United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R DAVIDSON (Of Counsel) Instructed by Messrs Shah Solicitors 28 Chichester Way Garston Watford Hertfordshire WD2 7NY


 


JUDGE PUGSLEY

1. It is trite law to say parties to litigation have a right to a decision which explains in broad terms why they have won, why they have lost and is sufficiently specific in its legal directions to enable an appropriate tribunal to determine whether there was a misdirection in law. It is helpful for an appropriate tribunal to have grounds of appeal that are precise so one knows exactly what issue is being identified.
2. We are grateful to Mr Davidson who appears in this case but we must make it clear it is more difficult for a Tribunal - and for an Appellant's case to be put - where the grounds of appeal are too diffuse. The original grounds of this appeal made it difficult to see where the grounds ended and the skeleton argument began. It really is much better to have discrete grounds of appeal and then leave the argument about why the appeal should be sustained and how it can be sustained to a skeleton argument.
3. The facts of this case are sad. Unfortunately, the Appellant had a number of concerns which led to her being unhappy at work. These are set out at great length in the Tribunal decision. The decision runs to several pages of typed size. The Appellant is Asian and is partially sighted and is registered disabled. The Local Authority, the Respondent in this case said that at various stages they had sought the advice of the Royal National Institute for the Blind. The Tribunal had some considerable difficulty.
4. The claims that the Tribunal is concerned were those of race discrimination and discrimination under the Disability Discrimination Act 1995. The Tribunal complained in their determination in paragraph 6 that:

"The exact nature of the Applicant's complaints were at times difficult to ascertain. This was largely due to the Applicant herself in that she saw the process before the Tribunal as one of 'shifting sands'. Having given her evidence-in-chief she proceeded to add to that evidence and thereafter added to her complaints or indeed vary her complaints and revise her instructions to Counsel on her behalf as matters were raised with her in cross-examination or matters were raised during the course of other evidence. It was at times difficult to ascertain from the Applicant exactly what basis of complaint she was alleging in respect of each and every of the specific allegations she made, particularly with regard to the adjustment matters before the Tribunal and, in particular, whether she alleged that these related to her disability or entirely to her race or both. Therefore the Tribunal has in its determination viewed all the complaints as allegedly substantiating both the Applicant's complaints under the Race Relations Act 1976 and under the Disability Discrimination Act 1995. The Tribunal appreciates the efforts of Counsel on behalf of the Applicant in his repeated attempts to clarify the instructions that he was receiving on a regular basis during the course of the hearing and presenting the case as clearly as he did to the Tribunal."

5. The Tribunal then heard the evidence of various witnesses. Apart from the Applicant they heard the evidence of Mrs Heather Clements of the Royal National Institute for the Blind, and they heard various people on behalf of officers of the Respondents' Counsel.
6. The Tribunal then went on in paragraphs 8 onwards to make various findings. It is right to say that they do make ad hoc findings during the course of that decision. Mr Davidson who has approached this case with considerable fortitude and skill has not suggested he can point to any specific misdirection of law. Rather it is his case, as put in his skeleton argument, that the Tribunal have failed fundamentally to separate its conclusion and he has referred us to the case of Driskel v Peninsula Business Services Ltd. This was a well known decision to one member of this particular Tribunal since he was a member of the Tribunal that decides the case. That, is has to be said, was a case of sexual harassment. What the Tribunal said is at Driskel v Peninsula Business Services Ltd [2000] IRLR 151:

"The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the Tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on 'racial grounds'. The fragmented approach by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of common sense and judgment to the facts and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained."

7. We consider this argument put by Mr Davidson very carefully. In reality we think the Tribunal has looked at these cases not only on an ad hoc basis but in paragraphs 11, 12, 13 and 14 under their reasons we consider that there is also clearly a collective approach and that they have considered whether there was an underlying pattern.
8. We are bound to say that we regard this ground as the main thrust of the grounds of appeal. The other grounds of appeal, which as I say are not skeletal, are really an attempt to re-argue issues of fact which were no doubt argued before the Tribunal but which in our views do not constitute a misdirection in law.
9. A flavour of the grounds of appeal might be found in ground 7 (v):-. "The Tribunal's finding that the Respondents were under no duty to adjust the applicant's computer equipment because this was all contracted out to an independent contractor is wrong in law. These duties are non-delegable."
10. At first blush this seems an extremely powerful argument. Then you look at what the Tribunal actually said:

"The Applicant made complaint about her work station keyboard. However, it was apparent that the display screen was not a matter that was a problem to her and, indeed, she worked properly with the screen made available to her – it moved with her to a new desk in September1998. She complained that her CPU needed moving and ultimately this was moved, the Respondents themselves not being able to move it as it was a contracted out situation."

That does not come any where near to what is alleged in the grounds of appeal. There was in fact a delay in moving something because outside contractors were involved. That is far different. We have considered all the grounds of appeal in this case. We obviously with great sympathy for the Appellant but at the end of the day we do not consider that there is an arguable point of law. We have, as is obvious the time we have taken to consider listened very carefully to Mr Davidson's submission but in our view there is no ground of appeal, which constitute an error which would have been the reasonable arguable case and therefore we dismiss the appeal. As with many decisions, with hindsight, criticisms can be made of its drafting but in our view the tribunal were entitled to reach the decision they did.