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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Syed v. Wightlink (Guernsey) Ltd & Anor [2008] UKEAT 0316_08_0310 (3 October 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0316_08_0310.html Cite as: [2008] UKEAT 316_8_310, [2008] UKEAT 0316_08_0310 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MRS M McARTHUR BA FCIPD
THE HONOURABLE LORD MORRIS OF HANDSWORTH OJ
APPELLANT | |
(2) WIGHTLINK LIMITED |
RESPONDENTS |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR E BROWN (of Counsel) (Appearing under the Employment Law Appeal Advice Scheme) |
For the Respondent | MR T FORER (of Counsel) Instructed by: Clarke Willmot Burlington House Botleigh Grange Business Park Hedge End Southampton SO30 2DF |
SUMMARY
RACE DISCRIMINATION: Direct / Burden of proof
PRACTICE AND PROCEDURE: Appellate jurisdiction/reasons/Burns-Barke
Direct race discrimination. Consideration of case at stage 1 of Igen. Reasons for upholding employer's explanation at stage 2.
HIS HONOUR JUDGE PETER CLARK
Background
The relevant post
The Complaints
"Whether the Claimant was the subject of direct discrimination by the First Respondent by being treated less favourably than the other applicants on racial grounds by being refused promotion to Chief Engineer on the Lymington to Yarmouth route in July 2006 contrary to Sections 1 and 4 of the Race Relations Act 1976."
The law
The appeal
"38. The second complaint was of direct race discrimination concerning the Chief Engineer position on the Yarmouth/Lymington route. The Tribunal members had considerable difficulty in deciding on this complaint. The Tribunal took into account all of the evidence and the facts found and the submissions made by the parties' representatives. The Tribunal noted that one of the successful candidates did not have the Chief Engineer certificate of competency, although in this competition, that was desirable rather than essential. The Tribunal was very concerned about the poor documentation of the interview process. The Tribunal read the notes and noted that the Claimant was described in the interview notes as "arrogant" and -1 for "teamwork". There was no hard evidence from which the Tribunal could establish a link between the Claimant's race and his rejection for the post. The Tribunal noted that the Claimant had only been employed by the first Respondent for a period of seven months, whereas the successful candidates had been employed for over three years. Whilst the Tribunal found this decision the most difficult to make, the Tribunal members found most assistance from the case of Madarassy and concluded that the Claimant had only established sufficient facts to point to a difference of race and a difference of treatment and there was not sufficient other material from which the Tribunal could conclude that on the balance of probabilities the Respondent had unlawfully discriminated against the Claimant on the grounds of his race.
39. However, even if the Tribunal had found that the burden of proof shifted, the Tribunal accepts the evidence of Mr Hudlestone, which was that on this occasion the Claimant was not the best candidate. Indeed, he came fifth out of the five candidates in order of ranking."
Discussion
Disposal