![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Employment Appeal Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Nwoke v London Borough Of Brent [2003] UKEAT 1137_02_1807 (18 July 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/1137_02_1807.html Cite as: [2003] UKEAT 1137_2_1807, [2003] UKEAT 1137_02_1807 |
[New search] [View without highlighting] [Printable RTF version] [Help]
At the Tribunal | |
On 1 May 2003 | |
Before
THE HONOURABLE MR JUSTICE WALL
MR D BLEIMAN
MR D SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR M KURREIN (of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street Off Cleaver Street Kennington London SE11 4DS |
For the Respondent | MR N UNDERHILL QC (of Counsel) Instructed by: London Borough of Brent Legal and Democratic Services Town Hall Annex Forty Lane Wembley HA9 9HD |
THE HONOURABLE MR JUSTICE WALL
Introduction
(1) discrimination in the short-listing arrangements for the post of Borough Solicitor in August or September 2000 (the first act);
(2) discrimination in the short-listing arrangements for the post of Principal Lawyer in December 2000 (the second act);
(3) discrimination in the interview process for the post of Senior Lawyer (the third act); and
(4) the refusal or deliberate omission to offer the job of Senior Lawyer following an interview on 11 January 2001 (the fourth act).
The appeal is against the majority's findings in relation to three of the four acts complained of (acts one, two and four as identified in paragraph 2 above). Before us, the Appellant abandoned her appeal against the third act.
The First Act
"17. Mr Weaver considered that Ms Osborne was a stronger candidate than the Applicant in respect of all criteria on the Person Specification, including a criterion labelled "thorough knowledge of local government law". He did not take into account that the Applicant had just completed a Diploma in Local Government Law (in addition to her law degree at class 2.1) because he said that giving weight to paper qualifications could disadvantage ethnic minority candidates. The tribunal found this explanation bizarre."
"She was given positive feedback by Mr Weaver to the effect that her application was crisp, clear and good. She was told that if there had been scope to take more candidates, she would have been taken. She was told that she lacked the management experience which Brent required for the Borough Solicitor's post."
"22 The majority of the tribunal (the Chairman and Mr Neave) was satisfied that the reason why the Applicant was not shortlisted for the Borough Solicitor's post was a lack of management experience at a sufficiently senior level: in shorthand, that her existing post was a "third tier" post. The Applicant could not demonstrate the experience which Brent required in order to be shortlisted for the Borough Solicitor's post which was a "first tier" post. Mr Thakoordin considered that the reason why the Applicant was not shortlisted was that Brent relied on Mann Weaver's recommendation for longlisting which did not include the Applicant and that Mann Weaver's longlisting process had not involved a systematic consideration of the Applicant's applicant against the selection criteria. Mann Weaver, in the view of Mr Thakoordin, had given information to the candidates it contacted directly on the focus of the client's requirements. The majority did not share this view."
"The Applicant was less favourably treated than Ms Osborne in that Ms Osborne was short-listed for the Borough Solicitor's post and the Applicant was not. As Ms Osborne is white and the Applicant is black African there is a difference in race"
"54. The Tribunal, heeding the guidance in King and Zafar, has considered whether it is satisfied with Brent's explanation for the difference in treatment which is that the Applicant had insufficient management experience, or, in shorthand that she was a "third tier" and not a "first tier" or "second tier" manager.
55. The Tribunal is critical of the selection process conducted by Mann Weaver which was not transparent and not in accordance with Brent's own guidance to Managers. The Person Specification was used only as a guide and the application of at least one of the criteria (thorough knowledge of local government law) was bizarre.
56. The majority of the Tribunal is nevertheless satisfied that the reason for non-selection of the Applicant for short listing was her lack of management experience at a sufficiently senior level and that her race was not an operative cause of her less favourable treatment. The candidates long listed, including Ms Osborne, were able to show management experience at a more senior level than the Applicant."
"57. Mr Thakoordin is not satisfied with the explanation given by Brent for non-selection. He considers that the Applicant was disadvantaged because she was not one of the candidates directly approached by Mann Weaver. Her application therefore contained less detail than that of Ms Osborne. The minority member also considers that Brent relied on Mann Weaver's recommendation which did not involve a systematic consideration of the Applicant's application against the selection criteria. The minority member infers that there was less favourable treatment on racial grounds because Brent had a preference for a white candidate. That is based on the predominately white nature of the long list and the fact that Mr Agatu was not successful at the final selection even though he had greater qualifications and length of management experience than Ms Osborne."
The Second Act
"30 Ms Osborne did not carry out the shortlisting exercise conscientiously. She gave straight and unqualified ticks in all boxes to two candidates she had worked with: Mr Tsempala (a black African candidate) and Mr Carson, who was one of her colleagues at the London Borough of Lewisham. In the case of Mr Carson, there was scant evidence of substantial management experience or of experience of LSVTs or similar stock and/or housing management transfers which were two of the criteria to be met or preferably to be met. The Tribunal rejected Ms Osborne's evidence that the matters contained in Mr Carson's application form were capable of providing evidence sufficient to satisfy those criteria and unanimously formed the view that Ms Osborne was biased in Mr Carson's favour. This bias was evidence at the final shortlisting stage also where Mr Carson scored more highly in the category "substantial management experience" than the Applicant. The tribunal is satisfied that even with the final paragraphs of the application form missing, any reasonable assessor must have reached the view that the Applicant had more substantial management experience than Mr Carson. The Applicant had headed up a team in a substantive management post for more than five years: Mr Carson had headed a team in an acting post for just over a year. The Tribunal was unpersuaded by Ms Osborne's contention that supervised articled clerks/trainees from time to time was capable of constituting "substantial management experience". "
"31 Ms Osborne gave high marks to the Applicant in the initial selection process. Her main reservation about the Applicant's application was whether there was evidence that the Applicant had experience of and an ability to handle complex litigation. It was important to Ms Osborne that the Applicant should have had such experience as this was a gap in Ms Osborne's own experience. Ms Osborne had in mind the Applicant's application for the Senior Lawyer post when carrying out her selection for the Principal Lawyer's post. The Tribunal is satisfied that if Ms Norman had not had doubts about the Applicant's management experience, it is probable that the Applicant would have been shortlisted for the Principal Lawyer post. Another candidate, described as PL3, about whom there were also queries in relation to experience of and ability to handle complex litigation, was nevertheless selected for shortlisting. Failure to meet these criteria in full was therefore not of itself a reason not to shortlist.
32 The Tribunal is satisfied that the selection criteria were not applied fairly and even-handedly at the shortlisting stage for the Principal Lawyer post. The result of the shortlisting was that the candidates selected included two white candidates, one black Caribbean candidate and one black African candidate. In the event, Mr Carson was the only candidate considered appropriate for appointment. He was offered the job but declined it and it has remained vacant. Ms Atkins, another former colleague of Ms Osborne at the London Borough of Lewisham, who was recruited to the Senior Lawyer's post, has acted up in the Principal Lawyer's post for several months."
"61 …….. Brent's explanation, which was repeated to the Applicant in her feedback letter was that there was insufficient evidence on her application form of experience of handling complex matters. These same doubts applied to candidate PL3 who was marked the same or marginally less well than the Applicant in relation to the criteria involving experience and ability in complex litigation but was nevertheless selected for shortlisting. The Tribunal did not accept Brent's explanation as to why Mr Carson was selected for shortlisting and the Applicant was not. The principal reason why Mr Carson was shortlisted was that he was a candidate who was known personally to Ms Osborne and there was a bias in his favour."
"63 ………… the exercise of favouritism towards known candidates irrespective of race (the Tribunal reminded itself that Mr Tsempala is of black African origin); the lack of a complete application form from the Applicant; a failure to apply the shortlisting criteria in a careful and conscientious fashion which applied across the board to all candidates; and the fact that the Applicant submitted a form which lacked detail in particular in relation to complex litigation. The majority took into account that the shortlist of four included two white candidates and two black candidates, one of whom was black African. If the Applicant had been a white candidate, the probability is that she would have been treated in the same unsatisfactory way."
"64. ….. The two white members of the shortlisting panel favoured Mr Carson as a candidate from their own race. Mr Tsempala, who was given all ticks on Ms Osborne's first shortlisting form was described by Ms Osborne as "good", whilst Mr Carson, with the same number of ticks was described as "excellent". Mr Carson's score on joint shortlisting remained broadly the same as when he was shortlisted individually by the panel members whilst in relation to the Applicant both shortlisters reduced their scores. The minority believed that there was manipulation in the scoring system which was to the disadvantage of the Applicant because she was a strong contended [sic] for the post."
The fourth act
(1) that there was a discriminatory hostility shown towards her during the
interview itself, and
(2) that the process of assessment by the interview panel was discriminatory.
Before us she only pursued the second of these allegations.
"42 At the conclusion of the interview, Ms Osborne asked the other panel members who they considered to be their first choice for the post. They both identified Ms Atkins. The assessment forms were not discussed and although the panel members had placed different candidates in second and third places, these further candidates were not discussed. Ms Osborne had placed a white candidate (SL5) in second position. SL5 had "fully met" fewer of the interview criteria than the Applicant. Ms Norman and Mr Upadhyay had both placed an Indian candidate (SL4) in second position and a black African candidate (SL2) in third position.
43 The Applicant was informed that she had been unsuccessful in her application for the Senior Lawyer post by telephone on about 18th January 2001. She was given written notification in a letter dated 25th January 2001 which she received on 26th January 2001. She immediately requested feedback in relation to both the Principal Lawyer and the Senior Lawyer posts which was provided by a letter dated 31st January 2001 which she received on 2nd February 2001.
44 The feedback in relation to the Principal Lawyer post was that the shortlisting panel did not feel that she demonstrated in her application form sufficient experience of handling complex matters. In relation to the Senior Lawyer post, it was felt that she had not said much about the complex matters she had worked on and that, whilst she was managing the workload of her team, she had not been dealing with this sort of litigation herself for some time. She had not elaborated sufficiently on her experience in the past and her answer to the Human Rights Act question was described as "rather weak".
45 Brent has a Guide for managers in relation to recruitment and selection. That includes at paragraph 23 guidance on deciding who to appoint. In a number of respects that guidance was not followed in any of the three selection exercises."
"72 The majority of the Tribunal was satisfied that the Applicant did fail to give sufficient evidence of her experience and ability in complex legal matters. The minority was not so satisfied. The Tribunal was, however, unanimously not satisfied with the explanation that Ms Atkins was genuinely a stronger candidate. The interview process was so flawed that it was not possible to draw such a conclusion.
73 The majority of the Tribunal did not infer that the less favourable treatment was on racial grounds. On the balance of probabilities, Ms Atkins was selected in preference to the Applicant because she had previously worked with Ms Osborne and there was a bias in favour of candidates known to Ms Osborne.
74 The minority view was that the decision not to appoint the Applicant was on grounds of race. That inference was drawn from the fact that the successful candidate was white and known to Ms Osborne. There was considerable bias in the process so far as there was no reference to the equal opportunities guidelines or objectivity in the evaluation process regarding the most suitable candidate meeting the criteria."
The grounds of appeal
Meek / Anya compliance: the argument for the appellant
The tribunal was also referred to the judgment of Sedley LJ (actually it is the judgment of the Court) in Anya and to the passage at paragraph 8 that it is not unduly onerous to expect an employer to explain its reasons for treating an applicant in a particular way but that evidence of bias or that equal opportunities procedures were not used when they should have been point to a possibility of conscious or unconscious racial discrimination. In each case, the tribunal must consider conscientiously whether such an inference is properly to be drawn. An inference should only be drawn if the primary facts justify the drawing of such an inference
….The choice between these two comparably well qualified candidates depended entirely on how the panel viewed their personal and professional qualities. Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed. If these are to any significant extent racial factors, it will in general be only from the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge. This court and the EAT have said so repeatedly and have required tribunals to inquire and reason accordingly.
Mr. Kurrein submitted that the Tribunal failed to consider from the surrounding facts whether Brent's treatment of the Appellant was the result of unconscious discrimination.
Meek / Anya compliance: the argument for Brent
"15 In the present case the industrial tribunal embarked in exemplary fashion on the methodical approach which this court has said is essential. In paragraph 16 it tabulated five prior events put in evidence by Dr Anya as evidence of hostility on the part of Dr Roberts and denied or explained, as in each case the industrial tribunal records, by Dr Roberts himself and by other witnesses. They were, in brief, that Dr Roberts had not given Dr Anya adequate research guidance; had not given him the opportunity he gave others to co-propose research projects; had discouraged or blocked him from publishing research papers; had not given him the opportunity to present his work at scientific conferences; and had allocated him no research students in contrast to other post doctoral research assistants. These allegations were followed, in paragraph 17(b), by another which had emerged in disclosure of documents: that in the unsuccessful funding application to the Engineering and Physical Sciences Research Council Dr Lawrence had been named as the intended research assistant. Even more directly related to the material job application is the other allegation set out in paragraph 17: that Dr Anya was notified by Mr Briant, the eventual panel chairman, of the coming opportunity in terms markedly less encouraging than those in which Dr Lawrence was notified of it. On none of these issues, from first to last, did the industrial tribunal record any conclusion as to where the truth lay and what, if anything, it indicated in terms of racial bias."
Analysis and Discussion: the first act
The second and third acts – a general comment
The second act
The fourth act
Should the Tribunal have extended time in relation to the first act?
"58 The majority considers that there was in any event no jurisdiction to hear the Applicant's claim in respect of the Borough Solicitor's post. The claim was made outside the three month period stipulated in section 68(1) of the RRA and the majority would not exercise its discretion to extend time on the grounds that it is not just and equitable to do so. The majority accepted that the Applicant first formed the belief that there had been race discrimination on 11th January 2001 and that it was reasonable for her to wait until she knew the result of her application for the Senior Lawyer's post before bringing proceedings. However, after learning that she was not to be offered the Senior Lawyer's post on about 18th January 2001, she should then have presented her application within a reasonably short time. In fact she waited until 15th March 2001. The majority took into account that the Applicant applied for funding from the Commission for Racial Equality and did not receive a response to her application until April. The majority also took into account that the Applicant was very distressed by the belief that she may have been the victim of race discrimination. On the other side of the scales, the Tribunal took into account that the time limits in the RRA are short and of a jurisdictional nature. Although not an employment lawyer, the Applicant is a solicitor experienced in litigation who was well aware of the importance of time limits. She waited for nearly two months after learning that she was not to be offered the Senior Lawyer's post before presenting her application and there was no explanation for this period of delay.
59 The minority of the tribunal would exercise discretion to extend time on the grounds that it is just and equitable to do so. The Applicant had sought help from the Commission for Racial Equality and did not receive an answer until April 2001. She had intended to bring a claim from about 18th of January 2001. She was waiting for a response from the CRE but decided to proceed in the absence of a response. These factors outweigh any prejudice to Brent."
The argument for the appellant on the time point
The argument for Brent on the time point
Conclusion on section 68
The outcome