United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1000_95_2703

Appeal No. EAT/1000/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 27th March 1996

HIS HONOUR JUDGE N BUTTER Q.C.

MR J D DALY

MR T C THOMAS CBE

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MISS L G LOPEZ          APPELLANT

ARMY & NAVY CLUB          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MISS L G LOPEZ

(The Appellant in person)


 


JUDGE BUTTER Q.C.: In July 1986 Miss Lopez was first employed by the Army and Navy Club as a secretary. On 20th September 1993, she attained the age 65. Her employers decided not to continue her employment. There were other employees over the age of 65, and Miss Lopez believes that she has been discriminated against by reason of her Spanish nationality.

She issued proceedings before the Industrial Tribunal at London (South). There was a hearing which lasted some five days in July 1995. The decision was sent out on 11th August 1995. Miss Lopez requested a review, but the Chairman refused, as he was fully entitled to, on the basis that there were no reasonable grounds for review.

It is against the decision of the tribunal that Miss Lopez now appeals to this tribunal today. It is a preliminary hearing. If she satisfied us that there is any arguable matter of law which should go forward, then of course we would allow it to do so, as we would, if she can show that the tribunal below may have reached a decision which no reasonable tribunal could have reached.

There is a background to the case in the sense that, in March 1994, Miss Lopez made two claims to the tribunal. One of these was that she had been unfairly dismissed contrary to the Employment Protection (Consolidation) Act 1978. At a hearing before a differently constituted Industrial Tribunal on 15th August 1994, it was decided that there was no jurisdiction to hear her claim in view of the provisions of Section 64(1)(b) of the 1978 Act. Miss Lopez appealed against that decision to the Employment Appeal Tribunal but was unsuccessful.

Thus the one issue which the Industrial Tribunal had to consider in July 1995 was whether or not the applicant had been discriminated against on racial grounds. The tribunal dealt with the facts in considerable detail and reviewed the evidence which had been extensive. In paragraphs 4 and 9 of their decision, they set out the law, in our judgment entirely accurately, including detailed extract from one of the leading cases.

In paragraph 10 they concluded that:

"... the manner in which the Respondents [the Employers] effected the Applicants dismissal left a great deal to be desired. Had this been a case of unfair dismissal, the Tribunal would not have experienced any great difficulty in reaching a conclusion that the dismissal was unfair."

They go on to point out, however, that the case they had to consider was one of racial discrimination, and that:

"The test to be applied is whether `on racial grounds' the Applicant was treated less favourably than other persons were treated or would have been treated."

Towards the end of their decision the tribunal say:

"The Tribunal find that the employers would have behaved in like manner regardless of the Applicant's racial origin and racial group. ... the Tribunal is unable to draw the inference that the treatment amounted to racial discrimination. After careful consideration and consideration of the evidence, the Tribunal find, on the balance of probabilities, that any employee who had upset her managers in the way in which the applicant had, would have been similarly treated, irrespective of racial origin."

The tribunal went on to acknowledge:

"the understandable feelings of rejection and despair experienced by the Applicant for the insensitive manner in which she had been treated;"

and referred to the amount of time and effort which she had spent in her meticulous preparation and presentation of a difficult case. The tribunal concluded:

"applying the law and principles in [the leading case to which they had already referred] that she had failed to discharge the burden of proof required in establishing a case of racial discrimination."

Thus, the application failed and was dismissed.

Today, Miss Lopez has appeared in person. She has provided us with an extensive skeleton argument, in which she says among other things, that there has been a failure to comply with a Council Directive and she refers in particular to Article 6 of the Directive 76/207. We have considered the arguments which we have had presented to us. We understand how strongly she feels about her case. But in the end we are unanimously of the view that she has not demonstrated any error of law on the part of the tribunal, or established in any way that the tribunal reached a decision which they could not reasonably have reached.

In these circumstances we would do no service to her by permitting the matter to go forward to a full hearing, and in all the circumstances and for these reasons it follows that the appeal fails and must be dismissed.