The tribunal had found that the claimant had been excluded from a recruitment process on racial grounds. The charity, for whom the allegation of racial discrimination was considered damaging, had contended that they believed that the claimant was friends with an applicant for the post in question and therefore the claimant could not chair the recruitment process. This belief, in their view, provided "a complete answer to the discrimination allegation."

Rimer LJ granted permission to appeal as he regarded the submissions as having a real prospect of success.  
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Case No: B3/2009/2355
Neutral Citation Number: [2010] EWCA Civ 252
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC and Members
UKEAT/0421/08/CEA

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 18th February 2010

Before:

LORD JUSTICE RIMER

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Between:

**ST CHRISTOPHER'S FELLOWSHIP (Appellant)

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MS B. WALTERS-ENNIS (Respondent)**

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(DAR Transcript of
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Ms Hilary Winstone (instructed by Trowers & Hamlins LLP) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
(As approved)

Crown Copyright©

Lord Justice Rimer:

1. This is a renewed application for permission to appeal, Sir Richard Buxton having refused permission on the papers on 24 November 2009. The applicant, Sir Christopher's Fellowship, was the respondent to an employment tribunal claim by Ms Walters-Ennis for relief under various heads which succeeded in part and failed in part. She succeeded in her claim for constructive unfair dismissal and for discrimination on the basis that she had been excluded from a particular recruitment process on the grounds of race. There is no challenge to the unfair dismissal decision but the applicant does challenge the race discrimination decision. The finding is one which, having regard to the nature of its activities as a children's charity and a housing association, whose functions include the provision of care to children, young people and vulnerable adults, it regards as visiting a serious slur on its reputation.

1. The tribunal's finding was that by excluding Ms Walters-Ennis, who is black, from the recruitment process, the applicant discriminated against her on racial grounds.  The applicant's case is that it only excluded her from that process once it had discovered that an applicant for the particular post in question was a Ms Heywood, whom the applicant believed to be a friend of Ms Walters-Ennis. Because of that belief the applicant concluded that for Ms Walters- Ennis to chair the recruitment process would be to prevent her chairmanship from being impartial. The tribunal appears to have accepted that this was the reason but to have held that it was insufficient because the belief of the friendship between Ms Walters-Ennis and Ms Heywood was mistaken.

1. The point is made, however, that a belief is a belief and it can make no difference in the present context that it was a mistaken one. It provided, it is said, the reason why Ms Walters-Ennis was excluded from the recruitment process and thus provided a complete answer to the discrimination allegation that was not overridden by the matters which appear to have led the tribunal to its discrimination finding, being ones that are on the face of it unrelated to the exclusion of Ms Walters-Ennis from the recruitment process. The point is also made that the tribunal's finding at one point in their reasons that Ms Walters Ennis was excluded from the whole recruitment process was inconsistent with their own earlier findings that she was only excluded from it following the realisation that Ms Heywood was applying.

1. In my view, Ms Winstone's skeleton argument, as elaborated by her in the course of her oral submissions, justifies an appeal to the full court on the basis that the appeal has what I would regard as a real prospect of success within the well known modest reach of that concept. The prospects of success did not of course impress Sir Richard, for the reasons that he gave, but Ms Winstone's short supplemental statement, as also orally elaborated, has provided what I would regard as a good arguable answer to Sir Richard's adverse views.

1. I accordingly propose to give permission to appeal.

Order: Application granted