Employment tribunal appeal

[psychojuice]

mariefab

1. So you are saying during cross examination a witness can be directed by a barrister on what to say? So then why bother cross examining? What not just use a statement created by counsel and signed by the witness?!

The question was to do with marks he awarded to other candidates. However I cannot be sure that counsel want directing the witness before that. Which makes the ET decision unsafe.

2. Yes I do have the other interview notes. However it is impossible to prove that what was written down for other candidates was 70% as I was not there! I would argue that they will have written down 70% for other candidates, but they certainly did not for me.

Also on this point has the EJ fallen foul by putting his own spin on the interview? Should he not have followed what the respondents own guidelines were? This sends like a strong arguement.

4. I had 2 interviewers. They both have me the save marks. Witnesses X accepted he made a mistake.

As a side point, why are witnesses all allowed to be in the room during other witnesses cross examination? It is stupid. They don't allow it in Scotland, but they do in England! I just don't know how it is fair.

Do you think any of my points are strong enough for an appeal? How important is the wording to these things?

If I fail at the EAT I'll still take it to the higher court.

[mariefab]

1. I'm saying that they were the Respondent's witnesses, not yours.
The Respondent could have elected not to put any of those witnesses forward unless, or until, you proved a prima facie case. Although this rarely happens in practice mostly in the interest of time.
They were there to answer the Respondent's questions. They didn't have to answer any of your questions that the Respondent didn't wish them to at the first stage.
This could have been why the EJ didn't instruct him to answer your question.
Another reason could have been the question itself. Counsel aren't usually easily shocked so it could have been the content or the phrasing of the question "to do with marks he awarded to other candidates".

2. Did you ask the interviewers, at the hearing, whether 70% of the other candidates notes were verbatim answers? Did they say Yes?
Because unless you asked the question at the hearing you can't raise it at an appeal.
A Company's own guidelines are just that, sometimes they are followed sometimes not.
The EJ can't assume that the guidelines were actually followed with the other candidates, he needs evidence.

4. The EJ was going by what witness x and the other interviewer, who gave the same score, did on the date of the interview. Witness x accepting, in retrospect, that he made a mistake in your scoring doesn't imply that he discriminated against you at the interview.

I don't know why they allow witnesses to stay in the hearing room. I don't think it's fair either.

No, I don't think that any of your points are strong enough for an appeal.
You should be aware that, unless you have a potentially meritorious case for appeal, you could be liable to pay the Respondent's legal costs incurred preparing for and attending the appeal. These costs can be very substantial. This is why I'm responding to all your posts here. I assure you that I don't like being so pessimistic about a potential claim. If I saw anything to give you hope I'd jump on it.

[psychojuice]

My understanding is that I don't need to prove discrimination to the EAT. Only that errors in law and perversity.

2. The problem is whenever I asked questions about other candidates and their interviews the judge shot me down stating that the witness would not know as it was not their interview! So the question could not be asked.

4. Again have I misunderstood? The EAT only looks at legal errors. The point is the ej has agreed with the witnesses initial explanation and States it's proof of non discrimination. But he has not applied all the facts to make good conclusion. Surely thats grounds for appeal?

F##k then. If they come after me for legal fees I'll sell up and go back to living in the jungle.

[mariefab]

The Tribunal found that there was no discrimination. If you appeal on the grounds of perversity you are effectively saying that any reasonable Tribunal would have found you did prove that there was discrimination.

4. His evidence was that the reason he gave you less than full marks was because he believed, on the interview date, that you hadn't explained ABC.
Only after your questioning during cross examination, months later, did he accept he had made a mistake and you did explain ABC.
You asked the Tribunal to infer that by giving less than full marks for ABC at the interview witness x was discriminating against you on the grounds of race.

The Tribunal has to decide whether he gave you less than full marks because of conscious or unconscious discrimination. So, they look at the other evidence; like whether the marks that witness x gave you were significantly lower than those given by the other interviewer. Because if that's the case they could infer that the reason for the difference may have been discrimination. But they find that the other interviewer gave you the same marks as witness x. There doesn't appear to be any other evidence that could assist the Tribunal on this particular issue. So, the Tribunal concludes that the reason that witness x gave you less than full marks for ABC was because on the interview date he didn't believe that you'd explained ABC.

[psychojuice]

Under the equality act, can an employer back up their case that they are not discriminatory if they hire 1 Japanese person and 9 white british people, against a Chinese person (who alleges race discrimination)?

I think that itself is racist, that both people are put under the same umbrella just because they are from "Asia".

[mariefab]

The Equality Act doesn't require a Company to hire a specified proportion of different ethnicities. The reason being that, if there was such a requirement, employers would have to racially discriminate as a matter of practice during recruitment.

Statistics alone generally prove nothing. You'd need an exceptional set of statistics to draw a sufficiently strong inference.
Neither does the fact that a candidate alleges discrimination. Employers only have to "back up their case that they are not discriminatory" after a prima facie case of discrimination has been found. The burden of proof then shifts to them to provide a non-discriminatory explanation for the alleged discriminatory treatment, if they have one.