London Borough of Southwark v Afolabi

The employer, the London Borough of Southwark (“Southwark”), appeals from the order made on 8 March 2002 by the Employment Appeal Tribunal (“the EAT”) dismissing Southwark’s appeal against three points decided against Southwark by the Employment Tribunal (“the ET”) sitting in London South in a decision sent to the parties on 4 July 2000. Those points were (1) that it was just and equitable to extend time for the employee, Temibola Afolabi, to bring a complaint of racial discrimination against Southwark more than 9 years after the act complained of, viz. Southwark’s failure to appoint him to the post of Auditor Grade SO2; (2) that Southwark had thereby been guilty of direct racial discrimination; and (3) that Southwark had also been guilty of racial discrimination in treating him less favourably than it treated two white employees in terms of a Hay grading exercise in or about April 1999.

Mr. Afolabi is of black African origin. He had been employed in various accounting positions since August 1973. Prior to being employed by Southwark he had been Internal Auditor (Scale 3) for the London Borough of Barnet from October 1987 to May 1989 and then Internal Auditor (Scale 5) for the London Borough of Brent. Although studying for the Chartered Institute of Public Finance and Administration (“CIPFA”) qualification, he had not passed any of its exams. In June 1989 Southwark decided to improve its audit function. Part of the exercise involved recruiting more qualified staff. In early 1990 Southwark advertised a number of audit and accounting positions. The audit posts advertised were Chief Internal Audit Manager, Managing Auditors, Principal Auditors and Auditors. On 23 April 1990 Mr. Afolabi applied for the audit posts generally. He was told that he had been shortlisted and he was invited to an interview for the post of Auditor Grade SO2 but was told that if unsuccessful at that level he might be offered a post of Auditor Grade 6. Six people were shortlisted and interviewed by a panel consisting of Mr. Bassett, then Chief Financial Auditor, and Mr. Dusu, then Acting Chief Financial Auditor. Of the other applicants, Mr. Welsh had passed CIPFA Part I, but had minimal audit experience.

I must return later in more detail to what occurred at and after the interview of Mr. Afolabi. Although Mr. Afolabi performed well, no appointment was made at Grade SO2. Both Mr. Afolabi and Mr. Welsh were appointed Auditors at Grade 6. The decision, we are told by Southwark, was taken on 8 June 1990. Mr. Afolabi’s employment by Southwark commenced on 20 August 1990. He was employed as a Departmental Auditor in the Social Services Department.

In 1994 there were three vacant posts of Auditor Grade SO2. Mr. Afolabi was not shortlisted because, he was told, he did not meet the criteria for the post. In 1994 assimilation tests were carried out on every member of staff up to the level of Head of Audit, but Mr. Afolabi was assimilated into his existing grade. Again in April 1998 his job was reassessed but remained at Auditor Grade 6. On 6 May 1998 he went to the Director of Social Services, asking for his intervention, but on 1 July 1998 he received a memorandum from the acting Departmental Finance Manager saying that each post was assessed on an individual basis and comparisons could not be made between posts in different Departments.

On 10 August 1998 Mr. Afolabi raised a grievance as a result of that memorandum, claiming racial discrimination on the ground that he had for some time been carrying out duties for which he had not been properly remunerated. He indicated that he was contemplating proceedings in the ET within the period of 90 days from 1 July 1998. He did not commence proceedings in the ET that year.

In the meantime in July 1998 Southwark adopted what is known as the Hay grading system, being a system which was devised by Hay Management Consultants Ltd. (“Hay”) and is regarded as applying a more precise and objective assessment of a job than what is known as the APT and C system under which jobs were graded (amongst other grades) Grade 6 and Grade SO2. Mr. Afolabi’s job was graded 8. In November 1998 he appealed against that grading. He sought to have his job graded 10 because three Auditors in other Departments of Southwark had jobs graded 10: Mr. Jordan and Ms. Draper in the Education and Leisure Department and Mr. Coombes in the Housing Department. Those comparators are white.

On 24 February 1999 Mr. Afolabi presented an Originating Application (“the First Complaint”) to the ET. In it he named his trade union, Unison, as his representative. He complained of racial discrimination (subsequently, by Further and Better Particulars, identified by him as direct discrimination within s. 1(1)(a) of the Race Relations Act 1976 (“the Act”)) on the ground that he had not been properly remunerated and had been treated less favourably than other employees of white European origin who carried out broadly similar work as Departmental Auditors.

Southwark’s Principal Personnel Officer, Ms. Jill Seymour, was asked to look at the grading of Mr. Afolabi’s job. On 10 March 1999 she wrote to Hay, enclosing the job descriptions of Mr. Afolabi and his three comparators and gave Southwark’s evaluation of the jobs. She did not give the names or other personal details of any of the jobs, though she explained that the holder of the Social Services Department job was claiming racial discrimination on the basis of grades attached to the other jobs. She invited Hay’s comments.

On 22 March 1999 Hay responded, having received the job descriptions. Hay gave Mr. Afolabi’s job a score of 282 (Grade 9) as against Southwark’s score of 233 (Grade 8). Hay said of the Education and Leisure Department’s job that it was difficult to see much of a difference between that job and the Social Services job and would give the same score, but that if the role was felt to have a broader scope than the one in Social Services with slightly more freedom to act, Hay would reflect it as a score of 342 (Grade 10). Hay agreed with Southwark’s assessment of the Housing job as scoring 353 (Grade 10).

In April 1999 Southwark’s Personnel Department accepted the Hay recommendation that Mr. Afolabi’s job should be graded 9, but he was not informed of that nor, contrary to Southwark’s personnel policy, was the finding implemented straight away.

In a very short space of time the audit function in the Education and Leisure Department was reorganised and Mr. Jordan’s and Ms. Draper’s jobs were regraded 9. A new Grade 11 post within the Education and Leisure Department became available and Mr. Jordan and Ms. Draper were “ring-fenced” as persons who had been directly matched to existing posts so that they, and they alone, could apply for it. Only Ms. Draper did so and in May 1999 she obtained the post. Mr. Jordan did not apply, but his position was restructured to Grade 10 in October 1999.

In the meantime in September 1999 Mr. Afolabi’s grievance was heard by a panel comprising Mr. Rich, the Assistant Director of Social Services, and Mr. Davies, the Assistant Branch Secretary of Unison. In a letter dated 21 December 1999 Mr. Rich and Mr. Davies informed Mr. Afolabi of their agreed response. They rejected his grievance that he had been discriminated against on grounds of race at the time of his appointment. They did so after interviewing Mr. Bassett and Mr. Dusu and obtaining information from Mr. Keith Brown, the Head of Financial Services. They were persuaded by the information provided by Mr. Bassett which they described as largely consistent with the response to correspondence provided by Mr. Brown. They referred to the qualification specified in the Personnel Specification drawn up for each grade and used during the recruitment and selection process, that for Grade SO2 being “Part Qualified (CIPFA Part 1 or ACCA Level 2) with at least a year’s experience post qualification in an audit/accountancy setting”, and said that Mr. Afolabi, while qualified for appointment at Scale 6, did not meet the minimum criteria for appointment at Grade SO2. They referred to Mr. Dusu’s evidence that Mr. Bassett and he had originally recommended Mr. Afolabi’s appointment at Grade SO2, and that this recommendation was reversed by Mr. Brown. The panel commented that that was clearly contradictory to Mr. Bassett’s and Mr. Brown’s evidence, and said that it was unconvinced as to the reliability of Mr. Dusu’s recollections. The panel stated that there was no evidence to support a view that the Head of Finance reversed a recommendation and strong evidence that the only logical recommendation would have been appointment at Grade 6 The panel then turned to Mr. Afolabi’s grievance that he had been graded below the level commensurate with his duties and unequally in comparison with Auditors in other Departments and that the failure of his manager to give proper support to his regrading attempts was because of Mr. Afolabi’s race. The panel found no evidence of discrimination and said that it had no reason to believe that his Hay grade of 9 was not the appropriate grade. The panel expressed an apology by the Social Services Department for the less than satisfactory way in which management support and guidance had been provided for Mr. Afolabi over the previous two years and the consequent difficulties in reaching an early satisfactory conclusion with regard to his grading and remuneration. It confirmed his grade as being 9 from April 1998 with appropriate annual progression from that date. It also awarded a backdated honorarium equivalent to an appropriate point on Hay grade 10 for the period from January 1998 when the Departmental Audit Manager, Mr. Graham Brown, left Southwark.

In September 1999 the internal audit function in the Social Services Department was contracted out to Deloitte & Touche to whom Mr. Afolabi’s contract of employment was transferred on 1 March 2000 by operation of the Transfer of Undertakings (Protection of Employment) Regulations 1981.

I must now explain how Mr. Afolabi came to present a second Originating Application (“the Second Complaint”). On 26 April 1999 Mr. Afolabi inspected what the ET calls his “personal file” for the first time in connection, as I infer, with the First Complaint. The file contained a handwritten note containing comments and scores written by Mr. Dusu in relation to the interview of Mr. Afolabi by Mr. Bassett and Mr. Dusu. That note showed that Mr. Dusu marked Mr. Afolabi as getting 15 out of 16. Mr. Afolabi then presented the Second Complaint on 23 July 1999. In it he expressed his complaint as being that he had suffered continuous racial discrimination from the time of his offer of appointment in 1990, and that he was still experiencing the unfavourable treatment. He further complained that his post as Auditor was being contracted out to an external provider and that this was victimisation.

At an interlocutory hearing before an ET chairman on 15 October 1999 Mr. Afolabi was represented by a representative from Unison. A letter bearing date October 1999 and sent to Mr. Afolabi as well as Southwark records what was agreed and directed at that hearing:

“The issues to be determined by the Tribunal are:

(i)

whether the Respondent unlawfully discriminated against the Applicant when it failed to appoint him to the post of Auditor, Grade SO2, in or about June 1990.

Comparator Mr. Welsh.

(ii)

Whether the Applicant’s complaint was presented outside of the applicable time limits and, if it was, whether it is just and equitable for a tribunal to consider the complaint.

(iii)

Whether the Respondent treated the Applicant less favourably when it took the decision to transfer his post to an outside contractor in or about May 1999; if it did, whether the Respondent unlawfully discriminated against the Applicant by way of victimisation.

The protected act is the complaint of discrimination presented to the Tribunal in February 1999.

(iv)

Whether the Respondent unlawfully discriminated against the Applicant when it failed to re-grade his post of Departmental Auditor to HAY Grade 10, on or about April 1999.

Comparators Mr W Jordan, Mr K Draper, and Mr D Coombes.”

By an agreed direction Mr. Afolabi was to supply Further and Better Particulars of the First Complaint by 12 November 1999. On that day Mr. Afolabi produced those particulars. In them he referred to his initial Hay grading of 8 and to three comparable Auditors’ posts in the Education and Leisure Department and in the Housing Department being graded 10. He also referred to the request by letter dated 22 February 1999 from the Social Services Department to the Head of Personnel Management Services, Mr. Bernard Nawrat, for a comparison of Mr. Afolabi’s post with the comparators’ posts in other Departments. Mr. Afolabi identified what he called a serious flaw in the way the comparison was carried out: it was concluded that there was a higher “know how” element in the comparators’ posts and he said that the comparison therefore did not justify an increase in grade for his post. He described as contradictory the grading of 9 for his post. He said:

“The Complainant concludes that the evaluation exercise did not comply with equal opportunities practice, and it is in effect an act of discrimination.”

He named the three comparators as Mr. Jordan, Ms. Draper and Mr. Coombes.

The hearing of the First and Second Complaints took place over 5 days between February and June 2002. Mr. Afolabi appeared in person. The ET held that (1) Southwark had unlawfully discriminated against Mr. Afolabi contrary to s. 4(2)(b) of the Act when it failed to appoint him to the post of Auditor Grade SO2, (2) Southwark did not treat him less favourably when it decided to transfer his post to an outside contractor, and there was no victimisation, and (3) Southwark unlawfully discriminated against him contrary to s. 4 (2) by treating him less favourably than it treated white employees, Mr. Jordan and Ms. Draper in terms of the Hay grading exercise. S. 4(2) provides:

“(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; or

(b)

in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

(c)

by dismissing him, or subjecting him to any other detriment”.

In reaching the first of those decisions the ET decided that although the second complaint was presented long after the expiry of the period of three months beginning when the act complained of was done (s. 68 (1)(a) of the Act) it was just and equitable that the ET should consider the complaint relating to Mr. Afolabi’s appointment. By s. 68 (6):

“A …. tribunal may nevertheless consider any such complaint …. which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.”

Southwark appealed against the first and third decisions. At the preliminary hearing of the appeal on 8 February 2001 the EAT (His Honour Judge Peter Clark presiding) said that Southwark had three lines of attack: (1) against the ET’s decision to extend time for the complaint against what occurred in 1990, (2) against the finding that Mr. Afolabi should have been appointed to Grade SO2 in 1990, and (3) against the finding that the Hay grading exercise in 1999 involved unlawful discrimination against Mr. Afolabi. The EAT noted that within the attack on the third decision was a discrete point on natural justice, Southwark contending that the ET’s finding involved upholding a complaint which was not made by Mr. Afolabi and in respect of which Southwark was given no adequate opportunity to call evidence and make submissions. The EAT directed that Southwark file evidence on the point and indicated that that evidence would be sent to the ET Chairman for his comments. Mr. Afolabi was also given the opportunity to file evidence. The EAT allowed all three lines of attack to go to a full hearing.

Southwark, by one of its Legal Officers, Dawn Martin, filed an affidavit to which she exhibited extracts from her notes of evidence of the hearing of 6 June 2000, the last day of the hearing before the ET. Mr. Afolabi put in an affidavit in reply and the Chairman, Mr. MacInnes, commented on Ms. Martin’s affidavit.

At the hearing of the appeal, the EAT (His Honour Judge McMullen Q.C. presiding) rejected all three lines of attack. The Judge refused permission to appeal to this court. However, Mummery L.J., considering the application on paper, gave permission.

Before this court Mr. Stephen Fletcher for Southwark renews the three lines of attack. Mr. Afolabi, appearing in person, supports the ET’s and EAT’s decisions. I shall consider Mr. Fletcher’s arguments in turn.

On this issue the ET heard evidence from Mr. Afolabi and was referred to the bundles of documents, but no witness gave written or oral evidence for Southwark. The ET found that Mr. Afolabi’s complaint was received by it on 23 July 1999, that is nearly 9 years after the expiry of the period of three months permitted by s. 68 (1)(a) of the Act and more than 9 years after the appointment the subject of the Second Complaint, and that Mr. Afolabi was not aware that he had an arguable case until 26 April 1999. The ET said (in para. 5 of its Extended Reasons):

“The Applicant had no reason to inspect his personal file and was not under any obligation to inspect it. He brought his claim within three months of first sight of the file which revealed that he might have an arguable case of racial discrimination. We noted that more than nine years had passed since the events in question, but that this would be equally prejudicial to the Applicant, who has to prove racial discrimination, as it would be to the Respondent. It is therefore our unanimous decision that although the complaint was presented out of time it is just and equitable that the Tribunal should consider the complaint.”

The ET did not do what is often done on an application to extend time, that is to go on to hear the substantive complaint before deciding whether to extend time. It gave its decision on the application and then dealt with the substantive complaint.

It is convenient at this point to recite what was found by the ET on that complaint. The ET recorded that on the second day of the hearing Mr. Afolabi had sought for the first time to extend the scope of the hearing by claiming a pattern of discrimination by Southwark against people of black West African origin in the recruitment process. Mr. Afolabi wanted to show that by reference to certain persons recruited between 1991 and 1994. He applied shortly before the hearing, and was allowed, to name Mr. Graham Brown as a comparator. But the ET refused to admit evidence on Mr. Afolabi’s additional claims, saying that it had become apparent that documentary evidence going back to 1990 was far from reliable, and the ET expressed its concern that even if witnesses were available, their ability to recall events of more than 6 years ago raised issues of how reliable such evidence might be.

The ET then heard evidence from Mr. Afolabi and Mr. Dusu. Southwark’s only witness on this point was Mr. Bassett. The ET noted an element of conflict between Mr. Bassett’s and Mr. Dusu’s evidence as to what happened at the interview, but said that both agreed that Mr. Afolabi performed well. The ET continued:

“It was Mr. Dusu’s evidence that they agreed that the Applicant was the best candidate and should be appointed at Scale SO2; that he and Mr. Dusu recommended Mr. Welsh for appointment at Scale 6 as he was inexperienced and performed less well at interview. Mr. Bassett’s reactions he said was “but Mr. Welsh had Part I CIPFA” and Mr. Bassett stormed out of the meeting. Mr. Dusu recommended the Applicant for appointment at Grade SO2 and Mr. Welsh at Scale 6.

While Mr. Bassett’s recollection was less than clear he agreed the Applicant was the best candidate but the lack of qualification disqualified him from Grade SO2 and therefore any appointment had to be Scale 6. He did not recall any disagreement with Mr. Dusu.

It was Mr. Dusu’s evidence that subsequently Mr. Brown the Head of Financial Services decided not to appoint anyone at Grade SO2….

We find that there was a disagreement between Mr. Dusu and Mr. Bassett – Mr. Dusu recommending the Applicant for Grade SO2 and Mr. Bassett for Scale 6 but that this was not a matter of great moment to Mr. Bassett. Both recommended Mr. Welsh for Scale 6. Mr. Brown decided that the Applicant should be appointed at Scale 6.”

The ET decided that there was no direct evidence of racial discrimination but said that it followed the principles of King v Great Britain-China Centre [1992] ICR 516 and Glasgow City Council v Zafar [1997] 1 WLR 1659 to determine what inferences could be drawn from the primary facts. The ET noted the rival contentions, Mr. Afolabi saying that he had been invited to apply for and was well qualified for Auditor Grade SO2 and that the decision not to appoint him to that grade was on grounds of his race, whereas it was Southwark’s explanation that the reason he was not appointed was that he did not have the qualification required. The ET rejected that explanation, saying:

“We do not accept the Respondent’s explanation. The Applicant was short-listed and invited for interview for a Grade SO2 post at which time the Respondents knew very well that he did not have the qualification that they asserted to us was a condition of Grade SO2 appointment. It was not disputed that the Applicant was the best and most experienced candidate and we have found as a fact that he was recommended for Grade SO2 by Mr. Dusu. The Respondent was seeking to improve the quality of its audit staff.

We then considered whether the inference that we should draw from these primary facts was that this was a matter of administrative error or some other reason rather than a matter of discrimination on grounds of race. It is our decision that it was on the grounds of race because we are unable to believe that if Part I CIPFA qualification was in reality such an essential element for grading at SO2, this would not have been mentioned at some time to Mr. Afolabi either during the interview or at any other time in explaining why he was offered Scale 6 rather than Grade SO2 for which he had been invited for interview, in particular when the letter of invitation to interview anticipated that possibility.

It is therefore our unanimous decision that the Respondent discriminated against the Applicant by treating him less favourably than they would have treated a white man with equal experience in deciding not to appoint him to Grade SO2.”

Mr. Fletcher submitted that the ET was required, when considering whether it was just and equitable to extend time, to consider what the prejudice was to each party and how it affected the fairness of the hearing. He also said that it was required to consider the matters listed in s. 33 (3) Limitation Act 1980 to which the EAT in British Coal Corporation v Keeble [1997] IRLR 336 referred. He argued that the decision to extend time ignored a number of relevant matters, including the fact that the only documentary record of what happened was Mr. Dusu’s hand-written note found in Mr. Afolabi’s file, the fact that the issue involved recollection by witnesses of events 10 years earlier, the fact that Mr. Afolabi’s original comparator, Mr. Welsh, had left Southwark’s employment in 1992 and his files were unavailable, the fact that Mr. Keith Brown, whom the ET identified as the discriminator, had no recollection of any events surrounding the appointment, the fact that Mr. Bassett and Mr. Dusu respectively were first asked in August and September 1999 about the events in 1990 and that it was simply a question of who claimed to have the better memory, the fact that Mr. Afolabi had occupied the Grade 6 post for 9 years and did not complain until July 1997, the fact that there was no evidence of concealment by Southwark, the fact that since July 1997 Mr. Afolabi had been questioning his Grade 6 post and in August 1998 had raised a complaint of racial discrimination, and the fact that he had not explained the delay between his inspection of his file and commencing proceedings. Mr. Fletcher submitted that the ET could not have applied the correct legal approach and must have disregarded or given insufficient weight to those factors. He challenged the ET’s finding that the prejudice caused by the passage of time was equal for both parties. He suggested that it was inconsistent with the ET’s comments, referred to in para. 25 above, on the effect of the passage of time when it rejected Mr. Afolabi’s attempt to widen the scope of his complaint. He contended that the ET should not have decided whether to extend time without first hearing the evidence on the substantive complaint and that it failed to have regard to all the circumstances as required by s. 68 (6).

Mr. Afolabi supported the reasoning and conclusion of the ET. He submitted that the oral evidence was supported to a reasonable extent by documentary evidence which was adequate. Among the relevant and available documents to which he referred in his skeleton argument was the specification for the post of Auditor Grade SO2, but he said in his oral submissions that a document produced to us as the Personnel Specification for that grade and showing the requirement as being that which is referred to in para. 12 above was not allowed to be admitted by the ET. It is not entirely clear from the material put before us what was accepted by the ET as being in evidence, but it is sufficient to say on that point that the ET appears to have accepted that there was in 1990 a specified requirement of a CIPFA Part I qualification (or its ACCA equivalent). That was the point of Mr. Bassett’s expostulation about Mr. Welsh of which Mr. Dusu gave evidence and to which I refer in para. 26 above, and when the ET did not accept Southwark’s explanation for not appointing Mr. Afolabi to the Grade SO2 post, it did not say that there was no qualification requirement, but merely said that it was not an essential requirement.

It is evident from the terms of s. 68 (6) that the ET has a discretion in deciding whether or not to extend time as being just and equitable. True it is that it is expressly stated that the discretion must be exercised in all the circumstances, but it cannot be said that it must hear the substantive complaint before it decides whether to extend time. In many cases it will be a waste of valuable time for the ET not to decide the preliminary point going to jurisdiction first; only if time is extended need it go on to try the substantive complaint. Whether the ET commits any error or law in reaching that decision will depend on the particular circumstances, including what has been urged on the ET by the parties. One of the difficulties in the present case is that we know so little of the material put before the ET. There are no Chairman’s notes of evidence or of submissions nor has Southwark put in evidence of what occurred in relation to the decision to extend time. What we do know is that Southwark chose not to adduce any evidence before the ET on this point, but to rely merely on submissions coupled with references to some documents. Mr. Fletcher told us that he referred the ET to a note dated 29 July 1999 from Mr. Keith Brown to, amongst others, Mr. Bassett.In it Mr. Brown stated:

“My recollection of this appointment is very vague – as you would expect after more than 9 years.

….

I do not remember taking any part in the interview or the decision. The interview panel …. would have taken the decision.”

If Southwark wanted to make good a case that it was not possible to have a fair trial so many years after the appointment, it is surprising that it did not put in evidence directed to that point. On applications for striking out for want of prosecution before the Civil Procedure Rules came into force, when prejudice caused by delay had to be shown, it was the practice that applicants would file evidence to establish such prejudice, for example on the unavailability of witnesses or documents or the difficulties of witnesses in remembering details of what occurred. Had Southwark done so and made clear by its evidence the difficulties which it faced in defending so stale a claim, both in relation to witnesses who might be called and to documents which must have existed but were no longer available, I would have thought that it would have been relatively easy to mount a powerful argument why there could be no longer a fair trial. As it is, reference merely to a document such as that giving Mr. Brown’s assertions, untested by cross-examination, seems to me likely to have been of much less weight, particularly when Mr. Brown is shown by the document to have been able to give evidence of the practice of the Department, by stating that the panel which interviewed Mr. Afolabi would have taken the decision. Further, we know from the letter of 21 December 1999 (see para. 12 above) that information provided by Mr. Brown to the panel hearing Mr. Afolabi’s grievance was found helpful by that panel. Mr. Brown might have been able to give evidence of what Southwark’s attitude was or would have been in relation to the qualification requirement. And yet Southwark chose not to call him as a witness, even though Mr. Afolabi had asked that Mr. Brown attend the hearing.

I think that it would have been better if the ET had delayed its decision on extending time until it had heard the evidence and submission on the substantive complaint. That complaint was within a relatively small compass with limited evidence to be called. But I am not able to go so far as to say that the ET was perverse or otherwise made any error of law in deciding to extend time before it went on to deal with the substantive complaint. That decision was one well within the proper ambit of its discretion.

Nor do I accept that the ET erred in not going through the matters listed in s. 33 (3) of the 1980 Act. Parliament limited the requirement to consider those matters to actions relating to personal injuries and death. Whilst I do not doubt the utility of considering such a check-list (or that in CPR 3.9(1)) in many cases, I do not think that it can be elevated into a requirement on the ET to go through such a list in every case, provided of course that no significant factor has been left out of account by the ET in exercising its discretion. Of the matters which Mr. Fletcher said were ignored by the ET, some do not appear to have been established by evidence and appear to be of little weight. For example the file relating to Mr. Welsh was unlikely to assist on what happened at and after Mr. Afolabi’s interview. There is nothing to substantiate the allegation that the ET ignored the fact that there was only Mr. Dusu’s note as a documentary record of what happened at the interview. As I have said, it was for Southwark to establish by evidence what other documents there might have been but which, after the passage of time, no longer existed. I have already commented on the absence of evidence from Mr. Keith Brown. The history of Mr. Afolabi’s unhappiness with his grade and his racial discrimination grievance do not show that the ET was wrong to find that he was not aware that he had an arguable case until he inspected his file, although another ET might well have found significance in the fact that Mr. Afolabi failed to be shortlisted in 1994 for Auditor Grade SO2 because he did not meet the criteria for the post and that despite what he describes in his Second Complaint as his shock and dismay he never sought to see his file at that time. The period between 26 April 1999 and 23 July 1999 when the Second Complaint was presented is not so great as to disentitle the ET from finding it just and equitable to extend time.

The point which has given me greatest pause is whether the ET could properly say, as it twice did, that the delay would be equally prejudicial to Mr. Afolabi as it would be to Southwark. When the ET went on to deal with the substantive issue Mr. Dusu’s evidence was accepted, the evidence of Mr. Bassett, who was senior to Mr. Dusu, being found less reliable because Mr. Bassett’s recollection was less clear. But at the time of the decision on extending time, that evidence was yet to come and the ET might reasonably have thought that there was no imbalance of prejudice between Mr. Dusu giving evidence for Mr. Afolabi and Mr. Bassett giving evidence for Southwark. I have already commented on Southwark’s surprising decision not to call Mr. Brown. The state of the documentary evidence (or lack of it) can perhaps be argued to prejudice Southwark because Mr. Afolabi had Mr. Dusu’s note of his interview, which favoured Mr. Afolabi, as well as the letter inviting him to be interviewed for the Auditor Grade SO2 position, whereas Southwark had no document to counter or explain those documents. From the notes of the interview of Mr. Dusu on 29 September 1999 by the panel dealing with Mr. Afolabi’s grievance, we know that it was Mr. Dusu’s evidence to the panel that Mr. Bassett would have made a score sheet, marking Mr. Afolabi’s performance at the interview, just as Mr. Dusu had done. That in itself is not important as it was common ground between Mr. Bassett and Mr. Dusu that Mr. Afolabi performed well. But Mr. Dusu is also recorded as going on to say that he and Mr. Bassett would have pooled their results and completed a summary sheet and that the summary sheet would indicate the candidates recommended. On Mr. Dusu’s evidence to the ET, he and Mr. Bassett agreed to recommend that Mr. Afolabi be appointed to Auditor Grade SO2. There must have been some joint document of Mr. Bassett and Mr. Dusu either (on Southwark’s case) refusing to recommend the appointment of Mr. Afolabi at Grade SO2 because of his lack of qualification and recommending his appointment only at Grade 6, or (on Mr. Afolabi’s case) recommending him to Mr. Brown for appointment at Grade SO2, or (on the ET’s finding) Mr. Dusu recommending the SO2 appointment and Mr. Bassett the Grade 6 appointment. No such document is now available, nor was there any document to explain why Mr. Afolabi was interviewed for an appointment for which he was not qualified. However there is nothing before us to show that Southwark pointed out to the ET what documents must have existed but which no longer exist after 9 years.

With considerable hesitation, I conclude that it cannot be shown that the ET, on the material before it when it decided to extend time, erred in law in concluding that the passage of time was equally prejudicial to the parties. My hesitation stems from the fact that it can only be in a wholly exceptional case that the ET could properly conclude that despite a delay of a magnitude anywhere approaching 9 years it was just and equitable to extend time. The policy of the Act is made clear by the brevity of the limitation period; that period of three months is in marked contrast to the limitation periods in ordinary litigation. Parliament having envisaged that complaints within the jurisdiction of the ET will be determined within a short space of time after the events complained of, it will be an extremely rare case where the ET can properly decide that there can be a fair trial so long after those events. Had Southwark duly applied itself to what it needed to prove and submitted appropriate evidence, the result may well have been different. As it is, I am compelled to conclude that, on the findings which it was open for the ET to make, the decision to extend time cannot be impugned.

Mr. Fletcher criticised the ET’s decision on this point as perverse. He relied on the qualification requirement in the Personnel Specification for Grade SO2 which, he submitted, provided the explanation for Mr. Afolabi not getting the appointment. I have to say that given that a purpose of the exercise in recruitment in 1990 was to recruit staff who were more qualified, in agreement with the panel considering Mr. Afolabi’s grievance in 1990 that would seem to me to have been the likely logical reason. However, that is not the relevant test for this court to interfere with the ET’s decision. The ET has explained in para. 12.5 of the Extended Reasons why it rejected that explanation, and whilst the absence of any mention of the qualification requirement in the interview or in the letter inviting Mr. Afolabi to the interview seems to me to be readily capable of explanation other than by an inference that the qualification requirement was not the true reason for Mr. Afolabi not being appointed and other than that racial discrimination was that reason, I cannot go so far as to say that no reasonable ET could properly have formed the view taken by the ET.

Mr. Fletcher also pointed out that Mr. Afolabi had failed to prove the existence of any comparator. He argued that the ET, in finding that Southwark treated Mr. Afolabi less favourably than Southwark would have treated a white man with equal experience, had not properly applied the principles of King v Great Britain-China Centre and the Zafar case, approving the guidance given by Neill L.J. in the former case. Neill L.J. said ([1992] ICR 516 at pp. 529-9) that, whilst it was for the applicant complaining of racial discrimination to make out his case, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination and in such circumstances the ET will look to the employer for an explanation, and if that explanation is inadequate or unsatisfactory it will be legitimate to infer that the discrimination was on racial grounds. Here there had been no finding by the ET of discrimination and a difference in race before the explanation by Southwark was rejected. However, again the conduct by Southwark of this case deserves criticism. Mr. Afolabi had exercised his right under s. 65 of the Act to serve a questionnaire dated 12 August 1999 on Southwark. Whilst it could well have argued that the number of questions raised by him was unreasonable, what Southwark could not safely do was to ignore the questionnaire. In failing to answer it, it allowed the ET to draw inferences from that failure (s. 65 (2)(b)). Had it answered the questionnaire it would, for example, have provided statistics of the numbers of whites and blacks in audit posts. Although the ET can be criticised for not explaining why there was discrimination, because it was open to the ET to infer it, I cannot say that the ET erred in law on this point either.

On this point it was accepted by Mr. Afolabi at an early stage of the hearing before the ET that Mr. Coombes was not an appropriate comparator. The ET heard evidence from Mr. Afolabi and, for Southwark, Mr. Rich, Ms. Seymour and the Head of the Personnel Department, Mr. Nawrat.

The ET set out the facts to which I have referred in paras. 6 and 8 – 12. It found that neither Mr. Afolabi nor Mr. Jordan nor Ms. Draper had any subordinates or managerial responsibilities at the time of the Hay grading exercise and that the objective scores under the Hay system for the posts held by all three were the same. It said that the ring-fencing of the Grade 11 post in the Education and Leisure Department so that only Mr. Jordan and Ms. Draper could apply was not Southwark’s normal practice and that contrary to normal policy, the post was not advertised internally; had it been, Mr. Afolabi could have applied. The ET referred to Mr. Jordan being restored to Grade 10 “by dint of efforts of management”.

Again the ET said that there were no primary facts showing racial discrimination and it therefore considered what inferences could be drawn. The ET pointed to Southwark’s approach towards Mr. Afolabi as being since at least November 1998 that he should only be Grade 8 and that it was only when Hay responded on 22 March 1999 that it was conceded that he was Grade 9, but that he was not informed of that nor was it implemented until the conclusion of the grievance procedure on 21 December 1999. It said that the decision that Mr. Jordan and Ms. Draper’s jobs were Grade 9 was not implemented. It said:

“14.2.4

Almost immediately upon receipt of the Hay evaluation and its acceptance by the Respondent’s Personnel Department the Education and Leisure Department restructured the positions held by Mr. Jordan and Ms. Draper to Grade 9 (i.e. to the same as the Hay evaluation of the Appellant). However both the individuals concerned were individually regraded or promoted Grades 10 and 11 respectively in an extraordinarily short space of time. In the case of the promotion to Grade 11 this was, contrary to the Respondent’s normal policy, not advertised (so that the Applicant was in effect not allowed to apply) but closed so that only Mr. Jordan and Ms. Draper could apply.

14.2.5

It is our unanimous finding that this restructuring was a sham designed to preserve the grading of Mr. Jordan and Ms. Draper at Grade 10 at the least.”

I pause there to observe that the ET appears to be referring in para. 14.2.5 not to the restructuring referred to in para. 14.2.4 but to the regrading of Mr. Jordan’s job to Grade 10 and to the promotion of Ms. Draper to a Grade 11 post. The earlier reference to the restructuring of Ms. Draper’s and Mr. Jordan’s posts to Grade 9 would appear to be a reassessment of those posts in acceptance of the Hay recommendation.

The ET continued:

“14.2.6

The inescapable inference we draw from these primary facts is that there was a culture of prejudice against the Applicant on the grounds of his race (it being accepted that he was an excellent employee) and in favour of white employees within the Respondent’s organisation which manifested itself in this case over a period from at least November 1998 to at least December 1999.

That when the Respondent accepted in April that the Applicant’s position was properly Grade 9, contrary to its normal policy, this information was kept from the Applicant and was not implemented for some eight months.

That when the Hay evaluation showed that the posts occupied by Mr. Jordan and Ms. Draper (both white employees) were in fact equivalent to that occupied by the Applicant steps were taken to preserve their grading at at least Grade 10 and to exclude the Applicant from the possibility of applying for the Grade 11 vacancy. This was virtually the opposite of the way in which the Respondent treated the Applicant.”

Southwark in its appeal to the EAT complained that, in its decision, the ET had gone beyond the original complaint identified by the ET Chairman on 15 October 1999. Instead of a decision on the issue whether Southwark unlawfully discriminated against Mr. Afolabi when it failed to regrade his post to Grade 10 in or about April 1999 (in other words, used by Mr. Afolabi himself, a complaint that the Hay evaluation exercise was an act of discrimination), the ET found that Mr. Afolabi had subsequently to the completion of the Hay evaluation in or about April 1999 treated him less favourably than Mr. Jordan and Ms. Draper becuse (1) he was not informed of the increase in his job’s Hay grading to 9 nor was it implemented till after the rejection of his grievance on 21 December 1999, and (2) his job description was not rewritten to increase the grading to 10, whereas by management’s efforts Mr. Jordan’s job description was rewritten for the job to be graded Grade 10, and Mr. Afolabi was not given the chance to apply for a Grade 11 post whereas Mr. Jordan and Ms. Draper were and Ms. Draper obtained the post.

Ms. Martin in her affidavit complained that Southwark’s legal representatives had been taken by surprise when on the last day of the hearing the ET indicated an interest in what had occurred to Ms. Draper and Jordan after April 1999 in the Education and Leisure Department and hastily had to try to obtain information about it that day to enable Mr. Fletcher to make submissions to the ET on it. Unwisely, as it seems to me, Ms. Martin concentrated on the fact that Southwark would have wished to put in evidence as to the genuineness of the reorganisation of the Education and Leisure Department, which started before the Hay grading exercise. No one doubts that there was a genuine reorganisation. She should have directed her attention to the evidence needed on whether the rewriting of Mr. Jordan’s job description and the promotion of Ms. Draper were a sham. In relation to Mr. Jordan, if, as it would appear from Mr. Nawrat’s oral evidence, management were simply concerned to find a way whereby an employee previously graded 10 should not, close to retirement as we are told Mr. Jordan was, suffer a drop in income by his job having been regraded downwards, the question was whether race had any part to play in the treatment of Mr. Afolabi as compared with Mr. Jordan.

However, Ms. Martin did make the point that Southwark would have wanted the opportunity to address properly what was done in the Education and Leisure Department not only to prove the true nature or the reorganisation but also the resulting grades of Ms. Draper and Mr. Jordan, whose job description, she said, was rewritten in September 1999 to include responsibilities for devolved compliance functions, and that Mr. Afolabi’s job did not have such responsibilities. She said that Mr. Jordan’s post was evaluated at Grade 10 in October 1999. She also pointed out that the decision to ring-fence the new Senior Auditor post to only Mr. Jordan and Ms. Draper was in accordance with specific provisions of Southwark’s published procedures, and that Mr. Nawrat had given evidence to the ET that in a reorganisation ring-fencing was confined to the area affected by the reorganisation.

The ET Chairman, Mr. MacInnes, in his comments, accepted that there may have been a misunderstanding in relation to ring-fencing in regard to Ms. Draper and in particular that a note he made that it was “not normal procedure” may have referred to a matter other than ring-fencing. Having seen the document setting out Southwark’s published procedures, I have to say that it is plain that ring-fencing was entirely in accordance with those procedures and that the ET was wrong to find less favourable treatment by reference to the ring-fencing of Mr. Jordan and Ms. Draper. It appears to follow that the promotion of Ms. Draper to a Grade 11 post could not properly have been relied on by the ET as evidence of more favourable treatment of a white comparator and that the ET was wrong to say that Southwark took steps immediately to exclude Mr. Afolabi from the possibility of applying for the Grade 11 vacancy. That, of course, would have been unlawful under s. 4 (2)(b) of the Act. I think that Mr. MacInnes accepts those consequences because he went on to say that it did not affect the ET’s finding of fact about Mr. Jordan’s job being restructured by dint of management efforts. Mr. MacInnes referred to Mr. Afolabi’s Witness Statement produced on the first day of the hearing before the ET, which included an assertion that notwithstanding the fact that Hay had evaluated his job and that of Mr. Jordan and Ms. Draper at the same grade 9, “Horses were changed in mid-stream” and the comparators’ grades were changed, Mr. Jordan being moved sideways and regraded 10 while Ms. Draper was regraded to Grade 11. Mr. MacInnes said that as far as the ET was concerned, that was the issue identified at the hearing for directions, namely that Mr. Afolabi’s claim was that Mr. Jordan and Ms. Draper were treated more favourably than he was “on or about April 1999” when they were graded 10 or above and he was only graded 9.

I am uncomfortably aware that, on this issue, my view differs from that of the other members of the court as well as the EAT, but I have to say that it seems plain to me that the ET was not directing itself to the issue, identified on 15 October 1999 by the Chairman and agreed on behalf of Mr. Afolabi, whether there was unlawful discrimination when Southwark failed to regrade his post to Grade 10 in or about April 1999. It is not in dispute that Hay, whose integrity has not been challenged, looks only at the job and not the person holding the job whatever his or her colour, and on 22 March graded Mr. Afolabi’s job at Grade 9 and graded Mr. Jordan’s and Ms. Draper’s job at Grade 9 as well. There could be no valid complaint of discrimination in that exercise. Hay’s view was accepted by Southwark in or about April 1999. Southwark could not have regraded his post Grade 10 at that time.

What the ET was directing itself to was different complaints which were never pleaded, even though Mr. Afolabi’s Further and Better Particulars were delivered after the Chairman on 15 October 1999 had identified the issues to be determined by the ET. It will be borne in mind that the purpose of the directions hearing on 15 October 1999 was to clarify the issues so that each party knew precisely what it was that that party had to address in its evidence and submissions at the eventual hearing. As I have pointed out in para. 16 above, not only did Mr. Afolabi make explicit in his Further and Better Particulars that his complaint was about the evaluation exercise but he also explained why there was a flaw in it, though that has not been upheld. What he did not do was to make the specific complaints upheld by the ET about his treatment being less favourable than Ms. Draper’s because of her subsequent promotion, even though she had obtained her promotion over half a year earlier, nor about his treatment being less favourable than Mr. Jordan’s because Mr. Jordan’s job was subsequently changed in its content, even though that had happened a month before he produced his Particulars. The ET found discrimination in what occurred subsequently to the Hay regrading exercise, which was completed with the acceptance by Southwark of the Hay regrading in April 1999, viz. the failure for 8 months to inform or implement Mr. Afolabi’s increased grading from Grade 8 to Grade 9 until the panel reported on his grievance, and the ring-fencing (to the exclusion of Mr. Afolabi) and promotion of Ms. Draper and the rewriting of Mr. Jordan’s job so that in October 1999 it became Grade 10.

It was established by this court in Chapman v Simon [1994] IRLR 124 that it is not for the ET to find for a complainant on a complaint which is not pleaded and to give a remedy for that complaint. The fact that in a Witness Statement, not a pleading, Mr. Afolabi at the start of the hearing asked for the subsequent job movements of Ms. Draper and Mr. Jordan to be “noted” does not convert the defined issue which is pleaded into a different pleading to include the Witness Statement. Even in that Witness Statement Mr. Afolabi repeats: “I conclude that the evaluation exercise did not comply with equal opportunities practice, and it is in fact an act of discrimination.”

It would of course have been open to the ET to invite Mr. Afolabi to apply to amend his pleadings, subject to hearing Southwark’s objections to such late amendment. But that was not done. The case upheld by the ET, as now narrowed by Mr. MacInnes’s acknowledgment of error, would appear to have been that Southwark should have informed Mr. Afolabi of, and implemented his regrading to Grade 9 (not, it is to be noted, the Grade 10 in the defined issue) and should have added to Mr. Afolabi’s job description to justify a grade of 10, or found a Grade 10 job for him, so as to treat him equally with Mr. Jordan. That case raises quite different considerations, which Southwark should have had proper opportunity to address. It was denied that opportunity.

I am troubled too by the possibility that the full ET, if aware of its error, now acknowledged by Mr. MacInnes in relation to the ring-fencing and the appointment of Ms. Draper, might not have reached the same conclusion with Mr. Jordan as in effect the comparator, although I accept that Mr. MacInnes alone would have reached the same result. Mr. MacInnes made his comments pursuant to a request that “he is asked for comment”, no doubt under para. 9(4) of the EAT Practice Direction, and there is nothing before us to indicate that it was found appropriate for comments to be obtained under para. 9(4) from the other members of the ET. Mr. MacInnes describes his comments as “Chairman’s comments”, and in acknowledging his error on the ring-fencing he does not refer to the other members save to say “It does not affect our finding of fact regarding Mr. Jordan”. But that appears to have been his own comment. The unlawful exclusion of Mr. Afolabi from applying for the Grade 11 post may have appeared significant to the lay members of the ET, and that is now shown to have been a false point.

I therefore would have allowed the appeal and set aside the ET’s and the EAT’s order on this point. I would have heard argument on whether Mr. Afolabi should be allowed to amend the First Complaint, and if that had been allowed, I would have remitted the case to a different ET for a rehearing limited to that single point. But in view of the conclusions reached by the other members of this court, the appeal will be dismissed on this point also.

I have had the advantage of reading the judgment of Peter Gibson LJ. I respectfully agree with his conclusions on the first two issues but not, I regret to say, on the final issue. For the reasons which follow, I would dismiss this appeal in its entirety.

I agree that the Employment Tribunal made no error of law in deciding that it was just and equitable to enlarge the time for bring the first limb of the claim.

An employment tribunal presented with a time issue at the start of any but a short case has to estimate what will be the best use of its time. If the question is simply whether an application is in time or not, it is a true preliminary issue and can be disposed of as such. If the application is admitted or held to be out of time and the applicant seeks an enlargement of time, the tribunal commonly has a problem: should this too be dealt with as a preliminary issue, or as a discrete first issue at the hearing, or should it await a full exploration of the evidence in order to see where the balance of justice and equity lies in relation to the lapse of time? There is no single or even preferred answer. To take the first course may deny the tribunal information capable of having influenced its decision; but it will mightily shorten the hearing if it goes in the respondent’s favour. To take the second course, if it results in a refusal to extend time, may mean that days have been wasted; but it may also mean that the decision on the enlargement of time is a better informed one. Between these two courses may lie a third: the possibility of giving an initial decision on time but, if it goes in the applicant’s favour, acceding to any appropriate application to review it in the light of the subsequent evidence.

So long as tribunals are alive to the options and their implications, it will not be for appellate courts to second-guess their choice, even where hindsight shows it to have been inappropriate.

This tribunal chose, apparently without protest, to deal with the enlargement of time in relation to the first in time of Mr Afolabi’s claims at the start of the hearing. They heard evidence from Mr Afolabi and submissions from Southwark and they looked at the documents to which their attention was invited. Having done so they concluded, in terms set out in the judgment of Peter Gibson LJ, that it was just and equitable to allow this part of the claim to proceed.

It seems to me both that their appraisal of the balance of prejudice was a tenable one and that their conclusion was entirely open to them in the light of their reasoning. In essence they thought it entirely understandable that Mr Afolabi had not examined his personnel file earlier than he did; they recognised that to go back nine years would place both sides in difficulty; but they considered that, with proper control of the issues and materials so as to minimise any consequent prejudice, it was just and equitable that Mr Afolabi’s late claim should be heard.

In this respect, as in the other respects to which this appeal relates, the employment tribunal’s extended reasons are, if I may say so, almost a model of their kind. (I will explain “almost” later in this judgment.) They are terse, clear and wholly to the point. Where it is necessary to demonstrate the tribunal’s process of reasoning, they do so. No less is required; but nor is more.

The tribunal’s conclusion that there had been racial discrimination against Mr Afolabi at the time of his appointment in 1990 was reached by legally correct steps. The ultimate question was whether, but for his being black, Mr Afolabi would in their judgment have been offered appointment at SO2 level rather than at grade 6. This required, before any other questions arose, that the tribunal should find a difference of treatment and a difference of race. Here the tribunal were dealing with the element of s.1(1)(a) of the Race Relations Act 1976 which includes in the meaning of racial discrimination cases where the respondent on racial grounds treats the applicant less favourably than he would treat other persons. Difference of treatment and difference of race are in such cases not distinct, and the judgment has to be a rounded one.

The tribunal’s reasons for finding in Mr Afolabi’s favour on this issue have been cited in full by Peter Gibson LJ. They amount to this: to all appearances Mr Afolabi, who was already known not to have the CIPFA qualification, was being considered for an SO2 post; he did very well at interview, yet was offered only a grade 6 post; the explanation now advanced – that without the CIPFA qualification an SO2 post was not open to him – was never advanced at the time and is still unsupported by any evidence. Having thus rejected the principal explanation, the tribunal considered and rejected other possible explanations such as administrative error. They then considered whether the explanation was Mr Afolabi’s race; and in the absence of any other acceptable explanation they inferred that it was. This process of reasoning conforms exactly with the seminal statement of the law by Neill LJ in King.

It is now said by Mr Fletcher for Southwark that there was no evidence before the tribunal of a difference of race; and it is quite true that they arrived at their conclusion that Southwark had treated Mr Afolabi less favourably than they would have treated a white man without any prior reference to racial difference. An explanation of this would have been desirable (hence the “almost” in paragraph 59 above), but the reason is plain: at no stage of the hearing had Southwark advanced any suggestion, much less any evidence, that there was no difference of race between Mr Afolabi and one or more of the council’s SO2 postholders; nor, even before us, was Mr Fletcher able to say that there was none. The case had proceeded from start to finish on a shared understanding that there was indeed a difference of race. If this had been an issue one would have expected to see it in evidence (for it was a potential knockout point for Southwark if there were black SO2s in post) and thereafter in the forefront of the grounds of appeal at both levels. It is in neither.

Mr Fletcher also faces the procedural difficulty that the point is not to be found either in his notice of appeal to the EAT or in his appellant’s notice in this court. I do not accept that it is to be found in the ground which asserts that the tribunal have not identified a comparator in the form of someone appointed to a post for which they were not qualified. That is a quite different point (and one which parodies Mr Afolabi’s case).

The ethnic breakdown of this grade should have been before the tribunal if it was going to be an issue at all. I reject the suggestion that this has anything directly to do with the burden of proof. If at the end of the day the applicant’s case is not made out, he loses; but in seeking to make out his case he is entitled to point to anything in the evidence which assists him, and it is the duty of both sides, once the issues are identified, to put before the tribunal such material as they hold and as will help the tribunal to reach an informed conclusion. What Sir John Donaldson MR said in R v Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941, 945, about the duty of candour in judicial review proceedings is every bit as relevant in employment tribunal proceedings. They are not a form of warfare.

When one looks at Mr Afolabi’s pre-action questionnaire (far too long and detailed though it is), it contains this question:

“How many of the Departmental Auditors’ posts across the Council are filled by permanent members of staff? Please give the names and ethnic origin of those occupying these posts.”

Next Mr Fletcher contends that the question decided by the employment tribunal on the second part of the case, relating the regrading and reorganisation in 1998-9, was a different question from that set at the directions hearing, namely:

“Whether the Respondent unlawfully discriminated against the Applicant when it failed to re-grade his post of Departmental Auditor to Hay grade 10, on or about April 1999.”

It is plain from their reasons that what the tribunal were referring to when they spoke in paragraph 14.2.5 of “this restructuring” was not the global reorganisation of Southwark’s internal auditing but the realignment of the positions of Mr Jordan and Ms Draper discussed by them in the previous paragraph of their extended reasons. (They might perhaps have chosen a different word from “restructuring” for clarity’s sake.) It would have been possible, certainly, for Mr Afolabi to argue that they should have been graded 9 like him. Instead, under the eye of Ms Taylor, the chairman at the directions hearing, the issue was formulated so as to enable him to argue, in effect, that if Mr Jordan and Ms Draper were entitled to be graded at least 10, then so was he.

The tribunal, as we know, read the facts differently. They concluded that all three were grade 9 material. But they found in the favourable treatment afforded to the other two, who were white, evidence that the failure even to move Mr Afolabi from 8 to 9 was another act of racial discrimination. What loss flowed from this, as opposed to the loss which would have flowed from a failure to move him to grade 10, was something to be assessed later. But it was not, in my judgment, a switch from one question to another: it was simply, as often happens, an answer to the known question which did not wholly correspond with either side’s case.

This also answers Mr Fletcher’s submission that the employment tribunal and the EAT both overlooked the fact that restructuring was affecting the whole department. The restructuring the tribunal were speaking about was the shifting of Mr Jordan and Ms Draper back into higher grades than they were properly entitled to. This (even allowing for the fact that ring fencing an employee from competition for internal promotion was apparently not abnormal) demonstrated to the tribunal a culture of giving other staff a helping hand in relation to their location in the pay structure which was not held out to Mr Afolabi. Given the difference of race, it was not a long step from here to a conclusion that it was once again on grounds of race that Mr Afolabi had been less favourably treated than - this time – identified individuals in a closely comparable position to his. It is on these grounds that I respectfully differ from the key reasoning of Peter Gibson LJ in paragraph 46 above.

On all the grounds advanced, I would therefore dismiss this appeal.

I have had the advantage of reading the judgments of Peter Gibson LJ and of Sedley LJ in draft. I gratefully adopt Peter Gibson LJ’s statement of the factual background to this appeal. However, like Sedley LJ, I regret to find myself in disagreement with Peter Gibson LJ on the third issue. I too would dismiss this appeal in full.

I agree with both judgments on this issue. What has particularly influenced me are the following considerations.

The statutory test is the broad one of what is “just and equitable” in all the circumstances. Of course that has to be considered against the background that subject to the power to extend time the normal limitation period is one of only three months: however the ET had that well in mind. I can detect no error of law or irrationality in the ET’s determination of this issue.

Critical to their decision are their findings that Mr Afolabi “was not aware that he had an arguable case” until he inspected his personal file for the first time on 26 April 1999 ie within three months of his second complaint (para 3(ii)), and that he had no reason to inspect his personal file and was under no obligation to inspect it at any earlier time (para 4). Those are likely to be highly unusual facts. They mean that the delay was in no sense the fault of Mr Afolabi. In such circumstances it hardly makes sense to speak of “delay”. Where there is delay which can be placed at the door of an applicant, the position is very different.

On the equally critical question of prejudice, the ET’s conclusion was that the passing of time would be equally prejudicial to both parties. Where the burden of proof rests on an applicant, that is not in theory an unacceptable prima facie approach. If, however, the position in an individual case differs, it will be because the facts of the issue, either as evident from the material before the court or tribunal, or as led by the parties, show that that is so. In the present case, however, Southwark led no evidence on this issue, but merely relied on submission. Yet it might have been significant had Southwark chosen to rely on evidence from Mr Keith Brown that after all these years he had no memory of events. Also relevant in such a situation is what a person in his position could have said about normal procedure, and also the important question of whether the criterion of a CIPFA qualification was merely desirable or essential at the relevant time. It often occurs that a manager who can not remember specific details of events can speak to normal procedures. Could Mr Brown give any evidence at all on such matters, and if not, why not? Mr Brown gave no evidence at all, neither on the extension of time issue, nor on the merits. That was so even though a letter from Southwark to Mr Afolabi dated 21 December 1999 in which Southwark set out the findings of its grievance procedure panel stated that, despite the time which had elapsed, it had given “very careful consideration to the evidence available to it” and had concluded on the basis of “the information provided by Mr Bassett, which is largely consistent with the responses to correspondence provided by Mr Brown” that there was no evidence to support Mr Afolabi’s complaint. The letter continued:

“The panel heard a dissenting view from Mr Dusu, who along with Mr Bassett had interviewed for these posts. He asserted that the panel originally recommended to appoint you at SO2 but that this was reversed by the Head of Finance [Mr Brown]. This is clearly contradictory to Mr Bassett and Mr Brown’s evidence.”

In my judgment, in addition to the meticulous consideration which Peter Gibson LJ has given to this point in para 34 above, the essence of the matter is that if Southwark wanted to say that lack of documents or lack of memory by Mr Bassett or Mr Brown prejudiced their case in a way which would not have occurred if the complaint had been made within three months, then they should have provided adequate material or evidence to make that point good. In its absence I think that for this court to interfere with the ET’s view that there was equal prejudice would be an interference with the exercise of their judgment in a matter of the balancing of scales.

I would also like to associate myself in particular with the observations of Peter Gibson LJ in para 35 and of Sedley LJ in para 55 above.

I agree with both judgments on this issue. Mr Afolabi was invited to interview for a SO2 position when it was known that he lacked a CIPFA qualification which it is now said, but without that allegation being established by evidence, was essential to such an appointment. Nor was he told of that fact at the interview itself. He was, by common accord, the most successful of a short list of six candidates interviewed, in the words of the ET “the best and most experienced candidate” (para 12.4). This description of him was despite the fact that the other interviewee to receive an offer of a job (also at scale 6), Mr Welsh, did have a CIPFA qualification. Mr Afolabi was recommended for grade SO2 at least by Mr Dusu, which in itself is inconsistent with a CIPFA qualification being an essential requirement.

In these circumstances Mr Fletcher’s submission that the ET erred in failing to make any previous finding of discrimination and difference in race from which racial discrimination could be inferred, an argument raised neither in Southwark’s notice of appeal to the EAT nor in their notice of appeal to this court, as Sedley LJ has pointed out, is merely opportunistic. It ignores the absence of any response to Mr Afolabi’s crucial question in his questionnaire and the absence of any acceptable evidence from Southwark providing an explanation for the oddity of the circumstances of the interview. I agree that, unless the tribunal accepted Southwark’s explanation that a CIPFA qualification was essential, there was a shared understanding that it was open to the tribunal to infer that Mr Afolabi had been treated less favourably than a white person would have been treated in the same circumstances and that this discrimination was on racial grounds.

On this issue I have the misfortune to disagree with Peter Gibson LJ.

The question seems to me to come down to this: bearing in mind Mr Afolabi’s statement of complaint and his further and better particulars, how much of the history following April 1999 comes fairly within the definition of issue (iv) which formed part of the directions handed down at an interlocutory hearing of the ET on 15 October 1999? That issue was stated in these terms:

“Whether the Respondent unlawfully discriminated against the Applicant when it failed to re-grade his post of Departmental Auditor to HAY Grade 10, on or about April 1999.

Comparators Mr W Jordan, Mr [sic, in fact Ms] K Draper and Mr D Coombes.”

Peter Gibson LJ has set out the material on this issue in a way which I am grateful to adopt, with some additional comment. Of particular significance, it seems to me, are the following facts.

In his application form dated 24 February 1999 Mr Afolabi complained that since January 1997 “to date” and ongoing he was not being properly remunerated in his position as a Departmental Auditor. He said that Southwark’s newly introduced pay scheme, a reference as I understand it to Southwark’s adoption in July 1998 of the Hay grading system, should have protected him against the discrimination he was alleging, but had not done so. He complained that his remuneration was “2 grades lower” compared with his three comparators. That complaint was made against the background, as we now know it to be, that in August 1998 he had raised an internal grievance to similar effect and that in November 1998 he had appealed against his Hay grading of grade 8, arguing that he should be grade 10. His two grievances were amalgamated.

It was only following Mr Afolabi’s application of late February 1999 that Southwark consulted Hay in March 1999 about the grading of Mr Afolabi and his three comparators (see the ET’s paras 8/9). Hay’s response (dated 22 March 1999) was to say that, in effect, Mr Afolabi and the two comparators in Education and Leisure, ie Mr Jordan and Ms Draper, should all prima facie be graded at grade 9. Southwark accepted that Mr Afolabi should be moved up to grade 9, but did nothing to implement that decision; and it also regraded Mr Jordan’s and Ms Draper’s jobs to grade 9 as part of a reorganisation of the audit function of Education and Leisure. However, in May 1999 Ms Draper was appointed to a grade 11 post and in October 1999 Mr Jordan was restored to grade 10.

On 15 October 1999 issue (iv) above was defined. To what at that stage was April 1999 a reference? It is not clear. Mr Afolabi was still on grade 8, even though Hay had recommended that he be treated as grade 9 together with Mr Jordan and Ms Draper. However, Mr Afolabi still knew nothing of that. He appears to have still regarded his comparators as being on grade 10. Subject to Ms Draper’s promotion to grade 11, that is perhaps as much as he knew of the matter.

On 12 November 1999, when Mr Afolabi served his further and better particulars, the position had not changed. Southwark had still not reported on their internal grievance procedure arising out of Mr Afolabi’s complaints of discrimination in his remuneration and of his Hay grade 8. His particulars drew attention inter alia to the following matters: that in or about July 1997 and March 1998 he had challenged Southwark’s view that other departmental auditors, unlike the Social Services post which he held, had responsibility for staff supervision and therefore merited higher grading; that he had been told that those other posts were excessively graded and that the situation would be corrected; but that in about September 1998 he had been told that his post would be graded on the Hay scale at grade 8, whereas his comparators were to be on grade 10. As to that question, the findings of the ET were to be that Ms Jordan’s and Mr Draper’s jobs “had no subordinates or management responsibilities and that their posts should have had the same score as the Applicant’s” (para 14.2.3).

It was only on 21 December 1999 that Mr Afolabi was informed by letter of the outcome of the internal grievance procedures which he had invoked. A copy of that letter has been made available to us. There is a suggestion in it that in April 1999, following “an appeal”, a rise in grade from Hay grade 8 to Hay grade 9 was agreed, but that Mr Afolabi “remained aggrieved”. However, the ET’s findings are clearly to the effect that when in March 1999 Hay itself recommended grade 9 to Southwark as the appropriate grading for Mr Afolabi’s position, “no steps were taken to inform the Applicant or in any way to implement this decision (as was the respondent’s normal policy) until conclusion of the grievance procedure on 21 December 1999” (para 14.2.2). While rejecting Mr Afolabi’s allegation of racial discrimination, the letter went on to express considerable discomfort at the quality of management’s response to his complaints. The letter concluded:

“It is the panel’s view that the Department apologises to you for the less than satisfactory way in which your management, support and guidance has been provided over the past two years, and the consequent difficulties in reaching an early satisfactory conclusion with regard to your grading and remuneration, and that it confirms your substantive grade as being Hay 9, from April 1998 – with appropriate annual progression from that date, and that you receive a backdated honorarium payment equivalent to an appropriate point on Hay 10 for the period since Graham Brown’s departure from the Council in January 1998.”

The honorarium would appear to reflect the fact that Mr Afolabi had been undertaking additional duties in the absence of his line manager. In essence I would read that outcome as being a more or less substantial victory on Mr Afolabi’s claim to have been graded at above grade 8: he achieved a substantive grade 9, and an effective grade 10. The remaining question is that upon which the letter rejected Mr Afolabi’s complaint, namely the question of racial discrimination.

In that connection, Southwark’s appeal is centred on the complaint that the ET was effectively trying a new and different complaint, of which Southwark did not have proper notice, when it concluded (in para 14.2.5) that the promotion of Ms Draper in May 1999 to a new post at grade 11 and the October 1999 regrading of Mr Jordan back to grade 10 was “a sham designed to preserve the grading of Mr Jordan and Ms Draper at Grade 10 at the least”. The tribunal continued:

“14.2.6

The inescapable inference that we draw from these primary facts is that there was a culture of prejudice against the Applicant on the grounds of his race (it being accepted that he was an excellent employee) and in favour of white employees within the Respondent’s organisation which manifested itself in this case over a period from at least November 1998 to at least December 1999.”

In between the hearings of the ET and the EAT, Mr MacInnes, the chairman of the ET, wrote comments for the EAT on the affirmation of Dawn Martin in which she had complained that Southwark’s representatives had been taken by surprise when on the last day of the hearing the ET had shown interest in what had occurred after April 1999 (see paras 44/46 above in the judgment of Peter Gibson LJ). In effect Mr MacInnes concluded that the ET may have misunderstood the position in thinking that the ringfencing of the new post to which Ms Draper was appointed in May 1999 was not a normal procedure. The EAT concluded (at para 32):

“In our judgment there was material upon which the Employment Tribunal could base its conclusion, and draw inferences of racial discrimination as a result of the facts which it found relating to the Applicant and Mr Jordan. That finding and the finding that the restructuring was “a sham” in our view survive the Chairman’s qualification about Ms Draper, that her ringfencing may have been explained by reasons other than racial discrimination.”

In his judgment allowing Southwark’s appeal on this issue, Peter Gibson LJ identifies two concerns which lead him to that conclusion. The first is that the ET was answering a new and different complaint from that identified in Mr Afolabi’s pleadings and in issue (iv), and that such a case raised quite different considerations which Southwark should have had a proper opportunity to address (paras 47/50). The second, more briefly, is that the lay members of the ET may not have shared Mr MacInnes’ view, expressed in his comments to the EAT, that the same conclusion on racial discrimination would have been reached even in the absence of Ms Draper’s case by way of a comparator (para 51).

As for the second reason, I read Mr MacInnes’ comments as being expressed as Chairman on behalf of the tribunal as a whole. He speaks repeatedly in the plural as “we”.

As for the first reason, I find nothing in the material as of 15 October 1999 to explain the focus of issue (iv) as being “on or about April 1999”, albeit the definition of issues on that occasion was agreed at a hearing attended on behalf of Mr Afolabi by his union representative. Looking at the papers as a whole, the only matter which can be dated to April 1999 in Mr Afolabi’s mind derives from his subsequent further and better particulars which say that the Hay grading exercise of September 1998 was due to come into effect as of 1 April 1999, but in the event did not. In these circumstances and seeing that Mr Afolabi’s pleaded case makes it plain that he is complaining of racial discrimination in the matter of his grading as from 1997 to date and continuing, and that the dating of issue (iv) is imprecise, viz on or about April 1999, I am unable to place any particular emphasis on that timing. Issue (iv) also talks about the alleged discrimination having occurred when Southwark “failed to regrade his post…to HAY Grade 10”. It is plain that the reason why Mr Afolabi said that he should be regraded at grade 10 was that his three named comparators were so graded. So, his essential case was that his post as Departmental Auditor in Social Services should have received the same grading as his comparators’ posts, and that the reason it did not was because of racial discrimination. Whether at grade 9 or grade 10, as to which see above, Mr Afolabi’s case as to the proper grading of his post and those of at any rate two of his comparators, namely Mr Jordan and Ms Draper, was accepted by Hay, by Southwark and by the ET. I do not see any crucial difference in this respect between grade 9 and grade 10. Mr Afolabi pleaded his case at grade 10, because his comparator posts were graded at grade 10: but it seems to me that a case at grade 10 includes a case at grade 9. Therefore Mr Afolabi made good the primary facts on which he based his essential case, as defined in issue (iv).

What then of the inference of racial discrimination? Upon analysis, the ET derived its inference from five main factors: (1) from Southwark’s failure to inform Mr Afolabi of its acceptance of Hay’s recommendation that his post ought to have been graded at grade 9; (2) from Southwark’s acceptance that Mr Jordan’s and Ms Draper’s grades ought also to have been at the same grade, grade 9 and their regrading of them at grade 9 – yet Southwark still did not act at that point so as to do justice to Mr Afolabi; (3) from Southwark’s regrading of Mr Jordan’s post back to grade 10 in October 1999; (4) from Southwark’s ringfencing of a new position for Ms Draper at grade 11 in May 1999; and (5) from Southwark’s continued failure to implement Mr Afolabi’s new grading until in effect being forced to do so by the need to come to a conclusion and to inform him of their conclusion as to his grievances. In the light of Mr MacInnes’ comments, (4) can drop out of the picture. As to (1) and (2), these were on any view events which took place “on or about April 1999”; and (5) is merely the end of the internal story so far as Mr Afolabi’s grievance and Southwark’s reaction to it, including their continuing failure in respect of (1), were concerned. It is in my judgment impossible to say that Mr Afolabi’s case did not embrace in this respect the period down to 21 December 1999. As to (3), this did not occur very long after April 1999, and in any event it occurred in the period between 22 March 1999 when Hay wrote to Southwark with its conclusions and 21 December 1999, when Southwark first sought to make amends to Mr Afolabi in response to his grievance. Again, I do not think it is possible to view this matter as divorced from Mr Afolabi’s essential case as defined by issue (iv).

In these circumstances, Southwark’s behaviour in connection with Mr Afolabi and his two relevant comparators with regard to Hay grading demanded explanation. At most there was an adequate explanation in the case of Ms Draper. It was impossible to stop the clock at any particular time before December 1999. The period down to December 1999 was the evidential working out of the grievance which Mr Afolabi had put in train internally in 1998 and in his application to the ET in February 1999. I do not consider that Southwark ought to have been caught by surprise; and whether they were or not, they had an opportunity, if only late in the day, to provide their explanations. They had a further opportunity of persuading the EAT that they were dealt with unfairly, but failed. They have had another opportunity in this court, but have failed to persuade me.

In agreement therefore with Sedley LJ I would also dismiss Southwark’s appeal on the third issue.

For the reasons given by Mr Fletcher in paragraphs nine, ten, 13 and 14 of his written submissions dated 21^st January we regretfully accept that the correct hourly rate for the respondent as a litigant in person is £9.25;

Subject thereto to the reasons given by the respondent, we accept the respondent’s costs claims including (a) the estimate of the number of hours payment for which he is claiming and the taxi fare back to his home on the second day of the hearing. If the parties disagree with the mathematics, they should apply to me promptly. The order, I will direct, will not be drawn up for seven days.