London Borough Of Ealing v Singh [1993] UKEAT 370_91_1205

EAT
London Borough Of Ealing v Singh
[1993] UKEAT 370_91_1205 · 1993-05-12
MR JUSTICE WOOD (PRESIDENT) Mr Singh is of Asian origin. On 17th March 1989 he saw an advertisement in the "Planning" magazine, for a senior planning officer in the London Borough of Ealing. He obtained the "person specification". He applied on 4th April. He was shortlisted and on 19th April invited to interview. There were only two applicants, the other Miss L was white. The interviews took place on 8th May. It had been planned that the interviewing panel would consist of three, Mr Kirby, Miss Taylor and Mr Khosla. He was black; the other two were white. At the actual interview Mr Khosla did not attend and Miss Taylor took the chair. Mr Singh was interviewed first.On 1st June he received his letter of rejection. During the latter half of 1989 correspondence passed between him and the Borough concerning his rejection. He also wrote to a Mr Sharma, who was a councillor.On 20th December 1989 Mr Singh issued an Originating Application alleging racial discrimination under S.1(1)(a) (direct discrimination) and S.4(2)(c) of the Race Relations Act. This would presumably refer to the phrase "subjecting him to any other detriment". The main allegation reads:
"I attended the interview on the above date as arranged. The panel consisted of two members (both white) one Miss Taylor and Mr Kirby. I was concerned about this because there was no equal opportunities or race adviser officer present which should have been in line with the London Borough of Ealing's equal opportunities employment policy."
The hearing took place over six days, during July and August 1990, and March 1991, before an Industrial Tribunal sitting at London (North). By a majority it decided in his favour. The Borough appeals.The Tribunal identified five possible acts of racial discrimination. They rejected the suggestion that it was an act of racial discrimination to shortlist Miss L; that the marking was tainted by racial discrimination or that Miss Taylor had made a racist note.The two findings of racial discrimination with which we are concerned are contained in paragraphs 18(2) and 21(5). They read:
"18(2) Going on with the interviews without Mr Khosla. We are divided on this matter. The majority take the view that this was racially discriminatory: the minority (Mr Booroff) takes the view that it was not. The majority place weight on the Respondent's Equal Opportunities Manual at paragraph 8.6:
"All attempts must be made to ensure that interview panels reflect the differences in Ealing and the priority groups covered by the Equal Opportunities Policy - panels must be representative but all efforts should be made to keep the size of panels small."
And the majority place weight on the words in the Introduction to the Respondent's Equal Opportunities Policy:
"The Council is committed to the formulation and effective implementation of an Equal Opportunities Policy in its employment practices and services provision. This commitment is based on the recognition that in our society groups and individuals have been and continue to be subjected to systematic and virulent discrimination purely on the grounds of race, sex, sexuality and disability."
The majority follow the guidance in Khanna v. Ministry of Defence [1981] ICR 653, EAT, and are not satisfied by the explanation given by the Respondent that Mr Khosla was in another meeting. Miss Taylor said in evidence that Mr Kirby went to the meeting at which Mr Khosla was present and reported that Mr Khosla could not leave. Mr Kirby's own evidence did not refer to this. He just said that they decided to go on, subject to the approval of personnel. We follow Mr Kirby's evidence; he must know better than Miss Taylor what he did and did not do. At all events we find that very slight if any efforts were made to get Mr Khosla. To go on without him violated the Respondent's own Manual and Policy. They could have postponed the interviews to the afternoon or until another day, or at least asked the candidates for their views. We are pleased to find ourselves in accord with a Manchester industrial tribunal who decided similarly in a case called Harris v. Manchester City Council reported in the Equal Opportunities Review, Issue No.6, Winter 1990. The majority think that if two black people had been left to interview a white Applicant without their white colleague they would not have gone on. Mr Booroff thinks that the whole atmosphere in the Ealing Council is such that racial discrimination is extremely unlikely and he is satisfied by the explanations given for the absence of Mr Khosla."...
"21(5) No credit being given to the Applicant for his skills in the stated languages. We are divided on this point. The minority is Mr Booroff. The majority take the view that this was an act of racial discrimination. The advertisement cites the languages and says that they would be useful. The evidence is that this point was put in the advertisement to attract candidates from minority groups and that the point would only arise if two candidates were otherwise completely equal. The majority are not satisfied by either of these explanations. The languages are an additional point separate from the reference to "Black and Asian people." If they are useful some weight should be given to them in the selection process. At the end of the interviews when it was found that Miss L was ahead, Mr Kirby and Miss Taylor should have discussed whether his language skills should put the Applicant ahead. The majority think that if a white person had had the language skills it would have been given some weight. Mr Booroff dissents. He too finds unsatisfactory the point about attracting candidates. But he accepts the point about applying the language point only in the event of an equality on all other points."
We were referred to the well known case of Meek v. City of Birmingham District Council [1987] IRLR 250 and in particular the part of the judgment of

Lord Justice Bingham as he then was, which reads:

"... the decision ... must contain an outline of the story which has given rise to the complaint and a summary of the ... basic factual conclusions and a statement of the reasons which had led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. there should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; ..."
We turn to analyse the decision before us.It has been pointed out that that part of S.4 - S.4(2)(c) - upon which Mr Singh relied in his Orginating Application is not applicable, as S.4(2) applies to applicants already in the employ of a respondent. The only relevant part of S.4 is S.4(1)(b) the "arrangements made". That is a wide concept. We have approached the submissions in this case on this basis. This needs to be emphasised as the Tribunal do not refer to a relevant section in Part 2 of the Act.Our attention has been drawn to two cases where S.4(1) of the 1976 Act or S.6(1) of the Sex Discrimination Act 1975 have been considered. The first is Brennan v. J H Dewhurst Ltd [1984] ICR 52. In that case the applicant had seen an advertisement in a local paper for a butcher's assistant, and had applied for the job in accordance with the arrangements made by the district manager. She was interviewed by the manager of the shop. At the conclusion of the interview he told her to telephone at the end of the week, because the district manager might already have filled the vacancy. When she rang the shop manager, he told her that the job had been filled. In fact the district manager had decided that the shop's summer trade did not warrant the appointment of a butcher's assistant. The following week she saw the job being advertised in the Jobcentre and concluded that she had been refused the job because she was a woman. She complained to an Industrial Tribunal of unlawful sex discrimination. The main issue for the EAT was whether in order to satisfy S.6(1)(a) the applicant was required to show that the discrimination was the making of the arrangements as opposed to the effect of the arrangements made.

(a) , (b) and (c) and then concludes:

"That we think is some indication that what the legislature was looking at was the discriminatory operation of the arrangements, not the discriminatory making of those arrangements."
In two further passages on p.57 the learned

judge says:

"The policy of S.6 is to ensure that all stages in applying for and obtaining employment is on an equal footing with a man in her ability to obtain the job."
further on:
"... Therefore, we think we are entitled and, indeed, bound to hold that the provisions of S.6(1) are satisfied if the arrangements made for the purpose of determining who should be offered that employment operate so as to discriminate against a woman, even though they are not made with the purpose of discriminating."
The other case, more recently, is Qureshi v. London Borough of Newham [199]] IRLR 264, CA . This was a case brought under the Race Relations Act, S.4(2)(b) was considered. Section 4 is the same as S.6 under the 1975 Act. Mr Qureshi was of Asian origin. He was head of his school's physics department. At the end of 1987 he applied for the post of head of science department. There were 12 applicants of whom 4 included Mr Qureshi were shortlisted. The others interviewed were of UK and Irish origin. The interviews were conducted by a panel of 6, which included the Headteacher, the deputy, the senior deputy Headteacher, the senior Science Education Adviser to the Borough, the Chairman, the deputy Chairman of the Governors and a Race Equality Adviser. Several days prior to the interviews the Science adviser met the Headteacher to discuss what should be put into Mr Qureshi's reference. The Borough had a policy of "open references" under which an employee was supposed to be permitted to see any reference and given the opportunity to challenge it. In this case the reference was not produced until the last minute and contained three aspects which were adverse to Mr Qureshi. Further the Borough's Equal Opportunities policy was not complied with in several respects. By way of example the full job specification and a person specification were not provided for the panel, and the interviewers failed to keep adequate records at the interview. Moreover, there was a failure to provide the necessary monitoring statistics and the members of the interviewing panel had not been trained. Mr Qureshi came second and complained of unlawful racial discrimination.This case is helpful because it is dealing with an alleged breach of equal opportunities policy. The Industrial Tribunal drew an inference that there was racial discrimination in relation to those matters which arose in the case and fell to be considered under S.4(2). The basis of that finding was that there were a number of matters which might possibly give rise to a presumption of disparity of treatment and they referred to the access to opportunities for promotion in the following terms:
"(a) There is an equal opportunities policy which presumably is intended to be applied to everyone irrespective of race or colour. It can therefore be assumed that a person who was an internal candidate for a job and who was of a different racial origin than Mr Qureshi, would be dealt with in accordance with the requirements of that policy. But we find that in various respects mentioned in our factual findings the requirements of the policy were not followed in the case of this appointment. (b) The way the reference in respect of Mr Qureshi was brought into existence and the (as it seems to us) unjustifiably negative comments in relation particularly to the need for enhancement of knowledge and the handling of personal relationships, and the failure to give him an opportunity to challenge these comments, fall so far short of what a fair and open reference policy requires as to justify an assumption that they would not have been generally applied, and therefore would not have been applied to a person of a different racial group.

..."

The Industrial Tribunal in the case of Qureshi reached a conclusion as follows:
"We accept that the failures to implement in certain important respects the details of the equal opportunities policy could be said to apply to all the candidates, and not only to Mr Qureshi; nevertheless these details are designed particularly to protect and equalise the chances of a person from an ethnic minority, and the failures are more likely potentially to affect adversely Mr Qureshi than the three white candidates."
In commenting upon this last passage,

Lord Justice Leggat says this:

"But that, in my judgement, misses the point. It is not with the effect of treatment but with equality of treatment that the Act is concerned."
The Employment Appeal Tribunal had criticised the finding of the Industrial Tribunal in that it did not contain any finding of fact which amounted to a finding, as opposed to an assumption, that there would have been different treatment of a person of a different racial group. And indeed, the EAT had said:
"This, it seems to us, is infected with the same defects, namely the assumption that a departure from policy leads necessarily to discrimination, as opposed to a finding that a person of different origin would actually have received different treatment."
Lord

Justice Leggatt agrees with those criticisms and summarises his own views in paragraphs 26 and 27:

"Stripped to its essentials, the approach of the Industrial Tribunal went, as it seems to me, like this, and it did so in both the subparagraphs (a) and (b) of paragraph 8, which I have read. The equal opportunities policy, including the policy relating to references, was intended to apply generally, and indeed equally. Therefore,it is to be assumed that the policy would have been applied properly to a person of different racial origin from Mr Qureshi. The policy was not applied properly to him. Therefore there was discrimination against Mr Qureshi.
The defect in that process of reasoning seems to me to be the assumption that the policies would have been properly applied to persons of different racial origin from Mr Qureshi. The failures to which the Industrial Tribunal invited attention were, as they found, not deliberate. There is, therefore, in my judgement, no jurisdiction for assuming, still less for inferring or finding as fact, that, because the policies were not applied to Mr Qureshi, the failure must have been due to discrimination. In the absence of any hint of prejudice on racial grounds, the more natural inference from a failure in relation to one person is that there would have been failure in relation to others, if not to all. There is absolutely no warrant for an inference that others would not have suffered from the failures of which Mr Qureshi was the victim, or that he was so ... on account of any discrimination on racial grounds. Incompetence does not, without more, become discrimination merely because the person affected by it is from an ethnic minority."As has so often been made clear, discrimination cases are inevitably delicate. The applicant faces difficulties in proving the case, whilst respondents are faced with the possible stigma of being stamped as racist. We must do all we can to eliminate discrimination and yet it is important to be aware that imprecise and sweeping allegations, resulting in dismissal of a claim, can run counter to the efforts of all those who are intent on eliminating such practices.The procedures by way of questionnaire and disclosure of documents can be regarded as a voyage of discovery which ends there, but thereafter it seems to us to be essential in the interests of all parties and indeed to the clarity of approach for the Industrial Tribunal itself, that the factual issues to be decided are clearly defined. The applicant then knows the matters upon which to concentrate and the respondents know the case which has to be met.The two areas in which the arrangements are criticised are first, the composition of the interviewing panel and secondly, the failure to give Mr Singh credit for his language skills.

Composition of Panel

The essence of this criticism is that the Respondents had "violated" their own Manual and Policy statement; that there was no explanation for the absence of Mr Khosla; nor any attempt to obtain his attendance; and that no reason was advance why the interviews should not have been postponed. The majority also add "that if two black people had been left to interview white applicants without their white colleague they would not have gone on".

Languages

The majority stress that the languages were an additional point in the advertisement and that if they were useful, some weight should have been given in the selection process. They felt that at the end of the interviews discussion about language skills should have been considered to see if that would put Mr Singh ahead of Miss L. The majority also add "if a white person had had the language skills it would have been given some weight".Qureshi (supra) shows that the mere breach of the policy will not of itself be a sufficient finding of primary fact from which an inference of discrimination can be inferred, although it seems to us that if it is a breach of a mandatory rule then that breach may well require explanation. We also have in mind the guidance given by Neill LJ. in King v. Great Britain China Centre [1992] ICR 516 , 528H.In approaching the first main issue the Tribunal needed to ask themselves, what were the arrangements of which complaint is made - the primary facts? Did those arrangements operate so that Mr Singh suffered less favourable treatment - inequality of treatment - than did his comparator in similar circumstances? (S.3(4)). It is the inequality of treatment, not success or lack of success, which is relevant and the comparison must be based upon facts not assumptions. Thereafter they must ask whether that inequality of treatment was because of race, would Mr Singh have been so treated but for being a member of an ethnic minority?So far as the languages were concerned it is necessary to examine similar questions but in particular it is necessary to examine the relevance of language in the criteria to be considered.We turn therefore first to examine the equal opportunity policies of the Borough.The Borough has an "Equal Opportunity Employment Policy Document". It expresses a firm commitment to equal opportunities and one of its aims is to ensure that no job applicant is subjected to discriminatory treatment. The Borough also has an Equal Opportunities Manual for selection, recruitment and promotion (amended June 1988). Paragraph 8 of that substantial document is headed "The Selection Interview". Paragraph 8.6 is repeated in the Decision at paragraph 18(2). It is not mandatory. Mrs Ullah, the principal personnel officer, explained in evidence that in accordance with the Council's policy it was desirable to have representative panels and it was rare to have an imbalanced panel. In over 50% of the instances the panel would be balanced. She emphasised that a representative panel did not necessarily mean a panel of good interviewers, and that the present interview process was in accordance with the Council policy.In 1988 the Borough went further and introduced a procedure for the attendance at recruitment or selection panels of Equality Officers. The recommendation was that the agreed procedure, then introduced, should be widely available to ensure that the role of equality officers was clearly understood. The introduction read:
"It is not just enough to hope that rules and procedures governing the recruitment of staff will by themselves ensure equality of outcome. It is necessary to ensure by a combination of mechanisms that the letter and spirit of the rules and procedures are being implemented. Direct involvement of equality officers in the overall selection process is one such mechanism. It is important though to clarify how this is done and how to resolve potential conflict and disagreements"
. The document then continues to explain the situation and paragraph 5 is headed "Selection Interviews". Under that heading the following is to be found:
"Normally no more than one equality representative will attend any interview. ... The equality representative will be there in relation to all aspects of equality issues, not just those from the unit in which they work."
The document also continues to cover various other aspects of the importance of the Equality Officer and his or her participation at a panel. Speaking of the interview on 8th May Mrs Ullah told the Tribunal that Mr Kirby had asked the advice of his personnel section and that section had sought advice of the Equal Opportunities Unit. The advice was that the job share post was very difficult to fill, that the two remaining members were very experienced and one was an equalities officer. Postponement would mean losing one of the candidates or possibly two and therefore it should go ahead. Mrs Ullah was in agreement with that.It was to the absence of an equalities officer that Mr Singh addressed his case initially. The Industrial Tribunal does not deal with this, it raises a point on the absence of Mr Khosla. Miss Taylor was trained and experienced as an equality officer and in her role of an equalities co-ordinator was, in effect, a supervisor of equality officers.Turning to paragraph 18(2) itself Mr Geldart submits - first, that Mr Khosla was in another meeting and that the evidence so indicates. Secondly, that although it is correct that the recollection of Mr Kirby and Miss Taylor differed, it was never put to them that it was relevant to the issue of discrimination. Thirdly, that to continue with the interview did not "violate" the Borough policy; it was not a mandatory provision and Miss Taylor was a senior Equality Officer. This decision was taken after consideration of the alternatives and in good faith as in the best interests of the Authority and both applicants for the post. Fourthly, the decision not to adjourn was given in evidence and the Tribunal did not reject it nor indeed examine it apparently in its decision. Lastly, that there was no evidence or finding of fact to support the phrase "the majority think that if two black people had been left to interview a white applicant without their white colleague they would not have gone on", nor that there was inequality of treatment.We agree with these submissions and it follows that for a number of reasons the approach to the issues before it as indicated in this paragraph of the decision, is in our judgment legally flawed and the appeal must succeed on the first issue.Turning to the issue of languages - the person specification is the basic document. It has only one section - "Essential". Desirable requirements are no longer to be used. This is found in paragraph 3.5 of the Manual. Paragraph 3.10 deals with skills, abilities and knowledge and includes such requirements as communication skills which should, if included, be clarified as to their purpose with whom and at what level. Any language requirements are to be defined and included in that way. Paragraph 6.11 stresses that no attempt must be made to select applicants by grading their experience or qualifications. Either the applicants do or do not meet the minimum criteria. Increasing the levels of experience or standard of qualifications raised risks of indirect discrimination and is not to be allowed. Paragraph 8.8 stresses that "interview questions (selection criteria) must be drawn on the basis of the person specification alone ". (Our emphasis)Under "Essential Requirements" in the person specification, there is included in paragraph 9 "Ability to develop contacts with, and consult, community organisations and to deal with the general public on planning issues, orally and in writing".The advertisement included a phrase "experience working with community groups would be an advantage and a knowledge of community languages (Punjabi, Urdu, Gujarati, Hindi) would be useful.Mr Kirby obtained the job description, decided that it did not need changing, wrote the person specification from the job description, organised the panel, the timetable and drafted the advertisements. He took these to a regular meeting of the recruitment panel which included three equality officers, in fact three coordinators who are senior in that ranking. Miss Ullah, the personnel officer, did not take the view that languages were appropriate as a criterion for a senior planning officer post. Miss Taylor did not regard it as an essential requirement and indeed it seems to us that the Industrial Tribunal did not so find. It was not part of the essential requirements in the person specification. The witnesses for the Borough said that it would only be if the candidates were equal at the end of the interviews, that there would have been a discussion of the value of languages.It seems to us that in designing its policy and the relevant job description the Authority arrived at a carefully balanced judgment of the weight to be given to the skills of communication and foreign languages. If communication skill in English as a mother tongue is made unnecessarily essential, this could be indirectly discriminatory to members of the ethnic community; if ability to speak Asian or other foreign languages is unnecessarily essential, this could be indirectly discriminatory to other applicants. This appears to have been a deliberate policy by this Authority designed to meet a sensitive issue and in our judgment the Tribunal erred in law in concluding that the interviewing panel effectively discriminated against Mr Singh in failing to give weight to his language skills in a manner which would have breached the policy of that Authority.The procedure therefore can be summarised as follows: First anyone meeting the essential requirements was entitled to an interview. Secondly, that questions could only be based on the essential requirements in the person specification. Thirdly, if the candidates were equal then there would have been a consultation with personnel concerning languages but in that case there would have had to have been a redraft of the person specification, a redraft of the questions in order for the assessment to take place and there would need to have been some form of testing under the provisions of the Manual in order to maintain a balance. There would need to have been a re-advertisement and the whole process in effect would have to be renewed.The criticism which is made of paragraph 21.5 itself, is that the Tribunal has failed adequately to assess the procedure and policy and to examine the evidence put forward by the Borough. Unless 'language' was a necessary criterion, it would have been a breach of the procedure to have considered it and indeed the problems which we have envisaged above would flow from that. The same comment and criticism is made as was made of paragraph 18 of the phrase "the majority think that if a white person had had the language skills it would have been given some weight." There is no finding of fact to support this and it is pure assumption.It follows that on this issue also the Appellants must succeed. The appeal is therefore allowed and this case is remitted for a rehearing before a differently constituted Tribunal.