Appeal No. EAT/315/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 1st November 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR D J JENKINS MBE

	MISS A MACKIE OBE

MR L CHAUDHRY	APPELLANT

WILTSHIRE COUNTY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR L CHAUDHRY
(In Person)

	

	JUDGE HULL QC:  Mr Chaudhry applied for two appointments to Wiltshire County Council in 1992, and having been rejected (that is to say, not short listed even), he applied to the Industrial Tribunal which eventually sat under the Chairmanship of Mr Toomer at Bristol, and heard his complaint on the 11th November 1993 and the 25th January 1994.

	He complained that his rejection was due to race discrimination and, he said, the question for the Tribunal is "whether I was treated less favourably on racial grounds".  Mr Chaudhry is, as his name suggests, from the Indian subcontinent, and he felt that he had been treated less favourably on the grounds of his race.  He is a qualified engineer and we will go into that a little more in a few moments.  Mr Chaudhry was represented by Counsel and the Respondent local authority was represented by a solicitor, so the Tribunal had a great deal of assistance, as they were entitled to expect in the circumstances.

	If our decision is to be understood, we must refer to the Tribunal's Decision which is at page 21 onwards of our bundle, and which they promulgated on the 7th February of this year.  It appears to us to be a careful and thoughtful Decision and the best way to demonstrate what our decision is about is to read from it.  So I make no apology for reading from it at some length.  They said:

		"The issue to be determined in this case is whether the applicant has suffered unlawful discrimination at the hands of the respondent because of his race or ethnic origins.  The applicant initially alleged direct discrimination over the respondent's failure to short-list him for the post of Materials Engineer.  By an amendment during the course of the proceedings he now alleges indirect discrimination also."

Then, they say that he referred originally also to an incident when he applied for the post of Highway Engineer, but he is not going on with that.  So, they say, the evidence has effectively been restricted to the second incident, that is the application for the post of Materials Engineer.  They say that Mr Chaudhry is of Asian origin.  They mention his B.Sc degree from the University of Lahore.  He worked as Senior Research Assistant in soils and concrete on a large dam project abroad and then came to the United Kingdom where he took a Post Graduate course, which was the equivalent of an M.Sc. degree, at the University of Birmingham.  He did further work as a Soils Engineer in the United Kingdom and Nigeria, taking a further Post Graduate course in Highway Engineering at the University of Surrey. He continued to hold increasingly senior posts in soil engineering, mainly abroad, until in 1987 he set up his own Property Development Company in Manchester, and he has run that business ever since.  He has been a member of the Institute of Highways and Transportation since the late 1960s.

	Then they set out the advertisement for the post of Materials Engineer.   

		"4. ...The job involved, in summary, the running of the respondent's laboratory in which construction materials were to be tested.  The applicant made application for the post; that application arrived late but it was considered.  In the event he was not short-listed.
	
		5.  The selection criteria for the post were drawn up by Mr Johnson, the respondent's Group Manager at the time, and there were three criteria in descending order of priority, which were:  status as an Incorporated Engineer; relevant experience and experience of something called "NAMAS", which is a quality assurance scheme, nationally applied, and to the respondent had to work.  The respondent received 13 applications for the post.  Of those, 5 were from white Europeans and 8 from members of the ethnic minorities.  Four people were short-listed; all of them were white European.  The job was finally given to the candidate who had been running the laboratory for some period in the past, on an acting-up basis.

		6.  The applicant claims that his qualifications and experience were such that he should, at least, have been short-listed for this job.  That failure, particularly when it is taken in context: firstly the racial mix of the candidates and the ethnic origin of those who were subsequently short-listed; and secondly that only 4 out of about 600 employees in the Highways Department and 125 out of more than 1,500 employees in the respondent's authority overall, are members of the ethnic minorities, raises a prima facie case of discrimination and we are entitled to infer that in the absence of some reasonable explanation, to the contrary. 

		7.  The respondent's case is simple.  It said the applicant was not short-listed because, firstly, he was not of Incorporated Engineer status; secondly, his relevant experience was now very much out of date and much of it had been gained abroad where different standards and practises might well apply; and thirdly, he had no experience of NAMAS.  The applicant agrees that he was not an Incorporated Engineer, although he says that his qualifications were higher than that.  He takes issue with the respondent over the nature and extent of his experience and the relevance of his work abroad, and we have heard some considerable argument about that.  

		8.  It seems to us, however, that the issue is not whether the respondent's evaluation of his qualifications and experience was necessarily that which any other potential employer might reach in similar circumstances, but whether, in the first instance, the respondent has directly discriminated against the applicant by treating him less favourably on the grounds of his colour or ethnic or racial origin.  We are not satisfied, on a balance of probabilities, that it did.  We are of the view that the applicant was not short-listed for reasons which were connected entirely with his qualifications and his experience, and not with his colour or his race.  The claim of direct discrimination therefore fails.

		9.  Turning to the claim of indirect discrimination, the issues, it seems to us, are these.  Did the respondent apply a condition or requirement to all candidates for the post which a smaller proportion of the respondent's ethnic group could comply with than candidates from a different ethnic grouping?  If so, has the applicant suffered a detriment and can the respondent justify such a discriminatory condition if discriminatory it was?  The point which is relied upon here is the status of Incorporated Engineer.  That status was expressed in the job advertisement, and in the evidence of Mr Johnson and of Mr Eaton, who checked the short-list, as being a desirable qualification; indeed the most desirable of the criteria, but not essential.  The qualification itself is one which is conferred by the Institution of Civil Engineers.  The route to such a qualification is by the possession of a recognised academic degree, conferred by one of an approved list of educational institutions.  Such institutions are mainly, though not exclusively, within the United Kingdom, and it was clear from Mr Johnson's evidence that many qualifications conferred by overseas Universities or Colleges are not immediately acceptable, although it is possible to have such qualifications individually assessed; for individual candidates, a lengthy and possibly expensive process.

		10.  The applicant's argument is that despite what is said in the job advertisement, it is clear from Mr Johnson's evidence, and from the history, that in practice this was not simply a desirable qualification; it was a "must", and he simply could not comply with it because he was not an Incorporated Engineer.  The point is made that a white European candidate who lacked that qualification was not short-listed even though he had relevant experience.

		11.  The respondent's case is that it would have considered for short-listing candidates without such a qualification if none possessing such a qualification had applied, but as candidates who filled all, or two out of three of the desirable criteria did apply, it was not necessary to go that far.

		12.  On the evidence there are pointers in both directions, but on balance we are prepared to accept that the Incorporated Engineer status was not a "must" in that the respondent would have been prepared, very much as a second best, to consider candidates without that qualification if none with the qualification had applied.  We therefore find that it was not a condition or requirement within the Act and therefore the claim of indirect discrimination cannot stand."

	Pausing there, the Industrial Tribunal are the sole judges of fact.  It is not in any way our task to investigate their findings of fact, and when they make that finding they are on the face of it entitled to do so, having heard all the evidence and the arguments.

		"13.  If we were wrong about then we would have held that such a requirement, if such it was, would have been indirectly discriminatory in that it was clear that a smaller proportion of the applicant's ethnic group, that is persons from the Indian sub-continent educated there to first degree level, could comply with it than white Europeans education in the United Kingdom, where approved courses and educational institutions are far more numerous.  We would also have been satisfied that the applicant suffered a detriment because of this discrimination, in that he had been deprived of pursuing his application for the post.

		14.  We would also have been satisfied, however, that the respondent could justify such a requirement.  This is a highly technical area.  The respondent needs to be assured of the academic and practical competence of candidates for positions in its employment.  The requirement of Incorporated Engineer status offers a benchmark, an objective assessment of a candidate's academic and practical experience for the sort of work which the respondent wants an engineer to carry out.  Without such a benchmark the respondent would have to fall back on reliance upon other bodies such as, for example, the Institute of Highways and Transportation.  Such bodies, however, do not necessarily police applicants in the same rigid way, or necessarily insist upon academic qualifications as a pre-requisite of membership.  The alternative is to attempt to assess the value of qualifications from foreign universities with which the respondent may be unfamiliar.  In this case, we note, there were applicants with first degrees from universities in the Peoples Republic of China and the former U.S.S.R.  These may very well be wholly admirable qualifications, but the respondent can hardly know, without a lengthy investigation, whether those qualifications cover the same ground and to the same standard, as the qualifications approved by the Institution of Civil Engineers.  The fact that it might have to carry out such an exercise in some cases does not make it any less desirable that it should be able to rely upon the nationally accepted benchmark qualification whenever it can.  For those reasons we would have held, had it been necessary to do so, that the discriminatory condition or requirement could have been objectively justified by the respondent.  For all those reasons, therefore, the application must fail."

	Mr Chaudhry has appeared before us today, because this case in our list under our practice direction, is to see whether we can discover any point of law which is fairly arguable.  If we cannot, then we must not allow the Appeal to proceed. 

	So we refer first of all to Mr Chaudhry's Notice of Appeal, in which he takes three grounds.  First of all, he says:

		"No reasonable Tribunal would reach such a decision."

That is an allegation, of course, of irrationality in the legal sense.  Then in ground No. 2 he says that he was much better qualified in many ways than those who were short-listed.  He is entitled to make that assertion.  He has produced evidence to us, and apparently produced evidence to the Industrial Tribunal.  Anyway that is his averment about that, and he describes what has been done as:

		"An insult to a double post-graduate with 25 years of relevant experience, to compare him with a Technician engineer with only 3 years relevant experience [referring to one of those short-listed].  It would be just like selecting a nurse for the place of a Doctor, when a qualified Doctor was available."

Then he mentions three points in particular, I do not need to read those out.  And the fourth point in favour of his contention is that he is indeed better qualified than the short-listed candidates.

	Ground No. 3 is the lower percentage of the minority groups and he refers to the figures, some of which I have mentioned, about the small number of ethnic minority employees.  Then he seeks our leave to add a 4th ground - "The honourable Tribunal failed to consider the expert report provided to the Tribunal on 11th November in support of the Applicant".  That relates to the strength of his qualifications.  And in support of that, Mr Chaudhry, who as I say attended today, has referred us to a number of documents and made a number of contentions to us.

	He referred to the expert opinion, which he says was not mentioned; and he is right in saying that, that it was not dealt with in the Reasons.  It is the opinion of a Mr Robertson, who himself is evidently a well-qualified engineer, written on 29 October 1993 and at page 7 of our bundle.  He said that having reviewed the qualifications and given his own assessment of the matter, he thought that each of the four candidates achieved the same score.  Mr Chaudhry had a specific advantage with superior academic qualifications and a longer professional career record, and consequently, said the expert:

		"It seems unreasonable that candidates B, C and D should have been short-listed and Mr Chaudhry excluded."

	Now that document, he says, was in fact laid before the Tribunal on the first day and on the second day his Counsel made submissions to the Tribunal about it, and there was some discussion of it.  It is not mentioned, it seems to us, because it is essentially irrelevant in the sense of being improper to the Tribunal's conclusions.  It was for the employers, who were advertising, to say what criteria they thought they should apply in selecting candidates and in short-listing them.  It was not for any outsider to set up criteria and say that the employers should have adopted those criteria, should have looked at certain qualifications and considered them superior to others, or anything of that sort; it is for the employer to do that, and as long as that is done in good faith, then although it may in certain circumstances amount to indirect discrimination, which the Tribunal considered, it is not for any outsider to tell the employer what to do.  In may of course be that it will be suggested that the criteria were not arrived at in good faith, were in fact intended to have the effect of racial discrimination, and the Tribunal could, of course, consider that; but apart from that purpose, it is not up to the Tribunal to consider expert evidence about how a different view might be taken of the criteria used.

	Then he referred us to a document at page 9 of our bundle, which was apparently sent to Ms Harrison, of Counsel, from Mr Chaudhry.  That refers to certain particulars about advertisements, with qualifications required for jobs as principal engineer, materials engineer or senior engineer, comparing them with those required for the materials engineer here.  It seems to us that if Ms Harrison did not make use of this document, which she had with her papers, she was well-advised not to do so.  The Tribunal would almost certainly have told her, if she tried to introduce that document, that it really carried the matter no further.  I have already cited extensively from their Decision in which they did set out properly the matters which they had to consider.

	The burden of Mr Chaudhry's submissions to us is that he was a far better qualified person, both by his academic qualifications and by his experience, than those who were, in fact, short-listed.  That may very well be so.  It is not up to us, as a matter of law, or to the Industrial Tribunal, as the judges of fact, to say what criteria should be adopted by the local authority.  There might be an application for the job who had spent his entire life in academic circles and in advising on projects of the utmost difficulty and importance of whom it could be said that he was superbly qualified, and his degrees were better and his experience wider, throughout the world, than any candidates who were applying for this relatively middle-ranking engineering post.  And yet it could be said, quite honestly, by an employer, that this is not the sort of person we want, we are applying different criteria here, we want an engineer with certain qualifications and those are our criteria.

	Mr Chaudhry has also referred, among other things, to the job description at page 17 of our papers and he invites our attention to paragraph 6 which sets out the key tasks.  He says; look at those key tasks, and then look at the criteria which the Tribunal found the authority applied, they are not the same.  Well so be it.  The key tasks are not the same thing as the criteria.  It may very well be that the criteria may seem to a very large number of applicants to be a relatively primitive, blunt instrument, one could use that expression. They may have indeed to be arbitrary.  The question is not whether the criteria were the best that could be devised.  The question is whether there was racial discrimination in devising and applying those criteria, that is what the Respondent had to answer.

	It appears to us that this Industrial Tribunal applied its mind very faithfully to the questions which it had to consider and reached clear answers on them.  We can only interfere with the Industrial Tribunal if there is an error of law.  As I said, we are prohibited, by law, from enquiring into the facts.  It appears to us that the essence of Mr Chaudhry's complaints here are first of all, that the Authority should have adopted different criteria and that the ones which it did adopt were prejudicial to him and, secondly, that the Tribunal should have reached very different inferences from the ones that they did reach, and have held that in fact he was, whether deliberately or otherwise, discriminated against.  They had to consider that.  Those are questions of fact, very important questions of fact, for them.  And they found against him.

	It does not appear to us, having heard everything that Mr Chaudhry has said, that he has raised any point of law.  All these were conclusions which the Industrial Tribunal was entitled to reach, as questions of fact, and in spite of what Mr Chaudhry has laid before us, we cannot find here any perversity or irrationality, as it is better called, in the Decision of this Industrial Tribunal; there is no question of findings which appear to be absolutely insupportable and wrong.  It is of course perfectly true, but carries it no further, to say that they might have reached different decisions on any of these questions of fact.  No doubt they might, but the facts are for them.  And even with Mr Chaudhry's assistance, we cannot find here any error of law which would entitle us to allow the Appeal to continue any further.

	It seems to us that this was a decision which as a matter of law is not susceptible to criticism and that Mr Chaudhry, although we are grateful for his assistance, has not managed to show to us any error of law.  In those circumstances, we are bound to dismiss the Appeal at this stage, rather than ask Mr Chaudhry and of course the Council to incur all the expense of a full hearing.  So we dismiss the Appeal now.