Habashi v The Crown Prosecution Service

In a discrimination claim, a tribunal may find that the employer has discharged the burden of proof where, having examined the evidence, it concludes that the decision was made solely on the comparative merits of the candidates and was not influenced by race or religion, consciously or subconsciously.

Errors, procedural shortcomings and departures from recruitment guidance do not necessarily support an inference of discrimination. Their evidential significance depends on whether they bear on the decision-makers’ mental processes. A tribunal’s reasons must be read fairly and as a whole. Express findings on every submission are unnecessary where the necessary conclusions are implicit in its findings.

The appellant, an Arab Muslim employee of the Crown Prosecution Service, applied for promotion. She survived the initial paper sift but was not shortlisted for interview. She alleged racial and religious discrimination.

The Employment Tribunal accepted that the burden of proof had shifted under section 54A of the Race Relations Act 1976 and regulation 32 of the Employment Equality (Religion or Belief) Regulations 2003. It nevertheless concluded that the employer had shown that the panel’s decision was based on its genuine assessment of the candidates’ evidence against the competencies, rather than race or religion.

The appeal challenged the tribunal’s approach to motivation, its treatment of errors and procedural departures, and the adequacy of its reasoning.

1. Appeal dismissed. The Employment Tribunal was entitled on the evidence to conclude that the panel’s assessment of the candidates’ comparative merits was the only reason for the appellant’s non-selection, and that race or religion had not influenced the decision-makers’ mental processes, whether consciously or subconsciously.
2. The tribunal’s references to the panel’s intentions and the genuineness of its assessments did not disclose a misdirection. Read as a whole, the reasons showed that the tribunal had addressed the relevant question of what had influenced the decision. The use of “genuine” did not mean that honesty was treated as conclusive.
3. Errors in assessing competencies, inconsistent treatment of applications, and the panel’s departure from the published method did not compel an inference of discrimination. The tribunal had found that the same approach was used for all candidates and that the assessments were genuinely based on the application materials, even though the process was imperfect and insufficiently rigorous.
4. A failure to follow paragraph 4.21(c) of the CRE Code of Practice on Racial Equality in Employment was of little evidential weight in the circumstances. Not every breach of recruitment guidance bears on discriminatory motivation.
5. The tribunal was not required to make separate express findings on every submission. Its findings on the individual competencies necessarily rejected the contention that the appellant’s application was so strong that any properly applying panel had to shortlist her.
6. The deficiencies in the employer’s statutory questionnaire response and disclosure did not justify an adverse inference under section 65 of the Race Relations Act 1976. The alleged deficiencies did not bear on the motivations of the panel members, who were not involved in responding to the questionnaire.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal sitting at London Central, whose judgment and reasons were sent to the parties on 21 September 2010.