Sivanandan v Independent Police Complaints Commission & Anor (Sex Discrimination: Indirect) [2016] UKEAT 0436_14_2901

EAT
Sivanandan v Independent Police Complaints Commission & Anor (Sex Discrimination: Indirect)
[2016] UKEAT 0436_14_2901 · 2016-01-29
[1]This is an appeal from the Judgment of Employment Judge Porter made at a Preliminary Hearing on 28 November 2013 with full reasons sent to the parties on 5 March 2014. The Judge struck out claims of indirect sex and race discrimination and made a deposit Order in relation to the claims of unlawful direct sex and race discrimination.[2]At a Rule 3(10) Hearing in December 2014 Mr Justice Singh granted Ms Sivanandan permission to amend her grounds of appeal and, on the basis of her amended grounds dated 8 December 2014, to proceed to a Full Hearing. He recorded her essential submission that the Tribunal had erred in principle in striking out her indirect discrimination claims, and in ordering a deposit for the direct discrimination claims in circumstances where there were likely to be factual disputes but where the Tribunal heard no evidence. He also permitted her contention that there was at least an appearance of bias on the part of the Employment Judge to proceed to a Full Hearing.[3]What should have been a straightforward appeal completed within the 1½ day time estimate, became unnecessarily complicated and protracted, and was not completed in the time allowed, necessitating a further day’s hearing in January 2016. On the second day of the appeal, Ms Sivanandan was unwell with a migraine coming on and was given the short adjournments she requested. Documents were produced by the Respondents in response to evidence given by Ms Sivanandan on the first day of the appeal hearing, and they applied to reopen cross-examination of Ms Sivanandan, again requiring that she be afforded additional time to consider the material. Both on the second day and when the hearing resumed in January 2016, after Ms Sivanandan had completed her submissions on all aspects of the appeal, Ms Sivanandan sought to reopen matters dealt with on a previous occasion. Preliminary matters[4]Before the grant of permission to appeal, the grounds of appeal were sent to Employment Judge Porter in order to enable her to respond to the allegation of giving an appearance of bias on the basis described in the original grounds of appeal. She took that opportunity by producing a written response dated 28 July 2014 (sent to the parties under cover of a letter dated 1 August 2014 by the Employment Appeal Tribunal). After the grant of permission an Order was made by the Deputy Registrar dated 16 January 2015, under paragraph 13 of the Employment Appeal Tribunal Practice Direction , for the Appellant to lodge and serve an affidavit confirming the allegations of bias, and for responsive affidavits to be served thereafter by the Respondents’ if so advised. Ms Sivanandan took issue with that Order on the basis that she did not consider it necessary or proportionate to provide an affidavit and she criticised the Respondents’ conduct in seeking an affidavit. Her objection was considered by the Deputy Registrar who directed by letter dated 9 February 2015 as follows:
“if the parties wish to challenge the Employment Judge’s response to paragraphs 37 to 43 of the notice of appeal they will need to give evidence at the full hearing; no evidence may be adduced without an affidavit. My order dated 16 January 2015 stands.”
[5]Various objections were made to that Order by all parties, the detail of which it is unnecessary to set out. The result was that the matters were considered further by His Honour Judge Peter Clark in Chambers and by an Order dated 13 March 2015 he directed, among other things, that Ms Sivanandan “2. … must lodge an affidavit …. in support of paragraphs 37 to 44 of the grounds of appeal… failing which she will not be permitted to adduce oral evidence as to alleged bias at the hearing” and “3. The Deponents [of affidavits] must attend that hearing.”[6]By email dated 12 May 2015, the day before the hearing, Ms Sivanandan emailed the Respondents’ solicitors noting that it was her “understanding that all individuals that have lodged affidavits must attend the Employment Appeal Tribunal Appeal Hearing, see Order at point 3, of His Honour Judge Peter Clark… that “the deponents must attend that hearing.” ”[7]I have set these matters out in detail because of complaints made by Ms Sivanandan on the second day of the original appeal hearing. All the deponents of affidavits served pursuant to the directions identified above attended the appeal hearing and made themselves available for cross-examination. Ms Sivanandan gave evidence in accordance with her affidavit dated 2 April 2015 and was cross-examined. For the First Respondent, affidavits were served by Peter Fletcher dated 15 April 2015 attaching various attendance notes in relation to the Employment Tribunal Hearing, both his own typed notes and those of Rachel Power, which are handwritten and more comprehensive. Further affidavits were provided by Colin Woodward dated 16 April 2015; and Lucy Dawson dated 16 April 2015. They all gave evidence in accordance with those affidavits and were cross-examined by Ms Sivanandan. For the Second Respondent two affidavits were served by Jane Moorman dated 7 February and 21 April 2015 respectively, and an affidavit was served by David Firth dated 23 April 2015. They both gave evidence in accordance with their affidavits and were cross-examined by Ms Sivanandan. All cross-examination took place on the first day of the appeal hearing on 13 May 2015 without any objection or expression of any concern whatever from Ms Sivanandan. Indeed, when she was asked by me to give a time estimate for her questioning of each witness, she was able to do so with apparent confidence and ease; and cross-examination proceeded smoothly.[8]On 14 May 2015 however Ms Sivanandan complained that she had not been prepared for cross-examination and had been taken entirely by surprise that any cross-examination would occur. She submitted that it must have been obvious to everyone that this was so. Further, Ms Sivanandan asserted that I had “rubbished” her submissions and wrongly made assumptions about her knowledge, despite the fact that she is a litigant in person.[9]Ms Sivanandan did nothing whatever to draw to my attention her surprise (as she accepted) and neither I nor eitherc for the Respondents observed any surprise or lack of preparedness on her part. Ms Sivanandan subsequently apologised unreservedly for her assertion that I had “rubbished” her submissions, stating that it was intemperate. Whatever Ms Sivanandan’s state of mind, I am satisfied that there was nothing in the exchanges between me and Ms Sivanandan that was other than polite and appropriate. Neither counsel for the Respondents observed anything untoward in my behaviour or my observations. I am also satisfied that there was no procedural irregularity in the cross-examination that took place. Ms Sivanandan was afforded ample time to challenge those aspects of the responsive affidavits with which she disagreed and she did so in a focused and cogent manner. In any event, it is difficult to see, in light of the anticipation of oral evidence indicated in the directions and the requirement for deponents of affidavits to attend (a requirement insisted on by her immediately prior to the hearing) what purpose that attendance could serve other than for cross-questioning of the evidence set out in those affidavits. In retrospect, Ms Sivanandan agreed in her reply that she should have guessed that cross-examination was to be expected when she sent her email dated 12 May 2015 reminding the Respondents of the requirement for deponents of affidavits to attend.[10]At the beginning of the appeal hearing on 13 May 2015 the First Respondent applied to introduce 12 additional documents said to be relevant to the bias appeal, as indicating Ms Sivanandan’s track record as a person with experience of bias and discrimination issues in litigation. Those documents had been sent to Ms Sivanandan following a direction made by the Deputy Registrar admitting them. Ms Sivanandan objected to their admission on the basis that they were irrelevant; to the extent that they confirmed her experience they were unnecessary; and to the extent that they showed anything else they were selective, irrelevant and defamatory. During the course of argument documents 1, 9 and 10 were removed from the additional bundle by Mr Gilroy QC, for the First Respondent. I admitted the remaining documents as relevant to the issues raised by the bias appeal for the reasons I gave in a short ruling. Subsequently and in light of that ruling, document 12 was removed.[11]At the resumed hearing on 13 January 2016 Ms Sivanandan complained of procedural unfairness in relation to the admission of those documents. She applied to make additional submissions on this issue, and produced a further skeleton and outline submissions, which I read. In the event, Ms Sivanandan had an additional half day to make her submissions at the resumed hearing, while the Respondents shared half a day to make theirs. Background[12]The facts of this case have not yet been found and this account of the background facts should be understood on that basis. There are however, certain central facts that are undisputed.[13]In late 2012 the First Respondent advertised for investigators and trainee investigators for its internal Directorate of Investigations. The Directorate of Investigations investigates the most serious complaints of misconduct against the police, including where death or serious injury has occurred. The Second Respondent is a Human Resources Consultancy contracted by the First Respondent to assist with recruitment campaigns and in particular the recruitment exercise for investigators and trainee investigators.[14]The application process for investigator and trainee investigator posts opened on 2 January 2013 with a closing date of 18 January 2013. The advert referred to a written person specification for the investigator role. So far as material on this appeal, it required: “Proven experience of conducting investigation in the public or private sectors, including recent experience (i.e. within past 12 months) of: Ÿ Carrying out investigative interviews Ÿ Evidence gathering, analysis and presentation Ÿ Contributing to planning and scoping investigations”.[15]On 10 January 2013 a decision was taken for the “12 months recent investigative experience” to be changed to experience in the last five years. The Respondents say that this change was not communicated to candidates. It was not communicated to Ms Sivanandan. Nevertheless, the Respondents say that it was the basis on which applications were evaluated.[16]There were other relevant requirements, including, experience of making appropriate decisions based on analysis of existing and emerging information and evidence of effective oral and written communication skills, including writing investigation reports.[17]It is the Respondents’ case (not accepted by Ms Sivanandan) that there was a requirement for investigators (as opposed trainee investigators) to “hit the ground running” and given the central importance of investigating allegations of the utmost seriousness, that if a candidate for the investigator post did not demonstrate in his or her application form that he or she met the requirement of proven experience of conducting investigations, the application would not be considered further. The requirement to provide evidence of actual experience in current or previous employment of some aspect of conducting investigations is evidenced in guidance given for “sifting the work experience section” of candidate application forms, which makes clear that applications would be “regretted” if they “DO NOT give evidence of some of the above experience”.[18]By an online application dated 21 January 2013, Ms Sivanandan applied for the post of Investigator. She did not apply for a Trainee Investigator post. She said that she was not currently employed. In the “employment history - previous posts” section, she set out the employment held from 1984 through to 2009. She listed her only employed position since October 2008 as a Discrimination and Human Rights Adviser at “Advice for Life”, a Cambridge law centre post held for seven months between 1 January 2009 and 31 July 2009. The only other work identified since August 2003 was as a self-employed Barrister. She described the Advice for Life role as including “investigating and assessing allegations [employment law breaches] within the statutory framework in order to determine whether there was a basis for a legal claim and its chances of success”. So far as her periods spent as a self-employed Barrister or pupil are concerned she said that she “carried out mostly criminal defence work and also some employment and discrimination work.” This section also referred to leaving the BBC in 1992 to have a child.[19]The application was rejected at the first stage of the process (the paper sift stage). The person who did the sift said:
“Does not have substantive investigatory experience within last 5 years. She has been unemployed since 7/2009 and her last role, which was for six months only was Discrimination and Human Rights Adviser for Cambridge Law Centre. While this involved some investigation of allegations to establish a basis for a legal claim, it was not a full investigative role.”
[20]Statistical information about the pool of applicants and their success rates was provided by the Respondents. There were 1192 candidates for 35 investigator posts. Of these: 1037 were white – 87% 132 were not white – 8% with 2% declining to indicate their race 768 were male – 64.5% 411 were female – 34.5% Of those offered posts 32 out of 35 were white (91.5%) and 14 were female (40%). The Respondents relied on these statistics to argue that the ratio of white applicants to white successful applicants was reasonably similar and certainly not disproportionate; and that the ratio of successful female applicants was higher than the ratio of female applicants in the pool. This, it was said, underlined the absence of any reasonable prospect of success of the unlawful discrimination claims subsequently advanced by Ms Sivanandan.[21]By her ET1 Ms Sivanandan alleged unlawful direct and indirect race and sex discrimination in relation to the recruitment, selection and appointment of investigators. She said that as an Asian woman of Sri Lankan origin she had applied within the relevant deadline and was surprised not to be shortlisted, and not to have passed the initial shortlisting stage. She referred to telephone feedback received stating that she did not demonstrate recent investigative experience and asserted a belief that she had been discriminated against on grounds of race and sex in relation to this application. In particular she said that she had been provided with equalities monitoring information about numbers shortlisted and appointed. She said “the figures provided to me show a disproportionate number of those shortlisted and appointed are white men and former police officers.” As the Employment Judge observed, the claim form did not identify the nature of the claim of indirect discrimination.[22]The claims of unlawful discrimination were resisted by both Respondents. Further and better particulars of the claim were requested inviting Ms Sivanandan to set out with clarity the information required to substantiate her unlawful indirect discrimination claim. In particular, she was asked to identify the provision criterion or practice (PCP) applied; identify how that PCP would put all persons with whom she shared a relevant protected characteristic at a particular disadvantage when compared with others who did not share it; and show how the PCP put her at “that disadvantage”.[23]Ms Sivanandan responded with a document providing further particulars dated 21 August 2013. Under the heading Indirect Race and Sex Discrimination, at paragraph 20, she identified at subparagraphs (a) to (o) 15 PCPs and said “some of the criteria and practices applied are clearly discriminatory and do not require a pool for comparison, but if the Employment Tribunal considers that the pool is needed, the pool for comparators is all those who applied for the investigator job in phase one (at the same time as me) and/or phase one and two combined.”[24]The Respondents regarded those particulars as inadequate and subsequently made applications to strike out the claims on the grounds that they had no reasonable prospect of success or alternatively so little prospects that a deposit should be ordered as a condition of being allowed to pursue the claims. They recognised expressly the exceptional nature of the strike out application but contended that Ms Sivanandan had not provided particulars of her indirect discrimination case despite having been given full opportunity to do so; that the statistical evidence did not support Ms Sivanandan’s case; and that there was little if any conflict of evidence, asserting that although Ms Sivanandan did not accept some of the Respondents’ evidence, she had no grounds on which to challenge such evidence.[25]A Preliminary Hearing took place on 28 November 2013 to consider both the question of strike out and the request in the alternative for a deposit Order. Ms Sivanandan appeared in person. The Respondents were represented by Mr Gilroy QC and Mr Panesar, as they were before me. Legal principles applicable to applications to strike out[26]It is common ground that a tribunal’s power to strike out a claim as having no reasonable prospects of success is contained in Rule 37(1)(a) of the Tribunal Rules 2013 . The threshold is high, as the Employment Judge recognised (paragraph 26) and it is an unusual discrimination case where it is appropriate to strike out such a claim without hearing the evidence. Courts at all levels have stressed the particularly fact sensitive nature of discrimination cases and the draconian power represented by an Order striking out a claim before the merits have been determined.[27]The Employment Judge referred (at paragraphs 27 to 29 inclusive) to Anyanwu v Southbank Students Union [2001] UK HL 14 ; North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 where the Court of Appeal held that “it would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant are totally and inexplicably inconsistent with undisputed contemporaneous documentation.”[28]Significantly the Employment Judge referred to the observations of Lady Smith in Balls v Downham Market High School and College [2011] IRLR 217 where she referred to strike out as a draconian power, saying:
“there are cases where fairness between parties in the proper regulation of access to employment tribunals justifies the use of this important weapon in an employment judge’s available armoury but its application must be very carefully considered and the facts of the particular case properly analysed and understood before any decision is reached.”
[29]Lady Smith further emphasised that the structure of the exercise requires that a tribunal:
“first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success”
. She stressed the word ‘no’ in the phrase “no reasonable prospect of success” because it shows that the test is not whether a claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that the claim will fail. It is a high test and there must be no reasonable prospects. The Employment Judge’s decision[30]No evidence was heard by the Tribunal, but a bundle of documents was presented which included the material obtained by Ms Sivanandan from the Respondents in response to her questionnaire.[31]The Employment Judge referred to the detailed oral submissions made by Ms Sivanandan and said that she had considered those with care but would not rehearse them in full. She set out the essence of these arguments at paragraph 3 which extended over two pages. She summarised the Respondents’ submissions in a little over half a page.[32]At paragraph 38 the Employment

Judge said as follows:

“The respondents’ request for further information sets out with clarity the information required and the steps the tribunal will have to take in determining the substantive merits of the claim namely: Step one: identify the PCP applied by the respondents; step two: identify how that PCP puts or would put persons, with whom the claimant shares the relevant protected characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the relevant characteristic. On the claimant’s case that requires the claimant either to show how each pleaded PCP puts or would put applicants from black or ethnic minority communities at a particular disadvantage when compared to white applicants; or to show how each pleaded PCP puts or would put female applicants at a particular disadvantage when compared to male applicants Step three: determine whether the PCP put the claimant at that disadvantage;”
The Employment

Judge continued at paragraph 39:

“The claimant, a qualified barrister with relevant experience in this area of the law has failed to properly identify a PCP in the written particulars of claim. I refer to the further particulars summarised at paragraph 22 above… Although the claimant has identified a number of PCPs under the heading “indirect race and sex discrimination”, the majority are not explained with any clarity and the claimant has failed to identify steps two and three as described above.”
Nevertheless in oral submissions Ms Sivanandan developed her argument in relation to PCPs as the Employment

Judge recorded at paragraphs 40.1 to 40.4 and 41 as follows:

“40.1 A relevant PCP may be the requirement to have proven experience of conducting investigations within a period of either 12 months or 5 years. The claimant does not assert how such a PCP puts persons of her race at a particular disadvantage. The claimant has adduced no statistical or other evidence why women may be disadvantaged by this PCP because of childcare responsibilities and pregnancy/maternity leave. I would agree with the claimant’s assertion that statistics may not be necessary to support her assertion that women are more likely to have gaps in their employment, may not be able to show relevant experience in a period of 12 months or 5 years because of absences from work for maternity leave or childcare responsibilities. I agree that the Tribunal will usually accept, without the need for evidence (unless challenged), that working women are more likely to be the primary child carers in comparison with working men and, therefore, may be prepared to accept without statistical evidence that a woman is more likely to have career breaks than men. However, in relation to the PCP, as indicated above, whereas the claimant may have set out the grounds of that particular complaint for steps 1 and 2, she has failed to set out the grounds for step 3. The claimant does not say that she was put at that disadvantage because of those gender related issues. That is evidence completely within the knowledge of the claimant. 40.2 The claimant says that the PCP to restrict the assessment of relevant to work as an employee, fail to take into account experience obtained in voluntary work put her at a disadvantage. The claimant has not explained the grounds upon which she asserts that the exclusion of voluntary work would put applicants from black and ethnic minority communities or female applicants at a particular disadvantage when compared to white or male applicants. There is no reference to any statistical or other evidence to suggest that women and/or applicants from black and ethnic minority communities are more likely to work in the voluntary sector than males or white applicants. 40.3 The claimant says that failing to recognise barristers as having the relevant investigative experience for the role put her at a disadvantage. The claimant has failed to explain in what way she asserts that the respondents applied a PCP to all persons with whom she did not share the relevant protected characteristics. The claimant has not explained on what grounds she asserts that the failure to recognise barristers as having relevant experience put persons of her race or gender at a particular disadvantage. There is no reference to any statistical or other evidence relating to the sex or ethnic origins of barristers. The claimant herself asserts, admittedly in a joking manner, that barristers are more likely to be male than female. 40.4 The claimant makes various criticisms of the way in which the job was advertised, the failure to advise her of the change in the 12 month period to 5 year period for assessment of experience, the way in which the applications were marked, for example, the order of the sift, the failure to consider the answers to the assessment questions in determining the level of the job applicants’ experience. However, the claimant has not given any explanation at all as to how she says applicants who share her protected characteristics were put at a particular disadvantage by these alleged failings in the procedures adopted for the short listing procedure. 41. The claimant has not, in the claim of indirect discrimination identified any relevant PCP for which she has set out the appropriate next steps. The claimant, having been given every opportunity to do so, has failed to set out the basis of her complaint of indirect discrimination. It is still not clear on what grounds the claim of indirect discrimination is pursued. The claimant has been provided with much information in the Responses to the Questionnaires and in the documentary evidence referred to today. Much of the information needed to explain the claim of indirect discrimination would normally be in the possession of the claimant. Only she can say how and in what way any PCP put her at a disadvantage. She does not need information from the respondents to provide that information. It is for the claimant to provide the evidence to support her assertion that any PCP puts or would put persons with whom the claimant shares the relevant protected characteristic at a particular disadvantage when compared with persons with whom the claimant does not share the relevant characteristic. In all the circumstances I find that this is an exceptional case. The claimant has failed to identify the grounds upon which she pursues a claim of indirect discrimination. The claim of indirect discrimination as pleaded and as explained at this hearing has no reasonable prospects of success and is struck out.”
[33]The Judge accordingly concluded that this was an exceptional case in which Ms Sivanandan had had every opportunity to set out the basis of her complaint of indirect discrimination but had failed to do so. She held that the claim as pleaded and as explained at the hearing had no reasonable prospect of success accordingly.[34]The Employment Judge recognised that the claim of unlawful direct discrimination was not strong and that the chances of success were remote having regard to the nature of the job and the level of experience Ms Sivanandan was able to demonstrate in her application form. Nevertheless, the Employment Judge was not prepared to strike out the claim because it was a serious claim of discrimination that should be determined only after hearing all the evidence. She made a deposit Order instead. The appeal: indirect discrimination[35]By her amended grounds of appeal as developed orally, Ms Sivanandan has now significantly limited her indirect claim and reduced from 15 to 5, the number of PCPs upon which she relies. They have appeared with different wording at different stages, but can be summarised broadly as follows:(i) the requirement to demonstrate investigative experience in the past 12 months and/or five years;(ii) the requirement to demonstrate such experience in public or private employment rather than in voluntary work;(iii) the use of a “tiered sift” in the shortlisting process which failed to allow consideration of the answers to the four test questions at the initial sift stage;(iv) the inability to apply for both substantive investigator and trainee investigator posts at the same time;(v) police officers appeared to have more preferential treatment as did those in the list of ‘preferred’ jobs (i.e. those deemed to have “relevant investigative experience”), barristers being excluded.[36]From the Employment Judge’s reasons it appears that the emphasis in relation to the fifth PCP at the hearing was the other way around; in other words Ms Sivanandan contended that the failure to recognise barristers as having relevant investigative experience for the role is what put her at a disadvantage. This was addressed by the Employment Judge at paragraph 40.3. The other PCPs, apart from (iv), were expressly addressed by the Employment Judge, and as appears from the comprehensive and helpful notes of Rachel Power (heavily relied on by Ms Sivanandan as accurate albeit not verbatim) all were identified as PCPs by her at the Preliminary Hearing, albeit with less clarity (and on occasion interposed by points made on direct discrimination which must have been confusing) than might have been desirable. I say this not by way of criticism of Ms Sivanandan but to acknowledge the difficulty faced by the Employment Judge in seeking to understand the case Ms Sivanandan sought to advance.[37]Nevertheless, it is clear that the focus both in writing and orally, of Ms Sivanandan’s case was on the first two PCPs. The first was undoubtedly applied in one form or another. So far as the second is concerned although I have some doubt about it, since the guidance for sifters expressly required proven experience of conducting investigations “in the public or private sector” it is at least possible that this may have been interpreted as excluding voluntary work, and requiring the investigatory experience to have been in paid employment. It is arguable that there was, otherwise, no need for the public or private sector to be identified here.[38]Ms Sivanandan contends, in relation to these two PCPs, that the Employment Judge took account of irrelevant statistics (at paragraph 42) and failed to have regard to the statistics on which she particularly relied. In her submission the eventual number of successful women or BME applicants was irrelevant because she was not shortlisted at the first stage, but was sifted out at the first stage. She submits, and contends that she made such submissions before the Employment Judge, that the statistics at the shortlisting stage (unlike those at the final stage) supported her case on indirect discrimination and painted a very different picture. Although the Employment Judge referred to statistics in relation to those “shortlisted”, it is common ground that the statistics she identified at paragraph 42 are those relating to the final appointment stage and not to the shortlisting stage.[39]The statistics at the initial shortlisting or sift stage in fact show that of 88.69% of white applicants for the investigator posts, 97.7% were successful at sift, whereas of the 11.3% of BME applicants, only 2.23% were successful at the initial sift. A similar picture appears in relation to gender: of 65% of male applicants, 74% were successful at the initial sift whereas, of 35% of female applicants, only 26% were successful at the sift. These figures are capable of proving group disadvantage caused by the first two PCPs for the purposes of section 19(2)(b) of the Equality Act ; in other words that the requirement to evidence investigative experience in employment (whether over the last 12 months or 5 years) disadvantaged BME and female applicants at the sift stage, and made it disproportionately more likely that they, when compared with their comparators, would fail at the sift stage. The statistics are also capable of being relied on by Ms Sivanandan to show that she was personally disadvantaged by these PCPs in the same way as the group as a whole so as to meet the requirements of section 19(2)(c). Whether she is able to make good that factual case ultimately is a different question.[40]Ms Sivanandan was also able to rely, as Ms Power’s notes show she did, on extracts from two internal documents produced by the Respondents (pages 197 and 198 of the appeal bundle). The first of these refers to the small number of ethnic minority appointees and then says:
“This is a disappointing figure and early work by Penna suggests that it was the lack of work experience that affected this group.”
[41]In the second document the following is recorded:
“ It was explained that a significant number of BME applicants, like many others, had been filtered out on the basis of their lack of investigative experience. It was explained that the job description set out what was meant by investigative experience. The person specification and criteria had been created by occupational psychologists, but it was suggested that the language used in the job description required further thought in order to ensure that transferable skills were properly recognised”
[42]Neither Mr Gilroy nor Mr Panesar had any substantive answer to these points. Rather, in their submission, the Employment Judge was entitled to record that the Claimant adduced no evidence to support her case on disadvantage in relation to these two PCPs because, although available to the Employment Judge, this evidence was buried deep within a multitude of documents and not drawn to the attention of the Employment Judge who was dealing with adversarial proceedings and had therefore, only a limited duty of enquiry.[43]I do not accept those submissions. First, as Ms Sivanandan submits, and as is clear from the notes of Rachel Power, submissions were made on these documents which were drawn to the attention of the Employment Judge and the short listing stage was expressly identified as the stage at which disadvantage arose. Secondly and in any event, as was made clear in the Downham Market case, where the use of this draconian power is invoked, a tribunal must consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. It is a high threshold, and in a case involving a litigant in person the task is that much harder for an Employment Judge. In my judgment, this was a case where on consideration of all the available material and in particular the material I have highlighted above, the Tribunal could not properly conclude that the claim based on the first two PCPs had no reasonable prospect of success. The Employment Judge accordingly erred in law in reaching the opposite conclusion.[44]I take a different view in relation to the asserted PCPs (iii), (iv) and (v). The use of a “tiered sift” in the shortlisting process which failed to allow consideration of the answers to the four test questions at the initial sift stage is really just another, less clear way of putting the first PCP and adds nothing to it. It tends to obscure, rather than provide focus to the real issue. As for the inability to apply for both substantive investigator and trainee investigator posts at the same time, it seems to me that this falls into the category identified by the Employment Judge at paragraph 40.4 of criticisms made of the way in which the job was advertised rather than amounting to a PCP. It was for applicants to choose between the two posts and to take whatever steps they wished to take in order to make that choice. There was nothing to limit the scope of their enquiry as to which would be a better fit.[45]The fifth asserted PCP has no foundation in fact and may rest on a misreading of the guidance to investigators. First, the guidance does not refer to the police as such. Rather, it reads as follows:
“Possible job titles and/or employers suitable candidates may come from: Investigator role – any employer but includes: HM Revenue and Customs Serious and Organised Crime Agency National Crime Agency Fraud investigator – any employer but includes: Benefit Fraud Investigator in Dept Work and Pensions NHS Fraud Investigator Insurance Investigator Inspector with HM Inspector of Constabulary HM Inspector of Prisons caseworker Investigator with an Ombudsman Environmental Health inspector/Investigator Trading Standards/Investigator RSPCA/Investigator Compliance/Investigator – Inspector Social Services in local authority/Private Investigator Casework/Investigator with UK Border Agency Investigators in: Fraud HMIC HMRC Insurance NHS or Healthcare Local Authorities or Government DWP Finance/Compliance MOJ Private Investigators Other government agencies Suitable candidates may also have experience in conducting substantial workplace investigations as an employment law lawyer/consultant, employee relations consultant, HR consultant Ministry of Defence, Ministry of Justice”
[46]Secondly, on any proper reading of it, it is not limited to the “police” nor are they preferentially treated to the exclusion of other potentially relevant roles. For example, it expressly includes employment lawyers and consultants (and therefore implicitly, barristers in that area) contrary to Ms Sivanandan’s submission. There is simply no evidence that the listed roles taken together are predominantly white male roles or disproportionately exclude women and BME candidates.[47]Thirdly, and significantly, the guidance does not deem mere employment in any listed role as evidencing investigative experience. To the contrary, the document expressly states that if applicants are currently working in a listed job or have experience of doing so in the last 12 months “but DO NOT evidence the above [investigatory] experience candidate is to be regretted”. In other words the document makes clear that the mere fact of experience in a listed job is insufficient. Ms Sivanandan identified no evidence and made no assertion that a directly opposite practice to that set out in the guidance was in fact adopted.[48]Furthermore, in relation to all three PCPs,((iii), (iv) and (v)), Ms Sivanandan adduced no evidence to the Employment Judge to show that these PCPs did (at least arguably) disadvantage BME and female applicants and make it disproportionately more likely that they would fail the sift stage. Unlike the first two PCPs where the statistical evidence is capable of supporting group and personal disadvantage caused by the particular PCP, the same is not true of these three PCPs. Statistical evidence is not the only means of evidencing disadvantage, but here no other evidence or explanation has been advanced. It is not obvious why the requirement to choose between a substantive or trainee post would make it more likely that women (or BME applicants) would fail the sift, and Ms Sivanandan adduced no evidence to support that it did. Her assertion that BME applicants have fewer support networks in which to ask for help in making decisions such as this, is bare unsupported assertion. So far as the fifth asserted PCP is concerned, although Ms Sivanandan relies on the fact that the police have historically been white and male dominated, as already stated, the same cannot be said for the myriad of other investigator roles, and the police per se are not in fact referred to.[49]For all these reasons, I have concluded that the Employment Judge was entitled to conclude that Ms Sivanandan had not identified arguable grounds for asserting that these PCPs were applied and disadvantaged BME and/or female applicants at the sift stage, making it disproportionately more likely that they would fail.[50]In addition, Ms Sivanandan contends that the Employment Judge erred by misdirecting herself in law because she required her to show how the PCPs she identified in oral submissions put her at a disadvantage. She submits that this is a gloss on the statutory language and originally relied on Langstaff P’s judgment in Home Office (UK Border Agency) v Essop UK EAT/0480/13/SM. However since the Court of Appeal’s decision in Essop [2015] IRLR 724 which held that to establish a prima facie case of indirect discrimination a claimant must prove “why the PCP disadvantages the group sharing the protected characteristic” (paragraph 58) and that the claimant suffered the same disadvantage, Ms Sivanandan now seeks to rely on the judgment of the CJEU in Chez Razpredelenie Bulgaria AD v Komisia Za Zashtita Ot Diskriminatsia [2015] IRLR 746 to support her argument that it was sufficient for her to establish a prima facie case for asserting that the PCPs had the effect of placing her and others with the shared characteristic at a particular disadvantage, and that there was no additional requirement to show why she or they were placed at that disadvantage.[51]This is an interesting argument and on the face of it there may be some inconsistency of approach to indirect discrimination reflected by these two decisions (a potential inconsistency that may be addressed by the Supreme Court in Essop ). However, it is unnecessary for me to resolve it in this particular case (particularly in circumstances where the point was not the subject of any detailed oral argument) because, for the reasons already given, even on the Essop approach, the Employment Judge could not have concluded that the claim of indirect discrimination based on the first two PCPs had no reasonable prospects of success; and my conclusions in relation to the other three PCPs are unaffected by the Essop/Chez point. Direct discrimination[52]This claim was not struck out by the Employment Judge, who rejected the strikeout application made by the Respondents in relation to it. Instead, pursuant to Rule 39(1) of the Tribunal Rules the Employment Judge concluded that the unlawful direct discrimination claims had little reasonable prospect of success and made a deposit Order. The Employment Judge dealt with this aspect of the claim at paragraphs 42 and 43.[53]Ms Sivanandan contends that the Employment Judge omitted critical submissions made by her in relation to the prima facie less favourable treatment afforded to her. In particular, she submits that the shortlister did not apply the criteria to her but applied a higher standard in noting that she did not “have substantive investigative experience within the last five years” and that her work at the law centre “was not a full investigative role”. She submits that since the shortlister failed to apply the correct criteria to her form by looking for evidence of two only of the four aspects of investigative experience, and in circumstances where the Respondents refused to disclose other application forms and declined to call evidence, there was prima facie evidence of less favourable treatment. Since the real grounds for that less favourable treatment could only be established at trial following disclosure and in light of all the evidence, it was an error for the Employment Judge to conclude that the direct discrimination claims had little reasonable prospects of success and to order a deposit. Ms Sivanandan also submits that the Tribunal was wrong to say that she had not been able to identify an actual comparator having not had sight of the application forms from candidates who were successful at the sift stage. Ms Sivanandan reminds me that discrimination claims are fact sensitive and that the two-stage approach to the burden of proof only applies after hearing all the evidence at trial and not at a Preliminary Hearing stage in advance of evidence and disclosure, as the Tribunal appears to have done here. Finally, she submits that the Employment Judge erred in law in substituting her own view of Ms Sivanandan’s level of experience for the criteria that the shortlister was supposed to apply.[54]I do not accept that the Employment Judge erred in law in ordering a deposit in relation to the direct discrimination claim. The Employment Judge summarised adequately the essence of the case advanced by Ms Sivanandan, and did so in more detail than that advanced by the Respondents, as I have indicated above.[55]The initial burden of proving facts from which unlawful discrimination could (in the absence of an explanation from the Respondents) be inferred is on Ms Sivanandan. It is well established that in order to shift the burden of proof it is not sufficient for a complainant to show a bare difference in status and a difference in treatment: see Madarassy v Nomura International plc [2007] IRLR 246 at paragraphs 54 and 56. Those facts are not, without more, sufficient material from which a tribunal could conclude that an act of unlawful discrimination has been committed. Here, the Employment Judge accepted that it could be identified from her application form that Ms Sivanandan was female and probably from an ethnic background, but that a difference in treatment and a bare difference in race or sex was not enough. It is implicit that the Employment Judge concluded that Ms Sivanandan had not shown facts from which unlawful discrimination could be inferred. In that regard, she was entitled to conclude that no actual comparator had been identified. As Ms Sivanandan makes clear in her further and better particulars the individual identified as an actual comparator was not a candidate in the recruitment exercise for investigator posts in which Ms Sivanandan applied but was an existing investigator. In relation to statistical evidence, the Employment Judge accepted that there was a small statistical difference in relation to the appointment of candidates but was not satisfied that other background matters relied on by Ms Sivanandan provided any real support. I cannot see any error of law in any of those conclusions which were open to the Employment Judge on the material available at that stage.[56]Although not referred to, the statistical material at the first shortlisting stage is also unlikely to assist in establishing direct discrimination given the contemporaneous documentation that supports the case that it was the lack of investigative experience that disadvantaged BME and female candidates at the sift stage.[57]So far as concerns the assertion that the sifter failed to apply the criteria to Ms Sivanandan’s application form and applied a higher standard to her, beyond her assertion to this effect, she identified no evidence to support it. The single document relied on by Ms Sivanandan does not support her case: the document (an email from Lucy Dawson to Samantha McNeilly of Penna at 12.08 on 11 January 2013) does not address the initial sift stage but concerns the basis on which candidates could meet the standard required to pass the telephone interview, the next stage. Ms Sivanandan did not reach the telephone interview stage.[58]In any event, despite the reservations expressed by her, the Employment Judge recognised that this was a serious claim of discrimination which should be determined only after hearing all the evidence. She referred expressly to evidence that may be provided at a Full Hearing about the consistency of the evidence of the shortlister as to the reasons for assessing that Ms Sivanandan’s experience was not good enough when compared to other applicants and to any inconsistencies in replies to the questionnaires. It is also clear from paragraph 42 that the Employment Judge was alive to the fact that Ms Sivanandan had not had disclosure of application forms from candidates who were successful at the sift stage.[59]I am also satisfied that the Employment Judge was entitled to have regard to the limited evidence of investigative experience demonstrated by Ms Sivanandan in her application form, particularly having regard to the requirement that those appointed to substantive investigator posts were expected “to hit the ground running”. This was not to substitute her view for that of the shortlister, but formed part of her assessment of the prospects of success.[60]Ultimately the Employment Judge recognised the fact sensitive nature of this claim. Quite properly she refused to strike it out at a preliminary stage. Nevertheless, having regard to all the material available she was amply entitled to form the view that it was not a strong claim and that the prospects of success were limited and justified a deposit Order. Accordingly this ground of appeal fails. Bias[61]Ms Sivanandan does not suggest that there was actual bias on the part of the Employment Judge in this case. Rather, she submits that there was the appearance of bias. The test to be applied as stated in Porter v Magill [2002] 2 AC 357 in determining whether there is the appearance of bias is, whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased.[62]The allegations of bias (used as shorthand for the appearance of bias) fall into two categories:(i) the Employment Judge’s manner and conduct at the Preliminary Hearing on 28 November 2013 and in particular three things, each of which, as Ms Sivanandan conceded, occurred once and only fleetingly, even on her own case; and(ii) aspects of the Employment Judge’s Judgment that are relied on as demonstrating bias.[63]As to (i) as Ms Sivanandan agreed in evidence, paragraphs 9 and 10 of her affidavit set out the extent of her complaints about the hearing itself. The rest of her affidavit relates to criticisms of the Judgment as already indicated. Paragraphs 9 and 10 of her affidavit are as follows:
“9. During the course of the PH on 28 November 2013, I made a point of noting the body language of Employment Judge Porter. I noticed variations in behaviour when I spoke compared to when Counsel for the Respondents spoke. Unlike when Counsel spoke, I specifically noted Employment Judge Porter (i) looking impatient and raising eyebrows and having a sceptical expression when I was explaining background matters about racism and the IPCC raised in my further and better particulars; (ii) having a look of bored indifference when I spoke about the large scale 2009 DWP study on race discrimination and employment and when I was explaining my point about indirect discrimination by excluding voluntary work from relevant experience and (iii) looking sceptical when I made a comment about the police and others being on the list of people who may have relevant skills and I asked, rhetorically, why not have criminal barristers on this list. 10. Since Employment Tribunal hearings are not tape recorded, I am unable to evidence the tone of voice and body language of the Employment Judge. In my appeal I note, “I can, however, point to the Employment Tribunal’s failure to record some of my key submissions and several dismissive references to the fact that I am a (non-practising) barrister.”
I am also able to give examples of an appearance of bias from what the Employment Judge wrote in her Judgment including her choice of language, the juxtaposition of certain points and its effect, and the dismissive and disparaging way in which some matters are dealt with.”[64]Ms Sivanandan maintained her position in relation to that evidence in cross-examination. She also relies on the Employment Judge’s failure to record some of her key submissions and on what she describes as several dismissive references to the fact that she is a (non-practising) barrister. When the Employment Judge said at paragraph 38: “the claimant accepts that she has considerable experience as a barrister in employment law and in particular in discrimination cases)” that was incorrect: Ms Sivanandan says she neither said nor accepted this and it was misleading and unfairly held her to a higher standard than other litigants in person. She says she was made to feel as though her arguments were inherently improbable and to feel like an outsider in the legal process and that the Employment Judge appeared to have a predetermined view about the inherent improbabilities of her claims. She relies on guidance given in Tchoula v Netto Food Stores Ltd , and in Anya v University of Oxford [2001] EWCA Civ 405 .[65]In response to those allegations the Employment Judge says that she was neither sceptical nor dismissive of the claims at any time. She allowed the parties to state their case, listened very carefully to Ms Sivanandan’s submissions; allowed her to speak at length without interruption; sought clarification on a couple of points and was no more attentive to counsel for the Respondents. The Employment Judge says that she considered all submissions before reaching a decision. She accepts that Ms Sivanandan became upset when the decision was announced, challenging the finding that “the claimant accepts that she has considerable experience as a barrister in employment law and in particular in discrimination cases.” When questioned about this by Ms Sivanandan after the decision was announced, she explained that it appeared on Ms Sivanandan’s application form for the investigator post and continues:
“I made my findings of fact based on the evidence before me: I do not believe that this is an indication of any bias towards the claimant. The claimant is a qualified barrister: she accepts that. The claimant has experience in discrimination cases. It was my understanding that she accepted that. I refer to paragraph 14 of the reasons sent the parties on 5 March 2014. This information was gleaned from the claimant’s own application form. The recognition of the claimant as a qualified barrister with considerable experience in discrimination cases was not made in an attempt to belittle the claimant. The claimant appeared before me as a litigant in person but she is a qualified barrister, does have experience in discrimination cases. That qualification and experience was, in my view, relevant in deciding whether the claimant had had full opportunity to particularise her claim.”
The Employment Judge dealt with the remaining matters, stating that she could not understand why Ms Sivanandan felt like an outsider and had no predetermined view.[66]As already indicated, I heard oral evidence from the solicitors or trainee solicitors acting for the Respondents and others attending on the Respondents’ behalf at the hearing, about how that hearing was conducted by the Employment Judge. Peter Fletcher gave evidence in accordance with his affidavit. He took notes of the hearing which are attached to his affidavit and said that although he was looking down when taking notes he was not doing so all the time. He said that he was conscious generally of body language though not actively looking out for anything in particular. When cross-examined by Ms Sivanandan about his ability to perceive differences in body language, he said that he had had training in body language in the context of networking. It was suggested to him by Ms Sivanandan that he may not have noticed the Judge looking sceptically or raising an eyebrow, and although he accepted that that was possible, he said that he was paying attention and that if he had seen anything untoward he would have noted it. He said he did not see any negative body language. In his view the Employment Judge maintained a neutral expression and he saw and heard nothing that could be seen as humiliating or belittling. I have had careful regard to both his and Rachel Power’s notes on the hearing which reflect nothing untoward.[67]Colin Woodward gave evidence in accordance with his affidavit. He was not taking notes and was watching the Employment Judge intently, he said, to discern her reaction to the case. In his view nothing was said or done by the Employment Judge that indicated bias to either side. He did not agree with Ms Sivanandan that the Employment Judge disparaged her arguments. Rather in his view, the Employment Judge listened and reached balanced conclusions on the arguments presented.[68]Lucy Dawson gave evidence in accordance with her affidavit. She was present throughout the hearing and was also not taking notes. Ms Sivanandan put to her that just because she did not notice bias does not mean there was none. She responded that she did not see anything that could be deemed to indicate bias during the hearing, but she acknowledged that Ms Sivanandan feels differently. David Firth gave evidence to similar effect.[69]Jane Moorman gave evidence in accordance with both of her affidavits. She was present throughout. Discrimination is her area of expertise. She says she saw no evidence whatever of the Employment Judge looking impatient, raising her eyebrows, adopting a sceptical expression when Ms Sivanandan was speaking, or looking at Ms Sivanandan with bored indifference. She states that although Ms Sivanandan complained of a belief that Employment Judge Porter had “clearly expressed a low opinion” of her after judgment had been given, she did not make any suggestion that the Employment Judge had acted in the ways now alleged. This is supported by Rachel Power’s notes. Ms Moorman notes that these allegations were not made in the application for permission to appeal or in correspondence immediately after the hearing; but were made for the first time in the affidavit filed by Ms Sivanandan dated 2 April 2015. Ms Moorman states that the tone of speech used by the Employment Judge at the hearing when speaking to Ms Sivanandan was nothing other than entirely professional and courteous and was the same tone used when speaking to counsel. She does not recall Employment Judge Porter saying anything that would justify a conclusion that the Judge had a low opinion of Ms Sivanandan. Ms Moorman also states that she has no recollection of Employment Judge Porter making any dismissive references to Ms Sivanandan, whether regarding her status as a barrister, as a non-practising barrister or otherwise.[70]As to (ii) one of the principal criticisms of the Employment Judge made by Ms Sivanandan is about the reference to her experience as a barrister in employment law and discrimination. Ms Sivanandan gave evidence that she has limited experience as a criminal (not an employment) barrister, that the Employment Judge’s statement in her Judgment to that effect is a “distortion of the truth” and that the Employment Judge ought reasonably to have treated her as any other litigant in person. She contends that these comments tended to belittle her; indeed she went so far as to submit that the Employment Judge was holding her up to ridicule by using those words. She submits that these words were personal, unnecessary, added nothing to the Judgment and were better not made. In addition she contends that the way in which the Judgment is written demonstrates a failure to follow the Tchoula guidance. The Employment Judge summarised the Respondents’ case well but left out important aspects of her case which made her feel like an outsider. For all those reasons she submits that the Judgment itself gives the appearance of bias.[71]In response to this aspect of Ms Sivanandan’s case on bias, Ms Moorman states her belief that Ms Sivanandan is underplaying her expertise. She states that Ms Sivanandan appeared to her to be experienced in employment law and procedure at the hearing. Ms Moorman has conducted research into the number of cases in which Ms Sivanandan has appeared on her own behalf and on behalf of others in employment and/or discrimination cases, identifying 17 occasions on which she appeared before the Employment Appeal Tribunal and four occasions in which she appeared before the Court of Appeal. I was provided with copies of most of those cases.[72]Having regard to the totality of the evidence I heard in relation to bias, I have reached the following conclusions(a) I am not satisfied that the Employment Judge behaved in a manner that would have led any informed, fair-minded observer to conclude that she had a predetermined view of the case. Nobody, apart from Ms Sivanandan, observed anything in her body language or behaviour that gave the impression that she was sceptical or dismissive of Ms Sivanandan’s case. Ms Sivanandan herself described the three matters relied on as isolated and fleeting, and none were identified as having occurred until 2 April 2015. I am also conscious in reaching this conclusion of the fact that Peter Fletcher and Jane Moorman are solicitors bound by their duty to the court and ethical codes of practice in responding to these allegations.(b) The Employment Judge’s description of Ms Sivanandan as having “considerable experience as a barrister in employment law and in particular in discrimination cases" elides two factually accurate matters. Ms Sivanandan qualified as a barrister in 2006, though she stopped working as such in October 2008 but her experience was in criminal law. Separately it is clear that she has gained considerable experience of employment and discrimination law acting on her own behalf and on behalf of others. That elision was inaccurate. It was also inaccurate to record Ms Sivanandan as accepting this, when she did not. However, I am far from satisfied that the choice of words used here, or indeed these inaccuracies indicate any pre-judgment or predetermination of Ms Sivanandan’s case on a basis unconnected with the merits.(c) The Employment Judge was entitled to expect Ms Sivanandan to set out the basic elements of her allegations of unlawful discrimination. These had not been adequately set out in response to the request for further particulars and it appears to me from the notes of Rachel Power and the Judgment itself that the Employment Judge took the time and was at pains to hear and understand oral submissions that could make good that failure. This was not to hold Ms Sivanandan to a higher standard, but to expect of her what would be expected of any litigant advancing serious unlawful discrimination claims.(d) Further, the Employment Judge was entitled to have regard to the experience Ms Sivanandan undoubtedly has of discrimination claims in deciding whether she had had a sufficient opportunity to particularise her claim.(e) Viewed fairly, the references to Ms Sivanandan’s experience of employment and discrimination law and to her qualification as a barrister, even inaccurately elided together, do not indicate any predisposition or prejudice against Ms Sivanandan for reasons unconnected with the merits of her case. Nor would a fair-minded observer view them as belittling or as holding Ms Sivanandan up to ridicule. The elision error is unfortunate and inaccurate, but the statements taken separately are accurate and there is nothing pejorative about them.(f) As for the criticisms and challenges made about the way in which the Judgment is expressed, I have considered each of them but have concluded that these complaints are not made out. Nothing in the Judgment supports the contention that the Employment Judge was treating or regarding Ms Sivanandan in a disparaging way; or in a way that was unfair or less favourable or in breach of guidance as a litigant in person from an ethnic minority background. The Judge summarised the submissions of all parties adequately and indeed, went to greater lengths to summarise the submissions made by Ms Sivanandan than those made by counsel. It was not incumbent on her to record every matter, particularly those matters of less relevance. For example, Ms Sivanandan complains that she did not record a submission that the Respondents were unable to show that PCP was a proportionate means of achieving a legitimate aim, but this was irrelevant to the question whether she herself had advanced an arguable prima facie case.(g) It is significant that the Employment Judge made rulings on the strikeout application on an even-handed basis in the sense that she accepted the Respondents’ arguments in relation to indirect discrimination, but rejected the strikeout application in relation to direct discrimination having considered it on its merits.(h) Having stood back and considered the Judgment as a whole as a fair-minded and informed observer would, I can see nothing whatever in it that suggests pre-judgment or pre-determination irrespective of the merits.(i) I am satisfied that the hearing was conducted fairly by an Employment Judge who behaved both appropriately and who was impartial. Accordingly I reject the bias complaint raised in this appeal, applying the test of the fair-minded and informed observer. Conclusion[73]Accordingly the appeal is allowed in relation to the claims of indirect discrimination based on the first two PCPs only. Those claims are reinstated and will now fall to be determined with the unlawful direct discrimination claims. The appeal against the deposit Order fails as does the complaint of bias.