United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P MEAD (of Counsel) Instructed by: London Borough of Tower Hamlets Borough Solicitors Dept Town Hall, Mulbery Place 5 Clove Crescent London E14 2BG
For the Respondent	MR T GALLIVAN (of Counsel) Instructed by: Commission for Racial Equality (Litigation Dept) Elliot House 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE WALL

1. In this case, the London Borough of Tower Hamlets (the Appellant) appeals against one part of the Decision of the Employment Tribunal held at Stratford on 17-23 April 2001 inclusive, its decision being sent to the parties and entered in the register on 11 May 2001. The unanimous Decision of the Tribunal was that the Applicant before it (the Respondent to this appeal) Dr M A Ogunlokun (the Respondent) was discriminated against by the Appellant on account of race. Matters of remedy were put over to another day.
2. The Respondent is of black African origin. He entered the Appellant's employment on 31 July 1991, and at the date of the Tribunal hearing was still employed by the Appellant. Since 1991 he has occupied a number of posts. For the purposes of this appeal, the relevant chronology begins on 5 March 1999 when the Respondent was selected for a temporary secondment as a Policy and Planning Officer. His abrupt and untimely removal from this seconded post formed the basis of his first complaint of race discrimination.
3. The basis for the Respondent's second complaint of race discrimination was the Appellant's failure to shortlist him for the permanent post of Policy and Planning Officer following his application for the post on 20 October 1999.
4. The Tribunal came to the unanimous conclusion that the only explanation for the Appellant's treatment of the Respondent in regard to both of his complaints was that he was "treated differently on account of his race". That, the Tribunal found, on the facts of this case, amounted to race discrimination.
5. The Appellant does not appeal against the Tribunal's findings in relation to the first of the two complaints. In relation to the second, however, Mr. Mead, for the Appellant, seeks to argue that the Tribunal erred in law in a number of ways. Firstly, it is said, that the Tribunal failed to make any primary findings of fact, or otherwise rule on the Appellant's case that the Respondent did not meet the essential criteria to justify being shortlisted for the permanent post of Policy and Planning Officer. Alternatively, the Appellant argues that the Tribunal failed to give any, or any adequate reasons, for concluding, on the facts, that the Respondent had been treated less favourably. In any event, it is argued that the Tribunal applied the wrong test when concluding that the Appellant had discriminated against the Respondent in failing to shortlist him.
6. The Appellant also argues that the Tribunal erred in law in concluding that the failure to shortlist was on grounds of race in that: (1) the Tribunal elided the process of shortlisting with the process of appointment; (2) the Tribunal failed to compare the Respondent with the pool of shortlisted candidates, which included a woman of black African origin; (3) the Tribunal failed to apply the proper test, namely to ascertain what was the effective cause of the alleged discriminatory treatment; and (4) the Tribunal failed to distinguish between the making of primary findings of fact and the drawing of inferences.
7. Following a directions hearing on 9 August 2000, the complaints were particularised and listed for hearing before the Tribunal in the following terms:-

"(i) whether the [Respondent] was subjected to less favourable treatment upon the grounds of his race (African) in that the [Appellant] terminated his temporary contract as a policy and planning officer (PO4) on 29 June 1999 without explanation. At this stage the identified comparator is Mr Herbie Wilson (Afro-Caribbean);

(ii) whether, given the date of presentation (14 April 2000) it is just and equitable to allow the [Respondent] to rely upon this allegation as being actionable for the purposes of section 68 of the Race Relations Act 1976;

(iii) whether the [Respondent] was subjected to less favourable treatment upon the grounds of his race when the [Appellant] failed to short-list him for the interview for the post of policy planning officer following his application in October 1999. As the decision not to short-list was communicated to the [Respondent] on 22 February 2000, no issue arises for the purposes of section 68 of the 1976 Act. The provisional comparator is an Asian gentleman by the name of Mr Saeed Ullah;

(iv) whether the [Respondent] was subjected to less favourable treatment upon the grounds of his race by the [Appellant] when they failed to appoint him to the aforementioned post."

8. No point is taken on (i) and (ii). Equally, although Mr Mead criticises the Tribunal for eliding (iii) and (iv), no real point arises on (iv). It is, accordingly, on point (iii) that this appeal turns.

The Law

9. Mr Mead did not criticise the manner in which the Tribunal set out the law, or directed itself as to how the law was to be applied. His complaint was that the Tribunal had not followed the directions it had given itself. Mr Mead referred the Tribunal to a number of the relevant cases, which are set out in paragraph 4 of the Tribunal's Reasons. They are, firstly, the unreported decision of the Employment Appeal Tribunal in Mensah -v-Royal College of Midwives [EAT 427/95], handed down by Mr Justice Mummery (President) (as he then was) in December 1996; secondly, Zafar -v- Glasgow City Council [1998] IRLR 36 HL; thirdly Qureshi -v- London Borough of Newham [1991] IRLR 264 CA; and fourthly Aniagwu -v- London Borough of Hackney [1999] IRLR 303 EAT.
10. The Tribunal also referred in its reasons to the decision of May LJ in North West Thames Health Authority -v- Noone [1988] ICR 813-822, and both Mr Mead and Mr Braganza, for the Respondent, also referred us to King -v- Great Britain-China Centre [1991] IRLR 513, 518." In addition, in his submissions to us, Mr Mead relied upon the judgment of Sedley LJ in Anya -v- University of Oxford [2001] IRLR 377, (a decision, of course, which postdates the Tribunal's Decision in the instant case) in which the proper approach for the Tribunal in cases of race discrimination was set out in the following way:-

"As the industrial tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision e.g.

(a) did the act complained of actually occur? In some cases there will be conflict of direct oral evidence. The tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the Applicant is believed, has he brought his application in time and, if not, is it just and equitable to extend the time?

(b) If the act complained of occurred in time was there a difference in race involving the applicant?

(c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same or not materially different, relevant circumstances?

(d) If there was difference in treatment involving persons of a different race, was the treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent?

In answer to each of these questions the Tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence."

11. In addition, Mr Mead referred us to the decision of the Court of Appeal in Chapman & Another (Appellants) -v- Simon (Respondent) [1994] IRLR 120 in which Balcombe LJ said (at paragraph 33):

"(2) In order to justify a finding of racial discrimination, there must first be a finding of discrimination, ie in the present case that Ms Chapman treated Ms Simon less favourably than she treated some other person - see s.1(1)(a) of the 1976 Act. In relation to their paragraph 9 finding - that Ms Chapman had prejudiced the case against Ms Simon - the Industrial Tribunal made no finding that Ms Chapman had treated Ms Hoyle or some other person more favourably. There was therefore no finding of discrimination on which to base a finding of racial discrimination.

(3) In order to justify an inference, a Tribunal must first make findings of primary fact from which it is legitimate to draw the inference. If there are no such findings, then there can be no inference: what is done can at best be speculation."

12. In the same case, Peter Gibson LJ, put the matter succinctly when he said at paragraph 43:

"Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the Tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the Tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the Tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination, is insufficient without facts being found to support that conclusion."

13. 1n this context, Mr Mead also relied on the decision of the Court of Appeal in Marks & Spencer PLC -v- Martins [1998] ICR 1005 in which the Court emphasised the necessity of the Tribunal asking itself the correct questions under the Act. In that case, instead of asking itself whether the Applicant had been treated less favourably than a person of a different racial group with similar experience and qualification applying for the same job, the Tribunal asked itself whether there had been 'bias' on the part of the interviewers and concluded that there had been. It was, furthermore, a similarly fundamental error by the Tribunal in that case to substitute, for that of the interviewers, its own view of the impression which the Applicant would have made on them had they conducted the interview, based on their own application of the criteria and her performance at the Tribunal,. It followed, that, in concluding that the Applicant had been treated less favourably on racial grounds the Tribunal had made conflicting findings of fact with regard to the conduct of the interviewers which made it impossible to affirm a finding of racial discrimination.
14. Mr Mead submitted, as the grounds of the appeal which we have set out indicate, that in the instant case the Tribunal had fallen into fundamental error by failing to make any finding that the Respondent had been less favourably treated than a person of a different racial group with similar experiences and qualifications applying for the same job. Mr Mead submitted that the Tribunal had to compare like with like. In the instant case, he submitted that the Respondent did not satisfy the criteria for selection for interview for the permanent post of Planning Officer whereas the comparator did. It was, accordingly, not open to the Tribunal to find that there had been less favourable treatment, with the consequence that the inference which the Tribunal subsequently drew of race discrimination was impermissible.

The manner in which the Tribunal directed itself in law

15. The Tribunal set out the relevant sections of the Race Relations Act 1976 namely section 1(1)(a), section 3 and section 4(2). It also set out section 68 of the Act. It then directed itself as follows:

"8 So far as the allegations of race discrimination are concerned, we are required to make findings of primary fact in the face of the evidence before us. The burden of proving facts which are alleged by an applicant lies with that applicant. He or she has to prove those facts on the balance of probabilities. As to whether any discriminatory action shown by the primary facts is taken on racial grounds and is therefore unlawful, the Court of Appeal in King [see above] gave guidance to tribunals as to the correct approach. We remind ourselves that we must look at all the evidence and that the Applicant must show that it is more probable than not that on racial grounds the Respondent treated him less favourably than it treated or would have treated others. Sometimes an applicant will refer to a comparator of another ethnic origin. However, it is permissible for the applicant, in seeking to satisfy the burden of proof, to refer to a hypothetical comparator of another ethnic origin. We must remind ourselves that direct evidence of racial discrimination is rarely available and that evidence will normally be inferences from the primary facts we find. On the basis of those primary facts, we must ask ourselves (a) did the Respondent treat the Applicant less favourably than others, comparing like with like? (b) was there a difference in race? (c) was the difference in treatment on the ground of race?

We remind ourselves that if the answer to (a) and (b) above is yes, then it is common sense to look to the Respondent for an explanation. There is no question of shifting the burden of proof but only the Respondent can explain the reason for its actions. If there is no explanation or the explanation is inadequate or unsatisfactory, the Tribunal should be prepared to infer that the treatment was on grounds of race. However, we take further guidance from the decision of the House of Lords in Zafar [see above] in which the guidance given by Neill LJ in King [above] is approved. However, the House of Lords also went on to point out that simply because there may be no adequate explanation, it does not follow as a matter of course that we should find discrimination on account of race. We have to look critically at the respondent's explanation and not supply our own explanation. We note that it is unpalatable to decide that the treatment was on grounds of race in the face of the respondent's sworn evidence to the contrary. We know that race and sex discrimination does exist and that it is improbable that any respondent will admit it. We have to resolve conflicts of evidence by decision. It is not necessary to show that the respondent was ill-intentioned or prejudiced. The question at the end of the day is, has the applicant shown that it was more probable than not that he was a victim of race discrimination?"

16. We have already indicated, Mr Mead did not criticise the Tribunal's summary of the law: nor do we.

The facts

17. Although the Tribunal's finding that the Appellant racially discriminated against the Respondent in relation to the cessation of his temporary posting is not the subject of an appeal, it is, in our view, nonetheless helpful to examine it in the context of the Tribunal's overall reasoning. In any event, there is a clear factual connection between the two complaints, since it was for the position which the Respondent had held on a temporary basis that he was not selected for interview.
18. In addition, the person responsible for the allocation of Respondent to the short term post was Mr Dilsher Ali, who was employed by the Appellant as Principal Manager of Policy and Planning in the Social Services Department. He it was who removed the Respondent from his temporary post, and he it was who chose the members of the panel responsible both for selecting the candidates to be interviewed for the permanent post, and for conducting the interviews for the post itself. Mr Ali told the Tribunal that because he knew one of the applicants for the permanent post - a Mr Saeed Ullah - who was working alongside the Respondent in the same department (and who, between 1 December 1998 and 1 March 1999 had, like the Respondent, covered the post on a temporary basis) Mr Ali chose to exclude himself as a member of the selecting and interviewing panel for the post. Both Mr Ali and Mr Ullah, who was ultimately the successful candidate for the permanent post, are of Asian-Bengali origin.
19. It is worthwhile bearing in mind when setting out the facts that the Tribunal made it clear that, broadly speaking, they accepted the Respondent's evidence. They found the Respondent to be "an intelligent, sensitive and responsible witness. Much of what he told us we find as fact". By contrast, the Tribunal was not impressed by Mr. Ali's evidence. Mr Mead, for the Appellant did not challenge the Respondent's evidence in any substance. He submitted that the Respondent's complaint stemmed from his "perception" that what had happened to him at the Appellant's hands was discrimination on account of race. The Appellant's case, however, that its conduct could be properly understood in the absence of race discrimination.
20. There was a conflict of evidence between Mr Ali and the Respondent in relation to the temporary post. The Tribunal found (contrary to Mr Ali's evidence) that there was no formal supervision of the Respondent during his occupation of the post. The Respondent said that he had received no written confirmation of supervision sessions, and Mr Ali was unable to produce copies. Mr. Ali said they had all been destroyed in accordance with the Appellant's usual policy after six months. The Tribunal noted, however, that a copy of the Respondent's application for the temporary secondment had been retained, although the Tribunal was unable to determine why.
21. The Respondent's evidence was that in the first week of July 1999 Mr Ali called him into his office. He told the Respondent that there had been developments about the role of the seconded post and insisted the Respondent should not request further details. He said that the Respondent was required to return to the Community Care management post (his former post) on the following Monday. He agreed that the Respondent should be paid for the seconded post until the end of July.
22. There was no written material before the Tribunal to confirm any information or explanation being given to the Respondent for the abrupt cessation of the temporary post, and the Tribunal preferred the evidence of the Respondent that he had in fact received none, to that of Mr Ali. The Respondent had been bewildered and upset. Furthermore, he was not told during July that Mr Ali was considering advertising the post on a permanent basis, although it is quite evident that that was indeed his intention.
23. The Respondent became aware that the post was being advertised and on 20 October 1999 he made his written application. The application document was in identical form to that provided by the Appellant for its temporary post. At the foot of the form appears the following words:

"Candidates selected for interview will be notified within three weeks of closing dates. It is regretted that applicants who do not hear further within the three week period, must conclude that their application has not been successful."

24. The Respondent was not notified within the three week period, and indeed heard nothing concerning the progress of his application, or that he had been shortlisted. After some inquiry, he was told that it was anticipated that the short list would be agreed in December 1999. It was not, however, until 17 January 2000, and in the absence of any information to help him, that the Respondent met Mrs Fiona Greene. She was a Principal Personnel Officer in the Appellant's Directorate of Social Services. She confirmed that the Respondent had not been shortlisted, and that she would let him have details of the reasons for his non-selection.
25. The Respondent wrote to Mrs Greene on 24 January 2000 chasing the information promised to him . It was not, however, until 22 February 2000 that Mrs Greene responded in the following terms:

"As requested I set out below the reasons the panel are unable to short-list you for the above mentioned post:

Failure to demonstrate the following to the panel's satisfaction:

Knowledge of National Health and social care policy developments and implications for social services.

To be able to produce strategic plans in conjunction with senior management, and in consultation with service users and carers.

To be able to initiate a planning strategy that includes an information implementation place, quality standards and monitoring system.

Finally I apologise profusely for the delay in replying to your request and trust that this information is helpful to you with any further application."

26. The Respondent was upset by that response, and took the view that it did not answer his concerns. He felt that he had undertaken the post on a temporary basis to the best of his ability, and without criticism. He had not been criticised by Mr Ali or otherwise, and there had been no formal assessment sessions with him which might have led Mr Ali to another view. Furthermore, he was aware that a number of his colleagues in the Appellant organisation who had undertaken temporary secondment had remained as seconded permanently or on an extended basis. It was, moreover, his view that at least he should have been interviewed for the permanent post which he had occupied on a temporary basis and he believed that it was the Appellant's normal practice to interview people in his position. His suspicions were also fuelled by the fact that Mr Ullah, who had been carrying out some of the functions before the Respondent took over in 1999 was himself selected for interview, and indeed successful in achieving the post.
27. On 21 March 2000, the Respondent sent the Appellant a questionnaire under the provisions of the Race Relations Act 1976. It was subsequently completed by Mrs Greene. The Tribunal described her responses as "unhelpful if not evasive". It made allowance for the fact that Mrs Greene was suffering from staff shortages in her own department and herself had been away on maternity leave. The Tribunal, however, commented:

"Nevertheless and taking those factors into account, we saw no real evidence at all that she made any serious attempt to provide further details as promised by her various questionnaire responses in the fashion that, "I am unable to provide you with this information" and "I am gathering this information"."

28. The Tribunal found that the Respondent frequently pressed and reminded the Appellant for its responses, and did so through his representatives up to and including almost the commencement of the proceedings before the Tribunal. The Tribunal commented that without recording every detail specifically, it found itself:

"unimpressed at the [Appellant's] conduct, both by the scant information in response to the questionnaire and also the statistical information required of it by the [Respondent] for the preparation leading to this hearing."

The selection for the interview process

29. The Tribunal went into this in some detail. Rather than attempt a summary, we set out the Tribunal's findings in full.

"(n) In or about August or September 1999 Mr Ali asked the respondent Personnel Department (in the hands of Fiona Greene) to advertise for the post of policy and planning officer - adults, in a permanent capacity. He advised Personnel that Richard Speller and Gulam Robbani would form the panel to short-list and interview, together with a representative of the Personnel Department. That was to be Fiona Greene.

(o) Mrs Greene told us and we accepted that she met with Richard Speller on 10 December 1999 to consider the various applications.

(p) Mr Robbani (who is a Bengali Asian) was not available to attend that day. She told us that, so far as Mr Robbani was concerned, he attended later and in the absence of Mrs Greene or Mr Speller, to conduct his own selection process. Mrs Greene produced for us the marking sheets used by each of the panel. The marking sheets were completed independently and, it therefore follows, Mrs Greene was only able to explain hers. She completed the score sheet by reference to 25 separate and agreed criteria and in regard to each of seven applicants (including Dr Ogunlokun). Save by implied reference to the surnames of the candidates, we accept Mrs Greene had no direct knowledge of their ethnic origins. She told us how she felt Dr Ogunlokun had failed to demonstrate a sufficient "in depth" knowledge and she had other concerns which she formed, on face value, only from his application form. She knew from that form he had undertaken the post on a temporary basis. Her closure and short-list form (the score sheet) was noticeably different in the Applicant's case than the other six applicants. Almost without exception in the case of the other six applicants, Mrs Greene had marked them with a tick but in the case of Dr Ogunlokun two crosses and a series of question-marks appeared. On Monday 13 December the panel met again to undertake (as a group) the short-listing process and to despatch letters to successful candidates. From the anecdotal evidence before us, it would appear that only four of the seven applicants were selected. Dr Ogunlokun was not amongst them. Although we did not hear evidence from Mr Robbani or Mr Speller, we were taken, by Mrs Greene, to their own marking sheets. Mr Robbani appears to have given Dr Ogunlokun a series of crosses (save in two ticked instances). Mr Speller (in the case of the Applicant) has provided a number of ticks and some markings which, we are told, were changed (after discussion) to crosses. As a result of that the "short list" was created.

(q) We note it appears that Mrs Greene did not keep a written record of how her ticked and question-marked boxes had, in discussion, been converted to a cross. Equally, there is no clear evidence from her of how, if indeed it be the case, questioned boxes became changed to ticks. The successful candidates were interviewed on 20 December save in the case of Dorothy Mukasa, who was interviewed on 17 February having been unable to attend earlier because of illness. Mr Robbani had completed his closure and short-list form (separately a indicated above) in a fashion which, accepted Mrs Greene, might have the potential to be clearly defective. Instead of providing separate indications for each of the 25 categories, Mr Robbani appears to have proceeded at some speed, grouping together categories under one tick or a cross, otherwise than as intended. Mrs Greene was unable to give us any explanation for this deriving from her knowledge of the selection process, or to explain how it became the case that views had changed in discussion, or that there was any proper subsequent cross-check of the short-list markings which was her responsibility on this occasion and in line with the Respondent's equal opportunity procedure. She was unable to give any explanation for the omission which she readily accepted. Likewise, she confirmed she agreed that the input from Mr Robbani was questionable and that her own comments were incomplete, but which she could not now recall individually. Albeit Mrs Greene was cross-examined by Miss Braganza concerning the input in discussion of Mr Robbani and that she assured us she was not "heavily affected" by him, we are unconvinced. She could give us no clear explanation of how her view of the Applicant came to be formed or her earlier doubts confirmed."

The Tribunal's analysis

30. Having concluded, appropriately, that section 68 of the Race Relations Act applied, in the circumstances of the case, to enable the Respondent to rely on the events of June and July 1999 (a passage in the Reasons which provides further criticism of Mr Ali) the Tribunal directed itself that it should look at the totality of the evidence and that it was entitled under section 65 of the Act to draw adverse inferences from the Appellant's refusal to respond (or the paucity of its responses) to a race questionnaire. It divided the Appellant's conduct into two parts. In relation to the first - the peremptory removal from the seconded post - the Tribunal noted that the Respondent had never received any satisfactory explanation or reason for his early removal. He was simply told not to ask. It was clear that he had been treated differently from other temporary secondees, and certainly from Mr Ullah. The Tribunal directed itself, accordingly, that it was entitled to look for a satisfactory explanation of that difference in treatment, and in the absence of such a satisfactory explanation it was open, if the Tribunal deemed it appropriate, to draw inferences. The Tribunal rejected Mr Ali's explanation. It was, accordingly, left with no satisfactory explanation for what happened. The detriment which the Respondent suffered was his early removal from the post and, thereby, the loss of opportunity to prove himself.
31. The Tribunal then went on to consider the second head of complaint, and concluded in relation to both that:

"the only explanation for [Respondent's] treatment in regard to both of his complaints is that he was treated differently on account of his race"

He was, accordingly, discriminated against in relation to the first incident.

32. As we understand it, Mr Mead does not criticise this analysis, insofar as it applies to the first head of complaint. There is no appeal against it, and set against the four criteria identified by Sedley LJ in Anya -v- University of Oxford, there was sufficient evidence to enable the Tribunal, in our judgment, to come to the conclusion that the Appellant's behaviour constituted race discrimination.
33. The Tribunal then turned to the second claim. It recorded that Mrs Greene accepted that parts of the Appellant's equal opportunities policy had been ignored in the Respondent's case, and she was unable to explain to the Tribunal why that was. She frankly admitted that she could not explain the marking system adopted by Mr Robbani. She also recognised that there had been errors in her own assessment.
34. The Tribunal was not persuaded by Mrs Greene's explanation that certain information was passed to "Legal" (we assume the Legal Department of the Appellant) by her and that she did not know what happened to it. The Tribunal described other parts of her evidence as even less helpful. She had been wholly unable to explain why some if not all of her promises in the race questionnaire to provide further particulars were not followed through. That requested detail had never been forthcoming.
35. The Tribunal found that Mrs Greene had not taken her obligations in this case, sufficiently seriously, and that there was no evidence that the Appellant properly took into account its responsibility to the Respondent, either before or indeed after his formal complaint was presented. It commented that the Appellant was fixed with knowledge of a certain ethnic unrest between the Asian and black African communities, although it acknowledged that this information needed to be treated with care.
36. The Tribunal pointed out that Mr Ullah had been the successful candidate at the interview for the permanent post, and that he was of the same ethnic origin as Mr Ali and Mr Robbani. The Tribunal was unpersuaded that Mrs Greene was not influenced by Mr Robbani, and could only conjecture at the events of the selection panel on 13 December.
37. The Tribunal's reasoning concludes with these paragraphs:

"(11 (ii) ………….In applying the analysis we are required to undertake under King, there is clear evidence Dr Ogunlokun was treated differently than, for example, Mr Ullah. He was not afforded an interview (and thereby suffered a detriment) and there was a clear difference of treatment (see above) in his marking for the short-listing process. It is common ground there is a difference of race. Thus, we are required to consider the Respondent's explanation therefore to see whether, on the balance of probabilities, we are satisfied with that explanation. We are also mindful (see the authorities to which we have referred above) that merely because there is the absence of an explanation it does not follow we must reach the conclusion that we are looking at race discrimination. Likewise, the absence of a satisfactory explanation entitles us to draw inferences that the contrary was the case.

For the reasons we have indicated already, we found the Respondent's explanation of the failure to short-list Dr Ogunlokun both inadequate and unsatisfactory. That, even together with its failure to answer satisfactorily the race relations questionnaire or indeed thereafter, leads us, on the balance of probabilities, to the unanimous conclusion that the only explanation for the Applicant's treatment in regard to both of his complaints is that he was treated differently on account of his race. That is race discrimination and we find accordingly."

Mr Mead's criticisms of the Tribunal's reasoning.

38. Mr Mead submitted that there was no finding by the Tribunal that the Respondent had been treated less favourably than Mr Ullah (or indeed any of the other applicants for the permanent post who were not of the same racial origin). The Appellant's case was that the Respondent failed to meet the essential criteria for short-listing the post, unlike the four candidates, including Mr Ullah, who did meet the criteria. If the Respondent did not meet the criteria, he was not entitled to be short-listed, and he had not been less favourably treated on account of his race. The Tribunal was not entitled to draw inferences without making the necessary underlying findings of fact to support those inferences. The absence of any finding that the Respondent had been less favourably treated in the selection process was fatal to the success of the Respondent's claim. Inherent in the process, Mr Mead argued, was the need to make a finding that the Respondent did meet the necessary requirements for the post - alternatively, and more difficult to argue, that another candidate - presumably Mr Ullah - did not meet the essential criteria in like manner to the Respondent.
39. There are, we think, two answers to this submission. The first, energetically argued by Mr Gallivan, for the Respondent, is that the Tribunal did make sufficient findings of fact to warrant the drawing of the appropriate inference. Mr Gallivan extracted from the Tribunal's reasoning nine findings which set out the reasons why the Tribunal rejected the Appellant's explanation for its failure to short-list the Respondent. These were:

(1) the delay in providing the reasons contained in the letter of 22 February 2000;

(2) "the unhelpful if not evasive answer" to the questionnaire under the Race Relations Act;

(3) the Appellant's failure to follow its own equal opportunities policy;

(4) the Appellant's failure to follow its own policy relating to selection of candidates for interview;

(5) noticeable differences in the marking of the Respondent compared to the comparator and the other candidates at the short-listing stage;

(6) the Appellant's failure to explain the marking system adopted by Mr Robbani

(a member of the short-listing panel);

(7) the absence of clear evidence from the one member of the short-listing panel (Mrs Greene) who did give evidence of why her markings had been altered adversely to the Respondent and who admitted errors in relation to her own assessment of the Respondent;

(8) the influence of one member of the short-listing panel (Mr Robbani) who did not give evidence on Mrs Greene;

(9) the fact that the Respondent had previously undertaken the post on a temporary basis with no criticism from his manager.

40. Mr Gallivan argued that these findings were amply sufficient to enable the Tribunal to draw the inference that, in the absence of a satisfactory explanation from the Appellant, its less favourable treatment of the Respondent had been discriminatory.
41. The second argument relied upon by Mr Mead focused on a paragraph from the Tribunal's Reasons which we have already set out, but which for ease of reference we will repeat:

"In applying the analysis we are required to undertake under King, there is clear evidence Dr Ogunlokun was treated differently than, for example, Mr Ullah. He was not afforded an interview (and thereby suffered a detriment) and there was a clear difference of treatment (see above) in his marking for the short-listing process. It is common ground there is a difference of race. Thus, we are required to consider the Respondent's explanation therefore to see whether, on the balance of probabilities, we are satisfied with that explanation"

42. Mr Mead seized on the phrase "a clear difference of treatment" in relation to the marking for the short-listing process. He submitted, quite correctly, that difference of treatment is the wrong test. The test is "less favourable treatment" and he refers back to Anya -v- University of Oxford; Marks & Spencer PLC -v- Martins and London Underground Ltd -v- Nagarajan. He argued that if the reason for failing to select for interview was due to a lack of fulfilment of the central criteria, then there was no difference of treatment with Mr Ullah. On the other hand, if there was no difference in assessing the capabilities of the Applicant and the other candidates, then the Tribunal should have made a finding to that effect.
43. Mr Gallivan's answer to this argument was twofold. Firstly, he said that the Tribunal had earlier directed itself correctly in relation to less favourable treatment, and it is not to be thought that in a paragraph which refers to the case of King the Tribunal would have forgotten its own directions. Secondly, he argued that to adopt Mr Mead's approach is to pore impermissibly over the Tribunal's reasoning rather than reading it in a benevolent and constructive spirit.
44. We have come to the conclusion that Mr Gallivan's submissions are to be preferred. In our judgment, the Tribunal's Reasons must be read as a whole. Whilst, as sometimes happens, the EAT might have preferred the Tribunal to martial its findings in a different order, we are in no doubt at all that the Tribunal made adequate findings of fact (including findings that the Respondent had been less favourably treated than Mr Ullah) upon which it could properly infer that the Appellant had been guilty of race discrimination against the Respondent. We adopt Mr Gallivan's analysis of the nine essential findings, and we do not read the paragraph in the Reasons attacked by Mr Mead as failing to make a finding of less favourable treatment. Whilst the words may not be in the same order, the plain meaning of the paragraph is that the differential treatment between the Respondent and Mr Ullah was less favourable to the former with the result that the Respondent was not called for an interview. In the context, it seems to us that the word "differently" includes the concept of "less favourably" - not least because that is what is being described and the words themselves that appear in a sentence which refers to the analysis which is required in the case of King. It would, in our judgment, be pedantic in the extreme if we were to take one sentence from the Decision and subject it to a rigorous literary analysis. The sentence must be seen in the context of the whole.
45. Furthermore, Mr Mead's argument that less favourable treatment was not demonstrated because the Respondent did not satisfy the criteria for selection for interview whereas Mr Ullah did is, with respect, circular. The reason the Respondent failed to meet the interview criteria was the unsatisfactory selection process which marked him down in a way the Appellant could not explain. In these circumstances, it would seem to us quite unjust to allow the Appellant to rely on a defective – and discriminatory - process as a basis for defending what was plainly less favourable treatment.
46. Mr Mead also advanced arguments relating to the Tribunal's error in eliding the short-listing process (which was the subject of a complaint, and which resulted in the loss of a chance of appointment) with the appointment process itself (which was not the subject of the Respondent's complaint) and which did not involve a loss of a chance.
47. Whilst there may be substance in this point, it seems to us that it goes to remedy not to merit. The Tribunal was plainly entitled to find, in our view, that there was race discrimination in the process of selection for interview. That is as far as the finding goes. The fact that the Tribunal may have referred to the selection for appointment does not, in our view, vitiate its essential finding.
48. Mr Mead also makes the point that as there were other candidates (including one black African woman) it could not automatically be said that any less favourable treatment on short-listing was by virtue of the Respondent's race. The Tribunal was, accordingly, wrong to focus on the ultimate success of Mr Ullah, and failed to assess, at the state of short-listing, whether there was any difference in race between those who were short-listed and those who were not short-listed including the Respondent.
49. We do not think there is anything in this point. The Respondent was entitled to take Mr Ullah as his comparator. Had all the other candidates for the interview process been black African, the point might have some validity. In the event, Mr Ullah was of Indian/Asian origin, and the Respondent was entitled, in our judgment, to treat him as the comparator.
50. For all these reasons, we take the view that the Tribunal reached the correct decision and the appeal will be dismissed.