At the Tribunal | |
Before
HIS HONOUR JUDGE J ALTMAN
LORD GLADWIN OF CLEE CBE JP
MISS C HOLROYD
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING – EX PARTE
For the Appellant | MR OGUNTIMOJU (of Counsel) Messrs Ogun Solicitors 368 City Road London EC1V 2QA |
JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (South) on 3 days in December 1998. It comes before us by way of preliminary hearing to determine whether there is a point of law such as to merit argument in full before the Employment Appeal Tribunal.
"We have accepted and set out our findings of fact the humiliation and unreasonable conduct to which Mrs Atijosan was subjected by Mr Hayes, and then Mr Edmundson. Mr Walker could and should have acted to remove it, but he failed to do so. Looking at the position in the round, we are satisfied that there was a management culture in the Respondent's organisation which favoured, for example, an absence of coherent written reasoning. That was at odds with the attitude of Mrs Atijosan. Her line managers were indeed prejudiced against her, but it was because of her ability and not her gender or race. We find this to be a case such as that contemplated by the case law of Quershi and Zafar, where there is incompetent and unreasonable conduct from which the Applicant suffers, but which is not, we find, discriminatory on the grounds of sex or race."
(1). It is contended that as the Appellant's ability was never in issue it was perverse to give that as the reason and that in the absence of any evidence of lack of ability the Employment Tribunal should have found that the prejudice was due to race and gender. It seems to us that there are 2 fallacies in that argument. First, it is clear from the findings of the Tribunal that it was her positive ability that led to prejudice. In other words, they seem to have found that the incompetence of her managers led to their being unable to work with the Appellant's outstanding ability. They instance this in particular by reference to the managers' inability to cope with written procedures and memos. We find that there is evidence upon which the Tribunal were entitled to base their finding. Secondly, it is true that, in the absence of evidence of a satisfactory explanation for prejudice, a Tribunal may infer discrimination on grounds of race or sex, without being accused of speculation. However, a Tribunal is not bound in law to do so, and it would not be, in the context of this case, an error of law to fail to do so. For both those reasons ground 1 does not raise an arguable point of law. We dismiss it at this stage.
(2) It appears that in this ground the Appellant may be referring to the findings in paragraphs 59 and 60 in which the Employment Tribunal refer to the reasons given for the Appellant's dismissal. It seems that the Appellant criticises the apparently uncritical finding of the tribunal. The Appellant points to the fact that these matters were not alleged in the notice of appearance, that the alleged audit report was never produced and was replaced by the assertion that there was only an oral report, and that the first time that the Appellant heard of this explanation was at the tribunal hearing. We consider that there is an arguable point of law that it is not possible to discern from the decision as to what view the Tribunal took of the evidence, particularly bearing in mind the way that this explanation came before the tribunal, and the apparent shift of ground by the Respondents in arriving at it. We direct that the Appellant confirm to the Employment Appeal Tribunal and the Respondent the actual passage in the decision of the Employment Tribunal to which reference is being made, for the reference to paragraph 49 in the current notice of appeal appears to be an error.
(3) The Appellant contends that the Employment Tribunal erred in failing to make any finding on the allegation of either sex or race victimisation. The Appellant relates this to the substantial reduction of the enhanced redundancy payment to the statutory minimum due to the commencement of proceedings, but the allegation may also relate to the way in which the Appellant was dismissed. We are puzzled by the apparent lack of a decision by the Employment Tribunal as to victimisation, although the factual basis for the allegation does seem to be referred to, for instance in paragraph 48. Whilst there is reference in the originating application to victimisation, the decision of the Tribunal makes no reference to this head of claim in either the outline of the issues at the start of the decision or the summary of the submissions of the parties in paragraphs 50 to 52. Accordingly, we direct that the apparent failure will remain a ground of appeal for the full hearing, but we also direct that the Respondents submit their response to the issue as to whether it formed part of the proceedings before the Tribunal not less than 14 days before the hearing of the appeal. We also order that a letter be written to the Chairman of the Tribunal, asking him if he would check his notes and write to the EAT (letter to be distributed to the parties) as to whether victimisation formed part of the proceedings over which he presided.
(4) This ground relates to the finding in paragraph 64 of the decision that there was no less favourable treatment in relation that Mr Eden and Mr Drummond, who were managers like the Appellant, and whose jobs remained when the tier above them was removed. The facts in relation to this are dealt with in paragraph 49. The Appellant argues that the retention of a director above her, as opposed to the removal of director in relation to the others, resulted in less favourable treatment without any explanation by the Respondents, and that was not addressed by the Tribunal. It seems to us that it is arguable that in 'adopting the Respondent's submissions on this issue' the Employment Tribunal did not state their reasons in relation to less favourable treatment and we permit this matter to be argued in full before the Employment Appeal Tribunal
(5) This ground argues that there was no evidence on which a reasonable tribunal, properly directing itself on the evidence, could come to the conclusion that there was no unlawful discrimination in the light of the absence of consultation in contra-distinction to the way in which other employees were treated. However, it is clear that the Employment Tribunal recognised that the Appellant was differently treated from her colleagues, but they attributed that to the Respondents incompetence in being unable to work with someone of her ability. There was evidence upon which they could come to this conclusion and we find no arguable point of law on this issue. We dismiss this ground at this stage.
(6) This ground effectively repeats ground number 5, but for different reasons, namely the alleged misapplication of the cases of Quereshi and Zafar. We accept that in this case the Employment Tribunal were dealing with a case of selective treatment rather than the failure of policy or practice, but for the reasons stated above it seems to us that there was evidence which entitled the Tribunal to reach the conclusion it did and we find no arguable point of law on this issue. We dismiss it at this stage.
(7) Paragraph 59 deals with the reason for dismissal in relation to the claim for unfair dismissal. This particular ground of appeal relates to the single finding of fact in that paragraph that there was an incentive to save costs by dismissing the Appellant. This ground of appeal relates to the retention of Mr Eden and Mr Drummond. However the need to reduce costs in the Respondent's organisation was the backcloth for the events described in the decision and we can discern no error of law in the tribunal's finding, first, that there was a saving in cost by dismissing a senior employee and secondly in relating that to the redundancy climate at the time. We have dealt with this as a free-standing ground of appeal. We can discern no error of law in this ground of appeal and we dismiss it at this stage. We do not, however, shut this item out as forming part of the factual background for the argument which may be raised under ground 8.
(8) This ground relates to the finding of the Employment Tribunal that the reason for dismissal was redundancy. They dealt with this issue separately from their consideration of discrimination. It seems to us arguable that on the face of the decision the Employment Tribunal do not appear, in relation to their consideration of the issue of the reason for dismissal, to have considered their own findings in relation to discrimination. It seems to us arguable that there is an inconsistency between, on the one hand, a finding that the reason for dismissal was redundancy in one paragraph and, on the other hand, the possible implication from the later paragraphs that the Respondents were wanting to dismiss the Appellant because they were prejudiced against her. Also, we have looked at the Education and Catering Contract. This document does appear to require the Respondents to have in post a Contracts Manager. This was the very post occupied by the Appellant. It is arguable that this document was relevant to the findings of the reason for dismissal being for redundancy and that it was not referred to in the decision of the Employment Tribunal. We consider that this ground merits argument in full before the Employment Appeal Tribunal.
(9) The final ground of appeal relates to paragraph 63 of the decision. The Employment Tribunal took account of the Appellant's failure to raise a complaint of racial or sexual discrimination before her dismissal as evidence that there was none. We recognise that in some cases tribunals do find that allegations of race and sex discrimination are, sadly, from time to time raised after the event to bolster an otherwise weak case. However, there are other cases where the events which follow after dismissal do genuinely shed fresh light on earlier actions of an employer so that hindsight can sometimes provide a genuine revelation of discrimination that was not earlier apparent. We note in this case that the conduct of the Respondents after dismissal included a claim, in the second paragraph numbered 8 in the Notice of Appearance, that the dismissal of the Appellant followed 'a full audit of the Catering Units throughout the borough'. This was followed by a failure to respond to a request to produce the document and an ultimate revelation that the so-called audit was never written down. It seems to us that, in concluding that if there had been 'apparent' unlawful discrimination the Appellant would have complained about it prior to dismissal, it is arguable that the Employment Tribunal did not take account either of whether any discrimination may not have been apparent, or of the position of a senior employee under stress and concerned about the security of her employment. We find that this ground contains matters that are fairly arguable in full before the Employment Appeal Tribunal.