Allen v Council For Voluntary Service [1996] UKEAT 56_95_1207

EAT
Allen v Council For Voluntary Service
[1996] UKEAT 56_95_1207 · 1996-07-12
MR JUSTICE BUCKLEY: In 1993 Mrs Allen worked for the Respondents as Deputy Manager at one of their two residential homes for the elderly. The Respondents decided at that time that because of their deteriorating financial position, it was necessary to rationalise the operation of their two homes. They decided that they would do that by creating one new manager's post for the two homes combined. They advertised nationally for such a manager. Mrs Allen was invited to apply and she did so along with twenty-eight other Applicants. They all received a job description and candidate specification form which they completed. Mrs Allen did not complete such a form. There is some factual doubt as to precisely what happened. Her account was that Mrs Shilson, the administrator, told her not give those details on her form, but to refer on the form to her personnel file, because the Respondents had all her details in any event.It may be that there was some misunderstanding but the fact is that Mrs Allen gave minimal personal details on her file, but that was not found satisfactory. In due course she was asked to write a letter to Mrs Shilson, describing her work and how she saw the running of the two homes. Her application was bolstered by that letter. In due course a panel of five members considered the contents of all these forms and Mrs Allen's letter, and on the strength of that, they decided which of the candidates should proceed to interview. In other words they drew up a shortlist for interview. Mrs Allen was not included and she was dissatisfied by that decision. She had worked for several years for the Respondents and, had not, so far as can be seen, been subjected to any disciplinary or critical comment in her working career, which appears to have been entirely satisfactory in the job that she had been doing. She felt, unhappily, that the decision had been motivated consciously or unconsciously, by racial discrimination, and she applied to an Industrial Tribunal.The Industrial Tribunal was held at Bedford on 26 and 27 October. We have been told, it is not challenged and indeed we see from the record of the hearing, that the Respondents called all five of the panel members and evidence was given by them to the Industrial Tribunal. The unanimous conclusion of the Tribunal was that the complaint was not well-founded and the application was dismissed.The matter comes before us by way of appeal. Miss Hyde who has appeared for the Appellant (as Mrs Allen now is) makes two submissions. One, that the Tribunal applied the wrong standard of proof in assessing this matter, and secondly, that their conclusion is, in any event, perverse, given the findings of fact that they made. The attack on the Tribunal's approach in law as to standard of proof, really comes to rest on paragraph 12. Miss Hyde fairly acknowledged that leading up to paragraph 12 the Tribunal had directed themselves correctly, in the sense that they had referred to the appropriate cases and set out the proper test. In paragraph 9 they refer to the case of King v The Great Britain China Centre [1991] IRLR 513 , and they recite the proper test from that, namely, that while it is for the Applicant to make out his or her case of racial discrimination, a finding of discrimination and a finding of a difference in race, will often point to the possibility of racial discrimination.These two factors, the Industrial Tribunal decided, were present in the case, and in those circumstances, the Tribunal looked to the employer for some explanation. If none was forthcoming or an inadequate one, it would be legitimate to infer that the discrimination was on racial grounds. They noted the point that it was not necessary and indeed sometimes undesirable, to focus on intention. They also noted that incompetence does not without more become discrimination, merely because the party affected by it is from an ethnic minority; Mrs Allen is of Afro-Caribbean origin.Miss Hyde accepts that the Tribunal by referring to some at least of the relevant cases and setting out the test, appear to have approached the matter correctly, or at least appear to have directed themselves correctly, until they come to paragraph 12 and there, submits Miss Hyde, there is evidence that they have in practice applied the wrong standard. It is perhaps appropriate just to read paragraph 12 in those circumstances:
"12 The difficulty in the present case is, therefore, in finding evidence that the unsatisfactory way in which the respondents' inadequate procedures affected Mrs Allen lead to an inference of racial discrimination against her. We can find no evidence to justify such a conclusion. The respondents' failure to apply a fair and proper procedure applies equally to applicants of all races, whether minorities or majorities. Even if we were prepared to infer from low markings for Mrs Allen by individual panel members that, for racial reasons, they did not wish to see Mrs Allen's application proceed so far as an invitation to an interview (and there is very little from which such inferences could be made for any individual panel member) it seems to us inconceivable that the five panel members conspired to prevent Mrs Allen from proceeding to the stage of an interview because of her colour. While, as has been seen, it is not in general necessary for there to have been an intention to discriminate for there to be a conclusion of racial discrimination, in this particular case we have found it impossible to conclude that there was racial discrimination in the absence of such an intention."
Miss Hyde has sought to persuade us that there is there evidence or an indication that the Tribunal were elevating the question of intention to an inappropriate position, that they were, in effect, considering an intention to stop the Applicant proceeding to interview. There is the question of a conspiracy and again it was not necessary to find a conspiracy, and in all, this paragraph indicates that they had departed from the proper direction they had given themselves and were placing too high an evidential burden in the Applicant's path. We have obviously considered that submission carefully, but firmly reject it. Any decision by a Tribunal has to be read as a whole, and as we have endeavoured to indicate, when that paragraph is read in context with its predecessors, we do not think it is open to the criticism levelled at it.The overall scheme of the reasons in this case is, that having set out the background to which we have referred, the Tribunal does go on to look at the selection procedure adopted by this panel and they identify numerous criticisms or shortcoming in it. They set those criticisms out in some detail. They then direct themselves on law as we have indicated and it is only finally that paragraph 12 is recited. In context, we are quite unable to read that as giving rise to any valid complaint in law. The reference to conspiracy it is suggested by Mr Beggs, who was at the Tribunal, is probably because the Applicant when being cross-examined did allege that there was a conspiracy. The suggestion from Mr Beggs, and it is not necessary to reach any conclusion on this, strikes us as very likely, in that the Tribunal felt it necessary to refer to conspiracy, since it was a complaint of the Applicant. At all events, all they are saying is that they, as a fact, find the suggestion of conspiracy inconceivable. They have specifically noted the surprisingly low marking of Mrs Allen by one or two individual panel members, but there are no findings that extend that beyond those Members.As to the latter part of that paragraph it seems to us that all the Tribunal is saying is that in this particular case, notwithstanding the criticisms that they have identified, they find it impossible to draw the inference of racial discrimination. They have directed themselves that they should consider drawing the inference that it is rare, if ever in these cases, you find direct evidence of racial discrimination, and they have considered whether they can and they have decided that it is impossible to do so, and that on the particular facts of this case, it would probably have taken a finding of intent to get home.The next criticism is one of perversity. This is put forward on the basis that the findings of fact are such that no reasonable Tribunal could have failed to draw an inference. Miss Hyde in her very helpful Skeleton Argument identifies several findings, including that there was a difference in race, Mrs Allen was black; there was a finding that the inadequate procedures affected the Appellant; there were wide variations in the individual scoring sheets; there was a general criticism that the panel members did not really stick to their brief, in the sense that they added some thoughts of their own as opposed to ticking the appropriate boxes; also the shortlisting process was thoroughly unsatisfactory and that they at best only partially found the explanations from the Respondents satisfactory.Those are indeed criticisms that were made, but there are findings on the other side of the scale, for example: there is no finding that the inadequacies in the procedure did not affect white candidates, of whom there were many. We are told there was one other black applicant, the others were white. The Tribunal specifically find that in paragraph 12, where they say that the Respondent's failure to apply a fair and proper procedure applies equally to all candidates. They also drew attention to the fact in paragraph 13 that the job in question was a very different one from Mrs Allen's previous job. They say:
"We also think that Mrs Allen failed to appreciate that the new manager's post was substantially different from that which she occupied and in some of its aspects required previous experience of which she had very little."
A finding of perversity is, happily, relatively rare because the test is a very strict one as we have indicated. What has to be remembered is that at the end of the day, this was wholly a matter of fact for this Tribunal. They got to the stage of asking themselves whether the findings that they made did form any proper basis for an inference of racial discrimination. It is clear from their findings that they had all the relevant facts in mind. There is no criticism of the Respondents that has been drawn to our attention that they could have made but failed to make. At the end of the day, they have not been prepared to draw the inference and we feel quite unable to say that they were irrational or unreasonable. We bear in mind, as we have already said, that they did hear the witnesses, the members of the panel, called by the Respondent, and had that advantage. No doubt they scrutinised their evidence and their demeanour carefully, bearing in mind that they were as critical of it as they were. We reject that attack on the Tribunal's decision as well, and this appeal must fail.We are grateful to both Counsel. In the event we heard more from Miss Hyde, who had a difficult task, and no-one could have said more or more persuasively than she did, but this appeal must be dismissed.