Appeal No.EAT/1137/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	           At the Tribunal
	          On 1 May 2003
Judgment delivered on 18 July 2003

Before
THE HONOURABLE MR JUSTICE WALL
MR D BLEIMAN
MR D SMITH

MS CHINEME NWOKE	APPELLANT

LONDON BOROUGH OF BRENT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M KURREIN
(of Counsel)
Instructed by:
North Lambeth Law Centre
14 Bowden Street
Off Cleaver Street
Kennington
London SE11 4DS	
For the Respondent	MR N UNDERHILL QC
(of Counsel)
Instructed by:
London Borough of Brent
Legal and Democratic Services
Town Hall Annex 
Forty Lane
Wembley HA9 9HD	

THE HONOURABLE MR JUSTICE WALL

Introduction
1	This is an appeal by Chineme Nwoke (the Appellant) against the Decision of the Employment Tribunal held at Watford on five days between 29 July and 3 August 2002, followed by deliberations in chambers on 9 August 2002, with the Decision and the Extended Reasons promulgated on 4 September 2002.  

2	The Appellant is a solicitor of black African origin employed by the London Borough of Hounslow.  Before the Tribunal was her claim that she had been the object of race discrimination by the London Borough of Brent (Brent) in Brent’s employment recruitment and selection processes relating to posts with Brent for which the Appellant had applied. She complained to the Tribunal under section 1(1)(a) and 4(1)(a) and (c) of the Race Relations  Act 1976 (the Act).  She alleged four specific acts of discrimination by Brent, They were:- 
(1)	discrimination in the short-listing arrangements for the post of Borough Solicitor in August or September 2000 (the first act);

(2) 	discrimination in the short-listing arrangements for the post of Principal Lawyer in December 2000 (the second act);

(3)	discrimination in the interview process for the post of Senior Lawyer (the third act);  and

(4)	the refusal or deliberate omission to offer the job of Senior Lawyer following an interview on 11 January 2001 (the fourth act).

3.	By a majority, the Tribunal decided that the Applicant had been less favourably treated than her white comparators, but that this had not been on racial grounds in relation to any of the  four acts. Her claim for race discrimination was, accordingly, dismissed.  The Chair, Miss E J McNeill QC was in the majority.  The third members of the Tribunal concluded that there was less favourable treatment on racial grounds in relation to all four acts of discrimination alleged.   
The appeal is against the majority’s findings in relation to three of the four acts complained of (acts one, two and four as identified in paragraph 2 above). Before us, the Appellant abandoned her appeal against the third act. 

4	Although not formally part of its Decision, there was also an issue between the parties in relation to time limits concerning the first act.  It was conceded on the Appellant’s behalf that in respect of her complaint in relation to the first act, was out of time.  Her form IT1 was not issued until 14 March 2001. However, the Tribunal did not deal with the question of the complaint being out of time as a preliminary issue. It heard all the evidence in relation to the first act and reached a conclusion upon it.  Having done so, and having given  reasons for its conclusion that Brent’s behaviour did not amount to race discrimination, the Tribunal then went on to consider whether or not there was in any event jurisdiction to hear the Appellant’s claim in relation to the first act   The majority took the view that it would not be “just and equitable”  to extend time, pursuant to section 68(6) of the Act.  The minority member took a different view and would have exercised his discretion to extend time.  

5.	Apart from the “time” question, the principal point raised by this appeal, in our view, is whether or not the majority gave adequate reasons for the conclusions they reached in accordance with the well-known decisions of the Court of Appeal in Meek v  Birmingham City Council  [1987] IRLR 250 (Meek) and  Anya v University of Oxford [2001] ICR 847 (Anya),  although a substantial amount of time at the hearing of the appeal was taken up with argument on the Appellant’s first ground of appeal, namely an alleged failure by the majority to consider hypothetical comparators: see Balamoody v UK Central Council for Nursing [2002] IRLR 288. 

6.	We say at once that the reasons for the decision are well structured and clearly expressed.  The particular difficulty which we have found in this case – as the judgment will show -  derives from the fact that the manner in which Brent carried out the selection processes for the three posts for which the Appellant applied was manifestly defective. Brent’s own equal opportunities policies and protocols were blatantly disregarded. To take but one example, the Tribunal found unanimously that the Borough Solicitor, Ms Osborne (who had been selected for that post as a result of the process which gives rise to the first act) was motivated by both favouritism and bias when selecting the successful candidates for the posts which are the subject of  the second and fourth acts. 

7.	We wish to make it clear, at the outset of this judgment, that of course we accept that we are bound by Meek and by Anya. We are in no sense seeking to set a higher or different standard for reasons than is identified in those cases.  However, in a race discrimination case, where the Tribunal comes to the conclusion (as the majority did here) that there has been less favourable treatment, and where the conduct of those responsible for the less favourable treatment does not conform to an acceptable standard and gives rise to adverse findings, in these circumstances the need for the Tribunal to give clear and well structured reasons for deciding (if it does) that the treatment was not on racial grounds is, it seems to us, particularly important. It is, accordingly, with that particular thought in mind that we will firstly set out the facts in relation to each of the acts of discrimination alleged.   

The First Act
8.	The Applicant was admitted to the Roll of solicitors in 1992.  It follows that at the time of these events, she was some eight years from qualification.  She had, throughout her career, worked as a lawyer in local government.  Since 1995, she had been the Head of the Housing and Civil Litigation Teams at the London Borough of Hounslow.  In that post, her initial title had been that of Senior Solicitor, but it was changed to Principal Solicitor, Housing, Law and Litigation at some time after December 2000.  It was what became described as a “third tier” post, in that she reported to the Head of Legal Services, who in turn reported to the Borough Solicitor.  

9.	In August 2000 the Applicant responded to an advertisement for the post of Borough Solicitor with Brent.  This would, as the Tribunal pointed out, have involved a substantial step up the career ladder, and almost a doubling of her salary.  However, the Appellant took the view that she met the criteria for the post.  For personal reasons, she wanted to work in Brent. 

10.	The selection process for the post of Borough Solicitor was conducted by Brent in the following way.  It instructed consultants called  Mann Weaver.  Mann Weaver contacted directly a number of persons who were already on their database, including the ultimately successful candidate, a Ms Osborne.  Also on their database were a Mr Agutu and a white male solicitor, who also applied for the post.  Mann Weaver promoted themselves on what they described as a strong emphasis on equal opportunities.  They specialised in acting for clients with diverse customer or client bases, and aimed to reflect that diversity in the candidates who were shortlisted.  

11.	It is important to appreciate that Brent did not place any limit on the number of candidates from which the shortlist was to be selected.  Fourteen candidates applied, and eight were “long-listed” (the description given at the first stage of the shortlisting process).  The candidates longlisted included Mr Agutu, who was approached by Mann Weaver, but was on holiday.  His application was, accordingly, late and his name was not on the written long list first produced to Brent.  With the exception of Mr Agutu, all the candidates were white.  Two other black candidates for the job, including the Appellant, and two Asian candidates were not longlisted. 

12.	One of the candidates long listed was Ms Osborne. She was white and a Principal Lawyer at the London Borough of Lewisham.  The Tribunal found that on paper she was not an obviously strong candidate, as her experience, her paper qualifications (a 2.2 degree) and her salary were notably less than those of other candidates.  She had, moreover, only been qualified as a solicitor for six years, and had only managed a team for just over three years.  Other candidates, including Mr Agutu, had better paper qualifications (a first class degree and LLM) and much longer management experience.  

13	The Tribunal recorded  Mr. Weaver’s reasoning process for not long-listing the Appellant for the post in the following paragraph of the Reasons:
“17.  Mr Weaver considered that Ms Osborne was a stronger candidate than the Applicant in respect of all criteria on the Person Specification, including a criterion labelled “thorough knowledge of local government law”.  He did not take into account that the Applicant had just completed a Diploma in Local Government Law (in addition to her law degree at class 2.1) because he said that giving weight to paper qualifications could disadvantage ethnic minority candidates.  The tribunal found this explanation bizarre.”

14	In our judgment, this is a crucial paragraph in the Tribunal’s Reasons.  The Appellant was not selected for the long list and - inevitably - was not on the shortlist.  It is, accordingly, the decision not to place her on the long list which is the crucial decision and constitutes the first act of discrimination alleged.  Those who selected the short list had no knowledge of her application.  They cannot, accordingly, be said to have discriminated against her.  

15	When Mr. Weaver, after the event, informed the Appellant that she had not been short listed,  the Tribunal records the following:

“She was given positive feedback by Mr Weaver to the effect that her application was crisp, clear and good.  She was told that if there had been scope to take more candidates, she would have been taken.  She was told that she lacked the management experience which Brent required for the Borough Solicitor’s post.”

16	The first reason given by Mr Weaver to the Appellant was manifestly untrue. There was no limit placed on the number of candidates for the long list  Mr Nicholas Underhill  QC, for Brent,  sought to suggest that this was in no sense venal because it may well have been that Mr Weaver was trying to “let the Appellant down gently”.  That, of course, is one possible explanation.  But it is not addressed by the Tribunal.  The majority does not comment on Mr Weaver’s explanation.  

17	Ms Osborne, who was selected, had only been qualified as a solicitor for six years, had only managed a team for just over three years, and other candidates, as the Tribunal pointed out, had much longer management experience. The Tribunal gives it reasons for rejecting the proposition that the Appellant was less favourably treated on the grounds of race in the following paragraph:
“22  The majority of the tribunal (the Chairman and Mr Neave) was satisfied that the reason why the Applicant was not shortlisted for the Borough Solicitor’s post was a lack of management experience at a sufficiently senior level: in shorthand, that her existing post was a “third tier” post.  The Applicant could not demonstrate the experience which Brent required in order to be shortlisted for the Borough Solicitor’s post which was a “first tier” post.  Mr Thakoordin considered that the reason why the Applicant was not shortlisted was that Brent relied on Mann Weaver’s recommendation for longlisting which did not include the Applicant and that Mann Weaver’s longlisting process had not involved a systematic consideration of the Applicant’s applicant against the selection criteria.  Mann Weaver, in the view of Mr Thakoordin, had given information to the candidates it contacted directly on the focus of the client’s requirements.  The majority did not share this view.”

18.	Towards the end of the Reasons, the Tribunal returns to give its conclusion on each of the acts alleged.  In relation to the first act of discrimination, the Tribunal finds that:
“The Applicant was less favourably treated than Ms Osborne in that Ms Osborne was short-listed for the Borough Solicitor’s post and the Applicant was not.  As Ms Osborne is white and the Applicant is black African there is a difference in race”

19.	The Reasons continue:-
“54.  The Tribunal, heeding the guidance in King and Zafar, has considered whether it is satisfied with Brent’s explanation for the difference in treatment which is that the Applicant had insufficient management experience, or, in shorthand that she was a “third tier” and not a “first tier” or “second tier” manager.  
55.  The Tribunal is critical of the selection process conducted by Mann Weaver which was not transparent and not in accordance with Brent’s own guidance to Managers.  The Person Specification was used only as a guide and the application of at least one of the criteria (thorough knowledge of local government law) was bizarre.  
56. The majority of the Tribunal is nevertheless satisfied that the reason for non-selection of the Applicant for short listing was her lack of management experience at a sufficiently senior level and that her race was not an operative cause of her less favourable treatment.  The candidates long listed, including Ms Osborne, were able to show management experience at a more senior level than the Applicant.”

20.	The reasoning of the minority member is contained in paragraph 57 of the Reasons:
“57.  Mr Thakoordin is not satisfied with the explanation given by Brent for non-selection.  He considers that the Applicant was disadvantaged because she was not one of the candidates directly approached by Mann Weaver.  Her application therefore contained less detail than that of Ms Osborne.  The minority member also considers that Brent relied on Mann Weaver’s recommendation which did not involve a systematic consideration of the Applicant’s application against the selection criteria.  The minority member infers that there was less favourable treatment on racial grounds because Brent had a preference for a white candidate.  That is based on the predominately white nature of the long list and the fact that Mr Agatu was not successful at the final selection even though he had greater qualifications and length of management experience than Ms Osborne.”

The Second Act
21.	Both in the second and the fourth acts, the Tribunal finds  discreditable behaviour on the part of the newly appointed Borough Solicitor, Ms Osborne, the product of the previous selection process.  

22.	On 1 December 2000 the Appellant applied for the job of Principal Lawyer (Housing and Litigation) with Brent. The Appellant met the criteria for the post of Principal Lawyer and submitted her application by e-mail.  Unfortunately, in the course of transmission, the final four paragraphs of her application form were omitted.  These contained, inter alia, details of her management experience.  

23	There were twenty applicants for the Principal Lawyer job.  It appears that there were five candidates describing themselves as white, six as Asian, seven as black of African-Caribbean British or other origin, and two “not known”.  

24	Also vacant at the time was a post as a Senior Lawyer, for which the Appellant also applied.  Her application for the post of Senior Lawyer was made on 4 December 2000 and was complete.  It was in similar but not identical terms to the Appellant’s application for the Principal Lawyer post.  

25.	The short-listing process for both posts was carried out by Ms Osborne and Ms Debra Norman,  Brent’s Deputy Borough Solicitor and Principal Lawyer in the Corporate Team.  The shortlisting process took place over approximately two days in December 2000 and covered both posts.  Both Ms Osborne and Ms Norman were aware from the Appellant’s name that she was of black African origin.  

26	The selection process at the shortlisting stage involved Ms Osborne and Ms Norman marking the forms individually against a set of selection criteria and then discussing their results with a view to reaching a consensus on shortlisting on 18 December 2000. 

27	The Tribunal found that Ms Norman carried out the shortlisting exercise conscientiously.  The Appellant would have been on her preliminary shortlist for the post of Principal Lawyer but for the defect in the e-mail transmission.  She was not satisfied that the Appellant had the management experience required for the post, but would have been so satisfied if she had seen the examples given on the part of the form which was omitted on transmission.  When reaching that conclusion, she did not have in mind the contents of the Appellant’s application for the Senior Lawyer’s post.  
28.	For the Appellant, Mr Martin Kurrein points out that there is an internal contradiction here.  If Ms Norman had truly been conscientious, she would have picked up from the Appellant’s application for the Senior Lawyer post the fact that the Appellant had the management experience which she thought had been lacking when preparing her shortlist for the post of Principal Lawyer.  We agree with this observation,  but find it difficult to be critical of Ms Norman.  In dealing with a substantial number of applications in a short period of time, it is perhaps not surprising that she failed to pick up the discrepancies between the two applications, and in any event, the point does not seem to us to go the issue of race discrimination.  

29	More relevant, we think, are the Tribunal’s findings about Ms Osborne.  In paragraph 30 of their Reasons, the Tribunal makes the following findings:

“30  Ms Osborne did not carry out the shortlisting exercise conscientiously.  She gave straight and unqualified ticks in all boxes to two candidates she had worked with: Mr Tsempala (a black African candidate) and Mr Carson, who was one of her colleagues at the London Borough of Lewisham.  In the case of Mr Carson, there was scant evidence of substantial management experience or of experience of LSVTs or similar stock and/or housing management transfers which were two of the criteria to be met or preferably to be met.  The Tribunal rejected Ms Osborne’s evidence that the matters contained in Mr Carson’s application form were capable of providing evidence sufficient to satisfy those criteria and unanimously formed the view that Ms Osborne was biased in Mr Carson’s favour.  This bias was evidence at the final shortlisting stage also where Mr Carson scored more highly in the category “substantial management experience” than the Applicant.  The tribunal is satisfied that even with the final paragraphs of the application form missing, any reasonable assessor must have reached the view that the Applicant had more substantial management experience than Mr Carson.  The Applicant had headed up a team in a substantive management post for more than five years: Mr Carson had headed a team in an acting post for just over a year.  The Tribunal was unpersuaded by Ms Osborne’s contention that supervised articled clerks/trainees from time to time was capable of constituting “substantial management experience”. ”

30	The Tribunal then turned to Ms Osborne’s treatment of the Appellant.  This is what they found:-
“31  Ms Osborne gave high marks to the Applicant in the initial selection process.  Her main reservation about the Applicant’s application was whether there was evidence that the Applicant had experience of and an ability to handle complex litigation.  It was important to Ms Osborne that the Applicant should have had such experience as this was a gap in Ms Osborne’s own experience.  Ms Osborne had in mind the Applicant’s application for the Senior Lawyer post when carrying out her selection for the Principal Lawyer’s post.  The Tribunal is satisfied that if Ms Norman had not had doubts about the Applicant’s management experience, it is probable that the Applicant would have been shortlisted for the Principal Lawyer post.  Another candidate, described as PL3, about whom there were also queries in relation to experience of and ability to handle complex litigation, was nevertheless selected for shortlisting.  Failure to meet these criteria in full was therefore not of itself a reason not to shortlist.
32  The Tribunal is satisfied that the selection criteria were not applied fairly and even-handedly at the shortlisting stage for the Principal Lawyer post.  The result of the shortlisting was that the candidates selected included two white candidates, one black Caribbean candidate and one black African candidate.  In the event, Mr Carson was the only candidate considered appropriate for appointment.  He was offered the job but declined it and it has remained vacant.  Ms Atkins, another former colleague of Ms Osborne at the London Borough of Lewisham, who was recruited to the Senior Lawyer’s post, has acted up in the Principal Lawyer’s post for several months.”

31	In relation to the second act, the Tribunal found that the Appellant was less favourably treated than Mr Carson, in that he was shortlisted for the Principal Lawyer’s post and she was not.  Furthermore, the Tribunal was unanimous in its view that Brent’s explanation for the less favourable treatment was unsatisfactory.  They state (and this appears to be a unanimous view):-

“61 …….. Brent’s explanation, which was repeated to the Applicant in her feedback letter was that there was insufficient evidence on her application form of experience of handling complex matters.  These same doubts applied to candidate PL3 who was marked the same or marginally less well than the Applicant in relation to the criteria involving experience and ability in complex litigation but was nevertheless selected for shortlisting.  The Tribunal did not accept Brent’s explanation as to why Mr Carson was selected for shortlisting and the Applicant was not.  The principal reason why Mr Carson was shortlisted was that he was a candidate who was known personally to Ms Osborne and there was a bias in his favour.”

32	The Tribunal then went on to consider, in the absence of a satisfactory explanation of the Appellant’s treatment, whether it could be inferred that her treatment was on racial grounds.  The majority concluded that it could not.  They reminded themselves that bias was not necessarily discrimination.  The majority held that the proper inference was that the less favourable treatment was attributable to a number of factors:-

“63 ………… the exercise of favouritism towards known candidates irrespective of race (the Tribunal reminded itself that Mr Tsempala is of black African origin); the lack of a complete application form from the Applicant; a failure to apply the shortlisting criteria in a careful and conscientious fashion which applied across the board to all candidates; and the fact that the Applicant submitted a form which lacked detail in particular in relation to complex litigation.  The majority took into account that the shortlist of four included two white candidates and two black candidates, one of whom was black African.  If the Applicant had been a white candidate, the probability is that she would have been treated in the same unsatisfactory way.”

33.	The minority view concluded that the less favourable treatment was on racial grounds.  The reasons given were as follows:

“64. ….. The two white members of the shortlisting panel favoured Mr Carson as a candidate from their own race.  Mr Tsempala, who was given all ticks on Ms Osborne’s first shortlisting form was described by Ms Osborne as “good”, whilst Mr Carson, with the same number of ticks was described as “excellent”.  Mr Carson’s score on joint shortlisting remained broadly the same as when he was shortlisted individually by the panel members whilst in relation to the Applicant both shortlisters reduced their scores.  The minority believed that there was manipulation in the scoring system which was to the disadvantage of the Applicant because she was a strong contended [sic] for the post.”

The fourth act
34	The Appellant was shortlisted and interviewed for the Senior Lawyer post.  Before the Tribunal, she made two complaints:-
(1)	that there was a discriminatory hostility shown towards her during the 
interview itself, and
(2) 	that the process of assessment by the interview panel was discriminatory.  
Before us she only pursued the second of these allegations.  

35	In this instance, the Appellant was one of thirty candidates.  She was shortlisted.  She was one of twelve candidates shortlisted, of whom nine were white and three were black African.  All the short listed candidates underwent a critical thinking test before the interview.  The Appellant came third in this test.  The candidate who performed best was Ms Atkins, who was white. 

36	The Tribunal deals with the interview in paragraphs 36 - 42 of its Reasons.  Given that the Appellant no longer alleges discrimination in the interview process, we can turn to her assertion that there was discrimination in the refusal or deliberate omission to offer her the post of Senior Lawyer following the interview.  The Tribunal found as follows:
“42  At the conclusion of the interview, Ms Osborne asked the other panel members who they considered to be their first choice for the post.  They both identified Ms Atkins.  The assessment forms were not discussed and although the panel members had placed different candidates in second and third places, these further candidates were not discussed.  Ms Osborne had placed a white candidate (SL5) in second position.  SL5 had “fully met” fewer of the interview criteria than the Applicant.  Ms Norman and Mr Upadhyay had both placed an Indian candidate (SL4) in second position and a black African candidate (SL2) in third position.  
43  The Applicant was informed that she had been unsuccessful in her application for the Senior Lawyer post by telephone on about 18th January 2001.  She was given written notification in a letter dated 25th January 2001 which she received on 26th January 2001.  She immediately requested feedback in relation to both the Principal Lawyer and the Senior Lawyer posts which was provided by a letter dated 31st January 2001 which she received on 2nd February 2001.  
44    The feedback in relation to the Principal Lawyer post was that the shortlisting panel did not feel that she demonstrated in her application form sufficient experience of handling complex matters.  In relation to the Senior Lawyer post, it was felt that she had not said much about the complex matters she had worked on and that, whilst she was managing the workload of her team, she had not been dealing with this sort of litigation herself for some time.  She had not elaborated sufficiently on her experience in the past and her answer to the Human Rights Act question was described as “rather weak”.
45    Brent has a Guide for managers in relation to recruitment and selection.  That includes at paragraph 23 guidance on deciding who to appoint.  In a number of respects that guidance was not followed in any of the three selection exercises.”

37	In relation to the interview process, the Tribunal was unanimous, once again, in concluding that it was deficient in a number of respects.  In particular, questions did not adequately address the criteria to be tested; there was a lack of uniformity between the panel members as to which criteria were marked in relation to each candidate; and there was a failure to discuss the assessments, which were there to ensure fairness and objectivity, at the conclusion of the interview process.  

38.	In relation to the refusal or deliberate omission to offer employment to the Appellant, the Tribunal was unanimous that the Appellant was less favourably treated than Ms Atkins.  Once again, the question was whether or not that less favourable treatment was on grounds of race. 	The Tribunal’s Reasons conclude:
“72     The majority of the Tribunal was satisfied that the Applicant did fail to give sufficient evidence of her experience and ability in complex legal matters.  The minority was not so satisfied.  The Tribunal was, however, unanimously not satisfied with the explanation that Ms Atkins was genuinely a stronger candidate.  The interview process was so flawed that it was not possible to draw such a conclusion. 
73     The majority of the Tribunal did not infer that the less favourable treatment was on racial grounds.  On the balance of probabilities, Ms Atkins was selected in preference to the Applicant because she had previously worked with Ms Osborne and there was a bias in favour of candidates known to Ms Osborne.
74    The minority view was that the decision not to appoint the Applicant was on grounds of race.  That inference was drawn from the fact that the successful candidate was white and known to Ms Osborne.  There was considerable bias in the process so far as there was no reference to the equal opportunities guidelines or objectivity in the evaluation process regarding the most suitable candidate meeting the criteria.”
  
The grounds of appeal
39	Before addressing the question of whether or not the Tribunal’s reasons are Meek/Anya compliant, we need to address the Appellant’s first ground of appeal. On her behalf, Mr Kurrein spent a considerable amount of time seeking to persuade us that the Tribunal had failed to consider or apply the principles set out in Balamoody -v UKCC [2002] IRLR 288, in that the Tribunal failed to construct and consider any hypothetical comparator.  

40.	With all respect to Mr Kurrein, we do not think that this point is either open to him or, even if it were, that it advances his case.  The hearing before the Tribunal was expressly conducted on the basis that the Appellant was comparing herself with identified comparators, respectively Ms Osborne, Mr Carson and Ms Atkins, and no other actual or hypothetical comparators.  Accordingly, it is not open to Mr Kurrein, in our judgment, to go behind that approach on appeal.  

41.	Furthermore, the point does not assist him.  The Tribunal found in each case that the Appellant had been less favourably treated than the actual comparator.  The question was whether or not the less favourable treatment was on the grounds of race.  The hypothetical comparator in these circumstances is, we think, simply a person with all the Appellant’s qualities but with a white face.  In these circumstances, the notional concept of a hypothetical comparator is of no relevance.  
Meek / Anya compliance: the argument for the appellant
42	Mr Kurrein placed heavy emphasis on the brief decision of the Court of Appeal in Anya  The Tribunal referred to Anya in paragraph 7 of its reasons when directing itself on the law. This is what it said: -

The tribunal was also referred to the judgment of Sedley LJ (actually it is the judgment of the Court) in Anya and to the passage at paragraph 8 that it is not unduly onerous to expect an employer to explain its reasons for treating an applicant in a particular way but that evidence of bias or that equal opportunities procedures were not used when they should have been point to a possibility of conscious or unconscious racial discrimination. In each case, the tribunal must consider conscientiously whether such an inference is properly to be drawn. An inference should only be drawn if the primary facts justify the drawing of such an inference  

43.	That, in our view, is a reasonable summary of paragraph 8 of the judgment of the Court of Appeal in Anya and reflects the anxiety which we have felt about Brent’s selection processes.  Mr Kurrein submitted, however,  that the Tribunal did not take it properly into account.  He pointed to paragraph 21 of the judgment, in which the Court had said: - 
….The choice between these two comparably well qualified candidates depended entirely on how the panel viewed  their personal and professional qualities. Such a judgment is notoriously capable of being influenced, often not consciously, by idiosyncratic factors, especially where proper equal opportunity procedures have not been followed. If these are to any significant extent racial factors, it will in general be only from  the surrounding circumstances and the previous history, not from the act of discrimination itself, that they will emerge. This court and the EAT have said so repeatedly and have required tribunals  to inquire and reason accordingly.

Mr. Kurrein submitted that the Tribunal failed to consider from the surrounding facts whether Brent’s treatment of the Appellant was the result of unconscious discrimination.  

44	Basing himself on Anya, Mr Kurrein submitted that the Tribunal (or more accurately the majority) had failed to provide adequate reasons for its conclusion that the ground of the less favourable treatment in relation to the second act, about which complaint was made, was favouritism.  He submitted that such reasons as the majority provided were perverse, in that it was the panel which selected white people for all the posts, and the majority of panel was not linked to Lewisham (from which Mr Osborne came), or under Ms Osborne’s control in any (evidenced) way, so that the Employment Tribunal could not rationally have concluded that any favouritism by Ms Osborne was the ground of the panel’s treatment, but for which the Appellant would have been appointed.  The Tribunal, he submitted, should have gone on to consider whether or not the Appellant’s race was a significant operative cause of her failure.  

45	Mr Kurrein went on to argue that the failure to apply the principles in Anya, and in particular the failure to consider whether Brent had been influenced by unconscious discrimination. In this respect he relied on a case called  Hayes -v- Charmain Underwriting Agents Ltd. These failures, he argued, rendered the Decision non-compliant with the principles set out in Meek.  

Meek / Anya compliance: the argument for Brent
46	For Brent, Mr Nicholas Underhill QC submitted that this was a straightforward case of an appellant trying to dress up a factual challenge as one of law.  He submitted that the Tribunal’s Reasons were clear, systematic and concise.  He argued that if Reasons of this quality were to be held inadequate or defective, the task of Tribunals would become almost impossible.  

47	Developing his argument on the Anya line of authorities, Mr Underhill submitted that the criticism of the Tribunal’s reasoning in Anya was based specifically on its failure to address the critical issues in the case.  He cited paragraph 15 of the Court of Appeal’s judgment which identified a number of events prior to the interview on which it was necessary for the Tribunal to make findings:-
“15   In the present case the industrial tribunal embarked in exemplary fashion on the methodical approach which this court has said is essential.  In paragraph 16 it tabulated five prior events put in evidence by Dr Anya as evidence of hostility on the part of Dr Roberts and denied or explained, as in each case the industrial tribunal records, by Dr Roberts himself and by other witnesses.  They were, in brief, that Dr Roberts had not given Dr Anya adequate research guidance; had not given him the opportunity he gave others to co-propose research projects; had discouraged or blocked him from publishing research papers; had not given him the opportunity to present his work at scientific conferences; and had allocated him no research students in contrast to other post doctoral research assistants.  These allegations were followed, in paragraph 17(b), by another which had emerged in disclosure of documents: that in the unsuccessful funding application to the Engineering and Physical Sciences Research Council Dr Lawrence had been named as the intended research assistant.  Even more directly related to the material job application is the other allegation set out in paragraph 17: that Dr Anya was notified by Mr Briant, the eventual panel chairman, of the coming opportunity in terms markedly less encouraging than those in which Dr Lawrence was notified of it.  On none of these issues, from first to last, did the industrial tribunal record any conclusion as to where the truth lay and what, if anything, it indicated in terms of racial bias.”

48.	Mr Underhill submitted that the Tribunal in the instant case had not fallen into this error.  It had provided reasons for deciding that there was no racial discrimination in the less favourable treatment which the Appellant received.  For example, in relation to the fourth act, the Tribunal’s obligation was to give adequate reasons for its decision that the Appellant’s failure to get the job was not on racial grounds.  He submitted that the Reasons told her why her claim failed:  in essence: “your claim failed because the Tribunal believed that the reason why Ms Osborne preferred Ms Atkins was because she already knew her, not because of the difference in race.” That, Mr Underhill submitted, satisfied both the Meek and Anya tests.  

49	Similarly, in relation to the second act, the decision by the majority that the process was equally unsatisfactory for each of the candidates, and was not thus racially motivated, was sufficient.  Similar considerations applied to the fourth act. 

Analysis and Discussion: the first act 

50.	We have not found this an easy appeal.  We recognise the force of Mr Underhill’s submissions.  We have already acknowledged that the Tribunal’s reasons are well structured and clearly expressed. We have no wish to render the task of Tribunals more difficult than it is already.  We fully accept that where the reasoning process is adequate, detailed elaboration of it are not required.  

51.	That said, however, we have come to the clear view that the Tribunal’s Reasons in relation to the first act are inadequate. The Tribunal comments that Mr Weaver’s explanation for refusing to take the Appellant’s qualifications into account was “bizarre”, but does not attempt to analyse that comment any further.  In our judgment, this is a material omission on the Tribunal’s part. The simple fact of the matter is that Mr Weaver had ignored two important aspects of the Appellant’s qualifications for the post (her good degree and her Diploma in Local Government Law) because she was black.  The Act requires the Tribunal to consider whether the Appellant was less favourably treated, and if so, whether or not the treatment was on racial grounds.  The Tribunal found that the Appellant was less favourably treated in relation to the first act. There is no appeal against that finding, which is plainly correct.   

52.	At the very least, in our judgment,  Mr Weaver’s extraordinary remark raises the real possibility that an important element of his decision not to place her on the long list was racially motivated.  She had good qualifications.  He ignored those qualifications because she was black.  At the very lowest, in our view, that fact required evaluation by the Tribunal. 

53.	The issue to be addressed was the reason or reasons why Mr Weaver did not place the Appellant on the long list.  In our judgment, the Tribunal does not properly address that issue. It is at this point that the Anya  approach is relevant. Where a particular process is manifestly unsatisfactory, and where the possibility of race discrimination is plainly raised by what Mr Weaver told the Tribunal about failing to take into account the Appellant’s academic qualifications because she was black, what is required, in our view, is a paragraph in the Reasons explaining why it was that the Tribunal felt able to disregard those two plainly important aspects of Mr Weaver’s evidence. In addition this omission is in our view highlighted by the fact that  the Tribunal makes no comment on the obvious untruth Mr. Weaver told the applicant about the reasons for her non-selection. He appears to have given her two reasons, one of which was patently untrue.  Why is that one ignored and the other chosen? The Tribunal does not explain. 

54	We have to say that we do not find the minority view altogether satisfactory either, since neither minority or majority seems to us to address the critical issue that Mr Weaver’s application of an important element in the criteria - the Appellant’s good degree and knowledge of local government law - was racially distorted.  In our judgment, the Appellant is entitled to say: “the evidence showed that Mr Weaver discriminated against me by failing to take account of my qualifications because I was black”.  We do not think that an overstatement of the position: but at the very least, it is a point which was required to be dealt with by the Tribunal, and it was not.  

55	Mr Underhill sought to persuade us that to suggest in circumstances such as these that it was necessary for the Tribunal to explain its reasoning any further, or to give an analysis of why it had concluded as it had was, in reality, to add nothing. We disagree.  We do not think it necessary for this to be an elaborate process, but, as Meek makes clear,  the Appellant is entitled to know why she lost.  In our judgment, it is not enough, in this instance, for the majority to say that she was not long-listed and thus not short-listed because she lacked management experience at a sufficiently senior level.  That appears to have been only one element of Mr Weaver’s thinking.  His explanation contained manifestly unsatisfactory elements.  He did not tell the Appellant the truth. If the Tribunal was to accept one element of it, it needed to explain – simply and shortly - why it accepted that element and rejected the others.  That is not an over-elaborate intellectual process: it is, in our judgment, an essential judicial function.  

56	For all these reasons, we do not think that the Tribunal’s reasoning on the first act of discrimination is Meek compliant, and subject to the question of the Tribunal’s jurisdiction to entertain the Appellant’s claim under this head, we would remit this issue to a different Tribunal for re-hearing.

The second and third acts – a general comment
57	The same difficulties bedevil the other two acts of which the Appellant complains.  In our view, it is incumbent on an employer such as Brent, in conducting  selection processes for important posts, to follow its own procedures, and, in particular, to ensure that its equal opportunities policies are transparently put into effect.  We do not wish to overstate the case.  However, we take the view that the post of Borough Solicitor is an important and responsible one, and that it is reasonably to be supposed that its incumbent will behave properly and responsibly.  

58.	In relation to acts two and four, it is plain from the Tribunal’s findings that Ms Osborne did not behave properly.  She was found guilty by the Tribunal of failing to follow proper procedures, and of bias and favouritism.  The procedures which, as Borough solicitor,  we assume she expects to be followed by others in the Borough were disregarded in material respects..  In our judgment, quite apart from the inherently unsatisfactory nature of Ms Osborne’s  conduct,  it undoubtedly renders the task of any Tribunal hearing a claim of race discrimination  all the more difficult.  If proper procedures have been followed: if the process has been transparent and in accordance with good practice, no proper complaint of race discrimination should be capable of being made, or if it is made, should be capable of ready resolution by reference to the open nature of the process, and obedience to the transparent criteria applied.  By contrast, when the process has been corrupted by bias or favouritism, the difficulty of excluding racial motivation is, in our judgment increased, as is the need for careful explanation by the Tribunal of why race discrimination has been discounted.  

59.	Brent asserted that its motivation for its selection of Mr. Carson and Ms Atkins for the posts of Principal Lawyer and Senior Lawyer was bona fide. That was rejected by the Tribunal.  In these circumstances, as we have already stated, it seems to us particular incumbent on a Tribunal, if it is to exonerate a body such as Brent from race discrimination, to examine the evidence with  care and to explain its reasoning process fully and clearly.  

60.	In our judgment, this responsibility is heightened when the Tribunal is itself split - as it was here.  Mr Underhill asserts that there is no duty on the majority of the Tribunal to explain why it had disagreed with the minority.  That may technically be correct.  However, in our view, it is plainly good practice, and we would regard it as being on the facts of this case an important element in ensuring that the Reasons were Meek compliant. 

The second act
61.	In relation to the second act, the Tribunal identifies a number of reasons for finding that the less favourable treatment was not on racial grounds. These are set out in paragraph 63 of the Reasons, which we have cited at paragraph 32 of this judgment.

62.	In our view, these reasons are Meek and Anya  compliant.  Bias is not necessarily discrimination.  Ms Osborne’s favouritism included both a white and a black candidate. The less favourable treatment was due to a number of factors, which are then identified. There are specific findings that Brent’s failures to follow its own procedures applied across the board to all candidates. The incomplete form contributed. Had the Appellant been white, she would have been treated in the same unsatisfactory way. 
63	Whilst the Tribunal’s conclusion is not attractive, and does Brent no credit, it is, in our view, a conclusion which, on its findings, the majority was plainly entitled to reach. Although tersely expressed, it encapsulates a legitimate reasoning process and enables the Appellant to understand why she did not succeed. She was part of a flawed and unfair process, but the flaws and the unfairness are identified and an explanation is given for why the Tribunal found they were not racially motivated. 

64.	In our judgment, accordingly, the majority of the  Tribunal was entitled to reach the conclusion that the Appellant’s claim in relation to the second act was not made out, and gave adequate reasons for so finding. The appeal in relation to this part of the claim cannot, accordingly, be sustained.

The fourth act 
65	Once again, the critical question is whether or not the reasoning of the majority in relation to the fourth act is Meek/Anya compliant.  Once again, the conclusion which  the majority reaches is a thoroughly unattractive one. The interview process was so flawed that it was not possible to draw a conclusion that Ms Atkins was genuinely the stronger candidate.  Ms Atkins was selected in preference to the Appellant because she had previously worked with Ms Osborne and Ms Osborne had a bias in favour of candidates she knew.  

66	For Brent, Mr Underhill sought to persuade us that such behaviour on Ms Osborne’s part was not particularly venal, and that twenty years ago, it would not have been criticised:  indeed it might have been approved as a sensible method of selecting a fellow employee.  We cannot accept that submission.  In our view, Ms Osborne’s behaviour was reprehensible.  She is the Borough’s Chief Solicitor. She is charged with the responsibility of ensuring that the borough’s equal opportunities policies are implemented and, in this instance, that its  procedures for the fair selection of employees are carried into effect.  In both respects, her conduct fell far short of that which can reasonably be expected of a person holding her position.

67.	The question, however, is whether or not the Tribunal should have drawn an inference from Ms Osborne’s behaviour that it was based on the grounds of race.  The reasoning of the majority is, once again, sparse.  There is none of the collection of reasons given as there are in relation to the second act.  Mr Underhill says that this is because it was not necessary to say any more: indeed, he argued, what more could be said?  Ms Osborne was guilty of favouritism and bias, but neither manifestation was racially motivated.  

68.	In this respect, we have considerable sympathy with the minority view expressed in paragraph 74 of the Tribunal’s reasons and reproduced at paragraph 38 of this judgment.  Although Ms Atkins was the first choice of the entire panel, the Tribunal was unanimous in being dissatisfied with that explanation since the interview process was so flawed that it was not possible to draw such a conclusion.  In these circumstances, the inference drawn by the minority seems to us one which was plainly open to it. 

69.	In the final analysis, however, and with some hesitation, we have come to the view that the majority was entitled to come to the view that Ms Osborne’s bias in favour of Ms Atkins was not racially motivated, and that it has given a sufficient explanation for why it reached that view.  In this regard we cannot ignore the majority’s finding in relation to the second act,  that Ms Osborne’s favouritism and bias towards Mr. Carson was not racially motivated, but based upon her preference for those whom she knew and with whom she had worked.  Against that background, a finding that Ms  Atkins fell into the same category is, we think, a sufficient reason for the conclusion reached by the majority, and explains to the Appellant why she lost. In these circumstances, the Appellant’s challenge to the fourth act likewise fails. 
Should the Tribunal have extended time in relation to the first act?
70	This leaves the final point relating to extensions of time.  The majority sets out its reasoning on this aspect in paragraph 58 of the Reasons: the minority’s reasons follow at paragraph 59: -

“58  The majority considers that there was in any event no jurisdiction to hear the Applicant’s claim in respect of the Borough Solicitor’s post.  The claim was made outside the three month period stipulated in section 68(1) of the RRA and the majority would not exercise its discretion to extend time on the grounds that it is not just and equitable to do so.  The majority accepted that the Applicant first formed the belief that there had been race discrimination on 11th January 2001 and that it was reasonable for her to wait until she knew the result of her application for the Senior Lawyer’s post before bringing proceedings.  However, after learning that she was not to be offered the Senior Lawyer’s post on about 18th January 2001, she should then have presented her application within a reasonably short time.  In fact she waited until 15th March 2001.  The majority took into account that the Applicant applied for funding from the Commission for Racial Equality and did not receive a response to her application until April. The majority also took into account that the Applicant was very distressed by the belief that she may have been the victim of race discrimination.  On the other side of the scales, the Tribunal took into account that the time limits in the RRA are short and of a jurisdictional nature.  Although not an employment lawyer, the Applicant is a solicitor experienced in litigation who was well aware of the importance of time limits.  She waited for nearly two months after learning that she was not to be offered the Senior Lawyer’s post before presenting her application and there was no explanation for this period of delay.

59   The minority of the tribunal would exercise discretion to extend time on the grounds that it is just and equitable to do so.  The Applicant had sought help from the Commission for Racial Equality and did not receive an answer until April 2001.  She had intended to bring a claim from about 18th of January 2001.  She was waiting for a response from the CRE but decided to proceed in the absence of a response.  These factors outweigh any prejudice to Brent.”

The argument for the appellant on the time point
71.	For the Appellant, Mr Kurrein argued that the Tribunal erred in law in its application of section  68  of the Act. He submitted that  in all the circumstances of the case, it was plainly  just and equitable to hear the Appellant’s complaint. He suggested  that the question of whether there is a practice or continuing act of discrimination was a notoriously difficult one,  which had occupied the appeal courts most recently in Hendricks v Metropolitan Police Commissioner [2003] IRLR 96, and that the Tribunal had  failed to evaluate the Appellant’s evidence that she was under the impression (albeit ultimately mistaken) that she had three months from the last act in what she saw as a pattern of discrimination.

72.	Mr. Kurrein also argued that the majority of the Tribunal took account of irrelevant matters in assessing its discretion, for example the distress felt by the Applicant by the thought that she may have been the victim of race discrimination. The Tribunal had failed to apply the principle that an understandable misapprehension as to the state of the law is a relevant factor in deciding whether to extend time: - see British Coal Corporation v Keeble [1997] IRLR 336.  He also submitted that the Tribunal had failed to consider whether any and if so what prejudice had been caused to the Respondent, and thereby failed to apply the principle that the most important factor in whether to extend time is whether the delay has affected the ability of the Tribunal to conduct a fair trial of the issues: - see  DPP v Marshall [1998] ICR 518).  The minority did have regard to that principle, considered it and conducted a proper balancing exercise.  The majority failed to do so or to give any indication that there was any prejudice to the Respondent.

The argument for Brent on the time point

73.	For Brent, Mr. Underhill devoted a considerable part of his skeleton argument to this issue.  He acknowledged that the majority did not expressly refer to any prejudice that would be suffered by Brent if the time limit were extended.  He argued, however, that  there is always a degree of prejudice to an employer who is required to meet a claim brought months after it ought to have been brought.  At the very least, he is prejudiced by having to meet a claim which would otherwise have been automatically dismissed.  Further, where there are factual issues witnesses’ memory of events will inevitably be less good than it otherwise would have been.  Furthermore, it was prejudicial in itself for a “stale” claim to be resurrected.  These factors are inherent in all such cases and do not need to be spelt out.  He argued that we should not assume that an obvious consideration was not taken into account only because it was not expressly mentioned: see Retarded Children’s Aid Society v. Day [1978] ICR 437, per Lord Denning at p.443 C-E and per Lord Russell at p.444 D.
74.	Mr. Underhill accepted that in the instant case the delay had patently not affected the ability of the tribunal to conduct a fair trial of the issues. That did not mean, however, that it was automatically just and equitable for time to be extended. Prejudice was not the predominant or over-riding consideration.  Thus it is entirely open to a Tribunal to decide that justice and equity do not require extension of the time limit even if the prejudice to the respondent from the delay is small or non-existent - e.g. where there is no adequate explanation for the delay, or it is very long, or the claim is self-evidently weak.  He pointed out that in Robinson v. The Post Office [2000] IRLR 804 the EAT upheld a refusal by an Employment Tribunal to extend time under the equivalent provisions of the Disability Discrimination Act where the delay was only some three weeks and the Tribunal expressly found that the respondent had suffered no specific prejudice.  Lindsay P. had re-asserted the proposition that the discretion to extend in discrimination cases should be exercised with some strictness (p. 809, para. 32): thus, “justice and equity” must give due weight to the general desirability of enforcing short time limits in such cases.  Robinson had been  expressly approved by the Court of Appeal in Apelogun-Gabriels v. Lambeth LBC [2002] ICR 713

75.	Mr. Underhill argued that in the present case the decisive consideration for the majority was that the Appellant, who was a litigant well able to look after herself, had delayed for almost two months without giving any adequate explanation.  That, he submitted  was a legitimate assessment, and one with which we should be very slow to interfere. The Appellant had was informed that she had not been short-listed  on 4th October 2000.  These proceedings were commenced on 15th March 2001, that is to say some almost six months later. 

76.	Mr. Underhill pointed out that it was common ground that the Appellant’s  claim was thus prima facie out of time. Thus  the issue was whether the Tribunal should use its discretion under s.68 (6) of the Act. It was important that the Tribunal did not decide the point on the basis that the claim should have been started within the original three months.  The majority accepted that it was reasonable for the Appellant not to commence proceedings until mid-January, when she first expressed a belief that she had been the victim of discrimination and learnt of her non-selection for the Senior Lawyer post.  Its decision nevertheless to decline to exercise jurisdiction reflected the further delay between that date and the eventual issue of proceedings in mid-March.

77.	As to the manner in which the Tribunal had approached the issue, Mr. Underhill accepted that, strictly logically, the jurisdiction issue should come first.  In fact, of course,  the Tribunal had considered the substantive issue first, on the assumption that it had jurisdiction,  and dealt with limitation only as a fallback.  He submitted that the Appellant  needed to win on both bases. 

Conclusion on section 68
78.	On this part of the case,  we have reached the conclusion that Mr. Underhill’s submissions are to be preferred. It would, we think, have been preferable had the Tribunal acceded to Brent’s submission to deal with  the section 68 point at the outset as a preliminary issue. The first act was a discrete event. Mr. Weaver does not appear to have played any part in the second, third and fourth acts, and it was reasonably clear that the first act was not the first stage of a course of conduct. The disadvantage of hearing the evidence and then ruling on jurisdiction is that the Appellant may well be left with a sense of injustice if – as turns out to be the case – we take the view that, as a matter of law, the Tribunal’s reasoning process in relation to the first act is defective so that it should be re-heard on its merits, whilst at the same time we uphold the Tribunal’s view that it should not extend the time, thereby preventing the application being heard.  Having said that, however, we quite understand why the Tribunal resolved to hear all the evidence before reaching a view on jurisdiction: it certainly cannot be said to be an error of law, and no  complaint is made about it in the notice of appeal.

79.	In our view the majority of the Tribunal’s conclusion on section 68 is one which it was entitled to reach on the material before it.  Whilst, in reality, there was no prejudice to Brent, we accept Mr. Underhill’s submission that prejudice is not an over-riding consideration. It seems to us that the points made by Lindsay P in Robinson are very much in point  The Appellant was a solicitor.  She ought to have been fully aware of the relevant time limits. In our view the Tribunal was entitled to find that the Appellant had waited for nearly two months after learning that she was not to be offered the senior lawyer’s post before presenting her application, and had given no adequate explanation for this period of delay. On that basis, we cannot say that the refusal to extend the time either contains an error of law or represents an inappropriate exercise of discretion. 

The outcome
80.	In the event, therefore, despite our views about the Tribunal’s reasons in relation to the first act, the appeal must be dismissed. We reach this conclusion with some regret. We take the view that the Appellant was badly treated by Brent, which emerges from this case with no credit whatsoever.  We are, however, a Tribunal of law,  and however sympathetic we may feel towards the Appellant, we have reached the conclusion that the law does not provide the Applicant in this case with a remedy under the Act.