MR O F AYOVUARE v RAILTRACK PLC [2002] UKEAT 1184_01_0908

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1184_01_0908Case No Appeal No. EAT/1184/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O F AYOVUAREAPPELLANTRAILTRACK PLCRESPONDENT
Before
His Honour Judge D SerotaDate 9 August 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE D SEROTA QC : This is a preliminary hearing of an appeal by Mr Omorotu Francis Ayovuare from a decision of an Employment Tribunal at London Central on 30 and 31 July 2001 that was promulgated later in the year, when the Tribunal dismissed Mr Ayovuare's claims based on racial discrimination in relation to unsuccessful applications he had made for appointment to posts of Quantity Surveyor or an IT Systems Manager on three occasions in August 1988, January and October 2000. The Originating Application was dated 21 December 2001. The hearing, as we have said, took place on 30 and 31 July.[2]After the decision had been promulgated on 23 August 2001 Mr Ayovuare filed an affidavit alleging bias on the part of the Chairman, which is answered in a letter from the Chairman of 18 April 2001. The Applicant had made three applications which were all unsuccessful for effectively a promotion within Railtrack.[3]The first of these was, as we have said, in August 1988. No details of this were available and the Employment Tribunal, on the basis of the material before it, was unable to really make any findings, certainly the Applicant was unable to show any kind of case in relation to what happened in 1988.[4]The second related to an incident of January 2000 when a post was advertised. A number of persons applied, including the Applicant who appears to have been the only black person among the applicants. He was not short-listed and the post was eventually filled by someone who was not one of the original applicants. What seems to have happened was that the applications that had been made were all considered by Railtrack. They were looking for a mix of qualifications and experience and, although Mr Ayovuare had good qualifications and some experience, the mix of qualifications and experience was not what Railtrack were looking for and that is why he was not short-listed. Having been, so to speak, rejected and the three persons who had been short-listed and were regarded as suitable, all for one reason or another withdrawing, the position was given to a Mr Akehurst who was not one of the original applicants. He had somehow learned that the position was unfilled. He had then made an application and, as his qualifications and experience mix was considerable to be satisfactory, he was appointed to the job.[5]It is important to note that, although the Tribunal were prepared to accept that Mr Ayovuare may have been given less favourable treatment because he was not put on the short-list, they found that this was not racially motivated. The Employment Tribunal were satisfied that he did not have the necessary mix of qualification and experience. This, according to the Employment Tribunal, was that Mr Ayovuare did not have the appropriate experience in Asset Management, Planned Maintenance Systems, Regulatory Environment, Safety Critical Applications and the use of Network IT Systems. His CV was poor and he lacked experience in Corporate Consultancy. The Applicant's CV did not address those issues and gave little indication he had experience in them.[6]The Employment Tribunal considered it was only right to judge the selection of the short-list on the basis of the applications submitted to the Respondent. The Applicant's complaint is essentially the level of his qualifications, which was academically higher than the other applicants, was ignored. The Employment Tribunal had no doubt that he was exceptionally well qualified. However, the advertisement made clear that attributes other than the high level of qualification in Quantity Surveying or what was required and that Mr Ayovuare had unfortunately failed to recognise this. The Tribunal were entirely satisfied he was not selected for interview because of his lack of experience in a number of areas which were perceived as vital for the post holder and they outweighed in the minds of Railtrack the need for a high qualification in Quantity Surveying. The fact that the Applicant was probably the best qualified among the applicants did not assist him when he failed to have experience in other essential areas. This explanation was accepted by the Tribunal and the Applicant was not discriminated against when not selected for interview. These are findings of fact and it seems to us, subject to what we have to say later on the question of bias, they cannot be revisited.[7]It was then argued (and a point repeated before us by Mr Ayovuare) that he was also treated less favourably as compared to Mr Akehurst as his comparator in that Mr Akehurst was appointed to the job which was never re-advertised and that he was not effectively given a second opportunity to compete for the post.[8]The Employment Tribunal found that Mr Akehurst was not an appropriate comparator. The position might have been quite different if Mr Akehurst had made his application at a time before the original short-list had been drawn up but the fact remains that a fair process, according to the Employment Tribunal, had been undertaken by Railtrack which had led to Railtrack coming to the conclusion that a number of candidates, including Mr Ayovuare, were not suitable for the job. In those circumstances, the Applicant having already been rejected, it seems to us that the Employment Tribunal was quite right in coming to the conclusion that Mr Akehurst could not be regarded as an appropriate comparator. We refer to the reasoning of the Tribunal at paragraphs 7 and 8. Mr Akehurst was not among the original batch of applicants from whom the short-list was prepared so the circumstances needed to be considered under Section 3(4) of the Act were not the same. He was not an appropriate comparator.[9]Mr Ayovuare then went on to deal with the further post for which he made application in October 2000 and when, again, he was not called for interview. This is a matter that is dealt with by the Employment Tribunal in paragraph 16 of its Extended Reasons. The post that was being advertised was for a qualified Quantity Surveyor, Quantity Surveying / IT Systems, but a number of relevant attributes were required including qualification and experience. Mr Ayovuare complained to the Tribunal (and again to us) that the candidate who was eventually selected did not in fact have a formal qualification as a Quantity Surveyor. Mr Ayovuare considered that he had far stronger qualifications; he was a qualified Quantity Surveyor. Nonetheless, the Tribunal at paragraph 3 (xvii) at page 11 of our bundle, accepted the assessment of the Applicant by Mr Akehurst.[10]Mr Ayovuare did not seek to challenge assessments made against other applicants, save that of the qualifications of candidate D. None of the candidates had the full range of attributes which the Respondent was seeking but on the basis of the importance of relevant experience candidates C and D were selected for interview, candidate D was eventually appointed. He had Corporate experience as a Consultant to the London Underground and through that also experience of Safety Critical work. He was experienced in Network IT and Databases. He was also looking for a salary within the range which the Respondent was expecting to pay. On the other hand he had no Regulatory Asset Strategic experience or Planned Maintenance experience. Save for an issue as to his qualification and that is, although he had experience as a Quality Surveyor, he did not have the formal qualification, the Tribunal found that Mr Akehurst's assessment was a fair and reasonable one of all the candidates based on the information conveyed by their applications and CVs. That also included Mr Akehurst's assessment of the Applicant.[11]In the circumstances it seems to us that the Tribunal was perfectly entitled to find on the facts, as it did, having reviewed the evidence very carefully, that the reason the Applicant was not selected was nothing to do with race, nothing to do with any stereotypical view of his abilities but because his lack of experience in certain areas, as described in his CV, counted against him and we would refer to paragraphs 16, 17, 19 and 20 of the decision.[12]We are concerned to see if there is an arguable point of law. The fact that the Applicant challenges factual findings comes nowhere near to constituting an arguable error of law. It seems to us that this Employment Tribunal directed itself correctly as to the law, it directed itself that in considering questions of discrimination there was a two-stage test. Firstly, was the treatment of the Applicant less favourable than that afforded to others? Secondly, was the reason for less favourable treatment based on racial grounds? Furthermore, the Employment Tribunal appreciated and directed itself to the relevant authorities: see King v The Great Britain China Centre [1991] IRLR 513 , Zafar v Glasgow City Council [1998] IRLR 36 and Anya-v-University of Oxford [2001] IRLR 377 , as to the importance of drawing inferences in cases of alleged discrimination because evidence of direct overt discrimination is usually difficult to find and we refer to paragraphs 10 and 11 of the Employment Tribunal decision.[13]The Employment Tribunal decision weighed up the facts and applied the law, as it correctly directed itself; it accepted the evidence of Railtrack's witnesses and found there was no discrimination. In paragraph 20 of the decision, they say that they considered all the issues very carefully, they appreciated the Applicant's concern since they understood he had made many job applications without success and they say:
"We can readily understand that he may have come to believe that his race has been an adverse factor in these applications. On this occasion, the Tribunal is entirely certain that the Applicant's race had no affect on the decision. The selection of interviewees and the final appointment is entirely justified on the grounds of established criteria which we have seen to be justified. In these circumstances we find that the less favourable treatment which the Applicant received in not being selected for interview was not on the grounds of his race."
Those findings, it seems to us, were entirely within the proper remit of the Employment Tribunal and it is not for us to interfere.[14]Mr Ayovuare has however, also made allegations of bias. We read from paragraph 6 of the Further and Better Particulars of his Notice of Appeal, where he had stated that the decision of the Tribunal was perverse, erred in law, unreasonable flaws, without refer to the statutory provisional and bias and that no reasonable could have reached such decision. He says this in paragraph 6, which perhaps gives an indication as to the nature of his case on bias:
"On the second advertisement, it became very clear the Respondent could not hide their racial discrimination. The same principle were applied as the situation became more of the degree the racism of the Respondents. The Tribunal clearly found more racial discrimination of facts and less favourable treatment of facts. However, the Tribunal found all these facts yet, they accepted the Respondent's explanation. This is another perverse, erred in law, flaws, bias, unreasonable and without statutory provisional. I called on the Chairman to resign and that he is unfit to be a Chairman of a Tribunal."
Mr Ayovuare also complained in paragraph 7:
"That for a Chairman of Tribunal who is either a qualified Lawyer or Solicitor to say that he did not know what is meant as a qualified Quantity Surveyor and he did not know the difference between professional Qualifications and Academic Qualifications. That Chairman is so bias and unreasonable that he is unfit to be Chairman and he should resign immediately."
[15]There is more to the same effect. One only has to set out the terms in which that affidavit is addressed to see that it describes nothing that could properly be described as any bias on the part of the Chairman. Such allegations in our opinion should not have been made and they are wholly without merit.[16]We have come to the clearest conclusion that so far as this application is concerned, there is no arguable point of law disclosed by Mr Ayovuare and therefore his appeal must be dismissed.