United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR BRUCE CARR (Of Counsel) Instructed by: Mrs M De Souza Messrs Rowley Ashworth Solicitors 347 The Broadway Wimbledon London SW19 1SE
For the Respondent	MR ANTHONY SENDALL (Of Counsel) Instructed by: Ms Lucy Atherton Legal adviser Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE PETER CLARK

1. This appeal, brought by Mrs Dadrah against a decision of an Employment Tribunal sitting at Birmingham under the Chairmanship of Mr Stephen Bedeau on 15^th-17^th May 2000, upholding her complaint of unfair dismissal but dismissing those brought under the Race Relations Act 1976, originally took two points. The first related to direct discrimination and the second to victimisation under the 1976 Act. The first point is now abandoned by Mr Carr, not having been argued below, and thus we are concerned only with the Tribunal's finding as to the complaint of victimisation in their decision with Extended Reasons promulgated on 19^th June 2000.
2. So far as that complaint is concerned, the relevant facts found by the Tribunal were these. Having commenced work with the Respondent, a manufacturer of a range of products for the elderly and the disabled in the West Midlands, on a temporary agency contract in November 1996, she commenced direct employment on a salary of £7,750 per annum on 27^th May 1997.
3. She worked in the Minivator Department as an Installation/Service Administrator dealing with local authority customers, as opposed to UK trade and international trade customers. In March 1999, by which time her salary had risen to £9000 per annum, the Appellant discovered that two Customer Services Representatives working in the Minivator Department, Marie Mohammed and Louise Turner, were being paid more than her. Miss Mohammed and Miss Turner were concerned with UK and international trade customers.
4. She spoke to Darren Hickman, her line manager about the disparity in pay. He explained that the difference was due to the higher level of communication skill required to deal with the trade customers. She took her complaint up with Mr Lord, the Business Unit Director in the Department; he gave her the same response.
5. Still dissatisfied, on 27^th May 1999, she presented an Originating Application to the Employment Tribunal (the first complaint) claiming that the pay differential between herself and the customer service representatives, who were white, was on grounds of her race and unlawful. By late May, both Mr Lord and Miss Faye Watters, the Human Resources Officer, were aware of the first complaint.
6. Following a directive from the Respondent's head office in California on 7^th June 1999, job cuts, first announced on 29^th April, had to be made due to a down turn in sales. In the Minivator Department, Mr Lord identified four posts to be made redundant. Two service engineer posts, one technical support staff and the post of installation/service administrator. He decided to delete the latter post due to a decline in local authority sales. That work could be absorbed by the two customer services representatives.
7. There was evidence before the Tribunal, found to be confusing and unsatisfactory, as to the application of a point scoring matrix by Mr Hickman to determine who should be made redundant, when Mr Lord said that he had already decided that the Appellant's post would be made redundant. The relevant pool for selection was said to be the Appellant and the other two customer service representatives, by then Miss Turner and a Miss Eccles. In evidence, Mr Hickman acknowledged inconsistency in his scoring between those employees. In the event, the Appellant scored 42 points, Miss Eccles 59 and Miss Turner 61.
8. On 11^th June, the Appellant was seen by Mr Lord and Miss Watters and informed that she was at risk of being made redundant with effect from 6^th July 1999. Her dismissal took effect on that day.
9. It was the Appellant's case before the Tribunal, through her then representative, Mr Coyne of the Transport and General Workers Union, that Mr Lord and Miss Watters decided to terminate her employment by reason of redundancy because she had presented the first complaint to the Tribunal. It was a conscious act motivated by the fact of her having presented a complaint of racial discrimination. That was victimisation.
10. Pausing there, it appears from paragraph 58 of their reasons that the Tribunal were referred to the Court of Appeal decision in Nagarajan v London Regional Transport [1998] IRLR 73, whereas the need for conscious motivation in cases of victimisation identified by the Court of Appeal in that case was subsequently disapproved by the House of Lords in Nagarajan . However, we are informed by Counsel that Mr Coyne referred the Tribunal to the House of Lords decision in that case and nothing turns on the reference to the Court of Appeal decision in Nagarajan in this appeal.
11. The Tribunal found that the dismissal was unfair on the grounds the Appellant was selected for redundancy without proper consultation, without discussing alternative employment and without informing her of her right of appeal. The matrix criteria were only applied after the decision had been made by Mr Lord to make her post redundant.
12. They record their reasoning and conclusions on the claim of victimisation at paragraph 68 thus

"Turning to the claim of victimisation we remind ourselves of the definition of Section 2 of the Act. The decision to make the Applicant's post redundant was taken within a few days of the Employment Tribunal claim being received by the Respondents. It would therefore appear that the two events were connected but that would be to ignore the fact that in April 1999, a month before her claim was presented to the Tribunal, the Respondents, via their head office in California, had stated that there were to be 375 redundancies. Further, that there were to be an additional 225 posts to be made redundant. Reductions in staff, therefore, had to be made in the Minivator Department. two service engineers, one technical support staff were made redundant. The Applicant's position was also affected. The uncontroverted evidence was that the Applicant dealt with local authorities where trade was in decline. Accordingly, the decision was taken to make her post redundant. As she had trained the Customer Service Representatives in administrative duties, her duties were shared between them. We are satisfied that the Applicant had not established on the balance of probabilities a causal link between her dismissal and the employment claim. There was no evidence of any difference in treatment, as far as this aspect of the claim was concerned, between the Applicant and someone in a similar position to that of the Applicant who has not done the relevant protected act. In such circumstances, we consider the hypothetical comparator, a service administrator employed in either the Minivator or some other Department. If sales within that Department had declined consequently reducing the level of administration required, on the balance of probabilities, their post would have been made redundant given the 600 reduction in staff the Respondents had to make. In that regard the Applicant was not treated less favourably."

13. In this appeal Mr Carr submits that in considering the claim of victimisation, the Tribunal, at paragraph 68, stopped short at considering the Respondent's decision to identify the post held by the Appellant for deletion in the redundancy exercise. It did not go on to consider the whole of their findings of fact as to the circumstances surrounding the Appellant's selection for redundancy, and in particular the unsatisfactory, as the Tribunal found, exercise carried out by Mr Hickman scoring candidates for redundancy in a pool consisting of the Appellant, Miss Eckles and Miss Turner, in deciding whether to draw an inference of victimisation. In advancing that submission, he relies on the approach commended by Sedley LJ in Anya v University of Oxford 2001 IRLR 377, in particular, consideration of the whole of the relevant factual matrix in reaching a proper and rounded determination of the complaint.
14. That submission, it seems to us, depends upon a reading of paragraph 68 of the Tribunal's reasons which leads us to conclude that the Tribunal did shut out considerations of its findings of fact in relation to the Hickman point scoring exercise when considering whether or not to draw an inference of victimisation. We are unable to so read the Tribunal's reasons as a whole and paragraph 68 in particular assuming in the Appellant's favour that the case on victimisation was put in this way below. Unlike Anya, this Tribunal made all the necessary findings of primary fact, some adverse to the Respondent as we have indicated, but having done so nevertheless concluded

i) that there was no causal connection between the Appellant's dismissal and the protected act. The reference to her dismissal in paragraph 68 plainly took into account, in our judgment, all the facts leading up to dismissal including the Hickman exercise, and

ii) that a post-holder in the Appellant's position who had not done the protected act would also have been made redundant.

15. In these circumstances the claim of victimisation failed on two grounds. First there was no less favourable treatment. Secondly, had there been less favourable treatment, it was not by reason of the Appellant having done the protected act. In our view those were findings open to the Tribunal having made and considered all the necessary findings of primary fact. It follows that we are not persuaded that any error of law was made out in this Tribunal's approach. Consequently the appeal must be dismissed.