United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E GRANT (Representative) Northern Complainant Aid Fund Check Point 45 Westgate Bradford BD1 2TH


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by an employee from the decision of an Industrial Tribunal sitting at Nottingham on 28th November 1997 and 13th January 1998, finding unanimously that the respondent employer did not unlawfully discriminate against the employee. The tribunal gave extended reasons for its decision, sent to the parties on 19th February 1998.

The background is this. Miss Myles worked for Nottinghamshire County Council as am Administrative Officer. She was working in the County Secretary's Department and between March and August 1995 she had duties connected with Schools Appeals. She worked with another Administrative Officer, Mr Forster. Miss Myles is black. Mr Forster is white. Normally the work they were doing was done by three officers, but in this period the third was on maternity leave, so Miss Myles and Mr Forster had an additional workload. They were entitled to overtime pay for overtime worked.

The Head of Community Services, Miss Mayfield, was off sick during part of least of the relevant period. When she returned in September 1995 she was told by the Principal Administrative Officer, Mr Baker, that it was appropriate to make an ex gratia payment to Mr Forster. Miss Mayfield asked why a similar payment should not also be made to Miss Myles. She was advised that Miss Myles had claimed overtime for additional work and Mr Forster had not. Also Mr Baker thought and believed that Mr Forster had done the majority of the work.

Miss Mayfield looked at the relevant flexi-time sheets of Mr Forster and saw that these showed a number of hours in credit. She authorised a payment of £200.

Neither Miss Myles or Mr Forster had been advised of the possibility of such a payment. Miss Myles was not told of the payment to Mr Forster. She found out about it later in February 1997.

Miss Myles wrote to Miss Mayfield. She got no reply and wrote again on 27th March 1997. Miss Mayfield replied on 2nd April 1997. She said that she would not make any recommendation for a payment to Miss Myles, but would consider further evidence. Miss Myles sent her her diary and 26 relevant filed. Miss Mayfield look at Miss Myles' time sheets and saw that she had been paid overtime whilst Mr Forster had not.

Miss Myles union continued to write to Miss Mayfield. There was a delay in her replying. On 16th July 1997 she confirmed her decision not to make a payment.

Those facts were found by the Industrial Tribunal.

The Industrial Tribunal also found that Miss Mayfield had supported and assisted Miss Myles generally in her employment, and suggested career counselling and had provided a reference for Miss Myles for an alternative post.

With that rejection of her request for what amounted to payment to Miss Mayfield of an amount comparable to that paid to Mr Forster, Miss Myles applied, on 18th August 1997, to the Industrial Tribunal.

It is important to note that the case for the consideration of the Industrial Tribunal was whether Miss Myles had been discriminated against contrary to the Race Relations Act 1976 and contrary to the Sex Discrimination Act 1975.

The Industrial Tribunal was not being asked to make a determination on the question simply whether Miss Myles had been treated unfairly or whether she ought to have a payment of £200 in the same way that Mr Forster had, but whether a discrimination had occurred under one or other or both of those Acts of Parliament.

The Industrial Tribunal directed itself as to the law by reminding itself of the relevant statutory provisions and by reminding itself of the decision in King v Great Britain China Centre [1991] IRLR 513. The tribunal found as a fact that Miss Myles had been treated differently and less favourably than her white male colleague. He had received an honorarium of £200 and she had not.

The tribunal went on to consider whether that treatment was because of Miss Myles race or sex or both.

The tribunal investigated in close detail the events behind the payment to Mr Forster and not to Miss Myles. The payment was made on the advice of the Principal Administrative Officer and he had based it on these considerations: first, he believed that Mr Forster had done the bulk of the work; secondly, he believed that Miss Myles had claimed overtime payment and Mr Forster had not; thirdly he believed that Mr Forster had carried over flexitime hours for which he had lost payment and Miss Myles had not.

The Industrial Tribunal found that it was concluded by the employer that whilst Miss Myles had put in extra effort she had received her award. The Industrial Tribunal found that to be a wrong conclusion.

The Industrial Tribunal found, as had been made clear to Miss Mayfield in 1997, the overtime claimed by Miss Myles was related to attending evening meetings not the additional work. Mr Forster had not done such evening work so he had had no occasion to make such overtime claims.

The Industrial Tribunal then made these findings:

"14. The decision was made on Mr Baker's perception that the bulk of the additional work was done by David Forster, the wrong information relating to overtime payments and an analysis of David Forster's time sheets with no equivalent study of the times on the Applicant's time sheets.

15. Miss Mayfield did of course study the Applicant's time sheets when the Applicant complained in 1997. She also looked at the Applicant's diaries and files but saw no reason to alter her decision.

16. The fact is, however, that the principal reason for the original decision and for Miss Mayfield's confirmation was the payment of overtime and this had no connection with the additional work carried out by the Applicant. Neither did the Applicant nor David Forster claim overtime for the additional work.

...

18. The reason for the treatment stemmed from a series of unfortunate and avoidable errors. Mr Baker understood that the Applicant and David Forster had been informed at the outset that they had a choice of claiming overtime for additional work or relying on the possibility of an honorarium. Such an arrangement was never put to them, and neither considered the possibility of an ex gratia payment. Neither claimed overtime for the additional work but the Applicant made two normal and appropriate claims, totalling four hours, for attending evening meetings, an entirely separate issue from that of the additional work. David Forster had no basis for a similar claim.

19. Miss Mayfield was advised by Mr Baker on the basis of incorrect assumptions and facts and continues to maintain her view before the Tribunal despite the clear evidence that her interpretation in 1995 and 1997 of the overtime situation was wrong.

20. Nevertheless, the burden of proof is on the Applicant. She has to show that, had she been a male or a member of a different racial group, she would have been treated more favourably than she was.

21. The Tribunal certainly believe that she received poor treatment, but are unanimous in their conclusion that this was due to an incorrect perception of the true situation relating to overtime and poor communications between Miss Mayfield and her colleagues. The reason for the Applicant's treatment was not connected with either her sex or her race.

22. Equally, the Tribunal does not conclude that the delay in responding to her complaint represented victimisation. It is accepted that Miss Mayfield dealt with the matter within the time constraints allowed her in the context of her other duties."

Miss Myles appeals.

The grounds of appeal rely first on the rejection by the Industrial Tribunal of the employer's explanation for the less favourable treatment. It is said that in concluding that it was due to an incorrect perception, the Industrial Tribunal substituted its own explanation for that put forward by the employer. It is said that the tribunal reached a conclusion contrary to the evidence and not supported by any findings of primary fact.

On those aspects it is clear to us that the Industrial Tribunal took pains to establish what actually happened and why Miss Myles was treated differently. It established both the thinking of the employer which it found as primary facts; and that the employer was in fact in error, a further finding of primary facts; from that it was plain to the Industrial Tribunal that the less favourable treatment was not due to race or sex.

It is, I think, well known but worth repeating, that there is no appeal to the Employment Appeal Tribunal against the findings of fact of an Industrial Tribunal unless it can be demonstrated that the tribunal found facts in the absence of any evidence upon which to base the finding; or it can be shown that the tribunal reached a conclusion or conclusions of fact that no reasonable tribunal could have reached on the evidence before it. Neither of those apply in this case.

The second line of argument is that the Industrial Tribunal made an error in respect of the burden of proof. The tribunal said:

"20. ... She has to show that, had she been a male of a member of a different racial group, she would have been treated more favourably than she was."

The argument put forward is that what the appellant has to establish is this and no more:

(1) less favourable treatment;

(2) a difference in sex and/or race; and

(3) that the employer's explanation was inadequate or unsatisfactory.

Having established that, it is submitted that it is legitimate for the Industrial Tribunal to infer that the less favourable treatment was on grounds of race or sex.

The weakness in that argument is in attaching too much weight to the "it is legitimate". The Industrial Tribunal is not bound to draw any such inference. The Industrial Tribunal must approach the case by assuming whether, in the light of such findings it is, as a matter of common sense, inevitable or necessary that the inference be drawn.

The difficulty of demonstrating sex or race discrimination as a positive is well known and it is dealt with classically in the decision in King v Great Britain China Centre to which the Industrial Tribunal referred and upon which the appellant would seek to place reliance.

There is no shifting of the burden of proof. The point is that once primary matters are established, to which I have referred, the tribunal may, if it thinks right, draw an inference that the less favourable treatment was on grounds of race or sex and should be alert to be ready to do so. But here the Industrial Tribunal made comprehensive findings of fact which demonstrated to it the reason for the less favourable treatment and that the less favourable treatment was not due to gender or race.

The third point advanced is that, in a sense, the ultimate finding of the tribunal of "unfortunate and avoidable errors" is unsustainable in the light of the late correspondence in 1997. It is to be remembered that that followed long after the events in respect of which Mr Forster was granted an honorarium of £200. But what is said is that by the Summer of 1997 Miss Mayfield had, in the letters from Miss Myles and her union representative, a clear explanation as to the overtime position. In particular, in a letter of 21st April to Miss Mayfield from the UNISON convenor, there is this passage:

"There is no dispute that overtime has been claimed in respect of evening work including Appeals and County Council Meetings. But it is not accepted that no additional payment is necessary in relation to the additional responsibilities undertaken by Marsha for the period in question, being approximately from March 1995 to August 1995."

It is said that there distinction is quite clearly drawn so that Miss Mayfield can have been under no misapprehension about what was at the centre of the issue.

However, the Industrial Tribunal had that well in their mind. They said at paragraph 15:

"Miss Mayfield did of course study the Applicant's time sheets when the Applicant complained in 1997. She also looked at the Applicant's diaries and files but saw no reason to alter her decision."

That is reflected in Miss Mayfield's letter of 16th July to Mr Chamberlain, the UNISON Convenor:

"As I explained to you, I still do not feel able to recommend an ex-gratia payment for Marsha for the reasons shown on the schedule of evidence. This decision is based on the calculations attached hereto and upon the fact that, as we have discussed, Marsha received overtime payments for the evenings appeals which she attended."

We do not have the calculations that were attached to that letter, but the tribunal was quite clear that Miss Mayfield was in fact wrong, although that is the basis upon which she acted. They said at paragraph 19:

"Miss Mayfield was advised by Mr Baker on the basis of incorrect assumptions and facts and continues to maintain her view before the Tribunal despite the clear evidence that her interpretation in 1995 and 1997 of the overtime situation was wrong."

The tribunal had that information before them. The tribunal had, however, to make its decision upon the totality of the evidence and the facts as found by it, and an argument of perversity, which is really what this points is, seems to us to be unarguable.

In those circumstances and having given this case considerable consideration, each of us separately before we came into the hearing this morning, and listened to the arguments ably put by Mr Grant on behalf of the appellant, we reach the conclusion that there is no arguable point of law in this case to go to a full hearing and that the appeal should be dismissed at this stage.