At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR L D COWAN
MR D A C LAMBERT
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING – EX PARTE
For the Appellant | MR N TSE (of Counsel) Instructed by: Mr S Spencer Lloyd & Associates Solicitors 48 Onslow Gardens London SW7 3PY |
JUDGE PETER CLARK:
The review decision
The substantive decision
(1) Findings of fact
It is not for us to make findings of fact. That falls task falls solely within the province of the Employment Tribunal. However, Mr Tse submits that the Employment Tribunal failed to make necessary findings of fact or made unsupported findings contrary to the evidence, in particular:
(a) there was no finding as to the appellant's nationality. That is plainly absurd. The tribunal found at paragraph 2 that the appellant was born in Iraq. We are satisfied that the case proceeded on the basis of a comparison between her Iraqi nationality and those people of Egyptian or Palestinian nationality.
(b) there was no finding as to her employment status with the BBC, or, insofar as she was found to be a casual or freelance worker that was contrary to the evidence. It is clear to us that internally the BBC draw a distinction between casual and permanent staff. The appellant was treated as a casual. She many have been an employee for the purposes of National Insurance and tax and indeed for protection under the sex and race discrimination legislation, but the tribunal were satisfied that she was not a permanent member of staff for the purpose of her eligibility internally for job applications about which she complained or being granted access to the BBC's Women's Development Initiative (see reasons paragraph 8) or to the grievance procedure applied only to permanent staff. Again, we see no arguable point of law here raised.
(2) Excluded evidence
It seems that the appellant adduced no statistical evidence as to disproportionate impact during the first four days of hearing. By the end of that period her case was closed. No such evidence was served after 3rd July on the BBC until the day before the resumed hearing on 28th September. They objected to having to deal with such evidence at that late stage, an order having been made for service of further material not less than seven days before the resumed hearing at the close of play on 3rd July. The tribunal excluded that evidence. They were entitled to do so in our judgment within the proper exercise of their discretion, looking at the reasons given at paragraph 1 of the substantive decision reasons and in the review decision reasons of the Chairman.
(3) Preferring the respondent's witnesses
This is dealt with at paragraph 18 of the reasons. Mr Tse complains that reference to the appellant's witnesses having themselves brought their own cases against the BBC was an irrelevant factor. We disagree. It merely indicates a prospective lack of independence as witnesses. They had an interest in the outcome. That is perhaps a glimpse of the obvious, and not a ground for interfering with the tribunal's fact finding decisions.
(4) Indirect discrimination
Mr Tse rightly submits that no intention on the part of the respondent is necessary for a finding of indirect discrimination. However, we have concluded that the tribunal's reference to intention at paragraph 16 of their reasons is an alternative finding. Even if that amounts to an error of law, the question for us is whether the tribunal's finding of no indirect discrimination on other grounds is plainly and unarguably right. See Hellyer Brothers v Mcleod [1987] ICR 526.
In our view the tribunal was entitled to conclude, as it did, on the evidence before it and the facts as found, that the appellant had failed to make out a case of disproportionate impact or less favourable treatment either on the grounds of race or sex, so as to establish her case on indirect discrimination. Even had she done so, the tribunal permissibly found that the respondent had justified their treatment of her on the basis that they were entitled to restrict access to permanent members of staff. That is a finding with which we cannot properly interfere.
(5) No specific submission is made in relation to the tribunal's self-direction as to direct discrimination over and above those to which we have earlier referred.
(6) As to victimisation, it is correct to say that the tribunal directed themselves as to the need for conscious motivation on the part of the respondent in relation to victimisation, in line with the then Court of Appeal approach in Nagarajan v London Regional Transport, subsequently disapproved by the House of Lords [1999] IRLR 572. However, Mr Tse accepts that there is no freestanding appeal on victimisation. Having failed on his earlier grounds of appeal, this part of the tribunal's findings cannot separately be interfered with.