United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R HINE (of Counsel) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR J BOWERS (of Counsel) Legal Services Department Civic Hall Leeds LS1 1UR


 


MR JUSTICE MORISON (PRESIDENT): Our decision is that the appeal against a majority decision of an Industrial Tribunal held at Leeds must be dismissed, save as to costs. It is to be noted that the proceedings in front of the Leeds Industrial Tribunal to determine complaints of race and sex discrimination brought by Ms Webbe against her employers, the Leeds City Council and a named individual there, occupied the tribunal for some 14 days, between 7th November 1994 and 15th June 1995. The decision of the Industrial Tribunal runs to some 12 pages and was sent to the parties on 10th July 1995. We have been greatly assisted by the way in which the appeal has been presented to us by Miss Hine on the appellant's behalf.

The factual background to the case from which this appeal arises, relates to the treatment by Ms Webbe arising out of her employment with the Leeds City Council. She was employed as a detached youth and community worker and centre manager at the Chapeltown Community Centre. She was obviously energetic in her position, and sought promotion. There were two particular positions in which she was interested. I think for present purposes we can confine our attention to the second of those two opportunities, which required a shortlisting, and which subsequently she was not shortlisted for.

The background is as follows. On 18th January 1994, there was a CASAC (Community Action Support Against Crime) meeting. It was held in a Methodist church hall, was open to the public, and the director of the Community Benefits and Rights Department was invited to speak on behalf the Council. He was one of the named respondents to the proceedings before the tribunal. In fact he was told by the Chair of the meeting that the purpose was to enable members of the community to make suggestions to CASAC to enable it to set its agenda for taking action to reduce crime. There was a question and answer session after he had spoken, as was the case in relation to all the other speakers. When he had finished speaking, the Chair invited questions from the floor. Ms Webbe, the appellant, spoke, and some notes were taken of what she said. Those notes recorded her as having opened her question by saying "I know I will be called to the supervisor's office in the morning and I will be taken to task for what I am going to say." She then criticised the local authority, her employer, and in particular the funding department. She made a complaint that the funding was organised by an all white committee, which was taken as a provocative remark by two members of that committee who were present at that meeting.

Those are the findings which are made in paragraph 12 of the Industrial Tribunal's decision. They go further at paragraph 16 where they conclude that what Ms Webbe said was not a positive contribution to the meeting, although Mr Cameron did not consider that her remarks were aggressive. Another witness who was present at the meeting said that Ms Webbe got up from the left of her about 20 yards away, and turned and said "I know I am going to get called into my supervisor's office for what I am about say but I am going to say it anyway." That witness said that Ms Webbe spoke for six to seven minutes about various things such as black immunity, institutional racism, the client unit of the Community Benefits and Rights Department, that finances were not coming from the Council, that there was a lot of internal control and it was not a proper partnership. This witness confirmed that she made the point that the Community Benefits and Rights Department Client Unit were all white. The witness said that the tenor of what Ms Webbe was saying was extremely aggressive, particularly towards Mr McAndrew. The witness said that she was "gob smacked" about what Ms Webbe was saying, because it was not appropriate particularly by provoking somebody in her own department into taking action on what she was going to say.

Following that meetings, two things occurred. The first was that the question of disciplinary action was to be considered. Accordingly, Mrs Snowden commenced an investigation into whether disciplinary procedures should be instituted. Having gathered the information, Mrs Snowden arranged to see the appellant on 28th March 1994 and giving her the opportunity to have her personnel officer present. Mrs Snowden had decided that Ms Webbe's behaviour, whilst not gross misconduct, did amount to misconduct. But it is to be noted, as was pointed out in the course of Miss Hine's submission, that that state of mind was arrived at before the second event occurred, which was a decision which was taken by the selection panel in relation to the second post, the post which is categorised as "PO6", that Ms Webbe should not be shortlisted. The reason why he reached that conclusion, was, as found by the Industrial Tribunal, her behaviour and what she was saying at the CASAC meeting, to which I have just referred.

What the tribunal said at paragraph 20 was this:

"20 The tribunal have come to the decision that it was quite improper and justice could not be seen to have been done with both Mr McAndrew and Mr Forbes sitting on the shortlisting selection panel. We cannot be certain that what happened at the meeting on 18 January was not in their minds when they came to consider shortlisting. The tribunal find that it was most improper of them to sit on this selection panel. The majority of the tribunal find that it could have gone against any candidate in Ms Webbe's position in these circumstances. The majority do not find the fact that she was black would have made any difference, that a white person or a male person would have been at a disadvantage in just the same way. However, one member of the panel does not accept this. That member considers that there was a racial element involved. There was a racial background as a result of the CASAC meeting on 18 January and therefore there was a racial ethos through the whole proceedings. Mr McAndrew wrote the memo to Mrs Strong, a copy of which Mr Forbes received and therefore he was influenced by it. In those circumstances the shortlisting process was flawed and as a consequence 6 white applicants, including the successful applicant, were known to Mr Forbes, and 6 applicants including Ms Webbe from the ethnic minorities were not shortlisted. That member considers there was a racial element in the decision not to shortlist Ms Webbe. There was therefore not only victimisation in this respect but was also racial. Therefore the whole tribunal find that both Mr McAndrew and Mr Forbes, who had seen the memorandum prior to shortlisting, were influenced by it. The majority of the tribunal find that this would have happened to any person not just a black person, however, one member considers that the whole matter has a racial ethos and this might have influenced the panel in their failure to select the applicant. To this extent, therefore, the tribunal is not unanimous."

Having arrived at those findings of fact, the tribunal in paragraph 21 directed itself to the issue of direct discrimination, and no complaint is made about the way they have set out the test to be applied in paragraph 22 of their decision.

They then turn to consider the question of victimisation in paragraph 23 of their decision, and again, no criticism has or could be made of the directions the tribunal give to themselves in that and the succeeding paragraph.

The question on victimisation for the Industrial Tribunal was to ask itself, what was the motive which caused the discriminator to treat the complainant less favourably than any other person? That question arose because in the view of the Industrial Tribunal, what the appellant had said at the CASAC meeting was capable of falling within Section 2(1)(d) of the Race Relations Act 1975.

They directed their attention to the motive in relation to victimisation, and concluded as follows:

"24 The majority of the tribunal in this case have reached the conclusion that those who were placed on the shortlist including the person who was selected, would, if they had done what the applicant had done at the CASAC meeting on 18 January, not have been placed on the shortlist on the grounds that what was done was a breach of trust. ...

25 The tribunal find that Ms Webbe was victimised by not being shortlisted for the post of area co-ordinator. But the majority find she has failed to show that her treatment was by reason of her having done a protected act in that the respondents would not have shortlisted anyone who acted in the way Ms Webbe did on 18 January on the ground that it was a breach of trust for a council officer to have behaved as she did. ..."

In her submission to us, Miss Hine supports the finding by the Industrial Tribunal that Ms Webbe had committed a protected act, but criticises the decision which they have arrived at that the motive for her treatment was not the doing of the protected act. What she submitted was that the tribunal had failed adequately to apply the law contained in Section 2 of the Act, and the decision in Aziz v Trinity Taxis Ltd. She says that the decision of the Industrial Tribunal on the facts was perverse. She says that it was completely illogical because the Industrial Tribunal had failed to recognise that she had behaved in a somewhat similar manner on two previous occasions, but had not been treated less favourably on that account before. Therefore, it is submitted, the tribunal could not logically have concluded that the motive for her treatment was other than racial or the fact that she was making allegations of discrimination.

It seems to us, with respect, that the illogicality argument is only sustainable as far as it goes. It seems to us that the quality of behaviour must be looked at on each of the occasions to see whether one act can be properly distinguished from another. The tribunal have referred to the two previous occasions, and have indicated that those occasions were not public meetings in the full sense, but would be more better described as "private meetings". That is not a decision with which we can interfere. It seems to us that there is no inherent illogicality in an employer treating a subsequent act as the straw which breaks the camel's back.

Secondly, she submits that, in effect, the tribunal failed to take account of the chronology that no decision had been made, as at the date of the decision not to shortlist her, that she had been guilty of, or might have been guilty of conduct or misconduct. But it seems to us that a distinction clearly can be drawn between conduct which justifies the invoking of a disciplinary procedure on the one hand, and conduct which justifies the non-selection of an employee for promotion on the other. We do not consider that the decision of the Industrial Tribunal as I have set it out can be impugned merely because as at the date when the decision not to select her was taken, the disciplinary procedure was at a preliminary and not at an advanced stage.

Accordingly, on the question of victimisation, we dismiss the appeal.

We turn therefore to the other ground which is as Miss Hine quite rightly says is linked in a way to the allegation of victimisation.

It is said that the tribunal have failed properly to deal with the question of direct discrimination. There was a prima facie case it is said here of direct discrimination on grounds of race. The position in question had 36 candidates applying for it, six were shortlisted, none of them from the racial minority. The six candidates from the racial minorities were not shortlisted. Ms Webbe was one of those six.

The argument I think is this. That the tribunal have failed to appreciate the significance of the non-shortlisting of the racial minority candidates. If they had properly directed their minds to that question, they would have then have been much less willing to assume that the non-shortlisting in Ms Webbe's case was attributable to what she was saying rather than to her colour.

In our view, again in this quite long decision of the Industrial Tribunal, there are no grounds for the view that the tribunal have failed properly to take account of the position of the other five ethnic minority applicants. They have referred to the fact that none of them was shortlisted. But what they have rightly concentrated on is to ask themselves whether there was any racial element in the way in which Ms Webbe herself was not shortlisted, and they were entitled, as it seems to us, on the basis of the material before them, to conclude that it was her aggressive attitude towards the Council which disentitled her to be considered for appointment to a more senior position. Accordingly, it seems to us, that concentrating on the position of Ms Webbe in the circumstances of this particular case, was not an incorrect way for the them to have approached this difficult matter which extended over very many days. Accordingly, we dismiss the appeal on direct discrimination.

That leaves over the question of costs. The tribunal said this at paragraph 26:

" The tribunal will order costs against the applicant unless agreed by the parties in particular having regard to the fact that the application was against 7 respondents until the start of the hearing when the case against 5 of them was discontinued."

Before making an order for costs, the tribunal has to apply its minds to the rules which provide them with the circumstances in which a costs order can be made. It seems to us that before a tribunal makes an order for costs, it should apply its mind carefully to which of the provisions of the relevant rule are applicable, and to spell out in their decision how they have arrived at their conclusion, and to give the parties and indication of the period or periods of time, or the amounts of expenditure that might be related to the matters which they criticise the applicant for having done or failed to do.

As things stand, it is quite obvious that the parties would not have been able to have agreed anything in relation to costs, because it is quite unclear what precisely the tribunal did have in mind in that connection. Very sensibly the parties have agreed that in relation to the question of costs, the matter should be remitted back to the Industrial Tribunal for them to consider de novo, that is they must consider whether this is an appropriate case for any order for costs, if so, on what basis, and if so, to give sufficient guidance to the parties to enable them to agree costs or otherwise to fix the amount as they think appropriate.

Accordingly, save to the extent that we have dealt with the question of costs in the way I have just indicated, this appeal will be dismissed.