Mr S Bulsara and Mr D Thornton v Leicestershire Fire and Rescue Service: 2600930/2022 and 2600931/2022
EMPLOYMENT TRIBUNALS
Case No 2600930/2022, 2600931/2022
Between
(1) Mr S Bulsara (2) Mr D ThorntonClaimantLeicestershire Fire and Rescue Service PRELIMINARY HEARINGRespondent
Before
Employment Judge CampMr K Brand (instructed by solicitor) for claimantMr A Patel (instructed by solicitor) for respondentDate 24 July 2024
JUDGMENT
By consent, all and any complaints other than complaints of direct race discrimination about the decisions not to put the claimants through to the second stage of the selection process for Group Manager – Talent Pool (which consisted of an interview, a management report and a presentation) are dismissed upon withdrawal in accordance with rules 51 and 52 of the Rules of Procedure.
REASONS
[3]Oral Judgment was handed down in this matter on 16 May 2024. These written reasons are provided following a request from the claimants in this matter. Claims and Issues[1]Both claimants are pursing a complaint of direct race discrimination in relation to a promotion process which involved being selected to enter a ‘talent pool’ for a Group Manager role.[2]Both claimants submitted applications for this talent pool application process. The process was advertised to both internal and external candidates on 23 September 2021.[3]Both claims are pursued as direct race discrimination. The issue is whether they were not progressed through to the second stage of an application process for a Group Manager (‘GM’) talent pool selection process contrary to section 13 of the Equality Act 2010 (EQA).[4]Both claimants argue their treatment was less favourable than the white candidates in the same process. Background:[5]The claims were heard over 5 days.[6]For the first claimant we heard evidence from the first claimant, Mr Bulsara.[7]For the second claimant we heard evidence from the second claimant, Mr Thornton.[8]For the respondent we heard evidence from: a) Callum Faint b) Karl Bowden c) Matthew Cane d) Paul Weston e) Roger Smith f) Victoria Wilson[9]Whilst a statement was also served from Michael Rogers, he was not available to attend Trial and did not give oral evidence. The Tribunal is limited therefore in relation to the weight it can place on Mr. Rogers’ statement without his evidence being able to be tested.[10]Mr Bulsara has been employed by the respondent since 1 September 1994. He has been employed as a station manager since 1st August 2012. Mr Bulsara describes himself as Asian of Indian ethnic origin.[11]Mr Thornton has been employed by the respondent since 11 June 1998. He has been employed as a station manager with the respondent since 1 February 2017. Initially this was a temporary promotion but was made permanent on 1 July 2018. Mr Thornton describes his ethnicity as mixed and says he is of white and black Caribbean heritage.[12]The issues which were agreed at a preliminary hearing for the Tribunal to determine were:1.1 Did the respondent do the following things: 1.1.1 Not put the claimants through to the second stage of the selection process (which consisted of interview a management report and a presentation)1.2 Was that less favourable treatment? The claimants say they were treated worse than their than white colleagues who were put through to the second stage of the selection process. There were 13 applications of whom 7 were put through; none of them were non white. Alternatively, they rely on hypothetical comparators.1.3 If it was less favourable treatment, was it because of race? Legal Framework:[13]Both claimants make a claim of direct race discrimination pursuant to section 13 of the EQA 2010.
The Law
[14]Under s.13(1) of the Equality Act 2010 read with s.9 EQA, direct discrimination takes place where a person(a) (A) treats another(b) (B) less favourably because of a protected characteristic - in this case race- than that person treats or would treat others.[15]Under s.23(1), when a comparison is made, there must be no material difference between the circumstances relating to each case[16]In terms of the relevant legal framework, the matters which the Tribunal have had regard to when arriving at our decision are set out below.[17]We have considered the “mental processes” of the alleged discriminator pursuant to the case of Nagarajan v London Regional Transport [1999] IRLR 572.[18]This is often referred to as “motivation”.[19]A few points to note about motivation: a) Motivation is not the same as motive. A well-meaning employer may still directly discriminate. See, for example, Amnesty International v. Ahmed UKEAT 0447/08. b) Discrimination may be sub-conscious – people rarely admit discrimination, even to themselves. The point was put powerfully in Nagajaran: “All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. ……. Members of racial groups need protection from conduct driven by unrecognised prejudice as much as from conscious and deliberate discrimination.”[20]We have also considered ‘significant influence’ – that is that the protected characteristic need not be the only reason for the less favourable treatment. It may not even be the main reason. Provided that the decision in question was significantly (that is, more than trivially) influenced by the protected characteristic, the treatment will be because of that characteristic.[21]Decision-maker - It is important to identify the person who is alleged to have acted with the discriminatory motivation.[22]In this case it was not entirely clear who each claimant is identifying as the person to have acted with the discriminatory motivation save that both raised grievances about the quality of Mr Bowden’s feedback about their application scores. Mr Bulsara in his witness evidence asserted that he never felt supported by Mr Cane and Mr Cane was one of the first-round assessors of his application. He does not make any other assertion of prior issues with Ms Wilson the other first round assessor who marked his application. Mr Bulsara does refer to an earlier conversation with Mr Bowden prior to the application process which he asserts demonstrates Mr Bowden had predetermined whether he was ready for the GM role.[23]Mr Thornton makes no similar assertions, nor did he given evidence of feeling unsupported by Mr Cane prior to the application process. Mr Cane and Mr Rogers were the first-round assessors of Mr Thornton’s application. Mr Thornton similarly raised a grievance about Mr Bowden’s feedback following the application process and he asserts feeling victimised by him.[24]Mr Bowden and Mr Smith moderated both Mr Bulsara’s and Mr Thornton’s applications.[25]We have when arriving at this decision considered the motivation of all firstround assessors, both moderators, Mr Weston who conducted the grievance investigation and Mr Faint who chaired the grievance appeal.[26]The burden of proof provisions are contained in section 136 of EQA.[27]There are two analytical stages to this, and we have considered this accordingly. Guidelines on the application of the burden of proof provisions were set out by the Court of Appeal in Igen Ltd v Wong [2005] EWCA Civ 142. Although this concerned sex discrimination under the Sex Discrimination Act, the key principles still apply. A more recent EAT decision has restated the Igen guidance and emphasized its continuing importance: Field v Pye & Co [2022] EAT 68.[28]Essentially if there are facts from which a Tribunal could decide, in the absence of any other explanation, that a person has contravened the provision concerned, the Tribunal must hold that the contravention occurred, unless that person can show that he or she did not contravene the provision. We have taken these guidelines into account when arriving at our decision.[29]At Stage 1, there must be primary facts from which the Tribunal could decide – in the absence of any other explanation - that discrimination took place.[30]Note the word, “could”. All that is needed at this stage are facts from which an inference of discrimination is possible. As it was put in Madarassy v Nomura International Plc [2007] EWCA Civ 33 , primary facts are sufficient to shift the burden if ‘a reasonable Tribunal could properly conclude’ on the balance of probabilities that there was discrimination.[31]At Stage 1, the burden of proof is on the claimant Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913 Royal Mail Group Ltd v Efobi [2021] UKSC 22[32]At this stage of the test, the employer’s explanation is disregarded.[33]In other words, after making our findings of fact the Tribunal will ask itself ‘if these things had happened and there was no explanation for them, could we find discrimination?[34]It is not sufficient for the employee merely to prove a difference in protected characteristic and a difference in treatment. Something more is required.[35]We have therefore made our primary findings of fact following which we have considered whether the burden of proof has shifted to the respondent and If the burden shifts to the employer, we move to Stage 2 and consider the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason?[36]The Igen guidance makes two points in particular about Stage 2: a) The employer must prove that the less favourable treatment was “in no sense whatsoever” because of the protected characteristic. b) Because the evidence in support of the explanation will usually be in the possession of the employer, Tribunals will expect “cogent evidence” for the employer’s burden to be discharged.[37]It is to be noted that, in a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.[38]Unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar [1998] IRLR 36, HL. Findings of fact:[39]We carefully considered all the evidence submitted to the Tribunal and referred to in the bundle and the oral evidence given to us at the hearing even if we do not mention it. I refer to such of the oral evidence as is necessary to explain our decision. References to page numbers are to the bundle. Respondent’s Organisation:[40]Whilst the respondent made much of there being a mixed race (Asian and white) Chief Fire and Rescue Officer within its organisation and there being two non operational GMs of Asian heritage it is clear there is poor diversity at senior levels within the organisation. There are 2 sides of the fire service – referred to as operational and non-operational. Mr Thornton and Mr Bulsara were on the operational side. They were applying for an Operational Group Manager talent pool.[41]The statistics from the Home office (page 880) show that as at 31 March 2022 there were 302 white British or Irish whole time firefighters and only 56 identified as non white (of which 25 had not stated their ethnic origin) and from the 56 only 4 were Asian and 4 were black or black British There are only 5 operational GM roles and all of these are with white British or Irish men. Mr Bulsara- first claimant Pre application[42]Mr Bulsara showed his application ahead of submitting it to Sue Findley (HR Manager) Michael Rogers, (temporary Area Manager) Chris Moir (business assurance) Graham Vaux (Watch Manager & Fire Brigade Union FBU representative) asking them to review the application. The claimant states they all gave him complimentary and positive feedback. Mr Michael Rogers provided a witness statement, but he did not attend to give evidence. There is therefore limited weight we can place on his evidence given he was not present for his evidence to be tested. Ms Jennings highlighted in cross examination that all the people Mr Bulsara showed his application to were at GM level aside from Mr Vaux. She questioned the claimant about his assumption that because the feedback was positive that he assumed his application was going to pass the next stage. We find this is indeed what Mr Bulsara believed albeit Mr Bulsara does not in his witness statement give any real detail as to what was said specifically to him, and we find he did not elaborate on what precise positive feedback was given in his oral evidence either. We did not hear from him directly as to the specific words used by those, he chose to get feedback from and nor is it his evidence that they told him they had specifically marked the application against the scoring criteria. However, we do take note of the grievance appeal investigation meeting (pages 692 – 694) where Mr Rogers accepted he had said to Mr Bulsara words to the effect ‘yes I like it – yes it’s a good piece of work’.[43]We also did not hear any oral evidence from the other people he sought feed back from but similarly we have regard to Chris Moir at page 695 saying he did not mark the application, but he said it looks ‘ok’. He does not say he was assessing the application for whether it would pass. Mr Graham Vaux at page 697 is more specific and says he told Mr Bulsara he could not mark it but gave Mr Bulsara feedback on 2 or 3 questions where he felt Mr Bulsara could strengthen his answers to hit a few more indicators. He confirms he felt there were areas he could improve and accepts Mr Bulsara could have interpreted this as saying he felt most of the indicators were being met. Notably Mr Bulsara came back to him with an amended version and Mr Vaux says Mr Bulsara had made changes to strengthen some answers where he had made recommendations, but he also states Mr Bulsara had taken on some but not all of the things discussed.[44]Based on the grievance appeal investigation meetings notes and Mr Bulsara’s evidence we find Mr Bulsara was given positive feedback on his draft application before he submitted it as accepted by those referred to above.[45]We find it unlikely that if you were asked in a senior role for feedback on an application that you would not think part of that is to be candid about where an application might be weak and /or could be strengthened. We find it highly unlikely those asked for feedback thought their only involvement would be to check for grammar and punctuation. Ms Jennings in cross examination put that Mr Bulsara made an assumption that he would pass because he was not told he would not but we find he was basing this assumption on positive feedback given by those senior people he asked to review his application. Mr Vaux in fact refers to Mr Bulsara going from a 7/8 to a 10 (page 698) when discussing the indicators – this would most certainly give Mr Bulsara the impression that the application was good enough to pass.[46]However, there is no persuasive evidence before us that any of those Mr Bulsara asked for feedback marked Mr Bulsara’s application against the indicators or knew of or indeed understood the scoring criteria. We do not find in those circumstances their feedback was evidence of the application being good enough to pass as they could not have assessed this unless they each marked the answers against all the competencies and indicators. Pre application process feedback from Mr Karl Bowden[47]Mr Bulsara at paragraph 18 of his statement (page 5) says he had asked Mr Karl Bowden if he felt ready for the GM role. Mr Karl Bowden clarified in evidence that he recalled a conversation with Mr Bulsara where he approached Mr Bowden about his view of whether he would be ready to be a GM and Mr Bowden told him no. Mr Bowden accepts he said no because he did not know enough about him at that time. Mr Bowden stated in evidence he asked Mr Bulsara what was his ‘usp’ and what would he be known for in the service and that would help people understand what expertise he would bring to the role of GM. We note this conversation is also referred to at page 708 when Mr Karl Bowden during the grievance appeal hearing was questioned. Again, at page 708 he accepts he told Mr Bulsara that he did not think he was ready but that he would help him get there. We therefore find that 6-9 months prior to the application process Mr Karl Bowden did not think Mr Bulsara was ready for promotion. We note Mr Karl Bowden commenced his employment with the respondent in October 2020 and has been in his current role of Area Manager People and Organisational Development since January 2023. In May 2021 he was appointed as designated manager for the talent pool process for both the Station Manager and Group Manager roles. His role was to oversee the process, advert, shortlisting, moderation, selection and rejection. In his statement he says he believes he was selected for the role as being new and not having formed any relationships he had benefit of not being biased but he has notably by his own admission already formed an opinion about whether Mr Bulsara was ready for promotion prior to that application process despite being very new to the role. There is no evidence that this opinion was based on race as opposed to him not knowing what Mr Bulsara could bring to the role. Application Process[48]Mr Bulsara’s application was scored by Victoria Wilson and Matthew Cane.[49]At the initial assessment stage, the score which would take an applicant through to the talent pool next stage was unknown to the assessors.[50]There were 5 questions/answers in total. The first stage of the application process required each applicant to answer 5 questions with a maximum word limit of 500 words for each question. Each answer would be assessed as to whether the applicant could demonstrate [using examples] that they possessed the values behaviours and competencies required of a Group Manager. In respect of the application process the respondent made use of its group manager application form scoring and short-listing assessor briefing and marker guide [the group manager assessment guide]. The scoring criteria within the group manager assessment guide gave a description as to how each question answered by an applicant would be assessed. If the question was answered to a very high standard the applicant would score five points. If the answer was unacceptable the applicant would score 0 points. In order to meet the shortlisting criteria an applicant needed to score a total 30 points or more out of a possible maximum of 50.[51]Each application was marked by two assessors. Each question can have a total of 5 marks and each marker can award a total of 25 marks maximum. The 2 markers scores were added together and then out of a total possible maximum mark of 50, 30 was the pass mark.[52]The total scores given by Ms Wilson for Mr Bulsara was 13 out of a possible 25. The total scores given by Mr Cane was 11 out of a possible 25. When added together the first claimant therefore ended up with a total of 24 points out of a maximum of 50 points, below the threshold mark of 30 to progress to the next round of the process. Ms V Wilson’s evidence.[53]Ms Wilson is a HR Business partner. She has been employed with the respondent since January 2004.[54]With regard to the marking criteria the competencies for the GM role are set out from page 268 to 276. There were 10 positive indicators for each question. Page 512 sets out the scoring criteria. Once you have ticked the indicators you then use page 512 to decide if an answer gets a score of 0,1,3,5.[55]Ms Wilson was asked to explain what training an assessor received in the use of this competency framework. She responded when this competency framework was introduced there was some online training during Covid 19. In terms of ensuring an understanding of the new competency framework there was some training with an external company called Reed but she confirmed their focus was mainly on the interview process although she did say they did deal with how you look at the positive indicators. Her evidence was the respondent does now (not at the material time) before any promotion process hold a standardisation session for anyone who is assessing the applications which all the assessors attend and so the respondent does now make sure people assessing such applications understand about consistency.[56]We find at the time of this GM talent pool process there was no specific standardisation training or meeting which took place before the assessors marked the applications to ensure that the assessors were in agreement as to what constitutes a good example or a poor example and warranted the higher and lower scores within the particular competencies. This clearly could impact consistency across the scoring. When you look at the table for all the assessors which shows the inconsistent scoring (at page 788) the marking differences for the same answers between assessors is evident. If the respondent is saying the answers are not the ones you are expecting for GM level and that is why you are marking them down then that is not a fair basis of scoring because the criteria (set out at page 193) includes a developmental pool not just those who are ready for the GM role , with the purpose presumably to get candidates ready for the role. So suitable training to ensure the assessors all know what a high scoring answer would be expected to show would avoid that risk. It is unclear whether the assessors knew whether they should be hitting the indicators at the candidates own level or the level of the role they are applying for. This could clearly impact the way in which each answer was assessed and scored.[57]Clearly therefore the system of scoring is potentially highly subjective, evidenced also by Ms Wilson in cross examination saying with hindsight when comparing Mr Bulsara’s answers with another candidate’s that she may have marked one answer of Mr Bulsara’s differently now.[58]Ms Wilson knew she was marking Mr Bulsara’s application. Ms Wilson marked 4 of the applications (page 545). Her scores were as follows; for candidate 28486 she gave full marks of 25 to him, she gave 21 marks to candidate 28472 and candidate 28496 she scored at 15. She gave a score of 13 to Mr Bulsara. Of those 3 candidates she only knew Mr Bulsara’s application was his. She was asked about her scoring specifically for candidate 28496 (page 770) and she gave a score of 3 for each one of that candidate’s answers. Did she concede that she scored lower for Mr Bulsara answers than the others? She did concede when taken to another candidate’s answers that in relation to the positive indicator of ‘acting quickly and decisively’ that with the benefit of hindsight the other application did not meet that positive indicator now she reviewed it again, which demonstrates how subjective the scoring was. She was in cross examination asked whether she applied a stricter approach on Mr Bulsara’s application than other candidates. She conceded that whilst she did not think it was stricter at the time of marking and she thought she applied a fair approach that yes in hindsight she thought one other candidate maybe was given more marks than they should have been given for their application. That is precisely why there is the role of the moderator and notably this other candidate’s application was scored down when moderated.[59]Ms Wilson did not consult with Mr Cane who was also marking Mr Bulsara’s answers but scored independently.[60]There was no evidence before us that she knew of the identities of any of the other candidates she was marking.[61]We were troubled by her apparent lack of understanding of unconscious bias. Although she says she has attended a course on unconscious bias she was offended by the allegation being made seemingly not understanding she could have been unconsciously biased without consciously undermarking Mr Bulsara. The fact that she could be insulted by this proposition shows she does not fully understand what unconscious bias is. She referred in her statement and in cross examination about having friends of different ethnic backgrounds. This in itself shows a lack of awareness of how one could still make unconsciously biased judgements. Unconscious bias describes the associations we hold outside of our conscious awareness and control and anyone who attended unconscious bias training should be aware that it affects everyone. We all make judgments based on our background, personal experiences societal stereotypes and cultural context. It is not just about gender, ethnicity or visible diversity characteristics. Unconscious bias can contribute to inequality in selection recruitment and promotion in the workplace. Mental processes of Ms Wilson[62]Ms Wilson says she was aware of unconscious bias as she had attended training. She was not able to be any more specific about how she guarded against it other than to say she focused on the question and scored it against the criteria however she also then conceded that with hindsight she scored another candidate’s answer more highly than she would now. Can a proper inference be drawn from this that her lower scoring of Mr Bulsara’s answers whether she realised it or not was because of race.[63]Ultimately Ms Wilson was questioned at length and her scoring was placed under considerable scrutiny and as against this we do find she was able to adequately support in cross examination her scoring of Mr Bulsara’s application against the criteria for all the other answers save for the one she admitted with the benefit of hindsight may have been marked low and that is to her credit. We find this simply supports our earlier finding of the lack of consistency in assessment standards which would reduce the inevitable degree of subjectivity of exercises of this nature. We are satisfied that her explanation and justification of her scoring withstood scrutiny in cross examination and she was able to plausibly and consistently support and demonstrate the reasoning behind all her scores to a satisfactory degree and we cannot make a proper inference that (whether she realised it or not) the reason for her lower scores for Mr Bulsara’s application was due to race. We find she was able to support and justify the scores she gave. Mr Cane – witness evidence[64]Mr Cane became a GM in 2015. In 2019 he took a temporary role as Area Manager. He has known Mr Bulsara since 1994 when they both joined as trainee firefighters. He described positive relationships with both claimants. This is denied by Mr Bulsara. Mr Cane was aware when he started assessing the application that he was marking Mr Bulsara’s application. Mr Cane scored a total of 11 for Mr Bulsara.[65]The total score of both Mr Cane and Ms Wilson was 24 (below the pass mark).[66]He scored 5 of the total applications and he scored the others at 15, 9,9 and 11 (which is Mr Bulsara’s) and one at 21. It is notable that Mr Bulsara’s application was not the lowest he scored. The candidates he gave lower scores to than Mr Bulsara were Mr Thornton (non white) and another white candidate.[67]When asked in cross examination how did he make sure there was no bias Mr Cane said he read the assessors briefing pack and set out how the application should be judged and use the scoring marking criteria at page 512 and that he used the positive indicators contained within the pack to look for the evidence that he was looking for. His evidence was very clear that he was making sure he was sticking to this to make sure he was assessing purely based on the information contained within applicants answer against the specified criteria.[68]We were satisfied with Mr Cane’s evidence that he adequately supported his lower scores for Mr Bulsara. His scores may have been influenced by the work he knew the claimant had done but he was able to suitably provide reasonable justification to all those scores when taken through his scores at considerable length and in great detail.[69]Mr Bulsara raises unfairness because he referred to Mr Cane previously having issues with him. Mr Bulsara implies in his witness statement that he had a grievance against Mr Cane, but it was unchallenged evidence from Mr Cane that the grievance was not about Mr Cane and something which was resolved in Mr Bulsara’s favour. Mr Bulsara raises assertions in paragraphs 22 and 23 of his witness statement about Mr Cane being unsupportive and discriminatory but we have no evidence of any such issues being raised until these proceedings.[70]We found Mr Cane was able to properly support his scores such that we cannot draw a proper inference that his scores were tainted and that his lower scores for Mr Bulsara were impacted by race. We accept Mr Cane’s explanation about the incident raised about Diwali and Mr Bulsara keeping fit with his teams and we do not find Mr Cane’s response was discriminatory in relation to these assertions made in Mr Bulsara’s statement. In arriving at this finding, we take note of Mr Cane’s explanation being a reasonable one from someone in a more senior role advising someone he knew was interested in promotion, and we found Mr Bulsara’s evidence about these assertions was lacking. Mr Bulsara in evidence stated the experiences he has had previously with Mr Cane and Mr Bowden have been negative especially with Mr Cane however in oral evidence he did not provide any cogent evidence of this albeit his witness statement refers to him feeling undermined by Mr Cane when setting up a community initiative at the time of Diwali. He also states that Mr Cane had an issue with him keeping physically fit with his teams. Mr Cane’s evidence about these matters was clear and cogent. He gave a persuasive explanation as to why he considered Mr Bulsara as Station Manager who had aspirations to move to the Group Manager role would be better suited to making sure he took a more tactical overview of community safety activities ensuring that the activity was well planned and there was resilience in place with partners. Mr Cane's suggestion was that Mr Bulsara should delegate that role as opposed to needing to be involved on the ground which is a role they have supervisory managers for. Mr Cane also gave a very clear explanation that he did not say to Mr Bulsara that he could not attend the community event but that it would be helpful to develop other staff so they could deliver those activities to the community. In relation to the allegation that Mr Cane criticised Mr Bulsara at a debrief Mr Cane also gave a cogent explanation that he was not criticising the contribution of Mr Bulsara in front of others but he felt there should have been more information shared about this incident from the Fire Protection team and the purpose of the debrief is that it is a learning environment to gain some understanding and to give feedback and this is what he did. We do not find this was less favourable treatment of the first claimant due to his race. Insofar as the allegation of Mr Bulsara keeping fit with his team is concerned again Mr Cane gave persuasive evidence as to him merely offering some advice and guidance having known that Mr Bulsara wanted to progress to the Group Manager role, the advice being that he needed to take a step away from some of the more operational activities and take a wider view of his station and personnel. Again, he gave unchallenged evidence that he did not tell Mr Bulsara not to do this but was providing advice. Mr Cane also gave unchallenged evidence that he had similar discussions with other managers who wish to work their way through the ranks and it would not be an uncommon conversation for him to have and we do not find these conversations are evidence of instances of Mr Cane treating Mr Bulsara less favourably because of his race. We also take note that despite the allegations of historical issues with Mr Cane, Mr Bulsara did not raise this as part of his original grievance despite the clear opportunity to do so. He stated in evidence initially this was an oversight on his part but later stated he did not wish to slow down the grievance process. It is clear from his oral evidence he believed his grievance would succeed solely on the basis of the dispute with the scoring issue (which it did not).[71]Mr Bulsara also confirmed in evidence he had very little communication with Ms Wilson before this process. Moderation process[72]There were two moderators. Mr Karl Bowden, Area Manager and Roger Smith (Commercial and Procurement Manager). They were the moderators for both claimants.[73]Mr Karl Bowden’s evidence was that he randomly selected 50% of the assessments to moderate. We accept his evidence that there was a random selection. There is no evidence to suggest otherwise. He clarified and explained an earlier error in his witness statement, and we found his explanation in this regard plausible. He also gave evidence which we accept that he did not know until he started to mark them that Mr Bulsara was one of those applications. We do not find he deliberately selected Mr Bulsara’s application for moderation – this would make no sense as Mr Bulsara had already failed to pass the scoring criteria in any event.[74]He knew it was Mr Bulsara’s application when he started to mark it. He did not think it necessary to withdraw from the moderation at this point for any potential conflict. There was no procedure in place for such eventualities as part of this process.[75]Mr Bowden and Mr Smith marked the whole paper separately then they came together and discussed any variation and through that came to a conclusion - they had agreed beforehand if they could not agree then the higher score would be the final score.[76]The moderation was not a true moderation. Indeed Mr Bowden accepted in cross examination that effectively the result of the moderation process was that for about 50% of candidates instead of having the mark given by the first 2 assessors revisited, that mark was replaced by the mark given by Mr Bowden and Mr Smith. Essentially, we find the moderation was a re-marking process. Mr Bowden accepted he did not know the marks of the first two assessors. They were not comparing the marks against the first scores but essentially marking them again.[77]Mr Bowden did not know the names of the applicants when he selected them, just candidate numbers (which were computer generated) but he accepted when remarking them he was aware the application in question was Mr Bulsara’s from the answers given.[78]True moderation is not a remarking exercise it should involve considering the original scores and surely look at the assessors notes which should include justification of the scores. Mr Bowden accepts he did not look at the original assessors notes or scores.[79]On remarking, the revised score between Mr Smith and Mr Bowden was 13 x 2 (page 788) so they increased his score from the scoring of 24 to 26 (still below the pass mark of 30). Feedback meeting between Mr Karl Bowden and Mr Bulsara[80]Notably Mr Bulsara does not purport during his grievance that this meeting (transcript at page 551) demonstrates he was being treated in a negative way because of race. He really asserts that Mr Bowden was disorganised and unprepared and did not give him the time to provide detailed and helpful feedback. He refers to Mr Bowden’s feedback being negative and raises issue with the assessors not providing the feedback. He also notably when referring Mr Weston to the prior communications with Mr Bowden refers to feeling it was ‘about who you know and not what you know’ as opposed to any issue Mr Bowden had with him because of race. We find based on the evidence heard from Mr Bowden, Mr Bulsara and the transcript of this meeting that Mr Bowden was clearly not fully prepared for his feedback session given his general replies. This grievance was in fact upheld. Mr Bulsara seeks to persuade us this is evidence of the scoring being tainted because his view is the lack of detailed feedback is indicative of Mr Bowden not being able to justify the scoring.[81]We find Mr Bowden was disorganised and unprepared for the feedback.[82]We do not find there are sufficient findings from which we can infer his scoring was affected by Mr Bulsara’s race. We are satisfied his motivation in moderating was to try and ensure a quality assurance to the assessment and scoring process however flawed that process was we do not find this was because of race. We were satisfied with Mr Bowden’s evidence in relation to the previous comments made to Mr Bulsara about the promotion to the GM role. We do not find Mr Bowden saying he did not consider Mr Bulsara was ready for the role was based on race but rather because he did not know much about Mr Bulsara. Whilst this still cannot be plainly right in terms of this being determinative of whether a candidate is ready for a role or not, we were satisfied Mr Bowden did not select Mr Bulsara’s application for moderation deliberately and nor did we find sufficient evidence to demonstrate his remarking was impacted by Mr Bulsara’s race. Again, the moderation re marking demonstrates the subjective nature of the scoring as against the indicators/scoring criteria. Mr Roger Smith – moderation process[83]Mr Smith is employed by the respondent as a Commercial and Procurement Manager. He did 7 applications; he corroborates Mr Bowden’s explanation of the moderation process they adopted. Mr Smith had worked with Mr Bulsara previously at a superficial level on various projects. He says he was not familiar with the detail in the application so as to have ben able to identify that this was Mr Bulsara’s application.[84]It was put to him in a number of ways in cross examination that where there was a difference in scores that he tended to defer to Mr Bowden on that discussion and he maintained that was not the case.[85]It was also put to him the claimants say they were underscored at moderation stage because they were non white, and Mr Smith disagreed.[86]There was no evidence before us that Mr Smith knew of the identity of the applicants when marking Mr Bulsara’s assessment. We accept his evidence on that point. He is on the non-operational side of the business, and he would not have any real knowledge of the examples given by Mr Bulsara in his answers and there is nothing to suggest otherwise. We are not persuaded that there are 87. findings from which we can properly infer the scoring by Mr Smith and Mr Bowden in the moderation process was affected by race. Grievances[88]Mr Callum Faint the Chief Fire and Rescue Officer at the respondent who is the head of paid service and Chief Executive is the most senior operational command officer within the respondent’s organisation. He chaired both claimants’ grievance appeal hearings against the grievance decisions made by Mr Paul Weston, the Assistant Chief Fire Officer.[89]Mr Weston knew the first claimant since since September 1994 and the second claimant since February 2003. On 21 January 2022 both claimants raised grievances. The grievances were initially raised regarding Mr Bowden’s feedback delivered to both claimants on 8 November 2021 and 1 December 2021.[90]Both claimants had separate hearings and were represented by trade union representatives. The claimants read from pre prepared scripts following which Mr Weston asked both claimants whether their grievances included allegations of discrimination. Both claimants confirmed they did not want to proceed with the grievance as a discrimination complaint and this is recorded within the minutes of the grievance hearing at page 640 and 624 of the bundle.[91]Mr Bulsara’s original grievance was advanced on two grounds. First of all, the application. He stated the application form was not progressed despite being submitted for review and endorsed by 4 managers. He stated they were able to see his evidence which showed that he had the correct skills qualities and attributes to progress through to the next stage. Secondly his grievance focused on the feedback given by Mr Bowden. He stated the feedback was not given by the assessors and was negative and not evidence based. The conclusion of the investigation into this grievance by Mr Weston was that the provision of feedback fell short of the standards Mr Weston would expect from the service in a Group Manager promotion process and that element of the grievance was upheld. Mr Weston also re scored and reviewed Mr Bulsara’s application as part of the investigation into his grievance and concluded that a number of Mr Bulsara’s answers were not scored at a level that would meet the selection criteria. He did not consider the outcome reached in the original shortlisting and moderation process was unfair or unreasonable and that part of the grievance was not upheld. Given the background information provided by Mr Bulsara at his grievance meeting Mr Weston stated during his investigations he found no evidence of discrimination, but he found there was an opportunity for the service to further improve the development of staff from the BAME community. We find Mr Weston clearly took what the claimants had raised even if not formally pursued as a discrimination complaint seriously. There is no evidence of the claimants’ views being disregarded or treated other than seriously in this regard which we take note of.[92]Mr Weston gave unchallenged evidence that he re-marked Mr Bulsara’s application before he read the feedback transcript from his meeting with Mr Bowden.[93]Whilst Ms Stanley seeks to persuade us that it was clear Mr Bulsara’s complaint should have proceeded to be dealt with as discrimination grievance Mr Weston’s evidence and the minutes of the grievance meeting clearly demonstrate Mr Bulsara was given the opportunity to do so and he confirmed he was not pursuing a discrimination grievance. Nevertheless, Mr Weston to his credit stated he wanted to assure himself there was no discrimination occurring during this process and he concluded following his investigation that he was satisfied there was not.[94]Mr Weston re-marked Mr Bulsara’s application along with Mr Chris Manning the HR manager. He awarded the claimant a total score of 13 and Mr Manning independently scored him the same and therefore Mr Bulsara with this remarking received a total of 26 marks which still remained under the threshold mark of 30.[95]We were satisfied that Mr Weston looked at a range of scores and the ethnicities of the individuals who proceeded through the process as part of his investigation. Having noted that white people were also eliminated during the process and there were wide-ranging scores across all the applications he felt assured that discrimination had not taken place.[96]We are not persuaded that there are findings from which we can properly infer the grievance and the re-marking of Mr Bulsara’s application as part of the grievance was negatively affected by race.[97]Mr Faint in evidence agreed that looking at the operational side of the respondent’s organisation non white people are underrepresented, and he agreed with this.[98]Mr Faint said he had areas of concern from the pre prepared scripts that both Mr Bulsara and Mr Thornton read out at the grievance appeal hearing which he was chairing that led him to want to assure himself as to whether there was discrimination in the process.[99]Mr Faint commissioned an independent cultural review which shows that he was taking the issue of discrimination seriously. He accepted that the respondent does not fully represent the community in terms of non-white people, and he wants to continually improve the organisation. We were satisfied with his explanation that traditionally within the operational side of the organisation the entry point was always at firefighter level and for many reasons the Fire and Rescue Service has not been attractive to underrepresented parts of the community both in terms of gender and people from a BAME background. He gave compelling evidence that since becoming Chief he has been keen to improve this at every opportunity. It is clear from his evidence that changes have been made including the direct entry scheme which allows new applicants to join at station manager level in an attempt to better their diversity. It is clear that he felt the claimants were genuinely upset about their perceived lack of career progression which they believed could be to do with their race and this shocked him, and he felt it was a moral and organisational responsibility to look at this in more depth which there is clear evidence he did.[100]Mr Bulsara’s grievance appeal hearing took place on 16 May 2022. At the heart of his grievance complaint and appeal was not progressing to the next stage of the Group Manager talent pool process and inadequate feedback being given to him. The conclusion of Mr Faint was that the assessment and moderation process for Mr Bulsara's application was properly followed.[101]We are not persuaded that there are findings from which we can properly infer the grievance appeal hearing and /or the decisions made by Mr Faint were affected by race. To the contrary to Mr Faint’s credit, he took the information he was given about the possibility of discrimination impacting the process very seriously. He accepted candidly in evidence there is under representation and has clearly taken positive steps to improve the position within the respondent organisation. Mr Thornton- second claimant[102]Mr Thornton has been employed with the respondent since June 1998. He has been a station manager since 2018. He submitted his application for the GM talent pool on 8 October 2021. He disclosed his ethnicity on the application as mixed white and black Caribbean.[103]Page 68 of the bundle shows Mr Thornton’s scoring. Mr Thornton’s application was scored by Matthew Cane and Michael Rogers.[104]Mr Thornton’s application is at page 535 of the bundle.[105]Mr Cane as with Mr Bulsara’s application was candid that he knew it was Mr Thornton’s application he was marking from the examples given in the application. Mr Cane scored Mr Thornton a total of 9; a marked difference from Mr Rogers who scored him 21. Mental processes of Mr Cane[106]Mr Cane (page 545) marked 2 candidates at 9 (one of these was Mr Thornton), one at 21, one at 15 and one at 11.[107]Mr Thornton notably raised no prior issues or concerns with the relationship he had with Mr Cane. He does however refer to finding it difficult to comprehend the scoring discrepancy between Mr Cane and Mr Rogers and believed that the only reason could be bias or discrimination. We find this belief was contributed to by Mr Thornton (and indeed Mr Bulsara) receiving poor feedback from Mr Karl Bowden. Had that feedback been better prepared and presented both claimants may have better understood the reasoning for the scores given.[108]Mr Thornton did receive an overall score at this stage of the process of 30 which was the pass mark for progressing through to the next stage.[109]Mr Cane in his statement says he considered he had a development need in respect of questions 3 4 and 5 and an acceptable performance in relation to questions 1 and 2.[110]The assessors did not know the pass mark at this stage of the process when marking the applications.[111]Mr Cane gives his explanation at page 66 of the witness bundle in his statement as to his scoring.[112]In cross examination Mr Cane stood by his scoring and he was asked to support and justify at considerable length his scores. We found he was able to support some of his lower scores well under quite rigorous cross examination. It is clear that he expected a greater level of depth and information to ensure an indicator had been met. Whilst the second claimant argued that the scores for one of the questions Ms Stanley took him through should have been a 3 at least not a 1, what is clear from Mr Cane’s approach to marking is that he was looking for a greater depth from the answers than perhaps Mr Rogers did. Unfortunately, Mr Rogers was not here to give evidence to explain his scoring.[113]We find the issue comes down to the fact that whilst the respondent thinks having 2 assessors is a guard against unfairness in the process the fact the process does not actually include the 2 assessors meeting to discuss their scores is a flaw in the process. Mr Thornton’s case is a clear example of why it would be useful for the assessors to have the ability to come together and discuss where there is a discrepancy in the marks. Whilst we may not necessarily agree with Mr Cane’s application of the indicators and how he measured whether any one was met it is clear from him being able to support and justify his scoring and in light of no real evidence to the contrary that we do not have compelling evidence that Mr Cane scoring lower marks than Mr Rogers was motivated by race. It is just another example of the process being flawed which will ultimately be equally flawed for white and non-white candidates. Moderation process[114]The moderation of Mr Thornton’s application was done by Mr Karl Bowden and Mr Roger Smith and as part of this the second claimant was marked down to 26.[115]We have already found the selection of which applications would be moderated was random.[116]Mr Thornton’s original score was 30 which would have met the threshold for passing to the next stage of the process.[117]Mr Bowden moderated 7 of the applications. He moderated Mr Bulsara's application which had scored 24. He moderated Mr Thornton's application which scored 30. He moderated an external candidate’s application which had been scored at 22. He moderated an internal candidate who had scored 28. He moderated an external candidate’s application which had been scored 23. He also moderated another internal candidate’s application which had been scored 30 and an internal application which had been scored 32.[118]Page 788 discloses the moderation scores for all 7 candidates selected for moderation. The candidate who was scored 32 was moderated down to 30 (he is white).[119]Mr Thornton was moderated down to 26.[120]The other internal candidate who scored 30 was moderated the same at 30 (he is white)[121]The candidate who scored 28 was moderated up to 30 (he is white).[122]The candidate who scored 24 (Mr Bulsara) was put up to 26.[123]The candidate who scored 23 was moderated down to 18 (he is white)[124]The candidate who scored 22 was moderated down to 14 (he is white).[125]Non white candidates’ scores were therefore marked up on moderation (i.e. Mr Bulsara’s application) and white candidates’ scores were moderated down as well as Mr Thornton’s application being moderated down.[126]We accept Mr Bowden's clear evidence that prior to re-marking he did not look at the marks given by the first-round assessors. He had corrected in examination in chief an error in his witness statement as to the selection process for moderation and we accept his plausible explanation of that error and there was no evidence to rebut his explanation that he selected 50% of the papers for moderation.[127]Mr Karl Bowden gave evidence that he did not know it was Mr Thornton’s application he was marking. We find he did not know it was Mr Thornton’s application he was moderating. There is no evidence to satisfy us that he did. There was no evidence that Mr Karl Bowden knew about the matters contained within Mr Thornton’s application such that he would know it was Mr Thornton’s application.[128]We have already found Mr Bowden and Mr Rogers did not know at the time of moderation what the original scores were. We do not find there is sufficient evidence to draw a proper inference that the moderation scores were less favourably given to Mr Thornton because of race. Mr Bowden did not know it was Mr Thornton’s application he was moderating. He marked down both white and non-white candidates.[129]As with Mr Bulsara’s case the moderation was not a true moderation because essentially, we find the moderation was a re-marking process. Mr Bowden accepted he did not know the marks of the first two assessors. They were not comparing the applications against the first scores but essentially marking them again.[130]Mr Bowden shredding the applications is troubling but at that stage it is notable there was no indication of any complaint or issue arising. His response was they were shredded for GDPR reasons. We cannot draw a reasonable inference that this was motivated by race given he shredded all the papers he moderated not just those of Mr Bulsara and Mr Thornton. What it demonstrates is that the respondent does not have a clear agreed process even in relation to document retention in the process. Mr Roger Smith[131]In cross examination Mr Smith gave a satisfactory and plausible explanation as to why he would not have recognised Mr Thornton’s application despite Mr Thornton’s position being that Mr Smith would have been aware from the reference in his answers to the breathing apparatus or the digital radios that it was his application. We were satisfied with Mr Smith’s explanation and accept he did not know Mr Thornton’s application was being moderated by him.[132]It is evident from the degree of differential scores between initial scoring and moderations that there are flaws in the process. It is notable that there were also white candidates who were scored down.[133]Based on our findings in relation to the scoring undertaking by Mr Bowden, Mr Cane and Mr Smith we are not satisfied there is evidence from which we can properly infer that their marking was tainted by race as opposed to flaws in the assessment and moderation process which are unrelated to race. Grievances[134]At the grievance stage as in Mr Bulsara’s case Mr Thornton’s application was reassessed by Paul Weston and Chris Manning and they were rescored: a. Mr Thornton’s original score was 30, he was moderated down to 26 and then Mr Weston and Mr Manning rescored him at 30.[135]As stated earlier Mr Thornton's grievance was also dealt with by Mr Weston. The grievance outcome was delivered by way of letter dated 28 March 2022. The first grievance raised by Mr Thornton was the feedback that he received on the basis that the feedback was not delivered by the assessors. Mr Thornton had also raised that the feedback delivered was negative and not evidence based, and it was unbalanced and contradictory. Mr Weston upheld this grievance in relation to the quality of the feedback provided by Mr Karl Bowden.[136]Mr Thornton was also asked whether he wanted to proceed with his grievance as a discrimination complaint which he declined. However, he had expressed at the grievance hearing that there was either direct or indirect discrimination in relation to the scoring. Whilst Mr Weston found no evidence of discrimination having re-marked the application to 30, and on the basis this would have scored at the level to progress to the next stage of the process, as part of the remedy for his grievance Mr Weston was authorised to pause the appointments to the then ongoing Group Manager selection process in order to permit Mr Thornton to apply for the job. However, Mr Thornton declined this option and proceeded to appeal the outcome.[137]Mr Thornton's grievance appeal was also chaired by Mr Faint, and we have already made findings in relation to Mr Faint’s evidence and how he addressed the concerns of both Mr Bulsara and Mr Thornton as part of the grievance appeals.[138]We do not find there is evidence from which we can infer that the remarking by Mr Weston or Mr Manning was tainted by race, indeed to the contrary they increased Mr Thornton’s score to the pass threshold.[139]We find both claimants grievances and appeals were handled well by both Mr Weston and Mr Faint. Conclusions:[140]We applied the statutory burden of proof. The first question we considered was whether the claimants had proved facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had not progressed them to the next stage of the talent pool process was because of their race. In our view the answer was yes. We did take very seriously into account the lack of diversity shown by the data at more senior roles including the group manager role.[141]It was then for the respondent to prove that the failure to pass the application process was in no sense whatsoever on the grounds of the claimants’ race.[142]We find the respondent has done this. The respondent’s witnesses withstood considerable scrutiny in cross examination as to their respective scores of both claimants’ applications. They gave consistent plausible and credible explanations justifying their reasons for the scores. Ms Wilson to her credit conceded one of her scores given may be different if marking it again. However, there was no evidence to support her earlier score was tainted with conscious or unconscious bias.[143]Whilst it is clear that the process itself is flawed in the ways in which I have already referred to throughout this judgment we do not find on the balance of probabilities the claimants have established that they were treated less favourably in not being progressed to the next stage of the talent pool process because of their race.[144]This is a very sad and unfortunate case because it was evident to see how much Mr Bulsara and Mr Thornton were impacted by it. It is clear they are passionate and committed to their jobs. Quite rightly they want to see an improvement in diversity within the fire service in particular at senior levels. It is also clear historically there has been poor diversity and this coupled with the poor feedback given to them about their applications has inevitably contributed to their feelings that they were treated less favourably during this process because of their race. We are however encouraged by the clear evidence of Mr Faint that positive steps are being taken to address these issues. We suggest the recruitment process is reviewed as there are clear flaws within the assessment and the moderation process. Inevitably with a competency-based process where the assessors are internal there is a high possibility the identity of the candidates will become known to those assessing and moderating. One way to address this would be to have external assessors. We also consider there needs to be better training of assessors to ensure that there is a consistent approach when applying the marking criteria. It was evident that some assessors marked more strictly as against the criteria than others.[145]We hope the respondent uses this as an opportunity to gain insights from Mr Bulsara and Mr Thornton as longstanding dedicated employees who are both from a non-white background into how positive changes can be made within the fire service so that candidates like them are not left feeling that the reason for any lack of progression is due to their race. Mentoring and supporting candidates who apply for such talent pool and promotion processes particularly to those from a diverse background is crucial to reduce the lack of diversity particularly at more senior levels of the operational side of the business. The unanimous decision of the Tribunal is:[146]The respondent did not subject the first claimant to direct race discrimination pursuant to section 13 of the Equality Act 2010.[147]The respondent did not subject the second claimant to direct race discrimination pursuant to section 13 of the Equality Act 2010.