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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Swindon Borough Council & Anor v. Mba [2007] UKEAT 0470_06_2901 (29 January 2007) URL: https://www.bailii.org/uk/cases/UKEAT/2007/0470_06_2901.html Cite as: [2007] UKEAT 0470_06_2901, [2007] UKEAT 470_6_2901 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE BEAN
MR H SINGH
MISS S M WILSON CBE
2) RODERIC OWEN JONES |
APPELLANTS |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
LORD JUSTICE TUCKEY
and
For the Appellant | Mr Robin Allen (One of Her Majesty's Counsel) Instructed by: Swindon Borough Council Legal Services Civic Offices Euclid Street Swindon Wiltshire SN1 2JH |
For the Respondent | Mr Osita Mba (The Respondent in Person) |
SUMMARY
Race discrimination – Direct/ Indirect/ Inferring discrimination
Finding of direct and indirect discrimination – adequacy of reasoning on each issue. Case remitted to freshly constituted Employment Tribunal.
THE HONOURABLE MR JUSTICE BEAN
Minimum
- A fully qualified solicitor FILEX or licensed conveyencor
- 3 years experience of property work
- 5 years experience of legal work
Preferred
- 5 years experience of property work
- 12 months experience of highways work
- Experience of working for a local authority
1. To carry out conveyancing transactions of industrial, commercial and development land with no or minimum supervision to include:-
(a) Transfers on acquisition and disposal of property.
(b) Agreements for Leases, Leases, Agreements to Surrender, Surrenders, Leases of Variation and Rent Reviews;
(c) Easements and Wayleaves;
(d) Covenants and Variations of Covenants;
(e) Notices to Quit;
(f) Any other property related issues which arise from time to time.
2. To give advice on all property related matters to the Council, its Officers and/or Members as and when required.
3. To give advice and deal with any matters arising on agricultural land or property.
4. Te deal with the making of Compulsory Purchase Orders and associated documents.
These four paragraphs, the first of which refers to "no or minimum supervision" and the next three of which say nothing about supervision, are to be contrasted with requirement 5 which is:-
"5. Under the supervision of the Head of Conveyancing, Environment and Contracts to give advice on any matters relating to the renewal of business leases…"
"The second Respondent – that is Mr Jones- collected the form from Human Resources. Having considered it he decided not to shortlist the Claimant for interview. He referred the form to Mr Taylor and he too decided that the Claimant should not be short listed."
So no appointment was made. A bland letter was written by the HR department. The Claimant asked by email for reasons for the decision. The second Respondent telephoned the Claimant the same day and said he did not meet the minimum experience requirements for the post. When the Claimant protested that he did meet the minimum requirements, Mr Jones replied that it was Swindon's policy to consider only experience gained in England and Wales.
"The issue for the Tribunal is whether you were the victim of unlawful racial discrimination in relation to your application for employment. Previous recruitment decisions taken by the Respondent are not directly relevant to that question.
The overriding objective requires the Tribunal to deal with the case justly and this includes dealing with it in ways which are proportionate to the complexity and importance of the issues and also with a view to saving expense. Your request for an order for further discovery is therefore refused."
"The issue for the Tribunal to determine was whether the second Respondent and Mr Taylor would have rejected without interview an application from a white candidate whose education academic achievements, qualifications and experience were not materially different to the Claimants who had some experience within the jurisdiction of England and Wales but not enough to meet the minimum criteria in the candidate specification, but who had in addition significant experience overseas in a common law jurisdiction which when aggregated with his/her experience in the jurisdiction met the requirements of the candidate specification."
"16. We have concluded that when the second respondent assessed the claimant's job application for short listing, it was clear to him that this was an applicant who was almost certainly black. This was evident from the academic history and work history. It was an application from someone who had studied, qualified and practiced as a lawyer in Nigeria before transferring to the United Kingdom. Over and above that, the claimant had telephoned the second respondent to request an application pack. From both the claimant's accent on the telephone and also from his name it would have been clear to the second respondent that he was probably black. The second respondent's evidence that he did not make a connection between the form and the telephone conversation we found unconvincing. The decision not to short list the claimant was taken against a background of the Directorate having no black or ethnic minority employees in it. Another important feature of this case is how the Candidate Specification 39 came to be qualified as to exclude the claimant from short listing. The criteria, where the Candidate Specification talked of experience, made no mention of experience 'within the jurisdiction'. It simply talked of 'experience' without qualification. Whilst in our view it would have been reasonable to infer that for a post of Assistant Property Lawyer the experience would have to be in a common law jurisdiction, it is not so obviously necessary to infer that the experience must be within the jurisdiction of England and Wales. Whilst we note the point made by Counsel for the respondents that the Law Society required the claimant to pass a Property paper within the Qualified Lawyers Transfer Test, the events with which we are concerned took place after the claimant had passed that paper with an A grade, undertaken the required work experience to qualify as a solicitor and then gained some post-qualification experience.
17. Our conclusion is that had it not been apparent on the face of the application and also from prior contact with the claimant on the telephone that this was an application from a black candidate, the second respondent would have short listed the applicant for interview. It must be borne in mind that a previous attempt to recruit for this post had been unsuccessful. The claimant was the sole applicant on this occasion. The application he submitted was from an individual who was obviously academically gifted and dedicated to pursuing a career in legal practice. Our conclusion is that, had it been the respondent's perception that the applicant was white, he would have short-listed him for interview, with a view to evaluating whether his background, knowledge and experience of property work was such that he would be able to fill the role of Assistant Property Lawyer and work with the minimum level of supervision. Our conclusion is therefore that the second respondent directly discriminated against the claimant contrary to section 1(1)(a) of the Act."
"19. When it comes to the claim of indirect discrimination brought under section 1(1A) of the Act, we note that this is limited to considerations of race or ethnic or national origins. The claimant is of Nigerian and African ethnic origin. His national origin is Nigerian, non-British, non-English and non-Welsh. For the purposes of section 1(1A) of the Act it is not necessary for the claimant to adduce statistical evidence. The consideration is whether the provision criterion or practice which is applied is one
'… which puts or would put persons of the same race or ethnic or national origins … at a particular disadvantage when compared with other persons."
Our conclusion is that the application b the second respondent of criteria of (a) three years' experience of property work in the jurisdiction and b) five years' legal work in the jurisdiction would put an individual of Nigerian, non-British, non-English and non-Welsh national origins at a disadvantage when compared with those of non-Nigerian, British, English and Welsh national origins. It put the claimant at a disadvantage. The final question is whether this was a proportionate means of achieving a legitimate claim. The aim itself we consider to be legitimate, namely to ensure that the individual appointed to the post was capable of working with minimum supervision. However we are not persuaded that the means was proportionate, in that it was a criterion which would have the effect of limiting consideration of individuals who had experience in the many the crude assumption that, even though their legal systems were rooted in the common law and might adopt as the bedrock of their property laws the same property statutes as apply in England supervision. [sic] Our conclusion is therefore that the claimant succeeds also as against the second respondent in his claim of indirect discrimination contrary to section 1(1A) of the Act.
20. As the second respondent was throughout acting in the course of his employment, the first respondent is vicariously liable for his acts and accordingly it too has discriminated against the claimant contrary to the Act.
"The Tribunal's finding of fact including findings on the credibility of witnesses can only be challenged on appeal if it is established that no reasonable Tribunal could have made findings in question. A perverse decision is erroneous in law, it must be shown by the Appellant that material findings of fact bye the Tribunal are perverse because, for instance, they are unsupportive by any evidence or they are contrary to un-contradicted evidence or they are plainly wrong for some other reason."
"An appeal to the EAT lies only on a point of law… it is not right that points of fact should be dressed up as points of law so as to encourage appeals, it is not right to go through the reasoning of these Tribunal's with a toothcomb."
"I think care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the Industrial Tribunal, searching around with a fine toothcomb for some point of law."
"The Employment Tribunal must decide whether any provision of any relevant code of practice is relevant and if so take it into account in determining such facts pursuant to section 54(10) of the Race Relations Act 1976".
"Factors relevant to whether the remission should be to the same Tribunal or to a different Tribunal include the length of time which has passed since the Tribunal's decision, the risk of loss of recollection and the ability of the original Tribunal to refresh the memories of the members of the notes of evidence on submissions, the length and complexity of the case extent to which the decision under appeal was flawed or mishandled, the risk that the Tribunal has already made up its mind to reach a certain result in the case and its ability to reconsider the matter fully and reach a different decision on the evidence and arguments and the ability of the Tribunal to exercise its usual professional approach and skills on the remission."