United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C PURCELL (Representative) Tottenham Neighbourhood Law Centre 15 West Green Road Tottenham N15 5BX


 


JUDGE HULL QC: This is an appeal to us by two ladies, Ms Hanifah Kaaba and Miss Iris Josiah, who were both employed as Lecturers at the Hackney Community College. They make Respondents to their application and to the appeal Hackney Community College, Mr Noel Gibb and Ms Maxine Einhorn.

The facts can be shortly stated. Ms Kaaba's employment began on 11 February 1991 and Miss Josiah's employment began on 23 April 1990. They continued to work as Lecturers: the main part of their duties was evidently in connection with a reading centre and they had other duties too, but they were normally in the field of adult further education.

They had various complaints as time went by about the way in which their duties were allocated. They made complaints to the Industrial Tribunal. On 28 February 1994, each of the ladies complained against the College, and the two other Respondents, that they had been racially discriminated against; there was racial discrimination involved in a number of matters of which they made complaint.

The Respondents in their Notice of Appearance to those first complaints denied them. At that time the Appellants were still employed, but in due course there was what the employers said was voluntary redundancy, and they departed with substantial payments having, in effect, resigned; but of course from the point of view of form they were dismissed by reason of redundancy on agreed terms. That was in August 1994.

On 24 November 1994 each of these ladies presented further complaints to the Industrial Tribunal. They complained that they had been unfairly dismissed; that there had been victimisation on racial grounds; and they asked for reinstatement. Those matters were denied by the Respondents' Notices of Appearance.

We come to the decision of the Industrial Tribunal sitting at Stratford under the Chairmanship of Ms Lewzey. The Tribunal heard a great deal of evidence. They heard both the ladies. They also heard the Respondents. They sat between 30 September and 8 October and then again on 4 December 1996. They found that the complaints of racial discrimination failed. They went through them in detail. They were satisfied that various things had gone wrong; that there had been unhappiness, and so on. What they had to ask themselves in each case was whether any treatment of the complainants by the Respondents was occasioned by racial discrimination.

Having gone through them in a great deal of detail, setting out the history of the matter and the way grievances were looked into, they found that any matters of complaint which were justified were not caused by racial discrimination. They put it in a way which is criticised on this appeal in two paragraphs, paragraphs 40 and 41. They found that what had happened was not racially motivated. Mr Purnell, who has appeared in front of us today, has said that that is wrong. What they had to look for was whether any difference in treatment was caused by race; whether that was the reason for any discrimination between the ladies and other people of different race. That is technically an entirely correct submission. It is no defence if a Tribunal finds that discrimination was on the ground of race to say "oh but the employer was motivated by benevolent feelings, by a wish to do well for his employees", that will not do at all. But it is quite clear, in the context where these ladies were saying in effect they were being persecuted and victimised, that what the Tribunal was doing was applying the test (in colloquial language) correctly.

If they came to the conclusion that there was no wrongful intention by the employers; no intention to discriminate; it would be at worst a slip of the tongue to say that it was not racially motivated. To the ordinary person the difference between intention and motivation is one which it needs a lawyer to define and we do not think in this context, in the nature of these allegations, that there was any mistake in law by the Tribunal. It is quite clear, reading the decision as one must, and it is a long and careful decision, that there was no error by the Tribunal in their approach to what they had to decide. They had to look at all the complaints which were made and they decided in respect of each and every one of them, that there had not been any discrimination on the ground of race or any victimisation. In the circumstances, it seems to us, they were entitled to do that and made no error of law in doing that. It involved of course preferring the evidence of some witnesses to the evidence, in certain particulars, of the Applicants. It is clear that in some ways the Tribunal found the Applicants over-sensitive in the complaints they were making; for example, it was suggested that to write to one of the ladies at her home was an act of discrimination and deliberate unpleasantness. They found that that was not so. Those were their findings on the matter of race.

The Industrial Tribunal then came to the complaint of unfair dismissal, which rested on an allegation of constructive dismissal, because, as I say, these two ladies in form were dismissed on a voluntary basis and received substantial compensation. The Tribunal dealt with it, as Mr Purnell has pointed out, quite shortly. They say in paragraph 55 of their decision:

"The Applicants claim that they were constructively dismissed. In order for this complaint to succeed they must show that the dismissal fell within Section 95(1)(c) of the Employment Rights Act 1996, which provides, that an employee is dismissed by his employer if the employee terminates the contract under which he is employed (with or without notice), in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct. The Applicants claim that their position was untenable."

That averment of course rested on the allegations about unpleasant behaviour by the employers, which the Tribunal had been through at such length. The Tribunal goes on:

"When the opportunity arose for them to apply for voluntary severance, they took this. The voluntary severance scheme was clearly attractive in financial terms with Ms Kaaba being paid £10,111.83 and Miss Josiah receiving £12,314.41.

56 The Respondents referred the Tribunal to the cases of Birch - v - University of Liverpool [1985] ICR 470. The finding in this case was that the Tribunal should look at the substance rather than the form of the transaction. The case also held that the fact that the University had to agree did not prevent a voluntary termination taking place. There was no suggestion in the present case that the Applicants were treated any differently from anyone else.

57 The Tribunal found that a redundancy situation did exist as the Respondents did need to reduce costs. They asked for volunteers to their voluntary severance/early retirement scheme and could not have anticipated that Ms Kaaba and Miss Josiah would apply. The Applicants both volunteered for the scheme and received substantial payment. It is the unanimous decision of the Tribunal that this was a voluntary severance and a dismissal by consent, and that the Applicants claims for unfair dismissal fail."

They then held that all the complaints had failed.

In the light of the very careful review of the facts which the Tribunal had engaged in, in considering the complaints of racial discrimination, it appears to us that they have sufficiently stated their reasons, with a very proper direction to themselves that they were obliged to look at the substance and not the form. They had heard all the evidence over a long period and they had dealt with it, it seems to us, faithfully. They had set out their decision at length. It is true that they had not gone into all the evidence, but they had dealt with it. They dealt with the contentions which were made to them.

It seems to us, first of all, that this was a decision which did adequately state the reasons upon which it was based. Further than that the Tribunal need not go. It also appears to us that they sufficiently, in all the circumstances, stated their reasons for saying that this was not a case of unfair dismissal, it was a case of voluntary redundancy, and one in which the ladies were not forced out but thought in view of everything, and in view of the money which was on offer, it would be right for them, in effect, to resign, although in form it was a dismissal through redundancy. The Tribunal found that there was a redundancy situation.

In those circumstances, whatever view we might have formed of the facts (and that is entirely immaterial, we are not at liberty to go into the facts in any way) we cannot find any error of law in this decision. The appeal therefore cannot succeed because Parliament has told us that we are confined to points of law and we must therefore dismiss it at this stage. That is the decision of us all.