Appeal No. EAT/713/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10 October 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR K M HACK JP

	MRS T MARSLAND

MR A BENSON	APPELLANT

MERSEYSIDE IMMIGRATION ADVICE UNIT	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R LAMB
TRADE UNION FULL TIME OFFICER

	JUDGE HULL QC:    Mr Benson is a Nigerian citizen.  He is now aged 36 and he was employed by the Merseyside Immigration Advice Unit as a unit administrator.  He, apparently, in many ways is excellently qualified for that task.  The unit opened in October 1989 and he applied, with others in 1992, for the post of head of unit.  There was a good deal of coming and going over that.  

	The first interviews were not successful because it was felt that the matter had not been sufficiently advertised and so it was advertised again.  I do not need to go into all the details, but it is interesting to note some of the things that occurred.  I am quoting of course from the Industrial Tribunal's decision.  

	The Industrial Tribunal sat to hear Mr Benson's complaint of racial discrimination on 28, 29 and 30 April 1993, and it is perfectly obvious reading their decision that they took their task very seriously and were particularly concerned about certain aspects of what had happened and very critical of much that had happened.  They said that Mr Benson is a citizen of Nigeria, and not apparently a British citizen.  He did not live in Liverpool.  Those are matters which he thought might have told against him, not entirely without reason.  They record the way in which the committee which was to decide the question of the appointment did its duty.  They refer to a Mr Patrick Graham who did get the job.  He too, apparently, is a black man, but he comes from the Caribbean region and is properly described as Afro-Caribbean.  They say how the applications were scrutinised and how the first attempt at the appointment was a failure because the chairman was of the opinion that none of the candidates were strong enough to justify the immediate preparation of a short list and the committee was persuaded to readvertise the appointment.  

	Mr Graham's name was on the short list and so was the Applicant's.  There was an interview with the Applicant and they say that:

		3(j)  ".... the selection ultimately lay between the applicant and Mr Graham.  Mr Simm and Ms O'Reilly persuaded the others round to their view that the choice should fall on Mr Graham.  The decisive qualities that he was found to possess were experience of case-work, knowledge of immigration law and experience of presenting cases at Tribunals.  He had once, Mr Simm urged, made a very good impression when presenting issues at a meeting with a Government Minister.  Thus he was chosen not only over the applicant but also over other apparently well-qualified applicants, including, for instance, an honours graduate and a barrister". 

	They record that the Applicant, Mr Benson, was taken aback.  He was convinced that he was a stronger candidate than Mr Graham who was appointed.  He was convinced there had been favouritism.  He could not think of any other reason and thinking about it, he had been advised that it might be better if he lived in the immediate area, Liverpool 8, but although that advice had been given to him informally, the Tribunal found that in fact that had nothing to do with the decision and indeed, the advice should not have been given.

	They make this very important finding.  The Applicant, Mr Benson, was less favourably treated than Mr Graham.  His many relevant qualifications were not accorded the weight that any reasonable interviewing panel would have given them in comparison with Mr Graham, whose advantages were given an importance not suggested by the advertisement or the job description.  He was further not given the help with his application that was given to Mr Graham.

	That is a very important set of findings which show the depth to which the Tribunal were disturbed by what had passed.  Not merely do they think that they would have reached different decisions but they go so far as to say, and it is a very strong thing to say, that the committee gave a preference which no reasonable committee would have given, to Mr Graham.  So they of course had in those circumstances to go on to consider whether they thought that this was caused by racial discrimination.  This was a serious charge and a matter to be looked at very seriously by the Tribunal, having found that there was indeed unjustified behaviour by the committee.  They refer to the ethnic origin of each gentleman, as I say, and they say moreover, that if there had been a preference for one ethnic group rather than the other and that was the reason for appointment, that would be racial discrimination.  If the choice depended on residence in Liverpool 8 it might be indirect discrimination, if the proportion of Nigerians in the country who might comply were less than that of British Caribbeans.  They heard almost no evidence on that, but they say they did not find it necessary to adjudicate on it because it was not on that ground.  And they conclude as follows:

		"6.  Although the applicant has a reasonable grievance against the respondents and in spite of all that was wrong with the selection process, we did not think that the less favourable treatment was on the ground of his ethnic origin.  This was a case where there was a favourite candidate for the job, Mr Graham, and he was the favourite of Mr Simm and Ms O'Reilly because he had worked with them previously at the Liverpool Law Centre.  No doubt they had reason to like him and to value him:  they just did not find or look for the candidate who best met their published requirements.  But we did not think that there was any racial content to their decision.  We were on the lookout for evidence of unconscious discrimination, but there was none.  We accepted what they said about that".

And then they refer again to the matter of residence in Liverpool 8:

		"There was ..... no sufficient evidence to attribute to them a suppressed wish that the successful applicant should be someone who lived in Liverpool 8.  Thus we found, with some sympathy for the applicant's grievance, that this was not a case of racial discrimination".   

	Anybody reading that decision would undoubtedly share the sympathy for Mr Benson because the Tribunal found not merely that they would have reached a different decision from the committee, but that in some ways they found the committee's decision discriminatory and not one which the committee should have reached.  Having said all that, clearly nobody could accuse them of being favourably disposed towards this committee.  But having considered it as carefully as they could, they concluded there was no racial discrimination.

	It appears to us there is no flaw in the way in which they approached their task; that having found a state of affairs which caused them great anxiety, they gave expression to that anxiety by a very long and patient enquiry, not in any way diminished by the fact that they were able to give their decision fairly shortly.  We cannot find here any error of law, even with Mr Lamb's assistance.  Mr Lamb found it possible to be very short and very much to the point.  And anxious as we are, anxious as the Tribunal was, we cannot, we think, in any way say that this is an appeal which should go further.  Parliament has said that the Industrial Tribunal is to be the sole judge of the facts.  We cannot embark on that.  

	We find absolutely no indication that their finding of fact was in any way perverse or erroneous in law and therefore we have to say that the appeal must be dismissed at this stage and we so order.