United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS C M COX (Adviser) Southwark Law Centre 14-16 Hanover Park Peckham London SE15 5HS


 


JUDGE COLIN SMITH QC: This is an application by Mrs Bridget Omakobia for leave to proceed to a full hearing of her appeal against a decision of an Industrial Tribunal which sat at Stratford over some five days between October 1995 and May 1996, whereby the Industrial Tribunal, after that prolonged hearing about which we will say more later, dismissed the appellant's complaint of racial discrimination against her employers, Hilton International Hotels UK Ltd. Extended reasons for the decision were finally sent to the parties, on our reading of the papers, on 11th July 1996, the case concerning events in 1993.

We have reminded ourselves today that the appellant need only show an arguable point of law to be given leave.

As can be seen from the Industrial Tribunal decision, the appellant had been employed for many years by the hotel group and had worked her way up from Laundry Operator to become Assistant Paymaster by 1991. The appellant is of Nigerian origin. Her complaint before the Industrial Tribunal was that there had been instances of racial discrimination against her; namely, that disciplinary action had been taken against her on racial grounds in June 1993, that there had been an attempt to discipline her in August 1993, and that when at the end of August 1994, the Paymaster left her job another person was promoted over the head of the appellant, although she had been Assistant Paymaster for some two years. She also complained that she had been denied training and promotion.

In a lengthy decision, the Industrial Tribunal reviewed all the evidence that they had heard in paragraphs 3 to 5 of its decision. Specifically with regard to the promotion of a Ms Mesina to Paymaster, the Industrial Tribunal heard evidence that the appellant was not considered for the job because she had not mastered the job of Assistant Paymaster, according to the respondents, and was not conversant with the payroll tasks on which problems relating to the senior monthly paid staff sometimes arose in relation to their expenses and allowances. The respondents also gave evidence that, at times, according to their account of the matter, the appellant had not coped with payroll problems entirely satisfactorily.

It is apparent from the Industrial Tribunal's decision in paragraph 6, that the Industrial Tribunal examined the respondents' evidence critically to see whether there was, despite that evidence, any inference of racial discrimination. In our judgment it is plain that in so doing they had in mind the guidelines laid down by the Court of Appeal in the well-known case of King. Having done so, the Industrial Tribunal concluded that they were satisfied with the explanation which the respondent had given with regard to the various complaints of the appellant. They dealt specifically with the promotion of Ms Mesina in paragraph 8, noting that it was unusual that the job was not advertised. They then proceeded as follows:

"... We were however, in this case, satisfied with the explanation which was given by the Respondents. We find that the Applicant had not satisfied the Respondents that she was fully capable of doing the duties of assistant paymaster and that there were areas of her work about which the Respondents were entitled to be critical. The Respondent were entitled to come to the conclusion that the Applicant was at least not yet ready to assume the full duties of paymaster with total responsibility for the whole of the hotel's payroll. They had taken on Ms Mesina after redundancy in her previous job. She [I interpose to say the Industrial Tribunal means Ms Mesina] was fully competent to perform the duties of paymaster and the Respondents were in our view, quite entitled to say that having regard to her ability to perform these duties, they were entitled to promote her over the head of the Applicant."

And then the Industrial Tribunal continued in this way in paragraph 8:

"We also find that although the job was not advertised the Applicant knew that it was vacant and yet apparently made no effort to make any application for the job. We cannot find from the evidence which was given to us, any racial discrimination which occurred in respect of these three specific instances or generally during the Applicant's employment and accordingly the claim is dismissed."

Now the point taken on appeal is that there is no finding made by the Industrial Tribunal in respect of what was in dispute on the evidence before them on the question as to whether the appellant had or had not made an application in writing for the vacancy for Paymaster. As has been pointed out to us by Ms Cox this morning in her helpful submission to us, there was documentary evidence before the Industrial Tribunal in the shape of two letters from the appellant which we have looked at. The first letter, on its face, amounts to an application for the post; the second expresses disappointment at not getting the post. We notice that the first letter being dated 7th August 1993, there is a postscript to the second letter saying "I did not receive any reply to my letter 7th August to date." So the appellant's evidence was that she had in fact applied for the post. We understand from Ms Cox, who helpfully told us what the position was, that there was evidence from the respondents' witnesses that that letter of 7th August had not been received by the respondents, so there plainly was a conflict of evidence, and indeed the appellant was cross-examined about it. What has happened is that the Industrial Tribunal has not really addressed this issue in any satisfactory way and we are critical of that approach of the Industrial Tribunal since we consider that they should have set out that there was this conflict of evidence, and they should have dealt with the point that the appellant had produced a letter showing that she had applied for the job, and they should have reached conclusions of fact in relation to that dispute one way or the other, and we are critical of that. However, despite the deficiency of the Industrial Tribunal in failing expressly to find facts in relation to that matter, and in particular, whether or not the appellant had applied for the vacancy, in our judgment had they approached the matter properly and reached proper conclusions one way or the other about it, it would not have made any difference whatsoever to the decision which they ultimately reached.

We have looked at this matter very carefully bearing in mind especially the context of the very sensitive area of racial discrimination. We are all, with out different experiences, wholly satisfied that the omission to make the finding in this regard could not and would not have affected the outcome of the proceedings. We refer once again to the detailed reasons given earlier in paragraph 8 which the Industrial Tribunal clearly found satisfied them, in relation to this particular aspect of the appellant's case, as to the explanation given by the respondents for her not getting this particular job, and for another person being promoted instead of her to this particular post. In our judgment, in the light of those findings, it is plain that the Industrial Tribunal here, having heard the evidence over a number of days, accepted that there were entirely genuine commercial and business reasons based on merit for the promotion of Ms Mesina to the post. Accordingly we do not consider that there is any arguable question of law that arises in relation to this application. So the application will have to be dismissed.

However, we wish to mention our concern about the fact that this particular case, involving as it did a complaint of racial discrimination, and which concerned disputed events in 1993, only got to a tribunal initially, we are told and we accept, in October 1994; that it was then put off for a year before it was actually dealt with by the Industrial Tribunal to 20th October 1995. It was then dealt with over a period of about six months, namely three days in October 1995, one day in December 1995 and a further day in May 1996, and, if what is stated at the end of the decision is correct and we have no reason to doubt it, the decision was not finally sent to the parties and entered on the Register until 11th July 1996. In our judgment, although of course we are not in any way responsible directly for such matters, this is an unfortunate state of affairs. Also, we consider that it has had the result here, that, because the matter has been dragged out over such a lengthy period, the Industrial Tribunal have overlooked disputed evidence in relation to an issue which was in front of them and have unfortunately failed to make findings in relation to such an issue. We emphasise that it is very important for parties appearing in front of Industrial Tribunals not simply to know why they have won or why they have lost, of course that is essential, but in addition it is vital that where there are conflicts of evidence that those conflicts should be resolved in a reasoned way by the Industrial Tribunal, otherwise omissions may be productive of unfortunate results as far as the losing party is concerned, and give rise to a feeling of grievance on the part of that party that they have not had a full hearing. We have thought it right that we should mention those matters, and we should repeat that had we thought there had been any reason for believing that the Industrial Tribunal's decision might have been in any way different as a result of the omission, we would have allowed the matter to proceed. However, in the circumstances, we repeat, we are all quite satisfied that the omission of the Industrial Tribunal in this particular respect could not have made any difference in the result to the decision which they properly reached.