United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FRED EDWARD JNR (Non-Practising Barrister) Instructed by: Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX


 


THE HONOURABLE MR JUSTICE MITTING

1. On 13 December 2001 the Employment Tribunal, after a forty-day hearing, found that the Appellant had been unfairly dismissed but on very limited grounds; but otherwise dismissed her complaints of sex and race discrimination. It adjourned the remedies hearing and on 2 October 2002 made an order that there be no basic award and no compensatory award on the ground that it was not just and equitable to make any compensatory award and on the basis that the Appellant's conduct had contributed wholly to the fact of her dismissal, so that it would not be just and equitable to make any basic award to her either.
2. The hearing, as will be apparent simply from its length, was complex, covered very many individual issues and required the exercise of judgment by the Tribunal on a very wide number and variety of issues. Most, but not all, of the decisions of the Tribunal were by a majority; the Chairman and one member.
3. The Appellant argues that for a large number of reasons the Employment Tribunal's decision, whether unanimous or by a majority, was wrong, save its finding in her favour of unfair dismissal.
4. We propose to go one by one through the grounds of appeal now relied upon and to indicate where there are answers what those answers are. Grounds 1 and 2 are the following:

"Ground 1

The majority were erroneous by their failure to make a finding of whether Bernard Crofton had racially discriminated or victimised the Appellant, considering that he was aware of the Appellant's openly leading a demonstration against him in support of Blacks and African staff complaining of racism by Bernard Crofton against them and the Appellant having specifically named him in her IT -1.

Ground 2

The majority's decision that Bernard Crofton was not involved in the issue relating to the Estate Managers and the Appellant's relocation to CEI 802 post and on balance of probabilities could not have influenced her not being relocated to CEI 802 was perverse and contrary to available evidence."

Although not apparent at first reading, those grounds of appeal amount to this: that the Tribunal's decision about the first question raised by the Appellant in her application, that she had not been offered a particular post within the Council, known as CEI SO2, was perverse and contrary to the evidence.

5. The Tribunal made express findings about this matter. It concluded that Mr Thompson had conducted interviews for the post and had made the decisions about who should be appointed and it made findings about his conduct and his state of knowledge. It noted that it was her complaint that Mr Thompson had treated her less favourably in the circumstances and that Mr Thompson denied it and by a majority found that Mr Thompson did not know about the protected act in 1993 (that is to say, her public protest in front of and about Bernard Crofton), at the time of the allocation of the CEI SO2 posts. The Tribunal concluded that in fact there was no evidence that anyone involved in the CEI process knew of the Applicant's participation in demonstrating against Mr Crofton. The majority found that the Applicant was not victimised by her non-relocation to a CEI SO2 post.
6. The Appellant complains that the Tribunal should have found that Mr Crofton was the mainspring for the decision not to reallocate her. The Tribunal did not so find. It was entitled not to do so and that is an end of that ground of appeal. It is to be noted that the Tribunal decided on this issue unanimously that the failure to relocate her to the CEI post was not treatment of her on racial or sexual grounds.
7. The next ground of appeal, Ground 11, reads as follows:

"Ground 11

The majority was erroneous in not taking into account or at another time taking factors or matters which were not relevant in determining the Appellant's complaints of racial, sex discrimination and victimisation and is simply incomprehensible."

Ground 14 states that:

"Ground 14

The majority were erroneous by their failure to draw an inference as a result of the Respondent providing the Appellant not only a late reply to her RR65 Questionnaire days into the hearing as a result of their solicitor's claim "oversight" but from the fact that the reply was evasive and unequivocal."

This is in fact a complaint about the late disclosure to the Appellant of the Respondent's Answer to her questionnaire served under the 1975 and 1976 Acts. The fact was that the Respondent's Answer to the questionnaire was not served upon the Appellant until the first day of the hearing. The Tribunal's finding was that that was not a deliberate failure on the part of the Respondent but was an oversight by the solicitor acting for them. The solicitor acting for them was in fact a solicitor in an independent practice, not an in-house solicitor. The solicitors explained that they had received the Answer but had simply failed to pass it on by oversight. The Tribunal found that they were telling the truth. That is an end of that ground of appeal.

8. The Appellant also submits that the Answers were evasive, but as this Tribunal has not been provided with a full set of the Answers it is not in a position to make any judgment about that. Before the Employment Tribunal little, if anything, appears to have been made of it. There is nothing in that ground of appeal.
9. Ground 16 states that:

"Ground 16

The majority were erroneous when because of the majority's "own mindset" of what they referred to as the Appellant's mindset of thinking that she was being discriminated against they repeatedly failed to accept her evidence or found for the Appellant on matters or claims even where her evidence on them were unchallenged or unrefuted even in the face of documentary evidence."

This is, in essence, a complaint about the Tribunal's findings at paragraph 84 of its Extended Reasons. It is a feature of several of the grounds of appeal, not merely this but of several which follow.

10. The Tribunal found as follows when dealing with a complaint about Mr Harris who was not called to give evidence before the Tribunal:

84 "The burden of convincing us falls on the Applicant. Mr Harris has left the employment of the Respondent. Certainly he was not called to refute the Applicant's allegations. But that does not mean that where the Applicant alleges that she was discriminated against that we must accept her evidence. She is giving as evidence her perception of behaviour which is sexually or racially neutral. She has not complained of gender specific behaviour such as indecent touching or indecent remarks or race specific behaviour such as verbal abuse using racist words or taunts. The mere fact that she says that she is discriminated against does not make it a fact. We, the majority, have formed a view of this Applicant over many days in the witness and many weeks of seeing the witnesses of different races who have given evidence for the Respondent. The majority take the view that when she failed to be appointed to a CEI estate, against the background referred to in the decision in the Yeboah v Crofton case and the Crawford Report [a reference to Lincoln Crawford's enquiry into race discrimination in the Council], she began to see everything which did not please her as evidence of racial or sexual discrimination against her or of victimisation. The majority have also formed the view that in describing her perceived experiences she uses exaggerated language. She began, in the majority's judgment, to see racial and sexual discrimination and victimisation where it did not exist."

That was a judgment about the Appellant's conduct and about the reliability of her evidence on matters of which she complained which the Employment Tribunal were entitled to make. The Tribunal are the finders of fact. It and it alone heard the evidence of the Applicant and other witnesses and considered that evidence, in the light of the documents presented to it. It is not for this Tribunal to substitute its own judgment about such matters.

11. To describe a finding of fact thus expressed as evidence of a mindset on the part of the majority of the Tribunal, seems to us to be a misdescription. Tribunals are entitled, having heard witnesses, to express opinions about the reliability of their evidence and their conduct. That is all that this Tribunal has done and by expressing itself as it has done it has displayed no evidence of bias or of preconceived opinion or, whatever it may mean, of mindset, beyond the state of mind which is induced when a Tribunal has heard over 40 days' evidence from a variety of witnesses and formed a positive view about them.
12. The Appellant also complains in this ground of appeal that the Tribunal were not, as a matter of law, entitled to reject the Appellant's evidence in instances where it was not contradicted, as in the case of Mr Harris, by other evidence from the Respondents. That proposition is ill-founded. A Tribunal is entitled to make a judgment upon the reliability of one witness and either to accept or reject evidence given by that witness. This Tribunal chose to reject the Appellant's evidence in this instance and it was entitled to do so.
13. Ground 17 simply states:

"Ground 17

The majority were wrong in holding that a particular single unwanted act or remark of racial nature did not amount to a racial harassment."

This is a reference to paragraph 122 of the Tribunal's decision. In it the Tribunal made the following observations:

122 "Next we turn to consider whether the matters complained of in the complaints against Donna Daley-Clarke and Eileen Francis [colleagues of the Appellant] themselves amounted to acts of racial discrimination or victimisation. We, the majority, find that they were not acts of discrimination. We have been particularly concerned with that part of the complaint against Donna Daley-Clarke in which the Applicant complained about being condemned and labelled with all sorts of names like troublemaker, mad woman, African, religious sinner etc. Though the Applicant does not make it clear, we draw the inference that it was Donna Daley-Clarke who called her these names. We note that the word African is one in a catalogue of names she has been called at some time. She is not called an African troublemaker or an African mad woman or an African religious sinner. It appears she is called an African. Clearly to call an African an African is race specific and in such cases no comparator is relevant. Even if we made the assumption that this calling of the Applicant an African was an act of racial harassment we, the majority, do not consider that this particular single act amounts to a detriment. The word 'African' is not itself offensive as were the words complained of in Bracebridge Engineering Ltd v Darby [1990] IRLR 3 or Insitu Cleaning Co Ltd v Heads [1995] IRLR 4."

14. The Tribunal went on to consider whether or not in so calling the Appellant the name 'African' Donna Daley-Clarke and Eileen Francis had victimised her and decided that they had not on the basis that there was no evidence that they knew of any protected act and in particular the protest at Mr Crofton in 1993.
15. This part of the decision of the Tribunal has caused this Tribunal some concern. First of all, the Employment Tribunal has made no finding of fact, one way or the other, whether or not Donna Daley-Clarke and/or Eileen Francis called the Appellant an African, let alone any of the other derogatory words spoken.
16. This Tribunal considers that it is arguable that, even on a single occasion, calling an African employee an African in circumstances in which it is intended to be derogatory of her can amount to an act of discrimination, under section 1 (1) of the Race Relations Act 1976.
17. If the Tribunal had found that such a word or words had been spoken, then it would have had to have gone on to consider whether or not the Respondents were responsible in law for the speaking of such words under section 32 of the 1976 Act. It made no such finding because it concluded that the word 'African' spoken in those circumstances was not a detriment. The Tribunal did not ask itself whether or not the ordinary worker, or perhaps the ordinary African worker, would have considered the use of such language a detriment and in failing in all of those respects to make findings it has left this part of its decision open to challenge.
18. It is far from clear to us whether, had it been pressed to do so, the Tribunal would have found that those words were spoken, or if it did in what circumstances, and when. It is far from clear to us whether the Tribunal would have decided, if spoken in January 1997, as is possible, whether or not any complaint was made in respect of them in time. All of these issues were curtailed by what is arguably an erroneous decision on the discriminatory nature of the use of the word 'African' against the Appellant.
19. Although in the greater scheme of things this particular matter would appear to the fair-minded observer to be utterly unimportant, if the Appellant were indeed to prove that she had been called an African by Donna Daley-Clarke and that Donna Daley-Clarke did so in the course of her employment and therefore that the Respondents are responsible for it under section 32, then she would be entitled to have the Tribunal consider freestanding relief under section 8 of the 1976 Act.
20. The possibility, therefore, cannot be excluded that if this claim were to be properly considered by the Employment Tribunal that she would achieve a minor victory with a modest, (we would have anticipated, extremely modest) financial award if she succeeded on all counts. For those reasons we do not reject her appeal on Ground 17 and direct that that be heard by this Tribunal on a full hearing.
21. The next ground of appeal is Ground 20:

"Ground 20

The majority were erroneous by their failure to take into account their own finding of racial discrimination under Issue 6, following the Respondent's concession, when determining the Appellant's overall complaint of racial discrimination for a long period of time in the hands of her white managers and/or the majority's failure to consider or draw inference from such findings or concession in support of the Appellant's claim of having being subjected to racial discrimination over a long period of time."

This, it seems to us, harks back to paragraph 84 of the Employment Tribunal's decision, upon which we have already made our ruling and it is unnecessary to repeat it.

22. Ground 21 states:

"Ground 21

The majority misunderstood or misinterpreted the Appellant's complaints on Issue 6 of the Extended Reasons. In that while the act complained of was done in 1995 the Appellant only discovered in February 1998 while gathering evidence on her case that her name was among the other Africans sent to the Home Office. The majority were therefore erroneous to have held that the proving complaint of racial discrimination under Issue 6 was out of time."

The Skeleton Argument in support of that ground goes on to argue that the appropriate time limit ran from the date on which she discovered that her name had been supplied to the Home Office in a list of Africans employed by the Respondent or by somebody employed by the Respondent.

23. That submission is erroneous. There is a freestanding code for determining whether or not applications are in time, provided by section 68 of the 1976 Act, with 68 (6) the right for a Tribunal to go on to hear a case notwithstanding that more than three months have elapsed since the act complained of, if it thinks it just and equitable to do so.
24. This Employment Tribunal decided that it was not just and equitable to do so in two paragraphs of its Extended Reasons. First in paragraph 258 the Tribunal correctly observed that:

258 "…the act of discrimination was the sending of the list to the IND [that is, the relevant department in the Home Office] and the discrimination cannot be said to be continuing in its nature…The Applicant has not advanced any reason for not presenting a complaint within three months of finding out about the act of 1995 and the majority do not consider it just and equitable to hear a complaint which is several years out of time when no reason for the delay is advanced."

25. It repeated its decision for the same reasons in paragraph 321. In both paragraphs the Tribunal expressly found that the Applicant knew of the Act in or shortly after June 1995 and so was some three years out of time.
26. In the view of this Tribunal there is no possible ground for upsetting that finding of fact or the conclusion of the Tribunal that it was not just and equitable to consider her complaint on this ground, even though the ordinary time limit had elapsed. The Appellant submitted that the Tribunal was erroneous in its finding that she knew about the Act in or shortly after June 1995, but no material has been put before us to demonstrate that the Tribunal's decision was in any way mistaken.
27. Ground 24 states that:

"Ground 24

The majority were erroneous when they simply considered the Appellant's various complaints of less favourable treatment seriatim and failed to consider or take a step back and look at the "totality" of the various less favourable treatment she was subjected to."

The short answer to that proposition is, first, that to make sense of the numerous allegations in this case the Tribunal had to consider them one by one and, secondly, that it did in fact view them as a whole when it made its important and justifiable findings in paragraph 84 to which we have already referred, about the Appellant's conduct and reasons for it.

28. Ground 27 states that:

"Ground 27

The two white majority were erroneous in simply accepting the oral evidence of the Respondent's managers in the face of documentary evidence to the contrary."

A particular incidence of this is given: the change in the evidence of Ms Gold in the course of considering one aspect of the Appellant's case about the alleged preference shown to Tony Stenning by comparison with her.

29. The Tribunal found that in Ms Gold's witness statement she said that Tony Stenning had been unsuccessful in an application for appointment to a CEI SO2 post, whereas when she was recalled to give evidence and to be cross-examined about her witness statement she said that Mr Stenning had in fact been appointed to such a post via an external recruitment process in late 1996. She said that she was confused with the timing of the events. The Tribunal accepted expressly the evidence of Miss Gold on her recall, that is to say her second version of events, and went on to find that there was no race discrimination when comparing Mr Stenning's situation with that of the Appellant.
30. Again, this is pre-eminently one of the questions which Tribunals have to decide as the finders of fact. The Tribunal were perfectly entitled to find that Ms Gold was telling the truth when she said that her witness statement was mistaken and to prefer her second account. It does not begin to disclose any bias on the part of the majority that they made that finding on this aspect of the case.
31. Ground 28 states that:

"Ground 28

At paragraph 52 of page 17 of the Extended Reasons, the majority were erroneous to reject Mr Ebrahim, the Appellant's Union representative, on the ground that the evidence was a hearsay from the Appellant."

The Tribunal did not reject Mr Ebrahim's evidence. It simply noted that his evidence was solely based on what the Appellant had told him and therefore depended, inevitably, upon the reliability of her account. For that reason, and that only, the Tribunal plainly placed little or no weight upon it, as it was entitled to do.

32. Ground 29 states:

"Ground 29

The majority were erroneous by their failure to take into account in reaching their decision the totality of the previous complaints of less favourable treatment outside the 3 month i.e. before 6 November 1997, as evidentiary facts proving the Appellant's case."

This ground has already been rehearsed and rejected, when considering Ground 16 and it is unnecessary to say more about it.

33. Ground 30 states:

"Ground 30

The crucial premise at paragraph 84 of page 30 of the Extended Reasons on which the majority were to base their adverse view of the Appellant to her detriment were unreasonable and perverse."

This too we have already covered and need say no more.

34. Ground 31 states that:

"Ground 31

At paragraph 54 of the Extended Reasons, the majority misunderstood or misinterpreted the Appellant's case. In that her case was that she was again denied the opportunity to be promoted to an SO2 Estate Manager post when it was "offered" to a temp, considering she had passed her CEI qualification and was regarded to be competent to do an SO2 generic Estate Manager job, and her continuous denial of that opportunity when Caroline Collins left."

The Tribunal noted in paragraph 54 of its Extended Reasons that the submission made on behalf of the Appellant was that she had been denied the opportunity to be promoted to an SO2 Estate Manager post when one such post was vacated in the Victoria Team when the white temporary employee called Caroline Collins left: i.e. the submission, as recorded by the Tribunal, was that her complaint was that she had not been appointed to the permanent job.

35. They went on to find, not by a majority but unanimously, that there was no vacant Estate Manager post to which the Applicant could act up to or to which she could be promoted. On this point all three members were agreed that it was not proved that there was any post into which the Applicant might have moved.
36. If, in the numerous submissions made to it, the Tribunal had made a minute and marginal misunderstanding of her case that would have been hardly surprising. This Tribunal is, however, unable to discern from the record of the submissions made, or in its conclusions, that any relevant misunderstanding was made by the Employment Tribunal. Put at its very highest, any denial of an opportunity to step temporarily into the shoes of an absent SO2 Estate Manager is hardly a matter of great moment.
37. On this issue we are not persuaded that the Employment Tribunal failed to take into account any significant material put in front of it or reached a decision which was mistaken or perverse.
38. Ground 33 states:

"Ground 33

Whether the decision was erroneous and should be set aside for the inordinate and substantive delay of approximately twelve months it took to promulgate the decision by the Employment Tribunal and the Chairman allowing his decision to be adversely influenced or contaminated by another of his earlier and related but unconnected decisions which was overturned by the EAT five months after the case had been closed."

This is a reference to the case of Yeboah v Crofton in which the Employment Tribunal found that Mr Crofton had been guilty of racial discrimination against Mr Yeboah. The Employment Appeal Tribunal overturned the Employment Tribunal's finding as perverse. Subsequently the Court of Appeal overturned the Employment Appeal Tribunal's decision and upheld that of the Employment Tribunal. The complaint is that at the particular stage at which this Employment Tribunal made its decision the Employment Appeal Tribunal's decision ruled.

39. This proposition has only to be stated to be rejected as plainly ill-founded. The proposition that a Chairman, having been reversed, albeit only provisionally, by the Employment Appeal Tribunal in one case, might, when considering another case in which the name of one of the parties to that case appeared as a significant feature in the case, become biased against an Applicant who did not feature in the earlier case at all is wholly far-fetched. This Tribunal cannot begin to think that such a proposition could be made out. This ground of appeal is plainly ill-conceived.
40. Before passing from the grounds of appeal, which we have now recited in full, on the main hearing of this application, we must deal with one final ground of complaint which concerns Mr Goldwater, one of the two lay members of the Tribunal.
41. In an affidavit sworn on 13 May 2002 the Applicant said this:

"During the hearing one of the lay members of the Tribunal, Mr Goldwater, who I understand to be an active member in Council's affairs, was throughout the hearing always siding with the Council, the Respondents in this case."

The Chairman has explained that this particular member was given to interject in cases in which he had chaired but that no exceptional degree of intervention by him was noticed in this case.

42. The passage in that sentence which concerned this Tribunal was the suggestion that Mr Goldwater was "an active member in Council's affairs". If that meant what it said, that he was a member of the Council or took an active interest personally in its affairs, or had an interest in its dealings, then of course he would have been disqualified, by virtue of any of those facts, from sitting on this Tribunal. But what it comes down to appears to be this; that the Appellant has reason to believe, from what she has been told by an unidentified union official, that Mr Goldwater may have attended a social function or perhaps even more than one social function also attended by members of the Council.
43. As a ground for alleging bias against him that seems to us to fall very far short indeed of the test for bias laid down in Re Medicaments No. 2 [2001] IRLR 700 and approved by Lord Hope in Porter v Magill [2002] 2 AC 357 [2001] UK HL 61, namely would a fair-minded and independent observer consider that there was a real risk of bias. In the view of this Tribunal there was no possibility of bias from such social contact, even if there were reliable evidence of it, which there is not.
44. We now turn to the Appellant's appeal against the findings of the majority, in this instance the Chairman exercising his casting vote, there being only one other member of the original three hearing the remedy matters.
45. There are four grounds of appeal. The first and fourth both allege bias by the Chairman.

"Ground 1

"Whether the majority should have awarded the Appellant some percentage compensation to reflect that omission or failure on the part of the employer upon which the Employment Tribunal had held that there was unfair dismissal in the first place."

and

"Ground 4

The Chairman's decision in deciding not to award any compensation or award was influenced by the Appellant accusing the Chairman or the majority in affidavit or racial bias in his initial decision on liability."

46. In her affidavit of 13 May 2002 the Appellant said in paragraph 7:

7 "The Chairman was more readily prepared to side with and drew inference in favour of the Council's white Senior Manager's actions, whereas on various and several occasions where inferences could legitimately have been inferred in my favour the Chairman steadfastly and constantly failed to draw any or such interference. Indeed, at times the Chairman and Mr Goldwater who were the two white majority members filled in the gaps with their own speculative explanation where the Respondent's senior white managers failed to provide satisfactory or any explanation for the less favourable treatment I was subjected to.

8 The two white majority turned a blind eye to certain facts and truths and faithfully believed everything my employers' white officers and other officers said, even where there was evidence before the Tribunal to the contrary."

47. If that is to be taken as an accusation of personal bias against the Chairman then in any case in which a dissatisfied Appellant wished to upset any subsequent dealings in a case, for example by way of a remedy hearing by that Chairman, all she would have to do would be to make an accusation of bias. The making of the accusation, on her case, is sufficient to raise doubts about the impartiality of the Chairman. This Employment Appeal Tribunal has no such doubts and do not consider that the reasonable and impartial observer would consider that there was any risk of bias on the part of the Chairman.
48. Ground 2 and Ground 3 really run together. They state,

"Ground 2

Following Ground 1, whether the majority was erroneous in "substituting its own opinion" as to what the effect of those omitted documents would or would not have had on the Chairman of the internal appeal hearing in the absence of any evidence being given by the said Chairman of internal appeal hearing or any member of that panel.

Ground 3

Whether the Appellant was entitled in law for some compensation for the loss of the "chance" in which the decision maker, the Chairman of the internal appeal, would or would not have upheld the dismissal had the documentation relating to how her alleged comparators had differently been dealt with been shown to him?"

49. The Employment Tribunal found in paragraph 20 that the Applicant would have been dismissed in any event, even had the procedural defects which it had identified in its earlier decision, namely the failure by Mr Bernard Jenkins who heard the internal appeal, to receive two documents from the Appellant, first her own written submissions and, secondly, documents about comparators who had, she said, been disciplined less severely than her for acts of violence comparable to hers.
50. The Tribunal considered that because she would have been dismissed in any event it was not just and equitable to make a compensatory award. It went on in paragraph 22 to hold that the conduct of the Applicant, which was the reason for her dismissal, was such that in the judgment of the majority it would be just and equitable to reduce this award by 100% and to make no basic award. That conduct was the use of minor violence against another officer who was receiving a complaint from her about alleged racial discrimination.
51. In the view of this Tribunal the Employment Tribunal were entitled to reach both conclusions. Indeed, once it had decided that the Appellant would have been fairly dismissed in any event, it is hard to see how it would have been just and equitable to have made any award of compensation, whether basic or compensatory, to her.
52. The suggestion that the Tribunal should have gone on to value the chance that Mr Jenkins would have reached a different conclusion and made an award to her in respect of the loss of that chance is, in the view of this Employment Appeal Tribunal, misconceived. The Tribunal's task was to find the facts. It found as a fact that she would have been dismissed in any event.
53. The circumstances in which the courts can award damages for the loss of a chance are those in which the chance or contingency depends upon some event outside the control of the parties, such as the exercise by someone independent of them of an independent discretion or judgment. In those circumstances the courts can and do make awards of damages for the loss of the chance that that judgment might be exercised in a way beneficial to the claimant. But that principle does not apply here. What the Tribunal did was to assess the chance that one of the parties to its decision would have made a decision the same as the decision that in fact it made, even had it not made procedural errors in reaching that decision.
54. It was entitled to reach the conclusion that it did. That disposes of those grounds of appeal.
55. For the reasons given, every single ground of appeal, other than Ground 17, is dismissed. Ground 17 will go to a full hearing unless, unexpectedly, the parties, for reasons of good sense and economy, compromise this very small part of a very large claim.
56. We direct that Skeleton Arguments are filed by the Appellant and the Respondent within 28 days. This case is listed Category C with a time estimate of half a day.
57. We refuse your application for permission to appeal.