British Gas Plc v Sharma
| Jurisdiction | UK Non-devolved |
| Judgment Date | 10 October 1990 |
| Date | 10 October 1990 |
| Court | Employment Appeal Tribunal |
Discrimination, Race - Employment - Applicant for employment - Unsuccessful applicant alleging discrimination - Onus of proof - Industrial tribunal drawing inference of unlawful discrimination - Whether burden on respondent to disprove discrimination - Tribunal's recommendation that employers appoint applicant to next suitable vacancy - Whether recommendation ultra vires -
The applicant, who was of Indian ethnic origin, had a university degree, teaching qualifications and teaching experience in India. She had been employed since 1974 by the employers as a clerk on the lowest grade. Between November 1984 and March 1985 she was given temporary duties as a supervisor during which period she applied for a clerical post on a higher grade with supervisory duties. She was not selected and she complained to the Commission for Racial Equality and invoked the employers' internal grievance procedure both of which were unsuccessful. In September 1986 she answered an advertisement by the employers for a senior clerk; the job specification for which included a G.C.E. O level. She was again unsuccessful and two other candidates were appointed neither of whom had the required educational qualification or practical experience of supervisory duties. On the applicant's complaints to an industrial tribunal that she had been unlawfully discriminated against by the employers on the ground of her race in respect of both of her applications for promotion, contrary to, inter alia, sections 1(1)(a) and 4(2)(b) of the Race Relations Act 1976,F1 the tribunal dismissed the first complaint, found that the employers had departed from their own criteria in appointing the two successful candidates on the second occasion and that the applicant had discharged the burden of proof on her to show discrimination on racial grounds. They accordingly upheld her second complaint and made a recommendation pursuant to section 56(1)(c) of the Act that the employers should promote the applicant to the next suitable vacancy for a senior clerk.
On appeal by the employers: —
Held, (1) that the legal burden of proving racial discrimination rested on an applicant throughout and did not pass to a respondent to disprove discrimination after the establishment of a prima facie case; but that where a tribunal found that there were primary facts which in the absence of an explanation pointed to discrimination and there was no adeqate explanation, it was open to them to infer racial discrimination; that the industrial tribunal had directed themselves correctly in law and since there was sufficient evidence upon which they could conclude that there was direct discrimination against the applicant, their decision would be upheld (post, pp. 33A–C, 37A–B, 38G–H, 39H, 40A).
But (2) that the recommendation of the industrial tribunal for the promotion of the applicant to the next suitable vacancy could lead to racial discrimination against other applicants for that vacancy and it was a recommendation outside the powers of section 56(1)(c) of the Race Relations Act 1976; and that, therefore, the recommendation would be quashed (post, pp. 22F).
The following cases are referred to in the judgment:
Alexander v. Home Office [
Baker v. Cornwall County Council [
Barking and Dagenham London Borough Council v. Camara [
Chattopadhyay v. Headmaster of Holloway School [
Dornan v. Belfast City Council [
Jayasena v. The Queen [
Khanna v. Ministry of Defence [
Maund v. Penwith District Council [
Meek v. City of Birmingham District Council [
Morris v. London Iron and Steel Co. Ltd. [
North West Thames Regional Health Authority v. Noone [
Owen & Briggs v. James [
Piperdy v. U.B.M. Parker Glass (unreported), 14 November 1978,
Wallace v. South Eastern Education and Library Board [
West Midlands Passenger Transport Executive v. Jaquant Singh [
Woolmington v. Director of Public Prosecutions [
The following additional cases were cited in argument:
Aziz v. Trinity Street Taxis Ltd. [
Cornelius v. University College of Swansea (unreported) 22 March 1990,
Wileman v. Minilec Engineering Ltd. [
Appeal from an industrial tribunal sitting at Leicester.
By originating applications dated 2 April 1985 and 5 March 1987, the applicant, Mrs. U. Sharma, made complaints against the employers, British Gas Plc., that she had been unfairly discriminated against on the ground of race in that she was not promoted to a more senior grade of clerk. By a decision sent to the parties on 7 September 1988 the tribunal dismissed the first complaint of discrimination but upheld her second complaint, it ordered, inter alia, that the employers pay the applicant compensation of £500 and made a recommendation that the employers promote her to the next suitable vacancy.
On 14 October 1988 the employers appealed against the finding of discrimination on the ground that the tribunal had erred in law in drawing the inference that racial discrimination was the reason for the applicant's failure to gain promotion. They appealed against the recommendation under section 56(1)(c) of the
The applicant cross-appealed against the dismissal of her first complaint and the award of compensation.
The facts are stated in the judgment.
Eldred Tabachnik Q.C. and Peter Irvin for the employers.
T. P. Nicholls of solicitors, Paisner & Co., for the applicant.
10 October. Wood J. handed down the following judgment of the appeal tribunal. By an originating application dated 2 April 1985, Mrs. Sharma, the applicant, complained that she had been unfairly discriminated against on the ground of race by her employers, British Gas Plc., in that she was not promoted from her grade as an S2 clerk to the grade of an S3 clerk. She alleged both direct and indirect discrimination. By an originating application dated 5 March 1987, she further complained that she had suffered racial discrimination in not being promoted to an S3 grade clerk in October 1986. This allegation was of direct discrimination. She also alleged victimisation. Her complaint read: “racial discrimination and victimisation.” She had at all stages been supported by the Commission for Racial Equality.
Her two complaints were heard together by an industrial tribunal sitting at Leicester under the chairmanship of Mr. J. I. E. Arnold which sat for 10 days during the summer of 1988. The employers were represented by counsel and the applicant was represented by Mr. Nicholls, at the initial stages a legal officer with the Commission for Racial Equality and now with solicitors, Paisner & Co.
The decision of the industrial tribunal reads:
“1. [The applicant's] first complaint of unlawful discrimination, contrary to section 1(1)(a) and section 4(2)(b) of the Race Relations Act 1976 is not upheld.
“2. [The applicant's] complaint of indirect discrimination contrary to section 1(1)(b) of the Race Relations Act 1976 is not upheld.
“3. [The applicant's] second complaint of unlawful discrimination contrary to section 1(1)(a) and section 4(2)(b) of the Race Relations Act 1976 is upheld, and the tribunal (a) makes a declaration that the [employers] unlawfully discriminated against [the applicant] by refusing to appoint her to the vacant S3 clerk position. (b) Orders the [employers] to pay to [the applicant] by way of compensation the difference in wages between the S2 and S3 grades of clerk from the date of refusal to the present date hereof. (c) Further orders the [employers] to pay to [the applicant] the sum of £500 compensation as damages for injured feelings. (d) Makes a recommendation that the [employers] promote [the applicant] to the next suitable S3 clerk vacancy.
“4. [The applicant's] complaint of victimisation contrary to section 2 of the Race Relations Act 1976 is not upheld.”
The employers appeal first against the finding of racial discrimination on the second complaint and if they fail on that issue against the recommendation. The applicant appeals on the issue of victimisation and on the amount of compensation.
The industrial tribunal's reasons cover some 30 pages and have been the subject of the most detailed examination. We express our gratitude for the care shown in this matter by the tribunal.
The applicant is convinced that on each of the occasions when she applied for promotion she was better qualified than the successful candidates and should have been selected. Her educational qualifications are much higher than those necessary for doing the work for which she had applied. She is a graduate of Punjab University, she is an M.A. and holds a teaching diploma. She has also been vice-principal of the Central School in Simla which is a girls' public school. Being of Indian ethnic origin she came to this country in 1971 for marriage and settlement. She started work with the East Midlands Gas Board in August 1972, at first in a temporary capacity and later, in September 1974, on...
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