Appeal No. EAT/1175/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 January 2002

Before
MR RECORDER LANGSTAFF QC
MR P M SMITH
MISS D WHITTINGHAM

MR D SINGH	APPELLANT

(1) FOCUS HOUSING GROUP (2) MR R CLARKE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A GUMBITI-SIMUTO
(Of Counsel)
Instructed by:
Commission for Racial Equality
3rd Floor
Lancaster House
67 Newhall Street
Birmingham
B3 1NA	
For the Respondent	MR R MEAD
(Of Counsel)
Instructed by:
Messrs Wragge & Co
Solicitors
55 Colmore Row
Birmingham 
B3 2AS	

MR RECORDER LANGSTAFF QC

1.	This is an appeal from an Employment Tribunal sitting at Birmingham whose reasons for their decision were promulgated on 9 August 2001.  The Tribunal dismissed the Appellant’s complaint of discrimination.  He had claimed that he had been directly discriminated against and victimised by not being shortlisted for the post of Regional Director by the Respondent employer in late 1998.

2.	The background according to the Employment Tribunal was that he had applied for the lesser post of Regional Housing Manager with the Respondent in February 1997.  On that occasion he was interviewed.  He succeeded in getting past a first interview to a final one.  That interview was conducted by a Mr Todd and a Mr Clarke who was the chief executive of the first Respondent and indeed himself the second Respondent to the application and appeal.

3.	Of the three candidates at final interview only one was of white origin.  She was selected.  Mr Chadha who was one of the two unsuccessful candidates claimed that his non selection was due to discrimination against him on the grounds of race.  He brought proceedings before the Employment Tribunal which were heard between 26 January 1998 and 11 March 1988.

4.	The Appellant, Mr Singh, gave evidence on Mr Chadha’s behalf.  The application was ultimately unsuccessful in March 1998.  Some five months later, in August 1988 the Appellant applied for the post of Regional Director.  His application form came before the second Respondent Mr Clarke.  Mr Clarke recognised the application, he said, as that of someone who had previously applied for a position as Regional Manager.
 
5.	He wondered why Mr Singh was applying for a more senior position even though he had not been successful for lower post of Regional Housing Manager a year earlier.  He wondered he said whether the Applicant had undertaken any major career development in the interim and asked for the previous application to be extracted.  

6.	In the meantime Mr Singh’s application was placed separately to be considered once it had been compared with his previous application.  When Mr Clarke subsequently met Ms Smith whose duty it was also to evaluate the application forms to discuss the matter they discovered what they believed to be a discrepancy under the qualification column in Mr Singh’s first application.  There the Applicant had claimed that he had an MBA(FIN) whereas in the second application there was no reference to the MBA but to a post graduate diploma in business administration.

7.	They came to the view after enquiries (so the Tribunal found) that Mr Singh had sought to mislead the first Respondent by claiming falsely on his first application form that he had obtained an MBA when in fact it had not yet been awarded, and as it turned out never was.

8.	The Appellant was told on 28 August that his application had been rejected for the post of Regional Director.  The reason was given that he had sought to mislead the first Respondent in respect of his qualifications.  This led the Appellant to bring his application before the Employment Tribunal.  He relied upon sections 1 and 2 of the Race Relations Act 1976.  Section 1 so far as material provides:

“(1)  A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –

(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons; “

Section 2 so far as material provides by Subsection 1:

“(1)	  A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –

	(b)	given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;

9.	The Employment Tribunal found that whatever had happened was not on racial grounds.  But critical to this appeal as the argument has developed before us is to identify the issues it saw and the questions which the Employment Tribunal had in mind before reaching its conclusions.  

10.	In paragraph 2 of the Extended Reasons the Employment Tribunal described the claim in these terms:

“The applicant claims that he has been victimised for not being shortlisted in respect of the position of Regional Director with the first respondent and that he has suffered direct discrimination as a result.  Mr Simuto, Counsel for the applicant, argues that this claim is conjunctive i.e. that there is only one complaint of victimisation and not two separate complaints of victimisation and direct discrimination.”

At paragraph 5 the Tribunal described the issue in these terms:

“He (that is the Appellant) contends that he has been treated less favourably by reason of having committed a protected act.  The less favourable treatment is that his application was never fully evaluated unlike all the other applications for the position of Regional Director.”

11.	At paragraph 20 the Tribunal asked itself the following question:

“Secondly, was Mr Singh treated less favourably and/or suffer a detriment?  We find that Mr Singh was treated less favourably and that he did indeed suffer a detriment.  His application was never fully evaluated by Miss Smith and Mr Clarke unlike all the other applications.  That was less favourable treatment.  Mr Singh also suffered a detriment by reason of not being shortlisted.”

12.	That paragraph attempts to answer the issue which should have been identified in similar terms in paragraph 5 and which might be comprehended as part of the general overall issue posed in paragraph 2.  It is as we read the decision of the Employment Tribunal clear that the Tribunal were drawing a distinction between the question that they were posing there and a question which they discussed in paragraph 16.  In paragraph 16 they were dealing with why it was that Mr Clarke had put the application form of Mr Singh on one side in order to make enquiries about its content and to see how it compared with a previous application.  They said:

“It must have been of some concern to him (that is Mr Clarke) that Mr Singh who was now applying for a job with his Group, was someone who had referred to Focus as a racist organisation in earlier proceedings.  Whether it was that particular knowledge or his memory of having interviewed Mr Singh on a previous occasion some 18 months earlier which led him to refer back to the earlier application we cannot say, nor do we consider it necessary for the purposes of our decision to do so.”

13.	Accordingly, it seems to us the Tribunal regarded the question whether the application form was fully evaluated as a different and distinct question from whether or not the application form had been put on one side with the intention of referring back to an earlier application.  

14.	At paragraph 21 the Employment Tribunal turned to resolve the question whether the less favourable treatment in the two respects in which they had identified in paragraph 20 had been caused by reason of the race of the Appellant.  The paragraph reads:

“The crucial issue in this case relates to causation – was the reason for the less favourable treatment/detriment, because the applicant had committed a protected act or was it because he had sought to mislead on an earlier job application?  Having regard to all of the evidence in this case, the tribunal concludes that the applicant’s failure to be shortlisted was the second of those two possibilities.  We reject the applicant’s contention that he was not shortlisted due to the fact that he had given evidence in the Chadha case.  We come to that conclusion for the following reasons.  Firstly, both Mr Clarke and Ms Smith in our view held the belief that Mr Singh had indeed sought to mislead when he applied for the Regional Housing Manager’s position.  Whether or not Mr Singh’s explanations were considered reasonable by Mr Todd and Ms Whitfield was irrelevant so far as they were concerned.  They were considering his application afresh in the light of any previous representations or claims.”

15.	The Tribunal went on in paragraph 26 to emphasise that they had heard the Respondents’ explanation.  They did not find that the applicant’s treatment was due to him having committed a protected act and they said in terms that the application was rejected because his potential employers thought that he had attempted to mislead them in his earlier application.  They added that they were perfectly entitled to form that view given the impression the applicant tried to create, and to emphasise the conclusion added that that was the reason why he was not shortlisted and not because he had given evidence against the Respondents.

16.	Before us Mr Simuto in elegant and eloquent submissions has argued that the decision of the Employment Tribunal was flawed.  He accepts that on the law as it is following the decision of the House of Lords in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48 and Nagarajan v London Regional Transport [1999] ICR 877 the Tribunal were fully entitled to come to the conclusion they did as to the failure to shortlist.  The legal test applied is not one with which he quibbles.

17.	His point is however that the Employment Tribunal never asked and never properly answered the question whether the putting on one side of the application form was itself an act of victimisation.  His submission was to the effect that if the Tribunal had come to a conclusion that the putting on one side of the application form by Mr Clarke was because Mr Singh had given evidence on a previous occasion that knowledge and that conclusion would have caused a different result to the proceedings.

18.	This is not only because of its impact upon the way in which the Tribunal would then be bound to look at the evidence before them but because in essence he submits that a chain of causation would be begun which ultimately resulted in his not being shortlisted.  He argues that it was vital for the Employment Tribunal to determine if it was Mr Clarke’s knowledge of Mr Singh’s involvement in the earlier proceedings or simply his memory that Mr Singh had been an earlier applicant that led him to put the application form on one side for further enquiries to be made.  

19.	This was not he submitted an example of the “but for” test of causation condemned by Khan, because in this case the question to be answered in respect of Mr Clarke’s conduct would indeed be the very question posed in Khan itself, and it would be consequences that inevitably followed which amounted to the detriment which that less favourable treatment ultimately involved.  He argued that the Employment Tribunal had in paragraph 20 indeed identified two stages.  The first was the evaluation process, the second was the shortlisting process.  The Tribunal had concluded that in respect of each there had been a detriment to Mr Singh yet he points out all that is addressed in clear terms in paragraph 21 (and he might have added paragraph 26) was the question of shortlisting and the Tribunal did not in terms determine what was the reason for the failure fully to evaluate the application form.  

20.	We were concerned in the course of his submissions as to the meaning of “full evaluation”.  He submitted to us that it was not for this Tribunal to rewrite the decision for the Tribunal below.  However, we can only regard the process of evaluation, bearing in mind the way in which the Tribunal has itself identified the issues before it, as being a process which involved a consideration of the application form.  By the description “fully evaluated” we conclude that they considered that the less favourable treatment and the detriment that Mr Singh suffered was in the fact that that process of evaluation was incomplete.  The question that they addressed and answered it seems to us was why it was incomplete.  

21.	Mr Gumbiti-Simuto further argued that the decision of the Employment Tribunal did not clearly tell the parties what it was that “full evaluation” was taken to mean and that in accordance with the guidance in Meek v City of Birmingham this appeal should therefore be allowed because the parties could not understand why it was that the Appellant had lost the case.  

22.	In answer to those submissions Mr Mead for the Respondents made in effect five points.  He said first, that the Appellant was not able to challenge the reasons which the Employment Tribunal had found to be operative for the failure to shortlist.  He could not dispute that the Tribunal were entitled to conclude that the reason for that was not anything to do with the race of Mr Singh.  

23.	Secondly, he argued that the process of evaluation was one different from that of putting aside the application.  Indeed he told us that the way in which the matter had been put to the Employment Tribunal had been on the basis that what the Tribunal was invited to consider was the failure fully to evaluate the application form.  They were not invited in terms to consider the simple act of putting the application form on one side pending enquiries.  If they had been however, he submitted before us that that would have caused no detriment to the Appellant.

24.	Next, he pointed us to the words which we have already quoted from paragraph 16.  The Tribunal had said that it could not say what the reason was for Mr Clarke having referred back to the earlier application.  Therefore, the Tribunal had considered that the question of why it was the Respondents had acted as they did in respect of putting that application on one side: the Applicant had simply failed to satisfy the burden of proof.

25.	Fourthly, he contended that to draw a distinction between the acts of putting the application form on one side, and “full evaluation” and for that matter selection for interview, was artificial.  Fifthly he argued that in developing his argument in respect of a chain of causation flowing from a discriminatory act Mr Simuto was on behalf of the Appellant indeed adopting the “but for” test which it was common ground the case of Khan had regarded as impermissible in this context.

Conclusions

26.	We have concluded that the issue which we have to determine is whether or not the Employment Tribunal properly addressed the issues before it.  In the context of this appeal that means whether it was entitled to identify those issues in the terms it did.  We see as we have already indicated a distinction between “full evaluation” and an act, preparatory to that, of putting an application form on one side pending enquiries.  We regard the decision of the Employment Tribunal as making that distinction.

27.	We consider that if that distinction is properly made then the only question is whether the Employment Tribunal was also bound to consider the separate question whether the application form being put on one side was itself an act of discrimination and victimisation contrary to section 1 or 2 or both of the Race Relations Act 1976.

28.	Mr Simuto frankly accepted that he had not sought to argue in his notice of appeal nor skeleton that the Employment Tribunal did not understand the case put before them.  He did not submit that this Tribunal was entitled to look at issues other than those defined by the Employment Tribunal as being issues before it.  He accepted that the issues as defined by the Employment Tribunal were the issues which this Appeal Tribunal should be concerned with.  It must follow that if our reading of the decision of the Employment Tribunal is right in drawing a distinction between the act of putting the application form on one side (which may be regarded as one process) and what the Tribunal itself was considering (which was a concluded process of evaluation of the application forms at a stage preliminary to a decision being made by the selection panel as to who to shortlist) then this appeal must fail.  It must fail because there is no distinction in principle between the applicability of the reason for failing to shortlist and the reason for failing to evaluate the forms fully.

29.	Paragraph 20 of the Reasoning is followed by paragraph 21 which we have quoted in full.  Although paragraph 21 does not deal separately with two instances of less favourable treatment, the Tribunal were not in our view disentitled from eliding the two matters to which they had referred in paragraph 20 and identifying one and the same reason for each as in our view it did in paragraphs 21 and 26.  We are fortified a little in that conclusion by considering what was happening.  We are told by Mr Mead, without dispute from Mr Simuto, it was a process first of long listing, before short listing.

30.	That is sufficient to dispose of this appeal on what amounts to procedural grounds.  We should however add that we would not have accepted the argument addressed to us by Mr Mead as to the burden of proof because it seems to us there is a distinction between a Tribunal not concluding an enquiry into facts because it considers it unnecessary to do so and it expressing a clear inability to reach any conclusion having first attempted that process.

31.	Nor would we have accepted the argument which he addressed to us about the absence of detriment, which had we been minded to allow the appeal upon the basis upon which it had been argued we would have thought would be a matter properly determined by a fresh Tribunal.  Nor it must be said do we consider that it was helpful in this case to consider the impact of the “but for” test which was rejected in Khan.  It may be that in some circumstances that there is a chain of causation.  It may be in others that there is not.  We were concerned in resolving this appeal merely to identify what question the Employment Tribunal had asked, whether it had adopted the proper approach to that question, and whether the conclusion was one to which it was entitled to come.  For the reasons which we have given we think that it was, and therefore this appeal must be dismissed.