Kelly v The South Manchester College [1994] UKEAT 633_94_1010

EAT

Kelly v The South Manchester College

[1994] UKEAT 633_94_1010 · 1994-10-10

JUDGE HULL QC:

In this case Mr Kelly appeals against a decision of the Industrial Tribunal sitting at Manchester under the chairmanship of Mr Casket, with two industrial members, on 25 March and 27 April of this year. His complaint was of racial discrimination. Mr Kelly is a white man. He is properly described as a person of caucasian ethnic origin and he applied for an appointment at South Manchester College. He applied in 1992 and he was selected for an appointment which he said is wrongly described as "part-time", it was full-time but it was for one year only and he was not preferred for another appointment which was to be made, that is of a permanent lectureship; his successful rival in that being a black lady, a Ms Rogers.

In those circumstances he says he did not at first think that there was anything wrong with the circumstances of the appointment. He later learned, however - a remark was made by this same lady - that she had been told that she had been appointed because she was black and in those circumstances he became aware, or at any rate suspected, that there was racial discrimination in his appointment. So he applied to the Industrial Tribunal complaining of racial discrimination, as of course he was entitled to do and the Tribunal, as it was bound to do, enquired into all the circumstances.

Before I go any further I should explain that this case, like the last one, is in our list under our Practice Direction. We are not allowed to go into the facts. Parliament has said that appeal lies to this Employment Appeal Tribunal only on questions of law. The jurisdiction over the facts is given entirely to the Industrial Tribunal which hears the witnesses, studies the documents and decides which evidence it prefers, which it should accept and which it should reject.

The allegations had been made and I will go into a little more detail in a moment. The Industrial Tribunal sat for two days on 25 March and 27 April of this year and appear, as part of their very long and thorough decision, to have conducted a long and thorough hearing as one would expect. Probably the easiest way for me to explain the issues is to refer to that hearing and then one can go into the parts of it which Mr Kelly tells us today are mistaken or wrong in some way.

They say that it was a complaint of direct discrimination for the reason which I have indicated on the basis which I have indicated, but there was a further allegation of indirect race discrimination and they said, after referring quite correctly to the statutory provisions which govern these matters in the Race Relations Act, that they had heard evidence from Mr Kelly personally and also from Mr Heire, Head of Human Resources at the university, Ms Kornitschky, Senior Lecturer in Business Studies, Ms Carter, Senior Lecturer in Business Studies and Ms Owen, Lecturer in Politics and History and also a Trade Union Representative.

These were all people concerned with the appointment. The Tribunal found a number of facts which are not in issue. They said that:

"8(c) On 9 July 1992, [shortly before the appointment of course] a selection panel of Mr Heire, Ms Kornitschky and Ms Carter completed short listing forms against certain required criteria. There were no personal interviews at this stage".

Those were criteria on the basis of a settled form of criteria. Then there were seven candidates who were short-listed for the full-time position, including the Applicant, Mr Kelly, three black and four white candidates. The Applicant, Mr Kelly, was the only one of those who applied for the part-time position [they called it, he says wrongly]. It was a short-term position. One of the criteria under the heading " Skills/Knowledge " was:

"5. Ability to recognise and respond effectively to the specific needs of ethnic minority students".

Mr Kelly has told us that that in effect was saying that they were going to give unfair preference, or were likely to give unfair preference, to people from ethnic minorities. We respectfully feel obliged to disagree with that. It appears to us that if the college had a substantial number of ethnic minority students, an ability to recognise and respond effectively to those students, if they had any particular requirements, would be a very reasonable and not in any way discriminatory or unreasonable criterion. Of course, it might well be that the ethnic minority students had exactly the same requirements as those from the ethnic majority, but it was not unreasonable to look for that.

Mr Kelly told us indeed that he has considerable experience in teaching people from ethnic minorities which shows or suggests to us that he would be very well qualified to meet such a criterion or at any rate to have his qualifications in that direction considered. Then, they said:

"8(e) The selection panel met to interview all shortlisted candidates on 14 July. There was a panel of three: Mr Heire as Chairman, Ms Kornitschky and Ms Carter. Ms Owen, the NATFHE Representative, was also present as an observer. Each interview lasted approximately 40/45 minutes. The panel had to complete a Candidate Assessment form where the same criteria are looked at - the essential difference being that this time the panel had the opportunity of seeing and assessing each candidate personally. The Tribunal were advised that these forms are usually used as a guideline but the panel judges final suitability of candidates for the particular position by their answers to panel questions.

8(f) The Tribunal understood that finally only 5 candidates were seriously considered for the full-time position. Mr Heire said that Mr Kelly had been the third most suitable candidate for the full-time position and that Ms Rogers had obtained the position mainly because of her experience and potential usefulness to the department".

So that she was the successful one. Mr Kelly came only third.

Then, they go on to what is said by Mr Kelly:

"8(h) In his Originating Application (IT1), Mr Kelly alleged that in July 1993, [that is to say about a year after the interviews in question] Ms Rogers informed him that Mr Heire as Head of Business Studies `had told her he only gave her the job because she was black'. This, he said, was the catalyst. This was the starting point for his direct race discrimination claim made to the Industrial Tribunals".

So that was the substance of it until he got to the Tribunal when he also said there had been indirect discrimination, that is to say an express admission by Mr Heire that he had improperly given preference to Ms Rogers because of the colour of her skin.

They go to say:

"9. The Tribunal heard a very great deal of detailed evidence over the two separate hearing days. Having carefully considered all the evidence, both oral and documentary, noted the demeanour of the applicant and that of the witnesses called by the respondents, on the balance of probabilities, the Tribunal strongly preferred and accepted the evidence of the respondents' witnesses to that of the applicant - particularly relating to the Panel Meeting on 14 July 1992 - and found the facts to be in accordance with their evidence. They found Ms Owen, the panel observer, a particularly good witness. They found the applicant an unreliable and unsatisfactory witness. He changed his evidence and arguments on several occasions and there was several unexplained discrepancies and inconsistencies".

Of course, it is very painful to discuss such matters. Mr Kelly must have been greatly aggrieved by that finding, but yet it is of course the duty of the Tribunal to make just such findings. They have to decide which evidence they prefer and which they reject. It is their duty to do so and there they gave their reasons for doing so. They preferred the evidence contrary to Mr Kelly. Then, they referred to what Mr Kelly had said in his application to the Tribunal about how Ms Rogers had told him that Mr Heire:

"12. ....had told her he only gave her the job because she was black. ....... he wrote that her submission to her own Disciplinary Hearing would verify this. Her actual words, in the submission (part of the respondents' documents) was that Mr Heire said that he had taken a risk in employing her because he was `always being accused of employing black staff'. This discrepancy, at the least, required explanation. The applicant did not offer any. Mr Heire, in his evidence, totally denied ever saying this or anything like this".

And, as I say, the Tribunal was compelled to the view that Mr Heire's evidence was reliable, that of Mr Kelly was not.

It was clear to the Tribunal, they go on in paragraph 13:

"13. .....that what Ms Rogers had or had not said to Mr Kelly and when was extremely important to the applicant's claim of direct discrimination. Why had Mr Kelly not called her in support"?

And they consider that there was no explanation given in answer to that except that:

"..... she would simply reiterate her statement. He then said she would have liked to attend but felt she would be victimised adding `she also told me today she was visiting a sick relative in London'. (This was March 25, [say the Tribunal] the first day of the hearing and the respondents confirmed she was lecturing at the college that day). He could, of course, ..... have requested a witness summons for her to attend [on the second occasion]. He chose not to".

Then, they refer to the rest of Mr Kelly's application form and the points which he made there and they go on to refer to evidence given by Ms Carter. I am going on now to page 11 of our bundle.

"16(c) ..... She said in evidence that, at the initial stage, they had discussed the merits of 4 candidates - not including Mr Kelly - for the full-time position. But it was clear, even on her evidence, Mr Kelly had been properly considered. She herself had raised a matter with Ms Owen, the Trade Union representative and observer, as to whether a candidate with more ticks on the candidate assessment forms was automatically entitled to the appointment and had been assured that this was not so. She said that after this the panel had discussed the merits of Mr Kelly as against Ms Rogers. All had agreed, including herself, on the final choice of Ms Rogers and she believed this was on merit".

That is a point of some importance because Mr Kelly has told us he had more marks, by which he means more ticks, but it is quite clear from this that the Industrial Tribunal formed the conclusion that the committee, very reasonably and properly and in good faith, had decided not to leave the final decision to the matter of the number of ticks but of course to the overall view they took, having had the great advantage of seeing the various candidates.

Then they went on to discuss the evidence about Mr Heire at page 12 of our bundle, subparagraph (e).

"16(e) Mr Heire had been Director of Equal Opportunities in 1987/1990 and helped the College devise equal opportunity policies and clearly had an interest in such matters. The applicant alleged there was a conflict for Mr Heire as Head of Business Studies together with his `race equality hat'. Mr Heire in his evidence saw no conflict in this. He did not accept that he had positively discriminated in favour of any non-white candidate and, in relation to the particular interviews in July 1992, stated the appointments had been made on merit ie of Ms Rogers to the full-time position and Mr Kelly to the part-time position".

Going on, the Tribunal said at paragraph 18 (and this is part of their findings):

"18. The respondents believed they chose all candidates on merit and genuinely believed they had specifically done so in the case of Ms Rogers. Her appointment had been made by an interview panel, not a single individual, comprising the Head of Business Studies and two senior lecturers (including one of the applicant's own referees). The appointment was also made in the presence of the NATFHE representative, there specifically to observe whether there was any irregularity in procedure or anything untoward. It was made in accordance with the College's recruitment and selection code of practice. On 14 July 1992, the panel finally came to the conclusion that Ms Rogers' particular quality and experience was impressive and best fitted her for the full-time post taking into account inter alia: her academic experience and range of subjects that she taught; her probable MSC (Masters Degree in Management which result which was then pending); the HNC course she had devised in Business Studies; her three years experience at the Manchester Chamber of Commerce as Education Manager and Lecturer giving her a particular insight into the needs of private section employers which the panel felt would be extremely useful and helpful for the College.

The Tribunal were particularly impressed by the testimony of Ms Owen, the NATFHE representative, who had observed all the panel's deliberations and decision. She clearly stated she had seen nothing whatsoever at the interviews and meeting on 14 July that influenced the choice of Ms Rogers because she was black. She believed the panel had chosen her solely on merit and not because of her ethnic background".

They refer to arguments with Mr Kelly and they say:

"19(3) ...... The Council and College had a stated non-discriminatory and equal opportunity policy. The Tribunal were advised the College had approximately 75% ethnic minority students. In this context, why should they not seek to appoint persons whom they believed had relevant experience with ethnic minorities or had ability to recognise their needs. Clearly, they did not want lecturers in their College who were antipathetic, overtly or otherwise, to the needs of ethnic minorities"

And then they concluded:

"20. The burden of proof of race discrimination is on the applicant. It is not an easy burden and the Tribunal took that into account. Merely to allege, however, is not sufficient. The Tribunal found the applicant had not discharged his burden of proof. The Tribunal therefore dismissed the application".

I suppose I have read less than half of the decision. It is quite clear to us that this was a very thorough enquiry in which, so far as one can see, the Tribunal directed themselves quite properly first of all to the law, then to the evidence which they had heard and then to the issues which were specifically raised and the arguments specifically raised by Mr Kelly.

Mr Kelly has in substance repeated some of those arguments and said they are matters of law to which we should pay attention. His first point is that:

" There was no part-time post. The Tribunal were wrong about that, it was simply a temporary post "

. It appears to us, though, that it cannot possibly have affected the substance of their decision and we therefore say no more about it.

Then, he said, there was indirect discrimination in making a criterion of ability to respond to ethnic minority students. There was no need, he says, whatever for that. It was in the first place, of course, for the college to say what criteria they though best in educating their students. We think it completely fails to follow logically that a person who has the ability to respond to ethnic minority students is necessarily or indeed, probably going to be a person themselves from an ethnic minority.

The ability to respond to the needs of various students, not all of them of course necessarily very clever or very gifted, or not all of them with relevant experience, is in a teacher an invaluable quality and it is most certainly not confined to a person who comes from a particular racial group to which a particular student belongs. It is one of the great talents that a good teacher has.

So we think there is nothing as a matter of law in that. Then, he complains that the Industrial Tribunal found, as I said, Ms Owen, the NATFHE representative, to be a particularly good witness. He says that in fact she made a mistake about saying that she was at an interview which had never taken place. We think that whatever criticisms in detail can be made of a witness it is for the Tribunal as a question of fact to say which witnesses they regard as good, which witnesses they feel they can rely on and which witnesses they feel are not telling them the truth or not reliable. Those are entirely matters for the Tribunal, with which we cannot interfere. People who have seen the witness are the only ones who can say whether they believe that that witness is reliable or not.

Mr Kelly asked Ms Owen a question which, I think, must be ironical in the circumstances, she having said that she felt that while she was there racial discrimination could not take place. He said to her, "so there is no need for an Industrial Tribunal?" Logically of course, there would not be if she was quite right about that; and she answered that question, which like all ironical questions, might be rather difficult to give a just answer to, that there was not any need for an Industrial Tribunal if she was right about that. Then he mentioned about Elizabeth Carter. Elizabeth Carter, one of the two lecturers on this committee, had said that Mr Kelly had come up with the highest score. That of course was on the sheets of paper. The whole idea of conducting the interviews with the particular applicants was to see to what extent these scores, in terms of ticks on a pro forma, were backed up by the impression made and the details given in the interview. And notwithstanding that Mr Kelly may have had more ticks on his form than any of the other candidates, the whole point was to see whether, in the ways which could only be shown in an interview, he in fact was better than the others or less meritorious, in the view of the committee.

And finally, he complains that the committee made no mention of a dissertation by Mr Heire, to the effect that he wished to redress the balance of the staff at South Manchester College. Assuming that that meant racial balance and not any other form of imbalance, if indeed he did perceive an imbalance of a racial sort in the composition of the college staff, one cannot imagine why he should not wish to redress that balance. Of course if it meant he was going to go into reverse discrimination or discriminate against people from the ethnic majority, that would be quite wrong. But if all it meant (and surely this is all it would be taken to mean) was that in future he hoped that a policy which eliminated discrimination would be adopted then there is no conceivable objection to that and no reason why the Tribunal should take that against Mr Heire or anybody else who said the same thing. Mr Kelly said that he believed that Mr Heire carried that too far.

The Tribunal reached completely the contrary conclusion, in paragraph 16(e), which I have already read. And then finally he says " I had better qualifications than Ms Rogers ". That again was entirely a matter for the committee to judge. The committee having judged it in the sense unfavourable to Mr Kelly and he having reason to think that the committee had in fact been guilty of discrimination against him on the grounds of race, made his complaint to the Tribunal and the Tribunal considered it in the way which I have referred to, I am afraid at monotonous length. It was their task to decide whether the committee had in fact been guilty of racial discrimination. They bore in mind the burden of proof. It was their task to look at the evidence which was called before them of the committee's deliberations and what was in their minds and to probe it as best they could. They certainly seem to have carried out their duty. They have reached a conclusion which, in Mr Kelly's view is wrong. So be it.

Mr Kelly has told us those matters on which he relies for saying there are errors of law in the findings and approach of this committee. We have considered it as carefully as we can, all of us. We have had fairly lengthy discussions about this case and of course we have carefully considered what Mr Kelly has said to us in this hearing today.

We can, none of us, see any foundation for any criticism in law of the decision of this Industrial Tribunal. It appears to us that they conducted their enquiry with scrupulous care, directed themselves quite correctly about the law and in those circumstances there is, in our view, no point of law in this appeal. Since we can only consider points of law, it follows that regretfully we have to dismiss the appeal at this stage rather than allowing it to go to a full hearing with all the expense and delay which that would involved and so we must now dismiss the appeal.