APPEARANCES
| For the Appellant |
MS H GREWAL
(of Counsel)
Instructed by:
London Borough of Ealing
Corporate Resources Legal Services
Perceval House
14/16 Uxbridge Road
London W5 2HL |
| For the Respondent |
MS C RAYNER
(of Counsel)
Instructed by:
Messrs Thompsons
Solicitors
Congress House
Great Russell Street
London WC1B 3LW |
HIS HONOUR JUDGE J BURKE QC
The appeal
- In this appeal the London Borough of Ealing ("Ealing") appeals against the decision of the Employment Tribunal, sitting at Watford and chaired by Mr Garnon, that the complaints of their employee, Mr Rihal, that he had been the victim of direct racial discrimination by Ealing succeeded in respect of six of the seven incidents of discrimination on which he relied. His complaint of indirect racial discrimination was abandoned at the outset of the hearing.
- Mr Rihal's complaints, put before the Employment Tribunal by his Originating Application dated 28 September 2000, were heard by the Tribunal over six days in May 2001; in their decision, promulgated on 3 July 2001, the Tribunal first considered whether any of Mr Rihal's complaints of direct discrimination, which covered a period from May 1996 to July 2000, were out of time and, if so, whether it was just and equitable to allow the complaints to proceed. The Tribunal concluded, at paragraph 7 of their decision, that Mr Rihal's complaints formed part of a continuing course of conduct and that, if they did not, it was just and equitable to allow the complaints to proceed. Ealing's appeal, insofar as it attacked those conclusions, was dismissed at the preliminary hearing of this appeal; however Ealing's appeal against the substantive findings of the Tribunal that there had been direct discrimination was permitted to proceed to a full hearing which we heard originally on 26 September 2002 and, at a further hearing, on 18 May 2003. This is our judgment upon Ealing's appeal.
- We would like at the beginning of this judgment to pay tribute to the persuasive and attractive way in which the arguments were presented to us and to apologise for the delay in the production of this judgment which is in no way the fault of the lay members. Part of that delay occurred because, as the judgment which had been reserved was being written, and was, indeed, nearly complete, the House of Lords decision in Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285, became available. It was clear to us that that decision might have some effect upon the arguments which had been presented to us; and, accordingly, it was seen as necessary to give the parties the opportunity of presenting submissions to us on the effect of Shamoon upon this appeal, either in writing or orally. Ealing chose, as they were entitled to do, to present further oral submissions; hence the further hearing.
The history
- We will endeavour to distil from the Tribunal's lengthy, detailed and careful decision the essential factual background to this appeal. Mr Rihal is a Sikh; he was born in India and has a pronounced accent; he has lived in the UK for many years. He was employed by Ealing from 1988 as a Surveyor; he was, the Tribunal found at paragraph 32, extremely well qualified both in building and surveying and in management. He worked, until a reorganisation to which we will come later, in the Central Technical Team. That team was split into three departments, Mechanical and Electrical, Planned Maintenance and Capital Programmes; each department was concerned with different types of building work upon properties owned by Ealing. There was a Head of the Central Technical Team, originally Ms Herman (a white Israeli); she was on grade PZ. At the next tier of management were the Heads of the three departments; until 1992 those Heads were Mr Smith and Mr Rose (both white and British) and Ms Herman herself; she had a dual role. Mr Rose was on grade PY; Mr Smith, by a quirk of grading, was on grade PZ1. Below that tier of management were Senior Surveyors, including Mr Rihal, on grade PW; and below them, there were Surveyors on grade PO. The Tribunal found that the posts or grades from PX upwards (there was no one on grade PX) were management posts with less hands-on involvement with building contracts.
- In 1992 there were two Senior Surveyors, Mr Relf (white British) and Mr Rihal. They were, the Tribunal found, equally qualified. Mr Rose retired in that year and was not replaced; instead Mr Relf, to summarise the Tribunal's findings in paragraph 25 of their Decision, "acted up" in Mr Rose's position while remaining on his PW grade. He did work which was equal to that of Mr Smith and reported direct to Ms Herman.
- For a period prior to early 1996 Mr Rihal worked from an area office in Acton; but in March 1996 he returned to the Central Technical Team. The Tribunal expressly found that, while at Acton and on return to the Central Technical Team, Mr Rihal was equal in terms of responsibility, capability and potential to Mr Relf and Mr Smith. In May 1996 Mr Relf retired; he too was not replaced; Mr Rihal was neither promoted into his post, which was formally deleted, nor given his responsibilities; instead an employee junior to Mr Relf, who was on grade PO (two below Mr Rihal), Mr Dicks (white), and Mr Rihal shared Mr Relf's responsibilities as Head of Planned Maintenance which responsibilities were divided into pre-contract and post-contract work. The Tribunal found that thus Mr Rihal was being joined on an equal level by someone inferior in grade, qualifications and experience.
- In September 1996 Ms Herman retired; her position as Head of the Central Technical Team was taken over by Mr Foxall (white); her position as the Head of the Capital Programmes Department was taken, on an acting-up basis, by a Mr Gaffikin (white) who, the Tribunal found, was on a grade no higher than and who had fewer qualifications and less experience than Mr Rihal.
- Thus, the Tribunal concluded, Mr Rihal had been joined in level by Mr Dicks and had been overtaken by Mr Gaffikin although both were of lesser qualifications and experience and were on a lower or the same grade. This, the Tribunal described, at paragraph 27, as "a clear difference in treatment and a difference in race".
- In the autumn of 1996 both Mr Dicks and Mr Rihal complained to Mr Foxall that the demarcation between contract and post-contract work was unsuccessful and causing practical problems. The situation demanded urgent attention; but Mr Foxall left the system established by Ms Herman earlier that year in place; in April 1997, when Mr Dicks raised concerns about his doing work of greater responsibility without the appropriate pay, Mr Foxall gave him an honorarium, effectively an increase in pay; but he did not give such an honorarium to Mr Rihal who was in the same position as Mr Dicks and whom Mr Foxall knew also to be unhappy about his position.
- In 19997/98, the Central Technical Team went through a re-organisation; it was re-named the Housing Investment Team, headed by Mr Foxall. Beneath him there was to be a new post called "Housing Investment Manager" and beneath that level there were to be two new posts, graded PY and called "Programmes Delivery Manager" and "Investment, Planning and Standards Manager". The posts of Senior Surveyors became Senior Project Managers posts, on grade PW, the grade on which Mr Rihal was as a Senior Surveyor. Existing employees were matched to posts in the new structure by a process called assimilation. It is not necessary at this stage of this judgment to go into detail of the procedures which Ealing followed; to carry out that process; it should suffice to say that Mr Rihal's applications to assimilate to the posts of Housing Investment Manager, Programmes Delivery Manager and Investment Planning and Standards Manager - which latter two posts were on the same grade as those of Mr Smith (but for his quirk of grading) and, before his retirement, Mr Rose and, on an acting-up basis, Mr Relf - failed. The Tribunal found, at paragraph 35, that although Mr Foxall did not act alone in deciding on the assimilation process, his was the only qualified voice on technical matters and that his judgment was perpetuated in the subsequent appeal process because none of the others involved knew anything about building work. The Tribunal further found that Mr Foxall had, in the assimilation process, approached his decisions as to Mr Rihal on the basis that Mr Rihal would not fit into a role with wider and higher responsibility (paragraph 37) but that although, as Mr Rihal had accepted in his evidence, he was aiming high to aspire to the post of Housing Investment Manager, the posts of Programmes Delivery Manager and Investment Planning and Standards Manager were well within his grasp (paragraph 40).
- In February 1999 Mr Rihal again applied for the post of Investment Planning and Standards Manager; in a contest with Gaffikin for that post, he lost. The Tribunal found that Mr Gaffikin was not as well qualified as Mr Rihal and that, if he had greater experience at a higher level, that was because he had been permitted to act-up after Ms Herman's retirement. The dynamic on the interview panel, the Tribunal found, came from Mr Foxall (paragraph 40); and Mr Rihal in his interview was not but Mr Gaffikin in his interview was given the opportunity to demonstrate his capability and to shine (paragraph 41).
- The Tribunal then set out, at paragraph 43, what they described as their most important findings of fact, namely that in the new structure all the senior management posts and the senior positions in the Area Housing Offices were all held by whites, with the exception of Mr Rihal and a Mr Frederick in grade PW. There were only five black employees in the team, four of whom were in the lowest grades; but in other departments of Ealing's structure, twenty five per cent of senior management was not white. The Tribunal concluded that there was in the Housing Department a glass ceiling pursuant to which whites were (but, inferentially non-white were not) able to break through into the management grades above PW.
- Having failed to obtain the post of Investment Planning and Standards Manager, Mr Rihal complained through Ealing's grievance procedure. Mr Dallison was supposed to deal with the grievance, but he did not reply to Mr Rihal's letter of complaint for over fourteen months. The Tribunal concluded that Mr Dallison realised that there was a racial element to Mr Rihal's complaint, that he wanted to keep a lid on it and hoped that it would go away because he was, consciously or at a subconscious level, afraid of what he might find if he looked into the complaint with vigour and that if a white employee had complained Mr Dallison would have delegated the complaint to Human Resources or dealt with it quickly.
The Tribunal
- The Tribunal had to consider seven instances of discrimination put forward by Mr Rihal. They were that there was discrimination in:
(a) Mr Rihal's not being appointed to act-up in May 1996 on the retirement of Mr Relf.
(b) The allocation of duties to Mr Rihal by Mr Foxall in or before November 1996.
(c) Mr Rihal's failure to be appointed to the post of Housing Investment Manager in May 1998 and October 1998.
(d) His failure to be assimilated to the post of Programme Delivery Manager in 1998.
(e) His failure to be assimilated to the post of Investment Planning and Standards Manager in 1998.
(f) His failure to be appointed to the post of Investment Planning and Standards Manager in February 1999.
(g) The manner in which his grievance was dealt with by Mr Dallison.
- The Tribunal expressly recorded, at paragraph 12(1)(c) of their decision, that Mr Rihal had expressly abandoned complaint (c) from the above list in the course of his evidence.
- At paragraph 18 of their decision, the Tribunal directed themselves in considerable detail as to the principles of law to be applied in a case of direct race discrimination; no criticism was made of their self-direction at the original hearing of the appeal. At the further hearing various submissions were made on behalf of Ealing based on the decision of the House of Lords in Shamoon to which we will refer later in this judgment.
- The Tribunal concluded, based on their findings of fact, that there had been discrimination in each of the instances which we have listed, with the exception of complaint (c).
Our conclusions - general
- Ms Grewal, on behalf of Ealing, submitted that the Tribunal had erred in law in respect of each of the complaints of discrimination as to which they found in Mr Rihal's favour.
- While it is necessary for us, in the light of the arguments, to address each subject of complaint separately, we must first make comments of more general application.
- Firstly it is trite to say - but we will say it in this case - that no appeal against a finding of fact by a Tribunal can succeed unless it is demonstrated that the finding was perverse either in the sense that a material matter was overlooked or an irrelevant matter was taken into account or in the sense that the finding was one which no reasonable Tribunal could make. The appeal was put forward principally on the grounds that the Tribunal had erred in law rather than on the basis of perversity - although shades of perversity arguments appeared from time to time.
- Secondly, it was not in dispute that Mr Rihal's case throughout was put on the basis that there was a glass ceiling which, consciously or unconsciously, operated in Ealing's Housing Department so as to prevent or hold back non-white employees from advancing into management posts and that that glass ceiling lay at the heart of Mr Rihal's failures, from 1996 to 1999, to achieve promotion to or the status of acting-up in such a post. The Tribunal found that there was, indeed, that glass ceiling of which Mr Rihal complained; that was a finding of fact, based, as is clear from paragraph 43 of the Tribunal's Decision, on the figures as to the promotion of non-whites in that department as opposed to promotion in other departments of Ealing and on inference from what the Tribunal expressed as:
"the primary but incontrovertible fact that in comparison to white people in the same or similar circumstances not only the Applicant but Mr Frederick (who is black and has a Caribbean accent) have fared comparatively badly in the implementation of arrangements for deciding who receives promotion."
The Tribunal, in referring to how Mr Rihal had fared as to promotion, were referring back to the whole history of what had happened to Mr Rihal from 1996, set out in paragraphs 25 - 41 of their Decision. The latter part of that history was summarised in paragraph 42 of their Decision in these terms:
"what we see is that during the re-organisation process which commenced in early 1998 and continued through to February 1999 the Applicant failed not only to be assimilated to posts but failed to be successful at interviews, in the same circumstances where white people were successful"
- The finding of the presence of this glass ceiling is a finding of fact, albeit a finding of secondary fact based on inference from the primary facts. It is in no sense a finding of law or of mixed law and fact. It is a finding which, in factual terms, explains Mr Rihal's failure to progress throughout the relevant periods. In order to succeed in their attack on the Tribunal's conclusions as to the reasons for the differences in treatment which the Tribunal identified, Ealing must succeed in their attack on this finding.
- There were two bases for this finding. The first was the findings of primary fact which we have described in brief above, supporting an overall factual conclusion reached by the Tribunal in the light of their consideration of the whole history of the relevant events over the period from 1996 in which Mr Rihal had failed to achieve promotion; as the Tribunal indicated in paragraph 42, none of the individual events in that history provided a full picture. The history had to be considered as a whole; and the Tribunal were wholly entitled to approach the facts in that way. Indeed, as the Court of Appeal in Anya -v- the University of Oxford [2001] IRLR 371 made clear, the Tribunal in considering individual incidents of a discrimination case are entitled - and indeed, we should add, are bound - to consider them in the context of the events taking place around them; individual incidents do not or at least may not occur in a vacuum but in a broad historical context; and in a case in which discrimination over a substantial period is relied open, it is open to the Tribunal to reach conclusions based on the general picture which they derived from the evidence. That general picture may be informed by what the Tribunal found to have occurred in the case of individual incidents; and the Tribunal's view of incidental incidents may be informed by the Tribunal's view of the general picture. Both Anya and the EAT's decision in Qureshi -v- Victoria University of Manchester [2001 ICR 863 established that the Tribunal in a case such as this are entitled to reach and rely upon conclusions as to the general picture in considering individual complaints of discrimination.
- It was, therefore, open to the Tribunal to regard their view of the general picture as of great importance to their conclusions; and the Tribunal plainly did so, at paragraphs 42 and 43 of their decision.
- The second basis for the finding of the glass ceiling was the statistical comparison between the number of non-whites in senior positions in the Housing Department and the number of non-whites in such positions in other departments at Ealing. As the Court of Appeal laid down in West Midlands Passenger Transport Executive -v- Singh [1988] IRLR 186 such material is relevant to and may be logically probative of a complaint of discrimination because it may assist the complainant to establish a positive case that the treatment of individual employees was on racial grounds; see per Balcombe LJ at paragraphs 12 - 16 and 20 of the judgment of the Court. Thus the Tribunal in this case were entitled to give weight to the statistics, both in their conclusions as to the general picture and - because the general picture may inform a Tribunal's view of specific complaints, in their conclusions as to those specific complaints.
- It was not argued before us that the Tribunal's comparison between the success of non-whites in other departments and their success - or rather lack of it - in the Housing Department, was based on an erroneous appreciation of the facts. Ms Grewal reminded us that there was an Asian in a senior management position in the Housing Department, Sue Gomer; but the Tribunal did not find that the glass ceiling had succeeded in barring everybody from access to management posts in the Housing Department; and they specifically referred to her case in paragraph 43 of their Decision and plainly took it into account. Ms Grewal also argued that the only white who had achieved a management post in the relevant period was Mr Gaffikin; but that suggestion omits the full weight of the Tribunal's findings as to the history which encompasses the appointment to management posts of others who were white, in addition to Mr Gaffikin.
- In our judgment, the Tribunal's findings as to the glass ceiling cannot be successfully attacked as perverse or on other grounds.
- Ms Grewal opened her submissions as to the specific complaints by taking us to the decision in Marks and Spencer plc-v- Martins [1998] ICR 1005 in which the Court of Appeal upheld the Employment Appeal Tribunal's decision allowing Mark and Spencer's appeal against the Employment Tribunal's decision that the employers had racially discriminated against the applicant in their conduct of an interview. The first basis of the Court of Appeal's decision, as set out in the judgment of the Court delivered by Mummery LJ, at page 1019 A - G, was that the Tribunal had failed to ask themselves the two separate and essential questions in a case of direct discrimination set out by the House of Lords in Glasgow City Council -v Zafar [1998] ICR 120 i.e. first, was the applicant treated by the employers less favourably than they treated or would have treated another person of a different racial group in the same or not materially different circumstances and, if so, secondly, was such less favourable treatment on racial grounds? The first question involves a compulsory comparison which the Tribunal had not attempted to make; instead the Tribunal had concluded that the interviewers were guilty of bias against the Applicant, a finding which was not a relevant or meaningful finding for the purpose of the Race Relations Act 1976.
- The Court of Appeal also concluded that the Tribunal had based their decisions that there had been less favourable treatment on the ground of race on contradictory conclusions in different parts of their decision (pages 102F to 102C) and that the Tribunal had erroneously substituted their own views of the impression that the Applicant would have made on them had they conducted the interview for those of the interviewers themselves. Ms Grewal submitted that the Tribunal in this case had made similar mistakes to those made by the Tribunal in Martins in reaching their conclusions on some or all of the individual complaints.
- She further submitted that, in some areas, the Tribunal failed to set out sufficient reasons to enable the parties to know why they had won and lost i.e. their decision was not, to adopt an expression used by Sedley LJ in Anya (reference above) "Meek compliant" i.e. not sufficient to comply with the standards laid down by the Court of Appeal in Meek -v- City of Birmingham District Council [1987] IRLR 250.
- Subject to Shamoon, to which we are about to turn, Ms Rayner, on behalf of Mr Rihal, did not suggest that the principles derived from Martins or the standards set out in Meek were not applicable to this case. She submitted that the Tribunal had not made any of the errors asserted by Ms Grewal and that the Tribunal had, in the case of the individual complaint, complied with the principles in Martins and had produced a decision which was Meek compliant.
- It is not necessary for us to say more about these arguments in this general part of our judgment. We will have, in due course, to consider the specific arguments addressed to us by the parties in the case of each of the relevant complaints.
Shamoon
- At the further hearing, Ms Grewal submitted that the decision in the House of Lords in Shamoon did not, in the circumstances of this case, affect the relevant principles of law or in any way diminish the strength of her submissions or of her criticisms of the Tribunal's decision. The House of Lords, she argued, decided in Shamoon that a Tribunal may, in considering whether there has been less favourable treatment, take into account the reason given for the difference in treatment but that it remained an essential condition if a direct discrimination claim was to succeed, that the complainant should prove that he was less favourably treated than an actual or hypothetical comparison in the same or not materially different circumstances and that such less favourable treatment, if established, was on racial grounds. (We should point out that this case was decided well before the recent change in the burden of proof).
- Ms Rayner submitted that at least a majority of their Lordships had decided in Shamoon that it was open to a Tribunal, where they regarded it as appropriate, to conflate the two questions identified in Zafar and in Martins as set out above into one question. She submitted that in this case the Tribunal had not taken that course and that they had asked and answered both questions separately in each case; but if they had conflated the two questions, that was an approach which was permissible in the light of Shamoon.
- In our judgment the House of Lords in Shamoon did not purport to put aside, for the purposes of all discrimination cases, the familiar principles which are regularly applied by Employment Tribunals and the Employment Appeal Tribunal in considering discrimination claims, which are derived from King -v- Great Britain China Centre [1991] IRLR 513 and from Zafar in which King was approved by the House of Lords and which were the foundation of the first basis of the Court of Appeal's decision in Martins. The principle issue which, in our respectful view, the House of Lords addressed in Shamoon on the issue of less favourable treatment, was as to the identification of the correct comparators with whom the employee in that case was to be compared. Their Lordships decided that it was, for those purposes, appropriate to consider not only circumstances relevant to whether the employee had been treated less favourably, but also circumstances relevant to the question why the employee was treated differently. See per Lord Hope at paragraphs 44 and 50, per Lord Hutton at paragraphs 72/73, per Lord Scott of Foscote at paragraph 110 and per Lord Rodger of Earlsferry at paragraphs 134 to 136.
- However the speeches do, by a majority, express the view that it may, in individual cases, be appropriate for the two Zafar questions to be conflated into one; see e.g per Lord Hope at paragraph 49 and Lord Hutton at paragraph 69 (although that paragraph is directed towards the difficulty of identifying the correct comparators in particular cases).
- The point appears to us to be most clearly made by Lord Nicholls at paragraphs 7 and 8, in these terms:
"7 …… In deciding a discrimination claim, one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the 'reason why' issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which he is complaining.
8 No doubt there are cases where it is convenient and helpful to adopt this two-step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason-why issue. The two issues are intertwined."
At paragraph 125 Lord Rodger of Earlsferry, having set out the traditional approach, said:
"…. I respectfully agree with Lord Nicholls of Birkenhead that there are other cases - and this may be one - where the issues are so intertwined that attempting to deal with them separately may hinder rather than help a tribunal to resolve them."
- The Tribunal in this case, of course deciding as they did well before the decision in Shamoon, were not invited to approach their task other than in the familiar manner prescribed by King, Zafar and Martins. Ms Grewal does not suggest that the decision in Shamoon adds weight to her original arguments save insofar as it reinforces the importance of the essential exercise of comparison and, because the appeal against the Tribunal's decision in Shamoon was upheld on the basis of an insufficiency of reasons, save insofar as it reinforces the need for a Tribunal to provide sufficient reasons for their decision. Ms Rayner submits that Shamoon has made it possible for her to sustain the Tribunal's decision even if, contrary to her arguments, they could be shown in respect of any particular complaint not to have asked and answered the two Zafar questions separately. As will be seen, we have reached our conclusions on this appeal without finding it necessary whether Mr Rihal can rely on the approach indicated in Shamoon as opposed to the traditional approach. Shamoon may provide an alternative basis for sustaining the Tribunal's decision particularly in respect of complaints (d) and (e); it may provide such an alternative in the case of other complaints; but it has not been necessary for us to consider such alternative positions.
Complaint (a)
- The first complaint of discrimination was the failure of Ealing to appoint Mr Rihal to act-up in the post of Senior Surveyor in May 1996 on the retirement of Mr Relf. The Tribunal's findings of fact on this issue are set out in paragraphs 26 and 27 of their Decision. In summary, they found:
(1) that when Mr Relf retired, the "absolutely obvious arrangement" was that Mr Rihal, who, as we have set out earlier in this judgment, on the Tribunal's findings (paragraphs 25 and 27) was as well qualified as Mr Relf and was the only other Senior Surveyor and was equal in terms of responsibility, capability and potential to Mr Relf, should assume Mr Relf's role;
(2) but that, instead, Mr Dicks who was inferior in grade, qualification and experience to Mr Rihal, was given additional responsibilities and shared Mr Relf's duties with Mr Rihal;
(3) when Ms Herman retired, Mr Gaffikin, who was on a substantive pay grade no higher than Mr Rihal and had fewer qualifications and less experience, was promoted, on an acting-up basis, to a position higher than that of Mr Rihal;
(4) Mr Rihal was left out of an obvious position which would have given him managerial responsibility and status. He was joined in level by Mr Dicks and overtaken by Mr Gaffikin, both of whom were white;
(5) there was, therefore, a clear difference in treatment and a difference in race.
(6) Ealing had put forward no real explanation for these events; Ms Herman had given no evidence; and Mr Foxall, who took over from Ms Herman could not explain them. Mr Dicks himself gave evidence that there was an undercurrent of prejudice and that Mr Rihal was perhaps not considered to "fit in" at the management level on his own.
- Ms Grewal accepted that, in this instance, there were actual comparators (Mr Dicks, Mr Gaffikin) and that the Tribunal had properly asked and permissibly answered the question - was there a difference in treatment after carrying out the compulsory comparisons. She submitted, however, that the Tribunal had erred in their conclusion that the difference in treatment was on racial grounds in two respects. First, she submitted, the Tribunal in expressing their general conclusions at paragraph 47 that there was no satisfactory or adequate explanation for Mr Rihal's failure to achieve any enhancement of his position and to have fared so badly in comparison to his white colleagues and in saying:
"the answers to issues set out in paragraphs 12(1)(a) (b) and (f) and 12(2) are in the affirmative."
put forward no primary findings of fact and gave no proper reasons for concluding that the less favourable treatment was in this instance on the ground of race. Secondly, it was argued, the Tribunal had in paragraph 7 of their decision, when giving their reasons for rejecting Ealing's contention that Mr Rihal's complaints were for the most part presented out of time, said:
"However there is in our view one very important caveat. When drawing inferences from the fact that the employer gives an explanation which is in the words of King v The Great Britain China Centre ….. "inadequate or unsatisfactory", we must make full and adequate allowance for the fact that an employer may have destroyed or may not be able to find documentary evidence to corroborate its assertions (or indeed call oral evidence in support of its assertions) in respect of matters which took place some time earlier."
- Yet, Ms Grewal submitted, the Tribunal, apparently forgetting what they had said in paragraph 7 of their Decision, relied in drawing an inference that the differential treatment of Mr Rihal was on racial grounds upon the absence of any explanation from Ealing and on the fact that Ms Herman, who had retired in 1996, nearly five years before the Tribunal's hearing, had given no evidence.
- In our judgment, leaving on one side the Tribunal's general conclusions as to the existence of a glass ceiling - although it is, in reality, wholly artificial to do so - and looking only at the findings of the Tribunal as to the facts of this part of the history, there was ample factual material identified in the decision to support the Tribunal's conclusion as to the reason for the difference in treatment. The findings which we have summarised plainly called for an explanation; Mr Dicks and Mr Gaffikin, both white and with lesser experience and qualifications, were given additional responsibilities while Mr Rihal was denied what the Tribunal regarded as an obvious promotion. Mr Rihal was joined in level by Mr Dicks and overtaken by Mr Gaffikin; and a strange demarcation, as the Tribunal saw it, between pre-contract and post-contract work was introduced. In the absence of a convincing explanation, it was in our judgment plainly open to the Tribunal to consider that the difference in treatment was attributable to the difference in race. It is correct that, in paragraph 47, in the sentence which we have quoted above, the Tribunal did not specify any reasons for the conclusion which that sentence conveyed; but that sentence must be seen in the context of paragraph 47 as a whole which does, particularly in the first two sentences, give reasons for the Tribunal's conclusion; and the first sentence refers back to the Tribunal's findings of fact as to the whole of the history from paragraph 25 through to paragraph 42. That sentence summarises the detailed factual conclusions earlier set out; there was no need for the Tribunal to repeat them. The facts as found plainly called for an explanation; the Tribunal found that none was put forward; and it is not suggested that there was an explanation which the Tribunal had failed to appreciate or to record.
- As to the second criticism, we accept Ms Rayner's submission that, in paragraph 7 of their Decision, the Tribunal did not say that they would not or could not draw inferences from the absence of explanation; rather the Tribunal, sensibly, recognised the need for caution before doing so because of the effect of passing of time. There is nothing which suggests that the Tribunal, in drawing an inference that the difference in treatment was on racial grounds in this instance (or, indeed, any other instance), did not have that need for caution in mind; nor does the decision suggest that they drew that inference solely or even principally because of the absence of any evidence from Ms Herman. In any event, the absence any evidence from Ms Herman was not explained, so far as we are aware, on the basis that she could not remember anything; she simply was not called. In the absence of Ms Herman, the Tribunal was entitled to expect some explanation from Mr Foxall who had taken over from Ms Herman in September 1996, only shortly after the retirement of Mr Relf and who inherited the structure which Ms Herman had created; yet he was unable to give any explanation; and Mr Dicks, the only other witness to these events, gave evidence suggestive of the drawing of an inference. It was, in our judgment, open to the Tribunal to reach the conclusion that they did; and for the reasons we have set out we conclude that they did not err in either of the respects put forward by Ms Grewal.
Complaint (b)
- This complaint related to the allocation of duties to Mr Rihal up to November 1996.
- In her original Skeleton Argument Ms Grewal identified paragraphs 29 and 30 of the Tribunal's Decision as containing the findings of fact in relation to this complaint; but those paragraphs relate principally to events which took place after mid-November 1996, at which point Mr Foxall appointed Mr Smith to act as an arbitrator between Mr Rihal and Mr Dicks who had found that the demarcation within the planned maintenance between pre-contract and post-contract work was almost unworkable and who had both complained to Mr Foxall. While, in paragraphs 29 and 30, the Tribunal made findings as to how those concerns were dealt with, and as to the award to Mr Dicks of an honorarium which was not given to Mr Rihal, those matters were not the subject of this head of complaint which was directed at the period between May and November 1996 during which Mr Rihal continued to share with Mr Dicks the responsibilities previously in the hands of Mr Relf, the demarcation between pre-contract and post-contract work was continued and Mr Foxall did not take any steps to correct the difference in treatment identified under the first complaint but, as the Tribunal expressly found in paragraph 29:
"What Mr Foxall did was simply to therefore perpetuate the system which had been put in place by Ms Herman."
- Ms Grewal's principal criticism of the Tribunal's decision to uphold this complaint was that the Tribunal did not ask themselves whether Mr Foxall in the relevant period treated Mr Rihal less favourably than he treated a white comparator. She was also critical of the Tribunal's consideration of Mr Foxall's response to the concerns expressed by Mr Rihal and Mr Dicks in November 1996; but we accept Ms Rayner's argument that those matters were not part of this complaint and have concentrated upon the perpetuation of the situation created in May 1996 by Ms Herman. However those matters do form part of the history and the matters which the Tribunal were entitled to bear in mind in considering the history as a whole and the individual complains which arose and the conduct of Mr Foxall.
- There is plainly some factual overlap between the findings which we have set out in considering Ealing's attack on the Tribunal's conclusion as to the first complaint and the findings of fact which are relevant to the second complaint. The findings in paragraphs 26 and 27 demonstrate, in our judgment, that the situation created by Ms Herman in May 1996 was not rectified before she retired in September 1996 and that Mr Foxall not only allowed that situation to continue but promoted Mr Gaffikin to the position of acting Capital Programmes Manager, vacated by the retirement of Ms Herman, which post was at the same level as that previously held by Mr Rose (in which, after his retirement, Mr Relf was acting up) and into which Mr Rihal had not been promoted on an acting-up or substantive basis by Ms Herman. It was, on the findings of the Tribunal, a management position for which Mr Rihal was eligible; yet he was not put into that position and Mr Gaffikin, with fewer qualifications and less experience, was put into it.
- In our judgment the Tribunal, in paragraph 27 of their Decision, asked themselves whether there was a difference in treatment between Mr Rihal and a white comparator in respect of the period up to November 1996 as they had in respect of the original failure to promote Mr Rihal in May 1996. In comparison to Mr Dicks and Mr Gaffikin, there was the Tribunal concluded, over this period a clear difference in treatment and a difference in race. We do not accept that the Tribunal did not ask themselves in relation to the period from May to November 1996, whether there was such a difference. Having posed and then answered that question in Mr Rihal's favour, the Tribunal then asked themselves the second "reason why" question in paragraph 47 as they had done in addressing the first complaint and reached a factual conclusion by way of answer to that question which, in this instance, we did not understand to be criticised by Ms Grewal and which was, in any event, plainly open to them upon their findings of primary fact, including the findings as to the glass ceiling.
Complaint (c)
- As we have set out earlier in this judgment, the Tribunal found against Mr Rihal on this complaint, which, as they recorded, he had effectively abandoned in the course of his evidence; and it is not in issue before us.
Complaints (d) and (e)
- These two complaints can and, in good sense, should be taken together, as they were in argument. They were that, in the assimilation exercise carried out in 1998, Mr Rihal was not assimilated either to the post of Programme Delivery Manager or to the post of Investment Planning and Standard Manager. Both were new managerial posts graded above PX (at PY) but were two rungs below Mr Foxall who remained as Head of what had previously been the Central Technical Team but was thenceforth to be called the Housing Investment Team; see paragraph 33 of the Decision. In other words, the two new posts, which were identical in status, were at the same level as the posts previously held by Mr Smith and, before his retirement, by Mr Rose in one of which Mr Relf was acting-up before his retirement.
- The Tribunal found that the original intention was that the assimilation exercise would involve the drawing up of new job descriptions for the new posts, a comparison between those new job descriptions and the job descriptions in the old posts and, if the latter had a fifty per cent match with the former, the assimilation of the occupant of the old post to the new post. If more than one person was, by this method, shown to be entitled to assimilate to a new post, there would be competitive interview; but that did not in practice happen in many cases because the existing job descriptions of Mr Rihal and many others, of all races, bore only a passing resemblance to the job that they were actually doing at the material time. Accordingly, representations from individual employees about their job content were permitted; and the marking which formed part of the assimilation process involved a subjective assessment by Mr Foxall of the extent to which the employees' existing job, not circumscribed by the job descriptions, but, as the Tribunal neatly put it "elaborated upon by representations made" matched the new job (paragraphs 34 and 35 of the Decision).
- The Tribunal found that Mr Smith (who, it will be remembered, was by a quirk of grading on grade PZ1 but was in a job graded PY) assimilated to the post of either Programme Delivery Manager or Investment Planning and Standards Manager which were grade PY jobs; because no one else assimilated to either post he was given a choice and chose the former. Mr Rihal (despite the fact that he had from 1996 been undertaking at least some of the duties of Mr Rose's old post - as the Tribunal had earlier found - and despite the fact, as the Tribunal found at paragraph 36, that there was a reasonably close match between what he was doing and the job description for the Investment Planning and Standards Manager's post) was not assimilated to either post and remained in a non-managerial position. Having considered in detail Mr Foxall's explanation of this, the Tribunal concluded that, although Mr Foxall's evidence had been that he was not thinking of Mr Rihal's capability or potential, Mr Foxall had a picture in his mind of those members of his staff who would fit in the various levels in the new structure (paragraph 37 of the Decision) at the various levels and had concluded that Mr Rihal would not fit in to the posts of Programme Delivery Manager or Investment Planning and Standards Manager.
- Thus the result of the assimilation exercise was, as had been the result of the decisions made in 1996, to Mr Rihal's disadvantage. It should be noted - because Ms Grewal relied on this finding - that the Tribunal found that many people had fared badly in the assimilation process which, in Mr Foxall's view, was deeply flawed; but the fact that others did not do as well as they had hoped, without any details of individual cases, could not have been of any substantial weight.
- The Tribunal considered, at paragraph 47, whether the failure of Mr Rihal to assimilate to either of the two posts we have described was on racial grounds. They concluded that these failures were "borderline in themselves" but that (1) looking at the whole history, racial grounds played a significant part in all the decisions made and (2) Mr Foxall's assessment of Mr Rihal in the assimilation exercise was influenced by racial considerations.
- Ms Grewal's principal attack on the Tribunal's conclusions upon these two complaints can be summarised, without (we hope and intend) loss of substance or impact, as follows:
(1)
(i) the Tribunal failed to ask itself and answer the compulsory question whether Mr Rihal was treated by Mr Foxall in the assimilation process less favourably than he treated or would have treated a white employee in the same or similar circumstances.
(ii) Had the Tribunal asked that question they would or should have answered it in the negative.
(iii) Mr Smith was not an appropriate comparator because he was already in a management position and had a higher grading.
(iv) There was an actual comparator, Mr Gaffikin, who was not assimilated to either of the two relevant post.
(v) There was therefore no need to consider a hypothetical comparator - but if there was such a need the Tribunal did not so consider.
(2) The Tribunal made contradictory findings as to Mr Foxall's marking of Mr Rihal in the assimilation process; they found at paragraph 35 that his explanation of the marks given to Mr Rihal was genuine and true; but at paragraph 37 they found that Mr Foxall was thinking in terms of Mr Rihal's capability or potential
(3) Particularly because it was inherently unlikely that anyone would be assimilated to a post at a higher level than that which he occupied in the old structure, the Tribunal, if they were validly to conclude that an individual's failure to be assimilated to a higher post was attributable to a judgment that he would not fit in, needed to explain and support that conclusion on the basis of findings of primary fact but had not done so.
- We propose to address first the second of these arguments. In our judgment there is no contradiction between the Tribunal's finding in paragraph 35 that the explanation given by Mr Foxall was genuine and true and their finding in paragraph 37 that Mr Foxall departed from the task required by the assimilation exercise of comparing old and new jobs and allowed considered of whether Mr Rihal would fit in and enter into his judgment. As we see it, it is important that the Tribunal - and Mr Foxall - took the view that there was a reasonably close match between what Mr Rihal was in fact doing and the job description of the two relevant new managerial posts. The explanation which the Tribunal accepted in paragraph 35 as genuine and true was not Mr Foxall's explanation for Mr Rihal's failure to be assimilated to either of those posts, despite their closeness to what Mr Rihal was in fact doing, but his explanation of a much more limited matter, namely why, when the characteristics of the old posts were compared with those of the new posts, it was possible in respect of any particular item for the marking to be other than a maximum score or zero; either the particular function matched or it did not. It is not necessary for us to consider whether the Tribunal's expressed mystification as to how such a comparative exercise could throw up a result in the case of an individual factor other than on an all or nothing basis was soundly based in logic or practicality; it is plain that the Tribunal was so mystified, that they sought an explanation and that they accepted that explanation as genuine and true. That is not at all to say, however, that they accepted as genuine and true Mr Foxall's explanation as to why, however the exercise was conducted, in the result Mr Rihal failed to assimilate to posts the job description for which were closely matched to the job that he was then doing. They were not, in our view, by their finding as to the specific explanation referred to in paragraph 35, precluded from finding that, in coming to his overall conclusion as to whether Mr Rihal should assimilate to either of the two relevant new managerial posts, Mr Foxall had departed from a strict comparison between factors as to job content and had allowed other factors personal to Mr Rihal to affect his judgment.
- We turn next to the less favourable treatment issue. We agree with Ms Grewal that the Tribunal did not, in relation to the complaints as to the assimilation process, expressly set out the question "was Mr Rihal treated by Mr Foxall less favourably than he treated or would have treated a white employee in similar circumstances?" However the Tribunal, at paragraph 8(d) of their Decision, made it clear that the question as to less favourable treatment was an important element in their approach to Mr Rihal's complaints; and it was, in our judgment, unnecessary for the Tribunal expressly to pose and answer that question each time they considered an individual complaint. What they had to consider was not whether Mr Rihal should or should not have been placed in one of the two posts but whether in the assessment process he was subjected to less favourable treatment than that meted out to an actual comparator or actual comparators or, in the absence of any actual comparator, to a hypothetical comparator.
- We agree with Ms Grewal that Ms Smith was not an appropriate comparator because, as the Tribunal found at paragraph 34, he had a more sophisticated job description; and the Tribunal did not treat him as a comparator. Mr Gaffikin was also not treated as an actual comparator; in terms of his eligibility for the relevant jobs he would not have been such a comparator for the reasons we have set out. The Tribunal were correctly not considering suitability but the assimilation process; and at paragraph 37 they said:
"…. The Respondents were unable to produce to us comparative markings of other people. It would have been interesting to see how for example Mr Gaffikin was assessed. But for the lengthy period of time which had elapsed which made it acceptable that the Respondents could not find these comparative scores we would have drawn adverse inferences from their failure to do so. But we do not in this case."
In the absence of any evidence as to how Mr Gaffikin was assessed, the Tribunal were right not to treat him as a comparator. No other actual comparator was or has been suggested. Accordingly the Tribunal would have to have considered less favourable treatment in terms of a hypothetical comparator; but Ms Grewal submits that they did not do so.
- Ms Rayner made the point in the context of the Tribunal's approach to these complaints that the Tribunal's decision should be considered as a whole. She referred us to the decision of the Employment Appeal Tribunal, presided over by Mummery P in Stewart -v- Cleveland Guest (Engineering) Ltd [1994] IRLR 440 in which at paragraph 33 there is the following passage:
"What matters is the substance of the Tribunal's decision, looked at 'broadly and fairly' to see if the reasons given for the decision are sufficiently expressed to inform the parties as to why they won or lost the case and to enable their advisers to identify an error of law that may have occurred in reaching the conclusion. Viewed in that way, the decision of the Industrial Tribunal is not perverse."
The EAT in that case was considering an appeal of a finding by a Tribunal on a less favourable treatment issue.
- That passage was followed, where the same issue was being considered and the nature of the comparative exercise was being examined, by the EAT, presided over on this occasion by Lindsay P, in Chief Constable of West Yorkshire -v- Vento [2001] IRLR 124, at paragraphs 36 and 47.
- If the whole of the Tribunal's decision in the present case is read and considered, it can in our judgment readily be seen that the Tribunal had the importance of the necessary comparative exercise well in mind. We have earlier identified the Tribunal's undertaking that exercise in considering the first two of Mr Rihal's complaints; they did so in respect of the last complaint in relation to promotion, complaint (f), at paragraphs 40 and 41; they did so more generally in paragraph 42; and they did so (albeit inadequately Ms Grewal submits) in relation to the last complaint arising out of Mr Dallison's handling of Mr Rihal's grievance, at paragraph 46. Looking at the decision as a whole, there are strong indications that the Tribunal had at the forefront of their minds and had not forgotten the need to consider whether, in relation to any of the complaints, there had been less favourable treatment of Mr Rihal as compared with an actual or hypothetical comparator.
- In our judgment paragraphs 34-37 of the Decision demonstrate that the Tribunal did consider whether a hypothetical comparator in the same or similar circumstances as Mr Rihal would have been assessed in the assimilation process in the same manner as or in a more favourable manner than Mr Rihal. The Tribunal were at pains to point out that an assessment made purely on the characteristics of the job would have been race-neutral (paragraph 34); by setting aside the possibility of considering actual comparators (expressly referring to comparative scores in so doing) the Tribunal indicated that they were considering the comparative exercise. They proceeded to find that, in Mr Rihal's case, Mr Foxall had departed from the requirement that he consider only the characteristics of the job and had allowed personal factors to enter into his assessment. This was, the Tribunal found in the last sentence of paragraph 37, another instance of Mr Rihal's position being the subject of a decision which placed him at a disadvantage. When the decision is read as a whole, it is, we believe, clearly implicit that the Tribunal took the view that in the case of a hypothetical comparator who was white but whose circumstances were otherwise the same as or not materially different from those of Mr Rihal, such personal factors would not have entered into Mr Foxall's assessment.
- One can state the comparative question in a different way from that proposed by Ms Grewal, namely "would Mr Rihal had done better in the assimilation exercise if he had been white?" i.e. if he had been the hypothetical comparator. The Tribunal's answer to such a question appears clearly from paragraph 37 and from paragraphs 42 to 48, namely an affirmative answer. In particular we draw attention to the sentence in paragraph 48 which the Tribunal applied to the whole history:-
"….. But there was in our judgment a "force" in existence throughout that prevented Mr Foxall and others from picturing a turban wearing Sikh with a pronounced accent in the managerial roles, which a person of the Applicant's qualification and experience could easily have achieved. He is not only adequate but excellent in his technical role in the eyes of Mr Foxall. However to reach senior management level, anyone in this area of work must have someone above them who has faith in him to manage others (especially when the person has a Diploma in Management) and deals with people outside the Council. Some "force", not ill intentioned, has prevented anyone having that faith in Mr Rihal. There being no adequate explanation to explain the less favourable treatment we concluded that "force" was a racial ground."
That passage provides strong support for our conclusion that the Tribunal did, in considering this complaint, consider the comparator question.
- The Tribunal did not have the benefit of the speeches of their Lordships in Shamoon and were not asked to approach this case by considering not the traditional two-step approach but by asking themselves a single question - did Mr Rihal receive less favourable treatment than others on racial grounds? The effect of Shamoon is that the latter approach, as we have said earlier, is open to the Tribunal especially, as in the case where the "less favourable treatment issue" cannot be easily resolved without considering the "reason why" issue. If we are wrong in our view that the Tribunal did ask themselves and answer the comparator question as a separate question, the Tribunal's Decision may nevertheless be regarded as one in which they legitimately took into account what they found to be the racial basis for the treatment of Mr Rihal in reaching their general conclusion, in the paragraphs we have identified, that there had been less favourable treatment on racial grounds in the case of this complaint - and indeed the other complaints (save, of course, for complaint (c) which was abandoned). Had we found it necessary to do so we would have upheld the Tribunal's Decision in respect of this complaint on that alternative basis.
- Did the Tribunal provide sufficient reasons for their decision as to these complaints? Our answer to that question is that they did. In paragraphs 33 - 37 they set out very detailed findings of fact as to the assimilation process and as to how it was applied by Mr Foxall to Mr Rihal's case, as to the additional and extraneous considerations which Mr Foxall took into account in Mr Rihal's case, as to how it came about that he did so and, in their subsequent general paragraphs, as to why he did so. We do not believe that a party, sensibly reading the decision as a whole, could be said not to have been sufficiently informed as to why, in respect of these complaints, he had won or lost or that his advisers would not be adequately enabled to identify any error of law made by the Tribunal. In our judgment, the Tribunal's Decision was "Meek compliant" i.e. it did not fail to meet the standards set out in Meek, as discussed and elaborated upon in Anya.
Complaint (f)
- This complaint was based on the failure to appoint Mr Rihal to the post of Investment Planning and Standards Manager in February 1999. In that month there was what the Tribunal describe in paragraph 40 of their decision as a straight contest for that post between Mr Rihal and Mr Gaffikin. Mr Gaffikin was not as well qualified as Mr Rihal; but the Tribunal found that, to the extent that he had greater experience, that was because he had been allowed to act-up on the retirement of Ms Herman. It was Mr Foxall's evidence that Mr Gaffikin was considered at interview to be the strongest candidate for the job. However the Tribunal found that, of the other two interviewers, Mr McFadden had only just joined Ealing, as Housing Investment Manager, and Ms Crissey was a Personnel Officer and that the dynamic in the interview must have come from Mr Foxall. They went on to find, at paragraph 41, that the interviews were so conducted that Mr Gaffikin was given the opportunity to demonstrate his capabilities and to shine, whereas Mr Rihal did not have that opportunity and, at paragraph 42, that Mr Rihal, during the re-organisation process which commenced in early 1998 and continued through to February 1999, failed not only to be assimilated to posts but failed to be successful in interviews in the same circumstances where white people were successful.
- In paragraphs 47 and 48 the Tribunal concluded that racial grounds played a significant part in this outcome as in all the other instances of alleged discrimination and that there was the force based on racial grounds which was operating so as to bar Mr Rihal's access to a managerial role to which we have already referred.
- In her Skeleton Argument, when addressing the Tribunal's Decision on this complaint, Ms Grewal contended that it was not in dispute that Mr Gaffikin performed better at interview because he was better able to answer the questions put than Mr Rihal and that, in the absence of an finding that the questions were "rigged" to favour Mr Gaffikin, or that Mr Rihal performed at interview better or as well as Mr Gaffikin, there was no basis for the Tribunal's conclusion that Mr Rihal had been less favourably treated than Mr Gaffikin.
- In her oral submissions Ms Grewal contended that the Tribunal had not found that the conduct of the interviews had been deliberately rigged or, indeed that they were slanted at all and that the finding in paragraph 41 was consistent with Mr Gaffikin simply having been better able to answer the questions. She submitted that Mr Foxall's explanation of Mr Gaffikin's success and Mr Rihal's failure had not been rejected by the Tribunal and, indeed, on a fair reading of the relevant parts of the Decision, appeared to have been accepted. Thus a finding of less favourable treatment could not properly be made.
- In considering less favourable treatment, it is important that although the Tribunal identified the differences between Mr Gaffikin and Mr Rihal in terms of their qualifications and experience, they clearly regarded it as appropriate to compare the two; and it is not Ealing's case that they were not entitled to do so. Indeed, in Ms Grewal's supplementary Skeleton Argument, helpfully provided to us in advance of the further hearing, she expressly stated that, for the purposes of this complaint, Mr Gaffikin was an actual comparator. Mr Gaffikin succeeded; Mr Rihal did not. There was, therefore, or at least it was open to the Tribunal to find that there was, a difference in treatment between Mr Gaffikin, who was white and Mr Rihal who was not.
- Had there been an issue as to whether Mr Gaffikin was an appropriate actual comparator, the differences and similarities between them would have had to have been explored by the Tribunal in greater detail; but there was not - or if there was such an issue before the Tribunal, it is now common ground that Mr Gaffikin was an appropriate actual comparator. Accordingly, it seems clear to us that the less favourable treatment issue was rightly resolved by the Tribunal in Mr Rihal's favour. Matters such as whether the interviews were conducted on an equal footing, whether Mr Gaffikin was better able to answer the questions at interview and whether Mr Foxall's explanation of Mr Gaffikin's success and Mr Rihal's failure was accepted or rejected, do not go to the less favourable treatment issue but to the reasons why issue which we must, of course, address next.
- On that issue Ms Grewal, with skill and fluency, made in her Skeleton Argument and in oral submissions a number of points. The first was that set out above in relation to the less favourable treatment issue, namely that the Tribunal found the reason for Mr Rihal's non-selection to have been that Mr Gaffikin performed better in interview and that Mr Foxall's explanation was thus accepted. Ms Rayner submitted that the Tribunal had, in paragraph 41, rejected Mr Foxall's explanation and found that the interviews, the dynamic for which came from Mr Foxall, were conducted in such a way as to give Mr Gaffikin the opportunity to demonstrate his capabilities, which opportunity had not been given to Mr Rihal.
- We prefer Ms Rayner's analysis of paragraphs 40 to 41 of the Tribunal's Decision. The Tribunal did not, in our judgment, anywhere express their acceptance of Mr Foxall's explanation. Having set out that explanation in paragraph 40, they proceeded at paragraph 41, in contrast to any acceptance of that explanation or of any finding that Mr Gaffikin performed better in an equal contest, to find as fact that the contest was unequal. The playing field, the Tribunal found, was not level. Ms Grewal was entitled to point out that there was no finding that that inequality was deliberately created; but it is trite law that differential treatment may occur on racial grounds without any deliberation or conscious discriminatory intent on the part of the person or persons responsible for that treatment. Whether Mr Foxall was or was not conscious that the playing field was not level - and having regard to the Tribunal's comments in their Decision as a whole about Mr Foxall, they must be taken to have believed that he was not so conscious - paragraph 41 is, in our judgment, inconsistent with an acceptance of Mr Foxall's explanation and inconsistent with Ms Grewal's submission that Mr Rihal failed because Mr Gaffikin was simply better able to answer the questions at interview.
- It would have been open to the Tribunal, in the light of their rejection of Mr Foxall's explanation and their acceptance of Mr Rihal's case, that the contest between himself and Mr Gaffikin was unequal, to have drawn the inference that the less favourable treatment of Mr Rihal was on racial grounds without more; but there was, of course, more. There was the fact that, despite his experience and qualifications, Mr Rihal had not been assimilated to the posts he had sought in the course of the assimilation exercise, to which the Tribunal expressly referred at paragraph 42. There was the finding made by the Tribunal as to the existence of the glass ceiling which operated in the relevant department of Ealing to limit the promotion of non-whites. In paragraph 47 the Tribunal expressed their general conclusion that there was no adequate or satisfactory explanation for Mr Rihal's failure throughout the period which they were considering to achieve promotion and for his faring so badly in comparison to his white colleagues.
- Relying on all this material, and the two further positive findings referred to in the second sentence of paragraph 47, the Tribunal concluded that race played a significant part in the difference in treatment in respect of Mr Rihal's application for the Investment Planning and Standards Manager's post in February 1999. This was, in our judgment, a conclusion that they were entitled to reach.
- Ms Grewal submitted that the Tribunal had, in reaching that conclusion on this complaint, relied on the fact, referred to in paragraph 39 of the decision, that Mr Rihal had twice failed to be appointed to the post of Housing Investment Manager, which was the basis of complaint (c), abandoned by Mr Rihal. However, the Tribunal in paragraph 12(c) had expressly referred to the abandonment of that complaint; they referred to that again at the beginning of paragraph 40 and contrasted Mr Rihal's aspiration to the post of Housing Investment Manager with his aspiration to the post of Investment Planning and Standards Manager, which was "well within his grasp". We see nothing in the decision which indicates that the Tribunal had included within the circumstances on which they were basing their conclusion on the "reason why" issue Mr Rihal's failure to achieve appointment as Housing Investment Manager which, it was common ground between the parties, was not a matter as to which Mr Rihal, by the end of the hearing, was critical of Ealing. The reference to Mr Rihal's failure to be appointed as Housing Investment Manager in paragraph 39 of the Decision appears to us to be simply a part of the history.
- Ms Grewal further submitted that the Tribunal erroneously drew an inference from the appointment of Mr O'Readan (white) to the new position of Assistant to Mr McFadden, who in early 1999 was appointed to the Housing Investment Manager's post. That appointment is referred to in paragraph 42 of the decision. Mr Rihal, Ms Grewal pointed out, did not apply for that post and did not make a complaint of discrimination in respect of it. In our judgment, however, the decision does not suggest that the Tribunal relied upon that appointment individually as a reason for drawing an inference that Mr Rihal's failure to be appointed to the Investment Planning and Manager's post was on racial grounds. If paragraphs 24 - 43 of the Decision are, as they should be, read as a whole, it can be readily seen that the reference to Mr O'Readan's appointment is a reference to the final episode in a history which formed the backcloth for the Tribunal's finding in paragraph 43 that there was the glass ceiling which we have described and for the Tribunal's general conclusions in paragraph 47. The fact that Mr Rihal had not himself applied for the post filled by Mr O'Readan was, in that context, irrelevant. Ms Grewal also referred in oral argument to similar points in relation to the appointment of Mr McFadden; our response is the same as that in respect of Mr O'Readan.
- We have dealt earlier with the Tribunal's finding as to the glass ceiling. Ms Grewal's attack on those findings was developed most prominently in the context of this complaint; but we do not need to repeat the conclusions on that issue which are set out at paragraphs 10 - 27 of this judgment.
- Finally on this issue, Ms Grewal sought to rely on a passage in the Tribunal's remedies decision promulgated less than two months after the liability decision in respect of which this appeal is brought, in which the Tribunal said:
"From the evidence in the main hearing and today we have reached the conclusion that Mr Rihal, like many other people of all races, does not project himself well at interview"
She submitted that this was inconsistent with the Tribunal's finding in paragraph 41 and, further, that the Tribunal in saying, at paragraph 38, that Mr Rihal had no difficulty in projecting himself to the Tribunal, made the same error as had been made by the Tribunal in Martins - see in particular at pages 1019G to 1012A of Mummery LJ's judgment.
- As to the first part of this submission, it was wholly unclear before us whether the evidence to which the Tribunal were referring in the course of their remedies decision was given at the liability or at the remedies hearing; in deciding the liability hearing, the Tribunal could not, of course, know what was to be said or concluded at the subsequent remedies hearing; and we cannot take into account anything which was said at that hearing. There were no notes of evidence before us; and what was said and when was not capable of being determined on the material we have seen. In any event, the Tribunal's decision upon this complaint was based not upon Mr Rihal being unable or able to project himself well at interview but upon his being deprived of an equal contest with Mr Gaffikin.
- As to the second point, there is nothing to indicate that the Tribunal took any view as to how Mr Rihal demonstrated his capabilities to them into account in reaching their conclusion upon this complaint; the comment made at the remedies hearing is not made or expressly relied upon in their final decision and in any event for the reasons we have set out, there was ample material elsewhere to justify the Tribunal's conclusions.
Complaint (g)
- We come to the final complaint as to Mr Dallison's dealing with Mr Rihal's grievance. We have set out the history in outline in paragraph 13 of this judgment; in essence, after Mr Rihal raised his grievance on 1 April 1999, Mr Dallison did nothing for a period of over fourteen months.
- The Tribunal's conclusions on this complaint, at paragraphs 44 - 46 of the decision, were:
(1) That the huge delay in dealing with Mr Rihal's complaint was due to the fact that Mr Dallison realised from the outset that there was a racial element to that complaint and that he wanted to keep a lid on it and hoped it would go away.
(2) That if a white employee had complained, he would have delegated the complaint to Human Resources or dealt with it quickly.
(3) On a conscious or a subconscious level Mr Dallison was afraid of what he might find if he looked into the complaint with vigour and that there was a racial ground to his decision to pursue it so tardily.
- Ms Grewal's attack was concentrated on the second of those three conclusions. She submitted that the appropriate comparator could only be a white employee in the same or not materially different circumstances, i.e one who had presented a complaint of race discrimination and could not be an employee who had complained of something else. The Tribunal, she submitted, could not be clearly seen, from the words used in paragraph 46 of their decision, to have been considering the case of such a comparator as opposed to a white employee who had made a complaint but not one of racial discrimination. It is, it was further argued, not racial discrimination to treat a complaint inadequately because it has a racial element, whoever made that complaint.
- Ms Rayner submitted that the true comparator was a white employee making a complaint to Mr Dallison, but that in any event, if the true comparator was a white employee making a complaint of race discrimination, it was implicit in the Tribunal's conclusions that such a comparator would not have been treated as Mr Rihal was. There had been enormous and unexplained delay; and Ealing had produced no evidence that such a delay had occurred in any other case.
- In our judgment it would have been open to the Tribunal to regard a white complainant as a comparator although his complaint was not of race discrimination. The subject matter of the complaint of the white comparator does not, as we see it, have to be the same as that of the complaint of the non-white complainant. If, for example, an employer received two complaints at the same time about non-promotion, one from a white employee who complained that he had been held back as a result of personal antipathy and one from a black employee who complained that he had been held back as a result of race discrimination, and responded to the first complaint very quickly but to the second very slowly, it would be open to the Tribunal to find that the relevant circumstances of the two complainants were not materially different and to conclude that there had been less favourable treatment of the non-white complainant. But, if we are wrong about that, we regard Ms Grewal's analysis of the relevant sentence as excessively literal. The Tribunal, as we have had occasion to point out earlier in this judgment, had expressly directed themselves as to the appropriate law. They had been careful, in our view, to undertake the correct comparative exercise in the course of their very detailed decision on the individual complaints; and there is no reason to believe that in the sentence on which the argument has focused they meant anything other than "if a white employee in the same or not materially different circumstances had complained". We agree with Ms Rayner that that is implicit in the Tribunal's decision. It was not suggested that Mr Dallison usually delayed complaints either at all or to the extent that he did in this case; indeed Ms Rayner informed us, without objection, that Mr Dallison said in evidence that he did not usually deal with complaints as he had done in the case of Mr Rihal. There was clearly evidence on which it was open to the Tribunal to reach the conclusion that the complaint of a white complainant in the same or not materially different circumstances would not have been treated as Mr Dallison treated the complaint of Mr Rihal; and that, in our judgment, is the conclusion which the Tribunal reached.
- Accordingly, we do not accept Ms Grewal's criticism of the Tribunal's Decision in respect of this complaint either.
Conclusion
- We have looked back at the Tribunal's decision as a whole at the arguments put forward on behalf of Ealing in support of their appeal as a whole and at our judgment as a whole. We do not consider that the decisions of the Tribunal, either in general or in particular, contain any error of law. Our reasons for that view are fully set out in this judgment; and we do not need to repeat them. For the reasons which we have set out this appeal is dismissed.
