United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE PETER CLARK: This is a an appeal by Miss Nash, the applicant before an Employment Tribunal sitting at London (North) under the chairmanship of Mrs Enid Prevezer, on 8th to 9th July 1999, against that tribunal's decision promulgated with extended reasons on 29th July 1999, dismissing her complaints of unlawful racial discrimination and victimisation contrary to the Race Relations Act 1976 and breach of the Equal Pay Act 1970, brought against the respondent, the London Borough of Camden and contained in Originating Applications presented on 18th November 1998 and 16th February 1999.

1. As to the claims under the 1976 Act, the appellant contended that she had received less favourable treatment than white employees over a possible promotion. She is black.
2. In their reasons the tribunal set out the appellant's employment history. She commenced employment with the respondent in February 1985 as a clerical officer on Grade Scale 3 in a department which later became the Building Design Services ('BDS').
3. At all relevant times the respondent operated a Career Development Scheme ('CDS') which applied to the appellant.
4. During the period 1991-1998 there were no less than three reorganisations by the respondent which the appellant survived, retaining her employment.
5. The CDS involved appraisals with a view to promotion by way re-grading. In April 1998 a further restructuring was planned by the respondent which involved the closure of BDS. At the same time the appellant sought appraisal and re-grading. The closure of BDS would result in job cuts. The appellant was ring-fenced for a job at Grade SO1. She took the view that because she was not SO1 she would not apply for that job, and did not do so. In the result a white female, who had earlier been graded SO2, was appointed to that post.
6. Evidence was also placed before the tribunal about two other white females who had gone through the appraisal system during 1996/7 and had been appointed to grade SO1.
7. Although she did not apply for the post identified for her, the appellant appealed against her non-selection for that post on 1st February 1999. That appeal was rejected by letter dated 17th March 1999. As a result of not obtaining the post the appellant's employment was terminated on 31st March 1999.
8. On her claims, first of direct race discrimination in her first complaint to the tribunal dated 18th November 1998, namely that her two white colleagues had been re-graded and she had not, and secondly of victimisation, by her second complaint dated 16th February 1999, based on her first complaint being the protected act and her not being offered the new post being the discriminatory act, the tribunal found that she was treated in exactly the same way as all other employees. There was no less favourable treatment and therefore no direct discrimination.
9. At the equal pay claim, the tribunal pointed out that the appellant's comparators were both female. Accordingly that claim also failed.
10. The Notice of Appeal, in the form of five grounds of appeal settled by the Cain & Abel Law Firm and dated 7th September 1999, was lodged on 8th September. The first two grounds of appeal related to alleged misconduct of the proceedings by the Chairman, Mrs Prevezer.
11. On 30th November 1999 the Registrar made an unless order requiring the appellant to file an affidavit in support of her allegations of misconduct in accordance with paragraph 9 of the EAT Practice Direction within seven days, failing which those allegations would be struck out. No affidavit was lodged and accordingly on 15th December 1999 the first two grounds of appeal were struck out.
12. The case was then listed for preliminary hearing before a division presided over by Lindsay J on 25th February 2000. On that occasion the hearing was adjourned to a date to be fixed.
13. Notice of this restored preliminary hearing was sent to the appellant and to the respondent on 24th March 2000. On 20th June 2000 the EAT wrote to the appellant reminding her that she should lodge a skeleton argument at least seven days before today's hearing. None has been received. Today there has been no appearance by or on behalf of the appellant and no explanation provided for that non-attendance. Telephone calls from the EAT staff have evoked no response. In these circumstances we have proceeded to consider the matter on the papers.
14. At Ground 3 of the grounds of appeal it is contended that the tribunal failed to make certain findings of fact. We are not persuaded, looking at the tribunal's reasons as a whole, that the tribunal failed to make all necessary findings of fact.
15. Under Ground 4 it is submitted that the tribunal were wrong in finding that no breach of the Equal Pay Act was made out because the comparators relied on by the appellant were women. We cannot understand that submission. It is the essence of an equal pay claim that a person of one sex is paid less than a person of the other sex for like work, work rated as equivalent or work of equal value. There must be a male comparator in this case.
16. Finally, under Ground 5 it is submitted that the tribunal has failed to ask themselves the correct legal questions. We disagree. The tribunal found on the facts that the appellant had not received less-favourable treatment than any other employee, whether an employee of a different race (direct discrimination) or a person who had not done a protected act (victimisation). In our judgment, no error of law has been made out.
17. Accordingly, the appeal must be dismissed.