IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF THE EMPLOYMENT APPEAL TRIBUNAL
Wednesday, 5th December 2001
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE JONATHAN PARKER
|GOVERNORS OF WARWICK PARK SCHOOL and Another|
|- v -|
|HAZLEHERST and Others|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MISS S BELGRAVE (Instructed by Legal Services London Borough of Southwark)
appeared on behalf of the Respondent
Crown Copyright ©
"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 .....  IRLR 251 (sic) ..... "
"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."
"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."
"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."
"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  ICR 813, 822, almost common sense."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
" ..... 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."
"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."
"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."