England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
(Civil Division)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)

		Royal Courts of Justice,
		11th October 1991

1. LORD JUSTICE NEILL: This is an appeal by Miss Karen Lily King from the order of the Employment Appeal Tribunal dated 5th February 1990 allowing an appeal by The Great Britain-China Centre ("the Centre") from the decision of an industrial tribunal dated 25th August 1988 whereby the industrial tribunal held by a majority that the Centre had unlawfully discriminated against Miss King on the ground of her race. The case for Miss King, who is Chinese, was that she had been the subject of direct racial discrimination contrary to section l(l)(a) and section 4(l)(a) of the Race Relations Act 1976 in that when she had applied for the post of deputy Director of the Centre she had not been placed on the short list of applicants for the post.
2. The facts were not in dispute before the industrial tribunal. They can be summarised in substantially the same terms as in the decision of the industrial tribunal.
3. The Centre is a government-sponsored organisation which works to promote closer ties between this country and China by means of exchanges for scientific and other purposes. The Centre also provides assistance to firms who wish to export to China by, for example, advising on the relevant Chinese Government procedures. The Centre has a very small staff consisting of the Director, the deputy Director and two employees to provide clerical support.
4. In November 1987 a vacancy arose for the post of Deputy Director. The previous Director had resigned to take another post and the previous deputy Director had been promoted to the post of Director. On 18th November 1987 an advertisement in the following terms was placed in the Guardian newspaper:

"Deputy-Director - The Great Britian-China Centre

The Centre is a Government sponsored organisation with corporate and individual members set up in 1974 to promote understanding between the peoples of the United Kingdom and China by fostering closer cultural, economic, social and other contacts between their peoples. The Centre maintains wide-ranging contacts in China and the UK in order to run its own projects and provide briefing to others intending to establish links. With the rapid development of Sino-British relations in recent years the Centre has become an important source of information on exchanges between the two countries.

The Centre requires a new Deputy Director to start in January 1988. First hand knowledge of China, and fluent spoken standard Chinese language."

5. On 7th December 1987 Miss King, who was then aged 38, applied for the post. She wrote as follows:

"I wish to apply for the post of Deputy Director of the Great Britain-China Centre. The position is of great interest to me and I believe my background, experience and qualifications would enable me to contribute significantly to the work of the Centre. I enclose a full C.V. However, I would like to identify the main points in support of my application.

I was born in China (of Chinese parents) and have spoken (modern standard) Chinese since childhood. As I have received all my formal education in the British Isles I have a deep understanding of both cultures. Moreover, I have maintained contact with a large number of people from the PR China. Last year I spent three months in China travelling extensively. During this time I was able to visit universities, schools and a church seminary and stay in private homes to increase my understanding of life in China today.

Since graduation, I 'have had extensive experience as an economics journalist writing on finance, energy and development for publications such as Petroleum Economist. I have also spent three years in the US working as funding director for a development agency where I had opportunity to practise public speaking skills to a variety of audiences.

Currently, I am working as a consultant to a new technical company, London Scientific Services, for whom I provide administrative, marketing and accounting services as well as research into specific topics. Although this is certainly a challenging position I would prefer to be able to make full use of my bi-cultural background, and the post with the Great Britain-China Centre would appear to offer a unique opportunity for this to be realised."

6. In the accompanying curriculum vitae Miss King gave further particulars of her education and work experience and provided the names of two referees.
7. Miss King was then sent an application form and a job description. The latter document enlarged upon the functions of Deputy Director and made it clear that the work involved, inter alia, detailed arrangements for exchange visits, information to enquirers, editorship of a three-monthly newsletter and routine accounting duties, as well as deputising for the Director in the latter's absence. The job description also provided:

"The Deputy Director must have an excellent command 'of Chinese, especially the spoken language, and first hand experience of the country. The Deputy Director makes a working visit to China about once a year."

8. On 15th December the Director wrote to Miss King to inform her that the post had "now been filled from a very strong range of applicants". Miss King replied on the following day. In her letter, which she conceded before the industrial tribunal should not have been sent in such strong terms, she expressed surprise that she had not even been given an interview and raised the question of possible racial bias. "Could my being Chinese have had anything to do with it?" she wrote.
9. On 21st December the Director replied:

"I have received your letter of 16th December 1987. I can assure you that the Centre did have a very strong field of candidates for the post of Deputy director. In fact some were over qualified for the post, which is, after all, a junior one compared to the post of Director. I feel sure you will find a job commensurate with your considerable experience, qualifications and deep understanding of Chinese and British cultures."

On 23rd February 1989 Miss King issued her originating application seeking a finding that she had been discriminated against contrary to the Race Relations Act 1976 ("the 1976 Act"). In her application she stated that she found the explanation in the letter of 21st December 1987 "totally unsatisfactory" and that she strongly believed that she had been discriminated against on racial grounds. Also on 23rd February 1988 Miss King completed a questionnaire in accordance with section 65(1)(a) of the 1976 Act. In this document she wrote that she had heard that "the person appointed was a young English graduate in Chinese who was unlikely to have had either much experience in administration, research and writing or an excellent command of spoken Chinese."

10. On 16th March 1988 the Treasury Solicitor on behalf of the Centre filed a Reply in accordance with section 65(l)(b) of the 1976 Act and also filed a notice of appearance to the originating application. In the latter document it was stated that thirty applications had been received for the post, that these applications had been considered by the executive committee and that eight candidates had been invited for interview. The document continued:

"It was felt that one of the necessary attributes of the successful candidate was recent experience and knowledge of the bureaucracy and institutions of modern China. All of the candidates selected for interview had such knowledge or experience by virtue of studying or working within such institutions for at least 1 year in the recent past. Within the same period, the applicant had only spent 3 months travelling in China, and it was felt this did not give her the adequate knowledge or experience."

11. The hearing before the industrial tribunal took place on 9th May and 27th June 1988. In their reserved Decision sent to the parties on 25th August 1988 the tribunal decided by a majority that Miss King had been unlawfully discriminated against on the ground of her race on or about 15th December 1987. The chairman of the tribunal dissented.
12. In paragraph 6 of their Reasons the tribunal summarised Miss King's evidence as follows:

"In her evidence the applicant indicated that she could not accept that in view of her qualifications and experience she had not even been called for interview. In her opinion those attributes made it obvious that she should at least have been given the opportunity to expand upon her qualities and that the fact that she was not given that opportunity could only be attributed to discrimination on racial grounds, a view confirmed when she saw and compared the applications of the other short-listed candidates. She further drew attention to:

(a) the respondent's misleading reply in its Notice of Appearance to the effect that ' . . . . all of the candidates selected for interview had (recent) knowledge and experience (of China) by virtue of working and studying within institutions (of modern China) for at least one year in the recent past',

(b) the repetition of that misleading reply in the Race Relations Act 1976 questionnaire reply;

(c) the fact that no ethnic Chinese had been called for interview despite the presence of possibly five such applicants, a matter which had emerged only before us in response to the Tribunal's questions;

(d) the respondent's reply to the Race Relations Act questionnaire which stated that 'there were 30 applicants for the post. Records of race and colour were not kept'."

That reply, it was alleged, was deliberately misleading; and

"(e) that no ethnic Chinese had ever worked at the respondent's Centre."

13. In paragraph 9 of the Reasons the tribunal set out the three questions which they considered had to be answered:

"(a) Was there discrimination?

(b) Was there a difference of race?

(c) Had the respondent inadequately or unsatisfactorily explained the discrimination?"

The paragraph continued:

"That there was discrimination against the applicant is unarguable: she was less favourably treated than other candidates for the post of Deputy Director in that she was not called for interview for that post. It is similarly unarguable that there is a difference in race: the other candidates were white, the applicant is not, having been born of Chinese parents and bearing the appropriate racial characteristics. All that remains therefore, is to say whether the employer has satisfied us nonetheless that the non-selection of this applicant for interview was for good and logical reason, so that we are thereby prevented from making the inference which the Court of Appeal says in common sense we otherwise should. We expressly should not approach this case on the basis of deciding who the respondent should have called for interview; it would be a brave - perhaps foolhardy - Tribunal which would seek to impose its own opinions in that context above those of persons having knowledge in the field involved which Tribunals will rarely have. What we must do is to decide whether the employer has satisfactorily and convincingly explained to us why the applicant was not selected for interview and as a corollary why others were. If he succeeds in doing so, and if we are satisfied that racial bias or prejudice played no part in that process, then the employer will have successfully prevented us from making the inference which would otherwise be open to us."

14. The findings and conclusions of the majority were set out in paragraphs 10 to 15 of the Reasons. It is necessary to cite these paragraphs almost in full. In paragraph 10 the majority stated that they bore in mind the provisions of section 65(2)(b) of the 1976 Act and then continued:

"The majority considered that the respondent had failed to demonstrate that the applicant had not been treated unfavourably, or that such unfavourable treatment was not because of her race. They noted that the respondent had asserted that the case depended on acceptance that the respondent's criteria were applied as otherwise the Tribunal was substituting itself for the employer. The majority did not accept that point as there was evidence that criteria were changed during the selection process to the applicant's disadvantage. It was also asserted that the criteria were not discriminatory and were applied consistently. The former was accepted but not the latter in particular because there was evidence which the majority accepted that the treatment of different candidates (especially candidates 5 and 7) was inconsistent with the applicant's treatment.

11. The majority accepted the applicant's case that on a comparison of the information available in the advertisement and job description she had submitted an application which entitled her to anticipate selection for interview by the selection panel. The comparison submitted by the applicant indicated for them that she was entitled to maintain that view in comparison to the other candidates actually selected for interview and that the criteria were not applied consistently.

12. The majority accepted the applicant's assertion that the emphasis on recent experience of Chinese institutions and bureaucracy and/or residence in China for one year emerged after submission of applications, although they did not take a view of whether that was at the stage of selection for interview or subsequently. In either case, in their view, it effectively discriminated against the applicant. In fact, it formally appeared for the first time in the respondent's response to the Tribunal and one witness for the respondent accepted that Chinese family connections could have provided an equally valuable recommendation to be probed further at interview.

13. The majority accepted the respondent's assertion that the failure to call the applicant for interview might have been justified on the basis of the written evidence before them. They concluded, however, that the applicant had submitted a curriculum vitae and covering letter which met the published requirements and she had also demonstrated to the Tribunal's satisfaction that she met the unpublished requirements. On a number of the stated criteria (bi-cultural, time in China, degree of fluency, age and experience of institutions) the majority accepted that the respondent had failed to prove their assertion that they were justified in not calling the applicant for interview. On relevant academic qualifications the majority concluded that the respondent was inconsistent in claiming that the applicant was simultaneously under-qualified and over-qualified. They also noted that the post was simultaneously claimed to be a junior post and with significant responsibility which was a potential stepping stone to the post of Director. These inconsistencies in the opinion of the majority, invariably worked to the disadvantage of the applicant.

14. The majority accepted that the respondent was genuine in its concern that it should be accused of this precise form of racial discrimination. The majority accepted the seriousness of concluding that any discrimination was motivated at least partially on racial grounds. It is confirmed in its view, however, by the evidence of the racial composition of the Council staff. in its initial response the respondent stated 'there were 30 applicants for the post. Records of race and colour were not kept' and later 'all applicants selected for interview had spent at least one year in China in the recent past'. It was accepted in evidence that one of the candidates invited for interview had spent the same time in China as the applicant. Of even greater significance, in the view of the majority, was the fact admitted in evidence that the applicant was one of five applicants who were ethnically Chinese British citizens none of whom had been selected for interview. Furthermore, no ethnically Chinese person had been employed in the Centre to the date of this appointment. This was admitted in evidence by the previous Director and the evidence of the current Director on this point was considered by the majority to be unsatisfactory.

15. The majority concluded that such an evasive or equivocal reply on such a central point entitled it to draw the conclusion under section 65(2)(b) of the Race Relations Act 1976 that the discrimination against the applicant which it believed had been demonstrated could be inferred to be discrimination on racial grounds. In conclusion, the majority believed that the emphasis on 'up-to-date and extensive knowledge of modern China and its bureaucracy and institutions and have recently spent a significant period of time working with those institutions' was a factor which was not present at the outset and a factor which had been used to justify illegal discrimination. The majority accepted the argument by Counsel for the applicant that recent cases in the Court of Appeal had very close parallels to the decision by the respondent that the applicant would not 'fit in' (or in this case 'be part of a small staff that could work well together as a team and work to the new Director'). This was not necessarily a conscious decision, but the applicant was discriminated against as a result of not coming from the same, essentially British academic, background. It was therefore the majority conclusion of the Tribunal that the applicant's complaint of unlawful racial discrimination succeeded."

15. In paragraphs 16 to 19 of the Reasons the chairman explained the grounds on which he had reached a contrary conclusion to the majority. In paragraph 20 he continued "... . the respondent organisation has presented evidence sufficient to persuade me that they have satisfactorily and adequately explained why the applicant was not called forward for interview."
16. The Centre appealed from the finding of the majority to the Employment Appeal Tribunal. It was argued on behalf of the Centre that the majority had erred in law in placing the burden of proof on the respondent to disprove what they found to be a prima facie case that the applicant had not been shortlisted on the grounds of her race.
17. Counsel relied in particular on the passages in paragraphs 9, 10 and 13 of the Reasons which I have underlined. Such phrases as "the respondent had failed to demonstrate" and "the respondent had failed to prove" showed that the majority had approached the case on the basis that there was a burden on the respondent to disprove racial discrimination.
18. Counsel for the respondent argued in the alternative that the decision of the majority was perverse.
19. The Employment Appeal Tribunal rejected the submission that the decision of the majority of the industrial tribunal was perverse, but they accepted the primary submission on behalf of the respondent that the majority had erred in law. Impressed by the passages in the Reasons to which counsel had particularly drawn attention (and which I have earlier underlined) the Employment Appeal Tribunal expressed their conclusion as follows:

"We have reminded ourselves that it is not for us to strip a decision phrase by phrase, but we cannot escape the reiteration of the sentences which we have set out above, and we feel driven to the conclusion so forcibly expressed by [counsel for the respondent] that the Tribunal fell into error in this regard.

It follows therefore that the only appropriate way of dealing with this matter is to remit it to a; different Tribunal for a rehearing."

20. Miss King has now appealed to this court against the decision of the Employment Appeal Tribunal that the majority of the Industrial Tribunal erred in law. There is no cross-appeal by the Centre on the question of perversity.

The legislation

21. Part I of the 1976 Act prescribes the discrimination to which the Act applies. It is sufficient to refer to two subsections in this Part. Section 1 provides:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons."

22. Section l(l)(b) is concerned with indirect discrimination which has no relevance in the present case. Section 3 provides:

"(1) In this Act, unless the context otherwise requires 'racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins."

23. Part II of the 1976 Act is concerned with discrimination in the employment field.
24. I should refer to section 4 which provides:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment; or

(b) in the terms on which he offers him that employment; or

(c) by refusing or deliberately omitting to offer him that employment."

25. Part VIII of the 1976 Act is concerned with the enforcement of the Act.
26. I should refer to section 65(2)(b) of the Act which in paragraph 10 of the Reasons the majority of the industrial tribunal stated that they had borne in mind. Section 65 makes provision for a questionnaire which can be sent by the person aggrieved to the alleged discriminator. Section 65(2) is in these terms:

"Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not) -

(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."

The submissions in the Court of Appeal

27. It was accepted on behalf of Miss King that the burden of proving racial discrimination lay on her. This was the legal burden of proof. But it was submitted that the majority of the industrial tribunal were correct in concluding that in the light of the proved facts the evidential burden of disproving discrimination shifted to the Centre. Counsel relied on the following facts and matters which, it was argued, the majority found to be proved:

(a) that Miss King was well qualified but had failed even to be short-listed;

(b) that those short-listed were all white whereas Miss King was ethnic Chinese;

(c) that the Centre had never had an ethnic Chinese employee;

(d) that the non-discriminatory grounds for short-listing which had been put forward by the Centre did not stand scrutiny; and

(e) that the inference of discrimination which the majority were prepared to draw from the evidence was not displaced by the explanations that had been given on behalf of the Centre but was indeed in part confirmed by these explanations.

28. It was submitted that where the evidence establishes that a complainant has been treated less favourably than others of a different race the industrial tribunal will be entitled to infer that the racial difference was the ground for the less favourable treatment unless the evidence taken as a whole affords a credible alternative explanation. In these circumstances, it was said, the majority were correct in law in their approach to the case. Though they had not concerned themselves in terms with any questions about a shifting burden of proof they in effect found that Miss King had proved her case because the Centre had not discharged the evidential burden which the facts imposed on them. The Centre had not provided a satisfactory explanation for what looked at first sight as a case of unlawful discrimination.
29. On behalf of the Centre, on the other hand, it was submitted that the Employment Appeal Tribunal were correct in holding that the industrial tribunal had fallen into error. The burden of proving unlawful discrimination rested throughout on the complainant. All the previous authorities on racial discrimination showed that the question of the employer's explanation only became relevant when the primary facts pointed to unlawful discrimination. In these cases the successful complainants were able to demonstrate that the persons appointed were less well qualified than they were. One could not draw an inference of unlawful discrimination where the primary facts were neutral.

The authorities

30. In the course of the hearing the court was referred to a number of authorities. It will be convenient to consider them in chronological order. I propose to start with Khanna v. Ministry of Defence [1981] ICR 653, where the applicant, who had been born in India, had made twenty-two unsuccessful applications for promotion. On the last occasion he brought proceedings alleging unlawful racial discrimination and relying on the fact that the person selected had less experience than he had. The judgment of the Employment Appeal Tribunal was delivered by Browne-Wilkinson J. At p.658 the President suggested that in future industrial tribunals mighft find it easier to forget about the rather nebulous concept of the "shift in the evidential burden". A little later he continued:

"In this case the industrial tribunal would, we suspect, have found the case rather more straightforward if, looking at all the evidence as a whole, they had simply decided whether the complaint had been established. No useful purpose is served by stopping to reach a conclusion on half the evidence. The right course in this case was for the industrial tribunal to take into account the fact that direct evidence of discrimination is seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called on to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the industrial tribunal, an inference of unlawful discrimination from the primary facts will means the complaint succeeds: .... Those propositions are, we think, most easily understood if concepts of shifting evidential burdens are avoided.

So, in this case, the industrial tribunal has drawn the inference of possible discrimination from the fact that there was no obvious reason why the applicant should not have got the job: ....

To decide that there has been discrimination in the face of sworn evidence that there was no such discrimination is unpalatable: equally, racial discrimination does undoubtedly exist, and it is highly improbable that a person who has discriminated is going to admit the fact, quite possibly even to himself. The judicial function, however unpalatable, is to resolve such conflicts by a decision if possible."

31. Later the same year in Chattopadhyay v. Headmaster of Holloway School [1982] ICR 132 the Employment Appeal Tribunal considered the case of an Indian teacher who had applied unsuccessfully for the post of head of history at Holloway School. At p.137 Browne-Wilkinson J. referred to the rather special nature of proceedings involving allegations of discrimination contrary to the 1976 Act and continued:

"As has been pointed out many times, a person complaining that he has been unlawfully discriminated against faces great difficulties. There is normally not available to him any evidence of overtly racial discriminatory words or actions used by the respondent. All that the applicant can do is to point to certain facts which, if unexplained, are consistent with his having been treated less favourably than others on racial grounds. In the majority of cases it is only the respondents and their witnesses who are able to say whether in fact the allegedly discriminatory act was motivated by racial discrimination or by other, perfectly innocent, motivations. It is for this reason that the law has been established that if an applicant shows that he has been treated less favourably than others in circumstances which are consistent with that treatment being based on racial grounds, the industrial tribunal should draw an inference that such treatment was on racial grounds, unless the respondent can satisfy the industrial tribunal that there is an innocent explanation."

32. The decision in Khanna (supra) was commented upon in two later cases in the Court of Appeal. In Morris v. London Iron and Steel Co Ltd. [1987] ICR 855 May LJ said that he did not find the case of Khanna "an easy or satisfactory one" (863E) or "entirely satisfactory" (864A). He reiterated that the burden of proof lay on the complainant to make out a case of unlawful discrimination.
33. A year later in North West Thames Regional Health Authority v. Noone [1988] ICR 813 May LJ at p.822 repeated his comment that he did not find the decision in Khanna "altogether satisfactory". He then continued as follows:

"In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. ,; It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds."

34. This is an important passage and it is to be noted that it was set out in full in paragraph 8 of the industrial tribunal's Reasons in the instant case. But it is also relevant to observe:

(a) that in Noone (supra) at p.831 Balcombe LJ referred with apparent approval to the passages in the judgments of Browne-Wilkinson J in Khanna and Chattopadhyay which

I have already set out; and

(b) that in West Midlands Transport v. Singh [1988] ICR 614 Balcombe LJ, delivering the judgment of the Court of Appeal in a case involving an application for discovery, cited at p.618 the same passage in Browne-Wilkinson's J judgment in Chattopadhyay in support of the proposition that "cases based on racial, or sexual, discrimination have a number of special features".

35. In the course of the argument we were referred to other recent cases including Barking and Dagenham Council v. Camara [1988] ICR 865; Baker v. Cornwall County Council [1990] ICR 452 and the valuable judgment of Wood J in the Employment Appeal Tribunal in British Gas Plc v. Sharma [1991] ICR 19.
36. From these several authorities it is possible, I think, to extract the following principles and guidance:

(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. In some cases the discrimination will not be ill-intentioned but merely based on an assumption "he or she would not have fitted in".

(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 1976 Act 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. This is not a matter of law but, as May LJ put it in Noone,

"almost common sense".

(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 in 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.

37. I return to the facts of the present case. Miss King is an ethnic Chinese. So were four other of the thirty candidates. Eight candidates were called for interview. None of these eight candidates was an ethnic Chinese. The majority of the tribunal were satisfied that Miss King's paper qualifications fulfilled the requirements set out in the advertisement and in the job specification, and that she had been treated less favourably than the candidates called for interview, particularly candidates 5 and 7. The majority were also impressed by the fact that no ethnic Chinese had ever been employed by the Centre.
38. In these circumstances the tribunal were clearly entitled to look to the Centre for an explanation of the fact that Miss King was not even called for an interview. The majority, however, found the explanation unsatisfactory and were also dissatisfied with the reply to the questionnaire. They therefore concluded that Miss King had made out her case.
39. It is not now said that the conclusion of the majority was perverse. But it is submitted that they misdirected themselves, the submission being based on the language used in the Reasons and in particular in the underlined passages. I have considered this submission with great care and I have taken account of the fact that the submission was accepted by the President of the Employment Appeal Tribunal and by two very experienced lay members of that Tribunal. In the end I am quite satisfied that reading the relevant parts of the Reasons as a whole the majority's decision was not flawed by an error of law. They clearly had in mind that it was for Miss King to make out her case: see the reference to Noone in paragraph 8 of the Reasons. They were entitled to look to the Centre for an explanation of the fact that Miss King was not selected for interview. They were not satisfied with the explanation and they were entitled to say so. It was therefore legitimate for them to draw on inference that the discrimination was on racial grounds. This process of reasoning did not involve a reversal of the burden of proof but merely a proper balancing of the factors which could be placed in the scales for and against a finding of unlawful discrimination.
40. I would therefore allow the appeal and restore the order of the industrial tribunal,
41. LORD JUSTICE NOURSE: I agree.
42. SIR JOHN MEGAW: I agree also.

(Appeal by the appellant allowed with costs).