United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CROXFORD (OF COUNSEL) INSTRUCTED BY: THE LEGAL DEPARTMENT BRITISH GAS SERVICES LTD 30 THE CAUSEWAY STAINES MIDDLESEX TW18 3BY


 


JUDGE WILSON:-

1. We have been concerned today with the preliminary hearing of the proposed appeal by the Respondent company to the Originating Application by Mr Clarke. He complained that he was unfairly not selected for interview for a job because of racial considerations. The job for which he was applying would have been a promotion and the person responsible for preparing the shortlist, Mr Burkey, was personally known to the Applicant. At a stage before the shortlisting was completed, Mr Burkey had told him that he met the criteria for the job even though it was a higher grade than the one which he was doing. When the shortlist came to be prepared others fulfilled those criteria to a much greater degree than Mr Clarke had done and that was why he had not been shortlisted. But subsequently, Mr Burke told the Applicant that candidates in Grade II had in fact been shortlisted.
2. The company's defence is set out in paragraph 14 on page 21 of the bundle. It is in summary that the Applicant was not equally as, or more experienced than, those who were shortlisted. The paragraph sets out precise qualifications and goes on in paragraph 15 to admit that the Applicant scored higher than many of the others who are not selected but of course, they were not selected either.
3. Paragraphs 9 and 10 of the Extended Reasons say that:-

"9. The Tribunal has to make a finding of fact on the balance of probabilities as to whether or not Mr Burke knew the name, and the full name, of the Applicant and, therefore, whether or not when he came to consider the Applicant's application form, he knew precisely the identity of the applicant. Mr Burkey had 23 application forms to consider including that of the Applicant and he spent 5 or 6 hours one evening, a whole day, working at home and a weekend.

"10. Mr Haslam, on behalf of the Respondent, in his closing address to the Tribunal said "You may think Mr Burkey's evidence difficult to accept in saying he did not know the Applicant's name". The Tribunal, indeed, does find it difficult to accept and does not accept it. The Tribunal find it inconceivable that Mr Burkey did not know the full name of the Applicant and further, and bearing in mind the great deal of time he spent perusing the application forms, the Tribunal finds that he must have seen the Applicant's name which appeared twice in the text and that he knew well that this was the application form of the Applicant when he was completing his marking process, not just because of the appearance of the Applicant's name but his job title appears, his manager's name appears as does his department and the office address."

4. The Extended Reasons go on in paragraph 13 to find that Mr Burkey's method of marking was somewhat chaotic and certainly highly suspect and inconsistent as between all candidates. However, the Tribunal went on in paragraph 17 to direct itself concerning the law and found in particular that Mr Burkey had failed to satisfy them that there was an innocent explanation for the Applicant not being granted an interview. They then went on to say in paragraph 18:-

"18. The Tribunal is left with no alternative but to infer that the difference in treatment was on racial grounds and we are wholly mindful that the inferences we draw do not automatically lead to race discrimination as confirmed in the Zafar case."

Thereafter, the Extended Reasons peter out to an unsatisfactory conclusion.

5. Mr Croxford on behalf of the proposed Appellant has submitted a skeleton argument and relies on the case of Marks & Spencer v Martins [1998] IRLR 326 in the Court of Appeal. He has amplified his grounds of appeal in the skeleton argument orally in the submissions before us now and relies in particular on certain of the provisions in the Marks & Spencer case.
6. We have come to the conclusion, having considered the judgment of the Employment Tribunal and the way in which it is set out, that the matter should proceed to full argument on three specific questions:-

(i) Whether the Employment Tribunal erred in law in failing to determine whether the Applicant was less favourably treated than other people and, if so, how?

(ii) Whether the Employment Tribunal erred further in law in failing to determine whether, if less favourable treatment was established, the difference was due to race?

(iii) Whether the Employment Tribunal erred in law in failing to provide both parties with Extended Reasons which contained sufficient detail to enable the parties to know the Tribunal had made no error of law in reaching its findings of fact.

7. On those 3 questions we consider that the matter should proceed to a full argument. We think that it should be categorised C and given a time limit of three hours.