United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE JOHN BYRT: This is a preliminary hearing in an appeal. The original decision was promulgated on 23rd April 1998 by the Employment Tribunal sitting in London (North) and by that decision they held that Miss Chambers' claim of racial discrimination had failed. Her allegation of sexual discrimination was withdrawn. Miss Chambers now appeals.

The facts are as follows: She was employed by the Respondent since 1991 as a part-time social worker. It was alleged that on New Year's Eve, 1996, she fell asleep whilst on duty and again, did so on 3rd January 1997. For this, after disciplinary proceedings, she was formally reprimanded. It is admitted by Miss Chambers that on one occasion, she did fall asleep while on duty. She made allegations against another social worker, Miss Vida. She said that Miss Vida had too much to drink on New Year's Eve and the result of that was that she suffered a hang-over. Another young man became involved, a Mr Bingham, who was a newcomer to social work. He saw Miss Chambers sleeping and that it was suggested by Miss Chambers that he should not report it to management, but in fact, he went ahead and did so. In due course, all these both way allegations were investigated by a Mr Richards and Miss Fitsimmons, both of them in management, and as a result of that, on 22nd January 1997 a report was made to senior management with a view to a decision being made as to whether disciplinary proceedings would follow. In fact, Miss Chambers took steps which pre-empted that decision.

On 27th January she sent a letter to the Respondents alleging racial and sexual discrimination against her by Mr Richards and Miss Fitsimmons. There were a number of allegations about the way in which she said she had been treated unfairly. These related to the arrangements for the rota of shifts; incorrect wages paid to her; she was placed on leave without her consent being sought; she had never been offered proper supervision; and she referred to a veiled suggestion made to her that she had stolen some shopping. She then went on to complain that the investigative enquiry on 22nd January was in fact, a disciplinary hearing and that she had not been given an opportunity properly to defend herself. All the while, Miss Chambers remained in employment with the Respondents.

On 24th April 1997, she began proceedings before the Employment Tribunal. Her IT.1 reflected what she had alleged in her letter dated 27^th January. This alleged discriminatory conduct was expanded upon at a preliminary hearing of the Tribunal. She alleged that her complaints about Miss Vida and Mr Bingham had all been ignored and that Mr Richards, on 22nd January, had called her a "thief like all black people". The Employment Tribunal's findings were that Mr Richards had never made any such racist remark and they went on to say that the Employers had reasonable grounds for dismissing the allegations against Miss Vida and Mr Bingham. They accepted what Mr Richards and Miss Fitsimmons said in evidence in explanation of the various matters raised by Miss Chambers in her letter of 27th January. They accepted the evidence that Miss Chambers had admitted to sleeping on duty and went on to conclude that, when it looked as if disciplinary proceedings were going to be taken against her, she decided that attack was the best method of defence and went on to raise these other issues of a discriminatory nature which were referred to in the letter of 27th January and before the Employment Tribunal. The Employment Tribunal accepted that she had been given a written warning about sleeping on duty and they accepted that amounted to a detriment but they went on to say that the fact she was given that written warning was in no way as a result of any racial discrimination against her and they rejected all the other complaints of discrimination she had made. Those are all essentially findings of fact.

Miss Chambers then applied for a review and she sought to adduce further evidence, the evidence of a Miss Cole and Ms Gordon. The Chairman, when reviewing her application, decided that the evidence which these witnesses could give was not relevant to the issues the Tribunal had to decide. In fact, they do not seem to have considered the question whether they were available to give evidence at the time of the original proceedings.

Secondly, the Chairman considered the allegations of bias made by Miss Chambers in her application for the review. It was alleged that the Chairman of the Tribunal has allowed the various Respondent's witnesses who had been present at the Tribunal to intimidate her while she was giving evidence by facial and body language, and furthermore, she alleges that she was unfairly treated by the Tribunal in that she was required to sit in a room on her own during the lunch-time period as she was in the middle of giving her evidence. The answer of the Chairman, both in comments she made in letters to this Tribunal when this Tribunal enquired about the allegations and also, in dealing with the matter on review, was that she never saw any inappropriate conduct by the Respondents' witnesses during the course of the hearing. So far as concerned the allegation that she was confined in her room during the lunch hour adjournment, she said that it was no part of any order she had made that she should be left in a room and she referred to the usual principle (I think it is right that Miss Chambers should know this) that all courts warn witnesses who are in the middle of giving evidence when there is a break for lunch or any other adjournment that they should not discuss their evidence with anybody during such break or adjournment. It is essential their evidence be their evidence, untainted, and ungilded by any comments which might be made by somebody who had been listening to the evidence themselves. If she spent that time confined to a room, it is surprising that nothing was said or done to help her by the barrister and solicitor representing her. Anyway, the Chairman of the Tribunal says it was no part of her order that she should have been so confined.

It was then alleged that Counsel was restricted in the cross-examination of Miss Vida. The Chairman's comment was that such cross-examination was not directly relevant to the issues the Tribunal had to decide. It was admitted by Miss Chambers that she had been sleeping on duty and they were concerned with the allegations made in the letter of 27th January. It was not germane to those allegations made by Miss Chambers.

Then there was the complaint by Miss Chambers that the oral judgment given by the Chairman of the Tribunal on the day of the hearing differed in some degree from the written reasons in due course, given. There is a conflict here directly between what is said by the Chairman and by Miss Chambers.

In any event, this matter now comes before us. Miss Chambers' main ground of complaint is that the Tribunal itself was biased. This is always an allegation which causes this Tribunal considerable concern. It is a very serious allegation to make and it should be known that this Tribunal is always vigilant to look into the circumstances to see whether bias is proved or any misconduct occurs on the part of the Tribunal. In fact we do not have any evidence to support Miss Chambers' evidence on bias. She was represented by solicitor and Counsel at the Tribunal but we have no statement, letter or affidavit from them supporting what she says. We therefore have a direct conflict between her case and what the Chairman has said both in her letter to the Employment Appeal Tribunal and on the review. Having seen that conflict, we have considered it. That being the evidential position, we do not see how any point of law on that issue could conceivably arise for us to determine.

So far as the remainder of the Tribunal's findings are concerned, Miss Chambers complains that the Tribunal did not have a proper grasp of the factual basis upon which she made her complaints. In particular, she alleges that the Tribunal became side-tracked into an investigation of an allegation relating to time-sheets which she says was never a feature of the complaints made against her. We appreciate that; the substance of this case against her was that she had fallen asleep on duty and it is as a result of that that she had received the formal reprimand by her Employers. We do not think that this error, if an error it be, made by the Tribunal is of any material substance. We have to consider whether Miss Chambers has proved the substance of the complaints set out in her originating application. They all relate to matters which give rise to factual issues which the Tribunal covered in their findings of fact as set out in the reasons.

It is plain that Miss Chambers was dissatisfied with what happened before the Employment Tribunal. She has complained about the Chairman and we have considered those complaints with care. She complains about her Barrister and solicitor representation. About that, we are unable to make any comment and I am sure she will understand that. Essentially, she feels that she has been worsted by the system. We may have sympathy with her feelings but cannot find anything in the reasons of the Tribunal or in what she has been able to tell us, which would enable an Appeal Tribunal to disturb these findings since there is no arguable point of law which would enable us or a Tribunal after a full hearing to disturb the decisions this Tribunal came to, we have no alternative but to dismiss this appeal at this stage, and accordingly, we do so.