(1) MRS J K WHEELER (2) MRS H NEWTON v DURHAM COUNTY COUNCIL [2000] UKEAT 839_99_3011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 839_99_3011Case No Appeal No. EAT/839/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MRS J K WHEELER (2) MRS H NEWTONAPPELLANTDURHAM COUNTY COUNCILRESPONDENT
Before
His Honour Judge H Wilson Mr P R A JacquesDate 30 November 2000
[1]APPEARANCES For the Appellants MISS M TETHER (of Counsel) Messrs Thompsons Solicitors Percy House Percy Street Newcastle-upon-Tyne NE1 4QW For the Respondents MR A LYNCH QC Instructed by: The County Secretary and Solicitor Durham County Council County Hall Durham DH1 5UL JUDGE WILSON : This has been the full hearing of the appeal by the applicants against the decision of the Employment Tribunal, sitting in Newcastle-upon-Tyne in 1998 and 1999, that the respondent Council did not unlawfully discriminate against either of the applicants on the grounds of their sex. The appellants have been represented today by Miss Tether, who presented a skeleton argument upon which she based her oral submissions. The Council has been represented by Mr Lynch QC who also presented a skeleton argument which formed the basis for his submissions on behalf of the Council. The cause of the complaints arose out of a reorganisation in the Council's Architectural Department and the matter was concerned primarily with events in the new Environment and Technical Services Department. The new Department was left with a reduced establishment and budget and was going to be organised into three divisions. There was one post which was in contention and for which these two appellants and a male counterpart, Mr Fenwick, were competitors. Mr Fenwick was appointed and the two appellants complain that that demonstrated sex discrimination.[2]The tribunal produced a decision of 20 pages and correctly set out the statute law which is contained in section 1(1) of the Sex Discrimination Act 1975 , in particular section 1(1)(a). They then went on to consider whether the discrimination, if satisfied, was unlawful under section 6 and in particular section 6(1)(a) and (c). That is to say the arrangements made for the purposes of determining who should be offered employment or refusing or deliberately omitting to offer females that employment.[3]The tribunal went on from the statute to consider the appropriate cases namely, King v Great Britain China Centre [1991] IRLR 513 and Zafar v Glasgow City Council [1998] IRLR 36 in which the House of Lords endorsed the guidelines propounded by Neill LJ in the earlier case. In particular the tribunal correctly directed itself with regard to guidelines 3 and 4, that is to say that firstly, the outcome of a case will usually depend on what inferences it is proper to draw from primary facts found by the tribunal; and secondly, that there may be some cases where the non-selection of an applicant is clearly not on discriminatory grounds and a finding of discrimination or a difference will often point to the possibility of discrimination. In such circumstances, the tribunal looks to the employer for an explanation. If no explanation is put forward or if it is regarded as inadequate or unsatisfactory, it will then be open to the tribunal to infer that wrongful discrimination is the cause.[4]Because of the conclusion to which we have come, we do not propose in this judgment to go deeply into the facts of the matter, which have been fully canvassed by Counsel on both sides today. What we do propose to do is to point to several instances where it seems to us the tribunal fell into error in the way in which it sought to apply the law about which it had initially, quite correctly, directed itself.[5]In particular we look at paragraph 20 of the decision which deals with the question of interviews of these candidates. We note that it is there set out that Mr Johnson and Ms Hirst attended the interviews. Mr Johnson is the Head of Service and an engineer by background. With Mr Findlay being away on leave, arrangements were made for Mr Bradfield (who had already been slotted into another post) to attend the interviews. Mr Bradfield knew the candidates well having worked with the Authority for some 30 years. Unfortunately he was ill and was therefore unable to attend either the preliminary or the formal interviews. Mr Johnson did not think it necessary to postpone the interviews. He had some knowledge of the candidates, and Mr Findlay had told him that they were all capable of doing the job. Mr Findlay, who of course was away, had expected to be there, and he thought it was unfortunate that there was no one was available with full knowledge of the applicants' experience and the work they had carried out.[6]It seems to us that that situation gave rise to the question why the interviews were not postponed. That question apparently was not asked at all. The answer to it might have led on to whether the explanation was satisfactory, and, if not, whether the inference of sex discrimination should be made.[7]We turn next to what is set out in the decision at paragraph 21, which is to do with the equal opportunities policy and the recruitment code. Those are both matters about which the Council has policies which are set out in paragraph 23 of the decision. As we understand it, it is common ground that the provisions of the policy and code were not followed in this case. But the question was not asked, why?[8]Similarly we note that in paragraph 24 it is stated that the:
"Management Guide to the Recruitment and Selection of Staff … [ is ] not apparently … supplied to the Elected Members, who do undertake much of the final selection interviewing."
Again, it seems to us, that that finding of fact gives rise to the question, why? Particularly when we go on to what is set out in paragraph 36 about the Recruitment Code of Practice and in particular to the matter at subparagraph (d) to do with references. That paragraph states that references were not taken up and goes on to say:
"One cannot say whether this was to the advantage or disadvantage of the applicants. We do however think that Mr Johnson's statement in evidence that reference from Architects in the former department would not have been taken into account by the panel, coupled with the absence of anyone with architectural experience at either preliminary or final interview, did give the applicants the right to feel aggrieved that the Members had been misled as to the relative experience of the three candidates."
The subparagraph ends by stating that those "matters do not constitute discrimination on the ground of the sex", but there is no indication that the proper question was asked: why were references not taken up and if the answer to that was not satisfactory whether sex discrimination was to be inferred.[9]So far as the final interviews are concerned, we notice what is set out in paragraph 38 of the decision. It is there stated that the Elected Members did not see the application forms of the candidates and the paragraph continues:
"The summary prepared by Mr Johnson was said to disadvantage both applicants and over-state Mr Fenwick's experience. … The summaries of experience given at the start of each interview were inadequate. One may of course ask why the Councillors did not receive copies of the application forms."
Indeed one may, but it was not asked. The conclusion of that paragraph seems to us to be a complete non sequitur:
"… the same applied in respect of all candidates [ that is disadvantage ], and we do not consider that the applicants were disadvantaged on account of their sex."
That begs the question that a reference would have shown the experience of each of the candidates which would have been or might have been to the advantage of the female candidates where it could not be to the advantage of the male candidate. Again, no question was asked.[10]The decision goes on to deal with the question of interview lengths and paragraph 40 records the fact that Mr Fenwick had been allowed more time at both the preliminary and the final interviews. Later in the paragraph it is stated that:
"Mr Vout confirmed that Mr Fenwick's formal interview had lasted 30 minutes, long than he had, in many years experience of such interview panels, come to expect."
Again, the question why this was the case was not asked.[11]Finally, we go to paragraph 44 of the decision and we note that the paragraph states, after the quotation the decision in Court of Appeal in Martins v Marks & Spencer [1998] IRLR 326 :
"We also heard a good deal of evidence brought on the one hand to show, and on the other to rebut, the inference we are being asked to make. The question we then have to consider is whether either Mrs Newton and/or Mrs Wheeler were treated by the Council less favourably than they treated or would treat a man in the same or relevantly similar circumstances."
It seems to us that that is the wrong question. The primary facts have to be found. If they give rise to the question, the question is whether there is a satisfactory explanation for the primary facts. If the answer to that question is negative, the further question has to be asked whether sexual discrimination is to be inferred. It seems to us that, in the ways described earlier in this judgment, this tribunal fell into error either by leap-frogging the stages or by not carrying them out at all. In those circumstances the decision cannot be allowed to stand and must be set aside.[12]We direct that the matter should return to a completely different tribunal for retrial. [ Application by Mr Lynch QC, on behalf of the respondents, for leave to appeal to the Court of Appeal ][13]Mr Lynch we are against you. You will have to ask elsewhere. The reason that we are against you is that it seems to us that, although it has taken us a long day to get to the conclusion, and we do not complain about that at all, at the end of the day what it comes down to, in our judgment, is a failure properly to apply what is clearly set out in the guidelines in King .