United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mr B Napier, Queen's Counsel Instructed by- Messrs Pinsent Curtis Biddle Solicitors 1 Park Row LEEDS LS1 5AB
For the Respondent	Mr A McPherson, Solicitor Of- Messrs Drummond Miller Solicitors 65 Bath Street GLASGOW G2 2DD

SUMMARY
SEX DISCRIMINATION

Selection for promotion – alleged sexual discrimination


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding of the Employment Tribunal that they had discriminated on grounds of sex against the respondent employee by denying her access to a scheme for trainee drivers run by the appellants. The principal complaint by the respondent was that she had been passed over twice.
2. Successful candidates who wished to train as drivers were admitted to a training course run by the company which lasted 12 months. Only after this was successfully completed could the persons become qualified to drive trains, and, accordingly, the complaint made by the respondent was she had not been given the opportunity to train.
3. The process involved, initially, an assessment without interview, thereafter, an interview/assessment, and, finally, the leading candidates were subjected to a psychological psychometric assessment process which was conducted by a third party. Passing the latter at a certain grade was an essential prerequisite to going on the course but the qualification to go on the second process depended upon a successful interview.
4. The Tribunal find that a female emerged as the best candidate at the end of the personal interviews, 20 male candidates being placed behind her. The respondent was approximately in the middle of the block.
5. The Tribunal made considerable criticisms of the appellants' procedures. It criticised the policy of using interview performance as the leading criterion for selection on grounds that it led to queries about consistency. It did not accept that performance at interview was indicative of good performance as a train driver. It was also recognised that there should have been proper feedback as a result of the process and job re-advertisements.
6. While we consider there is considerable force in these criticisms, it must be stated at once, that they do not in themselves yield any inference of discrimination rather than mere incompetence or inadequacies. All persons of either sex were subject to the system and treated in this respect in the same way.
7. Having rehearsed the law, the Tribunal considered whether or not the applicant had established a prima facie case and gave the following reasons in this respect for so finding:-

"The Tribunal's reasons for considering that her treatment amounted to discrimination were:

The difference in sex between the applicant and the 4 successful candidates.

She obtained a Grade 1 pass as Suitable in the psychometric test for a driver, whereas 3 of the men appointed obtained lesser Grade 2 passes as Suitable with reservations.

The respondent's failure to reflect the grade of pass achieved by candidates in the independent industry standard psychometric test in its final decision, which would have provided a more objective basis for the final decision.

The prejudiced position of the Driver Team Managers who conducted the 5 interviews against having women as drivers, exemplified by the prejudiced and completely inappropriate remarks Mr Lawson made to the applicant when she sought informal feedback.

The small number of women in driver's positions throughout the respondent; but even more tellingly the complete absence of women as drivers with the respondent in Scotland.

Mr Stewart's evidence that it would be an 'achievement' to appoint a woman driver in Scotland, carrying with it some inference that it was difficult to do so.

The apparent reluctance, from Driver Team Managers to the HR and Production Directors, to give the applicant prompt feedback, and the contradictory accounts of how she had done at the interview, giving the impression that the respondent was wishing to avoid doing so or had something to hide.

All these factors called for an explanation from the respondent, but there was basically no satisfactory explanation:

The explanation put forward by the respondent was essentially that for operational reasons the candidates selected to become Trainee Train Drivers were those who had passed the psychometric test and who had obtained the highest scores at the personal interview (carried out by Driver Team Managers who knew who would make good drivers); the determining factor being their personal interview scores; and that out of the candidates who had passed the assessment centre, the applicant was lowest with 7th = in respect of her personal interview score, so did not reach selection; the vacancies were given to male candidates who had higher personal interview scores, which was the distinguishing factor; and that in August 2001 very little time had passed and the previous interview scores were used to select the 2 further Trainee Train Drivers.

In relation to the lack of distinction between grades of pass in the psychometric test, Ms Stelfox said that it was universal among train operating companies to accept either a Grade 1 or a Grade 2 pass, although that is of course different from not drawing a distinction between the 2 grades during selection. There was some anecdotal, unspecified evidence from Ms Stelfox that there had been 2 recent incidents involving trainee drivers with a Grade 1 pass, but the Tribunal considered that was insufficient to provide an adequate explanation. Ms Stelfox also gave evidence that "once the train starts you can't tell who got a level 1 or a level 2", which appeared to the Tribunal virtually to amount to a denial of the value of any grading in the psychometric tests and to epitomise the respondent's whole approach to the psychometric tests.

There was also the explanation by way of all the evidence about the applicant's interview and her performance at it, but although structured, the interview results were very subjective; and the Tribunal did not have the benefit of the evidence of Ms Stronach, the woman who took part in the interview of the applicant.

While the Tribunal realised that the reason for the absence of women as drivers may be historical, that dated back to the age of steam trains, which has long since passed and does not in the present day provide a rational non-discriminatory explanation for the absence in Scotland of women as train drivers and small numbers of them throughout the respondent.

The Tribunal did not consider that there was any satisfactory explanation for the absence of proper and prompt feedback to the applicant on her application.

The Tribunal did not consider that the absence of an adequate explanation was put right because Mrs Houston might or would have been selected by the respondent if she had passed the psychometric test. It was obviously a factor which the Tribunal took into account, but it did not consider it negatived the very strong conclusions from all

that other evidence. Even if Mrs Houston had achieved a Grade 1 or 2 pass and had been appointed, that would not necessarily have prevented there being sex discrimination against the applicant at the same time, albeit it might have been more difficult to establish: the test is whether the applicant has been discriminated against on the ground of her sex or gender, not the treatment of some other candidate. Although the respondent pointed to the fact that Mrs Houston had come top of the interview process as negativing any such conclusions, and the Tribunal certainly took that evidence into account, in the event Mrs Houston could not be selected because she failed the psychometric test, so that situation was not taken to its conclusion and the evidence is incomplete or partial. Inevitably however, as already mentioned, the failure in the psychometric test of the candidate who was top in the interviews has to cast further doubt on the objectivity of the interviews in relation to the job of Train Driver. The issue before the Tribunal in this case is whether the applicant was discriminated against, not any issue about whether there may or may not have been discrimination against Mrs Houston.

Therefore to summarise, the Tribunal was unable to accept the explanation put forward by the respondent and on the balance of probabilities was unable to find that there were adequate explanations for the applicant's non-selection, so found that its action in not selecting the applicant amounted to direct sex discrimination, because the operating cause of the applicant not being selected was her sex or gender.

The Tribunal therefore found facts proved from which it considered it could conclude, in the absence of an adequate explanation, that the respondent had subjected the applicant to a detriment by not selecting her; and in doing so treated her less favourably than it treated men in similar circumstances; had done so on the ground's of the applicant's sex; and thus had committed an act of unlawful discrimination against her. Therefore in terms of section 63A(2) the Tribunal has to uphold the applicant's complaint unless the respondent proves that it did not commit that act or was not to be treated as having committed it or provides an adequate explanation. In this case on the facts found established there was no doubt that the respondent had committed the relevant acts. As has been found above, in the view of the Tribunal the explanations put forward by the respondent did not provide an adequate and non sex-discriminatory explanation for the relevant acts.

The Tribunal thus found that in terms of section 63A(2) the applicant had proved facts from which it could conclude, there being an absence of an adequate explanation, that the respondent had committed acts of unlawful discrimination against her; and so it upheld the applicants complaint of sex discrimination."

8. It is also to be noted that the Tribunal formed a very unfavourable impression of the appellants' witnesses and it particularly did not believe them when it was asserted that the other female, Mrs Houston, would have been appointed as a driver had she passed the test. She in fact failed the psychometric test but was the leader after the interview process. The Tribunal also adversely commented on various unsatisfactory comments made by the witnesses.
9. The substance of the submission by Mr Napier, was that the decision was perverse, inasmuch, that the Tribunal had reached an assessment of credibility and reliability of the relevant witnesses in the negative, but, then, immediately sought to draw the positive of discrimination, principally from that fact and the inadequacies of the employer's procedures as they found them to exist. However, Mr Napier also emphasised that the scheme of things suggested a policy of discrimination on a direct basis and this was immediately negatived by the fact that whatever be the credibility of the assertion that Mrs Houston would have been appointed, the fact of the matter was that she came top of the list after interview and that was not consistent with any policy of discrimination being directly imposed by the employer, who would be bound to mark her down if such a policy existed.
10. Mr McPherson, appearing for the respondent, submitted that the Tribunal had properly weighed up the evidence before it and reached a conclusion that it was entitled to achieve, based upon the evidence and inferences they were entitled to draw. He accepted that a negative finding could not become a positive finding automatically but he submitted that was not what the Tribunal had done.
11. With that last proposition we do not agree. It seems to us very clear that the Tribunal formed a view as to the attitude of the employer, largely on the way the evidence was given, rather than on its substance, and, thereafter, made a positive finding as a direct result of their negative view of the credibility and reliability of the witnesses evidence. They also appear to have been influenced by the inadequacies in the procedure.
12. We do not approve or support much of the procedure that was carried out, both in reference to the reliance in interview, and the lack of feedback and the lack of re-advertisement, and, we consider that such factors might have been relevant, if not conclusive, to a case of indirect discrimination but that case is not made. The respondent periled her case before the Tribunal on direct discrimination.
13. In our opinion, the evidence does not support such a conclusion, nor, was, in our view, the Tribunal entitled to draw the inference it did from the negative findings that it made. The substance of Mr Napier's position is, in our view, correct.
14. The question remains as to whether the matter has to be reheard but we consider on the evidence that the Tribunal states that there are no grounds for concluding that there was a policy of direct discrimination, if, for no other reason, because of what happened to Mrs Houston after the interview process. In these circumstances this is one of the rare cases where we consider that the Tribunal's findings are perverse, but, equally, the facts suggest that no reasonable Tribunal could have achieved that result. That being so it is open to us to overturn the decision and quash the order of discrimination.
15. This appeal is accordingly allowed and the finding of the Tribunal will be quashed.