United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DECLAN O'DEMPSEY (of Counsel) Instructed by: Messrs Tucker Turner Kingsley Wood Solicitors 18 Bedford Row London WC1R 4EB
For the Respondent	MS TESS GILL (Of Counsel) Instructed by: Eversheds LLP Senator House 85 Queen Victoria Street London EC4V 4JL


 


THE HONOURABLE MR JUSTICE HOOPER

1. Barnfield College appeals from the decision from the Employment Tribunal held at Bradford that Ms Arnold was unlawfully discriminated against on the grounds of her race within the meaning of section (1)(A) of the Race Relations Act 1976. Ms Arnold also appeals against another part of the decision of the same Tribunal. Her appeal relates to a finding that she was not unfairly constructively dismissed.

2. The hearing took place over four days in October 2002 and the decision was promulgated on the 20 September 2002. In so far as the appeal by Ms Arnold is concerned, the Employment Appeal Tribunal subsequently directed the Employment Tribunal to give additional reasons for its conclusion. Those additional reasons were promulgated on the 19^th June 2003.

3. The matter was listed before us for one day. We invited counsel to argue first the appeal brought by Barnfield College. At the conclusion of that hearing we announced the unanimous decision of the tribunal that the appeal by Barnfield College should be allowed. We also said that we had not yet decided whether the matter should be remitted to a different constituted tribunal or whether we would dismiss the application brought by Ms Arnold. Following that indication and given that our findings could have a significant impact on Ms Arnold's appeal, it was agreed that this judgment would be handed down and that thereafter this tribunal would reconstitute itself (if able to do so) in order to hear Ms Arnold's appeal if necessary.

4. We heard brief submissions from Ms Gill to the effect that the additional reasons ought to be ignored in that the Employment Appeal Tribunal had no jurisdiction to require additional reasons to be given and the Employment Tribunal had no jurisdiction to give them. We heard the arguments. It was not necessary to resolve the jurisdictional issue although we note that is it now established practice for which there is authority both in the EAT and in the Court of Appeal.

5. In early 1999 a Mrs Lorraine Winslade resigned her post at the college as Programme Area Leader in the Beauty and Sports Therapy department of the college. The post was advertised internally and the announcement stated:

"We seek to appoint an individual to the above post from 26 April 1999 to manage the programme area for one term in the first instance" (i.e. until September 1999)."

6. The Programme Area Leader occupies a managerial position with, in practice, very little if any teaching. According to the job description, the function of the Leader was:

"to lead, manage and further develop the programme area thereby ensuring that all students are offered a quality of provision which maximises their opportunities to achieve their vocational and personal goals. The leader would have line management responsibility for the college staff attached to the programme area".

7. Under the heading "Principal Accountabilities" there were 15 numbered paragraphs. The first paragraph stated:

"To determine the overall direction and strategic purpose of the programme area in line with the College Vision 2005 and in response to the requirements of the community and local industry."

8. We were told in the course of argument that the Leader's task was not only to manage "for one term in the first instance" 2003 but also prepare the necessary plans for the academic year 2003 -2004.

9. Paragraphs 2 and 3 stated:

"To formulate and monitor an implementation strategy which ensures that the programme area achieved its purpose.

To appoint, advise, report and supervise programme area staff so that they are able to take responsibility for and deliver course provision to all area."

10. Paragraph 4 referred to appraising, training and observing staff. Paragraph 5 referred to the promotion internally and externally of the programme. Paragraph 7 referred to ensuring within the limits of the college budget the necessary human and physical resources being in place. Paragraph 8 referred to researching and developing curricula initiatives to ensure the long-term survival and success of the programme area. Paragraph 9 referred to monitoring, evaluating and reviewing. Paragraph 10 referred to tutoring duties "as negotiated with the line manager". Paragraph 11 spoke of liaison with external agencies etc. Paragraph 12 referred to the programme area budget and the need to control it and paragraph 13 referred to reviewing the Colleges' strategic direction etc.

11. There were two candidates for the post Ms Arnold and Mrs Uzma Akhtar. Ms Arnold is white and Mrs Akhtar is of Pakistani origin. Mrs Akhtar had been employed since 1995 and Ms Arnold since 1993. Both were full time lecturers and course team leaders, Ms Arnold for holistic therapy and Mrs Akhtar for beauty therapy. Both candidates were called for interview. There was no shortlist process. The failure to carry out such a process was criticised by the Employment Tribunal in terms to which we refer later. Ms Arnold in her pleaded case had not relied upon any shortcomings in that process but the matter arose during the course of evidence.

12. The interview panel consisted of four persons: Patricia Clarke, the personnel manager; Fintan Donohue, Vice Principal of Barnfield College and Paul Taylor then Training and Development Officer for the Methodist Church and formerly a programme area leader for the department of Hotel and Catering Studies. That was an equivalent post but in a different discipline to that for which Ms Arnold and Mrs Akhtar were applying. The fourth member of the panel was Alan Euinton, Site Principal. The panel chose Mrs Akhtar in preference to Ms Arnold. It is Ms Arnold's case that there was, on the part of the panel and members of the panel "unconscious discrimination" against Ms Arnold as a white person. It was submitted that this "unconscious discrimination" came from a desire on the part of the college to improve the proportion of academic staff from the ethnic minorities.

13. Following the appointment of Mrs Akhtar, Mr Arnold wrote a letter to Mr Newington. He stated that the panel decision was incomprehensible, that the morale of the staff has been badly affected, that nine callers had stated that they were flabbergasted at the apparent ineptitude of the decision, that "virtually everybody throughout the College that that Wendy deserved the post and virtually all wanted her to get it". He continued: "Practically no one thought that Uzma deserved the post and practically no one else thought she would get it". He then sets out his views on the comparative experience of the two candidates, making adverse comments about Mrs Akhtar. He wrote that his wife would like feedback and asked whether the matter could be reconsidered and whether it was a matter for the grievance procedure. The letter continued:

"I can be forgiven for thinking that there maybe some points being scored here on 'equal opportunities' I would remind you that the emphasis should be on 'equal', positive discrimination is still illegal in this country."

14. Mr Donohue responded to that letter commenting on, and in part rejecting, what Mr Arnold had written. Mr Newington gave Ms Arnold the requested feedback (page 78). Mr Newington wrote that it was a very difficult meeting "as Wendy is very bitter" and that she was highly critical of the decision of the Panel.

15. Ms Arnold was told that her response to questions during the interview showed a lack of emphasis on management strategy and philosophy, that she showed a lack of vision, that she appeared not to have an understanding of the job and of the requirements and expectations, that she had not identified issues and thought them through particularly relating to the change of role and that she had shown no alertness to financial matters. Although she had mentioned that she was an external verifier for sport programmes, she had given the impression that her main interests were holistic and their future development. She showed no hunger for the post and her performance at interview was more like someone applying for "a lecturer two post rather than a head of department".

16.

17.

18. In essence, that remained the College's position throughout the subsequent proceedings.

19. Following further correspondence from Ms Arnold, the College asked a Mr Scribbins to investigate the grievance and he reported on the 10 August 1999 (page 122). Mr Scribbins interviewed all members of the panel. He found that the panel was properly chaired, that equivalent questions were put to the candidates and appropriate selection criteria adopted. He said no inappropriate questions were put to the candidates. In paragraph 13 he wrote:

"All the panel members saw the difference between the candidates in the same way, Ms Arnold had deeper and more extensive experience and Ms Akhtar had more vision about change needed in the programme area. All members of the panel thought that both candidates were suitable for job and could carry out the required duties. Hence the issue they faced was whether or not one of the candidates performed (according to the criteria the panel adopted) better in the interview and offered a more attractive recipe for the short term future of the programme area. The investigation shows that initially the personnel manager (Ms Patricia Clarke) felt that Ms Arnold deeper experience outweighed other considerations [she gave evidence to the same effect before the Employment Tribunal]. However, through discussion a unanimous view emerged that:

Both candidates could do the job and were suitable for it.

Ms Akhtar's performance on the day, excelled over Ms Arnold's.

Ms Akhtar offered a deeper perspective about the short-term future of the programme area."

20. In paragraph 14 Mr Scribbins wrote that the investigations showed that the Panel was aware that their decision "could be greeted with some surprise in the College" and with personal disappointment for Ms Arnold.

21. Mr Scribbins concluded in paragraph 17 that the investigation did not support Ms Arnold's view that the panel had acted unfairly and unreasonably and without due diligence:

"On the contrary the conclusions are:

A proper and fair procedure was adopted.

The Panel was properly chaired, adopted selection criteria, judged the candidates both to be suitable but felt that one better merited the appointment because-

- she performed better in response to the panel's questions

– she had a better vision of the programme area's short term future.

The Panel exercised judgment and pondered the judgment of the decision it was making".

22. In paragraph 18 Mr Scribbins wrote:

"For the Panel not to have selected Ms Akhtar would have breached three important human resource principles. First, the selection criteria used must be applied scrupulously and fairly. Second, the candidate judged to perform best 'on the day' should be appointed. Amongst other reasons, this is a crucial aspect of equal opportunities procedures. Third, a Panel should consider the wide consequences of its decision but should not be inhibited from appointing whoever appears to best meet the criteria."

23. In paragraph 19 Mr Scribbins wrote:

"The evidence points to the fact that these fundamental principles were adhered to and that the Panel's operations were procedurally correct, compliant with College policy and based on reason and judgment."

24. That report was before the Tribunal and indeed was relied upon for one point by Mr O'Dempsey during the course of argument before us.

25. We turn to the decision of the Employment Tribunal. There is no dispute that the Tribunal, in the following passage, set out the appropriate provisions of the Act and the well-known and authoritative guidance from King v. The Great Britain-China Centre [1991] IRLR 513:

"Race Relations Act 1976

Section 1(1)(a) a person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if on racial grounds he or she treats that other less favourably than she treats or would treat other persons.

Section 4(2) (b) it is unlawful for a person in the case of a person employed by him at an establishment in Great Britain to discriminate against that employee in the way he affords his access to opportunities from promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them.

The following principles and guidance can be extracted from the relevant authority:

It is the Applicant who complains of racial discrimination to make out his or her case, thus if the Applicant does not prove the case on the probabilities he or she will fail.

It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill intended but merely based on an assumption: "He or she would not have fitted in".

The outcome of the cases will therefore usually depend on what inferences it is proper to draw from the primary facts found by this Tribunal.

Although there will be some cases where, for example, the non selection of the Applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is a matter of law and almost common sense.

It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal shall make findings as to the primary facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove her case"

26. Ms Gill accepts that this was a case in which the Tribunal was entitled to "to look to the employer for an explanation", the difference in race pointing to the possibility of race discrimination.

27. We start our examination of the decision of the Tribunal with the discrete but important issue of short-listing, a matter relied upon by Ms Gill as part of her challenge to the Tribunal's conclusions. In paragraph 3 the Tribunal wrote:

"(vi) Following the completion of an application form, the College's normal and standard policy is to shortlist by reference to the person specification in the job description. On this occasion the Site Principal decided there would be no vetting process against the person specification in the job description, he shortlisted both candidates. During the course of this Tribunal nobody was able to give any reasoning or justification for not following the vetting process for shortlisting other than they both worked in the department and it seemed perhaps the fairest thing to do.

(vii) The job description (page 48 of the bundle) does indicate various specific requirements which the Applicant on the basis of her CV certainly fulfilled. One of the major requirements of a Programme Area Leader is to appraise, observe and assess the Lecturers' teaching ability and grade accordingly. This clearly requires the person appointed to be of suitable experience and qualification to carry out these duties and requires some seniority. The person specification (page 51 of the bundle) also requires relevant industrial experience. When looking at Mrs Akhtar's CV it appears she might well fail if there had been a vetting process for short listing as she certainly had little industrial experience and little experience with appraising and observing Lecturers' teaching ability".

28. In its conclusions the Tribunal wrote on this topic (page 9):

"In this case we have found that Ms Arnold was clearly better qualified in relation to the actual person specification and no proper explanation was given for not following the College's own internal procedure as set out in the handbook which requires the head of department/Human Resources to properly shortlist in relation to the person specification. There was a form in existence but it was simply ignored and the only explanation given by Alan Euinton was it seemed a fair thing to do to shortlist both. That in itself seems flawed if one looks at the parties' respective experience, qualifications and background."

29. The clear implication of this passage is that, in the view of the Tribunal, if there had been a "proper" short listing procedure, Ms Arnold would have been the only person to be chosen for interview. Ms Gill submitted that the Tribunal, in this passage, were finding that the failure to carry out a shortlisting procedure leading to the exclusion of Mrs Akhtar, was itself an act of discrimination. We think that Mr O'Dempsey is right in his submission that the Tribunal was merely pointing to this as an example of what, in the Tribunal's view, was unsatisfactory about the appointment procedure. Nonetheless, it remains an important part of the Tribunal's reasoning and a significant stepping stone to its conclusions.

30. We have great difficulty in following this part of the Tribunal's reasoning. There was evidence before the Tribunal that it was not unusual if there were two internal candidates not to carry out a short-listing process. In any event both lay members of this Tribunal who have a great deal of practical experience in this area, take the view that it would be extremely unusual with two internal candidates of the qualifications of these two candidates to eliminate one at the short-listing stage. Short-listing may be valuable if there are a large number of candidates whether external or internal so as to reduce the burden on the interviewing panel. Furthermore the very fact that the Panel preferred Mrs Akhtar, even if in the view of the Tribunal they ought not to have done, shows, in our view, that she should not have been excluded at the shortlist stage. We have no doubt that the Tribunal was clearly wrong to place such weight on the failure to shortlist.

31. We turn to the passages in the decision of and around which Ms Gill makes her principal complaints.

32. In paragraph 3(v) the Tribunal found:

"(v) The community local to the College has a high proportion of people from ethnic minorities. The staffing at Barnfield is made up of less than 6% of employees from minorities and as a means of redressing the imbalance, the College has arranged consultation meetings with representatives from local communities in order to try and recruit people from different backgrounds."

33. In paragraph 3(viii) the Tribunal stated:

"There was no requirement for the candidates at interview to put forward any form of special presentation about the way the department was to be taken forward. Certainly on the face of the evidence that was never put to either of the candidates. Notwithstanding this, the interview panel from their assessments of each candidate seem to have weighted Mrs Akhtar far higher simply because she presented what appeared to the panel a much more detailed plan of how the department was to be taken forward. This is particularly relevant to note as the position was merely a temporary post for a short period pending the College sorting out its own plan for the future, the department and the way they wanted to take the department forward. In addition to this, the panel seems to have taken a negative view of the Applicant's statement during the course of the interview that she would split the Beauty and Sports Therapy Department whereas this is directly in accordance with the College's own stated policy when a department reaches a certain size."

34. In paragraph 3(ix), the Tribunal stated:

"It appears transparently obvious that when one looks at the two application forms, the Applicant would have been ahead on industry, teaching experience, qualifications, membership and external relationships. Indeed, there is evidence before the Tribunal that there were some concerns about Ms Akhtar's experience and standing with her peers and feeling amongst the Applicant's colleagues was that she was the more likely candidate all round to take over the temporary post.

If one looks at the marking at the interview, it appears that it was only the performance before the interview panel that was being considered and further from the evidence there appeared to have been no consensus amongst the panel interviewers as to how the marking was to be effected."

35. In its conclusion, the Tribunal stated:

"In this case we have found that Mrs Arnold was clearly better qualified in relation to the actual person specification ...

... it is clear that Mrs Arnold is better qualified and suited for the job. Clearly she had more industrial experience and she had the requisite standing and experience for the external verifier's position which clearly on the evidence before us Ms Akhtar fell short of.

The Tribunal are satisfied that Mrs Arnold was the main instigator in setting up the Holistic Therapy Centre, but little weight, if any seems to have been attached to her vision in this respect.

The Tribunal were also unconvinced by the Respondent's witnesses' explanation for the reasoning behind appointing Ms Akhtar, that all things equal, Ms Akhtar performed better at the interview by sharing greater vision for the department. It was accepted by the Respondent that it was never the case that either Applicant was intended to make a presentation about the future of the department. Furthermore this was a temporary post and indeed Mrs Arnold had shown vision for the department in the past and this must have been well known to the panel. Furthermore, some of the panel's marking in downgrading Mrs Arnold's score for wanting to split the department when it reached a certain size. Again, it seems contrary to the College's own policy (stated in writing) that when a department reaches a certain size it should be split in two."

36. The Tribunal went on to reach its conclusion that the College, in implementing its policy to try and attract more ethnic minorities, had discriminated against Ms Arnold on the grounds of race:

"The Tribunal take the view taking these matters into account and looking at the respective backgrounds, qualifications and experience of the two applicants, the reasoning given by the Respondent to the appointment of Ms Akhtar does not stand the test and it appears right to draw the inferences that the reason for the appointment of Ms Akhtar was on the grounds of her race, in accordance with the College's policy to try and attract more ethnic minorities which of course cannot be criticised but clearly can be criticised in circumstances where a person is discriminated against on the grounds of her race, in the non selection for a post in which was clearly better qualified on all counts to perform and be properly selected. This seems to be supported by the Applicant's peers being equally surprised that she was not successful in the appointment."

37.

38.

39. Although, as we have said, Ms Gill accepts that this was a case in which the Tribunal was entitled to "to look to the employer for an explanation", she submits that the Tribunal was not entitled to find that the explanation given by the appellant before the Tribunal was "inadequate or unsatisfactory". The thrust of her case is that the Tribunal quite improperly placed itself in the position of the interviewing panel, reaching its own conclusions about the merits of the candidates and deciding that it would have chosen Ms Arnold for the post. It improperly rejected the reasons given by the panel for preferring Mrs Akhtar both in their contemporaneous marking and comment sheets and in their evidence and in so doing took into account irrelevant matters. It improperly took the view, she submits, that the panel was not entitled to decide that Mrs Akhtar should be offered the position albeit that she obtained, as we shall see, substantially more marks than Ms Arnold. Although parts of Ms Gill's arguments can be categorised as challenges to the rationality of the Tribunal's conclusions, the attack is far wider than that.

40. Assistance as to how a Tribunal should not approach an interview in circumstances like these can be found in Martins v. Marks and Spencer Plc [1998] IRLR 326, paragraphs 51 and 52 (CA), in the judgment of the Court given by Mummery LJ:

"The tribunal made a second and equally serious error in its approach to the assessment of the evidence concerning the all-important interview of Ms Martins by Mrs Cherrie and Mr Walters on 28 January 1992. What the members of the tribunal did, despite protestations to the contrary, was to substitute themselves, claiming to be experienced and unbiased interviewers, for Mrs Cherrie and Mr Walters. On the basis of their own experience as interviewers (which they asserted, but of which they gave no details) and on the basis of the impressions that they formed of Ms Martins as a witness and of Mrs Cherrie and Mr Walters as witnesses, they substituted their own views of the impression that Ms Martins would have made on them, had they conducted the interview over two years previously. In the extended reasons, they protested that they were not doing this. They may not have intended to do this or have even appreciated that they were doing it but, on a fair reading of the whole of the extended reasons, that is the effect of what they in fact did. They went further than drawing on their own general experience of human life and their specialised industrial experience to determine whose evidence they accepted on a point on which there was a conflict of fact. Indeed, the tribunal did not simply substitute its overall impression of Ms Martins as a candidate in the hypothetical interview conducted by them: it combed through each of the criteria applied in the interview and explained the reasons why it disagreed with the assessments made by the actual interviewers of Ms Martins applying those criteria. In Nagarajan v London Regional Transport [1998] IRLR 73, Peter Gibson L J said:

'In considering whether the interviewers in a selection process discriminated against an applicant the industrial tribunal should not usurp the function of the interviewers by substituting their own criteria or assessments for those of the interviewers when their own assessments are based on material not available to the interviewers, such as the impression given by the applicant on a subsequent occasion. It must further be recognised that a selection process inevitably involves a comparison between candidates and matters of impression and judgment on which views may honestly and legitimately differ.'

He added a timely reminder that:

'A difference in the treatment of candidates is irrelevant unless it amounts to less favourable treatment of the complainant.'

This tribunal adopted a legally incorrect approach to the complaint about the interview, by substituting its own favourable assessment of Ms Martins, based on its own observations of seeing and hearing her at the tribunal, for that of the interviewers, and on its own application of the criteria to her performance in the tribunal. That is an unsound basis for a finding of less favourable treatment or for a legitimate inference of discrimination on the ground of race."

41. Ms Gill additionally submits that the Tribunal erred in its conclusions about the "special presentation" in paragraph (viii) and the reliance on that conclusion in its final conclusions. She submits that panel was not demanding a "special presentation" or any "presentation". All that the interviewees were being required to do was to answer questions as to why they were applying for the job, what they could offer to the job, how they could it carry out, what would be their style of management and what would be their vision. That she submits cannot be described as a requirement of a "special presentation" or "presentation". We agree. Furthermore, so she submits, anyone being interviewed for a job of this kind would be expected to answer these kinds of questions and be prepared to deal with them at the interview. Given that the first of the "Principle Accountabilities" was "to determine the overall direction and strategic purpose of the programme", that the second was "formulating and monitoring an implementation strategy and given some of the other "Accountabilities", it would be inevitable that questions of the kind to which we have referred would be asked. Again it is the experience of both the lay members of this tribunal that they would expect such questions to be asked. We have no doubt that the Tribunal was wrong in its approach to this issue.

42.

43.

44. Miss Gill criticises the finding in paragraph 3(viii) that Mrs Akhtar's assessment had been "far higher, simply because she presented the panel with a much more detailed plan" (underlining added). To understand this and her other submissions, it is necessary to turn now in detail to the marking and comments.

45. Three of the four members of the panel gave markings, the fourth Ms Patricia Clarke did not do so, although she asked questions at the interview and did give evidence before the Tribunal. The Tribunal queried her role (paragraph 3(x)) and although Mr O'Dempsey attached considerable weight to the query, we do not see the relevance of the query to the conclusions of the Tribunal, which, in any event, gave no identified weight to it in those conclusions.

46. There were a number of boxes for which applied to both candidates and into which the interviewer put their individual comments and markings out of five. Those boxes are marked "Physical", "Experience", "Skills", "Relationships", "Intelligence", "Personality", and "Overall". In addition there were a series of questions of the kind which were also by the three interviewers. Neither counsel sought to rely in particular upon the comments to that second series, which seem to add little for our purposes.

47. The Tribunal was given, as we were, by a typed copy of the marking and comments. Under the heading "Physical", Mr Euinton gave a mark of 4 to Ms Arnold and 5 to Mrs Akhtar. Mr Euinton wrote that he did not think that Ms Arnold had prepared her thoughts and "hence hesitation". Mrs Akhtar spoke with confidence, had thought through her approach to the interview and had a positive attitude. Mr Taylor, giving them both 5, noted that Mrs Akhtar was very enthusiastic, a word he did not use to describe Ms Arnold. Mr Donohue, giving them both 4, noted of Ms Arnold that she was "was a little hesitant with questions on management, in particular". Of Mrs Akhtar he said there was "a clear view of where management issues lay".

48. Turning to "Experience", each of the interviewers gave a higher marking to Ms Arnold. Mr Euinton gave Ms Arnold 4.5 to Mrs Akhtar's 3.5, Mr Taylor gave Ms Arnold 5 to Mrs Akhtar's 3. Mr Donohue gave Ms Arnold 4 to Mrs Akhtar's 2. Mr Euinton noted that Ms Arnold "had not thought through the transition of role" and noted that she "showed lack of interest in sports study throughout the interview". Mr Donohue noted the absence of external verifier experience in the case of Mrs Akhtar.

49. Turning to "Skills", Mr Euinton gave Ms Arnold 4.5 to Mrs Akhtar's 5. Mr Taylor gave Ms Arnold 3 to Mrs Akhtar's 5. Mr Donohue gave an equal mark of 3. As far as Mrs Akhtar is concerned Mr Euinton wrote: "Hungry and enthusiastic for this job. Appears hugely motivated to do the job and take responsibility. Will manage staff rather than staff manage her". He did not use describe Ms Arnold in those terms. Mr Taylor wrote that Ms Arnold saw the job as a logical step from her current role but he "was concerned about real reasons for promotion". According to Mr Taylor, Mrs Akhtar wanted the job as she wanted to progress. She was very ambitious and wanted the experience of interview if nothing else. Mr Donohue wrote that Ms Arnold had very strong teaching and external verifier skills " but perhaps not making enough at the interview of planning and organisation skills." Ms Arnold explained how she wanted to do the job but "not really explaining very clearly". Mr Donohue wrote of Mrs Akhtar: "very well to management role" and "a high motivation level".

50. Under the heading "Relationships", Mr Euinton gave Ms Arnold 4 and Mrs Akhtar 2. He commented that there was no indication Ms Arnold would manage the staff rather than the staff manage her. Mr Euinton, as far as Mrs Akhtar was concerned, raised the issue of her credibility with her colleagues and noted that she recognises the change in management would be difficult for her colleagues. Mr Taylor wrote: "Ms Arnold seems to get on well with her colleagues and she implied that they look to her as a leader". He was concerned that she seemed to disregard sports therapy and that she wanted sports therapy to be separated. Mr Taylor gave her Ms Arnold 2 and gave Mrs Akhtar 4, stating that she seemed to get on well with colleagues and enjoyed the pressure of working towards inspection. Mr Donohue felt that he was not in a position to comment, leaving it to those who were very close to the department.

51. As to "Intelligence", Mr Euinton gave Ms Arnold 3.5 and Mrs Akhtar 4. He described Ms Arnold as obviously bright, but this did not come over during interview. She had little to offer on the style of management. As to Mrs Akhtar he said that she was bright and keen to progress, that she had no doubt in her mind what the job was about, that she knew it would be hard work "possibly for only four months". She showed financial awareness and had started a management course. Mr Taylor gave Ms Arnold 2 and Mrs Akhtar 5. Mr Taylor said that he was concerned that Ms Arnold had not thought about the role and did not seem to have analysed how Lorraine [Windslade] had done the job or have a view about it. On the contrary Mrs Akhtar had analysed Lorraine's role and had identified weaknesses and how they could be overcome. Mr Donohue gave Ms Arnold 3 and Mrs Akhtar 4. He noted that Ms Arnold was not really clear on the issues of people management and how she would manage the transition. He commented that it was "not very well thought through". According to Mr Donohue, Mrs Akhtar had a very clear sense of [illegible]. She was able to relate her individual area to the college strategy, she had identified areas for improvement and she had a view. He gave Ms Arnold 3 and Mrs Akhtar 4.

52. Under the heading "Personality", Mr Euinton gave Ms Arnold 3.5 and Mrs Akhtar 4. He wrote that Ms Arnold showed a lack of enthusiasm for the job, was rather dull during interview. She says she wants to be successful but shows no hunger for success. He queries whether she is an innovator. He refers to her stated view that the area should be split (i.e. sports therapy should be split off) and "asked whether the job was too big for her". Mrs Akhtar "showed little nerves", wants to make a good job of what she is doing and is willing to be flexible. Mr Taylor gave them an equal score of 4 and noted that Mrs Akhtar was very energetic and enthusiastic "with concern that this might be a bit over the top". Mr Donohue gave both 3 but said that Ms Arnold came across as having good qualities but not seeing herself as a leader. She does not explain clearly how she wants the role to evolve. On the other hand, Mrs Akhtar was very clear about her own ambitions and there is evidence of commitment to management. He also refers to "strong in leadership".

53. Under the heading "Overall", Mr Euinton gave Ms Arnold 3.5 and Mrs Akhtar 4. He said that she showed a lack of interest for the post and surprisingly had not thought through the management role. He wrote: "How much support will be needed. Probably drift on as before!!" As to Mrs Akhtar he wrote: "She was very keen to be given the chance and wants to work for the benefit of students, colleagues and college. She shows strength and WILL MANAGE THE STAFF FACILITY RATHER THAN STAFF RUNNING THE AREA!" Mr Taylor gave Ms Arnold 2 to Mr Akhtar's 4. Ms Arnold did not come across as having any views about the role of a Programme Area Leader "even though she has been here a number of years". She is not very dynamic and has "no real views about where PA going or vision for the future". He contrasts that with Mrs Akhtar who is very enthusiastic, wanting the job, with a vision for the future and had thought through strategies to achieve this. He was concerned that she may be somewhat naive. Mr Donohue gave Ms Arnold 3 to Mrs Akhtar's 4. He wrote that Ms Arnold she was not as clear on her strategies for the "management tasks of leading transitions and going forward in the future". He would like to have seen evidence of more thought about this. As to Mrs Akhtar he said that she was clearly committed to securing a management position. She had identified things that she would change and was clear on the strategies to manage meetings and controlling budgets.

54. Finally under the heading "Recommendation", Mr Euinton wrote that he was "not sure that Ms Arnold could cope with the job and was not sure whether she really wants it". So far as Mrs Akhtar is concerned, she will have a good go at doing the job and will "work hard but job may be too big for her". Mr Taylor wrote that Ms Arnold "could undertake the job as a stop-gap but he did not feel that she would move the PA forward". He also thought that she only wanted to Programme Area Leader of beauty and holistics and she was not interested in sports therapy. Her attitude was that the job was hers and therefore she had not given any real thought to what it would involve and he was not sure that she really did want it. Mrs Akhtar, he wrote, may be lacking in experience but this would be is outweighed by her drive and enthusiasm. "She has some good ideas and has clearly thought through the job on how she would cope with some of the current issues". Mr Donohue wrote that "Ms Arnold was very able and a motivated staff member with strong industry experience." He was concerned that in her answers she had not thought through her strategies for people management and vision for the future. As far as Ms Akhtar is concerned he noted that "she was not very experienced but has clearly thought through the management issues and her idea of how she can [illegible] "Some of this must be taken on trust". He noted that she had vision.

55. The final scoring for Ms Arnold was 105.5 and 124 for Mrs Akhtar, making Mrs Akhtar a clear winner on points.

56. We find in the Tribunal's decision no detailed analysis of the comments, individual scoring or total score. The interviewing panel found in Ms Arnold, as the comments and marks show, a lack of views, thought, planning, enthusiasm and vision for the future. One interviewer thought that she did not really want the position. The panel found that Mrs Akhtar not only had a plan but was enthusiastic to implement it, hungry and had the drive and ability to do so.

57. We return to the principal criticism that the Tribunal did what it is forbidden to do in cases such as this, namely, it substituted its views for the views of the panel. In finding that Ms Arnold was "better qualified and suited for the job", the Tribunal substituted its view of Ms Arnold for the view of the panel and substituted its view as to how much weight should have been given to the interview, for the view of the panel and of the College (and of Mr Scribbins).

58. The Tribunal went further and wrongly took into account in reaching its conclusion about the merits of Ms Arnold the "concerns about Ms Akhtar's experience and standing with her peers", feelings amongst her colleagues that Ms Arnold was the more likely candidate and that her peers were as "equally surprised" with the result of the interviewing process as the Tribunal (paragraphs 3(ix) and conclusion. It must be for the panel to decide how much weight, if any, to attach to such concerns and, as Mr Scribbins concluded, they should not inhibit the panel from appointing the person who best meets the criteria. Any other approach would be unfair and open to serious challenge.

59. We return to the submission made by Ms Gill to which we referred in paragraph 38, namely that the Tribunal was not entitled to find that Mrs Akhtar's assessment had been "far higher, simply because she presented the panel with a much more detailed plan". We agree.

60. Ms Gill submits that the Tribunal also wrongly took into account the College policy on splitting departments, something which it does not appear was relied upon by Ms Arnold or considered by the Panel during the interview process. We see some force in that submission. Both Mr Euinton and Mr Taylor commented about Ms Arnold lack of interest in sports therapy (unlike Mrs Akhtar), these were surely valid comments given the "Accountabilities"?

61. Ms Gill also criticises the reference in paragraph 3(viii) to the fact that the post was for a short period and the reference to that in the conclusions that "this was a temporary post". As we have already shown, the post may have lasted only for a short period, but required as set out in the "Principal Accountabilities", planning for the future.

62. Ms Gill further submits that the Tribunal erred in deciding the case on the basis of the inference without analysing the matter further. Even if the Tribunal was entitled to draw an inference that the discrimination may have been on racial grounds because the employer's explanation was inadequate or unsatisfactory (which she disputes), then, so she submits, the Tribunal still failed to ask itself whether the respondent had proved that on racial grounds the appellant had treated her less favourably than it treats or would treat other persons. She drew our attention to Zafar v. Glasgow City Council [1998] IRLR 36 (H.L).

63. The effect of Zafar is conveniently summarised in Martins v. Marks and Spencer Plc, paragraphs 49-50:

"The industrial tribunal made a fundamental error of law in asking itself and in answering the wrong question, a different question from that required by the 1976 Act. In Zafar v Glasgow City Council [1998] IRLR 36, supra, Lord Browne-Wilkinson (with whose speech the other four members of the appellate committee concurred) said that although, at the end of the day, s.1(1) of the Act of 1976 requires an answer to be given to a single question (viz, has the complainant been treated less favourably than others on racial grounds?),

'it is convenient for the purposes of analysis to split that question into two parts – (a) less favourable treatment and (b) racial grounds ...'

The first part of the question is: was Ms Martins treated by Marks & Spencer less favourably than they treated or would treat another person of a different racial group in the same or relevantly similar circumstances? The answer to this question requires a comparison to be made between the treatment of Ms Martins and the treatment of a 27-year-old applicant of a different racial group with similar experience and qualifications applying for the same job. The tribunal did not attempt to make the compulsory comparison. Instead, it simply asked itself whether there was 'bias' on the part of Mrs Cherrie and Mr Walters against Ms Martins and concluded that there was. This approach is defective. In a complaint under the 1976 Act, the focus is not on whether the conduct of the employer or putative employer towards the complainant is biased or unreasonable or unfair: as Lord Browne-Wilkinson said in Zafar v Glasgow City Council [1998] IRLR 36, supra, the fact that an employer has acted unreasonably (eg in the sense relevant to a claim for unfair dismissal) casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the 1976 Act. Adapting the words of Lord Morison in the Court of Session in that case, it cannot be inferred only from the fact that the interviewers acted in a biased way towards Ms Martins, that the same interviewers would have acted in an unbiased way in dealing with another applicant in the same circumstances. The tribunal wholly failed to address itself to the issue, which Ms Martins had to establish in order to make out a claim for racial discrimination, whether she had been treated less favourably than the interviewers would have treated another applicant in the same circumstances. The finding that Marks & Spencer interviewers were guilty of 'bias' against Ms Martins is not a relevant or meaningful finding for the purpose of the 1976 Act."

64. Upon what basis, so Ms Gill asks, did the Tribunal conclude that Ms Arnold was treated differently on racial grounds to, say, a person of Asian origin who had performed in interview as Ms Arnold did? In her words:

"There was no evidence or finding that the College would have placed less weight on performance at interview had Mrs Arnold not been white. The preference of the College for a less experienced candidate who performed better at interview could not properly lead to a conclusion that there had been less favourable treatment on racial grounds."

65. She submits that the only evidence upon which the Tribunal relied to find discrimination on racial grounds was "the College's policy to try and attract more ethnic minorities", evidence which in her submission was quite insufficient on the facts of this case to draw such a conclusion.

66. She points to the fact that the respondent's case before the Tribunal was that the discrimination was unconscious, albeit positive. Indeed, as she points out, it was not suggested to the members of the panel when they gave evidence that they had deliberately or consciously chosen Mrs Akhtar for the position because she was of Asian origin. Ms Gill accepts, of course, that an employer may on racial grounds unconsciously treat an employee less favourably than it treats or would treat other persons. She submits, however, that this case, being a positive discrimination case, where the employer is alleged to have selected someone "not like them" for reasons of race, it is very difficult to envisage circumstances when such discrimination is not a conscious decision. She submits that the Tribunal ought to have stated whether this was, in its view, a case of conscious or unconscious discrimination, which it certainly did not. If conscious, then it had to follow that the markings, comments and weight attached to the performance at interview were deliberately "false" with the aid of discriminating on racial grounds and a finding to that effect should then have been made. If unconscious, the Tribunal should have made findings as to whether the markings, comments and/or weight attached to the performance at interview were unconsciously "false" and a finding to that effect with explanation should then have been.

67. Mr O'Dempsey supports the conclusions and reasoning of the Tribunal and reminds us of the important passage in the judgment of Mummery LJ in Yeboah v. Crofton [2002] EWCA Civ 794, [2002] IRLR 634 setting out the principles to be applied by this Tribunal on a perversity challenge:

"93. Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care'. British Telecommunications plc v Sheridan [1990] IRLR 27 at paragraph 34."

68. We accept Ms Gill's submissions. There was, in our view, no factual basis for concluding that that the College would have placed less weight on performance at interview had Ms Arnold not been white. We agree that the existence of the policy to try to attract more ethnic minorities is a quite insufficient basis on the facts of this case to conclude that there was discrimination on the grounds of race.

69. This is one of those rare cases where this Tribunal should substitute a different decision for the decision of the Employment Tribunal. Quite apart from the errors which we have identified and which might well have justified sending the case back for a further hearing, we have reached the unanimous conclusion that no tribunal properly directing itself could, on the evidence, reach the conclusion that Ms Arnold was unlawfully discriminated against on the grounds of her race within the meaning of either section (1)(a) or (b) of the Race Relations Act 1976. Given that an Employment Tribunal, as Mummery J says, is not allowed to re-interview, the employer panel's conclusions as to the relevant merits of the two candidates for the post are, on the facts of this case, unimpeachable. There was no evidence from which a Tribunal could properly conclude that, if Ms Arnold had been an Asian, she would have been given the job- indeed precisely the opposite. There was no evidence from which Tribunal could properly conclude that the interviewing panel unconsciously discriminated against Ms Arnold, as had been submitted on her behalf.

70. The appeal is therefore allowed and the finding quashed.