United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F EDWARD JNR (Barrister - non practising) Instructed by: CAIN & ABEL 239 Missenden Inville Road London SE17 2HX


 


JUDGE CLARK: This is an appeal by the Applicant before the Stratford Employment Tribunal, Mr Solesi, against that Tribunal's reserved decision, promulgated with extended reasons on 27 November 1998, dismissing his claims of direct and indirect race and sex discrimination.

The Appellant, who is of black African origin, commenced employment with the Respondent Council in its Engineering Department on 1 November 1993. On 1 June 1995 he was promoted to principal officer Grade 1. He presented a complaint to the Employment Tribunal dated 26 August 1997. The nature of that complaint is that he was discriminated against on grounds of his race and sex when a white female employee, Ms Gurney, was appointed to the post of Customer Services manager, a post for which he had applied, in the Engineering Department. He named as Respondents, in addition to the Council, the Assistant Director of Engineering, Derek Green and the Personnel Manager, Bevin Betton.

The Tribunal found that from February 1996 Ms Gurney was seconded to the Engineering Department to undertake customer care. In April 1996 her substantive post with the Council was abolished.

As part of the restructuring of the Engineering Department a job description was prepared for the post of Customer Services Manager. Ms Gurney made application for assimilation into that post. She was told by Mr Green that she was ineligible for assimilation, that is automatic slotting into the post.

In due course the post was advertised internally within the Engineering Department. There were two applicants, Ms Gurney and the Appellant.

Mr Green and Mr Betton concluded that Ms Gurney was a redeployee for the purposes of the Council's procedures, and as such was entitled to be interviewed before the Appellant was considered, he not being a redeployee. That principle was contained in paragraph 4.12 of the Council's job search procedure, which provided in relation to assessment/placement meetings:

"As this is different to an interview it is not appropriate to see redeployees and other candidates at the same stage of the recruitment process.

Purpose of the meeting ….

- Assess whether the redeployee is suitable for a trial period or immediate appointment."

Ms Gurney was seen on 9 June 1997 and offered the post, which she accepted. The Appellant was accordingly not considered for the post.

Dissatisfied with that outcome he raised a grievance against Messrs Green and Betton. A hearing took place before Mr Charles Small, Director of Arts and Leisure on 11 September 1997. Mr Small concluded that the grievance should not be upheld and prepared a report with a recommendation to that effect.

The Tribunal accepted that the Appellant was less favourably treated than Ms Gurney in relation to the post of Customer Services Manager. Her application was considered, his was not. There was a difference in sex and race between the Appellant and Ms Gurney. However, the Tribunal accepted the explanation put forward on behalf of the Respondents, namely that Messrs Green and Betton followed the Council's procedure in giving preferential treatment to Ms Gurney as a redeployee as opposed to the Appellant who was not.

Further, the Appellant was not less favourably treated than a hypothetical comparator, first in relation to the failure to stay Ms Gurney's appointment pending the outcome of the grievance procedure and secondly, in relation to the conduct of the grievance procedure itself. Accordingly the complaints of direct sex and race discrimination failed.

The complaints of indirect discrimination also failed for the reasons set out at paragraph 40 of the Tribunal's reasons.

Appeal

In this appeal Mr Edward who did not appear below, takes three points. The first is that the Tribunal reached a perverse conclusion in that on the facts and evidence before them, Ms Gurney was not a redeployee. For that proposition he relies in particular on the findings by the Tribunal at paragraph 17 and 21 of their reasons, that Ms Gurney did not register as a redeployee on the Council's central redeployment register. The reason for that was that she was not interested in voluntary severance. It seems that if after three months no post has been found for a redeployee on that register then they will be dismissed by reason of redundancy. This lady was not interested in voluntary severance.

We have heard his submissions at length in relation to this proposition but having considered the material that was before the Tribunal, we think that they were perfectly entitled to find as they did at paragraph 34 of their reasons, that Ms Gurney was a redeployee and further that Mr Green and Mr Betton followed the Council's procedures in giving preference to her application for the Customer Services Manager post. In these circumstances we reject the first ground of appeal.

Secondly it is said that the Tribunal misdirected themselves in failing to take into account earlier acts of discrimination which occurred more than three months before the Originating Application was presented. It is said that it was the Appellant's case that he was employed on career grade, which meant that he was supposed to move up the promotional ladder every year, but he did not do so whilst white colleagues did. In support of that submission Mr Edward has referred us to the witness statement of the Appellant and to Further and Better Particulars of his Originating Application. We have looked at the relevant passages and it is absolutely clear to us that no complaint was made of earlier discrimination against the Appellant, although the suggestion was made that in other cases the Council had displayed a discriminatory attitude, for example, by never upholding grievances of racial discrimination against white chief officers. We think that this submission simply fails on the way in which the case was put before the Tribunal.

Finally Mr Edward tells us that Mr Green in his statement to the Tribunal said that one of the reasons why he offered Ms Gurney a job was "because she was a single mother who was facing redundancy and she needed protection." Mr Edward submits that that is a clear admission of sex discrimination. Preference was given to Ms Gurney over the Appellant because she was a single mother and therefore by definition female. That is not how we understand the quotation. It may well be that Mr Green said in evidence that he regarded Ms Gurney as a deserving case to enjoy the protection afforded by the Council's redeployment procedure. We do not interpret it as meaning that she was given preference on the ground that she was a single mother. The short answer to this appeal, it seems to us, is that the Appellant lost on the facts. It was his case that Ms Gurney was not entitled to preference as a redeployee. It was the Respondents case that she was. The Tribunal accepted the Respondents case and declined to draw any inference of unlawful discrimination. We think they were entitled to take that course and in these circumstances we shall dismiss this appeal.