United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS LAURA COX QC Instructed by: Ms C Eaton Assistant Solicitors Borough Solicitors Office London Borough of Hounslow Civic Centre, Lampton Road Hounslow TW3 4DN


 


JUDGE WILCOX:

1. This is an appeal against the decision of the Employment Tribunal held at London North on 2,3,4 and 5 June and 2,3,4,6 November 1998. The decision of the Tribunal in relation to the first originating application namely claims of race discrimination and victimisation under s.11 (a) 2 and 4 (2) of the Race Relations Act 1976 failed and the claims was dismissed. In relation to the second originating application, a complaint of discrimination also failed and the complaint was dismissed.
2. The Tribunal found that Respondent did victimise the Applicant under s.2 and 4 (2) of the 1976 act and the Applicant's complaint of victimisation under the provisions of the 11976 act succeeded. The complaint that the Respondent did unfairly dismiss the Applicant within the meaning of s.95 (1) (n) 98 of the Employment Rights Act of 1996 also succeeded. It is against the last two determinations that the appeal lies.
3. The Respondent is an instructor in Mother Tongue Skills, employed by the Appellant's Central Language Service to work at school placements. She lodged the four applications that I have made reference to. All allegations were denied. The Employment Tribunal at paragraph 5 of their decision, clarified the issues and at a interlocutory hearing, before the Regional Chairman they were characterised as:

In relation to race discrimination whether the Appellant's unlawfully discriminated against the Respondent on the grounds of her race, by taking disciplinary proceedings against her, handling her health problems and failing to record her qualified teacher status and by selecting her for redundancy. In relation to the unfair dismissal, what was the reason for dismissal. The Appellant's positive case was that it was redundancy or some other substantial reason and if the reason was redundancy, were the Appellant's unfairly selecting the Respondent for dismissal for redundancy, having regard to the criteria of the 1998 act.

Victimisation: Whether the Appellant unlawfully discriminated against the Respondent by victimising her, contrary to s. (2) of the Race Relations Act and the act of victimisation alleged, was the dismissal and the protected act was the bringing of the first originating application and all the Respondents' internal complaints.

4. It is clear that in relation to the findings of the Tribunal they went into these matters with great care and recited the evidence of the history of the employment and, particularly, disciplinary matters. A large feature in the findings, related to the role of a Union Representative, Mr Steve Jenkins of the National Union of Teachers (NUT). It is clear that they took a view adverse to Mr Jenkins but more particularly, a view adverse as to the role that he exercised in relation to this matter and on the bases of findings as to his role, some of the reasoning leading to the ultimate findings was based.
5. In relation to the victimisation ground of appeal the Tribunal identified the relevant principles to be applied by the law as it then stood (that is in relation to Aziz v Trinity Street Taxis Ltd [1988] IRLR 204. They did not of course have the benefit of the House of Lords decision in Nagarajan v London Regional Transport [1999] IRLR 572, which of course identified the factor that is important in these cases, namely, that it is the act that is important, not the state of mind on the part of the discriminator. A Tribunal who had the benefit of that consideration would doubtless have directed themselves differently in relation to the facts and matters that they applied the Aziz principles.
6. Firstly, the findings of fact indicate that the Appellants were engaged in a disciplinary review process with the Respondent. The outcome of that was on the evidence unclear and so found by the Tribunal. During the course of that process enquires were made by the Respondent and a Trade Union Representative about the possibilities of benefits obtainable upon a voluntary dismissal by way of redundancy. She accepted voluntary redundancy in a letter of 13 May 1997. The dismissal terms on which the contract of employment was terminated, it is contended the result were the result of a specific request and negotiated by the Respondent and thus, it is arguable that it was not open for the Tribunal to find in consequence that she had been less favourably treated than a relevant comparater, who had not in fact done the protected act.
7. We think that that is an arguable ground that should go forward to a full Tribunal. We also feel that it is arguable that the Tribunal failed to apply the legal principles correctly, in relation to both favourable treatment and causation and therefore erred in law in their approach to victimisation in this case. So far as the adequacy of the Respondent's representation at the various disciplinary and review meetings, it is clear that Tribunal elevated those as a significant element in the victimisation allegation. There is of course, no requirement in law, that employers should take steps to satisfy themselves as to the adequacy of representation. The intervention of the Union Representative is a matter for the Appellant and her union. He is qua the Appellant an independent contractor.
8. It is difficult, we accept to conclude that he was acting in some manner as an Agent of the Local Authority Appellant and it is clear to us that the approach taken by the Tribunal to his intervention and role is arguably, a perverse view and the findings based upon that could be properly categorised as a perverse finding. In relation to the finding of unfair dismissal where the voluntary redundancy, arguably came about at the specific request of the Respondent and her Trade Union Representative and redundancy package was negotiated and agreed by the Respondent, it is clearly strongly arguable that the dismissal could not have been an unfair dismissal. We think that it should go forward on that ground also.
9. We note that the fourth ground of appeal has been withdrawn and that was withdrawn unambiguously at the outset of the submissions. We think that this is class C, one day, usual direction please as to skeleton arguments and a precise chronology of events.