Powell v Brent London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE NICHOLLS,SIR ROGER ORMROD |
| Judgment Date | 29 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0729-3 |
| Docket Number | 87/0808 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 1987 |
[1987] EWCA Civ J0729-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Lord Justice Ralph Gibson
Lord Justice Nicholls
Sir Roger Ormrod
87/0808
MR J. G. HENDY, Q.C., and MR N. J. COOKSLEY, instructed by Messrs Denise Kingsmill & Co., appeared for the Appellant (Plaintiff).
MR A. R. H. NEWMAN, instructed by The Director of Law and Administration, London Borough of Brent, appeared for the Respondent (Defendant).
This is an interlocutory appeal by the plaintiff, Mrs Paulina Powell, from the refusal by Mr Justice Knox on 20th March of this year to make an interlocutory injunction against the London Borough of Brent pending trial of Mrs Powell's action. The injunction she sought was, in substance, to require Brent Council to treat her as if she is properly employed by them in a particular post, namely Principal Benefits Officer (Policy and Training) Grade PO1B Housing Services and to stop Brent Council from advertising or otherwise filling the post. Brent Council says that she was never effectively appointed to that post. The plaintiff says she was. The question for the court is concerned with the terms upon which the plaintiff must be treated by Brent Council, her employers, pending the trial of the issue.
This is, I believe, a most unusual case, of which the facts are unlikely to be repeated. It is necessary to state the facts in some detail in order to explain how the parties have got into the positions in which they are. I regret the length of the explanation which I have found to be necessary. In order to indicate the relevance of some of the detail to which reference will be made it is to be noted that Brent Council maintained, as the central point of their argument before Mr Justice Knox and this court, that the injunction should not in justice be granted because Brent Council do not have such full confidence in the plaintiff, both as to her competence to do the job and so as to make them willing to have her in the job as is required before such an injunction may be made.
The plaintiff, Mrs Paulina Powell, became employed by the London Borough of Brent in December 1983. Her conditions of employment at that time are said to include various procedures which Brent have agreed to apply with reference to all the men and women working for the borough. They include what one would expect: the necessary period of notice for determination of the contract; disciplinary procedure for any breach of discipline, with rules and a system of appeal; and they also include Brent Council's code of practice for the elimination of discrimination and the promotion of equal opportunity in employment. That code contains the policy statement (at page 37 of the bundle) that:
"The aim of our policy is to ensure that no job applicant or employee receives less favourable treatment on the grounds of race, colour, nationality or ethnic or national origins, age, marital status, sex, sexual orientation, disability or is disadvantaged by conditions or requirements which cannot be seen to be justifiable. Selection criteria procedures will be frequently reviewed to ensure that individuals are selected, promoted and treated on the basis of their merits and abilities. All employees will be given equal opportunities and where appropriate special training to progress within the organisation. The authority is committed to a programme of action to make this policy fully effective."
The council's interpretation of that, under section 5, contained the passage:
"The Council wishes to make clear that all appointments and promotions will continue to be based on individual merit and the necessary attributes for the post."
The purpose of the code was said to be "to both guide and instruct Council employees as to how they can best carry out their responsibilities in accordance with the Equal Opportunity Policy." A procedure for grievance was contained entitling any person who felt that he had been discriminated against to lodge a grievance under that procedure, and it dealt expressly with "Unsuccessful Candidates" in the following terms (at page 52):
"1. Using the person specification as the basis, recruiting officers should make an objective assessment as to the suitability of every candidate.
"2. If an unsuccessful candidate asks for reasons why he/she did not get the job, this information should be provided by the representative of the relevant Chief Officer.
"3. whenever possible, internal candidates should be given the reasons for rejection, since this will be of use for their personal/career development. In any event, this should be done if the employee requests it". Provision was made for pursuing the grievance procedure, but the details do not matter.
Out of these conditions of employment, with the help of some errors, some simple misfortune and additional elements of human nature, has come this dispute, which has already consumed a considerable sum of the money paid by the ratepayers of Brent without advancing this action much closer to resolution of the dispute which is basic between the parties.
In November 1986 the plaintiff was employed as a Senior Benefit Officer in South Kilburn. She was concerned with the administration of housing benefit. She saw an advertisement containing a description of the post to which I have referred. It represented significant promotion for her with a salary increase of about £3,000 per annum and advancement in responsibility. She applied. She was interviewed on 27th November 1986. On that day other candidates were also interviewed by the panel or subcommittee. Her interview took forty-five minutes. The panel consisted of six people: including three councillors, who would make any decision to be made. They did not lack for expert advice. There were present to advise them the Assistant Director of Housing, Mr William Connell, who is a central figure in this case, as will later appear; a Mr William Whytock from the Personnel Department; and Mr Asit Acharya, a Race Relations Officer. Their role was to advise on the suitability of candidates.
Another candidate interviewed was Mr Steve Barrett, who was also employed by Brent Council as a Senior Policy and Training Officer (Housing Benefits). He worked in the head office in Wembley. In the evening of 27th November 1986, after the interviews had been concluded, Mr Connell informed the plaintiff by telephone that the appointment subcommittee had selected her. The plaintiff says that she was also told to report at her new place of work the next day.
She went there. It has been contended by the council (this is their basic case) that the telephone message was "no more than a statement of intent and subject to written confirmation". It is not said that this plaintiff was told that that was the situation, nor is there any express rule or stipulation to that effect. It is said that this understanding would be known, to the plaintiff at least, from the working of the whole structure of employment. No doubt the experience of this case will cause Brent Council to conclude that the sooner some express rule is introduced into the conditions of employment to the effect contended for by them, the better for all concerned.
The plaintiff says that she went to her new place of work, Elizabeth House, on 28th November, where she would be working in the new appointment. She was introduced as the new Principal Officer of Policy and Training by Mr Connell and was asked to remain and start work at once. She could not because she had matters to finish in her old job. She was told to start on Monday 1st December. She did attend on that day and started work, according to her.
Much of that account, and in particular what was said and what work she started doing, is in issue between the parties, but it is not in issue that she attended at that place as she says she did.
On 1st December Mr Barrett, pursuant to his conditions of employment, enquired as to why he had not been selected for the job. Mr Connell, in accordance with the code of practice, saw him. Mr Barrett handed in a letter explaining his grievance. He believed himself to be better qualified for the job than the plaintiff. If he was, and possessed equal or better attributes for the post, and if he had shown himself to be so equipped at interview, he would have a case for contending that Brent's code of practice had been breached. His case might have been hard to establish having regard to the amount of advice available to the subcommittee and to the fact that there was no hint of protest at the time by any official or councillor.
Mr Connell made a note of the interview. It is to be found at page 118, and I must refer briefly to some parts of it. It really consists of questions by Mr Barrett and answers by Mr Connell indicating Mr Connell's view of how Mr Barrett had performed at the interview. Mr Connell thought that Mr Barrett had performed very well, scoring him 98–99 per cent accurate on technical/policy matters, and he told him that he had scored "higher than others". Mr Connell's view was that there was a big difference. He thought he had responded excellently on training questions. On race questions his answer had been in accordance with the council's race policies, as it had been with reference to gender equality. I need not refer to any further part of that report.
It is necessary to comment, in my view, that to score the highest is not necessarily the same as showing the best all-round attributes for the post which are necessary for that job or...
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