Appeal No. UKEAT/0144/04/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 September 2004

Before
HER HONOUR JUDGE WAKEFIELD
MS H PITCHER
BARONESS MARGARET T PROSSER

DR D SIMBA	APPELLANT

CARDIFF COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
IN PERSON	
For the Respondent	MR D McCARTHY
(Of Counsel)
Instructed by:
Cardiff County Council Legal Services
County Hall
Atlantic Wharf
Cardiff
CF10 4UW

HER HONOUR JUDGE WAKEFIELD

1.	This is an appeal by Dr D Simba against a decision of an Employment Tribunal sitting at Cardiff by which his complaints of direct and indirect race discrimination were dismissed.

2.	Following a Preliminary Hearing at this Employment Appeal Tribunal, the sole remaining issue on the appeal is whether in relation to the complaint of direct race discrimination the Employment Tribunal correctly applied the burden of proof.

3.	The relevant facts, which are very fully set out in the Extended Reasons for the decision sent to the parties on 27 November 2003, can be briefly stated.  The Appellant applied in July 2002 for the post at Cardiff County Council of surveyor/planner within the Planning and Premises Section of the Direct Services Unit of the school section.  There were eleven other applicants and the Respondent selected three for interview including the Appellant.

4.	The interviews took place in August 2002 and another of the interviewed candidates was successful.  The Appellant asked for reasons for the lack of success in his application and was sent a letter dated 13 August 2002 containing what the letter described as ‘feedback of your interview’.

5.	In his Originating Application containing complaints both of direct and indirect race discrimination the Appellant asserted that he had been shown to be the best candidate in interview and that the failure of the Respondent to appoint him was discriminatory.  Having set out in the Extended Reasons their findings of fact as to the assessments made of and the markings given to the Appellant and to the successful candidate under eight heads by the interview panel, these findings in part determined by the Employment Tribunal’s views of the creditability of the members of that panel and of the Appellant on contested aspects, the Tribunal then summarised the submissions of the parties and set out the provisions of law both as regards statute and the relevant cases.

6.	In paragraphs 66 and 67 of the Extended Reasons it is stated that the Race Relations Act 1976 (Amendment) Regulations 2003 are applied including as to the burden of proof in Regulation 41 which inserts the new Section 54(A) into the 1976 Act with effect from 19 July 2003.  By sub-paragraph 2 of the new Section 54(A) it is provided that:

“(2)  where, on hearing of the complaint, the complainant proves facts from which the Tribunal could apart from this Section conclude in the absence of an adequate explanation that the Respondent (a) has committed such an act of discrimination or harassment against the complainant, the Tribunal shall uphold the complaint unless the Respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”

7.	The Employment Tribunal then concluded in its paragraphs 72-76 that there had been no act of direct discrimination:

72   Turning to the question of direct discrimination we acknowledge that the Applicant has been treated less favourably in that he was overall given B grading as opposed to an A grading in four questions and that in questions l, 3 and 6 he was marked below Mr Gapper.  On question 4 and question 10 he gained A's as opposed to Mr Gapper's B's.  Mr Gapper of course is white and Dr Simba is black.  We look at the whole course of treatment of the Applicant.  The primary facts of the case should appear to point to race discrimination. We look to indicia that might point to racial bias or the opposite.  Firstly we note that the bias claimed to be shown towards the successful candidate has not been afforded to him in the past in an earlier application before Mrs Langford.  Further Mrs Langford gave the benefit of what she thought was a doubt in two aspects of Dr Simba's application namely a qualification and his presentation within the time limit.  These doubts were held perhaps incorrectly but certainly genuinely.  The evidence of Mr Lawrence Pires gives no hint of prejudice, the opposite in fact is the case, at least insofar as conscious or overt actions or thoughts are concerned.  Mr Pires evidence appears to be reflected in the credibility of Mrs Langford and Mr Copner in whom we were unable to detect any actions or words (save as follows below) which would seem to indicate and underline racial bias.  Further it is the case that Dr Simba was placed on reserve. We do not think that it was a wholly fanciful situation that Mr Gapper might have been withdrawn in which case Dr Simba on the assessment of the interview panel would have obtained the position. 
73   We have considered the phrase in the letter sent by Mrs Langford confirmed in her evidence that there was a belief that Dr Simba would not have easily adapted to the duties.  We think that they were entitled to hold these reservations given their view of Dr Simba as a person who impressed them (as a highly qualified architect) with drawings of a project much greater than the norm for their unit. 
74   Dr Simba's concern that the panel was too incompetent to recognize his superior qualifications and experience should have gained him a higher mark at least on the first question has been explained. The minimum qualification was an HND a degree in sur:veying had its own special relevance to the job in hand. 
75   Dr Simba has concern that his comprehensive answers incorporated the models provided but were simply not understood as doing that by the interviewers.  Whilst his knowledge in particular on the construction design and management regulations is acknowledged their explanation of a wish for relevant detail, the absence of which was supported by their notes indicates to us the genuineness of their actions and explanations.  Further it would appear that if such incompetence had resulted in less favourable treatment then it would be on the basis of their lack of knowledge and not on the basis of race. 
76   Dealing with the reference of Mr Gapper by Mr Copner, even if we were not satisfied  with the explanation given, which we are, we would not have been prepared to draw any adverse inference because Mr Gasper’s actions were entirely transparent and we do not ignore in this context the evidence of Mr Copner himself about his social work and religious beliefs nor that of Mrs Langford who holds devout Christian views about equality or the evidence of Mr Pires as referred to before in relation to Mr Copner's actions and views about race. 

8.	In lengthy written and oral submissions before us today the Appellant has argued that the Employment Tribunal too readily accepted the explanations given to them in evidence by the Respondent as to the lower markings of the Appellant on some questions than those given to the successful candidate, explanations which he challenges as not objectively sustainable and therefore inadequate to discharge the burden of proof on the Respondent to show a non-discriminatory reason for the less favourable treatment.

9.	The Appellant has referred us to the case of Barton v Investec Henderson Crosswaithe Securities Ltd [2003] IRLR 332.  This was a decision given in this Employment Appeal Tribunal on 3 April 2003.  Barton was a case involving sex discrimination but both parties before us accept, and we entirely agree, that analogous principles apply where race discrimination is the issue.  At paragraph 25 of Barton the Employment Tribunal said this:

“25   We therefore consider it necessary to set out fresh guidance in the light of the statutory changes: 
(1) Pursuant to section 63A of the Sex Discrimination Act 1975, [and that is the equivalent provision to the one we are dealing with here] it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant which is unlawful by virtue of Part 2 or which by virtue of section 41 or 42 SDA is to be treated as having been committed against the Applicant.  These are referred to below as “such facts”
(2) If the Applicant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the Applicant has proved such facts that it is unusual to find direct evidence of sex discrimination.  Few employers would be prepared to admit such discrimination, even to themselves.  In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in". 
(4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. 
(5) It is important to note the word is "could".  At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination.  At this stage a Tribunal is looking at the primary facts proved by the Applicant to see what inferences of secondary fact could be drawn from them. 
(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the Disability Discrimination Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of that Act.
(7) Likewise, the 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 56A(10) SDA.  This means that inferences may also be drawn from any failure to comply with any relevant code of practice. 
(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent. 
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act. 
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive. 
(II) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question. 
(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof.  In particular the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.” 

10.	Therefore, under the Regulations, once a prima facie case has been established of less favourable treatment as the Employment Tribunal here found in the differential marking, the onus shifted to the Respondent to prove on the balance of probabilities that it did not commit an act of discrimination, that is that the reason for the difference was not related to the Appellant’s race.  If the onus is not discharged then the Tribunal shall, that is must, find that there was unlawful discrimination.
 
11.	We are clear that this is the process through which this Employment Tribunal went in their careful analysis of the reasons given by the Respondent for each case of differential marking.  The Tribunal carefully explained why they accepted those explanations.  They did not do so merely because that was the evidence given on behalf of the Respondent.  Each explanation was considered in detail and evaluated.  In each case the Tribunal was clearly satisfied that the onus of proving on the balance of probabilities a non-discriminatory reason had been discharged.

12.	We have not been persuaded that the Employment Tribunal fell into error in the application of the burden of proof.  The appeal is therefore dismissed.