Appeal No.EAT/1104/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 February 1998

Before
HIS HONOUR JUDGE PETER CLARK
DR D GRIEVES CBE
MRS E HART

DR D J McVEA	APPELLANT

LANCASTER UNIVERSITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(Of Counsel)
Messrs Davies Wallis Foyster
Solicitors
Harvester House
37 Peter Street
Manchester
M2  5GB	

	JUDGE CLARK:   This is an appeal by Dr McVea, the female Applicant before the Manchester Industrial Tribunal, against that Tribunal’s decision to dismiss her complaint of unlawful direct sex discrimination against the Respondent University following a three day hearing.  Extended Reasons for that decision are dated 11 August 1997.

	In August 1996 the English Department at the University advertised a Research Fellowship to work on a four year project, externally funded, the object of which was to produce an electronic edition of John Ruskin’s first major publication - Modern Painters Vol.1.

	The Appellant is described by the Industrial Tribunal as a highly intelligent and articulate person, with an excellent degree from Cambridge, coupled with a PhD in English.  Her PhD involved extensive research in the Humanities, including the ideas and works of Ruskin.

	The post attracted thirteen applicants.  Four were shortlisted including the Appellant.  The interview panel consisted of four men involved in the project.  

	In the event the successful candidate was Dr Woof, a man, who had a First Class Degree and PhD from Oxford; he also had very recent experience in using the modern form of technology necessary for the project.  The Appellant came a strong second.  They were both internal candidates.  The two external candidates brought up the rear.

	Having heard the evidence and argument, the Industrial Tribunal concluded that the Appellant was subjected to less favourable treatment in that she was not selected for the post; there was also a difference in sex between herself and the successful candidate.  The Tribunal looked for an explanation.  They expressed their finding in paragraph 18 of the reasons as follows: 
“Having heard all the evidence, the Tribunal is satisfied that the decision to appoint Dr Woof was based on a genuine, believed and believable perception that he was the most suitable candidate for the position, having the flair, experience and creative thought to use the application of information technology coupled with his overall academic qualifications to achieve the results that the appointing committee were looking for.  The Tribunal is also satisfied that, had Dr Woof for some reason declined the offer of the appointment, the applicant would have secured the position.”

	In reaching that conclusion, negativing an inference of unlawful discrimination, the Industrial Tribunal took into account certain shortcomings in the selection procedure, particularly, that no notes of interview were made and retained, and that the interview panel consisted only of men, whilst the University’s policy provided: “Wherever possible Appointing Committees should include male and female members.”  Against that decision the Appellant now appeals.  

	At this Preliminary Hearing Ms Monaghan submits that the appeal raises arguable points of law, in that first the Tribunal give inadequate reasons for their decision and secondly, that the decision can properly be regarded as perverse in the legal sense.  As to the first point she submits that the Industrial Tribunal made no proper finding as to the criteria employed by the University in deciding who should be appointed to the post.  In particular she draws attention to the following factors:
“In reply to correspondence the Respondents stated that “the criteria used for selection were expertise in the humanities in the nineteenth century and an interest in the exploitation of information technology in editing”

	She also draws attention to certain answers given in reply to the questionnaire served on behalf of the Appellant.

	We have considered that submission and we have reached the conclusion that the Industrial Tribunal, having heard the evidence and seen the documentary evidence over three days, were sufficiently clear as to first of all the criteria that were used, that to which we have just referred, and secondly, that they were satisfied that on the basis of that criteria, Dr Woof was the most suitable candidate, in what was plainly a very closely fought contest between himself and the Appellant.

	As to the further submission that the decision was arguably perverse, as we think Ms Monaghan realistically acknowledged in the course of oral argument, it is to some extent a matter of impression for this Appeal Tribunal as to whether or not such a finding might arguably be made at a full appeal hearing.  

	We have considered the Industrial Tribunal’s findings and reasons and the submissions made in this appeal and we are quite unable to discern any real prospect of such an argument succeeding at a full hearing.  In these circumstances we shall dismiss this appeal at this stage.