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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Edozie v Group 4 Securicor Plc & Anor [2009] UKEAT 0124_09_0306 (3 June 2009) URL: http://www.bailii.org/uk/cases/UKEAT/2009/0124_09_0306.html Cite as: [2009] UKEAT 0124_09_0306, [2009] UKEAT 124_9_306 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MR B BEYNON
MISS S M WILSON CBE
APPELLANT | |
(2) G4S SECURITY SERVICES (UK) LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR U EDOZIE (The Appellant in Person) |
For the Respondents | MR J KENDALL (of Counsel) Instructed by: G4S Security Services (UK) Limited Sutton Park House 15 Carshalton Road Sutton SM1 4LD |
SUMMARY
RACE DISCRIMINATION
Inferring Discrimination
Tribunal wrong to apply test in King v Great Britain-China Centre [1992] ICR 516 instead of applying s.54A of Race Relations Act 1976 on the basis that the Claimant was claiming "colour discrimination" – Chagger v Abbey National plc [2009] ICR 624 followed – but held that there was on the facts no substantive difference between the two approaches and that the Tribunal had been entitled on the evidence not to find race discrimination.
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
"in the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities, or services or by refusing or deliberating omitting to afford him access to them."
Section 4 falls with Part II of the Act, which covers discrimination in the employment field.
This section applies where a complaint is presented under section 54 and the complaint is that the Respondent
(a) has committed an act of discrimination on grounds of race or ethnic or national origins which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f) or Part IV in its application to those provisions
…"
"The burden of proof of discrimination is on the Claimant but the Tribunal may properly draw inferences of unlawful discrimination from the primary facts where appropriate. A difference in colour and a difference in treatment is not by itself sufficient for an inference of discrimination to be drawn. Further, if the Tribunal should find that the actual reason for the act of the employer is one which is not discriminatory on unlawful grounds then of course the employee cannot succeed."
It also noted, at paragraph 54, that:
"Apart from the final application to which the Claimant referred, he is relying upon a hypothetical comparator. The Claimant is simply saying that the reason why he was not appointed to the posts, or the reason why his applications were rejected, is because of his colour."
"20. On the basis of the very limited evidence available to us we are not able to come to any conclusion as to the precise post for which the Claimant made any application, nor as to whether Mr Vye was appointed to the same post. Further, apart from the Claimant's wholly unsubstantiated allegation that he was more qualified than Mr Vye, there is no evidence before us from which we could possibly conclude that the failure of the Claimant to be appointed to any such post was by reason of his colour. We have further noted that although the Claimant referred to himself as being more qualified than Mr Vye, he did not seek at that juncture to define what he meant. The issue of qualifications is one to which we return below."
"22. The Claimant made a further application for the post of a Contract Manager. This was referred to at the hearing for the purposes of identification as the 'M25/M4' post. The intranet advertisement was dated 18 May 2007. The advertisement stated that the post would suit an existing manager. The Claimant was not a manager. The advertisement invited candidates to send a CV together with a covering letter. Mention of the Claimant's CV has already been made. We are not shown any covering letter that went with it. It is not in dispute, however, that the Claimant did apply.
23. The Claimant passed any initial sift which may have been carried out and attended at an Assessment Centre on 29 June 2007. A letter sent to the Claimant dated 5 July 2007 by Mr Renwick stated that after careful consideration it had been decided not to take the Claimant's application further on that occasion. The Claimant had previously spoken to Mr Renwick on the telephone, and had been informed that he had not been successful. We did not hear any evidence from Mr Renwick. He had left the Respondent in late 2007.
24. Three other existing employees of the Respondent went through the assessment process at the same time as the Claimant. They were all white. None of them was appointed. It is the finding of the majority of us that someone was appointed after the Respondent had carried out a further three sets of assessments elsewhere in the country. We were not told anything about the colour of the candidates at the other three assessments, nor of the colour of the successful candidate."
Those findings, which appear to have been unanimous, were based on correspondence with the Appellant and also on a letter from a Mr Jones, the Respondent's regional manager for facilities management, who had written to the Appellant declining an invitation to give evidence. In that letter he stated that his role had been to assess the presentations delivered by candidates during the assessment process but that he could not now remember the details. However, he did state that none of the internal candidates met the requirement for the role. We should also mention – though, inconveniently, the Tribunal does not mention it at this stage of the Reasons, but rather in relation to one of the later job applications - that in the course of Mr Dezeure's investigations he obtained a letter or memorandum from a Ms McGurk who had been involved in the
assessment in June 2007. As recorded at paragraph 48 of the Reasons:
"She stated that the Claimant's test results were below average and he scored poorly across all the exercises. She also referred to his later application for the LS Trillium post stating that he was notified that his application was not successful because it was only a month or so previously that he had been through the assessment process. She added that the Claimant's career aspirations were high, but that he was unable to provide any evidence of the basic level of competency required in the interview and presentation exercises, or the critical thinking skills which were required to meet the benchmark in verbal and numerical evaluation."
However, there was a complete dearth of contemporary internal evidence before the Tribunal of the kind which certainly must have been generated by the assessment process. The Tribunal heard evidence that when Mr Dezeure sought to investigate the position it was discovered that the papers, including the results of psychometric testing, had been destroyed "as part of the Respondent's data protection policy". One member of the Tribunal, Mrs Foster-Norman, rejected that evidence and concluded that the relevant papers were being deliberately withheld. The majority however did not accept that there was any deliberate withholding. Mr Vincent believed that although the documents had not been destroyed the Respondent's witnesses genuinely believed that they had been, in other words therefore presumably that they had been lost or gone astray. The other member, that is to say the Employment Judge, accepted the evidence that the documents had indeed been destroyed. Against that background the Tribunal recorded its decision as follows:
"56. We have been unable to agree concerning the Contract Manager (M24/M4) post. It has already been recorded that Mrs Foster-Norman has found that the relevant assessment documents had not been destroyed. Her views and judgment are now set out. It is the duty of the Respondent to provide the Tribunal with all relevant evidence so that a properly informed judgment can be made. The Respondent has not done so. Papers had been withheld. No evidence was supplied about the other assessments or interviews which we were told had taken place. There must have been a reason for this. Further, the Respondent had not called any witnesses who had been involved in the selection process. The investigation by Mr Dezeure was superficial, and somebody more senior should have been appointed with the necessary status and authority to delve further. The Respondent was not really interested in having the Claimant's complaint investigated thoroughly. Mrs Foster-Norman concludes that the Respondent was not prepared to put all relevant evidence before the Tribunal and therefore draws the inference that there has been unlawful discrimination against the Claimant in not having been appointed to the post in question.
57. While critical of the extent of evidence provided by the Respondent, the majority of us is unable to draw the inference of unlawful discrimination. We have accepted the evidence of Mr Woolf that none of the three white candidates who were assessed at the same time as the Claimant were appointed, and further that there were three other sets of assessments. The Claimant was not less favourably treated by comparison with those white individuals with whom he was assessed. Nobody was appointed. The Claimant was less favourably treated by comparison with whoever was appointed because the Claimant was not appointed to the post. We do not know the colour of the successful candidate. Even if that person were white, we would need more to be able to make a finding of unlawful discrimination. We are unable to find any unlawful discrimination by comparison with a hypothetical comparator."
"The successful candidate would be an accomplished senior general manager with a demonstrated capability to manage and grow a standalone business with a large nationwide service organisation."
Turnover for the business was budgeted at £14 million in the current year, rising to £20 million. The salary offered was between £85,000 and £120,000. In response to Mr Dezeure's inquiry on the grievance, a Ms Ogden of the Respondents, who was involved in the recruitment, replied that "it was apparent from the Claimant's CV that he did not have the relevant experience": the key facts were the Claimant had no experience in that particular business and that the business had a turnover of some £14 million which was increasing. The Tribunal found unanimously, at paragraph 33, as follows:
"It is without any difficulty that we find as a fact that the reason that the Claimant was not appointed to the post is simply that it was apparent from looking at his CV that he did not have the experience required to be responsible for such a business with such a substantial budget."
"58. We are left with the posts of Business Manager and the LS Trillium post. We are also unfortunately unable to agree on the outcome in respect of these two posts. The Respondent states that the Claimant was rejected for each of those posts by reason of having performed badly in the first assessment which had been carried out in the preceding three months. We were not supplied with any details of the other candidates, nor of who was appointed. During his investigation Mr Dezeure appears to have accepted at face value the explanations given to him, and should have investigated further. Mrs Foster-Norman therefore again draws the inference that the reason why the Claimant was not appointed to the posts was because of unlawful discrimination.
59. The majority disagree. We find that the Claimant did perform badly during the June assessment process, and that the attitude of the Respondent in respect of the subsequent two posts was perfectly justifiable, and had nothing to do with the Claimant's colour. The psychometric testing policy refers to results over twelve months old being invalid for selection. The corollary of that is that 'younger' results are potentially valid."
"We find as a fact that the reason that the Claimant was not appointed was that Mr Tudjaroglu performed better during the assessment process and also that he was already employed at management level, whereas the Claimant was not."
In relation to this particular appointment, the Tribunal did have some of the relevant contemporary material, albeit supplied only during the course of the hearing.
(1) Area Operations Controller: There is at paragraph 20 a finding that:
"there is no evidence before us from which we could possibly conclude that the failure of the Claimant to be appointed to any such post was by reason of his colour."
That is, in substance, the very question which arises at Igen stage one.
(2) Contract Manager: This aspect of the claim has been abandoned.
(3) Contract Manager (M25/M4): Although the language of the reasoning of the majority in paragraph 57 does not so clearly track the language of Igen as in relation to the first job, it seems to us that in substance the last two sentences nevertheless apply the same test.
(4) Managing Director: There is a clear finding at paragraph 33 that the Appellant was not appointed because he did not have the necessary experience. That therefore would, if valid, be a finding that the Respondent had proved a reasonable explanation at stage two.
(5) and (6) Business Manager and LS Trillium: The finding of the majority here is again a positive finding that the decision in both cases was reached on the basis of the Assessment Centre tests and was not on the grounds of the Appellant's colour. It would therefore satisfy the test at Igen stage two.
(7) Aviation Operations Manager: Again there is a clear finding - see paragraph 43 - as to a non-discriminatory reason for the Appellant's non appointment.
It is therefore in our view apparent that the Tribunal, despite its formal self-misdirection, asked itself the right questions, and that its answers mean that racial discrimination was not established.
"5. The starting point, it seems to me, is the observation of Mummery LJ in Madarassy v Nomura International Plc [2007] ICR 867, at paragraph 56, when considering a claim of unlawful discrimination to which the reverse burden of proof provisions applied. He there observed that the court in Igen Ltd & Ors v Wong [2005] ICR 931 (CA) rejected the argument that it was sufficient for a Claimant simply to prove facts from which the Tribunal could conclude that the Respondent could have committed an unlawful act of discrimination. The bar facts of the difference in status and the difference in treatment only indicate a possibility of discrimination; they are not, without more, sufficient material from which a Tribunal could conclude that on the balance of probabilities the Respondent had committed an unlawful act of discrimination.
6. The question here is whether there was something more than a difference in colour and a difference in treatment. The present case is concerned with unsuccessful applications by Mr Edozie for promotion within the Second Respondent's business. Throughout their reasons the Tribunal are unanimously critical of the absence of documentation relating to the promotion applications and process for promotion. The question, it seems to me on appeal, is whether that lack of documentation may have amounted to 'something more' for the purpose of the exercise to be carried out by the Tribunal at stage 1 of the Igen v Wong test.
7. Looking at the critical findings by the Tribunal at paragraphs 57-59, apart from a potential misdirection in relation to King v Great Britain-China Centre, I am of the opinion that this appeal ought to proceed to a full hearing to determine whether or not the majority of the Tribunal failed to properly apply the stage 1 approach under Igen, and if so, whether the Chagger approach or that in Okonu should be followed and, if the former, whether the Respondent has provided an explanation which has nothing to do with the Claimant's colour."