United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P ABRAHAMS (Representative)
For the Respondents	MISS L CHUDLEIGH (of Counsel) Legal Services Department London Borough of Waltham Forest PO Box 6932 Sycamore House Town Hall Complex Forest Road London E17 4UL


 


MR JUSTICE CHARLES:

1. We have before us an appeal brought by Mrs Edwards. It is against a decision of an Employment Tribunal sitting at London (North). The Extended Reasons for that were sent to the parties on 20 January 2000. That decision was that Mrs Edwards, the Applicant's complaints of racial discrimination fail and are dismissed.
2. The Employment Tribunal sat for five days and then an additional day in Chambers. The original Respondents to the proceedings were a Mr P. Kilgariff and a Mr R. Simmonds who were employees of the London Borough of Waltham Forest. That Borough was added as a Respondent pursuant to an application to amend which was made on 9 October 1998.
3. The Originating Application was dated 3 July 1998. The claim made thereby was one for racial discrimination and was directed solely to the complaint, as described later in correspondence, that the Applicant had not been afforded access to promotion. The basis of that complaint was that a job, Senior Assistant (Invoices) which had been done by a Ms Margaret Willmott, was offered on a fixed term contract basis rather than a permanent basis, the change being from permanent basis to a fixed term contract basis.
4. At a directions hearing on 7 September 1998 the claim was described in the following terms:

"Whether the Respondent discriminated against the Applicant on the grounds of sex [and as the Employment Tribunal recognise in paragraph 2 of the Extended Reasons that is clearly a typing mistake for race] on 6 April 1998 by failing to afford her access to promotion contrary to section 4(2)(b) of the Race Relations Act 1976."

It is common ground between the parties before us today, who are represented by the same representatives as appeared before the Employment Tribunal, that (and I read from paragraph 3 of the Extended Reasons):

"3 At the outset of this hearing, the Tribunal sought to define the issues and it was agreed that the sole issue was whether the proposed appointment to the one-year fixed-term contract, or any of the issues surrounding that appointment, amount to an act of racial discrimination within section 1(1)(a) of the Race Relations Act 1976. In his closing submissions, Mr Abrahams [he is a friend of and represented the Applicant] has widened the issue, as we set out in paragraph 9 below. However, Miss Chudleigh [she represented the Respondents] has also widened the issue by referring to three issues arising from the 9 October letter. We refer to this again in our conclusions, in paragraph 11(i) below. There is, as a result of these various developments, an issue of jurisdiction. In resolving the various issues, we have heard evidence."[and then they set out who they heard evidence from].

Paragraphs 9 and 11(i) of the Extended Reasons are in the following terms:

"9 Miss Chudleigh's written submission for the Respondents is dated 16 August 1999. She chose not to respond thereafter to the Applicant's submission. Mr Abrahams' written submission of 28 pages annexed a bundle of Standing Orders, a further report to a committee and two pages relating to Committee cycles which he had also referred to during the hearing. For the full submissions, reference needs to be made to the document. He contends that earlier decisions by the Respondent concerning this post were matters of racial discrimination and that there was, therefore, 'continuing' discrimination within section 68(7) of the Race Relations Act (ie an act extending over a period). He submits that the delay in paying the honorarium amounted to racial discrimination by Mr Kilgariff. On the substantive issue, he submits that the Respondent's managers had no authority to change the status of the job to a fixed term contract. They could only advise, but could not do more. He describes the change as 'a big idea to save money for the Council'. He annexed a report in relation to a proposal to delete the post of Director of Personnel and Management Services so that the Personnel Department reported directly to the Chief Executive. He suggests that the senior assistant's post was changed in order to deter the Applicant from applying, and thereby denying her the permanent job. He relies upon the terms of the document at A1, page 102. He further contends that the decision about the post was not put to a committee because the two managers were well aware that the committees would reject any proposal. 'They were bent on stopping the Applicant … from becoming the first black person to occupy a Scale 6 post in their section'. This is said to be part of a pattern of discriminatory practices that disadvantaged black employees. He made other detailed submissions on the facts which are not repeated here.

11 (Conclusions)

(i) The precise issues in this case have given rise to some confusion. Miss Chudleigh in her written closing submission has identified from the 9 October 1998 letter these three issues: (a) the changing of the Senior Assistant (Invoices) post from permanent to temporary; (b) the First Respondent's failure to redress the alleged racial discrimination; (c) the allegation that delaying tactics were used so as to protect the First and Second Respondents. Mr Abrahams, as we have noted, raises continuing discrimination over a period of time."

Paragraph 11 (ii) of the Extended Reasons is in the following terms:

"(ii) Miss Chudleigh submits that the first of the three complaints is out of time, since the Applicant knew by July 1997 that the post would be for a fixed term. She submits that there is no jurisdiction to entertain the complaint as it is not part of a continuing act; and that the Applicant's delay in filing the IT1 should be a reason not to otherwise extend time for presentation of this complaint. We consider, first, that the allegation that there has been continuing discrimination is one that must be considered by the Tribunal in the light of the serious allegations that the Applicant makes. If she is to fail in this regard, we consider that it is just and equitable to extend time so that the first complaint, in itself, can be adjudicated. We note that the discretion provided by section 68(6) of the Race Relations Act 1996 is a wide one. The evidence that we have heard discloses that the parties were engaged in an ongoing grievance process which did not end until 19 August 1998, after submission of the IT1. The Respondents have asserted no prejudice in dealing with the complaint, indeed, have met it with full evidence. No jurisdictional objection was set out in the IT3 or amended IT3 or was notified to the Tribunal during the hearing. We consider that it would be unjust and inequitable for the jurisdictional objection to prevail. Accordingly, time is formally extended for the purpose of raising this complaint."

5. It is apparent from those paragraphs, to our minds, that the only extension of time that was given was in respect of the complaint relating to the offer of the job on a fixed term contract basis rather than on a permanent basis. No other extension of time is given. In dealing with extension of time the Employment Tribunal do not comment on the date included in the claim as identified at the directions hearing on 7 September 1998, namely 6 April 1998, (see the first quotation in paragraph 3 above) but in our judgment noting turns on that.
6. We raise these points at the start of this judgment for two reasons. Firstly, the function of the Employment Tribunal is to determine liability in respect of complaints that have been made within the relevant statutory time limit or complaints in respect of which time had been extended pursuant to the statutory discretion to extend time (see, for example Chapman v Simon [1994] IRLR 124 which has been followed on a number of occasions by this Tribunal). Secondly, in considering whether an Employment Tribunal has satisfied their duty to give reasons (see Meek v City of Birmingham District Council [1987] IRLR 250) this Tribunal must always keep in mind the issue that the Employment Tribunal is dealing with in the relevant point of their Extended Reasons. This is confirmed, for example, in the judgment of Peter Gibson LJ in High Table v Horst [1998] ICR 409 at page 420 E.
7. At the preliminary hearing of this appeal a number of the grounds contained in the original Notice of Appeal were found not to be reasonably arguable and therefore those grounds were dismissed. The result was that there was an amendment to the Notice of Appeal to reflect the two points identified by this Tribunal in the judgment given at the preliminary hearing as being reasonably arguable. That judgment was delivered by the President. The amended Notice of Appeal faithfully follows his identification of arguable grounds of appeal and is in the following terms:

"In accordance with the judgment of the Employment Appeal Tribunal, given on the 16^th day of October 2000, the Appellant's Notice of Appeal has been amended to read as follows:

1. That the Tribunal erred in law in relation to their finding in paragraph 11(iv) that 'The circumstances were different' in that so to hold without explaining, at least in outline, what the relevant circumstances were in the Applicant's case and in the cases of the two comparators, Hannah Stamp and Carol Boardman, and in what respects they were different, amounted to a breach of the principles adumbrated in Meek v The City of Birmingham.

2. That the Tribunal erred in law in relation to its holding in its paragraph 11(vii) that 'the allegation that they subjected the Applicant to less favourable treatment than would have been received by another of a different race fails'. It is that so to hold without explaining at least in outline the relevant circumstances in which Mary Lock, Paul Richardson, David Trott and Margaret Willmott were given the opportunity to apply for the Senior Assistant (Invoicing) position as a permanent position and in which Mrs Edwards was not amounted to a breach of the Meek principle."

8. Paragraphs 11(iv) and 11(vii) of the Extended Reasons are in the section thereof under the heading "Conclusions" and they are in the following terms:

"(iv) We conclude that the Respondent acted reasonably promptly in deciding on the honorarium after the Applicant informed Mr Kilgariff of her workload in August 1997. She then went off sick. She did not complain about differential treatment in respect of the honorarium in her grievance, in the IT1 or in her written witness statement. In so far as the Respondent has accepted that two white employees received honoraria without any delay, we accept that the circumstances were different. We do not regard the delay in taking the decision in relation to the Applicant as being unreasonable, especially as she was away from work. We found Mr Kilgariff's explanation to be acceptable. We conclude that there was no less favourable treatment of the Applicant, when compared to the treatment that was afforded, or would have been afforded, to others of different race. We would, further, add that we consider that it would be wrong to infer from any delay in payment that race was a relevant factor in the managers' minds.

(vii) The contention has been made that the two managers took the decision to offer the post on a temporary basis because they were motivated by a desire to deny promotion to the Applicant. There is, we conclude, no evidence to support such a view, nor is there evidence from which it could be inferred. The clear evidence is that the managers were at pains to ensure that, if she took the one year job, the Applicant's existing post would be filled for one year only; that this was for the protection of the Applicant's position; and that she was promptly informed of this: see paragraph 7(x) and (xi) above. In our view, this demonstrates that they were acting bona fide. The allegation that they subjected the Applicant to less favourable treatment than would have been received by another of a different race fails. The contention that race was a ground upon which the decision was taken is also rejected."

9. Those paragraphs cannot be read in isolation. It is well established, not least by the Meek case that Extended Reasons should be read generously, a fine tooth comb should not be employed and the wording should not be subjected to the same scrutiny that is, for example, given to the wording of a Statute.
10. Within the conclusions paragraphs themselves, in our judgment, subparagraph 11(iv) has to be read with the conclusions I have already referred to as to extension of time. Subparagraph 11(vii) has to be read with the two subparagraphs leading into it, beginning with subparagraph 11(v) which is where the Employment Tribunal turn to consider what they describe as "the substantive issue of the fixed term contract". In addition, and to our minds of considerable importance, in this respect is the point that paragraph 11 also has to be read in the context of paragraph 7 thereof. It is in paragraph 7, which is under the heading "Facts" that the Employment Tribunal in a number of separate subparagraphs set out their findings of fact. All of paragraph 7 is important but we highlight subparagraphs (ii), (iii), (v), (viii) to (xii) inclusive and the assessment of the evidence given by the two individual Respondents Mr Simmonds and Mr Kilgariff in subparagraphs (xvi) and (xviii).
11. I turn now to deal with the first ground of appeal which relates to paragraph 11(iv) of the Extended Reasons.
12. As appears from that paragraph it relates to the payment of an honorarium to Mrs Edwards, the Applicant, and thus to something which Mr Abrahams, on her behalf, was asserting before the Employment Tribunal amounting to racial discrimination. As Mr Abrahams has explained this claim to us today it is put in summary in the following way. The allegation was that Mrs Edwards was "acting up" from some time in 1996 and we have been shown a letter dated August 1996 from Mr Kilgariff to Mrs Edwards which refers to a letter she had written to him which seeks a payment for "acting up". Mr Abrahams told us that part of this allegation was that through 1996 and until 1997 Mrs Edwards was seeking such payment and was not being paid an honorarium.
13. The Employment Tribunal take up the story in subparagraph (x) of paragraph 7 of the Extended Reasons and deal with it by reference to the documents which we have seen starting in August 1997 and thus during a period relating to the offering of the Senior Assistant (Invoicing) position for a fixed term period.
14. The comparators referred to in the ground of appeal were other employees of the Council who were, so it is alleged, paid an honorarium without demur or delay in 1998. We were also referred by Mr Abrahams to a document from Mr Simmonds dated November 1997 recording that Mrs Edwards should be paid an honorarium and, as we understand it, it was common ground that as a result of that document in late 1997 she was paid an honorarium commencing in August 1996. Therefore the period of alleged delay in respect of the honorarium payment ended in November 1997 (and no extension of time was given in respect of it).
15. The issue as to the honorarium was not raised in the Originating Application. We have not been shown any document which can be said to have raised it as the basis of a claim prior to the hearing. However it is clear that during the hearing issues relating to the honorarium were raised and for present purposes we accept that points were raised in argument and put during the evidence concerning the payment for an honorarium to two employees in 1998.
16. Further it was put to us that the agreement recorded in paragraph 3 of the Extended Reasons, which I have already read out, and the qualification to it in the phrase "or any of the issues surrounding that appointment" included a substantive claim being made in respect of the complaint relating to the honorarium. We do not accept that interpretation of that paragraph of the Extended Reasons. To our minds, on a fair reading of the Extended Reasons, the issue as to the honorarium was being put before the Employment Tribunal in support of what is described as "the substantive claim relating to the proposed appointment to the one year fixed contract" both for the period before that in 1996 and as to the period whilst that contract was on offer and up to the end of 1997. It was also, as we understand it, part of the arguments which were being put on behalf of the Applicant by Mr Abrahams, both in writing and orally, that there was a continuing act of discrimination, albeit as we have said this complaint would have ended in 1997 absent a free-standing and further finding as to a continuing act based on a policy of the Council.
17. The issue therefore as a free-standing issue was one that was out of time. Alternatively as an issue or complaint which was part of the arguments relating to an extension of time it is one which became redundant when the Employment Tribunal determined that they would extend time for what they describe as "the substantive complaint" on just and equitable grounds.
18. It is in those circumstances that it falls to us to determine whether or not ground (1) of the Notice of Appeal, namely whether paragraph 11(iv) of the Extended Reasons satisfies Meek principles is a good one or a bad one.
19. In our judgment that ground of appeal is a bad one having regard to the circumstances in which the issue relating to the honorarium arose and its relevance which I have already described. It seems to us that in those circumstances paragraph 11(iv) deals with it perfectly adequately.
20. A further issue was raised in argument by Mr Abrahams that the conclusion expressed in the first sentence of paragraph 11(iv) of the Extended Reasons was perverse because it failed in express terms to refer to and deal with the issue through 1996. So far as that is concerned we note that in the middle of the paragraph a reference is made to Mr Kilgariff's explanation. We have not found that in the Extended Reasons but we were pointed to notes of cross examination which show that he gave an explanation. It seems to us that the argument based on perversity also fails because there was evidence before the Employment Tribunal (i.e. Mr Kilgariff's explanation) upon which they could have reached, and did reach, the conclusions that they did.
21. I turn now to the second ground of appeal which relates to paragraph 11(vii) of the Extended Reasons.
22. The Respondents accept that two of the comparators referred to in this ground, namely David Trott and Margaret Willmot are referred to in the Originating Application but they point out correctly that they are also referred to in the Extended Reasons. The other two comparators referred to in this ground of appeal, and who it is argued the Employment Tribunal should have dealt with in their Extended Reasons are Mary Lock and Paul Richardson. Mr Abrahams asserts on behalf of the Appellant that reference was made to these two employees during the course of the hearing. They held the position of Senior Assistant (Invoicing) prior to the job sharing between David Trott and Margaret Willmott and therefore their time in that post. We will assume in favour of the Appellant that they were so mentioned. It is however apparent that they were not put at the forefront of any argument by reference to comparators and, indeed, as we understand Mr Abrahams' position, he says that they really came into play during and as a result of cross examination of Mr Kilgariff in which he described previous holders of that post.
23. The argument that was advanced on behalf of the Applicant, as the foundation of her claim for racial discrimination, was that other white employees had been offered that post on a permanent basis but when it came to a time when the post might be offered to her, or she could apply for it, the change was made and it was offered on a fixed term basis. Thus as comparators the difference therefore between (i) David Trott and Margaret Willmott and (ii) Mary Lock and Paul Richardson is not a big or significant one. Indeed the later holders of the post would seem to be the most important comparators and this is reflected in the fact that they were mentioned in the Originating Application.
24. It seems to us, reading the Extended Reasons as a whole, that the failure to refer to previous holders of the post, namely Mary Lock and Paul Richardson, does not provide a good ground of appeal.
25. Additionally we invited submissions from the Respondents' Counsel as to why she argued that subparagraph 11(vii) of the Extended Reasons showed with sufficient clarity that the Employment Tribunal had applied the correct approach to the statutory question. What concerned us in subparagraph 11(vii) was whether by reference for example to the use of the word "motivated" and the use of the expression "this demonstrates that they [the Authority] were acting bona fide" it could be said that the Employment Tribunal had erred and taken a subjective approach or one based purely on motive, rather than one which asked the stautory question and went through the approach exemplified in the King case.
26. In answer we were referred to paragraph 10 of the Extended Reasons and to the written submissions put in on behalf of the Respondents, both of which refer to the cases of King and Zafar. In particular, the Employment Tribunal set out in paragraph 10 the approach explained and set out by Lord Justice Neill in the King case. We were then referred, in particular to paragraph 7 (ii), (iii) and (viii) of the Extended Reasons as to the findings of fact made by the Employment Tribunal on the reason advanced by the Respondents as to why the job was offered on a fixed term contract basis.
27. Having particular regard to those passages in the Extended Reasons it seems to us that the Employment Tribunal took the correct approach by first of all identifying that there was a case to be answered flowing from the reference that the Applicant made to the comparators she expressly advanced and therefore there was a need to examine the reason put forward by the Respondents for offering the post on a fixed term contract basis. Those reasons are set out in subparagraph 7(viii) and, indeed, subparagraphs 7(ix) and 7(x) of the Extended Reasons and they are advanced by the two individual Respondents whose evidence generally the Employment Tribunal found to be credible.
28. As Counsel explained to us and we accept, having heard her submissions and seen her written submissions, the defence that was being advanced by the Respondents was that they had demonstrated a good business reason for the offer being made on a fixed term basis and therefore provided evidence, both positively as to causation and evidence which they submitted could and should lead the Employment Tribunal not to infer that issues of race were a part of the reason for the decision to offer the contract on that fixed term basis.
29. That being so, it is in our judgment the case that when the Extended Reasons are read as a whole and fairly they demonstrate that the Employment Tribunal did ask themselves the correct statutory question, did approach the claim in the correct way and do properly explain to the Applicant why she lost the case. In short, it is because they accepted the reasons being put forward by the Respondents as to why the post was offered on a fixed term contract rather than as a permanent post.
30. For those reasons the second ground of appeal also fails.
31. Before leaving this case we would like to express the hope that Mrs Edwards will now put this matter behind her and, indeed, we would seek to encourage her to do so and to continue with her life with it being put firmly in the past.