Appeal No.	 EAT/820/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 March 1999
								Judgment delivered on 5 July 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS M E SUNDERLAND JP
MR N D WILLIS

LEICESTER CITY COUNCIL	APPELLANTS

MRS P McCONNELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR A HILLIER
(of Counsel)
Harvey Ingram Owston
20 New Walk
Leicester
LE1 6TX	
For the Respondent	MR O SEGAL
(of Counsel)
Thompsons
Price House
37 Stoney Street
The Lace Market
Nottingham
NG1 1NF	

MR JUSTICE HOLLAND:

Introduction
	We are concerned with an appeal by Leicester City Council and its Director of Education, Mr Tom Warren, against an Industrial Tribunal finding that they had both discriminated against Mrs Penny McConnell by reason of her race.  That Industrial Tribunal sat at Leicester on and between the 11th and 13th March 1998 and sent Extended Reasons to the parties on the 24th April 1998.  At the outset we would wish to pay tribute to their conscientious approach to those Extended Reasons and to the care that plainly went into the underlying deliberations.  From such, the facts appear as follows.  We interpose:  for pragmatic reasons we shall refer to Mrs McConnell as ‘the Applicant’ and the Council and Mr Warren as respectively, ‘the First Respondent’ and ‘the Second Respondent’.

The Facts
	The Applicant is black.  She originally qualified as a teacher and worked as such for a number of years.  She then sought a career change and having joined the First Respondent in 1990, she qualified as a solicitor in 1992.  As from at least 1995 her employers contemplated a change in 1997 to the status of a unitary authority, thereby taking in fresh responsibilities, such including Education.  With that change in contemplation, a unity status team was set up and from February 1995 she was seconded to such.  From September 1995 her particular task was to deal with special education needs.  From October 1995 a white person, Miss Mary Hufford, joined the same team as a temporary employee with the particular task of dealing with issues of education policy.

	In September 1996 the Second Respondent, was appointed Director Education.  By way of Paragraph 7 of their Extended Reasons the Industrial Tribunal recorded an apparent lack of personal rapport between the Second Respondent and the Applicant which compared with an obvious rapport between him and Miss Hufford.  Noteworthy is his contemporaneous confirmation in writing that he did not want to be assisted by the Applicant  The Industrial Tribunal comments:  “ ..... all against a background of too much hard work and too little time for the limited staff available”.

	Turning to the chronology, the task of making further appointments for the embryo Education Department was taken in early 1997.  A Prior Consideration Procedure was agreed with the relevant unions to cover applications from present employees.  The Applicant was interested in the post, Education Officer (Development).  Since this had a grading higher than that of her present position, Stage 2 of  the Procedure applied, allowing her and like internal applicants to be considered in advance of external applicants.  In the event, the Procedure gave rise to the following:

December 1996 - A specification for the post was drawn up.  At about this time the Applicant spoke to the Assistant Director of Education, Mr John Crookes about the contemplated application, raising concern that she had no experience as a local education authority officer.  He assured her that experience was not necessary and that “they were looking for somebody with fresh ideas and with an eye for detail”.

15th January 1997 - She and a black fellow employee (male) were constituted as the short list , respectively to be interviewed on the 20th January.

17th January 1997 - The post was advertised externally.

20th January - She and her fellow candidate were interviewed.  By this stage, a fresh second specification had come into existence.  This expressly and for the first time made ‘experience of management in an educational context’ essential.  Although Mr Crookes seems to have believed that this second specification had no bearing upon this Stage 2 Procedure, he compiled an assessment questionnaire for use by the interviewing panel by reference to it, thereby making experience an undoubted factor.  Turning to the panel, it consisted of the Second Respondent and Crookes, together with Miss Daxa Patel, a person of Asian origin and an Equality Officer in the Environment and Development Department, specialising in race equality.  The panel had two advisors in attendance, both Head Teachers.  In the event the panel rejected both the Applicant and the other candidate.  The Industrial Tribunal made a number of findings pertinent to this selection exercise:

“1.	Mrs McConnell had no prior knowledge of the fact and terms of the second specification which underpinned the prepared questionnaire and was thus at a disadvantage.
2.	Messrs Warren and Crookes decided to reject Mrs McConnell essentially because of her lack of relevant experience and so conducted the post interview discussion as to assume that the decision to reject was unanimous.  In fact Miss Patel was for accepting Mrs McConnell’s application, as was one of the Head Teachers.
3.	Miss Patel was concerned that she was there simply to make up the required number and that she was not properly brought into the interviewing process.”

21st January 1997 - The Applicant sat as a member of an interview panel recruited for the purpose of another appointment.  Subsequently she complained that her presence had been token.  The Industrial Tribunal found that other panel members selected as such by reason of a minority ethnic origin similarly complained.

7th February 1997 - External candidates for the post, Education Officer (Development) were interviewed by a panel consisting of the Second Respondent and Mr Crookes and another black female employee who had no connection with the Education Department.  In the event Miss Hufford was selected for the post.

17th April - Having tried unsuccessfully to obtain an explanation for what had happened, the Applicant made her complaint of racial discrimination.

The Industrial Tribunal
	The Industrial Tribunal’s adjudication started by directing itself:  “The first issue we deal with is whether the applicant was treated less favourably”.  Thereafter in paragraphs 24, 25 and 26 the circumstances are fully reviewed so as to identify and evaluate perceived departures from procedures deemed to be appropriate, and the conclusion is “By not following the procedures laid down by City Council and by adopting what was a subjective process to determine whether the applicant should be offered employment as an Education Officer we conclude that the applicant was treated less favourably than she should have been”.

	In paragraph 27 the Industrial Tribunal considered and rejected the Respondents’ explanation for any shortcomings.  Paragraph 28 opens:  “As we do not find the explanations for the less favourable treatment satisfactory, we go on to consider whether an alternative explanation is more likely.  In evidence to us the applicant suggested that she was not appointed because the job had been earmarked for Mary Hufford.”  The balance of the paragraph contains close analysis of the evidence relating to Miss Hufford and her appointment and concludes:  “Despite the strong indications to the contrary which we have outlined, on balance, we have decided that we should accept the evidence of Mr Crookes and Mr Warren that the desire to appoint Mary Hufford was not the reason for the applicant’s rejection.”

	The Industrial Tribunal then continue as follows:

“29.	“We also have considered whether the real reason is that the applicant did not measure up to the requirements of the post that Mr Crookes had in mind, even if these were not specified in the original person specification.  That is again denied by Mr Crookes and Mr Warren.  We also take account of the fact that Mr Crookes specifically said to the applicant that her lack of experience would not bar her from obtaining the post.
30.	We then considered whether this is an appropriate case where we should consider drawing an inference that the true reason of the applicant’s treatment was her race.  Despite the denial by Mr Crookes and Mr Warren, we know that such feelings can be subconscious and ones which a person may not be able accept or recognise.  Here we have taken into account the treatment of the applicant in the Autumn 1996.  Like Ms Tillotson we find that incomprehensible.  Mr Warren had a huge task to perform with limited resources in a limited time.  He was offered the applicant’s assistance and simply ignored it.  With her experience in education and he legal training it is impossible to believe that she could not have been useful to him.  We reject that he only wanted people at a higher level.  We bear in mind the use he made of Mary Hufford and the fact that he wanted Mr  Martin to continue, but did not replace him when he became ill.  Accepting that he was very busy, it is hard to understand why he should cancel meetings with the applicant without any explanation, either to her or her line manager.  When the comment about lack of eye contact made both by the applicant and Ms Patel is added, it seems to us likely that the applicant’s race played a significant part in the way she was treated at that time.
31.	We also take into account that fact that other black employees were concerned about the failure to follow the Council’s procedures and particularly that they were simply token black faces on the relevant panels.  That arose independently of the applicant’s position.
32.	There have also been some points in relation to the questionnaire procedure and the hearing before us which cast doubt in our mind.  There was a failure in the questionnaire procedure to make clear that other people were unhappy about the interview panels.  There is a suggestion from Mr Crookes and Mr Warren that the decision not to appoint the applicant was unanimous whereas it is clear that, whilst ultimately Ms Patel went along with that decision, her view and her written assessment was that the applicant did satisfy all the criteria and should have been appointed.  The interview notes of Mr Warren have gone missing, despite the Council’s procedure which says that they should be kept specifically because they may be needed in Industrial Tribunal proceedings.  We have considered the consistent assertion that it is the applicant’s responsibility that she did not apply at stage 3 when no effort was made to tell her of the change of specification nor to encourage her to make a further application.  Finally, we have considered the failure to identify the criteria by which that she failed to satisfy the person specification and the overwhelming impression that she was not appointed because of the fact that she was seen by Mr Crookes and Mr Warren as not being the best person, regardless of whether or not she met the criteria.
33.	Accepting that the indications are in themselves each relatively small, our decision is that this is a case where it is proper to infer that a significant reason why the applicant was not appointed was because of her race.  Accordingly, as the City Council has not relied on its statutory defence to blame Mr Warren and bearing in mind the involvement both of Mr Warren and Mr Crookes in the failure to appoint the applicant, we conclude that the failure to appoint her to the post of Education Officer (Development) was on the grounds of her race and that she was, therefore, discriminated against by both respondents in that way.”

This Appeal
	On behalf of the Respondents, Mr Hillier drew attention to the relevant term of the Race Relations Act 1976, observing in passing that the Extended Reasons do not refer to such.  Thus:

“Section 1(1)  A person discriminates against another is any circumstances relevant for the purposes of any provision of this Act if -
a.  on racial grounds, he treats that other less favourably than he treats or would treat other person .....”
Section 3(4)  A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
Section 4(1)  It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another - 
a.  in the arrangements he makes for the purpose of determining who should be offered that employment;  or  .....
c.  by refusing or deliberately omitting to offer him that employment.”

	He accepted that Section 4 was apt to cover the Applicant’s complaint;  but he drew strong attention to the notion of comparison embedded in Section 1(1) and Section 3(4).  That led to citation of authority.  In Glasgow City Council v Zafar (1988) 1CR 120, Lord Browne-Wilkinson said at 123:

“As will be apparent from the passage which I have cited from its reasons, the industrial tribunal made the adverse finding of racial discrimination against the local authority wholly on the basis of two inferences:  first, an inference that because the local authority had afforded to the applicant treatment falling far below that of ”a reasonable employer” there was a presumption that they had treated the applicant differently and less favourably than others;  second, that in the absence of a non-racial explanation for such differential conduct the tribunal had no choice in law but to draw the inference that the reason for such less favourable treatment was racial.  The Second Division held the tribunal to have been in error on both these points.  I agree
Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts - (a) less favourable treatment and (b) racial grounds - as did the Second Division.”

	In reliance upon that passage, Mummery L.J. giving the judgment of the Court of Appeal in Marks & Spencer PLC v Martins (1988) 1CR 1005, at 1019 said:

“The first part of the question is:  was the applicant treated by Marks & Spencer Plc. less favourably than they treated or would treat another person of a different racial group in the same relatively similar circumstances?  The answer to this question requires a comparison to be made between the treatment of the applicant and the treatment of a 27-year-old applicant of a different racial group with similar experience and qualifications applying for the same job.  The tribunal did not attempt to make the compulsory comparison.  Instead, it simply asked itself whether there was “bias” on the part of Mrs Cherrie and Mr Walters against the applicant and concluded that there was.  This approach is defective.”

	Submits Mr Hillier, by way of their Extended Reasons (which preceded the latter decision), the Industrial Tribunal failed to make any comparison with the presumed treatment of an internal candidate who possessed all the material attributes of the Applicant and who was white.  He further submitted that there were insufficient findings of fact to enable us to form a view as to the likely reaction of the Industrial Tribunal had it correctly directed itself so that the appeal should be allowed and the case remitted for a re-hearing.  He further takes a point that the Extended Reasons include contradictory findings as to the significance of the Applicant’s lack of experience:  Paragraph 29 (already cited) is to be compared with a passage from Paragraph 26:  “without going through the criteria to determine where there was compliance and where non-compliance, the decision both on the evidence we have heard and from notes prepared was essentially a subjective decision based principally on the applicant’s experience and not the objective assessment required by the procedure.”

	For the Applicant, Mr Segal commends the decision as well crafted and based on proper legal principles.  As to the point taken by Mr Hillier, he submits that where, as here, there was no actual comparator then problems are posed in the rigid application of a two stage test and the approach of this Tribunal is readily justifiable.

	Finally, both Mr Hillier and Mr Segal submit that the logic of the finding that a desire to appoint Mary Hufford was not the reason for the Applicant’s rejection is that the racial discrimination (if any) that is germane is that arising before the end of the Stage 2 procedure when “the shutter comes down.”

Our Findings
1.	Mr Hillier is plainly correct as to his submission as to the appropriate ‘comparator’ test as called for by the statute as explained by authority.  Again, he is plainly correct in submitting that, respectively, the Industrial Tribunal ought to have applied such test and did not.  We reject the subtleties of Mr Segal’s reply.  In the absence of an actual comparator we see no difficulty in requiring a Industrial Tribunal as an industrial jury to compare the treatment found to be accorded by this employer to the Applicant with the treatment that would have been accorded to a person who is white but who otherwise shares the same characteristics.  It is to be remembered that criminal juries are regularly asked to undertake just that intellectual exercise, for example when deciding whether murder is reduced to manslaughter by reason of provocation.  Not only is this approach required, but (as this case demonstrates) comparison with a comparator (actual or notional) provides a vital intellectual discipline.

2.	Had the Industrial Tribunal correctly directed itself as to the need to make the comparison, would they have arrived at the same decision?  Are there sufficient findings of fact to enable us to discern an inevitable answer to the proper test?  As to this, the irony is that the Applicant’s own case identified an actual comparator, Mary Hufford.  That case was based upon her own surmised explanation for the events complained of.  Thus, her case (as we understand it) was that the Second Respondent, aided and abetted by Mr Crookes, was desirous of appointing Mary Hufford to this post, wholly or in part because she was white.  Mindful that Miss Hufford could not participate in the Stage 2 procedure, they set about ensuring that the Applicant and any other black candidate would then fail.  The fellow black candidate seemingly failed on merit (he was rejected by Miss Patel) and probably never posed a threat;  given her personal attributes, the Applicant posed a threat but, the latter was countered by creating emphasis on her admitted Achilles Heel, experience - and by effectively ignoring Miss Patel.  It was, the Applicant would say, because the Respondents knew that the Stage 2 procedure could not produce a white candidate that applications from external candidates were sought before its actual results was known.  Thereafter, the way was clear for the appointment of Mary Hufford, conveniently at a stage by which the Applicant had ceased to be a candidate.  

	Turning from this case to the approach of the Industrial Tribunal, had it been able to make findings of fact in accordance with the Applicant’s case then the application of the ‘comparator’ test would have presented no problems at all:  viewing the selection process as a whole she was treated less favourably than Mary Hufford or any other similarly qualified white candidate.  In the event, however, the Industrial Tribunal’s findings of fact mean that the result of application of the comparator test is more speculative.  Three problems are outstanding:

a.	The finding already cited as that a desire to appoint Mary Hufford was not the reason for the Applicant’s rejection;

b.	The arguably contradictory findings as to why the Applicant failed the interview - was it because she was inexperienced?, or was it for some other unspoken reason, that is, because of her race?;

c.	The failure of the Industrial Tribunal to make findings as to when and how discrimination was applied:  if the history was not as the Applicant contended, what on balance of probability, was it?  Granted that the Second Respondent and Mr Crookes may not have had an overriding preference for Mary Hufford as an individual, are we to assume that they had a preference for her and any other white Stage 3 candidates on race alone? or are we to assume that, appearances to the contrary, she was appointed simply because she was the best candidate (in which event the whole claim appears to fail)?

	We cannot discern sufficient findings to be able to say that the Industrial Tribunal’s conclusion would have been the same had the correct comparator test been applied.  Further, and in any event, the findings that are in part arguably contradictory as between themselves.

3.	In the overall result we have to allow this appeal and we direct a re-hearing by a differently constituted Tribunal.  We readily accept that such a result raises a daunting prospect for all three parties.  A re-hearing may be inevitable but we do draw attention to the findings that were made by this plainly conscientious Industrial Tribunal:  let it be supposed that there was no racial discrimination as defined by the Act, nonetheless there was arguably the clear appearance of such - and this is a field in which appearances count for a lot, and rightly so.  Further, even if the ‘appearance’ can be explained away, that can only be achieved by reliance by the Respondents on ineptitude, discourtesy and insensitivity.  Is there scope for a negotiated resolution of this unhappy matter?