Makinde v London Borough Of Hackney [1992] UKEAT 652_91_1809

EAT

Makinde v London Borough Of Hackney

[1992] UKEAT 652_91_1809 · 1992-09-18

MR JUSTICE WOOD (PRESIDENT): Mrs Makinde appeals from a Decision of Industrial Tribunal sitting at London (North) under the Chairmanship of Mrs Calvert who, after a hearing on the 20th and 21st June 1991, rejected an allegation that she had been the victim of racial discrimination and also that she had been victimised under the later Section. She has argued her case before us admirably; she clearly feels, and in view of the criticism made by the Industrial Tribunal of management at the London Borough of Hackney, is probably justified in feeling, that the way in which her complaints were handled left a great deal to be desired. She was in fact dismissed by the Borough but does not bring proceedings in connection with that dismissal. This Tribunal can only interfere with a Decision of an Industrial Tribunal if there is an error of law and at this Preliminary Hearing we have read all the documentation and listened to the submissions made to us to see if we can discern an error of law or a possible error of law which merits argument with both sides present. That is our function at this stage.

Mrs Makinde has worked for the Borough for a number of years, she started in 1985. She was a resident Warden looking after a number of flats, numbers 65 to 80 Lea View House, in the Borough. There came a time when she was asked as a visiting Warden also to look after residential units at 157 to 174 Lea View House. Arising out of that period of time, which was the end of 1987, 1988 and 1990, she made a number of allegations in her Originating Application which are set out in paragraph 3 of the Industrial Tribunal Decision.

The first two are capable of being examined in isolation. She complained that she had been discriminated against, that is being treated less favourably on the ground of her race, she is black; and secondly, that she had been victimised in these two ways. First, that she had deliberately been given false information about the correct trade union to join. Secondly, that the Council had refused to buy out for £7,000 her rent free accommodation, that would enable the Council to provide the tenants living in rent free accommodation with a tenancy.

Those two specific matters were dealt with in paragraph 11 of the Decision (I think they are misnumbered because in fact there are two paragraphs 11 and two paragraphs 12, there is paragraph 11 on page 8 of the Decision) those two complaints are specifically dealt with and rejected. As to the first the Tribunal say:

"We have no evidence that either her Line Manager or anyone above him suggested to her which union she should join."

secondly, they say:

"that the Councils decision not to buy out her tenancy was justified because her tenancy was not one to which the proposals referred."

those are straight issues of fact where her case was rejected.

However, there were a number of other complaints which are identified in paragraph 3 of the Decision. First of all that she had been harassed by the residents and nothing was done - she tells us today that that did not really worry her. That her mail was interfered with; that her home had been entered when she was not there; that she was awakened by abusive telephone calls; that they had failed to supply her with cleaners. The three main items which seem to us from her address to us now come to the top of her worries, were that the Housing Officers in her District Office failed to give her relevant and correct information; that the Respondent required her, contrary to her contract, to work as a visiting Warden for numbers 157 to 174 Lea View House, and that she had complained to the leader of the Council, Mr McCafferty but her complaints were passed to the Head of Personnel for investigation and were not, in fact, investigated. That last one is perhaps the nub of much of her complaint against her former employers. The telephone bills and the issue about that which form the basis of the disciplinary matter in connection with which she was dismissed is not, as we repeat, a foundation for one of her complaints.

The problems started with memoranda in November 1989 from a Mr Gant. That concerned Special Needs Units and also the provision of concessionary television licences. That bubbled on as a complaint and her concerns and her complaints grew to such a magnitude in her approach and her understanding of the situation that she wrote to the leader of the Council, Mr McCafferty. She pointed out her concerns and her anger at the way she was being treated, saying that she considered that this was due to her race. Mr McCafferty referred those matters to Mr Yeboah, the Head of Personnel Services and he asked Miss Joy Adrien, who was the Principal Personnel Officer of Equal Opportunities and Mrs Labinjo, the Directorate Personnel Officer for Housing to investigate the allegations and Mr Nzekwue was also asked to take part. It is from that moment that the real build up of complaints by Mrs Makinde starts, because it seemed to the Tribunal from the criticisms that they made of the management in the Borough that the way in which her complaints were handled left a great deal to be desired.

Mrs Adrien eventually produced a report, and it is right to say that Mrs Adrien's evidence was accepted in preference to that of Mrs Makinde. The Tribunal somewhat pointedly go on to say:

"She was the only one of the three witnesses called on behalf of the respondents (the Borough) that impressed us. She clearly was well aware of what her duties and functions were and went about them in the best way that she could."

others were criticised. Now the issues that Miss Adrien felt she should investigate were first an issue about an annual holiday, that was a disciplinary matter which does not come into this main story; secondly, about the abuse and the harassment; thirdly, a lack of communication and that Mrs Makinde felt unsupported by her Line Manager, who was a Mr Williams. Then of course there is the question of the telephone calls but Mrs Adrien was really looking into the other matters.

The telephone call issue was dealt with between July and October 1990. There was ultimately a disciplinary hearing presided over by Mr Hall. It is clear that a letter was written by Mr Hall on the 16th October, the day after the disciplinary hearing because in a letter of the 10th January 1991, it is referred to. However, Mrs Makinde was not notified of her dismissal save by that later letter of the 10th January 1991 dismissing her with effect from the date of that letter. This is not explained, but if this is the usual practice in the Borough that again seems to us to be a matter which is open to severe criticism.

However, Mrs Adrien reported in September 1990 and made a number of recommendations. Those recommendation which are set out in paragraph 12 on page 7 of the Decision show that she was critical and indeed, severely critical, of the way this matter had been handled. The criticism was overt, as well as to be implied, and the Tribunal indicate that on page 7 where they say:

"Mrs Adrien was critical of the way Mrs Makinde's allegations had been treated and critical of the fact that she was given a warning in relation to the holiday incident."

they say:

"She [Mrs Adrien] makes no reference to racial discrimination or victimisation . . . . before this Tribunal Mrs Adrien said that she could not conclude that Mrs Makinde had suffered any detriment due to her race or sex. She did find there was inefficient management. We [the Tribunal] endorse that finding having seen the documentation and heard the evidence."

they go on to deal with incidents of inefficiency and criticise them in a fairly comprehensive way.

The Tribunal found the facts at length, we hope we have sufficiently outlined the facts, because our function, I repeat, is to see whether there is any error in law of the way in which this Tribunal faced the issue.

The provisions of the Race Relations Act which were the subject of their investigation was whether there had been racial discrimination itself and that is defined in Section 1(1) of the 1976 Act where it reads:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act"

that of course refers basically to Part II in the Employment Field,

"- if (a)on racial grounds he treats that other less favourably than he treats or would treat other persons"

then victimisation is the subject of Section 2 and that reads:

"A person (`the discriminator') discriminates against another person in any circumstances relevant for the purposes of any provision of this Act is he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -"

and then deals with various headings and it seems to us that those provisions may not necessarily be applicable here and that in treating the word "victimised" here Mrs Makinde was really referring to less favourable treatment under Section 1 of the Act. But the whole situation was before the Tribunal and they directed themselves, perfectly properly, on the law.

The summary of their findings, ultimately are to be found in paragraph 15 on page 9 of the Decision they say:

"We find that the criticisms made of the respondent in Mrs Adrien's report of 14 September 1990 are well founded. We find that there was insufficient attention to the complaints made by Mrs Makinde, insufficient explanations given to her as to why she could not be supplied with a cleaner and why she was expected to be a Visiting Warden for flats 157 to 174 as well as a Resident Warden for the other flats. We were concerned, having heard Mrs Labinjo and Mr Nzekwue give evidence, about the calibre of those two people and their ability to carry out their personnel function. Mrs Adrien who in effect took charge of the inquiry into the complaints did her work promptly and satisfactorily. The question we have to ask ourselves is, can we draw the inference that because the respondents through their officers were inefficient and bad managers that this was due to an element of racial discrimination against Mrs Makinde? We answer that question in the negative. We have no doubt that Mrs Makinde believes and will probably always believe that the Council were determined that she should lose her job because of her race. We are satisfied that such inefficiency and mismanagement as there was was not based upon any form of racial discrimination. The respondents are employers who employ people from many different ethnic origins and that is shown by the figures given to us by Mrs Labinjo in relation to the Resident Wardens. The respondents inefficiency and lack of management skills have contributed to the belief Mrs Makinde has that she has been picked out as a victim of racial discrimination. We do not find that that is the position, but the respondents have only themselves to blame that she has become obsessed by this idea. This application is dismissed."

Those are stringent criticisms of management in the Borough and from our reading of the papers they seem to us to be well merited. Indeed, it is a situation where perhaps they were unlucky to avoid an Order as to Costs.

However, the situation before is that we must look to see whether there is an error of law. No one doubts that the facts found by the Tribunal were based upon the evidence before them. It was their interpretation of those facts which is relevant for their Decision. Mrs Makinde applied for a Review and that was decided by the learned Chairman in November 1991; her Decision is contained in a letter of the 15th November. The basis of Mrs Makinde's Application for Review was that there were some errors on the face of the Decision itself. If I may give an example it gave the venue as London (South) instead of London (North); but the main basis for her application was that since the date of the hearing before the Tribunal there had been reported in local newspapers, and indeed it was the fact, that a number of members of the Labour Party in the Borough had resigned. One had transferred her support to the Conservative Party. The importance was the grounds upon which this had happened namely, that all of them who were black felt that the management at the Borough, had not been efficient or conscientious in an application of Equal Opportunities policies and that the ethnic minorities were suffering, and generally suffering, and nothing was being done about it.

The learned Chairman felt unable to decide that that evidence was material evidence to the issues which had been in front of the Tribunal and we would respectfully agree with her. Mrs Makinde's case was an individual case, she herself was bringing complaints which clearly the Tribunal felt she was entitled to have fairly and fully and quickly investigated and that did not happen. We agree with that and we feel that her grievances were there but the question is whether that failure in management was on the grounds of her race. It was decided against her.

Today, Mrs Makinde put one particular point before us which we must deal with and that is that she maintained that in effect the Borough simply had no defence to her allegations of racial discrimination. She relied on two documents. The first was a letter from the Borough of the 13th June 1991 signed on behalf of the Head of Legal Services indicating that there were no documents of which she had sought discovery and he says:

"Further to the interlocutory hearing of this matter I regret to advise I do not have copies of the documents referred to in your list.

Please forward copies of the documents you intend to rely on to these offices at your earliest opportunity."

Those documents consisted of letters passing between Mrs Makinde and some of the Departments of the Borough and she submits that this was a dishonest letter, it was a perjured letter and shows that the Borough simply had no defence to her allegations and that they were perjurious.

Those documents were all in front of the Industrial Tribunal, as was that letter, and it is to be noted, if one is being pernickety, that the letter does say that they have no copies of the documents. They should have had copies of some, but it may be that they did not have them in that Department. In any event those documents were all in front of the Tribunal.

The second matter relied upon is that the Notice of Appearance, which is the answer, the defence to her Originating Application, which was carefully set out over a number of pages, that very short Notice of Appearance was not signed by the Head of the Legal Services nor by any member of Management, indicating that the position in which he or she stood at the time of signing, but was signed by a junior member of the Legal Department and does not even say "on behalf of the Borough". Therefore, it is submitted by Mrs Makinde, that shows that no responsible member, in a position of seniority, was prepared to put a name and a signature to that defence and therefore there was no defence to her claim. Both those matters have been considered by us; it is in fact a common practice that someone in a Department should sign a document on behalf of a Borough, or a company or indeed a partnership or any other legal entity, a trade union, and it does not have to be passed as through the board or as a result of the committee meeting and therefore although Mrs Makinde certainly makes the points, in our judgment they are not valid to upset and disturb the finding of the Industrial Tribunal.

It follows therefore, in summary, that Mrs Makinde had, in the view of the Tribunal, and in our view, grounds for making her complaints and putting forward her grievances; that the Borough were severely criticised and in our judgment, rightly criticised, for the way they handled the matter, but in the end when they had looked at the whole of the evidence, seen and heard the witnesses, the Tribunal reached the conclusion that any problems that Mrs Makinde had suffered, any disadvantage, was not suffered on the grounds of her race and therefore it follows having looked at the Act that her application and her case must fail on that ground. But do not let it be thought that we do not have sympathy with her.

This appeal must inevitably be dismissed.