United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS N BRAGANZA (OF COUNSEL) INSTRUCTED BY: BURTON & CO STONEBOW LINCOLN LN2 1DA


 


JUDGE CLARK:-

1. By an Originating Application presented to the Nottingham Employment Tribunal on 27^th January 1999, the Appellant, who is black, complained of direct racial discrimination by the Respondents, her employer, The Oliver Group plc and Mr Ian Sunderland.
2. She had commenced employment as a supervisor at the company's Lincoln shop in November 1996. Her branch manager was Mr Sunderland.
3. Her complaint centred on her treatment by Mr Sunderland. Although her principle complaint related to her failure to secure promotion to the position of assistant manager at the branch, the decision not to appoint her to that post was taken by an interviewing panel consisting of Mr Sunderland and the Hull Branch Manager, Miss Hagman.
4. In relation to her various complaints the Employment Tribunal made the following findings of fact:-

(i) In about October 1997 her hours of work were reduced from 38 to 30 per week by Mr Sunderland without notice. He told her that the reduction applied to all supervisors across the board. The Appellant checked with the supervisor at the Meadowhall (Sheffield) branch to discover that her hours had not been reduced. She accused Mr Sunderland of lying. The Tribunal found, accepting Mr Sunderland's evidence on this point, that he had said to the Appellant that the reduction applied to all supervisors in his area. That was true.

(ii) At about that time, so the Appellant alleged, Mr Sunderland agreed with an assistant, Elaine Veal, who is white, that her hours would be recorded as 27 when in fact she worked 25. That, the Tribunal found, was to retain Ms Veal in the Employment. Mr Sunderland disputed that contention, but on this issue the Tribunal preferred the evidence of the Appellant.

(iii) In this summer of 1998 the Appellant requested two weeks' holiday but was only allowed one week beginning on Monday 27^th July. On Saturday 1^st August she telephoned Mr Sunderland to report that she had a dental abscess and would be off sick for a few days. During the weekend she was seen out by a fellow employee who reported that sighting to Mr Sunderland. A heated telephone conversation ensued between the two of them. It appears that subsequently Mr Sunderland was advised by personnel that what he had said during that conversation with the Appellant amounted to a dismissal. He was told to telephone her and apologise. That he did and she remained in the Employment. Mr Sunderland offered her the week off but requested a medical certificate, something which she was not contractually required to provide for an absence of seven days or less.

(iv) On 23^rd October 1998 the Appellant was interviewed for the post of Assistant Manager. She was one of six candidates. The other 5 were external applicants, all of whom were white. The Tribunal accepted the Appellant's evidence that Mr Sunderland provided a list of questions which she would be asked in advance of the interview and that he suggested she prepare a presentation, something which the Tribunal, despite Mr Sunderland's denials that it had not happened, thought showed that he wished the Appellant to succeed in her application.

The Appellant was placed fourth in order of merit of the six applicants following the interview process. The Tribunal rejected a suggestion that Miss Hagman wanted to appoint the Appellant. The successful candidate Mr Hobson was said by Mr Sunderland and Miss Hagman to be an outstanding candidate, a view which the Tribunal felt able to accept having seen Mr Hobson give evidence.

(v) Following the interview a mystery shopper visited the store at Lincoln whilst the Appellant was acting up as manager. A poor assessment report was made. Although that did not, the Tribunal found, influence the decision on appointment to the Assistant Manager's job, subsequently the Appellant's pay rate was reduced from £4.00 to £3.70 per hour. Mr Sunderland told her that at the same time that he told her that she had been unsuccessful in her application for the Assistant Manager's post.

5. In addition to their findings of fact the Tribunal directed themselves as to the law, in particular, they reminded themselves of the well worn passage in the judgment of Lord Justice Neill in King v Great Britain China Centre [1991] IRLR 513, 518. Somewhat surprisingly, they are also referred to the decision of the Court of Session in Glasgow City Council v Zafar [1997] IRLR 229. This case was heard by the Tribunal in June and July 1999, after the House of Lords decision in Zafar had been reported see [1998] IRLR 36. However, the Court of Session's approach was upheld by the House of Lords in that case and nothing turns on this point.
6. Having considered the submissions of the parties' representatives the Tribunal expressed their conclusions at paragraphs 8-16 of their Extended Reasons dated 23^rd August 1999 as follows:-

(i) The Appellant was less favourably treated, comparing like with like (that is, an appropriate hypothetical white comparator) in 3 respects:-

(a) the requirement that she provide a medical certificate

(b) The reduction in her hours in October 1997 without notice

(c) Her non-selection for the post of Assistant Manager

(ii) They were not satisfied that the reduction in pay in October of itself amounted to less favourable treatment.

(iii) They accepted the Respondent's explanation for the Appellant's non-selection for the post of Assistant Manager. The better candidate, Mr Hobson, was appointed.

(iv) No satisfactory or indeed any explanation was provided for her not being given notice of the reduction in her hours nor for the requirement that she provide a medical certificate in August 1998 when she was not contractually obliged to do so.

(v) Mr Sunderland displayed shortcomings in his managerial style. He was not an entirely reliable witness. He performed badly in the witness box. The question was whether in these circumstances the Tribunal considered it right to draw an inference of unlawful racial discrimination in respect of those matters for which no satisfactory explanation had been given. The Tribunal declined to do so. They thought that Mr Sunderland's shortcomings as a manager would have applied to anyone regardless of race. Accordingly, the complaint was dismissed.

7. In this appeal Miss Braganza takes the following points; the first and not her most serious complaint is that there were three principle conflicts in the evidence between the accounts given by the Appellant and Mr Sunderland. As to those two in relation to Ms Veal and the question of whether or not the Appellant was provided with a list of questions before the interview of Assistant Manager's post the Tribunal, submits Ms Braganza gave reasons as to why they accepted the Appellant's evidence.
8. However, in relation to the reduction in hours they give no explanation as to why they preferred the evidence of Mr Sunderland. That observation is correctly made but in our judgment it does not found an arguable point of appeal in this case. It seems to us that the Tribunal quite properly evaluated the evidence, where it conflicted, of the two witnesses before them and made judgments, not necessarily accepting simply one persons word against the others but dealing with the conflicts on their individual merits. We can see nothing wrong with that approach.
9. The real complaint in the appeal is directed to the way in which the Tribunal dealt with the final question which was before it as to whether or not to draw an inference of unlawful discrimination. Ms Braganza has referred us to the unreported decision of this Tribunal Mr Justice Mummery presiding, in Qureshi v Victoria University of Manchester [1996] EAT 484/95 21^st June 1996.
10. The real point in that case, as we understand it, is that where a number of individual complaints are made by an Applicant on the basis of which he invites the Tribunal to draw an inference of unlawful discrimination it is not right for the Tribunal to adopt a piece-meal approach. That is to say, to treat each individual allegation as a separate complaint and focus on each in turn to decide whether or not it is proper to draw an inference of unlawful discrimination. It is for the Tribunal to make the necessary findings of primary fact in the case and then to stand back and look at the picture as a whole in order to determine whether or not to draw the inference of unlawful discrimination.
11. In our judgment, that is precisely what this Tribunal did. They were obliged to deal with each allegation separately for the purpose of determining whether or not less favourable treatment and a difference in race were made out. In those cases where the Appellant succeeded in overcoming those two hurdles, it was then for the employer to provide an explanation. Where an adequate explanation is provided and accepted by the Tribunal then that particular allegation goes no further to assist the Appellant. However, where no satisfactory or no explanation is given for instances of less favourable treatment where there is also a difference in race it is for the Tribunal to look at the matter as a whole in order to determine the critical question as to whether or not it would be right to draw an inference of discrimination adverse to the Respondent. That is what this Tribunal did. They looked at the whole picture and then asked themselves the question at paragraph 16 of their reasons as to whether the Applicant's treatment was, in any way, a result of racial discrimination or whether it was because of the inherent shortcomings of Mr Sunderland which would have been applied to anyone in the same circumstances irrespective of their race. As in the case of Zafar, they concluded that whereas the Appellant had been unreasonably and badly treated, that was not on the grounds of her race. Such treatment would have been afforded to any employee in a similar position regardless of their race.
12. In these circumstances, we have concluded that no error of law is made out in this case, and accordingly, at this preliminary hearing stage, we must dismiss this appeal.