Nottingham County Council v Ayub [1995] UKEAT 439_94_1505

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 439_94_1505

Case No Appeal No. EAT/439/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Nottingham County Council

Ayub

Date 15 May 1995

MR JUSTICE MORISON: Mr Ayub who is Asian and whom, if we may, we shall call "the Applicant", applied for a post of Senior Equality Adviser with Nottinghamshire County Council, whom we shall call "the Council". The advertisement for the position encouraged members of the Afro-Caribbean community to apply, particularly welcoming applications from candidates with an Afro-Caribbean perspective. The Council had recently established an equalities unit. There was a need for three senior equality advisers. Following a previous recruitment attempt, only two suitable appointees were identified, a white disabled woman and an Asian man. It was the desire of the Council that the third appointee should be somebody with an Afro-Caribbean perspective, to represent the interests of that community falling within the Council's constituency. Of the thirty-seven application forms submitted, twenty-two were from Afro-Caribbeans (in other words 60%). All six persons shortlisted were Afro-Caribbean and thus the Council had, through their selection process, ensured that the appointee was from the desired ethnic group. Positive discrimination on the grounds of race and the selection of persons for employment is unlawful under Section 4 of the Race Relations Act 1976 , unless it can be shown that being of a particular racial group is a genuine occupational qualification for the job.

(d) is relevant:

"being of a particular racial group is a genuine occupational qualification for the job only where (d) the holder of the job provides persons of that racial group with personal services promoting their welfare, and those services can most effectively be provided by a person of that racial group."

The Applicant believed that he had been discriminated against by the Council on racial grounds, in the way they dealt with his application for the position. He believed that because he was Asian, he was not shortlisted for the post. He said that the Council had moved from encouraging Afro-Caribbeans, or people with an Afro-Caribbean perspective, to fill the position, into unlawful positive discrimination in their favour, when carrying out the selection process. He presented a complaint to an Industrial Tribunal on those grounds, which were clearly set out in his I.T.1. In their amended response to the complaint [the I.T.3] the Council said that whilst it was desirable "to appoint someone from the Afro-Caribbean Community" in reviewing candidates' application forms and compiling a short-list "The County Council Equal Opportunities Policy was adhered to" and all candidates were considered "using the criteria that any appointment must be based upon merit and experience." They said that all applications were considered by Ms Bandana Ahmad, an Afro-Caribbean, who is head of the unit, together with two other persons with substantial management experience, who we understand, are white Europeans. It was averred that:

"Subsequently all 37 applications were considered and candidates were short listed on the basis of the essential criteria only. It was not necessary to consider the desirable criteria as the candidates who had been attracted were of a high enough standard to form a short list based upon the essential criteria."

Paragraph 8 then listed the reasons why the Applicant had not been shortlisted and it was averred in the final paragraph that for those reasons, and those alone, he had not been shortlisted. This full statement of reasons was entirely consistent with the reply to the Applicant's question to the Council, served under Section 65 of the Act . This reply is admissible in evidence and from it a Tribunal may draw inferences adverse to the person making it. It is to be noted therefore, that it was not the Council's case that they lawfully discriminated against the Applicant under Section 52(d) of the Act . Indeed their case was to the contrary. They had not discriminated against him at all, but rather had applied the necessary criteria, and his application was found wanting. It is also important to observe that the Council's case was not that the Applicant compared unfavourably with other candidates, but rather that he failed to meet the necessary criteria. This was not therefore a typical or usual case, where the Industrial Tribunal are required to look at the cases of the Applicant and of comparators. At the hearing before an Industrial Tribunal, held at Nottingham on 14 February, the Council were represented by one of their employed solicitors and the Applicant by a representative of his union. The Tribunal Decision which was entered in the Register on 25 February 1994, was by a majority that the Applicant had been unlawfully discriminated against on the grounds of his race. He was awarded £2,000 for injury to his feelings.

The Industrial Tribunal recited the evidence of Ms Ahmad, who explained that all thirty seven applications were assessed against seventeen important criteria, but they noted that:

"No indication was given whatsoever as to how each applicant had scored in each of these criteria and against each of the applicants a sentence was put, apparently summarising the effect of each application on those making the selection."

The Industrial Tribunal were referring to a document prepared by the Council which is headed `Senior Equality Advisor - Equalities Unit'. It is a form which has the name of each candidate in the left hand column and then twenty two blocks or marks against various headings, such as strategic planning, and the final column on the right, was headed comments. The purpose of using a marking system is to ensure so far as possible, that a panel reviewing all candidates makes objective assessments of them, so as to exclude the risk as far as possible, of racial or other bias. Using objective criteria closes the door as far as practicable to the entry of subjective, perhaps unintentional, and unconscious racial considerations, which might otherwise corrupt the integrity of the decision.

In this case, none of the candidates had received a score. None of them, including the Applicant, had had any specific comments entered in the relevant box. Across the various boxes were written a one-sentence remark in relation to each candidate. We shall refer to this document as the "assessment form". The Industrial Tribunal continued:

"4. It seems to the majority that although Mrs Ahmad may have acted perfectly properly, she has not demonstrated, and cannot demonstrate, the way the matter was dealt with and that the 17 essential criteria were addressed by Mrs Ahmad and her 2 colleagues. It must therefore follow that Mrs Ahmad has not demonstrated to the majority that she has made a proper appraisal or assessment of the 17 important criteria which she specifically mentioned in her evidence. Every applicant for the job is entitled to expect a proper appraisal and to have proper consideration given to his or her application. It is not sufficient for the respondents to say that they treated all applicants the same. If they say that they have assessed 17 important criteria, it cannot be done without making some kind of comment against each of the criteria.

5. It is a fact that all those shortlisted were of a different ethnic origin from the applicant. The majority are therefore able to draw the inference that the applicant was treated less favourably than those of a different ethnic origin who were shortlisted.

6. The majority therefore find that the applicant was discriminated against on the grounds of his race.

7. The minority says that he is satisfied that the respondents made a proper appraisal of the 37 applicants to arrive at those shortlisted. He says that, in his experience, this is the usual way to do things and not to deal with the essential criteria separately.

8. We clearly cannot say that even if the operation had been carried out properly that the applicant would have got the job. There can therefore be no award to the applicant for any loss of earnings. The applicant clearly will be entitled to a sum of money to cover injury for feelings. We are bound to take into account the size of the respondents and that they ought to have a system of dealing with applications for jobs which is beyond reproach. We also take into account that we believe Mrs Ahmad did not deliberately discriminate but merely carried out an inadequate selection process. Doing the best we can, we have decided to award the applicant £2000 compensation by way of injury to feelings."

The Council appealed against that decision on two main grounds:

) The Industrial Tribunal wrongly refused to allow Ms Ahmad to give evidence about matters going beyond the reasons given in the assessment form. Specifically, she was not allowed to give evidence about the application forms of the other candidates, nor about the detailed reasons of how the shortlist came to be prepared.

) The Tribunal Chairman constantly interrupted witnesses, so as to render the proceedings unfair.

This case has been complicated by a number of features. In the first place, the Council have filed with this Court an Affidavit, setting out in some detail the recollection of the in-house solicitor who appeared for the Council. In it he has commented upon the reasoning as disclosed in the decision, and puts forward his own interpretation of it. This is unhelpful. We must look only to the Decision and not otherwise. It so happens that his recollection of what the Industrial Chairman said, does not accord with the recollection of the union officer, who attended the hearing on behalf of the Applicant.

Second, we have not been provided with the Notes of Evidence, which could have been requested by the Appellant Council but were not. There is an issue between the parties as to whether the Industrial Tribunal allowed the Council's witness to go through the job application put in by the Applicant. We cannot resolve this issue. The Notes of Evidence would have shown what had happened and we think these Notes should have been obtained.

Third, the allegations were put to the Industrial Tribunal Chairman and he has declined to comment upon them.

Fourth, no application for a review was made to the Industrial Tribunal concerned. Such an application was not a pre-requisite to an appeal, but where contentions such as these are being raised, there are many cases where such an application for a review, even when it is refused, will assist us on an appeal.

The position therefore is that, we are somewhat restricted in the way we can approach this case. It seems to us important that the parties should be given a fair opportunity of presenting their cases before an Industrial Tribunal. Sometimes a losing party is so convinced that his case was right, that he can only see unfairness in the way a Tribunal has behaved when rejecting his claim. We have therefore considered this case with great care, having regard to the wider public interest, that justice should not only be done, but be seen to have been done.

The matters raised by the Notice of Appeal have been succinctly and attractively argued on both sides and we are grateful to Counsel for their assistance. In relation to the first ground of appeal, what is said is that the Industrial Tribunal effectively decided that, unless there was a proper scoring system, the Council could not demonstrate any objective reason for the rejection of the Applicant for inclusion in the shortlist. It is said that the Industrial Tribunal effectively set the Council a hurdle, which by definition they could not jump over. If an individual assessment of each of the seventeen criteria were required, then the Council could not succeed. At some stage during the hearing, the Council's solicitor asked that the witness should be able to go through all the other thirty-six applications to justify the contention that their approach was objectively sound. There is an issue between the parties as to whether they asked in the alternative for the applications of the six successful candidates to be analysed in evidence, but we cannot determine that issue. In relation to the application that was made, we do not consider that the Industrial Tribunal can be criticized for refusing it. The issue was whether the Council could justify their assertion that the reason why this Applicant, an Asian, was not shortlisted, was because he had not met the criteria. The other applications ran to over four hundred pages. If the Industrial Tribunal were to have to examine each application against the seventeen criteria, as Counsel for the Applicant submitted to us, the hearing before the Industrial Tribunal would have extended for days and days. It was not the Council's case that the Applicant had not been shortlisted because the other candidates were better than him. It was because he failed the necessary criteria.

It seems to us that there are no arguable grounds for saying that the Industrial Tribunal created a hurdle, which was impossible for the Council to jump over. They invited the Council's only witness to say why the Applicant's application had been rejected. We see no grounds for believing that she was prevented from setting out everything that she relied upon, as showing that the apparent discrimination of the Applicant was not due to race. Having regard to what she said, the Industrial Tribunal were entitled to say that although they did not disbelieve what she said, they were prepared to infer that race played an unintentional and possibly sub-conscious part in the decision. That was an approach that they were plainly entitled to take, having regard to the following in particular:

1. The terms of the advertisement for the post:

"We particularly welcome applications from candidates with an Afro-Caribbean perspective..."

The fact that all shortlisted people were Afro-Caribbean, although 60% of applicants were Afro-Caribbean, which suggests of itself a bias upon racial grounds.

The fact that the Council appear not to have followed their own procedure in making objective assessments of the individual criteria, against which a person's suitability for the job was to be considered, contrary to what was asserted in the I.T.3 and the response to the questionnaire.

In other words, the Industrial Tribunal were entitled to conclude that the Council had failed to justify, in some way or other, how those criteria had been applied objectively to the Applicant, so as to avoid the plain inference to be drawn as a matter of commonsense from the facts, that the Council were guilty of unlawful positive discrimination. We do not read the Decision as restricting the Council's evidence in any way. Whilst if we may say so, the Decision is somewhat thin, we are not prepared to say that the conclusion reached in it was one to which no Industrial Tribunal properly directing itself, could have come. Therefore, despite the able and cogent submissions by leading Counsel, Mr McLaren QC, we reject the first ground. As to the second ground, the position is yet more difficult. Some Industrial Tribunals play a more active part in the proceedings than others. The point where interruption ceases to be fair or proper, is usually easy to spot in practice but very difficult to define. Here we do not have a transcript, we do not have Notes of Evidence and we do not have the Chairman's comments. We are not persuaded that the Chairman overstepped the mark on this occasion; the Applicant's representative does not agree that he did. It seems to us that as things stand, we must reject this ground of appeal as well.

Accordingly, on the special facts of this case, we dismiss the appeal and ascribe, if we may, the feelings of unfairness about the hearing to the surprise which the Council may have felt at losing a case, which they may have thought, rightly or wrongly, was bound to succeed.