1. This is an appeal by way of case stated against a decision of the Fair Employment Tribunal given on 2 December 1999, whereby it found that the appellant Northern Ireland Council for Ethnic Minorities (NICEM) discriminated against the respondent on the grounds of his political opinion in failing to appoint him to the post of co-ordinator in February 1996.

2. Discrimination in the employment field is now governed by the provisions of the Fair Employment and Equal Treatment (Northern Ireland) Order 1998, but in 1996 the applicable legislation was the Fair Employment (Northern Ireland) Act 1976, as amended by the Act of 1989. The basic provision on which the respondent relied was section 17, which read:

3. Discrimination was defined by section 16(2) of the 1976 Act, as amended, the material part of which read:

4. The case stated, as so often, does not contain a systematic and comprehensive statement of the facts found by the tribunal to have been proved or admitted before it and it has been necessary for us to draw extensively on the written decision of the tribunal and the supporting documents in order to ascertain the facts.

5. NICEM advertised on 12 January 1996 for applications for the post of co-ordinator. The job description set out the main duties of the post as follows:

6. The post of the Co-Ordinator will involve responding to the assessed needs of the constituent members of N.I.C.E.M. through effective management of the following tasks:

7. The personal specification set out a substantial list of requirements for the post, in the following terms:

8. • Diploma in Social work or Youth & Community

9. • Three years relevant experience in working with

10. • Previous experience in conducting anti-racism

11. • Knowledge of minority ethnic issues in N.I. Essential

12. • Knowledge of relevant minority language. Desirable

13. • Ability to organise people at grass roots level. Essential

14. • Ability to advocate ethnic minorities issues at

15. • Ability to conduct anti-racism and leadership

16. • Ability to work, communicate and liaise with a

17. • Ability to communicate clearly both verbally and

18. • Ability to work to deadlines. Essential

19. • Ability to work with groups. Essential

20. • Ability to supervise and support seasonal

21. • Ability to plan, co-ordinate and prioritise work. Essential

22. • Ability to use computer. Essential

23. • Resourcefulness. Essential

24. • Flexibility. Essential

25. • Enthusiasm. Essential

26. • Commitment to anti-racist policy and

27. • Cultural sensitivity. Essential

28. • No health problems which would affect the

29. • Available to work flexibly when required to

30. • Access to personal transport. Essential”

31. The respondent and Mr Patrick Yu were two of the four persons shortlisted for the post and interviewed by a selection panel on 22 February 1996. Mr Yu was selected for the post and the respondent was placed as reserve. The interview panel consisted of four persons, all members of NICEM, three of whom were executive members. The chairman was from the Chinese community, one was Secretary of the NI African Cultural Centre and another was Secretary of the Islamic Centre. The fourth member was white; she was originally to act as independent observer, but sat instead as a member when the Chairman of NICEM was unable to attend.

32. The candidates were assessed by reference to twenty criteria, each of which was weighted as being of the same importance as the others. These criteria were:

33. The candidates were marked by each member with a mark on each of the criteria, classed as Very Good (5 marks), Good (4 marks), Average (3 marks), Satisfactory (2 marks) or Unsatisfactory (1 mark). The tribunal annexed to its decision a sheet summarising the markings (Appendix H) and another sheet (Appendix I) which purported to show the total score of the respondent and Mr Yu on each of the criteria. The arithmetic of Appendix I was, however, incorrect on several of the scores. The appellant’s advisers produced a corrected version of Appendix I, which we have checked and accept to be correct. A copy of the correct version is appended to this judgment. The differences are in criterion 5, where Mr Yu’s score on the tribunal’s appendix was 18, whereas it should have been 19; in criterion 9, where the respondent’s score on the tribunal’s appendix was 19, whereas it should properly have been 16; and in criteria 16, 17 and 18, where the appellant and Mr Yu should have been given 18 marks on each and not 19. The tribunal had given the respondent a total of 359 marks and Mr Yu a total of 374 marks, whereas the correct figures should be 353 for the respondent and 372 for Mr Yu. On both the tribunal’s version and the correct version of Appendix I the respondent scored ahead of Mr Yu on five criteria and they were equal on five, while Mr Yu was ahead of the respondent on ten criteria.

34. The total marks for each candidate given by the individual members of the panel were as follows:

35. It may be seen accordingly that Mrs W favoured the respondent by a single mark, while the other three put Mr Yu ahead by varying margins.

36. The respondent lodged a complaint with the tribunal on 21 May 1996, alleging that he had been discriminated against on the grounds of religious belief and political opinion and victimised in not being appointed to the post. He did not at the hearing pursue the issue of religious belief. In its appearance NICEM denied that it had discriminated against the respondent and stated:

37. In paragraph 7(i) of the case stated the tribunal states:

38. The “claim” referred to was the statement in paragraph 2(g) of NICEM’s response to the complainant’s questionnaire:

39. In our view it appears quite clear that NICEM was saying in the impugned sentence in this paragraph that Mr Yu’s overall score was higher than the respondent’s, a fact which is indisputable on either the tribunal’s Appendix I or the correct version, but which is nowhere mentioned in either the decision of the tribunal or the case stated. We consider that the criticism in the case stated is unfounded.

40. In paragraph 7(j) of the case stated the tribunal went on to say:

41. The statement described as “seriously misleading” does not, however, appear in NICEM’s written response to the questionnaire, but in an earlier letter to the Fair Employment Commission. In the written response NICEM stated simply that –

42. We could not regard that statement as being in any way misleading.

43. The respondent failed to comply with an order of the tribunal requiring him to furnish particulars. At the hearing NICEM’s representatives were prepared to meet the case of discrimination once the claims were identified, but not that of victimisation. The respondent withdrew the claim of victimisation rather than have the matter adjourned for the furnishing of particulars.

44. The respondent made the case before the tribunal that he had not been given the appointment because of his views, although NICEM denied that they had been discussed or taken into account at the interview. The tribunal accepted in paragraph 12(j) of the case stated that “the anti-racist issue was not the subject of significant discussion at interview”, but went on to say that the respondent “did raise an anti-racist profile” in his application form, in which he referred in several places to anti-racist matters. In paragraph 7 of its decision the tribunal stated:

45. It concluded that this attitude constituted a political opinion.

46. Counsel for NICEM called only the chairman of the panel to give evidence, whereas it is more usual in such cases also to call other members to rebut the suggestion of discrimination. When given an opportunity by the tribunal to reconsider this decision he adhered to it and the sitting was adjourned to the next day for final submissions to be presented. The next morning counsel applied to the tribunal to be permitted to call further witnesses, informing the tribunal that he acted outside his instructions in failing to do so the previous day. The respondent opposed this, on the ground that he was not “mentally prepared” for further evidence. The tribunal refused to allow counsel to call further witnesses, on the ground that he had authority as counsel to decide which witnesses to call and the tribunal “was not satisfied that the interests of justice would be served” by allowing him to take that course. It stated its reasons in paragraph 14 of the case stated:

47. The tribunal gave a written decision on 2 December 1999, finding that NICEM had unlawfully discriminated against the respondent on the ground of his political opinion in not appointing him to the post of co-ordinator. It stated in paragraphs 9 to 13 of the case stated its reasons for concluding that NICEM had treated the respondent less favourably than Mr Yu and that such treatment was unlawful discrimination on the ground of the respondent’s political opinion:

48. In its decision the tribunal referred more than once in support of its conclusions to the fact that the only witness who had given evidence for NICEM was the chairman, who had placed the respondent one mark ahead of the successful candidate. It did, however, have the marking sheets and set out an analysis of the scores in its own appendices, so it had ample means of knowledge of the rankings made of the candidates by all the members of the panel in respect of each criterion. Moreover, in paragraph 18 it referred in adverse terms to Ms L’s gradings of the candidates – a matter to which we shall return later – and was well able to see what marks each had given.

49. By letter dated 16 December 1999 NICEM’s solicitors asked the tribunal to review its decision, but the President refused to do so, by written decision given on 24 March 2000, on the ground that in his opinion “it had no reasonable chance of success”. NICEM’s solicitors had on 10 January 2000 asked the tribunal to state a case for the opinion of this court, since it had not made any response to their application for a review. The tribunal stated and signed a case on 21 April 2000, the questions of law posed being:

50. The grounds on which NICEM challenged the tribunal’s decision were the following:

51. In concluding that the respondent was less favourably treated than Mr Yu, the tribunal necessarily must have taken the view that he was the better candidate but was passed over on the ground of his political opinion. In our opinion this conclusion was unsustainable. The primary facts in our judgment lead irresistibly to the opposite conclusion, in the familiar phrase used by Viscount Simonds in Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 at 29. The marks of the several members of the panel, which the tribunal had before it, demonstrate indisputably that three of the four members gave Mr Yu a higher score, by varying but clear margins, and only the chairman placed the respondent ahead, by one mark. The criteria were all equally weighted and Mr Yu scored more highly in ten of these, in some markings by a considerable margin. The respondent was ahead of him in only five criteria, and in four of these by only a single mark. Mr Yu’s total score gave him a clear lead by 372 marks against 353. In these circumstances it appears to us beyond dispute that the respondent was the better candidate.

52. The tribunal in paragraph 11 of the case stated and paragraph 18 of the decision picked out two criteria, qualifications and experience, on each of which the respondent was one mark ahead of Mr Yu and concluded from this that he had been less favourably treated. We do not see any justification for this conclusion. All criteria were to carry equal weight and to be marked equally, and in our view the panel would have been quite wrong to appoint one candidate on the basis of these criteria when another had scored significantly more highly on the sum of the criteria. We do not see any defensible basis for the inference drawn by the tribunal in paragraph 9 of the case stated and paragraph 13 of the decision.

53. Nor can we accept the tribunal’s averment in paragraph 10, that since the only member of the panel to give evidence was the chairman (who was narrowly in favour of the respondent) there was “no evidence to be considered as to the reason(s) for the appellant’s preference for the successful candidate”. The evidence was plainly there for the tribunal to see, in the shape of the members’ mark sheets, and the tribunal itself summarised the results in paragraph 7(l) of the case stated and paragraph 12 of the decision, as well as annexing the summaries to the decision. The fact that the individual members were not called in evidence did not affect the admissibility of the evidence and the conclusion to be drawn from it.

54. Both in paragraph 12(f) of the case stated and, more explicitly, in paragraph 18 of the decision, the tribunal implied that Ms L, the sole white member of the panel, marked the respondent down because of racist views. It appears to have accepted the validity of the respondent’s objection to her serving on the panel because she was white. We find this objection misplaced. We find it remarkable that the respondent, who professes anti-racist views, should object to a panel member on what can only be described as racist grounds. Moreover, the final contest was between non-white candidates, not between white and non-white, and we see no ground for supposing that a white person would have a bias for or against either. We consider that the tribunal’s implication against Ms L was unwarranted.

55. We consider therefore that NICEM did not treat the respondent less favourably than it treated other persons. We consider that no tribunal properly directed could reasonably reach that conclusion on the evidence and we therefore do not propose to remit the matter for a further hearing and decision. That is sufficient to dispose of the appeal in the appellant’s favour, but since the other issues were fully argued and are of some importance to the work of the tribunal we shall express our view on them.

56. The tribunal was of the opinion that the respondent’s views on anti-racism constituted a political opinion, for the reasons set out in paragraph 7 of its decision, which we quoted earlier. In support it cited a passage from Kelly LJ’s judgment in McKay v Northern Ireland Public Service Alliance [1994] NI 103 at 117. This passage, together with the following two sentences, reads:

57. It seems to me clear that a person who holds an opinion on matters relating to any of the elements of this definition, holds a political opinion.”

58. The context of those remarks was an issue whether the “Broad Left” opinions held by the appellant constituted political opinions for the purposes of the fair employment legislation, or whether, as the tribunal had held, such political opinions must display some connection or correlation between religion and politics in Northern Ireland. This court held that the meaning of the term was not restricted in the manner accepted by the tribunal and that it was not confined to Unionist-Nationalist politics.

59. We turn finally to question 5, which is concerned with the refusal by the tribunal to allow counsel for NICEM to call further witnesses. Counsel had, no doubt ill-advisedly, elected to close his case at the end of the previous day’s sitting after calling only one witness, the chairman of the panel. When it came to the commencement of the next day’s sitting, he had been advised or instructed to seek to call further witnesses to support his client’s case. Nothing had happened in the case since the previous afternoon’s adjournment, and we can see no ground for supposing that the respondent had put himself in any worse position as a result of counsel’s electing to close the case. The tribunal nevertheless, on what we regard as excessively formalist or technical grounds, refused to allow counsel to call witnesses to complete what he now appreciated to be the proper presentation of his case. It then proceeded to take into account against NICEM in reaching its decision that no witnesses other than the chairman had been called to give evidence. In our considered opinion this was unfair in the extreme and perpetrated a serious injustice, which we can only deplore. Nevertheless, this is an appeal on points of law and we are unable to say that the tribunal was acting outside its jurisdiction or that it committed an error of law in so ruling. We must qualify this, however, by pointing out that the hearing took place before the Human Rights Act 1998 came into operation. If a tribunal were to act in such a way today, we have little doubt that its decision would be held to be unfair and vulnerable to being set aside as being in breach of Article 6(1) of the European Convention on Human Rights.

60. We have redrafted the questions to reflect the issues which we have discussed in this judgment, as follows:

61. We answer questions 1 and 2 in the negative and answer question 3 “The tribunal was not acting unlawfully in its refusal.” We allow the appeal and dismiss the respondent’s complaint.