Appeal No. EAT/830/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 4 October 1994

	Before

	THE HONOURABLE MR JUSTICE PILL

	MR L D COWAN

	MRS T MARSLAND

MR S SCOTT	APPELLANT

BRITISH TELECOMMUNICATIONS plc	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

 	APPEARANCES

For the Appellant	MR R ALOMO
(of Counsel)
Brixton Law Centre
506-508 Brixton Road
London SW9 8GN

For the Respondents	Ms E ANDREW
(of Counsel)
The Solicitor
British Telecom Plc
81 Newgate Street
London EC1A 7AJ

	MR JUSTICE PILL:  This is an appeal by Mr Selvin George Scott against a decision of the Industrial Tribunal held at London South on 13 and 14 July 1992 whereby in a unanimous decision they held that Mr Scott's complaint of racial discrimination was not made out and was dismissed.

	Mr Scott had been employed by the Respondents, British Telecommunications plc, for many years.  His complaint is that he had not been promoted to the next grade, which we are told is the T1 grade, whereas white employees had been so promoted.  He claims direct racial discrimination contrary to s.1(1)(a) of the Race Relations Act 1976.  The discrimination complained of being of a failure to promote him contrary to s.4(2)(b) of that Act.  

	The Respondents denied that discrimination had occurred, though accepting that there had been an error in the system which they operated when considering candidates for promotion.  

	The notice of appeal complains specifically that:
"the Appellant was not promoted or included within the 1991 list for promotion unlike his white counterparts who had less skills and experience"

	It is further submitted in the notice of appeal that the Tribunal misunderstood or misapplied the law in that they stated in their findings that they could not find any racial motive on the part of the Respondents.  It is submitted that the question of motive is irrelevant or should have been irrelevant to the Tribunal's consideration.

	The reasoned Decision of the Tribunal sets out the evidence which the Members heard in some detail.  The conclusions of the Tribunal are set out in paragraphs 10 and 11.  The Tribunal held that the failure to promote was not caused by any racial motive on the part of the Respondents or on any of the Respondents' employees.  However, the Tribunal went on to state:
"We think that the Applicant has had a raw deal over his promotion."
In the same paragraph it is stated that:
"We do hope however that something can be done to redress this situation which has left the Applicant with a real sense of grievance and which is certainly no fault of his."

	We do not know and have not been told whether the employers have acted upon that suggestion or what the present employment of Mr Scott is.  It was readily accepted by Ms Andrew on behalf of the Respondents that Mr Scott is a valued employee of 28 years' service with the Company.  

	A central point in the case is clearly whether in 1981 the failure to promote Mr Scott was in contravention of the legislation dealing with racial discrimination.  On Mr Scott's behalf, Mr Alomo naturally refers to the passages in the reasoned decision which I have cited and submits that on the evidence the failure to draw an inference of racial discrimination in the matter of promotion was an error of law on the Company's part.  Mr Alomo referred us to the case of King v. The Great Britain-China Centre [1991] IRLR 513 where Lord Justice Neill set out guidelines and principles which could be extracted from the authorities and were relevant when a Tribunal was invited to draw inferences upon the evidence.  Lord Justice Neill underlined that the burden of proof remained upon the Applicant but that it was important to bear in mind that it is unusual to find direct evidence of racial discrimination and few employers will be prepared to admit such discrimination even to themselves.  He stated that:
"The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal...

Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.  In such circumstances the Tribunal will look to the employer for an explanation.  If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds."

	In this case Mr Alomo submits there is no explanation as to why Mr Scott's name did not appear in the 1991 panel of promotion candidates.  Further, there is no explanation from the Tribunal as to why they did not infer racial discrimination in the absence of any such explanation.

	The Tribunal do not state in terms that the absence of Mr Scott's name was "an administrative error".  They have an obligation to give reasons for their decision.  It is submitted that their decision is defective in the absence of any such finding of fact and in reaching the conclusion they did without any such finding and, in failing to draw an inference following the principles in King that there had been racial discrimination in the absence of any sufficient explanation for the failure to promote.  This should be considered, Mr Alomo submits, against a background that there had been a failure to promote Mr Scott over the years and against a background of matters which are set out in the notice of appeal, some of which were considered by the Tribunal in their reasoned decision.  I will not recite the list in full.  It appears in the helpful skeleton argument which has been submitted on behalf of the Appellant at paragraph 7.

	Mr. Alomo further submits that the question of motive or intention is not decisive.  What the Tribunal should have considered was the effect of the action or inaction by the Company.  The Tribunal failed to take the step of considering whether it was proper to infer racial discrimination in the circumstances of this case and in failing to take that step they infringed the principles in King.  That point is made stronger, he submits, when the decision in 1991 is considered not in isolation but against the background of the earlier acts of which Mr Scott complains.

	The promotion list, to which reference has been made, is at page 107 of the bundle.  Evidence was given by employees of the Respondents as to the procedures followed when promotions were being considered and as to the publicity given to lists which were prepared for the purposes of considering promotions.  There was no recommendation in Mr Scott's favour for promotion in 1988.  However, in 1990 upon the assessment at that time, Mr Zimbler, who is the relevant line manager at the time the decision was taken, marked Mr Scott as being fit for promotion.  It should have followed from that decision that in the next list which was prepared (and it is common ground that the relevant list is that of 11 January 1991, headed "Job line, City of London District" at Appendix A, page 107), Mr Scott's name should have appeared amongst those eligible for promotion to T1.  Nine names appear on that list.  His name is missing.  There was no explanation before the Tribunal as to why his name was missing.  Ms Andrew has conceded that on behalf of the Respondents and the Respondents called substantial evidence.  No doubt, their witnesses were suitably cross-examined and any appropriate investigation was made into the Company's documentation.

	It is further accepted by Ms Andrew on behalf of the Company that others were promoted at that time, who had less cause to be promoted than did Mr Scott and that, no doubt, is the origin of the statement which the Tribunal made in paragraph 8 of their Decision, that:
"had the Applicant raised the matter internally, he could have appealed and would have been considered in accordance with the procedure which meant that had he appealed, his appeal would certainly have been successful."

	The paragraph in which that sentence appeared is not clear but Ms Andrew accepted that the effect of it is as I have just stated.  I will refer in a moment to the lack of clarity which, it is common ground, is not material to the decision or to the points at issue between the parties.

	On behalf of the Respondents, Ms Andrew submits that it was legitimate for the Tribunal to infer upon the evidence that there had been no racial discrimination.  Indeed, she puts it somewhat stronger.  She submits that on the evidence before the Tribunal there was no material on the basis of which the Tribunal could properly infer that there had been racial discrimination.  She need not persuade us of that to succeed but what is in issue is whether the Tribunal were permitted upon the evidence to make the decision which they did, that there had been no racial discrimination.  Ms Andrew submits that upon the evidence the Tribunal were entitled to draw the inference which they did.  While she accepts - indeed, she must accept - that there may be circumstances in which it is legitimate to infer racial discrimination, she submits that there is no obligation to infer it in the present circumstances.  She submits that the Tribunal should now look at the matter in the round, as she puts it. The absence of a specific finding of fact, that the failure to place Mr Scott's name on the January 1991 list was an administrative error, is not fatal to the decision of the Tribunal.  

	In reply to that, Mr Alomo submits that this was the central point of the case.  The main arguments revolved around the reasons why Mr Scott's name was not on the January promotion list and quite apart from his other submissions, this case should be referred back to the Industrial Tribunal because of their failure to make a finding of fact on a crucial point.  The parties are entitled, he submits, to know the Tribunal's findings of fact and the process of reasoning by which they reached their decision.  We have been referred to the decision of this Tribunal in Seide v Gillette Industries Ltd. [1980] IRLR 427.  I need not spell out the facts.  Mr Justice Slynn, giving the Judgment of the Tribunal, found on the facts of that case that:

"The Tribunal clearly looked to see whether what had happened was done on racial grounds and they found that it was not."

	Ms Andrew says that the same conclusion should be reached in the circumstances of the present case.

	As I have said, the Tribunal set out in their decision in some detail the evidence which was given on behalf of the Respondents in addition to the evidence of Mr Steptoe, who was called on behalf of the Applicant.  Evidence was given for the Respondents by Mr Drake, Mr Craig, systems and job control manager, Mr Zimbler, to whom I have already referred, Mr Wright, senior personnel adviser and Mr Lake, the senior service centre manager.  Only one complaint can be made and, indeed, this point was raised by the Tribunal rather than by Mr Alomo, about the summary of the evidence.  There is an apparent inconsistency in the description of the method of promotion between the evidence of Mr Zimbler and that of Mr Wright.  It is clear now that it is Mr Zimbler's account which is the accurate one and, indeed, the Tribunal, in a rather long and complex sentence, do not clearly state, it seems to us, the evidence given by Mr Wright.  It is unlikely that Mr Wright would have given evidence inconsistent with that of Mr Zimbler.  I will read the sentence for the sake of completeness:
"As to the other men whose names have been mentioned, Shepherd and Taylor were on the 1988 list and had the Applicant raised the matter internally, he could have appealed and would have been considered in accordance with the procedure which meant that had he appealed, the appeal would certainly have been successful."

	In fact Mr Wright was stating two separate points.  Mr Shepherd and Mr Taylor in accordance with the procedure did have a claim to precedence over Mr Scott and Mr Scott could have no appeal on the subject of their promotion.  However, the second statement, a quite separate one, was that on the facts as they existed, Mr Scott could have appealed.  Ms Andrew tells us and, we are sure accurately, that there were other men promoted, though not Mr Shepherd and Mr Taylor, above whom Mr Scott would have been promoted.  As I have said, that is not central to the issue in the case.  At paragraph 10 the Tribunal stated this
"The story is a confused one and is not helped by the fact that it does appear to us that there have been deficiencies in the Respondents' promotion procedure connected with the appraisals of the Applicant and his subsequent failure to obtain promotion.  We, however, have to remind ourselves that we can only find in favour of the Applicant if we find that the failure to promote him had been caused by some racial motive either on the part of the Respondents' organisation or on the part of their employees for whom they are vicariously responsible.  We listened to the evidence very carefully and we are quite satisfied that there has been no discrimination against the Applicant on racial grounds."

	Reference is then made to the evidence and conduct of several of the officials.  It is right to say that the conduct of Mr Craig was the subject of criticism and was the subject of an internal disciplinary procedure, which found that he had misconducted himself and, indeed, that what he had done was a serious offence, which had been recorded on his file to remain for three years.

	At paragraph 11 the Tribunal stated:
"We think that the Applicant has had a raw deal over his promotion.  In the course of the re-organisation of the Respondents' business, something went wrong somewhere, and Mr Zimbler's appraisal that the Applicant was fit for promotion was never acted on properly.  We think however that this is an unfortunate occurrence but is not to be attributed to any racial motive on the part of the Respondents or of anyone in their employment for whom they are responsible."

	We put to Mr Alomo the question whether other matters which had been complained of could be shown to have a causal connection with the failure to place Mr Scott on the January 1991 promotion list.  He accepts that there are difficulties in that regard and puts the earlier conduct, as I stated when summarizing his submissions, on the basis that it was background which he says should have led the Tribunal to infer and conclude that the failure to put Mr Scott's name on the panel was as a result of racial discrimination.

	We can deal briefly with the question of motive.  In our judgment the Appellant cannot succeed on that ground.  It is clear that the Tribunal had the right question in mind as required by the legislation, whether any action which was taken by the Company was taken on racial grounds, whether he had not been promoted because of his colour.  Mr Alomo accepted, and rightly accepted, that if there was indeed an administrative error, the law does not mean that if the administrative error is made in respect of an employee of one race, no cause of action arises whereas if it is made in respect of an employee of another race then a cause of action does arise.  In our judgment the right test was applied and this is not a case where the question of any difference between motive and effect can arise.

	Ms Andrew relies upon the fact that there is nothing in the documentation to suggest a decision not to put the name on the January 1991 panel on racial grounds and says that anyone seeing Mr Scott's name would not know his race.  She tells us that there was evidence before the Tribunal that those who prepared the list of names for the January 1991 promotion list were different from those who had been assessing Mr Scott over the years.  

	While we accept what she tells us, the point is not crucial to the decision which we make.  The central point, in our view, is whether the Tribunal have sufficiently reasoned their case.  First, whether on the evidence presented to them were they obliged to draw the inference that there had been racial discrimination and, second, even if that is not the case, have they failed sufficiently to identify the facts they found and the reasoning they followed?

	We do find it somewhat surprising that detailed attention is given to the earlier events and the conduct of the employees of the Respondents set out in paragraph 10 of the reasoned Decision, and yet there is no specific reference to the central question why Mr Scott's name was not on the promotion list in January 1991.  It may be that since attacks were made upon the motives of the Respondents' employees that the Tribunal thought it right to deal with those events and to state in terms in the case of each of them that the relevant conduct was not racially motivated.  They did that notwithstanding the absence of any obvious causative link between, for example, the unfortunate photograph which had been displayed and the conduct complained of, namely, the failure to put Mr Scott's name on a list.

	Mr Alomo is right to say that nowhere in the Judgment do the Tribunal state in terms that the absence of Mr Scott's name from the list was an administrative error and that submission must be seen in the light of Ms Andrew's concession that there simply was no explanation for the Tribunal as to why Mr Scott's name was missing.

	What, however, we are very confident about is that the Tribunal did examine closely the conduct of all the relevant officers of the Respondent Company, that proper enquiry was made into the procedure which was followed and that Tribunal were firmly of the view that no racial discrimination had been involved.  

	In that context we consider whether the Decision fails by reason of the failure to make a finding of fact.  It would have been better, in the view of this Tribunal, if the Industrial Tribunal had grasped the nettle and dealt specifically with the absence of Mr Scott's name from the list.  If the reason was, as it almost certainly was, that there was an administrative oversight or clerical error, then it would have been better if they had stated that.  They could then have gone on simply to state that, in those circumstances, the Applicant had not discharged the burden of proof upon him of showing racial discrimination and because on that evidence there was no room for the inference of racial discrimination.  At least, their entitlement to hold that there was no racial discrimination could not have begun to be challenged.  We recognize that no such simple statement as could have been included within the decision is there.  

	However, we have come to the conclusion that it is implicit in the decision of the Tribunal at paragraphs 10 and 11 that they found that, on the critical question of the absence of the name from the list, there was no racial discrimination.  Ms Andrew has reminded us that this Tribunal should not be over-sophisticated in scrutinizing the manner in which an industrial tribunal has set out its decision and should not attempt to construe that decision like a statute.  The Tribunal stated - I have already read the relevant sentences - first, in paragraph 10 that there were deficiencies in the Respondents' promotion procedure connected with appraisals of the Applicant and, second, at paragraph 11, that:
"something went wrong somewhere, and Mr Zimbler's appraisal that the Applicant was fit for promotion was never acted on properly."

	It is, in our judgment, implicit in those findings that there was here an administrative error unconnected with racial discrimination and we are satisfied that the Tribunal, who are of course the judges of the facts, were entitled to find on the material before them that the raw deal, which they recognized Mr Scott has had, was not something which gave him a right to make the present complaint before the Industrial Tribunal.

	For those reasons this appeal must be dismissed.