Williams v Business Link London City Partners [1997] UKEAT 1219_97_0512 (5 December 1997)

JUDGMENT PRELIMINARY HEARING - INTER PARTES © Copyright 1997 APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MR M CLAYTON (Solicitor) Pritchard Englefield Solicitors 1 New Street London EC2M 4TR JUDGE HARGROVE QC : Mr Williams on a preliminary point seeks to adduce fresh evidence which should be placed before the final hearing. The nature of that evidence is a letter from a firm which I will calls Withers Wood which sets out a number of matters concerning the relationship between Withers Wood and the respondents in this case. What is said, as I understand it by Mr Williams, is that at the tribunal the manager, Mr Linehan, said that there was no selection procedure operated by Withers Wood and that this matter which is now put before us on 29th November, shows that the role of Withers Wood was that in conjunction with Mr Linehan they agreed competencies by which all applicants would be assessed and all applications were measured against the specification agreed by the respondents and after consideration by Withers Wood consultant, all replies were delivered to the respondents. The difficulty is that this matter in the sense that the involvement of Withers Wood, was known at the time when the response was made by the solicitors to the respondents on 23rd December 1996. Almost a year ago. It is only now that this matter is put forward. It is quite clear that with reasonable diligence this matter could have been placed before the tribunal had proper research been carried out. Accordingly under the rule in Ladd v Marshall such evidence cannot be now brought forward at the eleventh hour. Furthermore, we have looked at the evidence de bene esse , it is quite obvious that whatever may have been the criteria applied by Withers Wood, Mr Williams passed. The only matter which could possibly be of benefit to him in this appeal is that it casts some doubt upon the credibility of Mr Linehan on that issue. In all the circumstances we will not admit this as fresh evidence. JUDGE HARGROVE QC : The respondents supply business advice to small businesses. The employees who do this work are designated personal business advisers ["PBA's"]. The respondents wished to recruit a further PBA. The advertising was done through a firm which is referred to during the hearing as Withers Woodbridge. The applicant applied. The first stage of selection was successfully negotiated and that is not surprising because the appellant has an extremely long and impressive list of qualifications. The selection procedure moved on to the conduct of a presentation on a topic. Mr Ahmad was the individual who was designated to carry out the work on behalf of the respondents. That presentation in Mr Ahmad's view was a failure. The respondents decided not to offer the appellant the post. The appellant claimed that he had been discriminated against by reason of race. The tribunal decided that he had not. The kernel of that decision appears at paragraphs 16 and 17 of the extended reasons, in order that the matter should be clearly understood, I shall read them: "16. In our view the Respondent plainly satisfies the requirement to explain why the Applicant was unsuccessful. It is quite clear to us that the lack of success resulted from the conclusion by Mr Ahmad that the Applicant lacked practical experience. It is quite clear that the Respondent gave this element primacy in its consideration, and that to Mr Ahmad it was important. This, of course, must be justified in the light the fact that PBAs are dealing with small and medium-sized employers who are not noted for the ready acceptance of academic theory. Its clients need to be convinced that the advisers knows from experience what their problems are and what solutions might be available. It is quite clear to us from the comparison of the Applicant's CV and those of the other successful applicants that the successful satisfied this criterion whilst the Applicant failed to do so. Nothing that we, or anyone else, says will convince the Applicant that he was other than the equal in qualification of all the successful applicants. Academically he may well have been. It is obvious that this is not what weighed most heavily with the Respondent. The Applicant complains of a lack of assessment interviews and asks us to conclude that selection was subjective (and the subjectivity was that of Mr Linehan). In our view, although there may only have been one criterion, it is plain that the requirement was for practical business experience. 17. It is, of course, very difficult for us to arrive at any independent assessment of the effect of the Applicant's presentation. Mr Ahmad's evidence, however, clearly indicates that he regarded a substantial proportion of that presentation as highly theoretical and, as he obviously thought, also somewhat laughable. We accept his recollection in the light of what he said was plainly a memorably different form of presentation than would normally made to him. For what it is worth, the single page representing the one transparency which Mr Ahmad says that the Applicant showed on the overhead projector seems to us to suggest a theoretical, rather than an experienced approach. It is not our function to decide whether Mr Ahmad was right in his decision. We only have to consider whether it was sufficiently reasonable decision for it to provide on balance of probability, the answer to the question whether he was motivated by racial prejudice or by proper business judgment. In our view there was so much evidence upon which he could base the business judgment which we have said he did apply that that business judgment is by far the most probable explanation for his decision. Exactly the same conclusion is applicable to the involvement of Mr Linehan in this process. He too adopted a distinct preference for experience. It seems likely, on this occasion, that he simply accepted Mr Ahmad's conclusion that the Applicant was "weak". But if he examined that conclusion in the light of any other evidence which he took into account we would consider it probable that he too had applied a proper business judgment. We cannot disguise the fact that we come to this conclusion with more sense that it is the correct conclusion because we ourselves are of the opinion that we, with our considerably less degree of expertise in this field, would have arrived at the same decision." The appellant puts forward a number of grounds of appeal. He is also produced a lengthy document which has been put forward as a skeleton argument. It is fair to comment that as a skeleton argument it fails. It is longer by half than the actual extended reasons. But in order that the position can be seen clearly, I note that some of the reasons being put forward for this appeal appear to be as follows: "1)a) ... the Tribunal found that my questionnaire was not dealt with fully and properly ..." It is complained that that was matter which the tribunal failed to take into account. If one looks at paragraph 7 of the extended reasons it deals with the matter in considerable detail. The skeleton argument continues: "1)b) The incidental factors, such as the discourteous behaviour I experienced on the morning of the interview ..." The tribunal failed to: "3)a)i) Consider the commercial reality that the specialist recruitment consultants, Withers Woodbridge Brigdale would have matched my qualification and experience against the selection criteria approved by the respondent for me to be shortlisted for interview." The tribunal: "ii) Failed to review comparative candidates' qualifications ..." The tribunal: "iii) Failed to consider by professional accreditation ... iv) Failed to consider my eleven years of work experience ... v) Failed to consider my qualifications and experience as a match, as a comparison with candidates" The tribunal failed to consider that: "3)b) ... the Respondent employed some black people, without considering the consistent black recruitment strategy that appears to amount to a hidden quota system ... 1. ... failing to draw the proper inference of racial discrimination as a result of the Respondent failing to fully and properly respond to my Race Relations Act Questionnaire. . .. 2. The Tribunal erred in law in failing to acknowledge that the conduct of the Respondent was a case of clear and intentional racial discrimination ... [ the respondents ] used Mr Ahmed as a vehicle of discrimination. 2.5. ... there is no logical basis for the Tribunal to reach the decision it has, taking into account the overall analysis of the recruitment process ... 4.6. The Tribunal appears to be disregarding the evidence of racial discrimination due to the fact that the respondent did employ one black and one Indian, but failed to analyse the evidence relating to the employment of the black candidates. ... 5.1. I was subject to the detrimental effect of being interviewed by only one inexperienced interviewer/assessor when all other candidates were subject to two interviewers ... 5.2. The Respondent failed to take any notes ... 5.3. Mr Ahmed used words of discouragement ... 5.4. I was greeted particularly rudely which was a clear indication of what his purpose was .... 6. The Tribunal erred in law by failing to properly consider my qualifications and experience in comparison with others, particularly white candidates that were less relevantly qualified and experienced than me." The catalogue continues in the same way. It demonstrates, unfortunately, the preconception that Mr Williams has that because of his excellent qualifications and because he has passed the threshold of selection and being called for interview, therefore, a strict comparison of what is on his CV and what is on the CV of others, will produce the result that he will be selected, and if he is not, it must be racial discrimination. The skeleton argument and the grounds of appeal demonstrate another fact that Mr Williams unfortunately does not understand that this tribunal can only deal with matters of error of law. All the matters which I have just read out are allegation that the tribunal did not decide matters of fact in favour of Mr Williams. The tribunal has the duty of deciding between one party and the other which party they accept or which parts of their evidence they accept and which parts they reject in order to find the facts. Having found those facts, having seen the witnesses, that is an end of the matter unless there is no evidence at all upon which the tribunal could have formed its decision. Doing the very best that one can, looking at all the factors of which Mr Williams has put before us and, if I may say so, put before us with a degree of vigour and forthright communication, we are unable to find any reasonably arguable point of law. It is very sad that a person of Mr Williams' qualifications should not at some stage have obtained a job. But nonetheless, the Industrial Tribunal here, in a most careful, painstaking and thorough judgment has dealt with all the issues of fact and dealt with them extremely competently. There is no basis upon which this appeal can go forward and it is dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII