United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1083_94_0906

Appeal No. EAT/1083/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 June 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MRS R A VICKERS

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MS Y B KUTUB          APPELLANT

WASHINGTON WOMEN IN NEED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS A BROWN

(Of Counsel)

Messrs Wadesons

Solicitors

Southbank House

Black Prince Road

London

SE1 7SJ


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Ms Yasmin Kutub against the decision of the Industrial Tribunal held at Newcastle on 22 June, 30 and 31 August 1994. The complaint before the Tribunal by Ms Kutub was that the Respondents were liable to her for racial discrimination, in relation to her application for a post of Tenancy Support Worker, with the first Respondent, Washington Women in Need. The Tribunal unanimously decided that Ms Kutub was not unlawfully discriminated against by Washington Women in Need or by the individual Respondents. Her complaints under the 1976 Act were therefore dismissed. The extended reasons for the decision were notified to the parties on 26 September 1994. Ms Kutub was disappointed with the result of the complaint. She therefore appealed by a Notice of Appeal served on 7 November. The Notice of Appeal sets out a number of grounds on which it is argued that the Industrial Tribunal erred in law in its decision to dismiss the complaint.

The matter was set down for a Preliminary Hearing for this Tribunal to decide whether the arguments raised on the appeal amounted to a reasonably arguable point of law. If there is not a reasonably arguable point of law, there is no purpose in the appeal proceeding to a full hearing, because the jurisdiction of this Tribunal is confined to points of law arising on appeals arising from Industrial Tribunals.

At the hearing today, Miss Brown has advanced a number of arguments. They are summarised in her Skeleton Argument. She did not appear in the case before the Industrial Tribunal. We pay tribute to the skill with which she has presented the arguments in support of the continuation of this appeal to a full hearing. In order to assess the validity of the points which Miss Brown has made, it is necessary to refer to the main points given by the Industrial Tribunal to justify their decision. The Industrial Tribunal summarised the representation of the parties, the witnesses who gave evidence and the documents to which they were referred and set out clearly and in considerable detail, the facts which they found. Washington Women in Need is a small voluntary organisation set up in the 1980s to assist young women who were homeless as a result of sexual or physical abuse. The individual Respondents included Miss Clare Phillipson, who had been an important person in setting up the charity and obtaining funds; in particular, funding for three years for a young tenancy support worker. The post of young Tenancy Support Worker was advertised and Ms Kutub applied for it. Unfortunately, she was not successful and she complained that she was unsuccessful in obtaining the post on the grounds of her race.

It is relevant to comment that Ms Kutub is black, of British origin and is 26 years old. In support of her job application she submitted a comprehensive C.V. She seemed to be an excellent candidate and was therefore placed on the short-list. An interview took place on 12 August. There were eight candidates short-listed. The interviews took place over two consecutive days. The interviewing Board consisted of the three individual Respondents: Miss Clare Phillipson, Miss Margaret Scott and Miss Margaret Hope. The Board drew up a list of questions. Those questions were to be asked of all the candidates. There were questions that individual candidates were asked arising from information in their C.V.s. There was an interview marking schedule. That was divided into two broad factors of Skill and Knowledge and Personal qualities. The Tribunal went into detail of the questions put to the Applicant, Ms Kutub, in the interview; questions about why she wished to leave her present job, how did she feel about working in Sunderland, where the population was 99.8% white. They dealt with the questions and the way those questions were answered.

At the hearing before the Industrial Tribunal, Ms Kutub gave evidence that she was not happy with the interview. As far as she was concerned, she was confident that she had answered the questions quite well. Her feeling was that the Respondents did not wish to employ her. She complained that the panel members had chatted among themselves during the interview and had made negative comments about black women and black workers. This was not the same version of events given in evidence by the Respondents. The Respondents' version of the interview was that Ms Kutub gave short cursory answers to the questions. They had tried to bring her out of herself by asking supplementary questions. They denied talking during the interview among themselves or making derogatory comments of the kind complained of. The Tribunal then dealt with various other aspects of the interview on which they heard conflicting evidence. In the result, the Tribunal found that Ms Kutub was fourth in a list of eight of the short-listed people. She received a rejection letter about a week later. She rang up Miss Phillipson asking for feedback as to why she was not successful. According to Ms Kutub, Miss Phillipson seemed taken aback at the request and was rather hesitant. She said she had not been selected because she had not displayed an empathy to survivors of sexual abuse and said that, whilst the Applicant had answered the question regarding the causes of sexual abuse adequately, she had not gone on to expand on the effects of it. Following a further conversation, Ms Kutub asked Miss Phillipson to put the reasons for her not obtaining the post into writing. Miss Phillipson said that was not the practice of the organisation. Miss Phillipson confirmed to her that she was the only black candidate on the short-list.

The Tribunal dealt with another conflict of evidence which arose from a written submission made to the Tribunal by Miss Scott, the third Respondent. That referred to a discussion in the offices of the organisation, when it was apparent that Ms Kutub was bringing the Tribunal proceedings. This centred on the fact that the successful applicant did not possess a full driving licence, and that had been stated to being one of the requirements of the job description. Miss Scott's statement alleged that Miss Phillipson suggested the possibility of changing the successful candidate's application in that respect. At the hearing, they heard evidence from Miss Robson, who said that that suggestion had emanated from Miss Scott and that it was Clare Phillipson who had said they could not possibly countenance that, as it was not honest. Miss Phillipson in evidence denied that she had made such a suggestion.

The Tribunal stated their conclusions. They referred to the relevant sections of the Race Relations Act 1976 Section 1(1) and Section 4(1)(c). The Tribunal correctly directed themselves in law in saying that it was for Ms Kutub to show whether it was more probable than not that she was less favourably treated than other persons would have been treated on racial grounds. They found that, in relation to the post of youth Tenancy Support Worker, there was no requirement or condition that had been applied to the qualifications for the post, whereby Ms Kutub could have been indirectly discriminated against. That point was not pursued at the hearing. The point the Tribunal had to concern themselves with was the application for the job by Ms Kutub and the circumstances in which she was unsuccessful. The Tribunal stated that the correct question was this: "Was the reason she was unsuccessful because she was the only black short-listed candidate out of eight." They went on to observe correctly that direct evidence of discrimination is rare. Evidence of discrimination is normally a matter of inference from primary facts. The Tribunal again correctly referred to the relevant cases for the legal test, Noone v North West Thames Authority and King v The Great Britain China Centre. They dealt with the submissions and made a number of comments which have been the subject of criticism by Miss Brown. In paragraph 14:

"... The backgrounds of the applicant and the successful candidate were not markedly diverse and we draw no inference of discrimination based on the backgrounds of these two people."

They referred in paragraph 13 to the job qualifications that:

"The applicant's qualifications were superior to those of the successful candidate... However, the job specification stated that no formal qualifications were required but that experience in the social welfare sector was required."...

They referred to the comparison of the experience of Ms Kutub and the experience of the successful candidate. The Tribunal declined to draw any inference from the completion of the questionnaire. In paragraph 16 they said:

"Much has been said at this hearing regarding the selection process and according to the applicant and her expert witness best practice. We must remember that we are not looking at the personnel department of a major PLC such as ICI but a small charitable organisation with attendant resources and expertise. What may not be best practice may also not be discriminatory. A subjective employment requirement is not discriminatory per se, although in the context of other matters or other evidence could be. We have to consider whether the respondents were in fact carrying out discriminatory practices. In our view for a small organisation the respondents did rather well in its approach to seeking a candidate for the vacancy of Young Tenancy Support Worker and the resultant appointment. The job description was to a fair degree comprehensibly and cogently drawn up and there was a marking system for ascertaining those to be placed on the short-list and for selecting the successful candidate at the interviews. It is true that the personal qualities used at the interviews were to an extent subjective but that was the nature of the job sought. The respondents required somebody who had empathy and indeed a sense of humour to deal with vulnerable and disadvantaged young women..."

They were looking for personal qualities. There was no sinister or discriminatory intent. They considered all these matters in relation to the interviews. They resolved the conflict of fact. They said that where there was a conflict on what had taken place at the interview. They preferred the evidence of the Respondents. That is something that the Industrial Tribunal is entitled to be and, indeed, it is bound in the case of a conflict of evidence to say whose evidence they prefer. They rejected Ms Kutub's complaints that the panel were talking at the interview or that it made negative comments about black people. They dealt with the driving licence point. The requirement of the Respondents about a driving licence at the time of the interview had changed. They were mindful of the quality of the successful candidate. On the conflict of evidence about that, they preferred the sworn testimony given to them to the written submission made by Miss Scott on this point.

Having considered all those matters, the Tribunal came to the conclusion that the reason why Ms Kutub was unsuccessful was not because of race. It was for the very good reason that she performed badly at the interview. They referred to their findings of fact that the responses to questions that she had given were brief. They had encouraged her to expand her answers. She had not satisfied the interviewing board by her answers. They said, in conclusion, that most employers would be concerned regarding the potential commitment of any candidate in these matters.

We have to ask ourselves what is wrong with that decision? We fully appreciate that Ms Kutub is not satisfied with the Decision. She has brought a case. It was fought over three days. She lost. That is not enough to amount to an arguable point of appeal. Miss Brown did not suggest that it was. What Miss Brown did was to take us through a useful summary of the main points of the decision. She emphasised the predominance of white people in the client group and in the staff and management committee and the fact that her client was the only black candidate on the short-list for interview. She pointed out that there were unsatisfactory features about the evidence regarding the interviews. There was no evidence about the scoring system adopted. Almost all the documents had been destroyed. She referred to the question of the driving licence. Her client had a driving licence. The successful candidate did not. She pointed out that the third Respondent, Miss Scott, had not even attended the hearing to give evidence. She had fallen out with the organisation. She pointed out that the Respondents' organisation and the individuals, seemed confused about the issues surrounding equal opportunities. It was against that background that Miss Brown made detailed points. Her main point is that the decision was perverse; that is, no reasonable Tribunal which properly appreciated the law, had found the facts and kept them in mind, could have come to this decision. The main point she emphasised were that Ms Kutub was more qualified than the successful candidate. She met the mandatory criteria capable of objective assessment; the driving licence and experience point. The Tribunal were perverse in finding that the backgrounds of the successful candidate and Ms Kutub were not markedly diverse. The Tribunal were perverse in relying on their own industrial experience for the observation that it was quite common to make a requirement for a job in an advertisement and later to find that it was not as crucial as they first thought. (That refers to the requirement of a driving licence.) Miss Brown submitted that that was bad practice and was contrary to the case of Hammington v Berker Sportcraft Ltd for a Tribunal to decide a point based on the experience of the Industrial Tribunal members, without giving the Applicant an opportunity to challenge it at the hearing.

Other observations were made that the Tribunal had failed to give adequate weight to certain points. Ms Kutub was the only person who was asked questions about race. She was marked down because she did not deal with the effects of sexual abuse, even though the question that was asked of her was about the causes of it. The Tribunal made, Miss Brown submitted, irrelevant comments, including a statement that the successful candidate had personal qualities apparent to the members of the Tribunal. We agree with Miss Brown that that is not a relevant consideration in deciding whether there has been race discrimination. What sort of impression is made by the successful candidate on the Industrial Tribunal hearing a complaint is not material. The material question, as we have already identified is, what is the Respondents' explanation for the less favourable treatment of the complainant? Miss Brown said there was an irrelevant reference to the lack of discriminatory intent. She was right in saying that intention is not the relevant test for determining race discrimination. The test is an objective one. Was there in fact less favourable treatment and was that treatment on the grounds of race? She referred to the fact that discrimination can occur unconsciously. There were elements in this case of the intrusion of a subjective element. She referred us to the passages in the Decision about the use of personal qualities at the interview, which were, to some extent, subjective in the Tribunal's own view. She said that adequate weight had not been given to the fact that a subjective assessment can often lead to an unconscious case of discrimination on the grounds of race. She then came to what we regard as a point of some importance in the argument. That was the comment of the Tribunal about the size and nature of the Respondents' organisation. This is the part of the decision where the Tribunal commented that they were not looking at the Personnel department of a large company, they were looking at a small charitable organisation and that there would be an obvious difference between resources and expertise. Miss Brown's submission was that this is not a relevant consideration. She developed this by pointing out that as a matter of law, there is no distinction drawn in the legislation or in the case law, between large and small organisations, or for that matter between profit making and charitable organisations. She pointed to the Code of Practice, which does not draw any distinction of that kind either.

We recognise the importance of this point. We appreciate Miss Brown's comparison with the provisions in the Employment Protection Act Section 57(3) which do expressly require a Tribunal, in deciding whether a dismissal is unfair or not, to look at the size and administrative resources of the employer. There is no such provision in the Race Relations Act about determining whether there has been racial discrimination or not. For all those reasons it was submitted that this is an unsafe decision. There is a reasonable argument that it is perverse and therefore erroneous in law. We have considered all these arguments but, looking at them in total, we are unable to find in this decision an arguable case of perversity. Most of the points made by Miss Brown are legitimate comments on various points made in the Tribunal's decision, but ultimately it is a matter of judgement for the Tribunal, whether or not the employer has put forward a satisfactory explanation for the less favourable treatment of the complainant. In this case the Respondents did put forward an explanation for not offering the job to Ms Kutub. That explanation was that she had not performed as well in the interview as the successful candidate. The Tribunal accepted that explanation. It cannot be said that there was no evidence for the support of the explanation. They referred to the conflict of evidence between Ms Kutub and the individual interviewers about what happened at the interview. Having heard the evidence over several days, the Tribunal preferred the evidence of the individual Respondents. In our view, the Tribunal were entitled to accept the Respondents' explanation for offering the job to a different candidate than Ms Kutub.

As to the individual criticisms about the driving licence point, the subjective element in the interviews, the raising of race questions in the interviews, we are unable to see in those any perversity. They seem to us to be matters which were not decisive of the case, they were comments made by the Tribunal in the context of the overall question of whether the explanation for less favourable treatment was satisfactory. That is the same view as we have taken of what we regard as Miss Brown's best point and that is: the comment about the small size and charitable nature of the Respondents' organisation. We would wish to make it clear, that, in our view, it is not a defence to discrimination, if it has occurred, that the discriminator is a small organisation, as opposed to a big one, or that it is a charitable one as opposed to a profit-making one. Those are not the tests. Discrimination is less favourable treatment on grounds of race. In our view, reading the Decision as a whole, the Tribunal were not excusing this organisation from discrimination because it was small and charitable; if they had done that, that would be a clear error of law. What they were saying, and, in our view, they are entitled to say this, was the fact that it was a small charitable organisation was relevant to their assessment of the evidence, brought forward as part of the explanation for the less favourable treatment of Ms Kutub. In our view, what they said about the size and nature of the organisation is relevant to the quality of the evidence produced; for example, in this case, the lack of the same procedures one would find in a big organisation and the failure to retain documents, which in a better organised organisation one would find. The Tribunal were using the fact that it was a small charitable organisation as a factor and as one factor only, in assessing the quality of the evidence and the quality of the explanation given. In our view, that is not a mis-direction of law. This is not a perverse decision. There is no real prospect of persuading this Tribunal at a Full Hearing that it is. We dismiss the appeal.