Appeal No.UKEAT/0839/03/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 September 2004

Before
HER HONOUR JUDGE WAKEFIELD
MR P GAMMON MBE
MR D WELCH

MISS P M DOUGLAS	APPELLANT

(1) MANCHESTER CITY COUNCIL

(2) MR BRENDAN RAINSFORD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARTIN PALMER
(of Counsel)
Instructed by:
BAR PRO BONO UNIT
289-293 High Holborn
London
WC1V 7HZ	
For the Respondents	MR CHRISTOPHER TAFT
(of Counsel)
Instructed by:
Manchester City Council Legal Services
City Solicitor's Division
Town Hall
PO Box 532
Manchester
M60 2LA	

SUMMARY

Race Discrimination

Whether the Appellant was victimised by reason of previous litigation against the Respondent and others and whether there was direct & / or indirect discrimination on grounds of race.

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Miss Paula May Douglas against a decision of an Employment Tribunal sitting at Manchester by which her complaints of discrimination on grounds of race were dismissed.  Upon the application of the Appellant for a review of the Decision, such review was granted in the interests of justice by the Chairman and at a review hearing the earlier findings were confirmed.

2.	The background facts, more fully set out in the Extended Reasons for the Decision sent to the parties on 3 September 2003, can be summarised briefly for the purposes of this appeal hearing.  Early in 2002, the Appellant applied for an advertised position as a Legal Officer in the litigation department of Manchester City Council.  By the terms of that application she referred to her own history as a litigant, which had involved her initiating a large number of proceedings against various organisations including (in the late 1990s) the Respondent.  She also included with her application a copy of a High Court judgment on an application to declare her a vexatious litigant.  The Respondent received a total of 79 applications for the 6 positions of Legal Officer which were available.  71 of those applications were for a post at Trainee Legal Officer level for which the Appellant had applied.

3.	A four member panel, which included the second Respondent Mr Rainsford, the First Respondent’s head of litigation, each considered separately and then together all applications by reference to the specified criteria for the particular posts.  The Appellant was not selected for interview.  She complained that she had thereby been the subject of direct and indirect race discrimination (she is Afro-Caribbean) and that she had been victimised on grounds of race by reason of her previous litigation against the Respondent.
4.	Crucial findings of fact set out in the Extended Reasons were that before the interview panel met to consider the individual preliminary assessments of the candidates, Mr Rainsford took advice from the Assistant City Solicitor about his concerns regarding the Appellant’s application for the post of Legal Officer in the light of his own knowledge of her previous litigation and the terms of and the enclosures with her application.  The Assistant City Solicitor advised that the Appellant’s application be treated no differently than that of any other candidate.

5.	The second important finding was that the Appellant, in the view of all four panel members, did not met all three criteria required for the job, a view which was shared by the Employment Tribunal.  All applicants who met the three criteria were interviewed and none were interviewed who did not do so.  The other crucial finding is that the three criteria were relevant to the needs of the job and that the decision of the panel was made on an objective basis.

6.	The conclusions of the Tribunal were set out at paragraph 9, sub-paragraphs (a), (b) & (c) respectively as regards direct discrimination, indirect discrimination and victimisation.  It is accepted on behalf of the Respondent for the purposes of this appeal that the final sentence of 9 (g) does not reflect an appropriate test for indirect discrimination.

“9.	On the basis of our findings of fact we made the following conclusions: 
(a)	There was no direct discrimination against Miss Douglas. She has asserted that the panel members and the City Council in general improperly discriminate against persons of Afro-Caribbean ethnicity. But there is no evidence to support that contention. The figures produced by Miss Douglas relating to the ethnic make-up of the City Council's workforce do not assist her case at all. If anything they work against her. There has been no evidence to support the contention from Miss Douglas that officers in the City Council have a specific and negative view of persons of Jamaican ethnicity. We particularly bear in mind the number of members of ethnic minorities who were offered employment during this particular interview process. We also take into account that offers of employment were put to members of the Afro-Caribbean community .We do not accept there is any basis to support the claim of Miss Douglas to have experienced direct discrimination. 
(b)	We do not accept that the members of the panel or the City Council have applied indirect discrimination. The criteria in the person specification was perfectly reasonable having regard to the duties and increasing workload of the post. We cannot accept the material produced by Miss Douglas as being helpful. Most of it does not relate to Manchester City Council. It includes out of date information relating to persons employed as trainees within the solicitors' profession. It does not support her contention that the criteria for this particular post in Manchester City Council was less likely to be met by members of the Afro-Caribbean community. The fact that a number of members of ethnic minority communities met the standards of the criteria, including members of the Afro-Caribbean Community, shows to us that the criteria does not place members of the Afro-Caribbean community at any disadvantage.
(c)	We do not accept that Miss Douglas has experienced victimisation. This would occur if she had been treated less favourably than the other persons who had applied for appointment and if that less favourable treatment was by reason of her taking previous proceedings against the City Council under the RRA. The City Council, through the panel members, tried as genuinely as possible to put to one side the fact of those earlier proceedings when considering the application from Miss Douglas. The reason she was not invited for interview was not the fact that she had taken earlier proceedings. It was because her application did not demonstrate she had met the necessary criteria. We have considered the argument from Miss Douglas that the fact her application was treated differently meant she was treated less favourably. We do not accept that to be the case. Her application was treated differently in that it was shown to Mr Lund. But his response was that the application should be treated no differently to any other. On the basis of our findings of fact we accept that the application was, in effect, treated no differently to any other. It was treated strictly on its merits. Miss Douglas did not experience any less favourable treatment.”

7.	The amended grounds of appeal raise in essence three categories of alleged errors of law.  Firstly, as to victimisation it is said that the Employment Tribunal should have held that by the very act of referring the Appellant’s application to the Assistant City Solicitor, the Respondent afforded her less favourable treatment.  Secondly, it is said that the Tribunal failed to consider unconscious victimisation, that is that despite the advice to treat the Appellant’s application in the same way as that of all candidates for the post, the panel may have been affected by their knowledge of her previous litigious history.  Thirdly as to victimisation (and I quote from the amended Notice of Appeal) it is said that the Tribunal:

“d.	… failed to consider properly or at all that the IT3 and Questionnaire both admitted that the Applicant was not considered to be a team player by reason of the fact that she had referred to her previous litigation experiences and whether this was not evidence of victimisation.”

Next it is said that the Tribunal:

“e.	…failed to consider properly or at all that the panel took into account the fact that the Appellant’s previous legal claims had failed when assessing whether she could manage a substantial caseload, and whether this was not in itself clear evidence of victimisation.”
And finally on victimisation it is said that the Tribunal:

“f.	…failed to consider and/ or to make findings properly or at all whether the successful candidates for short-listing satisfied these criteria, and if so on what basis.”

8.	The next main head of appeal relates to indirect discrimination.  It is said that the Tribunal:

“…confused…, the issue of whether the set criteria could be met by a substantial proportion of Afro-Caribbean people,”

with the fact that some such were in fact in post.  Also it is said that the Tribunal:

“…failed to consider properly or at all the issue of objective justification for the criteria”.

9.	Finally, there is another ground of appeal based on the burden of proof.  It is said that the Tribunal failed properly to apply the section 54A Race Relations Act 1976 test on the burden of proof.

10.	Dealing first with the approach of the Employment Tribunal to the issue of alleged victimisation, we have not been persuaded that it fell into error.  As to the reference of the Appellant’s application to the Assistant City Solicitor, the finding was clear and in our view quite legitimate on the evidence that although the Appellant was thereby treated differently, the application itself was thereafter treated on the same basis as any other and she did not suffer any less favourable treatment.

11.	As regards the alleged failure of the Employment Tribunal to consider the issue of unconscious victimisation, whilst this is of course part of the necessary process for that issue to be addressed by an Employment Tribunal, and it is always most helpful to an appeal panel if the Tribunal has done so expressly, we are satisfied from the Employment Tribunal’s findings, especially in the Extended Reasons paragraph 9 (c) (the final three sentences) and in paragraph 8 (t), that the Tribunal did in fact consider this issue and were satisfied that no such unconscious victimisation took place.  At paragraph 8 (t) they said:

“We have considered whether any members of the panel should have withdrawn on the basis that their knowledge of Miss Douglas “Would seriously compromise their objectivity”. Again, we do not criticise the panel for the actions they took. It is clear from the records kept by the panel members that they adopted a structured and objective approach of testing the content of each application form against the necessary criteria.”

12.	The same applies to the allegation that the Employment Tribunal failed to consider whether the panel’s markings were influenced by knowledge of the Appellant’s protected acts.  We note here that the Employment Tribunal in paragraph 8 (u) of the Extended Reasons, themselves assessed whether the Appellant in her application form demonstrated that she had met the three required criteria.  They need not have done so but the outcome could only have disadvantaged the Respondent rather than the Appellant, so it does not feature as a ground of appeal.

13.	It is then said that the Employment Tribunal did not properly address the potential discrimination arising from the Respondent’s assessment that the Appellant would not be a good team member.  It is suggested that it is analogous to saying that she “would not fit in”.  In the present case however, it is clear that the question whether a candidate would be a good team member related to skills and past experience.  For example, the Tribunal says in the Extended Reasons at paragraph 8 (u):

“We would also comment that Miss Douglas gives no evidence in her application form of being a successful team player. She alludes to an aspiration to be a team player but there is nothing in the nature of evidence of past performance to that effect.”

14.	We are satisfied that the Employment Tribunal was right not to regard this as being potentially or actually unconscious victimisation and the same applies to the proven ability and skill to manage a substantial caseload.

15.	As to indirect discrimination, we are likewise unpersuaded that despite what the Respondent acknowledges were wrong considerations referred to in the final sentence in paragraph 9 (b) of the Extended Reasons already recited, this Employment Tribunal overall applied the wrong approach to this issue.  In paragraph 8 (q) of the Extended Reasons the Employment Tribunal dealt in detail with the material presented to them by the Appellant on the issue of discriminatory requirements or conditions and stated their view that it was difficult to draw conclusions from that material for reasons there set out.  Then at paragraph 9 (b), already recited, they say that the criteria for the post were perfectly reasonable having regard to the duties and increasing workload of the post.  They concluded that the material presented by the Appellant did not support her contention that the criteria were less likely to met by members of the Afro-Caribbean community.  This is a clear finding of no indirect discrimination, wholly justified in our view by the evidence.  The subsequent sentence does not fatally detract from that finding.

16.	Lastly, as for the application of the burden of proof, it is clear from paragraphs 5 and 7 of the Extended Reasons that this Tribunal was well aware of the changes introduced by the new paragraph 54A inserted into the Race Relations Act 1976 and in force at the time of this decision, even though the Tribunal did not expressly refer to that section by section number.  They clearly found, particularly in paragraph 9, that the Appellant had not discharged the initial evidential burden of showing, on the balance of probabilities, facts from which they could conclude in the absence of an adequate explanation that the Respondent had committed an act of discrimination.

17.	This appeal is dismissed.

[Discussion]

18.	We refuse you permission to appeal Mr Palmer as we do not consider there is any reasonable prospect of success.