United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GARY MORTON (of Counsel)
For the Respondent	1st Respondent: NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT 2nd Respondent: MISS ADRIENNE MORGAN (of Counsel) Instructed by: Messrs Orchard Solicitors 6 Snow Hill London EC1A 2AY


 


JUDGE J R REID QC

1. This is an appeal against a decision of the Employment Tribunal held at Manchester on 26 February 2001, which was sent to the parties on 13 March 2001. By it the Tribunal held that the second Respondent, TMP Worldwide Ltd, should be dismissed from the proceedings.
2. The proceedings, as they stood at that stage, were proceedings by which Mr Vasant Patel claimed that he had been the subject of racial discrimination in that he had not been short-listed for the post of Head of Practice Development of the Disability Rights Commission. The part that TMP Worldwide had played in that selection process was that they were a recruitment agency used in the recruitment process by the Disability Rights Commission.
3. The facts, as they were found by the Employment Tribunal on a hearing dealing only with the question of whether TMP Worldwide Ltd should remain as parties, and at which the Disability Rights Commission chose not to be represented, included findings that the recruitment process adopted by the DRC was that application forms originally sifted by TMP Worldwide and matched against a specification drawn up jointly between the DRC and TMP, that all of the applicants for the position were listed against a number of critical criteria with a score of 0, 1 or 2 each, that the individual applicants would be identified on the form and therefore, on the face of it, both their gender and possible racial origin would be a factor known to the Respondents.
4. Mr Patel was originally scored with a total score of 10 by TMP. Such a score would have put him in the category of being a maybe. If he had been on an 11 or 12 he would have been marked as a pass and would then have passed onto the next stage of the selection process. If he had scored below 8 he would have been marked as a regret and would no doubt have received a letter containing that word at a prominent point.
5. The mark of 10, which was originally marked by a Mr Nash, who was an employee of the second Respondents, was then subject to scrutiny. It was scrutinised by both an independent scrutinee and by the DRC itself in the form of an employee, Mr Shrimpton. The result of Mr Shrimpton's scrutiny was that the mark was in fact reduced to 9.
6. The Tribunal, at paragraph 3 (g) of its decision said this:

3 (g) "Subsequently the Applicants, on the basis of the Applicant's scoring on this form, was sent a letter informing him that he would not be invited for interview. It has to be recorded that event on the original score [that is to say the TPM score] the Applicant would only have been a possible candidate for interview. The Tribunal was satisfied on the facts that only the first Respondent took any decision as to which candidates for the position in question would be invited for interview."

7. Then, at paragraph 4, they said this:

4 "The issue the Tribunal had to determine was whether or not the second Respondents ought to remain in the proceedings. The Tribunal was satisfied that the decision whether to short-list or not to short-list a candidate was solely taken by the first Respondent. Such candidates would only be selected for interview, unless they were a disabled person guaranteed an interview, on the basis that they had either passed or received a score of "maybe" on the original assessment or on any reassessment by the first Respondents. Any potential discriminatory decision, of which the Applicant complains, therefore could only have been taken by the first Respondent. A decision not to short-list the Applicant and or not to invite for interview, if it was a potentially discriminatory decision, was a decision taken only by the first Respondent."

8. They then went on and after addressing the law decided that TMP should be dismissed from the proceedings at that stage, though they did indicate at paragraph 6 of the decision that they felt that it would be necessary for any subsequent Tribunal hearing the claim to have the evidence of someone from TMP to explain the selection process to the Tribunal when it determined the substantive issues in this case.
9. The original Skeleton Argument inaccurately asserted that TMP had marked Mr Patel as a 9 and this meant that he would not be interviewed. In fact, TMP had marked him as a 10 and that did not have that effect. The decision not to interview was a decision, as the Tribunal held, taken by the DRC itself, after a re-marking process which had marked Mr Patel down from the mark which TMP had given him.
10. In our judgment there is no point of law in the decision. It was a perfectly straight forward decision that there was a claim which asserted that the discrimination was because Mr Patel was not short-listed and that TMP was not the party responsible for saying that he should not be short-listed.
11. In those circumstances, it was clearly right to get rid of TMP Worldwide at the earliest possible opportunity, to avoid the necessity for TMP (which was by this time separately represented and rightly represented separately from the DRC) incurring the expense of attending and being represented at the hearing and, equally to the point from Mr Patel's perspective, given that there would at the hearing have been no conceivable basis on which he could have made his claim against TMP and it would have been apparent to the Tribunal that this would have been know to him for a considerable period of time, avoided the possibility, to put it no higher than that, that the Tribunal would have taken the view that Mr Patel's conduct of the matter was such that it would have been appropriate to make an Order for costs against him.
12. In our judgment, therefore, the appeal fails and should be dismissed. Mr Patel can go back to his hearing against the DRC who have made it clear that it was they and they alone who determined that he should not be short-listed. In any event, even if the DRC wished to contend the contrary, they cannot do so now as a matter of issue estoppel. They had the opportunity of being represented at the Preliminary Hearing. They are therefore prevented from asserting that it was anyone other than them who made that decision.
13. Of course, nothing in this decision gives any indication, one way or the other, as to what the outcome of Mr Patel's claim against the DRC should be: whether it was well-founded or ill-founded, and if it was ill-founded whether it was so ill-founded that it should never have been brought and should therefore be visited by an Order for Costs against Mr Patel. That is a matter which will have to be investigated further at the conclusion of the substantive hearing.
14. Whether or not either party wishes to obtain evidence from a representative of TMP Worldwide is of course a matter for them. In considering the question, they no doubt will have in mind the view originally expressed by the Employment Tribunal in effect that it would be very helpful to the Tribunal.
15. As final word we should say, by way of a recommendation, (and it can be no more than recommendation because the DRC are not on notice as to this point) that the substantive hearing of Mr Patel's complaint should be conducted by a Tribunal entirely different from that which conducted the earlier stage of the hearing.