MS M E KEANE v INVESTIGO AND OTHERS [2009] UKEAT 0389_09_1112

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0389_09_1112Case No Appeal No. UKEAT/0389/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M E KEANEAPPELLANTINVESTIGO AND OTHERSRESPONDENT
Before
Mr Justice UnderhillDate 11 December 2009
[1]APPEARANCES For the Appellant MR I WRIGHT (of Counsel) Direct Access Scheme For the Respondent Written submissions SUMMARY AGE DISCRIMINATION PRACTICE AND PROCEDURE: Costs The Claimant, an experienced accountant aged 50, applied for a large number of jobs advertised online as suitable for newly qualified accountants, and when not offered an interview alleged age discrimination – The Tribunal dismissed her claims on the basis ( inter alia ) that she had no interest in the vacancies and was making the applications only in order to be able to claim compensation and that she had accordingly suffered no detriment – On the same basis it ordered her to pay the Respondent's costs. Held that the Tribunal was fully entitled on the evidence before it to reach the conclusion that it did. An applicant for a job who has no interest in accepting it if offered has no claim for discrimination if the application is unsuccessful. Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 considered. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Watford in November last year presided over by Employment Judge Ryan. The Judgment was given on 26 November, the final day of the hearing; and written Reasons were sent to the parties on 13 February 2009. Only the Appellant was required to attend this preliminary hearing.[2]The background to the case is as follows.[3]The Claimant is an accountant by profession. She is now aged 51. Early in her career she worked full-time for major companies. In particular, between 1987 and 1996 she was a senior manager in the Fixed Income Division of HSBC Markets and managed a team of 28 people. Latterly, she has worked part-time for smaller businesses, including one run by her partner (in the non-business sense of that term).[4]Over a short period in mid-2007 the Claimant responded to 20 or more advertisements posted on-line for accounting jobs. In each case the advertisement was one which, in one form or another, made clear that it was aimed at recently qualified accountants and thus that the responsibilities were appropriate for someone of comparatively limited experience.[5]In the case of each of those applications, as soon as it became clear that she was not being offered an interview, if not sooner, the Claimant served the employment agency in question with a questionnaire under Regulation 41 of the Employment Equality (Age) Regulations 2006 ; and shortly after that she commenced proceedings in the Employment Tribunal claiming age discrimination contrary to regulation 21 of the Regulations. Regulation 21(1) is in the following terms:
"It is unlawful for an employment agency to discriminate against a person — (a) in the terms under which the agency offers to provide any of its services, (b) by refusing or deliberately not providing any of its services or (c) in the way it provides any of its services."
The definition of discrimination is to be found in regulation 3 and is as follows:
"(1) For the purposes of these regulations, a person ("
A") discriminates against another person ("B") if— (a) on grounds of B's age, A treats B less favourably than he treats or would treat other persons, or (b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same age group as B, but— (i) which puts or would put persons of the same age group as B at a particular disadvantage when compared with other persons, and (ii) which puts B at that disadvantage, and A cannot show the treatment or, as the case may be, provision, criterion or practice to be a proportionate means of achieving a legitimate aim. (2) A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. (3) … " We should say that it does not seem to us obvious that regulation 21 covers the facts of the present case. No point on this was taken below, and we must accordingly be cautious. However, it seems to us arguable that the discrimination alleged did not relate to the provision of the services of the agency and that the discrimination or potential discrimination alleged was that of the client. Thus if the agency was to be liable at all, it would have to be on the basis of regulation 26 which proscribes the aiding of unlawful acts by others. Mr Wright, who appears for the Claimant, suggested that it might be the case that in sifting applications the agency could be said to be providing a service to the applicant for a post. We are doubtful about that but in the circumstances we need say no more about the point.[6]The present proceedings were brought, as we have said, in the Watford Employment Tribunal, initially against eleven agencies. The Claimant settled with six of the respondents at various stages of the proceedings and accordingly there were only five left by the time of the hearing in the Tribunal. At that hearing the Claimant was represented by Mr Ryan Clement and the Respondents by Mr Peter Linstead, both of Counsel.[7]An important argument advanced on behalf of the Respondents at the hearing, although not their only argument, was that the Claimant did not genuinely want any of the jobs for which she applied: the applications were made, partly, perhaps, to make a point about age discrimination, but partly with a view to making a claim in the tribunals which the respondents would pay money to settle. As to that submission, the Tribunal at paragraph 13 of the Reasons said this:
"Both counsel expressly agreed in closing submissions that, were the Tribunal to find that the Claimant had not made a genuine application for employment when she responded to advertisements placed by the Respondents, in other words that she was not interested in the job that was advertised or, were it to be offered, would not have accepted it, then she could not be said to have suffered a detriment if she was not put forward for that position, nor could it be said that she had suffered a disadvantage should the advertisement give rise to a finding of potentially indirect discrimination on grounds of age."
[8]Notwithstanding that observation, the Tribunal in its Reasons started by leaving to one side the question of detriment. Even on that basis it held that in all five cases there had been neither direct nor indirect discrimination – or, more accurately, no act that would constitute discrimination if it were unjustified. Accordingly, all five claims were dismissed. (The Tribunal did, however, deal on an obiter basis with the issue of justification. It noted that the Respondents had only relied on justification in relation to the indirect discrimination claim, and it said that if the issue had arisen it would not have found justification proved.)[9]On that basis, all five claims failed. But the Tribunal went on to consider whether the Claimant's applications for the jobs in question were genuine, in the sense defined in paragraph 13 of its Reasons. It held that they were not, and thus that that - on the basis of the agreed position recorded at paragraph 13 - was an additional reason why the claims failed.[10]It is relevant to note at this stage that a further ten - or it may be twelve - claims of a similar type were brought by the Claimant in the London Central Tribunal. Some were settled, but the remainder were dismissed. We have not seen the terms of the judgment. We are told that the Claimant sought to appeal but her appeal was lodged out of time.[11]The Judgment of the Watford Tribunal was, as we have said, given on 26 November and no doubt was accompanied by short oral reasons. The Respondents then submitted that on the basis of the findings which the Tribunal had made the claims were both misconceived and an abuse of process and that accordingly they were entitled to an order for costs. The Tribunal acceded to that submission and made an award of costs to be assessed in the County Court.[12]The Claimant has appealed against all aspects of the Tribunal's decision. On the sift HHJ Peter Clark held that the Notice of Appeal disclosed no arguable error of law; but at a hearing under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended) on 10 September 2009 HHJ Ansell ordered a preliminary hearing. Counsel appearing at the rule 3(10) hearing, Mr Ian Wright, made it clear that he wished to apply to withdraw the concession recorded by the Tribunal at paragraph 13 of the Reasons. One of the matters on which he relied in support of that application was that counsel previously instructed, Mr Clement, had made the concession without the authority of the Claimant. No doubt so that this Tribunal could be fully informed of the position about that, Judge Ansell provided for Mr Clement to comment on the contents of the skeleton argument submitted for the rule 3(10) application, and such comments have been duly provided.[13]That accordingly, is how the matter arrives before us. The Claimant is again represented by Mr Ian Wright, who has, if we may say so, made his submissions both succinctly and effectively. We should record that since the appeal was lodged the Claimant has reached a compromise with the Fourth Respondent, CMS Consulting; and the appeal accordingly does not continue against that Respondent.[14]It is convenient to start with the application to withdraw the concession, since that has an effect on the arguments that follow. That is the subject of ground (1) of the Notice of Appeal. Mr Wright referred us to the leading case on whether an Appellant may withdraw a concession made at the hearing below, Jones v Governing Body of Burdett Coutts School [1993] ICR 38. In that case Robert Walker LJ, after referring to the authorities which establish that a restrictive approach is taken in this Tribunal to allowing new points of law to be taken, said this, at p. 44B:
"These authorities show that although the Appeal Tribunal has a discretion to allow a new point of law to be raised or a conceded point to be reopened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which because the point was not in issue, were not sufficiently investigated before the Industrial Tribunal."
In that case the Court of Appeal refused to allow a concession to be withdrawn, even though it accepted that it was plainly wrong. Robert Walker LJ acknowledged that that might seem unjust, but emphasised the importance of finality in litigation (see p. 46G).[15]Mr Wright submitted that there were indeed exceptional circumstances in the present case. His submissions were helpfully at paragraph 13 of his skeleton argument under seven points. "1. The question whether an application had to be genuine before a statutory disadvantage could be suffered was "live" throughout the case from the directions hearing in April 2008 until the closing submissions at the closing hearing. 2. The Appellant did not give authority for the concession to be made. 3. The concession was made without any submissions on the question. 4. The concession is badly worded and appears wrong on its face. 5. There is no direct authority under the Regulations for the proposition that an application must be genuine before a statutory disadvantage can be suffered. 6. The point is of importance to practitioners in the field. 7. To permit a concession to be withdrawn, would not open up fresh issues of fact."[16]The first three of those points require a consideration of how the concession came to be made. The issue of whether her applications for employment were genuine was raised at a case management discussion before Employment Judge Gay, when the Claimant was still representing herself; and it is clear from the list of the issues produced on that occasion that she made no concession. In particular, issue 7 (3) was defined as follows:
"If so, can the claimant show the PCP to be to her disadvantage? This is admitted, save to the extent that any Respondent proves that the Claimant's application was not genuine or bona fide and that a genuine or bona fide application is required before the claimant suffers a statutory disadvantage."
A similar point was made at issue 7.7. Mr Wright then tells us, on the Claimant's instructions, that no concession of any kind was made in relation to that issue at the hearing until the start of closing submissions, when there was a discussion between the Judge and Mr Linstead about whether the applications did indeed need to be genuine in the sense which we have defined above. Mr Linstead submitted that they did. The Judge indicated that he agreed and turned to Mr Clement and asked if he agreed as well: it is at that point that he said that he did. The Claimant was apparently surprised, because the point had not been previously discussed between her and Mr Clement; but she did not object or intervene and closing submissions proceeded on that basis. It appears that Mr Clement had already prepared written closing submissions which the Claimant had not seen in advance. We have not ourselves seen these, but we are told that they did not address the genuineness issue one way or another. The Claimant says, however, that if she had seen them in advance she would have raised the point with Mr Clement. That account, given to us by Mr Wright on instructions, is consistent with what is said at paragraph 13 of the Reasons, and also with the written submissions put in by the Respondent for the purpose of this hearing. They say:
"For the avoidance of doubt, Mr Clement did make that expressed concession [that is, the concession recorded in paragraph 13 of the Reasons] in the course of oral submissions which supplemented his written closing submission. Specifically, in response to a direct question from EJ Ryan, he accepted that a genuine or bona fide application was required before C could suffer a statutory disadvantage. This is recorded in notes of the hearing of R's Counsel and separately, those of his pupil."
But it is not entirely consistent with the account given by Mr Clement in the comments which he provided pursuant to Judge Ansell's direction: he says that the point was raised during "housekeeping" at the outset of the hearing. For the purposes of a preliminary hearing of this kind, we should accept the version given to us by Mr Wright.[17]On that basis, we acknowledge that it is a relevant consideration that Mr Clement made his concession without previously consulting his client. We have had no submissions about the formal professional position. As we understand it at present, Mr Clement was under no professional obligation to consult his client before making the concession, since it related not to any part of her claim as such but simply to a particular argument or issue arising in relation to that claim, and as we understand the position counsel has implied authority to run the arguments of law that he judges best in the interest of his client. Nevertheless, we accept that it may be arguable that the Claimant should have expected to be consulted about a concession of this kind, particularly as an educated client who had had the conduct of the case herself at an earlier stage. It might be said that she could have intervened to correct Mr Clement when she heard the concession being made; but we see the force of Mr Wright's point that it can be awkward for a lay client to interrupt her counsel in the course of exchanges between himself and the Tribunal. Having said all that, this point cannot be in any sense decisive. There is no absolute right for a client to have a second bite of the cherry on appeal because his or her counsel has made a concession on a point on which he or she subsequently regrets.[18]We turn to Mr Wright's fourth point. He says that the concession is oddly worded and on its face wrong, in so far as it involves the proposition not simply that the Claimant was not interested in the job but that were it to be offered she would not have accepted it. He points out that it is possible to think of various circumstances where an application might be legitimate even though the applicant would not accept the job applied for if offered, e.g. if he or she was not willing to accept the advertised salary for the post but hoped to be able to negotiate an increase if offered an interview. In our view it is perfectly clear that the Tribunal did not mean to exclude special cases of that kind. The phrase to which Mr Wright objects is simply a gloss on the broader and primary point made, namely that it was necessary that the Claimant be interested in the job that was advertised. That was clearly the test which was applied.[19]We turn to Mr Wright's fifth point. This seems to us to be the heart of the matter. We are bound to say that on the face of it Mr Clement's concession seems plainly right. The definition of direct discrimination in regulation 3 requires some kind of "less favourable" treatment of the complainant, and the definition of indirect discrimination requires him or her to have been treated to his or her "disadvantage". Those elements are commonly and usefully referred to together as "detriment", and that term indeed appears in regulation 7(2) and its equivalents in the other anti-discrimination legislation (although not, as it happens, in regulation 21). There is a fair amount of case-law on what is meant by detriment, the most authoritative and recent being the decision of the House of Lords in Shamoon v Chief Constable of Royal Ulster Constabulary [2003] ICR 337 , but none of that discussion is particularly material for present purposes. The basic point is that we do not see how an applicant who is not considered for a job in which he or she is not in any event interested can in any ordinary sense of the word be said to have suffered a detriment – or, to be more precise, to have been (comparatively) unfavourably "treated" or put at a "disadvantage". Nor can we see any reason why as a matter of policy it is necessary to give some extended meaning to the concept of detriment in this context - on the contrary.[20]Mr Wright sought to counter that line of argument by reference to the decision of the European Court of Justice in Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV [2008] IRLR 732 . In that case a Belgian employer had publicly stated that he was not prepared to recruit Moroccan immigrants. Proceedings were brought against him by the applicant, whose name translates as "Centre for Equal Opportunities and Opposition to Racism" and which is, as the Court records, a body established under Belgian law to promote equal treatment – broadly, therefore, it would seem, equivalent to our own Equality and Human Rights Commission. The question referred to the Court was whether a public statement of the kind made by the employer in that case, without more, constituted direct discrimination. The Court held that it did. Paragraphs 21 to 26 of the judgment read as follows:
"21. With regard to the first and second questions, Ireland and the United Kingdom of Great Britain and Northern Ireland maintain that it is not possible for there to be direct discrimination within the meaning of Directive 2000/43, so that the directive is inapplicable where the alleged discrimination results from public statements made by an employer concerning its recruitment policy but there is no identifiable complainant contending that he has been the victim of that discrimination. 22. It is true that, as those two Member States contend, Article 2(2) of Directive 2000/43 defines direct discrimination as a situation in which one person 'is treated' less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin. Likewise, Article 7 of that directive requires Member States to ensure that judicial procedures are available to 'all persons who consider themselves wronged by failure to apply the principle of equal treatment to them' and to public interest bodies bringing judicial proceedings 'on behalf or in support of the complainant'. 23. Nevertheless, it cannot be inferred from this that the lack of an identifiable complainant leads to the conclusion that there is no direct discrimination within the meaning of Directive 2000/43. The aim of that directive, as stated in recital 8 of its preamble, is 'to foster conditions for a socially inclusive labour market'. For that purpose, Article 3(1)(a) states that the directive covers, inter alia, selection criteria and recruitment conditions. 24. The objective of fostering conditions for a socially inclusive labour market would be hard to achieve if the scope of Directive 2000/43 were to be limited to only those cases in which an unsuccessful candidate for a post, considering himself to be the victim of direct discrimination, brought legal proceedings against the employer. 25. The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependant on the identification of a complainant who claims to have been the victim. 26. The question of what constitutes direct discrimination within the meaning of Directive 2000/43 must be distinguished from that of the legal procedures provided for in Article 7 of that directive for a finding of failure to comply with the principle of equal treatment and the imposition of sanctions in that regard. Those legal procedures must, in accordance with the provisions of that article, be available to persons who consider that they have suffered discrimination. However, the requirements of Article 7 of Directive 2000/43 are, as stated in Article 6 thereof, only minimum requirements and the Directive does not preclude Member States from introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment."
[21]It will be apparent that the Court's reasoning does not bear on the facts of the present case. The claim was not one brought by an individual claimant and there is nothing in it which suggests that an individual claimant not affected by the declaration of intent to discriminate could bring a claim. On the contrary, indeed, the judgment assumes that the mischief in the employer's conduct lies in the fact that candidates for a post may be dissuaded from applying and thus lose the chance of getting a job. The reasoning simply does not consider at all the possibility of candidates who do not want the job in the first place. It may be that the decision in Centrum reveals a lacuna in the 2006 Regulations in so far as they do not appear to provide for the Equality and Human Rights Commission, or any other body, to bring proceedings of the character brought in the Belgian case; but that is not a matter which arises on this appeal.[22]Thus, while Mr Wright may be literally correct in his submission that there is no direct authority under the Regulations for the proposition that an application must be genuine before a statutory disadvantage can be suffered, we think that that proposition is self-evidently correct; and if there is or was no previous authority, there is now.[23]As to Mr Wright's sixth point, this would have some weight if the concession made by Mr Clement were wrong, or at least arguably wrong. But, for the reasons which we have just given, we do not believe that to be the case.[24]As to Mr Wright's final point, it is true that the withdrawal of the concession would not open up fresh issues of fact, but that again is of no real weight if the concession was correct in the first place. We would add that even if we thought the point conceded was in fact arguable there would still be a substantial prejudice to the Respondents in having to argue it in a separate hearing in this Tribunal when it could and should - if not conceded - have been decided in the course of the hearing in the Employment Tribunal.[25]For those reasons, applying the language of Jones v Burdett Coutts , we do not find that Mr Wright has established any exceptional reason for allowing the concession to be withdrawn. It is fair to say, however, that the central element in our reasoning is simply that we do not think that the concession was wrong in the first place, and to that extent our decision is based on substance rather than any procedural difficulty.[26]Once we have reached that conclusion, the next question is whether the Tribunal erred in law in concluding that the Claimant's applications in the present case had not been genuine in the relevant sense. This is the subject of ground 2, and also ground 5(iii), of the Notice of Appeal. That question was considered in some detail by the Tribunal at paragraphs 112 - 131 of the Reasons. We need not set out those paragraphs in full, but we can summarise the reasoning as follows.[27]At paragraph 114 the Tribunal restates the issue as follows:
"It appeared to be common ground that a job application would be genuine if the claimant wanted the job set out in the advertisement, in that if it had been offered to her she would have accepted it and thus the purpose of the application was to obtain the job. It was further accepted that the mere fact that the claimant thought she would likely be rejected, does not meant that an application for that job will not be genuine."
Mr Wright makes the same points about that paragraph as he earlier made about the concession, which indeed it repeats in substantially similar language. We reject those points for the reasons which we have already given. We note that the final sentence makes a point in the Claimant's favour: the Tribunal was not approaching this in a purely mechanistic manner.[28]The Tribunal then proceed to set out the Respondent's closing submissions on this aspect. It makes it clear both at the start of the passage and at the end that it accepted those submissions. We need do no more than, at most points, summarise the twelve points made by the Respondents.[29]The first of the Respondents' points was that the Claimant had given no adequate explanation of why at this stage of her accountancy career she wanted a job that was apparently aimed at someone with little or no experience, rather than one which would use her experience in business accountancy and management (Reasons paragraph 116).[30]The Respondents' second point depends on the way in which the Claimant proceeded in all eleven cases. As the Tribunal put it at paragraph 117:
"In all cases, the pattern was the same: an application on 4 May followed by a letter on 11 May and a questionnaire on 18 May 2007."
The Tribunal goes on to give rather more detail of particular cases, including making the point that in two of them that pattern was followed without the Claimant having heard anything from the agencies and not even knowing if her claim had been rejected or not. It then makes the point at paragraph 118 that the service of a statutory questionnaire was likely to frustrate the process of actually getting the job. The Claimant sought to explain why she had been so - our phrase not the Tribunal's - "trigger-happy", but the Tribunal rejects that explanation as a matter of fact at paragraph 118.[31]The third point was that the Claimant failed to follow up her applications by telephone, as one might have expected she would wish to do if they were genuine applications. Again, the Claimant had apparently given an explanation for that but the Tribunal rejects that explanation at paragraph 119.[32]At paragraph 120 the Tribunal addresses a fourth point made by the Respondents, which concerned a conversation with a Ms Shaw of CMC Consulting who had got in touch with the Claimant and, while not offering the job, had made various encouraging noises and had offered her the opportunity to explore other opportunities, which she declined. The Tribunal had made extensive findings of fact about this conversation at paragraph 70 of the Reasons, and it finds at paragraph 120 that the attitude which the Claimant evinced in that conversation was strongly indicative that she had no real interest in obtaining employment with CMC Consulting. It observes at the end of that paragraph:
"Her invitation for the Respondent to respond formally showed only an interest in litigation and the Claimant regrettably deliberately obstructed the process of finding herself a job."
CMC is one of the Respondents with whom the Appellant has now settled; but that does not mean that the evidence about how she dealt with Ms Shaw was not relevant to the Tribunal's conclusion on the claims overall.[33]The fifth point was that the Claimant did not tailor her application; that is to say, she submitted identical CVs under the terms of an identical covering letter in relation to each of the eleven applications.[34]The sixth point was that the CV contained as the Tribunal put it, "factual and typographic errors" which: "… showed a lack of care inconsistent with a genuine desire to obtain these jobs. The Claimant was asked about this. It was compared in submission to the fastidious attention to detail in her analysis of the case and in the Tribunal's judgment she was unable to give any proper answer as to why the quality of her CV was frankly poor." (See Reasons paragraph 122).[35]The seventh point made by the Respondents and accepted by the Tribunal was that although the Claimant had extensive experience as a qualified accountant she did not apply for jobs commensurate with that experience. Again, the Claimant had given reasons in cross-examination why that was the case, but the Tribunal finds those to be unconvincing. In particular, it was impressed by the fact that she gave no good explanation for failing to look for more appropriate jobs (see Reasons paragraphs 123 to 124).[36]The eighth point was that it appeared from the evidence that in searching for jobs online the Claimant had used search criteria which restricted the level of jobs for which she was applying; and a similar point was made as the ninth point, namely that the evidence strongly suggested that she had deliberately searched for advertisements indicating that candidates who were newly or recently qualified were being looked for.[37]The tenth point made by the Respondent and adopted by the Tribunal was that there was no adequate explanation for the fact that, having been working part-time for some years, she was now apparently suddenly looking for full-time work.[38]The eleventh point concerned what was said to be the way in which the Claimant changed the goal posts in defining the age group which was being discriminating against, once she found evidence that at least one of the Respondents had offered consideration to candidates in the age group in which she put herself. 39. The twelfth point was put as follows at paragraph 129 of the Reasons:
"The Claimant was said to be making money out of the litigation. She had brought separate claims in Central London and Watford against 21 separate Respondents. She had been largely unrepresented, the costs to her therefore were minimal and although she had claimed she was litigating in order to take a stand against the industry, she had made financial settlements, it was said, with up to half of the original parties. She stated that she could not actually remember how many other parties she had compromised with and that was said not to be credible."
And then at paragraph 130: "The Tribunal was invited thus to find that her purpose of making applications was to obtain money from recruitment agents rather than to obtain a job for herself. It was invited to find she had not applied for the numerous jobs listed at page 44. In fact she produced no evidence at all of those applications although in some cases she alleges that she was short-listed and interviewed.[40]On the face of it, those twelve reasons fully entitled the Tribunal to reach the conclusion that it did. Mr Wright in his skeleton argument challenges them under five heads.[41]Mr Wright's first heading is "why she wanted the posts at all". He submits as follows:
"The Tribunal found the Appellant had not given an adequate explanation why she applied for posts apparently aimed at those with little or no experience, rather than those which would have used her experience in business accountancy and management. The Tribunal's reasons do not refer to the Claimant's witness statement or cross-examination where she had explained her recent experience was of part-time work and self-employment, but she now wanted to return to full-time employment. In the light of that experience, she did not expect to be appointed to a highly paid full-time position, but expected instead to have to work her way up from a more junior position."
In our view, it is clear from the reasoning that we have summarised that it is not the position that the Tribunal did not have regard to, or ignored, the Claimant's explanation: rather, it did consider the explanation but it did not accept it. That is particularly clear from paragraph 127 of the Reasons, which deals with what we have described as point 10.[42]Mr Wright's second heading was "the chronology of the applications". He says this:
"The Tribunal referred in detail to the pattern of the applications, with an application followed in quick succession by a letter and a questionnaire. It is submitted, the Tribunal failed to understand the Appellant's evidence that she would have accepted a position had it been offered, but thought that the applications were futile. It is submitted, an Applicant is genuine despite not expecting to be offered the post. Indeed, this must be the common experience of many who have been unemployed for long periods, they apply in hope but without expectation."
As to that, there is no reason to doubt that the Tribunal understood the Claimant's evidence. Indeed, as we have noted, it conceded the very point which Mr Wright makes here, namely that there may be circumstances where an applicant applies for a job genuinely but with little expectation of getting it: see para. 27 above. However, again it is clear that the Tribunal did not believe that that was the case here. Unsurprisingly, it thought it more likely that the making of, to use the Claimant's own term, "futile applications" was motivated by something other than a wish to get the jobs in question.[43]Mr Wright's third challenge is under the heading "the general nature of the applications". He says this:
"The Tribunal seemed to place some weight on the fact that the Appellant sent a general CV and covering letter to support her applications rather than bespoke applications. The Appellant explained further information would have been sought by the agency if her application had been put forward. This is not recorded. The Appellant also believed it was industry practice for applicants to send a general CV listing experience and this believe was supported by examples of CV's in the hearing bundle."
The fact that the Tribunal did not expressly mention the explanation said to have been given by the Claimant on this point does not in our view even arguably constitute an error of law. The fact that a standard-form CV and standard-form covering letter was submitted in each case was not treated by the Tribunal as decisive, but it was part of a number of points which together supported the conclusion that it reached.[44]Mr Wright's fourth point is headed "factual and typographical errors". He submitted that the factual error in question was no more than a confusion between the date at which the Claimant passed her accountancy exams and the date at which she qualified, and that the typographical errors were trivial and could be of no significance. However, in our view, the Tribunal was entitled to regard the fact that the Claimant had submitted a CV which it plainly regarded as somewhat shoddy in its presentation as indicative of its lack of genuineness. It was plainly entitled to take the view that people of the Claimant's experience and maturity would appreciate that employers were likely to be impressed by the way in which a CV was presented as well as by its substance.[45]Lastly, under the heading "making money out of the litigation" Mr Wright challenges paragraph 129, which we have set out at para. 39 above. The point which he makes is that although the Tribunal refers to the costs incurred by the Claimant as being minimal, it subsequently found, in the part of the Reasons dealing with the costs application, that she had paid some £15,400 on what is described as "legal advice and representation" (Mr Wright clarified for us that that went beyond simply the services of Mr Clement in the present litigation) against settlement sums from both the Watford and London Central claims of £23,300, of which it was said that £6,500 had not at that point been paid. The point therefore is that, at any rate looking at sums received, the Claimant had not made any substantial net recovery. We cannot however see any inconsistency here. What the Tribunal was concerned with at paragraph 129 (which of course reflects its reasoning before it had heard any evidence of the actual amounts recovered or the costs, which was given only in connection with the costs application) was the state of mind in which the Claimant conceived and brought these claims. At that stage, as the Tribunal pointed out, she was unrepresented, and it is entirely right to say that the costs as she would have understood and experienced them at that point were minimal. The fact that subsequently, when some at least of the Respondents showed no interest in settlement and she had to proceed to a tribunal, she had to incur legal costs cannot be read back into the state of mind with which she started the litigation.[46]Accordingly, we do not believe that Mr Wright's grounds of challenge establish that it is arguable that the Tribunal's decision that the applications were not genuine was perverse. That conclusion is determinative of the appeal as a whole. Although the Claimant seeks under grounds (3) and (4) to challenge aspects of the Tribunal's detailed reasoning on the direct and indirect discrimination issues in the individual cases, those points can get her nowhere if she suffered no detriment. Likewise, if the decision that the claims were brought with an ulterior motive is sound, the award on costs is also unimpeachable.[47]For those reasons, we must dismiss the appeal.

Cited in 1 later judgment