United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 67_94_0307

Appeal No. EAT/67/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 3 July 1995

Before

THE HONOURABLE MR JUSTICE TUCKEY

MRS R CHAPMAN

MR D J JENKINS MBE

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STAFFORDSHIRE COUNTY COUNCIL          APPELLANTS

MRS P BENNETT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T KEMPSTER

(Of Counsel)

The Solicitor

Staffordshire County Council

PO Box 11 County Building

Martin Street

Stafford ST16 2LH

For the Respondent RESPONDENT IN PERSON


 


MR JUSTICE TUCKEY: This is an appeal by the Staffordshire County Council from a decision of an Industrial Tribunal sitting at Leicester promulgated on 15 December 1993, following a four day hearing. The complaint before the Industrial Tribunal by Mrs Bennett, the Applicant, was one of racial discrimination. The decision of the majority of the Tribunal was that she had been directly discriminated against and they adjourned the question of remedy to a later hearing. It is against that finding that the Appellant council appeals. The minority decision (not helpful to the Appellants) was that there had been indirect discrimination.

The facts giving rise to the complaint and the decision of the Tribunal are that the Appellant council have a school, the William Hutson Junior Mixed School in Burton, at which they required a part-time temporary assistant to help with the special care of an individual asian pupil. The idea was that this assistant would provide care for that child who had special needs. The employment of the assistant had to be arranged with some speed. There were many applicants for the job. Three were shortlisted and were interviewed at the school by the Headmaster Mr Chipchase, and the teacher in whose class the child in question was placed, Miss Turbill.

The successful applicant was a qualified hairdresser. She was white. The Tribunal said:

"She apparently impressed everyone in the interview as a motherly character, who readily acknowledged her lack of scholastic achievement; lack of any form of formal training; (other than being a childminder for a relatively short period). But she presented herself to those interviewing her by eye contact; as a warm, natural sort of person."

Of the Applicant, Mrs Bennett, the Tribunal said:

"Mrs Bennett was the last person to be interviewed. There was no significance in the choice of who should be interviewed first or not. She was questioned about her Canadian qualification. There were no certificates supporting her claim. The two interviewers, had doubts about the validity of that qualification. That qualification could have been easily checked by a telephone call to the Canadian High Commission.... a quick telephone call to the particular institution in question in Canada. However we recognise as they do now that her qualifications were first class."

They went on to deal with the impression that the Applicant made at the interview concluding their findings by saying:

"... They rejected Mrs Bennett because she presented herself badly in two respect. She was somewhat abrasive in having her qualifications challenged, and because the applicant did not present herself to Miss Turbill as a person of warmth and a person that she could have eye contact with and who could be, as it were, suitable in the background in her class."

The Tribunal then made an important finding of fact. This was that the day after the interview, the Applicant had rung up the Headmaster, Mr Chipchase, and was told that she had not got the job because she might not have got on with the rest of the staff. That had obviously upset Mrs Bennett and resulted in the application to the Tribunal.

In the conclusions which the Tribunal reached, they record the fact that they had heard two days of evidence, that the result could have gone either way and that their consideration of the case had been spread over a period of six hours. They went on ( and it is this paragraph that the Appellants attacked essentially):

"17. .... This is a case where on the bald facts adversed inferences should be drawn that the applicant was discriminated against because she was black, unless satisfactory explanations are given. The bald facts are that she is black with a foreign but good qualifications. The successful applicant was white with no qualifications. That white candidate got the job because, as was explained to us, she had good eye contact whilst the applicant had poor eye contact. Further the headmaster did in fact tell the applicant that she did not get the job because she might not get on with other staff. The Equal Opportunity Policy was not followed."... That is a reference to the procedures. Particularly the interviewing procedures, which the Council laid down for themselves. For reference we are aware of research by the Home Office which is used in the Judicial Studies Board Training Programme that those of Afro-Caribbean origin do not when meeting authority figures join eyes; it is regarded as impolite. We listened to the explanations we could not accept them. We believe on the evidence there was Race Discrimination.

18. Direct Race Discrimination is the only inference we can draw on those bald facts. A woman of impeccable qualifications was rejected from a job simply because her black face in short did not fit within that classroom. We, the two of us, hold that the applicant was discriminated against by reason of her race. In coming to that conclusion we make it clear that this was not a case in which the Staffordshire County Council or its agent relating to the education department were operating a racially discriminative policy. We believe this is a case in which by reason of hurry (the Council) allowed the usual high standards to slip."...

Mr Kempster in his very helpful submissions to us, attacks the reasoning behind these conclusions in a number of ways. Firstly, he says, if one looks at paragraph 17, the Tribunal appear to have misdirected themselves; that is to say, committed an error of law, by taking into account the point about `good eye contact' which is a matter which would or might lead to a conclusion that there had been indirect discrimination, but was not something which was relevant to the finding that they made of direct race discrimination.

Further if they took this into account as one of the explanations which the council was advancing for its decision to employ the successful applicant for this job, then they took too narrow a view of its significance. It related to the warmth of the person who they wanted for this job which was relevant to the kind of work that the employee was to do. The Tribunal did not look at it in that light. When pushed to it, Mr Kempster further submitted that what he was really saying was that this was a perverse decision because they got themselves confused by this question of eye contact. They apparently did not consider the extensive explanations which the County Council had put forward as to why they chose the successful applicant, in preference to Mrs Bennett.

The essence of Mr Kempster's submission is that in a case of this kind, following dicta in the case of King v The Great Britain China Centre [1992] ICR516, that the Industrial Tribunal having found the existence of discrimination and a difference of race, had then to go on to consider whether there was a satisfactory explanation for the discrimination. In that second stage of the process, the Tribunal got into a muddle and did not address the question fairly and squarely as to whether on the balance of probabilities, Mrs Bennett had shown that the reason for the discrimination was racial and not, as the Council were contending, other unobjectionable reasons. Mr Kempster submits that the Tribunal did not go through this process because they got diverted by this question of eye contact.

We are unable to accept that submission. It seems to us, reading the entirety of the decision, that the Tribunal did consider all the facts which included the explanation that the Council were advancing to them; which was essentially that the successful applicant was someone who had practical experience, had good references and who appeared to be a "warm" person and that that was the reason why they preferred her to Mrs Bennett. That it seems to us emerges from the earlier paragraphs of the decision to which we have referred. Although it would probably have been better if the Tribunal had set them out shortly again, in paragraph 17 and rejected them, we do not think that their failure to do so amounts to an error of law. They did however say in terms that they had listened to the explanations and had been unable to accept them. One does not have to look very far to see why they did not accept them, because they obviously attached importance to their finding that the day after the interview the Headmaster had told the Applicant that she had not got the job because she might not get on with the other staff. It does not require any great legal logic to see how having found that fact, they concluded that what in effect the Headmaster was saying, was that this Applicant's face would not fit and that this therefore was a case of direct discrimination.


 


We do not therefore think that this Tribunal mis-directed themselves in law. It may be that in the way they expressed themselves they over emphasised the eye contact point, notably, by referring to the judicial studies board training programme about the significance or otherwise of the fact that people of Afro-Caribbean origin do not join eyes. But they were entitled to draw on their own experience and the experience of the judicial studies board an experienced body about such matters. It may well be that those involved in this interview (one had no previous experience of interviewing) did get rather too carried away by the significance of Mrs Bennett's inability to join eyes. Whilst this should perhaps more properly be characterized as indirect discrimination, it underlines the conclusion the Tribunal reached; which was that there was no satisfactory or acceptable explanation advanced by the Council. This was a case in which the evidence showed that there was discrimination and it was for the Council to explain if they could, that the discrimination was not racial. They failed to do so.

The perversity point relies on the same arguments. To show in this Tribunal that, a decision of an Industrial Tribunal, particularly one which has obviously taken great care and time over its decision is perverse, is, as Mr Kempster acknowledges, a very high hurdle to jump. In our judgement, the Appellants here do not come within measurable distance of doing so. This Tribunal considered at length the material put before them. They obviously had difficulty reaching a decision. They considered the Council's explanations for preferring the successful candidate and rejected them. That was a conclusion of fact and attractively though the points made have been packaged by Mr Kempster as points of law, at the end of the day we do not think they are. The Council is trying to appeal questions of fact, which they do not like, but appeals on questions of fact are not permitted here. There is no point of law which entitles the County Council to upset this decision. Accordingly the appeal will be dismissed.