Appeal No. UKEAT/0121/05/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2005

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MRS A GALLICO
MR G H WRIGHT MBE

MR I RICHARDSON	APPELLANT

		

CROWN PROSECUTION SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant 

	MR I RICHARDSON
(The Appellant in Person)	
For the Respondent 	MR A EDWARDS
(of Counsel)
Instructed by:
Messrs DLA LLP
Solicitors
3 Noble Street
London EC2V 7EE	

SUMMARY

Sex Discrimination – Burden of Proof

Employment Tribunal found the selection process to be inadequate, but that the Claimant (male) would not have made the short list in any event, by reference to matter neither evidenced nor argued before it (and which itself would have needed to be examined in the context of the inadequate process), and that the burden to give explanation did not transfer to the Respondent. Wrong approach to s63A and/or perversity.

.  
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of an appeal against the Decision of the Employment Tribunal in Leeds, after a hearing on 10-12 November 2004, by a Judgment sent to the parties on 17 January 2005, by which the claim by Mr Richardson, the Claimant, against the Respondent, the Crown Prosecution Service, by whom he remains employed, for sex discrimination was dismissed.

2.	Mr Richardson being a lawyer, although naturally a criminal lawyer, has acted on his own behalf both before the Tribunal and before us, and has done so, certainly before us, primarily in written submissions which, although very lengthy, contained sufficient nuggets for us to be able, in the event, not to call on him for any oral supplementation.

3.	The Respondent has been represented both below and before us by Mr Edwards of Counsel, who has ably argued their case in the face of a considerable amount of interrogation from this Tribunal.  

4.	The circumstances which led to the claim for discrimination related to an application for consideration for promotion by the Claimant and others, in pursuance of an advertisement for Level E lawyers, which Casework Directorate placed, it seems, in October 2003 in an in-house document.  That document read as follows:
“Vacancies will shortly be arising for Level E lawyers within Casework Directorate based at Ladywood House, Birmingham and United House, York. Applications from suitably qualified lawyers are invited for these posts.  The Casework Directorate deals with serious, complex and voluminous cases.  The cases include deaths in police and prison custody, fraud, terrorism, organised crime, serious police complaints, medical and corporate manslaughter. Some of our work also has an international dimension including extradition and assisting CPS areas to obtain evidence from aboard using letters of request”.

5.	The main duties of the job were set out in a number of bullet points, the first of which was “advising on directing and prosecuting specialist, complex, serious casework across the full range of cases handled by the Casework Directorate”. The competencies which were looked for by the panel which was going to consider promotion were eight. They are expressed as requiring in each case a standard: either standard 3 or standard 4. There has not been put before us, although we are told that there was before the Tribunal, a description of what the relevant standard involved, but the difference between requirement of standard 3 and standard 4 is, we are told, simply arising out of the fact that some competencies only have for this purpose three rather than four standards, and not because an inferior standard is, in some way, expected. Those eight competencies are as follows:
(i)	Leadership – Standard 4
(ii)	Diversity awareness and management- Standard 3
(iii)	Achieving results – Standard 4
(iv)	Planning and Organising – Standard 4
(v)	Communication and negotiation – Standard 4
(vi)	Continuous self-development – Standard 3
(vii)	Reasoning and decision making – Standard 4
(viii)	Specialised skills and knowledge – Standard 3

The document continued:
“Applicants are expected to illustrate on their application form how they have demonstrated all eight competencies. Successful candidates will have qualified as a solicitor or a barrister and will be able to operate at the highest standard across the full range of core competencies. The competencies marked with an asterisk will be tested further at interview”.

6.	The five competencies that were asterisked were (ii) diversity awareness and management, (iii) achieving results, (iv) planning and organising, (v) communication and negotiation and (viii) specialised skills and knowledge. The document finally concluded, so far as material to our consideration 

“Candidates who are invited to interview will be asked to demonstrate their knowledge of one of the areas of work routinely undertaken by the Directorate, by making a short presentation to the panel, no more than five minutes on a topic of their choice. They will be expected to show a clear understanding of the relevant statute and case law, including any recent developments (disclosure, human rights legislation, etc) and may choose to demonstrate their knowledge by reference to one or more cases they have dealt with”.

7.	What occurred is described by the Tribunal in its Judgment. There was a sift carried out, which sought to cut down from the 26 applications that were received into a shorter list for interview, and, in the event, nine were selected for interview, and on 18 December 2003, the panel completed its interviews and appointed three people. Of those three, one was a Miss Helen Allen and one was a Miss Sheelagh Morton. In the meantime, there was the opportunity for an appeal against the carrying out of the sifting, and this opportunity was taken up by two of the candidates who had been refused a place on the shortlist. They were, importantly for the purposes of our consideration, the Claimant and Miss Sheelagh Morton. It seems that, on the original sift, Miss Morton obtained the following result, that in respect of six of the categories she scored “evidence” and in respect of two categories, she scored “weak evidence”. We are not told which of the eight categories were the two in respect of which she obtained “weak evidence”. There were four grades: no evidence, weak evidence, evidence and strong evidence. As can be seen, Miss Morton obtained “strong evidence” in none of the categories. By way of comparison, we are told that Miss Allen, who went through on the sift and was one, together with Miss Morton, of those three who were eventually appointed, had scored “strong evidence” in respect of five categories and “evidence” in respect of three.  

8.	So far as the Claimant is concerned, he scored “evidence” in four categories and “weak evidence” in four categories: although the Tribunal notes that in the scoring undertaken on the sift by one of the two markers, Miss Taylor (the other being a Mr Crowley), the Claimant had, in fact, scored “no evidence” in respect of the category which is described by way of shorthand by the Tribunal as “diversity awareness” but, in fact, is properly described as “diversity awareness and management”.  

9.	The Tribunal does not indicate what the result of scoring less than eight “evidences” is or was. Certainly, we have quoted the passage in the advertisement which indicated that the applicants are expected to illustrate on their application form how they have demonstrated all eight competencies. The Claimant, in his Skeleton Argument before us, asserted, and Mr Edwards has, before us, confirmed, that was looked for at the sift stage was at least “evidence” in all eight but this is, as we have indicated, not something that is mentioned, never mind made clear, by the Tribunal in its Judgment.

10.	On the face of a requirement for eight “evidences”, if such there was, neither Sheelagh Morton nor the Claimant would have been able to go forward to the full interview. As we have indicated, both of them appealed. On that appeal, which was carried out by a Miss Clark, on paper, Miss Morton’s markings were corrected by Miss Clark, so that she ended up with the two categories originally marked as “weak evidence” being converted into “evidence”. However, the Claimant’s markings were not corrected at all, and on that basis he remained as four “evidence” and four “weak evidence”. He therefore did not go through to the interview, and, consequently, was not appointed. His claim is that the entire interview system was carried out discriminatorily, that is by way of unfavourable treatment of him, compared with named women: alternatively, that, in any event, the appeal against the sift marking was itself discriminatory. So far as the attack on the whole system was concerned, he named as comparators Miss Allen and Miss Morton, and there was to be a third woman named by the Respondent who, it appears, also went through to the interview process. She does not feature at all in the Tribunal’s judgment. It does not appear that much, if anything, was made in relation to her position at the hearing, and we have not considered her position before us.  In relation to the alternative case with regard to the unfavourable treatment in respect of the sift appeal, there of course the only comparator was Sheelagh Morton.  

11.	The Tribunal made a very critical conclusion in respect of both the entire system and, in particular, the sift appeal.  So far as the entire system is concerned, the Tribunal said this as paragraph 25:

“It is not proposed in this decision to go into a detailed analysis of all the categories of competence in respect of all of the individuals applying. We considered the Claimant's application form and considered that the marking of "Weak Evidence" was a harsh marking in respect of "leadership", "achieving results" and "continuous self-development". Given the unsatisfactory nature of the whole operation and the dubious distinction between Evidence and Weak Evidence we considered that the Claimant should on any reasonable interpretation have been entitled to be categorised as having demonstrated Evidence in respect of those three criteria”.
31
That, of course, is not only a criticism of the particular sift appeal by the Claimant and the way it was handled by Miss Clark, but an attack on the entire system, for the reasons the Tribunal there gives. There was also a further criticism of the system, to which we do not need to refer, in paragraph 26 of the Tribunal’s judgment. The Tribunal addressed the appeal of the Claimant before Miss Clark specifically in paragraph 31 of the judgment. 
“Turning to the Claimant's appeal against the sift decision we heard evidence from Adele Clark. She is an Area Business Manager with a job graded at Level E. The curious feature of her evidence is that in justifying the action that she took on the appeal she referred to the Claimant having been marked as showing Weak Evidence in respect of five of the competencies. It is clear however from the applications log agreed by Mr Crowley and Miss Taylor that the Claimant was marked as having Weak Evidence in only four. Miss Clark has referred to him as showing Weak Evidence in the context of communication and negotiation which accords with Mr Crowley's draft applications log but not with that agreed at the conclusion of the sift. Miss Clark proved her witness statement and it appears that neither she nor the representatives for the Crown Prosecution Service were aware of this fatal error to her evidence at the time she took the oath and from that inauspicious beginning her testimony failed to convince in any significant respect. She took no steps to ascertain why a third member of the panel had not been available for this sift and merely relied on the fact that the Civil Service habitually operate in defiance of written procedure in this context. Further she does not appear to have addressed in any serious way the claimant's concerns regarding his application in comparison with earlier applications which he had made nor does she appear to have considered his overall criticism that the process was unfair by taking into consideration the strength of the field of claimants and the overall level required. It is possible to sympathise with her in this in the sense that the sift report prepared by Mr Crowley refers to it being a highly competitive board and the fundamental issue whether the standard was higher for this board than other boards and was not addressed either in the sift or in the appeal. This appears inconsistent when operating in what is said to be an "evidence based assessment of core competencies" whatever that may mean. A clear policy is not demonstrated in this context”.

12.	There was therefore, for the purposes of this Tribunal, a series of critical findings by the Tribunal against the Respondent: first relating to the whole system and the method of marking by reference to, in particular, the blurred distinction between “evidence” and “weak evidence”; secondly, with regard to the appeal, a clear and very strong criticism of Miss Clark which resulted from Miss Clark’s failing to reconsider at least three of the marks which the Tribunal clearly thought she should have considered, misappreciating whether, in fact, there had been five rather than four “no evidences”: while not comparing the fact that, while rejecting the Claimant’s appeal, the same person (Miss Clark) had allowed Miss Morton’s appeal.  

13.	This is not a case in which it is suggested by the Tribunal that there was some fatal flaw or some fatal lack of qualification in relation to the Claimant, e.g. some factor, such as that, contrary to the requirement for the job, he was not a lawyer, either a barrister or a solicitor, or something of that kind. This is a case which depended entirely upon the process, the sift, and the appeal against the sift and, of course, in due course, had the Claimant been given an opportunity to attend for an interview, the interview itself.  

14.	There was plainly unfavourable treatment of the Claimant on the basis of the findings by the Tribunal and on the face of it, it was less favourable than that given to those who were allowed through to the interview, including of course the successful applicants, Miss Allen and Miss Morton but, in particular, it was less favourable than the treatment given to Miss Morton who had her sift appeal allowed, albeit by the incompetent Miss Clark on the findings of the Tribunal, whereas this Claimant’s appeal was not allowed.

15.	The law is set out by the Tribunal in a “Concise Statement of the Law” as it is described, being Section C of the judgment, between paragraphs 33 and 35. In particular, of course, there is specific reference to Section 63A of the Sex Discrimination Act 1975 (“SDA”), providing that where the complainant proves facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination which is unlawful, the tribunal shall uphold the complaint unless the respondent proves that he did not commit that act. There is also reference to the Barton guidelines, as they stood at the time of this Tribunal hearing, although they have been, to an extent, redrafted subsequently by the Court of Appeal in Igen Limited v Wong [2005] ICR 931, although not in any respect material to this appeal. The Tribunal recites that 
“under guideline one, it is for the applicant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of explanation, that the respondents have committed an act of discrimination. Guidance set out in the guidelines deals with the importance of the word “could” and the mechanism by which the burden shifts and the point at which the respondent is required to provide an explanation for consideration.”

16.	It is quite plain, so far as the submissions we have heard from the advocates before us are concerned, that, on the one hand, the authority of Barclays Bank v Kapur [1995] IRLR 87 and, indeed, Law Society v Bahl [2004] IRLR 789, establishes that is it not enough if an employer acts unreasonably, unfairly, incompetently, or even maliciously for that to amount to discrimination. Indeed, it may act as an explanation why the treatment was not discriminatory, if there were other motives or if there was simple incompetence. 

17.	On the other hand, Mr Richardson has used as part of his argument the fact that an applicant for a job of this kind may have some kind of right to go through, provided that he satisfies the competencies. We suspect that that argument has come forward by reference to what the Tribunal sets out in paragraph 39 of its judgment which Mr Edwards himself has described, in the course of argument, as inopportune, perhaps inappropriate, namely 
“In order to satisfy stage 1 of the test in Barton, in other words to demonstrate the facts from which inferences could be drawn that the respondents treated the applicant less favourably, the claimant must show that his application was in all material respects sufficiently well founded to enable him to past the sift”. 
We do not agree with that proposition but equally, we do not agree with the counter-proposition by Mr Richardson, to which we have referred. It is plain that the well known and often repeated words of Neill LJ in King v Britain China Centre [1992] ICR 516 at 528-9 still apply, namely:
“There will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds”
and Neill LJ of course then continues:
“A finding of discrimination and a finding of difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation”
and, of course, those words anticipated and now subsequently form the basis of s63A of the SDA, to which we have referred. 

18.	Given the critical findings by the Tribunal, which appear to us to be perfectly understandable on the evidence that it describes, it is, at any rate until we come to paragraphs 40 and 41, unclear why this Tribunal was not satisfied that there was evidence from which the necessary inference could be drawn such as to shift the burden of proof. Mr Edwards has sought to submit to us, perfectly understandably attempting not to have to rely on the contents of paragraph 40 and 41 to which we shall come, that there is a way of reading the Judgment which enables a conclusion to be reached that the Tribunal had its own good reason for not drawing the inference under the SDA, by reference to its having considered the position carefully and set out matters, in particular paragraph 25, by way of criticism of the Respondent, and yet not shifted the onus. But it appears quite clear to us that, on any reading of this Judgment, a) reasons were required for that conclusion; b) those reasons were given in paragraph 40 and 41. 

19.	The very fact of the inappropriateness of the conclusions to which we now turn in those paragraphs may itself be caused by the inapposite or inappropriate or inopportune passage from which we have already quoted, which immediately preceded them, at the end of paragraph 39. The Tribunal says as follows:

“40.	 The claimant failed at this point [that is following on from the sentence at the end of paragraph 39 to which we have referred]. Miss Taylor  [that is one of the sifting parties to whom we have referred] clearly considered that the claimant had demonstrated no evidence in relation to diversity awareness in the manner in which his form was completed. We agree with her analysis. The comparators clearly demonstrated evidence in that context. The claimant failed to demonstrate that his application in this most important respect deserved the same consideration as that to which the other applicants for the post including his female comparators were entitled. In our judgment while the claimant might feel the treatment he has received from the respondent was not ideal, he must demonstrate as the starting point that he satisfied the criteria in relation to competence.
41.	We appreciate that there are many ways in which an application form may be completed. A person who has been in the post for many years may consider that it is important to set out details of their life history or particular cases of interest. Someone who has more recently come to the task and feels the challenge more acutely may adopt an entirely different approach. However diversity awareness is a key competence in all fields of public work and particularly in a prosecuting authority. An applicant for a post who manifestly fails to demonstrate that quality is not in a position to indicate that others have been preferred on the grounds of sex when they have demonstrated that quality. This is true notwithstanding the manner in which other competencies were scored” 
and they conclude this passage in paragraph 42 by saying:
“We therefore concluded that the claimant was not treated less favourably by the members of the sift panel than Sheelagh Morton and Helena Allen on the grounds of his sex”.

20.	On the face of it, therefore, they rule out any inference of unfavourable treatment or, at any rate, there having plainly been unfavourable treatment in the simplistic sense that he did not go through and they did, any inference of any such less favourable treatment being on discriminatory grounds, without following the requirements of s63A. The only basis in which that could be justifiable would be if the Tribunal concluded, although they make no reference to it, that this was such a case as was referred to by Neill LJ in the passage to which we have referred; the kind of situation in which the Claimant could not have qualified for an interview anyway because he was manifestly disentitled or ineligible. That alone could have been the basis of the Tribunal’s conclusion in paragraphs 40 and 41, in our judgment. 

21.	In his Skeleton Argument, Mr Richardson said this at paragraph 63:  
“These comments demonstrate a significance accorded to one particular competency above the other seven (that of diversity awareness and management) that was not claimed even by the Respondent.” 
We have already cited page 52 of the bundle, namely the document setting out the requirements, and diversity awareness and management was only one of eight competencies. 

22.	Mr Edwards sought to indicate that there might be some significance drawn from the fact that it was asterisked but, as he accepted, five of those competencies are asterisked, and, in any event, the only explanation of the asterisk is the statement that those competencies will be tested further at interview, not that those five competencies are more important than any other of the competencies, let alone that diversity awareness and management was more important than any of the other asterisked competencies. 

23.	We asked Mr Edwards whether he agreed with the comment made by Mr Richardson at paragraph 63 of his Skeleton Argument, to which we have referred, and Mr Edwards was unable to do other than so to agree.  He accepted that none of the witnesses called by the Respondent had in any way sought to justify the conclusion to leave out the Claimant by reference to his having been deficient in relation to a crucial competence or, indeed, give any evidence at all as to the crucialness of that competence. The statements made by the Tribunal may reflect their own view as to the importance of diversity awareness and we note that they continually mis-describe it without including the words “diversity awareness and management”, but that view of its own was not based upon any evidence put before it in this case nor on any argument by Counsel nor, it would seem, by any special knowledge as to the particular requirements of the Crown Prosecution Service. It is plain that diversity awareness and management is one of the eight competencies, but nothing more could have been deduced, in our judgment.

24.	Mr Edwards seeks to say that we should not interfere with the Tribunal’s decision because it was an inference that the Tribunal was entitled to draw even without any evidence or argument before it, but we completely disagree. This is a situation in which, but for the statements in paragraphs 40 and 41, it is quite apparent that there would have been matters for the Respondent to explain. They might have had some explanation. Such explanation might have included the vitalness or crucialness of this particular competence, had there been some evidence given in that regard, which there was not; but we are satisfied that there was no basis upon which this Tribunal could even reach the conclusion it did at paragraphs 40 and 41, certainly not that they could use it as a springboard to avoid the consequences of S63A of the SDA of which they were otherwise conscious, subject always to their inapposite statement at the end of paragraph 39.

25.	There is, however, a further point that must be made. It is clear that but for this swing factor in the Tribunal’s judgment, they would need to have looked much more carefully than they did at the sift appeal, which they had already found to be an incompetent one. Had they done so, it would have been clearly necessary to explore the apparently unfavourable treatment to the Claimant by reference to letting Miss Morton through and not him, after a procedure which the Tribunal in any event found to be an unsatisfactory procedure carried out by Miss Clark. Mr Richardson submits that there would need to have been a full consideration at that stage as to why it was that, in relation to the two categories previously marked as “weak evidence”, Miss Morton was re-marked, while in relation to the competencies relevant to the Claimant, he was not re-marked, and, in any event, that in so doing, there would need to have been a general comparison of all eight of the competencies between the two of them. This is supported by a reading of what the Tribunal indeed say in regard to both the Claimant and Miss Morton. The implication appears to be that Miss Morton had a finding of “evidence” on the sift in respect of diversity awareness and management, although, as we have indicated, it may be that she originally had a finding of “weak evidence” and was then marked up on the sift. But what is stated by the Tribunal in paragraph 30 in relation to Miss Morton and her experience in diversity awareness and management (if that is what it was) would not, to us at any rate, appear to put her at all in a different league, and possibly even in a lower league as compared with the description given by the Tribunal in relation to the similar experience of the Claimant, set out in paragraph 28 of the Judgment. Suffice it to say that once the comparative positions of Miss Morton and the Appellant were no longer rendered irrelevant by the ‘inappropriate’ finding of the Tribunal, and were not based on any evidence or argument in terms of paragraphs 40 and 41 of the Judgment, the case would have been wholly open for consideration. 

26.	The original application by the Claimant was simply to set aside the judgment and remit to the same Tribunal. Had we taken that course, there would then have been consideration as to whether we substituted our own conclusion that the onus had shifted, i.e. that this Tribunal had on any basis got to half way, and that, in the light of its own findings, a non-discriminatory explanation was required from the Respondent. 

27.	Mr Edwards submitted that if we were minded, as we are, to quash the decision of this Tribunal, it would be more sensible not to burden this Tribunal with the difficulty of having to change its mind in any way, but to remit the case to a different Tribunal and, in any event, he opposed our suggestion that there would be a substitution in the manner to which we have referred. 

28.	In reply, the Claimant withdrew his application for remission to the same Tribunal, and joined with Mr Edwards in his submission that the case should be remitted to a different Tribunal. We are quite clear that this Tribunal erred in law in its approach to s63A of the SDA and, so far as it is necessary further so to find, was perverse in introducing as a factor in such consideration a matter which was not open to it on the evidence that it had heard or the argument addressed to it. Consequently, we quash the judgment. We are persuaded in the light of the joint submissions made to us that the appropriate course is not to seek to intervene by imposing a halfway house or otherwise or to encourage the same Tribunal to reconsider this case, but, particularly as the case only took three days, and it may well be able to take considerably less on a re-hearing, that the right course is that this should be remitted to a different Tribunal. On that basis the appeal is allowed.