candidates with whom he was competing and was informed, fairly close to the hearing of his complaint, that there were no such CV’s but that internal candidates completed different paperwork to external ones, and their applications were generally accompanied by recommendations from their managers when the referees of external candidates did not appear to have been contacted”.

10	Miss Hill also admitted that Mr Ali did not ask the previous tribunal - that is the tribunal hearing his substantive claim - to make a determination on an indirect discrimination claim but, as we have already indicated, Mr Ali does claim that it was something that he had explored in evidence at that hearing.   Miss Hill set out in her skeleton argument further reasons why it would be right for the tribunal on 26 November to conclude that it was just and equitable to consider the new proposed case.

11	The outcome of Miss Hill’s submissions was that the tribunal gave her rather more than  we consider she could reasonably have expected.  It took the view that Mr Ali’s originating application already raised a claim of indirect discrimination so that no amendment to raise such a claim was needed albeit that the claim might need to be fleshed out with some particulars.  The tribunal had in mind in particular paragraphs 3 and 7 of the particulars of the originating application, although in order to set them in a proper context we will read paragraphs 3 to 8 inclusive:
“3.	“I always knew and thought that they do not hire blacks. This suspicion of mine was firmly established when I read their recruitment statistics, which effectively excluded blacks. 
4.	In September 1998, I attended an interview for a senior Survey Methodologist post, which is based at the social survey division. 
5.	At this interview the chairman, a representative from personnel, asked me why I kept on applying to their organisation? 
6.	I answered that I am trained in survey methodology, I had worked in this field in UK as well as overseas. I told the chairman that I would have thought that ONS is the ideal place for a statistician with my background to work at. 
7.	With such a question from the recruitment personnel, the telling statistics of their work and their recruitment practice, which excluded blacks, I thought the authorities should be told the experience of a black candidate. 
8.	On September 22, 1998, I wrote a letter to the Chancellor of the Exchequer.  ONS is accountable to the chancellor. On my complaint I enclosed the evidence, which demonstrates the discrimination I suffered in the hands of ONS”. 

12	Having drawn attention to paragraphs 3 and 7 in particular, the tribunal asked the advocates to comment on its:
“perception that [in paragraphs 3 and 7 Mr Ali] was alleging that [the ONS’s] recruitment practices had the effect of excluding black people and that if we as a Tribunal were hearing this case we would in identifying the issues at the start of the hearing have enquired whether this was in effect a claim of indirect discrimination”

13	The tribunal then said this:

10.	“Mr Stanley submitted that paragraphs 3 and 7 were background information for Mr Ali’s claims of victimisation, that both parties had throughout the case to date assumed that the Originating Application did not raise issues of indirect discrimination and that was the reason [why Mr Ali] had sought the amendment that he does now seek.  Miss Hill conceded that the issue of indirect discrimination had  not been previously raised at the earlier hearing.
11.	It is quite clear to us that in paragraphs 3 and 7 of the Originating Application Mr Ali is raising the issue that there is something about [the ONS’s] recruitment practice which had the effect of excluding black people.  We have to say that we were unable to see how this could not be a claim that in practice [the ONS] applied requirements or conditions with which successful candidates who were not black could comply but with which black people could not.  To us the proposed amendment is no more than clarification or further and better particulars of those elements of the practice which [Mr Ali] alleges to be discriminatory.
We would conclude by emphasising that we have done no more than we would at the start of any hearing to identify (or label) the issues raised in the Originating Application.
12.	It is our unanimous decision that [Mr Ali’s] Originating Application includes a claim that  [the ONS’s] recruitment practices were indirectly discriminatory.  No amendment to the Originating Application is required.  The proposed amendment, at paragraph 25(a) clarifies [Mr Ali’s] claim”.

14	We are not clear from that last sentence whether the tribunal was permitting the proposed amendment or not but are inclined to infer that it was not, on the basis of the penultimate sentence we have just read, namely that no amendment to the originating application was required.

15	On this appeal, Mr Stanley has appeared for the ONS and Mr Ali has appeared in person.  The substance of the appeal is that the tribunal was wrong to conclude what it did conclude on the basis of paragraphs 3 and 7 of the originating application; and that, if a case of indirect discrimination was to be raised at all, it had to be the subject of an application to amend such as Miss Hill was seeking to make and it would be a matter for the tribunal to decide whether it was just and equitable to allow such an amendment after the long passage of time.  

16	Before coming to the merits of the appeal we point out that on 12 February Mr Ali submitted on 12 February a 3½ page skeleton argument and an accompanying bundle which outlines his grounds of resistance to the appeal.  However, this morning he asked us to adjourn the hearing of the appeal on the basis that he wants to obtain legal representation, if possible funded by the Legal Services Commission.   He has not, however, made any approach to the LSC for such assistance even though he has known about this appeal since about the last week of January.  

17	Mr Stanley opposed the application and we refused it for reasons we said we would give in our judgment.  Our reasons are that this litigation has been in play for almost four years and it is important, as with all litigation, that there should be as little further delay in bringing it to a state of finality.  This appeal has been brought on extremely quickly, no doubt with precisely that in mind.  The notice of appeal is dated 12 January 2004, an order for an expedited hearing was made by this appeal tribunal on 20 January 2004 and the appeal has come on for such a hearing today, 18 February 2004.  To adjourn the matter so that Mr Ali can explore the possibility of legal representation would frustrate that end and, bearing in mind that he has not even gone to the lengths of making any inquiries at all as to whether he might be able to obtain legal aid, we are not disposed to adjourn the hearing for some uncertain and potentially indefinite period for him to do so.  

18	Moreover, we have had regard to the fact that Mr Ali has already conducted a material part of this litigation in person - and as we have indicated, with a measure of success - and we have also had regard to the fact that the only question before us is a very short one turning on the meaning of two paragraphs in a document of which we infer he was the author.  The question is a short question of construction and it is not such a question as to cause us to conclude that justice can only be done if we were to adjourn this matter in order to enable Mr Ali to see if he can obtain legal representation.  Accordingly for those reasons we refused the adjournment.  

19	Reverting to the substance of the appeal, Mr Stanley submits that the tribunal was in error in interpreting paragraphs 3 and 7 of the originating application as raising a case of indirect racial discrimination.   We should perhaps observe that the notice of appeal does not appear to us to formulate that point quite in those terms, but the point is we consider identified adequately clearly in Mr Stanley’s skeleton argument, and it is of course for all practical purposes the only point which arises out of the tribunal’s decision.  The tribunal did not go on to consider whether, if it was wrong in the conclusion it had come to on the basis of those two paragraphs, it would or would not be just and equitable to allow the amendment that Miss Hill was inviting it to make.  It simply disposed of the entirety of the application by interpreting the originating application as already raising the point, so that no amendment was necessary.   The question for us is whether it was right so to conclude.

20	Mr Ali, for his part, has sought to defend the tribunal’s decision and in his written argument he said that from an early stage he had been seeking disclosure from the ONS of the CVs of their “internal applicants”.  He referred us to his letter of 18 July 2000 to the employment tribunal asking for a disclosure order, but in fact that letter makes no reference to “internal” candidates, it simply asks for details about all the short listed/interviewed candidates.  The tribunal’s order of 8 August 2000, made in response to his letter, simply ordered the disclosure of:
“The applications and interview records of the successful candidate(s) for the post of Senior Methodologist in 2000, deleting the name, and address and any identifying information and numbering such documents instead” 

21	The first reference to so-called “internal” candidates is to be found in a letter from Eversheds, the ONS’s solicitors, of 7 September 2000, in which they explained to the tribunal why two of the candidates had submitted application forms without CVs, the reason being that they were” internal candidates who were already working in M & Q division.”   

22	The question whether the tribunal was right to interpret paragraphs 3 and 7 in the way it did is a short one but in our view, and with respect to the tribunal, its interpretation of those paragraphs was wrong.  The paragraphs were part of a pleading which was advanced in support of a claim for race discrimination and victimisation.  We fully recognise that it was not necessary in the pleading for Mr Ali either to refer specifically to the concepts of direct or indirect discrimination, let alone to make specific references to sections 1(1)(a) and/or (b) of 1976 Act.  Pleadings in employment tribunal proceedings are, and are intended to be, relatively informal documents.  But Mr Ali had at least to plead the facts he sought to prove in order to establish that he was entitled to the relief he was claiming; and if the facts so pleaded would, if proved, establish a case of indirect discrimination, then it could fairly be said that the claim he was advancing was a claim based on alleged indirect discrimination.  

23	For our part, however, we do not follow how paragraphs 3 and 7 can be interpreted as advancing a claim of indirect discrimination, since neither of them alleges facts which, if proved, could establish such a case.   The former paragraph does no more than to allege that the ONS “do not hire blacks” and to refer to “recruitment statistics which effectively excluded blacks”.  The natural sense of both those allegations is that the statistics showed that only a very small proportion of ONS employees was black because the ONS has, so it is alleged, a general policy of not employing blacks.  Those allegations amount at most to allegations that the ONS discriminates directly against blacks in its recruitment policy.  In order for an allegation of indirect discrimination to be contained in those paragraphs, it would have been necessary for Mr Ali also to have identified the application by the ONS across the entire recruitment field of a “requirement or condition” of the nature referred to in section 1(1)(b) of the 1976 Act; that is a “requirement or condition” applied to applicants generally and which was such that the proportion of black applicants who could comply with it was smaller than the proportion of other racial groups who could do so.  Mr Ali did not do that, the explanation for that being of course that he was wholly unaware that the application of any such “requirement or condition”.

24	We do not regard paragraph 7 as taking the position any further.  That paragraph is saying no more than does paragraph 3.  It again does not identify any “requirement or condition” applied to applicants generally.  It again does no more than to assert that the ONS’s recruitment practice “excluded blacks”.  That is, on its face, an allegation of direct discrimination.  It is not one of indirect discrimination because the critical elements of such a claim are simply not alleged.   

25	In our view, therefore, the tribunal was wrong in its interpretation of the two paragraphs. We propose therefore, to allow the appeal and to set aside the tribunal’s decision that the applicant’s originating application includes a claim of discrimination contrary to section 1(1)(b) of the Race Relations Act 1976.   We propose to remit to the employment tribunal the question of whether or not Mr Ali’s application for an amendment to introduce a claim of indirect discrimination should be permitted.  We will hear from the parties whether that remission should be to the same employment tribunal or whether it should be to a differently constituted one.   

26	As to whether the matter should go back to the same tribunal or a differently constituted one, [after further submissions] we see no particular advantage in its going back to the same tribunal, which is what Mr Ali urges, since that tribunal has no special familiarity with this case beyond its consideration of the originating application, so it is not as if there will be any material saving of costs in remitting the  matter to that tribunal.  Mr Stanley, for his part, in any event asks us to remit it to a differently constituted tribunal on the basis that it could probably be constituted more quickly than the tribunal that dealt with the matter on 26 November, and no doubt he is right.  We propose, therefore, to direct that the matter goes back to a differently constituted tribunal.