England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 22nd March 2001

1. LORD JUSTICE ALDOUS: On 5th March 1990 the applicant, Miss Gail De Souza, began her employment as an office assistant with a company called Austin Knight. The terms of her engagement are set out at pages 53 and following of the bundle that she has supplied. Austin Knight were taken over by a company called TMP Worldwide, the respondents to her application.
2. On 23rd June 1999 she resigned from her job, claiming constructive dismissal. She brought a claim in the Employment Tribunal for racial discrimination and victimisation. She claimed that she was discriminated against because she was black. In a decision of the Tribunal, sent on 22nd May, the Employment Tribunal rejected those claims. This is an application by the applicant for permission to appeal against that decision.
3. She has appeared before me today and has read at speed a prepared submission which was not supplied in advance, and so it has been difficult for me to take it all in at the time. However, she attacks the conclusions of the Tribunal and the Employment Appeal Tribunal and seeks to have a reference to the European Court of two questions; whether black United Kingdom citizens have rights under the Directives to which she has referred, and whether the decisions are contrary to community law. I will come to her European point later.
4. First, I must, with the aid of the documents, set out the background facts. As I have said, she took up employment pursuant to a letter dated 27th February 1990 on 5th March. On 8th October 1996 she was transferred to Group A in London and began working as a customer services executive. She signed amended terms of employment which are set out at page 55 of the bundle. As I have already said, Austin Knight were taken over by TMP on 1st September. In March 1998 TMP undertook a management review. That is clear from a memorandum of 11th March 1998 which is set out at page 74 of the bundle, and the subsequent memos contained in pages 75, 76, 77 and 78.
5. In April 1998 the applicant was sent on a course for further training. According to the documents, she arrived late and left early. She says that her train was late arriving and she had to leave early to be back in London for personal reasons.
6. On 12th or 13th May the applicant had a meeting with Mr. Stuart Caldwell and Colin Gilby to review her position and assign her to an advertising team. She was told that there had been complaints about her work from various clients. Her reply was that she had been the subject of lack of management and she made it clear that at that stage she was concerned that she had not been offered promotion. She said that she had been previously offered promotion by Danny Kenyon. She also said that she was threatened with a verbal warning by Mr. Gilby for asking for promotion.
7. I pause at this stage. That was one of the complaints before the Employment Tribunal. As to that they said this:

"Events in 1998

These complaints arose more than three months before the presentation of the originating application. If there had been an issue relating to promotion at this time, it was a single act and should have been the subject of any complaint on the grounds of race at that time. Therefore there was no jurisdiction to consider this matter. As a matter of fact, the Tribunal found that there had been no offer of promotion. The reason put forward by the respondents as to why the applicant was not only not suitable for promotion but in fact inadequate in her present job we found to be true. There had clearly been complaints about her that related to the way in which the applicant dealt with customers on a one to one basis. Her comments were described by the clients as being incoherent. The tribunal frequently found itself in difficulty understanding what the applicant wished to put forward, either as a question or as a statement.

19. Whilst we accept the applicant told Mr Gilby that, had she been a white, middle-class male, she would not have been subject to the bullying tactics, we did not find that she had been the subject of any bullying tactics. She had merely been told some rather unpleasant facts about the way in which she worked.

20. The tribunal did not find that the applicant had been the subject of a verbal warning. Mr Upwood, who gave evidence as to personnel procedures, was clear that the disciplinary process involved in receiving a verbal warning would mean that it was necessary for there to be an invitation to attend a disciplinary hearing and be accompanied at that hearing before such a warning could be given. The applicant may well have caused Mr Gilby and Mr Caldwell some frustration in the meeting. The tribunal similarly found the applicant quite difficult to deal with during the hearing, as she appeared to have a different perception of events and what matters were relevant to be considered. It may be that Mr Caldwell became frustrated by her behaviour but there is no evidence to say that he threatened or actually gave her a verbal warning within the meaning of the disciplinary procedure."

8. On 26th May the applicant met again with Mr. Gilby and complained of "bullying tactics" that had taken place at the meeting on 12th or 13th May. She said that she would not have been treated in that way if she had been middle class and a white male. The note produced by Mr. Gilby shortly after the meeting does record that she brought up the issue of race and he told the applicant that in future he would need to take notes. She explained why she was late for the training course. She complained of lack of management. I have already read the Tribunal's decision as to that, which is paragraph 19 of the Tribunal's decision. The notes made by her and Mr Gilby appear at pages 80 and 82 of the bundle prepared by the applicant.
9. On 27th May the applicant saw Mr. Gilby again. At that time she was assigned to a new team as part of a larger restructuring. The applicant wanted to postpone the meeting until Mr. Caldwell was available. She objected to Mr. Gilby's personal assistant being present. The notes of those meetings appear at pages 83, 84 and 85 of the bundle before the court.
10. In September 1990 the applicant signed a new contract with TMP. That appears from the bundle at page 65 where her signature appears, dated 16th September 1998.
11. Unfortunately, the applicant injured her right forearm and hand while on holiday in Turkey. There followed considerable correspondence which is also in the bundle between pages 98 and 105, which contained a request by TMP for her to return to work and replies in which she explains that was not possible. The applicant claimed that she had been pressurised to return to work before she was ready. That was one of the matters that she complained about. The decision of the Tribunal relating to that complaint and to her complaint that she did not get flowers is in paragraph 22.

"The applicant claims the failure to give her flowers and to ask her to return to light duties are acts of discrimination. These matters were all concluded by January 1999, some six months prior to the presentation of the originating application. The events are in themselves discrete and are not linked to any matters in May 1998. They are not linked to any matters that follow January 1999. Consequently, they are not continuous acts and are presented out of time. There is therefore no jurisdiction to consider these matters."

12. The Tribunal went on in this way:

"The tribunal, however, for completeness, has addressed the issue as to whether or not the actions of the respondents during this period would constitute race discrimination. Again, the tribunal preferred the evidence of the respondents to that of the applicant. It is quite normal for offices to have a 'whip round' to raise money to buy flowers and a card for somebody who is sick. That is a matter of choice by the staff. The respondents were clear there was no company practice to send by the company flowers to someone who was sick, although for the future they considered that it was good management practice and one which they would wish to adopt. The Tribunal could not therefore find that a failure to send flowers constituted less favourable treatment for the applicant on the grounds of her race. The Tribunal considered it a legitimate request by the respondents for the applicant to return to work if she felt able, to be on limited duties; it was not an act to her detriment that might be described as discrimination. There was an acknowledgement that they had to make reasonable adjustments to her work while she had an injury but the respondents were of the view that her injury might not actually prevent her from performing some useful tasks for them. To ask her to return to work would not therefore be an act of discrimination on the grounds of her race. Other members of staff of other ethnic origins had attended work when suffering from orthopaedic problems."

13. In January 1999 the applicant returned to work, her arm having recovered.
14. On 18th January 1999 Mr John Tarrant, Director of Advertizing, wrote to the applicant, stating that it was great to see her back after a long lay off. He wrote confirming the main points of the discussion which had taken place on that day. He said in that letter that he was writing to outline a new role for her. The business had moved on greatly in recent months, and whilst she was away the account handlers had worked developing and nurturing constructive relationships. He did not want to jeopardize her progress by reintroducing her into this aspect of the client facing process. Secondly, he pointed out that, given the decline in business across the company, they had lost £4m worth of business in the last 12s months. He said this:

"To that end I feel there is scope for you to utilise some of your talents and experience (in for example media) and move into more of a support role. This is covered by the attached job description, on which I would welcome your comments on how you would expect to succeed in this role, and how I can support you in this.

It's essential that we all work smarter not just harder and I think that you could help the account groups in this. Your terms and conditions will remain unaltered.

Let's take this forward together and give the account groups the proactive, positive and high quality support they need."

15. The applicant contended that that amounted to demotion. That was one of the allegations considered by the Employment Tribunal. It said this at paragraph 26 of its judgment:

"The applicant in January 1999 was moved to the job of support co-ordinator. She considers this to be a demotion. She considers that it is a detriment to her, within the meaning of section 4 of the Race Relations Act 1976. It is a discrete matter; it is not a continuing act. Her complaints about being moved to that post therefore are out of time. In any event, the Tribunal would not consider that the move could be described as treatment that was less favourable to her on the grounds of her race. The respondents quite clearly had concerns about her performance in her role as customer services executive. Their concerns were real, as demonstrated to the tribunal by the way in which the applicant presented her evidence and her cross-examination. She had difficulty in expressing ideas in a way that was coherent and logical. The respondents, however, sought to find her alternative work that did not involve an interaction with clients and gave her a research role that was of a similar level to what which she had already performed. The respondents had that power within the contract, as it fell within the meaning of 'such duties as the company from time to time reasonably requires' and did not result in any reduction of her pay. Consequently, the tribunal finds not only that it was not in relation to her race that the applicant was moved, but that there was no less favourable treatment. She was treated as many other employees were by the respondents, namely that if they were in a job where their skills were not being best used, they were moved to a job where they might make better use of those skills."

16. By letter dated 19th January the applicant wrote to TMP seeking a three per cent pay rise. She argued that it was an annual pay rise due to her, and she alleged that the omission contravened the Race Relations Act. She also raised in the letter her complaints that she had been deprived of bonus, commission, perks and flowers.
17. I have already read the conclusion of the Employment Tribunal as to the flowers. As to the pay rise, that was dealt with in paragraph 25 of the Tribunal's decision, which reads:

"This matter of the pay rise is a discrete matter and cannot be seen to be a continuing matter with any of the other events that have preceded or post-dated it. This is a matter that caused concern in January 1999, some six months prior to the presentation of the originating application and therefore outside the three-month time limit. The complaint is presented out of time."

18. The Tribunal also held in paragraph 24 that it was satisfied that there was no such thing as a 3 per cent statutory increment; nor was there an "across the board" 3 per cent increment within the respondent's organization.
19. On 25th January 1999 the applicant met with representatives of the applicant to discuss her grievances. Her note of the meeting is at page 113 of the bundle. The applicant said that on 26th January she had a conversation with a white colleague, Sylvia Denman, who had told her that she had been allowed to carry over holiday entitlement. The applicant complained that she was not allowed to do this and asserted that this amounted to discrimination. In the bundle at page 187 is a document which suggests that Sylvia Denman later denied that she had carried over her holiday entitlement. The Employment Tribunal dealt with that complaint at paragraph 27 of their judgment:

"Around this time the applicant made complaint about the refusal to allow her to carry forward her annual leave. She compared herself with a white person, Sylvia Denman. Both the company and the individual employee deny that she was given any leave to carry forward annual leave. There is no contractual right contained within the terms and conditions that entitle the applicant to carry forward leave except with the written permission of the regional manager. The applicant did not seek the written permission of the regional manager. She blamed her line manager for not seeking such permission. The Tribunal did not accept that as a reasonable way to behave. If an employee wishes to have permission to carry forward leave which has been refused by their line manager, it is for the employee to take the matter further and to seek to have someone more senior than their line manager make the decision. There was no evidence that in this matter the applicant had been treated any differently from any other employee, regardless of race or ethnic origin. It was a discrete matter that was considered in January 1999 and therefore presented out of time, within the meaning of section 68 of the Race Relations Act 1976."

20. In March 1999 Mr. Tarrant of TMP undertook a review of the applicant in her new job. The document at page 127 suggested that there would be a follow up meeting and review. On 22nd April 1999 the applicant wrote a memo to Mr. Tarrant, repeating her complaints concerning demotion, not qualifying for a pay rise and being threatened with a verbal warning. She also complained about her loss of a car and perks when she changed her position. That complaint was dealt with by the Employment Tribunal in paragraph 30:

"The events relating to the applicant's meetings and change of job in 1998, events relating to the accident in October 1998 to January 1999, events relating to the 3% increment and the holiday and the loss of use of a car, are all presented out of time. They are not continuing acts that would allow them to be linked with the events that are in time. We do not consider that it would be just and equitable to extend the time limit for presenting them. In any event, having considered the matters, the Tribunal would not find that the applicant had made out her case.

Ii The Tribunal has concluded that the applicant's claims in relation to the way in which she was treated by John Tarrant in the period April, May and June 1999 do not demonstrate that she has been the subject of less favourable treatment. Indeed, Mr Tarrant appears to have found a role for her in which she was successful and likely to receive a pay rise. There is no evidence of less favourable treatment.

Iii. The Tribunal concludes that the investigation of the grievance by the applicant was conducted as far as reasonably practicable by the respondents. The respondents paid the applicant the proper amount of notice pay on termination of employment."

21. On 4th May 1999 the applicant wrote a memo to Kim Freeman, copy to Mr. Tarrant, in which she sought to be allowed to attend a human resources skills workshop. That was refused according to the applicant because of discrimination. That was dealt with by the Employment Tribunal at paragraph 28:

"John Tarrant suggested that the applicant might be interested in joining a group to look at how the company could display best practice with regard to equal opportunities. She joined a committee with the human resources director, Kim Freeman. As part of that system, the applicant was in correspondence with Kim Freeman. She sought to attend a training course on [human rights] Skills and Knowledge for Line Managers. She was refused that opportunity as she was not a line manager and therefore ineligible. In the same memo that she made the request to attend the course, she made reference to her problems relating to holiday and to overhearing some racist remarks. The applicant claims that those remarks should have been investigated. Miss Freeman, who gave evidence before us, said that not only did she not consider this to be a complaint by the applicant, but if she had considered it to be such she would have investigated, but she viewed it only as the applicant identifying problems that needed to be considered at the group looking at equal opportunities. The Tribunal, having read the relevant memo, found Ms Freeman's interpretation to be a proper reading of the contents."

22. By memo dated 14th May Mr. Tarrant wrote to the applicant, affirming that her change of job was not demotion. He said in the letter that her work in the new position had been "really positive and exceeding expectations". He said that he would review her position and identify performance measure. On 23rd June 1990 Mr. Tarrant and the applicant again met. The applicant handed in her letter of resignation (page 128). In that letter she complained of racial discrimination and constructive dismissal. Mr. Tarrant replied to that. He suspended her on full pay while the company investigated the allegations that she had made in line with their equal opportunities policy. The letter said that the company took any allegations seriously and that it would do its utmost to investigate them as soon as possible.
23. On 28th June (page 134 of the bundle) the company secretary of TMP wrote to the applicant asking her to reconsider her resignation. The letter stated that an investigation would be undertaken and the applicant was asked to co-operate.
24. On 29th June the applicant prepared a race questionnaire, and on 30th June she wrote to the respondent refusing to reconsider her resignation "due to the hostile environment created by management". She stated that she would not co-operate with the investigation and she told them that she had served the CRE questionnaire.
25. On 7th July 1999 TMP wrote to the applicant dealing with some of the allegations that were made and promised to investigate the others. They suggested that she had misunderstood a term which she said amounted to a racial slur.
26. On 9th July (pages 145 to 150 of the bundle) Mr. Upwood and Kim Freeman held interviews with a number of employees to investigate the complaints. On 22nd July they wrote to the applicant about her resignation. The letter recorded that she had refused to co-operate with the investigation and stated that the investigation had found that the matters were without substance. The letter went on to say that they would draw up a policy on flowers. According to the applicant her complaints had not been properly investigated. That was another matter that the Tribunal considered. At paragraph 29 the Tribunal stated:

"On 14 May Mr. Tarrant wrote to the applicant addressing some of the concerns she had identified about pay review and told her that he felt that in many aspects of the new job she had been really positive and exceeded expectations. A meeting was arranged in June. At that meeting on 23 June the applicant handed in her letter of resignation. The letter of resignation was accompanied by a complaint of a number of matters of race discrimination. Mr Tarrant's evidence to the Tribunal was that he was surprised to receive the resignation letter and tried to persuade her to retract it. The applicant was suspended as she was very emotional and the company did not consider that it would be easy to investigate her complaints while she was in work. Although the applicant refused to co-operate with it an investigation was conducted. It concluded there was no foundation for her complaints. The applicant complained that her suspension was a further act of discrimination. The Tribunal did not accept that view. We were satisfied that to suspend her and allow her the opportunity to be away from the work environment where she was clearly very unhappy was an appropriate course of action. Further, it was an appropriate and reasonable course of action to investigate the matter. It was unreasonable of the applicant to fail to co-operate with that investigation. She had made the assertions and it was unhelpful, if matters were to be resolved, not to co-operate with the investigation."

27. On 27th August 1999 the respondent wrote to the applicant indicating that it would reply to the questionnaire. On 2nd September 1999 the applicant wrote again, indicating that it would not reply to the questionnaire until after the Tribunal had determined whether the complaints were in time.
28. A preliminary hearing took place on 11th October to determine whether some of the complaints were out of time. The Tribunal decided that all the matters complained of would be admissible as background evidence. Complaint was made to the Tribunal on 11th November about the failure of the respondent to complete the questionnaire. The reply was produced on 20th December 1999.
29. When the case came to the Employment Appeal Tribunal, they had before them the findings of the Employment Tribunal. In every respect the evidence of the employees of TMP had been preferred over that of the applicant. It is clear from the judgment of the Employment Tribunal that her evidence was found to be unacceptable. It was upon that basis that the Tribunal found that the complaints were either out of time or had not been established. The Employment Appeal Tribunal went through the complaints one by one and pointed out, in effect, that there were decisions of fact against the applicant which could not be overturned on appeal.
30. She now comes to this court for permission to appeal. This court will not have the advantage of seeing the witnesses give their evidence. This court has to rely upon the findings of fact of the first court. In those circumstances, the findings as to what happened would be binding, and in my view there is no chance of her establishing any possible ground of appeal which could succeed.
31. I turn to the question of Europe. This is a new point which was not dealt with by the Tribunal or the Appeal Tribunal. She wishes there to be a reference. Her case as to whether the Directives apply or not is in no better position than the case under the Act. She lost on the facts, not on the law. This court will never refer a case to the European Court unless it is necessary for its decision. There is no point of law which requires consideration by the European Court. The decision of the Tribunal was the result of a conclusion that the complaints were either out of time or that the facts upon which she relied were not established. That being so, there is no point of law on which it is necessary for this court to have guidance from the European Court. Therefore, her introduction of the European question is misconceived.
32. The applicant, as I understand it, says that she has an LL.B. In those circumstances, she has sufficient legal training to be able to appreciate that this court does not overturn decisions of fact taken by a tribunal of first instance, whose job it is to decide the facts. She lost on the facts. In my view, her application must be refused. The application is refused.
Order: Application refused.