United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON MR C A PURNELL Plumstead Community Law Centre Ltd 105 Plumstead High Street Plumstead London SE18 1SB
For the Respondent	MR S BELGRAVE (Of Counsel) The Solicitor London Borough of Greenwich 29-37 Wellington Street Woolwich London SE18 6PW


 


JUDGE CLARK: This is an appeal by Mr Fasuyi, the Applicant before the Industrial Tribunal sitting at London (South) against that Tribunal's reserved decision promulgated with extended reasons on 31 July 1997, dismissing his complaints of unlawful sex and racial discrimination, victimisation and unfair dismissal against his employer, the London Borough of Greenwich.

At a Preliminary Hearing held on 3 December 1997 this Tribunal granted leave to the Respondent to amend his Notice of Appeal so that the sole issue in the appeal before us is whether the Appellant was treated less favourably than a fellow employee, Ms Comfort Asiedu, on the grounds of his sex.

The material background to that question, as found by the Industrial Tribunal, is as follows. The Appellant commenced employment with Greenwich on 2 November 1992. On 9 May 1994 he took up the post of temporary Administrative Assistant in the Homeless Persons Unit of the Housing Directorate.

On 30 January 1995 he transferred, on a temporary basis, to the higher grade post of Housing Assistant within the Estates Management Section of the Housing Dept. at West Greenwich. On 16 July 1996 he was appointed to act up in the post of temporary Estate Officer at Grade SO1. He was assigned to the Eltham Estate office from 29 July 1996. Similarly, Ms Asiedu, who came from a permanent post as Concierge Supervisor, had been appointed to act up as a temporary Estates Officer at Eltham from a date in April 1996.

These temporary appointments were made against a background of a reorganisation undertaken by Greenwich. In October 1996 all staff were required under the reorganisation procedure to return to their permanent post where those existed. The Appellant was asked to return to his post as Housing Officer at West Greenwich. In the case of Ms Asiedu, her original post of Concierge Supervisor had been deleted and she was assimilated to a new post of Tenancy Services Officer. The Appellant applied unsuccessfully, following interview, for posts of Office Manager and Tenancy Services Officer.

It was the Appellant's case that Greenwich had unlawfully discriminated against him on the grounds of his sex, in that he was appointed as a Tenancy Services Officer to carry out the same work as Ms Asiedu, and after the reorganisation he had been sent back to a lower graded job as a Housing Assistant at West Greenwich, whereas she had been confirmed in the Tenancy Services Officer's job. Ms Asiedu had been less well qualified and experienced than the Appellant and her performance had not been as good. He therefore asked the Tribunal to infer that the difference in treatment had been on the grounds of sex and/or nationality. For the purposes of this appeal he does not pursue the latter contention.

The Respondent's explanation for the difference in treatment between the Appellant and Ms Asiedu was that her substantive post before the reorganisation had been redundant, whereas the Appellant's substantive post had not. The post of Tenancy Services Officer had been suitable alternative work for her. The Appellant had not been appointed because he had not performed well at interview.

The Industrial Tribunal deal with the rival contentions at paragraph 20(1) of their reasons in this way:

"The reversion to the post of Housing Assistant at West Greenwich

(1) Mr Fasuyi compares his treatment with that accorded to Ms Asiedu who worked with him acting up as a temporary Estate Officer. He was reverted to being a Housing Assistant at West Greenwich whereas she was assimilated to the grade of Tenancy Services Officer without an interview. So there was a difference in nationality and sex and a difference in treatment. The Tribunal accepts the Council's explanation of that difference in treatment. The reorganisation was done according to the Trade Union Agreement; Ms Asiedu's original job as Supervisory Concierge was redundant and therefore the Council treated the job she was actually doing as suitable alternative work and assimilated her to it. We remark that it is difficult to see how they could have done otherwise in view of their duty in a redundancy situation. On the other hand the Council took the view that Mr Fasuyi's substantive post was Housing Officer at West Greenwich and therefore that job still existed and was not redundant. In other words he had a job to go back to. For that reason he was not assimilated to the post of Tenancy Services Officer. That perception was genuinely held by Mr Stanley and, whether or not it was correct, we are satisfied that Mr Fasuyi's nationality and/or sex had nothing to do with the difference in treatment." [That is, favourable treatment on the grounds of sex.].

Mr Fasuyi accepts that Ms Asiedu was correctly treated by Greenwich under the procedure agreed with the Trade Unions. She had previously held a permanent post as Concierge/Supervisor; that post was deleted. She was therefore entitled to be assimilated into the new post of Tenancy Services Officer.

His complaint is that he ought to have been similarly treated. He believes that he was not so treated because he had in the past made waves and caused trouble. He submitted that he could not return to West Greenwich because he held a temporary post there as Housing Assistant. If that is correct, he could not be in the same position as Ms Asiedu. She had formerly held a permanent post which had been deleted. Either he did not hold a permanent post or, if he was treated as having had a permanent post at West Greenwich, it had not been deleted. We can appreciate his complaint that Greenwich showed a lack of competence in the way in which he was treated; for example he was sent a letter dated 20 October 1994, purporting to terminate his employment on one week's notice. Greenwich say that letter was a mistake. He was not included on any list of employees. Again, it is said by Ms Belgrave that he was simply left off the list. However, that will not of itself give rise to an automatic finding of unlawful discrimination, see Zafar v Glasgow City Council [1998] IRLR 36.

In our judgment the Tribunal was entitled to conclude that he did not suffer less favourable treatment on the grounds of his sex. Whether or not he was correctly treated under Greenwich's own procedure, and we think that by being returned to his former temporary post at West Greenwich he was treated more favourably than was his strict entitlement under the procedure, it is clear that the Tribunal was entitled to conclude that any difference in treatment between the Appellant and Ms Asiedu had nothing to do with sex. Both were treated in accordance with Greenwich's genuine belief as to their respective positions under the procedure. In Ms Asiedu's case that belief was correct; if it was incorrect in the Appellant's case, it worked in his favour.

In these circumstances we are unable to discern any error of law in the Tribunal's approach and accordingly this appeal must be dismissed.