Dr B Fulda v The Chancellor, Masters, and Scholars of the University of Cambridge: 3312419/2023
EMPLOYMENT TRIBUNALS
Case No 3312419/2023
Between
Dr B FuldaClaimantThe Chancellor, Masters, and Scholars of the University of CambridgeRespondent
Before
Employment Judge Tynan
Members
Ms M Harris and Mr B SmithMr W Young (instructed by Counsel) for claimantMs J Duane (instructed by Counsel) for respondentDate 16 January 2026
JUDGMENT
The Claimant’s claim that the Respondent indirectly discriminated against him by the application of an age discriminatory provision, criterion or practice of preferring not, in its Faculty of History, to recruit candidates who are College Teaching Officers to permanent Grade 9 University Teaching Officer positions is not well founded and is dismissed.
REASONS
[1]We shall refer to the Claimant hereafter as Dr Fulda and, save where the context indicates otherwise, to the Respondent as either the University or Cambridge.[2]Dr Fulda is employed as a College Teaching Officer by Sidney Sussex College, Cambridge. He has been employed by the College since 1 October 2007. Two years after his appointment he was awarded the title of Affiliated Lecturer of the University’s History Faculty in recognition of his regular contributions to it. He seeks to argue that at the material time with which we are concerned, he was employed by the University pursuant to an overarching contract.[3]In May 2023, the University advertised a position of Assistant Professor in Twentieth-Century German History within the Faculty of History. Dr Fulda applied for the position, was shortlisted for interview, but was not appointed. The successful candidate was Dr Marcus Böick. The Selection Committee’s final decision came down to whether Dr Böick or Dr Marcus Colla, a Research Fellow at Cambridge should be appointed. Dr Fulda claims that the University’s recruitment practices indirectly discriminated against him on grounds of age. His claim is brought under sections 39(1)(a) and 83(2) of the Equality Act 2010, namely as a job applicant and as an employee of the University. He does not claim to have been directly discriminated against.[4]Aside from relatively limited, sometimes anecdotal evidence regarding the alleged experience of other applicants over the years, the 2023 recruitment exercise provides us with the only detailed and documented account of how recruitment exercises within the Faculty are handled. This account extends to Dr Fulda’s testimony as a candidate in the process and the testimony of five members of the Selection Committee (defined below), four of whom were voting members.[5]It is common ground that University Teaching Officer positions are highly sought after, that the competition for them is fierce and that applications tend to come from an international field.[6]For the reasons that follow, we do not uphold Dr Fulda’s claim that the Faculty of History applied the age discriminatory provision, criterion or practice relied upon. It has not therefore been necessary for us to decide whether candidates aged 42 and older from the relevant group were put at a particular disadvantage by reason of the application of the PCP when compared with younger candidates, or the further question of whether Dr Fulda was put at that disadvantage. Nor has it been necessary for us to determine whether Dr Fulda was an employee of the University.[7]Any page references correspond to the 478-page Main Bundle of Documents or to the 143-page Supplementary Bundle of Documents. Definitions[8]In these reasons: ▪ “Committee” means the selection committee comprising Professors Laven, Clark, Arnold, Austin, Donert, Bourke, Weiss-Sussex and Eisner (non-voting) who in 2023 were tasked with making an appointment to the Post; ▪ “CTO” means College Teaching Officer; ▪ “CTO Applicant” means an applicant for a UTO position at the University who is employed as a CTO at a Cambridge College at the time of their application; ▪ “CTO PCP” means the Respondent’s alleged provision, criterion or practice of preferring not, in its History Faculty, to recruit candidates who are College Teaching Officers to permanent Grade 9 University Teaching Officer positions; ▪ “Faculty” means the University’s Faculty of History; ▪ “Post” means the position of Assistant Professor of TwentiethCentury German History; ▪ “REF” means the Research Excellence Framework”; ▪ “the Act” means the Equality Act 2010; and ▪ “UTO” means University Teaching Officer. Witness Evidence[9]In addition to Dr Fulda we heard evidence from the following individuals on his behalf: 9.1. Mr Scott Mandelbrote, a CTO at Peterhouse College, Cambridge. Mr Mandelbrote is also an Affiliated Lecturer within the Faculty. Mr Mandelbrote’s witness statement includes an overview of the role of a CTO, his observations as to how CTOs and UTOs are treated by the University and the Faculty, and his further observations regarding recruitment to UTO positions. 9.2. Dr Simone Maghenzani, the Dame Marilyn Strathern Associate Professor in History and an Official Fellow and Director of Studies in History at Girton College, Cambridge. Dr Maghenzani’s witness statement focuses principally upon the relationship between CTOs and the Faculty, and the alleged CTO PCP, including statements allegedly made by various members of the Faculty which are said to indicate its application. 9.3. Dr David Pratt, a CTO at Downing College, Cambridge. Dr Pratt is an early medieval historian. His witness statement addresses the alleged treatment of CTO Applicants, as well as his observations on lecturing and examining for the Faculty, “as a secondary employment”. 9.4. Professor Adam Tooze, the Shelby Cullom Davis Professor of History at Columbia University. Professor Tooze also deals with the alleged CTO PCP, though he also addresses what he refers to as “Dr Fulda’s outstanding qualifications” for the Post and “the irregularities evident in his appointment process”.[10]On behalf of the University, we heard evidence from the following: 10.1. Professor Sir Christopher Clark, Regius Professor of History at Cambridge. He asked to be referred to simply as Professor Clark and accordingly that is how we refer to him in this judgment. He has known Dr Fulda since Dr Fulda was a graduate at Cambridge. As we shall come back to, Professor Clark was one of Dr Fulda's referees when he applied for the Post. Professor Clark was also a member of the Committee, participating in both the short-listing exercise and the candidate presentations and interviews. 10.2. Ms Ann Pollintine, HR Strategic Lead Workforce Planning at the University. Ms Pollintine, who was not involved in the 2023 recruitment process, provides an overview of the structure of the University and its constituent Colleges. 10.3. Dr Elizabeth Haresnape, Senior Assistant Registry in the Faculty. Dr Haresnape was the secretary to the Committee and was in correspondence with Dr Fulda after the recruitment process concluded. 10.4. Professor Manuel Eisner, Wolfson Professor of Criminology in the Institute of Criminology. Professor Eisner, who is the Director of the Institute chaired the Committee. Although he was a non-voting member of the Committee, he was plainly able to influence the process, in the sense of ensuring that it was conducted in accordance with the University’s published guidance, and that the Committee’s discussions and any final decision were informed by relevant, non-discriminatory considerations. 10.5. Professor Richard Bourke, Professor of the History of Political Thought in the Faculty. Professor Bourke was a member of the Committee. 10.6. Professor Mary Laven, Professor of Early Modern History in the Faculty and currently the Faculty Chair. Professor Laven was also a member of the Committee, ex-officio. 10.7. Professor John Arnold, Professor of Medieval History in the Faculty. Professor Arnold was also a member of the Committee. Amongst other things, he addresses comments attributed to him by Dr Maghenzani during a conversation in 2017. 10.8. Ms Sarah Spira, HR Business Partner for the Department of Humanities and Social Science. Ms Spira was not involved in the recruitment process itself though provided HR advice and support when Dr Fulda was in correspondence with Dr Haresnape.[11]As one might expect of such a distinguished group, the evidence on both sides was of the highest quality. This extended to a ready willingness to listen to and engage respectfully with other points of view.
Background
[12]As Ms Duane sets out in her opening note, the University is a collegiate university, whereby functions are divided between a central administration (the University) and 31 constituent colleges. This means that the University is a separate legal identity to the colleges, each of which are separate organisations in their own right, employ their own staff and have their own respective budgets. The University has statutes and ordinances that provide the constitutional framework and allows it to govern its affairs. Likewise, colleges have their own system of statutes which govern their activities and administration.
Law
[13]Sections 19(1) and (2) of the Act provide:[19]Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. ‘Age’ is a relevant protected characteristic for these purposes. 14. There is no statutory requirement that a PCP should have been applied to others: British Airways Plc v Starmer [2005] IRLR 862, EAT. Section 19(2)(a) of the Act enables a claimant to rely upon a hypothetical comparator. Nevertheless, Dr Fulda’s case is that the CTO PCP has been applied within the Faculty since at least 2003, if not before. 15. Counsel exchanged and submitted comprehensive written submissions which they developed further in closing. They have each set out the law and relevant legal principles in their submissions, so we do not rehearse them further here. We have re-read the written submissions and our notes of Counsel’s oral submissions in coming to a judgment. 16. Ahead of their closing submissions, we asked Counsel to give consideration to whether Dr Fulda would need to establish that a majority of the Committee preferred not to appoint CTO Applicants to permanent Grade 9 UTO positions, in order both for the CTO PCP and its application to Dr Fulda to be established. Save that Mr Young has identified the members of the Committee who are alleged to have applied the CTO PCP, neither he nor Ms Duane has specifically addressed the issue. It seems to us that even if we were to conclude that on this occasion a minority of the Committee did prefer not to appoint CTO Applicants, that would not of itself preclude a finding that the CTO PCP had been applied within the Faculty over a period of 20 years or more, since there might be other evidence to support that conclusion. We have found the related question of whether it would preclude a finding that the CTO PCP was applied to Dr Fulda in 2023 a less straightforward one to answer. We are not aware of any direct legal authority as to the correct approach in those cases where the decision being challenged has been taken by a group. Logically, or perhaps intuitively, it might be thought that in all cases a majority of the group would need to have been materially influenced by the contended for PCP in order for it to have been applied to a claimant. However, it seems to us that where, for example a committee of seven is divided as to which of two candidates should be appointed, it might be sufficient, where a bare majority was in favour of the successful candidate, for just one member of the majority to have applied a discriminatory PCP when ruling out the unsuccessful candidate, in order for a claim by that unsuccessful candidate to succeed. The application of the discriminatory PCP will have tipped the balance in terms of the final decision. Of course, the fact in that scenario that six out of the seven members did not apply the discriminatory PCP might lead the Tribunal to conclude that the employer has not applied it to others and would not do so. 17. We have asked ourselves what the position would be if the same committee was unanimous in its decision to reject a candidate but, for example, three members of the committee arrived at their decision through the application, consciously or otherwise, of a discriminatory PCP. Putting aside whether again the requirements of section 19(2)(a) of the Act would likely be established in such a situation, what, if anything, distinguishes this from the first scenario above? Notwithstanding in this second scenario three members of the committee rather than just one have now been influenced in their decision by a discriminatory PCP, it seems to us either that the requirements of section 19(1) of the Act would not be met, on the basis it cannot be said that a discriminatory PCP was ‘applied’ in the particular circumstances, alternatively that the candidate has not been put at the relevant disadvantage by reason of the three committee members’ application of the PCP, rather by the lawful decision of the majority. If our analysis is correct, it suggests a need for careful enquiry as to how a group has come to its decision and what was in the minds of the decision makers whose actions and decisions contributed to the decision. In this case, in answering this enquiry, we have scrutinised not only the Committee’s decision to exclude Dr Fulda from further consideration but also its final decision as to which of the remaining two candidates should be appointed, particularly in case that final decision is revealing in terms of what was in the Committee’s minds when they made their earlier decision in relation to Dr Fulda. 18. In closing, Mr Young said that Professors Laven, Bourke, Arnold and Austin were influenced by the CTO PCP. No such contention is made in relation to Professor Clark. As regards Professors Donert and WeissSussex, Mr Young said that it was “less easy to say” whether they had been so influenced. Picking up on our observations immediately above, in circumstances where we are satisfied there was a consensus amongst the Committee that Dr Fulda should be the third candidate to be eliminated from the process, we believe that four members of the Committee would need to have arrived at their decision through the application, consciously or otherwise, of the CTO PCP in order for the requirements of section 19(1) of the Act to be met, alternatively in order for Dr Fulda to have been put at the relevant disadvantage by its application to him. 19. There is one further matter we should touch upon briefly, namely the relevance of findings of unfairness in discrimination cases. The fact that an employee is treated unreasonably or unfairly does not of itself suffice to justify an inference of unlawful discrimination: see paragraphs 98 to 101 of the Court of Appeal’s judgement in Bahl v The Law Society and others [2004] IRLR 799. Nevertheless, discrimination may be inferred if there is no explanation for unreasonable treatment. This is not an inference from unreasonable treatment itself but from the absence of any explanation for it. In Chief Constable of Kent Constabulary v Bowler EAT 0214/16, it was held that a Tribunal had impermissibly inferred direct race discrimination solely from evidence of procedural failings in dealing with the claimant’s grievances, including their appeal against the rejection of those grievances. The EAT said: ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristics.” We believe these observations to be equally pertinent to claims of indirect discrimination. The CTO PCP[20]It is Dr Fulda’s burden to establish the CTO PCP. He relies upon four arguments in this regard, namely: 20.1. corroborative evidence of witnesses; 20.2. statistics; 20.3. the existence of cogent explanations for why there is such a PCP; and 20.4. evidence of the PCP having been applied in his case. We have structured our findings accordingly, though shall address the statistical evidence first. Statistics[21]Although the status of various applicants was debated in the course of the hearing, between 1997 and 2023 there were at least 33 applications by CTO Applicants for UTO positions within the Faculty. Dr Fulda’s detailed analysis is at pages 321 and 322 of the Main Bundle and reflects both his personal knowledge of applications having been made by CTO colleagues and information derived from speaking to others. We are satisfied that the analysis presents a sufficiently accurate picture that we can rely upon it. Indeed, it is possible that the number of applications by CTO Applicants may have been underestimated, since Dr Fulda has been unable to establish whether there were CTO Applicants for approximately 15 positions over the 26-year period in question. Four CTO Applicants were successful over that period, with just one successful applicant between 2004 and 2023. We calculate that during that slightly shorter 19-year period there were at least 24 applications by CTO Applicants. There were two CTO Applicants for at least six of the advertised positions over the full 26-year period, three of which positions were recruited to in the narrower period 2004 to 2023.[22]Whether the CTO Applicant appointment rate was therefore 1:7 (based upon four successful applications for 27 positions over 26 years) or 1:21 (based upon one successful application for 21 positions over 19 years), there is no further data available to us to evaluate the statistical significance. For example, we do not know how many other applicants there were for each position or what percentage of CTO Applicants were short-listed for interview compared to non-CTO Applicants. Nor do we have any information as to the universities at which non-CTO Applicants were employed at the time of their application, in order to undertake some comparison of how other institutions fared in terms of ‘their’ candidates.[23]According to the advertisement for the Post: “The History Faculty’s 100 academic staff (teaching officers employed by either the University or the Colleges) constitute one of the largest and best history departments in the world. Times Higher Education ranked Cambridge History third in the world and first in the UK in the TES World University Rankings 2021 …” (page 121 of the Main Bundle) In which case, all other things being equal, one might expect CTO Applicants, who are specifically acknowledged to be part of a cohort who make up one of the best history departments in the world, to be of a particularly high calibre and accordingly to have some track record of relative success in applying for UTO positions within the Faculty. It is a point Mr Young has made in paragraph 58 of his submissions. However, we do not have any information for example as to the numbers of applicants and successful applications from academics employed at say the five, ten or even twenty leading history departments in the world, assuming this data might be a further reliable statistical indicator of relative success.[24]Professor Bourke referred to there being upwards of three thousand historians in the UK. Whilst he may have been referring to membership of the Royal Historical Society, we were not specifically told where the number came from or to what extent, if at all, it might indicate the total number of academic historians currently working at UK universities. Nevertheless, we acknowledge the broader point he was seeking to make regarding the potential size of the global pool of potential applicants for positions at Cambridge.[25]In the addendum to his written submissions, Mr Young has calculated that the mean number of applicants for eighteen Grade 9 vacancies in the Faculty between March 2014 and May 2023 was 56.5. That equates to 1,017 applications in total. There were either six or nine CTO Applicants for those positions, depending upon whether one includes Geraint Thomas and Alexis Litvine for these purposes, and count Dr Fulda once or twice - see again in this regard the analysis at page 322 of the Main Bundle). Either way, CTO Applicants made up between 0.5% and 1% of the total applicant pool but were appointed to 5.5% of the available positions notwithstanding they were applicants for at most one half of the advertised positions. In contrast, the 1,011 (or 1,009) non-CTO Applicants were appointed to 94.5% of the available positions notwithstanding they made up 99-99.5% of the total applicant pool. Looked at another way, excluding Geraint Thomas and Alexis Litvine, over the 9-year period in question, CTO Applicants were successful every 7th application, whereas non-CTO Applicants were only successful every 55th application where they were competing against a CTO Applicant. These figures are a potentially crude measure of the two group’s relative success, since we lack the expertise to offer any view as to the statistical significance of the sample size. In any event, the analysis assumes a pool of equally appointable applicants when, as we have already noted, we have no ready means of statistically evaluating the relative strength of the CTO Applicants within their respective pools.[26]Mr Young says that it is “striking” that so few applications by CTO Applicants succeeded in the period 1997 to 2023. In his witness statement, Mr Mandelbrote suggests that the incidence of non-shortlisting or at least non-appointment of CTO Applicants is “high” or, as he said at Tribunal, “strikingly large”. Dr Pratt refers to the outcome of applications by CTOs as being “notoriously poor”. At Tribunal, Professor Clark offered a contrary view, namely that although the pool of applicants is increasingly an international one, he could not think of another university that had generated a comparable number of successful candidates. Professor Laven said that she did not regard the number of CTO appointments to be statistically low. Corroborative evidence of witnesses[27]Putting aside Dr Fulda’s evidence regarding his experience of the 2023 recruitment process, which we shall address in due course, we address the evidence of his witnesses. Mr Mandelbrote[28]Mr Mandelbrote provides an overview of how the relationship between the University and the Colleges has evolved as the University has grown in size, and offers his views as to how this has affected the career prospects of CTOs. Amongst other things, he suggests that hiring restrictions in the 1970s and/or 1980s led to the appointment of highly qualified individuals as CTOs who nevertheless had no realistic prospect of a University post, but that for two decades or more the Colleges “persisted in the belief that CTOs ‘ought’ to be appointed to university posts in their subject”. He goes on to suggest that the idea that CTO were ‘helots’ (one of a class of serfs in ancient Sparta whose status was below that of a free Spartan citizen – presumably, by analogy, a UTO) was “increasingly replaced by the realisation that CTOs might not only be teaching slaves but also useful cash cows who could add to the faculty’s (and university’s) performance in research provision and funding at no extra cost”. He asserts that, “Appointment of an incumbent CTO brought neither benefit to the professors, nor the faculty, nor the university. It benefited the individual (in terms of status and earning potential) as well as the individual’s college, which now saved most of the salary”. We shall return to this when we examine the third argument.[29]Although Mr Mandelbrote has been involved in recruitment at Cambridge and Oxford, he has no experience as a member of a Cambridge selection committee making a UTO appointment. He does, however, have direct experience as an applicant and details his experience of applying for a UTO position in 2003, when he was not shortlisted notwithstanding he says he had then recently been appointed as a Newton Trust lecturer and was giving lectures and teaching the relevant papers in the Faculty at the time. We can see from the spreadsheet at page 321 of the Main Bundle that the position being recruited to was a University Lectureship in Early Modern British Economic and Social History. However, we have no further information about Mr Mandelbrote’s research profile or area(s) of expertise, information that is also lacking in relation to Malcolm Gaskill, the other unsuccessful CTO Applicant. The only information Mr Mandelbrote provides about the successful candidate, Alex Sheperd, is that they were an external candidate and not a CTO. Whilst we do not understand it to be suggested that Mr Mandelbrote might have some axe to grind, on his own account he and Mr Gaskill were sufficiently frustrated by how the appointment was handled that they sought to organise a research boycott by CTOs.[30]Mr Mandelbrote’s potentially more significant evidence concerns an alleged conversation with Professor John Hatcher in 2008 or 2009 when Professor Hatcher is alleged to have said that it would never be in the interests of the Faculty to appoint CTOs to UTO positions because of the implications for research funding that would then follow. Mr Mandelbrote understood the point being made to be that the Faculty already had access to the relevant funding that might follow from a CTO’s research so that it would be “an act of harm” to appoint a CTO Applicant to a position being paid for by the University. Mr Mandelbrote says that he has since repeated the gist of this conversation to others, including another former Faculty chair and has not encountered any surprise or challenge. We note that Professor Hatcher chaired six UTO selection committees between 2006 and 2008, during which period no CTO Applicants secured appointment as a UTO. Dr Maghenzani[31]Dr Maghenzani has never applied for a UTO position at Cambridge, in which case, as he says in his witness statement, there is no personal resentment for a missed appointment. Dr Maghenzani has taught for the Faculty for 10 years, contributing to the delivery of undergraduate teaching and examining in early modern history, and to the teaching and supervision of master’s students, as well as to the co-supervision of doctoral dissertations. In paragraph 6 of his witness statement, he details his extensive administrative experience within the Faculty.[32]Dr Maghenzani says there is a widespread perception in the Faculty, “that it is extremely hard, or indeed unlikely, for a long-term CTO (regardless of the amount of teaching, examining, and administration contributed to the Faculty) to be able to gain employment as a full-time UTO when such a job is advertised”. He alleges that Professor Laven once said to him, “CTOs are not necessarily good for a UTO post” (paragraph 14 of his witness statement) and that she had referred to a UTO colleague in the past as “perhaps good to be a CTO, but not a UTO”. He has not provided any further detail or essential context that might prompt Professor Laven’s recollection or enable her to respond. All she could say at Tribunal was, “I don’t hear my own voice here”. The second comment, if indeed it was made, seems to us to be an observation as to a particular individual’s suitability for appointment as a UTO rather than a more general observation; the significance of the first comment is more difficult to evaluate given the lack of context or further detail, but seems to us to be no more than a statement that CTOs are not guaranteed appointment to a UTO position and, perhaps by inference, that they should not assume their experience as a CTO makes them the preferred candidate for appointment as a UTO. Professor Laven told us that she has sat on upwards of ten selection committees which have decided appointments to Grade 9 UTO positions and has also been involved in other recruitment exercises. As we shall come back to, she acknowledged why it might be argued that there might be a research related incentive not to appoint CTOs to UTO positions, but went on to say that this had “never been uttered as an argument in any committee I’ve been in” nor discussed outside of any such committee. We accept her evidence.[33]Dr Maghenzani’s potentially more significant evidence is that Professor Arnold allegedly told him in a one-to-one online conversation in 2017, “Why would I ever appoint a CTO? We have them already”. These alleged comments have found expression throughout these proceedings, perhaps because they capture the essence of the contended for PCP.[34]Professor Arnold addresses the alleged comments at paragraphs 3 and 4 of his witness statement, together with further alleged comments by him at the same time to the effect that he was never going to appoint any of the early medieval CTO colleagues who were then working within the Faculty. He does not recall the conversation and questions whether he and Dr Maghenzani would have spoken online in 2017 as alleged, some two or three years before the Coronavirus pandemic led to the widespread adoption of remote ways of working and interacting. As we have observed already in relation to Professor Laven, it is difficult for Professor Arnold to recollect and address these allegations without further detail or essential context, particularly when the comments were allegedly made some eight years or so ago. Professor Arnold makes the point in his witness statement that the recruitment exercise in question was shortly after he arrived at Cambridge – it seems to us most likely in his first year – which begs the question when and how he might have become aware of an established preference not to appoint CTO Applicants to Grade 9 UTO positions and why he might have fallen in line with the preference. This was not explored with him at Tribunal. Dr Arnold’s unchallenged evidence was that there was a need at that time to retain high level expertise in medieval Europe pre 1100AD, an area of research specialisation that had been lost upon the retirement of Professor Arnold’s predecessor, Professor Rosamond McKitterick. Although Professor Arnold has no recollection of the alleged conversation with Dr Maghenzani, he accepts that he could well have said to him that it was unlikely the two CTO Applicants in the Faculty at that time, Tom Lambert and Dr Pratt, would be appointed because they lacked experience in European as well as British History, being a requirement for appointment to the post.[35]Given Dr Fulda’s reliance upon Dr Maghenzani’s evidence, including his adoption of the phrase ‘we already have them’ as a form of shorthand for the CTO PCP, and the inference in paragraph 34 of Dr Fulda’s witness statement that the successful candidate in 2017 was not appointed on merit but because she and Professor Arnold were former colleagues at Birbeck University, it is all the more surprising that Professor Arnold was not questioned further on paragraphs 3 to 6 of his witness statement, specifically regarding the non-discriminatory explanation he provides as to why the two CTO Applicants were not shortlisted. His unchallenged evidence therefore is that Mr Lambert, one of the two unsuccessful CTO Applicants told him that he accepted the outcome given the specialisations and evident strengths of the short-listed candidates. We shall come back to Dr Pratt below.[36]A significant part of Dr Maghenzani’s witness statement is taken up with a slightly gossipy account of Dr Ben Griffin’s appointment as a UTO in 2019. Dr Maghenzani refers to having been invited to dinner in early 2018 at Queens’ College, Cambridge by Dr Gareth Atkins, a History CTO colleague. Dr Tom Cordiner, then a Fellow of Queens’ College, was also in attendance. It was a few weeks before the shortlisted candidates were due to be interviewed. The three men retired to Dr Cordiner’s College apartment for drinks. Dr Maghenzani alleges that “in the small hours” Dr Cordiner told him that Professor Peter Mandler, chair of the relevant selection committee had said that he would never give the job to Dr Griffin, stating that it was not worth appointing a CTO, not least because ‘we already have him’. It is the same phrase Professor Arnold had allegedly used a year or so earlier. Dr Maghenzani attributes similar comments to Professor Larry Klein, whose retirement had led to the vacancy in question. Professor Klein had apparently attended the candidate presentations and afterwards spoke “vehemently against Dr Griffin, explicitly stating that there would be no benefit to the Faculty in appointing someone ‘we already have’ …” Dr Maghenzani goes on to say that Professor Austin had proposed Dr Griffin for appointment in preference to the leading external candidate, Dr McCarthy. Professor Austin’s apparent preference for Dr Griffin does not sit altogether comfortably with Dr Fulda’s suggestion that Professor Austin prefers not to appoint CTO Applicants. Professor Austin’s alleged stance is all the more surprising given Dr Maghenzani’s account of alleged manoeuvring on the part of Professor Mandler and Dr Morieux, with Professor Klein’s support, to prevent Dr Griffin’s appointment. Dr Maghenzani claims that the selection committee was split and had to reconvene a number of times. It is curious that Professor Austin might have held out so firmly in favour of Dr Griffin if he is now said to be part of a sizeable cohort within the Faculty that subscribes to the view that the Faculty already has the services of CTO Applicants. Professor Tooze[37]Professor Tooze worked in the Faculty for over thirteen years. Although he was involved in a range of administrative roles, and states that he closely followed the selection of several selection panels for University Lectureships and Research Fellows at college level, he does not describe any direct involvement in recruitment, whether as a candidate or member of a selection committee. Nevertheless, he provides a particularly eloquent exposition of what he claims is the emergence of an informal practice of the non-recruitment of CTOs to UTO positions in the Faculty. As Mr Mandelbrote does, he frames the contended for CTO PCP within a broad historical context, namely what he refers to as the political economy of teaching history at Cambridge University. He notes that prior to the 1990s there was an established career trajectory and that CTOs, (or nonUniversity Teaching Officers as they were then known) could expect to be appointed to permanent UTO positions as and when the funding for a tenured Faculty position became available. Of course, if there was such a trajectory or career expectation, it begs the question whether recruitment decisions prior to the 1990s were entirely based on merit or instead served to entrench existing inequalities and lack of diversity.[38]Professor Tooze says that by the time he arrived in Cambridge as a UTO in 1996, appointment to a UTO or CTO position was largely a matter of luck and timing and that the borders between CTOs and UTOs were still relatively porous but that over the last 25 years declining real levels of teaching income and the substantial growth in postgraduate numbers who need teaching, together with a shift towards research funding, has led the Faculty to become, “increasingly dependent on casualised labour and a new hierarchy of auxiliary teaching has emerged enabling the Faculty to continue functioning as “not normal” … paid by the University at low piece rates (or, for many tasks, unpaid), College-employed CTOs allow the Faculty to deliver its core functions, in an organisational context of overwork and underfunding.”[39]The ‘gig economy’ model Professor Tooze describes finds expression elsewhere, but nowhere quite so eloquently as in his hands. In paragraph 14 of his witness statement, he describes the fundamental economics that drive this model and why he believes members of the Faculty might be motivated, consciously or otherwise, to discourage and ultimately reject applications from colleagues with a proven track record on whose cooperation the Faculty may have come to rely. We shall come back to this.[40]At Tribunal, Professor Clark described Professor Tooze’s evidence as “an insightful discussion of a development over time which carries weight”. Professor Tooze has not offered his further view as to why these arrangements might have become established or entrenched in particular within the Faculty and not more widely across the University.[41]Professor Tooze also addresses what he refers to as Dr Fulda’s outstanding qualifications for the Post. He says he was “scandalized” in 2019 to learn that Dr Fulda had not been shortlisted for the Post and that in 2023 he was “sufficiently concerned by the evidence of blatant institutional bias to write a letter of complaint to the University’s Vice Chancellor” and also withdrew his agreement to give the Ellen MacArthur lectures in 2024/25. We shall come back to this. Dr Pratt[42]Dr Pratt states that he was the relevant CTO Applicant in three out of the 38 applications in the spreadsheet analysis at pages 321 and 322 of the Main Bundle. As far as we can tell, his name in fact appears just twice, namely in 2006 and again in 2017. That corresponds with his witness statement in which he provides a reasonably detailed account of both applications. On each occasion he was not shortlisted. We have already referred to Professor Arnold’s evidence regarding the 2017 recruitment exercise and why he says Dr Pratt and Dr Lambert were not shortlisted. Dr Pratt’s evidence regarding his earlier 2006 application for the University Lectureship in Medieval and Renaissance Political Thought is not directly addressed by the University’s witnesses. However, in paragraph 6 of his witness statement Dr Pratt details the feedback he received at the time. He acknowledges that King Alfred, who was the subject of his PhD on ’The Political Thought of Alfred the Great’ had not often been considered within the broader history of political thought, albeit it was something his PhD had sought to address. He goes on to allege that the shortlist comprised just two candidates, which was unusual and that it supports the overall picture presented by the data, namely that his status as a CTO had played a role in his unsuccessful application. The existence of cogent explanations for why there is a CTO PCP[43]In his written submissions and when he questioned each of the Respondent’s witnesses, Mr Young advanced three propositions for why he says there is a cogent explanation for the CTO PCP: first, economic incentives - one relating to head-count and teaching needs in the Faculty and the other to research; second, a related structural incentive relating to public research funding; and, third, a desire to avoid “favouritism” towards internal candidates. Mr Young goes on to say whilst all three elements go some way to explaining the application of the CTO PCP, the third would not necessarily have disadvantaged Dr Fulda compared to Dr Colla, the second placed candidate who, as we have noted, was a Research Fellow at Cambridge.[44]The University’s witnesses were consistent in terms of how they responded to these lines of argument, even if some of them expressed themselves a little more firmly in certain respects than others. They were unanimously of the view that academics have limited understanding of, exposure to or even interest in the University’s or Colleges’ finances. They were essentially dismissive of the idea that the members of a recruitment selection committee might have regard to the potential financial implications of any given appointment in coming to a decision. Professor Arnold went as far as to suggest that academics, “really don’t have a clue about budgets” as finances are controlled centrally, and the economics are “not on their radar” Professor Laven was equally emphatic in her evidence, “The economics are irrelevant … It is just not how they work.”[45]Professor Bourke said he would be “staggered” if economics played a part in recruitment decisions. Though we took from certain further comments of his that he was effectively saying that financial considerations had not crossed his mind in June 2023. When Mr Young suggested to him that there might have been a desire amongst the Committee not to cannibalise the existing CTO workforce he replied, “It just doesn’t happen, it is about getting an outstanding colleague”.[46]Professor Clark, whose evidence at Tribunal stood out amongst an impressive roster of witnesses, said that the general practice is for Colleges to replace CTOs when they leave, whether because they have been appointed as UTOs or taken up an appointment elsewhere, even if it is not uniformly the case. In which case, the University will ordinarily continue to have access to the services of a CTO as well as their body of research. Professor Clark put forward a number of reasons why the University cannot assume that they ‘have’ the CTO: they may withdraw their services, work to rule, or pursue an appointment at another institution so that their skills, experience and research credentials are lost entirely. Whilst we agree with Mr Young that the University has not adduced evidence of anyone, other than Dr Fulda, withdrawing even part of their services in response to failing to secure appointment to a UTO position, Dr Fulda and others refer to colleagues who left Cambridge to take up appointments elsewhere on the back of being unsuccessful in securing appointment as a UTO at the University.[47]We note, as Mr Young does, that Professor Laven accepted the logic to the argument that the availability of public research funding, often linked to the Faculty’s research rankings, might provide an explanation for the CTO PCP, even if she denied that it had been a factor in her mind or discussed in any meetings she had attended. Evidence of the CTO PCP having been applied in Dr Fulda’s case[48]Mr Young’s submissions as to why he says there is evidence of the CTO PCP having been applied in Dr Fulda’s case are summarised briefly at paragraph 61 of his written submissions and developed further at some length at paragraphs 114 – 126 where he explores whether Dr Fulda was put to the relevant group disadvantage. There is significant overlap in terms of the evidence touching upon both issues. Similarly, we agree with Mr Young that the reason(s) why Dr Fulda was not appointed to the Post may support a finding that the same reason(s) have operated to frustrate other CTO Applicants in their applications for appointment to UTO positions so as to establish the existence of the CTO PCP.[49]The Post was formally advertised in May 2023 with a closing date for applications of 2 June 2023. The advertisement is at pages 117 – 130 of the Main Bundle, and as far as we can ascertain is in a standard form. The purpose of the role was described in the following terms: “The Faculty of History is seeking to appoint a permanent Assistant Professor in Twentieth-Century German European History to start on 1 October 2023. The appointment will be linked to a fellowship in King’s College, Cambridge. The post arises through core funding from King’s College to support a key area of historical teaching and research in the Faculty, and to complement its existing strengths.” (page 118)[50]A section on key responsibilities followed, which appears to include a generic statement of UTO responsibilities albeit tailored to include details of the additional responsibilities that the successful candidate would have as a Fellow of King’s College, which was funding the position. The essential and desirable criteria are detailed on the fourth page of the advertisement (page 120 of the Main Bundle). Again, they would seem to be the University’s standard criteria.[51]Beyond the fact that the position was for an Assistant Professor in Twentieth-Century German History, the advertisement does not specify any particular area(s) of preferred focus within the broad sweep of the subject area. The only obvious indication is that the position or, perhaps more accurately, the Post holder should complement the Faculty’s existing strengths. That seems to us to be an uncontroversial proposition, even if it means in practice that the Committee would inevitably be informed in its task and decision by the CVs of the candidates who ultimately put themselves forward for consideration, regardless of whatever initial thoughts they may have had coming into the process, as to the likely profile of the successful candidate. It was a point well made by Professor Clark in the course of his evidence at Tribunal.[52]In addition to their CVs, candidates were required to submit samples of their published work. Shortly before the Committee’s initial short-listing meeting on 8 June 2023, it was identified that the Committee had not been provided with Dr Fulda’s and various other candidates’ samples of published work. Although this was rectified ahead of the meeting, the Committee would have received a significant volume of additional materials at a very late stage prior to the meeting. The potential explanation for this and other administrative errors or oversights may lie in the fact that the HR Administrator who was supporting the process was receiving treatment for cancer.[53]Regardless of the late provision of materials, Professor Laven acknowledged at Tribunal that she had not in fact reviewed Dr Fulda’s work before either the short-listing meeting or his subsequent interview on 21 June 2023.[54]Dr Böick had largely published in German, meaning that Professors Arnold and Austin in particular would have been unable to read or engage directly with the written materials supplied by him, given their lack of German. Professor Arnold additionally acknowledges in his witness statement that, as did Professor Laven, he relied upon his colleagues’ evaluation of the candidates’ published work given that German History is not his specialist subject area. As he said at Tribunal, “I was clearly going to pay attention to other’s specialism and should give way to others with more expertise”. Professor Arnold volunteered that he had not read Dr Fulda’s 700 odd page monograph, though he went on to say that he had read reviews of the publication to further inform himself in the matter. As the lead for the Faculty’s REF submission, he had some broad sense of Dr Fulda’s work in relation to Max Pechstein and he had also looked at the catalogue for an exhibition on Emille Nolde in which Dr Fulda had been closely involved.[55]Professor Arnold was on the Committee as the representative of King’s College, with a particular interest therefore in what contribution the successful candidate might make to College life. We shall come back to certain comments made by Professor Arnold at the interview stage.[56]The short-listing was undertaken by Professors Laven, Clark, Arnold, Austin and Donert, with Professor Eisner and Dr Haresnape in attendance. We understand they had additionally the benefit of Professor Bourke’s input. Ahead of short-listing the Committee had been invited to grade the candidates against the published criteria using the following guide: “1 = definitely worth interviewing; 2 = possibly worth interviewing; 3 = probably not worth interviewing; and 4 = definitely not worth interviewing.” (page 139 of the Main Bundle)[57]When taken to the University’s suggested scoring system within its Recruitment Guidance (page 365 of the Main Bundle), Professor Eisner simply offered that Faculties have their own practices. He also said that he did not know whether the suggested system was intended for use at the short-listing stage or following the candidate interviews. In fact, the guidance at page 365 is that scoring should be undertaken at each stage of the process. We note from the spreadsheet at page 154 of the Main Bundle that Professor Weiss-Sussex did not score the applicants, something that was not explored further at Tribunal.[58]We do not think it will come as any great surprise to the Respondent, or at least to Ms Duane, that we consider the scoring system that was used to shortlist applicants was not fit for purpose even if, as Professor Eisner explained at Tribunal in relation to the scoring exercise undertaken two weeks later following the candidate interviews, the scoring was intended to capture the Committee’s initial individual views to reduce the risk that one or more voices might unduly influence any initial assessment of the relative strengths of the applicants. Whilst we accept that this was a laudable aim, the scoring guide described above detracts from the advertised selection criteria, since it directed the Committee members’ attention away from the criteria, encouraging a focus instead on the rather nebulous question of whether and, if so, to what extent each candidate was “worth interviewing”. In our judgement, the guide potentially supported an idiosyncratic approach in which each member of the Committee was effectively left to define for themselves what attributes made a candidate “worth interviewing”.[59]The Committee’s discussions on 8 June 2023 were inadequately documented. Although we are encouraged to see that the meeting minutes at pages 140 and 141 of the Main Bundle document that the Committee members were reminded of the University’s mandatory training requirements, as well as the advertised essential and desirable criteria for appointment, there is no record of the discussions which led to the field of 39 applicants being narrowed down to a final shortlist of five individuals. As far as we can discern from the minutes, 17 candidates were eliminated on the strength of the initial pre-meeting scores, but the only other information available to us is that, “The remaining candidates were then considered in detail in turn”. We do not lose sight of the fact that the five Professors were not responsible for these minutes, nevertheless if the University is to address the risk of future claims it will want to consider whether those who are responsible for chairing and minuting selection committee meetings and discussions would benefit from clearer guidance and training, including on the issues that can arise when selection committees depart from the University’s recommended approach to scoring.[60]These shortcomings did not, of course, prevent Dr Fulda from being shortlisted. He was the second highest scoring candidate behind Dr Colla.[61]Dr Fulda relies upon Professor Arnold and Professor Bourke’s statements about guarding against, or even pushing back on, the “inherent advantage” enjoyed by or “bias in favour of” internal candidates; alleged comments by Professor Laven to Dr Colla, denied by her, that the Committee had been “overly harsh on internal candidates”; and Professor Bourke’s documented comments to Professor Arnold on 8 June 2023, that, “There is merit in no more than one internal” (page 147) and to Professor Laven on 27 June 2023 that, “CTOs are better off not thinking they are in a queue for the next job” (page 206)[62]Notwithstanding their alleged and documented comments, Professors Arnold, Bourke and Laven initially scored Dr Fulda 2, 1 and 1.5 respectively. In the case of Professors Arnold and Bourke, they gave Dr Fulda the same score they initially gave Dr Böick; in the case of Professor Laven, she scored Dr Fulda more highly than Dr Böick, to whom she gave an initial score of 3.[63]When the six scoring Professors’ scores were aggregated, Dr Fulda and Dr Colla received the highest initial scores, a possibly surprising outcome if there is a long-standing and widely held preference not to appoint CTO Applicants, as well as a desire to avoid “favouritism” towards internal candidates. In this regard, Dr Colla was the only applicant adjudged by all six to be “definitely” worth interviewing.[64]The brief short-listing notes at pages 149 – 152 refer to Dr Fulda’s work as follows: “… started on Press & Politics in Weimar; then work on German Expressionism, and then Emil Nolde. Much depends on how one sees that work.” We shall come back to this.[65]Dr Fulda and the other shortlisted candidates were invited for interview on 21 June 2023. Some weeks later, Dr Haresnape wrote in an email to Ms Spira that she believed Professors Eisner and Laven may not have met in advance to discuss the format for the interviews. Professor Eisner could not specifically recall how, if at all, they had prepared for the interviews.[66]In accordance with what we understand to be a long-established tradition at Cambridge, the candidates were asked to give presentations over the course of the morning to which Faculty members and PhD students were invited. Around 30 people attended. Again, there may have been some oversight by the HR Administrator in terms of what invitations went out. The candidates were asked to outline their past, current and future research, contextualising this within the larger development of the field. A number of the Committee members were in attendance for the presentations and remained in attendance throughout to ensure consistency of feedback. Approximately 10 minutes were allowed for audience questions following each presentation, though in accordance with what we understand to be the established convention, none of the Committee members who were present asked questions. Candidate interviews followed in the afternoon, with each candidate being invited at the start of their interview to provide a precis of their presentation. This was intended as an ice-breaker, but also for the benefit of those members of the Committee who had not attended the presentations. There was some discussion at Tribunal as to the extent to which presentations advantage or disadvantage internal candidates. Professor Clark agrees that in the course of a conversation ahead of Dr Fulda submitting his application, he had warned Dr Fulda that as an internal candidate he might face greater challenges than external candidates. At Tribunal he explained that he was speaking from his own personal experience of going before a committee of one’s peers and referred to the pressure and psychological stress associated with making a case for appointment within one’s existing social environment. He said that it threw up more challenges than for an external candidate. Later in his evidence, he said that he wanted to unsettle Dr Fulda’s confidence to ensure he went into the process with an appreciation of how difficult and unpredictable the process can be, and that there is no ordained outcome. We are in no doubt that this was intended by him and would have been understood by Dr Fulda as a supportive intervention to keep Dr Fulda focused on ‘the prize’.[67]Professor Laven offered a not dissimilar view to Professor Clark. Professor Bourke sees the issue through a different lens, namely the potential advantage that derives from presenting in front of a familiar audience some of whom may be supportive of internal candidates known to them and whose mere presence may lend support. Unless an external candidate has studied at Cambridge or previously been employed within the University or one of the Colleges, they have the added pressure of presenting in an unfamiliar environment to an unknown audience.[68]There is no uniform approach within the University in terms of the extent, if at all, to which the presentations should inform a selection committee’s final decision. We accept Professor Clark’s explanation that the presentations on this occasion were in the nature of a pass / fail exercise, intended to weed out candidates who might have looked good on paper and performed well at interview, but who otherwise lacked the ability to impart their knowledge and ideas to students in a lecture room or similar setting. We do not consider that to be an unreasonable approach.[69]Professor Laven gathered comments from the audience and provided a verbal account of these to the Committee when it met to discuss the candidates following their interviews.[70]In his witness statement, Professor Clark says of Dr Fulda’s presentation that “he gave the performance of his life” and further, that when interviewed, Dr Fulda was articulate, relaxed and confident.[71]The Committee’s deliberations started at around 5:30pm and concluded at 7:40pm. Professor Eisner asked each member of the Committee to score each candidate in advance of their deliberations. Similar criticisms can be levelled in respect of this part of the process to those we have already highlighted in relation to the short-listing. The Committee members were asked to note individual scores “using a scale where 1 was weak and 5 was strong”. Professor Eisner could not tell the Tribunal what a score of 2, 3 or 4 signified. He explained at Tribunal that the intention was to secure from each Committee member an initial overall indication or assessment of the relative merits of the candidates ahead of a detailed discussion. He said that he was seeking to avoid bias, in the sense of addressing the risk that the first person to speak might influence others’ views. Instead, he wished to secure any early indication of a consistency of views and, in so far as there was a divergence of views to enable this to be explored further. In our view this was a reasonable, even sensible, approach, albeit as we say the scoring system itself was inadequately defined.[72]The University’s recruitment guidance already referred to (page 358 onwards) includes an HR11 Selection Results Grid, HR6 Selection Criteria template and an HR10 Assessment Records template, as well as clear guidance that any scoring system should be agreed beforehand, in advance of the selection process, and applied consistently. The suggested scoring system is as follows: “0 – does not meet the requirements / no evidence provided; 1 – meets the requirements in some respects; 2 – meets the requirements in most respects; 3 – meets the requirements effectively; and 4 – exceeds the requirements.” (page 365)[73]There was some suggestion at Tribunal that scoring systems are reductive. We disagree. The University itself recognises their value. As its own suggested scoring system indicates, the scores are effectively shorthand; where the selection and assessment templates are used, this enables both the relevant scores and any narrative underpinning the scores to be documented. Above all, a balanced scorecard approach, based on clearly defined selection criteria and a clear and consistent approach to scoring directs the minds of a diverse committee to the candidates’ relevant attributes and provides a structured framework within which there is the best chance of a consistent, objective approach which prevents idiosyncratic decision making.[74]We shall come to back to the Committee’s individual comments on the candidates in a moment, but note that the contemporaneous record of the discussions which led the Committee to eliminate the fourth and fifth placed candidates and thereafter Dr Fulda, before going on to discuss whether Dr Böick or Dr Colla should be appointed to the Post, was as follows, “ME - lots of positive voices on CANDIDATE 1. Is he front runner and who’s the second? [Name] is dropped at this point. Mixed comments in presentation feedback. Only one year later since PhD in CANDIDATE 2 and he has a stronger record. Bernhard – he’s on his 3rd or 4th monograph but is he a major historian - RB Last two candidates – [ redacted ]” (pages 191 and 192) Whilst we acknowledge the argument in Professor Bourke’s observation at Tribunal that the nuance of written prose should be preferred over the crudity of a mathematical number, the documented record lacks almost any hint of nuance.[75]Dr Fulda criticises the Committee’s approach in relation to references which he says were not given adequate weighting in the process. We certainly agree that he had “stellar” references from eminent Historians, in the case of Professor Clark and Professor Niall Ferguson, individuals whose work is internationally recognised. Professor Clark agreed with Mr Young that the other referees were “luminaries”. Whilst there is no mention of the references in the documented discussion of the candidates, that is less an indication that the references were not given adequate weighting in the process, than a reflection of an inadequately minuted discussion. Professor Clark confirms that he had “certainly” read the references and at Tribunal said that the references had been discussed even if this is not minuted. Professor Laven recounted that Professor Eisner had intervened following the candidate interviews to check that the Committee had read the references given that they had come in late. She said that they had all confirmed that they had. Professor Bourke said they were “definitely a factor with me”.[76]The strength of a candidate’s references were not a criteria for appointment, rather as Professor Laven described to the Tribunal, like the presentations they formed part of the overall body of evidence in support of candidate applications and the answers provided by them at interview. Given their detail, they serve as potentially weighty corroborative material even if Professor Bourke not unfairly describes references as “explicitly partial”.[77]In paragraphs 119(a) – (f) of his written closing submissions, Mr Young identifies a number of points which, combined with the subjective nature of the exercise and the procedural flaws detailed in paragraph 122 of the submissions, lead Dr Fulda to conclude that the CTO PCP was the reason for his non-selection. There is a particular focus upon Professor Clerk and Professor Laven’s evidence. Professor Clark[78]Mr Young highlights Professor Clark’s evidence and says that it is “highly telling” that as the Committee member with the most experience of the subject area, and the best knowledge of Dr Fulda’s research, Professor Clark did not in his oral evidence identify any significant way in which Dr Fulda was a weaker candidate than Dr Böick or Dr Colla. The fact that Professor Clark initially gave all three the same top score evidences to us that he considered them to be the standout candidates. He said they were each performing at a high level allowing for the different stages they had reached in their respective careers. In which case, it was less a case of Dr Fulda being a weaker candidate or as Professor Clark said about “deficits”, rather “how you appraise their strengths”. Mr Young submits that Professor Clark does not appear to have been the source of a sense that Dr Böick was a better candidate than Dr Fulda, and questions where the relative negative assessment of him came from, before concluding that the obvious answer is the CTO PCP. However, Mr Young did not specifically ask Professor Clark what had ultimately separated the candidates in his mind, or in the Committee’s discussions. With the exception of Professor Bourke, whose reflections on Dr Fulda’s standing as a major historian were the sole documented aspect of the Committee’s final deliberations in respect of his candidacy, and whose views were amplified at Tribunal, the other members of the Committee expressed a common view that there was not clear blue water between the candidates. Professor Clark said that fine distinctions were being made and that Dr Fulda was eminently appointable. Nevertheless, his documented comments on the day suggested slightly clearer blue water than his candidate scores might have indicated. His documented feedback in relation to Dr Fulda was, “Fantastic performance today, self-possessed, full of energy, could evolve in unexpected ways, weak on pedagogy, claustrophobic” (page 191) His documented feedback in relation to Dr Böick was, “Something slightly buzz wordy about new projects. Real delight, a real class act, his book had a huge impact, very powerful and interesting contender.” (page 191)[79]If Professor Clark perceived Dr Böick to be “slightly buzz wordy”, in our view his comments do not weigh in the balance quite as much as his observation that Dr Fulda was weak on pedagogy. Be that as it may, it does not alter the fact that Dr Fulda was, and was perceived by Professor Clark, to be eminently appointable, consistent with his description of the discussions on 21 June 2023 as having been “passionate, engaged and respectful”.[80]As to whether Professor Clark identified any significant matter that differentiated or separated Dr Böick from Dr Fulda, Professor Clark’s evidence was that Dr Böick’s expertise crossed over into economic history in a very unique way, which for him had added particular value in terms of what he could bring. As Professor Laven says in her witness statement, “[Dr Böick’s] research appealed to economic and cultural historians alike and was very inspiring”. Professor Clark went on to say that he was influenced by Dr Fulda’s research trajectory. In the course of the Committee’s deliberations he had framed Dr Fulda’s work in relation to Emil Nolde in its broader context, describing the work at Tribunal as “emblematic” and “actually a big deal”. His framing of Dr Fulda’s work undoubtedly addressed the observation in the short-listing notes about much depending “on how one sees that work”, as well as Professor Arnold’s initial observation following the candidate interviews, “appointable but so what to the most recent research” (page 191). We do not consider this to have been a pejorative comment on Dr Fulda’s work and as such we do not agree with Mr Young when he says that Professor Arnold’s comments were dismissive. Instead, we find that Professor Arnold was posing a question to which he did not know the answer, as the subject matter sat outside his own area of expertise. The question was not a new one, as it had evidently arisen at the short-listing stage. As with Professor Laven and Professor Bourke, Professor Arnold was looking to the subject experts, principally Professors Clark and Donert, to provide a view. Whilst, as we say, Professor Clark provided this essential context and in so doing bolstered Dr Fulda’s candidacy, Professor Clark was less persuaded by Dr Fulda’s broader research trajectory. At the time of Dr Fulda's application he was finalising a biography of Nolde, which represented a narrowing of the trajectory. Although he confirmed that his next research project would be a European History of Anti-communism, 1917 – 1991, which would be a project that spanned the greater part of the Twentieth-Century, and said that in due course he would like to offer a Part ii special subject on the topic, (which would thereby meet one of the three identified additional contributions that the Committee had said the successful candidate would need to contribute to) as Professor Clark noted at Tribunal, Dr Fulda was at the very beginning of this project. Professor Cark described it as a “sketch of an idea” rather than something Dr Fulda had embarked upon, and he contrasted this with Dr Böick who was further progressed with his own next project. Whilst Professor Clark did not doubt Dr Fulda’s ability to deliver, he said that the planned project “did not have as much specific gravity” and that it was “not a weighty part of how he delivered himself to the Committee in contrast to Dr Böick”. This was also Professor Bourke’s evidence, who described the project as potentially very exciting, “broad, sweeping and thematic”, but with the caveat that it was “a massive promissory note against a narrowing [i.e. the Nolde biography] which hasn’t altered our view of the period”. He went on to pose the question whether Dr Fulda was someone who was overturning received wisdom, and that the answer to that question is where he said one can separate the candidates in a competitive international field. He went on to explain why he considered that Dr Böick’s research was “transforming a field”. His evidence resonated with us.[81]In the course of his evidence, Professor Clark spoke of being vigilant to and keeping a weather eye out for any potential signs of bias against CTO Applicants, in the context of what her referred to as Cambridge folklore. He said he has not encountered any preference not to appoint CTO Applicants to UTO positions at any level. As we understood his evidence, this extends to not having picked up any such preference in his numerous interactions outside of the selection committees he has sat on.[82]Mr Young asserts that Professor Clark strikingly refused to say in cross examination that he would have placed Dr Fulda behind either Dr Böick or Dr Colla in a straight head-to-head vote. As we noted the exchange, Professor Clark was asked if Dr Fulda would have been selected over Dr Böick if Dr Colla had been eliminated rather than Dr Fulda. We agree with Professor Clark that it is a difficult, indeed we think impossible, question to answer as it would require Professor Clark to conjure up a discussion between eight professors that had never taken place. The fact is that Dr Fulda was eliminated from the process, leaving the Committee to weigh up which of Dr Böick and Dr Colla should be appointed. We think Professor Clark expressed the matter perfectly when he referred to the Committee’s decision resulting from views merging into a stream; in our judgement that does not lend itself to the sort of hypothesis that Mr Young was inviting.[83]We can deal very briefly with Dr Fulda’s suggestion that because he was proposed by Professor Clark for an Honorary Professorship this should stand as further evidence to suggest discriminatory practices by the Committee in not appointing him. Putting aside that the proposal was not endorsed by the relevant conferring body, an Honorary Professorship is a marker of a person’s esteem in their given field of activity. The reference which Professor Clark provided in relation to Dr Fulda (pages 158 to 161) is testament to that esteem; it concluded, “I commend Bernhard Fulda to you in the strongest possible terms”. It does not tell us more about the relative merits of Dr Fulda, Dr Böick and Dr Colla’s applications for the Post. Professor Laven[84]Mr Young questions Professor Laven’s scoring and evaluation of Dr Fulda, and he highlights her reference to the “needs of the faculty” (page 199) as evidencing one of the underlying rationales for the PCP. We have already touched upon her scoring at the short-listing stage. We accept Professor Laven’s explanation that in noting a History of Art “skew” (page 14 of the Supplementary Bundle) this was not a critical observation on her part but instead reflected her interest in the way dr Fulda’s research had developed. She confirmed that she works with visual history, so that it is not something she would hold against a colleague. That seems to be borne out in so far as she gave Dr Fulda an initial score of 1.5.[85]Mr Young notes that at the short-listing stage Professor Laven gave Dr Böick the equal lowest score of any candidate, and that she scored him lower than some candidates who had not completed their PhDs. Following the candidate interviews, Professor Laven gave Dr Böick the highest possible score of 5, a score she also gave to the fourth candidate. She gave Dr Fulda and Dr Colla a score of 4 each. We accept Professor Laven’s explanation that she had been won over by Dr Böick’s interview and ultimately changed her mind regarding his application in the course of the Committee’s discussions. In this regard she described Professor Clark as the “loudest voice in the room” and that he had encouraged the Committee to “think big and internationally”. Professor Clark evidently influenced others’ views too. When questioned about how much of Dr Fulda’s work he had been able to read, Professor Bourke explained that the volume of materials provided by the candidates meant that it was only possible to read samples of their work. He said that whilst he was reasonably familiar with Dr Fulda’s work, he deferred to Professor’s Clark’s greater knowledge. Although Mr Young questions Professor Clark’s influence, whether or not this was his intention, we are satisfied, that he materially influenced the Committee’s discussions and views, both by contextualising Dr Fulda’s work, but equally in so far as he considered Dr Böick’s expertise to cross over from political into economic history “in a very unique way” and voiced the view that Dr Böick had demonstrated that he was “… a real class act, … very powerful and interesting contender”. We are satisfied this is the case even though, when it went to an informal vote, Professor Clark ultimately expressed a preference to appoint Dr Colla.[86]As regards Professor Laven’s reference to the “needs” of the Faculty, this comment was included in a relatively short email she sent Dr Fulda on 25 June 2023 in the immediate aftermath of him learning that he had been unsuccessful in his application. She endorsed what Professor Bourke said when questioned at Tribunal regarding his own feedback, namely that she was not providing a detailed dissection of the process. Her feedback was not in the context of a grievance, let alone contemplated legal proceedings and as such she was not seeking to provide a detailed, formal, legally robust account of herself or the process. She said at Tribunal that she would never offer comparative feedback as she feels that would not be kind or helpful, and indeed that it might breach confidentiality in relation to other candidates. We accept that she intended her email to be “kind and reassuring”. She said at the time, “It’s hard, therefore, to give meaningful feedback except to say that the shortlist was very strong, and in the end, our decision came down to minute considerations regarding the needs of the faculty and the candidates’ research trajectories”. (page 199) Pressed further on what she had written, she said that she did not have in mind any deficiencies, that the Committee had “riches to choose from”, and that it had ultimately been very excited by Dr Böick’s work and by his ability to make an immediate contribution to the new Triposes.[87]It is suggested that Professor Laven did not give Dr Fulda sufficient or any credit for his answer to the Committee’s question about administration, but that is not obviously indicated by the very limited notes at the foot of page 30 of the Supplementary Bundle. Professor Laven said that she would need to refresh her memory as to how the candidates had addressed this issue in order to comment further, but the issue was not taken any further by Mr Young.[88]Mr Young’s other submissions as to why the CTO PCP was the reason for Dr Fulda’s non-selection, concern comments we have already touched upon which he submits indicate at least a scepticism towards ‘internal’ candidates. Given our observations at paragraph 58 above, we have scrutinised the Committee’s approach more generally for evidence of some preference not to recruit CTO Applicants to UTO positions. In summary: Professor Donert Professor Donert has not given evidence in these proceedings, albeit Dr Fulda has not advanced a positive case in relation to her. She gave four candidates, including Dr Colla a score of 1 at the initial short-listing stage. That does not therefore indicate scepticism towards internal candidates. Following the candidate interviews on 21 June 2023 her most positive feedback seems to have been directed at Dr Böick, certainly as captured in the notes at page 191; she described herself as “also a big fan”, evidencing some groundswell of support for his candidacy, and said he would be a “great colleague and teacher”. Ultimately, as with Professor Clark, her preferred candidate was Dr Colla. Professor Weiss-Sussex Professor Donert has also not given evidence in these proceedings. As we have noted already, she was seemingly not involved in the short-listing. She was generous when scoring the candidates immediately following their interviews, giving Dr Fulda, Dr Colla and the fifth candidate a score of 5, and Dr Böick a slightly lower score of 4.5. In which case, her scoring does not indicate scepticism towards internal candidates. In so far as her feedback is captured at page 191 of the Main Bundle, it is consistent with the scores she gave the candidates. Professor Austin It is perhaps unfortunate that we did not hear from Professor Austin given that he said in the course of the Selection Committee’s deliberations that if this was an Ivy League university it was unlikely the role would go to an ‘internal’ candidate. It is not in dispute that he said this. Professor Bourke addresses it in his witness statement, and he referred to the discussion when giving feedback by email to Professor Laven on 27 June 2023 (page 206 of the Main Bundle). He told her that he had been persuaded by the argument in relation to Dr Colla, the discussion having only arisen when the Committee were debating which of Dr Böick and Dr Colla should be appointed, and accordingly that it didn’t arise in the case of Dr Fulda. This would likely explain comments by Professor Clark on 26 June 2023 when he gave feedback to Dr Fulda, during which he suggested two members of the Committee had made comments about preferring external candidates or at least the “bad optics” of an internal appointment. Professor Laven’s evidence is that she understood Professor Austin’s intervention was intended to discourage the Committee from automatically favouring an internal candidate and to check their implicit bias. As we have noted already, according to Dr Maghenzani, in 2018 Professor Austin had held out firmly in favour of appointing Dr Griffin, who was a CTO, to a UTO position. Professor Bourke Without being in any way discourteous or disrespectful to Dr Fulda, Professor Bourke did not sugar-coat his views at Tribunal. It seems to us that his was a consistent voice in the process that Dr Fulda’s work needed to be evaluated in context. Even so, that did not prevent him from giving a score of 1 to Dr Fulda, Dr Böick and Dr Colla at the initial short-listing stage. It evidences to us that he retained an open mind as to the impact of Dr Fulda’s research. Professor Bourke’s scores do not indicate scepticism towards internal candidates, even if he said to Professor Arnold that there was merit in no more than one internal candidate. That comment must be understood in the further context that on his initial scoring three internal candidates would have been short-listed, a number he readily acknowledged to Professor Arnold would be viewed as too many if just five candidates were going forward from an international field. That said, as we have just noted, when the decision came down to a choice between Dr Böick and Dr Colla, Professor Bourke was seemingly swayed by Professor Austin’s comments. When the Committee was deliberating on 21 June 2023, Professor Bourke acknowledged Dr Fulda’s “good performance”, but when it came to whittling down the candidates, the notes document that Professor Bourke posed the question of whether Dr Fulda was a major historian. We accept that he felt that Dr Fulda’s area of specialism was on the narrower side, whilst Dr Böick’s ranged comfortably across the Twentieth-Century. His recollection of the Committee’s deliberations is that Dr Fulda’s published work was the main topic of conversation, and that less time or attention were given to the ‘desirable’ criteria. Even then, as Professor Clark did, he said that any evaluation of the candidates’ track record of securing research funding and of interdisciplinary and collaborative research, had to reflect where the candidate was in their career. As regards the impact of Dr Fulda’s work, Professor Bourke told the Tribunal that he had checked but found almost no academic reviews of the work and limited academic citation. He regards both, though more so reviews, as a reliable indication of international impact. Whilst he described Professor Clark as having been generous and positive about all the candidates, he was still able to describe Dr Fulda’s work as important, interesting and engaging, though he firmly rejected Mr Young’s description of it as “monumental” (which, in isolation, he felt did not accurately reflect Professor Clark’s description of Dr Fulda’s work in the Faculty’s REF submission). Professor Bourke was particularly respectful of Dr Fulda and his work. If anything he said was therefore unwelcome or difficult for Dr Fulda to hear, we are in no doubt that he was expressing his considered academic judgement in the matter. Finally, as regards Professor Bourke’s email feedback to Professor Laven (page 206 of the Main Bundle), he said at Tribunal that one endeavours to be positive rather than brutal in comparison. The email is consistent with the admittedly limited contemporaneous records, and with Professor Bourke’s written and oral evidence, and confirms that what separated Dr Fulda from Dr Böick and Dr Colla was his research, which Professor Bourke described as “strong, but niche”, in contrast to Dr Böick’s work on the economics of German reunification which he described as “a very strong subject”. Professor Bourke’s email also corroborates Professor Laven’s feedback to Dr Fulda two days earlier when she had referred to the candidates’ research trajectories. Professor Arnold We have noted already Professor Arnold’s initial scores at the short-listing stage which do not indicate scepticism towards internal candidates. We do not consider that any scepticism is in fact indicated by what Professor Arnold says at paragraph 13 of his witness statement, in which he addresses comments by Dr Fulda in an email exchange they had in the weeks following the conclusion of the recruitment exercise, which he had felt implied that Dr Fulda considered himself to be in a privileged position, something Professor Arnold describes as “problematic”. We do not consider Professor Arnold’s further observation that CTOs have an inherent advantage by reason of having a deeper understanding of the collegiate model and insight as to the University’s operation to be controversial, not least in response to Dr Fulda’s assertion that CTOs faced “a system of systemic institutional discrimination”. In our judgement, it was reasonable for him to take the view that internal candidates are potentially at an advantage in so far as they are familiar with an organisation’s structure and operation. It does not evidence to us an antiCTO bias.
Conclusions
[89]We accept that in combination the three propositions advanced by Mr Young potentially provide a coherent explanation for the CTO PCP contended for. Of course, the fact that a coherent explanation has been advanced for why there might exist a preference not to appoint CTO Applicants to Grade 9 UTO positions does not of itself mean there is such a preference or that it was applied to Dr Fulda.[90]We obviously have regard to Professor Clark’s description of Professor Tooze’s exposition as “an insightful discussion of a development over time which carries weight”. Nonetheless, however eloquently Professor Tooze may have advanced the theory on Dr Fulda’s behalf, in our judgement the explanations are less compelling than Mr Young’s thoughtful analysis suggests.[91]As to whether a CTO PCP may have arisen as a result of economic incentives, it could be said that the University’s witnesses painted a picture of academics shut away in splendid isolation in their proverbial ivory towers. Given the chill economic winds that have blown through academia over the last decade or more, we do not suppose that Cambridge scholars are quite so removed from the financial pressures and realities which presently confront the higher education sector, even if the University’s reputed wealth might insulate them to some degree from the harsher realities faced elsewhere. Nevertheless, we take on board that academic staff at Cambridge are not budget holders and, as such, that they are at some remove from the sort of cost/benefit analysis implicit in the first of the three explanations advanced by Mr Young. Furthermore, his submission implies that academics within the Faculty, who make up a majority of the members of its selection committees, are content at some level for their CTO colleagues to be financially exploited by being kept in positions in which they “provide extensive teaching services for the Faculty for very low pay (and sometimes for none)” (paragraph 59(a)(i) of Mr Young’s written submissions), and out of UTOs positions for which they are not just eminently qualified but also the strongest candidate. Instead, we find ourselves drawn back to what Professor Bourke said at Tribunal: “It’s about getting an outstanding colleague”.[92]The economic incentives are said to relate to the Faculty’s head-count, teaching needs and research. Even if it can be said that the University / Faculty ‘already have’ a CTO Applicant’s services (assuming the CTO does not leave in response to their failure to secure a UTO appointment), they ‘have’ a relatively limited amount of their services, since their College remains their primary employer. The point was made by Professor Laven, amongst others. Where a CTO Applicant is appointed to a UTO position, the University / Faculty thereby secures the greater part of their available time, which will include an increased contribution to teaching and supervision, particularly at post graduate level, as well as taking a greater share of the burden of the Faculty’s administration. Moreover if, as Professor Clark said and we accept, there is a general expectation that departing CTOs will be replaced, and that CTO positions are sought-after and attract an international field of candidates, then in so far as the members of a selection committee might turn their minds to the financial implications of appointing a CTO Applicant we conclude that they are most likely to assume a resumption of the status quo in due course, namely the availability of a new CTO whose services they would then ‘have’. Similar observations might be made in relation to the structural implications of any appointment i.e. a newly appointed CTO will likely become available with particular subject specialisms and a portfolio of research.[93]We have already noted that Professor Laven accepted the logic to the argument that the availability of public research funding, often linked to the Faculty’s research rankings, might provide an explanation for the CTO PCP, even if she did not accept that it had featured in the Committee’s deliberations or her own thinking. We have accepted her further evidence that it has never arisen in any of the ten or so selection committees she has served on.[94]We have not identified any refence to the Faculty’s rankings in the documented record of the interviews or the Committee’s deliberations, including whether its rankings might be strengthened by and increased funding might result from the appointment of any particular candidate. In which case, the question arises whether and, if so, to what extent, this aspect is likely to have weighed in the minds of the Committee and the various selection committees who were tasked with appointing upwards of sixty UTOs during the period 1997 to 2023. The REF is the UK’s system for assessing the quality of research within higher education institutions. We were not told what system preceded the REF. We understand that the results of the first REF exercise were published in 2014 and thereafter in 2022 (having been delayed as a result of the pandemic). The results of the next planned exercise are expected to be published in 2029. At the time of the 2023 recruitment exercise with which we are immediately concerned, approximately two years had elapsed since the Faculty’s REF submission, with its next submission not due for another five years or more. There is no evidence that we have been directed to, which suggests that the Committee, particularly Professor Arnold as the Faculty lead for its REF submission, had the 2029 REF, or the Faculty’s submissions, in mind when discussing who should be appointed to the Post, even if a track record of securing research funding was stated to be a desirable criterion for appointment. The only evidence of other selection committees, or individual committee members being influenced by such considerations is Professor Hatcher’s alleged comments in 2008 or 2009 that it would never be in the interests of the Faculty to appoint CTOs to UTO positions because of the implications for research funding that would follow. We shall come back to this.[95]We shall also come back to the question of whether there is a desire to avoid “favouritism” towards internal candidates, though simply note at this point Mr Young’s acknowledgement that it is “unclear” how much of a factor this has been historically in hampering CTOs from being appointed to UTO roles. In our judgement there is no evidence of any historic practice or preference in that regard.[96]In summary, regardless of their coherence and Professor Clark’s effective acknowledgement of their potential weight, we certainly do not feel compelled by the weight of the explanations to conclude or even infer that the University has applied the CTO PCP over the last two decades or so. Instead, we have focused upon the availability or otherwise of relevant statistical evidence and the related questions of whether Dr Fulda’s witnesses provide evidence corroborative of the existence of the CTO PCP, and whether the PCP was applied in Dr Fulda’s case.[97]It may be apparent from our observations at paragraphs 21 to 26 above that we do not consider there to be statistical evidence to support Dr Fulda’s assertion that the number of CTO Applicants appointed to UTO positions over the last 26 years, alternatively over the last 19 years, has been strikingly small, or indeed even small. In our judgement, the assertion, which finds voice in one form or another amongst each of Dr Fulda’s witnesses, could be said to reflect a collective intuitive view, rather than one informed by weighty statistical analysis. We cannot rule out the potential for some element of affirmation bias, as a result of what Professor Clark referred to as the “folklore” of the Faculty and Dr Maghenzani said was a “widespread perception”.[98]We are further reinforced in our reservations in this regard by the relatively limited and, in our judgement ultimately inconclusive “corroborative” evidence of Dr Fulda and his witnesses. Our particular difficulty is that we are not in a position to evaluate the respective merits of the candidates in other recruitment exercises, whatever Dr Fulda and others may say as to the merits of particular applicants. Mr Mandelbrote and Professor Tooze in fact offer no directly corroborative evidence. Dr Pratt details his experiences of not being shortlisted for interview in 2006 and 2017. We shall come back in a moment to the 2017 exercise. However, we are unable to attach any particular weight to his evidence in respect of the 2006 recruitment exercise. Putting aside how long ago it was and the inevitable difficulties this throws up in terms of the University’s ability to address his evidence, Dr Pratt acknowledges both that he received a nondiscriminatory explanation from the Faculty at the time as to why he had not been shortlisted, and that King Alfred, who was the subject of his PhD had not often been considered within the broader history of political thought, even if he had sought to argue otherwise in his PhD with some degree of success.[99]We note that it is only Mr Mandelbrote and Dr Maghenzani who purport to offer first-hand evidence of the existence of a CTO PCP by reason of comments within the Faculty to the effect that it “already has” the services of CTO Applicants. Notwithstanding his many years at Cambridge, and at least 18-year affiliation to the Faculty, Dr Fulda does not report having heard the expression, though he does provide an account of Professor Paul Warde’s unsuccessful application for a University Lectureship in Early Modern European History in 2004. He says that Professor Warde left the University as a result, returning to Cambridge in 2014. Dr Fulda alleges that Professor Warde told him more recently that there is a tendency in the Faculty to “look for novelty, and to consider CTOs ‘in the bag’”. In which case Professor Warde seems to us to have been offering his own perspective rather than reflecting back any preference that had been communicated to him or otherwise given voice to as a Faculty provision or practice.[100]The specific comments that the Faculty ‘already have’ the services of CTO Applicants are attributed to Professors Hatcher, Arnold, Mandler and Klein. For the avoidance of doubt, we do not consider Professor Laven’s alleged comments, referred to in paragraph 14 of Dr Maghenzani’s witness statement to fall within this category; in the absence of any further detail or context, we do not attribute any significance to that apparent conversation, whenever it may have taken place. Aside from Professor Arnold, none of the Respondent’s witnesses were asked whether they had used the term or heard it used by others. Between them, they have been associated with the Faculty a considerable number of years and have experience of selection committees. We have reflected on why Dr Maghenzani in particular might report having heard the expression used at least three times, when others have not, particularly given it is such a specific turn of phrase. We question whether, in endeavouring to recollect conversations from some years ago, including one conversation in the early hours over drinks, Dr Maghenzani has misremembered and/or paraphrased. In so far as he attributes the term to Professor Arnold, his evidence lacks any meaningful detail or context. As we have noted already, Professor Arnold was not challenged during cross-examination on the non-discriminatory explanation he has provided as to why the two CTO Applicants, one of whom was Dr Pratt, were not shortlisted on that occasion. Nor was it put to him, as Dr Fulda implies, that the successful candidate was not appointed on merit but because she and Professor Arnold were former colleagues at Birbeck University. In any event, even had that reason been advanced and established it would not readily support the separate conclusion that the CTO Applicants had been ruled out at an earlier stage due to their status.[101]Mr Mandelbrote alleges that in 2008 or 2009, during a discussion regarding CTO dissatisfaction, Professor Hatcher, then Faculty Chair stated that it would never be in the interest of the Faculty to appoint CTOs to UTO positions because of the implications for research funding that might follow. In so far as he elaborates as to what those implications are or why they might arise, it is less that research funding would be affected, rather that the Faculty would be taking on the cost of employing the CTO in circumstances where it already had the benefit of any public research funding. Professor Hatcher’s allegedly emphatic statement on the matter, which would seemingly evidence a conscious bias against CTO Applicants, indeed a determination never to appoint them, is difficult to square with Dr Griffin’s subsequent appointment as a UTO or with the fact that over the years CTO Applicants have routinely been shortlisted for interview. It has been no part of Dr Fulda’s case that the latter reflects some cynical manoeuvring on the part of the Faculty, namely that it has sought to mollify CTOs by short-listing them but with no intention of appointing them. In our judgement, at most, Professor Hatcher might have been expressing his personal views in the matter rather than some broader established Faculty view. However, it is difficult for us to reach any conclusive view as to what position he may have been expressing without hearing from him, even assuming he would recall comments he made approximately 17 years ago and what he might have meant if he expressed the view that there could be implications for research funding, since these are not obvious.[102]That leaves the question of whether there is evidence of the CTO PCP having been applied in Dr Fulda’s case and, if so, what we might infer from this more generally.[103]In examining how the 2023 recruitment exercise was conducted, we have held in mind that there is a potentially fine line between scrutinising a recruitment process for evidence of discriminatory biases and indirectly discriminatory practices etc. and stepping into the shoes of the relevant decision makers, not least where, as here, the Committee was exercising its academic judgement as to which of a number of potentially appointable candidates, from different academic backgrounds, at different stages in their academic careers and with varied research interests and publications to their names, should be appointed to a specialist subject area so as to compliment the Faculty’s existing available cohort of academic staff. Ms Duane makes a valid point when she says that a proportion of Dr Fulda’s claim seems to be advanced on an attempt to conduct a re-interview or comparison analysis of the process within these proceedings: furthermore, that this granular comparative exercise does not appear to reflect how the case is advanced in the original pleadings or in Dr Fulda’s three witness statements.[104]We have referred already to Professor Tooze having been “scandalized” in 2019 by Dr Fulda’s failure to be shortlisted for interview and more recently withdrawing his agreement to give the Ellen MacArther Lectures in 2024 / 25 in protest at how he perceived Dr Fulda’s 2023 application to have been handled. The fact remains, however, that Professor Tooze was not a member of the Committee and accordingly was not privy to what applications were received by the Faculty, including the materials submitted in support of them, nor was he present for the short-listing discussions, when the shortlisted candidates made their presentations and were then interviewed, or when the Committee met to discuss who should be appointed. Professor Tooze evidently holds Dr Fulda in the highest regard, but he is not an expert witness offering his professional opinion as to which of a number of candidates was most qualified for the position being appointed to. The same is true of the other witnesses who gave evidence on Dr Fulda’s behalf. Mr Young has not gone as far as to submit that the Committee’s decision was perverse, yet Professor Tooze effectively makes that assertion, stating in conclusion that if Dr Fulda was not ranked number one for the Post, the only reasonable inference in the circumstances he describes is that factors other than his personal merits or suitability for the job must have been in play. We avoid the temptation to enter what is often referred to in unfair dismissal cases as the ‘substitution mindset’, including when it comes to fine judgements as to how the candidates were to be evaluated in terms of their track record of securing research funding and whether they evidenced a collaborative and interdisciplinary approach, given the different stages they were at in their respective careers. Likewise, we are alive to the circumstances in which it may be appropriate to infer a discriminatory mindset or practice (or preference) from unreasonable conduct. In this regard, the fact that candidate presentations may have been graded in the past or that other faculties still take this approach does not lead us to conclude that this Committee was acting outside the ‘band of reasonable responses’ in adopting the approach that it did in relation to candidate interviews, let alone that it points towards the application of a discriminatory PCP.[105]We acknowledge Mr Young’s points at paragraph 124 of his written submissions. Whilst we do not lose sight of the fact that it was first and foremost Professor Eisner’s responsibility to guide the Committee and ensure it remained on track, and that coming as he did from outside the Faculty there is no obvious reason to suppose he might have been influenced by any Faculty preference not to appoint CTO Applicants, nevertheless in failing to ensure there was a pre-agreed, rational scoring system, Professor Eisner potentially opened the door to what we have referred to as idiosyncratic decision making. We are not with Ms Duane therefore when she describes Dr Fulda’s contentions in relation to scoring as “illogical and flawed”. However, we think it worth noting that two internal candidates, Dr Colla and Dr Fulda received the highest scores when applicants were initially scored ahead of short-listing, and that they remained in second and third place when scored again following the candidate interviews. In any event and more significantly, we are more than satisfied by the explanations put forward by Professors Clark, Laven, Bourke and Arnold as to the reasons why they and their three colleagues eliminated Dr Fulda from consideration for the Post, which is corroborated to some extent by Professor Donert and Professor Weiss-Sussex’ documented comments and scoring. The four Professors’ evidence is coherent, consistent and weighty, and certainly in the case of Professor Bourke corroborated by the limited contemporaneous record of his ongoing reflections on Dr Fulda’s standing as a major historian. We are not disturbed from this conclusion by any identified procedural unfairness, which does not lead us to infer the existence and application of the CTO PCP.[106]We do not attach any particular significance to Professor Laven’s reference on 25 June 2023 to the “needs” of the Faculty and certainly do not infer from it that there was a view amongst the Committee that the Faculty did not need Dr Fulda because it already had his services. Her reference to the candidates’ research trajectories is of greater significance and is corroborated by the others’ evidence, not least Professor Clark and Professor Bourke.[107]Dr Fulda accepts that Professor Clark was not influenced by the CTO PCP. We have referred to Professor Clark’s stated vigilance in that regard. He had sought to be excused from the Committee given his knowledge of both Dr Fulda and Dr Colla; the fact that he gave them and Dr Böick the highest scores at the pre-shortlisting stage and again immediately following the candidate interviews, and that it is documented that he expressed a preference not to be the one to decide as between Dr Böick and Dr Colla, potentially points to his ongoing discomfiture at being involved. Nevertheless, he was part of a consensus view that Dr Fulda should be eliminated from the process notwithstanding he had contextualised Dr Fulda’s work to enable its impact to be appreciated and considered, and had provided a comprehensive personal reference which was highly supportive of Dr Fulda’s application. His views of the candidates undoubtedly influenced the others, which is unsurprising given his international reputation, subject expertise and standing within the Faculty. It reinforces our clear sense of the Committee having engaged in a lively debate as to the candidates’ academic credentials and trajectories, rather than having been distracted, consciously or otherwise by the potential financial or structural implications of any given decision over another.[108]We said that we would come back to the issue of the potential desire to avoid favouritism to internal candidates. To the extent such a desire influenced the Committee’s deliberations, it seems to us that it might support the existence of a PCP of preferring not to appoint internal candidates to any position at the University, regardless of whether the candidate is a CTO. Professor Bourke’s comments to Professor Arnold ahead of the short-listing might have supported a claimed PCP of limiting the number of internal candidates on any interview shortlist, but they do not support a specific anti-CTO bias or preference. As regards Professor Austin’s intervention at the final stage of the discussions, although he floated the alleged practice at leading American universities, it is less clear that he was advocating their approach. In any event, we accept that it did not find favour, except perhaps with Professor Bourke who, according to his email of 27 June 2023 was persuaded to “try outside the domestic pool” when reaching a decision as to whether Dr Böick or Dr Colla should be appointed. But even then, he went on to say that the decision to appoint Dr Böick was due to “especially positive assessments of his work and anticipated teaching”. Professors Clark, Laven and Arnold all described a discussion around guarding against implicit bias. If Professors Austin and Bourke continued to weigh the potential ‘optics’ of appointing from within in such a way that one or both of them voted for Dr Böick at least in part because he was an external candidate, in our judgement this does not support the conclusion that the Faculty operates a CTO PCP or that such a PCP was applied in this recruitment exercise, specifically to Dr Fulda. As we have noted already in relation to Professor Austin, according to Dr Maghenzani he held out firmly in favour of Dr Griffin over an external candidate in 2018. And, as we have already set out at some length, Professor Bourke has been clear and consistent as to the reasons why he did not ultimately support Dr Fulda’s candidacy.[109]For all these reasons, we do not consider that at the material times the University applied a PCP of preferring not, in its History Faculty, to recruit candidates who are College Teaching Officers to permanent Grade 9 University Teaching Officer positions, or that such a PCP was applied to Dr Fulda. Even had we inferred from the discussions at the final stage that Professor Austin and Professor Bourke may have harboured even a subconscious preference not to appoint CTO Applicants, we would have said in any event that Dr Fulda was not disadvantaged by this in so far as he was eliminated from the process because he did not have the support of the other five voting members of the Committee who did not have or apply any such preference.[110]In the circumstances we do not uphold Dr Fuladha’s claim that the University indirectly discriminated against him. His claim shall therefore be dismissed. Approved by: