MR B SAWYERS v BIRMINGHAM CITY COUNCIL [1999] UKEAT 754_98_0103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 754_98_0103

Case No Appeal No. EAT/754/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B SAWYERSAPPELLANT

BIRMINGHAM CITY COUNCILRESPONDENT

Before

Mr Justice Morison

Date 1 March 1999

MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the unanimous decision of an Industrial Tribunal which rejected Mr Sawyers' complaint that he had been unlawfully discriminated against by Birmingham City Council on grounds of his race.

Mr Sawyers' complaint was that he had applied for the post of Area Community Development Officer with the Council but had not been short-listed in connection with that application on the grounds of his race. The Tribunal heard from one witness on behalf of the City Council who was Miss Prior. It was a fairly senior post that he was applying for, paying a salary starting at some £4,000 or more than the applicant was then enjoying in his capacity as Equality Officer at Dudley Racial Equality Council. It marked, found the Tribunal, the Council's first level of junior management in the Leisure and Community Services Department. The successful applicant's main responsibilities in the post would involve managing other staff to deliver resources to the community.

After he had failed to be short-listed, Mr Sawyer, the Appellant, invited the City Council to explain why it was that he had not been selected and he received a full response which listed five criteria, which Miss Prior claimed the Applicant failed to satisfy. The Tribunal noted that those five criteria were not the same criteria as appeared on the matrix which was being used for assessing candidates, although three of them were the same. But it went on to say:

"It should be noted however, that these discrepancies were not noticed during the Hearing. They were only identified by the Tribunal in their subsequent analysis of the evidence."

They then dealt with each of the five stated reasons and came to the conclusion that in respect of four of the five, those explanations did not hold water. The reasoning process is to be found in sub-paragraphs of Para 2.17 of the decision, which does not need to be cited in full. In relation to the fifth criterion, the Tribunal found that Miss Prior had a little more success in convincing the Tribunal of the reasonableness of the exclusion of the applicant on that ground.

"Mr Sawyer sought to cross-examine Miss Prior at some length concerning details in his curriculum vitae which, in his mind, showed that he had sufficient planning and consultation experience but Miss Prior consistently pointed out with justification that the applicant had, for the last 7 years, been involved at agency level basis, dealing with representatives of other organisations at least, so far as planning and consultation was concerned and that his involvement was not at grass roots level with members of the community themselves."

Having dealt with that part of the case, the Tribunal's conclusion was that the short-listing exercise was clearly defective and defective on other grounds as well. They noted that there was evidence given that a failure to score a tick in each of the essential criteria was fatal to the candidate's short-listing but that that simply could not be true because they looked at the way ticks had been placed against other candidates and indeed, lack of ticks in relation to the person who was subsequently the successful candidate.

The Tribunal noted that the Birmingham City Council "were especially relaxed for their own internal applicants and/or any favoured candidate":

"This inevitably draws us to the conclusion that the rigid application of the criteria in the applicant's case was because the Committee did not want him on the short-list."

Then at Para 2.20 the Employment Tribunal said this:

"However, having been less than impressed by a number of Miss Prior's explanations, we would record one factor to which she did consistently refer and which we accept marks a considerable difference in relation to the applicant's case and that of others who were short-listed. She referred to the type of work that the applicant had been doing for the last 7 years. She pointed out that it was predominantly working with other agencies. The applicant had not been concerned as many of the other applicants had been with the direct provision of services to individual members of the community. However, this post was a management post, managing others who were providing direct services. She felt that the applicant did not have the breadth of substantial experience that they were looking for at this level of post and she convinced us that both she and the Committee felt the shortfall was crucial. There were over 40 applications for the post; the majority of which were from people whose current position involved the direct provision of services to the community in the way the Committee understood that, which excluded the applicant. Rightly or wrongly, we are convinced that the Committee were prejudiced in favour of such applicants and against the applicant, who did not have that immediacy of relevant experience".

The Tribunal then directed themselves as to the law in a way which cannot now be criticised and they addressed their minds to the key points in the case which they described in Para 3.7 as being the reason why Mr Sawyers was disadvantaged and treated less favourably in the selection procedure: was it on racial grounds or for some other reason?

They noted that the essence of the complaint was not so much that he was being down-marked or disadvantaged but certain applicants, particularly internal candidates and candidates presently employed within a Local Authority environment were being favoured. They went on to say this:

"The most compelling one which really does help us to decide this case is that we have accepted that the Committee, probably guided by Miss Prior, were genuine in their beliefs that the type of experience which the applicant had obtained over the previous 7 years was not nearly as relevant as the experience of many others of the applicants who were merely looking to step up the ladder, as it were, whereas the applicant was, in reality, on a different even if reasonably parallel ladder."

They then referred to the burden of proof and they went on to discuss the question as to whether this was a case where they should draw the inference that the reason for the non-selection for the short-list was race. They said this:

"We do think he (the applicant) was involved in a different type of work and as such, it is likely that he would have had to get back into the direct provision of Community Services before he could be expected to be promoted into a management grade. Whilst we do not condone the Respondents' actual manner of selection and the liberties they took with their own procedures and criteria, we are bound to concede to them that the short-listed applicants had more relevant, direct and up-to-date experience in the field of the appointment than did the applicant. We are not, therefore, satisfied that he would have made the short-list, even if the playing field had been level. Accordingly, we are persuaded that the Respondents have shown to us an explanation for the failure to short-list which is, at least, as likely, probably more likely, than a racially discriminatory reason. In those circumstances, it would not be safe to draw the inferences to which we have referred and we are not prepared to do so."

They then went on to say that they had found the case a difficult one and they had given careful and considerable thought to Miss Prior's totally unsatisfactory reply to a question as to the part played by a particular person at the short-list meeting and whether that person had declared prior knowledge of the applicant. They were not satisfied that on the balance of probabilities, he had involved himself in influencing the Selection Committee based on subjective knowledge of the applicant and accordingly, they dismissed the application.

There was an appeal filed in this case and in due time, there was a Preliminary Hearing in front of His Honour Judge Hicks and two colleagues. The wide ambit of the challenge to the Tribunal's decision was narrowed down as a result of the Hearing.

At the end of the Judgment, the Employment Appeal Tribunal said this:

"We therefore dismiss the Appeal, so far as it rests on that ground, that is misdirection, or indeed, any of the other grounds in the Notice of Appeal insofar as they are separate or different from those argued and come back to the one point on which we consider that the Appeal should proceed to a full hearing. It is raised in Para 6.2(a) and (b) of the Notice of Appeal and is founded upon a passage in cross-examination as the Appellant or someone on his behalf has recorded it, which plainly, is not reflected in the summary of evidence contained in the Tribunal's reasons. It may be, but we cannot tell for certain, that the corresponding passage is that summarised in the first part of Para 2.20 of the decision, but if so, there has been some divergence of record with the precise words used and we consider that this ground should go forward for a full hearing and that the Chairman should be asked for the notes of that passage of evidence."

In due course, the Chairman was invited to provide his notes of evidence but he also attached to his notes, two other notes. I wish to say at this stage, that it is not appropriate for a Chairman to add any comment to his notes of evidence when he has been asked to provide them. The purpose of asking for notes of evidence is that the Employment Appeal Tribunal may taken them into account when considering a perversity appeal or as here, when considering a particular part of the Judgment. Chairmen are not entitled to pass comment on points which they have not been asked to comment upon by the Employment Appeal Tribunal. We have no doubt that the Learned Chairman, in this case, made these notes in the utmost good faith but I have indicated, during the course of this Appeal, that we would pay no attention to what was said by the Learned Chairman in either of those two notes but would concentrate solely on the notes of evidence which he provided.

The Appeal came on for hearing before us and we had the advantage of a short and succinct skeleton argument presented on behalf of the Appellant by Mr Panebar, who has represented him on this Appeal. I can quote from the admirably succinct skeleton because it sets out in a nutshell what was being said. It was submitted that Miss Prior, the City Council's witness, shifted her ground on a number of occasions and that her answers to submissions or questions by the Applicant who represented himself, to the effect that he had relevant experience of working directly with the community, demonstrated that the City Council, through her, was prepared to "stretch" the relevant criteria so as to exclude at any cost the Applicant from being short-listed. It was submitted that the conclusion of the Industrial Tribunal, namely that it was satisfied that the reason for the failure of the Respondents to short-list the Applicant was based on considerations of essential criteria and not race, was perverse and/or irrational on the totality of the evidence.

In an equally admirably clear skeleton argument, it is submitted by Mr Corbett of Counsel on behalf of the City Council, that the perversity ground is not sustainable because there was plainly, having regard to the notes of evidence, material on which the Industrial Tribunal was entitled to arrive at its conclusion.

Essentially, as it seems to us, Mr Panebar was saying two things:

The appropriate moment at which the Tribunal should be testing Miss Prior's evidence was in relation to what happened at the selection stage. In other words, it should have been concentrating on the reason that she gave to the Applicant subsequently for his non-selection; and

In any event, it is apparent that there has been dodging and weaving by the City Council as to the reason why this Applicant failed to be selected; that the witness was on the one hand, saying that there was a lack of management experience and on the other hand, was saying that there appeared to be a lack of experience of delivery of a service directly to the public and that there was a movement between those two positions which showed that there was no clear cut reason why this Applicant had failed to meet the necessary criteria which was stipulated for this appointment.

It is not necessary in this Judgment for us to rehearse in detail the points which Mr Panebar made by reference to the notes of evidence.

It seems to us that there are certain preliminary observations which it would be appropriate for us to make before deciding this Appeal.

Firstly, members of the visible ethnic minorities or people of colour as they may be referred to, are discriminated against in the employment field.

Secondly, rarely, if ever, will there be an acceptance of discrimination in the selection process for employment, but rather, discrimination in such cases is to be inferred and will be inferred or may be inferred where the employer has departed from an agreed procedure or has demonstrated a lack of objectivity in the selection process, or where the immediate reasons given for the non-selection do not stand up to scrutiny.

Thirdly, looking at the position of discrimination in the employment field, one might expect Employment Tribunal decisions to reflect the continuing pattern of discrimination in this area and it may be that in general terms discrimination is not detected as often as discrimination exists.

Fourthly, Employment Tribunals must not be astute to attribute less favourable treatment to unreasonable conduct or incompetence on the employer's behalf when race would provide an equally logical or sound reason.

Fifthly, where appropriate, Tribunals should be prepared to draw an inference of race, however unpleasant a task that might be.

Additionally. in this case, we would make the observation that it is utterly regrettable that an authority of the size of the Birmingham City Council should have adopted selection processes and followed them in a way which was open to the criticism made by the Employment Tribunal. The procedures which should have been followed are designed to ensure that the selection process is carried out objectively and that the element of subjectivity is excluded so far as is reasonably possible in an exercise of this sort. It seems to us that the City Council would be well advised, at a senior level, to look at this case and to learn from what has happened so that these sorts of mistakes are not made again.

We turn now to the way the Appeal should be dealt with and I have already given an indication as to our overall conclusion. It seems to us that this is a case where this particular Employment Tribunal very nearly, as it were, drew the inference which the Applicant was inviting them to do. As we understand their reasoning process, which is well set out, the Employment Tribunal would or might have drawn an inference of race if they had not been satisfied, having looked at the applications of the people who were short-listed, that their applications were more meritorious in general terms than that of this Applicant. We do not feel able to say, in this case, that the failure by the Employment Tribunal to draw an inference of race demonstrates either an overt or a covert misdirection in law. By covert misdirection, I include the perversity appeal in all its forms including irrationality.

It is, as it seems to us, clear that the Employment Tribunal have reviewed with care the evidence given by the City Council's witness and the way she dealt with, not only the reasons she gave when asked by the applicant why he was not short-listed but also, elaborated in her evidence why it was that the Council had not thought it right to short-list him. But this is a case where we are satisfied many Employment Tribunals would have been prepared to draw the inference of race and it may be that had this court been sitting as a fact-finding tribunal an inference of race would have been drawn by us. But because we are satisfied that this has been a conscientious and well-informed decision by the Employment Tribunal and because its reasoning process satisfies the requirements of the law, we are not able to accede to Mr Panebar's submission that there has been a misdirection in this case.

Although the Employment Appeal Tribunal on the Preliminary Hearing had referred to a paragraph 2.20, it emerges that the Chairman's notes of evidence show a slightly different picture from that which was in the mind of the Applicant at the time when the Appeal was before this court. We would not wish to criticise the Applicant in any way for the way he made his note. We think that whether one looks at the Applicant's own note or at the Tribunal's own note of the evidence, it is clear that the Tribunal Chairman played an interventionist role during the course of the cross examination of Miss Prior. He is to be congratulated for taking that course, bearing in mind that the Applicant was unrepresented. It was the duty of the Tribunal, as it seems to us, to ensure that the Applicant's case was properly put to the City Council's witnesses and tested. The art of cross examination is always difficult for unrepresented parties and we think it entirely understandable that the Learned Chairman behaved as he did, which was to take an active and positive role in the questioning of the City Council's witness. Whether that, of itself, led the Applicant/Appellant to a false sense of appreciation as to the likely outcome of his application we do not know, but we would wish to emphasise that Tribunals should undertake this role as was admirably done by the Learned Chairman in this case.

Accordingly, we have not been persuaded, at the end of the day, that the Appeal should be allowed. We consider that the Tribunal were entitled to arrive at their conclusion on the facts. The Appeal must be dismissed.