National and Local Government Officers Association

WALTHAM

FOREST
BRANCH
01-531 8096
01-527 5544 x 4479 & 4485

NALG0 OFFICE TOWN HALL (EAST ANNEXE) BRANCH WALTHAMSTOW. LONDON, E17 4JD.

All communications, to be addressed to the Honorary Secretary

Ed7/YW3

27th June 1986

Chief Education Officer,

Dear Mr. Smith, Industrial Tribunal Decision.

The decision of an industrial tribunal in the case brought by Mr. E. Matharu appears to bring into question the probity of some Senior Officers of the Council and most particularly in your department.

Obviously the serious concern and lack of trust which will be engendered amongst our members and especially those in your department require that we ask you for a statement of your intentions in this matter.

Yours sincerely,

ALAN GRIFFITHS,
Branch Secretary,

I C Smith, BSc, Chief Education Officer,
Municipal Offices, High Road, Leyton, London E10 5QJ 01-527 5544 Ext.

Ext 5015

This matter is being dealt with by M

Please quote ref ICS/CES
Your ref.ED7/YW3

3rd July, 1986.

Dear Mr. Griffiths,

Industrial Tribunal Decision

Thank you for your letter. I can well understand your concern for your members. I am not yet clear what action the Council propose to take, but I have seen comments in the press attributed to Councillor Gerrard to the effect that the normal procedures should be followed. No doubt you would also feel that the Council should deal with the matter through its agreed procedures.

I will of course let you know of any initiatives by this Department which may affect your members, but you may find it helpful to know that the Borough Solicitor is handling the Council's formal response to the Industrial Tribunal decision.

Yours sincerely,

Chief Education Officer

Mr. A. Griffiths,

Branch Secretary,

N.A.L.G.O.,

NALGO Office,

Town Hall (East Annexe),

Walthamstow,

London,

E17.

National and Local Government Officers Association

WALTHAM

FOREST

BRANCH
0l-531 8396

01-527 5544 x 4479 & 4485

All communication to be addressed to the Honorary Secretary

24th July 1986

Councillor N Gerrard Walthamstow Town Hall Forest Road Walthamstow E17 4JP

Dear Councillor Gerrard,
RE: INDUSTRIAL TRIBUNAL: MR E MATHURA

Copies of the decision in this case were sent to Waltham Forest Council on 20th June 1986.

The conclusions of the Tribunal were very clear: several Senior Officers were found guilty of racial discrimination and others were found to have behaved in a highly irregular manner.

We have written to the Chief Education Officer but as yet no action appears to have been taken.

In view of the Labour Councils Manifesto policies in relation to race, we find this inaction both surprising and deplorable.

We call upon the Council to take immediate disciplinary action against all Officers involved. If such action is not forthcoming we shall be consulting our members with a view to industrial action and will be communicating our views to the press.

Yours sincerely,

ALAN GRIFFITHS
BRANCH SECRETARY
NALGO

Mr A Griffiths
Branch Secretary
NALGO Office
Town Hall (East Annexe)
London E17

Dear Mr Griffiths Industrial Tribunal Decision

I refer to your letter of 2nd July 1986 concerning the Industrial Tribunal case involving Mr E Mathura. You comment that the decision "appears to question the actions of staff" in my department. Having recently read the report and findings of the Tribunal, I do not reach the same conclusion. Actions taken by my staff in respect of this case were undertaken in the normal performance of their duties as auditors.

I do not consider, therefore, that there is any need for me to make a statement.

Yours sincerely

M W Chambers

Director of Finance

London Borough of Waltham Forest

L. G. Knox, Chief Executive Town Hall, Walthamstow, London E17 4JF
01-527 5544 Ext.4201

Please quote ref. CE/em

To: ALL MEMBERS OF THE COUNCIL

8th August, 1986

Dear Member.

INDUSTRIAL TRIBUNAL : MR. E, MATHURA AHD THE LONDON BOROUGH OF WALTHAM FOREST

A number of members have asked me for a copy of the decision of the Industrial Tribunal in this case. In the circumstances I have considered it appropriate to circulate the document to all members of the Council.

Yours sincerely,

Chief Executive

Secretary: Alan Griffiths
Administrator: Michelle Weavers

Our Ref Ed7/YW3

nalgo

Town Hall (East Annexe)
Forest Road,
Walthamstow,
LONDON E17 4JD.

01-531 8096 (24 hour)
01-527 5544 ext 4485 or

ext 4479

Councillor E. Edworthy, Labour Group.

24th September 1986

Dear Councillor Edworthy, Industrial Tribunal, Errol Mathura Case.

The Joint Unions meeting discussed this issue on Wednesday 24th September, The 15 union representatives present expressed their anger and dismay that despite verbal assurances at the last meeting with the Labour Group and written assurances from the leader of the council that action would be taken against the two officers involved (according to laid down disciplinary proceedings) nothing appears to have happened.

The Joint Unions Committee deplores this lack of visible action by the council and gives notice that unless action is taken along the lines notified to us previously by ten days time all unions will withdraw from all industrial relations and negotiations with the council

Yours sincerely,

ALAN GRIFFITHS, Secretary, Joint Unions Committee.

Copies to all Labour Group

SEVENTEEN months ago, in the early hours of the morning of July 2 1981, four innocent members of a Pakistani family were murdered. They were victims of a vicious arson attack on their house in Belgrave Road, Walthamstow. North-east London.

The police have failed to find those responsible for the murders of Mrs Parveen Khan and her three children--son Kamran, 11, daughter Aqsa, 10. and son Imran, two, who perished asleep in their beds.

Let alone catch the culprits, the police have so far been unable to even discover a motive. There is no doubt in their minds, however, that the fire was started deliberately. Petrol was used, leaving the victims no chance of escape. One of the Metropolitan Police's forensic experts told that the inquest into the deaths that the burning was in accordance with a washing-up liquid bottle being put into the letter box and squeezed. The sprays went 6ft into the, hall.

The Walthamstow coroner, Dr Harold Price, recording a verdict of unlawful killing, told the inquest, "These unfortunate people did not suffer because they were overcome by fumes before being burnt." But the pain and suffering of the only survivor of the fire, Mrs Khan's husband, Mohammed Yunis Khan, is far from over.

Mr Khan survived by jumping, apparently head first, through an upstairs bedroom window, but not before he was badly burned. He suffered severe injuries from his fall and. spent months in hospital.

In his first newspaper interview a couple of days after the incident Mr Khan told the Guardian that he was convinced his family had been victims of a racialist attack. Nothing yet }us changed his mind. Mr Khan is very bitter that after many months of investigation, during which the police interviewed more than 1,350 people, they have failed to bring those responsible to justice. " They seem to have given up " he says.

When I met him recently, Mr Khan said, fighting back tears, " If only I knew the answer why it had. to be my family. We had no enemies and were well liked both in the street and the area."

Since the tragedy he Has lost his job because of the recession, and feels that there may be some truth in the view expressed by his close friends that there may be a political cover-up;

"They have completely ignored me and my plight," he says.

"" Mr Eric Deakins, his MP, is equally critical of the police. Although Mr Deakins, disagrees that any cover-up is political, he suspects that there may be a cover-up of police incompetence.

Mr Deakins says that the number of detectives on the case -- originally 44 -- has been reduced substantially. Although this is confirmed by the police, they refuse to disclose the number of detectives still involved in the investigation.

Mr Deakins fears that the police have given up. This is denied by Detective Chief Superintendent Colin Ashdown, who has led the investigation. Mr Deakins points out that the murder inquiry headquarters were moved from the local area to the divisional police headquarters in Chigwell some time ago. He sees this as proof of the lack of of police interest.

"This is not a case of one murder but four murders. I do not think that after such' a short time the police are justified in winding down their investigation," Mr Deakins says. Running down of the ' inquiries will only create anxieties for his Asian constituents who fear this type of attack may well be, repeated, "particularly if the perpetrators feel they can get away."

Mr Ashdown claimed that the police had been forced to transfer their inquiry HQ to Chigwell because of continued picketing of the Leytonstone police station from " pressure groups." This claim has not been made in any of the correspondence between Mr Deakins and New Scotland Yard.

In March, Mr Deakins was informed by Lord Belstead, the Home Office minister, that there was a "fresh line of inquiry" concerning the case, but none of the people concerned have heard any more. Mr Khan alleges, " The police never tell me anything." His only source of information so far has been his MP.

"Until something develops there is no point in bothering Mr Khan regularly and remind him of the tragedy " Mr Ashdown says.

The lack of progress is not doing community relations any good in an otherwise multicultural and multiracial area. Until the Khan murder serious racial problems were unknown in the area. Walthamstow was the first GLC borough without a predominant black population to elect its first black councillor, Mr Paul Boateng.

But the situation seems to have taken a turn for worse just before and after the incident at the Khan home. The number of attacks on Asians and their property in the area has increased sharply.

The police's attitude at the time of the inquest was that the Khan massacre had no racial undertones. Mr Ashdown, told the inquest that " it was not a random racial attack." The Special Branch had assisted him with information on racists and racist groups, he said, but there was no active cell in the area.

Mr Deakins and others point out that there is a pub close to the Khan home which was used regularly by National Front sympathisers at one time. The police say that they are keeping an open mind about the racial element of the arson attack.

It has certainly convinced the borough's Asian community, who have been fitting locking metal plate' covers to their letter boxes. Their houses and businesses are a constant target of attack. Bricks are thrown through windows, and occupiers subjected to racial abuse.

Mr Deakins is so alarmed at the lack of any conclusive and satisfactory reply from the police and the Home Office that he is considering raising the matter in the Commons. This will be his last resort.

Detective Chief Superintendent Ashdown says: "I am most concerned that four people died and we have failed to find those responsible. But we are doing everything possible."

Waltham Forest Guardian December 28, 1982

Black chairmen protest The black chairman and his deputy on Waltham Forest Council's race relations committee have resigned in protest at the sacking of another black chairman, Amarjit Devgun. Mr Devgun was sacked as chairman of the technical services commission (committee?) earlier this week after voting against the ruling Labour group. Last night the Black Labour Party Forum was meeting to put the councillors' case. Rates in the Waltham Forest area are likely to go up by 57 per cent, the Labour group's leader Neil Gerrard has warned. He blamed the increase on cuts in Government's grants.

London Daily News February 27, 1987.

Click to return to 1987

NOTE: THE name Winwood has sometimes been spelt Windwood. I have changed it to the spelling without a d. JEB

The following reminds me of Dennis Healey's political law, when you are in a hole s1987 digging. Quite clearly there was political manoeuvring going on in this council department. Quite clearly Mathura was the victim. Quite clearly this proved to be spectacularly unfair. If the council had had any sense (and not been dominated by middle class people who were either council officers or thought like senior council officers) this thing could have been sorted out quickly and relatively cheaply. As it was the Mathura affair and its aftermath the boycott by the black councillors, dominated most of the rest of the council's term of office along with the 62% rate increase. Then it rumbled on for years with allegations that there were different standards for Labour council candidates who were black, and that Labour was unfairly failing to select sufficient black candidates for council elections.

However at the time I think I was told that this was the Tories' problem and nothing to do with us. I think I probably kept completely out of it and left it up to others to make the running.

REPORT OF COMMITTEE OF INQUIRY RE: INDUSTRIAL TRIBUNAL DECISION

Summary

1. To consider the report of the Committee of Inquiry, its findings and recommendations, and the further action required.

Matters for Consideration

2.0 The Personnel Strategy Committee is invited to consider the findings and recommendations. :

2.1 The report contains an adverse finding against one officer employed in the Youth & Community Education Branch. This officer will now be the subject of disciplinary action in accordance with the Council's procedures. It would be advisable not to discuss the detail of this matter in the view of the prospects of an appeal arising should the disciplinary charges be found proved.

2.3 Some of the recommendations will require further reports to be submitted to this Committee. These reports will be submitted as soon as possible.

2.4 An important issue to be resolved by the Committee is the question of the release of the report and other documentation to the public, other parties and individuals.

2.5 It is suggested that, as soon as possible after the Committee has decided whether or not to accept the findings and recommendations, a press conference is called, and a press statement is issued.

2.6 It is further proposed that the reports and documents be released as shown below:

2.7 A further major issue concerns the position of Mr E. Mathura. The Committee of Inquiry questioned Mr Mathura during the course of its business. It was not within its terms of reference to consider the possible re-engagement of

Recommendations

3.0 The Committee is recommended;

(i) to adopt the findings and recommendations of the Committee of Inquiry as set out in paras 1 4.10 of its report;

(ii) to agree that a press conference be called as soon as possible, and an appropriate press statement be issued;

(iii) copies of the report of the Committee of Inquiry be provided as soon as possible to the Royal Borough Kingston-upon-Thames, the General Secretary of the Federated Unions of Managerial & Professional Officers, the Regional Officer of the NUT, the Branch Secretary of NALGO;

(iv) copies of the transcript of their own evidence be provided to individual witnesses;

(v) full transcript of proceedings be provided to the Royal Borough of Kingston-upon-Thames, and the General Secretary of the Federated Unions of Managerial & Professional Officers.

COMMITTEE OF INQUIRY

into matters arising from the Industrial Tribunal Decision of 20th June, 1986 regarding a complaint of racial discrimination.

Not for publication by virtue of paragraphs i of Part 1 of Schedule 12A of the Local Government Act 1972

15th December, 1986.

CONTENTS

Membership

Paragraph

Part 1 (cont'd)

Membership

Councillor T.V. Wheeler Chair
Councillor C.J. Dunn
Councillor N.F. Gerrard
Councillor G.A. King
Councillor. T.C. Messenger

Observers:

E.G. Digman Director of Personnel & Administration Royal Borough of Kingston-Upon-Thames (not present on 6th October)

M. Walker Assistant Borough Solicitor, Royal Borough of Kingston-upon-Thames (present only on 6th October)

S. Eldridge _ Solicitor (Messrs Hempsons)
representing Federated Unions of Managerial &
Professional Officers (FUMPO) on behalf of
Mr. R.L. Gan.
(Not present on 22nd November)

Counsel A.C.E. Lynch of the Chambers of Mr James Goudie, Q.C.
(Not present on 22nd November, 1986).

Council Officers Serving the Committee

COMMITTEE OF INQUIRY PART I SUMMARY OF FINDINGS AND RECOMMENDATIONS ,

The Committee has agreed unanimously, except where indicated otherwise, as follows:

1. PREAMBLE

1.01. The Industrial Tribunal was entitled to come to the conclusions it reached on the basis of the evidence presented to it. (Councillors King and Messenger dissenting).

1.02. However, with the benefit of the additional evidence we have been able to examine, it is clear that there are factual errors in some of the statements contained in the Tribunal's decisions.

1.03. There is no reason to believe that Mr Mathura was anything other than genuine in bringing his complaint to an Industrial Tribunal.

2.0 MAIN FINDINGS RELATING TO INDUSTRIAL TRIBUNAL DECISIONS

2.1. Racial discrimination against Mr. Mathura

The Committee found no evidence that the actions of the Authority or its officers with regard to Mr. Mathura were motivated by racial prejudice. However, the Committee was of the view that consideration should be given to reviewing the structure of management within the Youth & Community Section of the Community & Further Education Branch of the Education Department.

2.2. Allegation that Mr Gan, Senior Education Officer, threatened Mr Mathura to "hound him out of his prestigious job".

There is a conflict of evidence as to whether the particular phrase "I will hound you out of your prestigious job" was used. The Committee cannot resolve that conflict, but does find as a fact that Mr Gan himself accepted that he used words which the Committee find could be perceived as a threat. (Councillors King and Messenger dissenting) .

3.0 OTHER FINDINGS RELATING TO THE INDUSTRIAL TRIBUNAL DECISIONS 3.1. Comparators

(a) Mr. Jones. We agreed with the Industrial Tribunal that Mr Jones was not a valid comparator.

(b) Mr Coogan. The evidence we have examined indicated that the Industrial Tribunal did not have the full facts before it about Mr Coogan's case. In fact, what they did have before them was very inadequate. Therefore paragraph 15 of the , Industrial Tribunal decision is factually incorrect. In fact Mr Gan dismissed Mr Coogan, and Mr. Coogan subsequently lost his case at the Industrial Tribunal. The difference in the tone of the letters in response to Mr Coogan's and Mr. Mathura's requests for postponement of their respective disciplinary hearings is explained by Mr. Coogan's ill health, a fact of which the Industrial Tribunal was unaware. A reasonable employer could be expected to differentiate

(c) Mr. Pryce. The Industrial Tribunal did not find Mr Pryce a valid comparator. Paragraph 23 of the Industrial Tribunal decision is inaccurate because it was the Authority that contacted Mr Pryce, not the other way about, and asked him to repay what he had over claimed. Mr Pryce had been misinformed by the Authority, before he made his claims, about the basis for claiming.

(d) Mrs Mason The Industrial Tribunal says that Mr Smith handled the cases of both Mr. Mathura and Mrs Mason. This is somewhat over simplified. In fact, in one case, Mrs Mason, Mr. Smith was actually conducting the disciplinary hearing himself, and in the other, that of Mr. Mathura, he was not conducting the disciplinary hearing himself, he was deciding whether or not to allow him to withdraw his resignation. His view of the evidence presented to him was that there were differences between the two cases which justified different treatment. In the event, any difference in treatment between Mrs Mason and Mr Mathura can and should be explained on grounds other than a difference in colour.

3.2. Written Reply to Commonwealth Institute

The Committee noted that the letter had been drafted after consultation with other departments, including the Borough Solicitor's and Personnel. The Authority gave genuine concern to the reply, and there is no evidence to suggest that it was motivated by racial consideration. We were concerned that its drafting was delayed in view of the obvious urgency of the matter. There is doubt whether it was sent.

(Councillors King and Messenger dissenting) .

3.3. Car Mileage Claims

The Committee did not re-investigate the substance of the mileage claims, and Mr Mathura declined to give evidence on the matter. Nevertheless, the Committee did not find any evidence before it to suggest that the findings of the disciplinary body investigating --/ the claims were motivated by improper or racist motives. The process whereby Mr Mathura "s claims came to be the subject matter of a disciplinary inquiry is explained in para. 4.2.

3.4. Mr. Parker

There was a lack of evidence before the Industrial Tribunal of any action taken against Mr Parker for authorising Mr. Mathura's car mileage claims. In fact, the Committee has seen a file note, which Mr Parker accepted as being correct, that Mr. Gan had complained to him about his role in the matter.

The decision to exclude Mr Parker from -the disciplinary hearing on 2nd April, 1985 was taken on the grounds that Mr. Parker had approved the disputed mileage claims. There was no suggestion that Mr. Mathura or his Trade Union representative were prevented from calling Mr. Parker as a witness.

3.5. Mr. Smith

In the case of the "out of time" appeal and the request by

(Councillors King and Messenger dissenting)

3.6 The "grilling" allegation

We note that there is a conflict in the description of the style of conducting the disciplinary hearing of the 2nd April, 1985. Mr Davies, an experienced Trade Union official, reiterated to us his view that the manner in which Mr Gan conducted the hearing went beyond the normal methods of questioning. Council officers who were present disagree with this view.

We have no further evidence to allow us to resolve this conflict.

(Councillors King and Messenger dissenting)

3.7 The alleged offer of Mr. Gan to stand down from hearing the case.

The Committee heard conflicting evidence regarding this matter from Mr. Gan and Mr Davies.. We find it difficult to believe that Mr. Davies would not have accepted such an offer had it been explicitly made to him. There is conflict of view amongst Members of the Committee as to which side of the evidence should be accepted in the absence of documentary evidence, and the fact that the hearing proceeded without recorded objection by the experienced Mr. Davies.

Again, however, we have no direct evidence to allow us to clearly resolve this conflict. The Committee decided that it was not necessary to the performance of its duties to resolve this conflict.

3.8 Evidence of Mr. Jones at the Industrial Tribunal

The Committee does not agree with the Industrial Tribunal findings concerning Mr. Jones' evidence. Members of the Committee are aware of further evidence which strongly suggests that Mr Jones would not be well disposed towards the Authority in general, and to Mr. Hobday in particular. Therefore they would not regard his evidence as being very objective.

3.9 Collective Grievance

The Industrial Tribunal were told (vide paragraph 33 of the decision refers) by Mr. Gan "that the only reason he was relieved to hear that the applicant [Mr. Mathura] intended to resign was that had he remained with the respondent he (Mr Gan) would have had to conduct a grievance hearing on the part of two black students who had complained to him of the way the applicant had treated them".

(Councillors King and Messenger dissenting)

3.10. Industrial Tribunal Preparation

The Committee was concerned to hear in evidence before it comments which were made by the presenting officer about the lack of co-operation he received in the preparation of the Council's case, specifically from Mr. Gan. It is clear that some officers in the Education Department failed to appreciate the seriousness of the situation. This allegation by the presenting officer was not put to other witnesses, some of whom including Mr. Gan, expressed a contrary view, since he was interviewed last.

(Councillors King and Messenger dissenting).

3.11. Industrial Tribunal Conduct

The Committee heard in evidence from several of the Council's officers, present and past, that there was concern that the manner in which the members of the Industrial .Tribunal conducted the hearing of the case. Mr Mathura was unrepresented before the Tribunal, and we take the view that the Tribunal therefore redressed the balance by taking an active cross-examination role unto itself as it was entitled.

4.0 FINDINGS AND RECOMMENDATIONS ON MATTERS WHICH AROSE FROM THE INVESTIGATIONS CONDUCTED BY THE COMMITTEE OF INQUIRY

4.1. Car Mileage Claims

Action already taken by Officers to introduce simpler and clearer instructions to the staff claiming car mileage was reported.

4.2. Investigations by the Council's Internal Audit Staff

There was no evidence to suggest, that the investigations were started into Mr Mathura's claims other than on their own initiative which arose from earlier experience of claims from. the Youth & Community Section.

The Committee did not re-investigate in detail the mileage claims, and Mr. Mathura declined to give evidence on the matter. Nevertheless the Committee did not find any evidence before it to suggest that the findings of the disciplinary body investigating the claims was motivated by improper or racist motives. Nevertheless, the Committee decided that the approach adopted in this case was undesirable, both in terms of the methods used although these were accepted practices at the time-- and because of the exclusion of the line manager. In our view it would be better to take preventative action at an early stage.

Accordingly, it is recommended that (a) line managers should be involved at an early stage when such investigations are deemed necessary by the Internal Audit staff, and (b) covert investigations into mileometer reading discrepancies should be avoided.

4.3. References supplied to prospective employers

It is recommended that the Personnel Strategy Committee should review whether or not firm rules or guidelines should be laid down about such references.

4.4. Disciplinary Process

The Council's disciplinary procedures are in course of review. It is recommended that the following matters should be examined as part of that review:

(a) who should hear disciplinary cases against employees at different stages;

(b) whether or not it is desirable to take disciplinary action against an employee during a period of notice;

(c) the present guidelines on the production of typed and agreed notes of various stages of disciplinary and appeal hearings;

(d) the time limit for appeals against disciplinary decisions, and the circumstances and. means by which an "out of time" appeal might be granted:

(e) the circumstances and timing of suspension of employees from duty with or without pay.

4.5 Confidentiality

It is recommended that consideration be given to the production of clear guidelines concerning the provision of personal information about employees over the telephone.

4.6. Youth & Community Division of the Education Department

It is recommended that a review of the .management structure of the Youth and Community Division be initiated as soon as possible.

4.7. "Leak" of information to the Commonwealth Institute

The Committee were unable to establish clearly how the original leak of information reached the informant of the Commonwealth Institute.

It was agreed that there was a case of gross misconduct for Mr Hobday to answer as to whether or not he had misled his Chief Officer, the Tribunal and Committee of Inquiry' concerning his response to Dr. Idem's telephone call.

(Councillors King and Messenger dissenting)

Having heard representations on behalf of Mr. Hobday presented by his Counsel, Mr. Allardyce and, considered the advice of Mr. Lynch, we re-affirmed our view.

(Councillors King and Messenger dissenting) .

4.8. Possible re-engagement of Mr. E. Mathura

Although this matter was outside the terms of reference of the Committee of Inquiry, it was agreed that Council officers should meet Mr. Mathura's representatives to discuss the question.

(Councillors King and Messenger dissenting)

4.9. Review of Counsel's Advice on an Appeal to the Employment Appeals Tribunal

We were satisfied that a correct decision was made to withdraw the appeal, (vide para. 7.0 7.9 of Part II of the report).

4.10 Suspensions following Industrial Tribunal

In retrospect the Committee feels that Mr. Gan and Mr. Hobday should have been suspended as soon as the Authority received the Industrial Tribunal's findings. The Committee appreciates that the reason this did not happen was scepticism about the decision and because an appeal was being considered. (Councillors King and Messenger dissenting)

PART II REPORT OF COMMITTEE OF INQUIRY

5.0 Report of Committee of Inquiry

The terms of reference of the Committee, agreed by Personnel Strategy Committee on 18th September, 1986 were as follows:

1. To consider the Industrial Tribunal, findings and its decision.

2. To review Counsel's advice on an appeal to the Employment Appeals Tribunal (For information purposes only).

3. To interview officers and former officers of the Council, where

necessary, to clarify outstanding issues (such staff being represented by their Trade Union if requested.

4. To report back to Personnel Strategy Committee on further action, if any, which should be taken.

5.1 The membership of the Committee was as stated elsewhere in the Report. Observer status to a Chief Officer of the Royal Borough of Kingston-upon-Thames was granted in view of that Authority's special interest and the Working Party which it had set up to examine related issues. We were grateful that the Royal Borough made arrangements for Mr. R.L. Gan, former Senior Education Officer (Community Education) to attend proceedings as a witness.

5.2 Observer status was also granted to Mr S. Eldridge of Messrs Hempsons (Solicitors) who represented the Federated Unions of Managerial & Professional Officers on behalf--of Mr R. L. Gan.

5.3 Mr. Adrian Lynch, Barrister-at-Law, from the Chambers of Mr James Goudie, Q.C. was instructed by the Borough Solicitor. He had examined on our behalf a mass of documentation was able to guide us through the relevant matters to be investigated, and played the major role in questioning witnesses appearing before the Committee.

5.4 There have been six full days, a long afternoon and an evening (which

extended into the early hours of the next: day) spent on the Inquiry by the Members of the Committee. Additionally, there has been considerable officers' time carrying out associated work on behalf of the Committee.

5.5 The meetings of the Committee were held on the following dates:

Thursday, 25th September, 1986
Tuesday, 7th October, 1986
Tuesday, 21st October, 1986
Thursday 6th November, 1986
Tuesday llth November., 1986
Saturday 22nd. November, 1986
Wednesday 3rd December, 1986
Friday 12th December, 1986.

5.6 The first meeting was concerned largely with the procedural conduct of the Inquiry, and a run through of the documents which might have a bearing on various issues concerning the Tribunal decision. The four following

6.0 Procedure adopted for the conduct of the Inquiry

6.1 Witnesses were told that:

(i) it was not a disciplinary hearing, but an inquiry to try and establish the background facts;

(ii) Counsel would be leading the questioning, but the Members of the Committee would also be asking questions to seek further clarification where necessary;

(lii) Trade Union representatives accompanying witnesses were there to observe;

(iv) Observers were not permitted to cross-examine or question

witnesses;

(v) Observers would not be provided with copies of documents;

(vi) the proceedings would be recorded by" a short-hand writer, assisted by an audio dictating machine, and a transcript prepared;

(vii) a transcript of an individual witness's evidence would be made available to the witness after the Committee of Inquiry had concluded its business;

(viii) Documents and transcript's would be confidential to the Members and Officers of the Committee of Inquiry during its progress.

6.2 The Committee of Inquiry reserved its position concerning the release of documentation and the transcripts to the Observers representing the Royal Borough of Kingston-upon-Thames and the Federated Unions of Managerial & Professional Officers.

6.3 The Committee agreed, with the dissent of Councillors King and Messenger, that Officers in attendance, and the Observers should be asked if they were Freemasons, on the basis that. they were not obliged to answer. All answered in the negative, except Mr Gan's representative who declined to answer. It was also agreed that the question should be put in the same terms to the witnesses at the conclusion of their interviews. All but two witnesses answered in the negative. Messrs Gan and Hobday declined to answer the question.

(Note: the Members were not asked because the Members' declarations are contained in a special register).

6.4 During the deliberations of the Committee on 3rd December, Mr. Lynch explained carefully the legal grounds whereby it is advisable that, where there is an adverse finding against an individual, that individual should have the opportunity of making representations to the Committee of Inquiry before its report is made to the Personnel Strategy Committee.

6.5. Accordingly, Mr. Hobday was informed on 5th December 1986 of the majority recommendation that there was a case to be answered by him of gross misconduct as to whether or not he misled the Chief Education Officer, the Tribunal and the Committee of Inquiry concerning his response to Dr. Idem's telephone call on 2nd April, 1985. He was, therefore, invited to attend the Committee on Friday 12th December, 1986 to make his representations, accompanied by a Trade Union representative or a friend. It was made clear that it would not be a disciplinary hearing.

6.6 Mr Hobday exercised his right and he was represented by Counsel, Mr H.W. Allardyce, instructed by Mr Brewin of Messrs Ronald Prior & Co. (Solicitors). Mr. Allardyce submitted arguments why the Committee of Inquiry should delete the recommendation.

7.0 Counsel's Advice on an appeal against the Industrial Tribunal's decision to the Employment Appeals Tribunal

7.1 The cause of the Inquiry was the decision of the Industrial Tribunal (a full copy of which is reproduced in Appendix II) . The Tribunal had made a number of findings of primary facts which were adverse to officers or ex-officers of Waltham Forest. Examples of such findings would be the finding that Mr Hobday had, in fact, told Dr. Idem of the Commonwealth Institute that Mr Mathura had been suspended owing to the financial irregularities (Paragraph 12 of the decision.) Or again the Tribunal found that Mr Gan had said to Mr Mathura that "I will hound you out of your prestigious job". On these issues the Tribunal disbelieved .Messrs Hobday and Gan. By reason of a number of primary facts the Tribunal arrived at, in legal parlance, a finding of secondary fact. That is that they inferred racial discrimination as being the motivating force against Mr Mathura. This appears particularly in Paragraph 18 of the decision where they infer that the difference ' . as a result of the fact that Mrs Mason was white and Mr. Mathura was black, and most. clearly in the penultimate paragraph of the decision (Paragraph 37)....

7.2 "Direct evidence or discrimination was not available to us save for the views expressed by Mr. Jones regarding Mr Hobday and the evidence we heard from Mr Pryce regarding Mrs Rollason's racial prejudices as he saw them. That being the case we had to look for the only affirmative evidence which we could draw by way of inferences from the primary facts. Having done so, we find that there has been racial discrimination against the applicant by Mr Gan and Mr Hobday; in the case of the latter limited to the initial telephone conversation with Dr Ntuk Idem. We find in addition the applicant was treated harshly by the respondent and differently from their treatment of Mr Coogan and Mrs, Mason, and we find this discrimination was on the grounds of race".

7.3 Mr Lynch' s view was that there is little doubt that the Employment Appeal Tribunal (EAT) , the appellant tribunal for the Industrial Tribunal, would take the view that both the primary and secondary findings were findings of fact. The importance of that is that the employment Appeal Tribunal cannot re-try the facts. An appeal to the EAT can be only on the basis of an error of law.

7.4 The only way that findings of fact: can be challenged is if the EAT can be convinced that the Industrial Tribunal acted in a manner which was

perverse. It has to be established that no reasonable Tribunal could come to the conclusion that this Tribunal came to on the evidence before it.

7.5 The EAT is not given to allowing appeals on the basis of perversity. This is particularly true where the demeanour of witness is concerned because the Industrial Tribunal, has seen the witnesses but the EAT has not. Therefore, not. appealing against the Industrial Tribunal decision is not, in any way, an indication of acceptance of the truth of its findings.

7.6 The decision to withdraw the Notice of Appeal is not in any way an

acceptance of the Tribunal's findings because in terms of the basic facts there is not a re-hearing.

7.7 It is almost inevitably the case that an appeal can only be made on the basis of the evidence before the Tribunal.. New evidence cannot generally be introduced at an Appeal. It can be if it is reasonably the case that the evidence could not be obtained or if it were being improperly withheld by the other side. The EAT will riot accept any other documentation if it were reasonably accessible before the Industrial Tribunal.

7.8 Notice of Appeal (copy attached as Appendix III) to the EAT was filed on 31st July, 1986 to retain the option of an appeal. There is a forty-two day time limit to the filing of such appeals. The appeal was filed, in fact, on the last day allowable.

7.9 The decision to withdraw the appeal was taken by the Council's Officers, ,in consultation with the Chair of the Policy Co-Ordinating Committee, after receiving legal advice, in August 1986. The EAT confirmed the withdrawal of the appeal on 2nd September, 1986.

8.0 The Committee' s approach to reaching its conclusions and findings

8.1 The Committee found that their investigations into the Industrial Tribunal's findings had led them into a complex web of events with a mountain of documents drawn from a number of files in several departments. The painstaking questioning of the witnesses in turn required many pages of transcription to be produced, sifted and absorbed.

8.2 To aid the assessment of the evidence accumulated during the course of the Inquiry a chronology of events relevant to the matter was compiled (Appendix IV) . A number of issues then emerged to be addressed. The conclusions on those issues are summarised in the beginning of the report.

8.3 Appendix V gives a resume of the background to the case.

CONCLUSIONS AND ACKNOWLEDGEMENTS

It will be apparent that the members and its Officers and Advisers have found their work very demanding. This report has sought to bring out the salient issues, and to offer findings and recommendations which will enable the Personnel Strategy Committee to take such further action as it deems desirable. It is hoped that the inquiry being held by the Royal Borough of Kingston-upon-Thames will also be assisted by some of the findings reached by this Committee.

The conscientious way in which the Members of the Committee have tackled their difficult task needs to be acknowledged. We are obliged to the witnesses who gave evidence on events which took place some time ago; and upon which reliance had to be placed on their memories to the best of their abilities. The guidance received from Mr Adrian Lynch was invaluable to the Committee. However, although some of the findings were not unanimous, there can be no doubt as to the unanimity of the thanks which the Members, Officers, Counsel and Observers have given to Mrs L. J. Young, The Director of Personnel & Administration's Secretary, who performed the mammoth task of recording the evidence and the discussions surrounding it, and Mr. Burrows, the Director of Personnel & Administration.

12th December, 1986.

T.V. Wheeler Chair

APPENDIX I

LIST OF WITNESSES

EVIDENCE TAKEN BY DIRECTOR OF PERSONNEL & ADMINISTRATION IN PRESENCE OF BOROUGH SOLICITOR

Ms.V. Amos	former Youth Worker Ethnic Minorities Unit
Mr. H. Adie	former Youth Worker Ethnic Minorities Unit
Mr. M. Adams	Community Liaison Worker, Walthamstow Youth Community and former Secretary of Local Branch of CYWU

STATEMENTS RECOUNTING INTERVIEWS BY DIRECTOR OF PERSONNEL & ADMINISTRATION AND THE ASSISTANT BOROUGH SOLICITOR (MR. P.G. ANDERSON) WITH INDIVIDUALS OUTSIDE THE COUNCIL

Case Number 16606/85/LN/C

WALTHAM FOREST 23 JUN 1986 PERSONNEL DEPARTMENT

BETWEEN

Mr E Mathura and London Borough of Waltham Forest

DECISION OF THE INDUSTRIAL TRIBUNAL

HELD AT London (North) ON 30 April 1986

1, 2, 13 May 1986

CHAIRMAN: Mrs F Stoll

MEMBERS: Mr J Lennox
Hr A M Robertson

DECISION

The unanimous decision of the Tribunal is that the applicant was discriminated against in breach of Section 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976.

The remedy to which the applicant is entitled will be determined by the tribunal on a date to be fixed before 14 July 1986, unless in the meantime the parties have notified the Tribunal that agreement has been reached,

FULL REASONS

1 The applicant, Mr E Mathura, was employed by the London Borough of Waltham Forest as Assistant Youth and Community Officer (Training) in the Education Department. He commenced his employment on 1 September 1980. He was suspended without pay with effect from 2 April 1985. He had previously tendered his resignation with effect from 1 May 1985 in anticipation of taking up an appointment from that date at the Commonwealth Institute.

2 The applicant alleges that he was discriminated against by Richard Gan, his Senior Education Officer in that he failed to receive comparable treatment to that given to two white colleagues.

3 In the course of his evidence to the tribunal the applicant alleged as well that he considered there to have been a conspiracy between Mr Gan and other members of the Community and Youth Services Department to get rid of him.

4 The applicant, who is highly qualified academically, conducted his own case in a most able and efficient manner. He told the tribunal that he had been fortunate in securing appointment as Chief Education Officer at the

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Commonwealth Institute. This was a unique, prestigious Foreign Office appointment which was an exceptional career advancement for him, and the first time the Job would have been held by a black man. Consequently he handed in his resignation to Mr Gan on 4 February 1985, giving him three months' notice, and intended to take up his new position on 1 May 1985.

5 He said that Mr Gan's attitude towards him changed from then onwards. He was cold, distant and unresponsive. He could not understand this until at a meeting in the middle of March Mr Gan concluded by saying to him "I will hound you out of your new job-- your prestigious job". He said he was "shocked" and "appalled" by this threat.

6 On 15 March Mr Gan saw the applicant and said to him, "I want to see you in my office at 3.00 p.m. on Monday". He gave no indication why he wanted to see him. On Monday 18 March the applicant attended at Mr Gan's office. Mrs Cuming the Principal Administrative Officer in Mr Gan's group was present but no one else. The applicant was not invited to have a colleague with him. Mr Gan said that he had had serious charges against the applicant brought to his attention. Notes of that meeting, taken by Mrs Cuming are produced in the respondent's bundle of documents at page 9. The respondent was not given a copy nor was he given an opportunity to vouch for their accuracy. At the conclusion of that meeting the applicant was suspended on pay pending a formal hearing and told, "to go and clear your desk out". Mr Gan in evidence said that this was no more than an informal exploratory discussion and that neither it nor his action in suspending the applicant contravened the respondent's Disciplinary Code.

7 A letter dated 19 March (R13) was sent to the applicant to attend a formal disciplinary hearing on 28 March, The applicant acknowledged this letter with a note dated 25 March. We are grateful to Mr Khanna, who represented the respondent at the hearings for producing this note after some searching through his files. It is addressed to Mr Gan and states:

"I acknowledge your letter and I am in consultation with my Union Representative, Mr Eric Watts of NAYCEO, who is unable to attend on Thursday 28 March. Mr Watts will be contacting the Borough Education Officer to arrange a new date."

8 Mr Gan's reply to this note is at R19. When asked why it was couched in such strong terms he replied that from the note he had received from the applicant he did not appear to realise the gravity of his situation. The letter states:

"...My letter to you contained an instruction for you to attend a formal disciplinary hearing, and the fact that the person whom you chose to accompany you in the capacity of a friend or representative finds the date inconvenient, is not sufficient reason in Itself to merit a postponement. This fact notwithstanding, I am in the circumstances prepared on

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this one occasion to agree to your implied request for a postponement ..."

9 The disciplinary hearing was held on 2 April 1985. Notes of this meeting are at R43-57. These were not agreed with the applicant nor with his union representative but we were assured that this was not the respondent's practice. A letter dated 4 April sets out the decision that he had committed serious misconduct and the reasons for it. The applicant was suspended without pay from 2 April until 30 April (i.e. until the expiry of his resignation notice). The essential car user allowance was likewise suspended and his car mileage payments for journeys made in February and March 1985 were withheld. He was informed that he had to inform the respondent in writing within 10 days of his intention to appeal.

10 The applicant said that he decided not to appeal for a number of reasons not least the fact that he would be taking up a new post on 1 May, On 9 April he received a letter dated 4 April from the Commonwealth Institute saying that they had heard that he had been suspended without pay and that they would like to see him. Subsequently on 26 April the Commonwealth Institute formally told the applicant they would not employ him. By that time the period allowed for appeal to the respondents from his suspension without pay had expired.

11 We were most fortunate in being able to hear the evidence of Dr Moses Ntuk Idem, the Community Education Officer at the Commonwealth Institute. He said that surprisingly on 3 April he received a telephone call from a Mr Blakeney from the Roehampton Institute who said that the applicant had been suspended. He learned that Blakeney had been so informed by two students of the respondent who were taking courses with him. Dr Ntuk Idem said that he was shocked at what he heard. He informed no one else in the Commonwealth Institute but decided to make his own inquiries to see if there was any truth in what he took to be an unconfirmed rumour. He telephoned the respondent to speak to Mr Parker who he knew was the applicants supervisor. He was out so he asked to speak to Mr Hobday with whom he was acquainted. Mr Hobday told told him on the telephone that the applicant had been suspended for certain irregularities in travel claims. He said that he made his concern clear to Mr Hobday and got the impression that "there was a sense of relief from my informant that the incident had happened". Dr Ntuk Idem said that he received a telephone call from Mr Hobday a day or so later in which Mr Hobday conveyed to him that he was anxious at having released the information about the applicant When asked whether he had the right to impart the information Hr Hobday had replied that it was common knowledge. Nevertheless there was a further call from Mr Hobday in which he said that he might lose his job and that he would, if confronted, deny that he had given information to Dr Ntuk Idem.

12 Subsequently during an enquiry by Mr Smith, the Chief Education Officer for the respondent, to trace the source of the leak to the Commonwealth Institute. Mr Hobday "categorically denied" releasing any information about the applicant in evidence before us Mr Hobday said that he did not inform anyone at the Commonwealth Institute about the outcome of the disciplinary hearing on 2 April. He merely answered the telephone call from Dr Ntuk Idem for Mr Parker and said that the applicant was on leave. We do not believe Mr Hobday's evidence in

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this matter nor that he told Mr Smith the truth. We find Dr Ntuk Idem's a more accurate record of what transpired and entirely consistent with subsequent events.

13 On 26 April 1985 the applicant and his' trade union representative, Mr Davies, had a meeting with Mr Smith, the Chief Education Officer. The purpose of the meeting was to ask him to allow the applicant to withdraw his resignation. He was not permitted to do so. He applied for leave to appeal out of time. This was refused so with the help of his trade union representative he applied to the High Court for a review and was then granted leave to appeal by the respondent on his agreement to withdraw his High Court application. This appeal was heard on 16 October 1985. No contemporaneous notes were made of this appeal hearing. The decision that the suspension without pay should stand is contained in a letter dated 18 October (R61). The question of the refusal of the Chief Education Officer to permit the applicant to withdraw his resignation was not considered by the Appeals Committee.

14 The applicant referred us to the way in which the respondent had dealt with two cases which he says are comparable. Firstly there is the case of Mr David Jones who was granted early retirement on favourable terms namely, the immediate payment of an enhanced pension. R64 is a copy of a letter from Mr Gan stating:

"His (Jones) early retirement would be in the efficient interests of the service."

15 Mr Jones stated in evidence that he had been approached by Mr Parker and Mr Hobday who showed him a whole file, which they alleged referred to irregularities in the way he had handled financial natters. They said if he opted for early retirement the matter would go no further. He believed that Mr Gan knew all about this offer from the very beginning. We do not consider that the facts in Mr Jones' case are comparable to those in the applicant's case. The irregularities were of a procedural nature and there was no hint of any financial impropriety.

16 We considered the case of Mr Coogan, a white employee of the respondent, in the department as the applicant. He was dismissed for gross misconduct which is a graver offence than serious misconduct with which the applicant was charged. He was dismissed and subsequently at appeal before an Industrial Tribunal he was ordered to be re-instated on the payroll after suspension without pay. The reason for this was "in view of his previous satisfactory service".

17 We consider this case to be a comparable case to that of the applicant. The offence was the assault by Mr Coogan on a black youth in his charge. It raises the presumption that had Mr Coogan not been white he would have been treated differently. In this context we note the difference in tone of the letters which passed between him and Mr Gan when a postponement of the disciplinary

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hearing was sought (JR70 and 71).

18 In the course of the hearing we heard that a white woman employee (a Mrs Mason) in the same department as the applicant had appeared before Mr Smith

at a disciplinary hearing where it was found that she had made Irregular travelling claims for a "fair sum of money". She was in her third year of service with the respondent; applicant was in his fifth year of service at the time of his offence. She was given a final written warning and required to pay back the excess money claimed. We later heard from Mr Winwood, the Group Auditor in the Finance Department that the over claim had amounted to £443.35 over the period January 1983 to May 1985. We consider this to be a case comparable with the applicant's. She was white and received nothing more than a final written warning. The applicant, because of the refusal to permit him to withdraw his resignation, was in effect dismissed as well as having to pay a substantial financial penalty. Mr Smith handled both cases within a comparatively short time scale. We can only infer that the only difference was that she was white and the applicant was not,.

19 The greatest reliance is put by the applicant on the treatment he received from Mr Gan. He avers that the threat to hound him out of his new job by Mr Gan was effectively carried out. He was subjected to discriminatory treatment from March 1985 when he was called into his office to answer charges that he had breached confidentiality. This matter was brought to Mr Gan's attention in an unusual manner by Mrs Rollason, a colleague of the applicant. It was a matter which the applicant considered should have been dealt with by his supervisor, Mr Parker and was not in his view a breach of confidentiality Thereafter he relies on the conduct of Mr Gan in the severity of the punishment afforded him, and in the dealings the respondent had with the Commonwealth Institute which were largely at Mr Gan's initiative.

20 Mr Davies the NUT Regional Official for 16 outer London boroughs accompanied the applicant at the hearing on 2 April and at the meeting he asked for with Mr Smith on 26 April. We found Hr Davies a careful witness who gave due thought to all his replies all of which we accept as accurate. We preferred his evidence to that of Mr Gan where there was a conflict. He said that he would describe Mr Gan's conduct as "grilling" the applicant during the hearing on 2 April. He objected to the way the applicant had been suspended at the end of the "informal" hearing on 18 March which he did not accept as proper procedure. He had challenged Mr Gan's hearing of the case on 2 April because of his conducting the "informal" hearing on 18 March but it was strictly within the Disciplinary Code. He said that he was surprised that Mr Parker was excluded from all the hearings because he considered that he was the person who could have shed light on what had been termed "irregularities". With reference to the leak of the suspension of the applicant to the Commonwealth Institute he said he was surprised that anything was said to anyone outside before the appeal had been heard or the appeal period expired. Further he could see no reason why the respondent should want to advise the Commonwealth Institute of what was a matter internal to the respondent's organisation. The tribunal finds that these comments and the criticisms of the respondent's procedure are justified.

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21 Mr Gan denied that he had ever made the threat to hound the applicant out of his job or anything similar. He said the first opportunity he had to refute this allegation was at the tribunal hearing. This is inconsistent with the evidence of Mr Davies who said that he put the allegation to Mr Gan on 2 April and his reply had been that the words were "out of context". Mr Smith also recalls the applicant referring to the matter in front of Mr Gan on 26 April. We accept Mr Davies' version and we accept the evidence of the applicant who we found to be a witness of truth. We find as a fact that Mr Gan did threaten to "hound the applicant out of his 'prestigious job'".

22 We found that we were quite unable to accept most of Mr Gan's evidence. His recollection of events suffered from convenient amnesia; events which Mr Smith had no difficulty in recalling. Such statements as Mr Gan did make were inconsistent with documentary and oral evidence from witnesses, whom we accepted as truthful if only because they had no cause to be otherwise. For example, he said that Mr Smith had not told him the reason for the meeting on 26 April. Mr Smith said he had. He told Mr Smith that he had offered to Mr Davies the opportunity for someone else taking the chair at the meeting on 2 April. We accept from Mr Davies that this is untrue. We do not accept that he did not know of the deal offered to Mr Jones for early retirement on favourable terms.

23 We then considered the evidence of another employee, Mr Pryce who had been employed by the respondent as a youth liaison worker from September 1983 until he left of his own accord in July 1985. He told us that when he learned of the difficulties the applicant was experiencing over subsistence and travel claims it was clear that he was in a similar position. He had also given in his notice because he had secured a new post. He wrote to the respondent that he might have been overpaid on his travelling expenses. He was told to pay back what was owed.

24 We heard the evidence of Mr Winwood the auditor and learned the basis of the charges made against the applicant. He said that at the time he made his Calculations he did not know that there was any custom and practice in that department regarding subsistence claims for evening visits. He accepted that these claims which he listed as invalid were in fact valid if that custom and practice was accepted. He also agreed that the only evidence he had that the applicant may have claimed attendance at certain places and then failed in fact to attend was negative in that he had asked various people if they had seen the applicant on a specific occasion and they had replied that they had not. He had no positive evidence that the applicant had been elsewhere at the time. Regarding the mileage claims which he listed as irregular he agreed that had each journey in fact commenced at Graylaw House and not as he had assumed from the applicants home the mileage recorded would have been correct. He acknowledged that it would have been feasible for evening journeys to commence from Graylaw House. He also agreed that if the applicant had indeed used two motor cars instead of only the one, for the purchase of which he had a loan from the respondent, he would in no way be defrauding the respondent. They would in no way lose money thereby although it was a breach of their rules.

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25 From Mr Winwood's evidence it was clear to the tribunal that there was little evidence of substance that the applicant had defrauded the respondent Intentionally or otherwise in his travelling claims. On the question of subsistence irregularities, it was the applicant who drew attention to them and they have been subsequently acknowledged to accord with long standing custom and practice within the Education Department. So much so that instructions have now been issued to clarify the situation. We had little difficulty in establishing these facts which suggest that the applicant was at most guilty of technical irregularities in recording car milometer readings and failing to declare the use of a second car. We cannot fail to be surprised that neither Mr Gan nor Mr Smith probed the matter sufficiently to reach the same conclusions and to determine the penalty accordingly.

26 In consequence the tribunal considered that the applicant had been treated very very harshly. Apart from the conclusions drawn from Mr Winwood's evidence, we had before us the evidence of the treatment of Mrs Mason and of Mr Pryce. The attitude of Mr Gan towards the applicant appeared in contrast to be vindictive. We doubt whether he was telling us the truth when he said that he did not make known to Mr Smith his views about allowing the applicant to withdraw his resignation. He even allowed his attitude to show in the letter he drafted to the Commonwealth Institute on 1 May 1985 in reply to their letter of 17 April (R62 and R63).

27 The way the respondent dealt with the letter from the Commonwealth Institute causes us great concern. It is dated 17 April and was received by the respondent before the applicant's post with the Commonwealth Institute was withdrawn but after the time for an appeal against suspension had expired. It was not replied to until 1 May when the applicant's resignation had taken effect. According to Mr Smith he did not, reply sooner because he believed that the applicant might still exercise his right of appeal. The applicant was told by Mr Gan in the letter dated 4 April 1985 that he had 10 days to appeal from that date. We cannot understand how Mr Smith could be so wrong on his facts unless he was deliberately misinformed. He said that the letter in reply was drafted by Mr. Gan but revised by himself and vetted by the legal department. We note that the letter is not signed by Mr Smith and it bears the initials of Mr Gan at the head. It was in fact signed by Mr Gan and copied to Mr Smith subsequently.

28 The tribunal is quite satisfied that the answers to the three questions posed by the Institute were made by Mr Gan. Question 2 in the letter from the Institute asks: "In the normal course of events would Mr Mathura be able to resume his post in the Education Department of the London Borough of Waltham Forest without further penalty at the end of his month's suspension?" The answer given is: "This is a hypothetical question. Any answer I gave could only relate to all the circumstances of the applicant's employment with the Authority. As a new employer you have to make your decision on your own interpretation of the facts." This is inconsistent with the evidence given to the tribunal by Mr Smith which was that the penalty for major irregularities (i.e. mileage and subsistence claims) would have been first a final written warning and secondly dismissal. He knew of no dismissals in the time he had been with the respondent for irregularities like this. He continued that dismissal would

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hinge on the extent to which on the evidence presented there were not just irregularities but an indication of a callous indifference to the workings of the respondent's procedures a "reckless disregard to the respondent's way of doing business; It does not need dishonesty". At no stage were such charges made against the applicant and Mr Smith confirmed our view that the applicant would not have been dismissed had he not already tendered his resignation. The reply to the Institute to this question was at best an evasion and could be construed as deliberately misleading.

29 Question 3 asks: "Is there any evidence that the irregularities alleged against Mr Mathura were being practised by other members of his department, who, however wrongly, might have assumed that these were the principles on which car mileage claims could be put forward?" The answer Is an unqualified "No". Yet according to Mrs Rollason, a respondent employee and a former employee, Mr Barker, the custom and practice was to claim subsistence and mileage for evening work. The evidence of Mr Winwood confirmed that he later learned that It was custom and practice in that department. It is difficult to believe that Mr Gan was unaware of this custom and practice and therefore that the answer that he gave was untrue.

30 The evidence we had from Mr Jones regarding Mr Hobday's attitude was found very revealing. He said he did not think that Hobday would be "very partial to working with a black colleague. Young black people would be acceptable if they knew their palace". He continued, "He would never have been able to accept abuse from black people as I have to in my area. The fact that he was black would have registered most acutely with Hobday". We find that the only Inference we can draw from Mr Hobday's conduct is that it was the applicant's colour which caused him to pass on information to Dr Ntuk Idem which he knew would be harmful to the applicant. In the absence of any other motive we are bound to Infer that his act was racially inspired.

31 We considered the primary facts. We find that the applicant was treated most harshly and the penalty was very severe for irregularities which even if proven are fairly common; some four or so cases are heard every year within the respondent's organisation. The alleged irregularities were based on assumptions and from the evidence of Mr Winwood may have been open to other explanations. In any event even if the mileage offences were fully established Mrs Mason had been treated very much more leniently with less length of service.

32 If the applicant was acting so irregularly what action had the respondent taken regarding his immediate supervisor, Mr Parker, who had authorised all the applicant's claims? We did not hear from Mr Parker. We know he did not attend any of the disciplinary hearings. The reason advanced for this was that it had been considered that he might have been "colluding" with the applicant. We tried to discover if any disciplinary action had been taken against him. Mr Khanna believed there had been a warning but had no evidence to support this. Mr Smith told us that he did not consider this matter to be finally closed.

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33 Mr Khanna referred to the case of Perara v Civil Service Commission & Another (1983) ICR 428. He urged us to distinguish mere prejudice from discrimination« We weighed very carefully the evidence we had which could have shown that for some reason the applicant was disliked or unpopular with his colleagues. We were told by Mr Gan that the only reason he was relieved to hear that the applicant intended to resign was that had he remained with the respondent he (Mr Gan) would have had to conduct a grievance hearing on the part of two black students who had complained to him of the way the applicant had treated them. Mr Smith knew nothing of this. It was not put to the applicant.

34 The only other relevant evidence we heard came from the applicant's witnesses, Mr Jones and Mr Pryce where there was allusion to the attitude of the applicant's colleagues to him. The attitude of Mr Hobday towards black people as reported by Mr Jones has already been referred to. Mr Pryce said that Mrs Rollason had criticised the applicant adversely on a number of occasions at meetings of her staff (of whom Mr Pryce was one). He in fact took up this matter by writing to Mr Parker. He also said that he "knew or had a feeling that the applicant was not liked by certain people in his office", that "he was very very self confident and clear about what he was doing and made sure people knew that. Some people took exception to his educational qualifications. He was a very verbal person and difficult to argue with".

35 Was the harsh and severe treatment meted out to the applicant simply because he was disliked? If that was the case why were neither Mr Gan nor Mr Hobday prepared to say in evidence that they disliked the applicant. Mr Smith told us that in his view the applicant has "substantial qualities as a Youth and Community Officer; a very good communicator with young people and with youth liaison; particularly good at selling social education to young people". We were told that in a Borough with a substantial ethnic minority population there was a recognised shortage of non-white staff in the Education Department. Why therefore was there a refusal to allow the applicant to withdraw his resignation?

36 We also considered whether the reason for the harsh treatment of the applicant might have been motivated by jealousy and envy that he had secured such a plum position with the Commonwealth Institute. The conclusion we reached on both these points was that the degree of malice and vindictiveness shown to the applicant justified an additional dimension to dislike, jealousy and envy. The only inference we could draw was that the additional dimension was racial. Had the applicant been white but the object of personal dislike and envy we do not believe he would have been treated in the way he was treated.

37 Direct evidence of discrimination was not available to us save for the views expressed by Mr Jones regarding Mr Hobday and the evidence we heard from Mr Pryce regarding Mrs Rollason's racial prejudices as he saw them. That being the case we had to look for the only affirmative evidence which we could draw by way of inferences from the primary facts. Having done so we find that there has been racial discrimination against the applicant by Mr Gan and by Mr Hobday; in the case of the latter limited to the initial telephone conversation with

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Dr Ntuk Idem. We find that in addition the applicant was treated harshly by the respondent and differently from their treatment of Mr Coogan and Mrs Mason, and we find this discrimination was on the grounds of race.

38 The tribunal does not accept that there was a conspiracy involving Mr Hobday, Mrs Rollason and Mr Smith to get rid of the applicant on racial grounds.

Chairman

RESERVED DECISION

Date: 20 June 1986

Decision entered in Register and copies sent to parties on 20 June 1986

M. Thomas (Miss) for Secretary of the Tribunals

1. The Appellant is London Borough of Waltham Forest.

2. Any communication relating to this appeal may be sent to the Appellant at:

The Borough Solicitor
London Borough of Waltham Forest
Town Hall, Forest Road
Walthamstow
London
E17 4JF

3. The Appellant appeals from the decision of the Industrial Tribunal held at London (North) in the case of E Mathura and London Borough of Waltham Forest case No 16606/85/LN/C, on the following question of law: whether the Industrial Tribunal erred in law in making material findings of fact which were unsupported by, and/ or resulted from the misapplication of, evidence and/ or were such which no reasonable tribunal properly directing itself in law could have reached and whether, by reason of the same and/ or by reason of the evidence before the Industrial Tribunal the Industrial Tribunal erred in law in concluding, as no reasonable Tribunal could have concluded in the light of the evidence and law relating to the definition of racial discrimination against the Respondent that the appellant racially discriminated against the respondent.

4. The Parties to the proceedings before the Industrial Tribunal other than the Appellant was E Mathura of 6 The Bight, South Woodham Ferrers, Essex, CM3 5GJ.

5. The Appellant's grounds of appeal are:

A. That the Industrial Tribunal erred in law in making material findings of fact which were unsupported by, and/ or resulted from the misapplication, of evidence and/ or were such that no reasonable tribunal properly directing itself in law could have reached, namely, inter alia:

(1) at paragraph 16 of its decision the Industrial Tribunal found:

16 We considered the case of Mr Coogan, a white employee of the respondent, in the same department as the applicant. He was dismissed for gross misconduct which is a graver offence than serious misconduct with which the applicant was charged. He was /•'"" dismissed and subsequently at appeal before an Industrial Tribunal he was ordered to be re-instated on the payroll after suspension without pay. The reason for this was "in view of his previous satisfactory record of service".

whereas:

(a) Mr Coogan was ordered to be reinstated upon the payroll by an Appeal Committee of the Respondent and not by an Industrial Tribunal;

(b) Mr Coogan was ordered to be so reinstated only for a limited period to see if appropriate alternative employment could be found for him, which it could not and by reason whereof Mr Coogan's initial dismissal at a disciplinary hearing chaired by Mr Gan was confirmed;

(c) the Industrial Tribunal hearing Mr Coogan's claim for unfair dismissal held that Mr Coogan's dismissal was fair although the decision to dismiss was severe:

as to which matters the Industrial Tribunal were informed in evidence. A copy of the Industrial Tribunal decision in Mr Coogan's case is attached hereto, dated 30th September 1985.

(2) at paragraph 12 of its decision the Industrial Tribunal found:

17 We consider this case to be a comparable case to that of the applicant. The offence was the assault by Mr Coogan on a black youth in his charge. It raises the presumption that had Mr Coogan not been white he would have been treated differently. In this context we note the difference in tone of the letters which passed between him and Mr Gan when a postponement of the disciplinary ...

(a) it is averred that the Industrial Tribunal's finding was that Mr Coogan would have been treated differently by Mr Gan if Mr Coogan had been black and treated less favourably. The said finding is perverse in that Mr Gan subjected Mr Coogan to the most severe penalty available to Mr Gan, i.e. dismissal, whereas Mr Gan did not dismiss Mr Mathura. In the premises if Mr Coogan is a comparator with regard to Mr Gan's conduct, it is perverse to find that the treatment of Mr Coogan evidences prejudice or discrimination against Mr Mathura by Mr Gan by reason of Mr Mathura being black.

(b) if, which is denied, the Industrial Tribunal found that the Councillors who conducted Mr Coogan's and/ or Mr Mathura's appeals racially discriminated against Mr Mathura by supposed evidence of the treatment of Mr Coogan, the said finding was perverse in that: (i) there were no other findings made by the Tribunal pertaining to supposed evidence of racial discrimination which related in any way to the conduct of the said Councillors: (ii) Mr Coogan was ordered by the Appeal Committee to be reinstated on the payroll after 90 days without pay, whereas Mr Mathura was suspended for 28 days, without

(c) as to the comparison between the two letters at R 70 and 71 and letters between Mr Gan and Mr Mathura, the comparison was perverse in that "no reasonable tribunal properly directing itself in law (hereinafter "no reasonable tribunal") could have concluded that the letter of 27th March 1985 to Mr Mathura was unduly severe and further any reasonable tribunal would have treated as material the different reasons for the requests for adjournments of the disciplinary hearings made by Mr Coogan and Mr Mathura and have found that any difference in tone between the letters was justified by reason of the fact that Mr Coogan's request for an adjournment was because of a specialist medical appointment.

(d) The only pleaded comparators were Mr Coogan and Mr. Jones, the latter was held to be irrelevant.

(3) at paragraph 18 of its decision the Industrial Tribunal found:

18 In the course of the hearing we heard that a white woman employee (a Mrs Mason) in the same department as the applicant had appeared before Mr Smith at a disciplinary hearing where it was found that she had made irregular travelling claims for a "fair sum of money". She was in her third year of service with the respondent; the applicant was in his fifth year of service at the time of his offence. She was given a final written warning and required to pay back the excess money claimed. We later heard from Mr Winwood, the Group Auditor in the Finance Department that the over claim had amounted to £443.35 over the period January 1983 to May 1985. We consider this to be a case comparable with the applicant's. She was white and received nothing more than a final written warning. The applicant, because of the refusal to permit him to withdraw his resignation, was in effect dismissed as well as having to pay a substantial financial penalty. Mr Smith handled both cases within a comparatively short time scale. We can only infer that the only difference was that she was white and the applicant was not.

(a) Mrs Mason did not, as alleged in the sixth sentence of this paragraph "Receive nothing more than a final written warning" as appears from other parts of the said paragraph;

(b) no sensible meaning can be ascribed to Mr Mathura allegedly being "in effect dismissed". Mr Mathura resigned. His request to withdraw his resignation was refused, which matters were uncontested before the Tribunal;

(c) Mr Smith did not handle both Mr Mathura's and Mrs Mason's case. As was uncontested before the Tribunal, Mr Gan chaired the disciplinary enquiry into Mr Mathura, Mr Smith played no part in it. By reason of the said difference in identity between the persons responsible for the disciplinary decisions (and penalties) relating to Mr Mathura and Mrs Mason, it was perverse to describe Mrs Mason as a comparator with Mr Mathura with regard to any difference in penalties ordered, particularly in the light of the discretion applicable to determining appropriate penalties for misconduct;

(d) if, which is denied, the supposed comparison related to the fact that Mr Smith disciplined Mrs Mason and Mr Smith declined to allow Mr Mathura to withdraw his resignation (which was uncontested before the Tribunal) the decision that Mrs Mason was a comparator was perverse in that no or insufficient evidence did or could exist to show how

(e) in the premises the Industrial Tribunal erred in law in concluding that the only inference was that the only difference was that Mrs Mason was white and Mr Mathura was not.

(4) at paragraph 20 of its decision the Industrial Tribunal found:

20 Mr Davies the NUT Regional Official for 16 outer London boroughs accompanied the applicant at the hearing on 2 April and at the meeting he asked for with Mr Smith on 26 April. We found Mr Davies a careful witness who gave due thought to all his replies all of which we accept as accurate. We preferred his evidence to that of Mr Gan where there was a conflict. He said that he would describe Mr Gan's conduct as "grilling" the applicant during the hearing on 2 April. He objected to the way the applicant had been suspended at the end of the "informal" hearing on 18 March which he did not accept -as proper procedure. He had challenged Mr Gan's hearing of the case on 2 April because of his conducting the "informal" hearing on 18 March but it was strictly within the Disciplinary Code. He said that he was surprised that Mr Parker was excluded from all the hearings because he considered that he was the one person who could have shed light on what had been termed "irregularities". With reference to the leak of the suspension of the applicant to the Commonwealth Institute he said he was surprised that anything was said to anyone outside before the appeal had been heard or the appeal period expired. Further he could see no reason why the respondent should want to advise the Commonwealth Institute of what was a matter internal to the respondent's organisation. The tribunal finds that these comments and the criticisms of the respondent's procedure are justified.

(b) no reasonable Tribunal could have concluded that Mr Parker was excluded from the meeting in that the evidence before the Tribunal was that Mr Parker could have been called as a witness by Mr Mathura if minded so to do, but that it was decided that Mr Parker should not act as a decision maker by reason of the fact that Mr Parker had approved the misleading claims forms compiled by Mr Mathura which were the subject matter of the disciplinary enquiry;

(c) with regard to the original "leakage", as appears from paragraph 11 of the Reasons for the Decision, Dr Idem was informed of Mr Mathura's suspension by Mr Blakeney. No evidence existed to justify a conclusion that anyone for whom the Appellant is liable "leaked" the initial information;

(d) as to the Appellant wanting to advise the Commonwealth Institute, whilst it is denied that the Appellant wanted to or did so advise, the Tribunal erred in law in holding that the conduct of Mr Mathura was a matter internal to the Appellant in that any reasonable tribunal would have concluded that the Commonwealth Institute had a

(5) at paragraph 21 of its decision the Industrial Tribunal found:

21 Mr Gan denied that he had ever made the threat to hound the applicant out of his job or anything similar. He said the first opportunity he had to refute this allegation was at the tribunal hearing. This is inconsistent with the evidence of Mr Davies who said that he put the allegation to Mr Gan on 2 April and his reply had been that the words were "out of context". Mr Smith also recalls the applicant referring to the matter in front of Mr Gan on 26 April. We accept Mr Davies' version and we accept the evidence of the applicant who we found to be a witness of truth. We find as a fact that Mr Gan did threaten to "hound the applicant out of his 'prestigious job'".

whereas:

the evidence before the Tribunal was that Mr Gan said in cross examination that the hearing was the first public opportunity to deny the allegation. In the premises the Tribunal erred in law to the extent to which it concluded that Mr Gan did make the alleged threat on the basis of the alleged evidence given by Mr Gan that the hearing was the first opportunity to deny the allegations as unqualified by Mr Gan's statement in cross examination.

(6) at paragraph 23 of its decision the Tribunal found:

23 We then considered the evidence of another employee, Mr Pryce, who had been employed by the respondent as a youth liaison worker from September 1983 until he left of his own accord in July 1985. He told us that when he learned of the difficulties the applicant was experiencing over subsistence and travel claims it was clear that he was in a similar position. He had also given in his notice because he had secured a new post. He wrote to the respondent that he might have been overpaid on his travelling expenses. He was told to pay back what was owed.

whereas:

The evidence before the Tribunal from inter alios Mr Pryce was that the overpayment to him was the result of the administrative mistake of the Appellant. In the premises no reasonable tribunal could conclude that the treatment received by Mr Pryce had any relevance to the treatment of Mr Mathura and, further, the Tribunal misstated the facts with regard to Mr Pryce by failing to set out the matter aforesaid.

(7) at paragraphs 24-25 the Industrial Tribunal found:

24 We heard the evidence of Mr Winwood the auditor and learned the basis of the charges made against the applicant. He said that at the time he made his calculations he did not know that there was any custom and practice in that department regarding subsistence claims for evening visits. He accepted that these claims which he listed as invalid were in fact valid if that custom and practice was accepted. He also agreed that the only evidence he had that the applicant may have claimed attendance at certain places and then failed in fact to attend was negative in that he had asked various people if they had seen the applicant on a specific occasion and they had replied that they had not. He had no positive evidence that the applicant had been elsewhere at the time. Regarding the mileage claims which he listed as irregular he agreed that had each journey in fact commenced at Graylaw House and not as he had assumed from the applicant's home the mileage recorded would have been correct. He acknowledged that it would have been feasible for evening journeys to commence from Graylaw House. He also agreed that if the applicant had indeed used two motor cars instead of only the one, for the purchase of which he had a loan from the respondent, he would in no way be defrauding the respondent. They would in no way lose money. thereby although it was a breach of their rules.

25 From Mr Winwood's evidence it was clear to the tribunal that there was little evidence of substance that the applicant had defrauded the respondent intentionally or otherwise in his travelling claims. On the question of subsistence irregularities, it was the applicant who drew attention to them and they have been subsequently acknowledged to accord with long standing custom and practice within the Education Department. So much so that instructions have now been issued to clarify the situation. We had little difficulty in establishing these facts which suggest that the applicant was at most guilty of technical irregularities in recording car milometer readings and failing to declare the use of a second car. We cannot fail to be surprised that neither Mr Gan nor Mr Smith probed the matter sufficiently to reach the same conclusions and to determine the penalty accordingly.

whereas: :

no reasonable tribunal could have concluded that there was little evidence of substance and have experienced surprise in that:

(a) Mr Winwood's acceptance that if there was an accepted custom and practice then claims for subsistence would be valid is merely a tautology of no evidentiary value;

(b) no reasonable tribunal would have dismissed evidence before a tribunal of failure to make claimed journeys on the basis that the employer had evidence that the claimant was not at the places claimed to have been visited» but lacked evidence as to where the claimant was and still less would hold that acting from the evidence before the employer evidenced racial discrimination;

(c) Mr Winwood's acceptance that the mileage was accurate from Graylaw House was of no evidentiary value in that the evidence before the Tribunal was such that any reasonable tribunal would have concluded that the journeys were not made from Graylaw

House or were reasonably and genuinely believed not to have been commenced therefrom by the appellant which evidence included Mr Mathura's admission to that effect in the Notes of the disciplinary hearing of 2nd April 1985.

(d) no reasonable tribunal could conclude that the admitted irregularities with regard to the repeated deliberate entry of false milometer readings upon claims forms were at most technical irregularities, which irregularities were admitted in that Mr Mathura expressly accepted the Appellant's figures.

26 In consequence the tribunal -considered that the applicant had been treated very very harshly. Apart from the conclusions drawn from Mr Winwood's evidence, we had before us the evidence of the treatment of Mrs Mason and of Mr Pryce. The attitude of Mr Gan towards the applicant appeared in contrast to be vindictive. We doubt whether he was telling us the truth when he said that he did not make known to Mr Smith his views about allowing the applicant to withdraw his resignation. He even allowed his attitude to show in the letter he drafted to the Commonwealth Institute on 1 May 1985 in reply to their letter of 17 April (R62 and R63).

(a) by reason of the matters pleaded to herein above, no reasonable tribunal could have concluded that Mr Mathura was treated very very harshly or that Mr Gan was vindictive;

(b) by reason of the matters pleaded to herein-below no reasonable tribunal could have concluded that Mr Gan "even allowed his attitude to show in the letter he drafted to the Commonwealth Institute."

(9) At paragraphs 27-29 of its decision the Tribunal found:

27 The way the respondent dealt with the letter from the Commonwealth Institute causes us great concern. It is dated 17 April and was received by the respondent before the applicant's post with the Commonwealth Institute was withdrawn but after the time for an appeal against suspension had expired. It was not replied to until 1 May when the applicant's resignation had taken effect. According to Mr Smith he did not reply sooner because he believed that the applicant might still exercise his right of appeal. The applicant was told by Mr Gan in the letter dated 4 April 1985 that he had 10 days to appeal from that date. We cannot understand how Mr Smith could be so wrong on his facts unless he was deliberately misinformed. He said that the letter in reply was drafted by Mr Gan but revised by himself and vetted by the legal department. We note that the letter is not signed by Mr Smith and it bears the initials of Mr Gan at the head. It was in fact signed by Mr Gan and copied to Mr Smith subsequently.

28 The tribunal is quite satisfied that the answers to the three questions posed by the Institute were made by Mr Gan. Question 2 in the letter from the Institute asks: "In the normal course of events, would Mr Mathura be able to resume his post in the Education Department of the London Borough of Waltham Forest without further penalty at the end of his month's suspension?" The answer given is: "This is a hypothetical question. Any answer I gave could only relate to all the circumstances of the applicant's employment with the Authority. As a new employer you have to make your decision on your own interpretation of the facts." This is inconsistent with the evidence given to the tribunal by Mr Smith which was that the penalty for major irregularities (i.e. mileage and subsistence claims) would have been first a final written warning and secondly dismissal. He knew of no dismissals in the time he had been with the respondent for irregularities like this. He continued that dismissal would hinge on the extent to which on the evidence presented there were not just irregularities but an indication of a callous indifference to the workings of the respondent's procedures a "reckless disregard to the respondent's way of doing business; it does not need dishonesty". At no stage were such charges made against the applicant and Mr Smith confirmed our view that the applicant would not have been dismissed had he not already tendered his resignation. The reply to the Institute to this question was at best an evasion and could be construed as deliberately misleading.

29 • Question 3 asks: "Is there any evidence that the irregularities alleged against Mr Mathura were being practised by other members of his department, who, however wrongly, might have assumed that these were the principles on which car mileage claims could be put forward?" The answer is an unqualified "No". Yet according to Mrs Rollason, a respondent employee and a former employee, Mr Barker, the custom and practice was to claim subsistence and mileage for evening work. The evidence of Mr Winwood confirmed that he later learned that it was custom and practice in that department. It is difficult to believe that Mr Gan was unaware of this custom and practice and therefore that the answer that he gave was untrue.

(a) no reasonable tribunal properly directing itself upon the evidence and in particular Mr Smith's experience and the lack of any evidence that he had been misinformed, that Mr Smith was misinformed;

(b) no reasonable tribunal could have concluded that the answers to the three main questions were Mr Gan's in that the evidence before the Tribunal was that the letter

(c) no reasonable tribunal could have concluded that the answers to question 2 was inconsistent with Mr Smith's evidence in that:

(i) Mr Smith did not state that Mr Mathura would not have been dismissed;

(ii) the notes at R11 and the letter at R19 refer to the seriousness of the allegations against Mr Mathura. In the premises the Tribunal erred in holding that at no stage were "such charges made against Mr Mathura".

In the further premises no reasonable Tribunal could conclude that the reply was evasive and/ or deliberately misleading.

(d) no reasonable tribunal could have concluded that the answer to question 3 was untrue in that, as Mr Smith's testified, the question related to car mileage claims, as to which evidence relating to subsistence claims was irrelevant, and, further, as to which no evidence existed to justify a finding by a reasonable tribunal that Mr Mathura's irregularities with regard to car mileage claims were assumed to be legitimate.

(e) the evidence of Mr Winwood did not confirm that he learned of the alleged custom and practice.

(10) At paragraph 30 of its decision the Tribunal found:

30 The evidence we had from Mr Jones regarding Mr Hobday's attitude was found very revealing. He said he did not think that Hobday would be "very partial to working with a black colleague. Young black people would be acceptable if they knew their place". He continued, "He would never have been able to accept abuse from black people as I have to in my area. The fact that he was black would have registered most acutely with Hobday". We find that the only inference we can draw from Mr Hobday's conduct is that it was the applicant's colour which caused him to pass on information to Dr Ntuk Idem which he. knew would be harmful to the applicant. In the absence of any other motive we are bound to infer that his act was racially inspired.

whereas:

no reasonable tribunal could have concluded that the only reason for Mr Hobday passing on information (which is denied) was Mr Mathura's colour. On the findings of the Tribunal, Mr Hobday was telephoned, without warning, by Dr Idem and asked about Mr Mathura's suspension and in reply Mr Hobday told Dr Idem the truth about a matter within the legitimate sphere of knowledge or enquiry of the Commonwealth Institute, and about which it was already aware. In the premises no reasonable tribunal could have concluded that Mr Hobday so acted by reason of Mr Mathura's colour and/ or that no other motive than racial prejudice existed,

(11) at paragraph 31 of its decision the Tribunal found:

31 We considered the primary facts. We find that applicants was treated most harshly and the penalty was very severe for irregularities which even if proven are fairly common; some four or so cases are heard every year within the respondent's organisation. The alleged irregularities were based on assumptions and from the evidence of Mr Winwood may have been open to other explanations. In any event even if the mileage offences were fully established Mrs Mason had been treated very much more leniently with less length of service.

whereas:

(a) by reason of the aforesaid, no reasonable tribunal could have concluded that Mr Mathura was treated most harshly and very severely;

(b) no reasonable tribunal could have concluded -that 4 cases a year made irregularities fairly common? or that the irregularities were open to other reasonable explanation? or that Mrs Mason was treated more leniently in any relevant way in that she was disciplined by another person, the penalties for Mr Mathura and Mrs Mason falling within the legitimate area of discretion of those charged with effecting discipline. (12) at paragraph 32 of its decision the Tribunal found:

32 If the applicant was acting so irregularly what action had the respondent taken regarding his immediate supervisor, Mr Parker, who had authorised all the applicant's claims? We did not hear from Mr Parker. We know he did not attend any of the disciplinary hearings. The reason advanced for this was that it had been considered that he might have been "colluding" with the applicant. We tried to discover if any disciplinary action had been taken against him. Mr Khanna believed there had been a warning but had no evidence to support this. Mr Smith told us that he did not consider this matter to be finally closed.

whereas:

no reasonable tribunal could have concluded, if the Tribunal did so conclude, that actions with regard to Mr Parker evidenced racial discrimination in that his exclusion from decision-making at the disciplinary enquiry was justified for the reasons aforesaid and no reasonable tribunal could have doubted Mr Smith's statement (if it was doubted) which is further evidenced by the fact that Mr Parker did receive a warding as Mr Khanna alleged.

(13) at paragraph 34-36 of its decision the Tribunal found:

34 The only other relevant evidence we heard came from the applicant's witnesses, Mr Jones and Mr Pryce where there was allusion to the attitude of the applicant's colleagues to him. The attitude of Mr Hobday towards black people as reported by Mr Jones has already been referred to. Mr Pryce said that Mrs Rollason had criticised the applicant adversely on a number of occasions at meetings of her staff (of whom Mr Pryce was one) . He in fact took up this matter by writing to Mr Parker. He also said that he "knew or had a feeling that the applicant was not liked by certain people in his office", that "he was very very self confident and clear about what he was doing and made sure people knew that. Some people took exception to his educational qualifications. He was a very verbal person and difficult to argue with".

35 Was the harsh and severe treatment meted out to the applicant simply because he was disliked? If that was the case why were neither Mr Gan nor Mr Hobday prepared to say in evidence that they disliked the applicant. Mr Smith told us that in his view the applicant has "substantial qualities as a Youth and Community Officer; a very good communicator with young people and with youth liaison; particularly good at selling social education to young people". We were told that in a Borough with a substantial ethnic minority population there was a recognised shortage of non-white staff in the Education Department. Why therefore was there a refusal to allow the applicant to withdraw his resignation?

36 We also considered whether the reason for the harsh treatment of the applicant might have been motivated by jealousy and envy that he had secured such a plum position with the Commonwealth Institute. The conclusion we reached on both these points was that the degree of malice and vindictiveness shown to the applicant justified an additional dimension to dislike, jealousy and envy. The only inference we could draw was that the additional dimension was racial. Had the applicant been white but the object of personal dislike and envy we do not believe he would have been treated in the way he was treated.

whereas

(a) the Industrial Tribunal erred in that if the Tribunal concluded that Mr Gan and Mr Hobday did not dislike Mr Mathura, no reasonable tribunal could have concluded that Mr Gan and Mr Hobday acted out of racial prejudice against Mr Mathura, alternatively if the Industrial

Tribunal concluded that Mr Gan and Mr Hobday did dislike Mr Mathura (other than on the basis of his colour) and/ or were jealous and/ or envious of him then the Tribunal erred in failing to conclude on the basis of Perara v Civil Service Commission [1983] 1 CR 428 and the evidence before the Tribunal, as any reasonable tribunal would have concluded, that any harsh treatment (which is denied) resulted from the dislike and/ or jealousy and/ or envy and not racial prejudice.

(b) further, for the reasons pleaded herein applicant applicant above, no reasonable tribunal on the evidence before the Tribunal could have concluded that an additional element of racial prejudice existed let alone that such an element affected the treatment of Mr Mathura by the Respondent or any of its servants or agents.

(14) at paragraph 37 of its decision the Tribunal found:

37 Direct evidence of discrimination was not available to us save for the views expressed by Mr Jones regarding Mr Hobday and the evidence we" heard from Mr Pryce regarding Mrs Rollason's racial prejudices as he saw them. That being the case we had to look for the only affirmative evidence which we could draw by way of inferences from the primary facts. Having done so we find that there has been racial discrimination against the applicant by Mr Gan and by Mr Hobday; in the case of the latter limited to the initial telephone conversation with Dr Ntuk Idem we find that in addition the applicant was treated harshly by the respondent and differently from that treatment of Mr Coogan and Mrs Mason and we find this discrimination was on grounds of race.

whereas

(a) the Tribunal erred in that it failed to have any or any due regard for the evidence before it denying racial prejudice on the part of the Appellant or its servants and/ or agents upon which evidence and the whole of the evidence before the Tribunal, no reasonable Tribunal could have concluded n that discrimination on racial grounds occurred or racial prejudice existed in the Appellant:

B. The Industrial Tribunal erred in law in finding as no reasonable Tribunal could have found properly directing itself in law that the Appellant racially discriminated against Mr Mathura.

Particulars of Grounds

The Appellant repeats paragraphs A(l) (14) herein above. 6. A copy of the Industrial Tribunal's decision or order and of the full written reasons for that decision or order are attached to this notice

7 A copy of the chairman's notes of Guidance is requested.

Dated 31st July 1986

Signed: P G Anderson
Assistant Borough Solicitor
London Borough of Waltham Forest

Appendix IV

CHRONOLOGY

Appendix V

Background to the case

In early 1984 the Internal Audit Division commenced investigations into mileage claims made by Mr Mathura during 1983 as part of routine audit checks. These investigations were suspended for a period during 1984 and recommenced much later in 1984 and early 1985. The Education Department were not told of these investigations until the Internal Audit Division had gathered together a considerable amount of evidence of suspected irregularities. Mr Winwood, the Principal Auditor leading the investigation, brought the matter to the attention of Mr Gan on or about 15th March, 1985. On 18th March 1985 Mr Mathura was faced with the allegations, and suspended on full pay whilst further investigations were carried out. On 2nd April, 1985 a disciplinary hearing was conducted by Mr Gan. He decided that Mr Mathura would be suspended from his present post, without pay, from 1st April 1985 to 30th April, 1985 and that the 'Essential User' car allowance would likewise be suspended for the same period. His claims for February and March 1985 were also withheld from payment.

Earlier in 1985 Mr Mathura had applied for the post of Chief Education Officer at the Commonwealth Institute. This is an important third tier post within that organisation. Having successfully got over a preliminary interview, he sought the permission of Mr Parker, the Principal Youth & Community Officer to give his name as a further reference, should it be required. He had already given the names of two other referees who were unconnected with the Council. The Commonwealth Institute did not seek a written reference from the Council, but made an oral enquiry of Mr Parker before offering the appointment to Mr Mathura. He resigned in February 1985 with the intention of commencing his new appointment on 1st May, 1985.

During this period of his notice several important events occurred:

(a) On 12th March he was interviewed by Mr Gan concerning an allegation of a breach of confidentiality which had been brought to the latter's attention by Mrs Rollason. A transcript of an interview between Mr Mathura with a Community Liaison Worker, with annotations by Mr Mathura about the aptitude and ability of the Worker, had been sent to another subordinate Youth Worker. Mr Gan dressed him down Over it, but proposed to take no further action.

It was during the course of this interview that Mr Mathura alleges that Mr Gan made the comment that he would "hound him out of his new job, your prestigious job".

(b) On 15th March Mr Winwood brought to Mr Gan's notice the suspected irregularities, and on 18th March Mr Mathura was faced with the allegations and suspended on full pay.

(c) The culmination of other difficulties within the Ethnic Minorities Unit (EMU) came on 20th March 1985 when Mr Fitzsimmons, a local NALGO representative, met Mr Gan to discuss the probationary service of two black Youth Workers employed in the Unit. They gave notice the following day that they would be leaving in September to take up full-time teacher training.

(d) On 2nd April the disciplinary hearing resulting in Mr. Mathura's

suspension without pay was held. It was concluded between between 2.00 and 2.30 p.m. Before the hearing Mr Davies, the NUT Regional Officer, raised with Mr Gan the question as to whether it was proper for Mr Gan to hear the case in view of the event of 12th March. Nevertheless, Mr Gan heard the case.

(e) On 2nd April, shortly after 4 p.m., there was a telephone call from Dr. Idem of the Commonwealth Institute which was answered by Mr Hobday. (There are two-versions of the substance of the ;

conversation which ensued).

(f) On 3rd April, there was a disciplinary hearing of car mileage irregularities concerning Mrs Mason, employed in a different Division of the Education Department, by Mr I. Smith. His decision was that she would be required to repay the over claim and given a final warning. She did not appeal against the decision.

(g) At about 5.00 p.m. on 3rd April 1985 a telephone call from Mr Bourne, Deputy Director of the Commonwealth Institute, was taken by Mr. Gan. He said that he had heard from two different sources that Mr. Mathura had been suspended without pay for irregularities with his car mileage claims. He also said that the disciplinary hearing had been heard the previous day, that Mr Mathura had been suspended without pay, and could this be confirmed. An immediate answer was not given. Mr Gan rang Mr Bourne back to confirm that Mr Mathura had been suspended without pay, but that the matter was subject to appeal.

(h) The Commonwealth Institute wrote to Mr Mathura on 4th April asking for details concerning the present circumstances of his suspension and an indication as to whether he intended to appeal against any decision already taken. The letter also invited him to telephone Mr Dunleavy of the Commonwealth Institute after the Easter break to discuss the situation (N.B. Good Friday 5th April and Easter Monday 8th April 1985).

(i) Mr Mathura subsequently was interviewed by officers of the Commonwealth Institute, and on 17th April the Deputy Director wrote to the Chief Education Officer posing various questions about the matter.

(j) Various draft replies to this letter were prepared from 19th April, and were subjected to consultations with various officers in several departments. The final version dated 1st May, 1985 was apparently not received by the Commonwealth Institute.

(k) The Institute, before receiving a reply to their request for information, withdrew the offer of appointment to Mr Mathura on 26th April, 1985.

(l) Mr Mathura did not appeal against the decision within the ten working days from the receipt of the notice of the disciplinary action i.e. 23rd April, 1985. (N.B. the letter notifying the decision dated 4th April, 1985 was not received until 9th April 1985).

(m) On 25th April the NUT Solicitor wrote to the Chief Education Officer stating that the Institute had withdrawn the offer of appointment, and that Mr Mathura wished to withdraw his resignation.

(n) On 26th April the Chief Education Officer replied stating "Given the circumstances, I do not feel able to accept Mr Mathura's withdrawal of his resignation from the Council's services. Steps have already been taken to fill the position which,Mr Mathura has vacated and from which he gave notice some time ago." .

4. Subsequent to the end of the Mr. Mathura's service with the Council on 30th April, 1985, the events of significance were:

(a) The Chief Education Officer and Mr Gan met Mr Mathura with his NUT representative, Mr D. Davies to consider representations concerning the decision not to re-engage. The Chief Education Officer undertook to give a prompt reply to a statement of case presented by Mr. Davies on Mr Mathura's behalf.

(b) On 9th May the NUT Solicitor wrote to the Chief Education Officer formally requesting an "out of time" appeal.

(c) On 10th May the Chief Education Officer, having consulted the

Borough Solicitor's and Personnel Departments, declined to allow the "out of time" appeal.

(d) Following a further letter from the NUT, the Chief Education Officer replied on 22nd May concerning allegations that the Commonwealth Institute through Dr. Moses Idem had been approached on or about 4th April by a member of the Youth & Community Service of the London Borough of Waltham Forest and informed of the decisions of 2nd April. He informed the NUT Solicitor that, having questioned various officers that he had been unable to identify the sources of the leakage. An officer alluded to in the NUT letter had flatly denied passing any information to the Institute or having breached confidentiality formally or informally.

(e) On 6th June further representations for an "out of time" appeal were made.

(f) Mr Mathura filed ITI on 24th June 1985.

(g) On 27th June, following consultation with the Borough Solicitor's & Personnel Departments, the Chief Education Officer answered a number of points made, and concluded that he took the view that the reasons for requesting a late appeal and the grounds upon which the appeal might be pursued were not substantial. The Chairs of the Education and Staffing Committees were supplied with copies of the correspondence.

(h) On 24th June 1985 Mr Mathura made a complaint of racial

discrimination to the Commission for Racial Equality under the Race Relations Act 1976 Section 65 (1) (2). ' ,

(i) On 17th July the Borough Solicitor replied to the Commission for

Racial Equality asking that the matter be left in abeyance pending the outcome of the Industrial Tribunal action.

(j) On 31st July a meeting was convened by the Borough Solicitor to

discuss with the Chief Education Officer and the Assistant Director (Personnel) the receipt of a notice of an application for judicial review.

(k) On 20th September Mr Mathura was advised that the Chair of the

Staffing Committee had agreed to an "out of time" appeal, and that the Appeals Committee would be meeting on 16th October 1985.

TTHE INDUSTRIAL TRIBUNALS

Case Number 16606/85/LN/B

BETWEEN

Applicant Mr E Mathura

Respondent LONDON BOROUGH OF WALTHAM FOREST

LBWF Personnel dept date stamp 23 JUN 1986

DECISION OF THE INDUSTRIAL TRIBUNAL

HELD AT London (North) ON 30 April 1986 1, 2, 13 May 1986

CHAIRMAN: Mrs F Stoll
MEMBERS: Mr J Lennox Mr A M Robertson

DECISION

The unanimous of the Tribunal is that the applicant was discriminated against in breach of Section 1(1)(a) and Section A(2)(c) of the Race Relations Act 1976.

The remedy to which the applicant is entitled will be determined by the tribunal on a date to be fixed before 14 July 1986, unless in the meantime the parties have notified the Tribunal that agreement has been reached.

FULL REASONS

1 The applicant, Mr E Mathura, was employed by the London Borough of Waltham Forest as Assistant Youth and Community Officer (Training) in the Education Department. He commenced his employment on 1 September 1980. He was suspended without pay with effect from 2 April 1985. He had previously tendered his resignation with effect from 1 May 1985 in anticipation of taking up an appointment from that date at the Commonwealth Institute.

2 The applicant alleges that he was discriminated against by Richard Gan, his Senior Education Officer in that he failed to receive comparable treatment to that given to two white colleagues.

3 In the course of his evidence to the tribunal the applicant alleged as well that he considered there to have been a conspiracy between Mr Gan and other members of the Community and Youth Services Department to get rid of him.

4 The applicant, who is highly qualified academically, conducted his own case in a most able and efficient manner. He told the tribunal that he had been fortunate in securing appointment as Chief Education Officer at the

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Commonwealth Institute. This was a unique, prestigious Foreign Office appointment, which was an exceptional career advancement for him, and the first tine the Job would have been held by a black man. Consequently he handed in his resignation to Mr Gan on 4 February 1985, giving him three months' notice, and intended to take up his new position on 1 May 1985.

5 He said that Mr Gan's attitude towards him changed from then onwards. He was cold, distant and unresponsive. He could not understand this change until at a meeting in the middle of March Mr Gan concluded by saying to him, "I will hound you out of your new job your prestigious job". He said he was "shocked" and "appalled" by this threat.

6 On 15 March Mr Gan saw the applicant and said to him, "I want to see you in my office at 3.00 p.m. on Monday". He gave no indication why he wanted to see him. On Monday 18 March the applicant attended at Mr Gan's office.

Mrs Cuming, the Principal Administrative Officer in Mr Gan's group was present

but no one else. The applicant was not invited to have a colleague with him.

Mr Gan said that he had had serious charges against the applicant brought

to his attention. Notes of that meeting, taken by Mrs Cuming are produced

in the respondent's bundle of documents at page 9. The respondent was not

given a copy nor was he given an opportunity to vouch for their accuracy.

At the conclusion of that meeting the applicant was suspended on pay pending

a formal hearing and told, "to go and clear your desk out". Mr Gan in evidence

said that this was no more than an informal exploratory discussion and that

neither it nor his action in suspending the applicant contravened the respondent's

Disciplinary Code.

7 A letter dated 19 March (R13) was sent to the applicant to attend a formal disciplinary hearing on 28 March. The applicant acknowledged this letter with a note dated 25 March. We are grateful to Mr Khanna, who represented the respondent at the hearing, for producing this note after some searching through his files. It is addressed to Mr Gan and states:

"I acknowledge your letter and I am in consultation with my Union Representative, Mr Eric Watts of NAYCEO, who is unable to attend on Thursday 28 March. Mr Watts will be contacting the Borough Education Officer to arrange a new date."

8 Mr Gan's reply to this note is at R19. When asked why it was couched in such strong terms he replied that from the note he had received from the applicant he did not appear to realise the gravity of his situation. The letter states:

"...My letter to you contained an instruction for you to attend a formal disciplinary hearing, and the fact that the person whom you chose to accompany you in the capacity of a . friend or representative finds the date inconvenient, is not sufficient reason in itself to merit a postponement. This fact notwithstanding, I am in the circumstances prepared on

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this one occasion to agree to your implied request for a postponement ...."

9 The disciplinary hearing was held on 2 April 1985. Notes of this meeting are at R^3-57. These were not agreed with the applicant nor with his union representative but we were assured that this was not the respondent's practice. A letter dated 4 April sets out the decision that he had committed serious misconduct and the reasons for it* The applicant was suspended without pay from 2 April until 30 April (i»e. until the expiry of his resignation notice). The essential car user allowance was likewise suspended and his car mileage payments for journeys made in February and March 1985 were withheld. He was informed that he had to Inform the respondent in writing within 10 days of his intention to appeal.

10 The applicant said that he decided not to appeal for a number of reasons not least the fact that he would be taking up a new post on 1 Kay. On 9 April he received a letter dated A April from the Commonwealth Institute saying that they had heard that he had been suspended without pay and that they would like to see him< Subsequently on 26 April the Commonwealth Institute formally told the applicant they would not employ him. By that time the period allowed for appeal to the respondents from his suspension without pay had expired.

>11 We were most fortunate in being able to hear the evidence of Dr Moses Ntuk Idem, the Community Education Officer at the Commonwealth Institute. He said that surprisingly on 3 April he received a telephone call from a Mr Blakeney from the Roehampton Institute who said that the applicant had been suspended. He learned that Blakeney had been so informed by two students of the respondent who were taking courses with him. Dr Ntuk Idem said that he was shocked at what he heard. He informed no one else in the Commonwealth Institute but decided to make his own inquiries to see if there was any truth in what he took to be an unconfirmed rumour. He telephoned the respondent to speak to Mr Parker who he knew was the applicant's supervisor. He was out so he asked to speak to Mr Hobday with whom he was acquainted. Mr Hobday told told him on the telephone that the applicant had been suspended for certain irregularities in travel claims. He said that he made his concern clear to Mr Hobday and got the impression that "there was a sense of relief from my informant that the incident had happened". Dr Ntuk Idem said that he received a telephone call from Mr Hobday a day or so later in which Mr Hobday conveyed to him that he was anxious at having released the information about the applicant. When asked whether he had the right to impart the information Mr Hobday had replied that it was common knowledge. Nevertheless there was a further call from Mr.Hobday in which he said that he might lose his job and that he would, if confronted, deny that he had given information to Dr Ntuk Idem,

12 Subsequently during an enquiry by Mr Smith, the Chief Education Officer for the respondent, to trace the source of the leak to the Commonwealth Institute, Mr Hobday "categorically denied" releasing any information about the applicant. In evidence before us Mr Hobday said that he did not inform anyone at the Commonwealth Institute about the outcome of the disciplinary hearing on 2 April. He merely answered the telephone call from Dr Ntuk Idem for Mr Parker and said that the applicant was on leave. We do not believe Mr Hobday's evidence in

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this matter nor that he told Mr Smith the truth. We find Dr Ntuk Idem's a more accurate record of what transpired and entirely consistent with subsequent events.

13 On 26 April 1985 the applicant and his trade union representative, Mr Davies, had a meeting with Mr Smith, the Chief Education Officer, The purpose of the meeting was to ask him to allow the applicant to withdraw his resignation. He was not permitted to do so* He applied for leave to appeal out of time. This was refused so with the help of his trade union representative he applied to the High Court for a review and was then granted leave to appeal by the respondent on his agreement to withdraw his High Court application. This appeal was heard on 16 October 1985. No contemporaneous notes were made of this appeal hearing. The decision that the suspension without pay should stand is contained in a letter dated 18 October (R61). The question of the refusal of the Chief Education Officer to permit the applicant to withdraw his resignation was not considered by the Appeals Committee.

14 The applicant referred us to the way in which the respondent had dealt with two cases which he says are comparable. Firstly there is the case of Mr David Jones who was granted early retirement on favourable terms namely, the immediate payment of an enhanced pension. R6A is a copy of a letter from Mr Gan stating:

"His (Jones) early retirement would be in the efficient interests of the service."

15 Mr Jones stated in evidence that he had been approached by Mr Parker and Mr Hobday who showed him a whole file, which they alleged referred to irregularities in the way he had handled financial matters. They said if he opted for early retirement the matter would go no further. He believed that Mr Gan knew all about this offer from the very beginning. We do not consider that the facts in Mr Jones' case are comparable to those in the applicant's case. The irregularities were of a procedural nature and there was no hint ^. of any financial impropriety.

16 We considered the case of Mr Coogan, a white employee of the respondent, in the same department as the applicant. He was dismissed for gross misconduct which is a graver offence than serious misconduct with which the applicant was charged. He was dismissed and subsequently at appeal before an Industrial Tribunal he was ordered to be re-instated on the payroll after suspension without pay. The reason for this was "in view of his previous satisfactory record of service"•

17. We consider this case to be a comparable case to that of the applicant. The offence was the assault by Mr Coogan on a black youth in his charge. It raises the presumption that had Mr Coogan not been white he would have been treated differently. In this context we note the difference in tone of the letters which passed between him and Mr Gan when a postponement of the disciplinary

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hearing was sought (R70 and 71).

18 In the course of the hearing we heard that a white woman employee (a Mrs Mason) in the same department as the applicant had appeared before Mr Smith at a disciplinary hearing where it was found that she had made irregular travelling claims for a "fair sum of money". She was in her third year of service with the respondent; the applicant was in his fifth year of service at the time of his offence. She was given a final written warning and required to pay back the excess money claimed< We later heard from Mr Winwood, the Group Auditor in the Finance Department that the over claim had amounted to £443.35 over the period January 1983 to May 1985. We consider this to be a case comparable with the applicant's. She was white and received nothing more than a final written warning. The applicant, because of the refusal to permit him to withdraw his resignation, was in effect dismissed as well as having to pay a substantial financial penalty. Mr Smith handled both cases within a comparatively short time scale. We can only infer that the only difference was that she was white and the applicant was not.

19 The greatest reliance is put by the applicant on the treatment he received from Mr Gan. He avers that the threat to hound him out of his new job by Mr Gan was effectively carried out. He was subjected to discriminatory treatment from March 1985 when he was called into his office to answer charges that he had breached confidentiality. This matter was brought to Mr Gan's attention in an unusual manner by Mrs Rollason, a colleague of the applicant. It was a matter which the applicant considered should have been dealt with by his supervisor, Mr Parker and was not in his view a breach of confidentiality. Thereafter he relies on the conduct of Mr Gan in the severity of the punishment afforded him, and in the dealings the respondent had with the Commonwealth -Institute which were largely at Mr Gan's initiative.

20 Mr Davies the NUT Regional Official for 16 outer London boroughs accompanied the applicant at the hearing on 2 April and at the meeting he asked for with Mr Smith on 26 April. We found Mr Davies a careful witness who gave due thought to all his replies all of which we accept as accurate. We preferred his evidence to that of Mr Gan where there was a conflict. He said that he would describe Mr Gan's conduct as "grilling" the applicant during the hearing on 2 April. He objected to the way the applicant had been suspended at the end of the "informal" hearing on 18 March which he did not accept as proper procedure. He had challenged Mr Gan's hearing of the case on 2 April because of his conducting the "informal" hearing on 18 March but it was strictly within the Disciplinary Code. He said that he was surprised that Mr Parker was excluded from all the hearings because he considered that he was the one person who could have shed light on what had been termed "irregularities". With reference to the leak of the suspension of the applicant to the Commonwealth Institute he said he was surprised that anything was said to anyone outside before the appeal had been heard or the appeal period expired. Further he could see no reason why the respondent should want to advise the Commonwealth Institute of what was a matter internal to the respondent's organisation. The tribunal finds that these comments and the criticisms of the respondent's procedure are justified,

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21 Mr Gan denied that he had ever made the threat to hound the applicant out of his job or anything similar. He said the first opportunity he had to refute this allegation was at the tribunal hearing. This is inconsistent with the evidence of Mr Davies who said that he put the allegation to Mr Gan on 2 April and his reply had been that the words were "out of context". Mr Smith also recalls the applicant referring to the matter in front of Mr Gan on 26 April. We accept Mr Davies( version and we accept the evidence of the applicant who we found to be a witness of truth. We find as a fact that Mr Gan did threaten to "hound the applicant out of his 'prestigious job'".

22 We found that we were quite unable to accept most of Mr Gan's evidence. His recollection of events suffered from convenient amnesia; events which Mr Smith had no difficulty in recalling. Such statements as Mr Gan did make were inconsistent with documentary and oral evidence from witnesses, whom we accepted as truthful if only because they had no cause to be otherwise. For example, he said that Mr Smith had not told him the reason for the meeting on 26 April. Mr Smith said he had. He told Mr Smith that he had offered to Mr Davies the opportunity for someone else taking the chair at the meeting on 2 April, We accept from Mr Davies that this is untrue. We do not accept that he did not know of the deal offered to Mr Jones for early retirement on favourable terms.

23 We then considered the evidence of another employee, Mr Pryce, who had been employed by the respondent as a youth liaison worker from September 1983 until he left of his own accord in July 1985. He told us that when he learned of the difficulties the applicant was experiencing over subsistence and travel claims it was clear that he was in a similar position. He had also given in his notice because he had secured a new post. He wrote to the respondent that he might have been overpaid on his travelling expenses. He was told to pay back what was owed.

24 We heard the evidence of Mr Winwood the auditor and learned the basis of the charges made against the applicant. He said that at the time he made his calculations he did not know that there was any custom and practice in that department regarding subsistence claims for evening visits. He accepted that these claims which he listed as invalid were in fact valid if that custom and practice was accepted. He also agreed that the only evidence he had that the applicant may have claimed attendance at certain places and then failed in fact to attend was negative in that he had asked various people if they had seen the applicant on a specific occasion and they had replied that they had not., He had no positive evidence that the applicant had been elsewhere at the time. Regarding the mileage claims which he listed as irregular he agreed that had each journey in fact commenced at Graylaw House and not as he had assumed from the applicant's home the mileage recorded would have been correct. He acknowledged that it would have been feasible for evening journeys to commence 'from Graylaw House. He also agreed that if the applicant had indeed used two motor cars instead of only the one, for the purchase of which he had a loan from the respondent, he would in no way be defrauding the respondent. They would in no way lose money thereby although it was a breach of their rules.

25 From Mr Winwood's evidence it was clear to the tribunal that there was little evidence of substance that the applicant had defrauded the respondent intentionally or otherwise in his travelling claims. On the question of subsistence irregularities, it was the applicant who drew attention to them and they have been subsequently acknowledged to accord with long standing custom and practice within the Education Department. So much so that instructions have now been issued to clarify the situation. We had little difficulty in establishing these facts which suggest that the applicant was at most guilty of technical irregularities in recording car milometer readings and failing to declare the use of a second car. We cannot fail to be surprised that neither Mr Gan nor Mr Smith probed the matter sufficiently to reach the same conclusions and to determine the penalty accordingly.

26 In consequence the tribunal considered that the applicant had been treated very very harshly. Apart from the conclusions drawn from Mr Winwood's evidence, we had before us the evidence of the treatment of Mrs Mason and of Mr Pryce. The attitude of Mr Gan towards the applicant appeared in contrast to be vindictive. We doubt whether he was telling us the truth when he said that he did not make known to Mr Smith his views about allowing the applicant to withdraw his resignation. He even allowed his attitude to show in the letter he drafted to the Commonwealth Institute on 1 May 1985 in reply to their letter of 17 April (R62 and R63).

27 The way the respondent dealt with the letter from the Commonwealth Institute causes us great concern. It is dated 17 April and was received by the respondent before the applicant's post with the Commonwealth Institute was withdrawn but after the time for an appeal against suspension had expired. It was not replied to until 1 May when the applicant's resignation had taken effect. According to Mr Smith he did not reply sooner because he believed that the applicant might still exercise his right of appeal. The applicant was told by Mr Gan in the-letter dated 4 April 1985 that he had 10 days to appeal from that date. We cannot understand how Mr Smith could be so wrong on his facts unless he was deliberately misinformed. He said that the letter in reply was drafted by Mr Gan but revised by himself and vetted by the legal department. We note that the letter is not signed by Mr Smith and it bears the initials of Mr Gan at the head. It was in fact signed by Mr Gan and copied to Mr Smith subsequently.

28 The tribunal is quite satisfied that the answers to the three questions posed by the Institute were made by Mr Gan. Question 2 in the letter from the Institute asks: "In the normal course of events, would Mr Mathura be able to resume his post in the Education Department of the London Borough of Waltham Forest without further penalty at the end of his month's suspension?" The answer given is; "This is a hypothetical question. Any answer I gave could only relate to all the circumstances of the applicants employment with the Authority. ' As a new employer you have to make your decision on your own Interpretation of the facts." This is inconsistent with the evidence given to the tribunal by Mr Smith which was that the penalty for major irregularities (i.e. mileage and subsistence claims would have been first a final written warning and secondly dismissal. He knew of no dismissals in the time he had been with the respondent for irregularities like this. He continued that dismissal would

hinge on the extent to which on the evidence presented there were not just irregularities but an indication of a callous indifference to the workings of the respondent's procedures a "reckless disregard to the respondent's way of doing business? it does not need dishonesty". At no stage were such charges made against the applicant and Mr Smith confirmed our view that the applicant would not have been dismissed had he not already tendered his resignation. The reply to the Institute to this question was at best an evasion and could be construed as deliberately misleading.

29 Question 3 asks: "Is there any evidence that the irregularities alleged against Mr Mathura were being practised by other members of his department, who, however wrongly, might have assumed that these were the principles on which car mileage claims could be put forward?" The answer is an unqualified "No". Yet according to Mrs Rollason, a respondent employee and a former employee, Mr Barker, the custom and practice was to claim subsistence and mileage for evening work. The evidence of Mr Winwood confirmed that he later learned that '^it was custom and practice in that department. It is difficult to believe that Mr Gan was unaware of this custom and practice and therefore that the answer that he gave was untrue.

30 The evidence we had from Mr Jones regarding Mr Hobday's attitude was found very revealing. He said he did not think that Hobday would be "very partial to working with a black colleague. Young black people would be acceptable if they knew their place". He continued, "He would never have been able to accept abuse from black people as I have to in my area. The fact that he was black would have registered most acutely with Hobday". We find that the only inference we can draw from Mr Hobday "s conduct is that it was the applicant's colour which caused him to pass on information to Dr Ntuk Idem which he knew would be harmful to the applicant. In the absence of any other motive we are bound to infer that his act was racially inspired.

31 We considered the primary facts. We find that the applicant was treated most harshly and the penalty was very severe for irregularities which even if proven are fairly common; some four or so cases are heard every year within the respondent's organisation. The alleged irregularities were based on assumptions and from the evidence of Mr Winwood may have been open to other explanations. In any event even if the mileage offences were fully established Mrs Mason had been treated very much more leniently with less length of service.

32 If the applicant was acting so irregularly what action had the respondent taken regarding his immediate supervisor, Mr Parker, who had authorised all the applicant's claims? We did not hear from Mr Parker. We know he did not attend any of the disciplinary hearings. The reason advanced for this was that it had been considered that he might have been "colluding" with the applicant. We tried to discover if any disciplinary action had been taken against him, Mr Khanna believed there had been a warning but had no evidence to support this. Mr Smith told us that he did not consider this matter to be finally closed.

33 Mr Khanna referred to the case of Perara -v-Civil Service Commission & Another (1983) ICR 428. He urged us to distinguish mere prejudice from discrimination. We weighed very carefully the evidence we had which could have shown that for some reason the applicant was disliked or unpopular with his colleagues. We were told by Mr Gan that the only reason he was relieved to hear that the applicant intended to resign was that had he remained with the respondent he (Mr Gan) would have had to conduct a grievance hearing on the part of two black students who had complained to him of the way the applicant had treated them, Mr Smith knew nothing of this. It was not put to the applicant.

34 The only other relevant evidence we heard came from the applicant's witnesses,

Mr Jones and Mr Pryce where there was allusion to the attitude of the applicant's

colleagues to him. The attitude of Mr Hobday towards black people as reported

by Mr Jones has already been referred to. Mr Pryce said that Mrs Rollason

had criticised the applicant adversely on a number of occasions at meetings

of her staff (of whom Mr Pryce was one). He in fact took up this matter by

writing to Mr Parker. He also said that he "knew or had a feeling that the

applicant was not liked by certain people in his office", that "he was very

very self confident and clear about what he was doing and made sure people

knew that* Some people took exception to his educational qualifications*

He was a very verbal person and difficult to argue with".

35 Was the harsh and severe treatment meted out to the applicant simply because he was disliked? If that was the case why were neither Mr Gan nor Mr Hobday prepared to say in evidence that they disliked the applicant. Mr Smith told us that in his view the applicant has "substantial qualities as a Youth and Community Officer; a very good communicator with young people and with youth liaison; particularly good at selling social education to young people". We were told that in a Borough with a substantial ethnic minority population there was a recognised shortage of non-white staff in the Education Department. Why therefore was there a refusal to allow the applicant to withdraw his resignation?

36 We also considered whether the reason for the harsh treatment of the applicant might have been motivated by jealousy and envy that he had secured such a plum position with the Commonwealth Institute. The conclusion we reached on both these points was that the degree of malice and vindictiveness shown to the applicant justified an additional dimension to dislike, jealousy and envy. The only inference we could draw was that the additional dimension was racial. Had the applicant been white but the object of personal dislike and envy we do not believe he would have been treated in the way he was treated.

37 Direct evidence of discrimination was not available to us save for the views expressed by Mr Jones regarding Mr Hobday and the evidence we heard from Mr Pryce regarding Mrs Rollason^ racial prejudices as he saw them. That being the case we had to look for the only affirmative evidence which we could draw by way of inferences from the primary facts. Having done so we find that there has been racial discrimination against the applicant by Mr Gan and by Mr Hobday? in the case of the latter limited to the initial telephone conversation with

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Dr Ntuk Idem. We find that in addition the applicant was treated harshly by the respondent and differently from their treatment of Mr Coogan and Mrs Mason, and we find this discrimination was on the grounds of race.

38 The tribunal does not accept that there was a conspiracy involving Mr Hobday, Mrs Rollason and Mr Smith to get rid of the applicant on racial grounds.

Chairman

RESERVED DECISION

Date: 20 June 1986

Decision entered in Register and copies sent to parties on 20 June 1986

M. Thomas (Miss) for Secretary of the Tribunals