Appeal No.	 EAT/754/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 October 1998

Before
HIS HONOUR JUDGE J HICKS QC
MRS J M MATTHIAS
MR R JACKSON

MR B SAWYERS	APPELLANT

BIRMINGHAM CITY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr M S Panesar
(of Counsel)
Mr C Lyall
Messrs Maurice Andrews
Solicitors
Ruskin Chambers
1st Floor
191 Corporation Street
Birmingham B4 6RP	
For the Respondent	No representative	

	JUDGE J HICKS QC:	Mr Sawyers, the Appellant, had as part of his previous employment history been employed by the Respondent, Birmingham City Council, but at the date with which his application to the Industrial Tribunal and this appeal are concerned he was in other employment and was an applicant for a post advertised by Birmingham City Council.  There were external and internal applicants and he was not shortlisted for interview, and his complaint is that that failure to shortlist him was an act of racial discrimination.

	The Tribunal in a full and careful decision made a number of findings in his favour, which can be summarised by saying that he was unfairly discriminated against in that he was dealt with less favourably in a number of respects than other applicants but on the further, and therefore crucial, question as to whether that less favourable treatment was motivated by racial discrimination  the Tribunal found against him and that is the occasion of this appeal.

	In the event, the appeal as very ably and succinctly presented to us by Mr Panesar comes down to two points.

	On one we are persuaded that the appeal should go forward to a full hearing  and we therefore say no more about it at this stage, and we shall return simply to identify it and make clear what is to happen, but the other and broader ground of appeal is in effect that the Tribunal erred in law in the test which they applied in deciding whether the less favourable treatment which they had found was racial in origin and therefore amounted to racial discrimination, contrary to the statute.

	The way in which the Tribunal dealt with the law which they were applying on that point and the test which they had therefore to apply - the questions which they had to ask themselves -is found in paragraphs 3.1 onwards of the Decision and in particular, on the point which Mr Panesar challenges, paragraph 3.5, in which they say this:

“To succeed, therefore, the applicant must first show that, comparing like with like and that there is no material difference in the other case or cases, he has been treated less favourably than others not of his race, or, if there is no comparator, less favourably than others not of his race would have been treated in the same or similar circumstances.  If that is once shown and there is indeed a difference in race, ........”

	and in the case of at least one - I think probably more than one - of the short-listed candidates there was such a difference, although not all.  The Tribunal continues:

“..... it is common sense to look to the Respondent for an explanation for only he knows the true reason for the treatment complained of.  If there is none, or we consider it to be unsatisfactory, then we must decide, looking at the totality of the evidence and not just at individual incidents, whether, on the balance of probabilities, the true explanation involves causal factors of unlawful discrimination.  In arriving at our final conclusion we must not shrink from drawing any inferences which we consider it proper to make in view of our findings of fact and the unsatisfactory explanation of events given by the Respondent, whilst being careful not to make inferences which the facts themselves would not justify.”

	and they go on to summarise their earlier findings as satisfying them that Mr Sawyer did receive less favourable treatment than the other applicants in the shortlisting exercise and to ask whether that difference was due to a difference in race.   Then they go on to consider that question.

	We find no error of law in that direction to themselves in the way they should approach the matter, nor do we find in the paragraphs following, where they work out their answer to that question, that they strayed from or forgot or misapplied that correct self-direction.

	Mr Panesar in effect conceded that in order to make this point he has to establish a rather different and stronger proposition as to what the test is, which he expresses in his Skeleton Argument thus:

It is contended that where positive or favourable treatment meted out to a person of one race (here the successful applicant, who is white) has the effect of causing disadvantage (or less favourable treatment) to a person of another race (the Appellant, who is black), the very act of positive or favourable treatment is an act of unlawful race discrimination.

	That in our judgment goes beyond any authority and is indeed contrary to the test which can be derived from the statute and from the authorities and which in our judgment is correctly stated in the passage which I have quoted from paragraph 3.5 of the Tribunal’s decision. 

	We therefore dismiss the appeal, so far as it rests on that ground or indeed any of the other grounds in the Notice of Appeal, insofar as they are separate or different from those argued, and come back to the one point on which we consider that the appeal should  proceed to a full hearing.  It is raised in paragraph 6.2 (a) and (b) of the Notice of appeal and is founded upon a passage in cross-examination, as the Appellant or someone on his behalf has recorded it, which plainly is not reflected in the summary of evidence contained in the Tribunal’s reasons.  It may be, but we cannot tell for certain, that the corresponding passage is that summarised in the first part of paragraph 2.20 of the Decision, but if so there has been some divergence of record of the precise words used, and we consider that this ground should go forward to a full hearing and that the Chairman should be asked for the notes of that passage of evidence.