Isonor v Department Of Social Security [1993] UKEAT 52_92_1501

EAT
Isonor v Department Of Social Security
[1993] UKEAT 52_92_1501 · 1993-01-15
MR JUSTICE KNOX: This is an appeal by Mr Isonor from a decision of the Industrial Tribunal at Birmingham which sat on the 23rd, 24th September 1991 and on the 17th October 1991 and decided unanimously that the application made by Mr Isonor under the Race Relations Act 1976 should be dismissed.The Originating Application was not very explicit as to precisely what Mr Isonor's complaint was, beyond the fact that it was in respect of racial discrimination, which appears on the first box in the Originating Application. The details are given of his complaint in paragraph 10 on the second page. They read as follows:
"Despite having 11 years relevant experience as an Administrative Assistant between 1974 and 1985 at Cadbury Schwepps, Bournville, Birmingham, I was not invited to an interview for the post, the subject of my complaint. In view of this relevant experience I believe that I was denied even the opportunity to compete for this job on the grounds of racial discrimination. I am a black Nigerian and believe this to be self evident from my name and place of birth."
In fact, that simply was not right factually because, he was invited to an interview for the post. The post was one of Administrative Officer for the Respondents, the DSS at Poplar Road, Sparkhill, Birmingham Benefit Office. The circumstances in which his application for that job was ultimately unsuccessful in July and August 1990 were briefly as follows. There were in fact seven vacancies, there was a minimum standard that had to be achieved and the evidence accepted by the Industrial Tribunal was that only four applicants did achieve that standard. So that there never was any question of selecting one candidate for appointment rather than another, what there was, was a question of selecting candidates who were sufficiently qualified to be offered the job at all.Mr Isonor had adequate Nigerian educational qualifications to exempt him from the educational test, notably in English language, which was a requirement for those who had lesser educational qualifications.The evidence shows that a series of administrative errors were committed by the lady, Miss Smith, who was in charge of the preliminary work in dealing with the several applications, at least as far as Mr Isonor was concerned. She, the Industrial Tribunal found, was responsible for handling the administration relating to the applications being received. Mr Isonor was sent a form which he filled in, after he had first made contact when he found that a job was, in principle, available, and on that form he did not identify whether he was applying for the higher post of Administrative Officer or the lower post of Administrative Assistant, and the first thing that happened was that he was asked to clarify that, which he duly did by saying that it was the higher post, the Administrative Officer post, that he was applying for and the Industrial Tribunal found there was thereafter never any doubt about that. That clarification happened on the 19th July 1990. On the 2nd August he was asked, wrongly, to take the educational test, but he did in fact take it, and he passed it without complaint on his part. He was told that he could expect to hear the result of that in about a week's time and when the week had run out, which was on the 16th August 1990 he, very reasonably, enquired by telephone, what was going on, and he was told by Miss Smith that a letter would be put in the post for him. A letter was sent, but not the letter he was seeking which was one dealing with results of his test, the letter he received was a standard form letter inviting him for an interview on the 22nd August, and he pointed out immediately on receipt of this letter on the 18th or shortly thereafter, that he still had not been given the results of his test on the 9th August to which he, not unreasonably, attached importance and he repeated his request to be given the results.There then intervened, yet another mistake by Miss Smith, in that she put on Mr Isonor's application form the words "Failed Test". After the telephone call, and as the Industrial Tribunal found, probably as a result of it, she altered that to "passed test", which was in fact the correct inscription.The interview then, came and went, and we need not deal with that in any detail because Mr De Mello, who has appeared for Mr Isonor and has said everything that could be said on his behalf, accepts, quite rightly in our view, that the interviewing process is not one which can on the evidence, as found by the Industrial Tribunal, be faulted as having contained unlawful racial discrimination. What Mr De Mello seeks to rely upon are the errors committed by Miss Smith and they do not end where I have, as yet reached, because even after the interview at which, at the end of the day, Mr Isonor was not successful there was a further difficulty with Miss Smith, in that he, Mr Isonor, telephoned Miss Smith on the 30th August because he still had not yet received an answer to his letter of the 18th August asking what the result of his test had been. Unfortunately, it appears that Miss Smith and Mr Isonor did not get on too well in the course of that telephone call because both their evidence was to the effect that it started off quite civilly but finished in a rather heated way and it was common ground between them, in evidence before the Industrial Tribunal, that he, Mr Isonor, used words to the effect "I'll get you" at the end of that conversation. Whether that involved any error by Miss Smith we need not decide. There was, certainly, a series of administrative shortcomings in the earlier stages in the way in which Mr Isonor's application was processed.The Industrial Tribunal interpreted the issue before them in the following sentence, in paragraph 2 of their decision:
"Mr Isonor claims that he has been discriminated against on racial grounds by being refused employment as an Administrative Officer by the Department of Social Security (DSS)."
It does not seem to us that they can be criticised for thus interpreting the Originating Application that I have already read and need not repeat. It was not at all clear precisely what Mr Isonor's complaint was. Eventually there were two paragraphs of one subsection that might potentially have been relied upon. They both are in Section 4(1) of the Race Relations Act 1976 and that provides as follows:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - (a)in the arrangements he makes for the purpose of determining who should be offered that employment; or (b)in the terms on which he offers him that employment; or (c)by refusing or deliberately omitting to offer him that employment."
In principle had the interviewing process been racially discriminatory there would have been a claim under Section 4(1)(c), but Mr De Mello, very properly accepted that there was no such discriminatory process, at that stage. What Mr De Mello did seek to persuade us was that there was a case under Section 4(1)(a) in relation to the arrangements made for the purpose of determining who should be offered employment, and he pointed in particular to the administrative errors, which I have detailed, that were made by Miss Smith in the course of the arrangements that she made for deciding whether the interview should be conducted, and Mr De Mello sought leave to raise that issue, which in fact is not raised in the Notice of Appeal before us, but we listened to the arguments in favour of that case, and did not deal initially with the question, whether leave to make that amendment should be given. The problem that faced Mr De Mello in relation to that argument under Section 4(1)(a) was this, that when the Industrial Tribunal came to deal with their views about Miss Smith's administrative failures they said this in paragraph 10 of their decision:
"We remind ourselves that Mr Isonor's complaint relates to his failure to be appointed to the post of an Administrative Officer. We find, on the evidence, that any of the matters which happened before the interview and after the interview in no way affected or influenced the decision made by Miss Malin and Mr Sylvester. We found, on the evidence, that they were completely unaware of any of the events which had taken place before the interview. The fact that Mr Isonor attended the interview was taken by them to indicate that he had satisfied someone on the administration side that he had the necessary educational qualifications. They were not party to, and were not aware of the mistakes of Miss Smith, and the subsequent difficulties of Mr Isonor. We find that the events which involved Miss Smith are totally irrelevant to the questions which we have to decide in this application. Perhaps it needs to be said, however, that we are quite unable to conclude, on the evidence, that any of the mistakes or misunderstandings which Miss Smith made or was a party to, in any way relate to some racial discrimination on her part."
It is the latter sentence that is the critical one, so far as this argument is concerned, because there are, as we see it, two insuperable obstacles to Mr De Mello's argument. The first is that the Industrial Tribunal can scarcely be blamed for having taken the view that Mr Isonor's complaint related to his failure to be appointed to the post of Administrative Officer. That was what one could very reasonably extract from his Originating Application and on that view of the matter, of course, the issues that might have arisen under Section 4(1)(a) would not be directly relevant. But even if one can get over that particular difficulty, there arises the second difficulty that the Industrial Tribunal found, in terms, that Miss Smith, in making the mistakes or misunderstandings, was not a party to any racial discrimination on her part, and that we find, is effectively, a factual finding that she did not discriminate. In other words it is the not unfamiliar case of an employer or a prospective employer having inefficient procedures which were as inefficient for prospective candidates of one racial category as for another, and the Race Relations Act, of course, does not sanction inefficiency, it only sanctions discrimination, and in those circumstances for those two reasons it seems to us that this appeal, for all the ingenuity with which it has been advanced, is one which really stands no chance of success and we would be doing Mr Isonor no favours if we allowed it to go forward. We therefore dismiss it.