United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R ENGLISH (of Counsel) Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE KIRKWOOD: We are grateful to Mr English for his argument. This is the preliminary hearing of an appeal by an employee from the decision of an Industrial Tribunal at London (North) dismissing his complaint of discrimination on racial grounds. We note that the tribunal sat from 14th to 16th January 1998 inclusive and gave its extended reasons for decision on 28th January 1998. There is no cross-appeal, as we understand, against the very strong finding that the tribunal made in the appellant's case of unfair dismissal.

The appellant was employed by the London Borough of Camden from 1985 and latterly his employment was as a Team Manager in the Children and Families Division. In the last four years of his employment he reported to a Mr Liddicott, Principal Officer.

In March 1996 the respondent undertook a structural review within its relevant department, and that led to the loss of four Team Manager posts. There were discussions with the union. The union was not happy about the extent of, or, as it saw it, the lack of consultation about the proposals.

On 16th July 1996 the respondent by letter informed Team Managers that they would be subject to a ringfence position and a selection process. The union advised Team Managers not to attend for interview and only one, who is not the appellant, did in fact attend. For selection a benchmark was set and each candidate was evaluated on the basis of management assessment against the benchmark. The appellant and two other Team Managers were not successful. In fact it appears amongst the papers that those three people came eleventh, twelfth and thirteenth in the selection process. The method of selection and the background history is set out in much more detail than I have touched upon in the extended reasons given by the Industrial Tribunal.

In the course of their findings of fact the Industrial Tribunal said this at 2(h) and (i):

"(h) In terms of his management style Mr Liddicott treated the Applicant no less favourably than he did others. While he may have appeared to the Applicant to be cold and distant that was part of his personality and nothing to do with race discrimination. ...

(i) From the above findings of fact we draw no inference that the Respondent unlawfully discriminated against the Applicant on racial grounds."

The form of the extended reasons was such that the tribunal then proceeded in the next passage to deal with the unfair dismissal claim and they found that there was redundancy but the respondent did not act reasonably in treating redundancy as a sufficient reason for dismissing the appellant. That was the foundation for the appellant's success on his unfair dismissal claim.

The tribunal then considered in more detail the question of race discrimination in both the law and its findings, and said this:

"... The most recent authorities confirm that procedural unfairness does not necessarily equate to a race discrimination. The Applicant has made a number of complaints against Mr Liddicott. His main concern is the final assessment on which he was selected for redundancy and he relies on allegations ranging over previous years to support his complaint. It is noted that even though the Applicant is a long standing employee of the Respondent he has never made any such complaint in the past even when opportunities presented themselves. It is a matter of record that complaints have been made against the Applicant both by clients of the Respondent and subordinates in his team. The issues have been taken up with him by Mr Liddicott at the time . It is our view that given the circumstances he has not been treated less favourably than would anyone else be treated regardless of racial origin. In short we find that he has not succeeded in proving his complaint under this heading on the balance of probabilities. Furthermore, we draw no inferences in his favour."

A Notice of Appeal has been filed which challenges four findings of fact made by the tribunal. The Notice of Appeal concludes with the words:

"There are either a serious misunderstanding of the evidence or a failure to take into account a relevant and important factors which were given in evidence. These amounts to an error in point of law and the decision was contrary to the evidence."

It is important that we remind ourselves that misunderstanding of the evidence is not in itself a matter of law which justifies this tribunal interfering. In that regard, a challenge to a finding on evidence has to be elevated to the level of a perversity before a point of law can be said to be established. Perversity is the making of findings which were simply not open to the tribunal, because there was no evidence before them on which such findings could be made.

Departing a little from the grounds of appeal, Mr English has identified three matters that he says amount to perversity. The first is that the finding of the Industrial Tribunal in their consideration of race discrimination that the appellant had never made any such complaint in the past is perverse because there were such complaints. Mr English pointed to three. The first was a complaint dated 21st August 1996. The difficulty Mr English faces about that is that, insofar as that was or may have been a complaint dealing with a racial allegation and that itself begs others questions, it in any event comes after the time of the alleged act of discrimination in this case. The tribunal have referred to complaints in the past. The second matter relied upon by Mr English at page 31 in the bundle where the appellant undoubtedly raises issues about matters of management, as he does indeed in respect of the third matter, which is a page 39 in the bundle, and concerns a failure, according to the appellant, by Mr Liddicott to address an application for study leave by Ms Campbell. Neither of those memoranda of complaint touch in any way on any suggestion of race discrimination. It is quite plain to us that in saying that the appellant has never made any such complaints in the past, even when opportunities presented themselves, the Industrial Tribunal were not talking about complaints in general, they were talking under a distinct heading of race discrimination about complaints of race discrimination. So we find no perversity or argument for perversity under that heading.

The second matter upon which Mr English seeks to rely is a general allegation that Mr Liddicott's treatment of people was different as between white people and non-white people. In that regard, he refers again to the position of Ms Campbell. In its extended reasons the Industrial Tribunal made reference to Ms Campbell in a passage to which I have already referred about Mr Liddicott's management style where the tribunal said:

"While he may have appeared to the Applicant to be cold and distant that was part of his personality and nothing to do with race discrimination. Although he had not assisted Ms Campbell in respect of her application for study leave he had assisted her in respect of other applications."

Mr English says that that is not the evidence. Mr English makes that submission, I think, with some disadvantage in not having access, as far as we can understand, to the totality of the written evidence before the tribunal. My industrial colleagues find it quite inconceivable that a Chairman of Tribunals would make an assertion in those terms if there was not a scrap of evidence upon which to base it. In any event, the considerations of race discrimination for which the Industrial Tribunal undoubtedly searched are not carried forward by that aspect of the case.

The third matter of general perversity upon which Mr English seeks to rely arises from a passage in the findings of fact in these terms at paragraph 2(g):

"While there were jobs including the post of Senior Practitioner available at the time at a lower grade and the Applicant was made aware of the situation he was so devastated by events that he was quite incapable of taking advantage of the situation."

Mr English submits that that was a perverse finding, because in fact, far from being too devastated to follow up alternatives, he says that the appellant was in fact offered no alternatives whatever.

It is clear on the material we have, however, that the appellant was offered the opportunity of joining the pool for redeployment; he was offered a list of possible other vacancies; so that the submission that Mr English makes is plainly far too sweeping and categorical. He fails to demonstrate that there was there a perverse finding by the Industrial Tribunal.

Since, as I have indicated, a case has not become arguable because a litigant thinks that the tribunal had misunderstood a piece of evidence, but only becomes arguable as a matter of law if an argument of perversity is clearly demonstrated, we must approach the case on the basis of the submissions that have been made and what I have said about them. We are entirely unpersuaded that there is an arguable case of perversity here. In those circumstances, it is our duty to dismiss the appeal at this preliminary stage.