United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E BROWN (Representative) Southwark Law Centre (ref 11158) Hanover Park House 14 - 16 Hanover Park Peckham London SE15 5HG


 


MR JUSTICE MORISON: This hearing is to determine whether there is an arguable point of law in an Appeal which Ms Lawson wishes to make against a Tribunal decision promulgated on 10 July 1998. By their decision the Industrial Tribunal unanimously rejected her complaint that she had been discriminated against by her employers, the London Borough of Wandsworth, on racial grounds.

The essence of the Tribunal's decision can be summarised in this way: firstly, they decided, as a preliminary issue, that two complaints relating to the way she was treated during her probationary period, between February 1995 and August 1995, and relating to what was alleged to have been a fabricated probation report in about 1995, were dismissed as the Industrial Tribunal were satisfied that they were out of time and that it would not be just and equitable to consider them.

There were, however, two remaining issues to be determined by the Tribunal. Namely, whether the Respondent employers had failed to investigate her complaints regarding alleged discriminatory treatment throughout her probation period at Victoria Drive and, if it had, whether its failure was on racial grounds. Secondly, whether the Respondent had broken an undertaking to destroy the Applicant's probation report and, if it had, whether it had been breached on racial grounds. It was clear from the Tribunal's decision that in the course of their investigation of the two extant complaints they would have regard to the facts and matters concerning the two out of time complaints, which is what they proceeded to do.

The Applicant first came to work for the local authority in July 1994 as an agency worker but when a permanent position became vacant she applied for it and she was assisted with her application and she was appointed subject to a probationary period. During the probationary period, in accordance with the normal procedure, she was regularly supervised and a number of probationary reviews were held. Initially they were carried out by a Ms Payne who identified shortcomings in various aspects of the Applicant's work. The way she was assessed may have been different from the way that others were assessed in the sense that the shortcomings were recorded in an 'Incident Book'. The Applicant would be taken through the various incidents and asked for her explanation and, if they were regarded as satisfactory, then the incident would be crossed through. As a result both of the way that the complaints were being made and recorded and they were dealt with she, the Applicant, believed that she was being discriminated against on grounds of her race.

Later on, in June 1995, a supervisor formed the view that the Applicant had failed satisfactorily to complete the stage of her preliminary review. The Applicant attended a supervision meeting subsequent to that in August where she complained, subsequently by letter, that she had been treated in an unsatisfactory way which was discriminatory. A probationary report was prepared for the purposes of the resumed meeting on 12 September. That report was produced to the resumed meeting. It was the Applicant's strongly held view that this was a report which had been manufactured and fabricated by the writer under the direction of another person in the organisation, "for the sole purpose of justifying the Applicant's probationary period".

The Tribunal recorded this:

"26. The Applicant's view, that the report had been manufactured and fabricated, was, in fact, inaccurate since the matters contained within that report were matters referred to and summarised in previous supervision and probation review documents."

There was a proposal, at this meeting, that the Applicant should transfer from Victoria Drive to another children's centre, at Longley Road, and that transfer occurred on 18 September. Her probationary period then proceeded satisfactorily and thereafter her appointment was confirmed and she was permanently assigned to the Longley Road centre.

That left outstanding her complaints that she had been treated in a discriminatory way when she was working at Victoria Drive and there was a telephone conversation between the Applicant and a representative of the Council in January 1996 to discuss those allegations. There was some problem about finding a representative for her and, whether due to confusion or otherwise, no further attempts to deal with this matter occurred until the Applicant sent a letter, dated 4 October 1996, referring to them and complaining about the delay which, in her view, had occurred in the way in which those complaints were dealt with.

At this stage a senior officer from the Union was instructed and he put forward a suggestion that if the probationary period documents were removed from her personal file, the file which is referred to should a job reference be required for further employment, she, the Applicant, would not be minded to continue with her request that her allegations of discrimination be investigated. On the basis of that suggestion the matter was dealt with in accordance with the agreement.

However, in about May 1997, the Applicant gave a witness statement in support of a colleague's complaint to an Industrial Tribunal of race discrimination. In her statement she repeated the allegations of discrimination to which she had been subjected and complained that the probationary report had been fabricated and manufactured under the direction of a senior officer of the Council. She had kept her own copy of the probationary record and documents but she did not produce them as an annex to her statement.

The Council, as the Tribunal found, in order to rebut these very serious allegations made by the Applicant, produced the probationary report and related documents in its Tribunal bundle. The Applicant realised that the Respondent had kept a copy of her records and concluded that it had breached the undertaking that it had given as to the removal of these documents from her personal file. It appears that the documents came from the managers' own file which had been kept in order that the Council could respond to any litigation if such were to occur in the future.

The Industrial Tribunal concluded as follows: firstly that the Respondent held genuine and well-founded concerns relating to the quality of the Applicant's work as a probationer. Those concerns had led to the decision to extend her probationary period and:

"49. ...we consider that, in the circumstances, it was reasonable of the Respondent to ensure that the extension of the probationary period progressed to its conclusion. We find no evidence to suggest the Respondent failed to recognise the seriousness of the Applicant's complaints and we find no evidence that the Respondent had refused or failed to investigate her complaints of race discrimination. The Respondent made a prompt attempt to progress her complaint immediately after the Applicant had concluded her probationary period, and that they were not responsible for any delay. We have considered the Applicant's letter of the 4 October 1996. It is our view that it does not reveal any satisfactory explanation for the Applicant's failure to pursue her complaint in January 1996... We conclude therefore that we find no evidence that the Respondent refused or failed to investigate the Applicant's complaints. It follows therefore that the Applicant has failed to satisfy the Tribunal that she was less favourably treated. The unanimous decision of the Tribunal is that the Respondent did not unlawfully discriminate against the Applicant."

It seems to us quite plain that this is a finding by the Industrial Tribunal, in relation to the alleged failure by the Council properly to investigate the Applicant's complaints, first of all that she was not treated less favourably than another person would have been and secondly that, in any event, her treatment was not by reason of her race.

In relation to the second complaint, the breach of undertaking, the Tribunal said this:

"50. ...We were satisfied that any manager seeking to write a reference for the Applicant would only have access to the personal file. There was no evidence that the Applicant had suffered any detriment throughout the continuation of her employment by the records being maintained in central personnel. In the circumstances, we find no evidence that the Applicant was treated less favourably than another employee would have been treated in similar circumstances."

We take that to be a rejection of the complaint that she had been discriminated against on the grounds of her race by reason of the way in which the Council dealt with the undertaking to remove documents from her personal file. What the Tribunal has decided is that in that respect she suffered no less favourable treatment than another person would have done in similar circumstances regardless of her race and therefore there was no breach of the Act.

The first ground of appeal of substance that is taken is that the Industrial Tribunal did not address its mind as to whether the two acts which it ruled as being out of time were continuing acts extending over a period as defined by section 68(7). An analogy was drawn with what was said in the case of Ford Motor Company v Shah referring to the case of Littlewoods Organisation Plc v Traynor [1993] IRLR 154, where it was stated:

"It appears from that case that an act of discrimination may extend over a period after the original act of discrimination if, during that period the employers have failed to implement remedial measures fully; in that case, the measures were the appointment and training of a new supervisor in place of a supervisor against whom a complaint of racial abuse had been brought.

So long as the remedial measures agreed upon were not actually taken a situation involving racial discrimination continued. Allowing that situation to continue amounted to a continuing act."

It was said that in this instance the act complained of was the non-destruction of a disputed probation report. The destruction of the report was regarded as the remedy to a complaint of race discrimination during the Appellant's probationary period, it was, in other words, regarded as a substitute to an investigation into her grievance and in fact, because the document had not been destroyed, she was the victim of a continuing act of discrimination, as in the Littlewoods case. Further, alternatively, the probationary report, when it was produced, entitled the Appellant to assert that there was a prima facie case that remedial measures that were agreed on 17 March 1997 had not been carried out and that therefore this would amount to a continuation of discrimination.

We understand from these two points that essentially what is being said is that because there was a breach of the understanding reached between the parties, by reason of the Council's failure to destroy the probationary records, that entitled the Applicant to open up the complaints which had been compromised by this understanding.

It does not seem to us that there is any arguable point of law raised by these submissions. It seems to us to be obviously clear that no analogy can be drawn with Littlewoods. There was no suggestion in this case, on the findings of the Tribunal, that race played a part in the decisions taken by officers of the Council. It seems to us, therefore, that the analogy with Littlewoods does not hold true. Secondly, in any event, it seems to us that there cannot be any prejudice which has been sustained by Ms Lawson even if the Tribunal were wrong about it. The Tribunal were entitled to have regard to, and did have regard to, the two out of time complaints. They were rejected. Had they been accepted then there might have been some detriment because, on the Tribunal's ruling, she would not have been entitled to recover any compensation in respect of them. But having regard to the fact the Tribunal rejected those complaints in themselves, on the grounds that they did not show any justification for a complaint of race discrimination, she has lost nothing by the ruling which was made.

Therefore it seems to us that the Industrial Tribunal has arrived at a conclusion which was, in our judgment, obviously right, but even if it was not obviously right, this is not a case where any prejudice has been occasioned and where the interests of justice would require the matter to proceed further. Accordingly, for both those reasons, this Appeal does not disclose an arguable point of law and it will be dismissed.