United Kingdom Employment Appeal Tribunal

“76. We were satisfied, more generally, for the reasons that we have given, that Mr King’s evidence, supported by the documentation, reflected the genuine conclusions to which the panel came.  To the extent that there were errors made, which Mr King acknowledged, and some variations in the degree of rigour with which the exercise was approached, this was explained by the element of lack of more thorough training and a more systematic approach taken to the exercise as a whole.  The Tribunal considered that these aspects, combined with the fact that this was an assessment that was in fact only carried out by a two‑person and not a three‑person panel, gave greater scope for subjectivity to creep into the exercise.  But we were satisfied that the decisions taken were by reference to the views formed genuinely by Mr King and his colleague, Mr Quick, of the written material available to them; and that the Respondent had discharged the burden on it, to show, on the balance of probabilities, that the decisions they took were not, consciously or subconsciously, to any degree influenced by grounds of race or religion.

77. This stage of the exercise was, we noted conducted entirely on paper.  The shortcomings of the process that we have described made it less than wholly transparent to candidates.  They may perhaps have contributed to the Claimant’s strong feelings of dissatisfaction, concern or suspicion, not merely about unfair treatment, but as to whether her race or religion might have been a factor in her failure to secure an interview.  Be that as it may, we were ultimately satisfied, on the evidence available that was put before us, that the Respondent had shown that these claims were not well‑founded and we dismissed them.”

“He suggested that this showed that the panel were looking for evidence where they could find it, to help them choose or reject the candidates who they wanted to choose or reject.  However, as we have recorded, the guidance to candidates was in any event misleading and did not accord in fact with how this selection process was carried out, because there was no separate assessment process nor any requirement for presentations to be made at the interview stage.  We also accepted Mr King’s evidence as genuine, that he and Mr Quick did take the approach of looking at the whole of the written material available to them when considering the application of every candidate.  This did give us cause for concern that there was a greater element of risk that cherry picking could then occur; but bearing in mind that this approach was taken to all the applications, we did not as such infer from the fact that it was adopted, that it was done with that intention or purpose.”

At paragraph 54 it continues:

“The Claimant was, entirely unsurprisingly, deeply troubled by this aspect.  She considered it to be particularly unfair to her, because she had taken great care to follow the instructions and to ensure that she presented the relevant evidence either in her CV or in her supporting statement as the case may be.  But we did not infer that it was done with the purpose of being unfair, or giving an unfair advantage, to any particular candidate or candidates.”

“Having compared the evidence provided by the five shortlisted candidates with the evidence that I presented, and the selection panel’s comments, I have been driven to the conclusion that in my case the selection panel was looking for reasons to sift me out, as opposed to conducting a fair and objective assessment as to whether I had demonstrated that I met the criteria for the post.” (Quote unchecked)

Mr Hay says that that is not what he meant, and we can accept that there may be some ambiguity in the phraseology, in particular of the Appellant’s witness statement, about the extent to which a deliberate course of action was being suggested.  But what matters for present purposes is that that was plainly how he was understood, and that in our view explains the Tribunal’s choice of language.  It was making the point that there was no intention to be unfair towards the Appellant because it understood that the contrary was being suggested.  Its findings in paragraphs 53 and 54 are clearly intended to, and do, exclude any discriminatory motivation in the method adopted.  (We use the term “motivation” in the sense used by Lord Nicholls in Nagarajan, i.e. to mean the relevant mental processes of the Respondent, not as equivalent to “motive”.)  It is to be noted also that the Tribunal found that all the candidates were in this respect treated in the same way.

(a) Candidate 12, who was in fact the candidate eventually chosen, was judged by the panel to have met the “leadership and teamwork” competency, when the Appellant was judged only to have done so partially.  Mr King accepted in cross‑examination that in fact candidate 12’s application and the Appellant’s were very similar in this respect.  He put forward a ground of distinction, but Mr Hay submitted that it was evident that this was done on the hoof and did not in fact correspond to the published criteria.

(b) A similar point was made in relation to the “communications” competency.

(c) In relation to the competency of “managing performance and resources”, one of the shortlisted candidates was found to have met the criteria in full.  Mr King however accepted in cross‑examination that that was simply wrong.  The application of the candidate in question had made no reference at all to budget management, which was one of the specified sub‑heads.  Mr King acknowledged that this was a mistake.

“It seemed to the Tribunal that the attention given by the panel to the details of the applications in this area of communications was not as thorough and careful as it was in relation to strategy.  But we noted that there was some equivocation in relation to a number of candidates, as we have described.  Mr King, as we have described, acknowledged with hindsight that the Claimant had provided sufficient evidence on the first bullet point and had been wrongly judged on this point.  We accepted from Mr King that there was however a general focus more on evidence of personal communication activities at grass roots level.  Having regard to the fact that we accepted that the assessments of the panel were based on their reading of each candidate’s application materials as a whole, we were satisfied that the assessments of all the candidates on this competency were genuinely reached on the basis of material before the panel, although they were not as careful and thorough as they ought to have been.”

At paragraph 69, in relation to point (c), the Tribunal said:

“The shortlist record for candidate 26 was that they had met this competency.  However in cross‑examination it was put to Mr King that there was no reference by this candidate in their application to budget management.  Mr King responded that on re‑reading the papers he agreed with that, and he now questioned whether they had given the right marking to this candidate.  In further questioning he said this was the sort of thing the Concerns Panel process might pick up.  It was put to him that the panel’s verdict on this candidate on this competency was inconsistent with their verdict on the Claimant, who did address the matter of budget management.  Mr King’s response was that he was still content with the Claimant having been marked as partially met, but the question mark was over whether candidate 26 had been given the correct mark.  Having heard and seen Mr King cross‑examined, and give his answers in this way, we concluded that this evidence was genuinely given.  We considered that Mr King was genuinely prepared to admit an error on assessing his candidate on this criterion; but genuinely maintained that this did not however affect the validity of the assessment of the Claimant, because he considered that one did not necessarily, or in his mind, in fact, follow from the other.”

And at paragraph 72, in relation to point (b), the Tribunal said this:

“The Tribunal found the bullet points for the person specification for this competency to be particularly grey and open to various interpretations and assessment of the evidence presented by a given candidate, thus leaving considerable room for panel discretion.  However, it also appeared to us that this panel did attach particular weight to the concept of an ambassadorial role; and we concluded that their genuine verdict on the Claimant was that her example, being primarily about the development of a diagnostic tool, was not a sufficiently good example of this type of activity.  We accepted that the panel considered candidate 12’s examples to be better suited to meeting this emphasis.”

“The Claimant referred in evidence to the fact that initially in response to her statutory questionnaire, and on initial disclosure of documents, she was given some wrong paperwork.  Only following further Tribunal orders in December 2009 did she get the correct paperwork for all five candidates who were referred for interview.  Further, only at that stage was a copy of Ms Anthony’s short‑listing document produced.  However, we were satisfied that we indeed had the correct and genuine material before us, and we did not consider the handling of this matter in the course of the litigation provided the basis, in itself, for any adverse inference of discrimination.”