Unfair
selection process not discriminatory

British Gas Trading v Clark, EAT, unreported, 15 November
2000

Clarke
worked as a customer sales adviser but subsequently applied for the position of
assistant credit management analyst. He was not shortlisted for interview and
brought a successful race discrimination claim.

The
tribunal found that the marking and assessment of application forms had been
chaotic and subjective. British Gas appealed on the basis that the tribunal had
failed to provide sufficiently clear reasons for its decision and this
prevented the parties from establishing whether or not the tribunal had made an
error in law in reaching its findings of fact. 

The EAT
allowed the appeal and held that although the tribunal had found the selection
process was generally unfair, the tribunal failed to explain if this resulted
in Clarke being treated less favourably than other candidates from a different
racial group with similar work experience.

Although
British Gas had treated Clarke in an unreasonable or unfair way, this was not
sufficient to establish less favourable treatment for the purposes of the Race
Relations Act 1976.

Respondent cannot insist on joinder of party

Eemtrans UK and (2) Ramage Distribution v
(1) McMahon and (2) Massey Freight UK, EAT, IDS Brief 669

McMahon
started proceedings against Eemtrans for unfair dismissal, sex discrimination
and unlawful deduction of wages. Ramage was added as second respondent because
of its possible liability following a TUPE transfer.

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Eemtrans
argued that as McMahon’s work had transferred to Massey, that company was
liable and accordingly Massey was added as third respondent. McMahon told the
tribunal she did not seek any remedy against Massey and asked that it be
removed from the proceedings. The tribunal chairman complied with her request.
Eemtrans wanted Massey to remain a party and also wanted documents and
information from Massey that it could only obtain if Massey were a party.

The
chairman held that pursuant to Rule 17 of the Employment Tribunals Regulations
1993, he had no power to join Massey to the action unless McMahon wished to
seek redress against it. Eemtrans and Ramage appealed unsuccessfully to the
EAT, which held that Rule 17 was clear and unambiguous: a party can only be
joined to the proceedings if relief is sought against it. To assert its
defence, Eemtrans did not require Massey to be a party to the proceedings.