United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS MONAGHAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE KIRKWOOD: This is a preliminary hearing of an appeal by Mr Ayovuare from the decision of an Industrial Tribunal at London (North), dismissing his complaint of racial discrimination under Section 4 of The Race Relations Act 1976, and his complaint under Section 2 of The Race Relations Act 1976.

We are indebted to Miss Monaghan for the comprehensive and lucid yet succinct fashion in which she has represented the Appellant today.

The complaints related to the Appellant's application for employment as a Surveyor (Repairs Manager) in the first part of 1995 and to the withdrawal of an offer for an interview in relation to another job application in the Summer of 1995.

In relation to the first the Industrial Tribunal gave careful consideration to the process of selection of applicants for the post advertised. The Industrial Tribunal considered the pool of applicants, the shortlisting procedures employed by Mr Brewer and Mr Thompson of the Respondent of which, indeed, the Tribunal had detailed evidence and made detailed findings. It considered the reasons for not shortlisting the Appellant on the basis that he came nowhere near meeting the essential criteria in the short-listing procedure that was applied to him and all applicants, and the Tribunal considered all other relevant matters. It concluded on this aspect:

"The Tribunal was satisfied that the Respondents exercised their shortlisting procedure fairly and that their decision not to shortlist Mr Ayovuare was made on the basis of his application form and not on the basis of his racial group. It is therefore the unanimous decision of the Tribunal that Mr Ayovuare's claim that the Respondents racially discriminated against him in failing to shortlist him by virtue of the provisions of section 4(1)(c) of the Race Relations Act 1976 fails."

In respect of the second complaint the Industrial Tribunal found that an invitation to the Appellant for interview was withdrawn. It was Mr Burn, Staff Welfare Officer, covering for the Departmental Personnel Officer, who noticed that the Appellant was one of the people invited for an interview for the post. Mr Burn recognised the Appellant's name from the one and only Industrial case Mr Burn had ever been on, which had been back in 1985. Mr Burn located his file and checked the Appellant's application forms for the vacant post. He checked and compared the application forms submitted by the Appellant for various jobs in the period 1980 to 1985. He noticed marked and significant discrepancies.

The Industrial Tribunal, having considered that aspect, said:

"22 Mr Burn consulted with the Central Personnel Department and Legal Department of the Respondents and sent a letter to Mr Ayovuare dated 10 July 1995 informing him that the invitation to interview for the post of Senior Surveyor PO3 was withdrawn. The letter went on to state that the reason for the decision was because of the discrepancies in the application forms and made reference to paragraph 17 of the Decision of the Industrial Tribunal in Case Number: 04987 in which it stated:

'We do not believe the Applicant's explanations for the discrepancies and we do not consider them to be truthful'."

In its conclusion, the Tribunal said:

"29 Mr Ayovuare claims that in relation to his second application to the Respondents he was victimised under the provisions of section 2(1) of the Race Relations Act 1976. The Tribunal found evidence that there were discrepancies in the job title and employment dates with one of his former employers ... and drew the inference that Mr Ayovuare was fully aware of the dishonesty in relation to this employment. The reasons that the Respondents withdrew the offer of an interview was their loss of trust following their discovery of the Industrial Tribunal proceedings in 1985. The Tribunal was not satisfied that there was any evidence of the motivation for withdrawing the offer of an interview being based on victimisation of the Applicant for having brought Industrial Tribunal proceedings in this case. "

Accordingly both the Appellant's complaints were dismissed.

In his Notice of Appeal Mr Ayovuare contended that there were misdirections of itself by the Tribunal on two fundamental points of law.

The first related to its application of the decision of the Court of Appeal in King v The Great Britain China Centre [1991] IRLR 513. We were particularly referred in that decision to the observations of Neill LJ, as to the difficulty, indeed, improbability of there being direct evidence of discrimination; and as to the necessity for a Tribunal considering such a matter to draw inferences from the basic facts as found. What is said, on Mr Ayovuare's behalf today, is that in its response to his application the employer said:

"The Applicant was not shortlisted for interview on the basis that the information set out in his application form failed to demonstrate that he met the criteria set out in the person specification."

In the course of argument, it was said that that should read:

"...that he met all the criteria set out in the person specification".

That is not, of course, the way in which the Respondent put the matter before the Tribunal in the form IT3.

We were then referred to relevant parts of the Industrial Tribunal's findings on this aspect and in particular to paragraph 14 which reads:

"14 Of the 29 shortlisted candidates, both panel members stated in evidence that errors had been made in respect of one of the criteria for four of the shortlisted candidates who should not, therefore, have been included on the shortlist. However, these errors only resulted in one criterion not being met which still placed these individuals ahead of Mr Ayovuare in the shortlisting process."

I should add that the Industrial Tribunal found also that Mr Ayovuare met only three out of the twelve essential criteria.

Although it was not in evidence, and it forms no part of the findings of fact of the Industrial Tribunal, Miss Monaghan is instructed by Mr Ayovuare that those four people were all white. It is submitted that the evidence that four of those shortlisted had not in fact met all the criteria does not lie with the case as put by the employer in its IT3, to which I have already referred. It is said that there was therefore a discrepancy in the case as put from the case as found by the Industrial Tribunal. That is a fact which was material and from which the Industrial Tribunal should have drawn the inference that there was discrimination.

That argument of course, depends on a re-drafting of paragraph 6 of the form IT3. It depends upon a piece of evidence that was not found by the Industrial Tribunal. Those matters apart, it does not seem to us that the argument begins to raise a case for showing that the Industrial Tribunal reached a perverse decision or one that was erroneous in law.

The second aspect of the appeal goes to the Industrial Tribunal's approach to the discrepancies in previous job applications. The Appellant's case is that since 1985 he was employed by another local authority where he showed the highest integrity. In his written Notice of Appeal he made reference to the Rehabilitation of Offenders Act and to Representation of the People Act. What is said is that, after a good work record of ten years, it was quite unreasonable to rely on these previous inconsistent and, as an earlier tribunal found, dishonest discrepancies.

The task of the Industrial Tribunal was not to make its own judgment on the interview question, but to find whether it was satisfied that the Appellant had been discriminated against on one of the grounds in Section 2 of the Act. In other words, for having brought the proceedings to the Industrial Tribunal in respect of the first matter complained of and to which I have referred.

The Industrial Tribunal's finding about that, set out in the final paragraph of its Extended Reasons, is that it was not satisfied that there was any evidence of the motivation for withdrawing the offer of an interview being based on victimisation of the Applicant for having brought Industrial Tribunal proceedings in this case. Indeed, the Tribunal found that the reason for it was the loss of trust following the discovery of this earlier material.

The Industrial Tribunal did not even arguably, err in law, or in its approach in this matter. Nor was there any perversity. Accordingly this appeal will be dismissed at this stage.