United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR V RESTON (Solicitor) Messrs Dibb Lupton Alsop Solicitors India Buildings Water Street Liverpool L2 0NH
For the Respondent	MR P PASSI (Representative) Preston & West Lancashire Racial Equality Unit PO Box 10 Town Hall Annexe Birley Street Preston PR1 2RL


 


JUDGE PETER CLARK: This is an appeal by the Respondent College before the Liverpool Industrial Tribunal sitting over four days in May and October 1997 against that Tribunal's decision, promulgated with extended reasons on 6 December 1997, upholding the Applicant, Mr Motala's complaint of unlawful direct sex discrimination.

Background

From about 1991 the Respondent College operated a joint project with St Martin's College Lancaster designed to encourage black and Asian people to follow courses of Teacher Education and to facilitate their access into Primary Teacher Education. It was intended to run for five years.

In July 1992 the Applicant was appointed to one of the posts of Access Tutor for the project. Originally there was a team of four employed on the project. One of the other team members was Ms Sugra Choudhry-Khan. The access tutors were employed on renewable one year contracts. By February 1996 two access tutors remained, the Applicant and Ms Choudhry-Khan. Their line manager was then Margaret Entwistle. The Head of School of Teacher Education at the College was Richard Foster.

During February 1996 a review of the management structure of the project was carried out. It was decided to terminate the two remaining access tutor posts and replace them with a full-time co-ordinator together with a part-time Access/Recruitment Officer. Applications for the two new posts were invited.

Ms Choudhry-Khan was the sole applicant for the co-ordinator post. She was appointed following interview on 25 June 1996 by a panel consisting of Mr Foster, Ms Entwistle and Rhiannon Evans, Director of Students and Marketing.

Following that interview candidates for the Access/Recruitment Officer post were seen by the first two panel members who had interviewed Ms Choudhry-Khan together with Ms Choudhry-Khan herself, who replaced Ms Evans. As co-ordinator she would be the new Access/Recruitment Officer's line manager.

There were three candidates for the post. All were shortlisted for interview by Ms Entwistle. They were Itohan Egharevba, an African female candidate, candidate B, a man, and the Applicant, an Asian male.

Following interview Ms Egharevba was appointed to the Access/Recruitment Officer post. By an Originating Application presented to the Industrial Tribunal on 23 September 1996 the Applicant complained, inter alia, that he had been discriminated against on grounds of his sex.

The Industrial Tribunal Decision

Applying the well-known approach suggested by Neill LJ in King v GB China Centre [1991] IRLR 513, approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, the Tribunal found that the Applicant had been less favourably treated than the successful candidate, Ms Egharevba, and that there was a difference in sex between them; it then went on to consider the Respondent's explanation for the difference in treatment before determining whether or not to draw any inference of unlawful sex discrimination.

In essence it was the Respondent's case, through the evidence of the panel members, that Ms Egharevba was the best candidate, regardless of sex. Candidate B was deemed to have failed the person specification for the post in a number of crucial areas. Ms Egharevba, a research student at the College, was considered to have given the best performance at interview. Mr Foster gave evidence that she had good information technology skills, important for creating a database to "track" students; she demonstrated good listening skills, she displayed knowledge of the various areas and functions of the post and how she would deploy that knowledge; she had a good grasp of how she would develop contacts

The Applicant had the most intimate knowledge of the project. However, he was not thought to have indicated how he would develop the contacts which he had already made; he did not have information technology skills or an appreciation of the importance of tracking students; overall, he showed significant weaknesses, so the panel members told the Industrial Tribunal.

It was open to the Tribunal to accept that explanation and dismiss the complaint. However it did not do so. It noted that both Ms Choudhry-Khan and Ms Entwistle had been named by Ms Egharevba as her referees. The Applicant had named Mr Foster.

It also made these findings of fact at 4(c) of the extended reasons:

"Most of the people who became primary teachers were women. Once the respondents offered confidence and assertiveness training to women but not to men, who wanted the training too. Once, on the appointment of a new access tutor, Ms Choudhry-Khan commented acerbically "I see you have appointed male access tutor". She did not like what she perceived as the illiberal attitude of Asian men towards women. Ms Choudhry-Khan was keen to provide Asian women with role models who would encourage them to become teachers. At one meeting, she cited as one of the features that helped the projects success, that a female access tutor provided a role model. As a way of developing the project, she urged the "provision of female Asian role models"."

It looked at the Respondent's recruitment and selection procedures and found that the Respondent could be faulted in the way in which it carried out the process of appointment. It noted the absence of a personnel representative on the panel, contrary to the procedure, and that instead Ms Choudhry-Khan was co-opted with the effect that the successful candidate's two referees formed the majority of the interviewing panel. It found that the criteria were not weighted in accordance with the Respondent's procedure. Overwhelming reliance was placed on the interview at which Ms Egharevba did better than the Applicant; his experience counted for very little and was underestimated by the Respondent's witnesses in their evidence. The impression the Tribunal formed from hearing and seeing the witnesses was that Ms Entwistle and Ms Choudhry-Khan made the appointment they wanted and not the Applicant. The question was why they had such a preference. The Tribunal concluded that it was because those panel members wanted a woman and not a man for the job. In these circumstances the Tribunal drew an inference of unlawful discrimination.

The Appeal

Mr Reston submits that where the successful candidate gives a better interview than the complainant it is perverse for the Tribunal to reject the explanation given for her selection, namely that she was the better candidate. In these circumstances no question of drawing an inference adverse to the Respondent could properly arise.

Alternatively he submits that applying the homely dictum of May LJ in Hereford & Worcester Country Council v Neale [1986] IRLR 168, it can properly be said of this Industrial Tribunal decision: "My goodness that certainly was wrong!"

In a detailed written submission he gives instances in which it is said the Industrial Tribunal misunderstood or misapplied the facts. We drew attention to the Court of Appeal judgment in British Telecommunications Plc v Sheridan [1990] IRLR 27, and having considered that case Mr Reston accepted that such a contention does not amount to an error of law of itself.

He submitted, however, that in certain respects the Tribunal's findings of primary fact were unsupported by any evidence. Of these, only one, a finding that no references were obtained for Ms Egharevba, appears to be made out. That finding was not central to the Tribunal's overall conclusion and does not of itself vitiate that conclusion, in our judgment.

In considering any appeal based on the perversity ground we remind ourselves that it is not for us to substitute our view of the evidence for that of the Industrial Tribunal. Absent patent misdirection we can only interfere where the Tribunal's decision is an impermissible option, or any of the other epithets recited by Mummery J in Stewart v Cleveland Guest (Eng) Ltd [1994] IRLR 440, para 33.

We bear in mind the guidance of the Court of Appeal to which Mr Reston has referred us; first in Chapman v Simon [1994] IRLR 125, where, at para 43, Peter Gibson LJ emphasised the importance of an Industrial Tribunal setting out clearly the primary facts from which any inference is drawn, and secondly in Martins v Marks & Spencers Plc [1998] IRLR 326 where at para 50 Mummery LJ pointed out that the focus is not on whether the conduct of the employer or prospective employer is biased, or unreasonable, or unfair in determining whether a complaint of unlawful discrimination is made out. The less favourable treatment must be on the grounds of race or sex as the case may be.

In the present case we are satisfied that the Industrial Tribunal did not fall into error. It considered the explanation advanced by the Respondent and found it to be inadequate and unsatisfactory for the reasons which it gave. We reject Mr Reston's submission that a finding that Ms Egharevba performed better at interview is an end to the case. More to the point, and unusually, the Tribunal found that there was evidence, which it accepted, indicating that two of the members of the selection panel were biased against the Applicant because he was a man and in favour of the successful candidate because she was a woman. In essence, it was purely gender based. Provided that such bias was an effective cause of the less favourable treatment it provided adequate grounds, in our judgment, for a finding of unlawful discrimination. On the Industrial Tribunal findings it did. That is sufficient in our view.

Finally, we confess that far from being left with the feeling "My goodness that certainly was wrong!" on the Industrial Tribunal's underlying findings of fact we can well see how they reached the conclusion which they did. No error of law having been made out in this appeal it must be dismissed.