United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R SAHOTA (the Appellant in Person)


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about race discrimination and disability discrimination in recruitment. We will continue to refer to the parties as Applicant and Respondent. It is an appeal by the Applicant in proceedings against the decision of an Employment Tribunal sitting at Birmingham, Chairman Mr D W Crump. The hearing was postponed or adjourned on several occasions because of lack of resources at Birmingham, the lack of readiness of the parties, their failure to follow its directions and the Applicant's submission of documents after the hearing had closed.
2. It took place on 8 days, over 6 months. The Decision was promulgated with Extended Reasons on 27 May 2002, some 2 years and 2 months after the Originating Application was presented. The events took place between October and December 1999. At the hearing both parties were represented by Counsel.
3. The Applicant complained of race discrimination and disability discrimination in the arrangements made and in the decisions made about the appointment for two positions in the Finance Department. The issues before the Tribunal, therefore, were to discover whether the Applicant had proved that the Respondent had discriminated when it made its decisions and its arrangements.
4. The Employment Tribunal dismissed the Applicant's claims under both statutes. He now appeals against those findings on 8 substantive grounds, as set out in a Notice of Appeal, supported by 29 further matters at paragraphs (a) to (cc). He also alleges actual bias against all members of the Employment Tribunal; that he was denied a fair trial; and delay.
5. In that regard he swore an affidavit and the Chairman has commented on it. He submitted a Skeleton Argument and made oral submissions today. He has also been able to comment, at our invitation, on the Chairman's comments.
6. The Respondent is a large Local Authority in the West Midlands. The Applicant is Asian and disabled by visual impairment within the meaning of the Disability Discrimination Act 1995. He is employed by Nottingham City Council as a Principal Computer Auditor. He applied for two posts in the Finance Department of the Respondent in 1999 and was unsuccessful.
7. The Tribunal recorded its decision and findings in Extended Reasons of 24 pages. We say at the outset that this decision and the reasons is a model which could be helpfully included in Judicial Studies Board training for judicial officers. It is a methodical and thorough approach to the issues, the findings and the law.
8. Having said that, just two aspects of the Applicant's contentions today gave us pause. The first is that the Applicant, through his Counsel, contended that documentary evidence relating to the decisions made in respect of both these posts had not been retained by the Respondent. The Tribunal noted that it did not have the documentation but proceeded on the basis of the oral evidence given by the relevant decision makers. We can well understand the Applicant's concern at the absence of documents and at the apparent change of position by the Respondent when it was asked about them. Nevertheless, the Tribunal had well in mind this submission and made its decision on the basis of the oral evidence and such documentation as did exist.
9. Secondly, the Applicant contended that the Tribunal had failed to make a finding in relation to the population of the workforce in the Finance Department by reference to ethnic origin and disability. True it is that the figures were presented to the Employment Tribunal for targets and although the actual population of the workforce is set out in respect of higher grades than the Applicant the population of ethnic minority and disabled employees in the 42 posts within Grades E-J is 0. That, at first sight, might be surprising but it is to be contrasted with the fact that in the higher grades there is representation of ethnic minority and disabled persons.
10. It seems to us that this material might well have been useful if the Tribunal regarded this as a borderline case, having made primary findings of fact so as to justify drawing from the statistics an inference of race discrimination or discrimination against a disabled person. But again, whilst sympathising with the Applicant's concern about the statistics and the way they have been received, we do not consider that the Applicant has made out an error of law by the Tribunal in failing to draw an inference from the statistics.
11. The Applicant is highly qualified and experienced and has particular experience in local government. He is experienced in audit. The Tribunal decided that the central issues for it were to determine initially questions about authenticity of documents. Having heard submissions it decided all issues in favour of the Respondent. It seems to us the justification for resolving those issues, based as it was upon the oral evidence and explanations given by, in particular, Ms Perrins, is a matter within a remit of the Employment Tribunal's fact-finding duty.
12. The Tribunal then went on to consider the positions which the Applicant was seeking. The first was Special Projects Officer and the second was Audit Manager IT. The Council's requirements for both of these were set out in the Principal Duties and Responsibilities of a Job Description and in Persons Specifications.
13. There were factors some of which were said to be essential and others desirable. The Applicant first applied for the Special Projects Officer and then that of Audit Manager IT. The Applicant indicated that he was a certified Information Systems Auditor. The Applicant was asked on the form for Special Projects Officer whether he was disabled. This is standard procedure and seems to conform to good practice. The Applicant replied that he was. The form continued: "Do you require any support or adjustments to enable you to take part in the selection process or carry out the duties of the post?" He answered "no".
14. The forms received by the Respondent amounted to 17. 14 candidates indicated that they were white, three were Asian and one (the Applicant) was disabled. There was a sift. The Applicant did not make the cut. This was an error by the Respondent because it operates the good practice of guaranteeing an interview to an otherwise qualified Applicant who is disabled. It was accepted by the Tribunal that the oversight was accidental
15. The Applicant was interviewed by a panel of three. Mr Zihni chaired it, with Mr Wood and Ms Perrins. Mr Zihni is the Council's Chief Information and Technology Officer. Mr Wood is the Strategy and Research Manager in the Information Communication Technology division of the Finance Department. Ms Perrins was the Human Resources Manager of the Council's Finance Department. Her input was to deal, for example, with interpersonal skills. She herself was not technically competent in relation to either technology or accounts.
16. The panel asked questions about the Applicant's technical ability and experience. The Tribunal was satisfied that those two panel members were correct when they formed the view that he did not have the experience of new technology applications which were being project-managed at that time. The Tribunal held that both of those managers innocently and reasonably regarded such knowledge and experience of current technologies as important attributes for the posts.
17. The successful candidate had a comprehensive knowledge of project management and modern technologies. The ranking was to place the successful candidate obviously first and the Applicant last of four, although some of the criticisms made of the Applicant were also made of the third-ranked candidate who was neither from an ethnic minority nor disabled.
18. Turning then to the post for which he next applied, having been rejected for the first. "The Audit Managers position was one that is suited to him" the Tribunal found. 7 forms were received by the Council. All apart from the Applicant were white; none had disabilities.
19. The shortlisting process took place, undertaken by Mr Bailey, Mr Williams and Ms Perrins. Mr Bailey was the Council's Director of Finance and Mr Williams the Deputy. Four candidates were included in the shortlist including the Applicant. They were required to make a presentation at the interview. The Applicant made his presentation using a laptop.
20. Questions were asked of all the candidates in the same way. The Applicant was found to have displayed poor interpersonal communication skills during the questioning. His responses, in relation to technical matters, were found to be long and rambling and not focused.
21. The successful candidate was a Mr Perry. He was found to have answered questions succinctly and dealt with technical matters in a way which was understandable to a non-technical person. This contrasted to the Applicant's approach which was not as high.
22. Ms Perrins' view of the Applicant's interpersonal skills was that he did not have sufficient of those for him to be able to operate adequately at the required level, which could involve him discussing matters with chief officers and other senior persons such as Head Teachers.
23. The attributes of the candidates were considered. One factor which weighed on the mind of the panel was that the Applicant was paid £5,000 a year less than the other three candidates. This was not a decisive factor. The Applicant was ranked fourth of the candidates. An offer was made to Mr Perry. The members of the panel all adjudged Mr Perry to be outstanding.
24. The Applicant sought to raise complaints and issued a questionnaire. The Council were slow in responding to the questionnaire. It supplied a breakdown, as we have indicated above, of the population of the workforce in various categories. The Respondent has an equal opportunities policy. It includes procedures for interviewing and, as we indicated in one of our concerns at the outset, it is inappropriate for documentation relating to selection procedures to be destroyed or become unavailable and that was clearly a point which the Applicant made well.
25. The Tribunal addressed itself to the relevant sections of the statutes, which are sections 1 and 4(1) of the Race Relation Act 1976. In respect of unlawful disability discrimination it addressed itself by reference to Disability Discrimination Act 1995 sections 4, 5 and 6, reasonable adjustments. All of these are cited in full in the Tribunal's reasons.
26. It further went on to consider the relevant authorities correctly citing King v Great Britain China Centre [1992] ICR 512, Zafar v Glasgow City Council [1998] IRLR 36, Tyagi v BBC World Service [2001] IRLR 465 and a number of others including Johnson & Johnson Medical Ltd v Filmor (Unreported, EAT/1077/00).
27. The Tribunal then applied the law which systematically to each of the complaints made by the Applicant, under each of the statutes in respect of each of the job applications. So it was that the Tribunal considered: the complaints about the absence of occupational testing and references; shortlisting; the offer of the post of Special Projects Officer. It came to the conclusion that the explanation given for each of the steps taken by the Respondent was innocent and reasonable. In other words, it looked at the primary findings of fact, it decided whether to draw inferences, having heard explanations from the Respondent, and acquitted the Respondent in those terms.
28. As for the Audit Manager post, it correctly indicated that an explanation was required since the successful Applicant, Mr Perry, is white and not disabled. The Tribunal gave credit to the Applicant in that it was found that he was well-fitted for the position or better fitted, at least, than for the Special Projects Officer.
29. The Tribunal considered again the explanation given by the Council which, it said, it had subjected to the closest examination and again acquitted the Council since it had given an innocent and reasonable explanation of its conduct in respect of the claims under the Race Relations Act 1976.
30. It then turned to disability discrimination and went through the same process in respect of the criticisms about occupational testing; references; shortlisting for both of the positions; and then the decisions themselves. In addition, it was required to consider how it had directed itself according to section 6 (1) which is whether reasonable adjustments should have been be made.
31. The finding by the Tribunal is that the Applicant did not inform the Council of any adjustments he wished to see undertaken, other than that he would require a laptop. The Tribunal formed the view that if the Applicant had sought a particular adjustment it would have been made. The Tribunal concluded that the Applicant had not been at any substantial disadvantage in comparison with others during the application processes or at the interviews.
32. In respect then of its detailed analysis of each of the criticisms made of the process for Special Projects Officer it did, as it had done in respect of the claim under the Race Relation Act 1976, acquit the Respondent in similar terms.
33. One concern which the Tribunal expressed, as we have indicated above, was that the successful candidate for the second position did not have any of the desirable qualifications referred to in the job description but the Tribunal found that he did have audit experience for one of the 'Big 5' accountancy firms and had performed auditing work in other areas of the public sector in addition to local authorities.
34. It heard live evidence about the reasoning of the officers who made the appointment and, although it is true that in the decision that a candidate is outstanding there may be some subjectivity, the Tribunal, in our judgment, made sufficient allowances for the absence of cogent notes when it decided that the Council had not been guilty of the criticisms which are made.
35. The Tribunal finally concluded, in relation to the Applicant's criticism about the populations, as follows:

151 "The Tribunal has noted the low representation of those from the ethnic minorities and those with disabilities in the Principal Officer and Chief Officer Grades in the Council's Finance Department. Taking that fact into account, the Tribunal has asked itself again whether or not the Applicant was treated less favourably than another was, or others were, or others would have been, on grounds of his ethnicity and/or his disability. The Tribunal is satisfied that the Applicant was not so treated."

36. Both in that passage and in other passages, under its heading "General" in its conclusions chapter, the Tribunal has stood back and tested its findings on each of the individual complaints against a general picture and decided whether it should go further to question those findings. It expressly decided that it need not.
37. What then are the Applicant's complaints about the reasoning we have set out above? The Applicant has contended as follows:

(1) The Tribunal failed to draw inferences for race and disability discrimination by failing to examine documentary evidence in any real detail.

It can be seen from that approach that the criticism is of insufficient examination. That of course is not a ground for an appeal in law. The Tribunal did examine such documentary evidence as it had and, in part, accepted the Applicant's criticisms of the Council's record keeping.

(2) The Tribunal failed to examine breaches of the Council's Equal Opportunities policy.

Again, the Tribunal did record the Council's Equal Opportunities policy and the Applicant had obviously made a telling point in the failure of the Council to keep the documents. It does not amount to a question of law, that the Tribunal failed to examine the breaches. It plainly did and took account of them.

(3) It is contended that the Tribunal failed to examine discrepancies in documentary evidence and oral evidence.

That we reject since the Tribunal has, at we pointed out at the outset, resolved at least three factual issues relating to documentation and given an account of its approach to other aspects of the documentation. Essentially this Tribunal was concerned with making a decision having heard the decision-makers on the panel, as advised by Ms Perrins the Human Resources Manager.

(4) It is contended that the Tribunal failed to examine whether the interview was conducted fairly and the interview panel was biased.

In our judgment that is precisely what the Tribunal has done. It has examined carefully what was said by those decision-makers and tested those answers against the material which it had and formed its own judgment.

(5) It is contended that the Tribunal failed to determine whether the Council had reacted properly when the Applicant complained.

In our judgment the Council was slow to respond and may have given slightly different answers in the early stages of these proceedings. Nevertheless, those matters were before the Tribunal and it made its decision having heard submissions and evidence about it.

(6) It is contended that the Tribunal erred in law by not examining why the Council were evasive in responding for requests for information.

All of those matters we have expressed above come into this category. The Tribunal had the explanations before it, which it accepted as innocent.

(7) It is contended that the Tribunal failed to consider the basis of the Applicant's claim, that it had failed to make reasonable adjustments.

That claim simply fails since the Applicant did not seek any adjustment. At the moment it appears to be good practice to at least ask persons who are disabled if any adjustments need to be made in a recruitment process. None was sought by the Applicant here and we do not consider the Respondent can be criticised for its approach.

(8) The Tribunal is criticised for failing to provide adequate reasons.

Our commendation of this decision indicates that we reject this criticism.

38. We now turn to the allegations of bias and delay made against the Chairman and each member of the Tribunal. It is contended that the Tribunal was biased, lacked integrity and impartiality and its decision could not be based on evidence presented to it. There was a significant delay in the delivery of the Tribunal's decision. The Chairman's conduct during the hearing was unreasonable as he appeared to surf the internet for case law.
39. We will deal with those two latter points quickly. It is a condition of the engagement of legally qualified judicial officers that they keep abreast of the law. A full-time Chairman has access to the full services of internet databases for research into legal sources. We are told that during the lunch break he did do some research. We not only reject this as a criticism, we regard it as an incident of his thoroughness in researching the reasons in order to assist the members of the Tribunal that he did so.
40. As to the delay between the end of the hearing and the decision, this is accounted for first by the need to reassemble the Tribunal in order to reach a decision in chambers and in the light of the approach adopted by this Tribunal we can see why that was necessary. The delay from 14 March when the members met to 27 May 2002 is we hold not a significant delay in the circumstances. We have already indicated that earlier delays in this case were not attributable to this particular panel and since the only delay cited by the Applicant is between March and May we reject this contention.
41. We turn then to the allegation of bias. The Applicant has provided an affidavit in which he continues to maintain, pursuant to his Notice of Appeal, that the Tribunal panel was biased. What he includes by way of justification for this allegation is essentially that the Tribunal accepted, in large part, the Respondent's evidence.
42. He replays his earlier case on the law into this allegation and indeed makes the same mistakes in that, for example, he says:

"The Tribunal placed too much reliance upon the credibility of the Respondent's witnesses who were all white and able bodied. Witness credibility should not be the end of the road in discrimination cases, especially as a witness may appear credible, honest and mistaken, however witnesses may not even be conscious of their own actions."

That of course is true and it does embody the standard criminal direction by a judge to a jury in typically identification cases, applied in discrimination cases by the Court of Appeal in Anya v University of Oxford [200] ICR 847. But no doubt the Tribunal, if not specifically aware of that, can be credited with knowing in its experience that a witness may be credible and yet mistaken.

43. The Chairman has responded to the criticisms made of him and his members in comments submitted on 27 September 2002. He indicates that the Tribunal was very experienced and accounts for certain decisions by way of case management, for which he is criticised. These include the reading or not reading of witness statements as appropriate and indicating a correction to the Applicant for example that at least one of the Respondent's witnesses was from an ethnic minority background. He was unable to tell whether any was disabled. The Chairman was unable to comment on the allegation that fresh evidence was to be sought. He of course denies bias.
44. In accordance with In Re Medicaments (No 2) [2001] ICR 564 CA we expect to see express denials of bias by a judicial officer and give little weight to denials of apparent bias, nor contentions that the officer applied the law to the evidence. What we are looking to discover is whether there is, in this case, actual bias; that is, that the three members of the Tribunal actively disfavoured the Applicant, alternatively showed favour to the Respondent. It is clear that this is not an allegation simply of apparent bias but of actual bias. But as to both ways of putting it, we have no difficulty in accepting, having reviewed the Applicant's affidavit and his lengthy grounds of appeal and listened to him today, the comments made by the Chairman and dismiss the appeal, both on the substantive grounds argued and on the grounds of bias.
45. The Applicant sought permission to appeal. He identified no point of law, simply that he disagreed with the finding by the Employment Tribunal in its depiction of the relevant qualifications of himself and successful candidates. These do not disclose a point of law. No point of law has been revealed by the application to challenge our decision on the bias allegation. In that general way, therefore, we see no point of law and we refuse leave to appeal.