United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KIBLING (of Counsel) Messrs Hodge Jones & Allen Solicitors Twyman House 31-39 Camden Road London NW1 9LR
For the Respondent	MR J MOFFETT (of Counsel) City Solicitor & Secretary Westminster City Council PO Box 240 Westminster City Hall 64 Victoria Street London SE1E 6QP


 


JUDGE PETER CLARK: The Appellant, Ms Martyres, was originally employed as a teacher by the Inner London Education Authority and then, from 1990, by Westminster City Council.

On 30 June 1995 she presented an Originating Application to the Industrial Tribunal complaining of racial discrimination by Westminster. She made a number of separate allegations. Before that complaint (the first complaint) was heard she was dismissed. During the course of her notice period she presented a further complaint (the second complaint) alleging race discrimination, victimisation and unfair dismissal. In addition to Westminster, the Appellant named three managers, Gale Waller, June Simson and Deidre McGrath as Respondents to the victimisation complaint.

The complaints were consolidated and heard by an Industrial Tribunal sitting over ten days at London (South) under the chairmanship of Mr G.H.K Meeran between June and November 1997. The Industrial Tribunal's decision with extended reasons was promulgated on 11 February 1998.

The Tribunal dismissed all complaints under the Race Relations Act and upheld the complaint of unfair dismissal.

The Appellant appeals, specifically, against that part of the decision dismissing her complaint of victimisation. The Respondent, Westminster, cross-appeals against the finding of unfair dismissal.

This is a Preliminary Hearing held under the PHD procedure. Although both parties are present, under that procedure both the Appellant and Respondent must each satisfy us, ex parte, that the appeal and cross-appeal respectively raise an arguable point of law to go to a full appeal hearing.

On 28 May 1998 Westminster wrote to the Appeal Tribunal indicating that they wished to pursue their cross-appeal regardless of the fate of the Appellant's appeal and stated that Counsel, who had appeared below, Ms Moore, was not available today and in those circumstances they would be instructing other Counsel to attend in order to make representations on matters of directions, but wished the preliminary hearing of the cross-appeal to be adjourned to a date convenient to Ms Moore.

Today, Mr Moffett of Counsel appears on behalf of the Respondent. He tells us, as we would expect, that he has read the papers. He is attended by his instructing Solicitor and is in a position to advance the cross-appeal. In these circumstances we see no good grounds for adjourning the Preliminary Hearing in relation to that cross-appeal.

The Appeal

Mr Kibling's principal submission is that the Tribunal erred in law in failing to find that the Appellant had been subjected to victimisation under section 2 of the Race Relations Act 1996, in that Miss Waller, one of the named Respondents to the second Originating Application had, on the Tribunal's findings, been motivated by the Appellant's earlier complaints of discrimination in writing a memorandum dated 22 May 1996, which we have read, copied to Mr Gaskin, in which she recommends against the Appellant being considered for two specific posts.

We reject that submission. The Tribunal found that the decision to dismiss was taken by Mr Gaskin and that further he did not consider the Appellant for alternative employment on the ground first that she had failed to complete her curriculum vitae and secondly, her failure at interview to obtain another post some two years earlier. That explanation was rejected, the Tribunal finding that Mr Gaskin and other colleagues in management had formed a view that the Appellant was behaving irrationally and was unsuitable as an employee. The Tribunal also expressly found that he was not influenced by any protected act done by the Appellant.

The Tribunal's approach was to find first, that Mr Gaskin had knowledge of the protected acts; secondly that the Appellant had suffered a detriment by not being considered for alternative employment, but that finally there was no causal link between the protected acts and the failure by Mr Gaskin to consider her for alternative employment.

Although Miss Waller made recommendations against the Appellant being considered for the specific posts mentioned in her memorandum of 22 May 1996, it was not Miss Waller who finally decided whether or not the Appellant would be considered for the post. It was Mr Gaskin who did so. In these circumstances we can see no error of law as submitted by Mr Kibling.

He advanced further arguments based on perversity as an alternative to his principal submission. That ground, in our view, is simply not made out.

Next, he raised a point in relation to the Tribunal's finding that certain of the Appellant's original complaints were not made in good faith. However, that finding did not form the basis on which the material victimisation complaint was dismissed and the point is, as Mr Kibling recognises, academic in the light of our findings in relation to his first submission.

Finally, he contends that the Tribunal ought to have dealt specifically with the complaints of victimisation made against the individual named Respondents. We see nothing in that point. Westminster accepted vicarious liability for the acts of all relevant employees. The Tribunal found that the tort of victimisation had not been completed in respect of any individual Respondent. Accordingly that part of the complaint was dismissed.

In these circumstances we have concluded that the appeal raises no arguable point of law to proceed to a full hearing.

Cross-Appeal

This is directed to the Tribunal's finding that the Respondent failed to consider the Appellant for alternative employment, having identified her for dismissal by reason of redundancy. The grounds advanced in support of the cross-appeal are, in our view, an attempt to re-open findings of fact made by the Industrial Tribunal.

They were entitled to reject Mr Gaskin's evidence that the Appellant was not interested in alternative employment, having rejected his reasons for not considering her for redeployment. They did not, in our view, place too high a burden on the Respondent in the context of section 98 (4) of the Employment Rights Act 1996. No point of law is made out in the cross-appeal.

Generally, in our judgment, this Tribunal took particular care to identify and adjudicate upon all the issues before them. They made the necessary findings of fact; applied the law correctly and reached permissible conclusions.

In these circumstances, both the appeal and the cross-appeal are dismissed.