: v Represented by: Mr B Kadlrgolam - Solicitor Mr D Odlgie — 2020

Mr Odigie applied for a materials recovery facility officer post with Falkirk Council in October 2018 and was interviewed on 26 November 2018. The tribunal noted that, after amendment, the complaint covered three alleged acts of race discrimination: the decision to offer the post to GM rather than the claimant, a failure to contact the claimant with the outcome within the time he had been told to expect, and a failure to give feedback within a reasonable time. On the timeliness point, the tribunal said the original recruitment decision alone would have been out of time, but that the amended allegations extended the conduct over a period ending on or around 26 February 2019, so the proceedings were in time.

On the merits of the recruitment decision, the tribunal found that five candidates were shortlisted from twelve applications, all were asked the same questions, and the panel scored them independently. GM scored 375 in total, the second-placed candidate 339, and the claimant 325. The tribunal accepted that GM had the relevant waste experience the respondent was looking for and held that the decisive reason the claimant was not appointed was that he came third and scored 50 points fewer than GM, not his race. It found no facts from which race discrimination could be inferred and said there was no evidence that any score had been reduced because of race.

On notification of the outcome, the tribunal accepted Mr Kirkhope’s evidence that he attempted to send the claimant an outcome message through Talentlink on 12 December 2018, but that the message did not send and the claimant did not receive it. It found the delay in notification was the result of that technical failure, not race, and noted that a white comparator in the same position would have been treated the same way. On feedback, the tribunal accepted that Mr Kirkhope did not respond immediately because he was busy, had annual leave and believed he was not obliged to give feedback. It found that the eventual delay, from 1 February to 26 February 2019, did not support an inference of race discrimination.

The tribunal also recorded that Mr Kirkhope’s telephone feedback on 26 February 2019 was disingenuous in parts, including a misleading suggestion that the interview had been very close and that the claimant had come a very close second. It nevertheless held that this did not show that the recruitment decision or the later delay in notification or feedback were because of race. The claim was therefore dismissed.