MR R PLETTELL v BRITISH AEROSPACE (OPERATIONS) LTD [2001] UKEAT 446_00_2007

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 446_00_2007Case No Appeal No. EAT/446/00 EAT/678/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R PLETTELLAPPELLANTBRITISH AEROSPACE (OPERATIONS) LTDRESPONDENT
Before
Mr Justice Douglas Brown Ms S R Corby Miss S M WilsonDate 20 July 2001
[1]APPEARANCES For the Appellant IN PERSON For the Respondent MR STUART BURNETT (Representative) Engineering Employers Western Association Engineers House The Promenade Clifton Down Bristol BS8 3MB MR JUSTICE DOUGLAS BROWN : Mr Plettell appeals from the decision of the Employment Tribunal sitting at Bristol dated 23 February 2000. The respondents are British Aerospace (Operations) Ltd.[2]Mr Plettell claimed that he had been the subject of racial discrimination in connection with his application for employment. Mr Plettell is of Indian origin although this is not apparent from his name.[3]On 3 June 1999 he saw an advertisement in a local paper for Tool Design Engineers. The work of such engineers would involve production of design schemes, detailed drawings and computer aided design data analysis to support overall design engineering projects. Applications were invited from those preferably with an HNC in engineering and a recognised engineering apprenticeship with tool design experience in the aircraft industry. Applicants should be conversant with 2D and 3D CAD draughting systems and have a good working knowledge of tool manufacturing techniques. The advertisement stressed that good communication skills and a flexible customer-oriented approach were also important.[4]He had applied to the same company in November 1998 for a similar position and had filled out an application form which disclosed his ethnic background. That application was unsuccessful although he was told his application form would remain on file. The advertisement in June 1999 requested that a CV and salary details be sent and initially Mr Plettell did not send his CV.[5]On 22 June British Aerospace wrote to Mr Plettell asking for an up to date copy of his CV. The letter was signed by a Mr Steve Dumbleton, Human Resources Advisor. On 20 July he was sent a letter indicating that currently there were no vacancies matching his knowledge and experience. Consequently his application could be taken no further. It was acknowledged during the hearing that this letter was a mistake as there were still, at that stage, vacancies to be filled.[6]At the beginning of their reasons the Tribunal reminded themselves of the guidance in King v. Great Britain-China Centre, 1992 1 ICR 516. The Tribunal found existence of discrimination and a difference in race. It was permissible for the Tribunal to require the employer to give an explanation for that discrimination and in the absence of any satisfactory answer to infer discrimination on racial grounds. That was how the Tribunal approached this matter.[7]There were two principal issues to be decided, both of them factual. The first was whether those conducting the sifting process and selecting applicants for interview were aware of Mr Plettell's racial origin at the time the selection was made. The evidence accepted by the Tribunal was that three people were involved in this selection process. The leader of this team, who was the only one to give evidence, was Mr Andrew Base who was employed as Tool Design Engineering Group Leader. It was Mr Base's evidence that he was not aware that Mr Plettell was of Indian origin at the time he and his colleagues made their selection. The second issue was whether the Tribunal were satisfied as to the explanation given for not selecting Mr Plettell for interview.[8]The Tribunal made findings adverse to Mr Plettell on both issues. They accepted Mr Base's sworn evidence that he was not aware of Mr Plettell's race at the relevant time. Further they accepted British Aerospace's explanation that the true reason for not accepting Mr Plettell was his lack of recent relevant experience.[9]Apart from Mr Base, another important witness was Mr Dumbleton. Mr Plettell, who at all times has represented himself, sent British Aerospace a race relations questionnaire. Question d. Asked "would you please explain fully and in detail why my application was unsuccessful." The response to that was "You had not been involved in relevant work for the past five years". Question e. was "would you please provide;(i) the name(s), position(s) and ethnic or national origin(s) of the individual(s) involved in reaching the decision in d. above and their respective roles at each stage of your procedures and(ii) the name of any other person consulted in any way regarding the decision and their role. The answer to e. was as follows: "the initial examination was conducted by Sheila Dooley, Human Resources Services Advisor, Recruitment Administrator - receives all applications. Nationality: British. Steve Dumbleton, Human Resources Advisor: provides Line Managers with advice on recruitment/selection: Nationality: British. Andy Base, Tool Design Engineering Group Leader: Line Manager who sifted the applications: Nationality: British. Gordon May, Tool Design Engineering Group Leader: Line Manager who sifted the applications: Nationality: British. Dave Tomlinson, professional Engineer (specialist in CAD) assisted Line Managers in sifting applications: Nationality: British".[10]In response to a further question information was provided that there were two successful applicants out of a total of 13 applications:
"Ethnic origin unknown from individuals CV's"
. Mr Plettell and Mr Burnett, a Director of Operations who appeared for British Aerospace before the Tribunal as well, drew attention to the Chairman's notes of evidence of Mr Dumbleton's cross examination. Asked about the questionnaire he said: I do not provide advice on technicalities but on process, e.g. interview basis. I just receive CV's and pass them on. I made it as a general statement. I had a role in reaching this decision. I could have advised Mr Base to call the applicants to interview but I gave no advice on this. Our role is administrative. I had input into decision making, i.e. putting applications on. I pass on all CV's equally. Sheila Dooley was not involved in reaching the decision".[11]He then went on to say that he first became aware of the possibility of a race claim when Mr Plettell wrote to the company on 27 July after he had been informed his application had been unsuccessful. It was at that stage that he was shown the file from the previous application which showed Mr Plettell's racial origins. It was his evidence that the practice at that time was only to send application forms to those who had been called for interview. His evidence in chief was that shortlisting was done by line management. He was not present at interviews.[12]The Tribunal said this, having referred to a number of problems with British Aerospace's case which we will return to the Tribunal at paragraph 10:
"Finally, there are the replies to the questionnaire which in several respects are misleading and inaccurate. We are entitled to draw inferences from the replies to the questionnaire which are unfavourable to the respondents. In particular, there is a suggestion Mr Dumbleton was involved in the selection process......"
Mr Plettell argued before the Tribunal that the inference should be drawn from the questionnaire answers that Mr Dumbleton was involved in the selection process and that he and his colleagues knew of Mr Plettell's racial background. As it was his job to advise the Line Manager with advice on recruitment and selection the Tribunal should draw the inference that Mr Base probably knew that he was of Indian origin.[13]That was a legitimate argument based on the questionnaire answers and on some of the answers Mr Dumbleton gave.[14]Unhappily the Tribunal did not answer it. Instead they made an apparently straightforward finding that Mr Base was a truthful witness and had no knowledge of Mr Plettell's origins. The Tribunal, however, could not look at Mr Base's evidence in isolation. It had to consider it together with Mr Plettell's submissions about Mr Dumbleton. There was no escape from that submission and it went unanswered.[15]The Tribunal also said:
"We are asked to draw the inference Mr Dumbleton passed this information on to Mr Base before a decision was made and therefore Mr Base knew of the applicants racial origin"
. Nowhere later in their reasons did they refer to that inference again.[16]In our view this failure by the Tribunal, to grapple with the inferences from the questionnaire and their failure to make any assessment on Mr Dumbleton as a witness seriously weakens their finding of fact in relation to Mr Base. This is an error in the process of assessment of the evidence so fundamental that the finding in relation to Mr Base and his knowledge cannot stand.[17]Mr Burnett argued that even if that was the view of this Court, the acceptance by the Tribunal of the explanation for not accepting Mr Plettell was a free standing finding which justified dismissal of the appeal.[18]We do not agree. If the explanation as to the reason for his non-selection stood alone it might be difficult for this Court to find that the decision was perverse or plainly wrong. As we are sending the matter back for re-hearing we say very little about that aspect of the case. There were, as the Tribunal identified however, a number of problems for British Aerospace identified by the Tribunal in paragraph 6 of the reasons.[19]The first is that there were no laid down criteria for selection for the shortlist. Further, the British Aerospace's equal opportunities policy indicated that the policy should be applied in respect of recruitment. It was accepted by Mr Base that he had not been trained in relation to the application of this policy or indeed in relation to general employment procedures. In the result he did not set out the criteria which was required or desirable for this job and to see what extent the applicants met them. A further problem, much relied upon by Mr Plettell is that those who were short listed did not necessarily meet the full criteria set out in the advertisement. Candidate one, who was eventually appointed, had no industry experience. Candidate two, who was also appointed, also had no experience in the industry and indeed, had not been working in it for 5 years as he was just finishing a degree. Other candidates missed or just met the advertisement criteria. Candidate 6 who was specifically referred to in the reasons, had what was described by British Aerospace as their fall back position, had just obtained a Higher National Diploma which was pending in Aeronautical and Mechanical Engineering - a very relevant qualification - but had no experience and had not done an apprenticeship. The arguments on both sides were finely balanced and could be left to the Tribunal to decide.[20]However, the credibility of witnesses was involved, more under the first reason than the second, and in our view all these matters should be heard afresh by a Tribunal directing itself properly on the factual issues. Mr Burnett argued firstly that the racial origin knowledge point could be sent back as a discrete issue to the original Tribunal for clarification. We regard this as going beyond mere clarification. The issue of credibility on both questions are so enmeshed that it would be difficult if not impossible to separate them and for the same reason we reject Mr Burnett's other submission that the whole matter could be sent back before the same Tribunal. The matter will be re-heard by a new Employment Tribunal as we announced at the end of the hearing, the appeal is accordingly allowed.