United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MAJOR I D LAWSON (Husband)


 


JUDGE PETER CLARK: This is an appeal by Mrs Lawson, the Applicant before the Norwich Industrial Tribunal sitting on 14 and 15 July 1997 against that Tribunal's decision to dismiss her complaint of unlawful sex discrimination. Extended reasons for that decision are dated 15 August 1997.

The Applicant applied for the post of head of Riddlesworth Hall School in response to an advertisement in the educational press . She came through the initial sift and was short-listed with two other candidates, both male, for the final selection interviews.

The Tribunal point out that on 10 February when the interviews took place, no minutes were kept of the individual interviews. They also observe that where there was a conflict of evidence they preferred the evidence of Mr Steele, the Vice Chairman of the Governors, to that of the Appellant and her husband, Major Lawson, who has presented the argument in this appeal before us today.

The candidates had been subjected to a personal profile analysis following a psychometric test which gave the opinion that the Appellant was:

"non aggressive and would avoid wherever possible making harsh or unpopular decisions. She is not a particularly good disciplinarian and indeed can be over protective of subordinates and/or other members of her team."

At the end of the interviewing process, the governors selected Mr Dean, one of the two male candidates, for the vacant post. The other male candidate came second and in their opinion the Appellant came third.

Having not been selected for the post, the Appellant then presented her complaint of unlawful sex discrimination to the Industrial Tribunal. Having set out the facts as they found them, the Industrial Tribunal directed themselves in accordance with the well known guidance of Neill LJ in King v Great Britain China Centre [1991] IRLR 513. It found that there was a difference in sex between the Appellant and the successful candidate, Mr Dean, that she had suffered a detriment in that she had not been selected for the post and, therefore, they looked to the Respondent for an explanation as to why it had preferred Mr Dean, the successful candidate. If the explanation was considered by the Tribunal to be inadequate or unsatisfactory, it would then be open to the Tribunal to draw an inference of unlawful discrimination.

At paragraph 20 of their reasons, they conclude that they are unable to draw the inferences of unlawful discrimination which the Appellant invited them to do. They state that the facts are in total neutral and none of them, in the view of the Tribunal, in any detail approach being sufficient in themselves or in combination to justify such an inference being drawn.

Having said that, they criticised the Respondent for approaching the interviews in an unstructured way and in keeping no minutes of the interviews and they expressed suspicion as to the reference to the "Team X Factor" which they recognized may be a disguise for the question "will he or she fit in?". The Tribunal, having considered the matter, in our judgment, with some care and having formed a view on the evidence as to the facts of the case, dismissed the application.

Now there is an appeal and we have had the advantage of a careful typed address, which we have read, prepared by Major Lawson. Having read it, we then heard further oral argument from him. What he submits is that the Industrial Tribunal were wrong to conclude that the facts were neutral. He submits that on any proper assessment of the evidence it was clear that the Appellant was better qualified and experienced than Mr Dean for the post in question. He has made a number of criticisms of the evidence of Mr Steele, which was accepted by the Tribunal in preference to that of the Appellant and Major Lawson himself, describing Mr Steele's testimony as consisting of lies and inconsistencies and setting out in detail those complaints. He has asked us to admit new evidence which was not before the Industrial Tribunal and he has complained of a breach of natural justice in that a witness, Mrs Rollin, was interposed during the Appellant's evidence with the result that she was left in mid-evidence over night and could not, in accordance with the usual direction from the Chairman, speak to her advisers or, indeed, anybody else before her evidence was completed the following day. He also sets out a list of what he describes as factual errors in the Tribunal's reasons and, finally, he submits that the evidence did not support the Tribunal's conclusion and that was a conclusion which can properly be described as perverse in the legal sense. He also referred to the Court of Appeal's decision in the case of Noone v N W Thames Regional Health Authority [1988] IRLR 530 and submits that the absence of qualifications on the part of Mr Dean, the failure of the governors to consider references, qualifications and experience and their abrogation of proper guidelines in the recruiting process, together with the lack of minutes of the interviews, all points to unlawful discrimination.

We have considered these arguments with care and we reject them. The function of the Industrial Tribunal is to decide the facts, it is not for us to re-open factual issues. The Tribunal were not deciding who was the better candidate, they were deciding whether the explanation put forward by the Respondent for selecting Mr Dean, was an adequate one or whether it was so inadequate as to give rise to a potential inference of unlawful discrimination. We will not admit the new evidence which we are asked to consider. That matter has been the subject of a review application before the Industrial Tribunal and although we have not been shown the review decision, we understand that that has been rejected. As to the break in the Appellant's evidence, it frequently happens that for the convenience of witnesses they are interposed. It also frequently happens that witnesses' evidence is adjourned overnight. During that period it is, of course, the invariable practice for the Tribunal to instruct the witness not to discuss his or her evidence with anybody. At the end of the day we have to look at this matter in the round and decide whether there is an arguable case of perversity. That is a considerable hurdle for Appellants before this Tribunal to overcome. We are quite satisfied that the Appellant will not succeed at a full hearing in overcoming that barrier and in these circumstances we have concluded that this appeal does not raise any reasonably arguable point of law and must be dismissed at this stage.