Appeal No. EAT/167/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	MR P DAWSON OBE

	MR J C RAMSAY

MR N JACKSON	APPELLANT

BIRMINGHAM CITY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR LINCOLN CRAWFORD
(OF COUNSEL)

For the Respondents	MISS LORNA FINDLAY
(OF COUNSEL)
Mr T Grannum
The Solicitor
Birmingham City Council
Ingleby House
11-14 Cannon Street
Birmingham B2 5EN

	MR JUSTICE BUCKLEY:  This is an appeal from the decision of the Industrial Tribunal held at Birmingham.  The hearing lasted for several days, in August, October and finally November 1993.  The Tribunal in the end dismissed the Applicant's claim that he had been discriminated against on racial grounds contrary to the 1976 Act.

	The Applicant is, or certainly was at that time, employed by the Respondents, the Birmingham City Council in the Social Services Department.  His complaint was that he had been discriminated against at an interview back in April 1992.  That interview was to appoint a team manager for the North Fields constituency a post which would have involved children and families' welfare.  There is no doubt that the Applicant had the necessary academic qualifications for the job.  He complained to the Tribunal of discrimination and victimisation on grounds of race.

	As his Counsel accepted, according to the Reasons, and we refer to his Counsel at the Industrial Tribunal, it was the conduct of the interview about which complaint was made.  A good deal of history and background was investigated and the Tribunal set out a detailed account of that but they state in their Reasons, quite properly in our view, that at the end of the day their findings must be in relation to the alleged act of discrimination in April 1992 and that appears to have been accepted by Counsel on both sides and formed the basis of the complaint before them.

	The original Grounds of Appeal were lengthy and we have to say we found it, on reading them, difficult to extract the point or points of law that were really relied upon.  We are grateful to Mr Crawford, who is instructed somewhat late in the day but who has amended the Grounds of Appeal with leave.  We should say, somewhat to the embarrassment of Miss Findlay who had of course come prepared to argue against the original and far more lengthy version.  However, with the aid of a short adjournment Miss Findlay was able to present the Respondents' case more than adequately and we are grateful to her for co-operating in that way and not delaying this matter.

	Turning to Mr Crawford's grounds the first point that Mr Crawford made plain before us was that the complaint was of direct discrimination; that is as opposed to indirect or victimisation.  It is noteworthy that all three were complained of in the original hearing and Mr Crawford has also made plain that he is not complaining of perversity in the findings of fact by the Tribunal.  It is perhaps worth reciting, although it is well known, section 1 of the Act.  It is section 1(1)(a) which deals with direct discrimination and it is in these terms:

		"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

		(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons."  

	The first ground in the amended grounds recites certain particulars drawn from the findings including that a particular memo, which is really a reference to a letter of 25 March 1991 written by Mr Judges to the Applicant, was before the interview panel and that letter made reference to a previous complaint to a Tribunal by the Applicant and that no similar memo or information concerning any of the other candidates was before the panel.  Also that a Mr S Williams in particular, had a previous involvement with the Appellant when there had been a failure to short-list him for a particular job and Mr S Williams had no similar involvement with any of the other candidates.

	What Mr Crawford really sought to argue as a result of those matters was that there was discrimination on the face of it because those were matters peculiar to the Applicant and did not touch the other candidates and that the Tribunal, in effect, should really have looked to see what the explanation for that was and what the Respondents' answer to, what Mr Crawford urged was a prima facie case of discrimination.

	Miss Findlay sought to answer that ground first of all by taking us to the findings and submitting that the letter to which we have referred, was not before the panel, or at least that there is no clear finding that it was and that reading the Reasons as a whole it is reasonably clear that what happened was that after writing that letter to Mr Jackson, in which he did mention the earlier Tribunal hearing Mr Judges continued:

		"Accordingly the issues raised in the previous paragraph with regard to the Department's view of your secondment obligation will not be taken into account in any decision regarding short listing or appointment to posts within the Department.  Provided you meet the person specification you will, therefore, obtain interviews for any jobs for which you apply..."

and Miss Findlay suggested that what clearly happened, and she draws on the reasons and the findings of fact for this, was that Mr Judges drew up a memo or a directive, call it what you will, dealing with that particular point; that is that provided he met the requirements the Applicant, Mr Jackson, would be short listed and there would not be a mishap as there had been in the past.  Albeit it was clearly not Mr Judge's view that that mishap had been anything to do with race.  At the end of the day it matters not, in our view, which of those competing views is right.  If we had had to determine it we are bound to say we think it is more probable that Miss Findlay's interpretation is correct.

	However, the findings of the Tribunal are very clear on this particular topic.  There are various references to it.  The first one to which we would refer is paragraph 39 where this appears:

		"According to Mr Judges he had expected his memorandum relating to the applicant to have been made aware to those dealing with applications from him.  According to the 3 panel members on this occasion, they were not aware of this.  So far as that particular matter is concerned we do not feel that it assists the tribunal one way or the other.  We say this because had the applicant not been short-listed, that could have been a cause of a serious complaint  having regard to what Mr Judges has said.  In the event he was found to reach the person specification and was short-listed whether or not this arose as a result of the memorandum from Mr Judges.  There was no unfavourable treatment of the applicant at that stage."

	A little later on, and here the panel are dealing with the way the matter was put before them, that was victimisation, they say this in paragraph 47:

		"On this issue we find it is accepted [this is a reference to Mr Williams' previous knowledge of the Applicant] by Stuart Williams he was aware of the applicant whose previous applications he had turned down...  So far as Ms Randhawa and Ms Bower are concerned, we take the view they would have been aware the applicant had made previous applications for a management position and had made complaints.  Whether they knew it was internal complaints or complaint to this tribunal, we find they had some knowledge although they may not have known the present situation of the applicant.  We have to determine whether the applicant has been able to satisfy us on the balance of probabilities that he was unfavourably treated because of this...

		48. ...So far as the panel members were concerned, we do not find they allowed their knowledge of him to prevent them from considering his application in a proper and fair way.  Although we have made certain criticisms they impressed us as attempting to make an appointment of the best person who applied for the job and they endeavoured to do so."

	There was an earlier passage in the Reasons dealing with the memo also to which Miss Findlay referred us and that is paragraph 15 where the Tribunal recite Mr Judges' evidence that he had caused a directive to be circulated to the effect that if the Applicant applied for the post of team manager and met the person specification, he was to be short listed.  They note that he clearly felt that the Applicant had been short listed as a result, or he assumed as a result of that memo.  But, the Industrial Tribunal say:

		"We find from evidence of the interviewing panel there was doubt as to whether they were aware of that directive."

So it was unclear on the findings whether the panel had in fact received the memo and there was to that extent some breakdown perhaps in communications.

	The fact of the matter is that as the Tribunal found, there was no actual discrimination.  The Tribunal found that there was some knowledge, they accepted there was some knowledge of the Applicant and of past complaints but the findings that they came to, and which we have recited, are findings of fact and are clear.  The inference which Mr Crawford urged that in effect they should have drawn, namely because of the factors he put forward that there was an inference to be drawn of discrimination, was one which the Tribunal declined to draw.  Again, it is a matter of fact for a Tribunal whether on certain basic facts they are prepared to draw further inferences of fact.  This Tribunal set out all the evidence and arguments extremely carefully, did not draw the inference in favour of the complaint and indeed made the specific findings to which we have referred.

	The second ground put forward in the amended grounds refers to a perception that the Applicant had, that the interview panel had of him, namely that he was someone perhaps who had not been appointed to certain posts in the past and had made complaints.  What Mr Crawford submits here is that really because of that it was more incumbent upon the panel to ensure that their procedure adopted was as objective as possible and fair.  In general terms that is a submission which we accept.  What Mr Crawford focused on in particular was that they did not allocate scores to the respective candidates and they did not use the candidate assessment forms which the Respondents' own code of practice had devised.

	What according to the Reasons the panel did do was to take extensive notes.  Each individual made their own notes and their own careful assessments of each candidate and reached their conclusions in that way.  Again, it seems to us that there really is no point of law that emerges from this ground.  At paragraph 42, for example, the Tribunal say this:

		"...We do not accept the criticism of Mr Gill [Counsel for the Applicant before the Tribunal] that some scoring system ought to have been used.  The candidate assessment form does not refer to this.  There is no reason to suppose scoring would eliminate discrimination. [That does seem to this Tribunal to be right.]  It was as we say wrong of the panel not to have used the forms.  However having said we do not find this amounted to unfavourable treatment since this applied to all the candidates.  In this we find he was being treated no better and no worse than others and we do not draw any unfavourable inference."

If one reads that as Miss Findlay urged us to with the finding in paragraph 43:

		"We find from the evidence the panel came to the conclusion the applicant in comparison with the other candidates interviewed, was not the best candidate for the post... Whilst the applicant may be critical of what they say, we find no basis for suggesting their view taken was based on racial grounds."

and also the findings in paragraph 48 to which we have already referred.  We would only add here that without going into the lengthy Reasons further there is to be found in them a careful analysis of the system that was adopted by the panel, the system of taking notes.  They received evidence and all the evidence is set out in the Reasons of the view and assessment of each member of the panel on each of the topics that was raised in this interview and it is only after considering all that evidence so far as we can see, carefully and fairly, that the conclusions to which we have made brief reference were arrived at.

	In the end, as we have indicated, we can see no wrong approach in law insofar as this ground is concerned.  It was again essentially a finding of fact.

	The third ground, perhaps tied in with the fourth, is that the Tribunal really failed properly to deal with a complaint which they did make of the panel which arose out of their treatment of Mr Jackson's presentation to them.  What appears to have happened is that one part of his presentation was using a flip chart to demonstrate his points which seems to us to be a perfectly acceptable and sensible way of going about matters, but he did not ensure that all, as opposed to one member of the panel, could see clearly what was going on.  The complaint was, and it is fair to say the Tribunal accepted this as a valid complaint, that the panel might have pointed out to Mr Jackson that they could not see instead of leaving the matter and then complaining about it afterwards.  Whilst we can see some justification given the nature of the interview for the course the panel took, that is irrelevant because it is, of course, the Tribunal's finding and approach that is of importance.

	The way Mr Crawford presented this to us is, in our view, the only way it could be presented was to focus on a letter which was written after the interview by one of the panel members to whom the Applicant had spoken on the telephone.  He draws attention to part of that letter which does refer to this very topic and the submission is, putting all that together, that it demonstrates that the panel did not in truth really assess Mr Jackson properly and fairly on merit and again this incident was something that was peculiar to him and not the others.

	Before dealing with the Tribunal's finding on that we think it is appropriate to note that the letter (page 39 of the Respondents' bundle) whilst it does contain the quotation upon which Mr Crawford relied which is the first of five points made in the letter, there are, in the letter, the other four points.  The letter itself makes the point that written feedback is not normal practice and that normally there would be a meeting but since there had been the telephone conversation and an earlier letter, this was a brief reply to it.  But there were four other points there which did indicate albeit it briefly, why Mr Jackson had not been successful and was not regarded as the best candidate so we do feel that the letter has to be read as a whole and not just one part of it.

	Turning to the Reasons, we do not think it necessary to quote them, but the Reasons do include a detailed account of each panel member's notes and views of the applicant and of how he compared, in particular, with the successful candidate.  The upshot of that was that the Tribunal were satisfied that there had been a careful and objective assessment; that it was not influenced by racial considerations and again we have to say that that was a finding of fact.  It is not alleged that it was perverse and it could not sensibly have been so alleged and that is a finding by which we are bound.

	The final point was, perhaps not the strongest in that it at least to some extent, reverts to the first point that was taken.  It involves Mr Judges' so-called memo to which we have already referred.  The suggestion was, so it is urged by Mr Crawford, having found that the  panel had the letter, as was Mr Crawford's submission, as opposed to Miss Findlay's denial of that, and indeed had some knowledge of the Appellant and that is common ground, it was inconsistent for them to find, as they did at paragraph 48:

		"we do not find they allowed their knowledge of him to prevent them from considering his application in a proper and fair way."

It is not necessary to go back over ground we have already covered.  The Tribunal dealt with the question of the memo and the knowledge that the panel had of Mr Jackson.  They reached the findings that they did which were open to them and were findings of fact.

	We would conclude by saying that we have not just considered this as a technical or theoretical exercise going through the Tribunal's reasons to see if they can be shown to pass muster one way or the other.  It is clear from the findings that the Appellant genuinely felt that he had been discriminated against and we have read the careful and lengthy reasons as a whole.  They include all the history and background leading up to the April interview.  The evidence is carefully rehearsed and the arguments of each side were obviously considered.

	In the end there is a clear finding which is essentially one of fact; that the panel were attempting to appoint the best person for the job and in doing so did not discriminate against the Applicant.  The panel considered his application in a proper and fair way.  Those are findings of fact.  We cannot accept Mr Crawford's submissions, powerful as they were, that the Tribunal went wrong in law or adopted a wrong approach in law.  The appeal must therefore be dismissed.  We would only add that it comes across to us clearly from the reasons the Tribunal gave, and Mr Judges' letter of 25 March that Mr Jackson has a great deal to recommend him.  It is greatly to his credit that he has shown determination to progress his career in this very worthwhile field.  If we may presume to do so, we would encourage him to continue in that way.  We would encourage him to try to accept the Tribunal's finding that the panel was not discriminatory and to focus on the positive and helpful spirit which we believe Mr Judges' letter to him displayed.  We have no reason to suppose that that attitude has changed and we would like to think that Mr Jackson will progress as he clearly would like to with the Respondents in the future.  We are, of course, grateful to both Counsel for the assistance we have received.