United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	CAROLINE UNDERHILL (Representative) Avon & Bristol Community Law Centre 2 Moon Street Stokes Croft Bristol BS2 8QE
For the Respondents	JAMES HAYWARD (of Counsel) Mr P Roscoria County Legal Services Cornwall County Council St Clements Building County Hall Truro TR1 3AY


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Mrs Jones against a majority decision of an Industrial Tribunal held at Plymouth, which dismissed her complaint of unlawful discrimination on grounds of race brought under Race Relations Act 1976.

The application to the Industrial Tribunal centred on the appellant's failure to secure an appointment as a temporary escort at the Morley-Tamblyn Lodge, which is a day centre for adults with learning disabilities. The respondents to her application were the Cornwall County Council and the manager of the centre. The job entailed taking the residents on expeditions. She had previous relevant experience which suited her for the position.

Mrs Jones had previously unsuccessfully applied for a similar position in the centre. Having become aware of the new vacancy, she was told that she need not complete a new application form, instead she wrote a letter expressing interest in the job and nominating new referees. Her letter was received on 14th February 1995. She had no contact with the respondents thereafter, and having heard nothing, assumed that her letter was simply being ignored. Accordingly she presented a complaint to an Industrial Tribunal.

Before the respondents became aware of it, they contacted her to offer her an interview. However, by the time the interview took place on 23rd March, her complaint had been served on them. The Industrial Tribunal has found as a fact that the explanation for the delay from which the appellant had drawn an adverse inference of unlawful discrimination, was some kind of temporary freeze on recruitment, no doubt related to the Council's budgetary year of account.

There were two candidates for the post. Mrs Jones is black and of Nigerian ethnic origin, the other candidate who is white, is the daughter of an employee at the centre. During the interview twelve questions which were written down were asked. Four by each of the three persons conducting them.

Following the interviews, the three members of the panel compiled record sheets. Two of the interviewers arrived at a roughly common score, the third prepared her own independently. After both interviews the scores were compared, and the post was offered to the other candidate. It is apparent from the Industrial Tribunal decision that the two candidates were written up in a way which was essentially different. I now read paragraph 43 of the Industrial Tribunal decision:

"43 We have read these carefully. Throughout these recorded responses there was a positive aspect to applicant 2's replied. There was a negative approach to applicant 1's replied. Where Mrs Jones gives satisfactory answer this is recorded as "OK" - questions 8 and 9. The successful applicant's (applicant 2) responses are written far more positively. We note also that Mrs Jones had undertaken specialist lifting courses and that this was not positively recorded even though the job description names lifting as a prime requirement of the post. We note also that applicant 2's responses revealed that she had a back problem previously, though aged only 21. This disadvantage is recorded but not in a negative manner."

The Industrial Tribunal noted that the recruitment decision was based wholly on the result of the interview. As we understand paragraph 43, the appellant was as well if not better qualified for the post, and more experienced than the successful candidate. Further the tribunal were critical of the Council for the deceptive way they had presented their evidence. In particular, they noted that the Council did not disclose to them that the successful candidate was employed at the centre at the time of interview, and the omission of this fact from their evidence was not accidental. They also found that the appellant herself was not being truthful when she gave evidence relating to her refusal or failure to take up voluntary work at the centre when such had been offered to her on an earlier occasion. Against those findings of fact the tribunal proceeded to ask what inferences they should properly draw in accordance with the well-known case of King v Great Britain China Centre [1992] ICR 516 where Neill LJ giving the judgment of the court set out the questions which should be asked in a case such as this.

The member in the minority was prepared to infer that race was the cause for her non-selection. That member was of the view that the applicant (the appellant) could never have been selected since the Council used the applicant's connection with the centre as the determining factor and noted that Mrs Jones could not have had that connection. That was not of course a stipulation or a requirement for the job as advertised, and nothing was asked about this in the interview. In other words, we understand the minority member to be saying that the Council have chosen a white person rather than a black one, not on the basis of any criterion announced in advance, but on one which they knew the black person could not fulfil. Second, the minority member believed that the interviewers viewed Mrs Jones as difficult, and possibly as not likely to fit in. She had insisted at the interview on asking about equal opportunity monitoring when asked if she had any questions herself of the interviewing panel.

The majority were clearly troubled by the way the Council had behaved in presenting their evidence, but reached a different view from the minority on the basis, as we understand it essentially, on four matters. First, they considered that the minority member had placed too much stress on the fact that the successful applicant was working at the centre. They dismissed this point by saying:

"62 The majority have carefully considered that point, but feel it is negated by the fact that Mrs Jones was herself offered voluntary work in October, and that the application before us does not relate to the October interview."

Secondly, having noted that there were inadequacies in the Council's procedures, they continued:

"67 Some of the primary facts could lead us to draw an inference of direct discrimination - in particular the manner in which the interview notes were recorded, the way the evidence was presented to us not disclosing that the successful applicant was already doing the job in question and the inconsistency in Mr Varney's evidence. The successful applicant is also the daughter of a care assistant employed at Morley-Tamblyn Lodge. No explanation is offered by the respondents for these - instead they are either denied or are omissions. We decline, however to draw an inference of racial discrimination from them because:

(i) the applicant has herself been untruthful in one highly material regard (the voluntary work interviews);

(ii) the invitation for interview was made prior to the first Industrial Tribunal application being received by the respondents and was genuine; and

(iii) the applicant was invited to take up voluntary work with Morley-Tamblyn Lodge in October and that on her response in January was actually offered such work in January/February."

It seems to us, that the reasoning of the majority is flawed for a number of different reasons. The fact that the appellant had been untruthful in her evidence about voluntary work, was in our judgment, wholly irrelevant to the task at hand, which was to see whether on the facts they had found what inferences could and should be drawn. There is no principle of law that an applicant cannot succeed because he or she has in two respects not given credible evidence. She did not fail to secure the job because of any query or doubt about her credibility as a potential employee. Second, the very reason why they rejected the first reason of the minority member applies with equal force to their reason for not drawing the inference. The respects in which her evidence was considered to be untruthful related to the voluntary work and not to the work which was the subject matter of the application. Furthermore, the Industrial Tribunal should have been concerned to recognise the distinction between an employer who is willing to make use of the services of a black person on a voluntary basis, and one who is not willing to take a black person on to their staff. In the latter case it is to be recognised that a generalised assumption that a black person might not fit into a white environment, may often be the implicit reason for non-selection, and in such a case the drawing of an inference of race discrimination will almost certainly be made. See the decision in King.

Second, the fact that Mrs Jones was called in for an interview is not of any significant weight in our judgment. If the employers had known of her application to the tribunal and on that account had not called her in for interview, that would have been victimisation within the meaning of Section 2 of the Act. We find it of no weight that the employer did not discriminate against the appellant by way of victimisation. If she had not been called in for an interview, it would we think, have been obvious that the Council was discriminating against her on grounds of race. The question the majority should have been focusing upon was what happened at the interview, and whether she was probably not selected on the grounds of her race.

We have already dealt with the third reason. It ought to have been clear to the majority that an obvious distinction can be drawn between offering a person some voluntary work on the one hand, and offering them employment on the other.

Finally, the tribunal refers to the employer's perception to Mrs Jones's replies and general attitude at the interview. We respectfully point out the dangers of an employer relying entirely on the interview process, where subjective judgments and prejudices can play a dominant role. General attitude is, in many instances, a cover for some unarticulated specific dislike. The fact that a candidate is difficult during the interview, or perhaps shows what might loosely be called "some bolshiness" may well be attributed to the pressures that he or she feels during the interview process. Industrial Tribunals will recognise that people from ethnic minorities may well feel under more pressure at job interviews and may for a number of reasons including that one, behave somewhat differently in small ways from white people. An employer of any size, such as the respondents, who genuinely wishes to operate a non-discrimination policy will advertise positions, assert that such a policy in force, lay down in advance of interview the job related requirements which a candidate should fulfil, distinguishing between those which are essential and those which are desirable; prepare a similar person specification; make and keep proper notes of interview; assess candidates solely against the criteria which have been determined in advance. In the appointment which Mrs Jones was seeking, it would appear that the Council has failed in each and every one of those respects.

In these circumstances it is our view, that the Industrial Tribunal ought to have drawn an inference that the reason why Mrs Jones was not selected had nothing to do with her capability to do the job vis-à-vis the other applicant, but rather because she was black and suffering from some unspecified attitude problem.

We have some sympathy with the interviewing panel. As a matter of common sense we can understand a panel wishing to take into account the fact that one of the candidates is proposing to take or has taken proceedings against them. In the normal course of events, one could have anticipated that such a fact would be likely to play a part in the decision making process. Here, the interviewing panel were, by reasons of the provisions of Section 2 of the Race Relations Act 1976 required not to take into account those matters. They therefore had a difficult task to fulfil, and would no doubt have benefited from advice from the Council's personnel department, if they had not received it at the time when they conducted the interview.

We should add two points. First, the majority said this:

"68 The interview was conducted, as far as was possible in difficult circumstances, fairly, and though the majority find that the respondents are adverse to Mrs Jones, that is in the opinion of the majority because of the interviewers opinion of Mrs Jones replies and general attitude. Any successful applicant is likely to find that her responses are recorded negatively and that the successful applicants responses are recorded positively.

69 In our view the lodging of the first Industrial Tribunal application by the applicant was unreasonably swift, particularly in the absence of any enquiry by Mrs Jones as to the situation at Morley-Tamblyn Lodge. It exemplifies her confrontational approach to her rights. We stress that we do not criticise her for standing on her rights in any way. It does however lead us to the conclusion that the interviewing panel found her attitude at interview confrontational and demanding . That attitude (rather than the fact that she was raising the questions relating to her rights) affected the panel's view of her. Plainly in October they had considered her a suitable candidate for employment, subject to there being no better candidate."

It seems to us that if the interviewing panel found the appellant's attitude confrontational and demanding, they can only have done so on the basis that she had either presented a complaint to an Industrial Tribunal, or was asking questions about the Council's equal opportunities code. Neither reason validly leads to a justifiable reason for her non-selection. If she was not selected because she had presented her complaint, that would have been unlawful victimisation. Enquiries about the employer's equal opportunity practices was entirely legitimate. If such enquiries were regarded as detrimental to her candidacy, then we consider that the panel must have been influenced by Mrs Jones's race.

Second, the tribunal said this:

"52 We have noted that none of the Council's documents bear the recommended statement that the Council is an equal opportunities employer. We bear in mind the statistics with which we have been presented that in the 1981 census 0.01% of the population of Cornwall is classified as of black, Caribbean, African or other black ethnic origin and that the interviewing panel used stationery familiar to them, and have little cause to consider whether the statement is contained in the document or not. We note also that the line manager of Mr Varney is herself from an ethnic minority.

...

65 There are inadequacies in the County Council's procedures. Plainly it would be sensible for the Council to comply with the CRE code and ensure that anything to do with employment contains an equal opportunities statement. Its absence is the more understandable when the people dealing with recruitment are involved in the day to day running of the home as their primary job and not recruitment, particularly when the question of race equality is not uppermost in their minds given the very low level of ethnic minority representation in Cornwall."

It is not clear whether the words "bear in mind" in paragraph 52 and "more understandable" in paragraph 65, indicate that the tribunal were prepared to accept as justification for the Council's failure to assert that it is an equal opportunity employer, that the numbers of people from the ethnic minorities represent a very small percentage of the population. Quite apart from the validity of using statistics collected in 1981 to the facts as they are today, or as they were in 1993 and 1994, it seems to us quite clear that the smallness of the numbers of people from the ethnic minorities is no justification whatsoever for the Council's failure to make sure that it is an equal opportunities employer, and asserts that it is so, and to monitor their employment practices in this respect in accordance with the CRE code. In our judgment, the facts of this case show the need for the County Council to review their procedures so as to ensure that nothing similar to the facts of this case occurs again.

Accordingly, we allow the appeal, substitute a finding of race discrimination, and remit the matter back to the same Industrial Tribunal for the hearing of any claim for relief.