On Friday 23rd March, the Court of Appeal handed down its decision in Anya v Oxford University (http://www.courtservice.gov.uk/judgments/judg_home.htm).
NOTE: the EAT decision in this case is summarised in my bulletin of 16th May 2000
Dr Anya (who is a black Nigerian) had, with one other candidate (who was white) been shortlisted for a senior academic post. One of three interviewing panel members knew Dr Anya extremely well, and had formed a view that he was not suitable for the post. He told one, but not the other, member of the panel of his views before the interview took place. In the event, the panel unanimously offered the post to the other candidate. Dr Anya claimed racial discrimination.
It was common ground that Dr Anya had been treated less favourably (having not been offered the post). The question was: was it legitimtate to infer that this was on grounds of race?
THE EMPLOYMENT TRIBUNAL
The employment tribunal recited a number of incidents which Dr Anya complained of which pre-dated the interview. It then held that despite the interviewers having been caught making inconsistent statements, they were fundamentally truthful and honest witnesses. Accordingly it accepted that the other candidate was the better person for the job and that there was no racial inference to be drawn. Having found that there was no racial inference to be drawn, it thought it unnecessary to consider the other allegations (which drifted back over some lengthy period of time).
The Employment Appeal Tribunal noted that no evidence of overt discrimination had ever been identified. It held that it was unncessary for the tribunal to make express findings of fact on each of the ancillary, historical matters, because the tribunal was entitled to take an "overview" and it was quite apparent that, even if findings of fact were made in Dr Anya's favour, they would not amount to "compelling grounds" to find that the non-appointment to the academic post was 'proabably' on grounds of race.
THE COURT OF APPEAL
The Court of Appeal has allowed Dr Anya's appeal, overturning the employment tribunal and the EAT.
The Court stated that inferences of racial motive could only be drawn from detailed primary findings of fact. A single allegation of discrimination could not be viewed in isolation, but the history of dealings between the parties should be taken into account in order to determine whether it is appropriate to draw an inference of racial motive in respect of the principal allegation.
The employment tribunal had erred in deciding that the appointment of the other candidate was not racially motivated, and then considering it unnecessary to deal with all the other, historical, matters that had been raised. Instead, it should have made primary findings of fact on all those other matters and then, looking at the relationship between Dr Anya and the interviewers as a whole, decided whether racial motive could be inferred. By focussing on the actual interview itself (and the circumstances immediately surrounding it), the tribunal failed to make sufficient findings of fact as to all the cirumstances to enable it to be in a position to draw inferences.
Accordingly, "in spite of the daunting consequences of doing so", the case was remitted to the employment tribunal.
Whilst undoubtedly correct from the purist viewpoint, this approach will result in the legthening of many of the already complex and time-consuming race cases before tribunals. It seems now that a tribunal will be making an error of law if it does not permit an Applicant, whether represented or not, to trawl with tedious particularity through every real and perceived grudge that has arisen during his/her employment history.
Members of the Employment Lawyers' Association will have seen a letter by HHJ John Prophet, President of Employment Tribunals, to the Editor in this month's ELA Briefing. In it, he describes how tribunals are succeeding with ensuring speedier justice whilst continuing to safeguarde the interests of justice. This decision of the Court of Appeal seems to promote the latter, but without engaging in the modern approach of balancing it with the former.