United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr J Davies, Queen's Counsel Instructed by- Messrs Hudgell & Partners Solicitors 35/36 Market Street Woolwich LONDON SE18 6QP
For the Respondents	Miss A Carmichael, Advocate Instructed by- Messrs Anderson Strathern WS Solicitors 48 Castle Street EDINBURGH EH2 3LX


 


LORD JOHNSTON:

1. This is an appeal at the instance of the applicant against a finding of the Employment Tribunal sitting in Edinburgh that he had not been discriminated against by the respondents in respect of both the Sex Discrimination Act 1975 and the Race Relations Act 1976, in the context of not being shortlisted for an application by him for a post with the respondent University.
2. The Tribunal hearing lasted for a total of 7 days and, eventually, extended reasons running to some 43 pages were produced, dismissing the claims in both respects.
3. Having regard to the way in which the case was presented to us in a very able argument by Counsel, we need not rehearse large parts of the Tribunal's findings.
4. The first issue, however, that was raised by Counsel, related to the findings that the Tribunal made as to the respective credibility of the applicant on the one hand and the respondent's witnesses on the other. In this respect, the Tribunal findings that matter are as follows:-

"The Tribunal regretted that it was unable to accept either the applicant or his witness Mr Deman as entirely credible or reliable witnesses. The applicant very much saw these events from his own perspective, possibly coloured by his previous experience, which did not always appear to the Tribunal to be objectively based, and was on occasion inherently improbable. In addition his credibility was regrettably tainted by the Tribunal's view of his presentation of the evidence and reports purporting to be from his witness Mr Deman and his brother, Mr Philip Titterington. Despite warnings from the Chairman, a great deal of Mr Deman's evidence appeared simply to be words put into his mouth by the applicant, illustrated vividly by the reports he purported to produce (referred to in detail at pages 26-28 below).

In contrast the evidence of the respondent's witnesses, which was subjected to intense, minute and repetitive (and excessively lengthy) cross-examination by the applicant, appeared to be generally credible and reliable, particularly as they made major concessions to the applicant on the shortlisting process in that cross-examination: this was despite contradictory recollections on some aspects, which in the Tribunal's view emphasised their credibility, rather than detracting from it."

5. Mr Davies, Q.C., submitted, in the context of the well known case of Anya v University of Oxford & Anor [2001] ICR 847, that the Tribunal had too heavily relied upon issues of credibility and had not proceeded to analyse their findings in that respect by reference to external evidence such as was desiderated by the Court of Appeal in Anya, and, further enunciated by the EAT in Bhaduri v Doncaster MBC 30/4/02 EAT. The problem was compounded, it was submitted, by the fact that an examination of other findings made by the Tribunal as to the evidence of the various respondents' witnesses, including contradictions and concessions, greatly undermined the findings of credibility that were actually made. In essence, the submission was, that the Tribunal had misdirected itself by relying effectively, and, it was submitted, almost entirely, on issues of credibility which were not justified upon the evidence.
6. Miss Carmichael, appearing for the respondents, submitted that, taken over all, the credibility issue was simply the substratum of the major decisions taken by the Tribunal and was within the confines of the decision-making power of the Tribunal which had heard witnesses and should not be upset in that context. She referred in this respect to Noone v North West Thames Regional Health Authority [1988] IRLR 195. Where there were contradictions or concessions, this, it was submitted, enhanced rather than detracted from the findings of credibility as militating against any form of orchestrated story being concocted or manipulated.
7. While we recognise the force of the submission made by Mr Davies in relation to the substance of the findings of credibility, we do not consider that it falls into the trap created by Anya, but more conforms to the lines of the approach taken by the EAT in Bhaduri. In this respect we simply adopt what is said on page 7 of that decision in paragraph 17(2) as applying in principle to this case.
8. The next substantive ground of appeal related to the Tribunal's approach to what is now section 63A of the Sex Discrimination Act 1975 which provides:-

"63A - (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act."

9. The specific findings of the Tribunal in this respect are on page 38 as follows:-

"While the Tribunal accepted that the procedure in the shortlisting process was not carried out as it ought to have been according to the University's own Guidance Notes, even when the applicant met the essential and desirable requirements of the Person Specification and was more experienced and qualified than the other candidates, it did not consider that that constituted a prima facie case simply because 2 of the shortlisted candidates were women, given that 3 men were also included in the shortlist. The Tribunal found in this case that the respondents had produced an adequate explanation of why each assessor had not chosen the applicant and had chosen the other 5 candidates on the shortlist. Their specific reasons varied and are detailed in the primary facts, but there was a common thread running through them: that from the applicant's CV they perceived him as being a marketing/business strategy generalist, rather than the marketing specialist they were looking for; and that to some extent they perceived that he was in fact over-qualified for this basic level post. None of the reasons were related to the gender or sex of either him or the 2 female candidates.

There was thus a non sex-discriminatory explanation for the treatment of the applicant by the failure to shortlist him.

The Tribunal therefore considered that, from the facts proved, it could not conclude in terms of section 63A(2) that, in the absence of an adequate explanation, the respondents in failing to shortlist the applicant, and so subjecting him to a detriment, had done so on the grounds of his sex and in doing so treated him less favourably than it would have treated a woman in similar circumstances. Thus the respondents had not, in terms of section 63A(2), committed an act of unlawful discrimination against the applicant: therefore the Tribunal did not uphold the applicant's complaint in terms of section 63A(2)."

10. The substance of Mr Davies' submissions in this respect was that the Tribunal had misdirected itself by looking at the question of explanation in the context of whether a prima facie case had been made out for sex discrimination. They have thus not properly applied the test which the burden of proof regulations required as encapsulated in the new section.
11. We can deal with this point quite shortly. As Miss Carmichael said, the language used by the Tribunal is not happily expressed and might well be taken as implying or, indeed, expressing, a position which conflated the issue of explanation with that of prima facie case. However, looking at the matter across the board, we are satisfied that the Tribunal concluded that explanations had been put forward in the context of their findings of credibility, by the respondents which negative any question of sex or race. That was a decision that they were entitled to reach and could reach in the terms of the section even if they had in form taken the slightly wrong route.
12. In these circumstances we do not think that this ground of appeal has any substance.
13. The third question that was raised by Mr Davies was in relation to the question of whether there was a causal connection between the less favourable treatment and the detriment which they had found established and any issue of sex or race.
14. In this respect the Tribunal's findings are on page 41 and onwards as follows:-

"After careful consideration the Tribunal decided that the important critical factor and the activating, effective and operating cause of the applicant not being shortlisted, and hence not being employed, was not his sex nor his race. The Tribunal found that the real principal reason, important critical factor and the activating, effective and operating cause for that treatment of the applicant was that the respondents did not consider that he was sufficiently specialised in marketing for this post (due at least to a degree to his marketing experience not being drawn to their attention sufficiently clearly) and also to some extent believed that he was in broad terms overqualified. So the arrangements which the respondents made did not operate against the applicant in a manner which was discriminatory on grounds of his sex or on racial grounds.

From all the facts the Tribunal found, it considered carefully whether it was legitimate to infer that the treatment of the applicant was on grounds of sex or race, given the differences in sex and race between the applicant and Candidates B and D. But applying common sense and judgment and assessing the probabilities, the Tribunal did not draw any such inferences.

Indeed apart from the inferences which the applicant and his witness drew and perceived from his non-selection for the shortlist and his comparison of the CVs, and of course the difference in sex and race between him and the female 2 candidates, there was essentially no acceptable evidence at all that the applicant's sex or race had anything to do with the matter. The respondents had acceptable reasons for shortlisting Candidate B (her good commercial experience) and Candidate D (her commercial experience and organisational record on the basic marketing module); and the other 3 shortlisted candidates were male and of different races to the 2 female candidates. There was insufficient evidence that the University's attempts to redress gender imbalance in its staff had any bearing at all on the selection for shortlisting, as the Tribunal accepted the denials of that by the respondents' witnesses, not that the 3 recent female appointments indicated some kind of policy of that nature. The operating cause was not the applicant's sex or race.

Although the absence or unsatisfactory state of some documentary records might perhaps have given rise to the possibility of an inference that there was some kind of cover up and that the applicant suffered sex or race discrimination in not being shortlisted, the Tribunal accepted the evidence of the respondents' witnesses that that was not the case and that it had not been established, so that there was not material from which the Tribunal could or did draw any such inference. The Tribunal did not accept that any adverse inference could be drawn from the failure of the respondents to make voluntary disclosure of all the documents the applicant sought from them.

The Tribunal considered that in this case the respondents' arrangements had no real bearing on the issues of sex or race discrimination. Some of the respondents' actions may have been open to misinterpretation, or unwise, but there was no link with sex or race for them to found an allegation of sex or race discrimination.

Nor was the allegation of the respondents having known about the applicant's previous discrimination claims and support for Mr Deman in his discrimination claims, or learned about them from academic colleagues at other universities established. Once again the Tribunal accepted the denials by the respondents' witnesses that they knew of these matters, far less took them into account in shortlisting. The Tribunal found these allegations were not established and so they cannot found nor add weight to the claims of race discrimination.

This was thus not a case where the applicant's sex or race gave rise to inferences of discrimination, or even unconscious or subconscious discrimination: the respondents had adequate and acceptable reasons and explanation for not shortlisting him.

Therefore to summarise, the Tribunal accepted the explanation put forward by the respondents and on the balance of probabilites found that the respondents' action in doing so did not amount to direct sex or race discrimination, because the operating cause of the applicant not being shortlisted was that the respondents did not consider that he was sufficiently specialised in marketing for this post and also believed that he was in broad terms overqualified; and the operating cause was not the sex or race or the applicant.

The Tribunal thus found on this basis that it was not established on the evidence on the balance of probabilities that the applicant (a) suffered sex discrimination at the hands of the respondent as, in terms of section 1(1)(a) of the 1975 Act, he was not treated less favourably on the ground of his sex than a woman with whom his position fell to be compared would have been treated; or (b) suffered sex discrimination at the hands of the respondent as, in terms of section 1(1)(a) of the 1976 Act, he was not treated less favourably on racial grounds than a person with whom his position fell to be compared would have been treated."

15. Here, Mr Davies' essential submission, was that the Tribunal had applied the wrong test by referring to "the" cause by the various phrases they used. He referred us to Seide v Gillette Industries Ltd [1980] IRLR 427 as an example of how the Tribunal should approach the matter in determining whether the issue of sex or race was simply a cause in the overall pattern which surrounded what was then established to be less favourable treatment to the applicant's detriment. Thus, it was submitted, the Tribunal had set itself too high a standard, excluding from its consideration the lesser question of whether as part of the matrix, sex or race or both could have been a cause of the less favourable treatment.
16. In this respect we find much force in this submission but have come with some hesitation to the view that, taken across the board, despite the phraseology used, the proper understanding of the Tribunal's approach is that they have specifically excluded sex and race as being any part of the causation process. While, therefore, they may have expressed the matter on the basis of too high a test, effectively, they have addressed the issue of whether sex or race played any part in the issue and rejected it, both consciously and unconsciously.
17. That being so, we do not consider that we are bound to interfere with the decision in this respect, although it could have been more happily expressed. In essence, at the end of the day, we consider the Tribunal excluded sex and race as a matter of evidential conclusion from the whole process and that was a conclusion we consider they were entitled to reach, in substance, however they have expressed it.
18. Finally, Mr Davies suggested, fairly faintly, that, on any view of the matter, irrespective of the other grounds of appeal, the decision was perverse. Suffice it to say that we do not consider this can arise in this case, that the reasons given are elaborate and, although at times contradictory, do not remotely approach the test that the various cases in that context require to be met. We consider, all other things being equal, the Tribunal reached a conclusion it was entitled to reach, and, certainly, we cannot categorise it as a decision which no Tribunal reasonably instructed could not achieve.
19. In these circumstances and for these reasons this appeal is dismissed.