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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Soobratty & Anor v Mid Essex Health Authority [1994] UKEAT 421_92_1907 (19 July 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/421_92_1907.html
Cite as: [1994] UKEAT 421_92_1907
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE MUMMERY (P)
MR R JACKSON
MISS M E SUNDERLAND JP
2) MR A MAHADOO
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellants Mr L Crawford
(Of Counsel)
John & Saggar
193/5 Kentish Town Road
London
NW5 2JU
For the Respondents Miss Daphne Romney
(Of Counsel)
Hill & Abbott
9-10 Market Road
Chelmsford
CM1 1XU
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from the decision of the Industrial Tribunal held at Bury St Edmunds over a period of 11 days in December 1991 and January and February 1992.
For reasons notified to the parties on the 12th May 1992 the Tribunal unanimously decided that complaints of unlawful racial discrimination and of unfair dismissal made against the Mid-Essex Health Authority were not well founded and therefore failed.
The complaints were made by two former employees who were Charge Nurses on night duty at the Broomfield Hospital in Chelmsford, Mr S Soobratty and Mr A R Mahadoo, who both come from Mauritius originally. They were disappointed by the decision and they therefore appealed to this Tribunal by Notice of Appeal dated 22nd June 1992.
The appeal first came on for hearing on the 22nd April 1994. An application for an adjournment made on behalf of the Appellant was granted on terms. The application had been opposed. There was an application against the Appellants for costs of the adjournment. That application was reserved to the Full Hearing of the appeal which took place over yesterday and today.
Certain matters are common ground on this appeal and they should be stated straight away. The first is that the complaints of racial discrimination and unfair dismissal stand or fall together.
The second area of common ground is that there has been no serious dispute between the two Counsel, who have argued this case very thoroughly on behalf of their respective clients, about the relevant legal principles and statutory provisions. It is as well to summarise those at the outset, because one point that has to be kept constantly in mind when we come to deal with the rival submissions about the Industrial Tribunal decision is that this Tribunal only has jurisdiction to deal with questions of law on an appeal. Some litigants and commentators do not approve of that restriction, but it is laid down by Parliament and we have to observe it. Under s.136 the only jurisdiction of this Tribunal on an appeal from an Industrial Tribunal under the Race Relations Act 1976, the Sex Discrimination Act 1975 and under the Employment Protection (Consolidation) Act 1978 is on a question of law arising from any decision or arising in any proceedings before an industrial tribunal. It cannot be emphasised too strongly that this Tribunal has no jurisdiction to entertain appeals on questions of fact. What are the relevant principles of law to the complaints in this case. We have been helpfully referred to a number of decisions. It is possible to extract the relevant principles and state them quite briefly.
The first is that when a person complains of racial discrimination it is for him to make out his case on the evidence on the balance of probabilities.
Secondly, a case may be made out and often is made out from inferences of fact from primary facts rather than from direct evidence of discrimination. The authorities lay down that it may be proper for an industrial tribunal to infer discrimination on racial grounds from the material before it, if it finds that the person against whom the complaint is made has failed to provide a satisfactory explanation for disparate treatment of persons of different race.
Thirdly, and more specifically, it has been decided that a failure by a person to comply with an equal opportunities policy or code does not necessarily lead to a conclusion that there has been discrimination on racial grounds. Such a failure may not be deliberate. It may be due to carelessness or incompetence. That does not become racial discrimination because the persons affected by that carelessness or incompetence include persons from a racial minority.
Authority for these propositions may be found in the decisions of Noone v. North West Thames Regional Health Authority [1988] ICR 813. Qureshi v. London Borough of Newham [1991] IRLR 264 and King v. Great Britain-China Centre [1992] ICR 516. We would add to those principles this further general comment, that this Tribunal is not entitled to interfere with the decision of an industrial tribunal simply on the ground that the members of this Tribunal would not have found satisfactory the explanations of a respondent which the industrial tribunal found to be satisfactory. This Tribunal is not entitled to interfere with the decision of an industrial tribunal which has declined to draw inferences of discrimination simply because this Tribunal would, if they were members of the industrial tribunal, themselves have drawn those inferences. The only question of law that can arise from a decision of a tribunal, which accepts the explanations are satisfactory and declines to draw inferences of discrimination, is if it can be said that the tribunal's decision on those points is irrational or perverse, plainly wrong; or defies all logic and commonsense. If it can be said that no reasonable tribunal would have accepted the explanation of the different treatment of persons of different race; or if it can be said that no reasonable tribunal would have failed to have make the inference which the industrial tribunal declined to make, then there is a point of law. The point of law is what is commonly called "perversity".
We make those comments at the outset, because there were times during this appeal when it did appear that the Appellants were arguing that there was perversity in certain aspects of the Tribunal's decision. When we pointed out to Mr Crawford, who represented the Appellants ably, that perversity was not mentioned as a ground of appeal he floated the possibility of an amendment of the Notice of Appeal. We have not found it necessary to consider an amendment because we say now that we are satisfied, having heard very thorough argument, that this decision cannot be disturbed on grounds of perversity. If it is to be disturbed at all it must be on some other legal ground, such as a misdirection of law in the decision.
With those general comments on the relevant legal principles and the approach of this Tribunal to the exercise of its jurisdiction we need only mention one other area of legal provisions, the relevant sections of the Race Relations Act 1976. Section 1 of the Race Relations Act provides:
"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"
That is often referred to as direct discrimination. This case was mainly fought on a complaint of direct discrimination. Section 1(1)(b) provides:
"or if he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -
(i)which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
(ii)which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and
(iii)which is to the detriment of that other because he cannot comply with it."
That group of provisions constitutes a definition of indirect discrimination. Such a case was argued before the Industrial Tribunal but, for reasons which we will state quite shortly later in this judgment, we find that there is no error of law in the way in which the Industrial Tribunal dealt with that argument.
Section 3 of that Act defines racial grounds as meaning any of the following grounds: colour; race; nationality or ethnic or national origins. Racial group means a group of persons defined by reference to colour, race, nationality or ethnic or national origins and references to a persons racial group refer to any racial group into which he falls.
Finally, Mr Crawford referred to s.4 of the Act which imposes a duty on employers not to discriminate. It 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 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.
(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a)in the terms of employment which he affords him; or
(b)in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c)by dismissing him, or subjecting him to any other detriment."
That completes the legal principles and legislation. Before going to the rival arguments it is necessary to state the factual background to the dispute.
Mr Soobratty and Mr Mahadoo were Charge Nurses doing night duty at Broomfield Hospital in Chelmsford. They were both dismissed from their employment on the 31st May 1991. They had previously served for long periods, Mr Soobratty since 1968 and Mr Mahadoo since May 1979.
The events which led up to their dismissal were prompted by the reorganisation of the Night Nursing Service. That was undertaken to save money. The reorganisation was led by Mr Chung, the Care Group Manager. There were 19 staff involved at the Hospital. They were notified of proposed redundancies and, at the same time, were notified that they could apply for new positions as Care Co-ordinators or as Night Services Manager. There had been consultation with the Unions about these proposals. Mr Soobratty and Mr Mahadoo were the only ethnic minority employees who would be affected by this exercise. The exercise would involve fewer jobs. Instead of 19 staff it was initially proposed that there would be six Care Co-ordinators, as they are described, and a Services Manager. As things turned out nine Care Co-ordinators were appointed, but no Service Manager. Mr Soobratty and Mr Mahadoo applied for both positions. They submitted CVs. They were both interviewed. Neither was successful for either position. It is the manner in which the reorganisation was dealt with and, in particular, the way in which the interviews were conducted and the decisions made which has led to the complaints of discrimination. Mr Soobratty and Mr Mahadoo felt aggrieved from a fairly early stage in the process. A Working Party had been set up. Neither of them was included in the Working Party. Their complaints led them to issue proceedings in the Industrial Tribunal.
Originating Applications were presented by both of them in June 1991. The first complaints were of unfair dismissal. Complaints of racial discrimination were added. The substance of Mr Soobratty's complaint was this:
"Following a re-organisation of the night nursing service I was made redundant along with all other night sisters/change nurses. As a result of the re-organisation, ten new posts were created and `ring fenced' so that all initial applicants came from those at risk of redundancy. Following interviews, all the posts were offered to white British applicants. Two non-white applicants were not appointed. [That is the two applicants in this case]. I am of the belief that I was not selected on racial grounds. I have already submitted a T.Form [complaint] on this question.
Because of my non-selection, my employment was terminated on the grounds of redundancy. If any non-selection was on racial grounds then I am claiming that my consequent dismissal was unfair.
My ethnic origin is Mauritian/Arab."
Mr Mahadoo's was in almost identical terms. He stated his ethnic origin to be "Mauritian/Indian".
The Health Authority's case was that:
"Following a review of the management structure for the night services in the Mid Essex Hospital Services a reorganisation of staffing arrangement was planned and undertaken.
The reorganisation affected all Night Sister/Charge Nurses working within Mid Essex Hospital Services. This totalled 19 staff . . . The new structure to replace these posts was 7 Whole-Time equivalent Management posts comprising one post of Service Manager (Night Services) and six Care Co-ordinator (Night Services) posts.
The posts could be filled by Job Share, Part-time, or Full-time appointments."
According to the Notice of Appearance:
"The method adopted to fill the new posts was by competition through Application and Interview. All seven posts were to be filled using one Interview/Selection process."
One of the points made by Mr Crawford is that there was no mention in the Notice of Appearance of what turned out to be a third stage of the process of appointment, namely, obtaining comments on the candidates.
"All 19 staff affected by the change were notified that their existing posts would be redundant from the date the new arrangements were to be implemented and were invited to compete for the new posts.
Mr Soobratty submitted an application to be considered first for the post of Service Manager (Night Service) and in the event of not being selected for this post Mr Soobratty wished to be considered for one of the Care Co-ordinator (Night Services) posts.
Four applications were received for the Service Manager post.
Eighteen applications were received for the Care Co-ordinator (Night Services) posts.
Mr Soobratty was interviewed simultaneously for both posts on 25th April 1991"
Mr Mahadoo was interviewed for both on the 29th April. Mr Soobratty was not appointed to either post. The Health Authority's case was that he failed to meet the criteria for the post of Service Manager and, in applying the criteria for the Care Co-ordinator posts, there were other candidates better suited to those posts. As things turned out the Service Manager post was not fulfilled because none of the candidates was able to demonstrate the required level of self-motivation, initiative, drive and positive management style. The Care-Co-ordinator (Night Services) posts were filled by nine other applicants who were judged to have demonstrated a greater ability to adapt and be flexible. They were also judged to have better analytical and interpersonal skills. Those abilities and skills were requirements for the posts.
For those reasons the Health Authority claim that the interview/selection process for the new post was not based on any consideration of colour or race, ethnic or national origins but on the basis of clearly defined criteria set out in the Job Description/Person Specification.
An amendment was made to that Notice of Appearance dealing with the question of whether the dismissal was fair or not and that related to the consultation process.
The response of the Health Authority was similar in the case of Mr Mahadoo. He was not appointed to either post. The reasons given were similar to the reasons relating to Mr Soobratty.
At the 11 day hearing before the Industrial Tribunal a whole series of complaints about the way in which the reorganisation was conducted right from the beginning through the constitution of the Working Party, the interview and the selection process to the decision not to appoint either Mr Soobratty or Mr Mahadoo, were examined. It was accepted on behalf of the Health Authority that it was for them to provide satisfactory explanations of all the points of which criticism were made. For that purpose a large number of witnesses gave evidence. Mr Chung the Care Group Manager, Mr John Davies and Mrs Egerton, the Care Group Managers, Mrs Simmons an Assistant Director of Personnel. She had been responsible for filling in a questionnaire which was the subject of criticism. The Tribunal took a number of months to produce the decision. The decision is a very comprehensive and careful one, both in its review of the evidence and of the law and of the legal submissions. It runs to 19 pages divided into 79 paragraphs. We have to decide whether there is any legal error in that decision which gives us jurisdiction to reverse the decision or to hold that the appeal should be allowed and the matter remitted for another hearing before a different industrial tribunal.
Mr Crawford, in his submissions on behalf of the Appellants, set out very clearly in his skeleton argument the grounds on which there were legal errors in this decision. He made these particular points. He said that the process of selection was by interview and CV. The information which had been circulated in advance made that clear. That is the Health Authority's own account of the process of selection as set out in the Notice of Appearance. However, when the Tribunal came to hear the evidence and make its findings of fact, it found that there were in fact three basis on which selection was made, the third stage being comments by managers. This is dealt with in paragraph 14 of the decision where the Tribunal found as a fact that the Authority had decided, in making the appointments, to take into account three factors, the CV, the interview and the comments by Service Managers. The decision would be that of the three Care Managers.
Mr Crawford had a number of criticisms of the inclusion of the third stage, as he described it. He submitted that none of the candidates was told of the third stage. After the interview and CV assessment, at which point appointments were expected to be made, the panel had discussions with Line Managers. It was only then that a final decision was made as to which candidates would be appointed. No record was kept of the comments that were made. As the Tribunal said in paragraph 20 of its decision, this is unfortunate, particularly when there then arises a factual dispute a long time later about exactly what was said. Mr Crawford, in his reply submissions, put the matter two ways. He said either the third stage should not, in these circumstances, have ever been included. Alternatively, if it was, it was wrong to do what the Health Authority had done in this case and that was to exclude Mr Soobratty and Mr Mahadoo from the third stage, because they had not scored sufficiently high marks in the interviews. Their selection procedure had not gone beyond the CV and interview stage, whereas that of other candidates who were successful, such as Mr Fisher, had gone to the third stage. Mr Crawford's next point related to information, or rather the positive information, about the new posts of Care Co-ordinators. He argued that the concept behind the changes and the reason for them were topics upon which candidates were expected to be tested at the interview. He submitted that insufficient information had been given to Mr Soobratty and Mr Mahadoo. The relevant information about the job was contained in a document which the Tribunal found as a fact had not been received by either Mr Soobratty or Mr Mahadoo. That is a document issued in 1990. Apparently there was some dispute about the precise date by the Group Care Managers. The document explained the rationale for the view, the time-scale of the exercise and the proposals on which general views were sought. The Health Authority said they had sent out this document to all candidates, but the Tribunal accepted Mr Soobratty and Mr Mahadoo's evidence that it was not received by them. They therefore laboured under the disadvantage in the selection process of not having information which had been received by other applicants.
The next criticism was of the exclusion of Mr Soobratty and Mr Mahadoo from the Working Party. This was submitted to be an important matter, because membership of the Working Party was another means by which information could be obtained by an applicant about the re-organisation and about the new jobs. The Tribunal found that it was detrimental not to be on the Working Party, but concluded that the exclusion was not on the grounds of race.
The Tribunal held that the initial Working Party was set up to consider what should be done. Neither Mr Soobratty nor Mr Mahadoo were invited to serve on the Working Party. Mr Fisher, one of the successful candidates, was a member, but there was another member who was not successful. The Tribunal considered the submissions made about the non-inclusion of the two Applicants. They found in paragraph 32 that it would be a disadvantage in not being on the Working Party. If they had been on it they would have had greater knowledge of what was required in the new positions. They might have been better prepared at the interview. The Tribunal, however, accepted that the exclusion had nothing to do with race, it was rather on the basis of not being considered because it was not felt that they had a particular point of view to put forward.
It was accepted by Mrs Simmons, who gave evidence on behalf of the Health Authority, that, on reflection, it might have been better to have appointed them to represent the ethnic point of view. But the Tribunal said, whilst they could have been appointed, they did not criticise the Authority over that failure.
The next point related to job criteria. The criticism made was that there were no clear and relevant criteria for either the Service Manager post or the Care Co-Ordinator post. The Tribunal's conclusion about this was criticised. The Tribunal found that the Authority had set out adequate job profiles and selection criteria, which were in the same document. They thought they were adequate. No doubt they could have been more detailed. The criticism made of the Tribunal's treatment of this point was that the Tribunal had not really understood the importance of having clear and relevant criteria.
The criticisms of the decision moved to the interviewing. For the interviews, which were conducted by Mr Chung, Mr Davies and Mrs Egerton, two documents were prepared. One was a list of 11 questions. They were prepared to test the candidates over a range of subjects which were thought to be relevant to identifying whether the candidates had the qualities needed for the jobs. The other form which was prepared was an interview schedule sheet. These were prepared under headings. Gaps were left for comments to be inserted by the interviewers and for scores to be entered. The headings dealt with matters of information only such as, whether the applicant owned a car or had a driving licence, and what his hours of work were, through matters of clinical experience to a break down of five headings relating to skills or qualities required for the job. Those included matters of adaptability and flexibility, communication skills, inter-personal skills, evidence of being visionary and pragmatic, handling of emergency and urgent situations and what kind of personal and career development needs were perceived. There was a heading (5) for general matters, such as CV layout and points relating to clarity of thoughts and administrative skills and finally a space for scores and remarks by the panel.
Mr Crawford's submission on this was that the Authority had not complied with its Equal Opportunities Policy in relation to the way that the interviews were conducted. It was established before the Industrial Tribunal that the Applicants were not asked more than three questions in the case of Mr Soobratty, and four questions in the case of Mr Mahadoo. They were not asked the same questions, either as each other or as other candidates, such as Mr Fisher. This was not fair questioning. There was therefore an opportunity for the Authority to discriminate against them.
The Tribunal's conclusion on this was that all the candidates were treated in the same way and there was no difference in treatment on racial grounds from which discrimination could be inferred. The Tribunal said in paragraph 35:
"neither applicant was asked more than two or three questions, . . Whilst the number of questions asked of the applicants also falls to be considered generally in connection with the interviewing process, we are satisfied that the applicants were treated in the same way as everyone else applying for a job. By that I mean to say that nobody was asked all the questions; indeed, with 11 questions and having, say, 30 minutes as the length of time for a typical interview, it would be impossible to go through all the questions in any detail with anyone. Obviously different applicants for the positions would be asked different questions. We are satisfied the two applicants in this case were not singled out for particularly awkward or difficult questions because of their race."
In paragraph 41 they said:
"there is not a suggestion that anything was said or written to indicate anything was done with improper racial motivation" all the applicants"
not asking the same questions to all the applicants was a matter that could be criticised, having regard to the Equal Opportunities Policy, but that affected everyone equally, not just the Applicants.
There were also criticisms of certain aspects of the interview schedule sheets. A lot of time was spent in evidence at the Tribunal on this. The main criticism made by Mr Crawford was that the questions were designed to elicit from the candidates certain matters. It was not clear from the headings contained in the interview schedule sheets how the questions which were set out in the questionnaire related to the various headings. More important, we think, was his criticism of the lack of consistency in the scoring. He said that the Tribunal on this point had failed to address itself to the matters which should have been considered. He criticised the allocation of marks. The interview was marked out of 15, each panel member scoring the candidate out of 5.
On this aspect of the case the findings of the Industrial Tribunal were not entirely satisfactory. It is not clear from the scoring how points were to be awarded for the CV. The Tribunal said in paragraph 51 of the decision:
"We have considered the fact that there was a lack of consistency over how many points to award for the cv: Mr Chung would have awarded 20, Mrs Egerton 10-15. The applicant Mr Soobratty had an especially good cv. If they had all awarded 20, might it have raised him that critical amount so that he would have been at least level with Mr Fisher, which would have been important?"
That would have been important because, according to the marks out of 15 that we have, Mr Fisher scored only one more mark than Mr Soobratty. The Tribunal commented:
"It is surprising that the senior care managers had not decided beforehand as to how they were going to mark the CVs. It is odd that they did not all allocate the same amount. However, we accept that this failure would have applied equally to all applicants for the positions and was not discriminatory in the sense of being applied differently to different applicants."
The point made by Mr Crawford is that the Tribunal had not really dealt properly with that position. They had not made specific findings which they should have made in relation to Mr Soobratty's CV. In our view, he had valid criticisms of the comments in paragraph 51 in relation to points for the CV. On the face of it the comments made by the Tribunal are difficult to make sense of. We have been told that the references to 20 and to 10 and 15 are references to percentages, but even so it is difficult to make complete sense of the way in which the marks were allocated.
Mr Crawford concluded by making three points that we consider to be less important than those mentioned. The first was that the Equal Opportunities policy had not been complied with. On this the Tribunal found that Mrs Simmons, who was responsible for implementing it, had been doing her best to implement it, though the Tribunal found that in certain respects her reaction to criticism was defensive. In particular they found the way that she had answered the questionnaire had given rise to some criticisms. The questionnaires were administered under the Race Relations Act. They were answered at some length by Mrs Simmons on behalf of the Authority. Her answers, in relation to the questions which were asked at the interview, was criticised since they gave the impression that all the candidates were asked all the same questions. On this part of the case the Tribunal said this:
"We have also taken account of the questionnaire. We accept that in their answer to the question about all candidates being asked all the same questions, . . the answer is put down that they were when clearly they were not. There was the same basic list of questions but different questions were asked of different applicants. That answer was misleading. We are entitled to draw inferences adverse to the respondents from it. We accept that it was an incorrect response and perhaps `defensively completed' would be the proper way to describe it. By that I mean that there is a reluctance to admit any failure of what was perceived to have been the proper approach when in fact there was, but we do not take it further to cause us, when considered together with other matters, to find for the applicants. After all, it affected everyone equally and we can find nothing whereby the applicants were discriminated against on account of their race through this point."
There is, in fact, a dispute on this appeal, as there was in the Industrial Tribunal, as to whether the questionnaire had been completed in a misleading way. Mr Crawford put this as a point of credibility of Mrs Simmons. He submitted that the Tribunal should, in fact, have drawn the inference which they declined to draw against the Health Authority.
The final point related to the credibility of Mrs Egerton in relation to evidence she had given about notes taken by the panel during the interview. The Applicants had complained that no notes were taken by the panel during the interview. Mrs Egerton denied that. She produced notes which she claimed were made at the time, but, when she was cross examined, she conceded that some of the notes were in fact made from the CV.
The criticism that Mr Crawford made of the Tribunal's decision on this point was that the Tribunal failed to make any clear findings as it should have done about the credibility of Mrs Egerton. The Tribunal said at paragraph 38 of this discrepancy in her evidence in chief and cross examination:
"This must cause us to consider Mrs Egerton's evidence, in view of the fact that her initial position was that it was said at the interview. We have borne it in mind in evaluating her credibility."
Mr Crawford submitted that they should have made a clear finding one way or the other.
We have dealt with all those points in the detail in which they are contained in the submissions of Mr Crawford, both in the skeleton argument and oral submissions, because it is necessary to look not only at each of those criticisms individually but also and what they all add up to as a point of law. Mr Crawford's submissions were that they do add up to a failure by the Tribunal to make inferences which should have been made from the material before them, that is inferences of racial discrimination. He summed it up by saying that, looked at cumulatively, the inference of discrimination should have been made. In brief, the Health Authority had failed to have any ethnic minority involvement in the Working Party. They had failed to comply with their own recruitment and equal opportunities policy. They had failed to set out clear and relevant criteria for the job. They had failed in the interviewing process to give scores in a satisfactory manner. They had failed to take into account, or properly allocate to the Applicants, marks for the CV. They wrongly allowed the Line Manager to influence the Panel as to who should be appointed.
In all those circumstances the decision not to appoint Mr Soobratty or Mr Mahadoo to post as a Care Co-ordinator should have been inferred to be an act of discrimination. Alternatively, he submitted that there was indirect discrimination because the selection procedure contained conditions or requirements. Indirect racial discrimination occurred because those conditions or requirements had an adverse impact on the Applicants which they did not have on other candidates. In particular the criteria for the posts were unclear and led to subjective assessments and the introduction of the so-called "third stage" into the selection process could not be justified. There was, therefore, indirect racial discrimination.
Mr Crawford submitted that the appeal should be allowed because there was direct or indirect discrimination. There had been a failure to provide satisfactory explanations for the disparate treatment, the proper inference to draw was discrimination on the grounds of race and the Tribunal had misunderstood the law and therefore misdirected itself into an erroneous decision.
We have given those criticisms careful consideration. We would like to make it clear that there are respects in which the actions of the Health Authority give rise to concern among the members of this Tribunal. In certain respects the procedures which were adopted and the actions which were taken were not wholly fair. It is unfortunate that there was no representation of ethnic minorities on the Working Party. We have concern about the matters contained in the document from which the questions asked at the interview were selected. We are told that some of those questions related to the changed role from a Night Nurse to a Care Co-ordinator. It might be said that greater care should have been taken by the Health Authority in explaining to the candidates the nature of the changed role and more information relevant to that point provided to candidates in advance of the interview at which these questions were. If that had been done then it might have been easier for those who were asked the questions to see the point of them. Most important, there is concern among the members of the Tribunal about the marking at the interview. It does appear that the marking was haphazard. There seems to have been a lack of direction or lead from the chairman of the interviewing panel about the allocation of marks and the marking procedure. In particular there does seem to have been inadequate rating in relation to experience, as summarised in the CVs of the candidates. Finally, in relation to the "third stage" point made by Mr Crawford, it should have been made clearer at the outset as to what stages were involved in the selection process. If there was going to be a third stage of obtaining comments from line managers, it ought have been made clear to all the candidates as to what the selection procedure would be.
Those criticisms, though naturally giving rise to concern, are not, however, sufficient to constitute a ground of law for interfering with this decision. For this reason, that the points we have criticised impacted on all the candidates, not just on those who belonged to an ethnic minority. The unfairness was to everybody, not just to Mr Soobratty and Mr Mahadoo. In order to succeed in their claim under the Race Relations Act and also in their claim for unfair dismissal, it was necessary for them to show that the less favourable treatment that they received was on racial grounds.
Miss Romney, on behalf of the Health Authority, dealt with all the points made in criticism of the decision. As to the Working Party point she submitted that they had not been excluded from the Working Party by reason of racial grounds. That was a decision of the Industrial Tribunal. It was a decision of fact. There is no point of law made by the criticisms of it. She pointed out that the composition of the Working Party had been chosen to represent specific points of view about working practices in the hospital, that there were people who were on the Working Party who did not succeed in getting a job because they did badly at the interview. There were other applicants, who were not on the Working Party, who did well at the interviews. In those circumstances it was open to the Industrial Tribunal to decline to draw any inference of racial discrimination from the fact that neither of the Applicants was included. As to scoring badly at the interviews, she submitted that the crucial fact is that the posts which were up for appointment involved different duties than in previous posts. The previous posts primarily involved nursing duties. She submitted it became clear to the interviewer during the interviews that the applicants had not given sufficient thought to the nature of the new posts and the marked difference between them and the old posts. That explained their failure to meet the questions properly at the interview and for their low scoring by the interview panel. The questions were not mainly designed to test clinical knowledge. They were designed to assess the appreciation by the applicants of the nature of the new posts. She submitted that there were other candidates who did badly at the interview, and they were white. The Industrial Tribunal had found as a fact that the applicants had sufficient information about the new jobs at the interview or they had the means at their disposal of obtaining any information which they needed. The interviewing panel, according to the Industrial Tribunal, had found that the marks were awarded honestly and were uninfluenced by consideration of race. The fact that the applicants were experienced and effective nurses did not automatically lead to them being considered suitable for appointment to the new position of Care Co-ordinators. In those circumstances it was open to the Industrial Tribunal to decline to draw any inference of racial discrimination.
A similar point was made in relation to the selection of Mr Fisher in preference to Mr Soobratty at the third stage. The way that the matter operated was that because Mr Soobratty had not scored as well as Mr Fisher at the interview, only Mr Fisher and not Mr Soobratty was discussed at the third stage. Again, there was no racially discriminatory element in that.
As to the recruitment policy and the equal opportunities policy we accept Miss Romney's submissions that the Tribunal found as a fact that the job description and person specification contained adequate information. That is a finding of fact that we are not entitled to disturb on an appeal on a point of law. She submitted that the recruitment policy did not provide that every candidate had to be asked exactly the same question. The policy was complied with if the same areas of questioning were covered. We accept that submission. We also accept her submission that, even if there had been a breach of the recruitment policy, the breach would have had the same consequence for all the candidates. It would not have impacted only on the ethnic minority candidates. The Industrial Tribunal were entitled to decline to make an inference of discrimination. We agree with her submissions about the alleged breach or departure from the equal opportunities policy. She submitted that it had been complied with, that the Tribunal was wrong in its finding that the policy had not been implemented properly in respect of questions asked of all the candidates.
It is not proper for us to question the finding of the Industrial Tribunal on that point. It is sufficient to say that, assuming there was a breach, it was open to the Industrial Tribunal to find that there was no ground for inferring racial discrimination. As is pointed out by Lord Justice Leggatt in Qureshi v. London Borough of Newham (supra) it does not follow that because there has been carelessness or incompetence in the implementation of the policy that there has been racial discrimination.
As to the points made about Mrs Egerton's evidence and Mrs Simmons' completion of the questionnaire, we agree that none of those constitutes any error of law on the part of the Tribunal. In relation to the allegation that the race relations questionnaire was completed in a misleading fashion by Mrs Simmons, the legal position is that under s.65(2)(b) of the Race Relations Act 1976 it was for the Tribunal to decide whether or not to draw an inference which it considered just and equitable to draw. It decided not to draw an inference of racial discrimination. Declining to draw that inference was not perverse. They were entitled to come to the conclusion that they did. In relation to the discrepancies in Mrs Egerton's evidence we fail to see how that leads necessarily to any inference of race discrimination. The Tribunal said that they took into account the unsatisfactory state of her evidence. That is something they were entitled to do without coming to a decision in favour of the Applicants on their complaints.
Then the question of indirect racial discrimination. We agree with Miss Romney's submissions that no case has been made out of adverse impact through a requirement or condition in the selection processes, such that a smaller proportion of ethnic minority candidates could have complied with it than white candidates. There was no evidence before the Tribunal that there would be any such discriminatory impact. There was, therefore, no factual basis for the finding of indirect racial discrimination for which Mr Crawford argued.
We have made a comprehensive review of all the rival submissions because cases of this kind justify the fullest possible examination and, more particularly, because in this case we have identified aspects of the procedures of the Health Authority that we did not find satisfactory. But, as we have already attempted to explain, the fact that they were unsatisfactory does not mean that there has been racial discrimination. If they were unsatisfactory, as we believe, they were unsatisfactory for all the candidates, white and ethnic minority. There has been no disparate treatment of Mr Mahadoo and Mr Soobratty on the grounds of race. They failed to make out their case before the Industrial Tribunal. We are unable to detect any error of law in the Tribunal decision which would give us jurisdiction to allow the appeal and either reverse the decision or remit the whole matter for fresh consideration by another Tribunal.
The appeal will be dismissed.
We make no order as to costs.