Ms J Linde v London Borough of Hackney: 3320751/2021
EMPLOYMENT TRIBUNALS
Case No 3320751/2021
Between
Ms J LindeClaimantLondon Borough of HackneyRespondent
Before
Employment Judge Quill; Ms M Harris; Mr L HoeyIn person for claimantMr M Salter (instructed by counsel) for respondentDate 26 October 2023
JUDGMENT
[1]All of the complaints of direct race discrimination are dismissed.[2]All of the complaints of indirect race discrimination are dismissed[3]Reasons were given orally and written reasons have been requested, and will be supplied in due course. JUDGMENT and reasons having been given orally, and judgment having been following reasons are provided
REASONS
[1]The Claimant was not an employee of the Respondent. She applied for a job as an external candidate and was not appointed. She brought claims of discrimination within the relevant time limit. The Hearing and the Evidence[2]This was a 4 day final hearing, held entirely in person. The witness evidence was heard on Days 1 and 2. Submissions were on Day 3. Judgment and reasons was on Day 4.[3]We had the witness statements and the bundle in both electronic and paper formats. The panel used the electronic versions, and the witness table had paper versions. 1 of 31[4]The bundle was 1212 pages. We had a “respondent’s note” from the Respondent on Day 1, and on Day 3 both sides submitted written closing arguments, as well as having the opportunity to address us orally.[5]There were 5 witnesses in total. The Claimant gave evidence and was the only witness on that side. The Respondent called 4 witnesses: Muibat Alli, Victoria Carroll; Beverley Grayley and Manjit Dhillon. Each of them had produced a written witness statement and gave their evidence by swearing to the truth of that statement (following any corrections) and by answering questions from the other side and from the panel.[6]Where we refer below to [Bundle XXX] that is to page XXX of the hearing bundle. The Claims and Issues[7]There had been a preliminary hearing on 16 September 2022 [Bundle 51]. Coincidentally, it was before the same judge (EJ Quill) who was the judge on the panel for this hearing.[8]After that hearing, there had been some claims which had been withdrawn and were the subject of a dismissal judgment [Bundle 1163].[9]There was also correspondence about the Claimant’s request for clarification/amendment of the list of issues drawn up at the preliminary hearing. [Bundle 75 – email from the Claimant; Bundle 153 – being judge’s decisions and orders (again it was EJ Quill)]. Notably, paragraph 9.4.6 from the list of issues drawn up at the hearing was deleted.[10]On Day 1 of this hearing, the Claimant withdrew any complaints seeking a specific judgment based on paragraphs 9.4.7 or 9.4.10 from that the list of issues, and acknowledged that such complaints would be dismissed. (This did not mean that she was unable to refer to what was said in the feedback, and why she disagreed with it, as part of the background to the complaints.)[11]On Day 1 of this hearing, the Claimant also made clear that item 9.4.5 (as amended) should not include Q4.[12]Thus the remaining claims were of direct race discrimination and indirect race discrimination, and the list of issues was, preserving original numbering, as follows: Time limits / limitation issues 9.1 . Were all of the claimant’s complaints presented within the time limits set out in section 123 of the Equality Act 2010 (“EQA”) 9.2. Dealing with this issue may involve consideration of subsidiary issues including: when the treatment complained about occurred; whether there was an act or conduct 2 of 31 extending over a period, and/or a series of similar acts or failures; whether time should be extended. 9.3. Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 4 May 2021 is potentially out of time, so that the tribunal may not have jurisdiction to deal with it, subject to consideration of the matters mentioned in the previous paragraph. EQA, section 13: direct discrimination because of race For the purposes of the direct race discrimination complaint, the Claimant describes her race as Eastern European 9.4. Did the respondent subject the claimant to the following treatment: 9.4.1. Not offer her employment as Adult Social Worker following her application in around April or May 2021:(a) at initial outcome stage and(b) after the Claimant had challenged and sought reconsideration. 9.4.2. During interview (around 14 May 2021), failed to offer prompts at appropriate times 9.4.3. Failed to take account of the Claimant’s transferrable skills 9.4.4. Failed to take account of the Claimant’s examples of how her experience in her current role (for example, in relation to safeguarding) was equivalent to (or sufficiently similar to) working in a local authority role 9.4.5 Failed to score her answers to Q1 , Q2, Q3, Q5, Q6, Q7 appropriately i.e. (scored her too low). 9.4.8. Give her feedback which said that the Claimant was not good enough to be appointed, and needed to improve 9.4.9. Give her feedback which inaccurately and/or incompletely described the actual answers which she had given during the interview 9.4.11. Failed to investigate her complaint about non-appointment 9.4.12. Failed to reconsider the decision about non-appointment 9.5. Was that treatment “/ess favourable treatment', i.e. did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on comparators who are not Eastern European, being those applicants who were actually appointed and/or hypothetical comparators. 9.6. If so, was this because of the claimant’s race? And/or because of the protected characteristic of race more generally? EQA, section 19: indirect race discrimination For the purposes of the indirect race discrimination complaint, the Claimant describes her race as Eastern European 9.15. A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP(s): 3 of 31 9.15.1. An expectation that candidates obtain their qualifications in the UK. 9.15.2. An expectation that candidates obtain their experience in the UK NOTE: it is for the Claimant to satisfy the tribunal that the Respondent did have such a PCP, but she is not necessarily required to prove that it was contained in a formal written document. 9.16. Did the respondent apply the PCP(s) to the claimant at any relevant time? 9.17. Did the respondent apply (or would the respondent have applied) the PCP(s) to persons with whom the claimant does not share the characteristic, e g. people from the UK and/or people from outside the UK who were not Eastern European? 9.18. Did the PCP(s) put persons with whom the claimant shares the characteristic, (being Eastern European) at one or more particular disadvantages when compared with persons with whom the claimant does not share the characteristic (people who are not Eastern European), in that they were less likely to have obtained (i) qualifications and/or (ii) experience within the UK? 9.19. Did the PCP(s) put the claimant at that/those disadvantage(s) at any relevant time? 9.20. If so, has the respondent shown the PCP(s) to be a proportionate means of achieving a legitimate aim? The respondent relies on the following as its legitimate aim(s): Remedy 9.21. If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the claimant is awarded compensation and/or damages, will decide how much should be awarded.
Remedy
[13]There was no argument raised by the Respondent about time limits and the Respondent made clear that it regarded the claims as being in time. The Claimant made clear that she thought her claim ought to be successful regardless of our decision in relation to item 9.17.[14]Our decision was that, in fact, all of the claims were in time. The Findings of Fact[15]The Claimant was born and grew up in Latvia. She completed formal education and obtained a degree in Economics. She moved to from Latvia to Germany. In 2006, in Germany, she obtained Bachelor’s degree in Social Work. In February 2013, she moved from Germany to the UK[16]Shortly after arriving in the UK, she found a job as an Employment Advisor (Employment Specialist) at a Mental Health Charity, where she was still working at the time of her application for a job with the Respondent[17]She is registered with Social Work England. 4 of 31[18]In the UK, the Claimant studied for and obtained a Maseters degree that was relevant to social work. This gave her a lot of insight into how various areas within Social Work in the UK operate[19]English is not the Claimant’s first language and the panel accepts her evidence that this potentially means that she sometimes needs longer to understand a particular question put to her in English, and/or she sometimes needs to request clarification or re-wording. The Claimant speaks English well and is able to speak very rapidly and very eloquently.[20]The Claimant has applied for many jobs as a social worker during her time in the UK. She has always been unsuccessful. She says (paragraph 7 of her witness statement) that she suspects that that might, at least in part, be because of her ethnic origin. She argues that one reason for challenging the Respondent (as opposed to some of the other recruiting employers who had failed to appoint her) is that in at least some of those cases, she was satisfied that there had been a finite number of vacancies, with all the vacancies being filled in the recruitment exercise. She said that one possibility was that she had been deemed appointable, but was not one of the highest scoring applicants, and so that all the vacancies had been filled by people who had been deemed to be better candidates (or to have performed better in the selection process, at least).[21]In contrast, the Claimant argues, that for the recruitment exercise that is the subject of this claim, all of the available vacancies were not filled. She was not offered the job despite, she says, there still being some unfilled vacancies.[22]Our finding is that it is factually accurate that there were still some unfilled vacancies after the recruitment.[23]In any event, the basis of the Respondent’s defence is that it considered that the Claimant was not “appointable”. In particular, its position is that the Respondent developed the scoring system which we discuss in more detail below. The Claimant scored 30 and was deemed not appointable. Another candidate was appointed with a score of 34. Thus, on the Respondent’s case, the cut off point was no higher than 34 and no lower than 31.[24]An advert [Bundle 210] was placed and the Claimant replied. It was not for a post as an entry level position. That is, the Respondent was not advertising for a trainee or apprentice. The advert said, amongst other things: You will need to be Social Work qualified or equivalent and registered with Social Work England. You will have a sound knowledge of the key principles of the Care Act, the Mental Capacity Act and Safeguarding, as well as all other relevant legislation relating to the provision of services for adults with long term conditions. We encourage applications from experienced frontline social workers within Adult Services, who are currently not within a line management role but who are wanting to 5 of 31 take the next steps in their professional development. We also want our workforce to reflect our community and encourage all those who possess the essential criteria to apply to work for Hackney[25]The advert also said: The recruitment process is anonymous. Therefore we do not accept statements or CVs. This comment was in line with the recruitment policy [Bundle 349] and procedure [Bundle 351]. The Respondent did apply this anonymity.[26]Both the advert and the policy expressly state that the Respondent intends to appoint based on merit and to seek to avoid discrimination including race discrimination. We accept that that is the Respondent’s genuine policy and intention. We also accept we must analyse the individual exercise in question to determine if the selection panel members sought to adhere to those requirements/aspirations and also to consider if there was any unconscious discrimination even if there was an attempt to avoid it.[27]The policy requires the Job Description and the Person Specification documents to be reviewed before placing the advert. Those documents are important items throughout the recruitment process. As per paragraph 3.3 of the policy, the shortlisting is to be against the criteria for the role as identified in the Person Specification.[28]Paragraph 3.7 says that there will be no feedback to candidates who are not shortlisted. It says that this is in contrast to those who are unsuccessful at interview. Paragraph 4.3.5 mentions the need for the panellists to keep notes, and mentions the data subject access rights for candidates to obtain copies of their own notes. (A right which would be available to any candidate, not just one who was unsuccessful). However, subject to those points, the procedure does not give details about how any complaints or challenges from unsuccessful candidates are supposed to be addressed.[29]The procedure includes: 4.3.2 Draft interview questions must be prepared in advance by the Chair and circulated to panel members. The final interview questions must be agreed by all panel members. 4.3.3 The interview process must be agreed in advance and structured around a set of questions that focus on the requirements of the job (as specified in the job description and the person specification) and must be non-discriminatory. All candidates must be interviewed in the same way (except for where reasonable adjustments have been made). 6 of 31[30]The policy and procedure does not require that there be written model answers prepared in advance or that there be a specific written marking scheme prepared in advance.[31]Hyperlinks to the Job Description and the Person Specification documents were linked to in the advert. Our finding is that the Claimant had those documents available to her throughout the recruitment process. We are satisfied that the Claimant was aware throughout the process that the candidates were going to be assessed by how well they could demonstrate that they met the requirements identified in those documents.[32]The documents are in the bundle at [Bundle 212 – job description] and [Bundle 216 – person specification][33]The Job Description includes (amongst other things) To be responsible for recognising and assessing Adults at risk and following agreed procedures to record, investigate and respond with appropriate and timely support and interventions showing an understanding of capacity assessment, risk enablement, working with an understanding of unwise decision making and Making Safeguarding Personal. And To carry out robust and detailed person centred and Care Act compliant, strengths based assessments in line with the legislative framework and Care Act wellbeing principle and thresholds, and in partnership with multi-disciplinary professionals, using knowledge and skills to manage risks. Under other duties: To maintain an up to-date working knowledge of legislative framework, policy and practice developments in adults social services and the service area.[34]The first three requirements in the Person Specification refer to the need for experience of certain things, including Experience of carrying out comprehensive social work assessments using the Care Act wellbeing principles[35]These three requirements (including the one just mentioned) were because the post being advertised (the one to which the Person Specification related) was a Social Worker post, not a trainee social worker post.[36]We accept the Respondent’s evidence, that demonstrating that they met these three requirements did not mean that the person necessarily had to have exact and specific experience of applying the UK Care Act (in any setting, still less in a local authority setting) so long as they had some experience that they could show 7 of 31 was equivalent (or, to use the word that has being used during the hearing “transferrable”). The Respondent’s stance is corroborated by the fact that it did, in fact, invite the Claimant for interview, notwithstanding the fact that she had not previously worked in a local authority setting (applying the Care Act) and, furthermore, that it did, in fact, appoint at least one candidate whose experience had been gained outside the UK (in the USA) and not in a UK local authority.[37]The remaining requirements in the Person Specification make expressly clear that the remaining requirements under Skills and Experience can be met by showing “ability” to do the things in question and we are satisfied that this clearly means that the Respondent is indicating the “ability” could be demonstrated even if the person had not worked as a Social Worker for a UK local authority.[38]Under Knowledge, the Person Specification mentions:• Good demonstrable understanding of the Care Act, and The Mental Capacity Act /DOLS.• Good working knowledge of the London Multi Agency Adult Safeguarding policy and procedures and all related adults legislation, including Making Safeguarding Personal.• Knowledge of current best practice and integration initiatives across health and care areas.• Knowledge and understanding of the needs of Adults at Risk and those with a Long term conditions and complex needs.[39]Our finding is that these bullet points (in particular, and in addition to the contents of the Job Description and Person Specification as a whole) gave all candidates, - regardless of their previous work experience, or national origins - information about the type of things that they could research in advance of the interviews (and, indeed, in advance of submitting an application form)[40]Three bullet points are mentioned under Qualifications. These are cumulative and not alternatives. The Claimant’s German qualification was accepted by Social Work England and was accepted by the Respondent. The wording of the first bullet point was not intended to (and did not) show a requirement that only qualifications actually obtained in the UK would be accepted as meeting that requirement.[41]The Claimant made it through the shortlisting stage. That was the stage at which it was determined that she satisfied the requirements in the Person Specification under Qualifications. The interview process did not test/verify those particular requirements. (Presumably, before an unconditional offer was made to any candidate, the Respondent might carry out checks to ensure that the information stated in the application form could be verified. However, that does not matter to the point at hand which is that, in principle, the fact that a candidate’s degree was from Kassell University in Germany did not prevent them meeting the requirement.) 8 of 31[42]There was to be a three person selection panel: Ms Muibat Alli, Senior Social Work Practitioner in the Information and Assessment Team; Ms Victoria Carroll, Senior Practitioner in the Integrated Discharge Service and Mr Tellington Nyamurera, Acting Senior Social Worker Complex Care Management Team. The first two of these have been witnesses in the tribunal and have confirmed that (as required by the Respondent’s policy) they had had the relevant training before sitting on the panel. We have no particular reason to doubt that Mr Nyamurera had also had it, but he has not been a witness.[43]The interviewers met to discuss what the questions would be. They did not create a detailed marking scheme, or create a written record of what they discussed. This was bad practice in this Tribunal’s opinion. However, we accept that the selection panel’s reasons were that they each thought that they – as experienced social workers – had the ability to listen to each answer and to be able to accurately assess how well it demonstrated suitability against the person specification. Their genuine opinion was that they did not need to create a jointly agreed marking scheme. It was not their intention to discriminate in the selection process, and their decision that they would not have a written marking scheme was not part of an attempt to use the lack of such a scheme to disguise discrimination or make it harder to prove.[44]In their discussions, they decided on three things in advance of the interview process.44.1 Firstly, each of them would mark each question, (and the assessment exercise) by giving each candidate either a 0, a 1, a 2, or a 3 for that question/exercise. 0 – did not meet the criteria at all 1 - Partially Met 2 - Met 3 - Exceeded Expectations44.2 Secondly, the overall score for each candidate would just be a simple aggregate of every panel member’s scores for that candidate. There was to be no attempt to come to a consensus or moderate each other’s scores.44.3 Thirdly the “appointability” threshold would just be based on the aggregate score. There was, for example, no rule that a candidate would fail to be appointable simply because their score for one (or more) individual question(s) fell below a specific threshold. So either their score met the threshold and they were appointable, or did not meet the threshold and they were not. [If there had been more appointable candidates than vacancies, then the ranking 9 of 31 of candidates would presumably have become relevant. However, our finding is that they did not fill all the available vacancies. This finding is based on the balance of probabilities and the fact that the Respondent has not presented evidence that they only had six vacancies available.][45]The Tribunal also accepts that the selection panel did set the specific “pass mark” (that is, the minimum aggregate score that a candidate had to achieve in order to be deemed appointable) at this initial, pre-interview stage. We make this finding based on the answers given by Ms Alli and Ms Carroll in the tribunal hearing. It is a significant flaw in the process that the fact that they had agreed a particular pass mark was not put in writing at the time. If it had been, it would have helped to avoid the situation which transpired, namely that both the witnesses believe that the pass mark was set at the pre-process meeting, but neither is totally certain of that fact, and that, furthermore, only one of the witnesses, Ms Carroll, is able to recall that the score they agreed upon was 32.[46]We do accept that the three panel members did know the pass mark at the time, and it was used in their decision making. Their failure to record it in writing means that, more than two years later, they are not able to testify that their recollections are certain. Regardless of whether the mark was exactly 32 or not, we accept that it was somewhere in the range 31 to 34, and that the existence of their pre-agreed pass mark was the conscious reason of the panellists, at the time, for why a candidate with 34 was appointed, and a candidate with 30 was rejected.[47]The Claimant made it through shortlisting. She was potentially appointable based on the contents of the application form. The Claimant was invited for interview. [Bundle 232][48]There was to be an assessment immediately before the interview. The assessment was that an email was sent to the Claimant and she had 30 minutes to respond [Bundle 237][49]The interview, which was to be conducted remotely by video, was to follow immediately afterward. This on 14 May 2021. The Respondent had scheduled 14 candidates in total. Six on 12 May, six on 13 may and two on 14 May [Bundle 238].[50]The interview panel was the same for all interviewees, and it was the same panel who had shortlisted and who had agreed the threshold appointability score. The questions to be put in interview were the same for all of the candidates who were interviewed, as was the assessment[51]The assessment question is 237 of bundle. The interview questions were as follows: 10 of 31 Q1 What attracted you to apply for this post ? How do you feel your knowledge, experience and skills equip you for a Social Work role in Hackney Adults services? Q2 Please explain how the Care Act has impacted your practice as a Social worker? Q3 Can you tell us how current legislation, guidance and principles have impacted your approach to Adult Safeguarding ? Use a case example to illustrate your answer. Q4 Please give us an example of when you have completed a Mental Capacity Assessment, stating the situation, your actions and the outcome?. Q5 Hackney is a very ethnically diverse borough, can you provide an example of a case you have been involved with ,which demonstrates your awareness and equality and diversity? Q6 Can you give an example from your work experience where you have responded to and managed competing demands in your role as a Social Worker? Please consider the impact of Covid-19 on your practice. Q7 As you know we are recruiting to a number of vacancies throughout Adults Services, Long term team, Hospital Discharge team and Information & Assessment team, while we are unable to tell you now which team you would go to, please can you tell us about any specialist experience you feel that you have that relates to areas of work and client group?[52]The Respondent has provided the scores for the 11 candidates who were ultimately assessed. [Bundle 241 to 242]. The Claimant can be referred to as candidate 10. The others are anonymised and can be referred to as candidates 1 to 9 and candidate 11 respectively.[53]We do not have the break down for how the interviewers separately scored the assessment. However, we accept that the aggregate of the three scores for the assessment for the candidates are as shown on [Bundle 241-242].[54]A summary of the Claimant’s scores is as follows. The columns are for Q1 to Q7, then A is assessment and T is total. The rows are Ms Alli (“MA”), Mr Nyamurera (“TN”), Ms Carroll (“VC”) and the aggregate. Q1 Q2 Q3 Q4 Q5 Q6 Q7 A T MA 2 2 1 1 1 1 2 10 Two prompt prompt TN 2 1 1 1 0 0 1 6 prompt 11 of 31 VC 2 2 1 1 1 1 1 9 prompt prompt Two Extenprompt sive prompt Agg 6 5 3 3 2 2 4 5 30[55]There is some notable variation but, as the Respondent’s witnesses stated, and as the Tribunal accepts, that is part of the reason for having a panel of three not a panel of one. In other words, it is preferable to have the selection process based on more than one person’s opinion. This is because there can be a legitimate difference of opinion between reasonable and fair-minded people as to how well someone’s answer demonstrated that they met the criteria.[56]Prior to interviewing the candidates, the panel had decided that the wrap up session after the interviews would not entail the panel moderating their scores by listening to why their colleagues had given a different score, and potentially changing them, if persuaded to do so. They had decided they would each keep their score and simply add them up. The fact that TN did not increase his score to come closer to the other two interviewers (or vice versa) in the Claimant’s case is not surprising or suspicious and it is in line with the scores for the others.[57]For example, Candidate 8 was appointed. However, for Q1 to Q7, Candidate 8 got 8 points from each of MA and TN, whereas they got a 13 from VC. VC did not decrease her score to come closer to the other two interviewers (or vice versa).[58]There is some variety in the notes in relation to recording prompts. In fact, there is no question for which all three note the same number of prompts, other than those questions (1, 5 and 7) for which no prompts are recorded at all by any interviewer. On balance of probabilities, where any of the interviewers specifically noted a prompt, that is because at least one prompt did occur. We think it more likely that one (or more) of the prompts might have been left unrecorded by one (or more) of the interviewers than that any of them recorded a prompt when the reality had been that there had been no prompt.[59]TN is the only interviewer to give the Claimant any zeroes. However, over the process as a whole, every interviewer gave some zeroes. These were as follows (not including the Claimant).59.1 TN have the most overall. He gave seven overall: (one to Candidate 1 and two each to Candidates 2, 4, 7)59.2 MA gave four overall: One to Candidate 2 and three to Candidate 4. 12 of 3159.3 VC gave five overall: One to Candidate 1 and two each to Candidates 2 and 4[60]Thus TN’s giving zero to the Claimant for each of Q5 and Q6 when his colleagues each gave the Claimant a 1 for each of those questions is not, in itself, inconsistent with the pattern of the marking for other candidates.[61]We observe that TN’s mark of zero for Q5 is an understandable score if the Claimant’s actual answer was accurately reflected by his own notes for that question. His notes suggested the Claimant had not used an example of someone with a disability. He did not record the comments about people with hearing difficulty as noted by both colleagues, or the comments about possible language issues (noted by VC only). We will discuss in the analysis whether TN deliberately marked the Claimant down for this question because of race. However, on balance of probabilities (and based on the other interviewer’s notes), the Claimant did make clear that she was seeking to give an example of her involvement with (and advice to) a person who (arguably) did have a mental impairment that fell within the definition of disability in of the Equality Act 2010 and the Claimant was identifying some familiarity with the factual/legal issues which might arise when there was a dispute about whether the person did, in fact, meet the definition.[62]For the other questions, and the other scores, we have compared the Claimant’s answers as recorded in the notes, and the explanations given to us by MA and VC about what the panel was looking for, and the feedback given to the Claimant, and the scores given to other candidates based on the notes in the bundle. We do not find anything surprising or suspicious about the Claimant’s scores. As we have already said, there is significant variety between the scores given by the different selection panel members, and that is true across the board, for all candidates including the Claimant.[63]As per the scores on 241 to 242, the six highest scoring people received offers and the five lowest did not. With 30, the Claimant was the highest scoring of those who got no offer; below her were scores of 27, 26. A candidate with 34 received an offer, as did another with 38 and another with 39. The three highest scoring candidates got 52, 50 and 47 respectively.[64]After being informed that she had been unsuccessful, the Claimant requested feedback and she received feedback from TN. She received oral feedback by phone on 20 May, and he followed it up with an email on 26 May [Bundle 280]. He said that he application form was well written and the case study met the standard. He said some of the questions were well-answered but there was room for improvement on others. He said that these were: 1. Use of examples to demonstrate your knowledge and skills 2. In question 2 -the response could have been improved by referring to the Care Act 2014 and how this impacted on your practice in relation to the duty to assess, provide 13 of 31 advice and information, undertaking safeguarding enquiries, carers assessment, use of advocacy etc. 3. In question 3 - the response could have been improved by referring to Section 42 of the Care Act, the Local authority’s duty to make safeguarding enquiries, the 3 criteria or a S42 enquiry, establishing mental capacity, making safeguarding personal and the role of a Safeguarding Adults Manager (SAM). You may wish to reflect on the example you used during the interview. 4. In question 4, the panel felt that there are grounds for you to improve your knowledge on the Mental Capacity Act 2005. This was not demonstrated adequately during the interview, even after prompting. The example given did not raise any mental capacity issues. It would have been helpful if you were able to refer to the 4 assessment areas, able to understand, retain, weigh and communicate their views. 5. The panel felt that you could improve your knowledge and skills on how to manage competing demands in a social work role as well as knowledge on equality and diversity issues with regards to social work practice.[65]After TN’s oral feedback and before the written, the Claimant had written to the Respondent to ask for reconsideration of the rejection. This was on 21 May at 11:36am [Bundle 277] and alleged direct and indirect discrimination. There was an exchange of emails and the Claimant was given the contact details for Manjit Dhillon, Senior HR Business Partner. Ms Dhillon said she would look into the matters raised by the Claimant. Ms Dhillon contacted Ilona Sarulakis, the then Principal Head of Adults and Ann McGale, the then Director of Adult Social Care Operations on 21 May 2021 and Michelle Witham, an Interim Head of Service on 25 May 2021.[66]Following the written feedback from Mr Nyamurera, the Claimant remained dissatisfied and wrote to the Respondent on 27 May [Bundle 281]. This was by way of email to Ms Dhillon and others. The complaint raised several issues, including:66.1 That the Claimant wanted her interview notes66.2 That the Claimant was potentially going to submit a complaint if not satisfied with the response to her email66.3 That the Claimant was potentially going to make an employment tribunal claim66.4 That the Claimant believed that the feedback had not said enough about the things she had done well in the interview, and had focussed on the negatives66.5 That: The feedback does not express how the panel considered the Equality Act to my advantage because of my background, although I asked them plenty of times during the interview to consider that I might be struggling to identify what 14 of 31 I am expected to say. For example, if on any occasions the panel expected me to link specific example to the Care Act, without mentioning that requirement in their question, they could have explicitly asked me to do so. If they gave me the requested adjustment on the Equality Act, this would establish more equality towards other candidates[67]This latter point is representative of an observation that the Claimant made several times during the tribunal hearing, namely that, in her opinion, there should have been what she called “positive action” by the Respondent to take account of the fact that English was not her native language and/or that she had trained and/or gained relevant experience outside the UK.[68]The Claimant’s correspondence was discussed internally. We accept Ms Dhillon’s account that she, Ms Dhillon, informed Ilona Sarulakis, the then Principal Head of Adults and Ann McGale, the then Director of Adult Social Care Operations on 21 May 2021 and Michelle Witham, the then Interim Head of Service on 25 May 2021. The Claimant’s 27 May 2021 email to Ms Dhillon and others was forwarded to Simon Richardson, the then Manager of Workforce Development Team and Business Hub and to Michelle Witham.[69]The internal discussions led, for example, on 2 June, to Ms Grayley asking MA for some information [Bundle 1114]. MA replied the same day and confirmed there was no panel chair and no model answers. MA was asked to liaise with the Claimant to give the Claimant a further response.[70]It was agreed that MA would contact the Claimant supply feedback to the Claimant. MA drafted what she intended to say and ran it past Ms Grayley. [Bundle 1117][71]MA supplied the oral feedback to the Claimant on 4 June 2021. She followed up with a written response on 7 June.[72]On 4 June, Ilona Sarulakis, Principal Head of Adult Social Care, had contacted Ms Grayley to check the feedback from MA had been given, as agreed, [Bundle 1128] and Ms Grayley confirmed that it had been done.[73]After MA gave the written feedback, she wrote to Ms McGale, Ms Sarulakis, Ms Dhillon and Ms Grayley, on 7 June 2021 [Bundle 1125] to confirm she had done so. MA was thanked by Ms Sarulakis and Ms Grayley for contacting the Claimant.[74]The written feedback appears more than once in the bundle, including at [Bundle 617]. MA gave the Claimant her own aggregate scores, and a detailed explanation for the marking; that is, why the panel thought that the scores were justified.[75]We do not find any inconsistency between the explanations given to the Claimant in May 2021 by TN and in June by MA 2021. Nor do we find any inconsistency 15 of 31 between the explanation given by MA in June 2021, and the explanations given by VC and MA to the tribunal hearing in October 2023.[76]Furthermore, we find that the comments given to the Claimant at the feedback stage are consistent with the notes of her interviews.[77]Other than the feedback from TN and MA (in May and June 2021) which, in each case, was both oral and written, the Respondent did not provide the Claimant with any other written outcome to her queries/complaints about non-appointment. (There was various written correspondence, which we do not need to address in detail, in relation to subject access requests and freedom of information requests). The Law Equality Act 2010 (“EQA”)
The Law
[78]For the purposes of Part 5 EQA, which deals with “work”, contraventions include: 39 Employees and applicants (1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment. Burden of Proof[79]The burden of proof provisions are codified in s136 EQA and s136 is applicable to all of the contraventions of the Equality Act which are alleged in these proceedings.(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[80]It is a two stage approach.80.1 At the first stage, the Tribunal considers whether the Tribunal has found facts - having assessed the totality of the evidence presented by either side and drawn any appropriate factual inferences from that evidence - from which the Tribunal could potentially conclude - in the absence of an adequate explanation - that a contravention has occurred. 16 of 3180.2 If the claimant succeeds at the first stage then that means the burden of proof is shifted to the respondent and the claim is to be upheld unless the respondent proves the contravention did not occur.[81]In Efobi v Royal Mail Neutral citation: [2021] UKSC 33, the Supreme Court made clear that the changes to the wording of the burden of proof provision in EQA compared to the wording in earlier legislation do not represent a change in the law. Thus when assessing the evidence in a case and considering the burden of proof provisions, the Tribunal can have regard to the guidance given by the Court of Appeal in, for example, Igen v Wong Neutral citation: [2005] EWCA Civ 142 and Madarassy v Nomura International Neutral citation: [2007] EWCA Civ 33.[82]The burden of proof does not shift simply because, for example, the claimant proves that there was a difference in treatment (in comparison to someone whose relevant protected characteristics were different) . Those things only indicate the possibility of discrimination . They are not sufficient in themselves to shift the burden of proof; something more is needed.[83]It does not necessarily have to be a great deal more and it could in an appropriate case be a non-response from a respondent or an evasive or untruthful answer from an important witness. Time Limits for EQA complaints[84]In EQA, time limits are covered in s123. All of the complaints in this claim have been brought in time. Comparisons[85]Where relevant, it is necessary to take into account of section 23 EQA. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13 … or 19 there must be no material difference between the circumstances relating to each case. Definition of Direct Discrimination – section 13 EQA[86]Direct discrimination is defined in s.13 EQA. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[87]There are two questions: whether the respondent has treated the claimant less favourably than it treated others (“the less favourable treatment question”) and whether the respondent has done so because of the protected characteristic (“the reason why question”). 17 of 31[88]When considering the “reason why question” for the treatment we have found to have occurred, we must analyse both the conscious and sub-conscious mental processes and motivations of the decision makers which led to the respondent’s various acts, omissions and decisions.[89]For the less favourable treatment question, the comparison between the treatment of the claimant and the treatment of others can potentially require decisions to be made about whether another person is an actual comparator and/or the circumstances and attributes of a hypothetical comparator. However, the less favourable treatment question and the reason why question are intertwined. Sometimes an approach can be taken where the Tribunal deals with the reason why question first. If the Tribunal decides that the protected characteristic was not the reason, even if part, for the treatment complained of then it will necessarily follow that person whose circumstances are not materially different would have been treated the same and that might mean that in those circumstances there is no need to construct the hypothetical comparator.[90]The issue of whether the Claimant has been able to show that there is an actual comparator or not is likely to be relevant when assessing whether the Claimant has shown that there is “something more” which shifts the burden of proof. This is a point that was recently the subject of analysis in Virgin Active v Hughes: Neutral Citation Number: [2023] EAT 130.[91]The EAT quoted from Madarassy v Nomura International plc 56. The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. [emphasis added by EAT in Hughes][92]It went on to say that Ms Madarassy’s claim was not analysed on the basis that there were actual comparators, but on the basis that the scoring of other people in a redundancy exercise could help establish how a hypothetical comparator would have been treated.[93]It went on to cite from Laing v Manchester City Council and another [2006] I.C.R. 65. In our view, if one considers the burden of proof provision in the context of what a claimant needs to establish in a discrimination claim, what it envisages is that the onus lies on the employee to show potentially less favourable treatment from which an inference of discrimination could properly be drawn. Typically this will involve identifying an actual comparator treated differently or, in the absence of such a 18 of 31 comparator, a hypothetical one who would have been treated more favourably. That involves a consideration of all material facts (as opposed to any explanation).[94]For the reasons stated in paragraph 66 of Hughes, the EAT suggested that the analysis in Laing has had approval of the higher appellate courts. The EAT added:67. If anything more is required to shift the burden of proof when there is an actual comparator it will be less than would be the case if a claimant compares his treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.68. For example, if two people who differ in a protected characteristic attend a job interview and one is appointed but the other is not, that, of itself, would not be enough to shift the burden of proof, but if they scored the same marks in the assessment, so there is an actual comparator, the difference of treatment would seem to call out for an explanation. As Elias J noted in Laing at paragraph 73: As I said in Network Rail Infrastructure Ltd v Griffiths-Henry (unreported) 23 May 2006 , para 17, it may be legitimate to infer that a black person may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected.69. Accordingly, where a claimant compares his treatment with that of another person, it is important to consider whether that other person is an actual comparator or not. To do this the Employment Tribunal must consider whether there are material differences between the claimant and the person with whom the claimant compares his treatment. The greater the differences between their situations the less likely it is that the difference of treatment suggests discrimination. Indirect discrimination.[95]Indirect discrimination is defined in section 19 EQA. 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 19 of 31 (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[96]One of the relevant protected characteristics to which section 19 applies is “race”, within the definition in section 9 EQA. 9 Race(1) Race includes— (a) colour; (b) nationality; (c) ethnic or national origins.(2) In relation to the protected characteristic of race— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.(3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.(4) The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group.[97]There is no requirement that the claimant shows why the PCP puts the group sharing a particular protected characteristic at a particular disadvantage when compared with others. It is enough to show that it does, in fact, do so. This can be done using statistical evidence where necessary, but in some cases it might be obvious that the requirement does, in fact, disadvantage the group which the claimant has identified.[98]Whereas the definition of direct discrimination expressly includes a causal link between the less favourable treatment and the protected characteristic, indirect discrimination does not require a causal link between the protected characteristic and the disadvantage. Instead it requires a causal link between the PCP and the particular disadvantage suffered by the group and by the individual.[99]The reason for the disadvantage need not be unlawful in itself or be under the control of the employer. It is sufficient that the employer has applied the PCP.[100]There is no requirement that the PCP in question put every single member of the group (sharing the particular protected characteristic) at a disadvantage. It is sufficient that the proportion of those within the group who could meet the requirements was sufficiently smaller than the proportion of those who did not share the protected characteristic in question. Indeed, if not even one member of the disadvantaged group could meet the requirement, it would be necessary to consider whether the application of the PCP actually amounted to direct 20 of 31 discrimination; that is, to consider whether the respondent had imposed a requirement that was a proxy for (for example) sex or race or age, etc. See: James v Eastleigh BC.[101]The phrase “provision, criterion or practice” is commonly abbreviated to “PCP”. It is not separately defined in the Equality Act 2010. Tribunals must interpret it in accordance with guidance in the EHRC Code and in appellate court decisions.[102]The PCP does not necessarily have to be a complete barrier to (for example) appointment as an employee. Furthermore, a PCP might be “applied” even if it is something less than an invariable rule and/or even if it is something which does not have direct and immediate consequences. In Carreras v United First Partners Research, Neutral Citation Number: [2018] EWCA Civ 323, court of appeal agreed with the EAT that an expectation or assumption that an employee would work late into the evening could constitute a PCP, even if the employee was not “forced” to do so and not disciplined if he did not do so.[103]There are two aspects to the “particular disadvantage” limb of the test for indirect discrimination.103.1 that the PCP puts (or would put) persons who share the claimant’s protected characteristic at a particular disadvantage when compared with persons who do not share it. This is sometimes referred to as “group disadvantage”.103.2 that the claimant must personally be placed at that disadvantage.[104]The word “disadvantage” is not specifically defined in the Equality Act 2010. The Code of Practice suggests that disadvantage can include denial of an opportunity or choice, deterrence, rejection or exclusion. It is sufficient that the PCP caused the claimant “great difficulty” in achieving appointment .[105]If the PCP is shown to exist and to place persons with the relevant protected characteristic, and the claimant herself, at a particular disadvantage, the burden of proof switches to the respondent to show that the PCP is nevertheless a proportionate means of achieving a legitimate aim.[106]The “legitimate aim” of the PCP must not be discriminatory in itself, and must represent a real, objective consideration. The health, welfare and safety of individuals may qualify as legitimate aims provided that risks are clearly specified and supported by evidence.[107]Reasonable business needs and economic efficiency may be legitimate aims. However, that does not mean that a discriminatory rule or practice will necessarily be justified simply by showing that less discriminatory alternatives cost more. 21 of 31[108]Once a legitimate aim has been established, the tribunal must consider whether the discriminatory PCP is a proportionate means of achieving that aim.[109]Tribunals considering whether a PCP is a proportionate means of achieving a legitimate aim must undertake an analysis of the discriminatory impact of the PCP on the affected group and of the importance of achieving the aim to the employer.[110]The tribunal must consider whether there are less discriminatory alternative means of achieving the aim relied upon. However, the existence of a possible alternative non-discriminatory means of achieving the aim of a measure or policy does not, in itself, make it impossible for the respondent to succeed in justifying a discriminatory PCP. The existence of an alternative is only one factor to be taken into account when assessing proportionality.[111]The tribunal must make an objective determination when carrying out a balancing exercise, and deciding whether imposing the PCP was (because of the legitimate aim identified at the tribunal hearing) proportionate, notwithstanding the fact that the identified group was disadvantaged by it. The defence to a section 19 claim can, in principle, rely on a legitimate aim which was not in fact the conscious reason for deciding to impose the PCP at the relevant time. Analysis and conclusions Indirect discrimination.[112]It is convenient to address the indirect discrimination complaints first. The list of issues in relation to indirect discrimination starts on [Bundle 57] and is quoted in full above.[113]In particular, the alleged PCPs were: 9.15.1. An expectation that candidates obtain their qualifications in the UK. 9.15.2. An expectation that candidates obtain their experience in the UK[114]Our decision is that the Respondent did not have those PCPs. We have not been persuaded that it applied such PCPs to the Claimant, or that it applied them to Eastern Europeans, or that it applied them to persons who were not Eastern European.[115]While some level of “expectation” (as opposed to a strict requirement) can amount to a PCP, on the facts of this case, the Respondent’s witnesses have said, and we have accepted, that they were willing to treat qualifications obtained outside the UK as acceptable. The other evidence supports their oral testimony. The Claimant was shortlisted and she would not have been shortlisted if her qualifications were not acceptable; her qualifications, and where they were obtained, was not taken into account in the interview stage (and nor has it been proven that a requirement 22 of 31 or expectation to have obtained qualifications in the UK was taken into account at either the shortlisting or interview stage for any of the candidates).[116]It is true that during the selection process, an ability to work to UK standards and an ability to understand UK legislation was required. In the findings of fact, we have mentioned some of the relevant extracts from (job description and) person specification. However, the actual experience relied upon to demonstrate that ability could have been either acquired in the UK or acquired elsewhere. As the Claimant pointed out often during the hearing, C8’s overseas experience was deemed to be transferrable and the Respondent decided that that experience showed that he met the Respondent’s requirements for successful candidate[117]Since the Respondent did not have either PCP, it is not necessary to comment on the justification defence, save to say that we accept the aim stated in Mr Salter’s written submissions was an aim which the Respondent genuinely had and that it was a legitimate one.[118]The indirect discrimination complaints all fail. Direct Discrimination[119]Paragraph 9.4 of the list of issues cited above sets out the separate examples of alleged less favourable treatment. Subparagraphs 9.4.11 and 9.4.12 are distinct from the non-appointment issue, as they relate to the handling of what the Claimant describes as a “complaint”. Some of the other subparagraphs are potentially background information (disputed in some cases) to support the Claimant’s complaint as itemised in the first subparagraph, which stated: Not offer her employment as Adult Social Worker following her application in around April or May 2021:(a) at initial outcome stage and(b) after the Claimant had challenged and sought reconsideration.[120]Allegation 9.4.1 is factually accurate in the sense that the Respondent did not offer the Claimant employment, and that they neither did so when the initial offers/rejections were communicated to the candidates, and nor did they do so after her queries and correspondence on the matter. Furthermore, it is factually accurate that the Claimant’s correspondence made clear that she wanted the Respondent to change its decision and to offer her a post.[121]Since this is the overarching allegation, we will return to it after commenting on the other subparagraphs of paragraph 9.4. 9.4.2: During interview (around 14 May 2021), failed to offer prompts at appropriate times[122]The claimant has not demonstrated that the respondent failed to offer sufficient prompts or that the Respondent failed to offer prompts at appropriate times. She 23 of 31 has also not proved the panel offered fewer prompts (at appropriate times) to her than they did to the candidates.[123]In particular, in relation to question six, we accept that MA did offer some prompts to clarify what an answer to the question required, and, our finding of fact is that it was not unreasonable for MA to conclude that the claimant's asking for even more details than had already been provided (about what they were looking for as an answer to the Covid part of that question) would have been to provide the claimant with the actual answer rather than merely clarification of the question. There are no facts from which we could conclude that a hypothetical comparator (being someone who was not Eastern European, but whose circumstances were otherwise identical to the Claimant, including asking for the same further clarification of Q6 after the same additional clarification had been provided) would have been treated differently.[124]Furthermore, the claimant's suggestion during her oral evidence that she should have been given more prompts than other candidates is an entirely different argument to an argument that she was treated less favourably than other candidates by not being given as many (and/or as helpful) prompts as they were given. In oral evidence, the Claimant suggested that whatever the Respondent considered as a “normal” or “standard” number of prompts should have been increased in her case; and that, for each question, whatever the number of prompts would have been offered to another person (if needed, based on the initial answer) should have been increased by perhaps 4 or 5 extra prompts per question in her case.[125]However, for the purposes of the direct discrimination allegation, we are satisfied that the reason that the panel gave the Claimant the prompts that they did (and not a higher number, or different prompts) is that they believed that it was appropriate to treat each candidate the same. We reject the suggestion that the panel was obliged to give the Claimant more prompts (in comparable circumstances) than given to another candidate. We accept that the panel did consciously seek to apply (to the Claimant and other candidates) the same criteria for what prompts would be given and when, during each candidate's attempt to answer the question. There are no facts which cause the burden of proof to shift and which tend to show that, consciously or unconsciously, they were less helpful to the Claimant than to others. On the facts as we have found them, the panel thought that they had an obligation to treat the Claimant the same as the other candidates, in relation to prompts, and did so.[126]In submissions (and in oral evidence), the Claimant disputed that she was given more prompts than any other candidate, but she accepted that she received either (depending on what was counted as a “prompt”) received either the joint highest number, or the second highest number (according to the interview notes). 24 of 31 9.4.3. Failed to take account of the Claimant’s transferrable skills 9.4.4. Failed to take account of the Claimant’s examples of how her experience in her current role (for example, in relation to safeguarding) was equivalent to (or sufficiently similar to) working in a local authority role 127. 9.4.3 and 9.4.4 are similar and so we will discuss them together.[128]Based on the witness evidence in the tribunal hearing, and our analysis of the written feedback given to the Claimant by MA in June 2021, the respondent has satisfied us that the reasons that the claimant did not score more highly on questions are that they sought to give each candidate scores, for each question, that were a 3, a 2, a 1 or a 0, based on how well, in the respective interview’s opinion, the answer to the question demonstrated that she had the required skills knowledge and experience as set out in the person specification.128.1 The scoring was NOT on the basis that the Claimant, or any other candidate, had to demonstrate that they worked in a local authority and performed the exact function previously.128.2 In principle, every candidate, including the Claimant, had the opportunity to show that they could provide a satisfactory answer to the question by referring to skills and experience that they had obtained outside a local authority setting. They did have to show that their answer deserved, as the case may be, a 3 or a 2 or a 1.128.3 For the scores which the Claimant was allocated, it was not simply a case that she was unable to demonstrate that she had worked in a local authority setting. Where she scored a 1 or a 0, it was that her answers did not satisfactorily show that she met the criteria, regardless of whether her examples were of things she had done in a non-local authority setting or, alternatively, regardless of whether the claimant's knowledge was theoretical rather than practical.[129]Even taking account of the burden of proof provisions, and of the need for us to consider unconscious, as well as conscious, motivations for the scoring, the Claimant has not demonstrated that the approach taken to scoring her answers (where she relied on transferrable skills, and/or experience gained outside a local authority) was (or might have been) less favourable than for other candidates.[130]Overall, the Claimant received marks for each question from each selection panel member, and the aggregate did not add up to a high enough score to be appointed. However, that was not because the panel members were unwilling to take account of whether she had transferrable skills, and it was not because, they were less willing to take transferrable skills for the Claimant into account than for other candidates. It was because, even though skills, experience and knowledge gained 25 of 31 outside a local authority could be taken into account, the Claimant did not satisfy the panel members that she met the criteria to be scored more highly. 9.4.5 - Failed to score her answers to Q1, Q2, Q3, Q5, Q6, Q7 appropriately i.e. (scored her too low).[131]The claimant has failed to demonstrate that the respondent failed to score her answers inappropriately. That is so, even taking account of the burden of proof provisions, and the need for us to be willing to consider whether the panel members might have been unconsciously motivated to score her lower (because of race) than other candidates.[132]We have looked at the scores (and notes of answers) for the Claimant and the other candidates. We have paid particular attention to C8, as it was C8’s answers that were the focus of more cross-examination and submission points than the others.[133]There is always going to be some element of subjectivity in deciding what particular mark to give to a particular oral answer to questions of the type that were put during these interviews. As we have said already, the 3 panel members did not give identical marks to the Claimant, and nor did they give identical marks to the other candidates. The 2 panel members who gave evidence to us expressed the opinion that it is precisely because there is some element of subjectivity, and some variation between what different people might think is (say) a “3” or a “2”, or say a “1” or a “0” that the Respondent has 3 person panels, rather than a single decision maker.[134]The Claimant has failed to prove that any of the scores given for any of her answers would have been higher if she was not Eastern European.134.1 Overall, not counting the assessment, there was the potential for each interviewer to give seven marks for each of the seven questions to each candidate.134.2 There was, there was rarely complete unanimity on the score to any candidate for any question.134.3 The variation in the Claimant’s scoring for each question, between panel members, seems to us to be in line with that for other candidates.134.4 Just because one (or even two) panel members has scored a particular answer more highly, then it does not follow that that higher score was objectively correct. The same argument could just as easily be applied in reverse. That is, that the lower score was objectively correct, and the other score (or scores) were objectively the ones that were out of line. Rightly or wrongly, the panel had not – before the interviews – sought to agree model 26 of 31 answers that all panel members would mark to, and nor did they, after the interviews, seek to discuss and moderate each others scores. It had been decided (for all candidates, not just the Claimant) that a simple aggregate of each panel member’s scores would be used.[135]There was one mark which we scrutinised particularly thoroughly. That was TN’s decision to give a zero for Q5 when the other two panel members each gave a 1. The criteria were that a “0” would only be given if the candidate “did not meet the criteria at all”.135.1 Our opinion is that there is possibly more room for an objective assessment of the threshold between a “0” and a “1” than there is for between a “1” and a "2” or a “2” and a “3”.135.2 As mentioned in the findings of fact, TN gave (even ignoring the Claimant’s case) more zeroes than the other panel members. Furthermore, (even ignoring the Claimant’s case) there were other examples of one panel member giving a zero without the others necessarily agreeing.135.3 In relation to the Claimant’s actual answer to Q5, based on the notes made by the other interviewers, it seems likely, that the claimant did seek to make clear that she was talking about somebody who had a disability (or, at least, someone who arguably had a disability subject to the “long-term” part of the criteria being satisfied, and that the Claimant understood the requirement for, and tests for, whether the “long-term” part of the criteria being satisfied).135.4 On balance of probabilities, the Claimant made clear that the client she was talking about was not clinically vulnerable and had not had mental health issues previously (ie had not been “disabled” previously), but had now had an onset of symptoms. It seems likely that TN was in error in concluding that the Claimant had used an example of a client who did not (or did not potentially) meet the definition of disability in EQA. We also note that he made no mention that the claimant had specifically referred to EQA, which both the other interviewers noted she had done.135.5 TN also did not make reference to the fact that the claimant had given an example of how she would make adjustments for somebody who had a hearing impairment.[136]For Q5, the other two interviewers gave the claimant a “1” for that question, and TN gave a zero. In line with what was deemed to be a “part met” for other questions and for other candidates, TN’s mark appears to be harsh. A “1” would have been more consistent. There is, however, no fact from which we could conclude that the reason TN recorded her answer as he did, and/or the reason that he marked it as he did (“0”) was anything to do with the Claimant’s race. 27 of 31[137]It is possible that his notes for this answer were due to a momentary lapse of concentration on his part, or it is possible that he genuinely thought that the Claimant was failing to address the question (the introduction to which had referred Hackney being an ethnically diverse borough, even if the remainder of the question potentially invited comments about all aspects of equality and diversity). In any event, as we have said already, there were differences in marking between panel members for all questions and all candidates. The fact that this one mark (TN’s for the Claimant’s question 5) seems potentially on the harsh side is insufficient to make either this mark in particular, or the Claimant’s scores more generally, seem suspicious.[138]It is not our decision that the claimant's answers have been marked down for reasons connected to race. We acknowledge that the absence of a model answer system creates a situation whereby we cannot – even in theory – make a finding that, according to the marking scheme, the Claimant has objectively received a score which was too low. This is a flaw in the Respondent’s process, but not one which was connected to the Claimant’s race. For avoidance of doubt, we do not believe that the panel decided to avoid creating a model answer system in order to facilitate discrimination and/or to hinder outside scrutiny. 9.4.8. Give her feedback which said that the Claimant was not good enough to be appointed, and needed to improve 9.4.9. Give her feedback which inaccurately and/or incompletely described the actual answers which she had given during the interview 139. 9.4.8 is factually accurate (subject to the fact that “needed to improve” was in the context of saying that if the same job came up again in the future, there were particular parts of the required criteria that the Claimant would have to focus on showing that she met if she wanted to be appointed).[140]However, 9.4.9 is not factually accurate.[141]The feedback the claimant got from TN was much briefer than the later feedback from MA. The initial feedback focused on potentially assisting candidates by highlighting some points which (in TN’s opinion) needed to be addressed in the future if there was another interview for a different, but similar, vacancy.[142]MA’s feedback was much more comprehensive and detailed. MA’s feedback was in response to the Claimant’s complaints, which included her complaint about TN’s feedback. However, the purpose of MA’s feedback was not to provide a verbatim record of what the claimant had said during the interview process. Rather MA’s feedback was intended to highlight some of the things, the claimant had said, and to explain why those things had led to particular marks being given for those questions (rather than a higher mark). 28 of 31[143]MA’s feedback was sufficiently accurate and complete for the purposes for which that feedback was given. It was the Respondent’s intention that MA’s feedback would demonstrate to the Claimant that it had responded to the claimant's request for further consideration of the non-appointment, and her remarks about having been dissatisfied with the first set of feedback given to her by TN.[144]Clearly, had the Claimant been considered by the Respondent to have been an appointable candidate, then the feedback (if any had been requested, and if any had been given, in that hypothetical scenario) would have been different.[145]The evidence presented at the hearing did not demonstrate that there was any actual comparator.[146]A hypothetical comparator (for the treatment itemised in 9.4.8 and 9.4.9) of the list of issues would have to be someone who was not Eastern European, but who had applied for the job, been unsuccessful, who had asked for feedback, and who had given the same answers at interview that the Claimant gave.[147]There are no facts from which we could conclude that such a hypothetical comparator would have been treated differently than the Claimant. The contents of the feedback and the manner in which it was given was not given more harshly than it would have been given to someone whose circumstances were the same as the Claimant’s (including not having been successful) but who was a different race. 9.4.11. Failed to investigate her complaint about non-appointment 9.4.12. Failed to reconsider the decision about non-appointment[148]In relation to 9.4.11 and 9.4.12, based on the evidence presented in the Tribunal hearing, there are no actual comparators. We have not heard evidence of specific and detailed examples of anyone (who was not Eastern European, or at all), other than the Claimant, who sought to complain about, or challenge, their nonappointment (either to this job, or any other job).[149]We have already set out about what the Respondent did on receipt of the Claimant’s complaint. Nobody seems to have decided that either a formal complaint outcome letter (in accordance with any complaints policy) or a formal grievance outcome letter (in accordance with any grievance policy) would be sent. There was, therefore, no formal right of appeal granted to the Claimant if she was dissatisfied with such a hypothetical formal outcome letter.[150]What the Respondent did do was seek to ensure that the Claimant received feedback from another panel member (MA) given that she was dissatisfied with what TN had supplied.[151]What the Respondent did not do is: 29 of 31151.1 appoint any independent third party (that is an employee who had not been on the recruitment panel) to investigate the events in question.151.2 change its mind about the decision that no offer of appointment would be made to the Claimant.[152]Based on the evidence presented to us, and the facts which we have found, we have no reason to conclude that these decisions or omissions would have been different for a hypothetical comparator of a different race.[153]It is not factually accurate to suggest that the Respondent did nothing at all. Ms Grayley asked questions of MA; Ms Sarulakis followed up with Ms Grayley to check that the agreed course of action (that MA would contact the Claimant and provide additional feedback) had been carried out; MA confirmed in writing to senior employees that she had given the feedback. This second round of feedback did go further than just (for example) sticking to the one round of feedback required by the recruitment procedure.[154]Returning to the overarching complaint about non-appointment (set out in paragraph 9.4.1 of the list of issues), there are no facts from which we could conclude that the Claimant has been treated less favourably than an actual comparator.[155]We are not persuaded that the 6 successful candidates are “actual” comparators.155.1 As per the findings of fact, the Respondent had decided that there was a cut off point of around 32. Regardless of whether it was exactly 32, the Claimant had scored lower than the “appointability” threshold. In that respect, the Claimant’s circumstances were not the same as the 6 candidates who were offered jobs.155.2 We were not persuaded (and, it was not argued) that the Claimant gave (almost) identical answers to another candidate, but was scored lower. The fact that she gave different answers meant that, in that respect, her circumstances were not sufficiently similar.[156]The panel’s conscious reasons for the decisions that they made were that they had drawn up questions which they believed would give candidates the opportunity to demonstrate their suitability measured against the selection criteria for the posts. Their conscious thought processes were that they wanted to score the answers in such a way as to identify those candidates who were appointable (and those who were not) and, to the extent necessary, would rank the appointable candidates based on merit.[157]We have discussed some specific arguments and issues already, when addressing the other subparagraphs of 9.4. However, in summary, we accept the 30 of 31 evidence of MA and VC that their marks were not consciously affected by race; the evidence does not demonstrate that TN’s marks were consciously motivated by race either.[158]There are no facts from which we could conclude that a hypothetical comparator, who was not Eastern European, but who gave similar answers to the interview questions (and who did a similar presentation to the Claimant) would have been scored higher.[159]There are no facts from which we could conclude that a hypothetical comparator, who was not Eastern European, but who scored 30, would have been appointed.[160]There are no facts from which we could conclude that a hypothetical comparator, who was not Eastern European, but who was not offered appointment initially would have been offered the job following a request for reconsideration (either by the route of the marking being re-done, and a higher score allocated, or else by the route of a decision being made to lower the pass mark, or by a decision of a senior person to step in and countermand the decisions of the selection panel, or by any other method).[161]So, for those reasons, all the complaints of direct race discrimination also fail.