United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr M Mullins (Counsel) Instructed by: Hounslow Law Centre 51 Lampton Road Hounslow Middlesex, TW3 1JG
For the Respondents	Ms I Simler (Counsel) Instructed by: Messrs Denton Hall 5 Chancery Lane Cliffords Inn London, EC4A 1BU


 


HIS HONOUR JUDGE PETER CLARK

1. Mrs Noel was employed by the Inner London Probation Service (ILPS) as a Probation Officer from 1^st February 1988. She is black. At all relevant times from and since 15^th January 1996 she was employed at the Women's Centre at 199 Arlington Road, Camden Town, London. Her Line Manager there was Mary Barnish, a Senior Probation Officer, who is white. The Women's Centre opened in 1993. Since April 1995 the permanent professional staff at the Centre included Ms Barnish, the Manager and four Probation Officers, two black and two white, split into teams of two. The black officers were in one team, the white officers in the other, we are told for the purposes of dealing more effectively with the client base. Changes in personnel occurred as follows. Initially the black officers were Aqualona Murray and Alison Keating. The white officers were Karen Hearson and Denise Shefras.
2. In August 1995 Ms Murray left and was replaced by Aurora McKay, who was black. Ms Keating left in January 1996 and was replaced by the Appellant. The Appellant suffered from Sarcoidosis, an inflammatory disease of the lung. She experienced shortness of breath and her Doctor recommended that she worked in a smoke free environment. Unfortunately, Ms Barnish and Ms Shefras were heavy smokers, as was Ms Keating prior to her departure. The Appellant raised the smoking issue on a number of occasions. That led to friction with Ms Barnish. On 27^th September 1996, the Appellant presented a complaint to the Employment Tribunal alleging:

"(1) Health & Safety

(2) Racial Harassment and Victimisation"

3. On 23^rd October 1996 a Chairman excluded the Health & Safety complaint and no appeal was made against that order within time. That issue is not before us today for the reasons which we gave in the judgment which I delivered at a Preliminary Hearing held on 24^th May 1999. The Race Discrimination complaint came before a Tribunal sitting at London North under the Chairmanship of Mr P R K Menon, over 6 days in March and June 1998, followed by a day's further deliberation by the Tribunal in Chambers on 20^th July 1998. By a reserved decision with very full extended reasons promulgated on 30^th September 1998 the Tribunal dismissed the complaint of Race Discrimination and it is in relation to the Tribunal's approach to causation on the race complaint that the appeal has been permitted to proceed to this full hearing, at which we have had the advantage of representations made on behalf of the Respondents, that is Ms Barnish and ILPS, as well as those on behalf of the Appellant.
4. The Tribunal's main findings of fact were summarised at paragraph 15 of their reasons in this way:

(1) The smoking issue was the major cause of the breakdown in relationships within the Centre, principally due to the fact that Ms Barnish took a dislike to the Appellant for continuing to raise smoking and Health & Safety issues. Ms Barnish, as we have said, was a heavy smoker.

(2) Ms Barnish acted unprofessionally in her dealings with the Appellant, she showed favouritism towards Ms Shefras.

(3) Three examples of biased and unprofessional conduct on the part of Ms Barnish were identified by the Tribunal:

(a) The manner in which she spoke to the Appellant at meetings held on 1^st and 22^nd July 1996

(b) Displaying favouritism towards Ms Shefras

(c) Embarrassing the Appellant at a Team meeting by raising the matter of a confidential letter sent to the Appellant by Mr Marshall, ILPS's Assistant Chief Probation Officer.

(4) As a result of Ms Barnish's behaviour towards the Appellant on 1^st July 1996, the Appellant on that day had every reason to conclude that her race was a factor in Ms Barnish's behaviour.

5. Based on their factual findings the Tribunal considered whether the complaint of unlawful Racial Discrimination had been made out at paragraph 16 of their reasons. They did not find this an easy case. There was, they thought, evidence to support the view that race might have been a factor in Ms Barnish's less favourable treatment of the Appellant, compared with her treatment of Ms Shefras a white employee. Equally there was evidence, the smoking issue, which suggested a different reason for the difference in treatment. The Tribunal concluded that although the Appellant had good grounds for believing that she had been discriminated against on racial grounds by the Respondents, the predominant cause of the breakdown in the relationship between Ms Barnish and the Appellant and the reason why she took such a strong dislike to the Appellant was the smoking issue. The Tribunal observed that it was not irrelevant that Ms Keating, the black Probation Officer whom the Appellant replaced was a smoker, and someone with whom Ms Barnish appeared to have got on well. Ms Keating gave evidence before the Tribunal.
6. In the circumstances the Tribunal, whilst critical of Ms Barnish's management style towards the Appellant, declined to draw the inference that the less favourable treatment of the Appellant when compared with that afforded to Ms Shefras, was on racial grounds. The claim of Racial Discrimination failed.
7. The question of law in this appeal may be shortly stated. Did the Tribunal fall into error by excluding the possibility that the effective cause of the less favourable treatment meted out to the Appellant by Ms Barnish may not have been a single, principal cause, which they found stemmed from the smoking issue, but more than one cause, the other being the Appellant's race?
8. The relevant principles of law are not in dispute between Counsel. It is not necessary for the Appellant's race to have been the sole cause of the relevant treatment. However, it must be an effective cause. We have been referred to the well known passage in Mummery J's judgment in O'Neill –v- St Thomas More School (1997) ICR 33, 43 C-H and the recent statement of the law by Lord Nicholls of Birkenhead in Nagarajan –v- LRT (1999) IRLR 572, paragraph 19. Mr Mullins submits that on a fair reading of paragraph 16 of their reasons, the Tribunal demonstrate that they have fallen into error by deciding what was the predominant or main cause for the treatment, mainly the smoking issue and then stopped at that stage without going on to consider whether race was also an effective cause of the treatment. Had they done so and so found, then the complaint would have succeeded.
9. Ms Simler invites us to say that this Tribunal and in particular the very experienced Chairman approached their task correctly. Although they found that the Appellant had been badly treated and she genuinely perceived that such treatment was on racial grounds, there were no primary facts found by the Tribunal to support that view objectively. They found that the effective and predominant cause of the treatment was the smoking issue and consequent breakdown in relations between Ms Barnish and the Appellant, not the Appellant's race. In support of that conclusion they took into account their finding that Ms Barnish had got on well with Ms Keating, who was replaced by the Appellant and who was both black and a smoker. Having considered the rival submissions, we prefer those advanced by Ms Simler. We are not persuaded that any error of law is made out in this appeal. Accordingly it must be dismissed.