United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C GASKELL (ELAAS)


 


JUDGE PETER CLARK: This is an appeal by Miss Cohen, the applicant before the London (South) Industrial Tribunal, against that tribunal's reserved decision dated 2nd May 1997 dismissing her complaint of unlawful racial discrimination, following a three day hearing held in January. The extended reasons run to 48 pages.

She is Jewish. She began work in the Civil Service in 1978. She reached the grade of Administration Officer ["AO"] but did not progress further to the rank of Executive Officer ["EO"] until 13th December 1995. She contended that her difficulty in achieving promotion to EO, the adverse reports and appraisals which she received, and finally, that having achieved the EO grade, the respondent's failure to appoint her to a substantive post, amounted to a detriment and she alleged that she had been subjected to such detriment on the grounds of her race.

In her Originating Application presented on 5th March 1996 she claimed to have been discriminated against on grounds of her personality and religion.

The factual background is set out at length the tribunal's reasons. We do not propose repeating it in detail here. The respondent accepted that the appellant's personality was a handicap to her; she was perceived as being unable to get along with work colleagues. The tribunal, from their own observations, concluded that she had not helped herself by her confrontational manner with her seniors. They thought that she had brought all her problems on herself. They found that there was not a single shred of evidence to support her claim of racial discrimination. The claim failed.

Now there is an appeal. We remind ourselves that we can only interfere with the tribunal's decision if an error of law is identified. The purpose of this preliminary hearing is to identify any arguable point of law which ought to go forward to a full appeal hearing.

The grounds of appeal advanced in the appellant's various letters are numerous. On reading them before this hearing we were each of us unable to identify any point of law.

However, we have had the advantage of hearing a cogent submission by Mr Gaskell, who appears on her behalf under the ELAAS scheme. We should dispose first of two points made by him in relation to the fairness the tribunal hearing; that she was given only 10 minutes to prepare her closing submission (she appeared in person below) and that she was refused a copy of the witness statement of one of the respondent's witnesses, Alan King. Having read the Chairman's comments in relation to those allegations, we reject them. No procedural unfairness such as would, arguably, vitiate the tribunal's decision is made out in our judgment.

Mr Gaskell's self-confessed best, and indeed only point of law is this. There was undisputed evidence that two people, Mrs Wheeler and Mr Stanton, who were involved in preparing adverse reports on the appellant, and in Mrs Wheeler's case, conflicting reports within a short space of time, which affected the appellant's promotion prospects, had either been guilty of or had taken no action over, incidents of racial abuse directed at her in the past.

He points to the tribunal's findings, first, that any racist remarks were made out of time, and therefore could not form part of her complaint (see paragraph 22 of the reasons) and secondly, that there was not a single shred of evidence that would support the appellant's claim for racial discrimination (paragraph 25).

In these circumstances, Mr Gaskell submits, having found that she had been the subject of racist abuse and remarks, the tribunal discounted that finding, apparently by reason of the time limit, instead of concluding that that was relevant evidence in respect of the disposition of those people who were making the relevant decisions in the appellant's case.

It is this point and this point alone which we think ought to proceed to a full appeal hearing. For that purpose, we shall give Miss Cohen seven days in which to submit a draft amended Notice of Appeal which properly reflects the single point which we have permitted to go forward.

We think that this appeal can be disposed of in half a day and we so list it. There should be an exchange of skeleton arguments between the parties with copies lodged at this tribunal not less than 14 days before the date set for the hearing of the full appeal.