Appeal No. EAT/312/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0D

		At the Tribunal
		On 20th July 1992

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS P TURNER OBE

	MISS A P VALE

M MORGAN	APPELLANT

(1) CIVIL SERVICE COMMISSION	RESPONDENTS
(2) THE BRITISH LIBRARY

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR K MENON
(Of Counsel)
Hodge Jones & Allen
148-150 Camden High Street
LONDON
NW1 ONG

For the 1st & 2nd Respondents	MR M KENT
(Of Counsel)
Treasury Solicitor
Queen Anne's Chambers
28 Broadway
LONDON
SW1H 9JJ

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 6th September 1989, the Applicant, Mr Morgan brought proceedings against Civil Service Commission and the British Library, the two Respondents, alleging discrimination contrary to the Race Relations Act 1976.  His case was heard for two days during April 1990 by an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Bassingthwaighte.  The Tribunal decided against him, they dismissed his complaints and Mr Morgan now appeals.  He was represented before the Industrial Tribunal and before us by Mr Menon; Mr Kent, instructed by the Treasury Solicitor appeared for the Respondents on both occasions.

	Mr Morgan is white, he is British, he is not of the Jewish faith or race; he saw an advertisement in a specialist publication for a Curator Grade F in the oriental collections, that is the Hebrew Department at the British Library.  He completed the application forms and was short listed for interview with three other candidates.  That interview was to take place on the 19th June 1989, in fact the fourth did not arrive so there were the three candidates for interview on that date.  Mr Morgan met the criteria for the post, he was fluent in Hebrew, he had librarianship qualifications and experience, and was prepared to study Yiddish if required.  

	It is right to say that as a result of the picture that emerged in this case the Industrial Tribunal, although it found against Mr Morgan, was critical, and indeed severely critical of the way in which the organisation was arranged for these interviews.  It said this in the last paragraph of its judgment.
"The result of our deliberations is that the applicant's complaints of unlawful racial discrimination must fail and be dismissed.  We would be failing in our duty, however, if we did not comment that it was entirely the fault of the respondents (through their responsibility for the actions of Mr Safadi) that the applicant was left with a sense of grievance which he so obviously and genuinely feels after the interview.  The appointment of inexperienced persons to recruitment boards in large organisations is to be deprecated;  it would have been better had the interview on 19 June 1989 been delayed, however unfortunate and inconvenient that would have been.  Interviewers who do not appreciate what is and what is not relevant or permissible in questioning candidates can do great damage to their employers' reputation and to the prospective employee's feelings, a lesson which we suspect has now been learned by these respondents.  They are to be commended for their prompt reactions to what occurred on 19 June last, as is Ms Oddy for making known her misgivings about the occurrences at the interview."

Those comments are made in the light of the fact that Mr Safadi was a very late replacement on the interviewing panel, and as will become apparent, Ms Oddy expressed her worries about what had occurred shortly after the interviews were completed.

	The Applicant was the first of the three to be interviewed.  The panel consisted of four;  Mrs Halse, who was occupying the Chair, she came from the Civil Service Commission;  Ms Oddy was responsible for the recruitment process and was an employee of the British Library;  Mr Salinger, who was a librarian in the Hebrew Section and the School of Oriental and African Studies at London University, he was the outside member, and Mr Safadi, who was head of the Arabic Section at the British Library.  None of those were known to, or acquainted with the Applicant.  Mrs Halse was presiding, because by inter-departmental arrangement, it was the Civil Service Commission which assisted in recruitment at the British Library.    

	The witnesses who appeared before the Tribunal were the Applicant and then, for the Respondents Mrs Halse, Ms Oddy and Mr Salinger.  Mr Safadi, who is at the centre of these problems, did not give evidence.  The Tribunal were very conscious of the fact that he was not called and they dealt with it specifically at paragraph 11(a) of the decision, they say this:
"We were told that he left the country on leave of absence and was due to return to duty on 26 March 1990;  he has not, however, returned and the British Library do not know why or where he is.  Not surprisingly in those circumstances, we refused to accept written evidence from him which had not been served upon the applicant's solicitors in advance of the hearing under Rule of Procedure 7(3).  The failure of the respondents to produce evidence from Mr Safadi was, of course, a matter very much on our minds in reaching our conclusion."

	It is clear from what is there said therefore, that the explanation was accepted but that this Tribunal were cautious in their approach to the evidence and were very conscious of the fact that Mr Safadi was not present at the hearing.

	To return, therefore, to the facts as found.  The first matter which the Tribunal dealt with was a suggestion from Mr Morgan that there was a hostility expressed towards him.  The Tribunal find specifically on this issue in paragraph 2(d) of their decision when they say:
"During the main part of the interview all four panel members questioned the applicant and nothing untoward occurred.  The applicant suggested to us that he detected hostility towards himself from Mr Safadi from the very beginning of the interview but having heard evidence from the three members of the board to the contrary we did not accept that the applicant was correct in that assessment."

So that allegation was rejected by the Industrial Tribunal.

	The nub of the problem before the Industrial Tribunal, which is now the nub of the problem before us on the appeal, was what occurred towards the close of the interview with Mr Morgan which extended over approximately half an hour.  As Mrs Halse was making her concluding remarks Mr Safadi asked if he could put one or two further questions, he was permitted to do so, and then the following exchanges took place as found by the Tribunal.  As there really is no issue on the facts it is probably simplest if we refer by way of quote from the decision:
"(i)Mr Safadi said to the applicant that he presumed him to be Jewish;  the applicant replied that he was not, whereupon Mr Safadi added a comment about difficulties with some users of the Library who might object to sacred texts being handled by a non-Jew or by women.  In his evidence the applicant suggested that the comments of Mr Safadi were to the effect that there would be a problem and that he thereafter felt that he had no chance of selection for the post because of that comment;  Ms Oddy also said that the way the question was put and the comment was made could have given the applicant the impression that the British Library would wish to appoint a Jew to the post, which she knew not to be so.  We, however, noted that Mr Safadi had later marked the applicant in the initial assessment as suitable for the post, that he had later concurred in the appointment of a woman to the post and that Mrs Halse had spoken of Mr Safadi's comment as arising in the context of possible, not certain, difficulties;  we therefore found it difficult to accept that Mr Safadi's comment was as definite as the applicant maintained and so we found that his comment had been in the terms which we have set out above.

(ii)Mr Safadi asked the applicant for his views about the Arab/Israeli conflict, about how it would be resolved;  he added that the applicant need not reply if he chose not to.  The applicant did not reply.  Mr Safadi pressed him by saying that as he had lived in Israel for some years he surely had comment.  The applicant again did not reply."

Those then are the basic facts concerning these incidents.  One must round off the facts by just saying that the other two candidates interviewed were both women and both Jewish.  They were interviewed after the Applicant and the questions which were put by Mr Safadi to Mr Morgan were not put to those two other candidates because Mrs Halse had advised against it.

	At the conclusion of the three interviews the Applicant was placed between the other two candidates, behind "A", who was eventually offered the job, and in front of "B"; he was there as first reserve and the Tribunal felt that that was indicative that there was no question but that he would have been offered the post if "A" had refused it. 

	After the interview Mr Morgan was clearly upset.  On the 23rd June he wrote to the Civil Service Commission a long letter which was in front of the Tribunal, parts of it were cited in the decision and the relevant parts for the present issue before us is a passage which reads:
"My feeling was that another candidate with less qualifications than myself but who was  Jewish would be preferred for this post.  After reflecting upon the conduct of the interview I have decided that I do not wish to proceed further with my Candidature.  I also wish to protest most strongly at the line of questioning used in the interview."

	On that same day but totally unknown to each other, Ms Oddy, who had been a member of the panel, also wrote and expressed her disquiet about the matter.  Her disquiet is reflected in those severe criticisms made by the Tribunal, to which we have already referred.  There was a letter by way of apology from Mrs Halse, an explanation, and that was dated the 12th July.  Mr Morgan felt unable to accept the apology and said he had been humiliated.  He brought these proceedings.  It is right to round off the facts by saying that Ms Oddy's complaint to the British Library was taken up very seriously.  There was an investigation and Mr Safadi was reprimanded over of his conduct at the interview.

	As we have already indicated there might very well have been criticisms and complaints about the way this panel was instructed or put together, and the proper approach explained to it.  However, that is not the subject of a complaint in front of the Industrial Tribunal.

	The law applied by the Industrial Tribunal has not been criticised nor could it be.  The basis of the criticism by Mr Menon are twofold.  First of all he claims that there was really no evidence upon which the Tribunal could have reached its conclusion; and secondly, that Mr Safadi did not give evidence and without his evidence the Respondents could not put up a defence.

	The basis of the claim was on two grounds, they were both direct discrimination s.1(1)(a) of the Race Relations Act 1976.  The two grounds, both under s.4(1), rely upon different subsections:
"(1)	  It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

(a)in the arrangements he makes for the purpose of determining who should be offered that employment;  or

(b). . . . . .

(c)by refusing or deliberately omitting to offer him that employment."
The Tribunal examined the complaints under (c), that is the refusing or deliberately omitting to offer him that employment, before that under (a) and it is a simpler issue. 

	The members of the panel after each candidate had been interviewed prepared an assessment and marked with ticks the marks they gave to various criteria, some seven in all.  They then gave what they called a "provisional" mark which was whether the candidates were suitable or above or below, unsuitable and so on, `C' seems to have been in the middle and the candidate `A' was marked just above;  there was a slight difference in the marking.  However, when one looks at the ticks on the schedule, the chequered squares of the criteria, the candidate appointed seems to have had rather better quality ticks than Mr Morgan and the one below him had lesser quality, towards the lesser side of the evaluation.  The Tribunal dealt with this in paragraph 10, they remark that the 4(1)(c) claim was raised late in the proceedings but it was without objection from the Respondents and they therefore examined it.  They say this in paragraph 10(a):
"We therefore assess the applicant's claim under this head on the basis that the members of the board on 19 June 1989 effectively refused to offer him the appointment by failing to recommend him for the vacant post.  We accepted, again since the parties impliedly did, that the decision of the board about the vacancy was conclusive although another person in another department technically might have made the decision to appoint, based upon the board's recommendation to appoint the applicant."

They then reject this claim and they explained why, in 10(b);  without reading the whole of that paragraph we are content to pick up one or two sentences, they say:
"We are satisfied that racial grounds played no part at all in the board's choice of the successful candidate to fill the vacant post and we rejected the applicant's contention, in the light of our acceptance of the evidence of three board members, that Mr Safadi's continued participation in the interview and selection was itself evidence of a discriminatory approach by the board."

and then they go on towards the end of that paragraph by saying:
"the issues raised by Mr Safadi's questions and comments to the applicant played no part in the later deliberations of the board and that Mr Safadi concurred, by giving the applicant a mark which made him an acceptable (although not the most acceptable) candidate and first reserve for the post."

Mr Menon has submitted that there was insufficient evidence for those conclusions to be reached.  We do not feel that it necessary on this issue to return to specific passages in the Notes of Evidence from the learned Chairman stretching over some 16 pages, because we take the view that there was ample evidence upon which those conclusions could be reached.

	So, we turn, therefore, to the second ground which is the allegation under s.4(1)(a).   The Tribunal accepted, because it was not argued between the parties, that the wording used in the circumstances could amount to less favourable treatment.  That issue is not raised before us, it was not argued before the Industrial Tribunal and as we read the decision, they might have had some reservations but like them, we do not intend to deal with that particular matter, which was conceded.  The absence of Mr Safadi was noted.  Then, secondly, the point was taken in this connection that there had been some inconsistencies between the evidence given by the three members of the panel who did give evidence.  The Tribunal declined to draw any adverse inferences from such inconsistencies as there were and they explained that they did not do so because they accepted the evidence of the other three board members as genuine, honest and credible and therefore they did not need to draw the inferences which were urged upon them.

	The issue therefore, was whether the basis upon which those questions were asked were on the grounds of race.  It is, as we understand it, common ground that the question requires an objective test, motive is irrelevant, as we know, in discrimination and of course if motive did exist, and was found to exist, then that might be of considerable evidential value.  However, the Tribunal were faced with the fact that they had the documentation;  they heard all the witnesses, the Applicant and the three members of the panel and they had to make up their minds whether the Applicant had established, the burden of proof being upon him, that these questions were based upon race.  The alternative, of course, was that they were based on a religious enquiry in the particular case.  The distinction was emphasised in the case of Seide v. Gilette Industries Ltd [1980] IRLR 427 and the distinction was clearly set out by the Tribunal.

	The Tribunal then continue as follows and it seems most convenient if we simply read the short reasoning by which it came to the conclusion that the Applicant had failed in the task before him.  I am reading now from paragraph 11(f) of the decision:
"(f)We are now dealing with comments alone during the course of an interview, having already decided that subsequent assessment of the applicant which led to him failing to be selected for the post concerned, was not tainted by racial bias or prejudice.  That we have so found is, of course, important in making the remaining decisions.  We make it clear that in our view and assessment of the evidence Mr Safadi make the utterances he did not because of an antipathy towards the appointment of a non-Jew to the to the post concerned but because of a misunderstanding of religious objections to non-Jews handling sacred texts and because of an injudicious curiosity about the applicant's views upon the Arab/Israeli conflict.

(g)Mr Safadi's rhetorical question about the applicant's status as a Jew, the given answer to which he would appear not to have expected and about which he would appear to have been ignorant in advance, accepting that it amounted to less favourable treatment, was not in our finding asked on racial grounds.  Mr Safadi's lack of knowledge of the applicant's status in reaching that conclusion is a material factor:  it was an inquiry which should not, need not, have been made but it was not made on racial grounds.

(h)Mr Safadi's comment to the applicant after he had answered the question about his Jewishness, could be seen to amount to `words of discouragement' (as indicated in Simon's case) and if said on racial grounds would be discriminatory.  In our view, however, as it is clear from the context of the comment wherein there was reference to the handling of sacred texts, the comment was made on religious, not racial grounds and is therefore not discriminatory within the terms of the Act.

(i)Finally Mr Safadi's questions to the applicant about the Arab/Israeli conflict, accepting, as we have in deciding all these issues that there was no dispute about such questions amounting to `less favourable treatment';  that question and its subsequent repetition, which could not have been relevant to the applicant's employment, was as we have found prompted by curiosity and nothing else.  In addition the later actions of Mr Safadi as described by his colleagues support our conclusion that those questions also were not asked on racial grounds." (our emphasis)

	The submissions made by Mr Mennon are as follows.  First, that the Tribunal could not have reached the conclusion which it did without seeing and hearing Mr Safadi.  Secondly, that if Mr Safadi had been called, then of course he could have been cross examined and indeed as Mr Mennon points out he could have been cross examined about motive and hostility and a number of other matters;  the answers might very well have benefitted the Applicant.  Thirdly, he submits that in the absence of Mr Safadi and the evidence he could give, the Applicants must succeed.  However, the test is an objective test and we have read the findings of the Tribunal.  The issue must therefore be, whether those findings of fact, and we have emphasised them by asking the transcriber to underline them as I read them out, whether there is evidence upon which the Industrial Tribunal could reach those conclusions, in other words the conclusion that the remarks were based on a religious basis and not on a racial basis.

	We therefore turn to look at the Notes of Evidence in rather more detail.  The remarks fall into two, first of all there is the remark about Jewishness and about the text and then there is what is called "off the cuff" remark about the Arab/Israeli conflict.  As to the latter it seems that there was evidence even from the Applicant himself that that was not based on race, however, we look through the Notes of Evidence.  The difficult issue is the first one.  It is always for an Appellate court to caution itself when looking at Notes of Evidence that they are only `Notes', it is not a transcription of what occurred and therefore one must not be too detailed or too microscopic in examination of what was said.  We therefore pick out some passages which might tend to support the Tribunal had they thought it right to take the view which they did.  First of all, the Applicant in his evidence at page 2 of the Notes of Evidence clearly deals with the question of the Jewishness, he says:
"Safadi asked at the end of the interview whether I was Jewish - I said no - he said it would be a problem as some of the library users would be very unhappy at the idea of a woman or a gentile handling Jewish sacred text.  I said no problem at Haifa -  where I had worked with Orthodox Jews."

That was his evidence, it is now accepted that it is not relevant, but there was that particular comment about what had occurred, and then later there was the distinction made as to the reference to Mr Safadi to women and Mr Morgan says:
"if he hadn't mentioned it I wouldn't have known of the difficulties of women in that section."

Later on Mr Morgan indicated that he knew nothing in Jewish law to prohibit handling of sacred texts by non-Jews.  He was cross examined and in dealing with this matter he said this at page 5 towards to top:
"Safadi didn't just say that some Orthodox visitors to the library would object to a woman or non-Jew handling text:  that wasn't the context.  It was insulting - the interviewer to find another qualification that the person needed to be Jewish.  He was saying that I was of the wrong religious background.  A candidate shouldn't be appointed because of prejudices of users.

The depth of knowledge of Hebrew and the culture is of relevance:  interviewers may like to know of that knowledge and therefore of the religious backgrounds.  But it was not put in that way - put in the context of objections by users."

So he was putting his views forward at that time.  He was asked whether he realised that Mr Safadi was in fact a Syrian/Arab Moslem, he said "no" he thought he was Jewish.  He was asked about the reference to women and the case for the Applicant was - this was a blind and what they really wanted was a Jew to be appointed and he viewed it as racial and he took objection to it.  Mrs Halse again referred to the text and the handling by non-Jews and females, Mr Safadi's comment was as far as she was concerned was to the effect that there might be difficulties.  She did not feel it was appropriate because there would be unlikely to be difficulties but she did not interfere.  They say later on when they were discussing the candidates they took no account of a non-Jew being the cause of difficulties.  The point is stressed again in her evidence that this was in connection with the problem of the text.

	Mr Salinger - he dealt it in this way, in chief he says:  I do recall an exchange about the handing of Jewish text by non-Jews and women, I cannot see such a problem it just involved in-handling, we have a lady in Hebrew Section, no difficulties there, he might be referring to actual physical contact by a very orthodox Jew with a woman not a spouse, I don't know if there should be any problem with a non-Jew I don't know of such from my knowledge of the Jewish faith, and then he says this did not affect the ultimate decision, he knew that Mr Safadi was an Arab expert and he was quite certain that the Applicant did not have to be of Jewish origin.  He was cross-examined and he said, he might have made that comment in the context of some very orthodox Jews not wishing to have physical contact with women.  He had therefore dealt with it in that way. 

	Ms Oddy deals with it in her evidence in two or three places and in fact she did not feel that the question was of a discriminatory nature;  again there was talk about library users.

	So it is not a question of whether the same view would have been taken by another industrial tribunal or by anyone else, the issue here was whether the Industrial Tribunal having seen and heard the parties, having looked at all the evidence, including the documentation, was entitled to reach its conclusion which was essentially a conclusion of fact.  It seems to us that they were bound to do the best they could without the help of Mr Safadi and indeed noting the absence of Mr Safadi it could very well be that they were leaning in favour of the Applicant.  Nevertheless, ultimately it reached the conclusion, which it did without any failure to apply the law properly and we are not satisfied here that there was no evidence upon which the Industrial Tribunal could reach that conclusion.

	It follows therefore for the reasons which we have given that this appeal must be dismissed.