Appeal No. EAT/424/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 May 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR R JACKSON

	MISS D WHITTINGHAM

KWIK SAVE GROUP PLC	APPELLANTS

MR C A PATTERSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A GLENNIE
(of Counsel)
Messrs Bullivant Jones & Co
State House
22 Sale Street
Liverpool
12 4UR

For the Respondent	MR Z WOJCIK
Racial Equality Officer
Derby Racial Equality Council
31 Normanton Road
Derby
DE1 2GJ

	JUDGE HULL QC:   This is an appeal to us by the well known supermarket group, Kwik Save Plc, against the decision of an Industrial Tribunal sitting at Nottingham under the chairmanship of Mr Bellis with two industrial members on 11 March 1994.

	In that decision the Industrial Tribunal found that Mr Patterson, who has at all material times been employed by Kwik Save, had been the victim of discrimination on the ground of race and awarded him compensation of £2,000 in respect of injury to his feelings.  As I said Mr Patterson apparently remains in employment and did not put forward any financial claim, and at any rate any quantified financial claim.  

	Mr Patterson is a gentleman of Afro-Caribbean origins, that is his ethnic group.  He joined Kwik Save in Derby in October 1989.  Very soon afterwards he was promoted to supervisor.  There were five grades of supervisor.  He rose from the bottom to the third and then to the second.  Then he voluntarily relinquished some seniority by reverting to third grade supervisor (S3) in circumstances we do not need to go into.  

	It was his ambition to be promoted to Assistant Manager and, in due course, Manager of one of Kwik Save's stores, and he made no secret of his ambition.  There came a time when, in the Spring of 1993, Mr Hudson, the Area Manager who was responsible for promotions, handed over to Mr Day.  About three months after that, the question of appointing the Assistant Manager of a particular store arose.

	The position was first offered to a Mr Dalbir Janagal, who is of Indian ethnic origin.  He did not do the job for very long, but for various personal reasons asked to be returned to his old job and then Mr Day, the new Area Manager, offered the position to Mr Gary Church who is apparently a person who would be described as white and not of any ethnic minority.  	So Mr Patterson, being disappointed in that way, made a complaint in which he set out various matters of history which I do not need to go into and the matter came before the Industrial Tribunal.  Their decision is at page 6 of our bundle and they say in their decision (which is a short one):

		"2  This was an allegation of direct racial discrimination which the respondents deny".

	They set out that the Respondents (the Appellants here) are a large public company and they say:

		"5  In simple terms the applicant complains that he has not been promoted to the position of Manager in one of the respondents' stores whereas others, less qualified, have.

		6  It was clear from the evidence of the respondents that the promotion from Supervisor to Manager is a somewhat haphazard business and is done simply by consultation between the Area Manager and the Store Manager where particular Supervisors work.  The vacancies are not advertised and applications are not sought from staff.  In this case the particular Area Manager had been in post for 3 months only and, apart from personal observation on a fairly sporadic basis with the staff as they work, and a conversation with the particular Branch Manager, the Area Manager would have little knowledge of the applicant (a Supervisor) and the other Supervisors who were eligible for a vacancy as Manager which arose.  We gather that the person eventually appointed, a Mr Church, had badgered the Area Manager for promotion to Manager whenever the Area Manager visited the store where Mr Church worked.  We are not saying, of course, that that is the reason Mr Church was given the appointment of Manager.

		7  It seems to us that the respondents here operate a highly unsatisfactory system of selection for appointment of Manager vacancies from Supervisors within a given area.  This must give rise to doubt as to whether or not selections are made properly after proper appraisals.  It seems to us that any employer operating this kind of system must run the risk, as in this case, of being accused of racial discrimination.  If an employer like this operates such a system, it seems to us that it is open to an Industrial Tribunal, as we do, to draw an inference that the applicant has been discriminated against on the grounds of his race, even though such discrimination may not have taken place and certainly may not have been intended.

		8  We find that the applicant was discriminated against on the grounds of his race and we make a declaration to that effect.

		9  We do not, of course, know whether the applicant ought to have been appointed Manager and it seems to us, with agreement from Mr Wojcik, [Mr Wojcik appeared below as he did here today for Mr Patterson] that the only remedy, apart from the declaration which we have made, is that the applicant is entitled to an award for injury to feelings.  We are satisfied that the applicant was distressed about his failure to be appointed a Manager.  We are satisfied that the respondents failed to provide a fair and impartial method of appointment, but we are also satisfied that the Area Manager or Managers concerned did not deliberately discriminate against the applicant.  ....".  

	And they go on to award the sum as I have mentioned, giving interest of 8% from the date of the act of discrimination which they found.

	So that was the finding and in those circumstances we have to look, because we are simply a tribunal dealing with points of law, not questions of fact, to see whether there is any criticism of the decision as a matter of law.  Mr Glennie has made a number of criticisms.  
	First of all, he invites our attention to the terms of the Race Relations Act, section 1(1).  That statute provides:

		"(1)  A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

			(a)  on racial grounds he treats that other less favourably than he treats or would treat other persons; [that is described as direct discrimination in the authorities] or

			(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -

				(i)   which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; .... ".

	And it goes on to provide other conditions, that is indirect discrimination as, for example, a condition that every applicant for a job must be more than six feet, six inches tall, which would naturally discriminate in favour of certain ethnic groups rather than others.  In those circumstances, that would or might amount to indirect discrimination.   

	Mr Glennie refers us to what is said about this in Chiu v British Aerospace Plc & Others [1982] IRLR 56, where Browne-Wilkinson J., as he then was, giving the decision of the Employment Appeal Tribunal (this Tribunal) at paragraph 7, page 58, said:  

		"Before considering the Industrial Tribunal's decision, we think, in this case, it is essential to re-state both the way in which the Race Relations Act 1976 is constructed and its detailed provisions.  We say it is essential in this case because we fear that certain ignorance of those matters has both affected the way in which the case has been presented and also, as will emerge, the way in which it was dealt with by the Industrial Tribunal.  The basic structure of the Act is to define in s.1 discrimination of a kind to which the Act applies.  Then, having defined what is discrimination, it goes on in the rest of the Act to say that discrimination of that kind, as manifested in certain separate fields, amounts to unlawful conduct.  But nothing in ss.4 et seq can render anything unlawful, unless the acts alleged involved discrimination falling within s.1 of the Act.

		S.1 of the Act distinguishes between two kinds of discrimination".

	And then he reads out the passages in the section of the Act and gives them their correct names, "direct" discrimination and "indirect" discrimination and he says:

		"It is to be noted that in cases of `direct' discrimination, it has to be shown that the less favourable treatment was made on racial grounds.  When one comes to `indirect' discrimination there is no such requirement.  Such discrimination can be unconscious and be unintentional:  what is involved is the imposition of a condition which, paraphrasing the section, people not of English birth are going to find it more difficult to comply with than those who are natural born Englishmen.  If there is such a requirement or condition and it is shown to operate to the detriment to those not of English birth, then it will be unlawful unless the employer shows it to be justified, irrespective of the ethnic origin of the individuals employed".

	Now that is a statement which so far as we know has never been challenged and represents the correct direction which all Tribunals, including our own, concerned with this matter, and all Courts, should follow in their approach to these cases.  And Mr Glennie has also asked us to look at what is said, again by this Tribunal, through its President, Mr Justice Wood in Barking and Dagenham London Borough Council v Camara [1988] ICR 865.  He cites that for the dictum which is at page 879 of the decision, at letter A.  

		"....  once the evidence is completed it should not be too difficult for a tribunal to reach a decision.  It should decide whom to believe or disbelieve and what to believe.  Having found the primary facts it should make such reasonable inferences and findings as it thinks fair and just bearing in mind that the applicant in many cases may find difficulty in putting forward a positive case of discrimination.  The tribunal is carrying out a judicial role which is not always an easy one nor a palatable one.

		Thereafter bearing in mind the burden of proof upon the applicant, the tribunal should apply their findings to each element necessary to establish the type of discrimination alleged, and finally decide whether the applicant has established direct or indirect discrimination or victimisation as the case may be"  

	Here there was no allegation of some requirement which amounted to indirect discrimination.  It was alleged by Mr Patterson that he had been discriminated against on the ground of his racial origin and Mr Glennie says that the first thing that the Tribunal must do, if they are to find that there has been discrimination, is to find what the act of discrimination is.  

	It is then, of course, necessary, if the Tribunal are to find racial discrimination, to find that the act was caused by or on the grounds of race; and he says, the Industrial Tribunal does not state what act has been done by which Mr Patterson has been less favourably treated.  They do not, apparently, say that it was the failure to promote him, because they say in their decision that they have no idea whether he should or should not have been promoted.  They have not enquired into that matter.  They refer, of course, to the evidence which they have heard and they say:

		"9 .... we are satisfied that the Area Manager or Managers concerned did not deliberately discriminate against the applicant".

	And Mr Glennie says; well, in those circumstances, there is a vital link missing from their decision.  They have not found what the act of discrimination alleged is and they must find that before they can go on to find whether there has been discrimination on the ground of race.  And he says the other possibility is that the act was a failure to consider him for promotion; but to that Mr Glennie says, well they did not so find.  When one looks at the evidence, the unchallenged evidence of the two Managers concerned, they said, each of them, that they had considered the applicant for the post.  Mr Day, one of the Managers, said:  "I considered the applicant for the post".  And then he went on to make some criticisms.  We need not go into them.  He said, when he was cross-examined, "I have about 30 coloured people in my stores.  No coloured store managers.  Not deliberate policy.  I considered the applicant for promotion".   And then Mr Hudson, the other Manager, said that he had covered the area previously and "About 4 Manager vacancies arose during my time.  I used the same method as Mr Day.  Applicant was always under consideration.  Applicant didn't stand out".  

	And he went on to give further answers about this, showing that he, too, had considered Mr Patterson for promotion.  

	It was not suggested to those Area Managers that they were not being frank with the Tribunal and, indeed, the Tribunal by its findings effectively negated any such conclusion.  They said that they were satisfied that neither of these Managers deliberately discriminated against the Applicant.  They accepted their evidence on that most important point.  

	So it was not suggested that when they said they had considered Mr Patterson that evidence was incorrect, untrue, insincere or anything of that sort and Mr Glennie, very helpfully, considered what we said to him and put it like this:  if a Tribunal finds there has been an act of discrimination (in this case, they did not of course, says Mr Glennie) they must then look to see whether there is any basis for the discrimination, any sensible and logical basis.  It may often be said, and normally will be said, that the candidate who was successful was the best candidate and details will then be given of that.  But Mr Glennie conceded, when we asked him about it, and quite clearly rightly, in view of the authorities, that if you then find that there is no apparent legitimate ground for discriminating between one person and another, you must look to see how matters stand, having regard to all the evidence.  It is possible for a Tribunal, of course, to make an inference then if the successful candidate is of the majority community and the other is from an ethnic minority.  The Industrial Tribunal may, although the burden is upon the Applicant, say  "We are driven to make the inference in this case that the Applicant was discriminated against on the only basis which we can sensibly attribute, namely racial discrimination.  He was discriminated against on the ground of his race".  But, says Mr Glennie, of course that is entirely negated by the findings in this case, so far as they are made.  

	First of all, there is no express finding as to an act of discrimination and then if one tries to construct some sort of case of discrimination and says, "Well, perhaps it was the failure to promote or perhaps it was the failure to consider for promotion", he says there was no finding here that the decision was irrational.  

	The Tribunal would have had to say, "Well it appears to us that he ought to have been promoted.  The Applicant ought to have been promoted and we cannot find any reasons which we accept, why he was not".  What they say in fact in paragraph 9 is, "We do not, of course, know whether the applicant ought to have been promoted ....".  And furthermore, says 
Mr Glennie, the evidence with regard to whether he ought to have been considered was absolutely unchallenged.  He was considered and if that evidence had been said to be not given in good faith, then first of all, of course, it ought to have been so suggested to those witnesses; and secondly, of course, it would have to be made part of the decision of the Tribunal and they find the absolute contrary.  They were satisfied that there was no deliberate discrimination.  

	It cannot be, says Mr Glennie, "A case of indirect discrimination.  It is an allegation of direct discrimination and the findings, so far from supporting such a conclusion, do not.  They are the direct contrary of it".  

	We have considered these submissions and of course, also very important, our feeling when we first read this decision (without the benefit of the submissions made to us).  We all feel that it is an entirely inadequate decision.  We accept Mr Glennie's submissions and they indeed accord with our own understanding that in a case like this the Industrial Tribunal must find what discrimination is proved.  

	The burden, of course, is on the complainant and they must find what discrimination is proved.  Having found the discrimination they must go on to find whether there is any ground for it, apart from race or whether, on the other hand, they are driven to the conclusion either by direct evidence, of which there was none here, or by legitimate inference that that discrimination was on racial grounds.  Having done that, if they conclude that the discrimination was as a matter either of direct evidence or of inference on grounds of race, they must say so.  There is none of that here.  

	This Tribunal went straight from their finding that the employers had a very unsatisfactory system for promotion and consideration for promotion, to say that such an unsatisfactory system might well lead to an inference of racial discrimination; and then on, without more, to say that they made that inference.  

	It appears to us, with all respect to the Tribunal, to be an entirely illegitimate train of thought.  Of course, if there is a wholly unsatisfactory system, then it may make it much harder to resist a legitimate inference of discrimination on the grounds of race, gender or whatever it may be, but that is not what they are saying.  They are saying that such an unsatisfactory system may itself lead to a conclusion of racial discrimination.  

	We think that that is not a proper system of thought and we accept what Mr Glennie says, that no conclusion of direct racial discrimination is open to them on the findings which they made.  They found (as I say) that neither of these Managers deliberately discriminated against Mr Patterson.  And, says Mr Glennie, and we accept this submission, there is no such thing as unintentional direct discrimination.  Of course, in indirect discrimination, and my rather absurd example of saying, "Everybody must be six feet, six inches tall", it may be that somebody would say, "Oh I never thought that that might disadvantage certain ethnic groups", so it might be said to be unintentional.  But a discrimination in the ordinary sense of the word means choosing between two people and if you choose between people on the basis that you are against a particular racial minority or something of that sort, that is a deliberate and conscious matter. 

	So we are all satisfied that this is a decision which cannot be supported and, indeed, it is directly contradicted by its own findings of fact and the evidence which was given, not challenged and accepted by the Industrial Tribunal.  

	We would not be taken, for one moment, to approve of a system of promotion such as the Industrial Tribunal found existed here.  It is clear to all of us that there can be no excuse for a large organisation like these employers not having a proper system for promotion.  There should be provision for applications to be made, for vacancies to be advertised internally and/or externally and for interviews and an organised system of assessment.  All those matters should be in place and the employers must undoubtedly, in our view, draw lessons from what has happened here and accept what the Tribunal said about the unfavourable views which may be formed if a large employer does not have a systematic organisation with regard to promotion.  But that seems to us, on the facts of this case, to be beside the point.  

	The fact is that on the very findings of this Industrial Tribunal, there was here no case of racial discrimination and in those circumstances, the appeal must be allowed.

	Since the Tribunal has found the primary facts which made their secondary findings impossible, it seems to us that it would be unjust to send the matter back; both to Mr Patterson himself and to the employers.  These matters have been canvassed, we are sure, fairly, with the assistance of Mr Wojcik and Mr Glennie, who appeared in front of the Industrial Tribunal.
  
	The Industrial Tribunal has found that there was no intention to discriminate against Mr Patterson and as we say, the only conclusion which they should have and could have reached on that finding, as a matter of law, was that the application must fail.  

	In those circumstances, we simply say that we allow this appeal and the application, therefore, will have to be dismissed.