Appeal No.	 EAT/1085/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR K M HACK JP
LORD GLADWIN OF CLEE CBE JP

OCS GROUP LIMITED	APPELLANT

MRS J E ROBINSON	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J FORD
Representative	

	
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing is to determine whether there  is an arguable point of law in an appeal which OCS Group Limited wish to advise against the unanimous decision of an Industrial Tribunal that the company had discriminated against the Applicant on the grounds of her race.  
The Tribunal’s decision falls into two parts because she made two separate types of complaint.  The first type was that she, together with two other members of staff moved to a smaller office.  Secondly, that she had not been included in the in-service training unlike white colleagues and, thirdly that when she asked to be sent on two training courses she was only allowed to go on one but she would have to wait until March, by which time she had been dismissed.
Those three complaints can be described as complaints arising during the course of her employment.  Her final complaint was that in a redundancy situation which was admitted, she was selected for redundancy on the grounds of her race. It was that complaint which was upheld by the Industrial Tribunal.  
In dismissing her first type of complaint, the Industrial Tribunal said this:

“We have come to the conclusion that the Applicant has failed to establish any race discrimination in relation to events prior to her dismissal”
On that aspect of the case, we accept Mr  Slominsky’s evidence (the employer’s only witness) that he declined the Applicants’s request to be sent on training courses because he did not consider that the training courses were relevant to the type of work which the Applicant was carrying out.  We accept that extra training was given to new members of staff because those members of staff required such training because of their lack of experience.  Although we have noted that the Applicant was told in January that she could be sent on a training course in March, by which time, according to the Respondents, the decision had already been taken to dismiss her, we consider that the Respondents probably said what they did to avoid discussing the issue, rather than to discriminate against the Applicant on racial grounds”

There is of course no challenge by the company to that finding.  The Tribunal went on to say this:

“We have found it far more difficult to decide whether the decision to make the Applicant redundant was tainted by racial motives.  On the basis of Mr Slominsky’s evidence, it is apparent that the two members of staff who were made redundant have not been replaced and we are therefore satisfied that the Respondents genuinely decided to make those two members of staff redundant.  However, there remains the question of whether the Applicant’s selection for redundancy was racially  motivated.”

They then went on to look at the submissions which were made by the parties and continued:

“The difficulty which we have had on this aspect of the case is that Mr Slominsky’s evidence with regard to the selection of the Applicant for redundancy was wholly unsatisfactory. At one point in his evidence Mr Slominsky said that questions of personality and communications skills played a part in the decision.  Mr Slominsky also said that attendance and punctuality were taken into account although he was unable to say how the Applicant’s performance in these respects was in any way unsatisfactory and later in his evidence he appeared to say that those matters had played no significant part in the decision.

In reaching our conclusion, the matter which has weighed with us is most heavily is that Mr Slominsky as been quite unable to give a coherent account of the process by which the selection of the Applicant for redundancy took place.  The Respondents have an extremely well-drafted redundancy procedure and it is clear that in selecting the Applicant for redundancy the Respondents failed to apply the provisions of that procedure in a number of respects.  There is no documentary evidence relating to the process of selection of candidates for redundancy and Mr Slominsky did not give evidence with regard to any specific occasions at which the selection of the Applicant was discussed.  At the end of Mr Slominsky’s evidence, the Tribunal was quite unable to form any picture of the decision making process which resulted in the Applicant’s dismissal and the conclusion to which we have felt compelled is that there was no rational process of selection for redundancy in the Applicant’s case.”
They then directed themselves to the leading case of King v Great Britain China Centre reported at [1992] ICR, page 516 and went on to conclude that applying the guidelines in that case, they were entitled to seek an explanation from the employers for their selection of the Applicant for redundancy.  “For the reasons we have given, we consider that the Respondents have failed to give such an explanation”.

They concluded as follows:

“We have reached a finding of race discrimination with hesitation.  We have taken into account the fact that Mr Slominsky was himself responsible for the recruitment of the Applicant in the first place and that we have rejected the Applicant’s case that Mr Slominsky discriminated against her on racial grounds prior to her dismissal.  We have also taken into account the fact that a white employee with about the same length of service as the Applicant was made redundant at the same time as her.  We are also conscious of the guidance given by the House of Lords in Glasgow City Council v Zafar [1998] ICR 120 that it is not relevant to a finding of race discrimination that an employer has acted unreasonably.  It may well be that in this case the Respondents had some ulterior or discreditable motive for selecting the Applicant and the other employee for redundancy, but we consider that we would be substituting speculation for the process of making findings on the evidence before us if we were to hold that the Respondents dismissed the Applicant for such a reason.  On the basis of the evidence before us, we therefore feel driven to the conclusion that in selecting the Applicant for redundancy the Respondents discriminated against her on the ground of her race or colour.”

The appeal which has been advanced on the company’s behalf by Mr Ford, an employee of the Group, can be summarised in this way:

They contend firstly that there were no primary facts found by the Industrial Tribunal which would justify it in drawing the inference that the selection process was tainted by racial considerations.  He submitted that the explanation for the lack of coherence of the evidence that was given by Mr Slominsky could be explained, simply by reason of the fact that he was a computer boffin.  The fact that his evidence was not coherent was not of itself any indication that race played a part in the selection process. 

We were referred to a case called Leicester University Students’ Union v Mahomed [1995] IRLR 292 where it was pointed out by the Employment Appeal Tribunal “that while the King case allowed inferences to be drawn from inadequate or unsatisfactory explanations put forward by the employer, it did not require that such inferences must automatically be drawn”.  Again, stress was placed on the case of Zafar, to which the Industrial Tribunal itself referred, making it plain that “there is no rule of law that, in the absence of good explanation, an inference of unlawful discrimination ‘should’ be drawn”.

Mr Ford drew attention to an earlier passage in the Industrial Tribunal’s decision at paragraph 11, where the Tribunal indicated it had been necessary to treat the Applicant’s evidence with very considerable caution.  The reason why they had arrived at that conclusion was because the Applicant had said something in the Originating Application which she sought to explain as an accidental grammatical slip, but her explanation for what was said was not accepted by the Industrial Tribunal.  They concluded that what she had said in the document was not explained by way of accident or mistake but was a change of case.  So, it was argued, at the hearing, that as the Applicant was unreliable, her evidence in full should have been rejected and therefore there was no basis on which the Industrial Tribunal could conclude that she had been unlawfully discriminated against.

It was urged on us that the proper approach by the Industrial Tribunal would have been to have looked at the whole course of treatment of the Applicant in accordance with dicta in the Nash v Eastbourne Health Authority EAT 487/92, 613/93 and that the Tribunal appear to have failed to look at the allegations in the round but had chosen to divide them up in the way that I have described.

Finally, it was submitted that the Industrial Tribunal had failed to take into account the two stage test for determining whether there has been discrimination, namely, was the complainant treated less favourably than another person of a different racial group in similar circumstances and if so, was the reason for that treatment racial. 

We have given those submissions close attention.  It has to be said that there is nothing in the Industrial Tribunal’s decision which would justify, in our judgment, an assertion that the law, as laid down in King and Zafar in particular, has been misapplied.  The Industrial Tribunal itself makes reference to both those authorities and has obviously given them considerable care.  Therefore it seems to us that this is not a case where it can be said that there has been an express misdirection in law.  What is being said is either that the decision of the Tribunal was perverse or alternatively, although the principles are clear, they have misapplied them in this case.

As to the allegation of perversity, it does not seem to us that that is an arguable point of law on the facts of this case.  It seems to us that the Tribunal’s decision can be described as a model of its kind in weighing up the merits of both parties’ positions.  This is an even handed approach adopted by the Industrial Tribunal, which in our judgment is to be commended for their general approach to the difficult issues before them.  The fact that they had rejected the Applicant’s evidence on the first type of complaint and had accepted Mr Slominsky’s evidence on those matters does not lead to the conclusion that the second type of complaint was itself also bound to be rejected.  

Indeed, the Industrial Tribunal has taken some considerable care to analyse the types of complaint with which they were concerned.  They were well aware of the fact that they were not required to assume that because a procedure had not been followed, therefore it was correct to infer that race played a part in the selection process.  Indeed, they specifically (paragraph 17 of that decision), direct themselves that they are entitled to seek an explanation for the selection and they were not required, merely through unreasonable conduct, to draw any adverse inference against the employers.

The perversity point therefore seems to us be unsustainable.  The suggestion that there were no sufficient primary facts to draw the inference of race also does not seem to us to be sustainable. The primary facts were that the Applicant was selected for redundancy together with one other.  She was the only person from the ethnic minorities from the pool from which this selection was to be made.  She was selected in circumstances where there was a clear breach of the process of selection, where the decision maker was unable to give any credible evidence as to how she was selected for redundancy as opposed to any of the other individuals.  In those circumstances, there were sufficient primary facts from which an informed Tribunal was entitled to draw an inference, although we recognise that not every Tribunal faced with the same facts would have felt able to do so.

The second main ground, namely that they have misapplied the guidelines set out in the relevant authorities does seem to us to be unsustainable.  It seem to us on the contrary that the whole tenor of the decision represents a careful weighing of the rival contentions of the parties and close examination of the evidence given in this case.  Accordingly, we are not of the view that either of the main of types of allegation made in this case and notice of appeal are arguable.  Much of  what is said in the notice of appeal is common ground, but we do not consider that the Tribunal has either acted perversely or has failed to apply the general principles of law which emerge from the authorities to which their attention was drawn to which they refer in their decision.

Accordingly, we are of the view that this appeal should be dismissed as it does not raise an arguable point of law. We would go on to commend the Industrial Tribunal for the very careful and painstaking way that they have sought to approach their duty in this case.  The fact that they have found it difficult to draw the inference and that they have reached a finding with hesitation, simply reflects in our judgment not an element of uncertainty in their conclusion, but a careful weighing of the relevant factors which was one which could have gone either way.  Accordingly the appeal will be dismissed.