United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANTHONY SNELSON (of Counsel) Messrs Shah Solicitors 168 Greenford Road Sudbury Hill Harrow Middlesex HA1 3QZ
For the Respondents	MR CHARLES SAMEK (of Counsel) Messrs Kingsford Stacey Blackwell Solicitors 14 Old Square Lincolns Inn London WC2A 3UB


 


JUDGE PETER CLARK: This is an appeal by the applicant before the London (North) Employment Tribunal (Chairman: Mrs M H Don) against that tribunal's decision, promulgated on 5th June 1998, dismissing her complaints presented on, respectively (1) 30th May 1996 and (2) 19th January 1998.

Background

1. The appellant, who is of Indian ethnic origin, commenced employment with the respondent, the London Borough of Brent, in February 1994. She was at all relevant times a finance and administration manager.
2. In her first complaint she alleged direct race and sex discrimination and defamation. In her second complaint she alleged race and sex discrimination and victimisation.

The Employment Tribunal Decision

3. The appellant appeared in person before the tribunal. The respondent was represented by Mr Samek of Counsel.
4. At the close of the appellant's evidence in chief Mr Samek sought to make a submission of no case to answer. The tribunal did not entertain that submission at that stage, but did so after cross-examination. They upheld the submission in respect of all allegations save for one. They went on to hear evidence from the respondent in respect of that single issue and dismissed the claims.
5. The first complaint gave particulars of 11 separate allegation; the second complaint raised four matters. It is convenient now to set out each allegation made by the appellant and the tribunal's findings on each. We shall identify the allegations as 1.1-11 and 2.1-4.

1.1 On 8th March 1996 the respondent wrote to the appellant informing her that her performance was to be investigated and that a disciplinary hearing may result. It seems that a draft manuscript suspension letter was placed on her file. That draft was never typed up nor sent to her. She was not suspended. The tribunal found (paragraph 12. Reasons) that the fact of the draft suspension letter on her file did not give rise to any cause of action.

1.2 From 15th-21st March 1996 the appellant had been on special care leave attending to her young son, who had contracted chicken pox. On 22nd March 1996 she was due to come into work to attend an investigatory meeting. She asked for special care leave on that day. That request was refused. The tribunal found (paragraph 13) that she suffered no detriment for the purposes of ss.4(2)(b) and 6(2)(b) Race Relations Act 1976 and Sex Discrimination Act 1975 respectively in having to attend work that day.

1.3 The appellant complained that the Director, Julia Killick (white female) had procured an external audit report in August 1995 in order to contrive evidence so as to suspend the appellant. The tribunal found that this complaint did not disclose an act of discrimination (paragraph 14).

1.4 Defamation. Not pursued by the appellant.

1.5 The appellant complained that she was denied an appraisal in August 1995 on the ground that she had not worked a full year since returning from leave, initially maternity leave, in May 1995. She contended that a white male manager who started work in May 1995 had been appraised in February 1996, that is, in less than one year. The tribunal accepted the respondent's explanation; she had not worked for a full year before August 1995 and found that the complaint was out of time, it not forming part of a continuing act by the respondent; further, it was not just and equitable to extend time (paragraphs 16, 23).

1.6 She complained that she had been denied a pay increment in August 1995 because she had not received an appraisal, whereas a white member of staff had received an increment without an appraisal. The tribunal made a similar finding as to limitation as under 1.5 above (paragraph 16).

1.7 The appellant compared her pay with that of the white male comparator referred to in 1.5 above. Again, the tribunal found that that complaint was time-barred (paragraph 16).

1.8 The appellant complained that she was required to disclose her time sheets. During cross-examination she accepted that she had suffered no detriment in this respect. The tribunal so found (paragraph 17).

1.9 The appellant complained that she had to "battle" to obtain five weeks leave in March 1996. A white female temporary worker, Tracy Metcalfe was granted six weeks leave. We have been taken to the documentary evidence. It seems that the comparator took unpaid leave for six weeks; the appellant received four weeks paid leave. The tribunal found that the appellant suffered no detriment (paragraph 17).

1.10-11 The tribunal found that the appellant led no evidence in support of these allegations. Consequently they could not be taken in account (paragraph 19).

2.1 Following the resignation of Ms Killick in August 1996 the other manager in the appellant's department, Andrew Fairhurst, a white male, was made Acting Director. The appellant queried that appointment but complained that she had received no satisfactory answer by the date of her second complaint, 19th January 1998. The tribunal found that this complaint was out of time. There was no policy to discriminate against the appellant (paragraph 23); there was no continuing act of discrimination (paragraph 20); it was not just and equitable to extend time (paragraph 23).

2.2 The appellant contended that in August 1995 she had been promised that her job description would be revised and re-evaluated. That had not happened. On this issue alone the tribunal heard evidence from Mr Cheeseman, the respondent's Acting Director of Houses. The tribunal found that the appellant had not received less favourable treatment on the grounds of her race or sex, nor had she been victimised in respect of this allegation, having accepted Mr Cheeseman's evidence.

2.3 The appellant complained that in not granting her an appraisal-linked pay increment she had been victimised. The tribunal held that that complaint related back to August 1995 and was time-barred (paragraph 21).

2.4 This allegation, relating to payment of a bonus, was withdrawn by the appellant. She had received the bonus.

On these findings the complaints were dismissed.

The Appeal

6. By an amended Notice of Appeal settled by Mr Snelson, who appeared on behalf of the appellant at a preliminary hearing held before a division presided over by Judge Pugsley on 4th December 1998 the appellant challenged the tribunal's decision under the following heads:

(1) no case to answer

(2) limitation

(3) detriment

Mr Snelson has developed those grounds before us, an earlier inter partes hearing held on 18th June 1999 having been aborted for the reasons which I gave in a judgment delivered on that day. Mr Snelson did not appear on that occasion.

7. No case to answer

The tribunal has power to dismiss a complaint on a submission of no case to answer, but it is a power which should be exercised with caution. Coral Squash Club Ltd v Matthews [1979] ICR 607. It is appropriate to use the power in a case which is obviously hopeless, so that it would be a waste of time and money to require the respondent to call evidence and thus prolong the proceedings. Ridley v GEC Machines Ltd [1978] 13 ITR 195. In race and sex discrimination claims it is only in exceptional or frivolous cases that it would be right to uphold a submission of no case to answer at the end of the applicant's case. Oxford v Department of Health and Social Security [1977] ICR 884. Owen & Briggs v James [1981] IRLR 133.

8. Is this an appropriate case for the tribunal to reject all but one of the appellant's allegations of unlawful discrimination and victimisation at the close of her evidential case? No, contends Mr Snelson. He submits that the tribunal was required to consider the overall effect of the treatment complained of. Quereshi v Victoria University of Manchester [1996] EAT/485/96 (Unreported). The picture presented by the appellant was of bullying and being picked on (1.1 and 1.8); denial of benefits in employment (1.2 and 1.9); denial of support and career advancement (1.5-7; 2.1-3). Taken as a whole this is not a hopeless or frivolous case in which the exceptional course of dismissing it at the halfway stage is permissible. The appellant was deprived of the opportunity to invite the tribunal to draw inferences adverse to the respondent having heard evidence from their witnesses, in particular as to whether the respondent operated a continuing policy of discrimination against the appellant. Further, confidence in the system of justice administered by Employment Tribunals will be undermined, particularly in the case of an applicant complaining of discrimination who presents her own case, if only one side is heard.
9. It seems to us that the appeal depends upon whether or not we are satisfied that the tribunal was entitled, as a matter of law, to dismiss each of the allegations made by the appellant, with the exception of that at 2.2, on the basis of her evidence alone and without the possibility that she might establish all or any part of her case once the respondent had called evidence. We deal with the tribunal's reasoning under the following headings:

(1) No cause of action

Was it open to the tribunal to dismiss allegations 1.1 and 1.3 on this ground? We accept Mr Samek's submission that it was. It is difficult to see how the appellant could establish an act of discrimination simply on the ground that the respondent had prepared a draft suspension letter and placed it on her file (1.1.) or because the Director had obtained an external audit report (1.3).

(2) No detriment

Allegations 1.2, denial of special care leave, 1.8 production of timesheets and 1.9 annual leave arrangements. For the reasons given by the tribunal we accept that no detriment was made out by the appellant.

(3) Continuing act

The tribunal looked at the appellant's evidence and concluded, permissibly in our view, that she had failed to make out a case that there was a continuing policy of discrimination against her.

(4) Just and equitable extension

The tribunal has a wide discretion in deciding whether or not to extend time under the respective discrimination Acts.

Conclusion

10. We have considered anxiously whether the tribunal reached a permissible conclusion in dismissing this case without, save in one instance, calling on the respondent. We are persuaded by Mr Samek that this experienced tribunal Chairman had in mind the proper test; hence the submission of no case was not entertained at the close of the appellant's evidence in chief (a successful submission at that stage is not unheard of in my experience) and the respondent was required to answer allegation 2.2. Having considered the tribunal's grounds for rejecting each of the remaining allegations we are unable to uphold Mr Snelson's various submissions that in any respect the tribunal fell into error. Consequently we are left in the position that we can find no grounds in law for interfering with this tribunal decision; the tribunal was able to see and hear the appellant and assess her allegations, both individually and cumulatively. They found that there was nothing in them. Accordingly it would not have been right to put this publicly funded respondent to the time and expense of calling its evidence.
11. In these circumstances we shall dismiss the appeal.