United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C HAY (Representative)
For the Respondents	MISS ADRIENNE MORGAN (Of Counsel) Instructed by: Leicester City Council Legal Services New Walk Place Leicester LE1 6ZG


 
SUMMARY

Race and sex discrimination alleged in recruitment exercise. Claimant’'s contentions [hat successful candidates either (1) did not meet elements of the person specifications for the posts or (2) were weaker on paper but, without justification, preferring following interview] not met with sufficient findings of fact by the Tribunal.


 


MR RECORDER LUBA QC

Introduction

1. This an appeal by Mr Priya Thamotheram against the Order and Judgment of an Employment Tribunal which in October 2005 dismissed claims for sex and race discrimination and victimisation which Mr Thamotheram had brought against his employers, the Leicester City Council, and against Mr John Crookes and Ms Claire Ambrose who are employees of the Council.
2. Mr Thamotheram advanced before the Employment Tribunal six matters said to have been instances of race or sex discrimination or the result of victimisation by the Respondents. These were respectively as follows:-

(1) Failure to address complaints Mr Thamotheram had made against his line manager, Ms Rumbelow.

(2) The undertaking and conduct of a disciplinary investigation of Mr Thamotheram which had followed an enquiry received from the leader of the Council.

(3) The conduct and undertaking of a Divisional Organisation Review which had culminated in the redundancy of Mr Thamotheram.

(4) The failure to appoint Mr Thamotheram to a new post of Adult Learning Manager.

(5) The failure to appoint Mr Thamotheram to a new post of Youth Services Manager.

(6) The conduct of Mr Crookes (the Second Respondent) in relation to an occasion upon which Mr Thamotheram used the Council’'s car park.

3. The Tribunal record that the first complaint was an allegation only of direct race discrimination, that all other claims were allegations of both direct race discrimination and/or victimisation, and that the fourth and fifth claims were additionally alleged to be acts of sex discrimination.
4. By his Notice of Appeal, Mr Thamotheram has not discretely identified which of those particular six matters he pursues on appeal before us. We have therefore treated the Notice of Appeal as putting in issue the Employment Tribunal’'s Judgment and Order in respect of each of the six matters identified above.
5. The Employment Tribunal heard the complaints over seven full days in the course of which they heard evidence from the Claimant and his witnesses and the Respondents and their witnesses. The Tribunal reserved their Judgment which was delivered in October 2005 extending to some thirty-eight closely typed paragraphs over sixteen pages of text. It is common ground before us that the Tribunal set out appropriate self-directions on the relevant statutory provisions and correctly identified and adopted the approach set out in the Appendix to the well-known decision of the Court of Appeal in Igen Ltd v Wong [2005] IRLR 258. Moreover, the Tribunal made extensive findings of fact and their reserved Judgment includes reasoning directed to each of the six discrete complaints that were pursued before them.

Factual Background

6. For the purposes of this Judgment it is not necessary to rehearse in great detail the factual background to each of the six complaints. That is a task amply discharged by the Employment Tribunal whose reserved Reasons we are considering.
7. Suffice it to record for present purposes that Mr Thamotheram was born in Sri Lanka and is of Sri Lankan ethnic origin. He holds a Bachelor of Science and Post Graduate Certificate for Education and obtained an MSc in 1982. From 1982 to 2001 he held the position of Head of Centre at the Highfields Youth and Community Centre. His initial employment was by Leicestershire County Council, the relevant education authority, but in 1997 education responsibilities for the City of Leicester were transferred to the City Council and thus Mr Thamotheram became an employee of the First Respondent. As a result of a reorganisation which occurred in 2001, Mr Thamotheram became a Community Learning Manager (CLM). In his case that re-organisation had little practical effect in that he remained in charge of the Highfields Centre although he acquired some wider responsibilities.
8. In 2003 the relevant department of the City Council undertook a Divisional Organisational Review (DOR). That culminated in a decision to completely restructure the provision of the Community Learning Service. In that re-structuring process all the then current CLMs (including Mr Thamotheram) would lose their existing jobs. A number of new posts were created as part of the re-structuring and the decision was made that those posts, would be ring fenced for CLMs to apply for. In relation to the recruitment for those new posts the Council’'s normal appointment process was abrogated to the extent that there was to be no short listing because every CLM was treated as automatically entitled to apply for, and to be considered for, any of the new posts.
9. Initially, some nineteen CLMs were involved in this re-structuring process. Three of those took voluntary redundancy, leaving sixteen. The majority were successful in obtaining posts in the new structure. Three were not and Mr Thamotheram was one of the three unsuccessful CLMs. Accordingly, in view of his failure to obtain one of the new posts, he was issued with notice of redundancy.
10. In the event, that did not lead to the termination of Mr Thamotheram’'s employment with the Respondent Council because, following a campaign on his behalf mounted by members of the community in the local Highfields area, it was decided to establish a temporary post of project partnership manager at the Highfield Youth Community Centre and in that post Mr Thamotheram has continued his employment with a salary protected at his former scale.
11. As is plain from Mr Thamotheram’'s Notice of Appeal and from the skeleton argument submitted in support of it, the thrust of Mr Thamotheram’'s appeal is that the Employment Tribunal failed to make appropriate findings on material facts in relation to his complaints set out at 2(4) and 2(5) above, that is to say his contention that there had been discrimination in relation to the appointment to the Adult Learning Manager’'s post and the Youth Services Manager’'s post which had been two of the posts created in the DOR re-structuring. Mr C Hay, appearing for Mr Thamotheram, in the course of his exceptionally helpful and cogent submissions, rightly characterised these matters as being at the “"heart of”" or “"centre of”" the appeal before us. Reflecting that approach we will deal first with the appeal in respect of those matters and then return to Mr Thamotheram’'s grounds of appeal in so far as they relate to the other complaints which were before the Tribunal.

The Arrangements for the New Posts

12. As we have already recounted, the Council’'s approach to the filling of the new posts created by the restructuring of the Community Learning Service was a modification of the Council’'s normal recruitment arrangements. Essentially, the posts were ring-fenced for applicants who were the existing CLMs and those applicants were not required to go through a short listing process. Beyond that, there appears to have been some doubt as to precisely how the exercise would be handled. In June 2004, a group of CLMs got together informally to discuss their concerns about the process. They asked Mr Crookes (the Second Respondent) to deal with queries and concerns that they had. Mr Crookes and a Mr Berkovitz attended a meeting with an informally constituted group of CLMs. That meeting was intended to be concerned with the time scale of the process but in the course of it Mr Crookes gave an outline as to the manner in which it would be conducted. Following that meeting, Mr Crookes (together with Mr Berkovitz of the Human Resources Department of the Council) decided to issue a bulletin to all relevant staff, by email, indicating how the process was to be conducted. The bulletin is headed “"Important Information for Community Learning Managers on Changes to the Interview Dates for Area Manager Posts.”" Not surprisingly, given that title, the first information contained in the bulletin related to a postponement in the timetable of the recruitment process in relation to three Area Manager posts (Adult Learning, Youth Service and Early Years). The bulletin indicated that arrangements had been made to fax copies of job descriptions and person specifications for those posts to the CLMs. The bulletin also indicated that CLMs would not be required to make separate applications for each post if they wished to apply for more than one and that a single application form would suffice. However, the applicants were invited to complete a separate sheet containing a Supporting Statement in relation to each post for which they wished to apply. Such Supporting Statements, and the copy of the Application Form, were to be brought to any interview and considered as part of the selection process. Indeed, the bulletin expressly said:

“"You will be asked to attend for interview one hour before it is due to take place. This is for the following reasons:

It will enable the interview panel sufficient time to read your application and supporting statement as part of the assessment and selection process;

To provide you with a copy of the first question to enable you to prepare an opening statement/presentation to the interviewing panel of no more than 10 minutes duration. The remainder of the interview will be on a question and answer basis focused on your work to date and evidence of your contribution to service delivery.”"

By means of the bulletin, therefore, the CML applicants for the new area manager posts were given a clear indication of the process being adopted.

13. As foreshadowed by the terms of the bulletin, person specifications and job descriptions in relation to the area manager posts were distributed to the CML level staff. The person specifications for each of the two posts Area Manager (Adult Learning) and Area Manager (Youth Service) were before the Tribunal and were placed before us. In the usual way, they indicate which of the requirements set out in the person specification are considered either Essential (E) or Desirable (D). Both person specifications additionally have a column headed “"Measurement”" which indicates by what means the achievement of the Essential/Desirable requirements are to be tested or measured. The entries in the Measurement column could be any of six numbered items as follows: “"1. Test prior to shortlisting. 2. From application form. 3. Test after shortlisting. 4. Probing at Interview. 5. Documentary Evidence. 6. OTHER.”"
14. As already indicated, there was to be no shortlisting element in relation to these posts and, accordingly, none of the entries under the Measurement column have the numeral “"1”". For the Adult Learning post the vast majority of the column entries under the Measurement heading were entry “"4”". A significant number of those were coupled with entry “"2”". Some coupled entry “"2”" with entry “"5”". In relation to the Youth Services post, the largest number of entries in the Measurement column appeared to be number “"4”" but a significant number of those were accompanied by number “"2”" and some of the entries were number “"2”" only. As Mr Hay correctly submitted, the impression conveyed by the entries in the Measurement column on the person specifications was that satisfaction of the person specification requirements would, in some part at least, turn on Measurement factors other than exclusively Measurement factor “"4”" i.e. “"Probing at Interview”".
15. Mr Thamotheram considered himself qualified for both of the two posts Area Manager (Adult Learning) and Area Manager (Youth Services). He applied for those posts and was interviewed in relation to them. He was not the successful candidate in respect of either of those posts. It is the failure to appoint him in respect of either of those positions that forms complaints “"4”" and “"5”" of the complaints pursued by him before the Employment Tribunal.
16. The Tribunal’'s approach to these complaints is set out at paragraph 36 of their Reserved Reasons. That paragraph reads as follows:

“"36. In both of these cases the claimant was interviewed with the other applicants. In both cases he was not successful, whereas people of a different race and sex from him were successful. We do not consider that on its own is enough for us to conclude that we could find that there was an act of discrimination. However, we also take into account in relation to the race discrimination claim the fact that the Asian CLMs did generally do worse than people of a different race. That is enough to raise the possibility that there could be race discrimination. Similarly in relation to the sex discrimination allegation, Ms Ambrose who dealt with the first of the interviews, had made a comment at a much earlier stage that the Division was a “"boy’'s club”". In the interview that she chaired the top 6 candidates were all women. In the other interview the top 2 candidates women, but so were the bottom three. However, certainly in relation to the first of the interviews for the Adult Services Manager post we consider that there is enough to suggest that there could have been an act of sex discrimination. Accordingly, we need to consider whether the respondent has proved that it did not commit either act of discrimination.”"

17. It was common ground before us that this represented an exemplary and correct self- direction by the Tribunal, having regard to the amended provisions of the statutes in relation to race and sex discrimination which had had the effect of shifting the evidential burden of proof to the Respondent if a Claimant had proved facts from which the Employment Tribunal could conclude (in the absence of an adequate explanation) that the Respondent had committed an unlawful act of discrimination against the Claimant. Put another way, the Tribunal had correctly directed itself as to the two stage process identified in Peter Gibson LJ’'s judgment in the Igen case (at paragraph [17]). The issue for the Tribunal was, accordingly, whether the Respondent had established on the balance of probabilities that it did not commit acts of discrimination in relation to either the Adult Learning post or the Youth Services post. In relation to those posts the complaint of Mr Thamotheram, as it was put before the Tribunal, is formulated in his Further and Better Particulars of his Originating Application in the following terms:

“"I contend that on both occasions the successful candidates were not of such calibre as to warrant being appointed in preference to myself and I consider that I was subjected to direct discrimination on grounds of race and sex.”"

Faced with that complaint what was required from the Respondent in the circumstances, and following the Tribunal’'s self direction, was a cogent explanation as to why others and not the Applicant had been appointed to the relevant Area Manager posts. As Sedley LJ indicated in Anya v University of Oxford [2001] IRLR 377:

“"In the allocation of jobs by any sensibly-run institution, the explanation will be straightforward: the candidates were interviewed by an unbiased panel on an equal footing, using common criteria which contained no obvious or latent elements capable of favouring one racial group over another; and the best one was chosen.”"

(See paragraph [8])

18. The response of the Respondent Council to this aspect of Mr Thamotheram’'s complaints was fully particularised in paragraphs 6(d) and 6(e) respectively of the Respondent’'s Amended Grounds for Resisting the Application in relation to first the Area Manager (Adult Learning) post and secondly the Area Manager (Youth Services) post. For present purposes it is sufficient to summarise the response as being that the Council had adopted a full and fair recruitment and selection procedure as a result of which the Applicant had not been appointed because, on merit, others better qualified for the post had been selected.

The Appeal in Relation to the Area Manager Posts

19. In his Notice of Appeal Mr Thamotheram asserts that the Employment Tribunal failed to make material findings of fact relating to the alleged discrimination in the failure to appoint him to either of the two relevant Area Manager posts. More particularly, as outlined in his Skeleton Argument and elaborated in Mr Hay’'s submissions on his behalf, Mr Thamotheram’'s case was that he had developed before the Tribunal cogent criticisms of the appointments process in relation to those two posts. He contended that he had established before the Tribunal, in cross-examination of those who took part in the recruitment process, that he had been the best qualified candidate on paper in relation to the two posts and that nothing in the records maintained at the interview stage of the process justified a contrary conclusion. Thus it was that the Employment Tribunal were, in Mr Hay’'s submissions, taken through the extensive documentation in the bundle before them which included the Application Forms submitted by each of the candidates, the Supporting Statements that they had lodged, and the notes made by the interviewers in relation to the answers given by interviewees to the relevant questions. Further, Mr Hay asserted that Mr Thamotheram had undertaken substantial and lengthy cross-examination of those on the interviewing panels for the two posts, in the course of which cross-examination he has sought to establish the propositions that:

He was the best qualified candidate, on paper, in relation to that post and/or

On paper, other applicants failed to meet required elements of the person specifications and/or

The records of the interviewing process failed to justify the making-good of the shortfall or differential between Mr Thamotheram’'s satisfaction of the person specification and non-satisfaction of it by others in so far as a differential was shown by the paper aspect of the exercise.

20. It was not disputed by Ms Morgan for the Respondents that such was the nature of the case developed by Mr Thamotheram at the Tribunal hearing (although Ms Morgan contended that it had not been expressly articulated as part of his pleaded case or in his own witness statement). Accordingly, it appeared to be common ground that Mr Thamotheram had, at length, pursued a critique of the Respondents’' explanation that it had undertaken a full and fair recruitment process. Most particularly, his cross-examination appears to have taken the relevant witnesses to disparities between his written applications and the written applications of other candidates and then sought to show, by detailed examination of the interview records, that the preference of others over him could not be explained by any recorded “"better performance”" in the interviews.
21. It was common ground that the case of Mr Thamotheram had been conducted in this way before the Tribunal. As a result, it did not become necessary for either party to obtain, for the assistance of this Appeal Tribunal, the transcription of the cross-examination of the Council’'s witnesses. Moreover, Mr Hay made it plain that he was not suggesting that the answers given by the witnesses could compel the Tribunal to reach only one conclusion. Rather Mr Hay’'s submissions, on the appeal, were that given that the case for the Claimant had been pursued in this way it was incumbent upon the Tribunal to determine whether it was satisfied that, in the light of the points and issues raised by Mr Thamotheram on the selection process, the employer had adequately discharged the burden of proof upon it in the factual circumstances of the present case.
22. In relation to the recruitment process for both posts, Mr Hay reminded us of the extent to which the person specifications demonstrated that the Measurement standard was not to be exclusively by performance at interview (represented by “"4”") but also by reference to other matters including the content of the Application Form and Supporting Statement (represented by “"2”"): see paragraph 13 above. His submission was that the Tribunal was required to make material findings on the case as it had been advanced before them by Mr Thamotheram.
23. We shall not extend this already lengthy judgment by reciting each of the examples or instances given by Mr Hay in support of his submissions that aspects of the recruitment process called-out for findings by the Tribunal. It will suffice for present purposes to deal with a selection of them.
24. We deal first with the appointment to the Area Manager (Adult Learning) post. In relation to that post it was Ms Claire Ambrose, the Third Respondent, who had primary responsibility for the interviewing and selection procedure. The interviewing panel comprised herself and a Mr Tim Ward and a Ms Pat Flynn. That panel interviewed eleven candidates. At the conclusion of the recruitment exercise, the panel ranked the Applicant as the eleventh candidate. The three successful candidates were all white women. For the purposes of the present appeal the parties have agreed a statement of the evidence that was before the Tribunal (in terms of oral evidence and questions). The parties are agreed that in relation to the Area Manager (Adult Learning) post:

“"1. That Ms Ambrose stated that the Appellant gave long and full answers to questions that were put to him at his interview and that she also stated that “"his performance was not good, not good, so poor came last”".

2. Ms Ambrose described the Appellant as a confident and articulate colleague.

3. That Ms Ambrose could not remember the individual score value for each grade of A, B and C which were the interview assessment grades.

…

6. That when questioned about the markings in relation to interviews for the adult services manager post, Ms Flynn stated:

“"I can’'t remember any of the details. We did discuss each candidate, but can’'t remember any great difference of views between us”".”"

25. Those agreed statements amply reflect the correctness of the submission, made by Mr Hay, that the cross-examination of the witnesses in relation to the recruitment process for the Adult Learning post was directed, in detail, to the assessment process and the interviewing stage of it. Mr Hay unsurprisingly draws attention to the fact that Ms Ambrose (who presided in the process) could not recall the grading scores and that another member of the panel (Ms Flynn) was unable to remember “"any of the details”". Mr Thamotheram’'s skeleton argument before us contended that he had cross-examined Ms Ambrose at length about the interview assessment forms that were before the Tribunal and that there were put to her numerous examples of inconsistent recordings by panel members. Further, that it was put to her that there were examples where there was no documentary evidence that the successful candidates had met the requirements of the person specification. Ms Morgan, who had also represented the Respondents below, did not seriously dispute that account by Mr Thamotheram of his conduct of the case on the Area Manager (Adult Learning) selection process.
26. A different panel was concerned in the selection process for the Area Manager (Youth Services) post. That panel comprised four persons with a Mr Vaughan chairing. It interviewed seven candidates. The Applicant was ultimately ranked fourth, following a close run-off for third place. In the event two women and one man were appointed. The two women were white and the man was black Afro-Caribbean. The parties are agreed that in the course of oral evidence and cross-examination Mr Vaughan “"agreed that the Appellant’'s application met all the essential requirements within the person specification for the Youth Services Manager post”".
27. In his skeleton argument, Mr Thamotheram asserts that he adopted a similar approach in cross-examination of Mr Vaughan (the Chair of the panel for the Youth Services post) as he had taken in relation that Ms Ambrose (the Chair of the panel for the Adult Learning post). More particularly at paragraph 1.12 of the skeleton argument he asserts as follows:

“"I put to him that –

(a) that in relation to five of the essential criteria in the person specification, my application and statement demonstrated significantly greater experience and achievements than the three successful candidates; and

(b) that one of the successful candidates had failed to demonstrate that she met the essential criterion in relation to equal opportunities in her application and statement and, furthermore, that the interview assessment documents before the tribunal indicated that she had also failed to do so at interview.”"

28. The skeleton argument accordingly contained the proposition that Mr Thamotheram had again tackled the Respondents’' witnesses as to the sufficiency or otherwise of the fulfilments of the person specification, for the relevant post, by the successful candidates as demonstrated both by their Application Forms and Supporting Statements and/or their performance in interview as indicated by the documentary evidence of those interviews. He sought, by the demonstration of gaps or inconsistencies in the Council’'s evidence, to establish that they had not met the burden of showing a full, fair and proper consideration of each applicant’'s case had resulted in the appointment of the successful candidates.
29. It was not seriously contended by Ms Morgan that the case of Mr Thamotheram in relation to the Youth Services post had been put to the Council’'s witnesses any differently from the way it had been pursued in relation to the Adult Learning post. That is to say that Mr Thamotheram had taken the Council’'s witnesses to what he asserted to be shortfalls in the Application Forms/ Supporting Statements of the successful applicants as compared to the person specification and then pointed to the inadequacy of the written records of the interviews as made by the interviewers as showing any justification for making good those shortfalls. We accept, therefore, Mr Hay’'s submission that this was the manner in which the case was conducted before the Tribunal and indeed it goes some way to explaining the lengthy hearing which they conducted.
30. Before turning to the Tribunal’'s Reserved Judgement in respect of these matters it is important to have in mind, as Mr Hay submitted, the care with which one must approach an employer’'s explanation that although a particular applicant appeared to be strongest on paper he or she did not obtain a position as a result of poor comparative performance in interviews. As Neill LJ said in King v The Great Britain China Centre [1991] IRLR 513 at p 518:

“"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 intentioned but merely based on the assumption that “"he or she would not have fitted in.”"”"

31. As Sedley LJ observed in the Anya case, particular difficulties are posed where the ultimate judgment of the employer in relation to the appointment of a particular person to an available post turns on performance in interview. He said:

“"Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyn-cratic factors, especially where proper equal opportunity procedures have not been followed.”"

(At paragraph [21]).

32. Mr Hay’'s submission is, in essence, that the Tribunal in the instant case were required to determine and make findings of fact as to the extent to which Mr Thamotheram had, or had not, established inconsistencies in the records of the interviews and/or as between the Application Forms/Supporting Statements of the various candidates. They had to do so, he submitted, in order to determine whether there had been success or failure by the Respondent Council to meet the burden cast upon it.
33. Against that background, we come to the Tribunal’'s treatment of the complaints in relation to the two posts. The Tribunal’'s finding of fact in relation to the Adult Learning Area Manager post is to be found at Paragraphs 21 and 22 of their Judgment followed by findings in relation to the Youth Service Area Manager post at Paragraph 23. Those three paragraphs contained the Tribunal’'s findings as to the process i.e. the procedural elements of the appointment arrangements in relation to both positions. It is of note that the findings relating to the Youth Services post end with this “"We accept that the panel’'s ranking of the Claimant and the other candidates were based on their answers to the questions given at interview, which were the same for each candidate.”" That is to say that the Tribunal were satisfied that each candidate had been asked, fairly, the same standard questions and been provided with the same opportunity to answer and, significantly, that the rankings of the candidates had been based on the answers given to the questions. The Tribunal does not there seem to be addressing the proposition that at least an element of the selection process for both posts was the content of the Application Form/Supporting Statements and satisfaction of the person specification.
34. The conclusions of the Tribunal in relation to the Area Manager complaints are set out in Paragraph 37. It is only necessary to quote the opening sentences of that paragraph although we have the whole content in mind. It reads:

“" The explanation in both cases is that the claimant did not do well at interview. In evidence to us the claimant has put great weight on his historical achievements and the written application based on the person specification, that he put forward. As there was no short listing exercise the procedure adopted by the Council relies very heavily on the interview process. That requires the same questions being asked of each candidate without different help given to them.”"

35. What those sentences do not address, and what nothing else in Paragraph 37 addresses, is the conclusions that the Tribunal reached on the case as advanced by Mr Thamotheram i.e. that the actual content of the interview notes (so far as it was available) did not make good the differential (in his favour) on satisfaction of the person specifications for the two posts as demonstrated by the content of the Application Forms/Supporting Statements. As we have already indicated, it is not disputed that that is how his case was put to the Tribunal in the form of cross-examination of the Respondents’' witnesses. Mr Hay for Mr Thamotheram did not submit that the answers given by the Respondents’' witnesses were necessarily inadequate explanations. Rather he contended that the Tribunal had failed to address whether there was (or was not) anything in the case as developed by Mr Thamotheram. In rejoinder, Ms Morgan for the Respondent Council was driven at stages in her submissions to suggest that this was not a failure by the Tribunal to find “"material”" facts because the satisfaction or otherwise of the particular person specifications for the two positions was not necessarily “"relevant”" or “"material”". We have no hesitation in rejecting that submission. It seems to us that it was plain that this recruitment process involved at least an element of satisfaction of the requirements of the person specification by virtue of the content of the Application Forms/Supporting Statements. If, as emerged to be common ground, it was correct that the case below had been advanced on the basis that there were demonstrable shortfalls between the successful candidate’'s satisfaction of some elements of the person specification on paper and no sufficient explanation that the shortfall had been made up in the course of the interview (or at least in the records of that interview) it was, in our judgment, incumbent upon the Tribunal to determine that issue. It was required at very least, to make findings as to whether those matters advanced by Mr Thamotheram were made out or not. It is not necessary in the course of this judgment to return to the decision in Meek v City of Birmingham District Council [1987] IRLR 250 for the proposition that the Tribunal must make findings on material matters of fact which are in dispute before them. By way of example, in our judgment there could not be a more plain or material matter of fact which required determination, than that advanced in Mr Thamotheram’'s skeleton argument at Paragraph 1.12(b) reproduced at Paragraph 27 above. There is the most explicit assertion that a particular successful candidate had failed to meet a requirement of the person specification both as demonstrated by the content of her Application Form/Supporting Statement and the notes or records available of the interview.
36. Of course, it might have been suggested that the Respondents’' witnesses gave such clear and cogent explanations in answer to the cross-examination by Mr Thamotheram that the Tribunal could not conceivably have been required to do anything more than summarily dispose of the way in which the case was advanced. But Ms Morgan did not invite us to adjourn the appeal so as to obtain the Chairman’'s notes of the answers given or any transcription of them. Further, she could not point to any part of the reserved reasons of the Tribunal where they deal summarily or otherwise with the propositions advanced by Mr Thamotheram as we have set them out above. She sought repeatedly to persuade us that Paragraph 37 of the Tribunal’'s judgment discharged its responsibility to make findings on all the material facts in relation to the Area Manger appointments exercise. It will suffice if we indicate that we are not satisfied that Paragraph 37 does, in the circumstance of this case, discharge that responsibility.
37. It must follow, therefore, that this ground of appeal succeeds. It is not necessary for us, accordingly, to express any conclusion on the other limbs of Mr Thamotheram’'s challenge to the conclusions of the Tribunal on the complaints he brought in so far as they relate to the selection process for these two posts. Those points included criticism of the Tribunal’'s treatment of the informal meeting of “"concerned”" CLMs and the non-attendance of Mr Thamotheram at that meeting, and that the Tribunal had failed to deal appropriately with a contention that two members of the interview panel for the Youth Services post had, subsequent to the interview, manifested a hostile and aggressive disposition towards Mr Thamotheram. Those are matters which, if it were appropriate, may be advanced when the whole question of the complaint in relation to the appointment process for the two posts is reconsidered.
38. We can deal more briefly with the other grounds of appeal relating to the other four complaints of race discrimination and/or victimisation pursued by Mr Thamotheram and rejected by the Tribunal.

The Handling of the Complaint against Ms Sheilagh Rumbelow

39. Mr Thamotheram’'s complaint before the Tribunal had been that “"…in failing to properly address my complaints about Sheilagh Rumbelow, Mr Crookes and the Council treated me less favourably on racial grounds than he would have treated a white CLM in similar circumstances and/or because I have been actively involved in raising issues of racial equality that impact upon the lives of local residents”".
40. The Tribunal rejected that complaint both in relation to direct race discrimination and in relation to victimisation. The findings of fact that they make in relation to that matter appear at Paragraphs 9 to 11 of their reserved judgment and their conclusion is expressed in Paragraph 31 in the following terms:

“"We can see nothing in this issue to suggest a person of a different race would have been dealt with any differently from the claimant in the same or a similar situation.”"

41. On the appeal (at Paragraph 6.9 of the Notice of Appeal) Mr Thamotheram contends that the Tribunal failed to examine this issue, and in particular the Respondents’' explanation in relation to it, with “"sufficient care and astuteness”". It is suggested that the Tribunal, having noted that (a) Mr Crookes gave a false explanation to Mr Thamotheram as to why Ms Rumbelow had not attended a tripartite meeting and (b) Mr Crookes had ascribed to Mr Thamotheram an intimation that he would “"not play the race card”", had not, when reaching its conclusion on this first complaint, expressly dealt with those two aspects. The first matter was explained by the Respondents on the basis that Mr Crookes had misrepresented the whereabouts of Ms Rumbelow to protect his knowledge that she was on the particular date in question attending an interview for another job (which information he did not believe appropriate to impart to Mr Thamotheram). It is plain that the Tribunal accepted that explanation. In relation to the second matter, that was dealt with by the Tribunal in terms at Paragraph 10. We are not persuaded that the Tribunal, having noted that matter, failed to take it into account in reaching its overall assessment on this aspect of Mr Thamotheram’'s complaint.
42. Alternatively, it is suggested in relation to this first complaint that the Tribunal misdirected itself by treating the complaint as not including a complaint of victimisation. We reject that contention. Following appropriate case management at an earlier stage, the Tribunal Chairman had prepared, for the assistance of the parties, a statement of the issues to be considered at the Tribunal hearing. That typescript list was distributed at the start of the hearing and included the following:

“"Claim 1 is just an allegation of race discrimination. All of the other claims are allegations of direct race discrimination and/or victimisation”".

Mr Thamotheram contends that in fact he was pursuing a victimisation dimension of his first complaint. We are not satisfied that there was any misdirection on the Tribunal’'s part. Mr Thamotheram had ample opportunity to draw the Tribunal’'s attention to any error in the Chairman’'s formulation of his case, if indeed there was one. Certainly we can detect no error of law in relation to the Tribunal’'s disposal of this first complaint.

The Disciplinary Investigation

43. In November 2003, an enquiry by the leader of the Council prompted a process which involved Mr Thamotheram being summoned to a meeting with Mr Crookes. A disciplinary investigation was then conducted by a different officer of the Council and, ultimately, no formal action was taken. Mr Thamotheram’'s case before the Tribunal was that Mr Crookes, the Second Respondent, and the Council itself had treated him less favourably on racial grounds than they would have treated a white CLM in similar circumstances and/or because he had been involved in raising issues of racial equality that impact on lives of local residents (which he contended was a protected act for the purpose of his complaint of victimisation). The Tribunal sets out its findings of fact in relation to the disciplinary investigation at Paragraphs 12 to 15 of its reserved judgment. Having reviewed the matter the Tribunal concluded at the end of Paragraphs 32 and 33 that:

“"We cannot see how a person of a different race in the same or a similar situation would have been treated any differently and particularly any better than the claimant. There is nothing at all to suggest that his race had any relevance.”"

It thus comprehensively rejected this complaint. Mr Thamotheram contends that the Tribunal’'s conclusion on this issue contains an erroneous finding of fact in relation to the extent to which a Mr Poole, who had been concerned in the investigation, had any prior involvement with Mr Thamotheram. The point is not really developed in the skeleton argument which simply repeats the same assertion. In our judgment there is nothing at all in this point. Certainly nothing that can be considered to amount to an error of law. Mr Hay advanced the matter as one in respect of which the Tribunal had made a finding of fact contrary to the evidence. We are not satisfied that that is so. However, even if that assertion had been made out, it is very difficult to see what relevance it would have had to the gravamen of the complaint. The investigation was not conducted by Mr Poole but by Mr Phillips. Mr Phillips’' action had, in turn, been prompted by the enquiry from the leader of the Council. It is difficult to see how this error (if indeed it was an error) on the part of the Tribunal had any significance at all in relation to the overall finding that they reached on this complaint.

The Reorganisation and the Redundancy

44. As we have already explained, the Council undertook a structural reorganisation of the department in which Mr Thamotheram worked which ultimately resulted in his redundancy. In relation to that Mr Thamotheram complained that there had been race discrimination and/or victimisation. He particularised his complaints to the Tribunal on the basis that the DOR had undermined his position and his work in various particulars (which he set out) and that as a result of the DOR he had been treated less favourably on racial grounds than a white CLM in similar circumstances would have been and that he had been victimised.
45. The Employment Tribunal summarised the matters said to underpin the complaint of victimisation and made findings of fact about the DOR which are set out in Paragraphs 16 to 20 of their Reserved Judgment. They rejected the contention that the decision to include the Highfield Centre (the place of Mr Thamotheram’'s employment) in the DOR had “"anything to do with the Claimant himself let alone his race”" (paragraph 34). In so far as Mr Thamotheram had criticised an aspect of the undertaking of the DOR related to the informal meeting of CLMs (to obtain further details of the timetable for and content of the recruitment process) the Tribunal found “"the Claimant was not treated any differently from anyone else who did not attend the meeting, who include people of all races. The Claimant’'s race was irrelevant to that meeting”". (Paragraph 35).
46. We have considered with care the error of law alleged in the Notice of Appeal which appears to be that the Tribunal made an erroneous finding of fact in relation to this matter. Mr Thamotheram’'s case, as developed by Mr Hay, is that the Tribunal was quite wrong at Paragraph 18 of the Reserved Judgment to find:

“"Although the claimant was aware of the meeting he understood that the CLMs were going to suggest that the interviews should be put back and as a result he did not attend the meeting.”"

47. It is suggested that this is an implied finding by the Tribunal that he knew or ought to have known that Mr Crookes (and Mr Berkovitz from Human Resources) would be attending this informally organised meeting and that he made an election not to attend. We draw no such inference from the Tribunal’'s finding. The finding that they made was amply justified on the material before them, not least on the evidence of Mr Thamotheram. He confirmed that he had been informed that the meeting was going to take place on the day that it occurred and that the subject matter was going to be the timetable of the arrangements for the recruitment process to the new Area Manager posts. It is not suggested that he knew that Mr Crookes and Mr Berkovitz would be in attendance. Far less is it suggested in evidence or found by the Tribunal that, knowing they would be in attendance, he declined to attend.
48. In short, we can detect no valid criticism of the Tribunal’'s findings of fact, or the conclusions which they drew, in relation to the complaint about the DOR overall or in relation to the non-attendance of Mr Thamotheram at the meeting which took place in June 2004. Certainly we can detect nothing which amounts to an error of law.

Mr Crookes and the Car Parking

49. In his Originating Application to the Employment Tribunal Mr Thamotheram concisely expressed his complaint in this regard in the following terms:

“"On 4^th August 2004 I saw John Crookes when I was parking my car in the main Council car park. He did not acknowledge me but when I parked my car the attendant informed me that Crookes had enquired whether I was authorised to park there and, upon being told that I was, he said that I should not have been authorised and that he would be ‘'following it up’'”"

This was alleged to be an instance of racial discrimination and/or victimisation. The brief essential facts relating to the matter are found by the Tribunal and recorded by them at Paragraphs 24 and 25 of the Reserved Judgment. At Paragraph 38 they express their conclusion on the matter thus:

“"38 The car parking incident is by any standards a trivial incident. We accept that Mr Crookes did not see the claimant wave and therefore his failure to acknowledge him could not amount to an act of discrimination. The only comparable situation we have been given is that Mr Crookes has raised the issue of car parking with other people not of the claimant’'s race including people more senior than the claimant. There is no reason to think that the claimant’'s race formed any ground for that question.”"

50. By his Notice of Appeal Mr Thamotheram contends that, in relation to the car parking incident, the Tribunal failed to examine the Council’'s explanation (and more particularly Mr Crooke’'s explanation) with “"sufficient care and astuteness”". This proposition is reformulated in the Appellant’'s skeleton argument to an assertion that the Tribunal “"failed to properly consider my complaint”". The skeleton argument then seeks to raise three questions in relation to the incident which it is asserted that the Tribunal did not address. It is suggested that the Tribunal should have posed for itself and answered certain specific questions. In our assessment, the Tribunal was absolutely right in its characterisation of the importance of this incident. They heard the evidence of the parties in relation to it and they formed a clear conclusion that no question of race discrimination or victimisation arose. Nothing that has been advanced for Mr Thamotheram on the appeal in writing or by Mr Hay in his succinct oral argument has persuaded us to the contrary. We are not satisfied that the Appellant has here made out any ground of appeal. This is not an occasion upon which there has been a failure to make findings of fact nor of a finding contrary to the evidence.

Conclusion

51. It follows from the foregoing that we allow this appeal to the extent of setting aside the Tribunal’'s dismissal of the two specific complaints:

(1) the failure to appoint Mr Thamotheram to the Adult Learning Area Manager’'s post and

(2) the failure to appoint Mr Thamotheram to the Youth Service Area Manager’'s post.

The complaint in respect of each of those matters is a complaint of race and/or sex discrimination.

52. As originally formulated, those complaints had had the additional dimension of “"victimisation”" but that dimension was roundly rejected by the Tribunal and we have seen nothing in the Notice of Appeal which would satisfy us that that conclusion should be disturbed. Accordingly, it will now be necessary for there to be a determination afresh of those two complaints of sex and/or race discrimination. The Leicester City Council is, of course, the primary Respondent to those complaints and the Third Respondent, Ms Ambrose who chaired the Adult Learning Area Manager’'s interview panel is a specific individual Respondent and will remain so.
53. We invited representations from the parties on the question of the appropriate manner of disposal should we uphold this limb of the appeal. Ms Morgan for the Council sought to persuade us to remit the consideration of these two complaints to the Tribunal who had already heard them. Mr Hay for his part sought to persuade us to send them to a freshly constituted Tribunal. We are satisfied that, for the reasons he gave, Mr Hay’'s submissions are correct. These are matters of some sensitivity and require inferences to be drawn from oral and written evidence. There is an extent to which it might be thought that justice would not be seen to be being done if the matter were to be remitted to a Tribunal which had formed a particular view of those matters on a previous occasion. In those circumstances, the determination of the two complaints we have identified will be remitted to a freshly constituted Tribunal. The remainder of the grounds of appeal pursued by Mr Thamotheram are dismissed. In those circumstances, the other four complaints that he originally brought against the present Respondents shall remain determined against him. When the matter is reconsidered by a fresh Tribunal, Mr John Crookes will not be a Respondent to the application because he was not involved in the question of the appointment to either of the two posts with which the remaining complaints are concerned.