United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DOMINIC CARRINGTON (of Counsel) CAMBRIDGE HOUSE LEGAL CENTRE 137 Camberwell Road London SE5 0HF


 


JUDGE CLARK

This is an appeal brought by the Applicant before an Employment Tribunal sitting at London (South) (under the chairmanship of Ms C E Taylor), against the Employment Tribunal's decision, promulgated with extended reasons on 16 June 1999, dismissing her complaints of unfair dismissal, unlawful racial discrimination and action short of dismissal on Health & Safety grounds.

1. An earlier preliminary hearing which came before a division presided over by Judge Wilke QC, on 24 November 1999 was adjourned for affidavit evidence from the Appellant and the Chairman's comments on that evidence. Those steps having been taken this is the resumed preliminary hearing, held to determine whether the appeal raises any arguable point or points of law which ought to go forward to a interpartes hearing.
2. The Appellant was employed by the Respondent College as a Library Assistant from 4 December 1989 until her resignation effective on 16 January 1998. It was her case before the Tribunal below that she had been subjected to a course of harassment by 3 of her colleagues in the library, Ms Beckett-Doyle, Ms Smith and Ms Stephenson, leading to her suffering a nervous breakdown in September 1997. That amounted to less favourable treatment on the grounds of her race; she said that she had a black South African grandfather and that her colleagues had referred to her looking like an Indian. Further, that campaign of harassment caused her to resign from her employment in circumstance amounting to constructive unfair dismissal. As to the Health & Safety complaint, the Appellant contended that she had been made severely ill by mushrooms given to her by Ms Beckett-Doyle.
3. The Employment Tribunal reviewed the individual allegations made by the Appellant and rejected them as a matter of fact. The Employment Tribunal found that she was not subjected to the harassment complained of; Ms Beckett-Doyle had not administered poison mushrooms to her; there had been no speculation about her race; she left the employment to go to another job. Accordingly, she was not constructively dismissed; she was not subjected to any less favourable treatment than a relevant comparator, actual or hypothetical; there was no racial dimension in the case; she had not made out her complaint under section 44 Employment Rights Act 1996. In short, she lost on the facts.
4. Exhibited to the affidavit sworn by the Appellant on 7 December 1999 pursuant to Judge Wilkie's order made on the last occasion is the 67 page witness statement made by the Appellant and put before the Employment Tribunal. Either the Appellant was subjected to an horrific catalogue of mistreatment by her colleagues throughout her employment, leading to a breakdown in her mental health, or the allegations there set out are the product of a troubled mind, unrelated to any treatment at her work. The Appellant refers to suffering from paranoia. The Employment Tribunal rejected the first explanation for her allegations.
5. Before the Employment Tribunal the Appellant appeared in person. Today she is represented by Mr Carrington of Counsel. He takes 7 points in support of the appeal. We shall deal with each in turn.

(1) Another employee of the Respondent, Karen Lewis, who is black, also brought a complaint of racial harassment amounting to unlawful discrimination against the Respondent. At a directions hearing held on 8 January 1999, it was ordered that the 2 complaints should be heard together, Ms Lewis' case being taken first. In the event, Ms Lewis did not feel well enough to pursue her complaint and it was withdrawn.

Miss Maple complains that she was prevented by the Chairman from mentioning Ms Lewis' case. That, it seems to us, has been transposed into a submission that she was not allowed to adduce relevant evidence from Ms Lewis. We do not accept that complaint. It appears that Miss Maple neither sought to call Ms Lewis, or put in a written statement from her, although Ms Lewis attended the Employment Tribunal hearing of Miss Maple's case between 4-7 May 1999. Although it is said that the Appellant was not allowed to mention Ms Lewis, it is clear from the Chairman's letter commenting on the Appellant's affidavit dated 5 January 2000, that references were made to Ms Lewis by the Appellant, both in her evidence and when cross examining the Respondent's witnesses.

(2) It is submitted that the issue of the Appellant's perceived race was not properly addressed by Employment Tribunal. In our view it was. The question was whether her colleagues had referred to her as looking like an Indian. The Employment Tribunal found as a fact that no such comments were made (reasons paragraph 50).

(3) It is next said that the Employment Tribunal did not deal with the Appellants complaint of victimisation. However, Mr Carrington accepts that such a claim was not raised, either in the IT1 or the Appellant's lengthy witness statement or during the hearing. In these circumstances it cannot now be taken for the first time on appeal. Jones –v- Governing Body of Burdett Coutts School (1998) IRLR 521.

(4) The next complaint relates tot he Appellants earlier applications to the Employment Tribunal for witness orders. Those request were refused by letters from the Employment Tribunal dated 21, 31 March and 22 of April 1999. We are told that such applications were not renewed before the Taylor Employment Tribunal. Insofar as this is an appeal against earlier orders it is out of time, the Notice of Appeal having been received 28 July 1999. We see no grounds for extending time. United Arab Emirates -v- Abdelghafar [1995] ICR 65.

(5) Similarly, it is now too late to appeal against the letters from the Employment Tribunal refusing an application by the Appellant for further and better particulars of the Respondent's Notice of Appearance, those letters being dated 29 March and 22 April 1999.

In relation to points 4 and 5 Mr Carrington tells us today, on instructions, that at the Employment Tribunal in May the Appellant was advised by a Tribunal clerk that she could not renew those application which had been earlier refused. That allegation does not appear in the Appellants affidavit. We are not prepared to entertain it in these circumstances.

(6) It is then said that the Employment Tribunal fell into error by not granting the Appellant's application for an adjournment from Friday 7 May to Monday 10 May 1999, in order to allow her to prepare her closing address. She felt unwell. It seems to us that the Employment Tribunal has a wide discretion in considering whether or not to allow a postponement. Carter –v- Credit Change Ltd [1979] ICR 908. The Employment Tribunal had to balance the additional cost to the Respondent of a further day's hearing. We cannot say in these circumstances that in refusing the application the Employment Tribunal was guilty of a perverse exercise of discretion in the legal sense.

(7) Finally, it is submitted that the Employment Tribunal failed to place sufficient weight on the medical evidence before them. We disagree. There was medical evidence that the Appellant was suffering from stress, which the Employment Tribunal record and refer to in their reasons. We do not understand that evidence to have extended to a medical opinion that the Appellant's condition was caused by harassment at work which, in any event, the Employment Tribunal found as a fact did not occur.

6. Having considered those submissions we conclude that this appeal is really an attempt to retry the facts. That is not permissible, our jurisdiction is limited to correcting errors of law. We are not satisfied that the Appellant suffered from procedural unfairness at the hands of the Taylor Employment Tribunal. The complaints about earlier interlocutory orders made by previous Chairman are out of time. Accordingly we have concluded that this appeal raises no arguable point of law which ought to proceed to a full hearing and it must be dismissed at this stage.