Appeal No. UKEAT/0391/08/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 January 2009

Before
THE HONOURABLE MRS JUSTICE SLADE

MR B R GIBBS
MRS J M MATTHIAS

MR A UNEGBU	APPELLANT

DIMENSION DATA NETWORK SERVICES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR T CROXFORD
(appearing via the Bar Pro Bono Unit)
 	
For the Respondent	MR J ARNOLD
(of Counsel)
Instructed by: 
Messrs Cannings Connolly Solicitors
Hillgate House
26 Old Bailey
London EC4M 7HY	

SUMMARY
RACE DISCRIMINATION:  Direct 
The Employment Tribunal erred in treating the motive of the Respondent as ‘the nub of the issue’ in a claim of direct race discrimination. It further erred in considering the fact that all non-British nationals would have been treated in the same way as the appellant to be relevant to such a claim. The claim of direct discrimination was remitted to a different Employment Tribunal. The Tribunal had made a finding of indirect discrimination which was not appealed by the Respondents. Jaffrey v Department of Environment Transport & Regions [2002] IRLR 688 considered. 

THE HONOURABLE MRS JUSTICE SLADE

1.	This is an appeal by Mr Unegbu from the dismissal by an Employment Tribunal of his claim of direct race discrimination. After a hearing lasting two days, it dismissed his claim of direct race discrimination against Dimension Data Network Services Limited but upheld his claim of indirect race discrimination. The Tribunal applying Section 57(3) of the Race Relations Act 1976 made no award of compensation.

2.	Two grounds of appeal are advanced by Mr Croxford on behalf of Mr Unegbu.  First he contends that the Tribunal erred in law in holding that the nub of the issue on the direct race discrimination claim was Mrs Nicholson of Dimension Data Network Services Limited’s motive in applying the criterion of nationality in deciding not to put Mr Unegbu forward as a candidate for employment by Airbus UK.

3.	The second ground of appeal is that the Employment Tribunal erred in holding that there was no race discrimination by Dimension Data Network Services Limited because all non‑British nationals would have been treated in the same way as Mr Unegbu.

4.	These proceedings have a complex history.  There were originally three respondents.  The First Respondent was Airbus UK and the Second Respondent, TechNet IT Recruitment Limited (‘TechNet’). The Respondent to this appeal, Dimension Data Network Services Limited (‘the Respondent’), was the Third Respondent. The circumstances which gave rise to the claim by Mr Unegbu were that Airbus UK wished to engage a computer specialist to work on a project for a period of three months.  TechNet assisted in identifying candidates for the job. The Respondent was responsible for selecting candidates identified by TechNet to be put forward to Airbus UK.

5.	The Tribunal made the following relevant findings of fact. The Respondent is a specialist IT services provider, employing many employees worldwide. Its headquarters are in South Africa.  In mid-June 2007 a position for an IT analyst needed to be filled at Airbus UK. It was the responsibility of the Respondent to put forward candidates for consideration by Airbus UK. The job was to last for three months with a possible extension.

6.	On 25 June 2007 a Mr Gunning at TechNet sent an email to the Appellant informing him of the need to supply people for the IT position. The Appellant sent Mr Gunning his CV who told the Appellant that he would pass on details to the client. Mr Gunning emailed the Appellant’s CV to the Respondent. The following day, 26 June, Claire Nicholson, an employee of the Respondent, emailed Mr Gunning and informed him that candidates for the post would need a British passport. She wrote:
“Hi James thanks for this CV.  I just need to check with you, as we have had a directive from the customer that any candidate must have a British passport.  They will be working for the MoD and will get full security clearance but a British passport is required for this.  The customer has advised that they will only review candidates who fit this criteria.  Thanks, Claire.”

7.	The Employment Tribunal held that there was a breakdown in communication between Mrs Nicholson and Mr Flint of Airbus UK which resulted in her mistakenly believing that Airbus required candidates for the post to be British passport holders to ensure that the candidate could get security clearance. The Tribunal found that Mrs Nicholson was honestly mistaken in her belief. Later on 26 June, Mrs Nicholson was informed that the Appellant had a Nigerian passport. Mrs Nicholson emailed Mr Gunning that:
“… I have been advised that any candidate needs to be a British national and hold a British passport.  I am sorry about this but it is the customer making these requests, not Dimension Data.  Thanks Claire.”

8.	The Tribunal observed, in paragraph 4.10:
“We note, in passing, the additional phrase ‘British national’ to the phrase ‘British passport’.”  

In the event the Respondent did not put Mr Unegbu’s name forward to Airbus as a candidate. Another candidate was accepted.

9.	The Tribunal first considered the claim of direct race discrimination. They then proceeded to consider the claim of indirect race discrimination.  It is to be observed that the Appellant only added the claim of direct discrimination at the start of the hearing. Permission was given for amendment of the ET1 to add that claim. The Appellant’s case was that he did not get the job of IT Analyst because he was of Nigerian national origin.  

Ground 1

10.	Mr Croxford, on behalf of Mr Unegbu, contended that the Tribunal erred in law in directing itself that the nub of the issue of direct discrimination concerns the motive behind the imposition of the criterion or provision. He referred in this regard to paragraph 5.9 of the judgment of the Employment Tribunal.

11.	The Tribunal referred to the contention of the Appellant that an email that he was sent on 26 June 2007 only contained a requirement of having a British passport but once the Respondent was aware through his CV of his national origins, a further requirement that he be a British national was added as shown by the later email.

12.	Mr Croxford, on behalf of Mr Unegbu, contended that in referring to the Respondent’s motive, in order to ascertain whether it had been guilty of direct discrimination, the Tribunal erred in law. He referred to R (European Roma Rights Centre) v Prague Immigration Officer [2005] 2 AC, R v Birmingham City Council ex parte Equal Opportunities Commission [1989] IRLR 173 and James v Eastleigh Borough Council [1990] ICR 554 to the effect that motive and subjective reason or intention is irrelevant for ascertaining whether a party has directly discriminated against a claimant.  Mr Arnold, on behalf of the Respondent, very properly accepted that motive is not relevant to establishing direct race discrimination. Accordingly this ground of appeal succeeds.

Ground 2

13.	Mr Croxford contended that the reason why the application of Mr Unegbu for the IT post did not progress further was clearly “nationality”.  Mr Arnold contended that the reason for the candidature not progressing was the requirement of holding a British passport. He said that requirement in itself was not sufficient to warrant a finding of direct race discrimination.  Regrettably it is not entirely clear from the judgment what the finding of this Employment Tribunal was as to the reason why Mr Unegbu’s application for the post did not progress further.

14.	On a fair reading of the judgment it is likely, but not certain, that the Tribunal concluded that the reason why the application did not progress further was because Mr Unegbu did not hold a British passport.  However, in our view paragraph 5.10 of the Tribunal’s judgment gives rise to some confusion as to whether it found the reason for the treatment of Mr Unegbu to be his not holding a British passport or his nationality. 

15.	Referring to the second email sent by Mrs Nicholson to Mr Gunning on 26 June 2007, the Tribunal said at paragraph 5.10:
“First, Claire Nicholson [the decision maker in this case] understood that British nationality and British passport holders were, in effect, the same thing.  She did not see that any additional requirement was being created by her  email ...”

16.	In that email there was a reference not only to a requirement that the candidate hold a British passport, but to a requirement that a candidate be a British national.  The Tribunal, somewhat puzzlingly continued:
“Secondly, the Claimant has not satisfied us that there was any difference between being a British national and holding a British passport in any event and, accordingly, he has not therefore proved that that alleged hurdle was in fact a detriment.  Therefore, even if there was a difference, which we doubt, we accept that the Respondent, through Claire Nicholson, believed them to be the same and therefore did not create any additional hurdle for the Claimant because she had found out that he was Nigerian.  The first email on p.276 which contained the requirement of being a British passport holder was written before she knew about the Claimant’s national origins and that therefore could not have been directly discriminatory either.

17.	The Tribunal in this passage appear to equate holding a British passport with being of British nationality.  If that is the proper interpretation of the reasoning and approach of the Employment Tribunal, in our judgment it failed to consider the effect of James v Eastleigh Borough Council.  In that case the application of a criterion which is coterminous with being of a particular sex or if applied in this case, being of particular national origin, was held by the majority in the House of Lords to be direct discrimination. The Tribunal appeared not to have applied this approach. Accordingly, in our judgment, the Tribunal erred in two respects. First in considering motive to be relevant to a finding of direct race discrimination and secondly in failing to appreciate the significance of the Respondent’s equating the requirement for a candidate to be of British nationality with that of being a British passport holder. 

18.	Mr Croxford, on behalf of the Appellant, contended that the Tribunal erred in relying on its observation at paragraph 5.11 that: 

“… it appears that the criterion was applied to all candidates.  Nobody was singled out for the imposition of this criteria.  Everyone appears to have had the same criteria applied.”

He submitted that the Tribunal, in deciding that because the requirement of holding a British passport was applied to all candidates and that nobody was particularly singled out, the Tribunal erred in their approach as to whether direct discrimination was established. 

19.	In James v Eastleigh a criterion was applied to all individuals who wished to use a municipal swimming pool. That did not mean that there could be no direct discrimination in applying a requirement or condition that they be of state retirement age in order to obtain free admission to the pool. 

20.	Mr Arnold sought to distinguish this case from James v Eastleigh.  He contended that the requirement of holding a British passport was not a statutory requirement.  He submitted that there may be some doubt as to the correspondence between those to whom the requirement would apply disadvantageously and being of a particular non-British origin.  He pointed out that not all British nationals will have a British passport.  The Employment Tribunal do not appear to have considered that argument at all. However in paragraph 5.11 the Tribunal observed:

	“The Respondent says that, if the Claimant had had dual nationality, there would not have been a problem. There is nothing to suggest that that argument cannot be drawn from the facts.”

It is not entirely clear from that passage that the Tribunal held if the Claimant had held a British passport as well as a Nigerian passport he would have been in the same position as the successful candidate, although this may be fair reading of the Tribunal’s observation in this regard.  

21.	In our judgment, this Tribunal’s reasoning in considering whether there had been discrimination on the grounds of race in this case is so flawed that the appeal succeeds.  

22.	Mr Croxford, on behalf of Mr Unegbu, urges us to substitute a finding that Mr Unegbu was discriminated directly on grounds of race and remit the matter simply for consideration of compensation. We will not follow that course.  The judgment of the Tribunal does not contain sufficient and satisfactory findings of fact to warrant such a course of action.  It should only be adopted where no other conclusion could be reached.  It is contended on behalf of Mr Unegbu, that on a remitted hearing the Tribunal will be considering a case in which there has already been a finding of indirect discrimination arising from precisely the same facts.  It is said that on the fair reading of the judgment, the provision, criteria or practice found to be indirectly discriminatory must have been a requirement that the candidate for the particular post in issue be a British passport holder. The Tribunal came to a decision adverse to the Respondent in this regard and made a finding in favour of Mr Unegbu.  

23.	There was no appeal against the finding of indirect discrimination should the appeal on direct discrimination succeed.  Whilst in Jaffrey v DETR [2002] IRLR 688 the Employment Appeal Tribunal held that it may be possible for there to be findings of both direct and indirect discrimination arising from the same set of facts, it dismissed the appeal. In that case the Employment Tribunal had held that a claim of discrimination is established as unlawful race discrimination either as direct or as indirect and not both at the same time on the same facts.

24.	In considering the question of whether there was direct discrimination in this case a Tribunal on a remitted hearing will not approach the matter in the way that this Tribunal did.  Unlike the original Tribunal they will not regard motive as relevant to liability.  They will no doubt consider James v Eastleigh.  They will consider the reason why Mr Unegbu’s application for employment did not progress further and decide whether it was because he did not currently hold a British passport, whether it was because he was not eligible to hold a British passport, or  whether it was because he was not a British national.  If it were so to find, the Tribunal will no doubt consider whether the reason why Mr Unegbu’s application did not progress further was coterminous with nationality or national origin so as to amount to direct race discrimination, or whether it is properly to be regarded as the application of a provision criterion or practice and analysed as an indirect discrimination case.

25.	We have considered whether this matter should be remitted to the same Employment Tribunal.  This Tribunal erred in law in two material respects. The facts up to the point of Mr Unegbu’s job application not progressing further should be capable of agreement between the parties so that the remitted hearing should not occupy a Tribunal for more than a day. We also have regard to the fact that there may be an appearance that the same Tribunal may wish to seek to achieve the same result, given a second opportunity, as was observed by Burton J in Sinclair Roche & Temperley v Heard [2004] IRLR 763.  Having regard to all those factors we remit the direct discrimination claim of Mr Unegbu for consideration by a differently constituted Tribunal as directed by the Regional Chairman. We direct that the parties agree a statement of facts that are not in dispute between them. 

26.	This Tribunal appreciates that Mr Croxford has appeared pro bono through the Bar Pro Bono Unit. We have been much assisted by both his and Mr Arnold’s submissions.