United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A ABDULLA (Husband)


 


MR JUSTICE CHARLES: This appeal comes before us today by way of preliminary hearing. The parties are a Mrs Abdulla and the London Borough of Greenwich. Mrs Abdulla is the Appellant before us and was the Applicant before the Employment Tribunal.

1. Mrs Abdulla appeals against a decision of an Employment Tribunal sitting at Ashford, the Extended Reasons for which were sent to the parties on 22 July 1999. The hearing before the Employment Tribunal took place over 28 June to 5 July 1999 and the Employment Tribunal then spent a day in Chambers on 6 July 1999. The Applicant was represented before the Employment Tribunal by a Mr Knowles. Previously during the proceedings she had been represented by a Mr Aziz. Mr Knowles is, as we understand it, a Barrister. Mr Cadoo, an Employment Law Consultant represented the London Borough of Greenwich
2. The Extended Reasons record that Mrs Abdulla gave evidence for 13 hours. That must have been a long and gruelling time for her in the witness box. The decision of the Employment Tribunal was in the following terms:

(i) the claims against some individuals were dismissed on them being withdrawn;

(ii) the Applicant's claim for breach of contract fails and is dismissed;

(iii) the Applicant was not dismissed. She resigned voluntarily. Her claim for constructive dismissal fails and is dismissed;

(iv) the Applicant's claim for sex discrimination fails and is dismissed;

(v) the Applicant's claim for race discrimination fails and is dismissed.

3. Paragraphs 5 to 11 of the Extended Reasons set out the background as follows:

"5. At the Directions Hearing on 2 July 1998 an order was made that the parties prepare Witness Statements for each person who would give evidence. No such Witness Statement was prepared for the Applicant. At the Directions Hearing on 24 November 1998 the parties were ordered to prepare 'a schedule of issues'. This order was not complied with and we have not had such a schedule. We have however had the benefit of the particulars attached to the second Originating Application which was presented on 18 December 1998. The Applicant gave her evidence by reference to most of those particulars.

6. Evidence in support of the Applicant was given by her husband and we also had regard to statements made by character witnesses, namely Jane Stokes, Mrs M Choudhury, Mr J S Flora and Miss Christine Wade. Despite her criticisms of the Applicant's procedures the Applicant did not call any evidence either from her various trade representatives, or from Mr Aziz. The Applicant gave evidence for 13 hours.

7. Evidence for the Respondent was given by Kay Sinclair, Unit Manager, Sharon Bowyer, Deputy Unit Manager, Josephine Kwhali, Head of Service for Children's Resources, Linda Devlin, Family Support Manager and Jean Daintith, formerly Assistant Director, and currently Deputy Director (Children/Families). We had one agreed bundle of documents and we also had regard to two separate pages from the Manager's book (A1 and A2).

8. The Applicant has made claims for both race and sex discrimination. In her own evidence and in the cross-examination of the Respondents' witnesses, no real distinction has been drawn between the two. The Applicant is Asian and her claim for race discrimination appears to be based on the fact that she is from an ethnic minority, although many of the people with whom she worked and some of her superiors were themselves from ethnic minorities. All the people with whom the Applicant worked closely were female and all the Respondents' witnesses were female.

9. The Applicant's claims of discrimination arise from various unrelated incidents covering a period of time from January 1996 to January 1998. The Applicant was given a final written warning on 19 December 1997. She went off sick on 5 January 1998 and never returned to work in the normal way until her resignation on 16 September 1998.

10. The first Originating Application was presented on 6 May 1998 and having regard to the statutory time limit, all events prior to 7 February 1998 were out of time. Indeed, the only events which fall within the three month time limit are the Stage 3 Grievance on 17 March 1998 and the final appeal against the warning letter on 24 April 1998. There was however, correspondence between June and September 1998 which the Applicant claims led to her resignation. One of the Applicant's claims was that there was a general conspiracy against her and in the circumstances, we have given detailed consideration to each of the separate incidents about which the Applicant had complained.

11. In various respects there has been a conflict between the evidence given by the Applicant and the evidence of the Respondents. Where there has been a conflict we have preferred the evidence given by the Respondents. We found all of the Respondents' witnesses to be good witnesses who gave their evidence clearly and concisely, and we accept their evidence that in their dealings with the Applicant they did, at all times, try to be fair and reasonable. We do take account of the fact that English is the Applicant's second language but nevertheless, we did find her evidence to be both unclear and inconsistent in many respects. In relation to the incident of the funeral on 9 September 1996 the Applicant stated in her particulars and in her evidence in chief that she had gone to the funeral of her sister, but under cross-examination she said that it was in fact her cousin's sister, and subsequently said it was her cousin but 'she was like a sister to me'. In relation to the Disciplinary Hearing on 12 December 1997 the Applicant stated that she had had no chance to put her side of the story, although the contemporaneous notes of that hearing show that the Applicant and her husband, and her trade union representative all had every opportunity to speak and did so. In relation to the issue of a transfer, the Applicant stated in cross-examination that transfer did not form any part of the Grievance or Disciplinary procedure. However, after a short break when she went outside with her husband, she changed her answer, to say that the transfer was a part of the Disciplinary and Grievance Procedure.

4. The facts as found by the Employment Tribunal are set out in paragraph 12 which contains a number of sub-paragraphs, namely (a) to (z) and then (aa) to (aj). It is not appropriate to set those out in this judgment, but they should be referred to by anyone reading this judgment.
5. The submissions of the parties are recorded in paragraphs 13 to 17 of the Extended Reasons. Again, I will not set them out but they are there to be referred to. In paragraphs 18 and 19 of the Extended Reasons the Employment Tribunal refer to the law. In those paragraphs they refer to the correct provisions of the relevant legislation and to the correct authorities. We pick out three of those authorities, namely (a) in respect of the constructive dismissal claim the case of Western Excavating (ECC) Ltd v Sharp (1978) 1 CR 221 and (b) in respect of the claims under the Sex Discrimination 1975 and the Race Relations Act 1996 the King case and the Zafar case. The relevant statutory question under those Acts is referred to in the Zafar case, at paragraph 10 of the judgment where Lord Browne-Wilkinson said this:

"'Although, at the end of the day, section 1(1) of the Act of 1976 requires an answer to be given to a single question (viz. has the complainant been treated less favourably than others on racial grounds?) …"

He then goes on to point out that it can be convenient to divide that question into two by reference to less favourable treatment and racial grounds. But the statutory question which the Employment Tribunal have to answer and therefore clearly had in mind by their reference to the sections themselves and to that case is: "Has the complainant been treated less favourably than others on racial grounds or by reason of her sex?"

6. We have had the benefit of oral submissions from Mr Abdulla and on occasions these were added to by his wife. Together they put Mrs Abdulla's case to us clearly and we are grateful for that. They have also helpfully provided us with a typed skeleton argument which identifies the nature and grounds of the appeal. I shall return to that in a moment.
7. Our function today is to consider whether or not a reasonably arguable point of law arises. As to that, it is important to have regard to the relevant legal test and background. We have to ask ourselves whether on a fair reading of the Extended Reasons there has been an error in law.
8. Additionally, in their Notice of Appeal and in their skeleton, Mr and Mrs Abdulla raise an issue as to bias and the approach that this Tribunal has to adopt to assessing whether or not there has been bias or procedural unfairness is shown, for example, in the case of Peter Simper & Co Ltd v Cooke [1986] IRLR 19. The relevant passage is paragraph 10 of the judgment of Mr Justice Peter Gibson (as he then was). That passage accords with the approach in R v Gough [1993] AC 646, which is referred to in the head note at p.647 where Lord Goff says

"... The test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand. ..."

That test was also referred to in the recent Court of Appeal decisions of Locabail UK Ltd v Bayfield Properties Ltd (which we have seen reported in the Times). We have also had regard to the passage in the speech of Lord Browne-Wilkinson in the Pinochet case at [1999] 2 WLR 284 E/G.

9. After that recitation of authorities we return to the general statement of the approach which is one which has regard to the view of an objective observer as to whether or not there has been bias or procedural irregularity.
10. The other area of law which I should refer to is the approach that this Tribunal takes to the consideration of Extended Reasons and in this context we have had particular regard to Meek v City of Birmingham District Council [1987] IRLR 250 and in particular to the well known passage at page 251 from the judgment of Lord Bingham, where he says:

"It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …."

That passage is commented on by the Court of Appeal in High Table Ltd v Horst [1998] ICR 409 at 420E to F, where Lord Justice Peter Gibson said this:

"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."

11. The conclusions of the Employment Tribunal are set out in paragraphs 20 to 41 of the Extended Reasons as follows:

"20. The Applicant's claims to this Tribunal are contained in the two Originating Applications presented on 6 May 1998 and 18 December 1998. The first claim was made whilst she was still in employment, although off sick and the second claim was made following the ending of her employment. Originally, the Applicant made claims against five Respondents, although on the third day of this hearing the allegations against David Behan and Colin Henstock were withdrawn.

21. This case has occupied this Tribunal in hearing evidence and submissions over six days and we have had regard to a large number of documents. If any particular document or any piece of evidence is not referred to in this decision, that is not taken as indicative that it has not been considered.

22. We do agree with Mr Cadoo that the Applicant has adopted a 'scatter-gun' approach and it is significant that the individual events about which she complains all occurred during 1996 and 1997. Despite the fact that she now alleges all these incidents were incidents of race and sex discrimination, she did not in fact make such complaints at the time and never ever did she use the Discrimination, Harassment and Victimisation Procedure of the Council.

23. The Applicant has made various complaints of procedural defects within the Grievance and Disciplinary Procedures, but again it is significant that whilst she was at all times represented by various trade union representatives and consultants, none of these have attended this hearing to support her allegations.

24 Greenwich Council provides its services within an area in which there are many and varied ethnic minorities and the Council's own workforce does also encompass many and varied ethnic minorities.

25 The Applicant appeared to be basing her claim for race discrimination on black versus white and in her evidence did not seek to differentiate between one ethnic minority and another. Nevertheless, her claims against Kay Sinclair and Josephine Kwhali are themselves claims against non-whites. The Applicant also worked with an all-female nursery staff, comprising various ethnic minorities and we do note that, although four staff were present at the 'wet chair' incident, the Applicant was the only one to take offence.

26 The Applicant's husband's evidence was highly charged and emotive. During the course of his evidence he made allegations of discrimination against Jean Daintith, David Behan, Alan Graham, Greenwich Council, Greenwich Council officials and the elected Councillors. However, Mr Knowles told us that this evidence was by way of background only and was not to be taken as making any new claims.

27 Breach of Contract

The claim for breach of contract appears to relate to an alleged failure by Greeenwich Council to pay the severance payments However, no evidence at all has been given to us about this matter and in the circumstances, we find that the Applicant has not proved her claim and the breach of contract claim is dismissed.

28 Sex Discrimination

We find ourselves mystified by these claims and cannot understand the basis on which they are made. The Applicant worked in an all-female environment and her managers were themselves female. During the course of the Applicant's evidence, both in chief and in cross-examination, she never mentioned any anti-female remarks or anti-female culture, nor was it ever suggested that any of the actions taken against her were taken because she was herself female. These claims have absolutely no merit whatsoever and are dismissed.

29 Race Discrimination

The Applicant's claims appear to centre on race discrimination although, as we have said above, the Applicant has never attempted to point to any differences between the various ethnic minority groups. She herself is Asian but none of the Respondent's witnesses were ever questioned about their own feelings towards Asians.

30 In the course of her evidence the Applicant agreed that managers have a duty to manage the staff under them, she agreed that in certain circumstances, disciplinary action could be appropriate and she agreed that the Sickness Monitoring Scheme was also appropriate. Nevertheless, when any such actions were taken against her she immediately saw the actions as an act of racial discrimination. It has been a feature of the evidence before us that, almost without fail, whenever the Applicant was confronted with a supervision session, a Sickness Monitoring Meeting or a disciplinary matter, then she either made a complaint of harassment, sought union advice or went off sick, or a combination of all three.

31 The Applicant had the worse sickness record within the unit and was off sick for the last 8½ months of her employment. The Sickness Monitoring Scheme was operated properly and could not be regarded in any way as any form of racial discrimination.

32 The Disciplinary Procedure was also operated very fairly and in accordance with the Council's procedure. The Applicant has alleged a lot of procedural faults, but we can find none. She was allowed representation and allowed to have her say on each occasion and on the evidence we have heard, the warnings she received were well warranted.

33 There was in fact a long delay in the hearing of the Grievance. Various factors accounted for this, being the Applicant's own sickness, the unavailability of the Applicant's trade union representatives, the Respondents' holidays and the complications of the concurrent disciplinary action. It would have been better if the Grievance had been dealt with more expeditiously and it would certainly have allayed some of the Applicant's anxiety. However, there is no evidence that the Grievance was delayed purely because of the Applicant's race, nor can we infer such discrimination.

34 The Applicant has pointed to all the various events we have outlined as being acts of discrimination against her. In each case we have heard detailed evidence and cross-examination about each event and we accept the Respondent's evidence in relation to each event. They were not acts of discrimination and almost entirely the matters about which the Applicant complained were matters where the Respondents were attempting to manage the Applicant and persuade and encourage her to carry out her contractual duties. There is no evidence of any direct race discrimination and having analysed all the incidents we find that we cannot infer that there was any racial discrimination. All the Applicant's complaints in this regard are dismissed.

35 Constructive Dismissal

The Applicant resigned by way of the letter dated 12 September 1998, ending her employment with effect from 16 September 1998. She claims constructive dismissal and in this she has to show that she resigned pursuant to a serious breach or breaches of her contract of employment by the Respondent Council. Mr Knowles, on the Applicant's behalf, submits that this is a 'last straw' case in that there were various incidents over a period of time which culminated in a 'last straw' event enabling the Applicant to resign. We do not find that this is the case. The series of events culminated at the end of 1997 when there was the Disciplinary Hearing and when the Applicant received her written warning. Shortly after that the Applicant went sick and never did return to work apart from attending various meetings. In any event, the various incidents are themselves not breaches of contract and can in no way be construed as incidents leading to a loss of confidence. As we have said, the various incidents were acts of management in attempting to manage the Applicant and help her do her job. It has become clear that the Applicant did not like discipline and disciplinary events had the effect of keeping her away from work sick.

36 The Applicant's main claim in relation to loss of confidence appears to stem from Josephine Kwhali's letter of 14 July 1998. This is the letter which the Applicant found offensive and aggressive, but on any reading it is clearly an honest and genuine attempt to meet the Applicant's concerns and get her back to work. The Applicant had no contractual right to a transfer but nevertheless, Miss Kwhali did agree to a transfer, provided that the Applicant could return to work. In considering the 17 June meeting and the subsequent correspondence, there is nothing at all which can amount to any justification for the Applicant's leaving.

37 For some reasons which she never explained to us, the Applicant decided against the transfer option and eventually, with the assistance of Mr Aziz, decided to accept the voluntary severance option which was offered to her. It is also significant that the Applicant's leaving date, 16 September 1998, was exactly the date when the Applicant's sick pay entitlement expired.

38 The Applicant has not explained why she did not wish to return to work on transfer to another nursery, but we are quite satisfied that it was not Miss Kwhali's attitude that prevented her from so doing. We are however, satisfied that it was the Applicant's own decision to leave her employment and she did so on the expiration of her sick pay entitlement. She also did so with the assistance of Mr Aziz, who negotiated for her a voluntary severance payment. These were the reasons why the Applicant left her employment. The Respondents have not committed any breach of contract, either express or implied and the Applicant's claim for constructive dismissal is dismissed.

39 This has been a sad case. The Applicant and her husband appear to have had genuine concerns about their treatment, but we are quite satisfied that those concerns were not in any way related to the race or sex of the Applicant.

40 Kay Sinclair. Sharon Bowyer, Josephine Kwhali, Linda Devlin and Jean Daintith, each in their separate ways, tried their best to help the Applicant continue in her working environment. They have each in turn been met with criticisms of unlawful discrimination and harassment and these criticisms have even extended to others who have played no part in these proceedings.

41 It has, as Mr Cadoo has pointed out, been a 'scatter-gun' approach and a 'scatter-gun' approach with singularly little merit. It is an unfortunate fact that cases such as this do considerable harm to the cause of good race relations to which these Respondents are committed."

Standing back for a moment and having regard to those paragraphs against the findings of fact made in paragraph 12, in our judgment it is not reasonably arguable that the Employment Tribunal did not pose themselves the correct questions in law and answer them. In our judgment (a) the findings of fact that they have made clearly justify the conclusions that they have reached, and (b) they answer the relevant statutory questions and questions posed at law, as to whether or not there was a constructive dismissal and in respect of the claims brought under the Race Relations Act and the Sex Discrimination Act.

12. We turn now to the other matters raised by Mrs Abdulla both in the Notice of Appeal and very helpfully summarised in the written submissions under four headings, namely: bias, violation of Race Relations Act, Sex Discrimination and violation of Employment Law. Dealing with those matters broadly, the allegation as to bias also relates to matters raised in the affidavits put in by Mr and Mrs Abdulla and they have added to the points made therein orally before us. In particular, Mrs Abdulla referred to the pressure she felt under in the witness box. Pressure for witnesses is perhaps unfortunately an inevitable part of the litigation process. In this case she was represented and, as I have already mentioned, gave evidence for a very long time.
13. Additionally the main thrust of the allegations made by Mr and Mrs Abdulla and the main thrust of the submissions made to us today (and, I am not going to deal with each of the allegations and submissions separately) were that Mrs Abdulla's case was either not put properly, or was not considered properly in the sense that certain documents either were not properly looked at, were not looked at all or were not given sufficient weight. Additionally, Mr and Mrs Abdulla have referred to comments made by the Chairman during the course of the hearing which they say gave them the impression that he had made up his mind at an early stage during the course of the proceedings.
14. Having regard to those allegations and assertions (and accepting that they represent the views of Mr and Mrs Abdulla) we have to consider whether, having regard to those assertions an objective observer would have concluded that there was bias or procedural unfairness in this case.
15. We are aware that this will come as a disappointment to Mr and Mrs Abdulla but it does seem to us that looked at through the eyes of the third-party observer and, accepting the factual matters that they advance, that they do not give rise to a reasonably arguable case in law that there was bias or procedural irregularity in this case.
16. Part of the way in which they put their allegation of bias is that in their minds the Employment Tribunal must have been biased because they did not find the facts as Mr and Mrs Abdulla asserted them to be. It is understandable that they are disappointed at losing the case before the Employment Tribunal but, as we have attempted to explain to them during the course of today's hearing, it is not our function to re-try and re-hear the facts. In our judgment, in very large measure that is what they wish to do and absent an error in law, bias or procedural irregularity it is not something which they can do before this Tribunal.
17. Turning to the other points raised under the headings "Violation of Race Relations Act, Sex Discrimination, Violation of Employment Law", as we have already said, in our judgment the Extended Reasons do not demonstrate an error of law in posing and answering the relevant statutory questions. The balance of the points raised under those headings by Mr and Mrs Abdulla are essentially a repetition of the points that certain matters were not properly taken into account by the Employment Tribunal. In our judgment, looking at those allegations again under the heading "Perversity" no reasonably arguable point of law is raised. It seems to us that the conclusions reached by the Employment Tribunal are well within the range of decision open to them and it is apparent that they had evidence before them upon which they could reach their conclusions.
18. We accept that there are certain points that Mr and Mrs Abdulla have put to us that are not expressly raised, or dealt with in the Extended Reasons, but this does not mean that the Employment Tribunal have failed in their statutory task. In our judgment, when read as a whole, the lengthy Extended Reasons explain clearly to Mr and Mrs Abdulla why Mrs Abdulla lost this case. At bottom, the essential reason is that the Employment Tribunal made findings of fact which led inevitably to the complaints made by Mrs Abdulla being dismissed.
19. We are aware Mr and Mrs Abdulla are disappointed with, and disagree with, those findings made by the Employment Tribunal but the matters they have put before us do not raise any points of law that are reasonably arguable and therefore, we dismiss this appeal.