England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PROPHET)

		Royal Courts of Justice Strand London, WC2
		6 October 2004

1. LORD JUSTICE PILL: This is an appeal against a decision of the Employment Appeal Tribunal, His Honour Judge Prophet presiding, sent to the parties on 10th November 2003. The EAT reversed a finding in favour of the present appellant, Justinah Akinmolasire, made by an Employment Tribunal held at London Central and in a written decision on 14th February 2003. The Employment Tribunal had unanimously decided that:

"The applicant's complaint of race discrimination against the respondent under sections 1(1)(a) and 4(2)(c) succeeds and the respondent is ordered to pay the applicant the sum of £2,240.00 in respect of the said act of race discrimination; the said sum of £2,240.00 being the total sum of £2,000 for injury to the applicant's feelings and the sum of £240.00 interest thereon at 6% from 22 October 2001 to 25 October 2002."

Other complaints which had been made by the appellant to the Employment Tribunal were dismissed by that Tribunal, though they did not state that in terms under the heading "Decision" in the document to which I have referred. It is clear, however, from the contents of the extended reasons, as Miss Chute for the appellant accepts, that the Employment Tribunal did dismiss the other complaints which had been made.

2. The appellant is black and of Nigerian origin. She obtained employment, initially on a six month probationary period, at the Mental Health Crisis Project for Women run by the Camden and Islington Mental Health NHS Trust. During her employment she encountered difficulties with some of her colleagues. She made complaints about racial harassment and the conduct of her fellow workers. The probationary period was extended for three months because of the employer's queries about her work. She also made a complaint in September 2001 about the way in which she had been treated by one of the patients treated by the project. It is clear that her future employment was under consideration. The management identified shortcomings, as they saw them, in the appellant's performance and/or ability. The final probation meeting took place on 22nd October 2001 and the management concluded that the appellant had not met the required standard and recommended termination of her employment. Employment was terminated on 29th November 2001.
3. The extended reasons of the Employment Tribunal are lengthy. The hearing took place over a period of five days. The appellant appeared in person, though she had at an earlier stage been represented by solicitors. The Trust were represented by counsel, Mr Ward. I have referred to other complaints being dismissed. In certain respects the evidence of the respondent's witnesses was preferred. Paragraph 42 deals with one of the complaints:

"... the Tribunal prefers the evidence of the respondent's witnesses on this issue."

And at paragraph 43 dealing with another complaint:

"On balance, the Tribunal accepts the respondent's evidence."

4. The finding in favour of the appellant is contained at paragraph 44, the evidence relied on having been set out, with findings, at paragraph 41. Reference was made to the appellant's allegation of race discrimination at the end of the extended probationary period meeting on 22nd and 23rd October 2001. It was said that the recommendation made, to which I have referred, at that meeting was "merely rubber stamped" by the senior officer. That was described in context as "patently unfair."
5. Paragraph 44 is headed "The race discrimination complaints in relation to the respondent's failure to investigate the applicant's race discrimination complaints":

"The respondent has an equal opportunity policy. The applicant's complaints, which she had raised in March to July 2001 were such that the respondent should have been alerted to the possibility of the race discrimination. Ms McNicholas carried out an inadequate investigation. Be that as it may, the respondents failed to carry out an investigation into the applicant's race discrimination complaint which she made at the end of extended probationary review meeting in October 2001 was incomprehensible. The failure to do so put the applicant, a black female, at a disadvantage when compared to the persons against whom she complained (who were white). She suffered a detriment on racial grounds. The failure to investigate was a 'continuing act' of race discrimination within the meaning of section 68(7)(b) of the 1976 Act, up to the date of termination of the employment on 29th November 2001. Alternatively, if it was not a 'continuing act' within the meaning of section 68(7)(b), in all the circumstances of the case, it the unanimous decision of the Tribunal that it would be 'just and equitable' to exercise our discretion under section 68(6) in the applicant's favour. Accordingly, it is the unanimous decision of the Tribunal that the applicant's race discrimination complaint under sections 1(1)(a), 4(2)(c) and 32 under this head against the respondent succeeds. The Tribunal draws the inference, and it is the tribunal's unanimous view that, the respondent discriminated against the applicant on racial grounds contrary to those provisions of the 1976 Act in relation to the failure to investigate the racial discrimination complaint which she had made at the end of extended probationary review meeting with Ms McNicholas on 22nd and 23rd October 2001."

The 1976 Act is of course the Race Relations Act 1976.

6. The remedy to be provided is set out at paragraph 45 and that includes a statement that interest would run from 22nd October 2001, that is the date of the meeting at which the recommendation to dismiss was made.
7. The originating application was filed on 7th February 2002 -- that is more than three months from the meeting of 22nd October 2001, but within three months of 29th November 2001 when dismissal occurred.
8. There was no cross-appeal against the decision of the Employment Tribunal. I mention that because in her submissions on behalf of the appellant, Miss Chute has referred to what in her submission is the unsatisfactory nature of the deliberations of the Employment Tribunal. Indeed, she puts it strongly in her written submissions, stating that the decision is hopelessly flawed and that the Employment Tribunal's findings of fact are not sufficiently clear to form a view one way or the other as to whether the Tribunal's conclusion on racial discrimination was correct. She suggested that the whole matter should be remitted to a differently constituted Employment Tribunal, though that submission has not been pursued orally. The most which Miss Chute can hope to do on behalf of the appellant is to have the decision of the Employment Tribunal on the one complaint which they found proved to be reinstated. It is quite impossible to suggest that other matters can be reopened unless, on a consideration of the Employment Appeal Tribunal's decision on that question, the whole matter can be said to arise again. Miss Chute would seek to put it in that way and has orally done so.
9. The Employment Appeal Tribunal allowed the appeal of the respondent employers against the single decision in the appellant's favour to which I have referred. They refer to the point taken by Mr Ward on the respondent's behalf that there is no specific complaint in the originating application of race discrimination arising from a failure of the employer to investigate a complaint made by the appellant at the end of the extended probation review meeting in October 2001. They note that not only is there no such complaint in the originating application, but that at a directions hearing, at which the appellant was represented by a solicitor, no specific complaint of that nature was identified. Moreover, no request for any amendment to the originating application was made. They found that, at the hearing before the Employment Tribunal, no submissions were advanced on either side relating to the particular complaint and the employers were entitled to be surprised by the decision which they received. The Tribunal held that on the basis of the decision of this court in Chapman v Simon [1994] IRLR 124 a Tribunal can find in an applicant's favour only in relation to matters which have been specifically complained about. The Tribunal no doubt had in mind the judgment of Peter Gibson LJ at paragraph 42, by reference to the 1976 Act:

"Under section 54 of the Race Relations Act [1976], the complainant is entitled to complain to the Tribunal that a person has committed an unlawful act of discrimination, but it is the act of which complaint is made and no other that the Tribunal must consider and rule upon. If it finds that the complaint is well founded, the remedies which it can give the complainant under section 56(1) [of the 1976 Act] are specifically directed to the act to which the complaint relates. If the act of which complaint is made is found to be not proven, it is not for the Tribunal to find another act of racial discrimination of which complaint has not been made to give a remedy in respect of that other act."

Miss Chute does not challenge the applicability of that principle to the present facts. Her submission is that, upon a proper reading of paragraph 44 of the judgment, the Tribunal had in mind, when finding for the appellant, what had occurred between March and July of 2001 in relation to her. Their finding, while stated to be in relation to a failure at and following the meeting of 22nd October 2001, was in substance a finding in relation to earlier conduct which is covered by the originating application where it is stated, for example in paragraph 8, that, in relation to a letter of 10th July 2001:

"I believe that the investigation into my complaint was inadequate."

Neither in the detailed allegations nor in the concluding paragraph is there any reference to any complaint of racial discrimination having been made and/or any request to investigate it having been made at the meeting on 22nd October 2001.

10. In my judgment, paragraph 44 can only bear one meaning. It is right to say that it begins with a reference to complaints raised in March to July 2001 and that is consistent with the originating application. However, the substance of the finding is, in my judgment, specifically related to the alleged complaint of 22nd October. It is a specific finding and a discrete finding in relation to that date and does not encompass any reference to earlier conduct. I rely first on the fact that in the opening words referring to the earlier period it is merely stated that the respondent should have been "alerted to the possibility" of the race discrimination. Secondly, the expression "be that as it may" relegates what has gone before to a statement of the background against which the events of the review meeting in October 2001 should be considered. The early events are not treated by the Tribunal as a part of the decision in relation to the events of 22nd October. Third, the setting out of the next sentences by reference to a "continuing act" plainly has in mind that the Tribunal were considering the events of 22nd October 2002. There is no reference to any earlier events being capable of regarded as continuing acts for the purposes of section 68(7) of the Act. It is not surprising that the continuing act was mentioned because, as I have said, the events of October 22nd were more than three months, that is the time limit, before the filing of the originating complaint. The Tribunal in paragraph 44 first found that the failure to investigate was a continuing act which went up to 29th November 2001, that is within the three month period, and they went on to say that even if it they were wrong in saying it was a continuing act, it would be just and equitable to exercise their discretion under section 68(6) in the applicant's favour. They were thus assuring themselves that they were able to deal with the alleged failure to investigate the appellant's race discrimination complaints made at that meeting and were not going beyond that. Finally, they could not be clearer than they have been in the conclusion they have stated in the last sentence, which refers specifically to "the failure to investigate the racial discrimination complaint which the appellant had made at the end of her extended probationary review meeting with Ms McNicholas on 22nd and 23rd October 2001."
11. I can find no basis for holding that the Employment Tribunal's findings in the appellant's favour relate back to events between March and July which are covered by the originating application. There is no reference in that application or in the subsequent interlocutory proceedings, in the course of which further and better particulars were also given, which suggested a case based on a complaint at the October 22nd meeting. In those circumstances the principle in Chapman v Simon plainly applies and the decision of the Employment Tribunal cannot stand.
12. One cannot help but have some sympathy for the appellant who appeared in person and said that she did not realise the need to cross-appeal. However, the absence of the complaint on which the Employment Tribunal based their decision in the originating application and subsequent management hearing at which the appellant was represented by a solicitor suggests that no denial of justice has arisen by reason of the point taken on behalf of the respondents based on the principle in Chapman.
13. There is nothing in the resolution of the point before the court by virtue of the employer's appeal which raises the possibility that the whole matter should be referred back to a differently constituted Employment Tribunal. In my judgment this appeal must be dismissed and the finding in the appellant's favour by the Employment Tribunal cannot stand.
14. LORD JUSTICE JONATHAN PARKER: I agree.
15. MR JUSTICE HOOPER: I agree.
16. LORD JUSTICE PILL: Are there any applications?
17. MR WARD: My Lord, I have no applications thank you.
18. LORD JUSTICE PILL: Are you legally aided?
19. MISS CHUTE: I am.
20. LORD JUSTICE PILL: You may have your assessment.