United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE NELSON

1. This is an appeal against the decision of the Stratford Employment Tribunal given on 4 June 2001 when, unanimously, the Tribunal dismissed the Appellant's claims for unlawful race and sex discrimination.
2. This matter first came before the Employment Appeal Tribunal in December 2001 when neither the Appellant, Mrs Sirdaw, nor her representative, Mr Sen, attended the hearing. The matter was, on that occasion, adjourned and a new hearing fixed with the Appellant being notified of the new date for the Preliminary Hearing of her appeal.
3. That appeal falls to be dealt with today. Again, neither the Appellant nor her representative, Mr Sen, have attended but Mr Sen has sent a written Skeleton Argument of some 8 pages in length, which he asks the Employment Appeal Tribunal to accept as the written submission of appeal on behalf of Mrs Sirdaw. He leaves a telephone number at the end of this submission but it has not been possible for the office to contact him further.
4. In the circumstances of the history, which has just been set out, the Employment Appeal Tribunal proposes to deal with the matter, as in effect requested by Mr Sen on behalf of Mrs Sirdaw, on the basis of the written submissions and the grounds of appeal set out in the Notice of Appeal.
5. This matter arises out of the employment by the Appellant, who is of Indian origin, at Kingsland School in London E8 as, initially in 1982, Head of Computer Services and then, as from 1999 in the post which was then known as ICT Co-ordinator.
6. The essence of her complaint is that a new post was created which was essentially the same as her post, but a post which was not offered to her. The matter was only externally advertised. The shortlisting and the interviewing process was inadequate. That in each of those respects she received less favourable treatment and she was discriminated against by virtue of the fact that the person who succeeded in the interviews for this new post was a white male, a Mr Hudson, and not her, though the Appellant herself was also one of those interviewed on the final shortlist.
7. The Employment Tribunal found that all the allegations, save one of less favourable treatment, were dismissed. They rejected each and every one of them. They did however find that the appointment of a white male to the new senior post and the Applicant, an Indian female, not being appointed, did constitute less favourable treatment and there was a difference in race and gender.
8. They then went on, therefore, to consider whether there had been unlawful discrimination and they asked themselves whether they should draw that inference from the facts as they had found them. They considered the matter and came to the conclusion that there had not been any discrimination. They therefore rejected the claim and dismissed it.
9. Subsequently, a review was requested of the decision, in essence on the basis of three grounds. Firstly, that the Appellant now had available to her, which she had not had before, a letter or statement from the bursar of the school, Marcia Elliot, dated 26 May 2001, which affected the merits and would have been valuable and important in the material before the Employment Tribunal, in particular when they were assessing the credibility and accuracy of the head mistress of the school, Miss Bunce.
10. Secondly, that documents were not disclosed by the Respondents which ought to have been disclosed and thirdly, a letter subsequent to the hearing of the matter, namely a letter dated 18 May 2001 from Mr Cavanagh to the Appellant, demonstrated that the head mistress' mind had been closed against the Appellant all the time; that being demonstrated by the fact that she had had a request of pay increase rejected.
11. The document which that letter from Mr Cavanagh of 18 May 2001 constitutes should have been before the Employment Tribunal so that all relevant material was before it. That application for a review was rejected by the Chairman of the Employment Tribunal, it being found that all the evidence existed at the time of the previous hearing and could reasonably have been known of and foreseen as being relevant at that time. The application had no reasonable prospect of success under the new evidence Rule.
12. Insofar as the interest of justice was concerned, the Chairman found that there was no breach, in any sense, in respect of the new material that, again, the application had no prospects of success under the interests of justice Rule, even if the new material were to be considered.
13. The Appellant appeals against both of those matters. We have had put before us today, in the written submissions today by Mr Sen, references to the case in particular of Anya v University of Oxford [2001] IRLR 377 and the references in that case for the need for the careful finding of primary fact, the careful consideration of inconsistencies in primary findings and the need for a very thorough approach, not only in relation to primary findings in cases such as this, of race discrimination, but also in relation to the inferences to be drawn and consideration of the inconsistencies in the evidence. It is suggested to us that the Tribunal failed, in numerous respects, in relation to that obligation placed upon it.
14. We turn to the matters set out in the grounds of appeal. Firstly, at page 12 (viii) it is alleged that the Employment Tribunal erred in finding that a white female, Sue Bayford, was not the correct comparator. It is submitted that, in that finding, the Employment Tribunal were in fact wrong.
15. We have considered this allegation and we have considered the nature of the finding which the Employment Tribunal made in this ground. What the Employment Tribunal said was that Miss Bunce, the head mistress, had felt that she needed to appoint a business manager before she could operate effectively as the new head of a relatively disorganised, struggling school.
16. The business manager was not a teaching post. It impacted on teaching posts in that the incumbent would relieve teachers of some and most of the functions but it did not effect the teaching structure, although it impacted on the school structure and senior management team.
17. That was the submission of the first Respondent on this particular allegation and that was the explanation which the Employment Tribunal had said that they accepted. They were entitled to accept that explanation and they were entitled to do so, even though there was prima facia documentary evidence which was inconsistent.
18. It was perfectly proper for the Employment Tribunal, having listened to the evidence, to accept that the Respondent's case upon that was correct. It is said further, and said not only here but in relation to many of the grounds put forward, that no proper reason was given as to why oral evidence was preferred in this particular case to documentary evidence and that those reasons should have been carefully expressed.
19. We are, however, satisfied that the Employment Tribunal set out its findings and its preferences here, and indeed elsewhere, in a clear and proper manner and that their decision cannot be criticised upon this basis.
20. It is alleged, in relation to page 13, paragraph 5 (x) of the decision that the delay in the making of the decision was not properly dealt with, that the Employment Tribunal substituted an explanation for the delay in upgrading the Applicant for two years when it should not have done so and, further more, that they did not deal properly with the fact that she was paid with effect from September 1999, when she got her upgrade, and not from the time that the claim was put in.
21. The further allegation, in relation to this matter, is that no proper analysis was made of the material. No proper analysis was made of the evidence of the Respondent and of the Applicant. We are unable to accept that submission. We are satisfied that the Employment Tribunal did properly consider this matter, in the context of the evidence as a whole, and in the light of the case upon which the Appellant relies, namely King v China.
22. We are satisfied that the Tribunal gave proper attention to that case, as indeed they set it out at paragraph 1.7 of their decision. They plainly had that, and indeed the case of Anya, which they also set out at paragraph 1.4, in mind when considering the matters before them.
23. It is said that, again, they did not say why they preferred the evidence and in particular the evidence, this is a submission which is echoed throughout these grounds, of the head mistress, Miss Bunce, to other evidence.
24. But, we are again satisfied that they do give there reasons here, in 5 (x), perfectly adequately and properly. It is quite clear what they found and it is not appropriate for an Employment Tribunal to have to dot every single 'i' and cross every single 't' in precisely the manner called for by one particular party. The sense of the decision of the Employment Tribunal is entirely clear and indeed their reasons for that decision.
25. It is said next, in relation to page 18 of the decision, and in particular at paragraph (xxviii) (c), though this may be a reference to (xxvii) (c), that the Employment Tribunal dealt incorrectly with the group of questions which had been drawn up for the purpose of interviewing. It is said that the questions which were worked out followed the shortlisting and were not, therefore, available for those who were dealing with shortlisting as the Employment Tribunal found. They were only, in fact, available for the purposes of the interview itself, after the shortlisting had taken place.
26. But we are satisfied that the Employment Tribunal gave detailed consideration to both the shortlisting process and the interviewing process; that they looked at those processes both individually and overall in deciding that neither demonstrated any less favourable treatment. We can see no error in the manner in which the Employment Tribunal approached this, nor in the conclusions they reached, nor indeed in the manner in which they expressed their conclusions.
27. In relation again to page 18, but this time at (xxix) and also at (xxviii) it is said that there is no proper analysis of the inconsistencies in Miss Bunce's explanations as to why her evidence and that of a Mr Thompson was inconsistent with the material set out by the Respondents in the Notice of Appearance, as to whether the shortlisted candidates did or did not fulfil all the requirements of the job specification of the shortlisting.
28. But the Employment Tribunal accepted Miss Bunce's evidence on this, that she had given the information to the Council, without going through the documents. They were entitled to accept Miss Bunce's explanation and their finding cannot, in any way, be described as perverse, which would be the only effective way the Appellant could challenge their finding.
29. Their decision gives adequate reasons and we repeat that not every finding has to be set out and justified to the ultimate detail. The reasoning of the Employment Tribunal is, to the view of this Employment Appeal Tribunal, perfectly adequate and proper.
30. In reaching that conclusion we have in mind the comments made by Sedley LJ about the need for care when dealing with the question of inconsistencies and we have had in mind paragraph 14 of the decision in Anya and paragraph 15 and the other matters set out by Mr Sen in his written submissions to us.
31. Next it is said that in page 18 at paragraph (xxix) and also 31 Mr Hudson, the white male who eventually was appointed to the post, should not have been shortlisted. The Employment Tribunal's findings are ambiguous.
32. We do not accept that this is so. The findings are, in our view, clear and self-explanatory. There is no reason to suppose that the Employment Tribunal misunderstood Mr Sen's submission. They understood the Appellant's case, as can be seen throughout their decision.
33. The next matter, in the sense set out in the grounds of which complaint is made, is that at page 20, item (xxxiv) the point which the Appellant made about technical know-how was inadequately dealt with. The Employment Tribunal could not and should not have said that the matter had not been pleaded because the proper reading of the documents would reveal that was not so and indeed further and better particulars had been sought. It was clear that the Employment Tribunal did not understand the Applicant's claim in relation to that head.
34. We do not accept that submission; even if the matter had been pleaded, as the Appellant submits, it was not dealt with by any of the witnesses. It was not put to them and there was, therefore, no evidential material before the Employment Tribunal upon which they could have made the findings sought only by Mr Sen in final speech but not covered in the evidence.
35. Finally, in relation to page 23 at paragraph 6.2 it is said that the inconsistencies in the evidence, generally and in particular, in both matters set out in that paragraph, were not properly dealt with, nor indeed did the Employment Tribunal stand back and look at all the evidence as a whole and consider the inconsistencies and properly weigh them up.
36. We, for our part, are satisfied that the Employment Tribunal gave clear consideration to the inconsistencies. They set them out in paragraph 6.2 and they consider each in turn. Their findings upon them were clear. They concluded, as follows:

6.2 "There is the explanation put forward by the Respondents and which was ultimately not really challenged by the Applicant. That explanation is that the selection panel held a searching, carefully planned series of interviews with questions which were based around pre-determined selection criteria, which themselves were chosen with the job duties in mind. This enabled the selection panel to assess each of the candidates against each of the criteria. The result of that assessment was that a clear winner emerged, namely Mr Hudson. The Applicant came second. In consequence Mr Hudson was appointed. We have accepted this explanation. It is clear, credible, consistent with the documentation and has not seriously been challenged. In those small areas where it was challenged (the suggestion that question 8 was not put and that new criteria were introduced to suit male candidates), the challenge has not been made out. This was an exemplary process of non-discriminatory interviewing and we accept that it wholly accounts for the decision to appoint Mr Hudson and not the Applicant and thus for the fact that he was appointed and she was not. In the circumstances we are unable to draw an inference that race and/or gender played a part in the decision to appoint Mr Hudson. Quite simply, the candidate who did best at interview succeeded and the interview itself was beyond reproach."

37. We are, for our part, satisfied that in dealing with this matter in making its findings and giving its reasons and dealing with primary fact inferences and inconsistencies, this Employment Tribunal approached the matter in a most careful and thorough manner and came to a conclusion which was open to them on the facts and cannot be criticised.
38. We reject the suggestion that they failed in the sense as set out in the case of Anya to give proper consideration to primary facts, inferences or inconsistencies. The appeal against the main decision is therefore dismissed.
39. Insofar as the application for a review, the Employment Tribunal considered the relevant law, under Rule 11 (1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 Schedule 1 and having set out that rule they came to the conclusion that none of the evidence which Mr Sen sought to rely on satisfied the criteria of 11 (1) (b). It was all evidence which existed and could reasonably have been known of and foreseen as being relevant, insofar as it actually is relevant, at the time of the hearing. The application therefore had no reasonable prospect of success under (d).
40. They continued, in respect of head (e):

"Abuse of rules of discovery might found an application if something significant were forthcoming. In the present case, the fact that certain provisions applied in respect of 1993 does not assist us in respect of the provisions which applied to the first Respondent in 1999 because we read and referred in the hearing to, and discussed in our decision the Rules that applied in 1999/2000 to both the first and second Respondent. In respect of the document which it is said shows Miss Bunce had made her mind up in certain respects, this is not an obviously relevant document since it related to a matter that was not in dispute or the subject of litigation at all. There will often be many tangentially relevant documents; this is not one which the Respondents ought reasonably to have foreseen as assisting the Applicant's case as pleaded. For these reasons the application has no prospect of success under (e)."

41. The conclusion of the Employment Tribunal was that the application for review had no reasonable prospects of success and was therefore rejected. We have looked at each of the matters raised in the application for the review including the letter of Marcia Elliot, the bursar, dated 26 May 2001. We note that the Employment Tribunal says that that letter was from someone who originally intended to be a witness at the full merits hearing but who had provided a completely different witness statement which was not ultimately used.
42. We have also considered the reference to the documents of 1993, as to whether those might have been relevant, had they been disclosed, and we have also considered the reference to the letter from Mr Cavanagh of 18 May 2001. We, for our part, are satisfied that the Employment Tribunal was also correct in its decision in refusing this review. We see no error of law or any other matter which would justify interference with the decision of the Employment Tribunal in relation to the review. This appeal is also therefore dismissed.