United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PETER ABRAHAMS Representative 74 Calderon Road London E11 4EY


 


JUDGE A WAKEFIELD

1. We have held today preliminary hearings of appeals in two cases which were heard by Employment Tribunals on applications by the same Applicant, Ms A Guthrie.
2. In the first case, brought against the London Borough of Waltham Forest, Mr Betton and Mr Simmonds, the Applicant alleged discrimination on racial grounds by the London Borough and victimisation by all three Respondents. The hearing took place over six days in July 1999 at the Stratford Employment Tribunal and the Decision was given on 15 June 2000.
3. The second case alleged victimisation by the London Borough of Waltham Forest and Mr Betton, based on alleged conduct by reason of the first application, that is in the first case, having been made.
4. We have heard at length on both cases from the Appellant's representative Mr Abrahams. He asserts a failure in Case 1 by the Employment Tribunal to base its findings on evidence or to give sufficient reasons for its findings and he alleges bias by the Chairman.
5. Having carefully considered these submissions and the voluminous documentation, we find no substance in the grounds of appeal. We consider that the findings of fact were properly based on the evidence referred to in the Decision. In particular in paragraph 16 and in paragraph 20, the Tribunal sets out its findings and assesses the evidence as follows:

"Almost all Ms Guthrie has told us has been, in her estimation, discriminatory treatment put against her. Many of the allegations she has put have simply been denied by Mr Betton and Mr Simmonds and the Respondents' witnesses. Others have been admitted and we have noted the genuine surprise on the part of certain of the Respondents' witnesses that what happened is now put against them as an example of race discrimination. Mr Betton is himself a black African, and throughout the entire duration of these proceedings and in evidence before us he has struck us as both of sensitive and gentle disposition.

Regrettably, notwithstanding the Applicant's genuine belief concerning her perception of poor treatment by the Respondent, we have been quite unable to perceive any difference in her treatment between any actual or hypothetical comparator let alone treatment of which we are able to find Ms Guthrie might have been genuinely critical at all."

6. That was in paragraph 16. Then at paragraph 20, the Tribunal said this:

" Also we note that the allegations of victimisation, bullying and harassment have been put before us by Mr Edward much in the mould of statements of fact constantly emerging as the case was carried forward and often backed up without any concrete evidence whatsoever. Whereas we recognise the genuineness of the Applicant's belief that has been a subjective view which we have been wholly unable to translate into any reliable objective basis. Where there has been conflict we have been more persuaded by the evidence of the Respondents' witnesses through Messrs Parkes, Kilgariff, Waterhouse, Simmonds and Betton which, as we have already observed, has been given with conviction and understanding. We have noted carefully the correspondence, minutes, records and other documentary information before us, all of which has confirmed the view of the Respondents' witnesses and tended to support what they have said."

The Tribunal set out in paragraph 10, in very great detail, the law - both in terms of statute and case law and then they correctly, in our view, applied that to the facts that they had found.

7. Although the delay in promulgating the Decision is regrettable, there was a good reason, being illness of one of the members. We find no basis for the assertion that the Decision would have been different, had it been reached earlier. We also find no substance in the allegation of bias.
8. As to Case 2, it was alleged that following the presentation of the application in Case 1, the Respondents victimised the Appellant by preparing new job descriptions, which amounted to a demotion of the Appellant, and subjected her to distress and humiliation.
9. The Tribunal sitting at Stratford in May 2000 which was a differently constituted Tribunal from the one which heard the first case, carefully set out its findings of fact and the law as applied to the case and those facts. Their conclusions are set out in some detail, and we refer particularly to paragraph 7(i) where they said this:

"The Applicant puts her case on the basis that she was subjected to less favourable treatment when served with the second and amended job description on 20 September 1999. However, it is clear from the evidence that this document was part and parcel of a consultative process that had not reached finality and was never to become effective. It could not become effective because she was not, understandably, going to agree to it. Even if her agreement had been forthcoming, the matter could not rest there as no process of assimilation was to take place in order to confirm her in post with reference to the new agreed job description. The salient document in this case is in draft form and remains unagreed. This is despite the fact that Ms Guthrie found a document, not marked "Draft", in her personal file and fears for the future that she may well be demoted to a Scale 5 position. Accordingly, the Tribunal is of the view that her complaint is about an incomplete act which has now been superseded by events."

10. The Tribunal also refer to the question of causation, and said in sub-paragraph (iv) of paragraph 7:

"……a further difficulty that the Applicant's case encounters is clearly that of causation. Accepting, as we do, Mr Abrahams's submissions in respect of vicarious liability, there is no credible evidence in this case to establish a causational link, be it conscious or subconscious, between the activities of the Respondents and their agents on one hand and the issuing of the two Originating Applications on the other."

11. We have carefully considered those findings and the way in which the Tribunal has set out the law. We find that the findings were properly based on evidence and we are satisfied that the application of the law was correct. We therefore finally conclude that neither of these appeals has any arguable point of law to warrant a full hearing. The appeals are dismissed.