Lovejit Murgai v Home Office Immigration & Nationality Directorate
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY |
| Judgment Date | 05 March 2001 |
| Neutral Citation | [2001] EWCA Civ 376 |
| Docket Number | A1/2000/2839 |
| Date | 05 March 2001 |
| Court | Court of Appeal (Civil Division) |
[2001] EWCA Civ 376
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Mummery
A1/2000/2839
MS V EASTY (Instructed by The London Race Discrimination Unit, London SE11 4DS) appeared on behalf of the Applicant
THE RESPONDENT did not appear and was not represented
Mr Murgai is of Indian origin. Since the end of November 1988 he has worked in the Home Office Immigration and Nationality Department. He is an administrative officer. His line manager at the relevant time was an executive officer, Mr Sims, who had replaced an earlier line manager, Mr Laxton.
In May 1994 Mr Sims produced an annual staff report on Mr Murgai for the year 1993 to 1994. The report stated that he was likely to be fitted for promotion in the next two years. The report was signed by Miss Proctor, who was Mr Sims's line manager, and also by Mr Atherton, who was Mr Murgai's third-tier line manager.
Mr Murgai's case is that the report was racially discriminatory. He made other allegations of discrimination against Mr Sims, including the conduct of an interview on 5th January 1995. These complaints were presented to the Employment Tribunal in the IT1 of 15th January 1996.
In the IT1 Mr Murgai stated that his complaint was that he had been discriminated against on grounds of race and colour and had been victimised since he had complained. In the details of the complaint he said he had received good appraisals from his superiors with a "fitted for promotion" and Box 2 marking for overall performance during the two years preceding the posting in of Michael Sims:
"Wholly inexplicably, following Mr Sims's arrival, his first report on me, completed for the period 1st October, 1993, to 30th September, 1994, gave me a lower box marking; at the time Mr Sims made this report, he was not in fact qualified to do so."
He then set out more details of his complaint, specifying the interview of 5th January 1995 (which I have mentioned) among other things.
The case was contested. It has had what I may neutrally describe as an unusual procedural history.
The matter came before the Employment Tribunal for a hearing lasting four days in September and October 1997. At the hearing Mr Murgai was represented by a consultant and former barrister, Mr Narayan. The Home Office was also represented. Their counsel was Mr Lemon.
The Tribunal unanimously decided that Mr Murgai's complaints of race discrimination failed. They identified four respects in which complaints of discrimination had been made. It is the first on which I must focus. He complained that the annual staff report of 1993/1994 was racially discriminatory.
On this the relevant conclusions of the Tribunal are given in their extended reasons promulgated on 21st October 1997, in paragraphs 64 and 65. In view of what has happened subsequently, I should read those two paragraphs in full:
"64. 1993-4 ASR. The Tribunal did not accept that this complaint had been made out on the facts. The Tribunal considered Mr Sims to be a truthful witness and accepted that he had set out his views in the report taking into account the information he had received from Mr Laxton. The Tribunal concluded that a white person would not have been treated differently. The Tribunal accepted that the failings identified by Mrs Horton were the result of Mr Sims' inexperience. It appears that ideally Mr Sims' line managers should have realised the extent of the short-comings of his report but the Tribunal noted that they considered the report to be a genuine reflection of his views and that the markings were correct. Indeed, Mrs Horton, while critical of the comments, did not suggest that the markings themselves were incorrect. Furthermore, the Tribunal noted that Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, marking him `fitted for promotion' which view was endorsed by a promotion Board which did indeed promote Mr Gor. Accordingly, the Tribunal found that there was no discriminatory treatment in respect of this report on the ground of race.
65. Even if the Tribunal had believed that there was both discriminatory treatment and a racial difference, the Tribunal believed the explanations given by Mr Sims, Miss Proctor and Mr Atherton set out in the evidence to the effect that Mr Murgai was perceived to have had, at best, what could be characterised as an average year and that this was the genuine belief of Mr Sims; the Tribunal would not have found that explanation to be either inadequate or unsatisfactory in the circumstances of Mr Murgai's performance to some extent before Mr Sims managed him but more particularly after Mr Sims became Mr Murgai's manager."
Mr Murgai appealed against that decision. A right of appeal only lies to the Employment Appeal Tribunal on a point of law. The Tribunal frequently holds preliminary hearings to decide whether there is an arguable point of law which justifies a full hearing of the appeal.
In this case there was a preliminary hearing on 28th January 1999. It took place before a tribunal chaired by His Honour Judge Clark. That hearing was adjourned. On that hearing Mr Rawlings of counsel appeared on behalf of Mr Murgai. The Tribunal made an order for the adjournment of the preliminary hearing to be fixed before His Honour Judge Clark, but not necessarily the same lay members. It was ordered that Mr Murgai's solicitors copy amended grounds of appeal to the respondents (that is the Home Office Immigration and Nationality Directorate), and ordered that within 14 days the Home Office indicate precisely what grounds of appeal raise an arguable point of law.
The adjourned hearing of the preliminary hearing took place on 7th May 1998. On that hearing the appeal was allowed to proceed, but on limited grounds; in particular regarding the findings of the Employment Tribunal in respect of the report which was said to have been made by Mr Sims on Mr Gor before his promotion. In the order the Chairman of the Employment Tribunal was requested to comment by reference to his notes of evidence that might be relevant to the grounds of appeal. There was also an application by Mr Murgai for permission to adduce further evidence. That was stood over to be renewed at the full hearing of the appeal.
Mr Murgai made an application for permission to appeal to the Court of Appeal against that order, but that was refused or not pursued.
The hearing of the appeal came on before the then President of the Employment Appeal Tribunal, Morison J, and two lay members on 5th November 1998. At that hearing it was agreed by the counsel for both parties, Mr Rawlings on behalf of Mr Murgai and Mr Lemon on behalf of the Home Office, that there was an error of fact in the extended reasons (paragraph 64). That error of fact related to Mr Gor. It was now agreed that Mr Gor had been promoted to be an administrative officer any report was made on him by Mr Sims, and indeed without his promotion ever having gone before a promotion board. So the extended reasons, to that extent, were factually incorrect.
The order made by the Employment Appeal Tribunal is, I have to say, an unusual one. But it is one that was made with the consent of both parties, who were legally represented by counsel. In view of the criticisms which have been made about what the Employment Appeal Tribunal did and what the Employment Tribunal subsequently did following this order, I must read out the order in its entirety.
"THE TRIBUNAL ORDERS
1. That the matter is remitted back to the same Employment Tribunal with a direction that they review their decision promulgated on the 21st day of October 1997 on the following basis:—
There being agreed facts as follows:—
That Mr Gor had been listed for promotion without interview in October 1994 and had transferred on promotion in June 1995 before Mr Sims had written a report on him.
The parties consent to an order that the case be remitted to the same Employment Tribunal for consideration of the impact of the agreed facts on the conclusions noted in the last two sentences of paragraph 64 of the Extended Reasons and whether it would affect the decision.
And for this purpose the Employment Tribunal to be at liberty to receive further evidence from the parties and in particular from Mr Sims on the promotion of Mr Gor, the reports leading to his promotion and the report by Mr Sims in respect of Mr Gor and the Appellant to be at liberty to cross-examine thereon and the Respondents to re-examine thereafter.
The parties also to be at liberty to make submissions to the Employment Tribunal on the impact of the same or the credibility of Mr Sims and on the decision.
2. That the appeal is stayed with liberty to apply within 42 days of any new decision or order of the Employment Tribunal. If no such application is made within the specified time the appeal will be dismissed without further hearing."
The next event was that the same Employment Tribunal at London South, chaired by Mr Carstairs, reconvened on 20th April 1999. On that occasion Mr Murgai was represented by different counsel, Mr Whitmore. Mr Lemon still represented the Home Office. The decision of the Employment Tribunal, in what may be described, perhaps inaccurately, as the "review decision", was promulgated on 1st June 1999. The decision was that the application for a review of the Tribunal's decision sent to the parties on 21st October 1997 was dismissed. It appears that at the hearing Mr Sims was...
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