[1985] ICR 827, [1985] IRLR 426

R v Commission for Racial Equality, ex parte Westminster City Council

Court of Appeal (Civil Division)

[1985] ICR 827, [1985] IRLR 426

HEARING-DATES: 17 May 1985

17 May 1985

CATCHWORDS:
Race Relations

Direct discrimination

Racial grounds

Discrimination by employers -- promotion, transfer or training

Enforcement by CRE -- issue of non-discrimination notice Race Relations Act 1976 sections: 1(1)(a), 4(2)(b), 58

HEADNOTE:
Until August 1979, vacancies for refuse collectors for Westminster City Council's Northern area were filled by relatives or friends of existing refuse staff and were not advertised internally or externally. As all the existing staff were white, this had the effect of excluding blacks. In August 1979, however, a staffing procedure was negotiated, and in April 1980, Mr Edward, a black road sweeper employed by the Council applied for a post as refuse collector. Mr Edward was interviewed by the Council's Assistant Director of Cleansing, Mr Rolfe, and was given a temporary appointment to start on 12.5.80. Before that, however, a meeting took place between Mr Rolfe and the branch representatives of the union concerned, the National Union of Public Employees. The NUPE representatives objected to Mr Edward's appointment, ostensibly on grounds that he had a poor attendance record. There were still no black employees employed as refuse collectors in the Northern area and Mr Rolfe believed that the reason for the objection was Mr Edward's colour and that industrial action might take place if the appointment was not withdrawn. The appointment was then withdrawn. 

The CRE initiated a formal investigation and on 2.3.83 issued a non-discrimination notice against the Council. The notice set out the factual basis on which it was made as follows: "Whereas, in the course of a formal investigation, the Commission for Racial Equality ('the Commission') have become satisfied that you committed an act to which s 58(2) of the Race Relations Act 1976 ('the Act') applies, namely, that on or about 12.5.80 you by Mr A G Rolfe (Assistant Director of Cleansing) in contravention of s 4(2)(b) of the Act read together with s 1(1)(a) discriminated against Mr Charles Edward by withdrawing from him an appointment as a temporary refuse collector in the Council's Northern area and are of the opinion that further such acts are likely to be committed unless changes are made in your practices or other arrangements as respects recruitment to employment in refuse collection in the Council's Northern area." At the same time, a non-discrimination notice was served on the Chairman of the NUPE branch.

The Council applied for judicial review, seeking an order of certiorari to quash the non-discrimination notice on the ground that the CRE's finding of fact was perverse or a finding which the Commission could not reasonably make, in that Mr Rolfe withdrew the appointment (i) because this was in accordance with the selection procedure agreement as Mr Edwards should not have received the offer by reason of his work record, and (ii) in order not to jeopardize the collective agreement.

The Council also argued in the alternative that the finding that Mr Rolfe acted on racial grounds was in breach of the rules of natural justice and/or in breach of its duty to act fairly.

The High Court, Queen's Bench Division (Woolf J) dismissed the application [1984] IRLR 230.

The Court of Appeal held:

The High Court judge had correctly found that the Commission for Racial Equality had not acted perversely or unreasonably in issuing a non-dscrimination notice recording that the Council, by its Assistant Director of Cleansing, had discriminated against a black employee contrary to s 4(2)8b) and s 1(1)(a) of the Race Relations Act by withdrawing his appointment as a temporary refuse collector in its Northern area. There was material on which the CRE on the information before them could have been satisfied that the Assistant Director of Cleansing, Mr Rolfe, had discriminated by bowing to the pressure of other workmen and by treating the employee in a way in which he would not have done had he been white.

It was established fact that a number of refuse collectors protested about the appointment of the black employee, Mr Edward, to Mr Rolfe. Although they said they were objecting to Mr Edward's bad attendance record, Mr Rolfe did not believe this and realised that the real reason was because Mr Edward was black. Although Mr Rolfe believed that Mr Edward had a bad attendance record, he did not discuss how bad this was with the objectors, nor how it compared with the records of others transferred, nor was the attendance record weighed against other relevant criteria in the agreed selection procedure. Moreover, it was established that Mr Rolfe believed that if the appointment went ahead, industrial action might take place and that he capitulated to the demands of the objectors so as not to jeopardize the collective agreement.

On those facts, viewed against the background of the case as a whole, the CRE could have draw one or more of the following inferences: that Mr Rolfe's belief that the real ground for objection was racial obliged him to evaluate the ostensible objection with care, and his failure to examine the strength of the objection that Mr Edward had a bad attendance record and to compare his record with the records of the other men or to weigh it in the balance against the other relevant factors showed that he was acting in a way in which he would not have acted had Mr Edward been white; that had Mr Edward been white, the objection about a bad attendance record would certainly have been examined and discussed; and that Mr Rolfe withdrew the appointment not because he was afraid of industrial action based on a breach of the agreement, but because he was afraid of such action based on a racially-motivated objection to the transfer.

Per Sir Denys Buckley (dissenting):

On the facts stated by Mr Rolfe and accepted by the CRE, it was not open to them to hold that Mr Rolfe withdrew the offer to Mr Edward on racial grounds.

Under s 1(1)(a), there can be no relevant discrimination unless the alleged discriminatory act was done on racial grounds. The grounds relied on must constitute an activating cause of the alleged discrimination. Although they need not be the sole activating cause, at least one significant cause must be shown to have been a racial ground.

In the present case, it did not follow from the fact that there would have been no occasion for Mr Rolfe's decision to withdraw the appointment if Mr Edward had not been black that Mr Rolfe's ground for making the decision was Mr Edward's colour. Nor did the fact that Mr Rolfe felt constrained to accede to the protestors' request give rise to an inference that his reason for so acceding must have been the same as the protestors' reason for making it. The burden of Mr Rolfe's undisputed evidence was that he himself was not actuated by any racial reason, but only by the fear of jeopardising the collective agreement. In the face of that evidence, it was not open to the CRE to infer as a fact that Mr Rolfe was at least in part actuated by consideration of Mr Edward's colour.

The Court of Appeal further held:

It could not be held that the finding that the Council's Assistant Director of Cleansing had acted on racial grounds involved a breach of the rules of natural justice or a breach of the CRE's duty to act fairly. Contrary to the argument on behalf of the appellants that Mr Rolfe and the Council should have been given more precise warning that Mr Rolfe's explanations had not been accepted, the contemporary documents left no doubt that the Council appreciated that the Commission did not accept that the reason for the withdrawal of Mr Edward's appointment was his attendance record. Although the precise allegation could have been formulated more clearly, the CRE did not infringe the rule of natural justice that a person should be made aware of any charge laid against him and should be given a fair opportunity for correcting or contradicting it. Nor was there an obligation on the CRE to give Mr Rolfe a separate notice apart from that given to the Council and a personal opportunity to respond to the allegations which involved him. Mr Rolfe was at all material times in the employ of the Council and it was not suggested that he
was unaware of the correspondence between the CRE and the Council.

Nor could it be held that the CRE's notice, given pursuant to s 58(5) of the Act specifying the substance of the evidence on which the Commission relied, did not adequately comply with s 58(5) because it did not specify "the grounds" on which the Commission was contemplating issuing a notice, but merely cited some of the evidence. Although the notice could have been worded more precisely, the information provided adequate "grounds" for the purpose of s 58(5).

CASES-REF-TO:

Wiseman v Borneman (1971) AC 297
Re Pergamon Press Ltd (1971) Ch 388
CRE v Amari Plastics [1982] IRLR 252

COUNSEL:
For the Appellants: Mr AAM Irvine and Miss EA Slade; For the Respondents: Mr E Tabachnik QC and Mr ACE Lynch

PANEL: Neill LJ, Sir Denys Buckley, Sir Roualeyn Cumming-Bruce

JUDGMENTBY-1: NEILL LJ

JUDGMENT-1:
NEILL LJ: This is an appeal by the Westminster City Council (the Council) against the order of Mr Justice Woolf made on 17.2.84 whereby he dismissed an application by the Council for an order of certiorari to quash a non-discrimination notice issued by the Commission for Racial Equality (the Commission) under s 58(2) of the Race Relations Act 1976 (the 1976 Act).

The notice was dated 2.3.83 and recorded that in the course of a formal investigation the Commission had become satisfied that on or about 12.5.80 the Council, by Mr AG Rolfe, the Assistant Director of Cleansing, had discriminated against an employee called Mr Charles Edward, in contravention of s 4(2)(b) of the 1976 Act when read together with s 1(1)(a).

It was said that the Council had discriminated against Mr Edward by withdrawing from him an appointment as a temporary refuse collector in the Council's Northern area.

It will be convenient if I start by referring to the relevant legislation.

The 1976 Act came into force in 1977. It replaced the Race Relations Act 1965 and 1968. Part 1 of the Act contains definitions of the discrimination to which the Act applies. S 1(1) is in these terms: 'A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -- (a) on racial grounds he treats that other less favourably than he treats or would treat other persons'. It is unnecessary to read para (b) of that subsection.

By s 3(1) of the Act it is provided that:

'Unless the context otherwise requires -- "racial grounds" means any of the following grounds; namely colour, race, nationality or ethnic or national origins.

Part 2 of the Act is concerned with discrimination in the employment field. S 4(2) is in these terms:

'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 -- (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.'

Part 7 of the Act contains provisions relating to the establishment of and the duties of the Commission.

Under s 43(1) the duties of the Commission include the duty to work towards the elimination of discrimination and the duty to promote equality of opportunity and good relations between persons of different racial groups generally.

S 48 provides:

'(1) Without prejudice to their general power to do anything requisite for the performance of their duties under s 43(1), the Commission may if they think fit, and shall if required by the Secretary of State, conduct a formal investigation for any purpose connected with the carrying out of those duties . . . (3) The Commission may nominate one or more Commissioners, with or without one or more additional Commissioners, to conduct a formal investigation on their behalf, and may delegate any of their functions in relation to the investigation to the persons so nominated.'

Part 8 of the Act is concerned with enforcement.

S 54 gives a complainant the right to present a complaint to an Industrial Tribunal that another person has committed an act of discrimination against him which is unlawful by virtue of Part 2.

S 58 is concerned with non-discrimination notices.

S 58 provides as follows:

'If in the course of a formal investigation [which is defined by s 78 as "an investigation under s 48"] the Commission become satisfied that a person is committing, or has committed, any [unlawful discriminatory act], the Commission may in the prescribed manner serve on him a notice in the prescribed form ("a non-discrimination notice") requiring him -- (a) not to commit any such acts; and (b) where compliance with para (a) involves changes in any of his practices or other arrangements -- (i) to inform the Commission that he has effected those changes and what those changes are; and (ii) to take such steps as may be reasonably required by the notice for the purpose of affording that information to other persons concerned.'

I should also refer to s 58(5) which is in these terms:

'The Commission shall not serve a non-discrimination notice in respect of any person unless they have first -- (a) given him notice that they are minded to issue a non-discrimination notice in his case, specifying the grounds on which they contemplate doing so; and (b) offered him an opportunity of making oral or written representations in the matter (or both oral and written representations if he thinks fit) within a period of not less than 28 days specified in the notice; and (c) taken account of any representations so made by him.'

The events giving rise to the present proceedings

Having set out the relevant provisions of the legislation, I come now to the events which have given rise to the present proceedings.

One of the departments into which the Council divided for the purpose of carrying out its functions as a local authority is the Cleansing Department. The Cleansing Department is responsible for street cleaning and refuse collection. For this purpose the City of Westminster is divided into a Northern area and a Southern area. The Northern area includes the North Wharf Depot. At all material times Mr Rolfe was employed by the Council as the Assistant Director of Cleansing.

In February 1961 Mr Charles Edward entered the employment of the Council. He worked in the Northern area as a roadsweeper, being mainly employed at the North Wharf Depot.

After about 10 years he became a leading roadsweeper. In April 1980, however, it was decided that Mr Edward should be given the opportunity to become a temporary refuse collector in the Northern area. This temporary appointment was to be for the summer months.

It is common ground that employment as a refuse collector is to be preferred to employment as a roadsweeper.

At that time there were rather more than 200 roadsweepers in the Northern area, of whom about a third were black. Of the rather larger number of refuse collectors in the Northern area, however, all but one were white.

On Tuesday 6.5.80 Mr Edward was informed in writing that he was to become a temporary refuse collector starting on Monday 12 May. On Thursday 8 May, however, a number of white refuse collectors, including two shop stewards, went to see Mr Rolfe to discuss Mr Edward's appointment. Following that visit, Mr Edward's appointment as a temporary refuse collector in the Northern area was withdrawn.

Mr Rolfe sent for Mr Edward and told him that he could either revert to his job as a leading roadsweeper or become a temporary refuse collector at Gatliffe Road in the Southern area. Mr Edward decided to return to his job as a sweeper because the depot at Gatliffe Road was a substantial distance from his home.

In due course the fact that Mr Edward's appointment as a temporary refuse collector in the Northern area had been withdrawn came to the attention of the Commission.

On 18.8.80 the Commission wrote to the Council, and on 3 October a meeting took place at which the Council presented a written statement (44). On 23.10.80 an investigating officer wrote on behalf of the Commission to inform the Council that after considering the matters drawn to their attention at the meeting and the documents produced the nominated Commissioners had decided to embark on a formal investigation.

Later, in 1981, for technical reasons, the Commission instituted a second investigation, but it was agreed that the oral evidence given and the submissions made during the first investigation should be treated as evidence and submissions for the purpose of the second investigation.

It is to these investigations that I must now turn.

The formal investigations by the Commission

The formal investigations began with the letter of 23.10.80, although it is to be noted that in reaching their conclusions the Commission took account of what they had been told at the meeting on 3 October.

During the next two years, the Commissioners and the two investigating officers made a number of enquiries and conducted a number of interviews.

From the documents which we have seen it is apparent that Mr Edward was interviewed on 30.1.81 (98), and that Mr Rolfe was interviewed on 12.11.80 and 5.12.80 (76) and on 18.2.81 (105).

Several other employees of the Council also were seen by the investigating officers -- Mr Meredith (83), Mr Carter (88), Mr Felgate (92), Mr Jones (109), and Mr Whitlock (112).

Notes of these interviews were taken by the investigating officers. I shall have to refer to the notes of the interviews with Mr Rolfe a little later.


On 22.1.82 the Commission wrote to the Council (25) to notify them that the evidence so far collected indicated that the Council might have contravened the 1976 Act by discriminating against Mr Edward.

This was a notice given pursuant to s 58(5)(a) of the Act and it specified the substance of the evidence on which the Commission relied. The Council were given an opportunity to make representations. The Council took this opportunity, and on 21.1.83 they sent their written representations to the Commission in a document signed by the City Solicitor (37).

In this document the Council dealt paragraph by paragraph with the statements contained in the notice of 22.1.82 (25).

On 3.3.83, however, the Commission served on the Council a non-discrimination notice dated 2 March. In the covering letter (41) the Legal Director of the Commission stated that the Commission had considered the representations put forward by the Council but had nevertheless decided to issue a non-discrimination notice.

The opening paragraph of the notice was in these terms (42):

'Whereas, in the course of a formal investigation, the Commission . . . have become satisfied that you committed an act to which s 58(2) of the Race Relations Act 1976 applies, namely, that on or about 12.5.80 you by Mr AG Rolfe (Assistant Director of Cleansing) in contravention of s 4(2)(b) of the Act read together with s 1(1)(a) discriminated against Mr Charles Edward by withdrawing from him an appointment as a temporary refuse collector in the Council's Northern area and are of the opinion that further such acts are likely to be committed unless changes are made in your practices or other arrangements as respects recruitment to employment in refuse collection in the Council's Northern area.'

The subsequent proceedings

Following the service of the non-discrimination notice, the Council decided to institute two sets of proceedings. In the first place, on 8.4.83 they gave notice of an appeal to an Industrial Tribunal against the issue of the notice. This appeal was entered pursuant to s 59 of the 1976 Act which provides as follows:

'Not later than six weeks after a non-discrimination notice is served on any person he may appeal against any requirement of the notice -- (a) to an Industrial Tribunal, so far as the requirement relates to acts which are within the jurisdiction of the Tribunal; . . . (2) Where the Tribunal . . . considers a requirement in respect of which an appeal is brought under subsection (1) to be unreasonable because it is based on an incorrect finding of fact or for any other reason, the Tribunal . . . shall quash the requirement. (3) On quashing a requirement under subsection 82) the Tribunal . . . may direct that the non-discrimination notice shall be treated as if, in place of the requirement quashed, it had contained a requirement in terms specified in the direction.'

In the second place, on 27.5.83, the Council gave a notice of application to apply for judicial review (127). Leave to apply was subsequently given, and the matter came before Mr Justice Woolf as a substantive motion on 6 and 7.2.84. By that time the parties had agreed (in July or August 1983: see 114) that the appeal to the Industrial Tribunal should be adjourned until the result of the proceedings in the High Court were known, and the terms of the original notice of application to the High Court had been amended.

In its final form, as amended on 3.2.84, the notice sought an order of certiorari on two grounds (numbered 3 and 4; see 129):

'(3) The finding of fact by the Commission . . . that on or about 12.5.80 the applicant by one AG Rolfe (Assistant Director of Cleansing) in contravention of Race Relations Act 1976 s 4(2)(b) read together with s 1(1)(a) discriminated against one Charles Edward by withdrawing from him an appointment as a temporary refuse collector in the applicant's Northern area was perverse and/or was a finding which the Commission . . . could not reasonably make in that the said Rolfe withdrew the said appointment (i) because in accordance with a collective agreement entitled "Staffing procedure, selection procedure" the said Edward should not have received an offer of the said appointment by reason of his work record and (ii) in order not to jeopardize the said collective agreement.

(4) If (which is denied) the Commission . . . found that the said Rolfe acted on racial grounds in withdrawing from the said Edward an appointment as a temporary refuse collector in the applicant's Northern area, it so found in breach of the rules of natural justice and/or in breach of its duty to act fairly in that it failed to inform the said Rolfe at any of the three meetings at which he was interviewed that it disbelieved the reason he had given for his withdrawal of the said appointment to the said Edward and that it was considering finding that he so acted on racial grounds, such finding not only being a finding of unlawful conduct but also being a finding of such a character that it does great injury to his reputation.'

The hearing of the motion

The motion came on for hearing before Mr Justice Woolf on 6 February. The judge had before him a number of affidavits to which were exhibited some of the documents which had passed between the parties at an earlier stage, and also the notes of the meetings and interviews which had been made by the investigating officers.

In addition the learned judge was provided with an affidavit (112) sworn by Mr Rolfe on 1.2.84 which contained some additional evidence from Mr Rolfe which had not been before the Commissioners.

The primary case for the Council before the judge (as indeed it was before us) was that there was no evidence to support the finding that Mr Rolfe had discriminated against Mr Edward on racial grounds and that it was most unjust that Mr Rolfe should be named in the non-discrimination notice when it was common ground that he himself was in no way racially prejudiced.

Mr Irvine accepted that the Council's employees who had approached Mr Rolfe on 8.5.80 were motivated by racial prejudice, but he submitted that Mr Rolfe's withdrawal of the appointment was not an act of discrimination, but was for the perfectly valid reason that the appointment would not have been justified in the light of Mr Edward's work record and would have infringed and jeopardized the collective agreement reached with the union.

In this context Mr Irvine placed great reliance on the fact that Mr Laws had conceded on behalf of the Commission that the Commission accepted what Mr Rolfe had said.

One of the matters which has given me concern on this appeal has been to try to understand the precise meaning and extent of this concession by counsel for the Commission. Indeed, the uncertainty about it had led me to reflect that in order to avoid the possibility of confusion, it would often be wise, if concessions of any importance are made, that they should be recorded in writing at the time.

However that may be, in the present case the concession that the Commission accepted the truth of what Mr Rolfe said might have had a number of different meanings: (a) that the Commission accepted the truth of all Mr Rolfe had said, including what he had said to Mr Edward himself on 8.5.80 and in his affidavit of 1.2.84, and also what could be inferred about his statements from the written representations dated 21.1.83; (b) as in (a), but excluding anything in the affidavit of 1.2.84 which was not before the nominated Commissioners; (c) that the Commission accepted the truth of what Mr Rolfe was recorded as having said at the interviews on 12.11.80 and 5.12.80 and 18.2.81, and also at the meeting on 3.10.80.

It seems to me sufficiently plain from the learned judge's judgment that the concession was a limited concession on the lines of (c).

It is true that at page 5E of the transcript the judge said that there was 'no dispute as to the facts', but this statement has to be read in the light of the earlier passage at page 3A-C where, in deciding not to deal with the second ground for relief relied upon by the Council, the judge said this:

'This second ground is an alternative ground because it is based on the assumption that the Commission could only make the finding which they did that Mr Rolfe was guilty of discrimination if they rejected the account of events which he had given to the officers of the Commission during their investigations.

I am glad to be able to say at the outset of this judgment that I will not be concerned with the second alternative ground because the Commission do not suggest that they have rejected the information which Mr Rolfe gave them.'

Moreover, there is support for the view that the concession was a limited one in the simple fact that if the Commission had unreservedly accepted the truth of what Mr Rolfe said to Mr Edward on 8.5.80, namely that the appointment had been withdrawn 'because of his bad record' (see page 100, paragraph 20), neither the Commission nor the judge could have reached the conclusion which they did.

It is therefore necessary to turn to the evidence which was before the Commission in February and March 1983.

Whether the decision of the Commission was perverse or unreasonable.

By that non-discrimination notice dated 2.3.83 the Commission expressed themselves as being satisfied that the Council by Mr Rolfe had discriminated against Mr Edward.

At this stage the court is not concerned with any issues of fact which may have to be examined hereafter before an Industrial Tribunal. We are only concerned to see whether there was any sufficient material on which the Commission could reasonably be satisfied that discrimination had taken place.

Mr Tabachnik for the Commission relied on a number of matters in support of the non-discrimination notice.

I propose to consider these matters as shortly as possible, and I shall try to avoid expressing any view which might influence any tribunal of fact which has to examine the matter hereafter.

The main matters referred to by Mr Tabachnik were as follows:

(1) That Mr Rolfe appreciated that the objections which had been raised by the other employees were racially based.

(2) That Mr Edward's appointment had been considered quite carefully before it was made and had been discussed with several people, including Mr Kennedy (the secretary of the branch of NUPE), Mr Felgate and Mr Meredith. At the time when the appointment was being discussed, the management team must have been aware of the collective agreement of what Mr Edward's work record was.

(3) That at the meeting on Thursday 8.5.80 there was no detailed discussion of Mr Edward's record or any comparison made with the records of other people who were to be appointed temporary refuse collectors.

(4) That an examination would have shown that Mr Edward's attendance record was better than those of some of the other men and in addition that he was a man who had worked for the Council for nearly 20 years.

(5) That according to the Selection Procedure (126) the criteria for positions in the refuse collection service were stated as being 'suitability, attendance and personal records, medical fitness and service.' Some of these criteria were discretionary rather than absolute. Thus a poor attendance record was a factor to be considered, but it did not disqualify automatically, as would have a height requirement had there been one.

(6) That the Selection Procedure applied in the Southern area as well as in the Northern area, and accordingly on a purely objective basis Mr Edward would have been disqualified from becoming a temporary refuse collector at Gatliffe Road if he were to be disqualified for the North Wharf Depot.

(7) That in none of the statements made by Mr Rolfe before he swore his affidavit on 1.2.84 was there an unequivocal statement that the ground was the work record.

I have carefully considered the notes of the interviews with Mr Rolfe and in particular paragraphs 9-20 of the note dated 20.2.81. I have also tried to give full weight to the concession made by Mr Laws as to the truth of what Mr Rolfe had told the investigating officers.

Without expressing any view as to what Mr Rolfe intended to convey or as to what he might have said had he made a written statement in his own words, I have come to the conclusion that there was material on which the Commission on the information before them could have been satisfied that Mr Rolfe had discriminated against Mr Edward by bowing to the pressure of the other workmen and by treating Mr Edward in a way in which he would not have done had he been white.

As the matter is of importance, I think I should explain my reasons for this conclusion in a little detail.

If one accepts the truth of all the statements attributed to Mr Rolfe in paragraphs 9 to 20 of the record of the interview on 18.2.81, the following facts appear to be established:

(1) That on 7 or 8.5.80 a number of refuse collectors at North Wharf heard of Mr Edward's appointment as a temporary refuse collector and decided to protest.

(2) That on 8.5.80 these refuse collectors went to see Mr Rolfe and told him that they were objecting to Mr Edward's appointment because he had a bad attendance record. One of these objectors was Mr Kennedy (who had agreed to the appointment at the time of the meeting in April: see paragraph 4 on page 105).

(3) That Mr Rolfe did not believe the reason given by the objectors and realised that the real reason was because Mr Edward was black. He put this point to the objectors but they denied the accusation.

(4) That Mr Rolfe believed (mistakenly, as I understand the matter) that Mr Edward did indeed have a bad attendance record. At the meeting with the objectors, however, Mr Rolfe did not discuss how bad this record was nor how it compared with the records of the other men who were being transferred, nor did he weigh the bad attendance record against the other relevant factors referred to in paragraph 3(h) of the August 1979 agreement.

(5) That Mr Rolfe believed that if the appointment of Mr Edward went ahead, industrial action might take place. He therefore 'capitulated' to the demands of the objectors so as not to jeopardize the agreement reached with the union.

(6) That later on 8 May Mr Rolfe offered Mr Edward a refuse collection job at Gatliffe Road.

The question arises whether on these facts (viewed against the background of the case as a whole) it was open to the Commission to conclude that when Mr Rolfe withdrew the appointment as a temporary refuse collector at North Wharf he discriminated against Mr Edward by treating him on account of his colour less favourably than he was treating other people or would have treated other people: see ss 1 and 3 of the 1976 Act.

In my view an affirmative answer should be given to this question. Thus I consider that the Commission could have drawn one or more of the following inferences:

(1) That Mr Rolfe's belief that the real ground for objection was racial obliged him to evaluate the ostensible objection with care, and his failure to examine the strength of the objection that Mr Edward had a bad attendance record and to compare his record with the records of the other men or to weigh it in the balance against the other relevant factors showed that he was acting in a way in which he would not have acted had Mr Edward been white.

(2) That had Mr Edward been white, the objection about a bad attendance record would certainly have been examined and discussed.

(3) That Mr Rolfe withdrew the appointment not because he was afraid of industrial action based on a clear breach, or even a prima facie breach, of the 1979 agreement, but because he was afraid of such action based on a racially-motivated objection to the transfer.

For these reasons I would uphold the decision of the judge on the first ground.

The second ground

It will be remembered that the second ground relied on in the Amended Notice of Application included the assertion that a finding that Mr Rolfe acted on racial grounds would have involved a breach of the rules of natural justice in that the Commission 'failed to inform the said Rolfe at any of the three meetings at which he was interviewed that it disbelieved the reason he had given for his withdrawal of the said appointment to the said Edward'. (130) I have supplied the emphasis.

It is also be noted that the reason for the withdrawal of the appointment given by Mr Rolfe to Mr Edward, according to both Mr Edward (100, paragraph 20) and Mr Rolfe (122, line 9) was 'because of his bad record'.

In his judgment, however, the learned judge, in referring to the second ground, dealt with the matter on the basis that the breach was the failure 'to inform Rolfe at any of the three meetings at which he was interviewed that it disbelieved the reason he had given for his withdrawal of the appointment of Edward . . .' (1H). here again I have supplied the emphasis.

In this context the distinction between 'to' and 'of' is of importance.

It would appear therefore that the judge's decision not to concern himself with the second ground was based on a misreading of the amended application. As I have already mentioned, the limited concession made by the Commission was not directed to the reason given by Mr Rolfe to Mr Edward, but only to the evidence given by MrRolfe to the investigating officers.

In these circumstances it seems clear that the judge failed to deal with a material part of the Council's application.

At the conclusion of the first hearing before us in March, Mr Irvine indicated that if it appeared that the second ground might be material to the result of the appeal, he would like to have an opportunity of arguing it in detail. Accordingly, the appeal was listed for further argument on Tuesday 2 April.

On this second occasion Mr Irvine expanded the second ground of appeal so as to embrace both a general argument that the Commission had acted in contravention of the rules of natural justice, and a further argument that the Commission had failed to comply with the provisions of the 1976 Act.

Mr Irvine's submissions were on the following lines:

(1) That in order to act fairly the Commission were under a duty (a) to explain to the Council and to Mr Rolfe what they conceived to be his reasons for the withdrawal of Mr Edward's appointment; or (b) to inform Mr Rolfe that they disbelieved him; or (c) to put to Mr Rolfe in terms that he should not have yielded to the threat of industrial action.

(2) That the Commission acted unfairly towards Mr Rolfe in giving him the impression that they accepted the statements made to them at the interviews while at the same time (unknown to him) treating him as a discriminator and attributing to him a line of reasoning which he was never given an opportunity to refute.

(3) That before naming Mr Rolfe in a non-discrimination notice, the Commission should have given him a separate opportunity to make representations, and should have afforded to him as an individual all the protection included in the statutory code.

Mr Irvine drew our attention to the vicarious liability provision in s 32(1) of the 1976 Act, and to the fact that it was probable that Mr Rolfe's name would be included in any report published in pursuance of s 51(2).

(4) That the letter which was sent to the Council on 22.1.82 did not adequately comply with s 58(5) of the 1976 Act because it did not specify 'the grounds' on which the Commission was contemplating issuing a notice, but merely cited some of the evidence.

Mr Irvine submitted that 'the grounds' should have included not only the facts on which the Commission relied, but also the process of reasoning which had led them to their preliminary conclusion that discrimination had occurred. He pointed, by way of contrast, to the words 'finding of fact' in s 59(2).

In support of these submissions, Mr Irvine drew our attention to some authorities on natural justice, including Wiseman v Borneman (1971) AC 297; Re Pergamon Press Ltd (1971) Ch 388; and CRE v Amari Plastics [1982] IRLR 252.

It seems to me, however, that it is sufficient to refer to a short passage in the judgment of Lord Denning, MR, in the Pergamon case, to identify the principles on which Mr Irvine wishes to rely. At page 400 Lord Denning, in relation to inspectors appointed to investigate a company under s 165 of the Companies Act 1948, said: 'Before they condemn or criticise a man, they must give him a fair opportunity for correcting or contradicting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.'

I propose to start by considering the submission founded on the construction of s 58(5) and then examine later the other submissions, which can be looked at together.

The word 'grounds' as used in s 58(5) of the 1976 Act is not defined elsewhere in the Act, nor were we referred to any other provision in the Act in which this word is to be found. The word must therefore be construed in its context.

It is to be noted that, whereas the form of a non-discrimination notice under s 58(2) is prescribed by Regulation 6 of the Race Relations (Formal Investigations) Regulations 1977, there is no prescribed form for a s 58(5) notice.

Mr Tabachnik argued on behalf of the Commission that in order to comply with s 58(5) it was sufficient for the notice merely to identify the act or acts which were considered to be discriminatory. Accordingly, he submitted that the letter of 22.11.82 would have been a valid notice even if it had done no more than state 'that on or about 12.5.80 Westminster City Council by Mr AG Rolfe . . . discriminated against Mr Charles Edward by withdrawing from him an appointment as a temporary refuse collector in the Council's Northern area' and had identified the two relevant sections of the Act.

For my part I am unable to accept that so brief a recital of the facts would have been sufficient in the present case to constitute proper 'grounds' under s 58(5). In some cases, the facts may be so clear and simple that merely to state them may provide adequate 'grounds' to enable the person concerned to make oral or written representations in the matter. In the present case I consider that more was required.

But I am further satisfied that, though with the benefit of hindsight one can see that the letter of 22.1.82 could have been worded more precisely, the information contained in the nine paragraphs which were described as 'the substance of the evidence' provided adequate 'grounds' for the purpose of s 58(5).

Accordingly in my view the letter of 22.11.82 was a valid notice within s 58(5).

I turn therefore to the submissions which involved alleged breaches of the rules of natural justice.

Mr Irvine argued that Mr Rolfe and the Council should have been given some more precise warning that Mr Rolfe's explanations had not been accepted and that he should have been challenged more directly about his reasons for withdrawing the appointment.

But, having read the contemporary documents, that is the letter of 22.1.82, the written representations of 21.1.83, and also the important letter to the senior investigating officer dated 12.1.83 in answer to his letter of 15.12.81, I am left in no doubt that the Council appreciated that the Commission did not accept that the reason for the withdrawal was Mr Edward's attendance record.

In the letter of 12.1.82, Mr Witty wrote, in relation to the matters set out under paragraph (a) of the terms of reference: 'The specific allegation about the withdrawal of an appointment from Mr Charles Edward is incorrect. The appointment was withdrawn because it was contrary to a negotiated agreement with the union that no sweeper with a bad attendance record would be engaged as a refuse collector.'

In my view, though no doubt the precise allegation could have been formulated rather more clearly, the Commission did not infringe the rule of natural justice that a person should be made aware of any charge laid against him and should be given a fair opportunity for correcting or contradicting it.

There remains the question whether Mr Rolfe should have received a separate notice apart from that given to the Council, and should have been given a personal opportunity as an individual to respond to the allegations which involved him and his good name.

I have come to the conclusion, however, that in the present case there was no obligation on the Commission to deal separately with Mr Rolfe. He was at all material times in the employment of the Council, he was at the original meeting on 3.10.80, and it has not been suggested that he was not aware at each stage of the correspondence passing between the Commission and the Council.

Furthermore, it has not been contended that Mr Rolfe was prejudiced in any way by the fact that he did not receive a separate communication from the Commission.

There may be cases where an individual whose conduct is in question and whose name is likely to appear in a report should be given an opportunity separate from that given to his employer to respond to and to deal with any allegations which involve him. Indeed, the wording of s 31(2) underlines the separate potential liability of the employer and the employee. But in the present case I do not consider that the Commission were in any way at fault in not making a separate charge against Mr Rolfe or in not serving a separate notice upon him.

Accordingly, for the reasons which I have endeavoured to outline, I for my part would dismiss this appeal.

JUDGMENTBY-2: SIR ROUALEYN CUMMING-BRUCE

JUDGMENT-2:
SIR ROUALEYN CUMMING-BRUCE: I have read the judgment of Lord Justice Neill. I agree with it and have nothing further to add.

DISSENTBY-1: SIR DENYS BUCKLEY

DISSENT-JDGMT-1:
SIR DENYS BUCKLEY: This appeal turns on the proper interpretation of the words 'on racial grounds' in s 1(1)(a) of the Race Relations Act 1976 and upon their application to the facts of the case. There is no dispute about the primary facts. In respect of these Mr Rolfe's evidence was wholly accepted. Before Mr Justice Woolf counsel for the Commission for Racial Equality conceded that the Commission accepted the truth of all that Mr Rolfe is recorded to have told them at the various interviews he had with them, the counsel in this court agreed that the concession
was to that effect.

Under s 1(1)(a) there can be no relevant discrimination unless the alleged discriminatory act was done 'on racial grounds'.The grounds relied on must, in my judgment, constitute an activating cause of the alleged discrimination. They need not, I think be the sole activating cause. A discriminator must discriminate for mixed motives, that is, on a combination of distinct grounds, but at least one significant cause must be shown to have been a racial ground. So the question for decision is, in my opinion, whether the Commission for Racial Equality, in its quasi-judicial capacity, was justified in holding upon the evidence which they accepted as true that Mr Edward's colour was a cause of Mr Rolfe's withdrawal of the offer to employ Mr Edward as a dustman. There can be no doubt that the representations made to Mr Rolfe by some of Mr Edward's fellow employees were a cause of Mr Rolfe's action. Had those representations not been made, the offer would not have been withdrawn. Mr Rolfe suspected that those representations were made as a result of racial prejudice on the part of the objectors on account of Mr Edward's colour and the Commission evidently considered that that was the case. But it does not follow from the fact that there would have been no occasion for Mr Rolfe's decision, if Mr Edward had not been black, that Mr Rolfe's ground for making the decision was Mr Edward's colour.

The learned judge expressed the view that Mr Rolfe knew that the objections which were being made were being made on the grounds of colour and that in that case the Commission, on the material before them, were entitled to take the view that by yielding to the objections he was in effect making the objections his own (Transcript page 15 at A). It is not apparent from the non-discrimination notice in this case, (Bundle, page 42) nor from any other part of the documentation in the case, by what reasoning the Commission reached the conclusion that the Westminster City Council, by Mr Rolfe, acted on racial grounds in contravention of s 4(2)(b) of the Act read with s 1 (1)(a); but if, as seems possible, the Commission reached that conclusion on some such ground as that indicated by the learned judge in the passage in his judgment just referred to, that reasoning must, as it seems to me, have been based on an inference from those primary facts which the Commission accepted as true, for there is no direct evidence that Mr Rolfe acted on racial grounds in that he withdrew the offer of employment as a dustman from Mr Edward
because the objectors' representations resulted from racial prejudice.

In the course of written submissions to the Commission dated 21.1.83 (Bundle, page 37) the appellants said:

'Mr Rolfe withdrew the relief dustman appointment because he had reason to suspect that it would lead to industrial action at North Wharf Road. The cause of this action would have been an alleged breach of a recent employer/union agreement that summer relief workers would only be employed whose good attendance and other records could be demonstrated. Mr Rolfe at all material times was aware that Mr Edward's record was poor both for attendance and for rudeness to his inspector. . . . At the meeting with the shop stewards Mr Rolfe specifically challenged the stewards with the suggestion that they were motivated by racial considerations. That suggestion was wholly denied and the stewards were adamant that the sole consideration was alleged breach of a negotiated employment agreement. Mr Rolfe's subsequent actions took place within this limited context.'

Mr Rolfe attended an interview with the Commission's investigating officer on 18.2.81, a note of which contains the following record (Exhibit GB9):

'(9) Mr Rolfe stated that somehow the officials must have found out that Mr Edward was coming on to refuse, because a few days before Mr Edward was due to start, Messrs Showell, Kennedy, Payne, Simmons and, he thought, one or two other dustmen (although he could not recall their names) arrived at his office, without warning, protesting at Mr Edward's appointment.

(10) Mr Rolfe said that their argument against Mr Edward was that he had a bad attendance record and that a dustman named Alan Carter had recently been sacked for a bad attendance record. Mr Rolfe stated that he did not believe this was the reason and that the real reason was because Mr Edward was black. He said that he had told them this and accused them outright of colour prejudice but they had denied this was the reason.

(12) He said that he felt that the root cause was Mr Edward's colour but had to admit both at the time and now that Mr Edward had a bad attendance record. He did not remember details of the bad record being discussed, just an assertion that his record was bad. He confirmed that Mr Edward's record was not "on the table" at the meeting.

(13) Mr Rolfe reminded us that paragraph 3(h) of the agreement reached with the Branch in August 1979 regarding the recruitment of dustment, states that "all applicants for positions with the refuse collection service will be considered in terms of suitability, attendance and present records, medical fitness and service".

(14) Mr Rolfe went on that it was implicit in the protest made to him that day that industrial action might take place if Mr Edward was not stopped. He said that he did not wish for the whole of the agreement painfully reached over the course of 18 months to be jeopardized for the sake of Mr Edward. Therefore he reluctantly capitulated to the demands of the Branch officials and agreed to stop Mr Edward from becoming a refuse collector at North Wharf Road.'

These statements, so far as they are factual, must be accepted for present purposes to be true.

It must therefore, in my view, be taken to have been affirmatively established in the course of the investigation: (1) that the argument of the protestors was that Edward should not be employed as a dustman because he had a bad record, (2) that the protestors expressly denied to Rolfe that their protest was made by reason of racial prejudice, (3) that it was true that Edward had a bad record or, at the least, that Rolfe then believed that this was the case, (4) that Rolfe genuinely considered that it was implicit in the protest that industrial action might follow if the offer to Edward of employment as a dustman was not withdrawn, and (5) that Rolfe acted as he did in withdrawing the offer because he wanted to avoid jeopardizing the agreement relating to the recruitment of dustmen.

It is true that these findings, if I amy so call them, are not necessarily inconsistent with Mr Rolfe having a collateral motive for acting as he did, namely Mr Edward's colour. The Commission, however, expressly did not dispute that Mr Rolfe was not and is not a racialist, which I take to mean that his action was not prompted in any degree by a racial prejudice of his own. The learned judge said in the course of his judgment (Transcript, page 3H) that, having carefully studied the material available to the Commission, he found nothing in that material which indicates that Mr Rolfe is other than a person who strongly disapproves of discrimination and has attempted to do what he can to bring it to an end when he had found it being practised by those who worked under him. The contrary has not been suggested here. Mr Justice Woolf, however, was of the opinion already referred to, that the Commission were entitled on the material before them to take the view that by yielding to the objections Mr Rolfe was in effect making the objections his own. If the Commission did in fact take that view, they were, as it seems to me,
again purporting to draw an inference from the primary facts of the case.

A judicial or quasi-judicial Tribunal which has to find facts can of course legitimately draw inferences of fact from primary facts established in evidence or accepted as true. In doing so, the Tribunal can have regard to the whole of the evidence before it and can draw inferences which it considers to be justified by the balalnce of probabilities displayed by the established facts. It cannot, however, draw any inference which contradicts or conflicts with a primary fact which the Tribunal finds or accepts to be true.

If, by his reference to Mr Rolfe 'making the protestors' objections his own' Mr Justice Woolf means, as I think he must have done, that by yielding to the objections he made the protestors' motivation his own, I find difficulty in following his reasoning. the fact that Mr Rolfe felt constrained to accede to the protestors' request does not in my mind at all give rise to an inference that Mr Rolfe's reason for acceding to the request must have been the same as the protestors' reason for making it. Moreover, it seems to me that such a conclusion conflicts with Mr Rolfe's own evidence that his reason for reluctantly capitulating to the demands of the protestors was that he wished to avoid jeopardising the agreement about recuitment procedures. The burden of Mr Rolfe's evidence was precisely that he himself was not actuated by any racial reason, but only by the fear of jeopardizing the agreement. In the face of that evidence, which is undisputed, it was not, in my judgment, open to the Commission to infer as a fact that Mr Rolfe was at least in part actuated by consideration of Mr Edward's colour.

That this was Mr Rolfe's case is reinforced by what he said in an affidavit filed in the present proceedings in February 1984, after the date of the non-discrimination notice which the appellants seek to have quashed. In paragraph 6 of the affidavit Mr Rolfe said (Bundle, page 122):

'The whole thrust of the respondent's approach was to assert that those objecting to Mr Edward's appointment on behalf of the union were prompted by racial considerations and the objection taken by them based on Mr Edward's work record was a cloak for their real reasons. I always acknowledged that this was no doubt so, but emphasised that the reason I upheld their objection was not because of any racialist motives which I held in common with them but was because it could not be said that his work record did not merit his appointment (see "GB8" Appendix A and "GB9" paragraphs 12 and 13). I explained to Mr Edward that the reason why his appointment had been withdrawn was because of his bad record (see "GB8" paragraph 20). I did not want to jeopardize the agreement in 1979 which I had fought so hard for, or provoke industrial action by employing a dustman whom I should not have appointed in accordance with the agreement. It was never ever suggested to me that my explanation for my action was other than true and I do not believe that anyone on behalf of the respondent thought that I was speaking anything other than the truth.'

Mr Irvine for the Council has stressed that the concession discussed earlier was made in the light of that paragraph, which consequently has a bearing on the nature of the concession, but as that evidence was not before the Commission, I do not rely on it for my conclusion.

The fact that Mr Edward was offered alternative employment as a dustman in another part of the City of Westminster does not, in my opinion, indicate that Mr Rolfe must have acted, in part at least, on racial grounds. He may well have thought that the dustmen employed in that area (where a number of coloured dustmen were employed) would not in fact object to working with Mr Edward notwithstanding his record and colour. Nor, in my judgment, for reasons which I have already stated, was the Commission entitled to infer (in contradiction, as I think, of Mr Rolfe's evidence set out in paragraphs 9 to 14 of Exhibit GB9 which I have read, and more particularly paragraph 14) from any of the surrounding circumstances that Mr Rolfe had any actuating notice for withdrawing Mr Edward's appointment other than to avoid jeopardizing the recruitment
agreement.

For these reasons I reach the conclusion that on the facts stated by Mr Rolfe and accepted by the Commission it was not open to the Commission to hold that Mr Rolfe, and through him the appellants, withdrew the offer to Mr Edward of employment as a dustman in the Council's Northern area on racial grounds within the meaning of s 1(1)(a) of the Act.

I would allow this appeal on that ground. On this basis the second ground relied on in the Amended Notice of Application, which postulates that the Commission disbelieved Mr Rolfe's evidence in some respect but failed to indicate to him that they were minded so to do and to give him an opportunity of dealing with the point, does not arise. Mr Justice Woolf clearly did not understand that that was the Commission's position. In the course of his judgment he said: 'I am glad to be able to say at the outset of this judgment that I will not be concerned with the second alternative ground because the Commission do not suggest that they have rejected the information which Mr Rolfe gave them', and later in the judgment he said: 'There is no dispute as to the facts.' There is no respondent's notice asserting that the learned judge misunderstood the extent of any concession about the truth of Mr Rolfe's evidence or otherwise dealing with this point. This appeal has proceeded upon the basis that there was no dispute about the accuracy of Mr Rolfe's evidence on factual matters.

In case, however, I am wrong in my view of the meaning or the legal effect of the concession, I should express my opinion upon the second ground relied on, and I do so on the assumption that the Commission was not precluded from drawing the inference that Mr Rolfe acted on racial grounds, if the circumstances warranted such an inference.

Although no non-dscrimination notice has been served on Mr Rolfe, he is named in the notice served on the Council, and it is his personal conduct which is relied on for asserting racial discrimination in this case.That criticism of his conduct is, in my view, a grave one, and is liable to affect his professional position adversely, particularly in the light of his position as the Council's Assistant Director of Cleansing having under his control a considerable number of coloured employees of the Council. The case, in my judgment, falls within the principles discussed in Re Pergamon Press Ltd (1971) 1 Ch 388 (see particularly page 400 at A and E). Indeed, Mr Tabachnik very properly concedes that the Commission owed a duty to act fairly. He says, however, that ss 49(4) and 58(5) of the Act provide a statutory framework for securing fair play, and that the court should not require anything further. But it should be noted that s 58(5)(a), (b) and (c) applies only to a person in respect of whom a non-discrimination notice has been served, and consequently does not, I apprehend, apply to Mr Rolfe, upon whom no notice has been served. But this does not, I think, much affect the case, for, whether under s 58 or upon the general principles of natural justice the party whose conduct is criticised must, if the criticism is sufficiently grave, have a fair opportunity of dealing with the criticism. Did Mr Rolfe have such an
opportunity?

All the three occasions when Mr Rolfe was interviewed in the course of the Commission's formal investigation took place before their letter to the Council dated 22.11.82 (Bundle, page 25) in which what is described as the substance of the evidence was set out and the Commission stated that it was minded to conclude that there had been discrimination. I can feel no doubt that Mr Rolfe saw that letter. The contrary has not been suggested. If, as I am prepared to assume, Mr Rolfe at that time conceived: (a) that he had clearly stated to the Commission at the interview on 18.2.81 that his sole ground for withdrawing Mr Edward's appointment as a dustman was his desire to avoid industrial action based on an alleged failure to observe the terms of the recruitment agreement, and (b) that his evidence to that effect had been believed, the letter of 22.11.82 must have brought home to him either that the Commission had not understood his evidence in that way or that they had disbelieved him. There was, I think, ample opportunity for Mr Rolfe, or the Council on his behalf, to take this up with the Commission before the non-discrimination notice was served. In my judgment, the letter gave adequate information of the nature of the grounds upon which the Commission was minded to serve a non-discrimination notice and of the allegedly discriminatory act with which it proposed to charge the Council. The Council was expressly offered by the letter an opportunity of making representations, and they did so in writing on 21.1.83 (Bundle,
page 37). I feel no doubt that Mr Rolfe, as the officer of the Council most directly concerned with the relevant events, had a hand in the preparation of those written representations. In any case, he received, in my view, adequate notice of what the Commission might say about the matter in any notice they might serve and upon what factual basis they might proceed. In these circumstances I do not consider that the Commission was guilty of any breach of natural justice.

DISPOSITION:
Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:
The City Solicitor, Westminster City Council; Bindman & Partner