United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES BARZEY (Community Officer)


 


MRS JUSTICE SMITH: This is the preliminary hearing of an appeal against the decision of an Industrial Tribunal sitting at London (North) over a period of three days, in March 1998, whereby they dismissed the Appellant's allegations that the Respondents had discriminated against her on the ground of her race and had victimised her. The Tribunal's decision was promulgated on 20 April 1998.

The background to this matter is that the Appellant was employed by the Second Respondents, Air Travel Group, in various administrative positions from 1983 and remains to this day in their employment. At the time of the hearing she worked as an administrative co-ordinator in the Reservations Department. Her immediate line Manager was Mr D'Avino, the First Respondent. In her Originating Application the Appellant complained that from 1993 she had noticed a change in the attitude of management towards her and she felt that she was being treated less favourably than white colleagues. She is black.

In December 1995, while she was on leave, a reorganisation took place, which affected her department, and on her return she claimed that she found that her duties had changed. She considered that she had been effectively demoted. She said that her new duties were more of a clerical nature, whereas before that time she had been involved in the training and selection of her colleagues. After the reorganisation she no longer had those duties and some of her white colleagues, whom she had earlier trained and supervised, were given more important roles. She said that she had complained about this and had invoked the grievance procedure, but she was dissatisfied with the way in which her grievance had been handled and with its outcome. She alleged that this was due to racial discrimination.

The Respondents set out in their Notices of Appearance a very detailed account of their version of events. They denied that the Appellant had been demoted. She was still at a supervisory grade, as before. They sought to explain the system by which vacancies were advertised internally and they asserted that all employees had equal opportunity for promotion. They said that the Appellant had applied for a post in the Custom and Relations Department, but had been unsuccessful. Moreover, they said that the Appellant had not complained in early 1996 about the way in which she had been treated in the course of the reorganisation and it was now, they said, too late for her to complain of those matters to the Tribunal, as her IT1 had not been filed until August 1997. They accepted that she had first raised a grievance within the Company in April 1997, complaining of the Respondents' failure to consider her for promotion and also, that she had been subjected to unreasonable and oppressive monitoring of her performance. She had also complained that she had been subjected to abuse on one occasion.

The Respondents said in the Notices of Appearance that the grievance had been handled according to their procedures, but that the Appellant had refused to attend the meetings called, unless she was permitted to bring a friend with her from outside the Company. This had not been permitted because it was contrary to the Company's rules. The Respondents said that in the event her grievances were not upheld and she had been notified of that in June 1997.

On 18 August 1997 the Appellant had been reprimanded for failure to arrange insurance for a customer's holiday booking. This had proved an expensive error for the Respondents and they had reprimanded her. Her application to the Industrial Tribunal had been made at about that time.

At the hearing the Tribunal identified five separate matters of complaint which had occurred during 1997. The first related to the complaint of unreasonable and oppressive monitoring by Mr D'Avino. Mr D'Avino told the Tribunal that he was monitoring the Appellant's performance, because she had asked for assistance in her job, and he was trying to assess whether an assistant could be justified. He told the Tribunal that he would have treated anyone else in the same way and the Tribunal appear to have accepted that, because they found that there was no difference in treatment by Mr D'Avino of this Appellant on the ground of her race.

The second issue concerned the question of the way in which vacancies and opportunities for promotion were dealt with within the Company. It was the Appellant's evidence, as we understand it today, that she never became aware of vacancies and she only learned that there had been opportunities for promotion when the appointment was announced. However, the Tribunal accepted the evidence of the Respondents that the practice was to advertise vacancies on a board. A memorandum dated 25 February was before the Tribunal and they accepted that the vacancies policy was the same for all employees and was not affected in any way by racial discrimination.

The third issue considered by the Tribunal related to the conduct of the Appellant's grievance hearing. The Tribunal found that the grievance was handled fairly. Indeed, they use the expression "faultlessly". They record that the grievance was investigated and the Appellant was invited to attend a meeting. However, she declined to do so, for the reason which we outlined earlier.

It was not suggested at the hearing and indeed, it was not raised in the Appellant's IT1, that the Company's rule, that an employee attending a grievance proceeding was not entitled to bring an outsider, was discriminatory. It may be that had that argument been raised and had the evidence been called, the Tribunal may have formed the view that the Company rule bore more hardly upon members of staff who were black or Asian, than it did on those who were white. But this point was not raised and it is too late for us now, of our own motion, to consider it. Indeed, it was not raised this morning, other than in answer to questions from a Member of the Appeal Tribunal. The Industrial Tribunal found that the rule was applied across the board to all employees and that was accepted today by Mr Barzey, acting on behalf of the Appellant. Thus, there was no discrimination by the Respondents against the Appellant in connection with the way in which they handled her grievance.

The fourth matter which the Tribunal considered, concerned the disciplinary warning which was meted out to the Appellant in respect of the mistake that she had made in failing to arrange insurance cover for a client. It appears that, before the Tribunal, the Appellant did not dispute that she had made an error and that the warning was justified.

Today it was suggested to us that other members of staff make costly mistakes and are not disciplined. It does not appear that any evidence of that was led or that that argument was raised below and it cannot now be raised before this Appeal Tribunal.

The fifth issue was a very minor matter. We mention it only for completeness. One of the Appellant's complaints was that she had not been provided with training and assistance in the development of her career. The Tribunal found that the only real complaint levelled was that she had not been included on a training course in relation to the conduct of staff appraisals. The Tribunal considered that the failure to include her was an oversight, which was corrected as soon as it was brought to the Respondents' attention, and it is right to say that the Appellant did attend that course.

In the event the Tribunal, having considered all the five issues, reached the conclusion that there had been no difference in treatment given to the Appellant and certainly, nothing which raised any concern in their mind that she had been treated in any way differently on account of her race.

The grounds of appeal, which have been drafted by the Appellant herself, repeat her contentions of fact. Mr Barzey, who has appeared on her behalf this morning, accepted that that is so. When asked to identify an issue of law which could properly be ventilated before the Appeal Tribunal, he acknowledged that he was in grave difficulty.

We can only repeat that it is not the function of this Appeal Tribunal to reconsider matters of fact which have been determined by the Tribunal. Our jurisdiction is only to correct errors of law. We recognise the difficulties which Miss Wilson faced in conducting these difficult proceedings without the benefit of legal advice. We, ourselves, have scrutinised this decision with care. We would acknowledge that the decision is not set out with the clarity which we would wish to see. However, the findings of fact are clear and with our understanding of the case, gleaned from the Notice of Appearance and from Mr Barzey's helpful explanations this morning, we are quite satisfied that the conclusions were justified and flowed from the findings of fact which were clearly set out. In those circumstances, this appeal has no prospect of success. There is no point of law in issue and the appeal must be dismissed at this preliminary stage.