United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R KELLAR (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of Ms Anucha's appeal against the dismissal of her race discrimination claim against the London Borough of Islington by the Employment Tribunal sitting at London (Central), chaired by Mr Sigsworth and set out with Extended Reasons in the decision promulgated on 11^th July of last year.
2. The complaint arose from Ms Anucha's application to Islington for appointment to a Housing Manager's post in Islington's Housing Department in June 2000. There were ten applicants for the job. Three were short-listed. One was white, two were not. Ms Anucha, who is of black African origin, was unsuccessful. The appointee was white. The alleged discrimination arose from the appointment of the white candidate. Ms Anucha believes that she should have been appointed and that the failure to appoint her was based on her race. The Respondent's case was that the competition between Ms Anucha and the white appointee was a close run thing but that the appointment had been made on merit, properly and was not influenced by race.
3. At the hearing Ms Anucha was represented by Counsel. She has put in a Notice of Appeal and a skeleton argument compiled by herself and compiled, if we may say so, with considerable competence and ability. She has been represented today by Mr Kellar under the ELAAS Scheme and we are grateful to him. The Tribunal heard Mr Anucha's complaint over three days. They set out their decision in lengthy and detailed reasons.
4. Ms Anucha will, of course, be aware that this Appeal Tribunal can only interfere with the decision of a Tribunal if that Tribunal has erred in law, and can only interfere with a finding of fact by a Tribunal if that finding of fact was perverse, as defined by authority. Even if we, as individuals, might have taken a different view of the facts had we been the Tribunal that is something which is of no importance unless perversity in relation to any particular finding of fact is established.
5. In her Originating Application Ms Anucha set out specific matters from which she invited the Tribunal to conclude that Islington had not conducted the selection process properly and that the process had been tainted by racial discrimination. They were;

1) That the person specification for the job was changed after the closing date for applications so as to reduce one of the qualifications for the job from three years staff supervision to two years.

2) It appeared that this change had been instigated by Ms Lucas, the white successful candidate who, unlike Ms Anucha, was an in-house candidate.

3) Mr McLaughlin, the chairman of the two-person interview panel, had informed Ms Lucas to attend a test, or sequence of tests, directly by a telephone call the night before the tests.

4) Ms Lucas was not interviewed until the day after Ms Anucha and the other short-listed candidate.

5) Ms Anucha was told by Ms Lucas that she had been told by the Respondents that she would be informed of the selection panel's decision by the end of the day of the interviews. This was contrary to the time scales given to the other applicants.

6) Certain aspects of the person specification were not awarded marks.

For these reasons, and generally, it was Ms Anucha's case that the appointment process was not transparent and was in effect slanted towards the only white short-listed candidate and the eventual appointee.

6. The Tribunal heard evidence from the two members of the appointment panel, from the appointee, Ms Lucas, and from other employees of the Respondent and, of course, from the Applicant. It directed itself as to the law in paragraph 4 of its decision in a manner of which no complaint is made in this appeal and was plainly correct. It found an extensive series of facts in considerable detail in paragraph 3 of its decision and then set out its conclusion in considerable detail in paragraph 6 of its decision. In short it concluded that, in relation to each of the criticisms made of the appointment process, either there was nothing in the criticism or there was a satisfactory explanation of what had occurred which was not such as to give rise to an inference of race discrimination.
7. In her Notice of Appeal Ms Anucha takes six points, and of those Mr Kellar has put principally four in the forefront of his submissions, while not, in any sense, eschewing the others. The first point is that the Tribunal found that when the tests marks were assessed after the completion of the test on 6^th June, Ms Emanuel, who made up the two-person panel with Mr McLaughlin, and Mr McLaughlin came to the result that Ms Lucas and Ms Anucha had scored equally on the weighted parts of the specification. The panel agreed to reconsider two days later. In those two days Ms Emanuel looked at her marks again and marked Ms Lucas down. However, her evidence was that on 8^th June she again reconsidered her marks and concluded that the scores which she had reached on 6^th June were more immediate and, therefore, more accurate. The Tribunal at paragraph 3(xii) of its decision accepted this explanation.
8. Ms Anucha submits that that conclusion was perverse and Mr Kellar, enlarging on that way of putting it, has put to us that there was no proper reasoning on the part of the Tribunal for their acceptance of Ms Emanuel's explanation and that it was not enough simply for the Tribunal to accept what she said at face value.
9. Whether or not Ms Emanuel's explanation of her marking and her process of thinking about the marking was acceptable or not to the Tribunal was entirely a matter for the Tribunal. We have not heard Ms Emanuel; we have not seen any of her evidence. The Tribunal had heard her and seen her. It was for them to judge whether what she said was acceptable or not. We do not believe it to be arguable that there is any lack or reasons given for the Tribunal's acceptance. The reason given is that Ms Emanuel thought that her first thoughts were the best thoughts. That is a possible explanation of what happened and the Tribunal accepted it as they were entitled to do.
10. The result of the interview process, being one in which the two rivals were very close indeed (and we interpose that it seems that the position of the third short-listed candidate must have been one in which he was way behind the other two because nobody has suggested that his position needed to be examined) the Tribunal found as a fact that the panel preferred Ms Lucas because she had stronger management skills. Ms Lucas did better than the Applicant in the tests and the Tribunal found that that confirmed to Mr McLaughlin and Ms Emanuel that their judgment was right. However, the final choice between them was, so the Tribunal found, based on the panel's perception or judgment that Ms Lucas had superior skills in management.
11. Ms Anucha attacks this conclusion as perverse and unsupported by evidence. Mr Kellar submits that the Tribunal accepted the evidence of the Respondent's witnesses on this issue without testing it. Ms Anucha was represented by Counsel at the hearing. No doubt the evidence of Mr McLaughlin and Ms Emanuel in this respect and in other respects was appropriately tested on Ms Anucha's behalf.
12. It was not, in our judgment, necessary for the Tribunal to set out in detail the passages of cross examination which were put to those witnesses in order to test their account. The Tribunal had to decide whether or not as a matter of fact to accept that account and it was entitled to accept it or reject it. It accepted it, and we cannot see any arguable criticism of its conclusion there either.
13. Ms Anucha then submits that the Tribunal's acceptance of this explanation was unsound because at the interview no questions were asked about management skills. If, it is submitted, that was to be a decisive factor, why were no questions asked in that respect.

While this point, namely questions relating to management skills, is not specifically referred to by the Tribunal so far as we can see, the Tribunal expressly finds that the recruitment process was fairly and properly carried out at paragraph 6(ii) of its decision, and expressly finds at paragraph 3(xi) of its decision that the interviews were conducted fairly and properly and that all three candidates were asked the same questions, were marked in accordance with the same system of marking against a central criteria in the person specification. It also finds that that the advertisement for the post and the specification made it clear that management skills were one of the criteria which was going to be involved in the selection process. Having regard to those findings, we do not see any arguable criticism to be made of the Tribunal in this respect either. The finding about the contents of the advertisement in the person specification is contained in paragraph 6(iii) of the Tribunal's decision.

14. Fourthly, Ms Anucha, and Mr Kellar on her behalf, submit that the decision was perverse in that the reasons given to her for her failure to obtain the post were inconsistent. Mr Kellar accepts that the Tribunal expressly referred to that point. It plainly did take their point into account - it is exclusively referred to at paragraph 3(xvi). Having made it clear that it had taken that point into account and that the subsequent reasons which were given more fully for Ms Anucha's failure to be appointed on 10^th July were entirely consistent with the Respondent's case as it was before them, the Tribunal appears to us to satisfactorily have dealt with that issue.
15. The next point which we must consider is the suggestion that the Tribunal erred in law in failing to take into account and draw appropriate conclusions from the fact that Mr McLaughlin was Ms Lucas's Line Manager, that he wrote her reference and that at some stage, at least, that reference was omitted from the disclosed documents. The Tribunal expressly referred to this at paragraph 6(i) and stated that it had some concerns about these points as indeed, had we been sitting as the Tribunal of first instance, we would have had some concerns.
16. Plainly there was some material here on which a case that the whole process had been slanted towards Ms Lucas from beginning to end could have been made out; and if the Tribunal had failed to deal with those matters that would have constituted a significant and substantial omission, in our judgment. However, it did not. It plainly did take those matters into account and, however surprising it may be now to somebody objectively reading this decision, having taken them into account, the Tribunal concluded that the whole process was one which had been carried out fairly, reasonably and properly. That was a finding of fact which the Tribunal was entitled to make and which we cannot see arguably what has been demonstrated as perverse.
17. Lastly it is submitted that the Tribunal failed to take into account Ms Anucha's evidence that the explanations given to her were inexplicable and that, if that was tied together with the fact that of the ten candidates for the job, all but the eventual appointee were not white, this was plainly a case of discrimination.
18. We have dealt with the way in which the process itself was carried out and need say no more about it. So far as the ten candidates are concerned this case was never run, as is perfectly plain from the Originating Application and from the Tribunal's decision, as a case in which the Tribunal was asked to examine the original short-listing. The whole case was run on the basis that the discrimination had crept into the choice between the three short-listed candidates and, indeed, in reality in the choice between Ms Lucas and Ms Anucha. The Tribunal was fully aware, of course, of the racial composition of the pool of candidates. Despite that it made the findings that it did which, in our judgment, are not properly open to criticism.
19. In her skeleton argument Ms Anucha refers to other irregularities as she puts them. We have considered them all, not without some regret and sympathy for Ms Anucha who plainly entirely genuinely feels that she should have had the job that she did not get, but our conclusion, we are afraid, is that there are no arguable grounds for this appeal and it must, therefore, be dismissed.