King v The Great Britain-China Centre
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE NOURSE,SIR JOHN MEGAW |
| Judgment Date | 30 October 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1011-3 |
| Docket Number | 91/0918 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 1991 |
[1991] EWCA Civ J1011-3
Lord Justice Neill
Lord Justice Nourse
and
Sir John Megaw
91/0918
EAT/0407/90
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR. JUSTICE WOOD)
Royal Courts of Justice,
MR. S.J. SEDLEY QC and MR. P.R.K. MENON (instructed by Messrs. Hodge, Jones & Allen, London NW1) appeared on behalf of the Appellant (Respondent).
MR. R.E.L. TER HAAR (instructed by The Treasury Solicitor) appeared on behalf of the Respondent (Appellant).
This is an appeal by Miss Karen Lily King from the order of the Employment Appeal Tribunal dated 5th February 1990 allowing an appeal by The Great Britain-China Centre ("the Centre") from the decision of an industrial tribunal dated 25th August 1988 whereby the industrial tribunal held by a majority that the Centre had unlawfully discriminated against Miss King on the ground of her race. The case for Miss King, who is Chinese, was that she had been the subject of direct racial discrimination contrary to section 1(1)(a) and section 4(1)(a) of the Race Relations Act 1976 in that when she had applied for the post of deputy Director of the Centre she had not been placed on the short list of applicants for the post.
The facts were not in dispute before the industrial tribunal. They can be summarised in substantially the same terms as in the decision of the industrial tribunal.
The Centre is a government-sponsored organisation which works to promote closer ties between this country and China by means of exchanges for scientific and other purposes. The Centre also provides assistance to firms who wish to export to China by, for example, advising on the relevant Chinese Government procedures. The Centre has a very small staff consisting of the Director, the deputy Director and two employees to provide clerical support.
In November 1987 a vacancy arose for the post of Deputy Director. The previous Director had resigned to take another post and the previous deputy Director had been promoted to the post of Director. On 18th November 1987 an advertisement in the following terms was placed in the Guardian newspaper:
"Deputy-Director—The Great Britian-China Centre
The Centre is a Government sponsored organisation with corporate and individual members set up in 1974 to promote understanding between the peoples of the United Kingdom and China by fostering closer cultural, economic, social and other contacts between their peoples. The Centre maintains wide-ranging contacts in China and the UK in order to run its own projects and provide briefing to others intending to establish links. With the rapid development of Sino-British relations in recent years the Centre has become an important source of information on exchanges between the two countries.
The Centre requires a new Deputy Director to start in January 1988. First hand knowledge of China, and fluent spoken standard Chinese language."
On 7th December 1987 Miss King, who was then aged 38, applied for the post. She wrote as follows:
"I wish to apply for the post of Deputy Director of the Great Britain-China Centre. The position is of great interest to me and I believe my background, experience and qualifications would enable me to contribute significantly to the work of the Centre. I enclose a full C.V. However, I would like to identify the main points in support of my application.
I was born in China (of Chinese parents) and have spoken (modern standard) Chinese since childhood. As I have received all my formal education in the British Isles I have a deep understanding of both cultures. Moreover, I have maintained contact with a large number of people from the PR China. Last year I spent three months in China travelling extensively. During this time I was able to visit universities, schools and a church seminary and stay in private homes to increase my understanding of life in China today.
Since graduation, I have had extensive experience as an economics journalist writing on finance, energy and development for publications such as Petroleum Economist. I have also spent three years in the US working as funding director for a development agency where I had opportunity to practise public speaking skills to a variety of audiences.
Currently, I am working as a consultant to a new technical company, London Scientific Services, for whom I provide administrative, marketing and accounting services as well as research into specific topics. Although this is certainly a challenging position I would prefer to be able to make full use of my bi-cultural background, and the post with the Great Britain-China Centre would appear to offer a unique opportunity for this to be realised."
In the accompanying curriculum vitae Miss King gave further particulars of her education and work experience and provided the names of two referees.
Miss King was then sent an application form and a job description. The latter document enlarged upon the functions of Deputy Director and made it clear that the work involved, inter alia, detailed arrangements for exchange visits, information to enquirers, editorship of a three-monthly newsletter and routine accounting duties, as well as deputising for the Director in the latter's absence. The job description also provided:
"The Deputy Director must have an excellent command of Chinese, especially the spoken language, and first hand experience of the country. The Deputy Director makes a working visit to China about once a year."
On 15th December the Director wrote to Miss King to inform her that the post had "now been filled from a very strong range of applicants". Miss King replied on the following day. In her letter, which she conceded before the industrial tribunal should not have been sent in such strong terms, she expressed surprise that she had not even been given an interview and raised the question of possible racial bias. "Could my being Chinese have had anything to do with it?" she wrote.
On 21st December the Director replied:
"I have received your letter of 16th December 1987. I can assure you that the Centre did have a very strong field of candidates for the post of Deputy director. In fact some were over qualified for the post, which is, after all, a junior one compared to the post of Director. I feel sure you will find a job commensurate with your considerable experience, qualifications and deep understanding of Chinese and British cultures."
On 23rd February 1989 Miss King issued her originating application seeking a finding that she had been discriminated against contrary to the Race Relations Act 1976 ("the 1976 Act"). In her application she stated that she found the explanation in the letter of 21st December 1987 "totally unsatisfactory" and that she strongly believed that she had been discriminated against on racial grounds. Also on 23rd February 1988 Miss King completed a questionnaire in accordance with section 65(1)(a) of the 1976 Act. In this document she wrote that she had heard that "the person appointed was a young English graduate in Chinese who was unlikely to have had either much experience in administration, research and writing or an excellent command of spoken Chinese."
On 16th March 1988 the Treasury Solicitor on behalf of the Centre filed a Reply in accordance with section 65(1)(b) of the 1976 Act and also filed a notice of appearance to the originating application. In the latter document it was stated that thirty applications had been received for the post, that these applications had been considered by the executive committee and that eight candidates had been invited for interview. The document continued:
"It was felt that one of the necessary attributes of the successful candidate was recent experience and knowledge of the bureaucracy and,institutions of modern China. All of the candidates selected for interview had such knowledge or experience by virtue of studying or working within such institutions for at least 1 year in the recent past. Within the same period, the applicant had only spent 3 months travelling in China, and it was felt this did not give her the adequate knowledge or experience."
The hearing before the industrial tribunal took place on 9th May and 27th June 1988. In their reserved Decision sent to the parties on 25th August 1988 the tribunal decided by a majority that Miss King had been unlawfully discriminated against on the ground of her race on or about 15th December 1987. The chairman of the tribunal dissented.
In paragraph 6 of their Reasons the tribunal summarised Miss King's evidence as follows:
"In her evidence the applicant indicated that she could not accept that in view of her qualifications and experience she had not even been called for interview. In her opinion those attributes made it obvious that she should at least have been given the opportunity to expand upon her qualities and that the fact that she was not given that opportunity could only be attributed to discrimination on racial grounds, a view confirmed when she saw and compared the applications of the other short-listed candidates. She further drew attention to:
(a) the respondent's misleading reply in its Notice of Appearance to the effect that '…all of the candidates selected for interview had (recent) knowledge and experience (of China) by virtue of working and studying within institutions (of modern China) for at least one year in the recent past',
(b) the repetition of that misleading reply in the Race Relations Act 1976 questionnaire reply;
(c) the fact that no ethnic Chinese had been called for interview...
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