A1/00/5971

Neutral Citation Number: [2001] EWCA Civ 812
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

                                    Royal Courts of Justice
                                    Strand
                                    London WC2
 
                               Friday, 18th May 2001
B e f o r e :

LORD JUSTICE SEDLEY
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FARIDAH AHMED
Applicant

‑ v ‑

(1) THE LONDON BOROUGH OF HACKNEY
(2) GAVIN MOORE

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MR. T. COGHLIN (instructed by the Commission for Racial Equality) appeared on behalf of the Applicant.

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J U D G M E N T
1.	LORD JUSTICE SEDLEY: Mrs Ahmed lost her job with Hackney's Education Department after working with them for a good many years. She went to the Employment Tribunal with a complaint that she had been the object of race discrimination, racial victimisation and unfair dismissal. The Employment Tribunal rejected the discrimination and victimisation complaints. But they found that, although substantive grounds existed for dismissal such as to make it fair, the manner of dismissal, in particular the unconscionable length of time taken in giving the decision, made it procedurally unfair. To that extent alone Mrs Ahmed succeeded. She went to the Employment Appeal Tribunal on appeal in relation to the grounds upon which she had lost. The Employment Appeal Tribunal, under its President, Lindsay J, held a preliminary hearing without having Hackney represented, and decided that the appeal was not sustainable. Against that decision Mrs Ahmed now asks for permission to appeal. She has been most ably represented upon the application by Mr. Coghlin.
2.	The grounds, as I have agreed to consider them today, fall under three heads, although Mr Coghlin has analysed them into four. The first concerns the proper standard of proof. The Employment Appeal Tribunal held, unexceptionably as it seems to me, that the officer conducting the disciplinary proceedings was right, on the authorities, to apply the civil standard of proof, as he told the Employment Tribunal he had done. But what Mr Coghlin says is that that is not enough. The civil standard of proof is a sliding standard. It is only properly applied in a case involving, as the present one did, allegations of criminal or, at lowest, very serious misconduct, if it is adjusted to require proof of sufficient cogency to match the gravity of the allegations. The problem is that, while the official who had conducted the hearing, Mr. Dawson, was asked in the witness‑box what standard of proof he had applied and gave the answer that I have mentioned, no questions were then addressed to him as to how he had interpreted that standard and, in particular, whether he adjusted it to the gravity of the allegations. If he had given an answer that was satisfactory in law, that would have been an end to the matter. If he had given an answer which was not in conformity with the law, then it would have been necessary to seek to amend the IT1 and get a reasoned decision of the Employment Tribunal on the point. This did not happen. It is somewhere between speculation and wishful thinking to look for a point at this stage in the interstices of the evidence, if it did come out below. I am afraid that it is too late now.
3.	The next group of points seeks to raise issues which, if they are well founded in the material before the court, are of real importance. The question is whether they are sufficiently founded to support a viable appeal. They concern, first of all, the exclusion of potentially material evidence and, secondly, the proper analysis of and proper approach to the issues that arise within section 1 on a direct discrimination claim, and equally in relation to victimisation under section 2. Neither of these grounds, I suspect, was put to the EAT in quite the cogent way that Mr. Coghlin has put them to me, but he must not be disadvantaged by that. I accept, without any hesitation, that in discrimination cases a series of ostensibly neutral acts to the applicant's detriment may be inferred to be racially discriminatory, if (to take the second ground) taken together and applying to them Lady Bracknell's principle, they appear to the Tribunal to have a discriminatory character which individually they seem to lack or (to take the first ground) if some antecedent event, though not itself complained of as an act of discrimination, sheds upon the acts which are complained of a light in which the Employment Tribunal legitimately perceives those acts as having in truth been discriminatory.
4.	The argument that Mr. Coghlin wants to advance is that by its reasoning the Employment Tribunal eliminated both of these crucial aspects of their legal remit. The ground which relates to the global appraisal of individual events is one which this court has had to point out to employment tribunals again and again in cases stretching in time from King v Britain China Association to, most recently, Anya v Oxford University. It is fair to say that tribunals cannot be reminded or remind themselves too often that you cannot answer the questions posed by section 1 of the Race Relations Act or the Sex Discrimination Act without breaking them down into their analytical elements and taking those elements successively and cumulatively. In this case, I accept Mr Coghlin's initial submission that each episode which has been painstakingly analysed by the Employment Tribunal is dealt with without the separation that is ultimately necessary between detrimental treatment on the one hand, which may be justified and entirely innocent, and a racial motivation on the other hand which, if it exists, deprives the treatment of its innocent or justifiable character.
5.	But when one gets to the only point at which the global appraisal can be made, which is after the individual episodes have been looked at, one finds the Employment Tribunal saying this:
“The Tribunal considered each of the allegations brought by the applicant as shown above and concluded on each individual matter that there was no evidence that the circumstances that the applicant claimed was to her detriment arose because of her ethnic origin or race. The Tribunal also considered the matter in the round to see whether the picture taken overall presented differently. ... The Tribunal considered the applicant's own evidence painted a picture of a working relationship that had gone sour. It was a relationship of line manager and a member of staff whose styles clashed. No evidence appeared to support the view that Mr Moore's way of dealing with the applicant was in any way related to her ethnic origin or race but related to her style of working.”
6.	That passage, it seems to me, does, albeit fairly laconically, address the first of the major analytical issues that has to be undertaken; that is to say, to inquire whether episodes which, on the face of them, were legitimate and neutral in character, when added together raise an inference that all was not as it seemed and that racial bias was at work.
7.	The other question, which is closely related, is whether the Employment Tribunal wrongly excluded evidence dating from 1993 which might have cast light on this very issue; that is to say, on whether the apparently neutral series of detrimental events was in fact prompted by an element of race. We start from the proposition, which I accept, that the way the tribunal shut out that evidence is arguably unsustainable in law. At paragraph 12 the Tribunal say:
“The allegation concerned related to matters that had taken place in 1993 between [the applicant] herself and one of the colleagues Elaine Sleap [who was white]. The matters relating to 1993 are not issues on which the Tribunal will make findings as these were outside the time period prescribed by the Race Relations Act 1976, s68. The Tribunal does not consider them to form part of continuous acts of discrimination.”
8.	While acts which are to be relied on as forming part of the discriminatory conduct must either, as the tribunal rightly says, have occurred within the limitation period applicable to the proceedings, or at least form an earlier part of a continuing act or series of acts of discrimination, this is not the only test of admissibility. I accept Mr. Coghlin's submission that if antecedent conduct is capable of shedding relevant light upon the quality and motivation of the acts which are complained of in sufficient time, then it is admissible evidence, and it is an error of law to exclude it. I have therefore been concerned to see what it was that the tribunal excluded in this way because, plainly, it is only if what was sought to be omitted was capable of influencing the decision in Mrs Ahmed's favour that in substantive terms an appeal is viable.
9.	In her affidavit to the Employment Appeal Tribunal Mrs Ahmed said:
“I wished to give evidence during my evidence in chief of an earlier disciplinary procedure brought against me in 1993 by Mr Gavin Moore. I felt that this was relevant as Mr Moore at that time was not my line manager and was not entitled to implement this procedure against me.”
10.	I have already read the passage from the Employment Tribunal's decision which gives a little more factual detail about the nature of the dispute, namely that it concerned friction between Mrs Ahmed and a white colleague, Elaine Sleap.
11.	It is necessary to distinguish in this context between detrimental treatment, properly complained of in a discrimination claim, which was preceded by similar detrimental treatment beyond the limitation period, when all the treatment, both the early and the late, is capable of displaying no more than continuing personal animus and, on the other hand, detrimental treatment legitimately within the complaints before the Tribunal, which evidence shows to have been preceded, albeit out of time, by treatment or conduct which demonstrated a racial animus. If, for example, in 1993 Mr. Moore had allegedly done something which was not merely improper and detrimental towards Mrs Ahmed, but demonstrated, if the evidence was accepted, that he was racially biased against her, that would undoubtedly be a legitimate aid to the submission that the later conduct of which complaint was being made had a similar taint of racial bias. But the 1993 evidence is not of that character. It is evidence of more of the same; but that is not enough. It has to be, to be admissible, evidence which tends to show a motivation that makes the later detrimental treatment complained of discriminatory. It seems to me that the evidence that Mrs Ahmed wished to rely on was not capable of doing that. It was as facially neutral in that sense as all the other evidence. If she was not able to persuade the Tribunal in the round that, while any one of these episodes might have been a misfortune, the whole lot of them spoke of something more sinister and therefore discriminatory, then adding the 1993 episode to it could not have altered that outcome.
12.	In the circumstances, attractively though Mr. Coghlin has put the case, it seems to me that the proposed appeal is not one with any realistic prospect of success. I realise how frustrating and disappointing this will be to Mrs Ahmed who has stood her ground with determination over a long period of time. But to add to the length of the period of uncertainty by giving permission, which could only end in defeat, would not help her in any way. For those reasons I refuse permission to appeal.
Order: Application for permission to appeal refused.