United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R BROOKS (Representative)


 


MISS RECORDER SLADE QC:

1. This is the preliminary hearing of an appeal against a finding of an Employment Tribunal that the Appellant was not discriminated on grounds of her race. There is also an appeal against the amount that the Tribunal considered was owing in respect of deduction from wages.
2. This Employment Appeal Tribunal has had before it a very full Notice of Appeal and Skeleton Argument and also has heard, at length, from Mr Brooks who has represented the Appellant.
3. The Appellant was employed by the Respondent for a short time as a dental nurse from 16 August 1999 to 12 October 1999. It is apparent from the Originating Application and the Notice of Appearance in this case that those dates were not in dispute between the parties when the matter came before the Employment Tribunal. The grounds of appeal may be summarised as follows.
4. First, that the decision of the Respondent to retain another employee dental nurse rather than the Appellant and to dismiss the Appellant was made on grounds of race and the decision that it was not so made was perverse. Subsumed in an attack on that decision is an attack on the conclusion of the Employment Tribunal that Mr Dharrie-Mahara a dentist who worked at the practice did not act through racial motivation.
5. Second, that the Tribunal should not have accepted evidence which was put before it about the absences from work of the Appellant. It was claimed that since original documents were not available the evidence that was put before the Tribunal should not have been accepted.
6. Further, it was said that the Tribunal wrongly admitted certain other evidence and documentation. It was claimed that the Tribunal wrongly admitted the evidence of another dentist, Mr Khanna, by way of a written statement and it is also said that the Tribunal wrongly admitted the Respondent's reply to the Race Relations Act questionnaire and a document, which was said to be the original Notice of Appearance in this case.
7. In addition to the attack on the finding that the Appellant was not discriminated against on grounds of race, it is also said that the finding on wrongful deduction from wages was made in error.
8. There is a suggestion running through the grounds of appeal, the skeleton argument and the submissions made to us, that the Tribunal was biased and there was also an allegation made that the Appellant was entitled to payment of wages to date and that entitlement did not cease one week after 12 October 1999.
9. As Mr Buckley, the Chairman of the Tribunal which conducted the substantive hearing of Miss Gathirwa's complaints, stated in his letter of 26 September 2000, the majority of the allegations of bias relate to interlocutory decisions. There was no appeal against any interlocutory order and Mr Buckley did not deal with any of the interlocutory matters. The complaints made about the conduct of the hearing do not raise an arguable case of bias.
10. As we have explained to Mr Brooks, appeals to this Employment Appeal Tribunal can only be brought on the basis that the Employment Tribunal has erred in law, or on the basis that it reached a conclusion that is perverse in the sense that no reasonable Employment Tribunal, properly directing itself, could have reached that conclusion.
11. Turning to the attack made on the finding that there had been no race discrimination in the dismissal of the Appellant, the Tribunal set out its reasons for reaching that conclusion at page 8 of its decision at paragraph 17 (g). The Tribunal having heard the evidence, including the evidence that the Appellant had not made a favourable impression as to her ability to do the job and her ability to attend consistently and punctually, formed the view that the explanation for termination of employment which was given to them by the Respondent was credible and non-racial and therefore concluded that the claims of race discrimination in relation to dismissal are not established.
12. It is for an Employment Tribunal to assess the evidence which is presented to it and to draw its conclusions from it. No error of law or perversity has been demonstrated in the Employment Tribunal reaching the conclusion that it did.
13. Further, the Tribunal's view that Mr Dharrie-Mahara was not acting through racial motivation when he asked for the other dental nurse, Ms Castilla, to assist him at the surgery and not the Applicant on one occasion was challenged. That finding is not in our view material to the principal decision dismissing the complaint of race discrimination against Mr Sheridan. Its conclusion that Mr Dharrie-Mahara wanted Ms Castilla to assist him because in his professional judgment her experience was needed is a conclusion which is, in our view, entirely unobjectionable. No basis for the attack on that conclusion has been put before us.
14. We now turn to the appeal against the Tribunal's approach to the claim for wages. So far as the calculation of the money claim is concerned, the Tribunal clearly stated the basis upon which it concluded that a certain amount was owing and made a finding in favour of the Appellant. The calculation of the amount owing was made on the basis of a pay slip in the Appellant's own bundle. We do not accept the suggestion which is advanced to us that the Tribunal must have relied upon inadmissible evidence to reach the conclusion that it did.
15. So far as the question of whether or not the Appellant worked on certain days so as to entitle her to additional payment, we do not accept the submissions made on her behalf that because primary documents were not available, the Tribunal ought not to have proceeded to reach the conclusion that it did in paragraph 14(l) of its Decision. It was a matter for the Tribunal to assess the evidence and its quality and to decide whether or not to accept it.
16. As for the appeal against the failure of the Tribunal to make any award in respect of wages after 12 October 1999 there is no basis for contending that the Appellant's employment continued beyond that date. In our view the appeal against the amount awarded in respect of wrongful deduction of wages discloses no arguable point of law.
17. It has been said that the Tribunal erred in including in the bundle of documents the reply to the Race Relations Act questionnaire and what is said to be an original Notice of Appearance and also, as previously mentioned, a statement from Mr Khanna.
18. In paragraph 17 (b) of its decision The Tribunal expressely stated that it did not accept the written witness statement from Mr Khanna.. There is nothing in its decision which suggests that it acted otherwise.
19. So far as response to the Race Relations Act questionnaire and the original (so called) Notice of Appearance are concerned, Mr Brooks has been unable to point us to any passage in the Tribunal's decision in which it can be shown that the Tribunal relied on the contents of those documents rather than the evidence which was adduced before it at the hearing.
20. In our view this appeal is entirely devoid of merit and we see no arguable points of law to enable it to proceed further.
21. Accordingly, we dismiss the appeal.