Appeal No.	 EAT/253/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 February 1999

Before
HIS HONOUR JUDGE PETER CLARK
MISS C HOLROYD
LORD DAVIES OF COITY CBE

MR S PAL	APPELLANT

LUCAS VARITY PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS H GREWAL
(of Counsel)

ANUNAY JAH
Principal Litigation Officer
Commission for Racial Equality
Elliot House
10/12 Allington Street
London SW1E 5EH	
For the Respondent	MR A HILLIER
(of Counsel)

MR P SCHOFIELD
EEF
Broadway House
Tothill Street
London SW1H 9NO	

	HIS HONOUR JUDGE CLARK:	This is an appeal by Mr Pal against a reserved decision of an Employment Tribunal sitting at Birmingham over 6 days between 16 July and 25 October 1996, dismissing his complaint of unlawful racial discrimination brought against the Respondent, Lucas Varity Plc.  Extended reasons for that decision were promulgated on 3 January 1997.  It should be observed that the Tribunal consisted of a Chairman, Mr A J McCarry and two experienced members, Mr  Allworth and Mrs Blundell, both of whom have served as lay tribunal members for many years.

	The complaint related to the Appellant’s non-selection for the post of electric drive systems engineer (the Post) in the Electric Machines and Drives Group (the Group) being a section within the Sensors and Actuators Department (the Department) at the Respondent’s Advanced Engineering Centre at Solihull.  The Respondent manufactures electrical and electronic equipment for the Aerospace and Automotive Industries.

	The Department head was Dr Prosser.  The Senior Principal Engineer, Mr Coles, was in charge of the Group.  The Group consisted of 6 engineers, of whom 2 were of Asian racial origin.

	In July 1994 Dr Prosser wished to expand Mr Coles’ Group, which operated with an expert in each of the individual fields making up an overall drive system.  He felt it necessary to appoint someone to assist Mr Coles, both in leading the team and in strengthening liaison between team members in producing the finished article, a combined and working drive system.

	Authority for the new post having been obtained, it was advertised internally within the Lucas Group in July and August 1994.  There was no response.  Accordingly the post was advertised externally, in the  November 1994 issue of the Institute of Electrical Engineers.  The vacancy was described as:

“A superb opportunity for a graduate calibre individual with experience and expertise in the field of electric drive systems and a knowledge of Aerospace/Automotive applications - together with good project management, team work and presentation skills.”

	That advertisement attracted enquiries from 29 people including the Appellant.  He was then aged 59 and is of Indian origin.  He is an acknowledged expert in the field of brushless DC motors.  He gained a first class degree in Electrical Engineering in India and an Msc in Electrical Engineering in the UK.  A member of the Institute of Electrical Engineers and a Chartered Engineer of the Engineering Council of the UK, he had over 15 years experience working for British companies on electrical motors with industrial, automotive and aerospace applications.  He had an impressive list of technical publications.

	Of the 29 who made an initial enquiry, 20 submitted formal job applications.  A shortlist of 6, including the Appellant, was drawn up.  Of the 5 other shortlisted candidates 4 were United Kingdom whites and one was of Chinese origin.  The shortlisted candidates were invited to a “group selection day” on 9 February 1995.

	At the start of that day Dr Prosser met the candidates but then had to attend a family funeral.  It was left to Mr Coles to conduct individual interviews with candidates concerning their technical skills and experience.  Psychometric tests were conducted by Mr Muldoon from the Respondent’s personnel department.  He had received training in Equal Opportunities interviewing techniques.  Dr Prosser and Mr Coles, on the other hand, had received no training in awareness of the dangers of racial discrimination and how to avoid it in the recruitment process.  A point which the Tribunal make in their reasons.

	In addition to technical interviews and Psychometric testing, candidates were put through a Group Initiative test and personality profiling.  In their reasons, the Tribunal deal with the main points arising on each of these exercises.  We shall not repeat those matters in this judgment.

	At the end of the process, Mr Coles preferred candidate 4, with a back up choice, candidate 22.  The Appellant was not selected for the post because he was perceived as being too focused on his particular area of expertise, motor design, whilst showing weakness in the 4 other areas of technical ability forming the Group’s individual fields of expertise.  Mr Coles was also unimpressed by the Appellant’s performance in the Group test.

	He preferred candidate 4, who was white, and had recently graduated from Leeds University, a leading academic institution in the field, particularly in switched reluctance motors.  Whilst lacking industrial experience, candidate 4 was considered to have the potential to take on liaison work between team members and in the first instance would be able to engage in the control and micro processor area of the team’s work where there was felt to be a weakness.

	The Tribunal found Mr Coles to be a convincing witness.  He was cross-examined by the Appellant over 3 days of the hearing.  The Tribunal were satisfied that his final selection of candidate 4 was uninfluenced by differences of race when compared with the Appellant, whether consciously or subconsciously.

	The Tribunal approached the case, bearing in mind the well-known guidance given by Neill LJ in King v Great Britain China Centre (1991) IRLR 513, subsequently approved by the House of Lords in Zafar v Glasgow City Council  (1998) IRLR 36.  There was a difference in treatment and a difference in race between the successful candidate 4 and the Appellant.  The Tribunal  looked to the Respondent for an explanation for that different treatment.  On the whole, they accepted the explanations given; on some points they found that the explanation was inadequate.  That does not automatically lead to an inference of unlawful discrimination.  See Zafar.  In the overall circumstances of this particular case, the Tribunal declined to draw an inference adverse to the Respondent.

	In this appeal Ms Grewal has helpfully organised her submissions under 3 heads, to which Mr Hillier has likewise responded.  Having considered the rival contentions our conclusions are as follows; adopting a similar approach.

	Misconduct by the Employment Tribunal Members

	(1) Members asleep.

	In an affidavit sworn in these appeal proceedings on 31 March 1998 the Appellant contended that on the afternoons of the hearings held on 10, 12 September and 24, 25 October 1996,  2 members of the Tribunal, the Chairman and Mrs Blundell were dozing off.  Being unrepresented he did not know how to take that matter further.  No point was taken by the Appellant until after the Tribunal decision was promulgated.  He then raised it in Appendix 5 to his Notice of Appeal.

	The allegation is robustly denied by all 3 Tribunal members in their written comments on the Appellant’s affidavit.

	We have been taken to the EAT authorities of Red Bank Manufacturing Co. Limited v Meadows (1992) ICR 204 and Tchoula v Netto (EAT 1378/96) 6 March 1998 Unreported.   

	The applicable principles are:

	(1) 	that the point should be taken during the hearing.

	(2)	however, if there is clear evidence that a member or members of the Tribunal have dozed off that will give rise to an appearance that justice has not been done in the case and a rehearing will be necessary.	Whitehart v Raymond Thompson Limited (unreported) 11 September 1984.

(3)	this appeal tribunal will generally accept the account given by the Employment Tribunal members.  

	Applying those principles, we are not satisfied that the two members were failing to pay attention to the proceedings.  Accordingly we reject this ground of appeal.

	(2)	Chairman shouting at the Appellant

	It is common ground that an incident arose on the morning of 24 October, during the Appellant’s cross examination of Mr Coles, when he put a question to the witness based on what the Appellant said Mr  Coles had said earlier in cross-examination.  The Chairman took issue with the Appellant as to whether the witness had earlier said what the Appellant claimed he had said.  There is a dispute as to the context.  According to Mrs Blundell’s note, the Appellant shouted and became semi-abusive.  The Chairman raised his voice in response in order to assert his authority to rule on the point.  The hearing then moved on.

	From the descriptions of the incident, we are satisfied that the Chairman’s conduct did not extend beyond the boundaries of firm control of the hearing.  We do not accept that this isolated incident demonstrated unfair treatment of the Appellant in performing his difficult task of conducting his own case.

	What we do find unhelpful are the subsequent comments made by Mr Allworth, particularly that the Appellant had a chip on his shoulder.  Whilst we do not regard such comment as indicating a bias, or appearance of bias by that member in the course of his adjudicating on the case, and we think that the explanation is that the member was outraged by the complaints made by the Appellant in the course of this appeal, we would expect more temperate language on the part of any Tribunal member.  

	(3)	Discussing the case

	It seems that whilst still under cross-examination Mr Coles spoke on the telephone to two unsuccessful candidates, Dr Davies and Dr Chang, whose statements the Appellant had applied to put in evidence after he had closed his case.  It is unclear whether Mr Coles had received the usual warning from the Chairman not to discuss the case whilst giving evidence.  It should not have happened.  It was open to the Respondent’s representative, Mr Sawbridge, to communicate with those witnesses, if communication was felt necessary.

	However, we do not accept Ms Grewal’s submission that the Chairman’s way of dealing with this matter when raised by the Appellant demonstrated an appearance of bias, in the sense that the Chairman was prepared to let this point pass without expressing strong disapproval.  We think that the Chairman was justified in allowing the case to proceed.

	Taking these 3 complaints as a whole, we are not satisfied that they are such as to create the impression of bias on the part of the Tribunal so as to cause us to declare that the Appellant received an unfair hearing requiring a rehearing.

	Application of the King Test

	In this submission, Ms Grewal focuses on paragraph 8.1.17 of the Tribunal’s reasons where they said:

“We have come to that conclusion”, [that is that there were no sufficient grounds upon which to make inferences that there was discrimination of a subconscious nature direct or indirect. ] “Even though we recognise that, taken at face value many of the points raised by the applicant would justify us in making adverse inferences.  Indeed it is true that some of the points he made have not been adequately explained by the respondents, but, as we hope our decision makes clear, they have been in most cases, so much so that we are satisfied that it would be wrong to make any inferences from the relatively minor points outstanding.”

	Ms Grewel contends that by failing to identify which “minor points” are here referred to, the Appellant is unable to discern where the Tribunal found that the Respondent’s explanations were inadequate and thus why  no adverse inference was eventually drawn by the Tribunal.

	We think that this submission illustrates the danger of taking one part of the Tribunal’s reasons out of the matrix of the reasons as a whole.  In reply Mr Hillier has drawn attention, as he set out in paragraph 10 of his skeleton argument, to those points on which, at paragraphs 4.1.5, 5.2.4-5, 5.2.7 and 8.1.8, the Tribunal found that satisfactory explanations for the points there made by the Appellant had been given.  The only exception related to the use by Mr Coles of double exclamation marks on a document in respect of comments from the Appellant (paragraph 8.1.11).  The Tribunal found that Mr Coles’ explanation for those exclamation marks was vague. He could not really give an explanation.  That seems to be the extent of the relatively minor points mentioned in paragraph 8.1.17.  In short, we are satisfied that, overall, the Tribunal gave adequate reasons for its finding that it was not appropriate to draw an adverse inference of unlawful discrimination in this case.

	Fitting in to the culture

	Mr Coles referred to the successful candidate “fitting in” and also referred to the cultural background of candidates.  That set alarm bells ringing with the Tribunal in the context of a race discrimination case.  See the reasons paragraphs 5.2.4 and 5.2.5.

	These expressions were investigated in cross-examination and by the Tribunal Chairman.  The Tribunal concluded that these were references to candidate 4’s skills fitting into the team, not to his personal origins, compared with the Appellant.  Having been taken to the evidence given by Dr Prosser and Mr Coles on this aspect, we find that there was evidence to support that conclusion by the Tribunal.  They accepted the explanations given by those witnesses.

	Those then are the particular submissions advanced in support of the appeal.  We reject them.  Further, we have stood back and looked at the decision as a whole.  We find that it is a careful analysis of the principal factual and legal issues which arose in this case over 6 days.  We cannot fault it.  We are also quite satisfied that the Appellant, although understandably disappointed with the result, received a fair and proper hearing of his complaint.

	There are no grounds in law for interfering with this Tribunal decision.  Accordingly, the appeal must be dismissed.