Patel v City Of Bradford Metropolitan Council [1993] UKEAT 543_91_0707

EAT
Patel v City Of Bradford Metropolitan Council
[1993] UKEAT 543_91_0707 · 1993-07-07
MR JUSTICE KNOX : The Industrial Tribunal at Leeds after a hearing on three days in April and two days in July 1991 by a decision sent to the parties on the 5th August 1991 dismissed the application by Mrs Ramila Patel against Bradford Metropolitan District Council ("the City Council") in a complaint of racial discrimination. The occasion for the allegation of such discrimination was the need for the City Council to restructure its Community Education service department and in particular the need to select among 7 candidates all already in the City's service the six persons to fill 6 trainee co-ordinator posts.All seven candidates were required to fill in application forms as though they were outsiders seeking a first job but that was not their status. On the contrary they were what was called "ring-fenced", defined in the Industrial Tribunal's decision as people employed already who were within the scope of an agreement relating to the terms of appointment to be reached between management and the staff side. These agreements included the following:a) permanent and temporary staff were to be treated equally where there was competition for posts.b) competing claims were to be adjudicated upon by comparison of current job descriptions with proposed job descriptions.c) length of service with the City Council as such was to be disregarded.This last feature did not require relevant expertise to be disregarded. On the contrary a personnel specification was prepared for the selection process by the interviewing panel of three persons. That specification listed eight criteria of which one was "experience". This included one provision that it was essential that candidates should have a minimum of two years' relevant work experience in the appropriate skill area and that it was desirable that they should have five years' work experience in a relevant skill area. Several of the seven candidates had less than two years relevant work experience. The apparent conflict between the essential requirement of two years relevant work experience and the assumed eligibility of all seven candidates was resolved by the effect of the ring-fencing agreement which it was common ground between the parties meant that none of the candidates was to be treated as disqualified through non compliance with the so-called essential requirement. On the other hand it was equally common ground that the extent of relevant work experience was a relevant factor to be put in the scales in deciding which candidate was to be excluded in filling six posts out of seven candidates.Of the seven candidates 5 were European white and two were Asian. Mrs Patel was one of the latter. She had five years service in her position and none of the other candidates had been in post so long. They all had substantially less experience in the kind of caring work which was an essential qualification for candidacy. Some, including in particular a Miss Hearn, one of the European white candidates, had very short experience. Miss Hearn's experience was limited to 2 years part-time (10 hours a week) employment as a receptionist/administrator at a Mental Health Resource Centre in Bradford with some counselling work involved. In a sense it was thus doubly part-time in that less than a normal full week's work was done and only part of that was involved with caring work.The City Council's selection panel of three persons met on the 18th July 1990 and selected five out of the seven candidates for five of the six available posts. One of the five was the Asian candidate other than Mrs Patel. That stage of the selection was not criticised. The subject of criticism was the selection between the two remaining candidates, Mrs Patel and Miss Hearn, mentioned above. That final stage was described by the Industrial Tribunal as follows:-
"The panel had reservations about the appointment of the sixth until they decided that, having regard to the application form and the performance at interview of Miss Hearn and the applicant, Miss Hearn should be appointed and the applicant should unfortunately fail to get a job."
There followed the next day, the 19th July, what was called a feed back interview with the selection panel before which Mrs Patel was accompanied by her trade union official, and of this it was said by the Industrial Tribunal:
"It was made plain to her that the reasons were that her application form was inadequate and her performance in answering questions at interview left a great deal to be desired."
It was also found that Mrs Patel made it plain that although she did not intend to let the matter rest, she did not regard her complaint as a matter of race. The Industrial Tribunal record that Mrs Patel in her evidence said that she knew in her heart it was racism though whether the Industrial Tribunal accepted that evidence is less clear. In the event no allegation of racial discrimination was made until 20 September when a questionnaire under the Race Relations Act 1976 , ("the 1976 Act") was served. The Originating Application followed and was presented on the 16th October 1990.The Industrial Tribunal in its decision criticised the City Council in a number of respects. It was said that the Council did not seek hard evidence of the capability of Mrs Patel or Miss Hearn, and management was criticised for limiting their inquiry at interview to points which did not include the performance of Mrs Patel over the five years of her previous employment. Criticism was also made that the City Council fell short of the standards set in its own Code of Practice and the one produced by the Commission for Racial Equality, but mention was made of the proposition, not challenged before us, that failure to carry out a code of practice does not of itself lead to a conclusion that there has been unlawful discrimination.The Industrial Tribunal's essential decision was contained in paragraph 25 of its decision which reads:
"There has been no suggestion that there was any animosity towards the applicant for any reason at all and especially for a reason relating to her racial origin. We are asked to draw inferences favourable to the applicant's claim. We find that the evidence demonstrates that all the applicants were treated alike within the parameters set by the 2 sides before the interviews began. Unsatisfactory though the procedure was to some extent and unhappy though the result was from the point of view of both sides, we cannot find that there was discrimination against the applicant on racial grounds. The evidence satisfies us that the applicant was not treated by the respondent council or the first named respondents less favourably than the other candidates were treated "on racial grounds". There is no room for us to draw inferences that underlying the events there was racial discrimination against her."
The decision was attacked on appeal before us on two main grounds. The first was that the Industrial Tribunal dealt with the case as one under s.4(2)(c) of the 1976 Act which sanctions discrimination by an employer against an employee by dismissing him or subjecting him to any other detriment. It was submitted that the hypothesis upon which all the candidates were treated, namely that they were to be treated as though they were outsiders seeking a first job, warranted, and indeed required, the provisions of s.4(1)(a) of the1976 Act to be applied. That paragraph sanctions discrimination against another in the arrangements which a prospective employer makes for the purpose of determining who should be offered that employment. It was pointed out that there is authority, Brennan v. J.H. Dewhurst [1984] I.C.R. 52 , in relation to the parallel provision under the Sexual Discrimination Act 1975 , to show that this paragraph, s.6(1)(a) of the latter Act and s.4(1)(a) of the 1976 Act, should be interpreted widely so as to cover the whole selection process and that if that had been applied it might well have been that Mrs Patel would have succeeded under s.4(1)(a) even though she could not do so under s.4(2)(c). That seems to us to be an argument with more ingenuity than substance behind it. There was not identified to us any particular field of inquiry closed under s.4(2)(c) but open under s.4(1)(a). The Originating Application relies on Mrs Patel's greater experience in doing her job than the other candidates but that is a point which can just as well be taken, and indeed was taken, under s.4(2)(c) as under s.4(1)(a) of the 1976 Act. We are therefore unpersuaded of the validity of this ground of appeal even assuming that s.4(1)(a) became applicable as a result of the hypothetical basis for selection as to which it is not necessary to express a view.The second criticism was made in relation to the combination of the specific criticisms made by the Industrial Tribunal of the failure to seek hard evidence of the capability of Miss Hearn and Mrs Patel respectively and the failure to follow codes of practice on the one hand and the absence of any satisfactory explanation by the City Council for those failures or for the failure in overlooking the two years' relevant experience criterion on the other hand. This meant, it was submitted, that there was both evidence of discriminatory treatment and a failure to set out a satisfactory explanation for it and that the Industrial Tribunal did not take into account at all the personnel specification and the disparity in relevant experience between the two relevant candidates, Miss Hearn and Mrs Patel.We do not accept that the Industrial Tribunal failed to take these matters into account, in the sense that they failed to have regard to the shortcomings of the City Council in the matters that were the subject of criticism. In our view the true interpretation of the decision read as a whole is that the City Council were not guilty of unlawful discrimination in putting undue weight upon performance at interview and completion of application form and insufficient weight or even it may be, no weight upon relevant personal experience. We doubt whether it would be right to say that no weight at all was placed upon relevant experience by the panel which had the fact of different experience before them. A finding that a preference of one candidate over another having regard to the application form and performance at interview does not, as it seem to us, involve a conclusion that they were the only factors looked at, but rather that they were the ones which tipped the scales, outweighing countervailing considerations. But even if the better view is that no weight was given to relevant experience that does not in our view preclude an Industrial Tribunal from finding that there was at the end of the day no racially discriminatory selection albeit that the selection process was flawed. We would deprecate any tendency to place Industrial Tribunals into a strait jacket of finding whether there was differential treatment and then unless there was a specific finding of a satisfactory explanation for it, requiring a finding of unlawful racial discrimination. That process seems to us to involve too mechanistic an application of decisions such as King v Great Britain China Centre [1992] I.C.R.516 which contains valuable statements of principle but not a rigid formula to be applied to all complaints under the 1976 Act.We therefore do not find any error of law in the decision of the Industrial Tribunal and dismiss this appeal.