Anya v University of Oxford

This is the judgment of the Court:

Events

The Appellant, Dr. Chinasa Anya, appeals by leave of this court from a decision of the Employment Appeal Tribunal dismissing his appeal against an adverse finding of the Industrial Tribunal (now renamed an Employment Tribunal) given, with extended reasons, on 26 March 1998 after a hearing spread over 11 days. His allegation against Oxford University and his postdoctoral supervisor Dr Roberts was of direct race discrimination in the award of a postdoctoral research assistant's post. The Appellant, who is black, is a Nigerian permanently resident in the UK. The post went to the other shortlisted candidate, Dr Lawrence, who is white.

Our understanding of the case which was put forward is that, as Dr Anya had clearly indicated in his own originating application, the justiciable act of discrimination for which he sought redress was his rejection at interview. His evidence for this allegation lay in his account of his personal and professional relationship with his supervisor, Dr Roberts. The Industrial Tribunal, which shared this understanding, broke the culminating event down into three elements (the application, the interview and the decision: paragraphs 19, 20 and 21), and separately tabulated the material episodes in the preceding relationship. We do not accept the submission of Mr Andrew Hochhauser QC on Dr Anya's behalf that each of these elements was a discrete complaint of race discrimination. They were correctly marshalled as evidence for the single complaint that the admitted act of discrimination in choosing Dr Lawrence rather than Dr Anya was racially motivated.

Oxford University's Department of Materials is an institution of world standing. The Appellant came to his post there as a Post-Doctoral Research Assistant (PDRA) with a doctorate in metallurgy from Strathclyde University, where had stayed on to do research sponsored by an EU-funded organisation, Brite-Euram. He came to Oxford University in 1994 on a 2-year project on ceramic nanocomposites funded by the Engineering and Physical Sciences Research Council (EPSRC). This represented a change of focus for him to a process known as sintering, but the Industrial Tribunal records that he achieved "considerable success" in it. Dr Anya's post-doctoral supervisor was a lecturer in the department, Dr Steven Roberts (the second respondent). As his project drew to an end, two new ones came up. One was an abortive one put to the EPSRC, with Dr Roberts as principal unit investigator. The other, a multi-institutional application for EU funding through Brite-Euram, succeeded, and a new postdoctoral research post in it was advertised. Of the 26 applicants, Dr Anya and Dr Lawrence were the shortlisted candidates. It follows that each was fully qualified, in c.v. terms, to hold the new post and that the choice might be a close one.

The interview was conducted by a panel of three: Mr Briant, the departmental administrator, who is not a scientist; Dr Roberts; and Dr Jan Czernuska, a lecturer in the department and an expert in ceramics, though not the particular aspect relevant to the project. One of the few factual findings of the Industrial Tribunal is that Dr Roberts had already formed an adverse view of the applicant's suitability for the post and that Mr Briant knew this. This is their account of the interview:

"20. Secondly, the applicant complained that when interviewed he was faced with a panel of three. The panel was chaired by Mr. Briant who had no scientific background at all. Dr. Jan Czernuska, a Lecturer within the Department, had been invited to join the panel as an expert in ceramics, albeit of a somewhat different specialisation, together with Dr. Roberts. Dr. Roberts had already formed an adverse view of the applicant's suitability for the post and had shared those views with Mr. Briant. Dr. Czernuska approached the interview with an entirely unbiased mind. With regard to Dr. Lawrence, neither Dr. Czernuska nor Mr. Briant had any prior information about him beyond that contained in his application form and CV. It was argued that the applicant was thus faced with an interview panel who already slanted away from him when they were at least neutral towards his competitor, Dr. Lawrence. This is an aspect which again the Tribunal considered; one member of the Tribunal took the view that in these particular circumstances prior knowledge of the apparent strengths and weaknesses of an internal candidate was not necessarily less favourable treatment. Criticism had been made on the process of why the shortlisting had been carried out. This had been done by Dr. Roberts alone in the first instance to produce a shortlist of four. The University's policies prescribed a shortlisting panel of two with the candidates to be shortlisted against a "person specification". No such specification had been drawn up at that stage, nor was any drawn up until minutes before the interview commenced. The evidence from the respondents was that the principal criteria were technical and scientific skill and ability, followed by organisational management and presentational skills, specific modelling abilities in analysis and computer simulation, and drive and enthusiasm. The policy specified that applicants should be told beforehand of the person specification whereas in the case of the two applicants there was no such communication other than the delivery to them of the Brite-Euram project application documentation the evening before. This was complex documentation from which it appears that they were expected to analyse the precise nature of the skills which would be required. It was acknowledged by the respondents that this was hardly satisfactory. It emerged during the course of the shortlisting process that the University had a practice or a policy of offering any internal applicant for a post an interview unless manifestly unsuitable. This did not accord with the formal policies of the University. The policies further indicated that the decision would be made following interview after consideration of the Curriculum Vitae and the taking up of references. No references were taken up in this case."

At the end of the next paragraph the Industrial Tribunal record their finding that it was Dr Czernuska who first expressed the conclusion that Dr Anya would not be suitable for the post. Mr Briant and then Dr Roberts expressed their concurrence.

The Appellant took the issue through the University's grievance procedures. Although the Grievance Panel did not reverse the interview panel's decision, it found shortcomings in the way the University's equal opportunities and recruitment policies had been operated.

Law

There is no need for the purposes of this appeal to recall more than that it is unlawful by virtue of s. 4 of the Race Relations Act 1976 to discriminate on grounds of race in deciding who is to be offered a particular job. By s.1(1)(a) discrimination for this purpose means treating one person less favourably than another on racial grounds. As the Industrial Tribunal correctly found, the award of the post to Dr Lawrence meant that the Appellant was treated less favourably. The single question was therefore whether the Appellant's race had played any significant role in the choice.

Deciding such questions is not easy. The problem was classically addressed in this court by Neill LJ in King v Great Britain-China Centre[1992] ICR 516. In a well-known passage which the IT clearly had in mind, he summarised the relevant principles in this way:

"From [the] authorities it is possible, I think, to extract the following principles and guidance. (1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May LJ. put it in North West Thames Regional...