United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant in person


 


MISS RECORDER ELIZABETH SLADE QC

1. This is the Preliminary Hearing of an appeal by Ms Trotman against the dismissal of her complaints of sex discrimination and race discrimination. Such complaints were made against her employer, the London Borough of Tower Hamlets. The purpose of this Preliminary Hearing is to ascertain whether the grounds of appeal raise any reasonably arguable points of law. We have before us a very full notice of appeal, reasons for appeal and also a skeleton argument which largely replicates those grounds of appeal but amplifies them in certain respects and we have read and considered these documents.
2. The relevant facts briefly stated are these Ms Trotman started her employment with the London Borough of Tower Hamlets on 1 February 1991. By 1998 she was Schools Information Technology Support Officer and in August of 1988 she was seconded as a Schools Information Technology Assessment Technical Officer. In early September 1998 a Mr Dave Allen was engaged as a consultant to run an information technology assessment project and as will appear there were certain difficulties caused to Ms Trotman by Mr Allen's behaviour.
3. The Tribunal sat and heard evidence between 17 and 20 July 2000. Before the Tribunal, the Applicant Ms Trotman was represented by a representative from the Southwark Law Centre. Ms Trotman has expressed in her grounds of appeal and her skeleton argument and orally before us certain concerns about her representation. Those are matters entirely between her and her representative. The Employment Tribunal could only deal with the case which was presented to it and the evidence which was adduced before it. The relevant evidence briefly stated may be summarised as follows:-

Mr Dave Allen, the consultant, behaved in a way which Ms Trotman considered to be causing her difficulties. She complained about his behaviour to her line manager, Sarah Robson, and steps were taken by Sarah Robson in that Mr Allen was spoken to about his behaviour. The Tribunal found on the evidence that after having been spoken to about his behaviour, the behaviour of Mr Allen improved. There was also a finding by the Tribunal that Mr Allen was abrasive generally. The evidence was that in late October of 1998 Ms Trotman experienced pain in her right wrist. The Tribunal found and the employers accepted that from about the beginning of November of 1998, Ms Trotman was disabled by reason of this condition. From November of 1998, Ms Trotman had periods of absence by reason of her condition, albeit that she returned to work at various points after November 1998. Before the Tribunal there was an issue between her and the Respondents as to whether when she did return she complained about Mr Allen's continuing bad behaviour towards her. The Tribunal considered that events of which Ms Trotman gave evidence relating to Mr Allen's behaviour, did occur. On the evidence that they heard which was the evidence of the Applicant and also that of Ms Robson they concluded that after October 1998 Ms Trotman did not complain further about Mr Allen's behaviour. What they held in paragraph 6(xiii) was this:-

"We accept that these things occurred, but we are not satisfied that the Applicant complained or raised them contemporaneously with Ms Robson. Ms Robson told us that she knew nothing about these matters and we are satisfied that had she been told she would have taken further action, as she did in September/October 1998. In consequence we find that she did not know of these matters because the Applicant did not tell her".

During this period, Tower Hamlets were taking certain steps to deal with the incapability that Ms Trotman was then suffering by reason of her disability. They considered adaptations to her work and equipment which would assist in overcoming the disability that Ms Trotman was suffering in her wrist. The Applicant, Ms Trotman, was seen by an occupational health physician and an occupational health adviser. There was an issue before the Tribunal as to the qualification of the occupational health physician, but we consider that that is not material to the matters raised on appeal before us.

4. In summary, the Tribunal found that some of the equipment which would have had to be purchased to enable voice activated computer equipment to be used was expensive and that it was reasonable for the London Borough of Tower Hamlets not to purchase it without financial assistance from other sources, such funding apparently being available. The Tribunal considered that it was reasonable for the employer not to purchase a hands-free computer package by 11 August 1999, the date of presentation of the Originating Application.
5. Turning now to the Tribunal's conclusions on the evidence. As for the sex discrimination complaint before it, the Tribunal concluded that Ms Trotman was unfavourably treated by Mr Allen but they were satisfied that everyone felt unfavourably treated by him, including a male colleague. They concluded that the treatment went beyond that which others (male or female) suffered. They concluded that there was less favourable treatment and a difference in gender compared with the male colleague. Having found there was less favourable treatment they went on to consider whether, but for the Applicant's sex, she would have suffered the less favourable treatment. We can discern no error of law in the approach of the Tribunal to the question of whether the Applicant Ms Trotman was discriminated against on grounds of sex. Applying the correct test to the evidence, the Tribunal have concluded that they were not able from the material available as set out in their findings of primary fact to infer that the treatment which the Applicant suffered from Mr Allen would not have occurred but for the fact that she was a woman. They state at paragraph 7(1)(ii):-

"We simply do not know. The evidence is contradictory and inconclusive. We do not suggest that we usually find or expect to find clear evidence in respect of sex discrimination but the picture is confused here by the contempt with which Mr Allen displayed for the Applicant's fellow employees and in respect of management".

That conclusion was, in effect, sufficient to dispose of the claim of sex discrimination, however, the Tribunal went on to consider whether, if they had found in favour of Ms Trotman on the issue of whether there had been sex discrimination, they would have concluded that the acts of Mr Allen were acts for which the London Borough of Tower Hamlets was liable.

6. The Tribunal concluded that Mr Allen was not a person for whom the Borough was liable by reason of Section 44 (1) of the Sex Discrimination Act 1975 and it appears that it was conceded by the Applicant's representative before the Tribunal that that was indeed the case. Ms Trotman challenges that conclusion as being an error of law but it is hard to see how the Tribunal could be criticised for proceeding on a basis which was the basis upon which the case was presented on behalf of Ms Trotman. In any event the Tribunal went on to consider whether the Borough could be liable on the basis of Jones v Tower Boot Co Ltd [1997] IRLR 168 in that they had failed to prevent or reduce the risk of unlawful sex discrimination by reason of failing to take proper steps in relation to Mr Allen as an independent consultant. On the evidence they were satisfied that when complaints were made to Ms Robson she took remedial action and that, the Tribunal record, it worked. The Tribunal repeat their earlier conclusion that they were satisfied that Ms Robson did not know about the conduct which was complained of in the period April to June 1999 and on that basis the Tribunal concluded that the Respondent had done what it could to prevent the risk of unlawful sex discrimination occurring.
7. The Tribunal having made a decision on liability and taken a decision on whether in any event that London Borough of Tower Hamlets was liable for Mr Allen's acts, went on to consider whether the complaints or any of them were out of time. They expressed themselves as not satisfied that there was, in respect of Mr Allen's treatment, an act extending over a period so that it ran from September 1998 to June 1999. Rather they found that there were two separate bouts of mistreatment. Further they were not satisfied that it would be just and equitable to extend time in respect of the first bout of mistreatment. So far as those matters are concerned, whilst other Tribunals may have taken a different approach to the question of whether this was a continuous or a discontinuous act and whether or not it was just and equitable, if it was a discontinuous act, not to extend time, we cannot discern any perversity in the approach of the Tribunal to those questions.
8. So as to the challenge that is made to the finding of the Tribunal dismissing the complaint of sex discrimination we conclude that the Tribunal can not be said to have erred in law. The Tribunal approached the question to whether there had been sex discrimination contrary to the Act by directing themselves correctly as to their approach. The conclusion on the evidence that they reached was open to them. It may be that another Tribunal could have reached a different conclusion as to whether the Applicant, Ms Trotman, complained to Ms Robson in 1999 about the continuing acts of Mr Allen. Nonetheless we reach the conclusion, not without some regret, that it cannot be said that the conclusion of this Tribunal as to that part of the evidence was perverse. The Tribunal was faced with a conflict in the evidence between that given by the Applicant, Ms Trotman, and that given by Ms Robson as to whether the Applicant had complained about Mr Allen's conduct during 1999. Faced with that conflict the Tribunal preferred the evidence of Ms Robson.
9. We have been told nothing today, nor seen anything in the papers before us which enables us to say that an attack on that conclusion as being perverse has any prospect of success. Further, so far as the Tribunal's conclusion that they were not able, on the material available set out in the findings of primary fact, to infer that the treatment which Ms Trotman suffered from Mr Allen would not have occurred but for the fact that she was a woman, whilst other Tribunals may have reached a different conclusion on similar material, we cannot say that it is reasonably arguable that that conclusion was a perverse conclusion. In those circumstances we see no reasonably arguable basis upon which the appeal against the finding, dismissing the Sex Discrimination Act claim, can proceed. So far as the conclusions on the time points are concerned, as we have mentioned earlier, those were dealt with notwithstanding that they were not strictly necessary to the main decision which was on the substance of the claims. Nonetheless again those were findings which were open to the Tribunal to make and again we consider that no reasonably arguable point is raised on those points either. We accordingly dismiss the appeal against the dismissal of the claim under the Sex Discrimination Act.
10. Turning now to the Disability Discrimination Act claim, the Tribunal dealt with the complaints made very fully and we have been unable to discern any error of law or perversity in the Tribunal's approach. In the notice of appeal and submissions and in her oral argument before us, Ms Trotman relies substantially on the facts that we have referred to already. She also points to the fact that she should have been considered for a particular post which arose, which she was not offered. The Tribunal dealt expressly with that point in their decision and they accepted the evidence of Ms Robson to the effect that the post concerned, namely that a schools IT manager job, was a temporary acting-up post which is why it was not advertised in accordance with normal procedures and that it was urgent to replace the person who had left the post. There was no time to make adjustments because the post had to be filled immediately. So as to the point that was taken by Ms Trotman on that post is concerned, the Tribunal considered it and dealt with it in a way which cannot be in our view said to be perverse. As to the duty to make adjustments is concerned there was considerable evidence about the steps which were considered in the way of adjustments. The Tribunal found, for example, that the Borough moved to prevent Ms Trotman returning to work on the computer in circumstances which might exacerbate her condition. She in fact came back to work. When this was known steps were taken to prevent her exacerbating her condition. There was an assessment of her position in the middle of March 1999 and the Borough moved to organise a return to work when Ms Trotman was declared fit by their occupational health physician and subject to an assessment of her workplace by the occupational health worker, and this was to be on a trial period with reduced hours in a different job with different functions. Adaptations recommended by occupational health were considered and were set out and the Tribunal were satisfied that this was a reasonable plan and that the steps described were reasonable. As for the purchase of the hands free computing hardware and software that was being considered, it would have, the Tribunal found, prevented the Applicants inability to work and was a reasonable step to take. However, it was legitimate the Tribunal found to explore a phased return to work. Moreover the Tribunal had found that it was perfectly reasonable for the Borough to wait to see if additional or support funding could be obtained for the purchase of what was expensive equipment. The Tribunal observed that, spending public money, the Respondent had to act prudently and concluded that they were satisfied that it was reasonable for the Borough not to purchase a hands free computer package by 11 August 1999. For those reasons they were satisfied that there was no breach of a Section 6 duty in respect of the failure to provide a hands free computer system.
11. So far as the other matters which Ms Trotman complained should have been provided, namely, a suitable chair, foot rest, wrist rest, ergonomic keyboard, a different mouse, a headset and wide pen most of those were recommended by occupational health. The Tribunal record that apart from hearing that a broken headset was provided and that a wide pen was loaned and then removed they heard no evidence about the rest of the matters and therefore made no finding in respect of them. So far as the mouse is concerned the Tribunal accepted the evidence that two different types of mouse were obtained but that the Applicant, Ms Trotman, was not satisfied with either of them. The Tribunal concluded that there was no breach of duty at any relevant time in respect of any of these adjustments and that they concluded that none of the items, individually or collectively, would have prevented the disadvantage. Having concluded that the employers acted reasonably the Tribunal dismissed the complaint under The Disability Discrimination Act. Again in respect of this complaint the Tribunal had a wealth of evidence before it as to steps which were considered, some which were taken, some which were not taken and in respect of those which were not taken the reasons why they were not taken. On that material we consider that it cannot be said that the conclusion reached by the Tribunal in dismissing the complaint under the Disability Discrimination Act was perverse. Accordingly we dismiss the appeal against the dismissal of the claim under The Disability Discrimination Act.