Appeal No.	EAT/1156/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 2001

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MRS R CHAPMAN
MR A D TUFFIN CBE

MRS KULARATNE	APPELLANT

HORIZON NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR T U COORAY
(Of Counsel)
Messrs Pat & Co Solicitors
77 College Road
London
NW10 5ES	

MR JUSTICE MAURICE KAY
1.	This is a preliminary hearing of an appeal against a decision of an Employment Tribunal sitting at London (Central). The decision was that the Appellant’s claim of race discrimination failed and was dismissed. Her complaint to the Employment Tribunal was to the effect that she had been the victim of race discrimination, in that a person appointed to the position of Team Manager-Day Services, Ms Anna MacFarlane, had been appointed in a discriminatory manner. Ms MacFarlane is a white British woman, the Appellant is Malaysian. The Appellant complained about the procedure that had led to that decision and alleged that it had been deliberately engineered so as to ensure that Ms MacFarlane got the job. 

2.	The background to the case is that the Respondent is a NHS Trust providing care to people with learning disabilities. Prior to the events which gave rise to the problems which were before the Employment Tribunal, the Appellant had been working for the Respondent as a manager of two units. There were two other people working at the same level, namely Ms MacFarlane and a Mr Pointu. They were all, in one way or another, managers of centres providing day services for in-patients of Harperbury Hospital. 

3.	As a result of a change in government policy resulting in what came to be known as ‘Care in the Community’, there was to be a contraction of the units operated by the Respondent, reducing them from five to two. The implication of this was that there would only be room for one Team Manager for Day Services. It was in relation to those developments that the selection procedure, which resulted in Ms MacFarlane being appointed to that position, and the Appellant and Mr Pointu not being appointed, took place. 

4.	The procedure included stages of which the candidates filled out an Expression of Interest Form indicating positions in which they were interested, and responding to a request for information about their relevant training over the previous three years. There was then a Discussion Panel Meeting in relation to the candidates in question. 

5.	The three candidates in relation to the Team Manager-Day Services were interviewed by a panel on 26th and 29th November 1999. In the event, the Appellant finished a close second to Ms MacFarlane. She asked for a review internally, as she was entitled to do. A review took place on 7th January 2000 but that was unsuccessful. She later filed a complaint to the Employment Tribunal. The Employment Tribunal summarised her complaints under three headings. First, that she contended that her qualifications were far superior to the other two candidates. Secondly, she asserted that the procedure had been designed to obscure her qualifications and experience and she was critical of the procedure and the involvement in it of Mr Trewin, her line manager, who she said was not competent to assess her. Thirdly, she alleged that the whole exercise was a “put up job”, the Respondent having previously decided to appoint Ms MacFarlane. In effect she was alleging that that process was a dishonest sham. 

6.	In the event, the Employment Tribunal did not accept any of those allegations and came to the conclusion that the appointment of Ms MacFarlane had nothing to do with race discrimination. In support of the appeal to this Employment Appeal Tribunal, Mr Cooray has addressed us in considerable detail and with great thoroughness in relation to the points which are said to support an appeal. At the outset of his submissions we asked him whether he accepted the statement of the law in the decision of the Employment Tribunal as being an accurate one. His initial response was that it was an insufficient one and did not do justice to the decision of the Court of Appeal in Anya v University of Oxford [2001] IRLR 377, and in particular the part of Sedley LJ’s judgment where he said 

“the single question was therefore whether the Appellant’s race played any significant role in the choice”. 

7.	It is abundantly clear that the way in which the Employment Tribunal articulated its decision in this case concluding that 

“race played no part at all in either the process or the decision” 

was consistent with Sedley LJ’s formulation. We are entirely satisfied that the Employment Tribunal did not misdirect itself in any way as to the law. 

8.	The main grounds of appeal in this case do not relate to the statement of law, they are, in one way or another, assertions to the effect that the Employment Tribunal’s decision was perverse and did not accord with the evidence. Mr Cooray has carefully taken us through a number of headings where he has sought to make good that submission. 

9.	He began with a submission to the effect that the selection procedure was not devised with the express consent of the Appellant or the Royal College of Nursing of which she is a member. It seems that the RCN representative, whilst present at one of the relevant previous meetings, had sent his apologies for one or more of the others. There is some suggestion that somebody from one of the other unions may have been acting as the RCN agent on at least one occasion. 

10.	So far as the complaint that the procedure had not been approved by the RCN is concerned, in our judgment there is absolutely nothing in that which could sustain an appeal to this Tribunal. There is no evidence that the RCN, through its officers, had taken any objection to the procedure, nor had put in any written observations, on the occasions when the representative was absent, taking issue with what transpired either before the particular meetings, or indeed after them, and before the procedure was implemented. Quite simply, this point is, in our judgment, a complete non-starter. 

11.	The first of the specific criticisms of the procedure, once it was underway, was that it was unfair because by limiting the required details of the qualifications and training to the previous two or three years, that operated against the interests of the Appellant as she had a much longer history of relevant qualifications and training than did the other candidates, and particularly Ms MacFarlane, who in the end was the successful candidate. 

12.	It is abundantly plain that the Employment Tribunal had that point well in mind. It is specifically referred to paragraph 4(2) of the decision. In our judgment, it is not arguable that that cut-off point can provide the basis of a ground of appeal seeking to attack the fairness of the procedure or the integrity of the conclusion that was reached. Mr Cooray made some ancillary points in relation to that aspect of the case, we hope he will forgive us if we don’t go into them in greater detail in the course of the judgment on a preliminary hearing, in a long list before us today. 

13.	Next it was submitted that the competency test, on which the discussion panel in part based its decision, had been designed by Mr Trewin and it was suggested that he lacked the competence himself to set such a test as he is not a nurse. It is further suggested that in setting it, it has to be borne in mind that he is a manger who, on a previous occasion, had promoted Ms MacFarlane, without resort to advertisement, to the position which she was holding at the time of these events. 

14.	Plainly Mr Trewin was in a position which enabled him to assess the Appellant. He was, as we have indictaed, her line manager. We have seen from the bundle that was before the Tribunal his work history and qualifications. It often happens that people making managerial decisions do not have precisely the qualifications or experience of the post which they are seeking to fill. It also happens, of course, that where a panel is involved, they bring different types of experience to the task. We do not consider that there is an arguable ground of appeal based on the history or background or position of Mr Trewin. 

15.	The next ground of appeal relates to the scoring of the candidates by the panel. We do not need to go into this in detail. We have looked at the documents to which Mr Cooray helpfully referred us and in our judgment, there is nothing of substance in the submissions that are made under this heading. There was a side-issue on scoring and assessment which criticised the panel for asking Ms MacFarlane questions about the Mental Health Act, a subject which was not asked of the other candidates who were asked about the issue of consent, about which Ms MacFarlane was not asked. That was clearly a stark issue before the Employment Tribunal. It expressed itself as follows in its decision 

“However, we are satisfied that a) this difference arose by accident and b)that it was immaterial to the Discussion Panel’s consideration of the various applicants and did not disadvantage Mrs Kularatne in any way.” 

In the face of those specific findings which, in our judgment, are not arguably perverse, there is nothing in this aspect of the proposed appeal. 

16.	The ground of appeal which we examined with particular care, following Mr Cooray’s submissions, was a ground directed at the structure of the panel. It is a fact that the panel sat on two days, interviewing Ms MacFarlane on one day and the other two candidates three days later. There was a logistical reason for that. There was then an issue, and an understandable issue, as to the personal composition of the panel involving issues as to who was there, how many people were there and what their roles were. Undoubtedly Mr Cooray was able to point to inconsistencies in the accounts of the Respondent witnesses, both as to the number of people present and as to precisely who they were on at least one occasion. He was also able to point to some ambiguity as to whether two of the Respondent’s staff from the Human Resources discipline were, as it were, executive members of the panel or simply observers. 

17.	We repeat in relation to all these matters there is some inconsistency in the evidence of the Respondent’s witnesses and in the documentation. That inconsistency can properly be said to embrace some ambiguity in the accounts given as to the scoring process. The Employment Tribunal, although it was no doubt in receipt of submissions pointing to these inconsistencies, made specific findings about the composition. It said 

“The Panel Members were Mr Freeman, Chief Executive, Ms Marwick, Director of Nursing, and Mr Soophul, Directorate Manager of Specialist Residential Services. It is to be noted that Mr Soophul is of Mauritian, non-white origin” 

18.	Clearly the Employment Tribunal had been invited, just as we are being invited, to draw an inference from the inconsistencies to which we have referred, such inference being adverse to the Respondent in the assessment of its explanations for what had gone on, and moving on from there, indicative of a degree of discrimination in accordance with the authorities. It is abundantly clear that the Employment Tribunal, mindful of those authorities, and no doubt cognisant of the inconsistencies, came to the conclusion that it was not appropriate to draw an adverse inference.

19.	Against that finding it seems to us it is not possible to mount an arguable ground of appeal directed to the criticisms of the structure of the panel. The conclusion of the Employment Tribunal was expressed in this way 

“It follows from our findings that this Tribunal, whilst accepting that of course the Appellant was treated less favourably than Ms MacFarlane in that she was not appointed to the position of Team Manager-Day Services whereas Ms MacFarlane was, and whilst of course accepting that there was a difference of race between Ms MacFarlane and the Applicant, is not satisfied that the treatment of the Applicant was on racial grounds. Indeed, we are quite satisfied on the evidence that we have heard that the appointment of Ms MacFarlane was an appointment purely on the merits as a result of a fair procedure and that race played no part at all in either the process or the decision.” 

20.	That, in our judgment, is a clear finding that the Employment Tribunal was not minded to draw an inference of discrimination. In our judgment, it is not arguable that that finding was perverse. 

21.	Before we leave that subject we observe that following the findings of the panel, there was a review requested by the Appellant. No criticism is made of the composition of the Review Panel, at least no particularised criticism is so made. That Review Panel concluded that the previous panel had approached the matter properly. The Employment Tribunal, in its turn, was satisfied that the Review Panel had carried out a full and fair hearing of all the issues raised, had dealt with it in an independent way and had produced a fair and balanced decision on the evidence before it. It appears that it was in the nature of a review rather than of a re-hearing. 

22.	Significantly the Employment Tribunal found, and it is not disputed, that at no point, up to and including the holding of the review hearing, had the Appellant ever alleged that there was any race discrimination in the panel’s decision or the process of appointment. Indeed she had been specifically asked by the Review Panel whether she wished to raise any equal opportunities points in relation to the appointment and she said that she did not. It follows from what we have said that the substantive criticisms of the decision of the Employment Tribunal are, in our judgment, without substance and they are not arguable. 

23.	There is one final point to which we should refer. Mr Cooray raised it as the end of his submissions. It appears that when the Employment Tribunal hearing took place, it was pursuant to a three-day listing commencing on 27th March 2001. On that occasion, Counsel who had been instructed to attend on behalf of the Appellant, was unavailable and another member of the Bar attended at short notice. He submitted to the Tribunal that he had had inadequate time to prepare for a complicated hearing and in effect applied for an adjournment. It seems that he informed the Tribunal that he had accepted the brief on the basis that if no adjournment were granted, then he too would withdraw, although in the event that is not what happened. To cut a long story short what happened on the day was that the Tribunal agreed to adjourn the matter to the following day to enable the replacement Counsel to do further work on the case. He had, by that time, had the brief for some days including a weekend in the course of which apparently he was unavailable to continue with his preparation. 

24.	The hearing then proceeded on the second and third days that had been set aside for it, following the adjournment from the first morning, and was adjourned further until a date in June. The Employment Tribunal gave lengthy reasons for the exercise of discretion which was a refusal of a longer adjournment. That refusal is now the subject of a ground of appeal before this Employment Appeal Tribunal. 

25.	We take the view that the exercise of discretion in refusing a longer adjournment was closely reasoned, and we are wholly unable to say that it gives rise to an arguable ground of appeal. Like the Employment Tribunal below, we tend to look with disfavour on the relatively late withdrawal of Counsel originally instructed. We do not know all the circumstances and it is inappropriate for us to say more, but to the extent that we have to consider whether the decision in relation to adjournment was a perverse or irrational decision, or arguably so, we come to the clear conclusion that it was not. 

26.	At the end of the day, this case was one in which the Employment Tribunal had to consider whether race had played any part in Ms MacFarlane’s success and the Appellant’s failure to obtain a post for which they were rivals. In our judgment, having carefully examined the decision that was made, and the submissions that have been made to us, we cannot find any arguable ground of appeal and therefore the appeal is dismissed at this stage.