Appeal No. EAT/404/93
	I N T E R N A L 

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 February 1994

	Before

	THE HONOURABLE MR JUSTICE WATERHOUSE

	MRS R CHAPMAN

	MRS P TURNER OBE

MRS S P MCMAHON	APPELLANT

THAMESDOWN BOROUGH COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MR S MUNASINGHE
(OF COUNSEL)
Thamesdown Racial Equality
Council
Faringdon House
Faringdon Road
Swindon
Wiltshire  SN1 5AR

	

	MR JUSTICE WATERHOUSE:  This is the preliminary hearing of an appeal against the finding of an Industrial Tribunal, which sat at Bristol in March 1993 to here the Appellant's Originating Application, in which she complained of racial discrimination, that is, direct discrimination against her.  The unanimous decision of the Tribunal was that her application should be dismissed and the Appellant now seeks to appeal against that decision on the basis of grounds of appeal that are set out in ten paragraphs.

	The short background facts are that the Appellant was employed from May 1977 by the Respondents as a deputy warden of the Respondents' sheltered housing.  She worked at first, until April 1989, at premises called "Mountbatten House".  In the latter month she was transferred to other premises known as "Harold Thorpe Gardens" at her own request because she had fallen out with the warden of Mountbatten House.  That warden had made various complaints about the Appellant but they had been considered by an area housing officer in January 1989 and he had rejected the complaints saying that he was completely satisfied with the Appellant.

	Thereafter from 1989 the Appellant, who is of Afro-Caribbean origin, made a number of applications for the post of resident warden at various sheltered housing complexes in the Bristol area.  She was rejected for each of them.  On 12 June 1992 she attended for interview for the post of resident warden at premises known as "George Gay Gardens".  There were only two candidates but she was not selected; another deputy warden of white European origin was appointed.  The successful applicant had considerably shorter service and less experience of dealing with old people, according to the findings of the Industrial Tribunal.  It was on that footing that, on 7 September 1992, the Appellant launched her Originating Application alleging that she had been subjected to racial discrimination in breach of Section 1(1)(a) of the Race Relations Act 1976.

	The hearing of the application occupied some three days and the Appellant had the advantage of representation by Counsel throughout.  The Respondents, Thamesdown Borough Council, were represented by a solicitor.  In preparation for the hearing there had been various exchanges between the parties.  Shortly before the hearing the Respondents sent a letter dated 4 March 1993 giving as a reason for the Respondents' decision in respect of the post of warden, the following:

		"Mrs McMahon's performance of her duties as a deputy warden both at Mountbatten House and currently at Harold Thorpe Gardens has been so poor that it has been clear to all concerned that Mrs McMahon could never have been an adequate warden... All interview panel members have stated that they would not have appointed Mrs McMahon if she had been the only candidate, in essence because she was not "up to it"... her strengths and weaknesses were already well known and those on the panel in each case knew that she was not suitable for any of the posts."

	It appears that those acting for the Appellant had also extracted before the hearing what have been called Further and Better Particulars of the Respondents' case.  There is no copy before this Appeal Tribunal but we have been permitted to see Counsel for the Appellant's copy and it is fair to say that the particulars contained a long and detailed history of matters alleged to have arisen between the Appellant and the Respondents in the course of her employment from May 1987 onwards.  Some of the matters referred to had occurred prior to January 1989, when the area housing official made his investigations, but there were other matters of substance referable to the later period from January 1989 up to the date of the interview of the Appellant in June 1992.

	A point made before this Appeal Tribunal on behalf of the Appellant has been that the details of the case presented by the Respondents against the Appellant represented a considerable shift on the part of the Respondents and that the Appellant was in some difficulty in dealing with the many matters referred to, bearing in mind the lateness of the service of the particulars.  We must stress, however, that no adjournment appears to have been applied for.  As we understand the position, it was a deliberate decision on the part of the Appellant to go ahead with the matter, bearing in mind the delay that might have occurred if the date fixed for the hearing had been vacated, and in our judgment there is no point that can be validly made before this Tribunal in relation to late service of the details of the Respondents' case.  Indeed, that would appear to have been recognised at the time when the grounds of appeal were drafted because there is no reference to the question of adjournment in the them.  What is important also, is that the Appellant did know, when she gave her own evidence, what was being suggested against her so that she did have an opportunity to traverse the allegations set out on paper about her.  The fact that there was a change of position so to speak on the part of the Respondents was obviously a matter of comment open to Counsel for the Appellant and we have no doubt at all that he made the point forcefully and repetitively.

	One of the points that could be made, and was made, was that before the proceedings commenced the Appellant had sent a questionnaire to the Respondents under the Race Relations Act 1976.  In reply to questions as to why the Appellant had not been selected for the relevant post the Respondents had stated:

		"another candidate met the candidate specification more fully than she did".

That was said to be a judgment particularly in regard to organisation skills, being self motivated and being able to work without close supervision, all of which were matters on the candidate specification.

	The Industrial Tribunal in its statement of reasons shows that it was fully aware of this history of interlocutory events and expressly described the statement in the letter of 4 March 1993 as an entirely new line.  Moreover, in dealing with that aspect of the case the Chairman recorded, as the view of the Tribunal:

		"In other words her interviews were really shams because the panel had no intention of appointing her whatever she said at interview."

	It seems to us therefore that there is no indication of possible misdirection on the part of the Tribunal in its approach to this matter.  On the contrary, they gave full weight in their statement of reasons to the points that the Appellant had sought to make about that aspect of the history.

	In the event the Tribunal heard evidence from the Appellant herself and two members of the interview panel (comprising three) that had interviewed the Appellant in June 1992.  The witnesses from the panel who gave evidence were Mrs Astley, who was the manager in charge of the Appellant, in the sense that she was a supervisor in the housing department.  Another witness was a Mr Wakefield, who was the shelter housing manager.  The other potential witness was Mrs Gould, the senior administrator attached to the sheltered housing department.  Mr Munasinghe has sought to persuade us that there was some special defect about the proceedings because Mrs Gould was not called to give evidence.  It is asserted that she was the person in the personnel department responsible for interviews and no doubt, in a sense, for appointments, but it is not a point that we can regard as having any real substance because the Tribunal did hear evidence from Mrs Astley, who was the person having direct responsibility, above the relevant warden, for the Appellant's activities as deputy warden.

	Having heard all the evidence, the conclusion of the Tribunal was that, although the interviews had been shams because the panel had had no intention of appointing the Appellant whatever she said at the interview, nevertheless there has been no discrimination in relation to the Appellant because of either her race or her colour.  In reaching that conclusion the Tribunal considered in detail both the reasoning of the interviewing panel as it was explained to them by the two witnesses but also the history of the Appellant as it jad been known to the panel at the time when the decision was made.  It is clear that they found Mrs Astley to be an essentially honest witness and they found also that there was nothing inherently wrong in taking into account the panel members' previous knowledge of the individual concerned.  They commented that the object had been to appoint the best candidate for the post.  In their view Mrs Astley had not shut her mind totally to the Appellant's performance at interview, and they commented that she had expressed the view that the Appellant's performance in the summer of 1991 had been encouraging.  Their view therefore was that Mrs Astley would have been open to persuasion if the Appellant's performance at the interview or subsequent to the summer of 1991 had justified it.

	Nevertheless, the Tribunal made a series of findings in paragraph 11 of the statement of reasons about the performance of the Appellant in her role of deputy warden and about Mrs Astley's knowledge of that record which were very adverse to the Appellant.  They found, for example, that she had refused to co-operate over a change of hours; that she had been found on duty without the manual handset which tenants used to call help if they were in difficulty; that she had failed to keep the guest flat clean; and that she did not appreciate the importance of being at the premises at the right time or of giving proper notice if she was sick or delayed on holiday.  Those are but some of the findings made in paragraph 11 in relation to matters which both the Tribunal and the panel were entitled to regard as important aspects of the duties of a resident warden.

	That led to the conclusion by the Tribunal that neither on the basis of her performance at the interview nor on the basis of her performance in her existing post did the Appellant have the qualities required for the post of resident warden.  We should add that the reference to her performance in the interview is understood to refer, amongst other things, to the fact that the Appellant had given unsatisfactory answers at the June interview.  She had made a sarcastic remark about "selling herself" and, when asked about a problem in relation to cleaners, she had said that she would leave the arrangements for the cleaners to Mrs Astley and not deal with the problem herself.  It is clear therefore from the statement of reasons that the conclusion of the Tribunal was that the decision of the interviewing panel was justified on merit, whether looked at in terms of performance at the interview or on the basis of the performance of the Appellant in her existing post.
	
	In the course of the hearing there were understandable criticisms by Counsel for the Appellant in relation to aspects of the procedure followed and the evidence, in particular, of Mr Wakefield about his own attitude to the matter.  There is no doubt that those criticisms were fully understood by the Tribunal and taken into account.  In the course of the reasons they referred to the practice adopted by the Respondents, which was to have a detailed equal opportunities policy and a code of practice for the conduct of interviews.  Having considered the evidence of Mr Wakefield, they said that it was totally unsatisfactory and that he had been telling them what he thought the Tribunal wanted to hear rather than the accurate facts.  They rejected his evidence, therefore, as unreliable.  Nevertheless, having looked at all these different aspects of the evidence before them, they reached the conclusion that the shortcomings in the procedure at the interview were minor and that the erratic marking had been due to the interviewing panel's failure to appreciate that it was important to take into account such matters as experience and qualifications regardless of what was said at the interview.  Their view was that the panel would have treated a white person the same.

	At the end of all this the Tribunal had to consider what was the proper overall inference in relation to the complaint made by the Appellant, in respect of which the burden of proof lay upon her.  They were rightly directed to the helpful recent decisions of the Court of Appeal in North West Thames Regional Health Authority v Noone [1988] ICR 813 and in King v Great Britain China Centre [1992] ICR 516.  There is no doubt therefore that they had in mind the correct approach to a case of this kind in which a decision may appear on the face of it to be prima facie discriminatory.  Having considered all the relevant matters, they reached the conclusion that there had not been any discrimination.  They took into account the previous applications and interviews.  In their view, in each of the cases there had been strong reasons for the Appellant's non-selection either because of the strength of the other candidates or because of the Appellant's failure to prepare properly for the interview and they made a specific finding that Mrs Astley had conducted herself in the same way as she would have conducted herself to a person of different race or colour.

	It is obvious from what we have said that the Appellant is therefore faced with a formidable series of adverse finding of facts in seeking now to pursue an appeal against the decision of the Industrial Tribunal.  We have examined with Mr Munasinghe each of the ten paragraphs of the proposed grounds of appeal but, despite a quite lengthy hearing, we have been unable to identify any point of law upon which the Appellant could properly rely at a full hearing or indeed any arguable point of law in support of the appeal.

	There is no doubt at all that the Tribunal was correctly referred to the relevant leading cases governing a case of this kind and we have no reason to doubt they attempted faithfully to apply the principles and guidance given by the Court of Appeal in the Noone and King cases.  When one looks at each specific paragraph of the proposed grounds of appeal it is manifest that an attempt is being made to re-open questions of evidence and fact which the Industrial Tribunal below had to decide.  It is unnecessary to reproduce here the actual wording of each of the separate grounds of appeal.  The essence of what is intended to be argued is set out in paragraphs 2 - 9 inclusive and there follows a general allegation of perverseness in the decision of the Industrial Tribunal in paragraph 10.

	One of the innumerable difficulties about the grounds of appeal is that, although it is asserted that the Industrial Tribunal failed to take into account matters such as the answers to the questionnaire, the CRE Code of Practice for selection and their finding that the interviews were sham, the reality of the matter is that the Tribunal did deal with each of these points.  They cited, for example, the answers to the questionnaire; they dealt with the question of sham; and they reached an overall conclusion having given the weight that they thought appropriate to these factors.  What Counsel for the Appellant really wants to argue is that their assessment of the weight of the relevant matters was wrong and that they should have reached a different conclusion.  We have no doubt that the Appellant does feel that and that Counsel on her behalf shares that view, but this Appeal Tribunal is not permitted to substitute its own findings of fact or to order a re-hearing simply because it would not necessarily have reached the same conclusion as the Industrial Tribunal below.  We would have to identify an arguable point of law or a case of substance based on alleged perverseness before we could allow the appeal to go forward.  In our judgment neither pre-condition has been established and the appeal must therefore be dismissed.