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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Guishard v. Harrow [1999] UKEAT 599_99_0610 (6 October 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/599_99_0610.html Cite as: [1999] UKEAT 599_99_0610, [1999] UKEAT 599_99_610

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APPEARANCES

 

For the Appellant	IN PERSON


 


MR JUSTICE HOLLAND: The Appellant is an Educational Psychologist of African-Caribbean origin. By an IT1 dated 13 March 1998 she complained of racial discrimination.

1. That complaint was developed in these terms:

"5. I am an African-Caribbean, resident in the London Borough of Harrow since 1984.

6. On 18th December 1997, I was interviewed for the post of Senior Educational Psychologist/Associate Tutor with the Harrow LEA and the University College London. I was not appointed.

7. The successful applicant is a main (basic) grade educational psychologist who has previously worked in Harrow, and who was working alongside Harrow's current Principal psychologist in Hertfordshire at the time of the appointment. She too, is a linked supervisor with the UCL course. She is white.

8. In my view, equal opportunities in recruitment has not been practised. I believe that I have been discriminated against, manifesting as racialised behaviour. This behaviour included a perception of my performance as poorer than the evidence collected so far indicates. It is my belief that my performance was interpreted negatively in order to slant my words and actions towards a negative perception of me. The behaviour is entirely consistent with the known research on the psychology of prejudice and racism. The psychology of racism would also propose the converse i.e. that any weaknesses in the performance of the successful applicant would be seen as less significant than my perceived weaknesses."

2. In the event the matter came before an Employment Tribunal sitting for London (North). The hearing was prolonged, being on and between 22 and 25 September 1998 and on and between 19 and 21 January 1999, with further hearings in Chambers on 22 January and 17 February 1999. For that hearing both sides were represented by Counsel.
3. In the event the Tribunal sent to the parties Extended Reasons dated 11 March 1999. The decision set out was in these terms:

"The unanimous decision of the Tribunal is that the Respondent did not discriminate against the Applicant on the ground of her race."

4. It is helpful to say something straightaway about the Extended Reasons. They immediately excite professional admiration for the thoroughness, for the conscientious way in which issues are identified and discussed and generally for the drafting.
5. Turning from those general comments to the specific, they start with an opening extending from paragraph 1 to paragraph 4 in the course of which the witnesses are identified and so is the Tribunal's general approach to their evidence and to the weight that is accorded to such.
6. The reasons then at paragraph 5 turn to the facts. The facts are set out in considerable detail in the ensuing paragraphs, terminating in paragraph 25. The law is then reviewed in the next ensuing paragraphs in terms that cannot be, in any way, challenged but which specifically include the well known passage from the decision of the Court of Appeal in King v Great Britain-China Centre [1992] ICR 516, at 528. It is salutory to remember the words there used. They are:

"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus is the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that 'he or she would not have fitted in.' (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put it in North West Thames Regional Health Authority v Noone [1988] ICR 813, 822, 'almost common sense.' (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

7. In paragraphs 30 and 31 there are there recited the submissions that were made to the Employment Tribunal on behalf of the Respondent. There then follow in and between paragraphs 32 and 55 the submissions that were made to the Tribunal on behalf of the Applicant, as she then was, the present Appellant. In with those submissions there are also the comments of the Tribunal as to their weight and significance. It is noteworthy that every point that was made on behalf of the Appellant was duly and carefully noted down by the Tribunal, hence the length of that section of the Extended Reasons.
8. One then comes to paragraph 56, the final paragraph, the terms of which are as follows:

"56. The Tribunal has no doubt that the Applicant genuinely believes that she has been discriminated against by the Respondent on the ground of race. The Applicant has shown discrimination in the sense that she was not appointed to the post for which she applied and she has also shown a difference in race since the successful candidate was white. The Tribunal has considered the detailed explanations put forward by the Respondent in respect of the presentation and interview process. The Tribunal has not found those explanations to be inadequate or unsatisfactory; indeed, the Tribunal found to the contrary. Accordingly, the Tribunal has decided that the Respondent and those conducting the selection process did not discriminate against the Applicant on the ground of her race."

9. Pausing there, it is to be remembered that any Employment Tribunal, confronted with this type of issue has a difficult task to perform, beset by conflicting factors. On the one hand, as the citation from King underlines, it behoves the Employment Tribunal to be alert to detect racial discrimination, notwithstanding that such may be covert and even unconscious. On the other hand the Employment Tribunal was never charged with the selection of the Educational Psychologist. It is axiomatic that it could not replicate the selection process. That selection process may or may not have arrived at the right result viewed in hindsight, but the issue is not as to whether the selection process got the right answer, but as to whether it was tainted with racial discrimination. It is always difficult for Employment Tribunals to review a selection process with an eye solely on racial discrimination without trespassing on that which is properly the province of the selection panel and namely, the decision as to who to appoint. Given those two conflicting factors it is apparent that this Employment Tribunal was conscious of the problem and that it did its best to steer the appropriate course.
10. It is to be noted that in the course of giving its judgment the Employment Tribunal directed itself as to the significance of the process itself by way of paragraph 35. It reminded itself that that key issue was as to the conduct of the interviewing on 18 December 1997 and it set its position out in these terms:

"35. The Tribunal was of the view that the issue for the panel was the performance of the candidates on the day of the presentations and interviews."

11. With those comments we then turn to today's proceedings. The unsuccessful Applicant, Miss Guishard, appealed from their decision to this Tribunal. That appeal has been listed today for a preliminary hearing. As we explained to the Appellant our function today is as follows.
12. We are concerned first to discern whether the appeal raises a point of law. If the appeal does raise a point of law that arises out of the decision of the Tribunal then we will not seek to resolve it, but we will direct that the matter be re-listed on a subsequent date so that, at that further hearing, the London Borough of Harrow may be represented so as to make its submissions to us. If, on the other hand we cannot discern a point of law arising out of the decision it is our duty to dismiss the appeal. The focus on the point of law arises as follows.
13. This Tribunal, unlike the Employment Tribunal, has its jurisdiction strictly limited by Parliament to points of law. We do not see the witnesses. We do not find the facts. We have no opportunity to do so. It is our sole function to review the decisions of Employment Tribunals in order to ensure that those decisions are made in accordance with the law. It is for Employment Tribunals and not for this Tribunal to hear witnesses, find facts and consider arguments that are based upon the evidence that is there adduced as to the weight and inference appropriate to be drawn.
14. In the event, before us this morning, the Appellant has attended now unrepresented. She has made to us a courteous and sustained submission which has certainly served to underline the finding of the Employment Tribunal, namely that she genuinely believes that she was discriminated against on the ground of her race in the course of this selection process.
15. We further learn from her submissions about her concerns first with the process itself and secondly, with that which was revealed about the process, by way of the feed-back that was afforded to her at her repeated request after the results of the process were communicated to her. She has sought to persuade us that there is a point of law here and she has referred, by way of her Notice of Appeal, to various authorities and, in particular, this morning drew our attention to the decision of this Tribunal in Elahi v Bristol & Weston Health Authority EAT/138/89. Since hearing her submissions we have had the opportunity of looking at that decision, and indeed of looking at the other arguments advanced in her Notice of Appeal, all by reference to the Extended Reasons of the Employment Tribunal.
16. In the event we have to say that we are quite unable to discern any point of law arising out of the decision of the Employment Tribunal such as would found an appeal, that is, such as would found a further hearing of this matter at which the Borough of Harrow would be represented.
17. The points that were courteously made by Miss Guishard are points about which she no doubt feels strongly, but they are also points which were raised very properly on her behalf by her Counsel before the Tribunal and, as already been pointed out in this judgment, the Tribunal plainly took those points into consideration, hence the way in which each point is the subject of a paragraph in that large section of the Extended Reasons, dealing with the submissions made on her behalf and their comments.
18. It was for the Tribunal, and the Tribunal alone, to deal with those points, to accord them weight and to see whether they influenced the decision. We say that it was for that Tribunal alone because the only way in which those points could be evaluated was by reference to the overall evidence. That Tribunal had the advantage of receiving the evidence. We did not receive the evidence and inevitably we never will. We are the Tribunal for dealing with the matter as law.
19. We all three were sympathetic to Miss Guishard, given her conviction as to discrimination and given the courteous way in which she has approached this Tribunal. We also are sympathetic to the fact that presently she is unrepresented. All this has meant that we have given this matter some very careful consideration, but in the end we simply cannot bend the rules. We would be doing her no favours to invent a point of law that is not really there and in those circumstances, as already indicated in this matter, we have to dismiss this appeal.