United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S MUNASINGHE (Of Counsel) Ms S Hughes Commission for Racial Equality Alpha Tower (11th Floor) Suffolk Street Queensway Birmingham B1 1TT
For the Respondent	MR D BEAN QC The Solicitor Sussex Police Authority Pelham House St Andrew's Lane Lewes East Sussex BN7 1UN


 


JUDGE CLARK: This is an appeal by Mr Martins against the decision of the Brighton Industrial Tribunal sitting on 25 March 1996, dismissing his complaint of unlawful racial discrimination against the Sussex Police. Extended Reasons for that decision are dated 11 June 1996.

The Appellant is of Nigerian racial origin. He applied to join the Sussex Police Force. Having passed in April 1995 the Police Initial Recruitment test he was invited to attend for assessment on 11 July 1995 and if successful to a further assessment to be held the following day. He failed the first day's assessment and consequently was not selected for the Force. Of fourteen candidates, six, including the Appellant, failed the assessment process. He was the only black candidate.

The assessment exercises devised to test core skills for the role of Police Constable were designed by, among others, a Chartered Psychologist, Mr Wigfield, whose evidence was before the Industrial Tribunal.

The Appellant was interviewed by two trained Police Officers, Detective Sergeant Skilton and Police Constable Mann. After discussion they marked the Appellant as follows:

1) Oral Communication 5

2) Relationships with Others 4

3) Practical Effectiveness 4

4) Decision-making and Problem Solving 5

5) Planning and Organising 4

6) Written Communication 5

7) Knowledge 3

The marks were on a scale of 1-5, 5 being the lowest. He fell down principally on oral and written communication. On the marking sheet DS Skilton wrote under the heading Oral Communication "very difficult to understand". PC Mann wrote "very difficult to understand through accent .... the inability to understand speech made it impossible for him to be effective."

That assessment was repeated in evidence by the two Officers and supported by two unsuccessful candidates who took part in that assessment exercise, Mr Hodges and Mrs Stevens.

The Appellant complained that he was marked down due to stereotypical assumptions made about his being a bad communicator because he was a black African. He contended that his accent was criticised unjustifiably.

In reaching its decision that the Appellant was not discriminated against either directly or indirectly on racial grounds, the Tribunal asked itself whether the two Officers genuinely believed that the Appellant failed to show the communication skills which were necessary for a Police Officer or because they were racially motivated. They decided that it was the former.

The Appeal

Mr Munasinghe takes essentially two points in this appeal. First, that the Industrial Tribunal failed to give sufficient reasons to show why the Appellant lost in his claim of indirect discrimination. Secondly, he submits that the finding that there was no direct discrimination was perverse.

As to the first point it is right to say that the Tribunal has not spelled out the various stages provided for in Section 1(1)(b) of the 1976 Act. However, we bear in mind the Court of Appeal's observations in cases such as Meek v City of Birmingham District Council [1987] IRLR 250, that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship. The parties are entitled to know why they won or lost.

Why did the Appellant lose on this part of the case? We accept Mr Bean's simple answer to that question. Police Officers must be easily understood. That is a clear finding by the Tribunal at paragraph 24 of the reasons and one which Mr Munasinghe cannot and does not seek to challenge. Secondly, the Tribunal rejected the Appellant's evidence that his accent was criticised unjustifiably. At paragraph 26 the Tribunal say:

"Nothing that we have heard today makes us believe that Messrs Skilton and Mann were not telling the truth when they said that they experienced difficulty in understanding the applicant."

That must have included his [the Appellant's] own performance in the witness chair before the Tribunal.

In these circumstances, even if the Appellant made out a case of adverse impact, the reasonable needs of the Police to have officers who are easily understood outweighed, in the view of the Tribunal, the discriminatory effect of the condition. It was, we infer the Tribunal found, justifiable. Accordingly we reject Mr Munasinghe's first ground of complaint.

As to the perversity argument, we are quite unable to see any basis for such a finding. We have been taken to parts of the documentary evidence, and in particular the assessment forms completed in respect of the Appellant. They are all of a piece. In the view of the assessing officers the Appellant fell down on making himself understood wherever oral communication skills were important.

It is suggested that because he failed on his accent, and this is attributable to his racial origins, that he received less favourable treatment on the grounds of his race. That does not follow in our judgement. A white candidate with a strong regional accent which made him or her difficult to understand, would have been similarly marked down.

Mr Munasinghe has referred us to the assessment of candidate No.9 who hailed from Liverpool. However his assessment read: "Liverpool accent but easy to understand." There lies the difference.

In our judgement no error of law has been made out in this appeal and accordingly it must be dismissed.