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 THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE WILSON)

		Royal Courts of Justice Strand London WC2A 2LL Wednesday 23 May 2001

1. LORD PHILLIPS, MR: I will ask Lord Justice Pill give the first judgment.
2. LORD JUSTICE PILL:This is an appeal from a decision of the Employment Appeal Tribunal, His Honour Judge Harold Wilson presiding, on 30 January 2000, whereby they allowed an appeal from a decision of an Employment Tribunal sitting at Leeds, (Mr Fraser, Mrs Martin and Mr Schofield) given by extended reasons dated 24 May 1999.
3. The Employment Tribunal unanimously dismissed claims by Mrs J K Wheeler and Mrs H Newton, the applicants, that their employers, Durham county Council ("the council") had unlawfully discriminated against them. The Employment Tribunal held that the council did not unlawfully discriminate against either of the applicants on the ground of their sex. The hearing before the Employment Tribunal lasted 11 days and 15 witnesses were called.
4. As a result of a local government reorganisation in 1977, the council lost about one-sixth of the population for which it was responsible. Departments of the council were reorganised. This involved a loss of jobs and new appointments being made. Two departments were amalgamated creating an Environment and Technical Services Department, which was to be organised into three divisions. A reduction of 32 posts was involved.
5. A vacancy arose for a post of section head. The two applicants were candidates for that post, along with Mr R Fenwick who was selected. At paragraph 12 of its decision, the tribunal set out the particulars of the personal particulars of the three candidates:

"(i) The applicant, Mrs Newton, who at the relevant time, was aged 49, had qualified as an architect in 1972, and held appointments with Sunderland and Durham before moving to Gateshead in 1979 as Senior Architect on scale PO6. After a career break (to have a family) she returned in April 1990 to Durham as a Senior Architect (scale PO1-3).

(ii) The applicant, Mrs Wheeler, who at the relevant time was aged 36, qualified as an architect in 1989. She had joined the Council as an Architect/Assistant in September 1986, and she had been appointed a Senior Architect on 1 June 1989 (scale PO1-3).

(iii) Mr R Fenwick was at the relevant time aged 33. He had joined the Council in 1989 as an Architectural Assistant, becoming a qualified architect in 1992. His substantive grade had remained Scale 4 - SO, although he had been paid PO1-3 on an honorarium basis since 1995 for undertaking additional responsibilities."

6. The relevant changes were achieved as a result of negotiations in which the Unions were involved. The tribunal set out, in more detail than it is necessary to do for present purposes, the discussions which took place. The procedure to be followed before making an appointment was that each of the candidates was to have a preliminary interview. That was to be followed on the next day, 15 January 1998, by an interview by the Appointments Subcommittee (the relevant council committee).
7. The preliminary interviews were conducted by Mr Johnson and Mrs Hirst, a senior personnel assistant. The purpose was to ask a series of questions which would form the basis that questions to be asked the following day. The results of the preliminary interview were scored by Mr Johnson and Mrs Hirst. Mr Fenwick came first, narrowly ahead of Mrs Wheeler; Mrs Newton scored less well.
8. The Appointments Subcommittee in the event was a committee of three. Two female members were eligible but were unable to attend on the day of the interview. The members were given a summary of the application forms, amplified briefly by Mr Johnson, and a schedule of "results of technical interviews".
9. There was no "person specification", as would normally be expected, and references had not been taken up. Mr Johnson and Mrs Hirst attended the interview. Their notes of proceedings were produced at the hearing before the Employment Tribunal. Mr Bradfield would also have been involved in the inspection procedure, he being an experienced officer of the council who knew the candidates well. Because of illness he was also unable to attend any of the interviews. Mr Johnson did not think it necessary to postpone the interviews.
10. Before the Employment Tribunal was Mr Johnson's note of the members' discussion following the interviews and prior to the decision being taken. It reads:

"Summary of comments of 1st Panel Member.

RGF gave good answers and demonstrated a high level of conscientiousness.

HN had demonstrated some difficulty with her thinking process.

JW gave good technical responses to the questions but showed she was lacking a little in her management abilities. Asked that candidate be given further management training.

Panel Member generally had been looking for a better response from all candidates on quality management issue.

Panel Member stated that HN and JW had not demonstrated that they understood the management culture which was required within the new Department.

Summary comments of 2nd Panel Member

RGF demonstrated good confidence, perhaps came over as somewhat over-confident but clearly understood the requirements of the post.

HN had frozen somewhat in responses to questions.

JW gave impression that she found it easier than other candidates to work with people.

Concluding comments:

The Chairman asked the other 2 Panel Members for their preferences. Both Panel Members recommended appointment of RGF. The Chairman accepted this recommendation."

11. The three panel members gave evidence at the hearing before the tribunal. The tribunal noted:

"Both Councillor Manton and Councillor Ross stated that Mr Fenwick was the only candidate they would have appointed. Councillor Foster said that Mrs Wheeler had quite a good interview. The Members had seen this as a 'management' rather than a technical or drawing board post. The Members all agreed in evidence that Mrs Wheeler did not seem confident of her ability or the desirability of changes. Nor did she recognise the weaknesses of approach in the former Department. Once again Mrs Newton did not have a good interview and clearly failed to do herself justice."

12. The council operated an equal opportunities policy and this was quoted by the tribunal in their statement of reasons. It provides at paragraph 6(a) under the heading "Recruitment and Selection":

"Advertisements, job descriptions, application forms, shortlisting and interviewing procedures will be designed to ensure that discriminatory practices are eliminated and that candidates are selected purely on the basis of their merits and abilities.... Practice and procedures will be reviewed regularly and training will be provided for those involved in recruitment and selection procedures."

13. Following the appointment of Mr Fenwick and the confirmation of the applicants' existing appointments as Senior Professional Assistants on their current rates, the applicants lodged applications under the council's grievance procedure.
14. A meeting was held on 12 March 1998, chaired by the Head of Service for the Environment and Resources Division, accompanied by other officers. The tribunal described the proceedings before that committee. The chairman's conclusion, in so far as material, was:

"As all candidates were afforded the same opportunities, I can find no evidence of sexual discrimination in the conduct of the interviewing procedures of the County Council."

15. The applicants went on to stage 3 of the grievance procedure which involved a meeting with the Director of Environment and Technical Services on 8 April 1998. He was accompanied by other officers. His conclusion, as set out by the tribunal was:

"After consideration Mr Newbegin [the Director] told the candidates that he was satisfied that all candidates had been treated equally. Whilst there was no person specification, this had not affected the outcome of the appointment. He was satisfied that the Members had dealt with the interviews fairly and equally.

'He found that there was no conscious and he did not believe there had been any subconscious sex discrimination that affected the outcome of the appointment and that the claim was unsubstantiated'."

16. Section 1(1) of the Sex Discrimination Act 1975 ("the 1975 Act") provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if-

(a) on the ground of her sex he treats her less favourably than he treats or would treats a man."

17. Section 6 of the Act provides:

"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain to discriminate against a woman:

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

....

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

18. It is common ground that by virtue of paragraph 10 of Schedule 1 to the Employment Tribunals (Constitution etc) Regulations 1993, an Employment Tribunal is required to give reasons for its decision.
19. The evidential difficulties which arise upon applications such as this have been considered in the courts. The principles to be applied are those stated by Neill LJ in King v The Great Britain China Centre [1991] IRLR 513, approved in the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36:

"(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 s65(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, bering 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."

20. Those principles apply equally to claims such as the present under the 1975 Act.
21. The applicants were represented before the tribunal by Miss Winter of Unison. She was assisted by Mr Morgan of GMB. Her submissions are summarised at paragraph 32 of the decision:

"Miss Winter submitted that at every stage the applicants had been treated less favourably than a man would have been. There had been discrimination in determining who could be considered for the post; in the selection process, the short-listing, the interviews, the lack of a person specification, the timing of the interviews, the failure to apply their own guidance. Each failure advantaged the male candidate. The consistency with which the Council had favoured the male candidate demonstrated that there had been sex discrimination."

22. That plainly is an allegation of conscious discrimination. However, it is later recorded that Miss Winter suggested:

"....that the applicants were not suggesting that the panel were setting out with the intention of looking for a man. This was demonstrated by Councillor Foster's note 'good confidence: knows the game alright', which showed how a male impression of someone who is confident could take the place of objective factors related to ability and experience.

It would appear that, Miss Winter, in support of her general submission, referred to a number of acts which occurred in the course of the selection process from which she submitted that the inference should be drawn that the selection had been in breach of the Act. The tribunal dealt with each of these under the headings "ELIGIBILITY FOR INTERVIEW", "THE RECRUITMENT CODE OF PRACTICE" (with subheadings, "The absence of a 'person specification'", "The role of Elected Members", The Application Forms" and "References"), "PRELIMINARY INTERVIEWS", "FINAL INTERVIEWS", EMPHASIS ON MANAGEMENT", "TIMING OF INTERVIEWS", MEMBERS' TRAINING", GRIEVANCE PROCEDURE". Those sections included a description of the events which occurred interspersed with comments upon them. It is not suggested that the narrative is other than accurate.

The tribunal plainly attempted to deal, allegation by allegation, with the facts upon which the applicants and their representative had sought to rely. Having done that, the tribunal set out its conclusions. Under "Emphasis on Management" they stated:

"The emphasis on the management of capital projects .... was clearly important to the elected members, and there is little doubt that it was Mr Fenwick's answers to the various questions that persuaded them that it was he who most understood and was most committed to that policy, and would be the most effective in its implementation."

23. The general conclusion is set out in paragraph 44:

"This was a case in which we heard a good deal of evidence, as had the Tribunal in Martins v Marks & Spencer Plc [1998] IRLR 326, where, in a case of race discrimination, the Court of Appeal pointed out that:

'...an absence of direct evidence of race discrimination does not mean an absence of race discrimination. What it does mean is that the parties bring to the tribunal a large amount of evidence in order to persuade the tribunal, on the applicant's side, to make an inference that the reason for less favourable treatment was racial and, on the respondent's side, to rebut any such inference that the tribunal is asked to make.'

We also heard a good deal of evidence brought on the one hand to show, and on the other to rebut, the inference we are being asked to make. The question we then have to consider is whether either Mrs Newton and/or Mrs Wheeler were treated by the Council less favourably then they treated or would treat a man in the same or relevantly similar circumstances. As the Court of Appeal pointed out in Martins, a comparison must be made with the treatment of a 49 year old man and/or a 36 year old man, with similar experience and qualifications, applying for the same job. Even the fact that the employer may in some respects have acted unfairly or unreasonably does not necessarily mean that he has treated the employee 'less favourably' for the purpose of the 1975 Act. (See Zafar v Glasgow City Council [1998] IRLR 36). Mr Cape accepted that some criticisms of the process can be made. But when examined in the context of a major departmental restructuring exercise, involving some 438 posts over a short time-scale where the principles and procedures had been agreed following lengthy consultation with the unions, we are satisfied that those criticisms could have been made irrespective of the sex of the candidates. There was nothing unfair or unreasonable in allowing Mr Fenwick to compete for the post, and in the minds of the appointing panel, it was he who convinced them that he best understood and would fulfil the management role they were seeking.

It follows from our findings that the applicants' complaints of unlawful discrimination on the grounds of their sex are dismissed."

24. Some further reference to Martins is appropriate in the circumstances of this case. In the course of his judgment Mummery LJ set out the test which should apply in circumstances such as these. The first question (paragraph 50):

"....was Ms Martins treated by Marks & Spencer less favourably than they treated or would treat another person of a different racial group in the same or relevantly similar circumstances? The answer to this question requires a comparison to be made between the treatment of Ms Martins and the treatment of a 27 year old applicant of a different racial group with similar experience and qualifications applying for the same job. The tribunal did not attempt to make the compulsory comparison. Instead, it simply asked itself whether there was 'bias' on the part of Mrs Cherrie and Mr Walters against Ms Martins and concluded that there was. This approach is defective. In a complaint under the 1976 Act, the focus is not on whether the conduct of the employer or putative employer towards the complainant is biased or unreasonable or unfair: as Lord Browne-Wilkinson said in Zafar v Glasgow City Council, the fact that an employer has acted unreasonably (eg in the sense relevant to a claim for unfair dismissal) casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the 1976 Act. Adapting the words of Lord Morison in the Court of Session in that case, it cannot be inferred only from the fact that the interviewers acted in a biased way towards Ms Martins, that the same interviewers would have acted in an unbiased way in dealing with another applicant in the same circumstances. The tribunal wholly failed to address itself to the issue, which Ms Martins had to establish in order to make out a claim for racial discrimination, whether she had been treated less favourably than the interviewers would have treated another applicant in the same circumstances. The finding that Marks & Spencer interviewers were guilty of 'bias' against Ms Martins is not a relevant or meaningful finding for the purpose of the 1976 Act."

25. Mummery LJ also cited the judgment of Peter Gibson LJ in Nagarajan v London Regional Transport [1998] IRLR 73:

"It must be further recognised that a selection process inevitably involves a comparison between candidates and matters of impression and judgment on which views may honestly and legitimately differ."

26. The Employment Appeal Tribunal came to the conclusion that the Employment Tribunal had erred in law. They accepted that the Employment Tribunal had set out the correct test in their reasons, but they had fallen into error. The error identified was in relation to the fourth of Neill LJ's propositions in King which they set out in their judgment.
27. They gave an example of where, in their view, the Employment Tribunal had gone wrong. That related to the difference in the length of interviews between Mr Fenwick and the two applicants, a point to which I will return. At paragraph 10 the Employment Appeal Tribunal stated:

"The decision goes on to deal with the question of interview lengths and paragraph 40 records the fact that Mr Fenwick had been allowed more time at both the preliminary and the final interviews. Later in the paragraph it is stated that:

'Mr Vout confirmed that Mr Fenwick's formal interview had lasted 30 minutes, long[er] than he had, in many years experience of such interview panels, come to expect'.

Again, the question why this was the case was not asked."

28. The EAT's general conclusion at paragraph 11 reads:

"The primary facts have to be found. If they give rise to the question, the question is whether there is a satisfactory explanation for the primary facts. If the answer to that question is negative, the further question has to be asked whether sexual discrimination is to be inferred. It seems to us that, in the ways described earlier in this judgment, this tribunal fell into error either by leap-frogging the stages or by not carrying them out at all. In those circumstances, the decision cannot be allowed to stand and must be set aside."

29. The EAT directed that the matter should be remitted to a different tribunal for re-hearing.
30. In seeking to uphold the findings of the EAT, Mr Damian Brown submits that the EAT were correct to hold that in the course of their reasoning the Employment Tribunal had been guilty of illegitimate leap-frogging. They had reached their general conclusion that there was no sex discrimination without giving explanations for all the matters which had occurred in the course of the selection procedure. That procedure involved deviation from the norm, and included events which may have been fortuitous but which worked against the applicants. Mr Brown submits that there must be a detailed analysis of the circumstances surrounding the decision. In relation to some of the events, the Employment Tribunal had not given an explanation. They had, as he put it, "jumped over the middle stages".
31. Mr Brown relies upon the decision of this court in Anya v University of Oxford & Anor (transcript 22 March 2001). That case involved an allegation of racial discrimination. There were two candidates for a post and the unsuccessful candidate brought the complaint. There was a long history of dispute between the unsuccessful candidate and those with whom he was involved in his employment. Giving the judgment of the court Sedley LJ stated at paragraph 21:

"21. ....The choice between these two comparably well qualified candidates depended entirely on how the panel viewed their personal and professional qualities. Such a judgment 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. This court and the Employment Appeal Tribunal have said so repeatedly and have required tribunals to inquire and reason accordingly.

22. If nevertheless the Industrial Tribunal thought that this was the class of case in which they could take the short cut, the least they were obliged to do was to say so."

32. In that case the tribunal had not made any findings of fact as to alleged procedural irregularity to the applicant over a long period of time.
33. To give substance to Mr Brown's submissions, it is necessary to refer in somewhat more detail to the paragraphs in the Employment Tribunal's decision dealing with the specific matters which Miss Winter had raised before them. In one paragraph the tribunal considered whether it was right that Mr Fenwick should have been entitled to apply for the job at all. Comments are made which were thought to justify the decision of the employers to permit him to apply. The tribunal considered the absence of a "person specification". The reasons refer to the large number of jobs involved and conclude that in the circumstances:

"....we cannot say that this failure, if indeed it was a failure, was discriminatory."

34. In relation to application forms, the tribunal concluded:

"However, the reality was that there were three candidates who all went forward to interview. In fact the applications were not seen by the members, so can have played no part in the final selection."

35. In relation to references, while acknowledging that the procedure:

".... did give the applicants the right to feel aggrieved that the Members had been misled as to the relative experience of the three candidates",

they referred to a letter in which an explanation was given and stated:

"These matters do not constitute discrimination on the ground of sex."

36. As to preliminary interviews, having referred to submissions made, the tribunal stated:

"....we think it somewhat far fetched to suggest that this in any way strengthened Mr Fenwick's position at the final interviews."

37. The final interviews were considered in some detail. The suggestion that ulterior motive was involved in relation to application forms was rejected. The tribunal acknowledged that it was unfortunate that the interviews were not postponed, but concluded:

"....the same applied in respect of all the candidates, and we do not consider that the applicants were disadvantaged on account of their sex."

38. A suggestion that Mrs Hirst was "tailoring the answers" in favour of Mr Fenwick when transcribing a note was described as "stretching things too far". In relation to the length of interviews, analysis is followed by the conclusion that:

"We are satisfied that the Chairman was simply keeping control of the interview, and would have intervened had any candidate appeared to be going on too long on a particular question."

39. As Mr Lynch QC for the appellants has indicated, it is clear that the approach of the tribunal was to consider allegation by allegation what it was that the applicants were saying and to make comment upon the allegations. In some, but not all, cases the council's response was considered. Moreover, it was unfortunate that Mr Bradfield and two female members of the appointing panel were not present at the time.
40. In addition to the passing references to the absence of sexual discrimination, the tribunal set out its general conclusions. There were undoubtedly deviations in certain respects from ordinary procedures. It is not disputed that in the end the tribunal members asked themselves the correct question. The allegation is that their decision is erroneous in law because they did not require explanations from the employers of each of the events surrounding the appointment. I am unable to accept that, in all the circumstances where deviations from ordinary practice occur or where there are differences of treatment which emerge in the selection process, the employer must invariably give an explanation and the tribunal must find it a satisfactory explanation if it is to fail to infer that the decision was reached in breach of the Act. In my judgment there must be a nexus between the facts relied on and the discrimination complained of before such an explanation can be required. Some conduct of employers will require specific explanation, other conduct or events can be dealt with by way of the general finding which the tribunal made. It is a matter for analysing the facts of the particular case and is a question of fact and degree.
41. I use the question of the length of interview to illustrate the point. If, for example, there were to be a case where there were six applicants for posts, three male and three female, and the interviews were conducted in such a way that each of the women was interviewed for only five minutes and each of the men for 30 minutes, and the men were appointed, that seems to me to be conduct from which discrimination could readily be inferred, in the absence of a satisfactory explanation.
42. That is, however, very different from the present case. Contrary to the conclusion of the EAT, it does not appear to me to be reasonable to expect a specific explanation as to why it was that, in the circumstances of this case, Mr Fenwick's application interview lasted longer, any more than analysis would be required of why questions were framed slightly differently as between him and the female applicants, unless it could be shown that the difference in questions was such that an inference of sexual discrimination could readily be drawn.
43. I have considered the reasoning of the Employment Tribunal. In my judgment, their final conclusion cannot in any way be faulted. Plainly they applied the right test. In my view they reached a conclusion they were entitled to reach. Their conclusion is not erroneous, by reason of the absence in some cases of detailed analysis of the differences in procedure or of events which occurred. Those events were not such that an inference of sexual discrimination could readily be drawn from them. It is clear that the panel members attached importance to the management abilities of Mr Fenwick as they perceived them to be. As Peter Gibson LJ pointed out in Nagarajan, judgment has to be exercised when interviewing candidates. The panel valued management potential.
44. The tribunal have carefully explained, by reference to the evidence before the employers, why it was that in their view the inference should not, on the facts of this particular case, be drawn that there had been sexual discrimination. The applicants submit that it was a necessary inference from the events described that they were discriminated against on sexual grounds; it was because they were female and Mr Fenwick was male that he was selected. I have no doubt that upon the facts as set out by them, and no complaint is made about the adequacy of that exercise, the tribunal were entitled to reach the conclusion they did.
45. I have referred to Miss Winters' submission that one of the panel members referred to the "confidence" which Mr Fenwick demonstrated. Some men are more confident than others and more confident than some women. Equally, some women are more confident than others and more confident than some men. In my judgment, the reliance placed on the personal quality of confidence, as expressed by one panel member, does not necessarily require, so that the tribunal were bound to draw it, an inference that there had been sexual discrimination.
46. Taking all those matters together, it is not a situation in which the Employment Tribunal were bound to infer that the decision had been reached in breach of section 1(1) of the 1975 Act.
47. I find no fault either in the decision they reached, or in the reasoning by which they reached it. Accordingly I would allow this appeal from the Employment Appeal Tribunal.
48. LADY JUSTICE ARDEN: I agree. As Lord Browne-Wilkinson said in Zafar v Glasgow City Council [1998] IRLR 36:

"Claims brought under the [Race Relations] Act of 1976 and the Sex Discrimination Act 1975 present special problems of proof for complainants, since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed, they may not even be aware of them. Over the years since 1975, the courts have sought to give guidance to industrial tribunals as to how inferences of fact can properly be drawn in this context. The best guidance is that given by Neill LJ in King v The Great Britain China Centre [1991] IRLR 513 at 518."

49. In this case Lord Justice Pill has explained the Employment Tribunal had a very full hearing. The case was presented as a case of direct discrimination and the hearing lasted some 11 days. I consider this was a hard case because a much younger, and apparently less experienced, male candidate was appointed in preference to two well qualified female candidates.
50. The Employment Tribunal directed themselves in accordance with the guidance set out by Neill LJ in King. They addressed the allegations which had been made by the respondents. While there are matters which might have been pursued, such as the summaries given by Mr Johnson to the interviewing panel, which were not pursued by the tribunal, the essential complaints were addressed.
51. On a reading of the decision of the Employment Tribunal as a whole, in my judgment, for the reasons given by Lord Justice Pill, it cannot be said that there was an error of law on the part of the tribunal.
52. Accordingly, I agree that the appeal should be allowed.
53. LORD PHILLIPS, MR: The Employment Appeal Tribunal held that the Employment Tribunal had erred in law in that, having found that a number of events occurred in the course of the selection process, it failed to inquire into the details of precisely why those events had occurred. But, not withstanding this failure, it proceeded to conclude in the case of each event, that the event did not give rise to any inference of sex discrimination.
54. In Anya v University of Oxford [2001] EWCA CIV 405, the Court of Appeal held that an Employment Tribunal must make conclusions on the factual issues essential to its conclusion. It does not follow, however, that an Employment Tribunal has to explore the circumstances of every event in the evidence placed before it. It only has to reach conclusions on the essential issues.
55. Miss Winter, for the applicants, had sought to suggest that these events, taken individually or cumulatively, gave rise to the inference that the applicants were being discriminated against because of their sex. The Employment Tribunal gave careful consideration to each event. It concluded that it did not give rise to such inference. It also heard evidence from the individuals who would have been responsible for the direct discrimination alleged, if such discrimination had taken place. It concluded that no such discrimination was made out.
56. I do not consider that the tribunal left unresolved any factual issue essential to its conclusion. It seems to me that the tribunal dealt adequately with what were, essentially, issues of fact. I have been unable to identify any error of law on the tribunal's part.
57. For those reasons, I also would allow this appeal.
Order: Appeal allowed with costs.