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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ahmed v Governing Body of the University of Oxford & Anor [2002] EWCA Civ 1907 (20 December 2002) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2002/1907.html Cite as: [2002] EWCA Civ 1907, [2003] ICR 733, [2003] 1 ICR 733, [2003] WLR 995, [2003] 1 All ER 915, [2003] 1 WLR 995 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
His Honour Judge Playford QC
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE WALLER
and
LORD JUSTICE LAWS
____________________
Ahmed | Appellant | |
- and - | ||
Governing Body of the University of Oxford & anr | Respondent |
____________________
John Bowers QC; Mr Niran de Silva (instructed by Messrs Berrymans Lace Mawer) for the Respondent
Hearing dates : 9 & 10 December 2002
____________________
Crown Copyright ©
Lord Justice Waller:
This is the judgment of the court.
The grounds of appeal
"The judge erred in law in:
1. Failing to inform the parties of the advice provided to him by the assessors (appointed pursuant to Section 67(4) of the Race Relations Act 1976);
2. Failing to provide the parties with an opportunity to make representations on the assessors' advice;
3. Failing to give adequate reasons for his decision and or otherwise erring in failing to state the advice provided to him by the assessors in his judgment;
4. Failing to act compatibly with Article 6 of Schedule 1 of theHuman Rights Act 1998 by,
(i) Failing to provide the parties with an opportunity to make representations on the assessors' advice;
(ii) Failing to state the advice provided to him by the assessors in his judgment.
5. Failing to have regard to evidence on the defendant's policies and practices on eliminating racial discrimination, equality of opportunity and related matters (judgment paragraph 2)
6. Failing to make any findings on the Defendants' policies and practices on eliminating racial discrimination, equality of opportunity and related matters;
7. Failing to conclude that the differences in treatment he found was on racial grounds in circumstances where he rejected the Defendants' defence on the main complaint as "incredible granted fairness and equality" (paragraph 47);
8. Failing to conclude that the difference in treatment he found was on racial grounds and instead concluding that the reason for the treatment was a matter not relied upon by the Defendants in their fully pleaded Defence;
9. Failing to have regard to all the evidence relevant to the drawing of racial grounds including all the evidence of the Defendants' witness, Mr Pirani, as to treatment afforded him by the Second Defendant;
10. Reaching a decision which no reasonable Tribunal properly directing itself could have reached in concluding that the treatment afforded the Claimant (which he found to be less favourable) was not on racial grounds."
"For this reason, while I record my gratitude to the Assessors, who have sat with me and provided assistance pursuant to s.67(4), the scope for assistance has perforce been limited. Founding on The Aid (1881) P.84, Counsel (to whom I also record my gratitude) are agreed that the Assessors should not be involved in primary findings of fact nor in inferences to be drawn nor in the law to be applied. They may be concerned with race relations practice, for example training, equal opportunities policies or monitoring, the possibility of discrimination emerging in subconscious ways which may lead to inferences being drawn by me and in the use of language or conduct which may lead to subconscious racism. In this case, however, the outcome depends, as Neill L.J. anticipated in King v Great Britain-China Centre (1992) ICR 516 at p. 528, "on what inferences it is proper to draw from the primary facts found by the tribunal". I make it clear, therefore, that I have in mind the views and assistance afforded by the Assessors but the findings of primary facts, the inferences drawn from them and the conclusions that follow are mine."
The statutory framework
"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; .."
Section 2(1) provides:-
"A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has
(a) brought proceedings against the discriminator or any other person under this Act; or
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act; or
(c) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
Section 3(1) defines racial grounds as follows:-
"In this Act, unless the context otherwise requires
"racial grounds" means any of the following grounds, namely colour, race nationality or ethnic or national origins;
"racial group" means a group of persons defined by reference to colour, race nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."
"(1) For the purposes of this Act a "designated" county court is one designated for the time being for those purposes by an order made by the Lord Chancellor.
(2) An order under subsection (1) designating any county court for the purposes of this Act shall assign to that court as its district for those purposes any county court district or two or more county court districts."
"In any proceedings under this Act in a designated county court or a sheriff court the judge or sheriff shall, unless with the consent of the parties he sits without assessors, be assisted by two assessors appointed from a list of persons prepared and maintained by the Secretary of State, being persons appearing to the Secretary of State to have special knowledge and experience of problems connected with relations between persons of different racial groups."
The background to section 67(4)
"Although the procedure followed in cases under the 1968 Act is generally the same as that in any other county court cases, the composition of the court is different. In the ordinary way, cases in the county court are almost always tried by a judge sitting alone. But proceedings under the 1968 Act have to be heard by a judge assisted by two assessors, appointed from a list prepared and maintained by the Lord Chancellor of people appearing to him to have special knowledge of problems connected with race and community relations (s.19(7)).
During the Parliamentary debates, the Lord Chancellor explained the purpose of this provision. He conceded that it was a matter on which there were three perfectly rational views which anyone might take.
The first view, strongly put forward by the Street report, was that there ought to be special race relations tribunals; and many people agreed with that view. The second view taken by the lawyers mainly, was that they did not like the idea of special tribunals; that being lawyers they liked the ordinary courts. .The third view is a compromise. That was that there should be selected county courts but that, while the judge should be the only person to decide the case, he should have assessors consisting of people with special experience in race relations to advise him.
The Government had adopted the third view because it was 'most anxious that this Bill should receive the largest measure of support possible.' And although the Lord Chancellor later confessed that it was not his favourite clause in the Bill, he pointed out that many people 'feel strongly that race relations is such a sensitive subject that it ought to be dealt with by special race relations courts and not left to a judge who may have nothing at all to do with race relations or with coloured people."
"Under the 1968 Act the judge or sheriff is assisted by two assessors with special knowledge and experience of problems connected with community and race relations. These provisions enable the courts (like the industrial tribunals) to have the benefit of lay expertise and minority representation in dealing with cases under the race relations legislation. It is therefore proposed to retain these provisions in the Bill, while enabling the attendance of the assessors to be dispensed with by agreement between the parties. The assessors will be appointed from lists of persons prepared and maintained by the Home Secretary and the Secretary of State for Scotland, being persons appearing to them to have special knowledge and experience of situations covered by the Bill. The Government intends to ensure that members of racial minorities and others with relevant knowledge and experience are substantially represented in these lists. For example, those who have had experience of the work of the conciliation committees would have a valuable contribution to make."
The task of a fact finding tribunal in the above context
"From these several authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1998] I.C.R. 813, 822, 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
What did Parliament have in mind as to the role of an assessor under Section 67(4)?
"(1) This rule applies where the court appoints one or more persons (an "assessor") under section 70 of the Supreme Court Act 1981 or section 63 of the County Courts Act 1984.
(2) The assessor shall assist the court in dealing with a matter in which the assessor has skill and experience.
(3) An assessor shall take such part in the proceedings as the court may direct and in particular the court may
(a) direct the assessor to prepare a report for the court on any matter at issue in the proceedings; and
(b) direct the assessor to attend the whole or any part of the trial to advise the court on any such matter.
(4) If the assessor prepares a report for the court before the trial has begun
(a) the court will send a copy to each of the parties; and
(b) the parties may use it at trial. ."
"CPR Rule 35.15 shall have effect in relation to an assessor who is to be appointed in proceedings under section 66(1) of the Act of 1975."
1. If a fact finding tribunal or assessors involved in the findings of fact are to be directed on the law, that direction should normally be given in open court and the direction should be accurate; for the importance of open court see Mahlikilil (supra); for the importance of the direction being accurate see Bharat (supra);
2. If the advice is in the nature of expert evidence to which the parties should be entitled to respond, disclosure will normally be required; see Mahlikilil (supra).
3. Where a corporate judicial decision has to be made the detail of the discussion and the manner in which the conclusion was reached should normally remain confidential; see Roylance (supra)
This case
"I anticipate reserving Judgment in this matter. I think the proper course is to consider the matter with the Assessors who are here to help me, of course. Should there by any disagreement between myself or them it is I that make the decisions but I think it probably right, should there by any disagreement or difference in views, to invite them to submit their reasons in writing for taking a different view to me so that it can be considered in due course."
"J. But throughout it is my decision I can't say it again really I have to make up my own mind. They are there to assist me, but what I am really concerned with is that in the event that there is any difference to what extent, if at all, should that be made public
C. Yes, your Honour.
J. and if it should be made public by what means.
C. Well, your honour, we would submit that the Assessors are not at all involved in making any primary findings of fact nor inferences from the facts, nor as to the law to be applied, and if necessary I won't take you through it, your Honour, but the AID is authority for those propositions
J. I have no problem with they are not involved with primary findings of fact, nor do I have any problem whatever with the law, but if they are not concerned with inferences, particularly in a case such as this, what are they concerned with?
C. With Race Relations practice, such as issues related to training
J. Concerned with Race Relations practice, e.g. training; yes.
C. I am so sorry, training; the practice on Equal Opportunities Policies; the practice on monitoring; the circumstances in which discrimination may come out in subconscious ways.
J. Circumstances of discrimination coming out in subconscious ways.
C. Those are the types of matters which I appreciate may lead in to whether your Honour, but it is a matter for your Honour alone, will draw any inferences from the primary facts that your Honour finds.
J. Circumstances; the only one that at first blush as least, and subject to anything that Miss Monaghan has to say, would appear to be directly in point is circumstances of discrimination coming out in subconscious ways. I am not
C. Yes, well there are situations we would accept where perhaps people's use of language or their conduct in relation to a particular matter may indicate that they have subconscious views about the race of a particular person. Those
J. But that is really coming very close to an inference, isn't it?
C. Your Honour, it is for your Honour, having had the advice, and that is the word that is used in the AID, as to situations in which subconscious discrimination may be revealed by language, it is then for your Honour to decide whether, in the particular case on the particular primary findings of fact, it was in your Honour's opinion a matter upon which an inference should be drawn, and your Honour sees that I hope in the Headnote to the case where the third line says that "
"Yes, and we would submit, with respect, that bearing in mind the procedure set out by the AID and the County Court Act, it wouldn't be appropriate for your Honour to set out in the Judgment the advice that was given to your Honour, whether it is advice which is or is not contrary to your own opinion because of the primacy put upon the Judge deciding the case in accordance with your Judgment as to the law and the merits of that case."
Mr Bowers then made his final submissions.
"C. First of all I don't take any issue with what Mr Bowers indicated this morning as to the role of the assessors. Of course they have no deciding function at all, they are there to give you advice and in the end it is your opinion which is paramount and indeed the only opinion that will determine the case.
Your Honour, however, the case introduced this morning by Mr Bowers, in my submission, does indicate that it is appropriate for you to identify the advice from the assessors. I say that, your Honour, can I take you to the last page of the case? You will recall this was a case where the assessor's view was in fact recorded because in error the Judge deferred to it."
How then should the appeal be disposed of?
Grounds 5 & 6
"Thus, I am concerned with specific allegations that have to be considered in the framework of the pleadings: see Qureshi v Victoria University of Manchester, cited at length and approved by the Court of Appeal in Anya v University of Oxford (2001) IRLR 317 at 380. I am not directly concerned with general questions, such as systems or attitudes that may or may not exist at Oxford University or should or should not exist at any properly run institution. Paragraphs 32-37 of the claimant's closing submissions, under the heading "The University", refer to a number of general matters but these are not canvassed in the pleadings, where no complaint (other than that mentioned above) is directed against Oxford University in its own right. As I indicated to Ms. Monaghan, I cannot fairly enlarge the scope of my inquiry to take account of such general matters, which would require very careful thought and probably expert advice before reaching any conclusion. Nothing in this judgment, therefore, is intended to reflect favourably or unfavourably on general attitudes or systems in relation to racial matters at Oxford University. Of course, I have well in mind the case law, to which I have been referred, and I recognise that racial discrimination in institutions is something that may occur, even in the presence of substantial ethnic minorities. As a general proposition it seems to me that the less attention that is given to Codes of Practice and to the views of those experienced in the problems that may arise in the field of race relations, the greater the risk of wrongful discrimination. But that is not to say that discrimination necessarily follows from poor practice, any more than it can be eliminated by good practice; so much depends on the individual case and it is the individual case with which I am concerned."
Grounds 7, 8 9 and 10
"He was of similar ethnic background to the claimant. If he had any bias, I would have expected it to operate against Dr Zimmermann, the only supervisor in all the institutions he had attended with whom he "never really gelled". Dr Zimmermann had shocked and stunned him by failing him in the qualifying exam and he might well have perceived that Dr Zimmermann had unfairly destroyed his academic career. There has been no suggestion of any animosity between Mr Pirani and Mr Ahmed and there is nothing that leads me to think that he has anything to gain by coming out publicly in Dr Zimmermann's favour. Yet he took the trouble to come from Northern Ireland to tell me: "I do not think that Nadeem was discriminated against on the ground of race. I simply think that Nadeem has read Dr Zimmermann's personality all wrong and has got the wrong end of the stick". Mr Pirani was a colleague of Mr Ahmed for a year, an intelligent and alert man with experience of life, differing cultures and various institutions. I find it unthinkable that, if there had been anything racially untoward in Dr Zimmermann's attitude to Mr Ahmed, Mr Pirani would not have noticed and, if he had noticed, I am certain that Mr Pirani would not have supported Oxford University in the terms he did."
"I do not believe that his Arabic was so poor as to justify an "unequivocal failure" as compared with the passing "without reservation" of a complete beginner (a reference to Mrs Clark). I therefore hold that in this respect Dr Zimmermann treated the claimant less favourably than he treated Mrs Clark. As a result he clearly suffered a detriment in that he, unlike Mrs Clark, was unable to proceed to the second year without re-sitting the examination."
"80. Here, then, there was a difference in treatment involving persons of a different race, colour and ethnic origin, Mr Ahmed and Mrs Clark. I am in no position to make a true assessment of Mr Pirani's proficiency in Arabic and I cannot say, one way or the other, whether he was treated less favourably but the result of the qualifying exam in his case is capable if being seen as suspicious, especially since Dr Zimmermann in paragraph 18 of his witness statement says that it was for Mrs Clark that the test was designed by him to give a chance. I heard no good explanation from Dr Zimmermann why Mr Pirani, who like the claimant could evidently have done with a shift of the goalposts, should not have received that benefit.
81. It would be no hard task to infer from these facts that racial considerations, conscious or subconscious, were an effective cause of the less favourable treatment accorded to Mr Ahmed. Such an inference is made easier by the fact that, in my view, Dr Zimmermann was not a particularly convincing witness, possibly because he took his stand on ground that could not be defended, namely that there was no less favourable treatment, possibly to some extent because he was not completely fluent in English and found himself in unfamiliar territory. While, of course, the more favourable treatment given to Mrs Clark can be seen to be because of her limited ability in Arabic, as Mr Bowers observes in his closing submissions, I have no explanation why a limited ability in Arabic, which in the ordinary way might be expected to lead to a fail rather than a pass, should be the cause of favourable treatment.
82. In recognition of this, I have given particularly anxious consideration to whether, in the application of common sense and judgment to the facts and in the assessment of the issues and the witnesses, I should infer racial grounds. But in the end, exercising my judgment as conscientiously as I can, I find that the force of the primary facts is insufficient to justify that inference. I would go further and say that, despite superficial appearances, this is not, in my judgment, a borderline case which should be seen as decided on the basis that the claimant has not proved his case; while it may always be difficult, especially in the case of subconscious motivation, wholly to dismiss any possibility of racial motivation, my consideration of all the evidence leads me to the clear and affirmative view that Dr Zimmermann was not in any way motivated by race."