United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S S SOOR (of Counsel) MESSRS KINGSFORD STACEY BLACKWELL Solicitors 14 Old Square Lincoln's Inn London WC2A 3UB


 


JUDGE PETER CLARK: This is an appeal by the employer, Stonham Housing Association, against a decision of the London (South) Employment Tribunal sitting over four days, and finally for a day in Chambers, which upheld the Applicant employee, Mrs Donovan's complaints of unlawful racial discrimination and unfair dismissal. That reserved decision with Extended Reasons was promulgated on 1 August 1998.

The background is that the Applicant, who is black, was employed by the Association as Head of Development between 11 July 1995 and 30 June 1997. In that post, which had the same seniority and pay as that of Regional Manager, the Applicant was responsible for management of the Associations' national development programme and had responsibility for substantial revenue and capital budgets. She supervised a total of 6 managers and 39 administrative staff.

Between September 1996 and January 1997 she covered parts of the vacant Northern Regional Managers post on a two day per week basis whilst still performing her own role. She worked well in that temporary capacity, the Associations' Chief Executive, Mr Clive Turner, acknowledged.

In 1996, the Associations' principal funder, the Housing Corporation indicated that it would be withdrawing funding for the Associations' work. As a result the Applicant and the staff in her department were at risk of redundancy.

The Association operated a job protection policy including a redeployment procedure for staff at risk of redundancy. That policy included provision for a trial period of 3 months for redeployed staff, during which time the redeployee was to work under supervision and be provided with appropriate training where necessary.

The Applicant expressed interest in the post of Regional manager, Hampshire, Isle of Wight (RMH). She did not apply for two junior posts offered to her, those of New Business Manager and Information Manager.

The Hampshire Region was difficult to maintain and manage. It was wholly reliant on one care purchaser, the local authority's Social Services Department. There had been a funding crisis which underscored the importance of retaining the confidence of that single customer. There were also internal difficulties between staff at senior management level. The Tribunal found that Mr Turner judged the Applicant to be unpopular with her own staff and did not encourage her application for RMH job.

When she first received a list of vacancies she noticed that that job was not on the list. She wrote to the Head of Personnel pointing out the omission. She did not receive a reply but when she received the next up-dated list in October 1996 it showed that the RMH post was filled by a secondee and was due to fall vacant in March 1997.

In February 1997 she saw that the RMH post was being advertised externally. She wrote to personnel expressing concern that she had not been considered for the post. By a reply dated 19 February she was provided with the RMH job description and person specification and was offered an interview to be held on 25 February.

There were, the Tribunal found, internal inconsistencies within the Associations' evidence as to who caused the RMH post to be advertised without first notifying the Applicant. The Tribunal concluded that Mr Turner was at any rate responsible for that decision.

The Applicant understood, incorrectly as it turns out, that she was being offered a ring-fenced interview, that is an interview without competition under the job protection policy. In fact, Mr Turner regarded the RMH job and the Applicant's post as dissimilar and had offered her what is described as a concessionary interview.

The interview took place on 4 March 1997. It is common ground that the Applicant did not perform well at the interview. Based solely on that performance the interview panel decided that she did not meet the essential requirements for the RMH job. The Tribunal took the view on the evidence which it heard that the jobs were sufficiently similar in seniority and management responsibilities to justify ring-fencing under the job protection policy. That would have resulted in her experience, both in her primary post and carrying out the functions of the Northern Regional Manager's post being taken into account, judging by the experience of her comparator, Mr Alan Dodsley. She would also have had the opportunity of training and a trial period.

Having failed to be selected for the RMH post, the Applicant was dismissed on 30 June 1997. That post was eventually filled by an external candidate.

The Applicant put forward two potential comparators for the purpose of showing that she had received less favourable treatment for the purposes of s.1(1)(a) of the Race Relations Act 1976. The Tribunal accepted that a comparison could properly be made with Mr Dodsley, the Development Manager, who himself applied for the job of new business manager. He was given a ring-fenced interview for that job on the basis that it was similar in terms of job content and salary to his existing post.

There was a conflict of evidence between those on the panel which interviewed Mr Dodsley as to whether he met the essential criteria for that post. The Tribunal resolved that conflict by finding that he did not meet the criteria in full. He was nevertheless appointed to the new business manager post.

In the circumstances, the Tribunal concluded that the Applicant was treated less favourably than Mr Dodsley. The was a difference in race, he was white. They looked at the explanation put forward by the Association for not redeploying the Applicant to the post of RMH and found it to be unsatisfactory. In particular they considered the evidence that it was a 'key post' and concluded that what was being said was that the Applicant would not have fitted into the establishment at Hampshire. Overall, they concluded that she was treated less favourably then Mr Dodsley on the grounds that she was black. Finally, they considered that the Associations' failure to follow a fair procedure when considering the Applicant for the post of RMH rendered her dismissal unfair.

In this appeal, which is directed solely to the finding of unlawful racial discrimination, Mr Soor has attacked the Tribunal's reasons under three heads; the validity of Mr Dodsley as a comparator; the findings as to the difference in treatment between the Applicant and Mr Dodsley, and the finding as to that difference in treatment being on racial grounds.

At the end of that analysis of the findings, Mr Soor put his appeal on the basis first of perversity and secondly on the ground that the Tribunal had failed to deal with the Association's submissions below in reaching logical conclusions supporting their ultimate finding.

We remind ourselves of the considerable hurdle faced by Appellants alleging perversity. See for example, Piggottt Bros v Jackson [1992] ICR 85. That it is not for an Appellant to go through an Employment Tribunal's reasons with a fine toothcomb, and finally, that the question on any further appeal the question is not whether this Appeal Tribunal is right, but whether the Employment Tribunal was wrong.

In these circumstances, we do not propose to set out every submission made by Mr Soor. Like the Employment Tribunal we have considered them carefully. In short we are satisfied that the Tribunal was entitled to find that Mr Dodsley was a proper comparator; that there was a difference in treatment. As Mr Soor accepts, Mr Dodsley was given the job applied for by him despite his failing to meet the essential criteria in full and after taking into account his employment background with the Association; latitude not granted to the Applicant, and finally to conclude that that difference in treatment was on racial grounds.

It was and is the Associations' case that the RMH job was one on which they could not take a risk. The Tribunal accepted the submission made on behalf of the Applicant that the perception was that she would not fit in to that job because she was black. That was a conclusion open to the Tribunal of fact who saw and heard the witnesses over four days.

In the result, we can see no grounds in law, for interfering with this Tribunal's decision and accordingly the appeal must be dismissed.