United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS Z LI (The Appellant in Person)
For the Respondent	MR M WEST Instructed by: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB

SUMMARY

Race Discrimination – Direct; Burden of proof

Claims of race discrimination arising out of a dismissal were rejected. Tribunal found both that the Appellant had failed to establish a prima facie case and that, in any event, the employers had satisfied them that there was a reason untainted by race for the treatment. Alleged that the Tribunal failed properly to apply Igen v Wong. Other grounds of appeal also pursued, but largely sought to re-argue the facts. Employment Appeal Tribunal dismissed appeal on the basis that there was no error of law.


 


THE HONOURABLE MR JUSTICE ELIAS

1. This is a short appeal directed against the Decision of the Employment Tribunal (ET) sitting at Bury St Edmunds, when it found that complaints of race discrimination and victimisation, contrary to the Race Relations Act 1976, failed and the claims were dismissed.
2. The facts can be relatively briefly stated.
3. The Appellant is a British citizen, but of Chinese origin. She worked for the Respondent for some five weeks at the Marshall Motor Group (referred to as Marshalls) in Cambridge. She was a cleaner. The Respondents employ commercial cleaners for a number of clients in the Cambridge area. She was telephoned and asked to attend an interview at Marshalls when a cleaning job became available. The Tribunal found that she had an interview, although she has disputed that before us. In fact, she was very late, according to the Tribunal, because she could not find the venue on the first day, but in any event, she was given a job and the employers allowed her some flexibility. The timing initially for the job had been between 5.00 and 7.00 a.m. but she was allowed to get to work at 5.30 and to finish at 7.30 a.m.
4. The contract which the Respondents had with Marshalls required that the cleaner should leave the site by 7.30 a.m. She was given a contract, or at least a statement of terms and conditions, which outlined certain procedures for dealing with complaints about capability. Again, she denies in fact receiving such a document. It was also, however, specifically provided in the handbook made available to her, that she was employed on an initial probationary period of four months, and the handbook further stated:

"if your work performance is not up to the required standard or you are considered to be generally unsuitable we may either take remedial action or terminate your employment without recourse to the capability… procedure".

5. From the beginning, there were certain difficulties with the Claimant. She arrived late for work, she missed certain areas that she should have cleaned, and there were concerns about the quality of her cleaning.
6. On 24 February she left a note saying that she could not do the job in two hours and required three. On 25 February her then supervisor, Mr Becala, noted that she was taking 45 minutes to remove some rubbish. She used the wrong mop and bucket, employing equipment which was for toilet areas for non-toilet areas. He told her that she was not suitable for the job and gave her a week's notice. She did not work her notice, but telephoned to say she was not well.
7. The following day, she wrote a lengthy letter complaining that she thought she had only ever been employed on a temporary basis, that there was prejudice against her because of her race and because it was alleged, quite wrongly, that she could not speak English adequately.
8. An investigation was held by the Managing Director, Mr Prime, into this complaint. He rejected the contention that there was discrimination and said that the reasons for her termination, as given to her verbally, were her timekeeping, quality of cleaning, use of equipment (or more accurately, incorrect equipment) and speed of work.
9. She responded, saying she had been given no warning, or opportunity to improve.
10. She was invited to a meeting on 10 March, but she could not make that date. She sent various papers for consideration.
11. A grievance hearing was heard on 23 March. She took with her a Citizens Advice Bureau representative, and she raised three distinct reasons why she considered that she had been dismissed. Only one of these, in fact, raised the issue of race.
12. Mr Prime then took further statements from various witnesses. He concluded that there was really no evidence that the treatment was on the ground of race, and that the other reasons given to her were the actual reasons for dismissal. She was given an opportunity to appeal, but did not take it.
13. The Tribunal noted that there was always a significant turnover of staff. More than half had left in under a year. Ten on the list of ex-employees were Chinese, and there were six persons currently employed who were reported to be of Chinese ethnic origin.
14. The Tribunal then set out the relevant legislation, and referred to the guidelines in the case of Igen v Wong [2005] IRLR 258. They noted that the employers had not carried out a capability procedure, and they felt there was no convincing reason why they had not (although we would have thought that the terms of the handbook might have explained this). They observed that it had been said that she did not have good English, when in fact it was very good. They noted that she had been paid a bonus which was in part at least for quality of work, although it was explained that it would only be withdrawn in exceptional circumstances. They also noted that there had been no Equal Opportunities training for the staff or managers.
15. All these, as the Tribunal identified, were factors pointing towards the possibility of discrimination. Against that, however, the Tribunal bore in mind that she had indeed been late, that she had admitted that she had said that she could not do the job in two hours and needed longer, and they expressed substantial reservations about her credibility. They said why at some length, in paragraph 18, and we need not recite that paragraph. Suffice it to say she was adamant that she had not signed documents and the Tribunal were satisfied that she had, and they found specifically that the basis of her victimisation claim - namely that she had told an older man her concerns that she may have been discriminated against on grounds of race - simply did not happen. Nor did she raise any complaint about racial discrimination, they found, until she went to speak to Mr Becala. They also noted that she had been appointed by Mr Becala, despite her name disclosing that she was of ethnic origin. The employers went out of their way to accommodate her working hours and they did their best to train her. The company employs persons from different races, including Chinese, as we have indicated.
16. In the circumstances, they concluded that she had not discharged the burden of proof of demonstrating that there was a prima facie case that she was discriminated against on grounds of race. She had not satisfied the Tribunal that a white person who was equally incompetent would have been treated differently, and she was not able to point to an actual comparator who had been treated in that way. Indeed, the Tribunal noted that three English employees had in fact been dismissed for poor attendance and time-keeping. The Tribunal went on to say that even if the burden had shifted, they were satisfied from the evidence of Mr Becala that the dismissal was really nothing to do with race or ethnic background at all.
17. As to the victimisation complaint, the Tribunal were not satisfied that she had made a complaint at all, so that claim was bound to fail.

Ground of appeal

18. We had received in advance a skeleton argument, prepared on behalf of the Appellant by a Mr Neaman. There is just one ground of appeal identified here. It is alleged that there was a misdirection and a failure properly to follow the Igen guidance. It is submitted that looking at two factors in particular, namely the fact that the employers did not adopt the capability procedure, and also that Mr Becala had said that she had difficulty with English when that was not the case, there was plainly sufficient evidence from which the Tribunal could draw the inference that her treatment could have been because of her ethnic origin and it was perverse to conclude otherwise. Then it was said there was no proper explanation as to why the capability procedure had not been followed, or why this inaccurate statement about her ability to speak English had been made.
19. We reject this ground of appeal. What the Tribunal has to do at the first stage in Igen is to consider whether, looking at all the matters apart from the explanation for the allegedly improper treatment, there is a prima facie case established. Part of the background would here be the evidence that other ethnic Chinese have been, and were being, employed in fairly significant numbers and that she accepted there had been various complaints about her work from the time that she started; that she had only been there for a few weeks; and, of course, that she had in fact, on her own evidence, been responsible for the failings which were identified. The Tribunal was entitled to have regard to all the facts before determining whether a prima facie case had been established. It would have been quite wrong for them simply to have focused on some factors which, of themselves and without regard to other matters, might have justified that conclusion. We think the Tribunal was fully justified in taking into account the matters it did, and its conclusion that the burden did not shift does not demonstrate any error of law.
20. But the appellant faces an even more difficult hurdle. Even if she is right on the first point, the Tribunal indicated that they were satisfied that the reason had nothing to do with race. They said:

"However, had we taken the view that it [the burden of proof] shifted, we would have been satisfied from the evidence of Mr Becala that the decision to part company with the Claimant was devoid of considerations of her ethnic background."

That observation is, we think, characterised unfairly by the Appellant in the skeleton argument as little more than a make-weight, a throw away remark by the Tribunal. We reject that. It is simply an alternative basis for the Tribunal's conclusion. It is dealt with briefly because it was not strictly necessary for the Tribunal to go further, having found that there was no prima facie case established. The Tribunal heard evidence from Mr Becala, and there was plenty of evidence here from which they could infer that the reason given by the Employer was a true reason. In those circumstances, that is the end of this part of the appeal. Strictly, it matters not whether the burden of proof shifted or not. The Tribunal found that it did not. We think that they were entitled so to find, but in any event, whether it shifted or not, they heard the reason given by the employer for the treatment, they weighed up certain factors which might have pointed in favour of discrimination, and they concluded that there was none in this case.

21. There have been further grounds of appeal put before us by Ms Li, who appears in person today. But we fear they are almost entirely directed towards the findings of fact which were reached by the Tribunal in this case. She contends that she was not given an interview, that she did not sign any document headed Contract of Employment, or anything similar, that she did raise a complaint of race discrimination with an older man and a 24 year old man, and she submits that the Tribunal were wrong in all their findings in relation to that matter. We fear that that is simply raising points of fact, which we cannot reconsider in this Tribunal. We can only hear appeals on points of law, as we have explained to her.
22. She also contended that the Tribunal ought to have identified a hypothetical comparator but it is clear from, for example, the Judgment of Lord Nicholls in the well-known case of Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, [2003] IRLR 285, that it is not an error of law to fail to construct a hypothetical comparator. It is something which Tribunals frequently do, but it is not a necessary stage in their reasoning.
23. She also relied upon a passage in the Judgment in Anya v University of Oxford & Another [2001] IRLR 377 of Sedley LJ which identifies the need for Tribunals to set out in some detail all the material facts before reaching conclusions about discrimination, but we think this Tribunal has set out in some detail its findings, and it does not fall foul of any principle laid down in that case.
24. She suggested that she had a grievance, which ought to have been heard by the employers, but that would not affect this part of her claim.
25. She also suggests that there is some kind of cartel between cleaning companies which is now stopping her getting work because she has made a complaint of racial discrimination, but we explained to her that that would not be relevant to the conclusion of this Tribunal.
26. We appreciate she feels strongly aggrieved by this decision but as we have said, we find no error of law. We should add only this. It would, in our view, be extremely surprising if there had been race discrimination in this case, in circumstances where the cleaning company does (and has over some years) employ persons of Chinese ethnic origin. It is not inconceivable that there could nonetheless be discrimination in a particular case, but it seems to us that there was powerful evidence which the Tribunal was entitled to consider and take into account when deciding whether or not there was a prima facie case. For these various reasons, the appeal fails.