United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R A GERMAN (Representative)


 


MR JUSTICE LINDSAY: We have before us by way of preliminary hearing the appeal of Mrs D. Ponsford-Jones in the matter Ponsford-Jones against two Respondents; first of all, Jane Cambrook and, secondly, Hampshire Education Authority.

Mrs Ponsford-Jones signed her IT1 Originating Application on 5 August 1996 and, so far as concerns the events of 9 June 1996, which will become the most relevant as will later appear, she said this:

"Having been on sick leave since November, I then returned to work on 9.6.96 for a meeting with John Wakeling (Head of Personnel), Jane Cambrook (Headteacher) and Dick Boland (N.U.T. Representative). It had been previously agreed by John Wakeling, who was chairing the meeting, that this meeting was to focus only on my responsibilities as a class teacher, my immediate concerns in returning to work, and not the wider issues which would be discussed at further meetings. This request was not honoured, however. For instance, the Head Teacher attempted to diminish me professionally by saying that she did not think I was capable of leading English in the Primary School, despite having asked me to perform the role herself. As a result of my questioning her during this meeting, she admitted that she had decided to cut me out of English and appoint another teacher to the post. (Much of this information was delivered in a confrontational and authoritarian manner)."

So that is the version of the events of 9 June 1996 which Mrs Ponsford-Jones was asserting.

There was then a hearing before the Industrial Tribunal on 12, 13 and 14 February 1997 and 23 and 25 April 1997. In other words, a hearing that, one way or another, spread over five days. The decision, which was unanimous, of the panel which was under the chairmanship of Mr D.N. Cowling, was as follows:

"In relation to complaints of race discrimination based on incidents occurring prior to 11 May 1996, the applicant has not complied with Section 68(1) and the Tribunal has no jurisdiction to hear the claims founded on such incidents [S. 68(1) is the section which bars in respect of time]."

Then, paragraph 2 of the unanimous decision was this:

"In relation to a complaint of unlawful race discrimination contrary to the Race Relations Act 1976 arising out of an incident occurring on 7 June 1996, the applicant has complied with Section 68(1) of the Race Relations Act 1976 and the Industrial Tribunal has jurisdiction to hear that complaint. It is not well founded and the application is dismissed."

That was followed by a Notice of Appeal by Mrs Ponsford-Jones on 12 July 1997 and we have, this morning, been ourselves taken through a skeleton argument by Mr German, the representative who appears for her today (and who also appeared for her at the Industrial Tribunal).

The particular conflicts of evidence as to precisely what happened in June 1996 were dealt with by the Tribunal in their paragraphs 25 and 26. Paragraph 25 says:

"When giving evidence Ms Cambrook and Mr Wakeling, who were both at the meeting on 7 June deny that there had been any reference to applicant's ability to speak English. It is a conflict in the evidence that the Tribunal is required to resolve. We resolve the conflict in favour of the respondents for the following reasons. In her written references to the meeting, the applicant clearly refers to the question of her capability of leading English and the decision to cut her out of English."

And then, in paragraph 26, they say:

"The weight of evidence does not support the applicant's contention that there was a reference to her ability to speak English. Having listened to the applicant giving evidence for 3 days it is obvious that the applicant speaks English perfectly clearly. Criticism of the applicant's spoken English would not have made any sense."

The Industrial Tribunal directed itself at considerable length on the relevant law and we have not detected any error in the law which the Industrial Tribunal required itself to follow. It regarded earlier events, as will have been apparent from the first paragraph of the decision, as separate events, not concerned with any continuing policy of discrimination or practice of discrimination.

At paragraph 9 of their decision they said:

"We have been referred to King v Great Britain China Centre by the applicant and to Barclays Bank v Kapur by the respondent. We are not satisfied that the respondents operated a discriminatory regime, rule, practice or principle, enabling us to treat an act which affects an employee, as continuing. The acts individually relied upon by the applicant as evidence of unlawful race discrimination, were separate incidents."

It having referred itself to the leading cases of King and the Barclays Bank case, we see no error of law in the conclusion that the Industrial Tribunal came to on that subject. The consequence of that was that, so far as not time-barred, the Applicant's complaints came down to an investigation of the events of 7 or 9 June 1996. But, for all that, the Industrial Tribunal was willing to hear what had happened in the past and at paragraph 12 they say:

"It has been made clear to the parties that our finding on this point does not preclude the applicant from presenting evidence in relation to events occurring before that date in support of her contention that she was the victim of race discrimination on 7 June 1996. As a result, we have heard evidence from witnesses and we have seen documentary evidence in relation to a significant number of incidents prior to the 7 June 1996."

We detect no error of law in that approach. The earlier events were separate. There was no continuing practice, but for all that, evidence of earlier conditions was admitted rather than excluded to the extent that it threw light on what had happened and the reason for what had happened in June 1996.

The Industrial Tribunal, then having thus focused itself on the events of June 1996, deals with them at some length in paragraphs 18 to 26 and, coming to the particular event which had been touched on in the IT1, in paragraph 24 they deal with that (the Applicant's evidence):

"I said 'Do you mean you are cutting me out of English?' She said 'Yes'. She said 'Lorina and me don't think your English is good enough.' The applicant told the Tribunal that she took this as an insult to the standard of her spoken English. She considered this to be race discrimination and after the meeting on 7 June decided to complain to the Industrial Tribunal."

But the Applicant's version, as so given, was not accepted. The evidence of the Respondents was preferred. In paragraph 1 of their Extended Reasons the Industrial Tribunal says:

"Having considered the evidence and the demeanour of the witnesses in the witness box, wherever there was conflict, the Tribunal preferred the evidence given by witnesses for the respondents to the evidence given by the applicant."

It is, essentially, a matter for the Industrial Tribunal to determine who is and who is not giving acceptable evidence before them. They have the great advantage of hearing and seeing the parties as they give evidence and it is for them to decide which evidence is acceptable and which is not. Here, the Industrial Tribunal preferred the evidence given by the Respondents. That is essentially a matter for them and, indeed, although Mr German has criticised the evidence of Ms Cambrook as containing perjury (which is, indeed, a very serious allegation, even of a criminal matter) the relevant events of June 1996 were such that Ms Cambrook, who gave evidence on them, was not even asked any questions about them.

In paragraph 26 the Industrial Tribunal says:

"When Ms Cambrook was cross-examined she was not asked any questions about the meeting on 7 June 1996 and her version of the events at that meeting was not challenged."

How, in the circumstances, Mr German feels able to raise questions of perjury when, on the most important issues, Ms Cambrook was not even cross-examined, is hard to find reason for.

Doing the best we can, and remembering that we are concerned only with points of law, we have found here no error of law in the decision of the Industrial Tribunal and accordingly we must dismiss the appeal.