United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: This is an Appeal by Mr Oko-Jaja, the Applicant before the Bristol Employment Tribunal sitting on 8^th February 1999, against that Tribunal's decision promulgated with extended reasons on 3rd March dismissing his complaint of unlawful race discrimination brought against the Second Respondent charity, WECIL Ltd and the First Respondent, its director, Miss Pickersgill.

1. WECIL is a small charity formed for the benefit of the disabled and staffed entirely by disabled people. They embarked on a recruitment exercise for 7 new members of staff. The press advertisement had a footnote:

"WECIL particularly encourages applications from under under-represented groups eg black disabled people; disabled lesbians and gay men."

The posts were, permissibly, limited to disabled applicants.

2. The Appellant who is black and physically disabled, applied for a job. He was one of 4 short-listed applicants, each of whom was interviewed by an all-white panel consisting of Mr Shipman, a trustee of the charity, Miss Pickersgill and her assistant, Miss Tyler. The panel followed what the Employment Tribunal described as a model procedure, asking each candidate the same questions, having prepared a Person Specification and Job Description. Each candidate had advance notice of the questions.
3. At the end of the interviews, each candidate was scored. Candidate No 2 had 97 points; the Appellant received 93½ points; Candidate 1 had 85 points and Candidate 4 had 52 points.
4. Under that procedure the Respondent would normally have engaged Candidate 2 but instead, Miss Tyler wrote to the top 3 scoring candidates, including the Appellant, in these terms:

"Further to your interview yesterday, the panel is not yet able to make a decision as three candidates were of equal calibre. We will inform you as soon as we have further discussions and, in the meantime, we are taking up your references."

5. In evidence Miss Tyler accepted that the letter was badly drafted. She had intended to convey that the 3 candidates were of similar, not equal calibre. The Appellant supplied excellent references. On 15^th October 1998 he received a letter in these terms:

"I must apologise for the delay in making the decision, but, on the day, the competition was very close, and the panel was unable to reach a decision. However, in the light of further discussions, we have decided that we need to offer the post to another candidate who has more experience in the area of facilitating groups of disabled people and people with learning difficulties."

A white male candidate was selected for the post, that is, Candidate number 2.

6. On 16^th November 1998 the Appellant presented his complaint to the Employment Tribunal. He contended that he was the best qualified and most experienced applicant for the post, that of PAP Trainer. In being rejected for the post he had suffered less favourable treatment on racial grounds.
7. The Employment Tribunal rejected the complaint directed at Miss Pickersgill personally and looked at the selection process. Applying the guidance in King -v- Great Britain China Centre [1991] IRLR 513, they accepted that there had been less favourable treatment of the Appellant than the successful candidate and that there was a difference in race between that. That candidate was white. They therefore looked to the Respondent for an explanation.
8. On the face of it the Applicant scored less well that the successful candidate in a properly conducted selection procedure. The Tribunal accepted that Miss Tyler's letter to candidates was badly phrased and that in truth, the successful candidate was better suited for the particular requirements of the training job. They rejected the Appellant's criticism of the ethnic makeup of the panel, or its lack of independence. They further rejected his suggestion that, on the strength of a conversation in the lift with him, Miss Pickersgill demonstrated any animus against persons of West African origin.
9. Accordingly, the Employment Tribunal accepted the Respondent's explanation for the Appellant's non-selection in favour of a white candidate. The panel, they found, selected the best candidate as they saw it.
10. We pause to observe that the Employment Tribunal's approach to the matter was entirely consistent with the guidance given by the Court of Appeal in Martins -v- Marks & Spencer Plc [1998] IRLR 326. In these circumstances, they dismissed the complaint. A subsequent application by the Appellant for a review was summarily dismissed by the Chairman, Mr Sara.
11. In this Appeal, Mr Oko-Jaja contends that the interview arrangements did not meet the requirements at law under Section 4(1)(a) of the Race Relations Act 1976. He submits that the statistics produced by the Respondent as to the ethnic make up of their staff were incorrect and designed to mislead the Employment Tribunal. Bristol has a large ethnic minority population but this charity had no black staff at the relevant time. None of the job vacancies went to black candidates. The Employment Tribunal ought to have drawn an inference of discrimination in this case.
12. Further, no mention is made of alterations to the scores of candidates, a point raised by the Appellant in evidence, in the Employment Tribunal's written reasons. We have considered these matters but we have concluded that this Appeal raises issues of fact, not law. We can see no error in the Employment Tribunal's approach. It is not required to mention every piece of evidence and every cross-examination point in its reasons. There are, in our judgment, no grounds in law for interfering with this decision. Accordingly, the Appeal is dismissed.