Appeal No.	 EAT/788/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 1998
Judgment delivered on 11 February 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR P DAWSON OBE
MISS D WHITTINGHAM

ACAS	APPELLANT

MR SIMON TAYLOR	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR R J B GREEN
(of Counsel)
Messrs Boote Edgar Esterkin
Solicitors
Tootal House
19-21 Spring Gardens
Manchester
M60 8BE	
For the Respondent	MISS SARAH MOOR
(of Counsel)
Messrs Thompsons
Solicitors
Percy House
Percy Street
Newcastle-upon-Tyne
NE1 4QW	

	MR JUSTICE MORISON (PRESIDENT):     This is an appeal against a decision of an Industrial Tribunal held at Manchester. The tribunal’s written decision was sent to the parties and entered in the Register on 8th May 1997. By their decision the Industrial Tribunal concluded that Mr Simon Taylor, the applicant, had been unlawfully discriminated against on the grounds of his sex contrary to the provisions of s.6(2)(a) of the Sex Discrimination Act 1975 by his employers the Advisory Conciliatory and Arbitration Service, otherwise known as ACAS. In the light of their decision the parties agreed compensation and other arrangements without prejudice to ACAS’s right to maintain an appeal against the finding of unlawful discrimination made against them. 

	The decision was arrived at after a three day hearing. The relevant facts found by the Industrial Tribunal were as follows. 

	The applicant commenced his employment with ACAS in May 1992 as an Industrial Relations Officer, that position was classified HEO Grade. In 1996 ACAS issued an invitation to all HEO officers to apply for promotion to the next level, namely, that of a Senior Executive Officer [“SEO”]. At that time there were 165 officers at HEO level, of whom 62%, or 102, were male and 38%, or 63, were female. These officers were based throughout the country over 11 separate regions. In the event, there were 126 applicants of whom 40% were women. 

	The method by which the applicants were to be selected for promotion was set out in various written documents. Each applicant was required to complete an application form to which his line manager, who was also the relevant Regional Director, would add his comments and assessment. Each applicant was marked with a category starting with E/F which stood for “exceptionally fitted for promotion”; then category A which meant “confidently expected to give a very good account in a limited range of jobs on promotion and in a wider range of jobs shortly after”; then category B which meant “confidently expected either to give a good account in a wider range of jobs or a very good account in a limited range of jobs shortly after promotion”; then category C “confidently expected to give an effective account in a reasonable range of jobs shortly after promotion”; and finally, ‘not fitted’ namely “any candidate who you cannot confidently place in the fitted C category or above, and in particular, anyone not fitted for the operational posts which this panel has been established to fill”. Line Managers were requested to make explicit in relation to B candidates into which part of that category they fell.

	The procedure thereafter to be followed was this. On receipt of completed application forms, all candidates who had been classified as E/F would automatically be interviewed. All those candidates who had been classified as category A would have their application forms “scored” in accordance with a matrix devised by the Sifting Panel. The highest ranking category B candidate on each recommending officer’s list would also have his or her application forms scored, and where it appeared that the recommending officer had been “parsimonious” in grading candidates as E/F or A category, the Sift Panel would score the application forms of the top two category B candidates from that region. None of the candidates classified in C category were to have their application forms scored. In order to be considered for interview all candidates other than an E/F categorised candidate would have to be scored by the Sift Panel. 

	In the event, of the 126 candidates, 64 were selected for interview. Of those 64, 62 had been categorised as either E/F or category A. 50% of the 64 were women. Of the 64 candidates interviewed, 31 were successful of which 42% were women.

	The applicant was in the region identified to the Industrial Tribunal by the letter F. There were 14 candidates in his region. Two were categorised E/F; eight were categorised A and four, including the applicant, categorised as B. Of the four candidates in his region who were categorised as B, one was female and she had her assessment scored. The other three category B candidates in this region were male and none of their assessments was scored by the Sifting Panel. The Regional Director who was responsible for the initial assessments had ranked the applicant and the other three grade B applicants as all being top grade B. But in relation to the relative position of the four grade B candidates, the applicant was the lowest.

	After his application for promotion had been rejected the applicant appealed against the Sift Panel decision not to invite him for interview and at the same time he submitted a statutory questionnaire pursuant to the provisions of s.74 of the Sex Discrimination Act. His appeal internally was rejected and thereupon he presented a complaint to the Industrial Tribunal on 29th August 1996 alleging that he had been subjected to unlawful sex discrimination. The Industrial Tribunal recorded the basis of his claim as follows:

“He had been treated less favourably by the Respondents’ Sift Panel in relation to his application for promotion than any of the female candidates who had been allocated the same category classification as the Applicant, i.e., category B, and that this was due to the fact that the Respondent was exercising a policy of positive discrimination in favour of women.”

	At the hearing the Industrial Tribunal heard evidence from Mr Taylor and a Miss Canter on behalf of ACAS. Among the written guidance provided to the Regional Directors there was the following statement:

“Please remember that more needs to be done to ensure the reality of the claim that ACAS is an equal opportunity employer. For example women make up only 17% of those at SEO level at present and ethnic minorities staff less than 1%. All staff should be considered on their merits as individuals. Where you have any doubts about the fairness of the Annual Reports you should not hesitate to take appropriate action.”

ACAS also produced certain statistical evidence in relation to the way that candidates had been dealt with in the various regions. The tribunal made the following findings. In Region A 66% of the candidates were classified as E/F or A. There were two category B candidates both of whom were female and both of whom had their application forms scored. In Region B 62% of the candidates had been classified by the Regional Director as E/F or A. There were three category B persons, two men and one woman, one of the men and the woman was scored. In Region F, the applicant’s region, 71% of the candidates had been classified E/F or A by the Regional Director. There, of  four category B candidates only one, that is the only female category B candidate, had her assessment scored. In Region H just over 42% of the candidates were categorised as E/F or A. There were two category B candidates both of whom were female whose application forms were scored by the Sifting Panel. In Region I 41% of the candidates had been classified as E/F or A. There were seven category B candidates of whom one was female and she and one of the male category B candidates had their applications scored by the Sifting Panel. In Region J 66% of the candidates had been classified as category E/F or A. There were 3 category B candidates but only one, a female, had their applications scored by the Sifting Panel. It could be seen that all eight female B category candidates had had their application forms scored, whereas only six of the 16 male B category candidates had been scored. Where ever the Sifting Panel chose to score more than one B category candidate from a region, the second B candidate so selected was always female. 

	Having referred to the provisions of the Sex Discrimination Act which were applicable and to the well-established guidelines set by the Court of Appeal in King v Great Britain China Centre [1991] IRLR 513, and having summarised the arguments of Counsel on both sides, the tribunal arrived at its conclusions. 

	They firstly concluded that it was clear from the primary facts that Mr Taylor had been treated less favourably than all the female category B candidates. They continued:

“Having regard to the difference in sex between the Applicant and these candidates and the guidelines set out by the Court of Appeal  King, it is incumbent on the Respondent to offer some explanation to justify this difference in treatment which is not related to the Applicant’s sex. Having regard to all the evidence we cannot accept that the Sift Panel applied its own criteria for scoring B category candidates in a consistent manner, nor do we accept as suggested by Miss Canter in her evidence that it was simply a coincidence that 100% of the female B category candidates were scored for interview compared to only six of the 16 male B category candidates, nor do we regard as relevant the fact that in some other regions a larger proportion of male candidates were selected for interview than female candidates since that would reflect not only B category candidates but also E/F category candidates (who did not need to have their application forms scored to qualify for interview) and also A category candidates whose application forms were automatically scored under the criteria. The Applicant’s complaint that by failing to even consider his application form, the Sift Panel effectively deprived the Applicant of the opportunity of advancement within the organisation in circumstances where every female candidate classified in the same category as the applicant had their respective application forms scored by the Sift Panel. The fact that a relatively small proportion of female candidates were eventually selected following interview is nothing more than an indication that the interview panel as opposed to the Sift Panel did not apply any positive discrimination in favour of women. In fact it could be argued that the disparity between the number of female candidates selected for interview by the Sift Panel and the proportion of female candidates eventually selected for SEO grade following interview is an indication that the Sift Panel was too generous in its assessment of the female candidates. 
For these reasons we regard the explanation offered by the Respondent as inadequate and unsatisfactory. This does not mean we must automatically infer that the Applicant has been unlawfully discriminated against but we must consider the primary facts as found for the purpose of drawing whatever inferences may be appropriate from those facts. The most significant fact is that female candidates classified as category B faired overwhelmingly better than male candidates classified in the same category in relation to the selection process undertaken by the Sift Panel. Every single female candidate in that category was scored for interview purposes and to achieve this the Sift Panel had to disapply their own criteria in relation to some regions and apply it inconsistently as between other regions. We received no satisfactory explanation for this nor for the unusually rapid destruction of the Sift Panel’s notes by Miss Canter so shortly after the Sift Panel had completed its deliberations. We also find little justification for Miss Canter’s description of the Applicant’s application form as “mediocre” since on our perusal of that document it appears to be very comprehensive and endorsed with an entirely satisfactory recommendation from Mr Fletcher. Finally we have noted that although there were only four female candidates out of a total of 14 candidates from the Applicant’s region, Mr Fletcher in his priority list submitted to the Sifting Panel on which the Applicant was placed last, had actually placed three of the four female candidates at the top of the respective categories to which he had classified them. Here again no documentary evidence was produced to justify these rankings.
Taking all of these circumstances into account the clear inference to be drawn is that the Sifting Panel applied a policy of positive discrimination in favour of category B female candidates with the result that the Applicant was treated less favourably because he was a man and therefore denied access to opportunities contrary to the provisions of section 6(2)(a) of the Sex Discrimination Act 1975.”

The Arguments of the Parties
On behalf of ACAS, Mr Green, in a conspicuously able submission, contended that the Industrial Tribunal were wrong to have concluded that Mr Taylor had been discriminated against in the sense of treated less favourably than other persons in a comparable position. The most that could have been said for Mr Taylor was that he might have been discriminated on the grounds of sex but that he had not proved his case on less favourable treatment, on the balance of probabilities. Essentially, there was no evidence that the Sifting Panel had scored any candidate categorised as B who was ranked lower than the second ranked B candidate. Accordingly, the reason why Mr Taylor was not scored was or may well have been the fact that he had been ranked number four of the B category candidates in his region. All the female B candidates were scored; but all those candidates were in the first or second rank of B candidates in their region. It was also argued that the Industrial Tribunal were unfair to have referred to the ranking made by Mr Taylor’s Regional Director when on the evidence before the Industrial Tribunal Mr Taylor himself made no complaint against the Director in the way in which that ranking process had been carried out. He contended that unless and until a tribunal has concluded that there has been less favourable treatment of the applicant as against a sound comparator, the question of drawing inferences never arises. Here, the proper comparator was a hypothetical Mrs Taylor who had been ranked number four of the B category persons in Mr Taylor’s region. Since the answer to that question was uncertain the application should have been dismissed as not having been proved.

	For Mr Taylor, Miss Moor, in an equally able submission, said that the Industrial Tribunal were entitled to choose as comparators the women who had been categorised as B candidates. That was because the Industrial Tribunal were entitled to conclude that the Sifting Panel had not followed their own procedures. As the Industrial Tribunal themselves pointed out there was no sensible explanation which could be offered as to why a second female B candidate had her application forms scored in Region A, whereas the second male category B candidate in Region J did not have his application form scored. The tribunal were quite entitled to infer, having regard in particular to the terms of the guidance given, that the reason why the second category B candidate in Region A was scored was because she was female, whereas in Region J that the second candidate was not scored because he was male. In other words, the tribunal were entitled to look with care at the reason why a male category B candidate had not been scored. On the totality of the evidence, the Industrial Tribunal was entitled to infer that the reason why Mr Taylor had not been scored was not because he was ranked four, but because he was a man. 

Our Decision
We have not found this an entirely straightforward case. Nowhere in their decision does the tribunal expressly deal with the contention which was made that Mr Taylor would not have been scored by reason of his ranking if he had been a woman. But on balance, we are persuaded to the view, since this was argued before the Industrial Tribunal, that the tribunal have adopted Miss Moor’s submission which was made to them and to us. In other words, the Industrial Tribunal were entitled to conclude that if Mr Taylor had been Mrs Taylor, she would have been scored. That was because the Industrial Tribunal had formed the view that ACAS was unlawfully engaged in an exercise of positive discrimination. Therefore, whether or not the eight female B category candidates were the proper comparators, and whether or not Mr Taylor should have been compared with a hypothetical female comparator, the result would have been the same. The Industrial Tribunal were entitled to conclude that the decision whether to score a category B candidate was not related to the rank of that candidate, but rather to the person’s gender. In this connection we note that when asked why 100% of the female B category candidates had been scored for interview compared to only 6 of the 16 male B category candidates, her explanation was that it was simply a coincidence. In other words, she did not suggest that the difference could be accounted for by reason of the ranking of the various category B candidates. The Industrial Tribunal were plainly right to take into account the fact that the Sift Panel had failed to apply its own criteria for scoring of B category candidates in a consistent manner. By failing to consider his application form the Sift Panel, as the Industrial Tribunal held, effectively deprived the applicant of the opportunity of advancement within the organisation in circumstances where every female candidate classified in the same category as him had their respective application forms scored by the Sift Panel. Those findings were matters which they were entitled to take into account in arriving at their conclusion that the treatment of the applicant was less favourable because of his sex. We also regard the Industrial Tribunal as entitled to take into account the fact that Ms Cantor was unable to explain why the Sift Panel’s notes had been unusually rapidly destroyed “so shortly after the Sift Panel had completed its deliberations”. Whilst this comment might not have been appropriate in relation to other employers, it does seem to us that ACAS in particular fully understand the need in promotion type cases for documents to be kept for a limited period of time against the possibility that somebody will complain that they have been discriminated against whether on the grounds of sex or race. We are confident that ACAS in the course of its duties regularly advises employers to keep their notes as a matter of good practice.

	It seems to us that the guidance provisions to which we have referred should be reconsidered by ACAS. The sentence “Please remember that more needs to be done to ensure the reality of the claim that ACAS is an equal opportunity employer” is readily capable of being misconstrued. Furthermore, it begs the question as to what is to be done and by whom. It seems to us that it would have been more appropriate and quite sufficient for the guidance to have reminded the line managers that ACAS was an equal opportunity employer and to draw attention to the fact that women and ethnic minorities staff at SEO level were poorly represented. Such poor representation was itself suggestive of potentially discriminatory practices in the past and the employers were entitled to draw that to the attention of those who had the responsibility for making decisions about promotions in the future. The way the guidance was composed seems to us to be capable of leading the unwary into positive discrimination. We put our concerns to Mr Green during the course of his submissions and we have every reason to believe that ACAS will reflect on what we said at that time and what is said in this judgment.

	For the reasons we have shortly expressed, we considered that this was a case where the Industrial Tribunal has correctly addressed its attention to the relevant issues and has arrived at a conclusion with which it would be inappropriate for us to interfere. Accordingly the appeal is dismissed.