Appeal No. UKEAT/0475/03/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 November 2003
Judgment delivered on 26 November 2003

Before
THE HONOURABLE MR JUSTICE KEITH
MR D NORMAN
MRS R A VICKERS

DR D SIMBA	APPELLANT

CRAWLEY BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	DR D SIMBA
THE APPELLANT
IN PERSON	
For the Respondent	MR KEVIN HARRIS
(of Counsel)
Instructed By:
Crawley Borough Council
Town Hall
The Boulevard
Crawley
West Sussex RH10 1UZ	

THE HONOURABLE MR JUSTICE KEITH:

Introduction

1.   The appellant, Dr D Simba, applied for the post of housing policy and research officer with the respondent, Crawley Borough Council (“the Council”).   He was not short-listed for the post.   He presented an originating application complaining that, in deciding not to short-list him, the Council had discriminated against him on the ground of his race.   An Employment Tribunal at London South dismissed his claim, and he now appeals against the dismissal of his claim.   At the conclusion of the hearing we announced that the appeal would be dismissed.   We said that we would put our reasons into writing, and this we now do.

The allegation of direct discrimination

2.   Dr Simba is black.   He came to the UK from Kenya.   The two other persons who applied for the post were short-listed.   They were white.   So too were the two officers of the Council who decided which of the applicants for the post should be short-listed.   Dr Simba’s case, as set out in his originating application, was that, although he had met the criteria for the post, he had not been short-listed, whereas a white candidate with lesser qualifications and experience had been short-listed.   It was therefore a case of “direct” discrimination.   

3.   In its notice of appearance, the Council stated that Dr Simba had not been short-listed because (a) his “qualifications, experience and knowledge [had] not relate[d] sufficiently to the candidate specification”, (b) his application had been poorly presented, and (c) there had been other candidates with more relevant experience and qualifications.   These answers were expanded upon in the Council’s replies to (a) a set of questions submitted by Dr Simba and (b) a request for further and better particulars of its notice of appearance.   Those answers included a breakdown of the Council’s staff by ethnic origin.   

4.   In the light of these documents, the issues for the Tribunal would have been whether the Council’s explanation for not having short-listed Dr Simba for the post had been an adequate and satisfactory one, and if it had not, whether it could be inferred from all the circumstances that the race of the candidates had played a part in the decision-making process.   

The allegation of indirect discrimination

5.   At the start of the hearing in the Tribunal, Dr Simba said that, in addition to his complaint of direct discrimination, he wanted to allege that he had been subjected to “indirect” discrimination.   “Indirect” discrimination occurs where the treatment of the complainant is ostensibly not on the grounds of his race, but has the effect of discriminating against him on racial grounds.   The case which Dr Simba wished to advance was that the Council had applied to candidates for the post a requirement or condition that they should have local authority experience.   If that was to amount to the discrimination of him on racial grounds, three new issues would have had to be addressed.   First, was local authority experience a requirement or condition for the post, i.e. was it part of the “candidate specification” referred to in the Council’s notice of appearance?   Secondly, if so, was the proportion of black Africans who had local authority experience considerably smaller than the proportion of other persons who had that experience?   Thirdly, if so, was the requirement that a successful candidate should have local authority experience a justifiable one?   These issues raised different and much wider questions than those which would have had to be addressed if Dr Simba’s complaint had been limited to direct discrimination.   

6.   The Council objected to Dr Simba’s reliance on this allegation of indirect discrimination, and the Tribunal ruled that if Dr Simba wanted to pursue his allegation of indirect discrimination he would have to amend his originating application.   It added that if an application to amend the originating application was granted (and it expressed no view as to whether such an application would be likely to succeed), the inevitable result would be the postponement of the hearing.   Counsel for the Council then told the Tribunal that if the hearing had to be adjourned, the Council would be applying for its costs of that day.   The Tribunal warned Dr Simba that he might be ordered to pay those costs if the hearing was adjourned, and he was asked whether he wished to pursue his allegation of indirect discrimination in those circumstances.   He said that he did not.   

7.   The criticism of the Tribunal advanced by Dr Simba in his notice of appeal was that it had been wrong for the Tribunal to rule that (a) his originating application had not included his allegation of indirect discrimination, and (b) the allegation of indirect discrimination could only be pursued if the originating application was amended.   We reject this criticism of the Tribunal.   It is perfectly true that in Quarcoopome v Sock Shop Holdings Ltd. [1995] IRLR 353, the Employment Appeal Tribunal (Buckley J. presiding) held that an originating application which makes a claim for racial discrimination incorporates any claim for racial discrimination, whether of direct discrimination, of indirect discrimination or of victimisation.   Thus, an allegation of indirect discrimination not expressly made in an originating application, which referred to direct discrimination only, was not made outside the time limit laid down by section 68(1) of the Race Relations Act 1976, even though it was made for the first time at the hearing of the claim.   But the Employment Appeal Tribunal nevertheless assumed that if an allegation of indirect discrimination is made for the first time at the hearing, at least particulars of the allegation will have to be given.   

8.   It may be unnecessary for such particulars to be given if the complaints of direct and indirect discrimination are based on the same facts.   That such complaints can (albeit in relatively rare circumstances) arise from the same set of facts was confirmed in Jaffrey v Department of Environment, Transport and the Regions [2002] IRLR 688.   But this was not such a case.   As we have said, three new factual issues would have had to be addressed on the allegation of indirect discrimination.   It followed that at the very least particulars of the allegation had to be given to enable the Council to know the topics on which further evidence would be required.   

9.   It is unnecessary for us to decide whether the Tribunal was right to conclude that the originating application had to be amended, or whether an order requiring Dr Simba simply to give particulars of the allegation of indirect discrimination would have been sufficient.   But the practical effect of the latter would have been the same as the former.   An order requiring Dr Simba to give such particulars would inevitably have resulted in the hearing being postponed.   Indeed, even if Dr Simba gave the particulars of his case on indirect discrimination at the hearing, a postponement of the hearing would still have been necessary to enable the Council to assemble the evidence which it needed on the three new factual issues which his claim for indirect discrimination raised.   Since Dr Simba confirmed to us that it was the postponement of the hearing which he had wished to avoid (not surprisingly in view of the possibility that he might have had to pay the Council’s costs of any adjournment), his decision not to pursue his allegation of indirect discrimination would have been just the same if the postponement had been the consequence of his need to particularise the allegation rather than of his need to amend the originating application, or simply the consequence of his wish to present his claim for indirect discrimination.   

10.   At the hearing of the appeal, Dr Simba put considerable reliance on the contents of a long document which he had submitted to the Council five weeks or so before the hearing.   In it, Dr Simba gave further and better particulars of his originating application, and made a further request for further and better particulars of the Council’s notice of appearance.   The document contained the following passage:

“The [Council] failed to provide figures showing ethnicity of its workforce, and I assume that they have few or no staff of Black African origins.   Details of schools or colleges attended, and employment history may have been used to identify ethnic origins, and to discriminate prospective candidates.   The fact that Black Africans are not proportionately represented in the [Council’s] workforce convinces me that their selection and recruitment procedure is discriminatory as defined in Race Relations Act 1976 at s.(1)(1)(b)(i), and that the ‘requirement or condition’ is such that Black Africans and ethnic minorities already affected by the ‘institutionally racist’ (Sir Calvert-Smith, supra) discriminatory selection and recruitment procedure cannot comply, as many of the British institutions such as [the Council] have hardly been employing them in the first place.   I believe that points or marks to assess how an applicant meets the ‘requirement or condition’ is itself discriminatory.   I find it hard to believe that the panel found my knowledge lacking while the following bodies have been satisfied: Board of Registration of Architects and Quantity Surveyors (Kenya), Finnish Society of Architects, New York State Board of Education (Architect’s Licensure), Royal Institute of British Architects, and UK’s Architect’s Registration Board.   It is for this reason that I believe that awarding of points or marks was discriminatory”

Dr Simba added a footnote referring to Perera v Civil Service Commission [1982] ICR 350.   Dr Simba argued that that passage showed that he was indeed alleging indirect discrimination, and that therefore further particularisation of his case had been unnecessary.    

11.   We disagree.   It is true that section 1(1)(b) of the Race Relations Act 1976 is the section which deals with indirect discrimination, that Perera is a case of indirect discrimination, and that one of the features of indirect discrimination is the application of a discriminatory “requirement or condition”.   But we are far from convinced that anyone reading this passage would have realised that Dr Simba had had indirect discrimination in mind.   The rest of the document was about the facts which had given rise to his allegation of direct discrimination (as the originating application had done).   And since he did not identify the discriminatory “requirement or condition” which the Council had applied, a first reading of the passage might suggest that what Dr Simba was saying was that since a proportionally fewer number of black Africans were employed by the Council than other races, the Council must be applying a “requirement or condition” that its employees had to be other than black Africans.   If that had been what Dr Simba was saying, it would have been an allegation of direct discrimination.   We accept that a more considered reading of the passage shows that Dr Simba was indeed saying that a discriminatory requirement or condition was being applied by the Council.   But the Council could undoubtedly be forgiven for not having read the passage in that way, for therefore not asking Dr Simba before the hearing to identify the “requirement or condition” to which he was referring, and for preparing for the hearing on the basis of an allegation of direct discrimination only.   

The Tribunal’s finding on the allegation of direct discrimination

12.   We turn, then, to that part of the appeal in which it is alleged that the Tribunal’s finding on the allegation of direct discrimination cannot stand.   The primary facts which the Tribunal found were these.   Dr Simba was 43 years old at the time of the hearing.   His application to the Council revealed that he had a number of academic qualifications.   He had a BA in architecture from the University of Nairobi.   The thesis which he wrote to obtain his master’s degree at the Helsinki University of Technology was on computer-aided design methods in housing, and the dissertation which he produced to obtain his doctorate in technology at the Helsinki University of Technology addressed a number of subjects, which included housing, cognitive psychology and computing.   His work experience up to the end of 2001 had been in architectural design and construction management.   At the end of 2001, he had established a non-profit making voluntary housing organisation.   The Tribunal described his role in the organisation as “multi-faceted, involving practical responsibilities such as preparing and delivering documents, co-ordinating and producing the company business plan and communicating with local government and other community bodies on a range of subjects relating to the work of the company.   The work entailed a measure of research and policy development.”   

13.   In the spring or early summer of 2000, the Council advertised a vacancy for the post of housing policy and research officer in its Strategic Services Division.   The advertisement read as follows:

“Your role will provide the Strategic Services Division with a research and policy information service on current housing issues, legislation, policies and procedures.   You will also co-ordinate the Housing Investment Plan and help to develop new supported housing initiatives.   Your experience will be gained from working with either a public or voluntary housing association in contributing to policy development.   You will need to be well organised with an eye for detail as you will need to summarise accurately in carrying out statistical analysis.   In addition you will be responsible for [your] own projects in which you will have the lead role.”

In June 2002 Dr Simba applied for the post.   He received an application pack.   The covering letter advised him to complete the application form as fully as possible.   The pack included a detailed job description and candidate specification.   These documents made it very clear that the essence of the post was to supply the Strategic Services Division (which was part of the Council’s Housing and Environment Directorate) with a research and information service on housing matters, and to support policy and strategy development within the Division.   

14.   Dr Simba’s application was considered by Keith Donaldson and Deborah Priebe, who shared the role of housing strategy manager.   They took the decision not to short-list Dr Simba, and accordingly he was not invited for interview.   Not having received formal notification that he was not to be short-listed, Dr Simba wrote to the Council asking for feedback.   Peter Wyles, the Council’s head of human resources, based his response on information given to him by Mr Donaldson and Mrs Priebe.   His letter included the following:

“The reasons for non-shortlisting on your form indicate that the weight of your qualifications and experience are very much in the area of design and housing development.   The post concerned is a relatively junior post requiring a bias towards Local Authority and Housing Association housing policy work.”

15.   The two other candidates were short-listed.   To preserve confidentiality, they were referred to as candidate A and candidate B.   What follows is what their applications to the Council revealed.   Candidate A, a woman aged 28, had a post-graduate diploma in housing policy and practice, for which she had obtained a distinction.   At the time of her application, she was in the process of undertaking the Chartered Institute of Housing test of professional practice, and had obtained a distinction in the first stage of that test.   She was a student member of the Chartered Institute of Housing.   Between July 1997 and August 2000 she had worked for a local authority as a housing research assistant.   In that role her duties had included carrying out housing needs research and, in various ways, supporting strategic housing planning.   That had been, at the time of her application, her last employment, which she had left to go “to Spain to concentrate on [her] flamenco”.   Candidate B, a man aged 23, had a degree in sociology and social policy.   One of his courses on social policy had had an emphasis on the history of housing policy.   He also referred to a research project which he had undertaken.   Following graduation, he had worked for two substantial food retail companies in junior management roles before moving in January 2002 to another commercial organisation, apparently achieving promotion after some months to the title of team leader.   He had had no work experience in the field.   

16.   Following interviews on 11 July 2002, candidate A was appointed.   In its answers to written questions, the Council provided details of the breakdown by ethnicity of its staff.   These figures showed that almost 91% were described as white British.   Out of a total of 822 staff, there were 3 members of staff described as black African.   The Tribunal was not provided with any statistics measuring the success rate by ethnicity of persons applying for employment by the Council.   

17.  On these facts, it was not difficult for the Tribunal to find that Dr Simba had been treated less favourably than candidates A and B.   In determining whether that less favourable treatment had been on racial grounds, the Tribunal quoted what Neill L.J. had said in the Court of Appeal in King v Great Britain-China Centre [1992] ICR 516.   At pp. 528F-529C, he had said:

“(1)   It is for the applicant who complains of racial discrimination to make out his or her case.   Thus if the applicant does not prove the case on the balance of probabilities he or she will fail.  

(2)   It is important to bear in mind that it is unusual to find direct evidence of racial discrimination.   Few employers will be prepared to admit such discrimination even to themselves .…

(3)   The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.   These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire.   

(4)   Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination.   In such circumstances the tribunal will look to the employer for an explanation.   If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds…..

(5)   It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof.   At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.   They should then reach a conclusion on the balance of probabilities, bearing mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.”

The Tribunal also said that it had reminded itself about the valuable guidance on the proper approach to the drawing of inferences given in Anya v University of Oxford [2001] ICR 847.   In that case, Sedley L.J. had said at [21] that a judgment of the kind which the Tribunal had to make

“…..is notoriously capable of being influenced, often not consciously, by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed.   If these are to any significant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge.”   

The Tribunal also said that it had borne in mind the earlier decision of the Employment Appeal Tribunal in Qureshi v Victoria University of Manchester [2001] ICR 863.   

18.   Having directed itself in that way, the Tribunal said:

“We are satisfied that [the Council’s] explanations ….. are accurate.   Fundamentally, Mr Donaldson and Mrs Priebe judged that [Dr Simba] presented as an architect with special expertise in design and construction, who could point only to recent and limited experience in the areas of Housing Policy and Research.   They judged that he did not exhibit on his application an understanding of the strategic and policy issues linking Local Authority and Housing Association housing with the local infrastructure of transport, education, health and other facilities.   Mr Donaldson and Mrs Priebe also judged that [Dr Simba’s] application was poorly presented, unduly long and unfocussed.   Having read it with care, we can see force in those observations.   The attachment to the application includes much repetition and much material which is not relevant.   It also seems to us that Mr Wyles’ letter identified a further strand (albeit a minor one) in the reasoning behind the rejection of [Dr Simba’s] application, namely that the ….. post was envisaged by Mr Donaldson and Mrs Priebe as an opportunity for a relatively young candidate near the beginning of his or her career, and not appropriate to a highly qualified architect in his middle years.   We have to say that we find nothing implausible or unsatisfactory about the explanation put forward by [the Council] for [its] decision not to shortlist [Dr Simba] for interview.   

That does not dispose of the case.   We are concerned with the explanation for less favourable treatment.   This requires us to consider the [Council’s] explanation for the difference in treatment between that accorded to [Dr Simba] and that accorded to the two comparators.   It seems to us that Mr Donaldson and Mrs Priebe had strong grounds for judging that candidate A, by virtue of her qualifications and working experience, had demonstrated on her application that she had the skill and expertise which the post required.   Their assessment that the application form was well presented was also, in our view, entirely appropriate.   We see nothing unsatisfactory or implausible in the [Council’s] explanation for the difference in treatment between [Dr Simba] and candidate A.   As for candidate B, although his application was less impressive than that of candidate A, we accept that the [Council] noted, and [was] impressed by, the fact that in the course of his degree this candidate had studied Social Policy and in particular Housing Policy, a discipline which was directly relevant to the …... post.   Although candidate A was, on paper, clearly the stronger candidate, we consider that the [Council was] entitled to [its] view that candidate B’s academic background was sufficiently relevant to make him worthy of interviewing.   On balance, we therefore find that the [Council’s] explanation for the difference in treatment between [Dr Simba] and candidate B is satisfactory and that the difference in treatment was not tainted by any consideration of race.”

The criticisms of the Tribunal’s findings

19.   Dr Simba criticised the Tribunal’s findings in a number of ways, but on analysis they boil down to three points.   First, Dr Simba criticised the Tribunal for ignoring, or not giving effect to, various sections of the Architects Act 1997 and Council Directive 85/384/EEC relating to architects.   The provisions of the Architects Act on which Dr Simba relied relate to the circumstances in which the holder of an architectural qualification obtained in a state which is a contracting party to the Oporto Agreement on the European Economic Area is entitled to be registered in the Register of Architects maintained by the Registrar of the Architects Registration Board of the United Kingdom.   The provisions of the Council Directive on which Dr Simba relied relate to the mutual recognition of architectural qualifications in member states.   Dr Simba’s argument is that in order to obtain an architectural qualification overseas, an architect’s studies would have been broad enough to include a sufficient understanding of public sector housing policy to meet the Council’s candidate specifications.   However, there was no evidence about the extent to which architects study public sector housing policy as part of their course, and the fact that Dr Simba’s doctoral dissertation included housing as one of its subjects did not mean that his academic experience related to public sector housing policy.   In any event, his qualifications underscored the point made by Mr Wyles that the post was unsuitable for a highly qualified architect in the middle of his career whose work experience had previously been in architectural design and construction management.   

20.   Secondly, Dr Simba criticised the Tribunal for failing to find that the Council had ignored, or had not given effect to, his previous academic and practical experience as required by the decision of the European Court of Justice in Scholz v Opera Universitaria di Cagliari [1994] ECJ 1-505.   That case is authority for the proposition that in order to give effect to the right of freedom of movement for workers guaranteed by Art. 48(1) of the EEC Treaty, a worker’s employment in the public sector of one member state must be taken into account when the worker applies for a public sector appointment in another member state.   Dr Simba argued that, for the Council to have concluded that his experience in the areas of housing policy and research were recent and limited, the Council must have ignored (a) the statements in his application form that his “public service career in housing research, design and management started when [he] joined Kenya’s Ministry of Public Works and Housing ….. in 1985”, and “formed ….. a self-help housing association [in Kenya] in 1986”, and (b) the dissertation which he produced for his doctorate in 2001.   But his application form shows that his public sector post in Kenya was as “an assistant architect”, and that his public service career was “in design, construction, supervision, maintenance and building management”.   Moreover, he did not state what his involvement with the housing association had been, and it is questionable whether involvement with a housing association many years ago in Kenya equipped him for conducting research into, and providing information about, current public sector housing policy in the United Kingdom.   And we have already pointed out, the fact that his dissertation included housing as one of its subjects did not mean that it related to public sector housing policy.   

21.   Thirdly, Dr Simba criticised the Tribunal for failing to find that it should have been apparent to the Council that, on the information contained in the applications of himself and the other two candidates, he had no less relevant experience in housing policy than candidate A (who had no recent work experience in the field) and candidate B (who had no work experience in the field at all).   We do not think that there is any force in this criticism in respect of candidate A.   It is true that she had taken a career break for a couple of years, but the Tribunal was entitled to find that that did not undermine the view of Mr Donaldson and Mrs Priebe that candidate A “had the skills and expertise which the post required”.   We agree with Dr Simba that candidate B is more problematic.   He had no work experience in the field at all.   We do not suppose for one moment that Mr Donaldson and Mrs Priebe failed to appreciate that.   But the Tribunal was, we think, entitled to conclude that Mr Donaldson and Mrs Priebe were themselves entitled to take the view that his academic background was sufficiently relevant to make him worthy of interview, especially as the Council was not looking for a highly qualified candidate but for one who was at the beginning of his or her career.   

Conclusion

22.   For these reasons, we concluded that Dr Simba’s appeal had to be dismissed.