Appeal No. EAT/517/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 11th May 1995
		Judgment delivered
		On 9th November 1995

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MRS M E SUNDERLAND JP

	MRS P TURNER OBE

MRS C ROOMS	APPELLANT

NORTH BIRMINGHAM COLLEGE	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G P BAXTER
	(of Counsel)
	Commission for Racial 	Equality
	Elliott House
	10/12 Allington Street
	London 
	SW1E 5EH

For the Respondents	MR J A SMITH
(Solicitor)
Messrs Higgs & Sons
Inhedge House
31 Wolverhampton Street
Dudley
West Midlands
DY1 1EY

	MR JUSTICE MORISON:   Mrs Rooms, the appellant, brought a claim against North Birmingham College "the College" alleging that she had been unlawfully discriminated against on the grounds of her race, she being a black Afro-Caribbean.  The alleged discrimination arose from the failure of the College to appoint her to the post of part-time lecturer in Word Processing and Secretarial Studies "the post" in September 1993.

	Her complaint was considered by an Industrial Tribunal held at Birmingham and was unanimously dismissed.  She appeals from that Decision.

	We take the facts from the Industrial Tribunal's Decision which was sent to the parties on 25 April 1994.

	The appellant is a qualified and experienced lecturer in typing, word processing, office practice, and business administration.  She holds certificates as to her competence and a Teacher's certificate and a Certificate in Education.  She had worked as a visiting Teacher at the College since June 1990; she also had two other part-time lecturing posts; she was well regarded by the College.

	There were four applicants for the post, all of them women; all of whom had worked for the College before; all of them, apart from the appellant, are white.  Each of the four was interviewed, on the same day, after a session at which all four attended together to be told about the job and its duties, and particularly about the necessity:

		"for lecturers to be innovative not only in their teaching but in their general attitude and in cultivating a commercial awareness of opportunities to extend and adapt courses to attract and enrol more students." [paragraph 10]

	There were a number of criticisms of the way the selection process was carried out:-

1.	The College failed to distinguish between essential and desirable criteria in the person specification drawn up for this post, contrary to the College's own code.  Thus, the person specification stated that "the successful candidate is expected to be able to demonstrate (inter alia) possession of teaching Certificate/TDLB Qualification D32/D33/Tutor - Access type".  The person appointed did not have this qualification but it is not clear whether such was regarded as essential or desirable.  The Industrial Tribunal construed the requirement to mean desirable because of the words "is expected to demonstrate".

2.	Although the selection panel, at the joint session, stressed the need for lecturers to be 'innovative' this was not a requirement expressly falling within the job description or person specification.  After candidates have been identified the apparent emphasis on a new criterion is plainly capable of being motivated, albeit subconsciously, in favour of white people against the one black candidate.  Having pre-determined criteria avoids this risk.  The Industrial Tribunal thought that the words in the job description:

		"the development of word processing and secretarial studies"

	were apt to cover the requirement to be 'innovative' and that the College had not introduced a new criterion after the four candidates had been identified, and their racial characteristics known.

3.	The scoring system was imprecise and the records of interviews were inadequate.

4.	When asked why she had not succeeded, whereas another apparently less well qualified candidate had obtained the position, the appellant was told that she had not been as "bubbly" as the successful candidate; yet being 'bubbly' was part neither of the job description nor of the person specification.  The industrial Tribunal appeared to accept that the word 'bubbly' was not a predominant criterion for selection and had been used only as an indication of a level of innovative enthusiasm.

	Having considered all these matters and having directed themselves as to the need for careful analysis, they concluded that the College's explanations for what happened were tenable, reasonable and satisfactory.

	There is no doubt that the appellant's failure to secure the employment which was given to a white person was conduct which was to her detriment and potentially unlawful.  We have, properly, been referred to passages from reported decisions which show the proper approach which an Industrial Tribunal should take in cases such as these.  Those passages are well known and need not be repeated here.

	Racial discrimination is always evil but may often be committed by people who are quite oblivious to their own prejudices.  Thus, this evil act may be done by respectable, honest and otherwise decent people, who may be quite unaware of their racial prejudice and who would certainly, probably convincingly, deny any prejudice, if challenged.  It is said that such discrimination is subtle in the way it is committed and not easy to detect.

	The question we must face in this case is whether it can be said that the Industrial Tribunal have erred in their approach.  The College say that the Industrial Tribunal have made findings of fact with which we cannot interfere; whereas, on the appellant's behalf we have been pressed to conclude that the Industrial Tribunal, although aware of the correct approach, have, in this case, departed from it.

	The points of criticism may be summarised in this way:

	The Tribunal appear to have asked the wrong question by borrowing the 'danger signal' referred to in Baker v Cornwall County Council [1990] IRLR 194 and applying it to this case.  In Baker the signal was the employer's excuse that they wanted 'someone who would fit in'.  At paragraph 26 of this Decision, the Industrial Tribunal said:

		"We have considered the case to which we were referred.  First, we can find no suggestion that the applicant might not have fitted in with the mix at the College.  The matrix before us in evidence shows no such indication, and the appellant had indeed taught at the College on a part-time basis for some time."

	The appellant says that that was not the danger signal in her case.  What she relies upon as the danger signals are:

	(a) the addition of the requirement that she should be 'innovative' after the candidates had been identified;

	(b) the reason given for her rejection which suggested that a new criterion of being 'bubbly' had been introduced; 

	(c) the way the candidates were marked and the lack of proper record keeping;

	(d) the apparent discrepancy between the qualifications of the successful candidate and the appellant on the one hand and the job description/person specification on the other.

	The Industrial Tribunal appeared to miss the point about the explanation given to the appellant for her rejection.  The Industrial Tribunal said in paragraph 25:

		"but we heard in reply to questions asked of the expert witness called for the applicant that being or not being "bubbly" had no racially derogatory meaning."

	The issue was not whether the word had a racially derogatory meaning but rather whether this was a new criterion, not mentioned in the documents sent to prospective candidates.

	It is the Chairman's view that these criticisms are sufficiently well founded to justify drawing an inference that the appellant failed to obtain the position because of her racial origin.  But his two lay colleagues do not share his misgivings, and their views must prevail.  

	The Employment Appeal Tribunal, as a whole, recognises that the question whether an inference of discrimination should have been drawn from the primary facts is one for the Industrial Tribunal and not for us.  

	The difference between the Chairman and his colleagues is a fine one.  As with the Industrial Tribunal itself, we all accept that the College has conducted itself in a way which opens it to criticism:

		"Whilst the tribunal feels that the College could have conducted itself in a way that more clearly demonstrated the fairness and consistency of its selection procedures and was less likely to be questioned, we believe the respondent's explanation was tenable reasonable and satisfactory" - [paragraph 28]. 

	The Chairman's conclusion is influenced by his belief that Industrial tribunals may not be as willing to draw an inference of racial discrimination, where the facts justify it, as perhaps they might.  He recognises that it is an unpleasant conclusion to draw, and that, for the most part, the people involved in making employment decisions are good-hearted and sincere.  Only very rarely will it be obvious that discrimination has occurred; and more rare still when it is admitted.  The proper approach is to look at the 'objective' evidence and to identify the danger signals.  In every case where discrimination has occurred there will be overt signs: such as a breach of procedure, or a failure to keep proper records, or an unexplained failure in administration.  Having found the signs, tribunals should be ready to draw the inference.  If, as is the case, unlawful discrimination may occur otherwise than consciously, then tribunals should not place too much reliance on what may be called the normal judicial decision-making tools for deciding where the truth lies.  In many cases it is proper to draw the inference even against people who are convincing witnesses, who are telling the truth as they see it.  On the facts of this case, the Chairman believes that there are sufficient danger signals, identified above, upon which the inference should be drawn, and that the explanations put forward by the College are not convincing, overall.  He further takes the view that the Tribunal may have taken their eye off the point both in relation to identifying the danger signals and in connection with the word 'bubbly', and its significance on the facts of this case.

	The two lay members, on the other hand, do not consider that the Industrial Tribunal can be said to have erred in law; that its attention was drawn to the relevant authorities and that it carried out its duties conscientiously.  It said it had:
 
		"subjected the College's explanation of events to rigorous scrutiny". [paragraph 27]

	Although paragraphs 25 and 26 of the Decision may not be entirely happily expressed, there are no grounds for thinking that the tribunal had not correctly applied the law to the facts.  The Tribunal's conclusion that it accepted the respondent's explanation as "tenable, reasonable and satisfactory" was one that was open to it on the facts.  If we had allowed this appeal, we would have been substituting our own view of the facts to that of the Industrial Tribunal, which is not permissible.

	Although the Chairman disagrees with the result, he is quite prepared to accept his colleagues' reasoning, and respects their conclusion.

	Accordingly, the appeal is dismissed.