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 Tuesday, 12th March 2002

1. LORD JUSTICE MUMMERY: This is an application of a rather unusual kind. The application is for permission to appeal from the order of the Employment Appeal Tribunal on 1st February 2002. The Tribunal had before it an application by Miss Simpson, dated 19th November 2001, for a review of the decision of the Appeal Tribunal. The application was made pursuant to rule 33(1)(c) of the Employment Appeal Tribunal Rules 1993. Under rule 33 the Appeal Tribunal may, on application as well as on its own motion, review any order made by it and may on such review revoke or vary that order on the grounds that (a) the order was wrongly made as a result of an error on the part of the tribunal or its staff; (b) a party did not receive proper notice of the proceeding leading to the order, or (c) the interests of justice require such review.
2. On 1st February the Tribunal ordered that the application for review be refused on the grounds that there was essentially only one issue in the appeal, and there is nothing in the application for review which leads to the conclusion that there should be a review of the decision that was reached.
3. On 5th November 2001 the Employment Appeal Tribunal, chaired by His Honour Judge Reid QC, had heard an appeal brought by Miss Simpson in person. She was appealing against the decision of the Employment Tribunal on her application for constructive dismissal and sex and race discrimination. She succeeded on her claim for constructive dismissal and was later awarded compensation. She partially succeeded on her claim for sex discrimination, but failed on her claim for race discrimination.
4. She sought to appeal to the Employment Appeal Tribunal against the decision on race discrimination. She was only entitled to appeal if there was a question of law arising from the decision of the Employment Tribunal. The judgment of the Employment Appeal Tribunal on 5th November 2001, which was sent to the parties on 14th December 2001, concluded, after hearing full argument on both sides, that there was no question of law arising from the decision of the Employment Tribunal.
5. Miss Simpson then sought permission to appeal against that order and, as in the case of an appeal to the Employment Appeal Tribunal, an appeal to the Court of Appeal can only be on a question of law arising from the decision of the Employment Tribunal. Permission is required. In order to obtain permission it has to be shown that there is a real prospect of the appeal succeeding. The application for permission was heard by Keene LJ on 30th January 2002, just a couple of days before the Employment Appeal Tribunal made its order on the application for a review of the very same decision that Miss Simpson was seeking to appeal. According to the transcript of the judgment given by Keene LJ, he heard detailed argument from Miss Simpson on the questions which he attempted to characterise as questions of law. Keene LJ came to the conclusion that what Miss Simpson was seeking to do was to challenge findings of fact which neither the appeal tribunal nor the Court of Appeal had jurisdiction to do. He stated in paragraph 12:

"In all those circumstances, it seems to me that there is no prospect of an appeal successfully being brought on the grounds that the Tribunal went wrong in terms of its conclusions on racial discrimination; or equally that it could now be argued successfully that it was racially or sexually discriminatory for Miss Simpson to have to apply if she wanted either of these posts of Housing Officer or SCSO."

6. He went on to repeat that he did not think that either of the arguments advanced had a real prospect of success.
7. The procedural position now arrived at is that Miss Simpson has sought to have the Employment Appeal Tribunal review a decision for which permission to appeal has already been refused. Permission to appeal can only have been refused on the basis that the Employment Appeal Tribunal had acted correctly in dismissing the appeal from the Employment Tribunal. What Miss Simpson is seeking to do by the procedure of a review, and appealing against a refusal of the review, is to go over the same points that have already been considered, not only by the Employment Appeal Tribunal but by this court on the application to Keene LJ.
8. I would not be satisfied, however, simply to refuse to deal with this matter on the basis of the procedural state of affairs that I have described. I have in fact heard Miss Simpson, who has the assistance of a MacKenzie friend, go through in detail a skeleton argument dated 12th March 2002, explaining why she considers that a question of law does arise from the way in which the Employment Tribunal dealt with her claim for racial discrimination.
9. The background to the claim for race discrimination was that Miss Simpson, who is Afro-Carribean, was employed as a tenant services officer, a scale 5 job, with the Kensington Housing Trust. She was one of a team of half a dozen tenant services officers, who operated under the management of an area housing manager. While she was on maternity leave there was a re-organisation of that team, under which the six tenant services officers were replaced by five new posts. It seems that the effect of that was to downgrade the old tenant services officer's post. Rather than take a downgraded position she chose resignation and successfully brought the claim for constructive dismissal that I have referred to. I am only concerned with the claim for race discrimination on which she did not succeed in the Employment Tribunal. On that she alleged that there had been less favourable treatment of her. That appears to have been the case, in that a number of white staff were offered automatic promotion or were given posts in the re-organisation which she was not given the opportunity to take. The Employment Tribunal considered this complaint of race discrimination and dismissed it for the reasons set out in paragraph 29 of the extended reasons, which were sent to the parties on 13th June 2000. The Tribunal stated at the end of that paragraph their conclusion in these terms:

"The Tribunal came to the conclusion that the majority of the comparators did not in fact present a true comparison. Where there might arguably have been thought to be more favourable treatment of the white applicants as distinct to the ethnic minority applicants as referred to above, the Tribunal found that the reasons were pragmatic and related to the needs of the job in question at the time and the personnel who might reasonably be thought to be able to do it, and not in any way related to race."

10. Like it or not, that is a conclusion of fact. Miss Simpson has referred in the skeleton argument to the provisions of section 1(1)(a) of the Race Discrimination Act 1976, which provides:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons."

11. It is clear from that provision that, in order to succeed in a claim for race discrimination, it not only has to be shown that the person making the complaint of discrimination has been treated less favourably than others, but that that less favourable treatment is on racial grounds. The Tribunal has found as a fact that the grounds for the difference in treatment did not relate to race. It related to other matters which the Tribunal accepted in evidence was the truthful explanation for the difference in treatment. There can be no appeal against a finding of fact. There has to be a question of law. In her skeleton argument Miss Simpson, after surveying the law in detail by reference to the provisions of the 1976 Act and to a number of authorities, poses for the Court of Appeal a number of questions under the heading "My submission to the Court of Appeal". I am afraid that I have it say that all the questions which are posed are questions of fact relating to the evidence in the case. For example, what happened to Gwynette Allen's post of Business Development Manager?Why was her post not declared redundant? Why was she not offered her demoted post? Why was she not requested to apply for the post of Business Development Director? Was it not promotion for Ms Allen?These are all questions which address the evidence and facts in the case. They are not questions of law. This court is not in a position to act as an Employment Tribunal in seeking to re-answer in a different way the questions which the Tribunal have already addressed on the evidence that they heard in the hearing over a number of days in May 2000. I have reached the conclusion that there is no real prospect of an appeal succeeding: first, for the reasons which I have given about the procedural position. Keene LJ, as a member of the Court of Appeal, has already refused permission on the basis that the Employment Appeal Tribunal was correct in dismissing the appeal against the race discrimination claim, and, secondly, having myself addressed the Employment Tribunal's decision in its relevant passage dealing with race discrimination, I can find no error of law. All I can find is a conclusion of fact which, for understandable reasons, Miss Simpson does not agree with. The fact that she does not agree with it as a matter of fact does not entitle her to appeal to this court. I know that Miss Simpson will be disappointed, but I have come to the conclusion that this application should be refused.
Order: Application refused.