Laher v London Borough Of Hammersmith & Fulham [1994] UKEAT 215_91_2005 (20 May 1994)

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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Laher v London Borough Of Hammersmith & Fulham [1994] UKEAT 215_91_2005 (20 May 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/215_91_2005.html
Cite as: [1994] UKEAT 215_91_2005

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    BAILII case number: [1994] UKEAT 215_91_2005

    Appeal No. EAT/215/91

    EMPOLYMENT APPEAL TRIBUNAL

    58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

    At the Tribunal

    On 20 May 1994

    Before

    THE HONOURABLE MR JUSTICE MORISON

    MR E HAMMOND OBE

    MR R H PHIPPS


    MR M LAHER          APPELLANT

    LONDON BOROUGH OF HAMMERSMITH & FULHAM          RESPONDENTS


    Transcript of Proceedings

    JUDGMENT

    Revised


     


    APPEARANCES

    For the Appellant MR S MURASINGHE

    (OF COUNSEL)

    Commission for Racial

    Equality

    Elliot House

    10/12 Allington Street

    london SW1E 5EH

    For the Respondents MR N GIFFIN

    (OF COUNSEL)

    Legal Department

    Riverview House

    Beavor Lane

    London W6 9AR


     

    MR JUSTICE MORISON: The Appellant, Mr Laher, is of Asian origin. At the material time he was a senior lecturer at the Westminster College engaged in lecturing on financial management and accounting, a position which he had held for some years. In October 1989 he applied to the Respondents, the London Borough of Hammersmith & Fulham, for two teaching posts. He was not shortlisted for either and after raising the matter with the Council was told that the reason was because the selection panel did not consider that he met the necessary criteria on four points.

    Before he made his application for the post he had been provided with a copy of the criteria and invited to indicate in his supporting statement, which accompanied his application form, how his experience matched the criteria. Not being satisfied with the response to his inquiry, he believed that there was no reason for his not being shortlisted other than the fact that he had disclosed on his form his racial origin. Accordingly, he presented an originating application to the Industrial Tribunal on March 8 1990 complaining of unlawful racial discrimination. The Council filed an IT3 saying, in effect, that he failed not because of his race, but because he did not meet the specified criteria, and the Council attached to the IT3 a copy of the criteria and the correspondence which they had had with Mr Laher.

    On November 28 1991 the matter came before an Industrial Tribunal held at London South and chaired by Mrs Hollis. Mr Laher was unrepresented. The Council were represented by experienced junior counsel. Mr Laher was taken through his evidence by Mrs Hollis, who clearly found difficulty with this task. He thought she was showing signs of prejudice and contempt towards him (for example he was asked whether he spoke English and where he came from which he felt was insulting). She made a note that Mr Laher "takes no notice (of what she was saying) and does not understand".

    After he had been taken through his evidence in chief he was then cross examined. Mrs Hollis has noted that the cross examination was very short. During what is described as re-examination, Mr Laher referred to the Code of Practice and complained that there had been a failure by the Council to give reasons for his non selection and that he should have been interviewed so that he could have explained any shortcomings which the Council were concerned about. Without being invited to do so by experienced counsel the Industrial Tribunal of their motion adjourned the case at the end of Mr Laher's evidence, having noted that he had no witnesses to call and returned after an adjournment "for some time" and proceeded to indicate that they were minded to dismiss the application. Mr Laher was invited to say anything that he wanted them to know and the Industrial Tribunal then gave their decision after a further short adjournment.

    They unanimously rejected the allegation of racial discrimination on the basis that he had not shown a scintilla of evidence that the Council's decision not to shortlist him for interview could be said to have been on racial grounds. In giving their reasons the Industrial Tribunal relied upon the contents of the Council's IT3 and a bundle of documents which had been put in. They set out the differences between his application forms and those of the successful candidates and made findings about what that comparison showed.

    By Notice of Appeal dated January 1991 Mr Laher alleged procedural irregularity and bias on the part of the Chairman. It is most regrettable that the appeal has taken so long to come on. It seems to us that Mr Laher has a justifiable grievance about the way the case was conducted in the Industrial Tribunal for the following reasons. First, it should hardly need to be said that all persons whether witnesses or parties should be treated by Industrial Tribunals with respect and courtesy. There must always be a losing party and often the judicial process will require firmness in its management to avoid time wasting. Therefore it will not always be the case that a losing party will recognise that he has had a fair hearing, when in fact he has.

    In this case, we are satisfied that Mr Laher has a genuine and not unjustified sense of grievance about the way he was treated. Because someone is black it does not follow that he is unable to speak the English language. The fact that he was asked whether he did so by the Chairman was calculated to lead him to believe that she was making assumptions about him because of his ethnic origin. Mr Laher has been teaching for many years and holds a MBA degree. Any assumption that he might not be able to speak English, which is explicit in the asking of the question, was out of place and we think, out of order.

    Further, it is clear from the Chairman's note that she became impatient with him during his evidence. Patience is, in our judgement, one of the many qualities to which any person who holds a judicial appointment will aspire. It may often be difficult to curb impatience but where one is dealing with an unrepresented litigant who feels aggrieved by his perception of what has happened, it is all the more important that patience should be the watch word.

    Finally, the fact that, without being asked to do so, the Industrial Tribunal of its own motion effectively decided the case without telling the Applicant that they were retiring for that purpose was calculated to enhance his sense of unease about the way he was being treated during the hearing. In any event, we are satisfied that the Industrial Tribunal can be said to have misdirected itself. The Industrial Tribunal should have been careful to direct itself as to what was evidence before it and what was not.

    Thus the Industrial Tribunal should not have referred to the facts, in our view, set out in the IT3. None of those matters were in evidence before them: [paragraph 2 of the Decision]. The same applies to the applications of other candidates for the jobs. It was for the Council to introduce them in evidence to the Industrial Tribunal and to comment on them and invite the Industrial Tribunal to draw comparisons between and the application forms submitted by Mr Laher.

    In the absence of evidence from the Council the Industrial Tribunal should have decided the case on the basis that they were entitled to draw every inference adverse to the Council, which the evidence before them permitted. There was a difference in race between Mr Laher and the other applicants for the post. He was black and they were not. There were other surrounding circumstances which the Tribunal were also entitled to take into account. It seems to us that in the absence of any evidence to explain what the reasons were for their refusal to shortlist him for interview, the Industrial Tribunal would have been entitled to say that the case had been made out.

    Instead, what the Industrial Tribunal have done is to take the Council's case as that being set out in the IT3, and then in effect, assume what the Council would have said in evidence about the documents which were contained in a bundle and to have assumed that they would have accepted that evidence. It will be very rare cases only that it will ever be appropriate for a case based on race, or sex discrimination, to be stopped half way through the evidence.

    Discrimination of any kind is evil. It will seldom be overt. It will often be subtle. It will almost invariably be denied. The way that such cases are proved is by the Industrial Tribunal drawing inferences from the primary facts and the Industrial Tribunal should be astute not to allow the burden of proof which rests on the Applicant to become a tool which can be used to dispose of cases at half time. In this case it was for the Council to explain through a witness called for the purpose, why Mr Laher was not shortlisted.

    Mr Laher was entitled to explore in cross examination, for example, whether there were shortcomings in the other application forms and to debate those points with the witness of fact. He was entitled to question the witness about his or her racial inclinations and what the racial policies of the Council were on these matters. If an employer refuses to call such evidence we would expect that in almost every case the Industrial Tribunal would then be entitled to infer that race was the reason for the lest favourable treatment, if they were satisfied in the circumstances that there had been discrimination.

    It is not for the Industrial Tribunal to prejudge the issue by trying to cut a hearing short and dispose of it half time, even when they may think that the case is thin. But, primarily because we are of the view that Mr Laher may justifiably believe that he has not had a fair hearing, in that there was bias shown against him in the terms of the House of Lords judgment in Crown v Gough [1993] Volume 2 Weekly Law Reports 883, we think that this matter should go back for a rehearing to a freshly constituted Tribunal however unfruitful that might appear to be so long after the event.


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URL: http://www.bailii.org/uk/cases/UKEAT/1994/215_91_2005.html