Appeal No.	 EAT/1454/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 April 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR D J HODGKINS CB
MS B SWITZER

MS J SMITH	APPELLANT

DENSO MANUFACTURING UK LTD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS U BURNHAM
(of Counsel)
appearing under the Employment Law Appeal Advice Scheme	

	THE HONOURABLE MR JUSTICE LINDSAY:	We have before us, by way of a preliminary hearing, the appeal of Ms J E Smith in the matter Smith against Denso Manufacturing UK Ltd.  We have heard not only Ms Smith but we have been assisted also by Miss Burnham provided under the ELAAS system and we thank Miss Burnham for her assistance.

	The appeal is against a decision of the Employment Tribunal at Shrewsbury under the Chairmanship of Mrs Corcoran; the members were Mr Rugman and Ms Atkinson.  The hearing took place over two days - on the 25 August 1998 and then in chambers and for the Tribunal only, on the 26 August the next day.  

	The decision of the Tribunal was unanimous.  It was:

“that the Applicant was not discriminated against within the meaning of Section 1(1)(a) or Section 4(1)(a) Sex Discrimination Act 1975.”

	It is worth noting exactly what Ms Smith’s claim had been.  In the IT1 Box 11 - “Please give details of your complaint” -  her IT1 of 18 February 1998 had said this:

“The Vacancy of Logistics Clerk was one of ten different posts advertised in the local press by Denso Manufacturing UK Ltd at the end of November 1997.  Following my written application for this position, I was invited to an interview at 2.30pm 16th December.

The interview was conducted by Sarah Wynn of the Personnel Department.

I received a letter the next morning, rejecting my application.

I wrote on 5th January and 28th January 1998 requesting the reasons why I was not shortlisted.  I received replies dated 19th January and 3rd February 1998 from the Assistant Manager of  Personnel, Mr David C. Lee.

I do not regard these replies to be satisfactory explanations for the rejection of my application.

I therefore consider that I have been the subject of unlawful discrimination by Denso Manufacturing UK Ltd.”

	The Tribunal’s decision was set out over some seven and a half pages of close typing, and, as I have mentioned, was arrived at after a day’s hearing and further consideration in chambers.  We are bound to say that it gives, at first blush, every appearance of having been a careful and even a studiously fair decision.  The Tribunal directed itself on law by reference to the leading cases of King -v- Great Britain China Centre, Martins -v- Marks & Spencer plc, Aziz -v- Trinity Street Taxis Ltd, and Singh -v- West Midlands PTE.

	The Tribunal preferred the Respondent’s evidence, that is to say the employer’s evidence, at some points in the argument.  Thus, they say in their paragraph 3(I):

 “We prefer Miss Wynn’s evidence of how the matter arose in the interview, that is that it arose following the pattern of questions.  We find that the Applicant volunteered more detail and expanded on what she had stated on her application form , unprompted by Miss Wynn.” 

and in (j) of the same paragraph, they say:

“We prefer Miss Wynn’s evidence that it was not raised noting that Miss Wynn was at that time preparing a new policy....”

	We do not need to explain in detail what the outcome of the preference of those particular bits of evidence was but there was plainly, in those respects, a preference for the evidence given on the employer’s part.  There were also a number of issues on which the Respondent’s evidence was accepted, including some really quite central issues.  Thus, in their paragraph 7, the Tribunal says:

“The Applicant was complaining that but for the fact that she was a woman she would have been selected for a second interview.  She also argues that there was less favourable treatment since the men applicants were interviewed by a more experienced interviewer.  We cannot find that there was less favourable treatment in being interviewed by Miss Wynn.  She had been trained in interviewing and had routinely conducted interviews as part of her work as personnel assistant.  We accept the Respondent’s evidence that the application forms had been physically divided between the two interviewers and that it just happened to split 3 men and 3 women.”

	Again, another point at which the evidence of the Respondent was preferred was in paragraph 9, where, on our page 10 they say:

“We accept the evidence about her demeanour [that is Ms Smith’s demeanour] and behaviour in the interview, which was that the Applicant was slow in replying to the questions.”

and again in their paragraph 10:

“The Respondent was saying that the relevant matters had been taken into account, and a decision made on the totality, rather than on a point by point basis.  We accept their explanation that they were aware she had hands-on experience because of what she had said on the application form and knowing that she had worked at Denso as a temporary worker in 1996 on the production line.”

	In their paragraph 13, they say, on a different point:

“On the evidence we find that the less favourable treatment was not on the grounds of sex.  There was no direct evidence of that being the cause of the less favourable treatment.  We are satisfied with the Respondent’s explanation of the less favourable treatment which we cannot find to be inadequate or unsatisfactory.  We do not draw an inference that the less favourable treatment was because she was a woman.  The Applicant has not shown that she was discriminated against within the meaning of Section 1(1)(a) of the Act.”

	In their paragraph 17, they say:

“We find that the proceedings were not a matter which the Respondent took into account in determining who should be interviewed again.”

and, going on further in relation to victimisation:-

“A view of their personalities and responses to the nature of the job was taken. We do not accept that the proceedings against Mitac led to Miss Wynn’s conclusion that the Applicant did not come across as a team player.  Her conclusion was based on other matters such as the use of “I did...” in describing her previous work and the impression gained of her personality.  Miss Wynn may have been wrong in her assessment of Lorraine Cadwaladr, and indeed of the Applicant.  But this does not lead us to draw an inference that the Applicant was treated less favourably than Miss Cadwaladr because she had taken proceedings under the Act.  Nor were the proceedings the cause of her less favourable treatment compared with Neil Taylor.”

	So there is a whole raft of separate findings in which the evidence of the Respondent had been either preferred or accepted and there is one point, at least, at which Ms Smith’s argument was deliberately turned down as, in paragraph 9, the Tribunal says:

“We do not accept the argument of the Applicant that the Respondent had trumped up or had underplayed her experience and qualifications and magnified other candidates after the event to cover up discrimination.”

	Now, plainly the view taken of the evidence as a whole by the Employment Tribunal presents difficulties for Ms Smith. It is the task of the Employment Tribunal to assess the evidence put in front of them, to examine the demeanour of witnesses and to choose as best they can who is to be preferred and which evidence is to carry the day.  That is exclusively within their province and they have the immense advantage of seeing the witnesses and observing their demeanour when they give the evidence.  

	Ms Smith, as we have mentioned to her, needs to identify for us or with our assistance some error of law that has a real arguable prospect of success.  Miss Burnham, on behalf of Ms Smith, spoke of the case being, in effect, a perversity challenge.  It has to be recognised that that is always a difficult matter and more particularly so where the Appellant has failed on the facts.  Ms Smith complains that sufficient attention was not given to the specified grounds upon which the employer had, at any rate at first, relied for not pursuing her job application further than it did.  That matter was plainly before the Tribunal.  They had the employer’s response before them and they deal with it in their paragraph 9.  They say:

“The reasons given in response to the Applicant’s enquiries after her rejection were that others were better organised and got to the point in interview when answering questions, that others were more numerate and had more IT skills and experience.  The other candidates had a “more effective fit with the hands-on of the job” and that they would be a “more effective fit with the team oriented nature of the company”.  The Applicant went through each of those reasons seeking to show that she was better qualified and that she in fact met all of the requirements, that some were apparent from her CV and application form and  had not been drawn out of her at interview.”

	So the Tribunal knew of the point - they had it in front of them - and they also held in their paragraph 12:

“The replies to the Section 74 form were not evasive or equivocal.  A full disclosure has been made.”

	We cannot say, having read those paragraphs, that this matter was not in front of them.  The weight they ought properly to have given to such considerations is essentially a matter for them as part of their view, overall, of the evidence.  Ms Smith’s overwhelming difficulty is that she did not have her version of the facts found in her favour.  She has complained that some things were held by the Tribunal to be, as she put it, opposite to the truth.  It is not our role to guess where we would have found the truth had we heard the evidence.  We did not hear the evidence and it is not our role.  

	Doing the best we can to examine this story with a view to finding points of law that have some arguable prospect of success, we must confess we have failed. That being so, we must dismiss the appeal even at this preliminary stage.