Isonor v Department Of Social Security [1994] UKEAT 965_93_1804

EAT

Isonor v Department Of Social Security

[1994] UKEAT 965_93_1804 · 1994-04-18

JUDGE HULL QC:

In this case Mr Isonor applied on the 12 May 1992 to the Department of Social Security for appointment as an administrative officer or as an administrative assistant. He has shown us his application form in which of course he gives particulars concerning his career, and his personal details. He is a gentleman who comes originally from Nigeria, where he was born on the 27 April 1940, and therefore of course he is of a different race from many of the applicants who also applied for the same post. He complains that there was discrimination against him in the fact that he was not selected for the post, and the steps which were taken discriminated against him. I will go into that a little more in a few minutes.

He sets out on page 3 of his application form the details of his educational qualifications which were obtained under the West African Examination Board, but it was the Cambridge Examinations apparently, and certainly for my part I know that the University authorities in this country are repeatedly asked to verify the validity of the qualifications which are obtained in West Africa, and in particular Nigeria. One of the academics to whom I have myself spoken about this has said that the main difficulty is that West Africa tends to insist on higher standards than are accepted in the United Kingdom. So there is no doubt that those are valid qualifications and in passing I should remark that although there are certain marks on this form elsewhere, there are no ticks against those educational qualifications.

Then he sets out particulars of previous employers. He has been employed by one very well known company, there is a tick against that, but somebody has put that, not (says Mr Isonor) himself. Then, two referees. Against those, again, a big tick, apparently in the same hand, and just above that there are details of previous employments and applications. He has made previous applications to what was then the DHSS, and he applied apparently in 1990. On that somebody again, not Mr Isonor, has written "August 1990" as though they had looked into that and looked at some record or other and said that the application was in August 1990.

Having filled in the form Mr Isonor was of course entitled to expect it to be considered. I think I can best say what happened after that by referring to the decision in this case, because to cut a long story short, Mr Isonor was unsuccessful. He applied to the Industrial Tribunal complaining of unjust discrimination on the 21 August 1992, and on the 30 September 1993 the Industrial Tribunal heard the case and they gave their decision on the 26 October 1993. I must refer to that because it may well be that a good many people are interested in this case, or may be in the future.

The Tribunal sat in Birmingham and they set out:

"This is an application brought by Mr Isonor alleging racial discrimination. Originally the allegation was just one of general discrimination but subsequently there was added to that an allegation of discrimination by victimisation under Section 2 of the Race Relations Act and also under Section 4 in relation to the job application. At the beginning of today Mr Isonor said that the basis of his application was essentially under Section 2 relating to the victimisation but in fact after discussion with the tribunal he agreed that all of his applications should still be considered and we have considered all of them".

Before us today Mr Isonor said that he had taken the Respondents to the Industrial Tribunal before on two occasions and he believed that they were discriminating against him on the inadmissible basis that he had indeed taken them to Tribunals before, and he referred to the matter that I have already referred to which were the ticks or the "August '90" written on his application.

The Tribunal went on that they had heard the evidence of Mr Isonor himself and from

the Respondents (the DHSS), Mrs Severn, Personnel Manager, and also Mr Mitchell, who at the time was the Customer Services Manager of the DHSS.

"None of the evidence we have been given has actually been controverted by other evidence given, although there has been challenge to some of the evidence and we are satisfied that the evidence we have heard is in fact correct."

That is an important finding. We are not allowed to review findings of fact, unless it is apparent that there has been some error of law. Parliament which set up our jurisdiction has restricted us in our consideration to questions of law, and therefore we are going outside our jurisdiction if we seek to review findings of fact. Of course we hear no evidence and we do not see the witnesses, see them cross examined and so on.

Then the Tribunal went on:

"The position is that Mr Isonor having been made redundant some years ago had made various applications for employment and in particular had made three applications for employment with the DHSS, as it was at one stage, and subsequently the DSS. He accepts that on one of those occasions he failed because he failed a test and accepted that that was a genuine reason but on two previous occasions in 1987 and in 1990 he felt that he had been wrongfully refused the application procedure and he made applications to an industrial tribunal about that. He subsequently saw an advert for a job in the paper on 7 May".

and they then referred to the application that I have already referred to.

"Each of the application forms, as was his, was numbered as it was sent out to the applicants. At the time there were between 30 and 31 jobs available and a large number of applications were received, in total over 600. The applications were all checked to see that the applicants complied on educational grounds with the requirements and that reduced some of the applications but in fact there were still over 500 applicants for 30-31 vacancies".

Mr Isonor says:

"They were checked to see the whether educational qualifications were there but there are no ticks against my educational qualifications so obviously the ticks did not relate to that. There are ticks against my referees and there is this August 1990 which is written in. Now that suggests that somebody had been looking at the applications, or at any rate my application, not merely to look at qualifications but for other purposes too".

The Tribunal went on.

"The question Mrs Severn had to answer was to how to reduce that number, because she took the view that to interview all of those applicants was not a feasible proposition, bearing in mind the length of time that would take, and the time available to fill the vacancies because staff were needed. Although previously there had been rules relating to employment and applications for employment with the DHSS which did not include any question of random selection, by this time the DSS was part of the newly formed Benefit Agency and in fact no rules had been laid down. Mrs Severn had, in discussion with other personnel officers, talked about the prospects of using random selection and she checked with her head office directorate to see if that was an acceptable procedure and was told that it was. As a result she decided in consultation with others that a system of random selection would be made to reduce the numbers to the number of people who would be interviewed."

That was the object; to reduce this very, very large number of people, 500, to a manageable number for interview, without any regard to merit, or any other considerations, simply by a lottery.

"That was done by setting up an independent sifting panel of which Mr Mitchell, from whom we have heard, was the Chairman. He and the other members of the panel had nothing to do with the personnel department. They were given a free hand as to how they would work out the selection but they were given the application forms which included Mr Isonor's which had previously been vetted by the personnel department. They checked the application forms against two lists which they had to satisfy themselves that they did have the proper applications. Then in order to do the selection they started with the Administration Officers, because in fact a number of applicants, including Mr Isonor, had indicated that they wanted to be considered for both posts.

So all of those who were qualified and wanted to be considered for the Administration Assistant were put on a pile in numerical order. They then had some cards on which numbers were written. They were turned over, shuffled, a number picked at random which happened to be number 6. So they started their selection at No 6 and then picked every eighth person thereafter and Mr Isonor was not one of those.

They then went back on to consider the Administration Officer post, put the papers back together again, checked them for those people who were qualified and wanted to apply for that post. They then needed to select one in 7. They went through the same procedure but picking every seventh applicant and again Mr Isonor was not selected. He had a letter sent to him informing him that he had not been selected. He wrote asking for reasons and he was told that it was because of the random selection procedure.

That essentially is the evidence which we have been given. This case has already gone to the Employment Appeal Tribunal and comment has been made on what the Tribunal deciding the case would have to consider and in that Employment Appeal Tribunal hearing it was said:

"The system was clearly based on a simple lottery basis. The exact details of it are not at this time relevant but assuming that this system was a genuinely applied one, an assumption we would observe in passing Mr Isonor is not prepared to make, it seems to us plain beyond any sort of argument that the selection process at that stage was one that was driven entirely by chance which is the effect of a simple lottery and could not as a matter of principle be regarded a racially discriminatory. What Mr Isonor is concerned to dispute is whether or not the system was honestly operated or whether it was a complete sham from the word go or it was manipulated which we suspect is the way he would prefer to describe it in such a way as to ensure that he and conceivably other persons were excluded. Now these are issues of course which fall to be decided when this matter comes to trial before the industrial tribunal".

The question therefore whether a random selection is a fair or unfair system is not one that we need to consider. A random selection system by its nature is non discriminatory and therefore if it is correctly carried out it is not discrimination, racial or otherwise. We therefore have to ask and we did ask ourselves the question, "Was the procedure correctly carried out?", because of course Mr Isonor says, "No it wasn't". He says that his previous applications to Industrial Tribunals meant that in some way his name did not fairly go into the system. He cannot specify exactly how that was because, of course, he was not there. The only possible evidence that we have which relates to a question of any exclusion or anything special about him is the fact that written on his application form where he has put down the previous applications he has made to the DSS, someone has written "August 90". Mrs Severn says that it was not her and Mr Isonor has said that it was not him and we accept what both of those say. We do not know when it was added. It clearly, in our view, could only have been put on by somebody who was aware of Mr Isonor's previous application. It is possible that it has been added since these proceedings commenced. It is possible that it has been added at the stage when the personnel department were making their checks on the system. If it was added at that stage, and that indeed seems to be perhaps the most likely point at which it was added, it clearly had no effect on the selection procedure because we have been told, and we believe, that Mr Isonor's application went through that first step of the procedure and was considered in the selection procedure. The sifting panel, we have no doubt did not look into anything in relation to the rights or wrongs of the applications other than to satisfy themselves that they did have the correct applications before them and we have no doubt that no one on the sifting panel wrote those words on the form.

The decision as to whether or not Mr Isonor went into the next stage of the procedure was entirely dependent on the sifting panel and our unanimous view is that that was carried out on a purely mechanical basis, that it was carried out as fairly as it could have been and that indeed it was carried out in a scrupulously fair manner by Mr Mitchell and his colleagues. It follows therefore that that cannot be a discriminatory procedure and therefore the application that has been brought fails on all heads because in our unanimous decision there was no discrimination".

Now Mr Isonor appeals and his appeal, like so many here, has been put down for a preliminary hearing to see whether we can discover any question of law, because as I have said if there is no question of law here, we have no jurisdiction. He says he complains of victimisation and he explains about his previous applications against the department. He refers to relevant cases on the subject. He says that he should be compared and the comparators, to use that expression, are those who were called to the interview. He was not, and he is entitled to be compared with them. He complains that if it is found that he is of a different race to those who were called for interview, then the question is causation.

He complains of discrimination and he says that he is entitled, having established that there is a difference between him and those who were called to the interview, to ask what is the cause. He points out that a person who discriminates whether on ground of sex, or race, or religion or any other ground will rarely, if ever, make any admission directly of having done so. Therefore if it is shown that there is discrimination of any sort, or a difference of any sort, between the applicant and those who are treated more favourably, it is necessary, and in this he is quite right, for any Tribunal to look into the matter very carefully and consider the evidence which is called before them.

He points to these marks on his application and he says:

"That shows that before this random process, what happened before was supposed only to relate to qualifications. Here somebody was marking it with regard to referees and with regard to my previous applications for employment. That should have suggested to the Tribunal that there was here discrimination".

Mr Isonor was of course entitled to make those allegations and to have the Industrial Tribunal consider them with proper care. The Industrial Tribunal heard those responsible for this randomisation, Mrs Severn and Mr Mitchell, as well of course as Mr Isonor. If it had felt that either Mrs Severn or Mr Mitchell were not being frank with the Tribunal it would have have been its duty to say so and to carry out further investigations. On the contrary the Tribunal accepted the evidence of those two officers of the DSS; that the reason why Mr Isonor was not called to interview was because of the randomisation process which has been described as a lottery.

This Appeal Tribunal had told the Industrial Tribunal what it was to look carefully for, to see whether indeed this was a sham, or whether it was flawed or vitiated, and the Tribunal did exactly that. The Tribunal said that it found that it was not a sham; that Mr Isonor's name went into this lottery with all the other names of all the qualified candidates. It did not emerge from the lottery as one of those who was to be called to interview, for the simple reason that Mr Isonor was not fortunate enough to come within the 1 in 8 or 1 in 7 who was selected.

If the Tribunal had any doubt about that it would have said so, but it was satisfied by the evidence which it had heard. Once it had come to the conclusion that the lottery, if I can call it that, the random selection process was a genuine process which was not in any way biased then the Tribunal was entitled and bound to say that the allegation of discrimination under the Act, whether on the grounds of inadmissible reasons or for any other reason, was not made out, and that is exactly what the Industrial Tribunal did say. The question for us of course is whether there is any error of law which we can discover in that decision. We cannot. None has been pointed out to us by Mr Isonor. He has pointed out the matters which he pointed out to this Industrial Tribunal. He says that they were wrong in their finding and that they should have been driven to a different conclusion and that they should have held that the system of random sampling was in fact manipulative, and was manipulated, and that the marks on the application showed that.

Of course it might well have been that a Tribunal which heard the witnesses might have been utterly dissatisfied with the evidence of Mrs Severn, or with the evidence of Mr Mitchell, or with both them, and might have been driven to a different inference and might have held that it appeared that there had been discrimination of some sort or other in the way the test was applied. All that might have happened, but this Tribunal, on the evidence which was before it, reached a different conclusion. There is no evidence before us whatever to suggest that the Tribunal acted in any way unfairly, or that it ignored any evidence, or that it ignored any principle of law. In those circumstances we have to say that no point of law is disclosed by this appeal and it is therefore necessary, and inevitable, that we should dismiss it.