The claimant, who was a black Nigerian man, applied for a job as Legal Advisor with the respondent. He satisfied the essential requirement that the applicants should hold at least a 2:2 degree and being qualified to practice in England and Wales as either a solicitor or a barrister. However, according to the respondent, he did not satisfy either of the desirable criteria, namely having a 2:1 degree and experience of one or more of competition law, public law and utility regulation and was therefore not short listed for interview. He claimed direct and indirect race discrimination and sex discrimination, all of which were dismissed by the ET. The EJ said that the claimant 'did not demonstrate a comparable level of qualification skills and experience in competition, economic, regulatory or utility matters to the candidates who were selected for interview'. The EJ ruled that the complaints had no reasonable prospect of success and struck them out, despite knowing how rare such an order was. Lest she were wrong about the primary decision, she decided that a deposit order should be made since the claim had little prospect of success. The claimant appealed against the striking out of the direct race discrimination claim.

The EAT upheld the decision of the ET. The claimant had not produced what he had to show for Madarassy v Nomura International Plc. More was required than the simple combination of the claimant's Nigerian nationality and his lack of success at the short listing stage: this did not get him past stage 1 of the burden of proof. The case was bound to fail under s3 (relevant comparator) and the judge did not err in striking it out.

_________________

Appeal No. UKEAT/0178/11/DM

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 September 2011

Before

HIS HONOUR JUDGE McMULLEN QC (SITTING ALONE)

MR J ITESHI (APPELLANT)

OFFICE OF WATER SERVICES (OFWAT) (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR EDWARD KEMP (of Counsel)

Bar Pro Bono Unit

For the Respondent
MISS CHARLENE HAWKINS (of Counsel)

Instructed by:
DLA Piper UK LLP
Victoria Square House
Victoria Square
Birmingham
B2 4DL

**SUMMARY**

RACE DISCRIMINATION – Direct

The Employment Judge struck out the Claimant's case of race discrimination on the ground of his Nigerian nationality as having no reasonable prospect, knowing how rare such an order is. On appeal the Claimant who did not attend the Employment Tribunal accepted he was not as qualified by experience etc as those sifted to interview. The case was bound to fail under section 3 (relevant comparator) and Madarassy and the judge did not err in striking it out.

**HIS HONOUR JUDGE McMULLEN QC**

1. This case is about a failure by an applicant to obtain an interview for a position as a legal adviser. I will refer to the parties as the Claimant and the Respondent.

**Introduction**

1. It is an appeal by the Claimant in those proceedings against a Judgment of Employment Judge Dean, sitting alone at a PHR at Birmingham, registered with Reasons on 28 July 2010, following a one-day hearing. The Claimant did not attend. The Respondent was legally represented. Today, the Claimant has the distinct advantage to have been represented by Mr Edward Kemp, who gives his services for the Bar Pro Bono Unit, and the Respondent is represented by Miss Charlene Hawkins, both of counsel.

1. So far as is relevant, the Claimant claimed direct race discrimination in the failure to sift his application for the post to an interview stage. He had made other claims but these grounds of appeal had been disposed of by Bean J at a rule 3(10) hearing, where the Claimant appeared in person. Notably he claimed direct sex discrimination and indirect race discrimination, neither of which has been pursued today.

1. A large number of his other grounds were rejected by Bean J, who refined the issues to be determined at a full hearing in the following way:

"9. The argument that Mr Iteshi is in my judgment entitled to run on appeal is as follows: (1) The decision makers were aware of candidates' nationalities and in his case were aware of the fact that he was Nigerian; if that is so, (2) the fact that none of the five black candidates out of a total of 107 candidates who applied for the job was shortlisted gets him over the first stage of Igen Limited & Ors v. Wong [2005] IRLR 258; and (3) the fact that all the successful candidates had at least a 2:1 degree is not a conclusive answer which, at least for the purposes of a strikeout, plainly discharges the employers' burden of proof at the second stage of Igen v. Wong because the Respondent's answer to Mr Iteshi's discrimination questionnaire – question 7, page 49 of the bundle – does not mention degree class as being the reason or even one reason why he was not shortlisted."

Bean J was concerned also that the Judge had made an error in her assessment of the knowledge of the Respondent as to the ethnicity of the Claimant.

1. The Employment Judge struck out the Claimant's claims and had she not so done, she would have acceded to the Respondent's application that a deposit order should be made and she would have ordered £100 to have been made under rule 20. The Claimant appeals against the striking out of his direct race discrimination claim.

**The legislation**

1. The legislation is not in dispute in this case. The Claimant is self-described as black, African, Nigerian national of Igbo ethnic origin, and so claims direct discrimination contrary to section 1 of the Race Relations Act 1976. For the purposes of the appeal, the major issue relates to the Claimant's Nigerian nationality from which Bean J inferred, and I respectfully agree, that seeing that on a form, it could reasonably be inferred that the Claimant is black, and of course African. That corresponds to the meaning of a racial group within section 3. As will become apparent, the important part of the legislation is section 3(4) which provides as follows:

"3(4) A comparison of the case of a person of a particular racial group with that of a person not of that group, under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different in the other."

1. Procedurally, powers are given to an Employment Tribunal Judge to strike out claims under rule 10(1) if they stand no reasonable prospect of success, or if they are vexatious. The Judge examined the meaning of vexatious but made no finding about that, confining herself to the striking out of the claims on the grounds that they had no reasonable prospect of success.

**The facts**

1. The facts relating to Mr Iteshi's background have been fully explained in judgments given respectively by HHJ Hand QC, HHJ Richardson and by me, most recently, on 30 August 2011, in [Iteshi v BT PLC]() [2011] UKEATPA/0378/11. The Claimant explained to the Employment Judge his dispiriting history of 200 applications for jobs inuring into simply two invitations to interview, but she expressly decided the case on the material which she had, without reference to those other applications and, in hearing the appeal raised today, I focus solely on the Judgment of Employment Judge Dean.

1. In September 2009, the Respondent advertised for a number of positions including Legal Adviser, and the Claimant applied for it. There were 107 applications. Of the 107, 37 did not declare their ethnicity in a monitoring form which was not disclosed to the people who were making the decisions, but it shows that there were 27 people who might be described as BME and 43 white. Of the 13 candidates selected for interview, 9 were white and 2 BME. There were no black interviewees. There were 5 self-described black candidates but one does not know whether any other than the Claimant was Nigerian.

1. The process of advertising enabled the applicants to see what it was that was required, and the Claimant made his application knowing what the job involved. For example, in the "Information for Applicants", there is this:

"Qualifications and Experience

You may currently be in private practice, a government department or a regulator with experience in any of the following areas: public law, competition law or utility regulation. Your background is not important so long as you are keen to use your first class legal skills in a creative and practical way to help achieve Ofwat's objectives.

You will be educated to 2:2 degree level or equivalent with the ability to demonstrate equivalent intellectual ability (including through relevant experience). An interest in and enthusiasm for the work done by Ofwat and its legal team is a key attribute we'll be looking for."

1. The person specification divided the criteria between essential and desirable, and the measurement of the essential qualifications was to be done by reference to the application form and interview, if progressed to interview. On the other hand, other essential attributes would be determined by a test and an interview. The desirable qualifications were to be measured by the application form. Essential qualifications are a 2:2 degree and qualified to practice as a solicitor or barrister in England and Wales. There are other essential matters. Broadly speaking, they are divided as between qualification, experience, knowledge and skills. In the second category, that is desirable, there are four criteria. For "desirable" the degree level is 2:1, and experience of one or more of competition law, public law and utility regulation.

1. The finding by the Judge (para 17, cited in para 16 below) is not challenged. That is, that when compared with the candidates who were selected for interview, what I will broadly describe as the Claimant's qualifications (to include experience and so on) was not of the same standard. This may be hurtful for him to appreciate, but represented now by counsel as he is, no challenge is made to the Judge's findings about the relative qualifications of the Claimant and the 13. The Judge was able to look at these matters objectively.

1. That being so, the exercise she was engaged in was to decide whether or not there was a reasonable prospect of success in the claim. The Claimant was rejected. The sifting of the applications went through the process described by the Respondent's witness, Mr Beale. He gave evidence by way of a witness statement and, according to the Judgment, the Judge heard his evidence, from which I take it that there was live evidence, clearly unchallenged since the Claimant did not attend.

1. The sift process is described in the following way:

"14. I find that the respondents, as confirmed in their Notice of Appearance undertook a sifting process of the 107 applications for the two posts. The first sift excluded any application forms that were not complete. The first stage at the second sift was to confirm that the applicants had the essential qualifications being that of holding a 2:2 degree and being qualified to practice in England and Wales as either a solicitor or a barrister. The claimant met that essential qualification criteria and proceeded to the next sift. Not surprisingly, candidates who possessed only the essential qualification criteria were not automatically selected for interview. There was nothing to suggest in the information to candidates that automatic selection to interview would be granted to those who met their essential qualifications. The respondents, as do many employers who are heavily subscribed for posts undertook a second stage sift which itself fell into two parts. The claimant progressed through the first stage of the second sift. In the evidence provided Mr Beale, the respondents rejected two candidates in the first sift and a further 15 candidates at the first stage of the second sift. Two candidates progressed through the sift automatically to interview under the Guaranteed Interview Scheme which is operated by a Civil Service Department (page27) and guarantees interviews to individuals who meet the minimum requirements for the post and who have a disability or long term health condition. At the second stage of the second sift a panel three people read the application forms and to determine who should be interviewed. The panel comprised of Mr Beale the deputy director of legal services, the other deputy director of legal services and the HR administer Robin Davis. Having previously been unable to find a suitably qualified candidate to recruit a water regulatory lawyer with experience in that area of expertise required by OFWAT, the respondents had considered it unlikely that the ideal candidate with water regulatory experience existed and the respondents decided to consider each of the application forms in their entirety to consider how applicants demonstrated their potential suitability to the roles. The desirable qualifications were considered at this stage. The respondents were pleasantly surprised. As an indication of suitability, particular attention was paid to the academic qualifications, relevant experience and transferable skills of the candidates."

1. The papers before the Judge included the Claimant's application, others' applications and the questions and answers in respect of a statutory questionnaire. The Judge's finding was this:

"15. […] of those candidates selected for interview, with the exception of the GIS candidates, all of those candidates sifted to be invited to interview held first degrees, held upper second class degrees ("2:1") and other relevant qualifications. The possession of a first degree is also defined by the respondents in their summary table as being equivalent to NVQ 4. The GIS candidates and the claimant attained a 2:2 degree. In essence, the claimant's CV demonstrated that he had received a commendation in his professional legal services skills, in comparative terms his academics were not as impressive or as relevant as those selected for interview (pages 59 and 60). The claimant's work experience in the legal field comprised of his MA in employment studies and human resource management coupled with his job at the time, primarily advising on employment law and was not considered by the respondents to demonstrate an overriding interest or understand the economics, regulatory issues or competition and utilities law. Moreover the claimant would not be required to deal with employment law matters at OFWAT.

16. In contrast, as demonstrated in the summary of qualifications of candidates selected for interview and as evident from the CV's that had been sent to the claimant, the majority of candidates selected for interview had academic experience in European law or competition law which was considered to be the relevant knowledge and their work experience demonstrated experience of relevant areas of the law and practice, which would be used by the successful candidates within the respondents. I find it is plainly evident from the reading of the curriculum vitae and job application forms of the candidates shortlisted for interview, that the claimant did not demonstrate a comparable level of qualification skills and experience in competition, economic, regulatory or utility matters to the candidates who were selected for interview. The "Information for Applicants" document stated (page 36)

'all applications will be considered carefully and those candidates who appear from the information available to be best suited for the post will be invited to interview. It is important, therefore, that your application form gives a full but concise description of the nature, extent and level of responsibilities you have held.'"

1. It is important to note that the Judge was looking principally at the materials which were exigible before the Respondent's sift panel, the witness statement of the Claimant and the written and live evidence of Mr Beale. This is the finding:

"17. The information provided to me at the pre-hearing review and delivered to the claimant in response to his discrimination questionnaire, demonstrates that the applicants who were invited for interview demonstrated a higher level of relevant qualifications skills and experience in competition law, public law and regulatory and utility matters on their application form than did the claimant. Thirteen candidates were invited for interview, five candidates were male and six candidates were female. The claimant's complaint is in respect of the decision of the respondent not to select him for interview and does not in his claim form assert that he should have been appointed for a job." [emphasis added]

1. The Judge further considered those who had attained degrees at a higher standard. The Claimant asserted in his witness statement a matter which the Judge took into account in the following way:

"22. The claimant at paragraph 44 of his witness statement urges the tribunal:

'To focus on the advertised criteria not invent criteria and that according to the advertised criteria, I only had to meet the criteria stated at paragraph 17 to be shortlisted.'

It is not to invent criteria but it is to acknowledge the reality of the situation that the respondents did not confine themselves to the essential qualification and experience and knowledge of a successful shortlisted candidate. They considered those essential specifications and in light of the numbers of candidates who met the essential criteria, went on to consider the desirable elements of the person specification at page 49 to sift the candidates with a view to achieving any shortlist of candidates for interview. The decision to set a shortlist of suitable candidates was a pragmatic and reasonable and objective one and is seen on the papers contained in the bundle to be such.

23. The claimant's application page 61-75 at 74C, demonstrated that he had the essential degree of qualification of a 2:2 but not the desirable qualification of a 2:1 and his employment history did not demonstrate an overriding interest in or understanding of Competition law, Public law or Utility or Regulatory Issues and he did not have the academic or practical experience of public law or competition law or regulatory law which was considered to be desirable and relevant knowledge held by the majority of candidates to some and in any event greater degree than the claimant. The claimant focused his application heavily upon employment law examples and did not expand on his experience to lend examples that would be more relevant to the role that he would undertake if appointed. The claimant had failed to expand the legal research that he undertook on the public law issue that he had experience in and failed to relate the relevancy of his experiences to the vacancies that were advertised, choosing to focus instead on his employment experience. Mr Beale one of the shortlisting panel gave evidence that the panel considered that the claimant's application form indicated a potential inability to apply the relevant fact and information to the situation."

On those findings, therefore, there was a mismatch between the Claimant's presented material and that of the candidates successfully sifted forward to interview.

1. The Judge ruled first in relation to direct sex discrimination. This part is no longer live, it having been dismissed by Bean J, but the findings which the Judge made under the heading "Direct Sex Discrimination" are incorporated expressly into her findings on direct race discrimination, and she said this:

"34. In light of the findings of fact that are clearly demonstrable from the application forms that were sent to the claimant before he commenced these proceedings, I consider that the claimant has no reasonable prospect of succeeding in demonstrating that he was selected because he was male rather than he was not selected because he did not demonstrate the desirable qualifications and experience held by those who were shortlisted. It is clear that the claimant's view that demonstration of essential qualifications was sufficient to procure an interview as misconceived, and in light of the guidance and information given to candidates was clearly not."

1. In that passage the Judge is directly addressing the separate factual circumstances in a sex discrimination claim, but reaching the conclusion as to what was the reason for the Claimant's rejection at the sift. It is the same non-discriminatory reason. As to direct race discrimination the Judge said this:

"38. The claimant's second claim is that he has been the victim of direct discrimination on the grounds of his race and/or ethnic group. The claimant in his witness statement has included a statement that he is a black African UK resident with Nigerian nationality and of Igbo origin and he is able to work in the UK as an EU national. In light of the findings of fact that I have made and the objective selection criteria for shortlisting for candidates for interview I am of the view that the claimant is not able to provide facts from which I am able to drawn inference that there has been an example of direct race discrimination in this case. I am following the guidelines in Igen –v- Wong, and it is my considered view that for the same reasons set out at paragraphs 32 to 37 above the claimant has no reasonable prospect of success in his complaint of direct race discrimination."

1. Turning to indirect sex discrimination, which is not a live issue, the Judge made certain findings which do bear upon the finding of direct race discrimination, but these are to do with, for example, common concepts such as the pool, arithmetic and so on. These findings are helpful in illuminating the Judge's finding. I must stress that they are to do with examining whether there was a provision, criterion or practice in place which put the Claimant, as a Nigerian or as a black person, at a disadvantage, a claim of indirect discrimination.

1. The Judge examined most carefully the arithmetic and said this:

"42. In light of the findings of fact that I have made that are evident from the application form submitted by the claimant and from other prospective candidates for the positions, it is clear that the claimant did not demonstrate that he was best suited for the job, taking into account the criteria used in the person specification both for essential and desirable skills. In this case no black person was shortlisted for interview. On the respondent's evidence, there were five out of 107 candidates who applied for the job who were black though not necessarily African and of Nigerian nationality. Even if all black applicants were African and of Nigerian nationality, the percentage of black applicants was 4.68% of the candidates and in light of 13 candidates being selected for interview, were it to be expected that a similar percentage would be called for interview only 0.61% of the person could have been selected and therefore the fact that no black person was selected for interview does not infer that the selection process was discriminatory."

1. The Judge dismissed the claim that he was disadvantaged because he had no black kinsman in the UK to assist him, simply for want of evidence. She held that the burden of proof in relation to these matters did not shift to the Respondent. Finding, I suppose, in the Claimant's favour that he was not vexatious, for the Judge did not accept that submission by the Respondent, she struck out the claims.

1. In addition she considered the Claimant's record, as an experienced Employment Tribunal practitioner citing directly his experience in bringing his own claims. She considered what an unusual step she was taking in striking out the discrimination claims. She dismissed the simple contention that because the Claimant had issued 12 previous claims against public authorities, that should be read across into her own Judgment. For she said this:

"50. Whilst these other claims do not necessarily persuade me that the claims against the respondent could not have no merit, I am mindful that whilst the findings of fact I have made at the pre-hearing review and considering the evidence, this is a case which may be considered to be one of the very clearest of cases that makes it appropriate that, notwithstanding this is a discrimination case, the claims should be struck out at an early stage, the complaints having no reasonable prospect of success in any regard. The claimant has been served with the Reply to the Questionnaire and given full disclosure before he presented his Claim."

1. The exceptional nature of the jurisdiction was acknowledged by reference to the Judgment of the Court of Appeal in North Glamorgan NHS Trust v Ezsias [2007] IRLR 603, CA, in the Judgment of Maurice Kay LJ.

1. Finally, lest she were wrong about the primary decision, she decided that under the separate and different jurisdiction, a deposit order should be made since the claim had little prospect of success. Actually the language is "little reasonable prospect of success" and she separated that approach from one where there is no reasonable prospect of success.

**The Claimant's case**

1. In an exemplary concise oral argument, prepared at short notice, Mr Kemp has expressed in clear terms the short point in this appeal. He correctly addresses himself to the precise directions given by Bean J. First, he contends that it is an error of law for an Employment Tribunal not to make a finding about the knowledge of the decision-makers, but he accepts that the sift panel knew that the Claimant was Nigerian. That is after all what he says on his form, open to the panel. I am not confusing the monitoring form, which was not open to it. The Judge found that the panel had the application form.

1. Mr Kemp contends that it is highly material that the arithmetic in this case is utilised in order to show that the Claimant could get over stage 1 in the statutory test on the burden of proof pursuant to Igen Limited & Ors v Wong [2005] IRLR 258, CA. He submits that the class of black candidates is under represented (there were 5 out of 107) and that it is too simple to suggest, as the Judge did, that the natural outcome would be none was interviewed as a matter of arithmetic. Bean J had identified an error of law by the Judge in relation to deciding the matter of ethnicity, but since Mr Kemp accepts that the panel knew that the Claimant was Nigerian, this matter need go no further. The linguistic distinctions between ethnicity and Nigerian nationality are no longer important.

1. Mr Kemp contends, cleaving carefully to Bean J's guidelines, that there is inconsistency in the material adduced by the Respondent as to the reason for the rejection of the Claimant for the sift, invoking his failure to attain a 2:1 degree, when that is not the basis which is projected. In his reply to Miss Hawkins, Mr Kemp raises an argument that there is an error of law here because the Employment Tribunal did not construct a hypothetical comparator. The Claimant should be entitled to a trial at which the inconsistencies, which he says there are in the written materials, can be exposed and from that, it would be open to a Tribunal to draw adverse inferences as to its explanations.

1. Although no separate argument is addressed as to the deposit, Mr Kemp, again in reply, indicates that this Judgment should be set aside together with the deposit order and the matter should go to a full hearing. One matter which was raised during the hearing is the simple fact that the Claimant is not a practising lawyer, but he invited me to say no more about that because it was not raised by the Respondent.

**The Respondent's case**

1. Miss Hawkins raised, in a lengthy skeleton argument, a number of responses to what were the then-live issues before the case was reshaped in the hands of Mr Kemp. She accepts that there is no explicit reference to the knowledge of nationality, but it is clear that the Tribunal found the panel had the form, and therefore would know that the Claimant is Nigerian and would infer that he was black and, for that matter, African. It is not part of the Judge's essential reasoning for the strike-out that the panel did not know of the Nigerian matter and, as a matter of construction of the Judge's Reasons, her examination of ethnic grouping in paragraph 45 is not a decision in relation to Nigerian nationality. In any event, the simple combination of the Claimant's Nigerian nationality and his lack of success at the sift does not, of itself, get past stage 1 of the burden of proof. There must be something more than those two simple propositions: see Madarassy v Nomura International plc [2007] IRLR 246, CA.

1. Miss Hawkins points out there is no challenge to the Judgment of the Judge as to the relative status of the Claimant as against those sifted to an interview and, on that basis, section 3(4) of the Race Relations Act is not satisfied. As to whether there is a hypothetical comparison to be made, she contends this was never part of the Claimant's case below and should not be raised now but, in any event, it would fail for the same reasons as the actual comparators.

1. Going rather beyond the scope of this hearing and looking towards a trial, should I order it, Miss Hawkins contends that the Claimant would not at interview have succeeded in getting the job, for there there would be an assessment of the whole of the application, including the fact that he is not qualified to practice as a barrister. He has not passed a pupillage, that is the reason.

1. Miss Hawkins contends that this was not a case which cried out for a trial, acknowledging as she does the rarity in striking out discrimination claims, for this was essentially a paper exercise, looking at the material which was before the panel and the evidence of Mr Beale and the Claimant. The Claimant has no better insight into the workings of Mr Beale's panel, and into the documents that were available to the Judge. If it be relevant, the Claimant cannot point to any black person of the 5, who, with higher qualifications than the Claimant and on a par with the successful candidates, was unfairly treated.

**The legal principles**

1. The legal principles in this case arise from Madarassy. The burden of proof will shift in accordance with Igen v Wong if the Claimant produces facts which could prove discrimination in the absence of an explanation for the Respondent. It is appropriate to take a two-stage test but it is not an error for the Tribunal to link both of them together (see the Judgment of Elias P and members in Laing v Manchester City Council [2006] IRLR 748, EAT, and in Network Rail Infrastructure Ltd v Griffiths-Henry.

1. In Adebayo v Dresdner Kleinwort Wasserstein Ltd [2005] IRLR 514, EAT, it was held that a claim would fail if the first stage of the process were not completed. Cox J in the EAT said this:

"34. Pursuant to section 54A the first stage of the process is for the Tribunal, having heard all the evidence, to determine the primary facts proved by the applicant, in order to see what inferences, or secondary facts, could be drawn from them, from which they could conclude that an unlawful act of racial discrimination had been committed, absent any explanation from the employers. Such inferences could include, for example, inferences which can legitimately be drawn from an employer's evasive or equivocal replies to a questionnaire, pursuant to section 65(2)(b) of the Act.

35. This does not mean, in our view, that in a case involving alleged race discrimination, it will be sufficient at this first stage for an applicant who is black simply to show, for example, that a white comparator was promoted to a post for which he had applied. In view of the "like for like" requirement in section 3(4) and the need for the relevant circumstances in the applicant's case to be the same or not materially different in the case of the comparator, the applicant in such a case would have to show not only that he met the stated qualifications for promotion to the post, but that he was as least as well qualified as the successful candidate. The relevant information as to the successful candidate's qualifications could be obtained in the usual way, through correspondence or using the questionnaire procedure."

1. That approach was adopted and applied in another of Mr Iteshi's own cases, determined by HHJ Peter Clark, [Iteshi v London Borough of Hammersmith & Fulham]() UKEAT/0491/10/DM, who said this:

"10. (2) Further and alternatively, she would, but for the limitation bar, have struck out the claims under rule 18(7)(b). Her reasoning was as follows: the application for the Employment Lawyer post failed on the sift because he had insufficient experience when compared with other applicants. As to the Legal Assistant posts, in 2008 there were 186 applications for two posts and in 2009, 234 applications for one post. In these circumstances a decision was taken at the initial sift by Ms Mullins to reject all candidates (including the Claimant) considered, by virtue of having undertaken either the Legal Practice Course or BVC, as overqualified for that post; her rationale was that qualified barristers or solicitors tended not to stay in employment; they looked for better posts elsewhere and that affected the stability of her legal team. The Employment Judge also accepted Ms Mullins' evidence that on that preliminary sift she did not acquaint herself with the ethnic background of the candidates, including the Claimant. In these circumstances his complaint of direct race discrimination failed; the Respondent did not know of his race at the point of rejection; he did not pass stage 1 of the Igen test; but even if he did, the Respondent's explanation for his rejection had nothing to do with his race and was entirely reasonable. Similarly, any prima facie case of indirect discrimination would fail on the basis of the Respondent's explanation, amounting to justification for any such prima facie discrimination.

25. The extent of an Employment Judge's power to strike out, particularly an unlawful discrimination claim, has been considered at the highest level; see Anyanwu v South Bank Students Union [2001] ICR 391 (HL); applied in Ezsias v N Glamorgan NHS Trust [2007] ICR 126 (CA). I have been referred to the approach of Underhill P to this question in ABN Amro Management v Hogben (UKEAT/0266/09, 20 November 2009) at para. 7. I gratefully adopt that approach; plainly a case may be struck out in appropriate circumstances, else there is no purpose in rule 18(7)(b).

28. For all these reasons I am satisfied that this is a case, on its particular facts and circumstances, in which it was appropriate for the Employment Judge to strike-out the remaining in time complaint, as I have found it to be, notwithstanding that it raises a complaint of unlawful discrimination. The Employment Judge gave clear and adequate reasons for her conclusion."

1. That drew upon the holding by Underhill P, in ABN Amro Management & The Royal Bank of Scotland v Hogben (UKEAT/0266/09) who dilated upon the approach to strikeouts in discrimination cases in the following way:

"13. It is clear from that reasoning that the Judge accepted that on the facts as they stood before him – which included all the material documentation, together with background circumstances which were not in dispute – the Claimant had no reasonable chance of proving age discrimination. The reason why he was nevertheless prepared to go no further than saying that the Claimant had "little" reasonable chance was the possibility that more might emerge in the cross-examination of Mr Pettit. Mr Linden submits that that is a wrong approach in principle. He submits that it is not legitimate to allow an apparently hopeless case to proceed to trial in the hope that "something may turn up" during cross-examination: there must be reason to believe that there may be matters which can be put to the relevant witness which might cause him to acknowledge, or the court or tribunal in any event to conclude, that the facts were as the claimant alleges. He refers in this connection to the observations of Lord Hobhouse in Three Rivers District Council v Bank of England (no. 3) [2003] 2 AC 1, at p. 284 A-B. He submits that there was no material of that character in the present case.

15. In my judgment the prospect that the Claimant could prove a prima facie case of age discrimination in relation to his non-appointment to either role is indeed fanciful, for the reasons advanced by Mr Linden which I have already set out – and which indeed the Judge largely accepted. So far as the UK job is concerned, where the age difference was only nine months, nothing more need be said. But even as regards the global job there would in my judgment have to be some very particular reason to believe that Mr Pettit was liable to be influenced by the age difference in question. The passage from the note of the investigation meeting relied on by Mr Reade does not in my view afford any such reason. It shows simply that Mr Pettit thought, from his appearance, that the Claimant was somewhere in between 38 and 48. Even if Mr Reade were able to get Mr Pettit to admit that he thought the Claimant was near the bottom of that range, i.e. a year or two younger than he in fact was, that does not make his case more plausible to any appreciable extent. I can see nothing else to indicate even a possibility of age discrimination. The only difficulty which I have felt on this part of the case is whether I am entitled to substitute my own assessment for that of the Judge; but in the end I am satisfied that I am. The absence, as I see it, of any basis for supposing that cross-examination could advance the Claimant's case means that the Judge ought not to have attached any weight to that factor."

**Discussion and conclusions**

1. I return to Bean J's directions and judgment in this case. Applying the principles above, the Judge did not commit an error in holding that the Respondent did not know that the Claimant was a member of an ethnic group, being the Igbo tribe. What the Judge was referring to there was the monitoring form which was not produced to the panel.

1. The Judge was aware that the panel knew that he was black and, therefore, when she says that the panel did not know his ethnic group, she is not dealing with the fact that he is Nigerian. He is. That is, if anything, a finding in favour of the Claimant because, as Mr Kemp ably pointed out (by reference to Iteshi v Hammersmith), absence of knowledge makes it a very difficult case for a Claimant to win. The very short point in this case, in my judgment, is that the Claimant has not produced what he has to show for Madarassy. True it is, he shows that he is black, Nigerian and has been treated differently from white people who were sifted to an interview, but more is required than that simple pair of propositions, and it has not been done here.

1. Important to the analysis of the Judge is her approach to sex discrimination, which has not been the subject of a successful appeal. It is a read-across. I accept from Mr Kemp, of course, that the factual basis is different in race and gender, but it is the second proposition which the Judge made, and found, which defeats this case. That is, the reason why he was not selected was because he did not demonstrate the desirable qualifications and experience held by those who were shortlisted. So race, ethnic origin, nationality and gender claims all fail. They did not come into it, and that is a simple solution to this case.

1. The sad fact is that the Claimant, with many qualifications and some experience, did not have the qualifications and the kind of experience focused on for a job in the government legal service, required by this regulator. It may be that his case would have failed, had the Respondent taken the point that he is not entitled to practice; but that is not, at the moment, an issue before me. As a matter of common sense, if this were to go to trial, Miss Hawkins tells me that she would take the point but, of course, the Claimant is entitled to fair treatment by the Respondent on the sift and this was not put as a reason for not selecting him.

1. It may be that the panel misunderstood the way in which he was presenting his membership of the bar, for to most ordinary people and, indeed, probably quite a lot of experienced recruitment staff, being qualified as a barrister would entitle you to practice in the courts, and this rather arcane point may have eluded the panel. As a matter of fact, the essential qualification, "qualified to practice as a solicitor or barrister in England or Wales", is not met by the Claimant but, as I say, that point was not taken by the Respondent at the Employment Tribunal and is not taken as a matter of substance before me.

1. I have looked further into the case to see if there is a more complicated answer which can be given but, in my judgment, the failure by the Claimant to make an apt comparison as required by section 3(4) between his record and those sifted to interview is the fatal flaw in his case. It is indeed a case which has no reasonable prospect of success, as the Judge correctly found. She was alert to the unusual nature of strike-outs, but in the much quoted passage of Lord Steyn in Anyanwu & Ebuzoeme v South Bank Students Union & South Bank University [2001] ICR 391, HL, advocating in a pluralistic society, the full vindication at a trial of discrimination claims, there are cautions and a claim which has no prospect of success can and should be struck out (see in particular the speech of Lord Hope):

"39. Nevertheless I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail."

1. I therefore see no error in the Judge's findings. There is no inconsistency in the material presented to her. It is a difficult concept for the Claimant to advance, he not having attended to challenge the Respondent in the evidence which Mr Beale gave. It seems to me that the broad depiction of the Claimant's weak background – I have called it qualifications but that includes experience of teamwork and understanding of the specialist subjects of regulation – all are subsumed within the overall approach of the Respondent which was to reject his application.

1. If I am wrong, I will hold that the Judge was correct in her order of a deposit. If the claim cannot be said to have no reasonable prospect of success, I see no error in the exercise of her discretion in looking forward and deciding that there was little prospect of success or, as rule 20 says, little reasonable prospect and so, if I am wrong about the main part of this appeal, I would uphold the Judge on the deposit order.

1. The appeal is dismissed. Contribution to the Respondent's costs ordered. Permission to appeal refused