Brighton Borough Council & Anor v Richards [1993] UKEAT 431_92_1407

EAT
Brighton Borough Council & Anor v Richards
[1993] UKEAT 431_92_1407 · 1993-07-14
MR JUSTICE TUCKEY : After a three day hearing, in March and April 1992 an Industrial Tribunal in Brighton found that the Appellants, Brighton Borough Council ("the Council") and Mr Bishop, had discriminated against the Respondent, Ms Richards on the ground of her race, and so declared. The Appellants appeal to this Tribunal on grounds which we will refer to in a moment. The consequence of that declaration was that the Tribunal ordered the Council to pay £3,000 compensation to the Respondent. No point arises about that order on this appeal.Essentially the Appellants' argument is that the findings of the Tribunal were perverse.The facts, which were largely not in dispute, are as follows. The Respondent alleged that she had been discriminated against on the ground of her race when she was not successful in her application for a job as an information officer in the housing department of the Council. The Respondent is black and of Afro-Caribbean extraction. She was highly qualified and had many years experience for this post which was advertised by the Council in the autumn of 1990.Fifty-five people replied to the advertisement and fifteen, including the Respondent and the successful candidate, were short-listed for interview. The Respondent's interview took place in December and was carried out by a panel of three. Those three were Mr Bishop, who was and is the departmental personnel officer in the Council's Housing Department, Ms Rowlands, who was the manager of Policy Research & Information, and Mrs Kerr who was the manager of the Publicity, Information & Records Section in the Housing Department, who was to be the successful applicant's direct line manager. Mr Bishop chaired the panel.For the purpose of advertising the job a job specification or criteria had been drawn up by Mr Bishop and a questionnaire had been prepared for the those who were to be interviewed. The job specification listed essential requirements and desirable requirements for the post on offer. After interviewing all fifteen short-listed candidates the panel had a discussion as to which of the short-listed candidates most nearly met the requirements for the job and at this stage it emerged that the Respondent and the successful candidate, who was white, were the front runners and therefore the panel had to choose between these two. No note was made of the discussion which resulted in these two emerging as the front runners nor, more importantly, was any note made of the ensuing discussion when the panel had to choose between the Respondent and the successful candidate. They chose the successful candidate.The Respondent discovered informally that she had been unsuccessful although she was notified by letter at the end of January 1991. As soon as she discovered she felt aggrieved because she knew the successful candidate and felt that she had more experience than her. She therefore decided to put in a race questionnaire in accordance with section 65 of the Race Relations Act 1976. She delivered the questionnaire by hand to the Housing Department on 21 February 1991 but did not receive any acknowledgment or reply. She therefore wrote a reminder on 22 April pointing out in her letter the seriousness of the questionnaire and the importance which she attached to receiving answers to the questions which she had posed.The Council then acknowledged receipt of the questionnaire by their letter of 26 April and said that they anticipated that a full response would be given within the next two weeks. That letter was written by Mr Bishop who then had a short absence from work due to sickness which necessitated another letter on 10 May, explaining there would be further delay in dealing with the questionnaire. It was eventually answered by letter dated 21 May.One of the questions which the Respondent had posed in the questionnaire and the one which one would expect she most wanted the answer to was - why was the successful applicant considered to be better qualified than she was? To that question she received the answer that the successful candidate was, in the opinion of the interview panel, "the very strongest against the criteria in the person specification" (ie the job specification to which we have referred). That was clearly not an answer to the question which had been posed. It did not say why. It merely said that they had chosen the best person.The Respondent had by this time made her application to the Tribunal and she pursued her question in a request for Further and Better Particulars of the Council's acknowledgment of her complaint which repeated what had been said in their answer to the questionnaire.She asked for a full and detailed answer to a number of questions including the question:
"Please explain in which areas and in what way the successful candidate:

- met each essential and desirable requirement "more strongly" than myself

- more closely met "the experience deemed essential" than myself

- appeared to be "the very strongest against the criteria in the person

specification".To that series of questions she received the reply that after all the interviews had taken place the panel discussed the interviewers' individual assessments of each candidate and through this process of discussion the panel reached its decision as to who was the strongest candidate against the selection criteria. That is simply repeating what had already been said and was no answer to the specific questions which the Respondent had posed.In the course of the hearing before the Tribunal in March and April 1992 all three members of the interviewing panel gave evidence. It emerged during the course of cross-examination that the reason why the successful candidate was chosen was that the panel members were particularly attracted to her communication and presentation skills. That point was put slightly differently by each of the three witnesses but having been shown the passages in their evidence which deal with this matter we are satisfied that that is an accurate precis of what it was they were saying. So in this way for the first time the Respondent was provided with an answer to the questions which she had been asking.The Council also gave evidence that they had introduced a Race Opportunity Policy in 1987, that this policy included the requirement to introduce a system of monitoring so that they could assess the effectiveness of the policy, the extent to which its objectives were being met and take any necessary action. It emerged that, although the policy had been updated, the Council had not introduced any system of monitoring.The Tribunal considered the matter in accordance with the direction of the Court of Appeal in King v The Great Britain China Centre [1991] ICR 516 where at page 528/529 Lord Justice Neill sets out five principles which he extracted from the authorities to which he had referred earlier in his judgment. Those principles, it is accepted by both parties before us, are the relevant principles to be applied in a case of this kind and it is not now contended by the Appellants that the Tribunal misapplied them. The relevant principles for purposes of this case are the third and fourth principles where Lord Justice Neill says:
"(3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.65(2)(b) of the 1976 Act from an evasive or equivocal reply to a questionnaire.
(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ put it in Noone , "almost common sense".The Tribunal, having reminded themselves of those principles proceeded to apply them. They started by saying that they were well aware that it was for the Applicant to prove her case. They went on to say:
"The applicant basically has felt discriminated against on the ground of her race because the successful candidate was white, and has had very much less experience than she had had. The respondents have admitted that the two finally selected (ie the applicant and the successful candidate) were both strong candidates
On the face of it therefore the applicant has shown that there is a difference in race and she has apparently been treated differently from the successful candidate. Both were said to be strong candidates, and her experience was much greater than that of the successful candidate."So it is clear that, in accordance with the fourth of the King principles, they were making a finding of discrimination and as there was obviously a difference in race this pointed to the possibility of racial discrimination. They then go on to say:
"It is therefore necessary for us to look to the respondents for an explanation, and in so doing we take into account the following matters:"
They then set out in their Reasons five matters which they took into account. We will return to those in detail since the thrust of this appeal is directed to demonstrating the perversity of their findings in respect of those matters but to summarise they were the delay in dealing with the questionnaire, the failure to provide an explanation as to why the successful candidate had been chosen, the fact that no notes were made of the significant stage of the selection process and the failure to monitor the Equal Opportunities Policy.The crunch paragraph of their decision reads as follows:
"Bearing all these matters in mind and bearing in mind the provisions of Section 65 of the 1976 Act, we find that there has been a difference in race, that there has been apparent discrimination and we are not satisfied, in the light of the matters we have listed, by the explanation of the respondents. We therefore draw the inference that there has been discrimination."
At this stage we deal only with the Council's appeal. We will return at the end of our decision to deal separately with Mr Bishop's appeal. Accepting that he had a high hurdle to jump in demonstrating perversity, Mr Supperstone, with his customary skill and courtesy, has mounted a sustained attack on each of the five matters which the Tribunal relied on to reach their conclusion. Perversity has been defined in different ways in different Tribunals. The Respondents invited us to accept, as we obviously do and Mr Supperstone did not dispute, that a decision could only be characterised as perverse if it was not a permissible option open to the Tribunal having regard to the facts which they found. This underlines the height of the hurdle which an Appellant has to mount in a case such as this where no error of approach is relied on.Turning then to the particular criticisms and dealing with them one by one, the first of the grounds relied on by the Tribunal is recorded in their decision as follows:
"The respondents delayed from the end of February until mid-May before replying to the race questionnaire, even though Mr Bishop knew of the seriousness and legal implications of the questionnaire and even though the council has many legal resources available to it. The delay in reply to the questionnaire (apart from a few days at the end when Mr Bishop was ill) has not been properly explained."
Before embarking on a consideration of the submissions which the Appellants make about that finding, it raises a question on section 65(2) of the 1976 Act which the Tribunal as will be apparent from what we have already set out, relied on when making their findings. That subsection reads:
"if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
The reply is a reference to a reply to a race questionnaire.Mr Supperstone says if you look at the way in which the Tribunal expressed themselves, they are only dealing with delay. There is no finding that the reply was evasive or equivocal which is the other part of the subsection and there is no finding as there must be in order to justify any adverse inference that the delay was deliberate and without excuse. Accordingly, he says, this does not advance the case at all. If one can read into the reasoning an implicit finding that the delay was deliberate and without reasonable excuse there was, he submits, no evidence to support such a finding.We are unable to accept those submissions. It seems to us that by referring to the fact that Mr Bishop knew of the seriousness and legal implications of the questionnaire the Tribunal are finding that the failure to reply was a conscious and therefore deliberate decision. There may have been explanations for the failure but it was nevertheless conscious and deliberate. The statement by the Tribunal that the delay had not been properly explained is a finding in clear terms that no reasonable excuse for it had been advanced. We do not think therefore there is anything in the criticism that is made of that finding.Turning then to the second of the matters relied on by the Tribunal. They say in their Reasons:
"We note that both in the questionnaire, in the Notice of Appearance and in the further and better particulars the respondents have not given the full explanation about why the successful candidate was appointed. This they have finally given at a rather late stage in the Tribunal proceedings. The reply they gave originally was merely that the successful candidate "most closely met all the essential criteria". There was no hint of the further explanation, which they have eventually given to us in the Tribunal, that it was the successful candidate's communication skills which tipped the balance. In fact, even in the Tribunal's proceedings this information did not come out as a result of their evidence in chief, but only as a result of cross-examination and in answer to questions posed by the Tribunal itself."
Mr Supperstone submits that that was not a justified criticism of the Council. There was no finding by the Tribunal that they rejected the evidence which the three interviewers gave as to their reasons for choosing the successful candidate and so on analysis this is no more than a further finding of delay, that is to say delay in explaining exactly why the Respondent did not get the job. Furthermore there is no finding that the Appellants' response to the questionnaire was evasive. So this criticism really takes the matter very little further forward submits Mr Supperstone.The Respondent was obviously not being given an answer to the question she most wanted to have answered. The assertion that the successful candidate most closely met all the essential criteria told her nothing about the reasons why that successful candidate had been chosen in preference to her. There was therefore evidence from which the Tribunal could conclude that the Council were being evasive in their answer to the questionnaire and it was perfectly proper for them to consider how the answer had, so to speak, to be dragged out of those involved in the course of the Tribunal hearing. So this was a justified criticism of the Council in our view.The necessity for the Tribunal to say whether they accepted the evidence of the three who had interviewed the candidates is a somewhat delicate question. The conclusion which the Tribunal reached at the end of the day was that they were not satisfied by the Council's explanation. That was the only finding which they needed to make in our judgment.The third matter relied on by the Tribunal was:
"the Council has the resources both financial and manpower to deal properly with a case of this nature, to deal with a race questionnaire within a reasonable time when it is submitted, and to deal properly and fully with requests for further and better particulars and for disclosure of documents."
We have already dealt with the questionnaire and the Further and Better Particulars. On looking at the papers it does not appear that there was any delay in providing disclosure of documents and to that extent the Tribunal may (if they were critical and they do not actually say so in terms) have gone too far but we do not think this undermines their decision in any way. The Council did have the resources to deal with these matters. Mr Supperstone criticises the finding on the basis that it was not a fair point that the Council had had to make cuts and that those involved were busy. We think that is picking at the edges of the problem. This was a finding which the Tribunal, having heard the evidence and seen the witnesses, were entitled to make and we can see nothing unfair about it or the importance the Tribunal attached to it.The fourth matter relied on was that:
"No notes were made of the selection process. It is good practice to make such notes so as to be able to justify a decision to a Tribunal at a later date. Although notes were made of the answers to the questions by the various candidates, there were no notes of the significant discussion between the panel members as to which of the 15 short-listed candidates they preferred, and, more significantly, there was no note of the final discussion as to why the successful candidate was chosen in preference to the applicant."
Mr Supperstone says that this was not a finding from which it was proper to draw any inference of racial discrimination and that in any event the Tribunal should have attached greater weight to such notes as were taken.Again we think that this criticism is picking at the edges and does not approach within measurable distance of perversity. The Tribunal make the point that it is good practice to make notes. We think the crucial point was the absence of any note of the reasons for choosing one of the front runners in preference to the other and we can see nothing wrong in the Tribunal attaching importance to the failure to keep such notes. The presence of fairly full notes of earlier parts of the selection process perhaps made the absence of such notes more significant.The fifth point relied on was that:
"The equal opportunities Policy is still in course of implementation, and monitoring (on which much of the implementation must depend) has not yet been introduced. The equal opportunities Policy was introduced as long ago as January 1987, and yet some 5 years later monitoring has still not been introduced."
Mr Supperstone submits that no inference of racial discrimination can be drawn from such a failure. The omission to implement a policy is neutral and he relies on Qureshi v London Borough of Newham [1991] IRLR 264. Secondly, he says that the Tribunal failed to have regard to the evidence given that the Council did have an Equal Opportunities Policy and specifically that these three interviewers had been trained in equal opportunity assessment. A further point is made that they failed to have regard to the reason for not implementing monitoring which was that cuts had interfered with the implementation of that process.Those again are all argument on the facts. The position is that under section 47(10) of the Act the Tribunal were entitled to have regard to any failure to observe a Code of Practice. The Code of Practice in relation to Racial Equality at paragraph 1.33 says:
"It is recommended that employers should regularly monitor the effects of selection decisions and personnel practices and procedures in order to assess whether equal opportunity is being achieved."
That is a matter of commonsense. It is not enough for someone to preach; they must discover whether they are practising what they preach. We can see nothing wrong with the Industrial Tribunal taking that point into account in the circumstances of this case.We have had to go at some length through each of the reasons and the criticisms for them. In summary we reject the argument that these findings and the conclusions which stem from them were perverse and so far as the Council are concerned their appeal is dismissed. In the main part of their Reasons, dealing with liability, the Tribunal did not deal with the position of Mr Bishop personally, although of course he is referred to in the history which we have recited. In dealing with remedy at the end of their award they said, having indicated that they proposed to make a declaration under section 56 of the Act;
"The declaration is against both the Brighton City Council and against Mr Bishop, who is cited as a separate respondent. He was part of the panel and one of the officers through whom the respondents acted."
That does not indicate to us that the Tribunal applied their minds separately to the question of whether Mr Bishop was personally guilty of discrimination. Obviously it is a serious matter for someone in his position to have such a finding against him. One could say that, although he may have had greater responsibility, each of the other two interviewers also had some responsibility since the act makes it clear that individuals as well as their employers may be guilty of discrimination.Having regard to the fact that the reasoning which led the Tribunal to conclude that they were not satisfied with the Council's explanation included matters for which Mr Bishop could not in any way be held personally responsible, we think it was incumbent upon the Tribunal to consider his position separately. They appear not to have done that and to have gone from the conclusion that the Council was guilty of discrimination automatically to the conclusion that Mr Bishop, as he was part of a panel, was likewise guilty. We think that was an error of law on their part and accordingly there is a basis upon which we can interfere with that part of their decision. We should say of course that there was clearly material upon which the Industrial Tribunal could have reached the conclusion which they did in Mr Bishop's case but it does not appear that they addressed the question separately as we think they should have done.For those reasons, and particularly in the light of the serious consequences which such a finding if it remains against Mr Bishop might have upon his future, we think it would be right to allow this appeal and so his name will be deleted from the declaration which the Tribunal made. We should add that Mr Meeran (for whose very helpful and succinct submissions we are grateful) indicated that although there was a legal basis for the Tribunal's conclusion, he was not concerned to ensure that the declaration against Mr Bishop remained since his client had no personal feelings against Mr Bishop in the matter.