United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 541_93_1901

Appeal No. EAT/541/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19th January 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MISS J W COLLERSON

MR P M SMITH

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MISS P A SHEA          APPELLANT

CENTRE 56 LIMITED          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR JOHN HALSON

(Solicitor)

Liverpool 8 Law Centre

34-36 Princes Road

Liverpool

L8 1TH


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Miss Shea against a decision of the Industrial Tribunal held at Liverpool over four days in March 1993. The Tribunal unanimously held that Miss Shea's complaint against the Respondents, Centre 56 Ltd, in respect of racial discrimination by way of victimisation, leading to unfair dismissal, should be rejected. Miss Shea was dissatisfied with the decision and a Notice of Appeal was presented to this Tribunal on the 8th June 1993.

The background to the dispute is that Miss Shea made application to the Industrial Tribunal in a complaint presented on the 22nd May 1991. She complained of victimisation leading to unfair dismissal. The complaint was made in her capacity of family counsellor staff trainer with Centre 56 Limited, which runs a Women and Children's Aid Centre in Liverpool. She had started employment there on the 14th May 1990. Her employment terminated on the 29th February 1991. The substance of her complaint was that in about July 1990 Centre 56 Ltd found an employee, named Mrs Florence Spriggings, guilty of racist practices and recommended that she attend a Race Awareness Training Course, which was never arranged. As training co-ordinator Miss Shea was advised a preference was to be given to other courses. Her request for a Race Awareness training for all staff was not granted.

In January 1991 there were further complaints made to Miss Shea by a resident about alleged racism by Florence Spriggings. The complaint was investigated by Miss Shea. She advised the Director of Centre 56 Ltd. The Directors called a disciplinary hearing which was later cancelled. Instead, the staff were threatened with redundancy.

On the 29th January 1991 Miss Shea says she was given a month's notice of termination. She complains that Centre 56 Ltd failed to deal adequately, or at all, with the proven racist attitude of Florence Spriggings and with her further complaint and she was dismissed for persisting with the complaint.

The Respondent disputed this version of events. Their case, as stated in the Notice of Appearance, was that in January 1991 Miss Shea had a disagreement with one of the managers of the hostel run by Centre 56 over an assault alleged to have been made by one of the residents on another person working in the hostel. The other manager of the hostel reported the action taken by her colleague, whereupon Miss Shea said she could not work in a hostel run in this way. She offered to resign. Her resignation was accepted by the manager. All the people involved in the initial incident were of the same race, Irish, so that there was no question of race or discrimination. Mrs Spriggings, the person named as `Flo' in the Application, was not involved in the incident. On the 22nd January 1991 Miss Shea sought to withdraw her resignation. Centre 56 Ltd refused to agree.

The issue disclosed in those documents appears to be short and simple. At the hearing before the Tribunal, on the 16th, 17th, 18th and 19th March 1993, no less than a dozen people gave evidence. The Tribunal in its decision referred to the fact that it heard a great deal of evidence on both sides and, in addition, perused a large number of exhibits. It set out the material facts on which it based its decision. It did this in numerous paragraphs. It concentrated its findings of fact on the particular incident of the 23rd January 1991.

The Tribunal referred to the submissions and the relevant section of the Race Relations Act 1986. It stated its conclusions clearly in paragraphs 8 and 9 of the decision. The Tribunal unanimously decided that the claim of victimisation failed. The Tribunal stated that in its unanimous view Miss Shea had been dismissed. Reference was made to the Court of Appeal decision in Aziz v. Trinity Street Taxis Limited [1988] IRLR H204. The Tribunal then said:

"We have compared the treatment applied by the respondents to the applicant and the treatment they applied or would apply to a person who had not done the relevant protective act and we are satisfied that the respondents would have dismissed such a person who had not committed the said relevant act if the person had behaved as did this applicant, namely had offered to resign on 2 occasions and given the respondents good cause to believe that she could not cope with the situation existing in the refuge. We are satisfied that the fact that the protected act which was done by the applicant did not influence the respondents in any way whatsoever. They were influenced solely by her conduct namely, the 2 resignations within a short period of time and the impression which they gained that she could not cope with the situation. We are not being satisfied that the protected act influenced the respondents in their treatment of the applicant."

It therefore dismissed the victimisation complaint.

The jurisdiction of this Tribunal is confined to consideration of an error of law by the Tribunal. On a reading of the Notice of Appeal it is difficult to detect a ground, based on an error of law. This first impression was confirmed by the skeleton argument and oral submissions. The grounds of appeal are that the Tribunal made findings of fact which were unreasonable and unsupported by the evidence, and were, therefore, perverse. This complaint is made especially in relation to a finding based on the evidence of Miss Levy, a Director of the refuge. It is said that the finding in the decision that Miss Levy did not pursue any enquiries into alleged racial discrimination, because Mrs Gilheeney refused to make a complaint in writing to the Committee, was wholly unreasonable and unsupported by the evidence, in view of the evidence of Miss Levy, who gave two different explanations as to why she had not pursued the alleged racial discrimination complaint. One explanation was that the complaint had not been made in writing. Another explanation was that, when a complaint in writing was received, she was not prepared to follow it up because of lack of procedures. What is said is that the evidence of Miss Levy did not support the finding of fact by the Industrial Tribunal. It contradicted itself. That indicated that the Tribunal could not have accepted her evidence in toto. These grounds are amplified in the skeleton argument and in Mr Halson's submissions to us today. What is said in the skeleton argument, in amplification of this ground, is that the Tribunal's decision on crucial points were in spite of contradictory evidence given by Enid Levy on a crucial point. It was argued that Enid Levy was inconsistent with her evidence in relation to the two separate reasons given for cancellation of the disciplinary hearings and that no reasonable tribunal could have concluded that she was a reliable witness in view of this contradictory evidence. The submission was made that the Tribunal should have considered the rest of her evidence, regarding her role in the termination of Miss Shea's employment, in the light of contradictory evidence regarding the complaint of race discrimination.

We are not persuaded by these arguments that there was any error of law by the Tribunal. It was for the Tribunal to hear all the evidence. It heard a great deal of it. It then had to make an assessment of the witnesses, including witnesses who had given contradictory evidence, and come to a decision about whose evidence it would accept or, if a witness was giving contradictory evidence, what part of their evidence it would accept and what part of their evidence it would reject. In our view, this is solely a question for the Industrial Tribunal. These matters cannot be re-opened on appeal. In our judgment, there was sufficient evidence available to the Tribunal to support the conclusion cited from paragraphs 8, 9 and 10 of the decision.

Our conclusion is, therefore, that there is no arguable error of law deserving a fuller argument at a hearing of this Tribunal. This appeal will accordingly be dismissed on this preliminary hearing.