At the Tribunal | |
Before
HIS HONOUR JUDGE J McMULLEN QC
MS J DRAKE
MR R N STRAKER
MR T O AFOLABI |
APPELLANT |
RESPONDENT | |
LONDON BOROUGH OF SOUTHWARK |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR STEPHEN FLETCHER (of Counsel) Instructed by: London Borough of Southwark Head of Legal (Contract) Services 30-32 Peckham Road London SE5 8UB |
For the Respondent | THE RESPONDENT IN PERSON |
JUDGE J McMULLEN QC
"1.1 The Respondent unlawfully discriminated against the Applicant contrary to section 4(2)(b) Race Relations Act 1976 when it failed to appoint him to the post of Auditor Grade SO2 in June 1990.
"1.3 The Respondent unlawfully discriminated against the Applicant, contrary to section 4(2) Race Relations Act when it failed to re-grade his post to Departmental Auditor on Hay Grade 10 in or about April 1999 at which time it treated white employees, Mr W Jordan, Ms K Draper and Mr D Coombes more favourably."
The decision to extend time.
"(a) the length of and reasons for the delay;
(b) the extent to which cogency of any evidence is affected by the delay;
(c) the extent to which the party sued had cooperated with any requests for information;"
To these brief factors can be added the conduct of the Applicant and the Respondent over the period of time, and in a comprehensive form, the presence or absence of any prejudice to the Respondent other than in simply allowing the claim to proceed.
"The performance of an act, …. is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such performance. The impediment may be physical, for instance, the illness of the complainant or a postal strike; or the impediment may be mental, namely the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand, or the mistaken belief on the other, is itself reasonable."
The failure to appoint to Grade SO2
"Horses were changed in mid-stream"
and the Applicant is reported by the Chairman as saying:
" the comparators' grades were changed and Jordan was moved sideways and regraded Grade 10 while Draper was upgraded to 11"
The Chairman goes on:
"As far as we were concerned this was the issue identified at the hearing for directions, namely that the Applicant's claim was that Jordan and Draper were treated more favourably than he was "on or about April 1999" when they were graded 10 or above and he was only graded 9."
And the Tribunal goes on to record in greater detail at paragraph 10 in the Chairman's comments that the claim was made by the Applicant for Grade 10. We have no hesitation in accepting that approach because the contents of it are the subject of no issue taken on behalf of the Respondent. We are therefore satisfied that the claim was properly made and canvassed in evidence before the Employment Tribunal.
" there was a culture of prejudice against the Applicant on the ground of his race (it being accepted that he was an excellent employee) and in favour of white employees within the Respondent's organisation, which manifested itself in this case over a period from at least November 1998 to December1999."
The Tribunal went on to hold, in a criticism of the Respondent, supporting its inference of race discrimination, that the Respondent failed, contrary to its normal policy, to give the information to the Applicant and to implement it for eight months, and that as soon as the posts had been designated according to the Hay Scheme, as 9, they were immediately regraded at 10 and 11. As the Tribunal held:
"This was virtually opposite to the way in which the Respondent treated the Applicant."
Thus the Tribunal found in favour of the Applicant.
Quantum
"Progression beyond the bar is achieved by a noticeable change in job content. It is determined (and may be limited) by the opportunity for increased capacity, the ability of the individual to undertake extra duties, affordability within the unit (this does not mean that no increments are paid but they may be limited due to financial constraints) and the requirement to control pay drift"
Having read that, the Tribunal concluded:
"We find as a fact that there was no practice or automatic right of progression beyond
the bar"