United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS MARY O'ROURKE (of Counsel) Instructed by: Ms A Anstey BMA Legal Department BMA House Tavistock Square London WC1H 9JP
For the Respondents	MR P B DEAN (of Counsel) The Lewington Partnership Midland House 132 Hagley Road Edgbaston Birmingham B16 9NN


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal by Ms Mishriki ["the applicant"] from a tribunal sitting at Birmingham whose unanimous decision was that she was not discriminated against by the respondents ["the employers"] on the grounds of sex and/or race.

Background Facts

The background facts in this matter can be dealt with briefly. From November 1989 until November 1993 the applicant worked at Sandwell District General Hospital as a locum consultant in the Ear Nose and Throat ["ENT"] department. She then transferred to the Dudley Road Hospital and continued working there in the position of a locum consultant in ENT until the date of the tribunal hearing in June 1995.

On 11 December 1993 a permanent post of consultant in the ENT department was advertised which would be initially within the West Midland Regional Health Authority and would then transfer to the City Road Hospital NHS Trust in April 1994.

An Appointments Advisory Committee ("AAC"), established in accordance with statutory Regulations, was convened to undertake the selection and interview of candidates. The AAC responsible for interviewing the applicant was made up of Mr Gupta, an ENT consultant and University of Birmingham representative, Mr Griffiths, an ENT consultant and representative of the Royal College of Surgeons, Mr Ellis who was Clinical Director in surgery, the Sandwell Trust, Mr Dekker, another ENT consultant, Mr Wilkinson who represented the Sandwell Health Authority, and Counsellor Betteridge, who was the Chairman.

The job description was drawn up by Mr Robin, an ENT consultant at the City Road Hospital. The applicant had previously informed him of her interest in the post of permanent ENT consultant and he arranged for meetings between himself and the applicant and the hospital personnel manager and later with the British Medical Authority's industrial relations officer in order that she become familiar with the system of appointments under the AAC. The tribunal recorded that Mr Robin was concerned about the applicant's suitability for the position given that the appointment was at a large district general hospital which was also a major teaching hospital which included post-graduate teaching.

On 23 February 1994 the AAC interviewed both the applicant and Mr Bevan. After the applicant's interview a heated discussion took place among the committee members. Mr Wilkinson argued that the health service was for the benefit of the patients and was not to be treated as a training scheme. He pressed for the appointment of the applicant. At the end of the discussion it was unanimously agreed that neither of the 2 applicants for the position were to be offered the appointment.

On 3 March 1994 Mr Wilkinson wrote to Professor Griffiths in his capacity as the Director of Public Health of the West Midlands Regional Health Authority, expressing his concerns about the AAC's attitude towards making appointments. In respect of the applicant he argued that it had been unfair not to offer the consultant's position because of her lack of teaching experience, as the position did not ask for a high degree of teaching ability and had not been specified in the job description.

The applicant brought a claim before the Industrial Tribunal claiming that she was not offered the position on the basis of her race and/or sex. It was claimed that the applicant had been led to believe that she would be appointed to the post of permanent consultant and that in refusing to offer her the position the AAC had failed to give sufficient reasons for their decision. It was contended that the employers, in particular the AAC panel, were motivated by sexually or racially prejudiced motives in refusing to offer her the appointment.

The tribunal hearing took place over 3 days in June 1995 and 2 days in September 1995. As the findings of the tribunal were attacked in the appeal, extracts from their written decision are set out in detail.

The tribunal correctly set out the law as follows:

"Section 1 of the Sex Discrimination Act 1975 provides:

(1) A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

(a) on the ground of her sex he treats her less favourably than he treats or would treat a man.

Section 6 of the Act provides:

(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

(c) by refusing or deliberately omitting to offer her that employment."

The tribunal stated that similar provisions applied to the Race Relations Act 1976 in sections 1 and 4(1)(a) and (c) and that they had considered the authorities of Noone v North West Thames RHA [1988] IRLR 195, King v Great Britain China Centre [1991] IRLR 513 and Baker v Cornwall County Council [1990] IRLR 194. They correctly identified that it was for the applicant to show that there had been less favourable treatment and that that treatment was due to her sex or race, and that in those circumstances it was for the employer to explain the difference in treatment and if the explanation was unsatisfactory or inadequate, the tribunal were entitled, but not obliged, to draw inferences of discrimination from that failure.

The tribunal started its findings of facts by saying:

"Having heard the various witnesses and having observed their demeanour in the witness box, we prefer wherever there was conflict, the evidence of the respondents and their witnesses to that of the applicant and hers."

The tribunal set out in detail its findings in relation to the evidence of the employers' witnesses. It found that the members of the AAC considered that the applicant had sufficient clinical and junior teaching experience, but she lacked the required experience for teaching at a high level training and research department. The tribunal found that Mr Ellis initially supported the applicant's appointment but felt that the interview had revealed shortcomings which meant that she would be incapable of handling the teaching element of the appointment. The applicant's strongest supporter was Mr Wilkinson, who pressed for the applicant's appointment as consultant surgeon after the interview, but who eventually agreed with the other AAC members that no appointment should be made. The tribunal considered that Mr Wilkinson's letter of 3 March 1994 was not a complaint that the interview had been decided on grounds of race or sex discrimination, as had been contended by the applicant, but was a letter expressing a general concern as to the attitude of the AAC.

The tribunal accepted that the applicant had an excellent reputation as a locum but rejected the contention that teaching was not part of the job description. It stated that "a high degree of teaching ability was asked for. The requirement was clearly made in the job description…the successful applicant would be required to teach post-graduates and higher surgical trainees."

The tribunal went on to find:

"Unfortunately for Ms Mishriki, since 1982, most of her experience had been gained working as a locum where she had been involved in the routine work. She had not carried out any research and had not been responsible for teaching; her experience in recent years had been limited to teaching under-graduates and training some junior doctors, including 2 locum registrars."

The tribunal then found that

"by refusing to offer her the substantive post of consultant, Ms Mishriki was subjected to less favourable treatment than the hypothetical man or person of a different race. We have therefore looked to the evidence given on behalf of the respondents in order to consider any explanation put forward for not offering her the post."

The tribunal were satisfied that the AAC was set up in accordance with the statutory Regulations and was properly constituted and was entitled to consider that no candidate should be appointed. In concluding that the AAC were entitled not to offer the applicant the position of permanent consultant the tribunal stated that:

"We are satisfied that neither Ms Mishriki nor Mr Bevan (for different reasons) were not offered the substantive post because they failed to meet the stringent requirements for such an appointment [sic]. In the case of Ms Mishriki, we are satisfied that as a locum she was excellent but, because she had spent so much time as a locum, her career had not progressed such that, when she came to apply for the substantive post at City Road Hospital, her lack of research and teaching skills ruled her out."

The tribunal also stated that although the applicant could have been offered the position on the basis that the teaching and research would be done by others, the circumstances of the position could alter, making such an arrangement untenable.

Parties' Submissions

Ms O'Rourke who appeared on behalf of the applicant accepted that on an initial reading of the tribunal's decision there would appear to be no grounds of appeal. However, it was her argument that the applicant's core complaints were not addressed in the tribunal decision; indeed neither the evidence of the applicant nor of her witness were mentioned in the decision. We were urged to look at the totality of the evidence before the tribunal, in particular the evidence not referred to in the decision, such as Mr Wilkinson's evidence of discrimination. If the totality of the evidence given in the case had been considered, a reasonable tribunal, properly directing itself, would not have come to the same conclusion.

The Tribunal should have asked how important was the requirement that an applicant should have experience of teaching, training and research at a senior level. She accepted that this was not one of Ms Mishriki's strengths, but she was shortlisted in full knowledge of this relative weakness. The applicant had been employed as a locum for some 22 months and the Tribunal should have asked itself how her rejection squared with her successfully carrying out the responsibilities of the post. In any event, it appeared that one of the consultants had been appointed in the last 6 months without research/training experience. In their decision the Tribunal never referred to the notes of the interviews and the comments made, yet this was a crucial document. What was it, she asked, that the panel learnt about her at the interview that made her unappointable? It was surprising that the Tribunal did not refer to the notes of the interview and did not discuss the evidence of Mr Wilkinson or discuss its significance nor address directly what the applicant was complaining about. Further, there were shortcomings in the appointment procedure, such as a lack of assessment sheets to be completed by each member in relation to each candidate; there was no list of criteria against which marks could be made so that candidates could be fairly compared one against another. The risk of unconscious discrimination was there, yet no adequate steps had been taken to reduce the risk of stereotyping, by ensuring that each candidate was looked at objectively. Further, the Tribunal should have asked themselves why women are under-represented in senior surgical posts and why the applicant had been a locum for so long.

In effect, she contended, all but one of the AAC panel members 'clubbed together' to prevent the applicant's promotion when it became apparent that there was no other way of stopping her appointment.

It was submitted that the fallacy of the employers' explanation could be shown by reference to the position itself, as teaching experience was not specified as being a major part of the job. In any event, although admittedly limited in scope, the applicant's teaching and research experience was set out in detail in her CV so the AAC knew her level of experience at the time she was shortlisted for interview, so had that really been a barrier to her promotion she would have been excluded before the interview at the shortlisting period. Furthermore, by shortlisting the applicant, with full knowledge of her CV detailing her experience over a 4 year period, and then dismissing the application on grounds that were known before the interview, it was appropriate for the tribunal to infer that there was unlawful discrimination. At the very least, this part of her case deserved to be considered by the tribunal, yet it was not expressly referred to.

It was contended that Mr Dekker, who had been appointed six months before the applicant, also suffered from a similar lack of teaching and research credentials and had still been appointed as a permanent consultant. The tribunal were entitled to consider Mr Dekker as a comparator with the applicant in order to determine whether there had been less favourable treatment, and the failure to do so again pointed to perversity in the tribunal's decision.

It was submitted on the applicant's behalf that the tribunal failed to give proper consideration to the evidence of Mr Wilkinson who, although a respondent to the action, gave evidence on behalf of the applicant. In particular the tribunal failed to include in its decision his evidence that the explanation given about teaching experience was "built up when there was no other blocking mechanism…" to prevent the application succeeding. The tribunal also failed to consider properly Mr Wilkinson's letter of complaint and the allegation that the issue of teaching experience only became apparent in the post-interview meeting when Mr Bevan's application had been dismissed.

Ms O'Rourke drew an analogy between the present case and that of Dr Noone, who successfully complained that she had been discriminated against on the grounds of her race by a Regional Health Authority. The Court of Appeal's decision in this case is to be found at [1988] ICR page 813. At 819H the Court referred to the contemporaneous notes of the discussion between the members of the AAC after each candidate had been seen. The Court described these Notes as "highly important material as the industrial tribunal thought." And at page 821 the Court said this:

"In the course of its reasons the industrial tribunal also commented upon the basis on which the AAC reached its conclusions. There was no evidence before it about what criteria were adopted, either when the candidates were short-listed or when the appointment was finally made. The tribunal expressed the view that it had gained the impression, amply supported by the evidence, that the decisions were at each stage made by the members of the committee on a subjective basis and in a fashion which amounted almost to arbitrariness."

And later at E:

"The appeal tribunal ... was also critical of the health authority's appointment procedures. It said that it was unanimously of the opinion that the system operated by national health authorities might easily result in the exercise of personal bias or prejudice."

In response Mr Dean, who represented the employers, submitted that the applicant was attempting to retry questions of fact which had been properly decided by the tribunal, without any evidence that the tribunal had erred in law or made findings which were perverse.

The tribunal's finding that no consultant had promised the applicant the position of permanent consultant, was an example of a reasonable finding on the evidence in favour of the employers which the applicant could not now seek to overturn. The tribunal were presented with evidence of Mr Dekker who said that although he attempted to allay the applicant's fears before the interview he did not tell her she would be appointed. Mr Ellis gave evidence to the same effect; that he had not promised the applicant the permanent consultancy position.

The Decision

We accept the employers' essential submission that the question of discrimination is a matter of fact for the fact finding tribunal. As was pointed out in Noone, at page 824E

"Perhaps more than in most cases the assessment by the industrial tribunal of the thinking of the person or persons against whom the allegation of racial discrimination is made is most important."

However, in appeals such as these, it would, we think, be wrong not to pay great attention to the various compelling points addressed to us on the appellant's behalf. In our judgment the Tribunal fell into error in a number of respects, although for reasons we shall develop, we do not consider these errors warrant us interfering with the conclusion that was reached, although we arrive at this conclusion somewhat reluctantly.

In the first place, the tribunal should have outlined the way the case was put for the applicant and dealt with each of the more significant points; for example, the lack of criteria and the risk of subjective assessments and the evidence of Mr Wilkinson [In our experience it is unique for an applicant to be able to rely upon the evidence of one of those who sat on the appointment's panel, and his evidence needed to be dealt with with great care].

Second, it seems to us that the tribunal's finding that the applicant had been treated less favourably "than the hypothetical man or person of a different race" required elaboration. Presumably, the word "hypothetical" means that they were not considering an actual comparator but were asking the question whether the applicant was treated less favourably than she would have been had she been a man or had she been of Caucasian ethnic origin. If they had meant what they said then it is difficult to understand how the applicant failed. What the tribunal must have been saying was that the applicant was subjected to a detriment [her non-appointment] and that she was a woman and a member of the visible ethnic minorities, and the question at issue was whether the reason why she had not been appointed was because of her gender or race. And that question would be answered by considering what would have happened had she been a white man [the hypothetical comparator]. The tribunal's conclusion on that issue was that she was not treated differently from how she would have been treated had she been a white man, and therefore was not treated less favourably on the grounds of gender or race. It seems to us important that the tribunal should identify the comparator, whether actual or hypothetical, in every discrimination case where there is an issue whether the applicant was less favourably treated. Sensibly, it was not argued in this case that the conclusion as expressed by the Tribunal was inconsistent with their final decision, because it is clear from what followed that the Tribunal looked to see if race and sex accounted for her failure to be appointed.

Thirdly, as the EAT has said before, it is unsatisfactory that a tribunal should simply say that wherever there was a conflict, A's evidence was to be preferred to B's. The reason why it is unsatisfactory is that it gives no reasons for the conclusion and the statement itself is suspect, and may be thought to be something of a 'mantra' to make the chances of an appeal less likely. There is always some reason why on a particular issue A's evidence is to be preferred to B's: for example, one party's evidence was inherently more likely or more consistent with contemporary documents. Whilst there may be cases where A's evidence is to be preferred on every factual dispute, such are likely to be relatively rare. Common experience suggests that on some aspects the evidence of a particular witness is to be preferred to another; but on other aspects rejected. Expressions of wholesale rejection of one party's case leads to great resentment and tends to lead to appeals rather than deter them.

This was obviously a difficult case to judge: there were factors either way, and we suspect that many other tribunals would have taken a different view of the facts, and followed more closely the decision in Noone.

In the end we have been persuaded that the criticisms of the tribunal's decision are essentially criticisms of their findings of fact. They stated the law correctly; as Ms O'Rourke accepted, the decision looks credible at first glance. Despite the cogent points made, we do not consider that we can interfere. In our opinion there was no doubt about the applicant's abilities as a locum; the tribunal found that the witnesses for the employers agreed that she was very competent. However, the tribunal found that as a locum the applicant was not exposed to the level of teaching and research required to be a permanent consultant. Given the arguments of Counsel before us we feel that that was a finding which we are unable to upset.

The applicant had argued that the AAC's reliance on her teaching experience as a reason for not appointing her was evidence of the unfairness of the procedure, as teaching had not been part of the advertised requirements for the position. In support of this the applicant referred to the letter written by Mr Wilkinson after the interview in which he stated "a high degree of teaching ability was not asked for or specified in the job description."

In reply it was maintained that the job description contained specific reference to teaching both under-graduates and post-graduates and that the appointee would be expected to be appointed as an Honorary Senior Lecturer. The description went on to state that the hospital had a long tradition of postgraduate education. The advertisements included in the tribunal's bundle also included specific reference to teaching undergraduates and postgraduates. As Mr Dean pointed out, the importance of teaching experience had been raised with the applicant prior to the interview by Mr Robin, and it was somewhat disingenuous of her to deny its importance after the interview.

For these reasons we do not accept the applicant's argument that the importance placed on teaching experience by the AAC was a "blocking" manoeuvre to exclude her. The witness and documentary evidence before the tribunal indicated that a high level of teaching was a genuine requirement for the position. We would also reject the applicant's argument that because her level of teaching experience was known before the interview, using it as a reason for not offering her the position was indicative of discrimination. An interview is an opportunity for the examiners to probe more deeply into the details of an applicant's CV. A CV by its very nature will only ever give an indication of someone's experience, which, on deeper analysis in interview may be revealed to be inadequate or alternatively more extensive than initially revealed. The AAC were entitled to shortlist the applicant knowing her deficiencies and then, after further clarification in interview, decide not to appoint her on the basis of those known shortcomings. Mr Dekker's evidence was that he thought the point in her attending the interview was to investigate the level of her experience and as she did not perform well in interview she was not considered appropriate for the position. We do not accept that the tribunal erred in its finding that the applicant was genuinely excluded from appointment on the basis of her teaching experience although that information was known prior to the interview.

We also consider that the fact that the applicant was shortlisted did not mean that, provided no one else was considered to be better than her, she had to be offered the job. The fact that Mr Bevan was not offered the appointment did not automatically mean that it had to be offered to the applicant. The right not to appoint was an option open to the AAC.

In Baker v Cornwall County Council [1990] ICR 452 the Court of Appeal were presented with an applicant, who in similar circumstances to the present case, was dissatisfied with an interview and felt she had been discriminated against in order to maintain the existing pattern of employment. The Court of Appeal held that although an Industrial Tribunal should be prepared to draw discriminatory inferences where there was no innocent explanation for an employer's decision, where a tribunal was satisfied with the explanation given by the employer and it could not be said that there was no evidence to justify their findings, the tribunal's decision was not to be interfered with on appeal. On the basis of the evidence before the tribunal we were satisfied that there was a satisfactory explanation justifying the employer's decision not to appoint the applicant. Accordingly we do not find that the tribunal erred in dismissing this part of the applicant's claim.

As for the evidence of Mr Wilkinson, Mr Dean argued that the tribunal approached his evidence with the degree of care required when someone named as a respondent gives evidence on behalf of the applicant. The tribunal saw him give his evidence and were entitled to be unimpressed by it. In particular, the allegation which Mr Wilkinson made that the position did not in any event require specific teaching requirements was undermined by the job description itself and by Mr Robin's efforts to tailor the applicant's application to include more teaching and research information. Mr Dean submitted that Mr Wilkinson's letter contained no direct allegation of discrimination or prejudice and had there really been an agreement to exclude the applicant that would have been an extraordinary omission.

We have considered the letter which Mr Wilkinson wrote and conclude that a general complaint was made as to the attitude of the AAC with regard to equal opportunities. He specifically stated that he had knowledge of equal opportunities and felt that the AAC procedure had a "laissez faire" attitude with regard to that issue. But there was no evidence in the letter nor in his evidence given at the tribunal to support the assertion that there had been a conspiracy amongst members of the AAC to exclude the applicant. Mr Wilkinson conceded in evidence that the clerk did not raise the issue of discrimination in the minutes of the meeting and he accepted that he voted with the other members against the applicant. His evidence was of his impression of how the post-interview meeting was held. He considered that the AAC system was obsolete and without any female committee members the applicant's gender worked against her application as he felt there was prejudice against appointing an "outsider".

It is obvious that Mr Wilkinson approached this matter from a different point of view from the other members of the AAC. We note the evidence of Sheila Iles that she considered him to be "angry" and "rude" because "he was not getting his own way" in the post-interview discussion. Whilst Mr Wilkinson may have held the opinion that sex discrimination was at work in the rejection of the applicant, his opinion was not determinative of the issue. The tribunal had to balance his evidence against that given by the other AAC members in coming to a conclusion on the matter.

The evidence of Mr Ellis, who had had a "fair amount of contact with the applicant", was important, as he initially supported her appointment. But in the light of answers to questions posed by other AAC members, he decided that the applicant did not have the teaching experience required for the position and did not vote against the views of the ENT consultants on the AAC. He gave evidence that the ENT surgeons were not happy with her experience and had doubts about her ability to teach senior registrars. He confirmed that he would not over-rule their view on ENT matters and stated that her rejection was not for reasons of "snobbishness".

Mr Griffiths stated in evidence that he initially thought the applicant was appointable and acceptable to the Royal College of Surgeons on the basis of what he knew about her. During the course of the interview, however, it became clear to him that the position placed "great responsibility [on] teaching". He went on to say that he had had a lot of training in equal opportunities and the tribunal notes indicated that Mr Griffiths' evidence was that he "Made lot of allowance for fact that she woman" [sic]. At the conclusion of his evidence under cross-examination he stated that "In reaching my decision, I was only influenced by my own judgment."

The evidence before the tribunal indicated that a least two of the AAC members had initially supported the applicant's appointment. Along with the evidence of the other AAC members who gave evidence that they considered that the applicant did not meet the requirements for teaching, the tribunal were entitled to balance that against the evidence of Mr Wilkinson, when considering the allegation of an agreement to exclude the applicant.

The tribunal's finding that the AAC's decision not to appoint the applicant was a decision based on her experience and not one based on her gender was one to which the tribunal were entitled to come on the basis of the evidence before them. Whilst we do not generally approve of a tribunal decision which has failed to include the arguments proposed by one of the parties to a claim, a tribunal cannot be taken to have ignored the evidence before them. As we have reiterated in the past, we are not in a position to perform a forensic examination of a tribunal's decision. The tribunal saw all the evidence in the matter and heard all the witnesses. Clear findings were made in favour of the employers' witnesses, whose evidence is set out in some detail. We do not consider that there are grounds to overturn those findings.

The appeal is dismissed.