United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS L GREEN (Representative)


 


HIS HONOUR JUDGE WILKIE QC

1. This is a Preliminary Hearing of an appeal by Ms Cassandra Green against a decision of the London Central Employment Tribunal which dismissed her application containing a complaint of discrimination on the grounds of her race by her employer London Underground Ltd. The case was heard on 3 days, 9, 10 and 11 July 2001. The decision was sent to the parties on 13 August 2001.
2. At this stage our task is to identify which, if any, grounds of appeal are arguable sufficient to go to a Full Hearing at which both Ms Green and London Underground will have opportunities to advance arguments. Before the Employment Tribunal Ms Green had representation in the form of Mr Johnson –Nwosu, a solicitor. Before us, she has had the advantage of lay representation by her Mother, who has addressed us very clearly and succinctly this morning.
3. At the outset of the Tribunal's reasons it indicated that it had held a Directions Hearing on 28 March at which Ms Green's representative had the opportunity to, and had taken that opportunity to, clarify the issues. During the hearing itself that clarified set of issues received one small amendment. There were 7 issues set out.
4. The first ground for appeal put forward by Ms Green is that there was a failure on the part of the Tribunal to address a matter which is contained in her application and referred to in her witness statement, namely the question of whether she had been denied opportunity for personal development. This was not a matter which was identified by Mr Johnson-Nwosu as being an issue for determination by the Tribunal. Whilst we appreciate that the omission of the Tribunal to deal with this may well be a cause for concern for Ms Green, it seems to us that it is quite unarguable that the Tribunal erred in law in failing to address a matter which had not been high-lighted by her representative at a hearing specifically designed to ensure that all matters which she wanted to have ventilated, were ventilated. If there is a complaint, it is a complaint which Ms Green might have against her solicitor but in our judgment cannot form an arguable basis for an appeal against the Employment Tribunal's decision.
5. A second matter of complaint concerns the aftermath of an incident which took place on 23 October 2000. There was an incident between Ms Green and a customer. An allegation was made by the customer that Ms Green had assaulted her. Ms Green was arrested by the Metropolitan Police and indeed stood trial in the Magistrate's Court for that alleged assault but she was acquitted as effectively the complainant did not see fit to attend the Magistrate's Court to support her allegation. London Underground Ltd, although not initially suspending her, did at one stage suspend her, on 8 December, when she attended their offices for another purpose along with her trade union representative. She, at that stage, was, understandably, away from work sick. It appears to be the case that she was the first employee of London Underground who had been suspended whilst proceedings of this sort were pending, and unsurprisingly she alleged that she was subject to less favourable treatment. She was able to point to 2 other employees of London Underground who had not been suspended facing such a type of allegation.
6. The Tribunal agreed with her to this extent, that her treatment in being suspended was less favourable treatment than Mr Dellaway and Mr Babalola, the comparators, however, the finding of less favourable treatment does not of itself constitute a finding of racial discrimination. The Tribunal had to consider the explanation of London Underground, in the person of Mr Allan, the relevant witness for that incident. It did so in paragraph 27 of its decision and whilst it is right to say that they describe Mr Babalola as a black African, that not being of the same ethnic group as Ms Green, who is a black United Kingdom citizen of West Indian origin, nonetheless in our judgment the reasoning of the Tribunal which accepted Mr Allan's evidence that he suspended her based on the seriousness of the alleged incident, does not disclose an error of law or such a flying in the face of the evidence as to characterise its decision as perverse. Therefore we do not find that that is an arguable point to go through to an Inter Parties Hearing.
7. However, the Tribunal did have to deal with 2 issues. Issue 4 and Issue 5, both of which concerned applications which Ms Green had made for different posts for which she had never been short-listed. Issue 4 primarily concerned an application for a trainer post in 1998. The Tribunal recorded that it became apparent that she was also complaining about not being short-listed for 4 other positions between 1996 and 1998 as identified in her race relations questionnaire. The Tribunal did not, on the face of it, deal with any of those other complaints in the course of its decisions but as far as the complaint concerning the trainer post was concerned it did find that she had suffered less favourable treatment. It did find that the explanation which the Respondent gave for that less favourable treatment was either no explanation or inadequate. It did indicate that on that basis it would have been prepared to infer that she was the victim on that occasion of racial discrimination but for the fact that the incident took place at a time when her complaint to the Tribunal was out of time. The Tribunal, however, did take into account this particular incident as part of what it called 'the background'. However, there was a complaint about a failure to short-list her which related to an incident in September 2000, her application for a Trainee Schedule Compiler. Her application in respect of that position was the subject of a whole string of administrative errors and lapses. The Tribunal expressed a concern that the decision not to short-list her was based upon the individual dealing with it having a perception of her motivation based on very little evidence. The Tribunal then came to the conclusion that Ms Green did suffer less favourable treatment. However, in paragraph 26, dealing with issue Number 5 in isolation, the Tribunal appears to have been prepared to accept that the problems arose from incompetence rather than questions of discrimination.
8. It seems to us that bearing in mind the fact that there appeared a string of similar complaints by Ms Green stretching back to 1996 running right through to September 2000, it is arguable that the Tribunal, in dealing with this little clutch of issues, erred in law in failing to have regard to what might be described as an underlying pattern in order first of all to see whether the earlier incidents might properly have been said to have been in time, and secondly in considering the explanations given by London Underground for the latest incident, namely whether it was isolated incompetence or was evidence of underlying systemic discrimination.
9. We think that is an arguable point and one which is worthy of being pursued at an Inter Parties Hearing. On that ground alone we permit this matter to go forward to a Full Hearing. We do however think that the panel hearing this appeal would be assisted by having the Chairman's notes of the evidence of Miss Rambaut concerning this particular issue and we so order. The case will be Category C. Half a day. Any skeleton arguments should be sent to the Tribunal 14 days before the listed hearing date.