Cliff Wakeman and Others v Quick Corporation and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE POTTER,LORD JUSTICE CHADWICK,LORD JUSTICE BELDAM |
| Judgment Date | 18 February 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0218-1 |
| Docket Number | EATRF 98/0076/3 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1999 |
[1999] EWCA Civ J0218-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London WC2
Lord Justice Beldam
Lord Justice Potter
And
Lord Justice Chadwick
EATRF 98/0076/3
Mr R Allen QC and Miss H Grewal (instructed by the Commission for Racial Equality, London SW1) appeared on behalf of the Appellants.
Mr D Griffith-Jones (Mr C Wynter 18.2.99 only) (instructed by Messrs Hammond Suddards, London EC2) appeared on behalf of the Respondents.
INTRODUCTION
This appeal from a decision of the Employment Appeal Tribunal ("EAT") concerns an allegation of discrimination on the grounds of race in relation to pay made by the appellants, Mr Wakeman, Mr Solanki and Mr Mitchell, who are all former employees of the London Branch of the first-named respondent, the Quick Corporation, a Japanese company. The second-named respondent, Mr Nakajima was the general manager of Quick's London office, for whose actions Quick accept responsibility.
Quick provides its customers around the world with on-line, twenty-four hour real time financial and other information from international capital and financial markets, together with political and economic news which may influence such markets. It has a head office in Tokyo and other offices in financial centres around the world. The London office was staffed by a mixture of locally recruited employees, including the appellants, and employees originally employed in Japan who had been temporarily seconded to work in London ("secondees"). All the secondees were Japanese. Mr Nakajima was one such, having been seconded in February 1994 and subsequently promoted to the position of joint Senior General Manager.
The appellants were all made redundant in September 1994. Mr Wakeman had been recruited as a planning manager in the marketing department in July 1989 and, prior to his dismissal, by various promotions, had become Deputy General Manager, Terminal Development. Mr Solanki had been recruited in September 1988 as an Operations Supervisor and, by 1994 had been promoted to the position of Manager Responsible for the Office Automation System. Mr Mitchell had been recruited in July 1991 as a Major Accounts Manager and was working as Senior Manager in the information desk and sales promotions at the time of his dismissal.
Before the Employment Tribunal ("the Tribunal") the appellants raised a number of issues and complaints. Each complained of (1) unfair dismissal (2) unlawful direct racial discrimination in relation to: (a) the pay package received in comparison to certain Japanese employees (all secondees),at the same and indeed lower, levels in the London branch; (b) promotion (c) dismissal. In addition, Mr Wakeman alleged (i) victimisation by Mr Nakajima; (ii) racial harassment by Mr Nakajima. After a thirteen-day hearing the Industrial Tribunal found in favour of the appellants on ground (1) unfair dismissal, which was admitted and (2)(c) dismissal on the grounds of race. However, the tribunal rejected 2(a) the allegation of unlawful discrimination by Quick in relation to levels of pay and 2(b) unlawful discrimination by Quick in relation to promotion as a matter of policy. It also rejected the allegation of victimisation of Mr Wakeman by Mr Nakajima. Finally, although the Industrial Tribunal held that the failure by Mr Nakajima to promote Mr Wakeman to the level of General Manager was on the grounds of his race, that complaint was time-barred.
The appellants appealed to the Employment Appeal Tribunal ("EAT") against the dismissal of their complaints in relation to pay and Mr Wakeman appealed also on his complaint in relation to promotion. However, the EAT rejected the appeals. This appeal from the EAT concerns only the appellants' pay complaints, pursuant to leave granted by the single Lord Justice on 19 th December 1997.
THE LAW AND THE LEGAL ISSUES
The claim by the appellants was one of direct discrimination. The relevant provisions of the Race Relations Act 1976 for present purposes are as follows:
s.1(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 ?"
s.4(2): "It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee —(a) in the terms of employment which he affords him ?."
s.3(4): "A comparison of the case of a person of a particular racial group with that of a person not of that group under s.1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
No case of indirect discrimination under s.1(1)(b) was advanced. Thus the appellants assumed the overall burden of proving (1) that Quick had treated them less favourably than other persons (i.e. Japanese employees) employed by Quick; (2) that the relevant circumstances of such other persons were the same or not materially different from those of the appellants: (3) that such less favourable treatment was on racial grounds (i.e. because the appellants were not Japanese) and no burden of proof lay upon Quick to justify under s.1(1)(b)(ii) rates of pay which might be discriminatory in effect, in the sense that a considerably smaller proportion of English (as opposed to Japanese) employees could comply with Quick's pay criteria for secondees: see s.1(1)(b)(i).
Before the Tribunal, (1) was never in issue. It was conceded by Quick that the appellants were paid much less than the secondees for the work they did. As to (2) the reason advanced by Quick for the difference was that the secondees were employees in respect of whom their relevant circumstances (as secondees) were materially different from the appellants. As to (3) Quick asserted that their higher levels of pay was attributable not to their Japanese race or nationality but to their status as secondees. As to (2) and (3), although the overall burden lay on the appellants, it is not in dispute that the proper approach for the Tribunal to the explanation of Quick for the appellants' less favourable treatment was to be found in the principles and guidance set out by Neill LJ in King -v- Great Britain China Centre [1992] ICR 516 at 528F-529C, approved by the House of Lords in Glasgow City Council -v- Zafar [1998] ICR 120 at 126:
"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 case 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 discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Northwest Thames Regional HealthAuthority -v- Moone [1988] ICR 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 both 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."
There is also no dispute between the parties, that in deciding the question of causation as between racial grounds and a non-racial explanation advanced by the employer; the approach should be that set out by Mummery J in O'Neill -v- Governors of St. Thomas More Roman Catholic Voluntarily Aided Upper School [1997] ICR 33 at 43F-H:
"The relevant principles are these:
(i) The tribunal's approach to the question of causation should be "simple pragmatic and commonsensical."
(ii) The question of causation has to be answered in the context of a decision to attribute liability for the acts complained of. It is not simply a matter of a factual, scientific or historical explanation of a sequence of events, let alone a matter for philosophical speculation. The basic question is: what, out of the whole complex of facts before the tribunal, is the "effective and predominant cause" or the "real or efficient cause" of the act complained of? As a matter of common sense not all the factors...
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Case Number: EDA162. Labour Court
...on grounds other than race/nationality.In support of his contention, Counsel for the Respondent citedWakeman v Quick Corporation[1999] EWCA Civ J0218-1, where the Court of Appealdismissed an appeal against a finding of the Employment AppealsTribunal that included,inter alia,the following fi......