Appeal No. EAT/449/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26th April 1993

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MR T S BATHO

	MR G WRIGHT MBE

MISS J M OGILVIE	APPELLANT

(1) HAREHILLS CONSERVATIVE CLUB LTD	RESPONDENTS
(2) MRS JOYCE PARRY

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR E M ALEXANDER
(Of Counsel)
Instructed by
Mr R Wadeson, Solicitor
Commission for Racial Equality
Elliot House
10/12 Allington Street
LONDON
SW1E 5EH

	JUDGE J PEPPITT QC:  This is the preliminary hearing of an appeal from a decision of the Leeds Industrial Tribunal made on the 27th February 1992.  The unanimous decision of the Tribunal was that the Applicant's complaint under Section 4 of the Race Relations Act should be dismissed.

	The circumstances in which the complaint arose, as found by the Tribunal, were as follows.  The Leeds Conservative Club advertised for a part-time position in the Club and the Applicant, Miss Ogilvie, was one of some 10 or 11 who applied for the job.  She was interviewed by a Mrs Parry and it was apparent in the course of the interview that Mrs Parry formed a favourable impression of the Applicant and was minded, in due course, to offer her the job.  The Tribunal described the interview as:
 "a cosy chat during the course of which Miss Ogilvie may well have gained a strong impression that a part-time position would be hers if she wanted it.  There is no doubt that, during the course of the interview, Ms Ogilvie told Mrs Parry that her husband was black and Mrs Parry told Ms Ogilvie that there would be no objection to him calling at the club premises to collect her from work."

There then emerged a sharp conflict between the evidence of Miss Ogilvie and Mrs Parry which the Tribunal, for reasons which I shall indicate in a moment, found it unnecessary to resolve.  Both ladies agreed that Mrs Parry told Miss Ogilvie about the Club rules, that visitors could be signed in by a Club member before 10 pm in the evenings and could then drink in the bar with the member who had signed them in.  The dispute, however, which formed the subject matter of Miss Ogilvie's complaint, was as to whether Mrs Parry then told Miss Ogilvie upon learning that her husband was black, that he would not be allowed to drink at the Club with the members.  That allegation Mrs Parry denied.

	The reason why it was, in the Tribunal's view, unnecessary for them to resolve that conflict was that they decided initially to approach their decision on the basis of whether or not there was jurisdiction to entertain the claim at all.

	The complaint, as I have indicated, was under Section 4 of the Race Relations Act.  The relevant parts of that Section read as follows:
"(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

(b)in the terms on which he offers him that employment."

Against the background of those subsections the Tribunal's findings were as follows:
"7.	At some stage during the interview, Ms Ogilvie became upset about a suggestion that her husband's right to drink at the club would be restricted and we make no finding at this stage as to the reason put forward for that by Mrs Parry.

8.  Ms Ogilvie then told Mrs Parry that the job was not for her and Mrs Parry told Ms Ogilvie that she was really sorry and would have offered her the job for Sunday afternoons since she had every quality that she was looking for.  Mrs Parry gave evidence to the tribunal that she liked Ms Ogilvie and had decided that she would have employed her.  There were however a number of applicants for the positions available and Mrs Parry interviewed 10 or 11 in all."

The Tribunal's assessment of that evidence is set out at paragraph 10 of the decision.
"We have assessed very carefully that part of the evidence which relates to the question as to whether the applicant received an offer of employment from Mrs Parry and we concluded that no offer of employment was made.  Both parties came to an assumption during the course of the interview that Ms Ogilvie would be offered a job.  We are satisfied however that that had not happened by the time that the applicant indicated to Mrs Parry that it was not for her.  The interview was concluded, therefore, by Ms Ogilvie withdrawing her application and not by her refusing an offer.  There must be something more in our view than an unspoken mutual assumption to constitute an offer."

Those are findings by the Tribunal who heard the evidence and were able to form their own view of the witnesses.  It seems to us therefore that in the light of that finding it could not be argued that the Respondents discriminated against Miss Ogilvie in the terms on which it offered her that employment because there was a clear finding by the Tribunal that no offer of employment had been made.  The fact that Mrs Parry had intended to offer such employment and even the fact that Miss Ogilvie, at any rate in the initial stages of the interview, would have been minded to accept that offer had it been made, does not seem to us to translate the mutual intentions of the two women into an offer of employment.  Until an offer of employment is made, it seems to us, that subsection 4(1)(b) does not come into play.

	Mr Alexander in the course of a succinct and, if we may say so without appearing patronising, extremely persuasive argument relied in the alternative on subsection 4(1)(a) of the Act.  He relied upon the fact, if it be a fact, and of course this was a matter the Tribunal had not resolved, that Miss Ogilvie's husband would not be permitted to drink at the Club.  This, he said, was an arrangement made by the Respondents for the purpose of determining who should be offered that employment.  He argues that the phrase "determining who should be offered that employment" postulates an earlier stage in the Respondents' thinking than the offer of the employment and therefore his client's refusal of the job does not, as in the case of sub-paragraph (b) oust the application of the subsection.  But the problem that we find in that submission is that if it was an arrangement, as to which we have some doubts it being a matter affecting not Miss Ogilvie but her husband, then that arrangement was not made for the purpose of determining who should be offered the employment because on the clear findings of the Tribunal Mrs Parry had decided to offer the Applicant the employment and it was only her withdrawal that made it impossible for the offer formally to be made.  It seems to us therefore, that whereas we have considerable sympathy for this Applicant, if her version of material events is the one which should be preferred, nevertheless we are constrained by the words of the Section, notwithstanding Mr Alexander's argument, to find against her and accordingly this appeal must be dismissed.