Appeal No. UKEATPA/1229/08/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 May 2009

Before
HIS HONOUR JUDGE McMULLEN QC
(SITTING ALONE)

MR T DAWSON	APPELLANT

SERVITE HOUSES	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION
APPLICATION FOR REVIEW
FURTHER APPLICATION FOR REVIEW
 - APPELLANT ONLY

	APPEARANCES

For the Appellant	MS J McCAFFERTY
(of Counsel)
(Appearing under the Employment Law Appeal Advice Scheme)
and the Appellant in person	

SUMMARY
SEX DISCRIMINATION:  Direct

The male Claimant was not selected for a post at an interview where the female panel scored him below the successful female candidates. On a claim of sex discrimination, the Employment Tribunal held the burden of proof passed to the Respondent and accepted its explanation of the outcome, having examined in respect of five candidates the scores and oral accounts given by the members of the panel on three disputed questions. 

HIS HONOUR JUDGE McMULLEN QC

1.	This case is about sex discrimination in an interview process.  I will refer to the parties as the Claimant and the Respondent.

Introduction

2.	It is an appeal by the Claimant in those proceedings against a majority judgment of an Employment Tribunal at Watford, Employment Judge Henry, Mrs J Boak; Mr J Thakoordin dissenting, registered with reasons on 1 September 2008.  The Claimant represented himself but today has the advantage to be represented by Ms Jane McCafferty of Counsel giving her services under ELAAS (Employment Law Appeal Advice Scheme).  The Respondent was represented at the Tribunal by Counsel.

3.	The Claimant claims sex discrimination in his non-appointment.  The Respondent offered explanations based upon the scorings.  The agreed issues as defined by the Employment Tribunal, were 
“2. …
i) 	Are there facts from which the Tribunal could conclude that discrimination has occurred?
ii) 	If there are such facts, has the Respondent provided an adequate explanation that no discrimination on the grounds of sex occurred?
iii) 	If not, what is the appropriate remedy?”  

4.	The Tribunal dismissed the claim and the Claimant appeals.  In Haritaki v South East England Development Agency EATPA/0006/08/DA, paragraphs 1 to 13, I set out my approach to Rule 3.  It should be read with this judgment.  On the sift of this Notice of Appeal HHJ Peter Clark exercised his power under Rule 3(7).  He said this:
“Where no point of law arises then section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction.”

The Claimant sought a hearing under Rule 3(10).  I hear this case, therefore, on more material and in particular with reference to a forceful oral argument addressed by Ms McCafferty.

The legislation
5.	The relevant provisions of the legislation have not been set out by the Employment Tribunal but they can be found in sections 1(1)(a), 2 and 6 of the Sex Discrimination Act 1975 and the burden of proof for such cases is in section 63A.  In simple terms, it is unlawful to discriminate against a man in a recruitment exercise on the grounds of his gender.  The burden of proof is defined:
“63A Burden of proof: employment tribunals
…
 (2)	Where, on the 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 an act of discrimination against the complainant which is unlawful 	by virtue of Part 2, …
the tribunal shall uphold the complaint 	unless the respondent proves that he did not commit … that act.”

6.	The Tribunal addressed itself to the leading authority on the burden of proof Igen Ltd v Wong [2005] IRLR 258 (CA) and to the pre-section 63A judgment in Shamoon v Chief Constable of the RUC [2003] IRLR 285 (HL).

7.	Generally speaking a two-stage exercise must be gone through but the essential issue is to determine the reason why the man was treated less favourably than the woman, answering Lord Nicholls’ question as to “the reason why”.

The facts
8.	The Tribunal introduced the parties in the following terms 
“4.	The Tribunal had before it a bundle of documents exhibit R1.  The witnesses gave their evidence-in-chief by reading from a written statement upon which they were then cross-examined.  From the documents we have seen and the evidence heard, the Tribunal finds the following material facts.

Material facts

5.	The Respondent is a registered Social Landlord providing rented homes, in the community, key worker housing, student housing, hostel accommodation and low cost home ownership throughout the country.

6.	In October 2006 the Respondent advertised for the posts of Finance Officer (Cash), Senior Finance Officer (Payments), the closing date for applications being 25 May 2006, interviews scheduled to be between 1 and 8 November 2006.

7.	The Claimant applied for the positions of Finance Officer (Payments) and Finance Officer (Cash).  The Claimant was short listed for the position of Finance Officer (Payment), but not Finance Officer (Cash).

8.	The recruitment process in respect of the position of Finance Officer (Payments) were undertaken by the Financial Operations Manager, Miss Alison Spearink and the Payments Manager, Miss Christine Appiah-Ceaser, the Manager to whom the Finance Officer (Payments) position reported to, Miss Spearink being the Payments Manager’s, Manager.  

9.	The tribunal pauses at this juncture, to note the complement of staff within the payments department, which consisted of the one manager, two supervisors and four junior members of staff, only one of which was a permanent member of staff.  The recruitment exercise being undertaken for the recruitment of a further three permanent junior members. 

10.	The department, at the time of the recruitment exercise, was staffed by women only.  However, it is the respondent’s evidence, that there having been a high turn over of temporary staff around this time, there had been male staff members within the department, but just not at the time of the recruitment exercise.” 

There were 34 applicants, 10 were shortlisted, 6 men and 4 women, and 3 women were subsequently appointed to the available posts.

9.	Arithmetical and interview skills were called for in the job.  A set of questions was prepared, points were given by the interviewing panel which consisted of women, and the Claimant scored 16 out of 30 when the threshold for appointment was 17½.  The three successful candidates, all women, scored above 17½ and so, in simple terms, the Claimant’s target in this claim is either to achieve at least 17½ and probably more because those appointed all scored above 17½, or to dislodge the scores of the women.

10.	Of the questions asked, only three were relevant to the claim. The Tribunal examined most carefully the results of answers given in interview to questions 5, 9 and 10 by reference to the three successful female candidates, noted as C1, C2 and C3 and also in respect of an unsuccessful candidate, UC3 who was a man.

11.	The Tribunal noted that there was an inconsistency and that the burden of proof passed to the Respondent to provide an explanation.  At this stage in the application, the Respondent not being here, I assume the Tribunal was correct to pass the burden to the Respondent at that stage.

12.	The Tribunal concluded that the correct comparator was a female being interviewed by the panel and being marked by them against model answers but given higher scores than the Claimant.  That comparator seems correct in this case.  The Tribunal noted that there was on one question a difference in scoring as between the answers given by one unsuccessful candidate, and so moved to examine critically the Respondent’s explanation of the scorings respectively on questions 5, 9 and 10.

13.	As to question 5, the Tribunal’s finding was that what was sought in the answer to this question was a reference to the need to make a referral upwards by the Claimant in a job situation to a manager or supervisor.  All of the candidates who scored points on this mentioned a senior or a supervisor or a manager.  The Claimant did not.  He scored zero.  The minority view was that since one of the candidates was given 1½ points where the interviewer wrote that the candidate did not understand the question, she should not have been given the 1½ points.  It was, in Mr Thakoordin’s view, biased.  The record, however, indicates that her written answer did include reference to a supervisor.

14.	As to question 9, the three members of the Tribunal were together in that they noted that the Claimant gave the wrong answer, totally misunderstood the question and scored zero. As to question 10, the Tribunal resolved an issue as to what the question was. Although in writing the question relates to debit balances, the Claimant misunderstood it.

15.	The Tribunal noted the Claimant conceded he got the evidence wrong and on the basis of that decided that there was no discrimination. 

16.	Mr Thakoordin differed on the finding that there was an explanation for the Claimant scoring zero, saying that the panel should have realised that he misunderstood the question, was giving the wrong answer and corrected him.  The mistake should have been pointed out to him.  True it is there was another case when interviewers reminded the Claimant of a question but the Tribunal decided that the points given to him were correct since he got the answer wrong.

17.	Mr Thakoordin found that the failure to clarify the question constituted bias and the basis upon which he came to that conclusion was this 
“74. 	It is Mr Thakoordin’s considered view, that, as is seldom the case, employers will overtly discriminate against a person because of their gender, discrimination often occurring within an unwritten cultural framework, in which people would choose to recruit people from their own gender, by placing more positive emphasis on their answers during interviews.  In this case, it is more than likely, that the panel made up of two females, and in charge of a department with a history of all female employees, discriminated against the Claimant.” 

On the basis of those findings by the majority on questions 5 and 10 and the unanimous view of the Tribunal on question 9, the claim was dismissed.

Submissions and conclusions
18.	Ms McCafferty describes this as a deceptively simple case - it looks simple but is not.  In my judgment it is a simple case.  This Employment Tribunal has examined exhaustively the records of the interviewing panel and the scores given to at least five of the candidates and it has created a very thorough report of its findings about them.

19.	Ms McCafferty contends that the Tribunal, having reached stage 2 of the Igen test, was called upon to examine critically the explanation given by the Respondent.  I agree.  The Tribunal has done it.  It has considered the explanation which is points-based and decided, as a matter of fact, that the Claimant’s answers did not merit a score on the three relevant questions for the reasons which it has given.

20.	Those reasons are cogent and I see no error of law in that fact-based evaluation of the explanation of the Respondent.  I do not consider that the answer to question 5 demonstrated a bias.  It is the only attack on a female candidate’s score. Her score and his were explained. As to question 9, Ms McCafferty accepts that she is in difficulty in advancing an appeal since the Claimant gave an answer which was clearly wrong and the unanimous Tribunal upheld the score. Pragmatically, without an uplift of either of those scores, or dislodging the score of the lowest-scoring successful candidate, the Claimant cannot beat that score and it is not strictly necessary to deal with the different issue on question 10.

21.	Turning then to question 10, the Tribunal has made a finding as to what was said and that the question to the Claimant was the same as to all candidates. It related to debit balances and he misunderstood it. It is conceded that he gave the wrong answer.  It follows that there is no attack on appeal to the score of zero. What was the Employment Tribunal to do with this?  The Tribunal was aware that at one stage a candidate in difficulty had been assisted.  

22.	Even if the Claimant made clear that he had misunderstood the question the score equally comes out at zero. The approach of the Employment Tribunal to this essential question of fact has been resolved in its majority/minority split.  It is important to note that Ms McCafferty cannot advance a question of law based upon that division.  Mr Thakoordin, in the minority, made a finding which the majority did not support concerning what was said in the interview. Her argument on this factual dispute raises no question of law.

23.	Mr Thakoordin’s view in paragraph 74 is obviously based on his holding on that issue and so cannot be supported. However, it is otherwise flawed.  Ms McCafferty was invited to consider whether she supported this view and she did in part.  I fully accept that irrational discrimination may be hidden and not acknowledged by interviewers. The view in paragraph 74, in my judgment, consists not of a statement that there may be unconscious bias but of a stereotypical view of women working together choosing self-segregation. 

24.	He says that often people will choose to recruit people from their own gender.  Ms McCafferty invited me to consider reality and I do.  In my experience, all-women work groups will often seek to recruit men and vice versa.  If this were a considered approach there ought to have been some evidence.  There was.  Mr Thakoordin gets it wrong.  He talks about a department with a history of all-female employees; the finding by the unanimous Tribunal in paragraph 10 is to the contrary.  There have been men in that department, apart from a recent period when it was all female, but to say that there was a history of all-female employees is wrong and so cannot form the factual basis for the minority finding that there was bias.  So, inasmuch as Ms McCafferty seeks to support the appeal by reference to paragraph 74, I reject it.

25.	For those reasons the application is refused and effectively the appeal is dismissed.  I would like to thank Ms McCafferty very much for the careful submissions she has made so succinctly.

26.	When the next case was called on following the judgment, the Claimant Mr Dawson came back into court and created a disruption during the beginning of the next case in which Ms McCafferty, again, was giving her services under ELAAS.  Mr Dawson shouted from the back of the court and wanted to be heard.  He demanded a review of my judgment.  He would not take my directions.  I rose for five minutes.  When I came back in I agreed to listen to him but he would again not take my directions.

27.	He contends that he has not had justice.  He contends that had he had a different judge at the Employment Tribunal the case would have gone differently for him and he would have succeeded.  He has been the victim of an injustice since 1963.  He reminds me that, as a judge, I have to dispense justice fairly and he contends that he has had no fairness in this case at first instance or on appeal.

28.	The grounds upon which a judgment of this court is reviewed are set out in Rule 33. It is to be used sparingly. None of the grounds which Mr Dawson himself has put forward follows the rule.  He is dissatisfied and campaigns yet further for the Employment Tribunal judgment to be reviewed but the time for that is over.  The only avenues which he has are a review of my judgment or an appeal against it.

29.	I know that he is upset about this result but I will not further review the judgment which I have made.  There are no grounds for doing so.  I have listened to him as much as I am prepared to do this morning in accordance with the overriding objective, given there are other cases in my list and he has been well represented by experienced Counsel.

30.	As no doubt he has been advised by Ms McCafferty, he has an opportunity to appeal against my judgment.  I will take the long expression of dissatisfaction with my judgment as also an application for permission to appeal against it.  I refuse permission to appeal since this case has no prospect of success.  It follows from my finding under Rule 3(10) that the prospects of success will not improve for Mr Dawson in the Court of Appeal where, in due course, it is likely, if he gets as far as a hearing, Counsel will be instructed by the Respondent to oppose it.

31.	There is no compelling reason why this short factual matter should take up the time of the Court of Appeal and, therefore, I will refuse both the application for review and, as I deem it, an application for permission to appeal.  Thank you very much Mr Dawson.  You are free to go now.