United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance or Representation By or on Behalf of the Appellant


 


HIS HONOUR JUDGE J BURKE QC

1. This is the Preliminary Hearing of the appeal of Miss Naz against the decision of the Employment Tribunal sitting at London (Central), chaired by Mr P R K Menon and sent to the parties on 17 February 2003. By that Decision the Tribunal unanimously found in favour of the employers (who are the First Respondents) and the two individual Respondents who are named in Miss Naz's Originating Application on her complaints of race discrimination and victimisation and of unfair dismissal which was allegedly automatically unfair on the grounds that she had made a protected disclosure. The Tribunal dismissed all of her claims and ordered her to pay £200 by way of costs on the basis that she had acted vexatiously in the conduct of the proceedings.
2. Miss Naz is not present today. We understand that the solicitors who previously acted for her, Messrs Hodge Jones & Allen, who have signed the Notice of Appeal dated 28 March 2003, came off the record relatively recently. They must have come off the record after the notice of this hearing was sent out. Endeavours have been made this morning to contact both them and Miss Naz. No success has been achieved. Nothing has been heard from Miss Naz, either by way of telephone or by way of letter, to indicate why she is not here. In the circumstances we are proceeding in her absence.
3. At the time of the events with which this Tribunal had to deal, Miss Naz was 19. She is a United Kingdom born British National of Afghan racial or ethnic origin. She was a student when she started work for the First Respondents on 19 January 2001 as a part-time Sales Consultant at the employers Emporio Armani shop in New Bond Street in London. Her employment came to an end when she was told on behalf of the employers by the Third Respondent, Mrs Manku, that her employment was being terminated and walked out, as the Tribunal found, on 26 October 2001. She did not have one year's continuous employment at that date; and therefore her unfair dismissal claim could only succeed if she established grounds which meant that she did not have to have one year's continuous employment. The grounds on which she relied were that she had been dismissed for making a protected disclosure.
4. There were many and deep conflicts of fact which arose out of the issues to which Miss Naz's complaints gave rise. In brief, there were issues as to how many days per week she worked in a part-time position and other issues of that nature. She claimed that she was a competent and successful employee but that, from July 2001, the Second Respondent became a Deputy Supervisor at Bond Street; and he, she said, carried out a campaign of hostility and abuse based on her Afghan origin, including making remarks such as that her family was part of the Taliban.
5. This campaign, she said, got worse after the events of 11 September 2001. There were various occasions upon which she identified particular events, culminating on 19 October when, she alleged, this gentleman, the Second Respondent, physically assaulted her. She said that she complained to her employers, that the employers did not act as reasonable employers should or would; instead they told her that her complaint was not to be believed and that they were not interested in it. She was eventually told that she was being dismissed, the pretext being that she was bored with her job. Her complaint was, of course, that she was being dismissed for making disclosures to the employers about the behaviour of the Second Respondent.
6. The employers' case was that all or much of this was untrue and that Miss Naz was dismissed because her attitude and her behaviour evidenced disinterest, lack of co-operation and lack of enthusiasm for her job. As to the specific events of the day when Miss Naz said she had been assaulted, the Respondent's case was that Miss Naz had made no complaint about anything that had been done to her on that day but that the employers had investigated an incident on that day which arose from her being abusive when she was asked to serve a customer or customers.
7. The Tribunal investigated all of the factual issues in depth and in detail, made findings as to those factual issues and at each stage made it clear that they preferred the evidence called on behalf of the Respondents. There was no disputed area of law. The decision was based wholly on the Tribunal's analysis of the evidence and their findings of fact. Both sides were represented by Counsel.
8. The Notice of Appeal which was, as we have said, settled by solicitors, contains 10 grounds. In the absence of Miss Naz or anybody to argue this case on her behalf, we obviously have to consider and have considered each one of those 10 grounds; and we propose to say a few words about each.
9. In the first ground of appeal it is asserted that the Tribunal misdirected themselves, in paragraph 21 of their decision, by stating that, in disputed discrimination and victimisation cases, the decision of the Tribunal depends upon whether the Tribunal accepts the evidence of one side's witnesses or the other.
10. The Tribunal said no such thing in paragraph 21 of their decision or anywhere else. What the Tribunal said was this:

21 "On the facts of the present case, the Tribunal's findings on the disputed race discrimination and victimisation issues depend on the credibility of the witnesses called by both parties, including the Applicant. This is particularly true in relation to the race discrimination complaint, where the issue is one as to whether the Respondent and her witnesses (Ms Yunis and Mr Tahir) are to be believed, or whether the Second Respondent is to be believed because, if the Applicant and her witnesses are truthful and credible, the issue of drawing inferences does not arise, and the Applicant would have proved her case. Conversely, if the Second Respondent is truthful and his evidence is credible, the issue of drawing inferences would not arise and the Applicant's race discrimination complaint would fail."

The Tribunal went on to say that, in relation to victimisation:

"…while the credibility of the witnesses is an important factor, an equally important factors is the credibility…of the reasons advanced by the [Respondents]…for the termination of [Miss Naz's] employment."

11. What the Tribunal said was, in the context of this case, absolutely right. This was a case in which there was no need for the Tribunal to follow the familiar pattern of asking questions as to actual or hypothetical comparators and drawing inferences from evidence of differential treatment because the complaints were of overt, offensive, racist-based comments and behaviour and of an assault accompanied by such comments. If the evidence of Miss Naz was true, then there was no doubt at all that her complaints under the Race Relations Act 1976 would have been made out. If they were untrue they would not have been made out.
12. Wherever the burden of proof lay, in this case what was crucial was whether, on the one hand, Miss Naz and her witnesses or, on the other hand, the Respondents' and witnesses called on their behalf were telling the truth. Who was telling the truth was a matter entirely for the Tribunal; and there was certainly no misdirection as set out in Ground (i) of the Notice of Appeal.
13. In the second ground it is said the Tribunal misdirected themselves in paragraph 21 by stating that they need not always consider the evidence of the Respondent in discrimination and victimisation cases. The short answer to that is that the Tribunal in paragraph 21 do not say any such thing, nor do they say any such thing anywhere else.
14. In the third ground of the Notice of Appeal it is said that the Tribunal misdirected themselves in the same paragraph (paragraph 21) by stating that, in discrimination cases, if the Respondent is credible then the Applicant's evidence does not need to be considered. Once again we make it clear that the Tribunal did not say any such thing. What they said in that paragraph, relating to discrimination, was that if the Applicant's evidence or her witnesses' evidence was true then her complaints were proved; and if the Respondents' evidence was true they were not proved. That was an entirely sound approach to this particular case. There is no suggestion anywhere that they did not consider or thought that they did not have to consider the evidence of the Applicant. What they had to do and did do was to balance the rival evidence on issues which were issues of fact.
15. In Ground (iv) it is said that the Tribunal misdirected themselves by stating that the credibility of the witnesses was a factor in deciding the case rather than in making findings of fact from which inferences can be drawn. We find it difficult to understand at what that particular ground of appeal is directed. For the reasons we have already explained, this was not a case in which it was necessary for the Tribunal to make findings of primary fact and then to seek to draw inferences from those findings of fact as if it were a case in which it was difficult to detect discrimination if it was there, and it was necessary to draw inferences as to whether there was discrimination or not, for the reason that we have already expressed, namely that the allegations were of overt discrimination, not of concealed discrimination, as so often is the case.
16. In Ground (v) it is said that the Tribunal made findings in paragraphs 23, 24 and 25 without considering the evidence of the Second Respondent and the credibility of his evidence under cross-examination. The answer to that is that the Tribunal did not, in our judgment, reach conclusions without considering the rival evidence. For instance, in paragraph 23 (1), having set out Miss Naz's version of what happened in an incident some two weeks after 11 September 2001, the Tribunal then set out the Second Respondent's version of the same incident. It is not necessary for us now to set out those two rival versions. The Tribunal went on then to say that they did not find Miss Naz's allegations to be credible and that it was not credible that the Second Respondent would behave as she was accusing him of behaving in the circumstances.
17. In that instance the Tribunal was plainly balancing one account against the other. The outcome of that balancing exercise is a finding of fact as to which we see no basis upon which an error of law can be detected. The same holds true of the whole of the factual findings of this Tribunal. They have clearly taken into account the evidence and made findings of fact on the evidence.
18. In Ground (vi) it is said the Tribunal misdirected themselves by relying on an explanation as to the reason for the discrepancies in Mr Lawrence's and the Second Respondent's account which was not given by them in their evidence at the hearing. That is said to be found in paragraph 23. There are in fact two paragraphs 23 in this decision; and it is not clear to us which of those two paragraphs is referred to because Mr Lawrence who is referred to in this particular ground of appeal is not actually mentioned in either paragraph 23; but we see nothing in what we have read to suggest that the Tribunal have made an error of law in any respect as set out in this sub-paragraph of the Notice of Appeal.
19. In sub-paragraph (vii) of paragraph 6 of the Notice of Appeal it is said that the Tribunal failed to consider and make the findings as to the reasons put forward by the employers for the dismissal. The Tribunal did in fact make findings as to that. They found, at paragraph 26, that:

26 "The Third Respondent terminated [Miss Naz's] employment…because she was not satisfied that [Miss Naz] had the necessary commitment to her job."

and, at paragraph 29, they found that:

29 "…[Miss Naz] was not dismissed or victimised for reporting…to her managers [her allegations against the Second Respondent]. The Third Respondent, acting on the First Respondent's behalf [the employers], dismissed [Miss Naz] for a legitimate reason – the lack of commitment to her job."

20. Thus this ground of appeal seems to be unsound in any event. But if it is directed at the fact that there is no analysis as to whether, for instance, the employers held a genuine belief in what Miss Naz had or had not exhibited by way of her attitude to her work, or had not investigated matters of that kind, then it is necessary for us to remind the parties that the Tribunal did not need to investigate those matters because there was no general complaint of unfair dismissal to which section 98 of the Employment Rights Act 1996 applied; there was no such general allegation of unfair dismissal because Miss Naz did not have one year's qualifying employment.
21. In paragraphs (viii) and (ix) of this part of the Notice of Appeal the criticism of the Tribunal is directed at the findings as to the lack of truthfulness of the evidence of Miss Naz's two witnesses, that is, Mr Nofel Tahir and Ms Deeba Yunis. It is said that those were serious findings to make and that there is no proper, detailed or reasoned consideration of the findings and no factual or evidentiary support for those findings.
22. We can deal with these two sub-paragraphs together. It is in paragraph 23, sub-paragraph (2) (that is, the first paragraph 23) made absolutely clear by the Tribunal why they rejected the evidence of Mr Tahir. He had made inconsistent witness statements or statements about what had happened in relation to the occasion called "the Russian customer incident", as to which he was giving evidence. That was a perfectly good reason for rejecting his evidence given expressly by the Tribunal.
23. As to Ms Yunis, she was involved in giving evidence about something which happened on 13 October. The Tribunal in paragraph 24 again gave entirely clear reasons as to why they disbelieved her evidence. A document was drawn up by Miss Naz which was going to go to the employers setting out her account of what had happened and her complaints about what had happened to her. That document was typed, according to Miss Naz and Ms Yunis, by Miss Naz on Ms Yunis' computer at Ms Yunis' home with the intention of presenting it to the third Respondent on the following day. Ms Yunis checked the contents of the document, so the Tribunal find, yet there was no reference in it to the alleged incident on 13 October. That is a matter which the Tribunal was entitled in law to take into consideration; and the Tribunal have explained why, having taken that into consideration, they were not impressed by Ms Yunis' evidence.
24. Ground (x) is a ground of appeal which is, as it were, a "sweeping up" ground. It asserts that, individually or as a whole, the errors in law above indicate that the approach of the Tribunal to the evidence was flawed and their decision to award costs was perverse. We have seen no arguable flaw in the Tribunal's decision. We can see no flaw in their conclusion that there should be an award of costs on the basis that the allegations were false, that Miss Naz had made false allegations to which she had stuck, even on peripheral issues and that she had acted vexatiously in making allegations which she was not making in good faith. In the light of those findings, an award of only £200 of costs was not one which could possibly be said to have been made in error of law.
25. Thus, in summary, having studied this decision with care, and having gone through each of the grounds of appeal set out in the Notice of Appeal, we are wholly satisfied that no arguable error of law in the Tribunal's conclusions as to the various complaints made or as to their conclusion as to costs is made out; and this appeal is dismissed.