United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R JOHNSON (Husband)


 


MR JUSTICE CHARLES:

1. We have before us an appeal by way of preliminary hearing. Our task on such a hearing is to consider whether or not the appeal raises any points of law that are reasonably arguable.
2. The Appellant is a Mrs Johnson. The Respondents to the appeal are Mrs Eales, Ms Buckfield and a company called Nursing Management Services (UK) Ltd, who were the Respondents before the Employment Tribunal.
3. The Appellant has appeared before us through her husband. Unfortunately, she is not well today and therefore has not been able to attend. Our understanding is that her husband also represented her before the Employment Tribunal.
4. The appeal is against a decision of an Employment Tribunal sitting at London South. The hearing lasted five days in September 2000. The Extended Reasons for the decision were sent to the parties on 9 November 2000. The decision of the Employment Tribunal is recorded at the beginning of the Extended Reasons and is as follows:

"(i) the Respondent did not unlawfully discriminate against the Applicant either on the ground of her sex or on racial grounds in connection with the non-payment of rent on 1 Jubilee Court, Thornton Heath;

(ii) the Respondent did not unlawfully discriminate against the Applicant either on the ground of her sex or on racial grounds as to the manner/character of the questioning of the Applicant concerning syringes found at 1 Jubilee Court, Thornton Heath;

(iii) the Applicant was unfairly dismissed;

(iv) the Applicant's complaint of breach of contract is not well founded and is dismissed."

The Employment Tribunal then adjourned the hearing for remedy in respect of the unfair dismissal finding.

5. The Notice of Appeal and further documents put in on behalf of Mrs Johnson indicate that the appeal is against the dismissal of the claims for discrimination and of the breach of contract claim.
6. The breach of contract claim is dealt with in paragraph 36 of the Extended Reasons. Mr Johnson has not focused on that in his oral submissions. It seems to us looking at paragraph 36 that it is not reasonably arguable that the Employment Tribunal erred in law in respect of their dismissal of the breach of contract claim which, as we understand it, was a claim that her employer was in breach of contract in not paying rent. Accordingly, we do not give permission for the appeal against that decision to go ahead.
7. We turn to the main grounds of the appeal argued before us which relate to the dismissal of the two claims for discrimination. The nature of those claims appears from the findings themselves and from paragraphs 5 and 6 of the Extended Reasons. Paragraph 5 is in the following terms:

"The Applicant makes complaints of unlawful direct race and sex discrimination as follows:

(i) a complaint as to non-payment of rent against the First and Third Respondents. The comparators for this complaint of non-payment of rent are Mr Matthew Brice (white/male) and Ms Margaret Thompson (white). Ms Thompson shared with the Applicant at 1 Jubilee Court for a period of time and Mr Brice lived in other premises. It is alleged that both comparators had their rent paid continuously by the Third Respondent.

(ii) a complaint as to accusations concerning syringes found at 1 Jubilee Court which complaint is made against all three Respondents. In particular the complaints are as to the manner/character of the questioning of the Applicant concerning the syringes, which questioning is alleged to have been in breach of procedure and accusatiorial intenor. The Applicant considers that she would not have been treated in that manner had she been white/male."

The nature of the defence to those claims appears from paragraph 6, which is in the following terms:

"The Respondents resist both complaints of unlawful race and sex discrimination:

(i) although the non-payment of rent is admitted, it is alleged that it was not less favourable treatment of the Applicant on the grounds of her sex or on racial grounds such arrears arising through administrative oversight.

(ii) there was no consequence of non-payment of rent. The landlord did not distrain for rent. The landlord carried out an inspection of the property on 11^th February 1999 which was unconnected with the non-payment of rent.

(iii) having been informed by the landlord's agent of the presence of syringes at 1 Jubilee Court the Third Respondent considered that it was a serious matter and acted appropriately irrespective of the race and/or sex of the Applicant."

8. The conclusions of the Employment Tribunal on those claims appear at paragraphs 29 to 31 of the Extended Reasons which follow a lengthy passage within the Extended Reasons contained in subparagraphs, of paragraph 14, where a number of facts are found by the Employment Tribunal as to the non-payment of rent, the visit by the managing agents, the manner in which cleaners attended at the property and followed by findings relating to the nature of the investigation of the report from the cleaners (through the managing agents) that syringes had been found at the property. They are also preceded by paragraphs (essentially paragraphs 24 to 26) in which the Employment Tribunal correctly identified the legal issues. Paragraphs 29 to 31 of the Extended Reasons are under the heading "Tribunals Deliberations and Conclusions" and those paragraphs are in the following terms:

"29 The Applicant's first complaint is one of unlawful race and sex discrimination as to non-payment of rent on 1 Jubilee Court. The Tribunal noted that there were arrears of rent on 1 Jubilee Court, however the Tribunal is also satisfied that such arrears did not amount to unlawful race and/or sex discrimination for the following reasons:

(i) there is no evidence that there were not rent arrears on other properties. The evidence was that the Third Respondent regularly and as a matter of practice ran up rent arrears on most if not all of its properties. However this was a practice condoned by the landlord/landlords agents;

(ii) accordingly there appeared to be little or no evidence of any difference of treatment. However even if there was a difference of treatment the explanation for the arrears of rent accepted by the Tribunal indicated that the arrears had risen without regard to the Applicant's gender/race. Those arrears had arisen initially due to problems with the standing order on change of banks, but also due to the standing order having been stopped so as to recoup an overpayment on another property and the letting agents overlooking the need for the standing order to be reactivated following that overpayment having been cleared;

(iii) furthermore there was no detriment as a result of the non-payment of rent. The Applicant continued to reside in the property and the problems which arose and which the Applicant and her husband discovered upon their return from holiday had nothing to do with the rent arrears, but all resulted from the concerns of the letting agent as to the state of the property when he inspected it on 11^th February.

Accordingly the Tribunal, without hesitation, finds that the Applicant's unlawful discrimination complaints as to non-payment of rent must fail.

30 The Applicant's second head of unlawful discrimination concerns the manner/character of the questioning of the Applicant concerning the syringes found on the property. The Tribunal is satisfied that the Respondents were genuinely concerned as to the syringes found on the property and considered that they required an explanation. The Tribunal finds that the Applicant was asked on two occasions for an explanation for syringes having been found on the property. The first of those occasions was by Mrs Buckfield on 22 February 1999 when she visited the property with Ms Swann and showed the Applicant the letter from Mr Suppu and directly asked for an explanation. The second occasion was when Mr Eales telephoned on 4^th March. On that occasion he did not speak to Mrs Johnson but left a message on the answer phone. Thereafter the matter was taken up by solicitors.

31 The Tribunal cannot find that any such requests for an explanation amounted to either race or sex discrimination. There is no evidence from which the Tribunal could find that a male/white nurse in the same or not dissimilar circumstances would not have been asked the same question and in the same manner."

9. The conclusions that are set out in those paragraphs reflect the issues between the parties on the facts and the legal issues that arose. Those conclusions are essentially findings of fact made by the Employment Tribunal. It is also apparent from the findings in paragraph 14 of the Extended Reasons, the documents we have seen and the length of the hearing before the Employment Tribunal that the Employment Tribunal had evidence before them upon which they could base those findings.
10. The Notice of Appeal raises a number of grounds in paragraph 5 thereof. Mr Johnson has not dealt with all of those in his oral submissions. We have, of course, read them as we have also read an affidavit he has put in for the purposes of this hearing and his skeleton argument. We are grateful to him for those documents.
11. In this judgment I propose to concentrate on the submissions he has made to us orally. I should however add that we have not identified within subparagraphs (ii) to (iv) of the grounds of appeal and the skeleton argument any point that is reasonably arguable. I should also mention that in the skeleton argument, and also through the affidavit, points are raised by reference to Article 6 of the European Convention on Human Rights and thus the Human Rights Act 1998. These are points of bias or procedural unfairness. The approach to be taken to those allegations is an objective one looking at the matter from the viewpoint of the reasonable man. The tests to be applied both before and after the application of the Human Rights Act, which came into force on 2 October 2000, have recently been fairly exhaustively examined in two Court of Appeal decisions. The first is Locabail UK Ltd v Bayfield Properties Ltd [2000] 2 WLR 870 which dealt with the position before the introduction of the Human Rights Act and then in In re Medicaments and Related classes of Goods (No 2) [2001] 1 WLR 700 dealing with the position after the coming into force of the Human Rights Act. In this case a technical point could arise by reference to the fact that the hearing took place before the Human Rights Act came into force.
12. We have considered both tests and, as indeed is pointed out in Locabail and confirmed in Re Medicaments, it would be unlikely that they would provide a different answer. We have therefore applied the "real danger" and the "real apprehension" tests and in our judgment there is no reasonably arguable case that there was bias or procedural impropriety on either test.
13. I turn now to the points emphasised in oral argument by Mr Johnson. He started (and if I may say so, understandably started) by referring to paragraph 30 of the Extended Reasons which is the paragraph that focuses upon the second head of unlawful discrimination relied on. This related to the manner and character of the questioning of Mrs Johnson concerning the syringes. He then took us to paragraph 5 of the affidavit he has put in which is in the following terms:

"Ms Buckfield, under cross-examination by Mr Johnson, said that she was an expert on the behaviour of Blacks, from her long experience of collecting and transporting Black nurses, from airports to hospitals, as early as 03.00 hrs, and if they do not look you in the face and stare you eyeball to eyeball, then they are telling lies. Further, that she did not need any Race Awareness Training, despite 70% of NMS workforce being Black nurses, as 'I am a mother', her only necessary qualification for her post of Logistics Manager."

Mr Johnson says that that is evidence of stereotyping and an approach adopted by Ms Buckfield which indicates discrimination and/or victimisation.

14. For present purposes we accept that that paragraph reflects Mr Johnson's recollection of an exchange between himself and Ms Buckfield in cross-examination. However, as I have already said, the Tribunal examined and, in paragraph 14 and its subparagraphs, set out the history of the questioning and the investigation in respect of the syringes and focused their attention on that and also, in particular, the manner and character of the questioning.
15. The relevant factual issue was therefore full square before the Employment Tribunal and, although they do not expressly mention this exchange in cross-examination in their Extended Reasons, in our judgment on a fair reading of those Extended Reasons they have reached a conclusion on the facts which is contrary to the assertions made by the Applicant as to the nature of that questioning which assertions she argues are and were supported by that answer in cross-examination given by Ms Buckfield.
16. On analysis therefore it seems to us that this line of argument is simply an attempt by the Appellant to re-argue the facts and we confirm that (a) we have approached this issue on the basis that we have accepted that the exchange with Ms Buckfield in cross examination that is relied on did take place, and (b) it is not expressly mentioned in the Extended Reasons.
17. The approach that this Tribunal takes in the consideration of Extended Reasons is a broad one. The issue here was one of fact. The particular findings in paragraph 14 of the Extended Reasons and the general findings in paragraph 30 thereof make it clear that the Employment Tribunal found against the Applicant on the facts in respect of this issue.
18. The other points that were particularly brought to our attention related to other paragraphs in the affidavit of Mr Johnson. Paragraphs 6 and 9 relate to an allegation that Mr Johnson was not allowed to refer to crucial documents which demonstrated or confirmed the financial difficulties that he says Mr Eales confirmed under oath. The relevance of this, he said, went to the point that such evidence would indicate that contrary to the finding of the Employment Tribunal the company would not have overpaid a landlord and therefore have had a credit. The relevance of that, it was said, is that because of that credit rent was not paid for a period in respect of the property occupied by Mr and Mrs Johnson and when the credit ran out, through an oversight, rent was not paid which gave rise to the arrears. We confess, it seems to us, that the point that the company was in financial difficulties does not lead to a conclusion that that credit did not exist and it seems to us again that this is a matter in which Mr Johnson, on behalf of his wife, is simply trying to have the facts re-argued.
19. Paragraph 10 relates to the point that Mr Johnson asserts that the comparator's point was not adequately dealt with at the hearing. In our judgment a proper reading of the Extended Reasons shows that it was. Again, this is linked to the conclusions reached by the Employment Tribunal which, we repeat, are essentially ones of fact. The same can be made as to paragraphs 7 and 8 of Mr Johnson's affidavit. Paragraph 8 is in the following terms:

"Mr Eales under Oath, Mr Peters concluding his cross-examination, said to Mr Eales [Mr Peters was the Chairman of the Tribunal] 'You set up Mrs Johnson'. Mr Eales did not deny this finding, but hang his head down."

20. The conclusions of fact reached by the Employment Tribunal clearly take into account the views of the Employment Tribunal on the answers and reactions to their own questioning of the witnesses and the questions put by the parties. Again, we proceed on the basis that paragraph 8 of the affidavit accurately reflects Mr Johnson's recollection but for equivalent reasoning to that given in respect of paragraph 5 of the affidavit and his recollection of Ms Buckfield's evidence we have concluded that this is also an attempt to re-argue the facts and this paragraph of the affidavit does not provide good grounds for giving permission to appeal and/or to seek further information as to the content of the evidence to consider further whether or not permission should be given to appeal.
21. That deals with the specific points raised by Mr Johnson before us this morning.
22. I repeat that we have examined the other points put forward by him in writing. In short, in our judgment again those raise no reasonably arguable points of law. The primary reason for that conclusion is that paragraphs 29 to 31 of the Extended Reasons read in context show that the matter was decided, having regard to the correct tests in law and was resolved by the findings of fact recorded in those paragraphs.
23. For those reasons this appeal is dismissed.