United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M BARKLEM (OF COUNSEL) ELAAS


 


HIS HONOUR JUDGE SMITH:-

1. This is an application by the Applicant before the Employment Tribunal, namely Ms Padghuker, for leave to proceed to a full hearing of an appeal, she being an Indian lady, against the decision of an Employment Tribunal held at London North over 7 days of which extended reasons were sent to the parties on 22^nd September 1999, whereby the Employment Tribunal held that the employers, St Martin's Food Products Limited, did not discriminate against the Applicant on the grounds of race, and that her complaint of unauthorised deductions from her pay should stand dismissed.
2. With regards to the complaint of unfair dismissal, that was stayed, pending the outcome of the well known case of Seymour Smith v Perez. Before we say anything else, we must first of all say that we have had the benefit today of hearing a very helpful submission from Mr Barklem who has taken this matter up on behalf of Ms Padghuker through the ELAAS Scheme and we have taken into account his representations on her behalf. We have also taken into account the papers and submissions that Ms Padghuker has herself placed in front of us, which are fairly voluminous, we make no complaint about that but simply observe that we have of course been through those papers as well.
3. We should add straightaway, that we can only allow this matter to proceed to a full hearing if we are satisfied that it is arguable that the Employment Tribunal has made an error of law in some way or another, in particular, we cannot allow the matter to proceed by way for appeal in circumstances where what is really being sought is a rehearing of fact. This is simply beyond our jurisdiction. Our jurisdiction is expressly limited to appeals on points of law and only on points of law as of course Mr Barklem very properly advised Ms Padghuker this morning and informed us that he had done so. Next, we are very conscious of the fact that the Applicant presented her case in person before the Employment Tribunal and also has done so before us in the sense that she has herself prepared the documentation relied upon in support of the appeal in what is a very difficult and very sensitive area of the law, that is to say, discrimination on the grounds of race, and we have fully taken that into account. Next, we understand fully that the Applicant before us feels very strongly indeed that she has been discriminated against on the grounds of her race and will probably always believe that to be the case, in what we repeat, is in any case, and this is no exception, a very sensitive and difficult area of the law.
4. Before we consider the specific grounds of appeal, we should shortly summarise the decision and it is no more than a summary. For the full effect of the decision, of course, reference must be made to the decision itself. The Employment Tribunal recorded that the Applicant's complaints of unfair dismissal and failure to provide her written particulars of employment should be stayed by reason of the decision in Seymour-Smith. They noted that the claim for unauthorised deductions was out of time, since it was not presented until July 1998, when the last alleged wrongful deduction was in December 1997. They also recorded, at paragraph 4, that the Applicant had accepted, according to their findings (and we emphasise that of course, because it is their findings that we have to be governed by in this regard) that her victimisation claim as pleaded by her could not succeed because the act that she relied upon at that time, according to the findings of the Employment Tribunal, namely her refusal to provide a witness statement to her employers in defending a Ms Kaveh's complaint of race discrimination against them was not a protected act within section 2 of the Race Relations Act 1976. So that, according to the findings of the Tribunal, she accepted at that stage that she could not pursue that matter, and that is a finding that the Tribunal have made.
5. The Employment Tribunal went on to make detailed findings of fact in paragraphs 8-19 of the decision. From these it appears that the Applicant was employed as Quality Assurance Assistant from March 1997 on a 3 month probationary period. At paragraphs 10 and 11, the Employment Tribunal made detailed findings of fact with regard to the difficulties that they found had arisen between the Applicant and a Ms Kaveh, who until her dismissal by the employers early in 1998 as we infer with regard to the date, was a Quality Control Supervisor.
6. The Employment Tribunal found as a fact that the employer's understanding was that the Applicant was complaining that Ms Kaveh had harassed her and that she was not supportive of Ms Kaveh's claim against the employers. It was in those circumstances, according to the findings of the Employment Tribunal, that they asked the Applicant if she was prepared to provide a witness statement which the Applicant declined to do. The Employment Tribunal expressly found that the Applicant was concerned that she had been asked by Mr Chattock, the Quality Assurance Manager, to write a statement on standard police statement forms, and certainly that is an unfortunate feature. We are quite satisfied, however, that the Employment Tribunal took that into account when they were looking at the overall question of what evidence they accepted on the vital question as to whether there was an inference to be drawn of there being discrimination on the grounds of race here.
7. To continue the summary of the Employment Tribunal's decision, having referred to the Respondents rules for clocking in and out and in particular the requirement to clock out before removing protective clothing and the differing sanctions dated respectively 7^th December 1997 by Dr Cronin and that of February 1998 by Mr Cheyne in the new handbook, the Employment Tribunal made detailed findings as to the events of the 7^th May 1998 which gave rise to the Applicant's dismissal and as to the disciplinary hearing and appeal which followed. In particular, it is quite clear from paragraph 18 of the Employment Tribunal's decision that they had fully in mind the contents of the Applicant's very detailed letters which of course we have read because they were in the bundle before us of particularly those of 11^th May and 22^nd May 1998, which set out the Applicant's case in great detail and with very considerable emphasis. There is no doubt that the Employment Tribunal had those matters in mind and we cannot accept the suggestion that is made that the Employment Tribunal did not consider the documents before them.
8. In paragraph's 20-24 of the decision, the Employment Tribunal set out the submissions made to them on both sides. In regard to that and having regard to the submission made to us this morning we note that at paragraph 22 the Employment Tribunal had cited to them, as they made clear, by counsel who appeared on behalf of the Employers, the decision in the Court of Appeal, very well known in the context of race discrimination of King v Great Britain China-centre 1991 IRLR 530 and the decision of the House of Lords in Zafar v Glasgow City Council 1998 IRLR 36 which approved King. So it is quite clear that this Employment Tribunal had the most important authorities in this very difficult field fully in front of them and the Tribunal quoted the submission made to them with reference to Zafar as follows:-

"With reference to Zafar Miss Smith noted that while the Tribunal might consider the Respondents conduct unfair, that did not lead to a finding that the Respondent had discriminated against the Applicant on the ground of race. She submitted that there was no evidence to suggest there had been discrimination on the ground of race. In those circumstances she submitted that the complaint should be dismissed".

So that the Tribunal had in mind the importance proposition for which Zafar is properly cited, namely that it does not follow from unfairness that there is race discrimination. Of course it is a factor that can lead to a conclusion of race discrimination but one does not follow from the other.

9. In paragraph 23, the Employment Tribunal recorded that the Applicant made detailed submissions to them referring to a written submission to which were appended various documents. They also recorded that for the first time in the course of the submissions to them made at the close of all the evidence and after all the evidence had been heard, the Applicant sought to resurrect her case, as they would have put it, on victimisation by reliance on a different protected act namely an allegation that she had positively helped Ms Kaveh in her case against the Respondent and was going to be a witness for her, and that was the protected act she sought to rely upon. This suggestion, according to the findings of the Employment Tribunal by which we are bound, emerged for the first time in submissions after all the evidence had been heard. Such a case had not been made in the Originating Application nor as far as we can see in the detailed letters of May 1998 setting out the Applicant's case and had not been put to the Respondents' witnesses.
10. Despite the fact that the new complaint of victimisation had been brought up so late it is noteworthy that the Employment Tribunal considered it and made findings in respect of it which we regard as careful findings and findings they were entitled to make, at paragraph 28 of their decision, which is introduced by the words that the Tribunal "went on to consider the new complaint of victimisation which the Applicant brought up for the first time in her final submissions." They went on to deal with it although they considered it had been brought up too late. They concluded as a finding of fact in the last sentence of that paragraph that they were of view that the Respondent would not have been aware that Applicant was going to assist Ms Kaveh in pursuing her complaint against the Respondent. In those circumstances, the Tribunal would have dismissed such a complaint of victimisation in any event. Once again, there is no doubt that the Applicant hotly disagrees with that conclusion of fact but that is the conclusion which the Tribunal reached having seen and heard the witnesses on each side.
11. Having, in our judgment, set out the relevant principles in law applicable to the Applicant's claim of race discrimination, the Employment Tribunal expresses conclusions on this issue and on the issue of victimisation, not only in paragraph 28 to which we have already referred, but also in paragraph 27. There is no doubt that the Employment Tribunal were strongly critical of the circumstances giving rise to the Applicant's dismissal as Mr Barklem cited to us this morning. One of the important findings of the Tribunal in that paragraph is in these terms:-

"The Tribunal was of the view that the explanation for the Applicant's dismissal in those circumstances was inadequate or unsatisfactory".

There is no doubt in our judgment that the Employment Tribunal gave weight to that finding. The point that has been made to us is that having made that finding the way the decision reads is that in the very next breath, so to speak, there is this:-

"However, the Tribunal had no credible evidence before it either in respect of this matter or as background to suggest that the Respondent had ever discriminated against any employee on the ground of race."

The point is made to us forcefully by Mr Barklem that the Applicant feels a deep sense of injustice about that conclusion. We understand that. But, in our judgment, when one looks at the overall effect of the decision, there is no doubt that the Employment Tribunal had in mind the correct principles of law and there can be no doubt that over a very considerable number of days they had the clearest of opportunities to make their assessment as to whether or not the employers had been guilty of race discrimination against the Applicant. We have no doubt that they took into account the fact that the employer had acted in an adequate and unsatisfactory manner in relation to the dismissal and it was in those circumstances that they reached the conclusion that they did and we take the view that we cannot interfere with that conclusion and that it does not give rise to any arguable point of law by way of error in the approach for the Tribunal.

12. Similarly, the fact that the Employment Tribunal did not accept that the Applicant had been given a formal oral warning in relation to the incident described in paragraph 12, does not have the result that that finding in some way disqualified the Employment Tribunal from finding as they did or rendered inconsistent the findings that the Employment Tribunal made in relation to the overall credibility of the witnesses in regard to the key issue of race discrimination. That was a discrete point relating to an incident in April 1998 and in our judgment once again put in context of what appears to be a carefully reasoned decision, there can be no legitimate ground of appeal based upon that point.
13. We should add that, as appears from the decision, the Employment Tribunal went on to give detailed reasons, having dismissed the claim on grounds of race discrimination, for dismissing the claim for unauthorised deductions on various alternative bases which we do not think it necessary to set out since they are self explanatory.
14. It is next convenient and necessary to do justice to this application to address the points made by the Applicant herself, apart from the points made by Mr Barklem, by reference to the pagination of the lengthy document which the Applicant has placed before us dated 21^st December 1999, headed "No justice was done", so everybody knows which document we are referring to, and we mention various parts of that document.
15. First of all, at page 3 of that document, and we have numbered the paragraphs, they are unnumbered in the actual document itself, with regard to page 3, paragraph (1). We should say that the legal requirement is that the complainant must be presented to the Tribunal within the 3 month period, not that it be drawn to the attention of management.
16. With regard to the point sought to be made in of paragraph 2 of page 3, we take the view that that is a classic example of a difference of view being expressed by Dr Chronin and Miss Cheung, and the Employment Tribunal were entitled to accept the evidence of Dr Chronin in preference to that of Miss Cheung on that matter since that was a question of fact for the Employment Tribunal.
17. With regard to paragraph 2 of page 3, we have already said that in our judgment the Employment Tribunal was entitled to find as fact that the only complaint made of victimisation until the very end of the case, was based upon the refusal of the Applicant to give a statement against Miss Kaveh. With regard to page 4, paragraph (1), the Employment Tribunal found as a fact that the applicant was not given a pay rise because she had not completed her probation period sufficiently satisfactory. Here again, in our judgment, the Employment Tribunal were entitled to make that finding of fact, despite the evidence to the contrary of the Applicant.
18. Page 4, paragraphs (2), (3), page 5 and page 6 paragraphs (1), (2); These paragraphs, with respect to the Applicant, amounts to an understandable attempt to reopen questions of fact relating to the relationship between the Applicant, Miss Kaveh and the Respondents, and to seek to go behind the findings of fact made by the Employment Tribunal at paragraphs 10, 11 and 28 of their decision. As such they do not raise any arguable point of law in our judgment.
19. Page 6, paragraph (4); this paragraph repeats evidence given and arguments presented by the Applicant before the Employment Tribunal which the Employment Tribunal did not fully accept and which cannot now be reopened.
20. Page 6, the final paragraph, and pages 7-11, and what is set out in these pages, amount to a restating of the evidence given to the Employment Tribunal over a hearing that lasted 7 days by the Applicant and which conflicted with evidence called by the Respondent's witnesses. At the end of the day, the Employment Tribunal concluded at paragraph 27, by way of a finding of fact, that there was no credible evidence before it to suggest that the Respondent had ever discriminated against any employee on the ground of race. We fully appreciate that the Applicant firmly believes that the Employment Tribunal arrived at the wrong decision but that is a matter which was essentially for the Employment Tribunal to decide as an industrial jury and we cannot find if there is any arguable ground of appeal on point of law arising from those matters.
21. Accordingly, for all of those reasons, we can find no grounds of appeal which raise sufficiently arguable points of law and this application will have to stand dismissed.