Appeal No. EAT/0762/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 October 2001

Before
HER HONOUR JUDGE J A WAKEFIELD
MR D J HODGKINS CB
MR P M SMITH

THE LONDON BOROUGH OF TOWER HAMLETS	APPELLANT

DR M A OGUNLOKUN	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR P MEAD
(Of Counsel)
Instructed by
London Borough of Tower Hamlets
Borough Solicitors Dept
Town Hall, Mulbery Place
5 Clove Crescent
London
E14 2BG	

JUDGE A WAKEFIELD

1.	This is an Ex Parte Preliminary Hearing of an appeal by the London Borough of Tower Hamlets against a decision of an Employment Tribunal sitting at Stratford by which it was found that the Respondent’s claim to have been discriminated against on grounds of race had been proved.

2.	The complaint in the originating application by the Respondent was as to 2 specific instances of alleged race discrimination, the first consisting in early termination of a temporary post and the second in failing to short-list the Respondent for a permanent post as policy and planning officer.  Both complaints were upheld by the Employment Tribunal but it is only as to the second finding that there is this appeal.

3.	What is said in the Notice of Appeal is that the Employment Tribunal made errors of law in 5 separate respects: firstly, that they failed to “make any findings or otherwise rule on the Appellant’s case that the Respondent did not meet the essential criteria to justify being short-listed”; secondly, that the Tribunal “applied the wrong test or alternatively failed to give adequate reasons for its finding that the Appellant had treated the Respondent less favourably in failing to short-list him”; thirdly, that it erred in law in concluding that the failure to short list was on grounds of race (as opposed to failure to appoint after interview) when the short-listed candidates included another black African candidate”; fourthly, that they “erred in law in making a finding of fact that the witness Fiona Greene (who was one of the short listing panel) had been influenced by Mr Robbani, another member of that panel in rejecting the Respondent, when the evidence also accepted by the Tribunal was that she had already completed the short-listing form and independently found that the Respondent had not met the essential criteria” and, finally, the fifth ground, that the Tribunal made an error of law “in finding that the selection panel had discriminated against the Respondent when the Tribunal also found that it might have come to a different conclusion upon hearing the other witnesses of the panel, including Mr Robbani.”
 
4.	The Employment Tribunal decision which was promulgated on 11 May 2001 following a five day hearing in April contains a lengthy analysis of the issues and it sets out the law and the evidence and some findings of fact.  In paragraph 11, a very long paragraph, the conclusions of the Tribunal are set out.  As to the claim that there was discrimination on grounds of race in failing to short-list the Respondent for the permanent post the Tribunal said, in part, this:

“The Respondent (that is the present Appellant) has an equal opportunities policy and a policy to provide for the selection of candidates for interview and appointment.  Mrs Greene accepted that parts of that policy were ignored.  She could not tell us why.  In particular, she frankly admitted that she could not explain the marking system adopted by Mr Robbani.  There were also errors in her own assessment which she has also honestly recognised.

Mr Ullah was the successful candidate at the interview for the permanent post.  He was of the same ethnic origin as Mr Ali and Mr Robbani.  We can only conjecture at the events of the selection panel on 13 December.  We are unpersuaded that Mrs Greene was not influenced by Mr Robbani.

In applying the analysis we are required to undertake under the case of King, there is clear evidence Dr Ogunlokun was treated differently than, for example, Mr Ullah.  He was not afforded an interview (and thereby suffered a detriment) and there was a clear difference of treatment (see above) in his marking for the short-listing process.  It is common ground there is a difference of race.  Thus, we are required to consider the Respondent’s explanation therefor to see whether, on the balance of probabilities, we are satisfied with that explanation.”

And finally in that paragraph they say:

“For the reasons we have indicated already, we found the Respondent’s explanation of the failure to short-list Dr Ogunlokun both inadequate and unsatisfactory.  That, taken together with its failure to answer satisfactorily the race relations questionnaire or indeed thereafter, leads us, on the balance of probabilities, to the unanimous conclusion that the only explanation for the Applicant’s treatment in regard to both of his complaints is that he was treated differently on account of his race.  That is race discrimination and we find accordingly.”

6.	Having considered these findings in the light of the decision as a whole we are of the view that it is arguable that there was a failure by the Employment Tribunal properly to distinguish between the short-listing process and the interview appointment process and specifically to address and determine the matters which were set out in the first three grounds of the notice of appeal.

7.	As to the fourth ground, we do not consider that this should go forward to a full hearing because we consider no arguable point of law is shown.  We find that the Tribunal were entitled on the evidence they had heard to reach the view that there was influence by Mr Robbani on Mrs Greene at the short-listing process.

8.	As the fifth ground of appeal also we consider that this is not sustainable and should be dismissed at this stage.  What the Employment Tribunal said as to this is again in paragraph 11 as follows:

“The only direct evidence we heard was from Fiona Greene.  We were not told why neither Mr Speller nor Mr Robbani were before us.  Had we heard from them our decision may have been different.”

This in our view is merely a statement of the obvious position that the Employment Tribunal must make findings on the basis of the evidence which has been presented to them.  It is not a statement that an adverse influence is being drawn from a failure by the Appellant to call other potential witnesses.  We will therefore allow the first three grounds of appeal to go forward to a full hearing and the fourth and fifth grounds are dismissed.  Time estimate is one day, Category C, skeleton arguments not less than 14 days prior to hearing.