United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE HOOPER:

1. Albeit with perhaps some reluctance we take the view that there are two grounds which are arguable and should be considered by the Employment Appeal Tribunal. The Appellant raises a number of grounds. We are particularly grateful to Mr Booth who has obviously taken a great deal of time to go through the grounds and reduce them to three.
2. The first ground which is arguable relates to the refusal to grant an adjournment. This was a complicated case involving a number of different claims. On 27 March, the Appellant wrote a letter to the Regional Secretary of the Industrial Tribunals, London North saying that she had been informed on 20 March by the Haringey Racial Equality Council that they would no longer be able to represent her because the post of Racial Employment Officer had been deleted due to government cuts. She said that she had spent five days looking for alternative representation and had not been successful. The hearing was due to start on 4 April and was scheduled to last for a number of days. Shortly after 30 March, the Appellant was informed by a letter dated 30 March that a Chairman of the Tribunal had considered carefully all that the Appellant had to say and had balanced that against the desirability of bringing this case to a hearing without delay. The Chairman refused the request for an adjournment giving as the reason:-

"The Applicant has been conducting all the correspondence herself and appears to be fully aware of the issues."

The Appellant was at the time a Principal Trading Standards Officer with the Respondent, the London Borough of Camden. We take the view that it is arguable given the complexity of the case that that was not the right decision to reach in the circumstances.

3. Ground two raises a comparative narrow point in comparison with the main thrust of the case which concerned the London Borough of Camden's allegations that the Appellant had acted in a grossly dishonest manner by falsifying records. Nonetheless, there was a separate claim that related to the manner in which the Appellant had been treated in relation to days off for sickness. The matter is dealt with using the internal numbering of the decision at page 3 paragraph, (iii). That paragraph needs also to be read with the last paragraph on page 10 of the Appellant's bundle. During the course of the hearing, it emerged that another employee, Lynn Duggan, who was white and female had after 15 days sickness been required to produce a doctor's certificate and told that thereafter the matter would be monitored. In the case of the Appellant, she had had 19 days sickness on 8 separate occasions in the previous rolling year. She received an oral warning. That was subsequently converted into a formal warning following a report from those involved with Occupational Health. The report produced by those involved with Occupational Health said that there was no underlying medical condition that needed intervention.
4. The thrust of the complaint made by Mr Booth is the reasons for the finding in paragraph (iii), that there was a significant difference between the position of the Appellant and Lynn Duggan. Mr Booth did not complain about the comparison made with the male employees. In the last sentence of paragraph 3, the Tribunal found that the distinction between Lynn Duggan and the Appellant was that Lynn Duggan's condition had

"improved unlike the Applicant's position."

We find it difficult to follow what the Tribunal was there saying. We find it difficult to see why this would explain the distinction. Nor do we find the words

"unlike the Applicant's position"

to be clear. We stress that this a very small part of the case. As it evolved it became only one of alleged racial discrimination but nonetheless, we take the view that it is arguable.

5. We turn to ground three. In her final submissions to the Tribunal, the Appellant alleged actual discrimination in the decision to dismiss her. She wrote this:-

"The allegations for which I was dismissed for by Camden are that my alleged home going during work time was misuse of time or as they termed it, theft of time and there was a subsequent falsification of Council Records which they say is dishonest and gross misconduct for which I was dismissed."

The thrust of the findings by the Tribunal was that there was such subsequent falsification. The Appellant writes:

"The Tribunal heard Peter Strange admit that after the birth of his child on 8 December 1998, he stayed off work due to family reasons, however he obtained medical certificates showing he had a back problem. In effect what Peter Strange was doing was having time off work as sick leave when in fact he was off work for family reasons. For whatever reasons, Peter Strange by his actions had abused the sick leave system of the Council and had clearly falsified Council records to show that he was off sick when in fact he was off for family reasons. By the same criteria the Council applied to my case i.e. there was a loss of benefit in terms of time worked Peter Strange's falsification of Council records should also have been treated as theft and his actions labelled as gross misconduct."

She further states:

"Robert Scourfield, his manager was aware that Peter Strange was having time off work and falsely recording it as sick leave. In turn when I asked Robert Scourfield would he now discipline and dismiss Peter Strange for Mr Strange's abuse of the sick leave system and falsification of records, Robert Scourfield said that he would take no action. I believe that the purposes of direct discrimination and the matter of unfair dismissal Peter Strange is a comparator. The fact that Robert Scourfield was eager to dismiss me as an Asian female for my alleged offence and take no action against Peter Strange for a similar offence to which Peter Strange is open to admit shows that actual discrimination has occurred and that I was unfairly dismissed unlawfully under the provision of the Race and Sex Discrimination Act."

6. In the same paragraph, (iii) to which we referred earlier, there is also reference to Mr Strange. Mr Strange had had 28 days sickness in the previous rolling year. The Tribunal went on to state:

"However 26 of these days were in a block that started as a back injury but continued when Mr Strange took time off with permission after the premature birth of his daughter so that he could spend time at the hospital."

It is not clear from that passage how long Mr Strange had taken off to attend the hospital because of the premature birth of his daughter. One reading might indicate that it was only two days but Mr Booth suggested that that was a wrong reading. At the conclusion of the decision, the Tribunal rejected the case being brought by the Appellant. It is right that there is conclusion dealing with this particular point. However, we unanimously take the view that it is wholly self-evidence that Mr Strange did not provide a valid comparator. In the case of Mr Strange, he had obtained permission to do that which he did. It does not reflect well on staff at the London Borough that a senior officer could agree to falsification of records by Mr Strange who was, we are told, more senior than the Appellant. Nonetheless, the Appellant's case is quite different. She did not ask for permission to do what she did. She maintained throughout that she had not taken the days off and certainly did not reveal to anyone that the records which were subsequently found to be falsified had in fact been falsified. We find no merit in that ground at all.