United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS N H MALLICK Instructed by Messrs Fisher Meredith Solicitors 2 Binfield Road Stockwell London SW4 6TA


 


JUDGE PETER CLARK

1. This is an appeal by Miss Bangura, the Applicant before the London (Central) Employment Tribunal, against so much of that Employment Tribunal's decision, promulgated with extended reasons on 7 November 2000, as dismissed her complaint of unlawful racial discrimination brought against her former employer, the Respondent Radisson Edwardian Hotels Ltd.
2. A complaint by the Appellant of unfair dismissal was upheld by the Employment Tribunal. There is no appeal against the basis on which the Employment Tribunal assessed compensation for unfair dismissal.
3. The Appellant presented her complaint to the Employment Tribunal on 28 October 1999. A number of allegations of discrimination pre-dated 29 July 1999, when the ordinary 3 months time limit began to run. The Employment Tribunal held that it was not just and equitable for time to be extended under section 68(6) of the Race Relations Act 1976. There is no appeal against that finding, given the wide discretion afforded to Tribunals by that provision - see Hutchison v Westward Television Ltd [1977] ICR 279.
4. As to those complaints which were within time, this appeal focuses on 2 allegations, namely:

Allegation 7, which read:

"The Respondent failed to invoke correct disciplinary procedures and therefore treated the Applicant less favourably on account of her race."

And Allegation 9:

"The Respondent dismissed the Applicant and therefore treated the Applicant less favourably on account of race."

Background

5. The Appellant commenced employment with the Respondent as a chambermaid on 27 May 1996. She came to this country from Sierra Leone in 1994. She is black. Her first language is Krio.
6. She was dismissed at a disciplinary hearing held on 30 July 1999, by the Respondent's Human Resources Manager, Mr Mudford, arising out of an incident on 27 July 1999 when she was said to have verbally threatened the deputy head housekeeper of the Respondent's Marlborough Hotel at which the Appellant worked, Mrs Carlesso and her daughter.
7. Dealing with the in-time allegations, numbered 7 and 9, the Employment Tribunal found that the dismissal was procedurally unfair, hence she was offered reinstatement by the Respondent on internal appeal, an offer which she did not take up. The Employment Tribunal was not prepared to infer that the Appellant was treated less favourably on grounds of her race by virtue of the procedural failings by the Respondent in dismissing her or the fact of her dismissal for gross misconduct.

The Appeal

8. In advancing the appeal Miss Mallick submits that in relation to both of the relevant allegations of discrimination the Employment Tribunal failed to consider whether or not the Appellant was less favourably treated than a hypothetical comparator. Thus at paragraph 42 of the Employment Tribunal's reasons, in rejecting allegation 7, the Employment Tribunal say this:

"The Respondent did indeed fail to invoke correct disciplinary procedures. Mr Mudford dealt with the situation in a wholly inappropriate manner for a human resources professional. However, Miss Bangura has not produced any comparator. There is no evidence from which the Tribunal can infer that the failure to invoke correct disciplinary procedures was on account of Miss Bangura's race."

And in relation to the 9^th allegation, at paragraph 44 the Employment Tribunal find:

"The Respondent did dismiss Miss Bangura. The reason for the dismissal is set out below and was a reason relating to Miss Bangura's conduct. No comparator has been put forward who made threats to Mrs Carlesso or any other member of staff and has not been dismissed. The allegation is therefore not proved on the balance of probabilities."

9. In considering that submission we bear in mind the Employment Tribunal's self direction in this case at paragraph 31 of their reasons, setting out the well-known guidance of Lord Justice Neill in King -v- Great Britain-China Centre [1991] IRLR 513 and referring also to the House of Lords' speeches in Zafar -v- Glasgow City Council [1998] IRLR 36. Since the Employment Tribunal had that guidance in mind whilst it is clear that they record as was the fact that no actual comparator was relied upon by the Appellant in relation to the 7^th and 9^th allegation of unlawful discrimination, we are not prepared to accept that they ignored the question of hypothetical comparator.
10. We think reading the Employment Tribunal's reasons at paragraph 42 and 44 that they had in mind particularly cases such as Chapman -v- Simon [1994] IRLR 124 which make it clear that before drawing an inference of unlawful discrimination the Employment Tribunal must first make the necessary primary findings of fact on which such an inference can properly be based.
11. When the Employment Tribunal say that there is no evidence from which they can infer that the 7^th allegation is made out they plainly have in mind that there was no evidence to suggest that Mr Mudford would have made any better job of disciplining another employee of a different race.
12. Similarly, so far as the dismissal itself is concerned, it is quite clear that the Employment Tribunal was satisfied that the only basis for dismissal lay in the misconduct alleged against the Appellant and that there was no conscious or unconscious/sub-conscious discrimination by Mr Mudford on the grounds of the Appellant's race.
13. In these circumstances we are unable to discern any arguable error of law in the Employment Tribunal's approach such as to allow this matter to proceed to a full hearing with both parties present. Accordingly the appeal must be dismissed.