England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Wednesday, 5th December 2001

1. LORD JUSTICE PILL: This is an appeal against a decision of the Employment Appeal Tribunal, Lindsay J presiding, on 19th February 2001. The Employment Appeal Tribunal allowed an appeal against a decision of an Employnment Tribunal for London South sent to the parties on 4th March 1999. The Employment Appeal Tribunal ordered that the cases of Mr Hazleherst, Miss Frith and Mrs Odle be remitted back to the employment tribunal to be heard by a differently constituted tribunal. The Employment Tribunal had unanimously held that the respondents, the Governors of Warwick Park School, had discriminated against Mr Hazleherst, Miss Firth and Mrs Odle, the appellants, on the grounds of race, contrary to Section 1 (1) (a) of the Race Relations Act 1976, in their handling of the short listing process.
2. The short listing process was set up in relation to a restructuring of senior management posts at Warwick Park School. The appellants were teachers at the school. Five new posts were created. The appellants, along with other teachers at the school, applied for the posts. There was no external advertisement of the posts. All three appellants failed to be short listed for any of the posts. They are Afro-Caribbean. The candidates who were short listed were white candidates.
3. The Employment Tribunal drew an inference in each case that the procedure concerned, and hence decisions taken, were racially motivated. The Employment Tribunal set out in considerable detail the evidence they had heard and their findings of fact. The view of the Employment Appeal Tribunal was as follows:

"However, if, at first blush, every primary fact is equivocal or the explanations given point in no clear direction we see it as an error of law on a tribunal's part for it to give no explanation whatsoever of why what is apparently equivalent or inconclusive should end up being regarded as matter pointing in whichever direction they have inferred it to point. To give no explanation at all in such a case is not necessarily for the tribunal to err in the drawing of inferences but rather an error of law in relation to the giving of adequate reasons, reasons satisfying the well- known test in Meek v The City of Birmingham ..... [1987] IRLR 251 (sic) ..... "

4. The Employment Appeal Tribunal concluded their judgment by stating:

"The error of law we see may not be one as to discrimination but it is one of explanation. The reasons for the crucial inference are not adequately given to satisfy Meek supra. Accordingly we allow the appeal and remit the matter to be heard afresh by a different tribunal."

5. In Meek v City of Birmingham [1985] IRLR 250 Bingham LJ stated at paragraph 8:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

6. The Employment Tribunal purported to apply the correct test. They did so by reference to the decision of this court in King v Great Britain-China Centre [1992] ICR 516 in which Neill LJ set out guidance as to how cases such as these should be approached. He stated in the course of his judgment (page 528):

"Few employers will be prepared to admit such discrimination even to themselves. In some cases the determination will not be ill-intentioned but merely based on an assumption that `he or she would not have fitted in'. 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."

7. Neill LJ stated later at point 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, the finding of discrimination, the 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 Lord Justice May put in North West Thames Regional Health Authority v Noon [1988] ICR 813, 822, almost common sense."

8. The mischief to be considered is that stated in the earlier part of the judgment of Neill LJ I have cited. It is important that findings of fact are fully and accurately set out and that the tribunal applies its mind conscientiously to whether or not the inference of racial discrimination should be drawn from those findings.
9. In this case substantial criticisms are made of the selection procedure which was followed. Some of them were accepted before the tribunal as being valid criticisms. The tribunal stated at page 92 of the bundle:

"The tribunal questions why it was necessary to have a short-listing exercise at all - with so few positions to fill and so few applications. All applicants could easily and should have been interviewed. The short-listing process with so few applicants can unless carefully managed be a substitute for the interview process. The respondents with hindsight acknowledge this and agree that all candidates should have gone through to interview."

10. Further criticism is made at page 103:

"Mr Smith who chaired the short-listing panel had never participated on a short-listing panel before. The tribunal considered that in carrying out the short-listing process panel members had their ideas about the candidates and had formed an idea in their mind of the person they hoped would fill the post and instead of considering who should be put forward for interview were tempted into giving consideration to matters more appropriate to the interview process than to short-listing."

11. Self-criticism on behalf of the respondents appears at page 105:

"The respondent accepts that the short-listing process could have been better undertaken - there are a number of aspects that need to be changed or improved in the future. The respondent submits that the witnesses have been honest and forthright - have explained the reason for their decision - have accepted that they took into account matters they should not have done - they point out that they did that with all candidates not just the applicants in these proceedings. If there has been unfavourable treatment then it is not on racial grounds."

12. The tribunal also stated at page 90 that they would have expected the school to have adopted the London Borough of Southwark's equal opportunity policy which dealt with, amongst other things, selection procedures. It is however common ground that defects in a selection procedure do not necessarily lead to an inference that a decision taken under that procedure is a racially motivated decision.
13. In the cases of the appellants the tribunal drew the inference that the decisions that the candidates were not short listed were racially motivated. The members reached that conclusion notwithstanding the fact that in each case they held that there was no intentional discrimination by the selection panel.
14. The panel had three members. They were school governors, namely Police Constable Smith, a parent governor who agreed to be chairman of the short listing panel, Reverend Hartley of the local clergy, chairman of the school governors and Mrs Aune, deputy head of the school. The chairman of the panel should have been Mrs Norma Gibbs, the then head teacher at the school who is black. It was because she was unexpectedly taken sick at the last moment that she was replaced by the deputy head, Mrs Aune, who is white as are the other two members of the panel.
15. On behalf of the appellants, Mr Riza QC does not place reliance on the racial composition of the panel although that issue had been raised at earlier hearings. The Employment Tribunal considered the training which the members had had:

"Mrs Aune the deputy head had received equal opportunity training as had the Reverend Hartley in connection with her position as chairman of the governors of Warwick Park School and as part of her Ministry training. Mr Smith had attended London Borough of Southwark Governor Training courses which had included some training on equal opportunity and interview selection procedures and as a police officer in the Metropolitan Police he was aware of race issues. The panel did not have a local education authority inspector to assist them in their deliberations. They acknowledge that they should have had the assistance of an inspector who would have guided them in their deliberations."

16. That last statement is a further criticism, but it is a large leap from a criticism of that kind to holding that a decision taken by the panel constituted in this way was racially motivated.
17. In each case the Employment Tribunal set out findings of fact. It is necessary to refer to the conclusions which they reached in each case. Before doing that I state that a general theme in their reasoning, and in subsequent argument, has been the use by the panel members of their personal knowledge of the candidates. The findings in relation to Mr Hazleherst appear at page 99:

"The tribunal then asks the second question was that difference in treatment on the ground of race. The respondent argues that at the end of the short-listing meeting the panel members discussed the fact that none of the three black candidates had been short-listed and selected for interviews, they expressed the view that they were disappointed that none had been. The panellists did not at that time then go through the applications to check the marking but told the tribunal that they had done so since to see whether they felt their marking was fair and correct. Save for the concessions made and referred to above the panel members confirmed their assessments. Mrs Aune rejects the allegation that the failure to short-list Mr Hazleherst is an act of racism. She confirms that the black teachers are well qualified with considerable experience and are capable and competent and that she also stated that she was disappointed that only the three black applicants in this case had actually made application for the vacant posts in the first place as in her view there were other black staff who were very capable and competent and who were well qualified to apply for the posts but who in fact did not apply. Mr Smith the chairman of the panel accepts with hindsight that all applicants should have been sent for interview. The short list panel members in fact carried out deliberation more appropriate to the interview process as they were comparing the candidates in respect of each criteria rather than marking each against a set standard. The tribunal finds whilst not deliberate the respondents did in the short listing process discriminate against Mr Hazleherst on the grounds of his race."

18. At page 104 in relation to Miss Frith it is stated:

"The short listing process operating as it did - did in the tribunal's opinion lead to unfairness and unfavourable treatment towards Miss Frith.

The tribunal again find that the respondent did discriminate against Miss Frith and such discrimination was on the ground of her race. The panellists are shocked to be accused of behaving in a discriminatory way on the grounds of race we do not believe that they intentionally discriminated against Miss Frith on the ground of race but nevertheless it is possible to infer from their conduct discrimination on grounds of race and we do so infer."

19. Mrs Odle is considered at page 106:

"The tribunal have no doubt that Mrs Aune, Mr Smith and Reverend Hartley had no intention to discriminate against the Ms Odle in the short-listing process. They were new to the task of carrying out a short-listing exercise - Mrs Aune only became aware she was to be on the panel on the day they met - they were rushing the process through - they did not have a school Equal Opportunity Policy for employment matters to rely on for guidance and they did not consider adopting the existing policy of the London Borough of Southwark which it is arguable was applicable to the school. At the start of their deliberations the panel failed to agree a proper basis of scoring for the candidates, they did not consider whether the period chosen in respect of criteria 5 (attendance) was potentially discriminatory. The panel took into account personal knowledge and perception of matters relating to all of the candidates it was clear to us that white candidates were treated positively, in that respect from the panel's own knowledge but the black candidates were treated in a negative way. The panel should have been put on notice that something may not be correct when at the end of the short-list process it transpired that no black staff had been short-listed for interview. Unreservedly we do not believe that it was the panel members' intention to discriminate against the applicants on the grounds of race but we find that the respondent did in the way in which they undertook the short-listing process discriminate against the Mrs Odle on the grounds of her race. That is an inference that this tribunal feels it is proper to draw taking into account the evidence heard and the documents considered and drawing assistance from the established authorities."

20. Mr Riza submits that upon their findings of fact the tribunal in each case were entitled to reach the conclusion they did. He submits further that the decision is sufficiently reasoned. They were entitled, having set out the facts, to draw the inference in the general way they did. Neither the Employment Appeal Tribunal nor the court should scrutinise with a toothcomb the facts. In relation to that point it seems to me that it was Mr Riza who was going with a toothcomb through the findings of fact with the understandable intention of discovering findings from which an inference of racial discrimination could reasonably be drawn.
21. Mrs Riza has made particular criticism of the panel's reliance upon their personal knowledge of the candidates. What is not suggested however is that there is any evidence or finding that the opinions of the panel members based on that personal knowledge were racially motivated. That would be contrary to the finding of fact of the tribunal that there was no deliberate discrimination. Upon an analysis of the references to personal knowledge, it does not appear that there was any racial motivation in the approach which the members of the panel took. A reference was made in relation to Mr Hazleherst at page 95:

"again the panel members' own perceived knowledge of his abilities" -

that is one of the other candidates -

"influenced their marking. He was marked up. Reverend Hartley did not consider that Mr Hazleherst had in his application form set out how he had managed significant change and that there was no evidence of long term development referred to. The Reverend Hartley had actually worked with Mr McKernan on the Governing Body and she knew that he had produced various reports for the Governors and was aware of examples of his long-term planning skills. Again the personal knowledge of the panel members was used to the advantage of the white candidate and to the disadvantage for the black candidate."

22. That is no more than saying that it was the accident that the panel members knew the white candidate and his work in a way that they did not know the black candidates which influenced the finding on that point of the panel member. It is not a finding, and it is not claimed to be a finding, that had the candidates of whom there was personal knowledge been black candidates the approach of the panel members to them would have been different because of their race.
23. Mr Riza puts his submission on a more fundamental basis. He accepts the force and relevance of the finding that there was no deliberate or conscious racial discrimination by the panel members. His submission is that the whole system as briefly described was institutionally racist. He submits that in applying the system there was an unintentional racial discrimination by the panel members. He does not seek to adopt - and indeed objects to - the use of the word "unconscious" to describe the discrimination. He submits that the system and the way in which the panel members operated it created a differential based on race. He relies upon a statement of Sedley LJ in Anya v University of Oxford [2001] ICR 847 at 852:

"In the allocation of jobs by any sensibly-run institution, the explanation will be straightforward: the candidates were interviewed by an unbiased panel on an equal footing, using common criteria which contained no obvious or latent elements capable of favouring one racial group over another; and the best one was chosen. By parity of reasoning, evidence that one or more members of the panel were not unbiased, or that equal opportunities procedures were not used when they should have been, may point to the possibility of conscious or unconscious racial bias having entered into the process. It will always be a matter for the tribunal's conscientious judgment."

24. In my judgment the Employment Appeal Tribunal were correct to hold that there was an error of law in the decision of the Employment Tribunal as identified by the Employment Appeal Tribunal. In a situation in which it is expressly found that there was no deliberate or conscious racial discrimination, it is necessary, before drawing the inference sought to be drawn, to set out the facts relied on and the process by which the inference is drawn. In some cases that process of reasoning need only be brief; in other cases more detailed reasoning will be required. The Employment Appeal Tribunal approached the matter in this way:

" ..... we do suggest that the less obvious the primary facts are as pointers or the more inconclusive or ambivalent the explanations given for the events in issue are as pointers, the more the need for the Employment Tribunal to explain why it is that from such primary facts and upon such explanations the inference that they have drawn has been drawn. The more equivocal the primary facts, the more the Employment Tribunal needs to explain why they have concluded as they have."

25. At page 11:

"As we have mentioned the tribunal repeatedly said that there had been no intention to discriminate. That, of course, is not in itself an answer but it is likely to lead to a position in which the reasons for the inference of racial discrimination need to be fully explained."

26. Later:

"What we do say, though, is that to ground their inference the tribunal seems to have relied upon a series of factors each of which is either weightless as to the presence or absence of actionable discrimination or thoroughly equivocal. Quite the most important of them - the reliance on personal knowledge - is not, without more, indicative of discrimination on racial grounds and the obvious way of testing whether it did indicate such discrimination was not deployed and it has been left unexplained why this factor should have been given the considerable force the tribunal seems to have ascribed to it."

27. I find that reasoning wholly persuasive and applicable to the circumstances of this case. This is not a case where the numbers are such that an inference could properly be drawn on a statistical basis. Explanations have been given by members of the panel as to why they marked the candidates as they did. It may or may not be that those explanations are satisfactory. Mr Riza rightly calls attention to at least one point where the explanation is not satisfactory. At page 95 in relation to Mr Hazleherst an explanation as to why a particular mark had been given to him and a different one to a white candidate has not adequately been explained. That is a point of detail arising from the use of the toothcomb. Explanations have, however, been given.
28. In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn.
29. In my judgment, the Employment Appeal Tribunal were correct to hold that it was not possible to infer, at least without further reasoning or explanations as to why the inference was drawn, that the appellants were the victims of unintentional racial discrimination in the short-listing procedure. The EmploymentAppeal Tribunal were correct to make the order they did.
30. I would dismiss this appeal.
31. LORD JUSTICE TUCKEY: I agree. It is axiomatic that the reasons given by an employment tribunal should tell the parties why they have won or lost, particularly where, as here, the issue is one of such gravity as racial discrimination. For the reasons given by Lord Justice Pill I do not think the decision of the Employment Tribunal in this case told the respondents why it had inferred that the three members of the short listing panel had unintentionally or unconsciously discriminated against the appellants on racial grounds.
32. LORD JUSTICE PARKER: I agree with both judgments.
Order: Appeal dismissed with the costs subject to detailed assessment