Shah v London Borough Of Hounslow [1995] UKEAT 822_95_0612

EAT
Shah v London Borough Of Hounslow
[1995] UKEAT 822_95_0612 · 1995-12-06
MR JUSTICE MUMMERY (PRESIDENT) : This is a preliminary hearing of an appeal against the decision of the Industrial Tribunal held at London (North) on 24, 25 and 26 May 1995.The Tribunal explained in extended reasons sent to the parties on 20 June why they came to the unanimous decision that Ms H Shah had not been racially discriminated against by the Respondent London Borough of Hounslow.Ms Shah appealed by her notice of appeal served at the end of July 1995. The preliminary hearing of the appeal is for the purpose of deciding whether the grounds of appeal contain an arguable point of law. Under the Employment Protection (Consolidation) Act 1978, section 136, an appeal only lies to this Appeal Tribunal on a question of law arising from any decision of an industrial tribunal under various Acts, including the Race Relations Act 1976.A question of law is one which concerns the interpretation of a statute or legal rule or principle, the application of a legal provision to the facts of the case and, in rare cases, the perversity of the decision in the sense that it is not based on evidence or is based on findings of fact contradicted by uncontested evidence.There can be no appeal to this Tribunal on a question of fact. There can be no appeal to this Tribunal simply on the assertion that the decision is wrong or on the grounds that the Industrial Tribunal preferred the evidence of one side to the evidence of the other. The function of the Industrial Tribunal is to determine the dispute by hearing all the evidence, by making findings of fact where the evidence is in conflict and by correctly applying the law to those facts. We can only interfere with the decision in so far as there is legal error in identifying what law should be applied to the facts or in misapplying or misinterpreting the law to be applied to the facts.With those remarks we turn to this dispute. It is not a complicated dispute. It is an unfortunate one which we fully understand has given rise to a sense of grievance on the part of Ms Shah.She complained, in her originating application of 25 June 1993, that she had suffered racial discrimination at the hands of the London Borough of Hounslow in relation to her application for the post of human resources manager. In the details of the complaint she says that she is of Asian origin and 34 years of age. She had recently applied for the post of the human resources manager in the Housing Department at the London Borough of Hounslow. She was unsuccessful at the short-listing stage. She requested feedback on the criteria she had failed to meet, but was fobbed off. On 25 February 1993 she wrote to the Assistant Director of Personnel requesting feedback, as well as highlighting a series of incidents which she had experienced in relation to submitting her application form. She received a telephone call on 22 March inviting her to attend for interview on 24 March or, if she could not make that, on 26 March. She was told that, although her application was a marginal one, they had decided that she should be called for an interview. She made a decision not to attend, as it was very short notice and she had very little evidence to demonstrate that it would be a fair interview. She wrote a letter explaining the position and requested a written response to an earlier letter. On 26 March the Assistant Director of Personnel wrote to her stating that the decision of the short-listing panel was that she had failed to meet points of the employee specification. The letter stated that her case was a marginal one, hence their decision to offer her an interview.She alleged that, out of the 25 applications for the post, 11 were from black people. Only four were short-listed. They were all white. They were all internal candidates. On that basis she claimed to be the victim of unlawful race discrimination.There was clearly, on those allegations, a case to be investigated.The Council contested the claim and set out, in their notice of appearance, the grounds of resistance. They referred to the advertisement of the post of the human resources manager in the national newspaper, The Guardian, and also in the magazine Personnel Today. They suspected that there would be a number of internal candidates, but the Director of Housing was anxious that such an important position should be open to the widest possible recruitment market. They referred to the closure date for the receipt of applications. They described the nature of the post and said, in particular, that the specification set out the need for extensive knowledge and experience of personnel practice and procedure and required the ability to advise on employment law, as well as being able to oversee training requirements of the post.Ms Shah was one of 27 applicants. Five were internal candidates. The ethnic origin of the applicants was: 15 white, 6 Asian, 5 African Caribbean and 1 Egyptian. They referred to the listing panel meeting on 22 February and the composition of the listing panel. The panel was unaware of any problems that Ms Shah might have had in submitting her application, which was accepted on Monday, 1 February, that is, after the closing date. The panel were guided in the selection process by the code of guidance on recruitment and selection. The panel were unanimous in their selection of the four candidates for interview, based purely on the strength of the application forms. Nevertheless, conscious of the fact that the successful applicants were all internal white candidates (2 male and 2 female) and being wholeheartedly committed to an equal opportunities and employment policy, the panel members spent considerable time reviewing the unsuccessful candidates. They came to the conclusion unanimously that the difference between those short-listed and others was so marked that no useful purpose would be achieved by expanding the short-list. Initially, Ms Shah was not selected for interview as the panel considered that she had failed to demonstrate sufficient knowledge and experience in general personnel matters as required in the employee specification. Her training experience was in no doubt. However, following reconsideration of her application,she was invited for interview even though her application was considered less satisfactory than that of the other four candidates. She declined the interview and the opportunity to demonstrate that she could meet all the essential requirements of the criteria of the post. In those circumstances, the claim of race discrimination was denied.The Tribunal set out many of the facts referred to in both the originating application and the notice of appearance as part of the facts of the case. They referred correctly to the relevant statutory provisions, cited by Ms Shah on this appeal.

(a) of the Race Relations Act 1976, which provides that:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons;"
We agree with the submission that, as a matter of law, there is no element of discretion in this section. What the section requires, however, is proof not only that there has been less favourable treatment of the complainant than of other persons but also proof that the explanation for that treatment is a racial ground, as opposed to a non-racial ground.We were referred to section 4(1) of the 1976 Act which provides that:
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - (a) in the arrangements he makes for the purpose of determining who should be offered that employment;"
Again, we agree with Ms Shah, who has presented the case on behalf of the Appellant, that there is no element of discretion. It is not a matter of discretion. It is matter of proof of facts. It has to be proved that there is discrimination in the sense defined in section 1(1)(a) in the arrangements made for determining the offers of employment.

(b) of the 1976 Act, which provides that:

"if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers is just and equitable to draw, including an inference that he committed an unlawful act."
That point is relevant to the questionnaire in this case. It is particularly relevant to the fact that one of the answers given to the questionnaire contained an untrue statement about the date on which the interviews were held. That is material from which a Tribunal may draw an inference of unlawful discrimination.The Tribunal then set out the primary facts, which were largely undisputed, relating to the placing of the job advertisement, the application for the job, the specification for the job, and the submission of the application, and the formation of the panel for short-listing. They found in paragraph 12 of the extended reasons that the panel met on 22 February for three to four hours. They drew up a list of four candidates to be interviewed. They gave the numbers of the candidates. They did not include Ms Shah. The panel found that all the candidates were white and internal applicants. The panel looked to see if they could include anyone else whom they considered suitable to be interviewed. They did not. They did not consider that Ms Shah was suitable to be considered as an extra candidate. They referred to the letters that were sent. The next significant event was the final interview. That should have taken place on 17 March. It was postponed to 19 March because of the illness of Mr Langstaff, the Chairman. He was still ill on 19 March, but the interviews took place. They then referred to the events at the interview. They referred to the fact that Ms Shah was asked to attend for interview. She could not be contacted until 22 March. She was informed by Ms Hayer that she was a borderline case, but was asked to attend for interview. Ms Shah, because of this statement, declined to accept the invitation to be interviewed. The Tribunal said that she was not to be criticised for this.The Tribunal went on to state in paragraph 16 that:
"The evidence from the Respondent's witnesses was that there was weighting on items 2, 8 and a of the employee specification, but this was not made categorically clear to the Applicant until the date of the hearing [before the Industrial Tribunal]. However, we find, as a fact, that it is clear from the documentation that an applicant with direct hands-on personnel experience was required. Also in reply to the Race Relations Questionnaire ... the Respondent stated that the Applicant did not fulfil the requirement of 2 and a. We accept [members of the panel] to be truthful witnesses when they say that they had discussed the weighting beforehand and that it was self-evident what was required. We understand that weighting is now featured in an advertisement or in an employee specification."
The Council came in for some criticisms from the Tribunal for sloppy paperwork. They said it was regrettable that the forms for assessing the candidates were not adequately completed. It was regrettable that notes of the meeting of the panel on 22 February were not made. It was regrettable that the Council had delayed in replying to the order for particulars in the proceedings. It was regrettable that Ms Shah was told that she could attend for interview, but that she was a borderline or marginal case.The Tribunal made further criticisms of the Council. Although they found the Council's witnesses to be honest and truthful, they said they were sloppy in the paperwork. They attributed this to a number of reasons, including Mr Langstaff's illness. They did not find that this excused any sloppiness, but they went on to say that this had not had an adverse racial impact. They said the sloppiness affected all the candidates, irrespective of race, ethnic origin or gender.They stated what we regard as a crucial part of their decision in paragraph 19:
"It is quite clear from the evidence of the Respondent's witnesses that they were looking for an experienced, practical person. The Applicant, although having excellent qualifications, did not have this hands-on personnel experience. Her emphasis was on training. The Respondent did not need someone with this expertise."
They then stated their conclusion, that as a matter of fact on the evidence they had heard, Ms Shah was not racially discriminated against. They noticed that one of the members of the panel was of Asian ethnic origin, and that another person of Asian ethnic origin, Ms Arya, was in a senior position in the managerial hierarchy. They noticed that Ms Hayer had been given a responsible position and that she was of Asian ethnic origin. On the basis of this they commented that:
"... employees of Asian ethnic origin are not excluded from senior positions within the Respondent's organization."
They went on to comment that, far from being racially discriminated against, Ms Shah had on two occasions been favourably treated: her application was allowed to be received late and she was asked to attend an interview, despite not having been short-listed.They said, taking all the factors into account, they could not find as a fact or draw an inference that there was racial discrimination against Ms Shah. She did not have the particular expertise required by the Council for the position for which she had applied.As a final criticism, the Tribunal said of the Council that there had been a lack of ethnic monitoring. That was now rectified. They did not think that on they could draw an inference of race discrimination from the facts. In those circumstances, the application failed.There are, in that decision, findings of fact, accompanied by many criticisms of the Council. We cannot question any of the findings of fact. It does not follow that, because the Council had been criticised for the way they handled this whole affair, they were acting on unlawful racial grounds.Where is the error of law? On this hearing we have had the benefit of full argument from Ms Shah's representative, who has identified what are claimed to be a number of error of law. It is contended, first, that the Tribunal misdirected itself and misunderstood or misapplied the law as contained in the 1976 Act, sections 1(1)(a), 4(1) and 65(2)(b).We are unable to find anywhere in the decision an indication that the Tribunal had misinterpreted or misunderstood those provisions. It is said that they have misapplied them in the sense that they have found matters to be proved under sections 1(1)(a) or 4(1) which, it is submitted, should not have been accepted as proved. There is nothing we can do about that. The Tribunal heard the evidence. If, having heard the conflicting evidence they find matters proved or not proved, there is nothing that can be called a question of law for this appeal. In this case they found that the discrimination defined in section 1(1)(a) had not been proved, because they were not satisfied that the grounds on which the Council treated Ms Shah were racial. The same point applies to section 4(1), which turns also on the definition of discrimination. It is not a question of discretion. It is a question simply "Has the applicant, Ms Shah, proved that the unfavourable treatment she has received was on racial grounds?" It was not proved. That is the end of the matter. Section 65(2)(b) is conceded to be a question of discretion. Their refusal to make inferences from various matters, such as the answers to the questionnaire, can only be questioned in this Tribunal if it is shown, not merely asserted but shown, that the refusal to make the inference is perverse: that is, that no reasonable Tribunal, properly considering the matter, would have refused to make the inference that the explanation for the conduct of the Council was racial.We reject, therefore, the argument that there is a misinterpretation or misapplication of those sections.The alternative argument is that the decision was perverse, because no reasonable tribunal, properly appreciating the law, could have reached the decision that there was no racial discrimination. The points made were that the Tribunal had acted on uncorroborated oral evidence of the Council's witnesses, that weighted criteria had existed, contrary to all documentary evidence. There is no legal requirement and, therefore, no legal error in relation to uncorroborated oral evidence. Oral evidence can be accepted in this kind of case without corroboration. It has more weight if it is corroborated, but it is for the Tribunal to decide what weight to attach to oral evidence and whether to believe it or not. There is no legal error in accepting the Council's witnesses' statements about the existence of weighted criteria. Another Tribunal may not have believed it. We may not have believed it. But that is not the point. The question is: was it legally wrong for the Tribunal that heard this case to accept it? It was not, because there was evidence in the form of sworn oral statements of the Council's witnesses and the Tribunal were entitled to accept them.It was also contended that the Tribunal had taken into account certain irrelevant factors in arriving at their decision. The factors highlighted, in particular, were the references to the Asian ethnic origin of senior officials of the Council and the member of the panel. It was asked, how could that be relevant to the matters that Ms Shah was complaining about? They referred to the experience of another candidate (candidate 16) a black candidate, who had asked for feed-back as to why she had not been short-listed and she had not complained of racial discrimination. It was pointed out that it was irrelevant to Ms Shah's complaint that another black candidate had not complained of racial discrimination.We understand the criticisms that those factors might be regarded as irrelevant or, if relevant, of less importance than many other factors. But that does not make the decision legally wrong. It does not make it perverse. The crucial question is: was there evidence for the findings of fact? The answer is: yes. It was given by the Council's witnesses. That evidence was believed. Do the findings of fact lead to the conclusion that Ms Shah's claim fails in law? They do lead to that conclusion because the evidence accepted was that the reason for the treatment of Ms Shah was not racial. It resulted from other matters, such as sloppiness, inefficiency, failure to have a proper ethnic monitoring policy.We have given full consideration to the arguments of Ms Shah, who presented the case forcefully and thoroughly. We really are unable to see in this appeal a point of law.We leave the case with this thought: we understand Ms Shah's sense of grievance. She feels that she has not been fairly treated. She thinks that the explanation for her treatment is racial. She may be correct in thinking that, but what is uncontestable is that there is nothing that we can do about it in a limited jurisdiction confined to correcting errors of law in tribunals' decisions. We do not exist to second-guess industrial tribunals in the way that they have interpreted the evidence and decided what evidence to accept and what evidence to reject. For those reasons the appeal is dismissed at this stage. Whatever shortcomings there may be in this decision in the view of Ms Shah, there is no error of law in it which stands any hope of succeeding on a full hearing.