United Kingdom Employment Appeal Tribunal

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URL: http://www.bailii.org/uk/cases/UKEAT/2011/0240_10_0308.html
Cite as: [2010] UKEAT 240_10_308, [2010] UKEAT 0240_10_0308

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Appeal No. UKEAT/0240/10/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 21 October 2010

Judgment handed down on 3 August 2011

Before

HIS HONOUR JUDGE HAND QC

MR B BEYNON

MR S YEBOAH

MR J ITESHI APPELLANT

(1) LONDON BOROUGH OF HARROW

(2) MS J FARMER

(3) MS S CLARKE RESPONDENTS

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant

MR J ITESHI

(The Appellant in Person)

For the Respondents

MS CAROLINE ECCLES

(Solicitor)

London Borough of Harrow

Legal Services

P O Box 2

Civic Centre

Station Road

Harrow

HA1 2UH

SUMMARY

RACE DISCRIMINATION – Direct

The Appellant, a qualified barrister, was not shortlisted for the post of Legal Assistant but he was successful in obtaining a position as a Legal Services Officer. This was subsequently withdrawn after he suggested that the Third Respondent with whom he would have to work was not telling the truth about delays in processing his appointment. The Employment Tribunal found that he had not been discriminated against on the grounds of race in respect of either matter. His appeal complained of errors of fact, perversity, misdirection and inadequacy of reasons but all his grounds were really an attempt to re-argue the facts and the appeal was dismissed.

HIS HONOUR JUDGE HAND QC

Introduction

1. This is an appeal by Mr John Iteshi (“the Appellant”) from the judgment of an Employment Tribunal, comprising Employment Judge Mahoney, Mrs Thompson and Mr Micallef, sitting at Watford over 3 days in May 2009. The judgment and written reasons were sent to the parties on 16 July 2009.

2. The Appellant, who described himself to the Employment Tribunal as a black African of Nigerian nationality and Ibo ethnicity, has represented himself throughout; the Respondents have been represented throughout by Ms Eccles. Ms Jessica Farmer, the Second Respondent, was the Principal Lawyer of the First Respondent. Ms Sharon Clarke, the Third Respondent, was a Senior Lawyer in the Social Care and Education Team of the First Respondents’ legal department. She is not to be confused with Ms Serena Clarke, who was the legal practice manager and who also played a part in the events forming the subject matter of this case.

3. The Appellant, who has qualified at the Bar, as well as holding a law degree, a psychology degree and a Masters degree in employment studies and human resources, applied to the First Respondent for a job as a Legal Assistant and for another job as a Legal Services Assistant. He was not successful so far as the former is concerned; as to the latter he was offered the post but later it was withdrawn and he was not given temporary agency work in the latter capacity, as he claimed to have been promised.

The Issues

4. At the Employment Tribunal there were issues as to whether his non-appointment to the post of Legal Assistant, the withdrawal of the offer of a position as Legal Services assistant and failure to provide work on an agency basis were less favourable treatment on the grounds of race; the Appellant put forward white and Yoruba comparators. There were also issues as to whether the withdrawal of the vacancy for a Legal Services Assistant and the failure to provide agency work, as the Appellant alleged had been promised to him, constituted breaches of contract. The Appellant failed on all theses issues and his appeal is against those adverse determinations. He did succeed, however, on whether or not it was just and equitable to extend the time for him to bring a race discrimination claim in respect of the non-appointment to the post of Legal Assistant; he does not appeal that part of the judgment.

5. Some of the grounds of appeal raised the conduct of the Employment Tribunal but they were withdrawn in March 2010 and the appeal has proceeded on the issues of findings of fact not supported by the evidence, perversity, misdirection as to discrimination and inadequacy of reasons.

The Judgment

6. At paragraph 4.4 of the judgment the Employment Tribunal set out what are described as "statistics relevant to the case". 2.66% of the population of the London Borough of Harrow is of black African origin. 14% of the legal department comprises those of black African origin. 20% of those applying for and shortlisted for the Legal Assistant post were of black African origin. 17.5% of applicants for the post of Legal Services Officer were of black African origin; 14% of those shortlisted were of that origin.

7. The first post to be advertised was that of Legal Assistant; that was in April 2008. The Employment Tribunal described it in this way at paragraph 4.5, 4.6, 4.9, 4.10 and 4.11 of the judgment:

“4.5 This post was for a legal assistant in the Social Care and Education Branch of the Legal Department. The role was advertised as a paralegal position so that it could be filled by an experienced legal secretary, trainee legal executive or the holder of a law degree. The successful candidate would have to handle their own caseload primarily of children cases.

4.6 The respondent stated that they would provide lots of opportunities to develop expertise and learn from colleagues. ...

4.9 The "role purpose" of this post was to have conduct of private and public law proceedings relating to children on behalf of the first respondent and to provide advice/undertake research.

4.10 It was made clear on the selection criteria (page 29) that the application had to show that the criteria marked "A" (which in fact were most of the criteria) were met by the relevant candidate.

4.11 Under the heading "knowledge indicator" there were three categories: –

(a) Knowledge and understanding of the Children Act 1989;

(b) Knowledge and understanding of the Adoption and Children Act 2002;

8. Shortlisting was decided from the details provided by applicants in the application forms which they had returned and the Employment Tribunal made this finding at paragraph 4.12:

“The tribunal finds as a fact that the claimant had no knowledge and no understanding of any of the matters set out in paragraph 5.11 above whereas the five shortlisted candidates had very substantial experience in the field and knowledge and understanding of all 3 matters. In those circumstances the fact that the claimant was not shortlisted was not surprising because he failed to have any of the relevant knowledge necessary to carry out this particular post. The Tribunal went into some detail during the Hearing into the experience of relevant qualifications of the 5 individuals who were shortlisted and it was quite clear that all of them met all those criteria and were able to do the particular job.”

9. The Appellant pointed out that it was clear from his application form he had gone to school and university in Nigeria so that his national and ethnic origin would have been obvious to those selecting the shortlist. The Employment Tribunal found that information “played no part in the determination of the shortlist” (see paragraph 4.14). The Appellant received a letter of rejection, dated 16 May 2008, in respect of the Legal Assistant post.

10. Shortly after he had applied for the Legal Assistant post, the Appellant also applied for a post as a Legal Services Officer. He completed a written assessment form, which was submitted to the First Respondent and on 10 June 2008 he was interviewed. The panel comprised the Second Respondent, the Third Respondent and another employee of the First Respondent. As he had been asked to do, the Appellant produced his Nigerian passport with a view to establishing his entitlement to work in the United Kingdom. The passport contained a visa or endorsement stating that he had a current right of residence in the United Kingdom. Part of the document was photocopied; unhappily a copy was not made of the page to which the Appellant referred and other pages, some of which had out of date stamps, were copied and this may have led to some confusion. At paragraphs 4.23 and 4.24 of the judgment the Employment Tribunal goes into considerable detail as to what exactly happened because it recognised that this was “highly relevant as to what then transpired”.

11. The Appellant was offered the post of Legal Services Officer by the Second Respondent by telephone on 13 June 2008; the offer was subject to certain conditions, one of which was that he had “a legal right to work in the UK" (see paragraph 4.25 of the judgment). Other aspects of that telephone conversation were also of major importance to the case. The Appellant is convinced that he was offered temporary work by the Second Respondent pending the completion of the formalities relating to his appointment but the Employment Tribunal found as a fact that he had not been made such an offer. What had been said is that there was a “possibility” of such an offer, if the Appellant was available, which he confirmed he was. But he had misunderstood the possibility of an offer for a firm offer. Unhappily, at the same time, that confusion was compounded by a lack of communication between the Second and Third Respondents, with the result that the Third Respondent was not told there was a possible candidate for the temporary post and recruited a temporary via an agency.

12. Then the Second Respondent became ill and was admitted to hospital. She was absent through illness from 16 June to 30 June 2008 but when she returned she was not made aware that the Appellant’s right to work in the United Kingdom had been established to the satisfaction of the payroll department (Shared Services). Worse still, although he had been given this clearance, the Third Respondent, who did not know that either, had written to him on 25 June saying that the question as to whether he had the correct paperwork for an established post was being progressed.

13. Given the uncertainty and the apparent delay it is perhaps not surprising that the Appellant became frustrated and, in the course of some telephone calls, allowed that frustration to show. These telephone calls were reported to the Second Respondent on her return. Rightly or wrongly, the Appellant was characterised as having been difficult and argumentative in the course of three telephone calls with different members of staff.

14. It was against that background the telephone conversation between the Appellant and the Second Respondent took place on 1 July. In the first sentence of paragraph 4.36 of the judgment the Employment Tribunal say this:

“The second respondent took the view that this [the perception that the Appellant had been difficult and argumentative] was probably because the claimant was anxious and upset about the job being confirmed.”

15. It seems reasonable to suppose that the Employment Tribunal referred to this in order to emphasise that at the outset the Second Respondent had an open mind. But the telephone conversation did not go well. Whilst the Second Respondent was endeavouring to explain that the delays were not personal she was interrupted and talked over several times by the Appellant, who said he did not believe what he had been told by the Third Respondent. After the conversation had terminated the Second Respondent found out that the Appellant had already committed as much to writing in an email sent the previous day.

16. The Employment Tribunal made this finding at paragraph 4.39:

“Having read that e-mail, which set out a catalogue of what the claimant said had happened during the telephone call on 13 June, the second respondent took the view that taking into account what she had been told by Mrs Law, the third respondent and Miss Hoban; what she herself had heard from the claimant's own mouth over the telephone and his e-mail to Mr Peart, that the offer should be withdrawn. A letter to that effect was sent to the claimant.”

17. The Employment Tribunal then considered the respective submissions of the parties at paragraphs 5 and 6 of the judgment. So far as the Legal Assistant post was concerned, as a qualified barrister, the Appellant believed he was entitled to be shortlisted. The Respondent’s position was that despite his qualification, he did not have the necessary knowledge of the relevant area, namely “children’s matters”. In relation to the Legal Services Officer post, the Appellant's case was that it had been withdrawn due to his race. The Respondent's case was that the withdrawal had been caused by his own behaviour, which led to the conclusion that the Appellant and the Third Respondent would not be able to work together.

18. At paragraph 7 of the judgment the Employment Tribunal directed itself extensively as to the applicable legal principles to be derived from the legislation and authorities relating to both race discrimination and anticipatory breach of contract. On the facts as found the Employment Tribunal rejected the arguments put forward based on the statistical material (see paragraph 8.2). So far as the Legal Assistant post was concerned the Employment Tribunal concluded that the Appellant had not been shortlisted because he was not qualified (in terms of relevant work experience) to do that type of work (see paragraph 8.3).

19. The Employment Tribunal accepted that the offering and subsequent withdrawal of the offer of the post as Legal Services Officer constituted less favourable treatment. But the Employment Tribunal was not prepared to conclude that the less favourable treatment was by reason of the Appellant’s race. The Employment Tribunal found the post was withdrawn because of his behaviour during the telephone calls with three members of staff, including the Second Respondent, to whom he said he did not believe what the Third Respondent had told him, and because of the e-mail of 30 June to Mr Peart in which he had also stated he did not believe what the Third Respondent had told him. Therefore the less favourable treatment was not on grounds of race (see paragraph 8.4).

20. So far as the temporary post was concerned, the Employment Tribunal concluded that it had never been offered to the Respondent. The reason that he had not been put into a temporary post is that it had been allocated to somebody else (see paragraph 8.5).

21. Anticipatory breach is not a feature of this appeal but we should mention that on that issue the Employment Tribunal decided there had been no concluded contract; there was a conditional contract and there could be no anticipatory breach until the condition was fulfilled.

22. Finally the Employment Tribunal awarded costs of £220.00 (see paragraph 10) on the basis set out at paragraph 10.7 of the judgment, namely that the Appellant persisted in what the Employment Tribunal described as “a fundamentally misconceived approach” that his qualification as barrister merited him being shortlisted for the Legal Assistant post after he had been warned that he was taking up too much time by reiterating the point.

The Appellant’s Submissions

23. At the start of his oral submissions the Appellant indicated that he wished to develop the summary written submissions, which were given to this Tribunal on the morning of the hearing, although he still wished to rely on his grounds of appeal, his various skeleton arguments and, of course, his oral submissions as constituting his argument on the appeal. The Appellant has obviously taken great care in the preparation of the appeal and what follows is a combination of all points raised in those documents, with the exception of the allegations of bias, which were withdrawn in March 2010, as well as in his oral argument.

24. The first group of submissions related to the proposition that the Employment Tribunal has made a number of factual errors. We think this is to be distinguished from the allegations of perversity, to which we will come later although there is considerable overlap between them. These alleged factual errors were divided by the Appellant into those relating to the Legal Assistant post and those relating to the Legal Services Officer post. We turn first to the alleged errors in relation to the Legal Assistant Post.

25. It has been a constant theme throughout the Appellant’s submissions that it was incorrect for the Employment Tribunal to state that 20% of those shortlisted for the Legal Assistant post were of black African origin (see paragraph 4.4.3). The correct approach, according to the Appellant, is to contrast the fact that 1 out of 17 of the black African candidates was shortlisted (that is 5.9% of the total number of Black African applicants) with the fact that 2 out of 17 white British applicants were shortlisted; that is 11.8%. These figures are taken from the table set out at pages 50 and 51 of the bundle. This is, of course, not so much a factual error as opposed to one of statistical interpretation. It had to be considered, however, against the practical benchmark that no white British person with the same qualifications as the Appellant would have applied for a Legal Assistant’s post with the First Respondent.

26. A second major theme of the Appellant’s argument related to paragraph 4.11 of the Employment Tribunal’s judgment. The Appellant submitted that this was a factually erroneous finding insofar as it suggested that these were the only criteria that mattered, as was implicit in the judgment. Consideration of pages 77 and 78 of the bundle, where the selection criteria are set out, shows that there were more factors to be considered than those which indicated “knowledge”.

27. Underlying this specific point is the proposition that the Appellant’s qualifications alone should have guaranteed his short listing. The Employment Tribunal concentrated on the three “knowledge indicators” and that blinded them to the fact that some shortlisted candidates had not answered the questions as comprehensively as the Appellant and led them to overestimate or misunderstand the significance of experience so that the Tribunal had concluded erroneously that all shortlisted candidates had “substantial experience” when that was not the case so far as at least two of them were concerned. In fact all selection criteria were supposed to be used in the short listing process and almost all were marked “A”. But there had been no evidence as to what marking procedure had been used. It was also said that there is no evidence to support the finding made by the Employment Tribunal (see paragraph 4.34) that the Third Respondent was a stranger to the paperwork necessary to make and complete an appointment of a new recruit and that the finding at paragraph 4.23 that the passport produced by the Appellant was “quite a bulky document” could be contradicted by sight of the document.

28. Another point made under the umbrella of factual error is that the Employment Tribunal have failed to find that as well as short listing there was an earlier process of filtering out applicants by what has been a called “long listing”. The Appellant has not even been placed on this long list and there had never been any evidence as to the criteria adopted for this process. It is not, however, in our judgment, properly characterised as a factual error point; it is an adequacy of reasons point and when it comes to our consideration of it, we will deal with it when we address the adequacy of the reasons.

29. We should mention in the context of the above points that after the end of the hearing, and without any invitation to do so, the Appellant submitted further documents to “Clarify Issues”. These included the “Shortlist and Outcome Forms”, the outcome of the grievance raised by the Appellant with the Respondent and the Appellant’s closing submissions to the Employment Tribunal.

30. Four points are made in relation to it in the accompanying written submission. The first relates to the “Shortlist and Outcome Forms”. These are said to illustrate the proposition that selection was to be by reference to all criteria. The second relates to whether the Appellant was candidate 70616, as per the “Shortlist and Outcome Form” (at page 50 in the original Tribunal hearing bundle) or 26, as per the written grievance decision. The third point also comes from the written grievance decision, which it is submitted, contradicts the assertion said to have been made in the course of the hearing before us that any point as to long listing had been abandoned during the hearing before the Employment Tribunal. The fourth point arises out of further consideration of the “Shortlist and Outcome Forms” by the Appellant. Looking at them again, the Appellant realises that 6 were shortlisted and not 5. We think this is likely to be a controversial interpretation of the documents. It is one that the Appellant says was raised before the Employment Tribunal, albeit on not precisely the same factual grounds as he submits we should now consider it.

31. The other factual error is said to relate to the temporary post issue. The Appellant submits that the Employment Tribunal made a factual error as to the temporary posts. The Employment Tribunal found that there was one post that had been mentioned to the Appellant by the Second Respondent and then offered in error by someone else to another applicant. The Appellant submitted this was factually incorrect. There were two posts and one had been filled before he had been offered the other; this was confirmed by consideration of pages 121 to 129 of the hearing bundle. Moreover, there was no evidence that the temporary post was confined to Social Care and Education.

32. All of the points raised by paragraphs 25 to 28 and 31 above can also be regarded as raising issues of perversity. Other points, where it is said no reasonable tribunal properly directing itself on the evidence could have reached that conclusion relate to the finding of discourtesy and rudeness; so all of paragraphs 4.34. to 4.38 of the judgment are said to be perverse. There was here, submitted the Appellant, a clear sequence of events, which, if one stripped out all the “noise” caused by the allegations of discourtesy and rudeness, spoke for itself. He had been offered a job, he had proffered documents, in the meantime he had been offered temporary work, he had inquired frequently as to the progress being made in the processing of his job offer (a fact not mentioned by the Employment Tribunal) and he had been faced with procrastination and obfuscation and a reversal of the decision as to temporary work. It was not a rational conclusion on that evidence to find there had been no discrimination. Moreover, difficulties with the passport were never been mentioned to him until 4 July 2010 nor had he been asked to provide more documentary proof.

33. There was a further failure to consider important facts in relation to the conduct of the First and Third Respondents. The Third Respondent must have known by 30 June 2008 that the Appellant was entitled to work in the United Kingdom; once this was understood any reasonable Tribunal would have concluded that the emails of 20 June (see page 132), which confirmed the Appellant’s right to work in the United Kingdom, and of 23 June (see page 133) in which the Third Respondent appears to have ignored the information supplied by the previous email of 20 June, provided a basis for thinking there was an “elaborate plot” against the Appellant. Furthermore in those circumstances a reasonable tribunal properly directing itself would not have placed much reliance on the fact that it was alleged the Appellant had been rude; it would have been understood that there were reasons as to why he might have questioned the explanations being given to him.

34. The Appellant also submitted that the judgment was inadequately reasoned. We have mentioned at paragraph 28 above one specific matter (namely the long listing point), which we think is an inadequacy of reasons point. Apart from that inadequacy of reasons is also a reprise of the points made in respect of factual errors and in relation to alleged perversity.

35. So far as discrimination is concerned the Appellant submitted that the failure to understand the facts properly had led to the Employment Tribunal being unable to approach the discrimination issues from the correct factual perspective. Any objective consideration of the contents of the application forms for the Legal Assistant post must lead to the conclusion that the Appellant should have been shortlisted, that would have shifted the burden to the Respondents and any analysis using the “but/for” test would lead inevitably to a finding of race discrimination. Approaching the case, as the Employment Tribunal had done, from the point of view of the Appellant’s conduct and not from the point of view of that of the Respondents was to ignore the factual core of the case and was clearly erroneous.

36. The Appellant also submitted that Article 6 of the European Convention on Human Rights was engaged because he had not had a fair hearing having regard to the mistakes as to fact and the inadequate reasoning.

37. Finally in his oral submissions the Appellant submitted that this Tribunal should overturn the award of costs.

38. Ms Eccles made a simple and brief response. The Employment Tribunal had given an impeccable self-direction on the applicable law and had applied it correctly to facts, which had been correctly found. Those short listed for the Legal Assistant post had experience of family and child care. The Appellant did not have such experience. That was why the Employment Tribunal had concluded there was not less favourable treatment. The application forms and scoring sheets were all before the Employment Tribunal; they were scrutinised with the result that the Employment Tribunal concluded there had been no inexplicable preference for others over the Appellant. In brief he had qualifications, which were not necessary; those on the short list had experience, which was. As to the Legal Services Officer post and the temporary work the findings there all depended on facts, which the Employment Tribunal had accepted, as was its function.

Discussion and Conclusion

40. The Appellant has asserted that no white person with similar qualifications to the Appellant would have applied for the post of Legal Assistant. It seems to us that this too is really a statistical point but it is an assertion made without any statistics to support it and without any statistics or other evidence to support it, we cannot place any reliance on it.

41. At the forefront of the Appellant’s argument is the implicit premise that somebody as well qualified as him should have been shortlisted. That this was a major theme at the hearing is illustrated by paragraph 10.7 of the judgment, where, in dealing with the application for
costs, the point is described by the Employment Tribunal in these terms:

“ … the claim of the claimant was based on the fact that because he was a qualified barrister he should be short listed. That was an absolutely misconceived approach. He had absolutely no experience in the field at all. He had not done a pupillage, He had no experience of child care matters whatsoever. When warned by the tribunal when evidence was led of the undisputed experience of five individuals who were short listed and was compared with the application form of the claimant, the claimant took umbrage and rejected the approach of the tribunal and proceeded.”

Although we have not quoted it in full, we have already referred to paragraph 8.3 of the judgment (paragraph 18 above) and paragraph 10.7 elucidates it. It shows that the Employment Tribunal had paid close attention to the contents of the application forms of the short listed candidates and contrasted them with that of the Appellant. This was part of their function as a fact finding tribunal of first instance.

42. The Appellant does not suggest, quite rightly, that we should conduct the same exercise. We are not a fact finding body. What he seeks to do, however, is to approach the issue of what is to be drawn from the forms as a matter of principle by submitting that the conclusion drawn by the Employment Tribunal is based on a misdirection, namely, the concentration on the “Knowledge Indicator” criteria to the exclusion of the other criteria set out on pages 77 and 78 of the bundle. We regard this as a submission without merit. Firstly, it seems to us impossible to say that the Employment Tribunal did adopt that approach. It is true that they laid emphasis on the fact that the Appellant had no practical experience of child care work whereas the others had such experience. But they plainly took other factors into account because they considered the comparative qualification point raise by the Appellant. Secondly, in our judgment, having regard to the Respondents’ evidence, the Employment Tribunal were entitled to regard practical experience as encompassed with the Knowledge criteria, even though a literal reading of page 77 might exclude it. Excluding it would have been wholly unrealistic and would have cut down the Respondents’ evidence in an arbitrary, artificial and quite unjust fashion. Moreover, identifying what was regarded as important by a prospective employer is, par excellence, a matter of fact for the Employment Tribunal and the Tribunal cannot be criticised for having accepted the Respondents’ analysis of what really mattered to them in this recruitment exercise.

43. The other two specific suggested factual errors, namely arriving at the conclusion that the Third Respondent was a stranger to the paperwork involved in the recruitment exercise and that the passport was a bulky document depend, in respect of the first, on there being no evidence to support it and, in respect of the second, on a visual inspection of the document. As to the first, we have no notes of evidence to make good the point and we assume that it was an observation by the Employment Tribunal derived from something read or said at the hearing. As to the nature of the passport whether or not it truly merits the description “bulky”, it seems to us the real point being made by the Employment Tribunal was that it was understandable the wrong page had been copied. In any event, even if the Appellant is right about either or both of these matters we do not think that taken individually or collectively they are of significant significance to have any effect on the judgment as a whole.

44. We turn next to the material sent to this Tribunal after the end of the hearing of the Appeal but before dealing with it in detail we wish to make these introductory remarks. The whole point of the procedure of this Tribunal is to enable the parties to bring forth the whole of their arguments for presentation at the hearing. Even if we accept that the fact the Appellant has qualified at the bar and apparently is representing others in Employment Tribunals does not guarantee familiarity with the procedures of this Tribunal, we think the Appellant, like any litigant, represented or not represented, professionally qualified (legally or otherwise) or not, with the benefit of higher education or not, should realise that there must be a finite limit to litigation. Unless very exceptional circumstances apply, that limit occurs at the end of any hearing (subject, of course, to the right of appeal, which is itself limited to the material covered by the original hearing, unless there are very exceptional circumstances). If it did not, then litigation could be by instalment and potentially endless. One exceptional circumstance would be if the interests of justice required the material to be considered and we have looked at the documents submitted with a view to establishing whether they raised issues that required us to send the material to the Respondents to ask for their views. In our judgment this further documentation does not even cross that threshold.

45. The first documents submitted after the end of the hearing related to the “Shortlist and Outcome Forms”. These are said to illustrate the proposition that selection was to be by reference to all criteria. But these forms are not necessary for that point; it is proved by pages 77 and 78. Accordingly they have no evidential value. To admit them is merely to prolong argument on a point already covered and we will not consider them further.

46. The second point is said to emerge from the written grievance decision and it raises an issue as to whether the Appellant was candidate 70616, as per the “Shortlist and Outcome Form” (at page 50 in the original Tribunal hearing bundle) or 26, as per the written grievance decision. The former was obviously before the Employment Tribunal; but even if we assume the latter was not, this could not possibly be described as new or fresh evidence and for that reason alone it cannot be admitted and the point cannot be entertained.

47. The third point also comes from the written grievance decision; it relates to the “long listing issue”. In fact our recollection is that Ms Eccles did not say categorically that the point had been abandoned; she said she could not recall it having been an issue although she did remember it was certainly not raised as an issue by the Appellant during his cross examination. The Appellant submits that this has only become relevant because of the way the Respondent has couched the submissions at the hearing before this Tribunal. We cannot accept that it has become an issue. He adds that his closing submissions (i.e. the third document submitted after the end of this hearing) also confirms that the point was raised. Be that as it may we can address the question of long listing without considering these documents, they add nothing to the controversy and they will not be admitted.

48. The fourth point arises out of the “Shortlist and Outcome Forms”, which he submits show that 6 were shortlisted and not 5. The Appellant tells us this was raised before the Employment Tribunal, albeit on not precisely the same factual grounds as he submits we should now consider it. We do not think it can be regarded as potentially new or fresh evidence; it could have been raised in this form had the documents been examined at the time of the Employment Tribunal hearing; we think it is too late to raise it now and we will not consider it further.

49. The other factual error relates to the offer of a temporary post. The Appellant submitted that there was no evidence the temporary post related to Social Care and Education and that it was clear from pages 121 to 129 of the bundle that there had been two different temporary posts; one had been filled before he was offered the position as Legal Services Officer and the other, which was the one he had been offered was simply withheld from him. Ms Eccles told us that although those pages had clearly been before the Employment Tribunal it was not put on the basis that there were two different posts. But in the light of the finding made by the Employment Tribunal at paragraph 4.25 we think that it does not matter whether this was put or not. The Employment Tribunal said:

“The tribunal is quite satisfied that in this telephone conversation the second respondent did not offer to the claimant a temporary post. What she id in this telephone conversation was to offer the claimant the possibility of a temporary post by asking him if he was available straight away, which in fact he was. That is what she offered.”

50. In the next two paragraphs of the judgment the Employment Tribunal find there to have been a misunderstanding, firstly, as between the Appellant and the Second Respondent and secondly, as between the Second and Third Respondents. The Employment Tribunal also find as a fact that there were 3 posts and that he had been allocated to Social Care and Education. The temporary post there had been filled. None of this is in conflict with pages 121 to 129 of the bundle and comprises findings of fact made after the relevant documents had been considered and the evidence had been heard. Irrespective as to whether this point was or was not raised in this form before the Employment Tribunal, it seems to us to be an attempt to re-argue the facts of the case and, as such, not something we can consider on an appeal, unless it can be said to be a finding that no reasonable tribunal properly directing itself on the evidence could have made.

51. That leads us on to the next group of submissions made by the Appellant on the issue of perversity. In essence the Appellant contends that all the points made about factual errors can also be considered in terms of perversity, as can all the findings made as to the reason why the offer of the post of Legal Services Officer was withdrawn. So he submits that no reasonable tribunal properly directing itself on the evidence could have reached the conclusion that the real reason for the withdrawal of the offer was his conduct during the course of telephone conversations and the way he expressed himself in email communication.

52. In our judgment all the matters of which the Appellant complains are matters where the Employment Tribunal had to reach a conclusion by weighing the competing arguments and reaching a decision, one way or another. So far as the Legal Assistant post was concerned the Employment Tribunal had to decide whether the criteria had been properly applied or not. The Appellant has one view as to what mattered and how the criteria should have been applied; the Respondent had a different view. The former emphasised qualification; the latter regarded past practical experience as the important factor. The Employment Tribunal accepted that was genuinely what the Respondent wanted and why it short listed other candidates and not the Appellant. We take the view that was a conclusion open to it on the evidence. Similarly, in relation to the Legal Services Officer position the Employment Tribunal had to decide why it was withdrawn. It did so by accepting the Respondents’ evidence and it cannot have been said to be perverse to do so. The test proposed by the Appellant of ignoring the Respondents’ evidence and considering only the underlying chronology is artificial and unrealistic and we reject it as an appropriate approach. No doubt, from the Appellant’s point of view, the lack of progress was frustrating but the Employment Tribunal had to decide whether the Second and Third Respondent and the witnesses for the First Respondent were telling the truth about events, as they saw them. They decided that they were and such a decision was within the range of reasonable decisions, which could have been made on the evidence. The perversity ground cannot succeed.

53. The specific point made by the Appellants about when the Third Respondent will have known that he was entitled to work in the United Kingdom without restriction seems to us to depend on a reading of the emails passing between various employees of the First Respondent as showing that the precise information was communicated to the Third Respondent before or by 30 June 2008. We would not read pages 132 to 133 as establishing that and plainly the Employment Tribunal did not put that construction on them either. In any event, even if it is accepted that the Third Respondent saw all the email traffic that would not, without more, support the Appellant’s contention that she was at the heart of an “elaborate plot”. Indeed it seems to us that the Employment Tribunal were addressing this point when they observed at paragraph 4.34 that the Third Respondent had “never before carried out the task of completing relevant paperwork for appointment”. That observation is, by implication, relevant to her state of mind and it negates the idea of her being party to an “elaborate plot”.

54. We turn now to the allegation that there was a misdirection as to discrimination. Between paragraphs 7.1 and 7.13 the Employment Tribunal gave itself a thorough self direction as to the law relating to race discrimination. We do not understand the Appellant to challenge its correctness. His case is that the Employment Tribunal have failed to apply it to the facts of this case. So far as the Legal Assistant post is concerned, he submits that he has been less favourably treated because he has not been shortlisted. The Employment Tribunal took the view he was not less favourably treated because the criteria were applied in the same way to all candidates, and, along with a large number of other candidates, he was excluded because he did not have the necessary knowledge and experience of child care work. We cannot see how that approach involves a misdirection. In any event, even if the reasons for not short listing do not make the treatment less favourable, they would apply with equal force at the stage of deciding whether there was any explanation for the less favourable treatment other than the Appellant’s race and the findings of the Employment Tribunal suggest that even though the Respondents would bear the burden of proof, it would have been discharged.

55. We have to confess to finding some difficulty with the Appellant’s submission that a “but/for” test should have been applied in this case. Its classic utility lies in differentiating motive from intention where causation is a significant issue. In our view that was not an issue here and we fail to see that it has any significance in the present context.

56. On the question of adequacy of reasons, we cannot accept that the reasons fail to comply with rule 30(6) of Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861. So far as the process of “long listing” is concerned, although there is some controversy about whether the point was or was not a live one before the Employment Tribunal, we are prepared to assume that it was raised. It is not mentioned by the Employment Tribunal but only those issues, which are relevant need feature in the reasons. We cannot see how the long list is a relevant consideration. No doubt the reasons for not including the Appellant in it were similar to, if not the same, as the reasons why he was not put on the short list. In any event it was the short list that was the relevant consideration. This was adequately dealt with by the Employment Tribunal. We do not regard the failure to mention the long list as inadequate reasoning on the part of the Employment Tribunal.

57. The Appellant also invokes Article 6 of the ECHR on the basis that all his complaints mean that he has not had a fair hearing. But we have found that none of his complaints have merit and there is no suggestion that the procedure at the hearing disadvantaged him in any way. He cannot succeed on that ground.

58. Finally we turn to the question of costs. We did not understand this to be raised by the Notice of Appeal. In any event, it seems to us that the Employment Tribunal cannot be said to have exercised its discretion unlawfully and we cannot interfere.

59. We have gone through the Appellant’s argument and dealt with his points at some length out of deference to the industry with which he has assembled his case but that we have dealt with his case discursively should not be misunderstood. We have no difficulty in thinking that there is no merit in any of his arguments and that, in reality, the appeal is simply an attempt to re-argue the facts. Consequently the appeal will be dismissed.