United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London South on 25 January 1999. It comes before us by way of preliminary hearing to determine if there is a point of law to justify the presentation of this appeal in full before the Employment Appeal Tribunal. The Employment Tribunal dismissed the complaints of unlawful discrimination on the grounds of sex and race. The Appellant's application arose out of his application for the post of administrative assistant with the Respondents for which he was interviewed on 1 October 1998.

1. The interview process included two assessments. It appears that there was a two stage process. The Employment Tribunal found that there was, in effect, a filter on the assessment, which required the candidate to attain consistent scores of 1,2 or 3 in order to be considered for the post. On the day of the interview there were two candidates; the Appellant and an Asian woman. The Respondents contend that the Appellant did not attain the necessary marks to be considered alongside any other candidate who had attained those marks in what would then have become a competitive situation.
2. The Appellant applied at the Tribunal for discovery of the scores of the other candidates, but in the exercise of their broad discretion, the Employment Tribunal held that it was too late to embark on that sort of enquiry on the morning of the hearing itself, and there is no error of law which would entitle us to intervene. Furthermore, it appears that before the hearing, the Appellant had sought details of other applicants for the post and their various personal qualities and qualifications and again in exercise of their discretion, the Tribunal did not make any order for discovery.
3. In due course, because of his failure to reach the necessary level on assessments, as the Respondents contended, the Appellant was refused the appointment. The Appellant says that he feels, and we have no doubt whatsoever, it is a genuine and deeply held belief, that he was discriminated against on the ground of race and, vis-à-vis the applicant who obtained the post, on the ground of sex. He points out that he has worked for the Inland Revenue in a similar post and therefore would have the necessary ability, he believes, to undertake the sort of work for which the Respondents were advertising.
4. He has made at various times, a number of complaints, and it is helpful perhaps to review them briefly. In his Originating Application, he contended, having set out the sequence of events for his attendance at interview, that the reason he believed that he had been discriminated against, was that he had been given the impression that he met the criteria and that there were so many vacancies that he would be offered one. In their decision, his position was specifically considered in paragraph 19 by the Employment Tribunal where they refer to the fact that he felt misled because of the length of the interview which he thought meant he was doing well, and that he had no difficulty in answering the questions. It is clear therefore that the Originating Application was considered and facts found by the Employment Tribunal, which they were entitled to find, upon it.
5. In his initial hand written grounds of appeal, he raises some other matters. He complains that he was not dealt with on a 'like-for-like' basis. Secondly, he complains that his name was spelt incorrectly when initially invited to interview, and yet again when the decision containing the refusal of a post was sent to him and that was after his typed documents had been provided. Not only that, the score sheets of the assessment had three different spellings of his name. He contends that that is because it is an ethnic name, unusual to those who were assessing him.
6. He then refers in his grounds of appeal to the sum of statistics. He says that at his level, administrative assistant, the Respondents employ a majority (three-quarters of them) of women, and throughout the Respondent's organisation, only 4% are known to be of ethnic minority origin and of those 4%, 80% of them are at administrative assistant level. It may be arguable that on those figures a disproportionate number of members of the ethnic minorities are at the lower level grades within the Respondent's organisation. But that is of no relevance to this Appellant who is concerned with the position at that level. Furthermore, the fact that 4% are known to be of ethnic minority origin may carry with it, without further examination, a hidden number in excess of that, who are not so disclosed, although that is a rare feature of these sorts of statistics. Furthermore, there is no reference in the grounds of appeal to the proportion of employees at administrative assistant level who are of ethnic minority origin. There is only a comparison between those levels and the rest of the Respondent's organisation.
7. The Appellant contends that this information was provided to the Employment Tribunal. In their decision, the Tribunal have referred in the way I have described to what would lead to a statistical analysis, if the information had been available, but they make no reference to those statistics. However, because they do not provide evidence, it seems to us, which could lead a Tribunal to draw any inference as to disparity of figures at the administrative assistant level, we cannot see that even if that evidence had been considered and accepted by the Employment Tribunal, it could have lead to any sort of inference from statistics of discrimination.
8. So far as the incorrect spelling of the name is concerned, that is something that was referred to in the decision of the Employment Tribunal, specifically in their findings of fact; not only the incorrect spelling, but as they expressed it, he did not accept that the error could have been made by the way it had been written on his application form. Furthermore, the way in which the assessments were marked by two men is a matter of criticism because the Appellant says that once he had been marked, the two people conducting the assessment, as it were, put their heads together and one of his marks was marked down to fit with another. Again he contends that was unfair and discriminatory and evidence from which an inference could be drawn.
9. The marking down was contended by the Respondents to have been done correctly, and was referred to in the decision of the Employment Tribunal at paragraph 18. In those circumstances we are driven to the conclusion that the matters raised were all considered as matters of fact by the Employment Tribunal.
10. Finally there was the question of discrimination on the ground of sex against the other person applying for the post, but the Employment Tribunal accepted the appropriateness of the filter marking system to which I have referred. So it seems to us that the point of comparison had not been reached and the non-disclosure of the marking of the other candidates was a matter that was explored by the Tribunal.
11. A person such as this Applicant, who is of an ethnic minority, is bound from time to time, during his life, sadly, no doubt to have experienced real discrimination. When an experience such as this appears to him to have flaws, he is bound to feel, as he does genuinely in this case, that he was discriminated against. But our task is a very narrow one. Our task is to consider whether the Employment Tribunal, in the way in which they approached this case, can be seen or argued to be seen to have committed an error of law in the way in which they approached this case. It is not open to us to re-open the case and start it again, or simply to reconsider the facts and come to our own opinion upon them.
12. We have considered very carefully all the matters which the Appellant has drawn to our attention, but we are driven to the conclusion that none of the matters, which are matters of genuinely felt grievance on the part of the Appellant, disclose an arguable point of law so far as the Employment Tribunal decision is concerned. We conclude by saying that in considering that decision, we have borne in mind, that there is a place in discrimination for the use of statistics when available and when properly interpreted in accordance with Perera v Civil Service Commission (1982) ICR 350, helpfully drawn to our attention by the Appellant. However, bearing all those matters into account, and there being no point of law which could be argued before the Employment Appeal Tribunal, we are driven to dismiss the appeal at this stage.