Jersey Unreported Judgments

Employment - application for leave to appeal the decision of the Tribunal.

[2023]JRC173

Royal Court

(Samedi)

26 September 2023

judgment

the deputy bailiff:

Background

1.        By application dated 12 September 2023, the Appellant seeks leave to appeal to the Royal Court pursuant to Article 94(1) of the Employment (Jersey) Law 2003 from the judgment of the Deputy Chair of the Employment and Discrimination Tribunal ("the Tribunal") who gave judgment on behalf of himself and the members of the panel on 2 August 2023, dismissing the Appellant's claim for discrimination on the grounds of race.  The Appellant's application for leave to appeal made to the Tribunal was determined and rejected in a decision given by the Deputy Chairman dated 30 August 2023. 

2.        It is accepted that there can be no leave given to appeal the findings of fact made by the Tribunal, having heard the evidence which it did at the hearing on 4 and 5 July 2023, but only if there is a question of law upon which the Tribunal has misdirected itself or misunderstood or misapplied the law and / or there was no evidence to support a particular conclusion or finding of fact, and / or the decision was so perverse that it was one which no reasonable tribunal could have reached or was obviously wrong (see Parker v Ecoheat JEDT 22 May 2017).

The grounds of appeal

3.        The principal ground advanced by the Appellant is the first ground of appeal, which is that when considering the evidence before it the Tribunal failed to apply the correct legal test, namely that the protected characteristic in question (in this case, race) must have been "a substantial reason" for the Appellant's unfavourable treatment and / or had a "significant influence" on the unfavourable treatment received.  In those circumstances, the claim of indiscrimination is made out.  Reference was made to the decisions in Flanagan v Island Greetings Limited (JEDT 147/2015) and the conclusion at paragraph 48 of the judgment that "direct discrimination will be established if the protected characteristic is a more than merely trivial factor in the treatment complained of".

4.        It was said that the Tribunal failed to recite these principles and direct itself in accordance with them.

5.        The response of the Tribunal, as contained in the decision refusing leave to appeal dated 30 August 2023, (Nora Nikolaeva Nenkova-Ivanova v The Jersey Royal Company Ltd [2022] TRE 129A) is that in the circumstances of this case no such direction was needed or was appropriate.  This is because there was no finding that the Appellant had been discriminated against in this case.  The judgment contained a long and careful analysis of all the complaints made by the Appellant and, where there was a conflict of evidence, the Tribunal generally concluded (see for example Nora Nikolaeva Nenkova-Ivanova v The Jersey Royal Company Ltd [2022] TRE 129 paragraphs 13, 15, 16 and 23) that it preferred the evidence given by the Respondent on the issue, or that (see for example, paragraphs 24 and 25) the evidence given on behalf of the Appellant did not have the evidential strength to withstand contrary evidence in the case or that (see the reference to "stupid Bulgarians" at paragraph 12) the evidence was potential evidence of racial discrimination to be weighed with the other evidence given by both parties in the proceedings.  The Tribunal concluded, having considered with care all the evidence placed before it, that (paragraph 41) "We do not find that the claimant suffered less favourable treatment in comparison with that comparator [a woman performing the same duties in the same way and to the same standard but not sharing the claimant's Bulgarian nationality].  Although it is not necessary to say so, we find anyway that any less favourable treatment would not have been founded on racial discrimination; we have found no evidence to suggest that racial discrimination has taken place within the company".

6.        Accordingly, though in certain circumstances it might have been appropriate to set out the test from Flanagan v Island Greetings, in view of the absence of any finding of discrimination it was not essential to do so and this ground of appeal cannot succeed. 

7.        The second ground of appeal was that the Tribunal misunderstood or misapplied the law as to the burden of proof in discrimination proceedings under the Discrimination (Jersey) Law 2013 as considered in Flanagan v Island Greetings Limited, which required inter alia that the Tribunal must approach a case on the "normal basis that it is for the Applicant to prove his or her case on the balance of probabilities..... a case may turn on the inferences that it is appropriate to draw from the surrounding circumstances" (paragraph 49 of the judgment).

8.        Reference was made to the case of King v The Great Britain-China Centre [1991] IRLR 513 where the English Court of Appeal said, inter alia, that it is the applicant who complains of racial discrimination to make out their case; that it is unusual to find direct evidence of racial discrimination and that the outcome of the case will usually depend on what inferences is proper to draw from the primary facts found by the Tribunal.  It was not necessary for the Tribunal to refer to this case law and it was clear from paragraph 6 of the judgment that the Tribunal was aware of its entitlement to draw inferences from the evidence.  Accordingly, this ground of appeal does not succeed.

9.        The third ground of appeal complains again about the failure to refer to Flanagan v Island Greetings Limited.  Nothing turns on this.  It was clear that the Tribunal had in mind where the burden of proof lay (see paragraphs 47 and 50 of the judgment). 

10.      The fourth ground of appeal in effect says that the Tribunal's recommendation that the Respondent should in future have an "enhanced emphasis on discrimination training" is indicative of an implicit finding that the Respondent was guilty of discrimination on the grounds of race.  The Applicant asks, "How can the Tribunal conclude there was no racial discrimination if it then goes on to make a recommendation as to the need for discrimination training?".  In his judgment dated 30 August 2023 the Deputy Chair said:

"The answer is that we heard extensively of a large workplace in which many demanding tasks are undertaken and in which the employees do not necessarily speak English, or have any other language in common.  The scope for misunderstanding was evident from this very case, in which the claimant appears wrongly to have thought that it was her race rather than poor performance which was an issue.  Although the respondent appeared to us to have reasonable measures in forestall / deal with any discrimination which might arise, it seemed to us that enhanced training would save others from the applicant's error of supposing she was the victim of racial discrimination, when in fact it was her performance that was unsatisfactory.  Enhanced discrimination training might emphasise the distinction between those things, to the benefit of all."

11.      I accept this explanation.

12.      The fifth and sixth grounds of appeal suggested that the Tribunal misdirected itself on the law when there was no such misdirection.  The Tribunal, as I have said, weighed the evidence in front of it carefully.

13.      The seventh and final ground of appeal alleges that the Tribunal failed to take into account the fact that the Appellant was a litigant in person when she made her claim and failed to assist her, and makes other ancillary claims.  The Tribunal's judgment, in its recitation of the procedural history, makes clear that various allowances were made to the Appellant, although not (as was quite proper) permitting her to raise an additional claim out of time.

14.      Accordingly, there is collectively no merit in the grounds of appeal and this application for leave to appeal is refused.

Authorities

Employment (Jersey) Law 2003. 

Parker v Ecoheat JEDT 22 May 2017. 

Flanagan v Island Greetings Limited (JEDT 147/2015). 

Nora Nikolaeva Nenkova-Ivanova v The Jersey Royal Company Ltd [2022] TRE 129A

Nora Nikolaeva Nenkova-Ivanova v The Jersey Royal Company Ltd [2022] TRE 129. 

Discrimination (Jersey) Law 2013. 

King v The Great Britain-China Centre [1991] IRLR 513.