United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR AKHLAQ CHOUDHURY (of Counsel) Mr S Saggar (Ref: SS/PS/SINGH) Messrs Johns & Saggar Solicitors 193 - 195 Kentish Town Road London NW5 2JU


 


MRS JUSTICE SMITH: This is the Preliminary Hearing of an appeal by Mr Ajmer Singh against a decision of the Industrial Tribunal sitting at Leicester on four separate days in March and April 1998. Their decision was promulgated on 7 May 1998.

The Industrial Tribunal decided that the first Respondent's decision not to appoint him to the post of Principal Personnel Officer for their Social Services Department did not entail any discrimination against him on the grounds of race, either by the Leicester City Council, the First Respondents or by Mr Cooper, the Second Respondent or by Ms Martin, the Third Respondent.

Mr Singh had worked for the First Respondent, Leicester City Council since 1988 in various personnel positions. In the early stages his role had entailed the management of a department, but for some years before 1997 he had been concerned mainly with personnel policy and strategy and he had only two people answerable to him.

In 1997, following Local Government reorganisation, Leicester City Council became a unitary authority and a new Social Services Department was to be set up from scratch. A Director and Assistant Director, Ms Martin, were appointed. The Appellant applied for the post of Principal Personnel Officer.

In connection with the reorganisation, it had been agreed between management of the Councils involved and Trade Unions that existing staff at a suitable level, who satisfied the criteria for a vacant post would, subject to competition between themselves, be appointed to that post. If no-one were to be appointed at that stage, advertisement and open competition would follow in the usual way.

The Appellant and a woman named Jill Perry were the only two internal candidates to apply for the post of Principle Personnel Officer in the Social Services Department. Both also applied for a similar post in the Education Department, which was also to be set up. Both candidates were interviewed for the Social Services Department position on 25 January 1997 by a panel comprising Mr Cooper, as Chairman, Ms Martin, the newly appointed Assistant Director and Mr Saleem, who was initially named as the Fourth Respondent to the application, but who was dismissed from the proceedings at the outset, at the request of the Appellant. He was an experienced Personnel Officer within the Leicester City Council. It appears that at the conclusion of the interviews the panel thought that the Appellant had the edge over Miss Perry. In any event she dropped out of the running for this post, because she was appointed to the Education Department post by a wholly separate procedure. So the position was that if the Appellant met the criteria for the Social Services Department job, he was entitled to be appointed under the agreed procedure.

Mr Saleem thought that the Appellant was suitable and had skills which would be transferable to the new position. The Industrial Tribunal found that Mr Cooper would have been content to appoint the Appellant, but he hesitated to do so that day because of the strong opposition which came from Ms Martin, who was to be the appointee's direct line manager. Ms Martin did not consider that the Appellant measured up to the criteria for the job. In particular, she considered that he lacked experience of industrial relations and hands-on management experience. It seemed not to be disputed before the Tribunal that Mr Singh did not have such experience. Ms Martin was not prepared to appoint the Appellant that day.

It was decided to consult Mr Albon, the Appellant's referee. He spoke highly of the Appellant, but he was unable to allay Ms Martin's concerns, as he said that he had no knowledge of the Appellant's management experience or his experience of industrial relations. Ms Martin decided that she did not wish to appoint the Appellant.

Faced with this conflict within the panel, Mr Cooper decided to consult the Director of Social Services. Ms Martin attended that meeting, but Mr Saleem did not. As a result of what was said at that meeting Mr Cooper decided to take the side of Ms Martin and he voted against the Appellant, who was therefore not appointed.

The selection process then moved to the next stage and the post was advertised. The Appellant applied. A different panel was appointed and interviewed five candidates: one white and four black or Asian, one of whom was a woman. The panel was unanimous in their agreement that the woman was not suitable. Of the four men, they did not put the Appellant in the highest position. However, they decided that they were unhappy about the whole process. They considered that the criteria were too vague and they declared the process null and void. They called for a more detailed job specification and new advertisements were placed. All the existing candidates were to be entitled to apply.

In due course this third stage of the procedure took place with an entirely new panel of interviewers. The Appellant did not apply. There was no evidence before the Tribunal about this third stage of the proceeding, as the Appellant had already made his complaint to the Industrial Tribunal. The proceedings before the Tribunal were progressing contemporaneously with the third stage of the selection procedure.

More than three weeks elapsed between the second and third day of the hearing. During that time the Appellant applied to the Chairman for permission to introduce evidence of the qualifications of the candidate who had just been appointed. In effect, he sought discovery of the particulars of that person to be provided by the First Respondent. The Chairman refused the application when the hearing reconvened on the third day. He did not give reasons for this decision in writing, but we have been told by Counsel today that he has been told by the Solicitor who represented Mr Singh before the Tribunal, that the Chairman declared that the material would be irrelevant.

The Tribunal completed the hearing and, directed itself to apply the cases of King v The Great Britain China Centre [1991] IRLR 513 and Zafar v Glasgow City Council [1998] IRLR 36. In respect of the first stage of the procedure, as it had been applied to the Appellant, they considered first whether there were any actual people with whom the Appellant's treatment could be compared. They decided that insofar as Jill Perry was capable of being a comparator, there was no difference in treatment between her and the Appellant. They then compared the Appellant's treatment with that of a hypothetical applicant. They were critical of a number of features of the first stage of the procedure and their conclusion in respect of this is set out at paragraph 16 of their Reasons. They said:

"16. ... The process carried out by the respondents failed to accord with the objective requirements and standards that the City Council would normally apply and we find that it amounts to a difference in treatment of the applicant as against the way those standards would normally be applied. The applicant by those normal standards would have satisfied the prior consideration procedure."

We interpose to say that the prior consideration procedure is that procedure by which internal candidates were to be considered before the post was advertised publicly.

Having concluded that there was a difference in treatment between what happened to the Appellant and that which would normally occur, the Tribunal went on to consider whether that difference in treatment or that departure from the normal objective standards had occurred on account of racial discrimination. They considered Ms Martin's explanation for her attitude towards the Appellant which it was plain had been strongly influential in the decision. They accepted her explanation which was that the Appellant did not have the necessary qualifications and experience for the post. They also accepted and considered that Mr Cooper would not have come down on Ms Martin's side in the argument had he thought that her attitude was in any way tainted by racial discrimination. They concluded therefore that the decision in respect of the first stage had not been affected by racial discrimination.

In respect of the second round of the procedure they concluded that there had been no difference in treatment between the Appellant and all those who had been interviewed. They dismissed the application.

In the grounds of appeal, which have been argued before us this morning by Mr Choudhury on the Appellant's behalf, it is submitted first that the Tribunal's decision was perverse. Second it is said that the refusal by the Chairman to permit discovery of the particulars of the successful candidate was plainly wrong and should be overturned. Dealing with that issue first, it seems to us that that decision, sparsely reported to us as it has been, was a matter for the Tribunal's discretion. The application was made part-way through the hearing. The Appellant was not a candidate. It appears to us that this was a decision the Tribunal were entitled to make in the exercise of their discretion. We do not consider there is any merit in that ground of appeal.

Turning to the main point, Mr Choudhury was driven to accept that the only basis upon which this appeal could be launched is perversity. He cannot point to any error of approach. It is plain that the Tribunal not only considered the relevant authorities but also went through the procedure required of them. They decided whether there had been a difference in treatment; where there was, they considered the explanations offered and accepted them as being genuine and unaffected by considerations of race. They were not prepared to draw an inference of racial discrimination.

Mr Choudhury submitted that bearing in mind the unsatisfactory features of the procedure in the first stage of the selection process, it was incumbent upon the Tribunal to examine objectively Ms Martin's reasons for her attitude so as to satisfy themselves that these defects in procedure were not a cloak for racial discrimination. As a general proposition we do not disagree with that, but in our view the Tribunal has carried out this process carefully after a long hearing. One does not expect to see in a Tribunal decision a minute analysis of every aspect of the evidence. The Tribunal have found a difference of treatment. They have examined and accepted Ms Martin's explanation for her attitude. It is almost impossible for a Tribunal in the third stage of their deliberations to do more than to say that they are or are not prepared to draw an inference of racial discrimination. So much must depend upon their impressions of the witnesses concerned; in particular in this case Ms Martin and Mr Cooper.

One of Mr Choudhury's complaints was that the Tribunal relied upon Mr Cooper to the extent that they did. We cannot accept that that is a matter for criticism. It was common ground at the hearing that Mr Cooper and Mr Singh held a strong mutual respect. The Tribunal also said, and this was not challenged, that Mr Cooper was a personnel officer very experienced in equal opportunities matters. It is not suggested before us that Mr Cooper's thought processes could have been tainted, either consciously or subconsciously, by racial discrimination. Mr Cooper had the unenviable task of deciding whose side he should come down upon. Before he reached that decision he had spent a good deal of time with Ms Martin. We think that the Tribunal believed that had Ms Martin displayed the smallest sign of racial discrimination during their long discussions, Mr Cooper would have detected it and would not have given her his eventual support. It seems to us that that was a perfectly proper matter for the Tribunal to take into account. Indeed, one finds in that a more detailed explanation for their refusal to draw the inference of discrimination than one often finds and than Tribunals are often able to give.

In our judgment this decision cannot be described as perverse. There was evidence upon which the Tribunal was entitled to reach its conclusion and it does not appear to us that the Tribunal have taken into account any matter which they ought not to have taken account of. In those circumstances this appeal must fail.