Appeal No. UKEAT/0554/10/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 June 2011

Before
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)
MS V E BRANNEY 
MRS M V McARTHUR FCIPD

MS N HABASHI	APPELLANT

THE CROWN PROSECUTION SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR COURTNEY HAY
(Representative)
Of:
Northern Complainant Aid Fund
PO Box 313 Checkpoint
45 Westgate
Bradford
West Yorkshire
BD1 2QU	
For the Respondent
	MS SARAH FRASER BUTLIN
(of Counsel)
Instructed by:
Messrs Simons Muirhead & Burton Solicitors
8-9 Frith Street
Soho
London
W1S 3JB	

SUMMARY

RACE DISCRIMINATION – Inferring discrimination 

Tribunal entitled on the evidence before it to find that the Respondent had discharged the burden of showing a non-discriminatory reason for the Appellant’s non-selection for promotion. 
THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

1.	This is an appeal against the decision of an Employment Tribunal sitting at London Central, chaired by Employment Judge Auerbach, dismissing the Appellant’s claims of racial and religious discrimination.  The Tribunal sat on 1 and 2 July 2010, and the Judgment and Reasons were sent to the parties on 21 September 2010.  Before the Tribunal, and also before us, the Appellant was represented by Mr Courtney Hay, and the Respondent by Ms Sarah Fraser Butlin of counsel.  We wish to say that both made their submissions extremely well.

2.	The facts can for introductory purposes be stated very shortly.  The Appellant, who is of Arab ethnic origin and is Muslim by religion, is employed by the Respondent, the Crown Prosecution Service.  At the time material to her claim she was Regional Equality and Diversity Officer for Greater Manchester, though seconded to the Office for Criminal Justice Reform as Head of Local Delivery.  In June 2009 she applied for the post of Head of Equality and Diversity for the CPS in London.  There were 48 applications.  They were considered on paper on 7 and 8 July 2009 by Bob King, the Business Manager for CPS London, and Roger Quick, a recruitment specialist from the CPS’s National Recruitment Centre.  Jacqui Anthony, who was the current lead on CPS recruitment exercises in London, had been intended to participate in the exercise but had had to pull out at the last minute for personal reasons.  Mr King and Mr Quick, to whom we will refer as ‘the panel’, sifted the applications down to a list of twelve, which they then considered in more detail to provide a list of five candidates to be interviewed.  The Appellant was among the twelve who survived the initial sift, but not among those selected for interview.  This was on the basis that she had not fully met four of the six competencies required in the published person specification.

3.	As is common in cases of this kind, the burden of proof was central to the Appellant’s case before the Tribunal, since she had no direct evidence that the members of the panel were influenced, consciously or subconsciously, by her race or her religion in deciding not to shortlist her.  Accordingly the Tribunal started its consideration in its Reasons by considering whether she had established a sufficient case to shift the burden of proof in accordance with the provisions of section 54A of the Race Relations Act 1976 and regulation 32 of the Employment Equality (Religion or Belief) Regulations 2003, which are in terms too familiar to require to be set out in full here.  This issue was addressed at paragraphs 30‑40 of the Reasons, and the Tribunal concluded that the burden of proof had indeed shifted.  In reaching that conclusion it relied on a number of factors, among them that the panel was likely to have been aware, if only subconsciously, from her name and other indications in the paperwork, that the Appellant was indeed of Arab ethnic origin and a Muslim; and also that Ms Anthony, in notes which she had made available to the panel, had ranked the Appellant as one of only four candidates whom she believed should definitely be shortlisted.

4.	At paragraphs 41‑75 of the Reasons the Tribunal examined clearly and in considerable detail the explanations put forward by Mr King (Mr Quick did not give evidence) for why the Appellant was in fact not shortlisted.  In particular it considered Mr King’s evidence and the relevant documentation in relation to the four competencies which the panel had considered that she did not fully meet.  In relation to each of those competencies, it concluded that the panel reached a genuine view that the shortlisted candidates had provided better evidence of meeting the competency in question than the Appellant (see paragraphs 62, 65, 69 and 72 of the Reasons).  Its conclusions appear at paragraphs 76‑77 of the Reasons, which read as follows:

“76. We were satisfied, more generally, for the reasons that we have given, that Mr King’s evidence, supported by the documentation, reflected the genuine conclusions to which the panel came.  To the extent that there were errors made, which Mr King acknowledged, and some variations in the degree of rigour with which the exercise was approached, this was explained by the element of lack of more thorough training and a more systematic approach taken to the exercise as a whole.  The Tribunal considered that these aspects, combined with the fact that this was an assessment that was in fact only carried out by a two‑person and not a three‑person panel, gave greater scope for subjectivity to creep into the exercise.  But we were satisfied that the decisions taken were by reference to the views formed genuinely by Mr King and his colleague, Mr Quick, of the written material available to them; and that the Respondent had discharged the burden on it, to show, on the balance of probabilities, that the decisions they took were not, consciously or subconsciously, to any degree influenced by grounds of race or religion.

77. This stage of the exercise was, we noted conducted entirely on paper.  The shortcomings of the process that we have described made it less than wholly transparent to candidates.  They may perhaps have contributed to the Claimant’s strong feelings of dissatisfaction, concern or suspicion, not merely about unfair treatment, but as to whether her race or religion might have been a factor in her failure to secure an interview.  Be that as it may, we were ultimately satisfied, on the evidence available that was put before us, that the Respondent had shown that these claims were not well‑founded and we dismissed them.”

5.	The Notice of Appeal is rather diffuse, but Mr Hay in his oral submissions helpfully grouped his points under two heads.  

6.	His primary case was, put generally, that on the Tribunal’s own findings of fact the Respondent had not discharged the burden of showing an adequate explanation for the panel’s decision.  He said that its pleaded case had been that it had judged the candidates consistently according to the criteria identified in the person specification, and using the methods there prescribed, but that Mr King had been forced to concede in cross‑examination that it had in fact not applied those methods properly and had on at least one occasion made a frank error.  

7.	The first specific point that Mr Hay made under that heading was about the panel’s method overall.  The person specification had said in the case of some competencies that the panel would look only at the candidate’s CV, and in the case of others that it would look only at his or her supporting statement.  Mr King, however, accepted in cross‑examination that he and Mr Quick had in fact looked in all cases at both the CV and the supporting statement.  That, Mr Hay submitted, undermined the very explanation that the Respondent was relying on in order to discharge the burden of proof.  

8.	The difficulty with that submission is that this very point was made to the Tribunal and was rejected.  At paragraph 53 of the Reasons, having identified the point, the Tribunal says:

“He suggested that this showed that the panel were looking for evidence where they could find it, to help them choose or reject the candidates who they wanted to choose or reject.  However, as we have recorded, the guidance to candidates was in any event misleading and did not accord in fact with how this selection process was carried out, because there was no separate assessment process nor any requirement for presentations to be made at the interview stage.  We also accepted Mr King’s evidence as genuine, that he and Mr Quick did take the approach of looking at the whole of the written material available to them when considering the application of every candidate.  This did give us cause for concern that there was a greater element of risk that cherry picking could then occur; but bearing in mind that this approach was taken to all the applications, we did not as such infer from the fact that it was adopted, that it was done with that intention or purpose.”

At paragraph 54 it continues:

“The Claimant was, entirely unsurprisingly, deeply troubled by this aspect.  She considered it to be particularly unfair to her, because she had taken great care to follow the instructions and to ensure that she presented the relevant evidence either in her CV or in her supporting statement as the case may be.  But we did not infer that it was done with the purpose of being unfair, or giving an unfair advantage, to any particular candidate or candidates.”

9.	What Mr Hay says about those paragraphs, however, is that they betray a clear misdirection in that they focus on the intention and purpose of the panel, which is not the same as asking the ground on which it acted.  The relevant distinctions are explained in a long line of cases, most prominent among which is the decision of the House of Lords in Nagarajan v London Regional Transport [1999] ICR 877, as confirmed by the majority in the Supreme Court in R (on the application of E) v Governing Body of JFS [2010] IRLR 136.  For a summary of the effect of those cases, the most recent source is the decision of this Tribunal in Martin v Devonshires Solicitors [2011] ICR 352: see at paragraphs 34‑37.  
10.	We do not accept that submission.  It is clear that the Tribunal used the language that it did because of the nature of the case that it understood was being made.  As appears from paragraph 53, which we have set out, Mr Hay was understood by the Tribunal to be submitting that the panel members were departing from the rubric in the person specification deliberately in order to find evidence to support a choice of candidate which had already been made on other, and potentially discriminatory, grounds.  That understanding is consistent with what the Claimant had said in her witness statement.  At paragraph 44 she said: 

“Having compared the evidence provided by the five shortlisted candidates with the evidence that I presented, and the selection panel’s comments, I have been driven to the conclusion that in my case the selection panel was looking for reasons to sift me out, as opposed to conducting a fair and objective assessment as to whether I had demonstrated that I met the criteria for the post.” (Quote unchecked)

Mr Hay says that that is not what he meant, and we can accept that there may be some ambiguity in the phraseology, in particular of the Appellant’s witness statement, about the extent to which a deliberate course of action was being suggested.  But what matters for present purposes is that that was plainly how he was understood, and that in our view explains the Tribunal’s choice of language.  It was making the point that there was no intention to be unfair towards the Appellant because it understood that the contrary was being suggested.  Its findings in paragraphs 53 and 54 are clearly intended to, and do, exclude any discriminatory motivation in the method adopted.  (We use the term “motivation” in the sense used by Lord Nicholls in Nagarajan, i.e. to mean the relevant mental processes of the Respondent, not as equivalent to “motive”.)  It is to be noted also that the Tribunal found that all the candidates were in this respect treated in the same way.

11.	Secondly, Mr Hay addressed the findings in relation to the particular competencies that the Tribunal considered.  He made three points in particular, which we can briefly summarise as follows: 

(a)	Candidate 12, who was in fact the candidate eventually chosen, was judged by the panel to have met the “leadership and teamwork” competency, when the Appellant was judged only to have done so partially.  Mr King accepted in cross‑examination that in fact candidate 12’s application and the Appellant’s were very similar in this respect.  He put forward a ground of distinction, but Mr Hay submitted that it was evident that this was done on the hoof and did not in fact correspond to the published criteria.

(b)	A similar point was made in relation to the “communications” competency.

(c)	In relation to the competency of “managing performance and resources”, one of the shortlisted candidates was found to have met the criteria in full.  Mr King however accepted in cross‑examination that that was simply wrong.  The application of the candidate in question had made no reference at all to budget management, which was one of the specified sub‑heads.  Mr King acknowledged that this was a mistake.

12.	Again, those were all points that were made by Mr Hay to the Tribunal, and each was considered and rejected by it in its Reasons - specifically at paragraphs 65, 69 and 72.  At paragraph 65, in relation to what we have called point (a), the Tribunal said this:

“It seemed to the Tribunal that the attention given by the panel to the details of the applications in this area of communications was not as thorough and careful as it was in relation to strategy.  But we noted that there was some equivocation in relation to a number of candidates, as we have described.  Mr King, as we have described, acknowledged with hindsight that the Claimant had provided sufficient evidence on the first bullet point and had been wrongly judged on this point.  We accepted from Mr King that there was however a general focus more on evidence of personal communication activities at grass roots level.  Having regard to the fact that we accepted that the assessments of the panel were based on their reading of each candidate’s application materials as a whole, we were satisfied that the assessments of all the candidates on this competency were genuinely reached on the basis of material before the panel, although they were not as careful and thorough as they ought to have been.”

At paragraph 69, in relation to point (c), the Tribunal said:

“The shortlist record for candidate 26 was that they had met this competency.  However in cross‑examination it was put to Mr King that there was no reference by this candidate in their application to budget management.  Mr King responded that on re‑reading the papers he agreed with that, and he now questioned whether they had given the right marking to this candidate.  In further questioning he said this was the sort of thing the Concerns Panel process might pick up.  It was put to him that the panel’s verdict on this candidate on this competency was inconsistent with their verdict on the Claimant, who did address the matter of budget management.  Mr King’s response was that he was still content with the Claimant having been marked as partially met, but the question mark was over whether candidate 26 had been given the correct mark.  Having heard and seen Mr King cross‑examined, and give his answers in this way, we concluded that this evidence was genuinely given.  We considered that Mr King was genuinely prepared to admit an error on assessing his candidate on this criterion; but genuinely maintained that this did not however affect the validity of the assessment of the Claimant, because he considered that one did not necessarily, or in his mind, in fact, follow from the other.”

And at paragraph 72, in relation to point (b), the Tribunal said this:

“The Tribunal found the bullet points for the person specification for this competency to be particularly grey and open to various interpretations and assessment of the evidence presented by a given candidate, thus leaving considerable room for panel discretion.  However, it also appeared to us that this panel did attach particular weight to the concept of an ambassadorial role; and we concluded that their genuine verdict on the Claimant was that her example, being primarily about the development of a diagnostic tool, was not a sufficiently good example of this type of activity.  We accepted that the panel considered candidate 12’s examples to be better suited to meeting this emphasis.”

13.	Mr Hay contended that the language used by the Tribunal in those passages, and in particular its repeated reference to genuineness, showed that it had fallen into the trap, identified in Anya v University of Oxford [2001] ICR 847, of treating a finding of honesty as conclusive of the question of motivation (see paragraph 25 in the judgment of Sedley LJ, at pages 860‑861).  We do not accept this.  In our view it is clear, reading the Reasons as a whole, that this very experienced Tribunal intended to find that an assessment of the respective merits of the Appellant and the shortlisted candidates was the only reason why they were selected and she was not, and thus that neither her racial origin nor her religion had any influence, conscious or subconscious, on the mental processes of the members of the panel.  That is stated quite explicitly at paragraph 76, which we have set out above.  The word “genuine” is not in fact inapposite to convey that point: that is, it could reasonably be used to connote or emphasise that it was indeed only a consideration of merit that influenced the panel.  But it may also reflect the Tribunal’s understanding, already referred to, that a case of conscious discrimination was being advanced and needed to be rebutted.

14.	We turn to Mr Hay’s secondary attack, which was essentially based on allegedly inadequate reasoning by the Tribunal.  He made three specific points.

15.	First, he submitted that the Tribunal had failed to deal with a point that he had made to the effect that the Respondent had failed to comply with the CRE’s Code of Practice on Racial Equality in Employment as regards recruitment exercises, and specifically the requirement of paragraph 4.21(c) that each person involved in the selection should mark the applications separately before meeting to agree a final mark.  Mr King had acknowledged that he and Mr Quick had not followed that practice.  Mr Hay submitted that that was a matter that the Tribunal should have taken into account in accordance with step 13 in the Igen guidelines (see [2005] ICR 931).  We accept that in a perfect world the Tribunal should have addressed this point specifically, if it played a major part in Mr Hay’s submissions to it.  But any failure to do so does not vitiate the decision in law.  It was in truth a point of very little weight in the context of the present case: not every failure to apply the Code is of evidential weight in determining the issue of discriminatory motivation, and we cannot see that the failure in question was of any weight in the context of the present case.

16.	Mr Hay’s second point was that the Tribunal failed to make an explicit finding on whether the panel had indeed, as it stated, applied the competency framework in reaching its decision.  It had been his case in his submissions to the Tribunal that the Appellant’s application was in truth of such quality that if the competency framework had been properly applied the only possible conclusion was that she should have been shortlisted.  That submission was of course given some weight by the fact that Ms Anthony had marked the Appellant as someone who should definitely be shortlisted.  The Tribunal had made no finding directly on that submission.  We do not however accept that it was necessary for the Tribunal to make a finding in those terms.  It is necessarily implicit in its findings on each of the specific points made to it that it did not accept that the Appellant’s application was of such a strength that any panel properly applying the competency framework was bound to find that all the competencies had been met.

17.	Finally, Mr Hay complained that the Tribunal dealt too briefly with a submission that he made that adverse inferences should be drawn in accordance with section 65 of the 1976 Act from inadequacies in the Respondent’s response to the statutory questionnaire which the Appellant had served.  At paragraph 56 of the Reasons it had said this:

“The Claimant referred in evidence to the fact that initially in response to her statutory questionnaire, and on initial disclosure of documents, she was given some wrong paperwork.  Only following further Tribunal orders in December 2009 did she get the correct paperwork for all five candidates who were referred for interview.  Further, only at that stage was a copy of Ms Anthony’s short‑listing document produced.  However, we were satisfied that we indeed had the correct and genuine material before us, and we did not consider the handling of this matter in the course of the litigation provided the basis, in itself, for any adverse inference of discrimination.”

We do not accept that the Tribunal was obliged to go into more detail than it did.  The substantive issue in the present case depended entirely on the motivations of Mr King and Mr Quick.  Neither was involved in the response to the questionnaire, and Mr Hay did not indeed seek to cross‑examine Mr King about it.  It is hard in those circumstances to see how the fact that there were deficiencies of a kind identified could have any bearing on the issue which the Tribunal had to decide.  In this connection we refer to the earlier decision of this Tribunal in D’Silva v NATFHE [2008] IRLR 412.  

18.	For those reasons, despite the clear and strong submissions made by Mr Hay on the Appellant’s behalf, we must dismiss this appeal.