United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MIDDLETON Messrs Freeth Cartwright Hunt Dickins Solicitors Imperial House 108 - 110 New Walk Leicester LE1 7EA
For the Respondent	Mr Smith Solicitors Head of Legal Services Northamptonshire County Council County Hall Northampton NN1 1AN


 


JUDGE COLLINS: This is an Appeal against the decision of an Employment Tribunal sitting at Bedford whose extended reasons were promulgated on 18 January 1999. The Tribunal held that the respondents were not guilty of racial discrimination against the Appellant.

1. By Notice of Appeal dated 25 February 1999 the Appellant asserts that the Tribunal adopted the wrong legal approach in that they considered only a complaint of victimisation under section 2 of the Race Relations Act 1976 when they should also have considered a complaint of direct discrimination under section 1. She also asserts that the Tribunal failed to take into account or give sufficient weight to relevant evidence and therefore came to an unreasonable decision. I understand that to be a reference to evidence that they should have taken into consideration had they dealt with the alternative claim suggested under section 1 of the Act.
2. The nature of the claim appears from the originating application which intriguingly is date stamped by the Tribunal on 17 July 1998, although it is signed and dated by the applicant as on the following day. That is a mystery which I record, but is not of any importance for us to resolve.
3. The nature of the claim is that Mrs Grewal was a qualified Social Worker, working for the Respondent County Council for about two years and eight months up until December 1996. She said that she left that job in circumstances which amounted to constructive dismissal because difficulties had arisen between her and her Supervisor which were racially motivated.
4. It is to be noted that she did not at the time bring any claim against the Respondents either for unfair dismissal or for racial discrimination. We note further that subsequent to leaving the local authority's employment, Mrs Grewal obtained further qualifications at Nene College so that she is now a highly qualified person.
5. In March 1998, she applied for her old job back; it was a Child Care Social Workers job in the same Centre where she had worked previously. She applied for that in March of 1998, was interviewed on 20 April 1998 and was rejected. What she says in her originating application is:

'I feel that the decision about not to employ me for this post was influenced by the above mentioned complaint as I have pursued the Internal Grievance Procedure against my Supervisor and some other members of the staff. I feel that I am facing a double injustice from the Social Services Department as firstly I think that my complaint was not properly investigated and my Supervisor got away with telling lies and by giving false information about my work.

Secondly my future opportunity of being employed with this department was hindered as the decision has been made not to employ me and I have not been given any reason for this. I feel that by making a decision not to employ me I have been punished for the complaint I had made.'

6. It is quite apparent on a reading of the originating application that the complaint which the Appellant was making was that she was not offered the job for which she had applied in 1998 because it was being held against her that she had made complaints of racial discrimination prior to December 1996.
7. Mr Middleton who appears on her behalf today and who did not appear before the Tribunal concedes that it is very difficult if not impossible to give any reading to the originating application which suggests that Mrs Grewal was also complaining that the interview process itself was tainted by racial factors in addition to the claim of victimisation for the earlier complaints.
8. Possibly as a result of Mrs Grewal not filling in box 1 of the originating application an interlocutory hearing took place on 24 September 1998 before a Chairman who was not the Chairman who presided over the subsequent hearing.
9. So far as we can assess the object of the exercise was to clarify the way in which the Appellant was putting her case; the Tribunal ordered that the complaint proceeded on the basis of section 2(1) and 4(1) of the Race Relations Act 1976.
10. It was noted in the order on that date that:

'the applicant has clarified that her case had been put on the basis that she was not offered the job for which she applied in April 1998 by reason of a complaint which she made some time in 1996 when she had alleged what amounted to discrimination in breach of the Race Relations Act 1976'

and I emphasise the next sentence:

It was clarified that the applicant was not complaining that she had not been given the job simply because she was Asian and that she was not complaining of constructive dismissal as of 1996.

11. For the sake of completeness I ought to mention that the Notice of Appearance dated 13 August 1998 asserted that the best person had been appointed to the job and denied that there was any desire to punish the Appellant for her previous complaints.
12. It seems to us that on the 24 September 1998 the Tribunal was concerned to make the nature of the Appellant's claim clear and the note that was made of her factual case accurately reflected what she had set out in her originating application. At the preliminary hearing of this appeal it was suggested, and this Tribunal thought the suggestion was of sufficient weight for the matter to be argued at a full hearing, that there was a conflict between paragraph 1 of the order on 24 September 1998 and the note to that order. The suggestion was that paragraph 1 of the Order indicates two grounds of complaint whereas the note indicates one ground only.. We do not find any confusion between paragraph 1 of the order and the note. What paragraph 1 does is to identify the context in which the application on the ground of racial discrimination is being made, namely the offer of employment. The reference to section 2 of the Act is to the nature of the discrimination, namely victimisation. We do not see any discrepancy between that and the note to the order.
13. For what it is worth, although not a point which we would regard as conclusive, there was no appeal against the interlocutory order of the 24 September 1998. .
14. The principal criticism of the Tribunal, as I indicated at the commencement of this judgment, is that they only considered the Appellant's claim that she was victimised under Section 2 of the Act and failed to consider a claim based on direct discrimination.
15. For the reasons which I have already given this Tribunal believes that the Employment Tribunal was entitled to proceed solely on the basis of a claim for victimisation under Section 2 of the Act because that was all that the Appellant had ever complained about. We make every allowance for the fact that the Appellant was not represented and we do not approach this question in a legalistic or formalistic way. If there had been any suggestion couched in the most non legal or informal of terms that the Appellant was complaining that the interview process was tainted by racial discrimination the Tribunal would have been bound to hear it.
16. Turning to the way in which the Tribunal approached the victimisation allegation, Mr Middleton has only faintly sought to argue that the Tribunal can be faulted in way they dealt with it. What they did was to go in detail through the history. To summarise; in 1996 there had been a number of complaints about the way Mrs Grewal was doing her job; she in turn complained about the way those complaints had been made and there was a series of meetings and letters. The Tribunal went through all those in detail and decided that there was no clue whatsoever in any of the discussions or in any of the correspondence that Mrs Grewal was making a complaint which if properly analysed could be that she was being racially discriminated against. Accordingly they held that there had been no protected act under Section 2 which was in play. Therefore the question of whether or not she had been victimised in April 1998 because of something she had done in 1996 simply did not arise for consideration. The criticism that Mr Middleton makes of that approach is that the Tribunal formulated the wrong test. He refers to paragraph 6 of their reasons, the Tribunal having set out relevant parts of Section 2 of the Act in the previous paragraph. They set out a test, namely that the Appellant had to satisfy the Tribunal first that she did during 1996, before she resigned her post with the Respondents, make allegations that they or an employee of theirs had unlawfully discriminated against her on racial grounds.
17. Mr Middleton argues that Section 2 provides for a protected act if the person victimised has alleged that the discriminator has committed an act which amounts to a contravention of the Act, whether or not the allegation so states in terms. He says that the Tribunal has misparaphrased the Section by assuming that what the Appellant has to show is that she expressly made a complaint of racial discrimination under the Act. We do not think that that was the test which the Tribunal did set themselves. The Tribunal was not intending by their paraphrase to take anything away from the section which they had set out in the proceeding paragraph. On the contrary, if one looks at the way in which the Tribunal analysed the facts it is clear that they were looking for any clue that the Appellant was making a complaint against her employers which could be construed even indirectly as being a complaint that they were being racially discriminatory against her. Having considered the history from that point of view the Tribunal concluded roundly in these terms,

' looking at the entirety of the evidence we have heard we can find nothing to lead us to the inference that the Respondents actions were at any stage motivated by racial considerations.'

We think that there is no substance in Mr Middleton's criticism of the way in which the Tribunal handled the victimisation claim.

18. That is enough to conclude this Appeal but we do not think it is right to leave it there. Although we hold that the Tribunal were under no obligation to consider a claim based on direct discrimination, it is clear that they did fact do so, as it was practically impossible to consider the question of victimisation without also considering the whole of what had happened in the interview process in April 1998.
19. It is clear from paragraph 4 (i) of their reasons that they looked at what had happened in the interview process in some detail. They heard one of the interviewers give evidence and formed the view that she was impartial, professional, experienced and would not have allowed, consciously or unconsciously, her judgement of the competing candidates to be affected by the fact that the Appellant was not white. They looked at the scores for each of the candidates and took the view that on any view the Appellant would have come a distant second to the person who was in fact appointed. They concluded in paragraph 7:

' on the totality of the evidence we have heard and read we are wholly satisfied that her application for that post was judged entirely on its merits in comparison with those of the other applicants. In coming to this conclusion we take into account the facts that the party who was in fact appointed had less relevant working experience than the applicant and was at the date of the interview still awaiting confirmation of her first professional qualification as the holder of a diploma in Social Work and that the history of the applicant's employment was known to Ms Brobby.'

20. Whether they were under any obligation to do so or not the Tribunal did in fact give serious consideration to the question to of whether or not there was any direct discrimination under Section 1 of the Act. They addressed specifically the fact that the person was appointed did not have a Certificate of Qualification in Social Work at the time of her appointment and was awaiting the results of her examination. Notwithstanding that fact they found that there was no racial element in the decision not to appoint the Appellant. Accordingly we find against the Appellant in this case on the grounds, first that we do not accept that the Tribunal was obliged to do anything other than consider a complaint of victimisation under Section 2 Race Relations Act 1976 . Second, we hold that the Tribunal did in fact give full consideration to the possibility of an alternative claim for direct discrimination under Section 1 and rejected that also. For those reasons this Appeal will be dismissed.