Meikle v Nottingham City Council [1994] UKEAT 249_92_1404

EAT
Meikle v Nottingham City Council
[1994] UKEAT 249_92_1404 · 1994-04-14
[1]Education/Qualifications Training[2]Work experience[3]Special Aptitudes, Abilities, Interests[4]Motivation and Disposition[5]Physical Requirements[6]Circumstances[7]Other those qualifications or abilities, or areas of experience regarded as essential and those regarded as desirable. So, for example, under the first heading:
"1. Education/Qualifications Essential: Training General education to degree standard or equivalent. Desirable: Social studies/science." and then under: "2. Work experience Essential: Experience of working with voluntary sector and a minimum of three years local authority experience."
That explains the reference to Mrs Meikle being a few months short of the three years' experience required. Then it is stated:
" Desirable: Experience of grant/funding processes at local and national level and knowledge of urban policies and programmes."
In response to the advertisement there were about 10 applications. The job advertised was on a more senior level to Mrs Meikle's existing grade. She wanted to obtain promotion. If she succeeded in getting this job she would be going one or two grades higher. Her salary, if she got to that level, would have reflected that escalation of the "ladder". The Tribunal referred to the fact that she had filled in her application form in a very well thought out way. She was short listed, though no one told her that. It was here, the Tribunal observed, that the problems started. In the Urban Programme Department there was already a woman working in the job that was advertised. She had been working in the job for just under a year. She had been in the Department altogether for about two years. She was a supernumerary in the Department and was regarded by those she worked with as good for the job. She applied for the job. If she got it she would also be leaping grades. She had the advantage that she had experience of the job and knew the Department which, as already observed, is a specialist department. That woman was white. One of the other applicants was black, a man. He was shortlisted. Of the three candidates shortlisted there was one internal candidate, Mrs Meikle and the black male candidate, who, faded from the picture because his qualifications were not regarded as sufficient. There was at this stage a chance meeting between Mrs Todd, who was mentioned in the advertisement, and later sat on the interviewing panel and Miss Whittingham, who was a referee for Mrs Meikle. Mrs Todd was the person within the Department who was acting Manager. The chance meeting occurred and some words were spoken. What was said in an unasked for comment was to the effect that Mrs Meikle was a good, strong candidate. That she had been short listed, but there was an internal candidate that was doing the job who was also a good candidate. The Tribunal found that Mrs Todd gave the firm indication to Miss Whittingham that the applicant, Mrs Meikle, should continue with her application. The conversation was referred back to Mrs Meikle. The impression created in Mrs Meikle at the end of the conversation was the worrying one, that the cards were stacked against her and the job was going to go to the internal candidate. This worried Mrs Meikle because she knew that the internal candidate was white whereas she was black. The Tribunal then dealt with the interviewing process. Both candidates interviewed very well. Mrs Meikle, the Tribunal found, had an excellent interview. The other candidate, the white candidate, was interviewed. She was obviously the front runner because she being doing the job successfully for a year. She gave a good account of herself at the interview. The position, therefore, was this: there was a choice between Mrs Meikle and the in-post white female candidate. The application forms were studied in detail. The qualifications and experience were compared. Mrs Meikle had a good point in her favour. She had a degree in the specialised subject, entirely relevant to local government. The other applicant's degree was not related to social science or local government. It was in English literature. There was a finely balanced decision to be taken. The Tribunal said it was a difficult choice to take. The person chosen by Mrs Todd and the other members of the interviewing panel was the in-post candidate. The Tribunal then came to the moment of decision. They rejected the complaint of direct discrimination. In paragraph 33 they said:
"we really have tried hard to see where discrimination took place, where this person was done down because of her race. We could not find it. It is a fact that she was an extremely good candidate. It is a fact that the one thing that was against her was her lack of experience compared with the other candidate (who happened to be white) who had done the job for a year. We just cannot see (and this is from a panel of three who have sat on a large number of these cases) where the discrimination has occurred and that is after a considerable amount of testing by cross examination quite properly by Miss Hyde and our own questions probing as well. We cannot see it."
The Tribunal turned to the issue of indirect discrimination. They rejected that complaint for reasons stated in three paragraphs, which I shall read in full (paragraphs 36 to 38 of the decision). The Tribunal said as follows:
"36. Mrs Hyde argues that a requirement was made by the Council that a person with experience of the job was needed."
I pause there to mention that there is no dispute that experience of the job referred to is experience of the job of the Urban Programme as Miss Hyde put it to us in submissions. Her case is that the requirement or condition applied, within the meaning of Section 1(1)(a), was experience of the Urban Programme. The Tribunal went on:
"Only white people had that experience as there were no blacks in this specialist Department. The applicant, a black, belonged to a group who could not comply with that requirement. Miss Hyde says objectively the City Council could not justify that requirement. Fourthly she says the applicant was done to her detriment because she did not get the job. There had, therefore, been indirect discrimination."
As we read paragraph 36 that summarises the submissions made by Miss Hyde, on behalf of Mrs Meikle. The Tribunal continued:
"37. We are bound to say, despite hearing Miss Swindells' argument on justification" (Miss Swindells appeared as Counsel for the Nottingham City Council): "that if we were to find a requirement had been imposed then we would say that the Council could not justify that requirement on any objective standard. They way we would have to approach it would be to balance both the public need for the ethnic communities of a large city like Nottingham to `break into' these departments (`to break the cycle') with the City Council's need for experienced people. On balance we think objectively there was no justification."
Finally:[38]However, the law, as interpreted, says that `requirement' means that person is absolutely barred if he does not fulfil it. Was this requirement an absolute bar to the job if someone failed to meet it. We have considered this and it was not on the evidence. It was not an absolute bar. It is not in the job description as an essential requirement. It was highly desirable. What it did in truth was to tip the balance against the applicant, but it was not an absolute requirement. We wish we were able to say requirement means not only essential, but also highly desirable, by the Court of Appeal says no." That is a reference to two decisions of the Court of Appeal Perera v. Civil Service Commission [1983] IRLR 166 and the later case of Meer v. Tower Hamlets LBC [1988] IRLR 399 . For those reasons the Tribunal stated in paragraph 39:
"we cannot find indirect discrimination in law on the facts that we have heard." applying the law as laid down by the Court of Appeal. In the concluding paragraph they said: "
It is with regret, because of the state of law, that we dismiss the application on indirect discrimination." The first part of Miss Hyde's submissions on behalf of Mrs Meikle concentrated on the perversity of that decision. Miss Hyde has taken us, with great care, through the relevant documents and through the notes of the evidence made by the Chairman in support of her proposition that the Tribunal's finding in paragraph 38 of the decision that experience on the Urban Programme job was not a requirement but was merely highly desirable, was contrary to the evidence. She submitted that the evidence of the witnesses for the Nottingham City Council was clearly to the effect that without that experience, an applicant would not be given the job. Therefore, the law, as interpreted by the Court of Appeal, the Tribunal had erred in law in applying that test to the evidence. Putting it another way, no reasonable tribunal would come to this conclusion. In those circumstances, it was argued, the appeal ought to be allowed. It is not necessary to refer to all the different passages in the Notes of Evidence relied upon. The substance of Miss Hyde's submission is that, although the Job Requirement Form stated that experience of grant/funding processes at local and national level and knowledge of urban policies and programmes were stated to be desirable and not essential, it appeared from the evidence of the witnesses from the City Council that they were in fact treating the experience identified as an absolute and essential requirement. The individual points made by Miss Hyde were that there was emphasis, in describing the work of the Urban Programme, on its specialist nature; that some of the questions asked at the interview appeared to require a working knowledge of the Urban Programme Department if they were to be answered fully, that the Tribunal had noted that the in-post candidate was the front runner, because she had been successfully doing the job for a year; that it was noted by the Tribunal that the one thing that was against Mrs Meikle, who otherwise had very good qualifications and good interviews, was her lack of experience compared with that of the white candidate who had done the job for a year. She mentioned various references in the Tribunal to the need in such departments for experienced people, who, by definition, are white. Miss Hyde particularly concentrated on the Notes of the Evidence given by Mrs Todd, and confirmed by Mrs Cook, another member of the recruiting panel, which emphasised Mrs Meikle's lack of experience of project management and urban grant aid, specific areas requiring specific knowledge; and also several passages which refer to the fact that the post was not a trainee post or a training post, but one to which experience was relevant. There were three particular passages emphasised by Miss Hyde: first, on page 51 of the Bundle where, in her evidence in chief, Mrs Todd referred to the fact:
"I said I felt Leonie plus training would pick it up but this wasn't a training post. This was a senior post, perhaps 6 months or a year could see it through." and another passage in which a reference was made by Mrs Todd in cross-examination to the fact that: "for a senior post you need relevant experience. Mrs Meikle had a degree directly relevant. Experience, job share now of the post." and a third passage on page 56 where Mrs Cook said: "
The only difference was the work experience of Leonie Meikle not as in depth. It's a same there was no trainee post." Miss Hyde emphasised that in those passages the people on the recruiting panel saw experience of the Urban Programme as an essential absolute requirement for this job, not simply as a factor. This job was a senior position not simply a trainee position. We have considered those arguments carefully and debated them at some length with Miss Hyde. We have heard Miss Swindells' submissions to the contrary. Miss Swindells submitted that there was no perversity; that the Tribunal came to a decision which it was entitled to come to on the evidence before it, and that that evidence justified a decision that there was no absolute requirement. Miss Swindells put it in this way: that here were two very good candidates for the position. They both satisfied the essential requirements as to qualifications and experience. A finely tuned balancing exercise was conducted by the interviewing panel. What tipped the balance in that exercise was the experience the other candidate had and which Mrs Meikle did not have. It was not a matter of an essential, absolute requirement it was a matter of the factor which tipped the balance. Having considered those rival submissions, we have reached the conclusion in this case that, while fully appreciating the disappointment that Mrs Meikle feels at not having got the job, when she interviewed so well and had the qualifications and essential level of local Government experience, there has not been shown any perversity on the part of the Tribunal. Another industrial tribunal hearing the same evidence might have reached a different conclusion. That is not enough to show that a decision is perverse any more than it is to show that this Tribunal, if it had heard all the evidence, which it has not, might have come to a different conclusion. The test of perversity is a high one, and rightly so; no appeal tribunal can ever replicate the hearing. It matters a great deal that the industrial tribunal saw Mrs Todd; Mrs Cook give evidence; saw their evidence tested by cross-examination and came to the conclusion, after a full hearing extremely well conducted on both sides, that there was no absolute requirement. We are, therefore, unable to find any error of law in the decision of the Tribunal on the first ground. The second ground of appeal is one which we have discouraged Miss Hyde from pursuing in detail, because her submissions are more fitted for a higher court than for discussion at this level of decision. Her submission is that the Tribunal erred in law in holding that Mrs Meikle had to establish that she faced an absolute bar in order to bring the case with Section 1(1)(b) of the Race Relations Act 1976 . She referred in her outline submissions to Perera v. Civil Service Commission and Meer v. Tower Hamlets LBC , which I have already cited. She sought to distinguish them from the present case. She pointed out that in the Perera case the Court was concerned with multiple factors which had to be considered, whereas in the present case it was only one factor to be considered. She also put the general proposition that the decision in those cases ought to be looked at again, especially in the light of the normal meaning of the word "requirement" and "condition". They are not normally to be interpreted as constituting an absolute bar. An analogy is suggested on the similar wording of Section 1(1)(a)(ii) of the Sex Discrimination Act 1975 . We are aware that there has been criticism in high quarters of the Perera decision. It may be that the highest court will, at some time, perhaps in the near future, reconsider the correctness of the approach laid down in Perera . We unable, in the hierarchy of judicial precedent, to entertain an argument that a decision of the Court of Appeal is wrong. We are unable to distinguish it. There is a general ruling to the effect that matters which have to be established by the applicant in an indirect discrimination case are that the requirement or condition is a must , something that has to be complied with. It was recognised by the Court of Appeal in the later case of Meer that Perera was binding upon them. In those circumstances we have reached the conclusion that the Industrial Tribunal was correct in its statement in paragraph 38 of the decision that:
"as interpreted, says that `requirement' means that a person is absolutely barred if he does not fulfil it."
In those circumstances the Tribunal correctly applied the law, as it stands at present, and, for those reasons, this appeal will be dismissed.