Appeal No.	 EAT/261/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 & 29 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MRS R CHAPMAN
MR P DAWSON OBE

DR C AKATENG	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR L ADENEKAN
(of Counsel)
Messrs Mathis
Solicitors
Unit 231-232 First Floor
Elephant & Castle Shopping Centre
London SE1 6TE	
For the Respondents	MR D BASU
(of Counsel)
The Solicitor
London Borough of Lambeth
Lambeth Town Hall
Brixton Hill
London SW2 1RW	

	HIS HONOUR JUDGE JOHN BYRT QC:     This is an appeal against a decision promulgated on 19 December 1997 of an Employment Tribunal sitting at London (South) whereby they held that the Applicant’s claim of racial discrimination failed.  The Applicant, Dr Akateng, appeals that decision.  

	The facts of the case, as either agreed or approved by the Tribunal, are that Dr Akateng is an educated gentleman who has degrees in physics and mathematics from the University of Ghana and a medical degree from Minsk.  For four years, between 1989 and 1993, he worked for various health agencies as a mental health nurse and then for four months, between July and October 1993, he worked as an agency social worker.  Between October 1993 and April 1994, a seventh-month period, he worked as a Senior Residential Care Officer / Support Worker for MENCAP in their Elam Street Home.

	Between April 1994 and September of that year he was out of a job and it was in those circumstances, on 6 September of that year, that he saw an advertisement in a periodical called “The Voice” seeking applications for a post known as CC/24, that of a social worker required by the Respondents.  Before he applied, he discussed the post with a Ms Robinson, who was Lambeth’s recruitment Co-ordinator and a Mr Revill, their Resource Manager, and he was encouraged to apply.  Whilst that application was being considered, two other posts came up:  CC/22 and a CC/25.  He was encouraged by Mr Revill to apply for those jobs as well and accordingly he completed his application forms for all three posts and submitted them.

	On 6 December he saw an advertisement for another post:  CC/83.  That particular post was the job of officer in charge of one of Lambeth’s residential homes situated at Victoria Rise and he put in an application for that on 26 December.  Having put in those applications he wondered, quite naturally, whether he had been short-listed on the earlier applications.  He asked Lambeth whether he had and getting no reply to his letters, he eventually went to seek advice from the North Lambeth Law Centre, with the result that on 25 March 1995 he presented his Originating Application alleging racial discrimination on the ground that he had not been short-listed.  The discrimination he alleged was because he was a black Ghanaian.

	The Respondents’ Notice of Appearance admitted that he had not been short-listed for any of these jobs, but denied that his colour or the country of origin had been the reason why he had not been so short-listed.  As is the procedure in this type of case, he put in a questionnaire to the Respondents seeking explanations as to why he had not been short-listed for any of these jobs.  This was answered by Lambeth Senior Human Resource Officer, a Ms Bend and she did so on information provided her by Ms Pitcher, who was a Care Manager in the Respondents’ employment and in relation to each of the jobs the answers were as follows:

	In connection with the jobs CC/22 and CC/25 it was said that “Dr Akateng did not hold a recognised Social Worker qualification i.e. the CQSW or the CSS”.  A point later to be taken by Mr Adenekan, who appeared on behalf of Dr Akateng, was that the job specification he had been given at the time of his application, merely referred to the qualification “CQSW and CSS or equivalent”.  

	The reason for not short-listing him for the job CC/24 was that Dr Akateng failed to answer 3 out of the 5 criteria fully enough.  Those 3 were (1) relating to his experience of working directly with black adults or families; (2) understanding of Lambeth’s Equal Opportunities Policy and (3) his commitment to implementing the Council’s anti-racist and anti-sexist social work practice.  

	In relation to the job in charge of the Residential Care Home CC/83, the answer was that he had only had 7 months’ experience of working with people with learning difficulties and of staff supervision, and that was in a deputising role only.

	When the hearing came on before the Employment Tribunal, Dr Akateng’s approach was to compare his qualifications with those who had been lucky enough to be short-listed.  The Respondents, at that stage, were in some difficulty because of the lack of documentation supporting the work they had carried out in preparing the short lists and that, of course, presented difficulties for the Employment Tribunal as well.  Much of the paper work had gone missing.  Most of the applications had been lost or destroyed, including of those who were short-listed, though some did survive.  Again, many of the scoring sheets recording the panel scores for each candidate were also missing, though indeed some survived.  What did survive, was produced not before the hearing but only during the hearing.

	Doing what they could with the documents that were available, the Tribunal considered each job application.  They noted that Dr Akateng had neither the CQWS or the CSS qualifications or indeed any other similar professional qualification and that therefore, he had not been listed for either of those jobs:  CC/22 or CC/25.

	So far as the CC/22 is concerned, there were 6 applicants, but only one of those applicants were short-listed and she alone had the appropriate professional qualification.  For CC/25 there were 12 applicants, 4 short-listed.  Of those 4, only 2 had the appropriate qualifications.  The successful candidate, candidate No.10, indeed had the CQWS qualification.

	With regard to CC/24 there were 76 applicants of whom 15 were short-listed.  Unhappily, Dr Akateng was not one of them and notwithstanding Ms Bend’s answer to the questionnaire, it was eventually apparent that Dr Akateng had failed only one of the criteria, not 3 as the questionnaire had stated and the one criteria he failed was in relation to his experience with working with black adults or families.  In due course the Employment Tribunal found that the answer to the questionnaire was misleading in this respect, but the picture was a little bit more complicated.  At the time Ms Bend answered the questionnaire, she only had Dr Akateng’s application form and the criteria in relation to each of the jobs and she had to compare one with the other.  She did not have available any of the scoring sheets or the ticked lists.  The panel which considered the short list consisted of three people, Mrs Thompson, Ms Pitcher, both of whom gave evidence, and a Ms Jane who did not give evidence.  We do not know the reason for that.  When Mrs Thompson and Ms Pitcher saw the ticked sheets the picture which unfolded was this.  All three had agreed that Dr Akateng had failed the one criteria that remained, namely his experience working with black adults or families.  So far as Ms Pitcher and Ms Jane are concerned, they gave ticks indicating that Dr Akateng had satisfied the criteria relating to Lambeth’s Equal Opportunity Policy and his commitment to the anti-racist and anti-sexist working practises of the Borough.  Initially Mrs Thompson had failed him on those two criteria, so that in fact she failed him effectively on all three, but she was ultimately persuaded by Ms Pitcher and Ms Jane to indicate that Dr Akateng did satisfy those two criteria and in that way it ended up that all three of them were agreed that he failed just the one criteria.  That was what the Tribunal noted.  At the same time they thought it pertinent that candidate 15 was a black African Ghanaian who had been short-listed.  Although he did not state in his application form that he was Ghanaian, the Employment Tribunal reached that conclusion on the basis that he had indicated he belonged to the category “Black African” and had noted his secondary education as being in Ghana.  On that evidence they inferred he was a black Ghanaian.

	With regard to the fourth and last post, the CC/83 which related to the residential home in Victoria Rise, the panel consisted of Mr Alexander, Ms Sadgrove and Ms Bend.  Nobody is absolutely certain as to whether Ms Bend did take part in the short listing, though it was indicated in the advertisement that she was part of that panel.  The lead was taken by Mr Alexander and his main concern was to pick a candidate for that position with strong management experience.  Unhappily, the residential home had been hit by scandal which had been written up in the national press, scandal of a financial nature which also related to the way the home had been run.  Mr Alexander said that whilst all the criteria listed in the job specification were important and relevant, the home was (in his own words) a “bed of nails” and it was essential for the candidate they chose to have a good track record of management.

	There were 23 candidates for this job, Dr Akateng was one of them.  Mr Alexander ruled him out of the short list because he noted (1) that he had had only 7 months’ management experience and that was in a deputising role; (2) that experience had been gained at the MENCAP home in Elam Street which he happened to know well.  He knew it to be a small residential home employing only some 7 to 8 staff, whereas Victoria Rise had a staff of 14 to 15, and the third point he noted was that, in listing his management experience, Dr Akateng had been exhaustive in indicating what it was, so much so that Mr Alexander found that he had wildly overstated his claims and thereby deprived them of credibility.  Having ruled him out because he deemed him to have failed that particular criteria, he did not bother to mark him on any of the other criteria which were listed in the job specification.  Ms Sadgrove had followed exactly the same line.  Whilst this might seem to be a coincidence at first sight, it was not so because Mr Alexander made use of Ms Sadgrove’s ticking form and had merely added his ticks and happened to do so in the same way Ms Sadgrove did.

	Having made those findings, the Employment Tribunal then addressed the law, and in particular the relevant statutory provisions of the Race Relations Act 1976;  namely sections 1(1)(a), 4(1)(a), 32(1) and 65(2)(b).  Then they made certain general observations.  First they noted that this was not a typical racial discrimination contest in that Dr Akateng was not alleging he was discriminated because, being black, he was treated less favourably than white candidates.  The allegation was that he was discriminated against because he was a black Ghanaian rather than an Afro-Caribbean, and they therefore focused their considerations upon that issue.  In this regard, they considered it significant that the Respondents had short-listed the black Ghanaian for the post of CC/24.  

	Thirdly, in reviewing the evidence, they made a special point to the effect that they thought Mrs Thompson’s evidence unreliable in that they found that her evidence changed the longer she was giving evidence.  However, they did not find she was dishonest.  They merely noted that she had been giving evidence for a day and a half, and during that time was being asked to recall events which were then three years out of date.  The Tribunal expressly indicated they did not find her evidence and the way it shifted was itself proof of racial discrimination.  

	When it came to considering the question of documents, the Tribunal was sympathetic to Dr Akateng’s submissions about those documents or the lack of them, but the Tribunal noted (1) that the Respondents had reorganised and moved their offices and the probabilities were therefore that the missing documents had become mislaid in that way; (2) they accepted that the documents they did have, showed some of the candidates had been lucky to be short-listed and (3) they said, since some of those documents and, in particular, the ticked list, might seem to be detrimental to the Respondents’ case, they felt that the production of those documents, albeit late, was indicative of the honesty of the Respondents and not proof of racial discrimination.

	With regard to the individual applications, the Tribunal made express findings that Dr Akateng was not short-listed for CC/22 and CC/25 because he did not have the requisite professional qualifications.

	In relation to CC/24 they noted that Mrs Thompson had shifted in her evidence in cross-examination and that she had indicated at the time she gave her evidence she would have given a tick for Dr Akateng’s experience of working with black adults or families, but that at the time that she recorded her scoring, when the short list was being prepared, they accepted that she had acted in good faith in finding that he had not satisfied that criteria.  The Employment Tribunal said that it was clear that Dr Akateng’s comment relating to his working with black adults or families had been added into his application form as if as an afterthought, and they accepted that the panel’s ruling him out of the short list on this account was made in good faith.  They also found that since this criteria was the only one on which he had been ruled out of being short-listed, the answer to the questionnaire was indeed “misleading” (to use their phrase).  They then considered the application of section 65 (2) (b) and asked whether from this fact they should infer racial discrimination.  They also considered the case of King v Great Britain-China Centre [1992] ICR 516 and took into account (not for the first time) the fact that one of the candidates who had been appointed to the short list was a black Ghanaian.  They concluded that the error contained in the answers to the questionnaire was not indicative of racial discrimination.

	So far as CC/83 is concerned, they noted the history of the hostel which they thought relevant and important.  They thought the explanation why Dr Akateng was not short-listed was neither inadequate or unsatisfactory and in so saying they recognised correctly where the burden of proof lay.

	So far as Dr Akateng’s case is concerned this was argued in front of us by Mr Adenekan.  He argued with considerable persistence and force.  He based his argument on a close scrutiny of the details of the case and accepted the challenge that to succeed he had to prove that the Employment Tribunal had come to a decision which was perverse.  He sought to do that by showing that, in comparison with those candidates who were short-listed, Dr Akateng’s qualifications so argued his claim to be short-listed that the only reasonable inference to be drawn from the Respondents’ failure to short-list him was that the two separate panels which deliberated upon his application for these 4 jobs had decided to exclude him from that short list solely because of his colour and ethnic origin.  Further, his case, carried to its logical conclusion, had to be that, in making their findings on the Respondents’ conduct, the Tribunal had come to a conclusion which was quite plainly obviously wrong.  In support of that approach Mr Adenekan focused on certain blatant errors of the Tribunal in their consideration of the relevant factors in the application for each of the posts.

	So far as the jobs, CC/22 and the CC/25 are concerned, he drew our attention to the job specification which said that the Applicant had to have the professional qualifications a CQSW and CSS or equivalent.  He said that Dr Akateng did have the equivalent, albeit it was not a professional qualification and the equivalent he relied upon was what was set out in his application form at page 128 of the Appellant’s bundle.  The courses that Mr Adenekan relied upon were as follows:  Team Building, Challenging Behaviour, Stress and Time Management, Assertiveness and Supervision and he said that those were equivalent professional qualifications.

	We have been told by Mr Basu that reliance upon those courses had not been taken as a point before the Employment Tribunal and indeed, we have seen nothing in the comprehensive notes of evidence, provided by the Chairman, to indicate that it was.  Mr Basu has argued that if Dr Akateng had relied upon those courses before the Employment Tribunal, the Respondents’ witnesses would have had the opportunity of commenting upon the claim that they were courses of equivalent professional qualification.  His witnesses never had that opportunity and therefore we should not allow the point to be raised now.

	Notwithstanding those observations, we think it right to consider the point made by Mr Adenekan and to make a ruling on it.  We think it is the duty of an applicant to show the relevance of the qualifications he advances for any particular job, if he wishes to rely upon them in support of his application.  We do not accept Mr Adenekan’s submission that it was the duty of the interviewers to seek out, in the course of a short-listed interview, the relevance of what may, or may not be, equivalent qualifications.

	Looking at the matter for ourselves, and mindful at the end of the day it is not our functions to make a ruling on this matter, we observed the fact that an applicant has attended courses does not mean to say that he has obtained a qualification by doing so.  And indeed, if the Respondents were to be blamed for not seeing from the application form that these courses were pertinent and relevant qualifications for the job, we would have thought that their relevance would have to be plain from the nature of the courses listed.  Looking at them for ourselves, we do not see that there is anything about them to indicate that they were obviously qualifications in the Social Work field.  In our judgment we find that there is nothing in the reasoning and argument of the Employment Tribunal on this particular point, or indeed in relation to this particular job application, to suggest that the Employment Tribunal’s finding was perverse in their findings on this issue.  

	So far as the CC/24 is concerned;  if we understand his argument aright, Mr Adenekan did not challenge that the entry about working with black adults and families might have been inserted as an afterthought.  What he did claim was that once the sentence had been included in Dr Akateng’s application form, the entry should have been given as much consideration as any other part of the application before the panel decided whether to short-list him or not.  We can assure Mr Adenekan that we understand the point he is making before us but the question is what the employers thought.  The employers, as represented by the evidence of their witnesses, in good faith thought that the entry showed that this particular criteria was not in the forefront of Dr Akateng’s mind.  On the contrary, they thought it showed he had given it but cursory consideration and as a result of that they failed him on that particular criteria.

	The Employment Tribunal considered the concession made by Mrs Thompson in the course of her cross-examination.  They came to a finding that her attitudes on the point and the way she scored Dr Akateng in relation to that criteria was in good faith.  They rightly and properly considered section 65 and as far as we can see applied it correctly.  They took into account candidate 15’s Ghanaian origin.  We, reviewing their conclusions and findings, think they applied the law properly and do not see that we can disturb their findings that Dr Akateng had not discharged the burden of proving racial discrimination in relation to that particular job application.

	There remains the job CC/83.  We think that in arguing this point Mr Adenekan overlooked the several good reasons advanced by Mr Alexander for rejecting Dr Akateng’s application for short-listing.  What he did was to fasten on one comment Mr Alexander made to the effect that Dr Akateng’s account of his 7 months’ experience at Elam Street was wildly exaggerated and too good to be true.  He argued that to fail his application on this issue of credibility, without short-listing him, was unfair and unreasonable.  He should have been short-listed and if Mr Alexander had any doubts about his credibility he should have tested that at an interview.  

	We noted the grounds, all the grounds, advanced by Mr Alexander and indeed by Ms Sadgrove for not short-listing Dr Akateng in relation to this job.  It is clear that the Employment Tribunal gave appropriate weight to each of the grounds advanced by Mr Alexander and we do not accept the submissions made by Mr Adenekan.  If the burden rested upon the employers to test the credibility of an item in an application form by short-listing the candidate, that would be tantamount to saying that where an element of doubt existed on an application form, the applicant should be given a second chance of explaining himself at a short-listing interview, and we do not think that reasonable.  The Employment Tribunal came to the conclusion that there was no evidence which satisfied them there had been racial discrimination in relation to this job application and that is a finding we see no reason to disturb.

	We would like to end by making a few observations about our overview of this case.  Short-listing candidates for job applications is a difficult and somewhat thankless task.  Some employers are more skilled at doing it than others and many a time there must be a disappointed candidate who might be able to say that he or she should have been chosen rather than somebody else who was short-listed.  In those respects that candidate might be said to be unlucky and frequently he carries away with him or her a sense of grievance.  Whilst the Race Relations Act has produced much benefit in the field of employment law, unhappily it does give unsuccessful applicants of this sort an opportunity for venting that grievance.  The failure to short-list is not, in itself, evidence of racial discrimination and over-intense scrutiny of the process is unlikely to produce such evidence.

	In this case, it is our view that it was well nigh impossible to prove discrimination on racial grounds.  We think it is of significance, as the Employment Tribunal found, that a candidate who was Ghanaian was indeed short-listed by the panel.  We think it is significant that there were two separate panels who came to separate conclusions as to who should be short-listed on different job applications.  It would have been a remarkable coincidence if, unwittingly, they had both discriminated against him because of his Ghanaian origins when there is not a shred of evidence to suggest that they conspired together to come to such a conclusion.

	The Employment Tribunal considered this case for 13 days and we are satisfied they judged it with great care and we cannot fault their reasons.  In all the circumstances therefore, we must dismiss this appeal.