United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for preliminary hearing, Mr Eddy Oko Jaja seeks to have set aside as erroneous in law the decision of the Ashford Employment Tribunal contained in Extended Reasons sent to the parties on 21 July 2000, at pages 3-9 of the appeal file before us, after a hearing on 5 July 2000. The proceedings before the Tribunal were brought by Mr Oko Jaja against the AEEU Trade Union, alleging that on 24 September 1999 they had been guilty of race and disability discrimination against him in failing to shortlist him for an interview for a post of Research Officer which they had advertised in the Guardian newspaper, despite what he alleged in his Originating Application dated 12 November 1999 were his high qualifications and experience. The Originating Application further alleged that he "probably could have secured the post had he received equal opportunities to attend the interview" and that he was suspicious that he was excluded because of his racial and disability circumstances.
2. Those circumstances are that Mr Oko Jaja is black of African racial origin and suffers from paraplegia so that he has to spend much of his time in a wheelchair. The Tribunal had the benefit of a Notice of Appearance lodged on behalf of the AEEU by its solicitors on 3 December 1999 which went in considerable and very clear detail into the reasons why Mr Oko Jaja had not been one of the candidates selected for interview for the post, there having been a total of 46 applications returned of which 11 were short-listed for interview. The Tribunal heard oral evidence from Mr Oko Jaja and on behalf of the Union who were represented before them by solicitors, and rejected both complaints. They expressed themselves satisfied that although Mr Oko Jaja had been worse treated then the applicants who were short-listed for interview in that, of course, he was not one of the ones placed on the shortlist, the reasons for that were not in any way to do with his racial origin or his disability but were other reasons put forward by the Respondents as to his suitability for the post which the Tribunal found to be sound.
3. Against that decision Mr Oko Jaja seeks to appeal on grounds originally set out in his Notice of Appeal dated 6 August 2000 which is before us. The first allegation was of bias and a lack of independence on the part of the Employment Tribunal itself, in that as he alleged one of the Tribunal members was known in a private capacity by the solicitor to the Respondent who appeared at the hearing, and failed to disqualify himself from sitting at the hearing; and that the Chairman of the Employment Tribunal had failed to exercise her discretion properly by allowing the proceedings to continue. This Mr Oko Jaja's Notice of Appeal alleged had denied him a fundamental human right to justice. In addition, his Notice of Appeal alleged that the Employment Tribunal had been wrong in law by concluding that his claim for race and disability discrimination failed. No further particulars were given at that stage but in a further letter dated 7 November 2000 before us at pages 14-15, Mr Oko Jaja amplified his contentions in particular by reference to the explanation that had been given to him in response to an inquiry after the interviews had taken place, that the person appointed for the post had been said to have high academic standing; while in Mr Oko Jaja's words: -

"Myself who has even superior qualifications was not even offered interview".

4. Those submissions were repeated and amplified in Mr Oko Jaja's skeleton argument dated 17 February 2001 which was before us in the following terms: -

"The Respondent was not able to offer any explanation as to why it failed to shortlist me because it was clear that I ought to have been on evidence except for the opinion of the Respondent. Again on this point ET failed to draw the proper inference. As a matter of fact, the person offered the post according to Miss Powter in a letter she wrote me which they did not disclose to the ET at the time which I drew the attention of ET to according to her the main reason for offering the post to that candidate was outstanding academic qualification. Since they accepted that I have similar good qualifications, why then did I not receive interview? This again is another reason why I concluded that the ET failed to draw proper inference".

Those contentions have been amplified on behalf of Mr Oko Jaja by Mr Booth who most helpfully appeared before us on his behalf this morning under the ELAAS Scheme. Mr Booth summarised the main contentions in his argument as being first on the issue of bias that the Tribunal procedure adopted had given rise to, at any rate arguably, what would have been a reasonable impression in the mind of an intelligent layman who would have perceived a real likelihood of bias in the way the proceedings went ahead once it had emerged that there was some acquaintance between one of the members of the Tribunal itself and the solicitor who was appearing on that morning on behalf of the Respondent.

5. Mr Booth put the point in two ways. First of all the way in which according to his instructions from Mr Oko Jaja the fact of this acquaintance emerged and second, what Mr Booth contended was the lack of any properly informed waiver or consent on behalf of Mr Oko Jaja for the proceedings to go ahead regardless of this information. What appears to have happened in front of the Tribunal is the subject of apparently conflicting recollections between Mr Oko Jaja himself and the Tribunal Chairman whose comments have been obtained and are in the file before us in a letter dated 23 August 2000 at page 11. The Chairman's comments are as follows:

"One of the lay members, Mr Gallagher, is a full-time employee of an Employer's Association. He informed the Chairman that the had met the Respondent's Solicitor, Mr Blunt, on a few occasions at work-related conferences when Mr Blunt was present as a Solicitor who, apparently, acts from time to time for trade unions. The Chairman did not consider that this required automatic disqualification of Mr Gallagher from hearing the case, but decided that the situation should be discussed with the parties. This was done. The Applicant informed the Tribunal that he had no objection to the Tribunal, as constituted, hearing the application and that he wished the hearing to go ahead. Mr Gallagher is a member nominated by the CBI".

6. Mr Oko Jaja's recollection as he instructs Mr Booth, is slightly different from that. He agrees the question was raised at the outset of the Tribunal proceedings and that he was given the opportunity to object to the proceedings going ahead and did not in fact do so. He is recollection however, is not that he gave any express waiver against contentions that Mr Gallagher's mind might be unduly influenced by his acquaintance with the Respondent's solicitor but he Mr Oko Jaja had left matters to the Chairman to do what was right. Secondly, the way in which the Chairman's note records the point having been raised is challenged by Mr Oko Jaja whose recollection is that the first mention at the hearing of this apparently fairly slight acquaintance between the Solicitor and Mr Gallagher came from Mr Blunt the Solicitor himself, neither the Chairman nor Mr Gallagher having seen fit to mention it themselves at the outset of the proceedings.
7. On that basis Mr Booth submits that there are arguable points that the proceedings should not have been allowed to go ahead on the basis of Mr Oko Jaja's apparent acquiescence if there was anything significant to give rise to an inference of bias in Mr Gallagher's position; and secondly, that the way in which the point emerged with it being only the Respondent's solicitor who raised it rather than the Tribunal itself, would give rise in the mind of a reasonable independent and intelligent observer to a perception that the Tribunal itself had been less than objective about the point. Mr Booth drew our attention to the general principle applied in the law of England and Wales that the test here is whether objectively looking at the facts whether an intelligent layman would have perceived a real likelihood of bias in what took place before the Tribunal. He said that this was a well established principle in United Kingdom law and that although Article 6 of the European Convention on Human Rights was now directly incorporated into our domestic law, it in effect gave rise to no additional considerations in the context of the case such as this one. With that assessment of the position in relation to the domestic law of what have traditionally been called issues of "natural justice" and their interaction with the requirement of an Independent Tribunal under Article 6 of the Human Rights Convention, we completely agree.
8. However, we have not been satisfied that on the facts of this particular case there has been shown to be any arguable ground for saying that there was either any breach of natural justice, or a failure of independence in terms of Article 6 on the part of the Tribunal, in what happened here. As regards the waiver point, clearly there is no dispute that Mr Oko Jaja was given an opportunity to object to the continuation of Mr Gallagher on the Tribunal hearing the case and did not in fact do so. It is not necessary for us to consider the degree to which that acquiescence (albeit as Mr Oko Jaja says, reluctant) could be relied on as fully informed consent although we do notice that while in terms of these proceedings, a lay person acting for himself, Mr Oko Jaja has as recorded in paragraph 7 of the Tribunal's Extended Reasons, degrees in Law, International Politics and a masters degree in Adult Education, a post-graduate diploma in Journalism. So it would not be right to describe him as a totally naive and ignorant person for the purpose of understanding the issue involved when the point was raised in the Tribunal proceedings.
9. But it is not necessary for us to consider that further because as Mr Booth rightly, submitted, even accepting that it would not be right for the proceedings to have gone ahead solely on the basis of an express waiver by Mr Oko Jaja, a further question quite properly arose to be considered by the Chairman: namely as Mr Oko Jaja had himself suggested, that the Chairman should consider whether what was the right thing to do in the circumstances that had arisen and whether the proceedings should go ahead. It is plain in our judgment that the Chairman did consider the point, independently of the question of whether Mr Oko Jaja was consenting or not; and came to the conclusion, which in our judgment on the facts identified in the letter to which we have referred was completely unimpeachable, that the relatively slight acquaintance on work-related occasions between Mr Blunt, a professional person and Mr Gallagher, the member of the Tribunal nominated by the CBI, in no way impugned the independence of the Tribunal or compromised the objectivity or the position of Mr Gallagher himself. It was simply a matter which, although Mr Blunt had perhaps over cautiously raised it, was not to be regarded as in any way giving rise to any lack of independence on the part of the Tribunal or lack of objectivity in their ability to consider the case.
10. Mr Booth accepted that the Chairman was correct in her assessment (as recorded in middle sentence on page 11 of the appeal file before us) that this was not a matter that required automatic disqualification of Mr Gallagher from hearing the case; and we entirely agree. We do not consider that there is any arguable ground for saying that her consideration of the point embodied any error of law at all. We according reject the appeal so far as based on allegations of bias or lack of independence on the part of the Tribunal.
11. That leaves the complaints raised by Mr Oko Jaja as to the substance of the decision, as amplified on his behalf by Mr Booth, in particular by reference to the letter of explanation which was apparently written to Mr Oko Jaja when he sought to question the fact that an appointment had been made without him being asked to attend for interview as one of the short-listed candidates. On this, the complaint is founded in particular on that letter of explanation having as we understand it, referred to the exceptional qualifications of the successful candidate: in terms which is likely (though we have not seen the letter itself) reflected what is recorded at the end of paragraph 12 of the Tribunal's Extended Reasons as being the evidence given by Mr Richards on behalf of the union in the following terms:

"The only candidate without any direct experience working for a specific Union had experience working for a Trade Union Resource Centre and also had a first class degree and had been an active member of the Labour Party for 11 years. That candidate was eventually offered the position".

12. Mr Oko Jaja's complaint is that although his degrees as recorded by the Tribunal in paragraph 7 do not apparently include a first class degree, nevertheless, there is a substantial volume of academic achievement represented by the degrees and diploma recorded there, and he had sought to draw an inference of discrimination against him before the Tribunal based on that comparison. However it is apparent from the Tribunal's stated reasons and recording of Mr Richards' evidence that they accepted the evidence on behalf of the Trade Union that the actual reasons for Mr Oko Jaja not having been placed among the candidates on the shortlist were a good deal wider than the sole issue of academic qualification.
13. Faced with that, Mr Booth contended on behalf of Mr Oko Jaja, on instructions, that the discrepancy between the reference in the letter to exceptional qualifications and the much wider reasons canvassed in paragraph 13 of the Tribunal's Extended Reasons gave rise to an inference that the AEEU had been disingenuous in the explanations they had put forward for Mr Oko Jaja not having been selected for interview; and that that gave rise to an inference of possible discrimination against him in the way he had been treated. The argument as we understood it was that what was said in paragraph 13 should not be taken at face value. That paragraph explains in detail the Respondent's reasons for the candidates having been admitted to the shortlist and Mr Oko Jaja not having been regarded as so well qualified in the broad sense as others. It reflects and repeats the detailed reasoning expressed right at the outset of the proceedings in the Respondent's Notice of Appearance submitted on 3 December 1999 and although no doubt a shorter explanation had been given in the earlier letter, we think there can have been no doubt from at any rate, the end of 1999 onwards in Mr Oko Jaja's mind as to what the Union's position was.
14. As recorded in paragraph 13 of the Tribunal's Extended Reasons: -

"Mr Richards then went on to give evidence as to why Mr Oko Jaja had failed to make the shortlist. He told us firstly that Mr Oko Jaja's qualifications were admirable and that he had no doubts about Mr Oko Jaja's suitability with regard to his standard of general education. He had not however demonstrated any direct experience of working within the Trade Union movement and in stating that he had been an active member of the unions of his profession e.g. Journalism and Civil Service and Union of Teachers he had not specified what he meant or provided details of any specific roles undertaken or positions held. In addition the Applicant had stated on his application that he was a "strong believer in Old Labour", Mr Richards considered that had Mr Oko Jaja done any research on the policies and political approach of the Respondent Union he would have become aware that the Union had for a long time been opposed to the activities of "Old Labour". Mr Richards then looked at Mr Oko Jaja's application with regard to the criterion of good communication skills both written and oral. Mr Richards was unimpressed by Mr Oko Jaja's application form. He found the structure poor and sentences abrupt, unrevealing and lacking in detail. He also commented on the untidy layout and presentation of the Applicant's application. With regard to the ability to critically analyse information, Mr Richards felt that the Applicant was not disadvantaged in his application form, but that his application did not show any more merit than any of the others. As regards the criterion of ability to organise/prioritise workload Mr Richards felt that Mr Oko Jaja's application did not demonstrate by example his abilities in these areas. In dealing with the criterion of ability to work as part of a team and adopt a flexible approach to tasks in hand Mr Oko Jaja's application stated "my understanding of a team player do not mean that I should consult before doing a task, it is only when the need arises". This did not coincide with Mr Richards's view as Head of the Research Department on how the department should operate and seemed to indicate a possible reluctance on Mr Oko Jaja's part to operate openly and freely within a team environment. When it came to experience of word processing Mr Richard's found Mr Oko Jaja's application lacked detail and stated only that he had experience of word processing and word for window spreadsheet Excel and Database and that he was conversant with internet and email. Most of the other short-listed candidates had either produced word-processed documents attached to their application forms or had attached presentation documents produced for example by PowerPoint. 9 of the 11 external short-listed candidates had either typed the whole of their applications, typed the section asking for relevant experience or had added examples of their typed or written work. On the question of the desirable criteria, Mr Richards considered that Mr Oko Jaja had failed to provide details necessary to enable his application to be assessed".

15. That makes it clear that the actual reasons put forward before the Tribunal were, based on much wider factors than the single question of academic qualifications on which Mr Oko Jaja had based his contention that the Respondent's evidence was not genuine and concealed what he alleged to have been discrimination against him. Mr Booth made it clear before us today on instructions from Mr Oko Jaja that this point about the discrepancy between the short explanation given in the letter and the longer given in the Respondent's answer to the proceedings in December and in Mr Richards's detailed oral evidence before the Tribunal itself had been fully argued by Mr Oko Jaja before the Tribunal, and had been part of the basis on which he alleged that as a matter of evidence there had been circumstances amounting to discrimination against him.
16. Having considered that evidence and having considered that contention, the Tribunal rejected the allegations of discrimination on the facts. As they recorded in paragraphs 20-22 of their Extended Reasons:

"We have heard the evidence of Mr Richards as to how the shortlist was drawn up and we have tested his evidence about that against the application forms of the short-listed candidates and that of the Applicant. We are satisfied with the Respondent's explanation for the failure to shortlist the Applicant and we do not infer that the Respondent's failure to call the Applicant for interview was on the ground of his racial origins. It follows that the Applicant has not satisfied this Tribunal that he was subjected to discrimination by the Respondent on racial grounds and his complaint under the Race Relations Act fails and is dismissed".

We note there that not only were the Tribunal basing themselves on the oral evidence of Mr Richards to which we have referred but also to their own assessment of that evidence against the actual application forms of the short-listed candidates, comparing them with those of the Applicant, since those application forms had been furnished to the Tribunal in evidence.

17. Secondly, on the question of disability discrimination, the Tribunal recorded in paragraph 25 of their Extended Reason having referred specifically to the statutory provisions and the tests they were required to apply: -

"Applying section 5(1) [of the Disability Discriminations Act 1995], whilst the failure to place the Applicant on the shortlist amounted to less favourable treatment of him than those Applicants who were short-listed, we accepted the evidence of Mr Richards that the Applicant's disability was not in his mind when he entered upon the short-listing process in the sense that although it have been declared on the application form he was not consciously aware of it. In addition, he gave detailed evidence of his reasons for considering that the Applicant should not be interviewed, which, together with an examination by us of the application forms of the short-listed candidates has led us to conclude that the Applicant has failed to satisfy us that the less favourable treatment received by him was for a reason which related to his disability. ["And concluded in paragraphs 28-29":] The short-listing process did not therefore have a more adverse impact upon the Applicant than upon non-disabled candidates and it cannot be concluded that the Respondent failed to comply with the section 6 duty. Mr Richards was faced with 46 applications to fill one post. The Applicants application did not impress him as much as those of other candidates and he has given reasons to the Tribunal as to why that was so. We have accepted those reasons after considering the oral and documentary evidence very carefully. We are satisfied that the Applicant's disability has no bearing upon them".

The Tribunal accordingly also dismissed the complaint under the Disability Discrimination Act.

18. The test for us to apply to the Tribunal's stated reasoning is whether there is any arguable ground to warrant directing a full hearing on two particular issues; first of all whether the Tribunal can be argued to have misdirected themselves on the questions to be addressed in relation to either race or disability discrimination and secondly, whether there was material on which they could properly conclude as they did that the reasons for Mr Oko Jaja not having been placed on the shortlist for interview were unrelated either to race or disability discrimination. As a subsidiary but related point, we take into account the argument put forward to us by Mr Booth on behalf of Mr Oko Jaja that the Tribunal's recorded reasons are arguably defective in not having referred specifically to Mr Oko Jaja's contention put forward at the Tribunal, based on the alleged discrepancy between the reason given to him in the letter referring to the successful candidate and the much broader reasons recorded in the evidence of Mr Richards and accepted by the Tribunal themselves.
19. We have concluded that addressing those three potential issues there is in fact no arguable ground for saying that the Tribunal erred in law under any of those potential heads. It appears to us that the Tribunal directed themselves perfectly correctly on the questions to be addressed. They accepted that in both respects there had been less favourable treatment of Mr Oko Jaja in that he was not summoned for interview when other candidates were, but the Tribunal focussed, in our judgment entirely correctly, on whether it was proper for them to draw an inference from the facts put before them that racial or disability factors had played a part in the decision not to shortlist him for interview. Their conclusions, based on the evidence not only of Mr Richards to which they referred but also on their own inspection of the successful candidates' application forms appear to us clearly expressed, based on material that they had before them and could properly take into account, and in no way liable to be impugned as matter of law. It appears to us that the material before them which they recorded did warrant the conclusion they drew, that the reasons for Mr Oko Jaja not having been selected were unrelated either to his race or his disability.
20. As the Tribunal clearly recorded that they were accepting the detailed evidence of Mr Richards and also the documentary evidence which demonstrated that to be the case, we do not think that any reasonable person could fail to understand why the Tribunal were not accepting the rather narrower point that Mr Oko Jaja had argued before them, that the detailed reasons being put forward by the AEEU and Mr Richards were in effect disingenuous and required further explanation than they were in fact given in the evidence presented to the Tribunal. We have not been satisfied that the written material presented to the Appeal Tribunal by Mr Oko Jaja discloses any arguable ground of law outside those very properly put forward on his behalf by Mr Booth and for those reasons we now unanimously dismiss this appeal.