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Appeal No. UKEAT/0095/10/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 28 May 2010

Judgment handed down on 9 July 2010

Before

HIS HONOUR JUDGE PETER CLARK

DR B V FITZGERALD MBE LLD FRSA

MS P TATLOW

MISS S A EDWARDS (APPELLANT)

SWINDON BOROUGH COUNCIL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR SIMON PRITCHARD (of Counsel)
Bar Pro Bono Unit

For the Respondent
MR LACHLAN WILSON (of Counsel)

Instructed by:
Swindon Borough Council
Legal Services
Civic Offices
Euclid Street
Swindon
SN1 2JH

PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke

RACE DISCRIMINATION

Direct

Indirect

Whether Employment Tribunal reasons Meek compliant. Direct race discrimination; ET accepted Respondent's non-discriminatory explanation for treatment complained of. Indirect discrimination; Claimant failed to establish PCP contended for.

1. In this case the parties before the Bristol Employment Tribunal were Miss Edwards, Claimant and Swindon Borough Council, Respondent. Following a 5 day hearing, by a Judgment with reasons, signed by the Judge on 30 July 2009 (the date of promulgation in August is indecipherable), an Employment Tribunal chaired by Employment Judge Simpson dismissed the Claimant's claims of both direct and indirect discrimination. We pause to observe that at an earlier PHR held before Employment Judge Sara the issue was identified as solely one of indirect discrimination (his Order dated 26 February 2009, para. (b), however, at the outset of the hearing before Judge Simpson's Tribunal, at which the Claimant represented herself and the Respondent was represented by Mr Lachlan Wilson of counsel, who now appears before us, the Tribunal, no doubt through the Chairman, reviewed the issues and determined that this was also a claim of direct discrimination. The Tribunal also rejected a preliminary submission by Mr Wilson that the claim of indirect discrimination could not succeed. We highlight that passage of play because, as we shall see, the thrust of the appeal is that the Employment Tribunal's reasoning is not Meek compliant; understates, if not misstates, the law and reaches unsustainable conclusions in law. We shall return to the detailed criticisms of the Employment Tribunal's approach in due course, but we simply observe at this stage that the Judge consciously addressed the disparity of representation from the beginning. Indeed he comfortingly assured the Claimant (para. 2) that "she should not feel disadvantaged by her limited knowledge of the law as it was the Tribunal's responsibility to get that right." The question in this appeal is whether the Tribunal did get the law right and if not whether this case must be retried before a fresh Employment Tribunal, the order sought by Mr Simon Pritchard, now appearing on behalf of the Claimant pro bono.

1. Following promulgation of the Employment Tribunal Judgment the Claimant appealed to this Tribunal. She settled the Notice of Appeal herself. Unsurprisingly, since it raised no point of law, it was rejected by Burton J on the paper sift under EAT r3(7).

1. The Claimant exercised her right to an oral hearing under r3(10). That appellant only hearing took place before me on 3 February 2010. On that occasion the Claimant had the advantage of representation by Ms Diya Sen Gupta of counsel, again pro bono. On the basis of Ms Sen Gupta's oral submissions in support of amended grounds of appeal settled by her I permitted that wholesale amendment of the Notice of Appeal and also directed that the appeal proceed to this full hearing. It is the nature of our procedure that those directions were made without hearing (or reading) any representations by and on behalf of the Respondent.

1. As Lord Hope observed in Anyanwu v South Bank Students Union [2001] IRLR 305 discrimination cases are fact-sensitive. Thus the starting point in any discrimination case must be clear findings of primary fact by the Employment Tribunal. Of course, that is not the end of the matter. It is unusual to find direct evidence of racial discrimination: normally a finding of unlawful discrimination will depend on what inferences it is proper to draw from the primary facts found; in appropriate cases inferences may also be drawn adverse to a Respondent from his replies to any statutory questionnaire served by the Claimant – see King v Great Britain-China Centre [1992] ICR 516, per Neill LJ.

1. The primary findings of fact are set out at para. 16 of the Employment Tribunal's reasons. The Claimant, born on 7 December 1972 self describes as being of black British/Caribbean ethnicity. She has an impressive academic background. She came to live and work in Swindon in early 2008, where she met Paula Harrison of the Respondent who gave her help and advice in her search for employment.

1. This case concerns 2 job applications made by the Claimant to the Respondent. The first was in response to a full-time vacancy as a Neighbourhood Enforcement Officer (NEO) advertised by the Respondent in about June 2008. Applications were considered by the same Paula Harrison and Kate Rowe, both of whom gave evidence before the Employment Tribunal. They rejected the Claimant's application on the grounds that her completed application did not provide evidence that she met the required criteria for the post. The eventual successful candidate was Michelle John, an internal candidate and personal friend of the Director of Community Services, Chris Sivers.

1. In August 2008 the Respondent advertised for a part-time NEO. Again the Claimant applied. This time she was short-listed for interview. The same panel, Kate Rowe and Paula Harrison, conducted the interviews. The candidates were scored individually. The Claimant returned the lowest score of those interviewed and was not offered the post.

1. The Claimant adduced statistical evidence from Adrian Robinson, a former Equalities Officer and HR adviser with the Respondent. The Employment Tribunal were puzzled (para. 10) by his conclusion that members of the black British/Caribbean community had less than no chance of being employed by the Respondent even although its workforce contained 1.07 per cent of persons of that ethnicity, a proportion almost precisely reflected in the population of Swindon as a whole.

1. In her form ET1 the Claimant summarised her complaint in this way:

"I believe that the recruitment policy discriminated against me as internal employees were favoured over external employees. This practice is indirectly discriminatory because I was treated less favourably because of my race."

She also referred to an RRA questionnaire which she served on the Respondent on 18 November 2008.

1. In their form ET3 grounds of resistance, the Respondent asserted rigorous adherence to its Equal Opportunities Policy and set out its version of the facts relating to the 2 job applications which, in the event, the Employment Tribunal accepted at para. 16 of their reasons.

1. In these circumstances, in his Order dated 26 February 2009, Employment Judge Sara focused on the Respondent's alleged practice of favouring internal candidates which, it was said, placed African Caribbean applicants at a disadvantage. We have earlier indicated that Employment Judge Simpson's Tribunal added an alternative claim of direct discrimination so as to fully encompass the Claimant's complaint.

1. At para. 19 of their reasons the Tribunal, referring back to their finding at para. 9 that they were not persuaded that Michelle John's known friendship with Chris Sivers influenced the decision by Kate Rowe and Paula Harrison to offer the full-time NEO post to Michelle John, rejected any suggestion of bias or favouritism towards Ms John, as alleged by the Claimant.

1. At para. 5 they refer to the parties written (closing) submissions, accompanied by 5 authorities cited by Mr Wilson and copied for the Employment Tribunal. Although not set out expressly in the Employment Tribunal's comparatively short reasons we cannot overlook the way in which each party's case was put in those written submissions, which are before us. In particular we are satisfied that Mr Wilson set out all the relevant provisions of the Race Relations Act 1976, including s54A, incorporating the reverse burden of proof.

1. In an economical statement of the law, the Employment Tribunal say this at para. 17:

"The law is to be found in the Race Relations Act 1976 as amended which we interpret with the benefit of Judgments of the EAT and the courts having particular regard to the cases sited (sic) to us by Mr Wilson which are detailed above. We also have regard to European Jurisprudence where appropriate."

Mr Wilson does not appear to have cited any ECJ authority as such, nor do the Employment Tribunal refer to any particular decision of that court.

1. The burden and standard of proof is addressed at para. 15 thus:

"In respect of the direct discrimination the burden lies on the claimant to satisfy us that there are facts from which we shall infer that there has been race discrimination. It thereafter shifts to the respondent to prove that there has been no such discrimination and to justify the acts or omissions which give rise to our inference. The burden of proof is that of the balance of probabilities i.e. the normal civil standard."

1. Finally, the Employment Tribunal dealt with the law of indirect discrimination at para. 20 in this way:

"As to the claim of indirect discrimination, this requires us to be satisfied by the claimant that there is a provision, criterion or practice (PCP) in place in the respondent's organisation which puts a person of the claimant's race or ethnicity within a group of such people at a disadvantage vis-a-vis others in such a comparator group. It is further necessary for her to show that she was in fact put at a disadvantage. If such (PCP) can be identified it then falls to the respondent to justify it if it is to succeed."

1. As to direct discrimination, the additional alternative claim by the Claimant, at para. 19 the Employment Tribunal rejected the factual premise of the claim, namely that the relationship between Michelle John and Chris Sivers had resulted in her being preferred for a post for which the Claimant regarded herself as both qualified and well suited. It is apparent (paras. 11 and 16.3) that the Employment Tribunal accepted the evidence of Kate Rowe and Paula Harrison that the Claimant's application for the full-time NEO post did not show that she met the required criteria. Further, it seems to us that the Employment Tribunal accepted the evidence of those panel members that in relation to the part-time post the Claimant genuinely scored the lowest overall mark of the interviewed short-listed candidates.

1. Turning to indirect discrimination, at paras. 21-22 the Employment Tribunal found:

(i) That the Respondent did not operate a PCP favouring internal over external candidates, based on the evidence of Ms Sivers, which the Employment Tribunal accepted, that in the past 12 months of the 18 new employees in her Department 14 were external candidates.

(ii) Further, there was no evidence, adopting a national pool, that the Claimant suffered any adverse impact.

1. Although Mr Pritchard invites us to allow the appeal and remit the Claimant's race discrimination claims to a fresh Employment Tribunal for rehearing the individual grounds of appeal, to which we shall come, appear to focus on the finding by the Employment Tribunal of no direct discrimination only.

1. However, for the avoidance of doubt we are satisfied that, on their findings of fact the Employment Tribunal was entitled to reject the PCP advanced by the Claimant. The claim necessarily failed on that basis alone.

1. Even if the Claimant had established, on the facts, a PCP of preferring internal candidates that would not, without more, demonstrate adverse impact on the Claimant's racial group.

1. Accordingly we turn to the various ways in which the Employment Tribunal's finding of no unlawful direct discrimination is challenged.

(1) Self-direction (para.17)

1. We have earlier set out para. 17 of the Employment Tribunal's reasons. We acknowledge immediately that it is hardly a model self-direction. Whilst an employment Tribunal's Judgment is not automatically flawed by failing to refer to the relevant statutory provisions and judicial principles to be derived from the authorities it is a fact that the Employment Tribunal do not directly refer to the relevant statutory provisions. However, we take into account that those provisions are set out in full in Mr Wilson's closing submissions below, to which the Employment Tribunal had regard.

1. Mr Pritchard submits that the Employment Tribunal's self-direction at para. 17 does not comply with r30(6) of the Employment Tribunal Rules of Procedure; it is not 'Meek compliant', to borrow the phrase coined by Sedley LJ in Tran v Greenwich Vietnam Community [2002] ICR 1101, para. 17. He refers us also to English v Emery Reimbold [2002] 1 WLR 2409. During the course of argument we referred to the judgment of Sedley LJ in Anya v University of Oxford [2001] ICR 847.

1. We are fully aware of the principles stated in those cases. However, we do not sit in this appeal tribunal as examination markers, simply judging employment tribunal decisions on style over content. Had that been our role this Employment Tribunal Judgment would not pass muster. It is unstructured and borders on the folksy. However, we must look beyond the style to the substance. Can we be confident that the Employment Tribunal asked itself the right legal questions and sufficiently explained its reasoning process to explain why the parties won or lost? We shall return to that question having considered the particular points raised in the amended grounds of appeal, as developed by Mr Pritchard.

(2) Burden of proof

1. The introduction of s54A RRA (and equivalent provisions in other discrimination legislation and equality regulations) generated much discussion, culminating in the somewhat convoluted guidance by the Court of Appeal in Igen v Wong [2005] ICR 931. In reality, all that the reverse burden of proof provision does is to restore the pre-Zafar analysis by Lord Browne-Wilkinson, when President of the EAT, in Chattopadhyay v Holloway School [1982] ICR 132 – see Glasgow City Council v Zafar [1998] ICR 120.

1. Nevertheless, it is not uncommon to see employment tribunals slavishly set out the revised Barton guidance contained in the Annex to the court's judgment in Igen delivered by Peter Gibson LJ. No Employment Judge will find his judgment overturned for following that course; however the critical question is whether the guidance has been properly applied to the facts of the individual case.

1. In the instant case Mr Pritchard quite correctly points to a small, but potentially significant error in this Employment Tribunal's self-direction as to the first stage of the two stage approach set out in s54A. Whereas s54A(2) refers to,

"the complainant proving facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -

(a) has committed ….. an act of discrimination."

In its self direction at para. 15 the Employment Tribunal has substituted the word 'should' for 'could', thereby placing an unwarranted additional burden on the Claimant.

1. We see the force of that submission. However, that is not quite the end of the matter. Even assuming, in the Claimant's favour, that she passes stage 1 of the Igen test, thereby placing the onus on the Respondent to show a reason for the treatment complained of, has the Respondent provided an explanation for that treatment wholly unconnected with the Claimant's race? The cases of Madarassy v Nomura plc [2007] ICR 867 (CA) is authority for the proposition that it is permissible for an employment tribunal to proceed directly to the second stage, has the Respondent provided a non-discriminatory explanation for the treatment unconnected with race? It is clear from para. 15 that this Employment Tribunal was aware that the burden lay fairly and squarely on the Respondent to disprove discrimination at this stage.

1. Assistance here may also be derived from the 'reason why' question formulated by Lord Nicholls in Shamoon [2003] ICR 337 and adopted by Elias J in Bahl [2003] IRLR 640; why was the Claimant treated by the Respondent as she was?

1. On this Employment Tribunal's findings it is plain to see the answer. She was not short-listed for the full-time NEO post because her application form did not demonstrate that she met the required criteria for the post; it was not because she was an external candidate. It had nothing whatsoever to do with her race.

1. Similarly, she did not secure the part-time NEO post, having been short-listed, because she was the lowest scoring candidate. Mr Pritchard makes the point that there was evidence before the Employment Tribunal that some of the Claimant's scores had been altered by the interviewers. So there was. But the Employment Tribunal accepted both Kate Rowe and Paula Harrison as consistent and credible in their evidence (para. 11). They implicitly considered that evidence and found that there was nothing sinister in those alterations.

(3) Motive

1. It is well-established that discrimination may be conscious or subconscious; it is not necessary for a claimant to show that a respondent was consciously motivated to treat the claimant less favourably on grounds of her race – see Nagarajan v LRT [2001] 1 AC 501 and the recent discussion in Amnesty International v Ahmed [2009] IRLR 884; Underhill P, sitting with Ms Tatlow and Mr Yeboah.

1. It follows, submits Mr Pritchard, that at para. 19 the Employment Tribunal misdirected themselves in finding that there was no racial motive in the Respondent's rejection of the Claimant's job applications.

1. That proposition oversimplifies the position in our view. Usually, as Neill LJ observed in the case of King, there will be no overt evidence of discrimination. That is because the pernicious scourge of racial discrimination has moved on from the boarding house signs in the 1950s: 'no blacks'. It will often be a matter of nuanced inference to be drawn from the primary facts. However, in the present case the Claimant contended that the reason why she failed to be selected for the full-time NEO post and Ms John succeeded was because the latter was an internal candidate and personal friend of Ms Sivers. The suggestion is plain; that Ms John was favoured by the selection panel for those reasons, whereby the Claimant was less favourably treated. Had the Employment Tribunal rejected the evidence of the panel members on this aspect of the case, no non-discriminatory explanation having been advanced for such treatment, then it is highly probable that the claim of direct discrimination would have succeeded. But that was not the factual outcome.

1. Critically, we think, the Employment Tribunal did not stop at examining racial motivation; they also found that none could be inferred. In essence, the Employment Tribunal accepted the Respondent's non-discriminatory explanation for their treatment of the Claimant. Stage 2 of Igen was satisfied.

(4) The s65 RRA questionnaire/disclosure

1. As Mr Pritchard points out, in his PHR Order Employment Judge Sara observed that as at that hearing the Respondent had not then fully answered the Claimant's questionnaire and that the full Employment Tribunal would draw such inferences as were appropriate. It is also correct that Judge Simpson's Tribunal does not refer to that matter anywhere in their reasons. Further, there is an oblique reference to the questionnaire at page 5 of the Claimant's closing written submissions below.

1. Does that omission amount to an error of law by the Employment Tribunal? We are persuaded by Mr Wilson that it does not. It is not a point which appears to have been developed by the Claimant below. The complaint at the PHR before Employment Judge Sara was that the Respondent had failed to provide full disclosure; particularly originals of the interview score sheets of other candidates for the part-time NEO post. By the time of a further PHR before Employment Judge Ford on 27 March 2009 it appears from that Judge's Order that he did not consider the Respondent to be in breach of the earlier orders made by Employment Judge Sara.

(5) Adverse inferences

1. We do not accept that this Employment Tribunal was blind to the possibility of drawing inferences adverse to the Respondent in determining whether the Claimant had raised a prima facie case of direct discrimination. However, we repeat, in our judgment the Employment Tribunal has demonstrably accepted the Respondent's non-discriminatory explanation for the treatment of which complaint is made.

1. We return to the question of Meek compliance. We do not regard this Employment Tribunal's reasons as a model to be widely followed. It lacks the precision and format which we have generally come to expect from employment tribunals in these always difficult and sensitive cases. Without more, the appeal raises challenges which require answers. Having now heard both parties we are satisfied that Mr Wilson has fully met those challenges. In short, the reason why the Claimant lost her primary claim of indirect discrimination is that she failed to establish the PCP which she alleged. She lost her secondary claim of direct discrimination because (a) she was not short-listed for the part-time post, not because she was an external candidate, or because she was black, but because her application did not reveal the required competences and (b) at interview for the part-time post she was genuinely scored lowest by the panel out of the candidates seen.

1. In these circumstances this appeal fails and is dismissed.