United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS D Z E WILLIAMS In person, assisted by MR G MORTON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE CLARK

1. The Appellant, Miss Williams, was employed by the first Respondent Trust as a Health Visitor. She started as an agency worker in November 1996, was appointed to a permanent position in February 1997 and was summarily dismissed on 26 November 1998.
2. She presented 2 Originating Applications to the Employment Tribunal. The first, dated 19 January 1999, alleged racial discrimination and sexual harassment. The second, presented on 8 June 1999, alleged racial discrimination, sexual harassment and unfair dismissal.
3. Those complaints were heard by an Employment Tribunal at London (North) (Chairman: Mr M S Rabin) on 7 – 9 September 1999. By a decision with very full extended reasons 23 September 1999, all complaints were dismissed. Against that decision she now appeals.
4. The Appellant is black and of African – Caribbean racial origin. So too was her line manager, Ms Linda Edward-Augustin.
5. During the Appellant's employment management received complaints about her. The material complaint came from a Social Worker, Dionne Thomas. She wrote to a manager, Mrs Lynch, who preceded Ms Edward-Augustin as the Appellant's line manager, on 26 June 1998. The complaint was that the Appellant had failed to recognise child protection issues arising out of a complaint of sexual abuse by a child SS, against her stepfather.
6. Disciplinary proceedings followed. On 16 October 1998 Mrs Hutt, who conducted those proceedings, concluded that the Appellant was guilty of professional negligence amounting to gross misconduct in connection with the case of SS. She summarily dismissed the Appellant. That decision was formally confirmed by a letter dated 26 October 1998.
7. Against that decision the Appellant appealed internally. Her appeal was dismissed by a panel consisting of Elizabeth Bridges, Acting Director of the Trust and 2 members of the Trust, following a hearing held on 25 March 1999.
8. Having been dismissed by Mrs Hutt, the Appellant then made a number of allegations for the first time. She accused Mrs Lynch of sexually harassing her, a charge which the Employment Tribunal found to be totally false and malicious. She made a complaint of racial discrimination, comparing herself with the treatment of the Social Worker Dionne Thomas. The difficulty that the Employment Tribunal found themselves in was that there was a dispute of fact as to Ms Thomas' racial origins. She did not give evidence before the Employment Tribunal. The Appellant said she was white, the Respondent's witnesses said she was of mixed race (being part African – Caribbean). The Employment Tribunal accepted the Respondent's evidence and concluded that she was of the same ethnic group as the Appellant. There was no difference in race. Further, although expressing some doubts as to as to the sanction of dismissal, the Employment Tribunal concluded that the sanction was reasonable and in no way influenced by the Appellants race or ethnic origin.
9. The complaint of unfair dismissal was dismissed as being out of time, it being reasonably practicable to present it within time. It was dismissed for that reason, rather than adjourned pending the House of Lords decision in Regina –v- Secretary of State for Employment ex parte Seymour-Smith, the Appellant having between 1 and 2 years reckonable service. In fact, the House of Lords has now determined that case against the applicants. (2000) IRLR 263.
10. The further complaint of race discrimination and sexual harassment in the second Originating Application arose out of the conduct of the internal appeal hearing by Ms Bridges' panel. Following the Court of Appeal decision in Adekeye –v- Post Office (No. 2) (1997) IRLR 105, the Employment Tribunal found that that complaint was not justiciable, arising as it did from a post-termination of employment appeal hearing. However, even had they had jurisdiction to entertain that complaint, the Employment Tribunal were satisfied on the evidence that the appeal panel did not act in a discriminatory way. The Appellant would have lost on the facts.
11. In this appeal Miss Williams seeks to challenge the Employment Tribunal's findings of fact. As we endeavoured to explain on more than one occasion it is not our function to retry the case; our jurisdiction is limited to correcting errors of law.
12. The points of law which she seeks to take, in addition to a general plea of perversity which we think relates solely to the facts as found by the Employment Tribunal, are that the Employment Tribunal, and in particular the Chairman, misconducted the proceedings by exhibiting bias or, we add, the appearance of bias and by committing procedural irregularities.

BIAS

13. First, it is said that by granting a Restricted Reporting Order on the application of the Respondents, the Employment Tribunal showed bias against the Appellant. She needed the support of media coverage to persuade witnesses to come forward, who might otherwise by fearful for their jobs. We reject that submission. In the light of the allegations of sexual harassment which she made against Mrs Lynch we are satisfied that the Restricted Reporting Order was properly made.
14. Next, it is said that the Employment Tribunal was wrong not to hold over her complaint of unfair dismissal until after the Seymour-Smith decision in the House of Lords. That overlooks the fact that the Employment Tribunal dismissed that complaint as being out of time. Having heard additional submissions from Mr Morton of Counsel, who has assisted Miss Williams under the ELAAS pro bono scheme, on this question we are satisfied that the Employment Tribunal was entitled to find

(a) that the effective date of termination of the contract of employment was 26 October 1998

(b) the claim was not raised until the second Originating Application presented on 8 June 1999 and

(c) it was reasonably practicable for the Appellant to present her claim within the ordinary 3 month time limit.

15. Identical conclusions would have been reached had the Appellant additionally brought a claim of wrongful dismissal, that is breach of contract under the Employment Tribunal's (extension of jurisdiction) order 1994. She did not in fact do so.
16. Third, she complains that the Chairman ought not to have terminated the proceedings on the third day of hearing when a fourth day was allotted at a directions hearing held before the Regional Chairman, Mrs Mason in June 1999. In fact paragraph 11 of the letter sent to the parties after that hearing lists the case for 3 days, 7 – 9 September. Miss Williams is unable to show us any written amendment to that listing.
17. Fourth, she complains that the Respondent was allowed to lead irrelevant evidence. There is no indication as to what that evidence was or how that bears on the correctness of the Employment Tribunal's decision in law.

PROCEDURAL IRREGULARITIES

18. First, the Appellant complains that the Chairman indicated, in stopping proceedings on both the first and second days, that he had been trying to get some money for her from the Respondents, thus indicating that the Employment Tribunal accepted her complaints of race and sexual discrimination. That version of events is not accepted by the Chairman. In any event, even if an unsuccessful attempt at conciliation had been made by the Employment Tribunal that does not preclude it from deciding the case on the evidence at the end of the hearing.
19. Second, she complains that the Employment Tribunal prevented her from cross-examining Miss June Downing, the Third Respondent, because the Employment Tribunal indicated that they did not want to hear from her.
20. Miss Downing carried out the investigation into Dionne Thomas' complaint, which led eventually to the Appellant's dismissal by Mrs Hutt. We can well understand why, having heard from Mrs Hutt, the decision-maker, the Employment Tribunal found it unnecessary to hear from Miss Downing, who carried out the preliminary investigation.

CONCLUSION

21. Having considered the arguments raised by Miss Williams and Mr Morton on her behalf we are quite satisfied that this appeal discloses no arguable point(s) of law. Consequently it must be dismissed at this preliminary hearing stage.
22. Having delivered our judgment in this case Miss Williams made 2 further applications. First, an application for leave to appeal to the Court of Appeal. For the reasons which we have given we consider that the proposed further appeal has no real prospect of success and we shall dismiss that application.
23. Secondly, she applies to us for a copy of the Notes of Evidence taken by the Chairman, Mr Rabin below. In view of our findings in this appeal and our refusal of leave to appeal, there is no requirement for Chairman's notes and we dismiss that application similarly.