Harris v Royscot Financial Services Ltd [1993] UKEAT 56_92_2001

EAT
Harris v Royscot Financial Services Ltd
[1993] UKEAT 56_92_2001 · 1993-01-20

JUDGE J HICKS QC:

The Appellant, Mrs Harris, was employed by the Respondents, Royscot Financial Services Ltd, as a Secretary and Personal Assistant to a Mr Sunman, the General Manager of that company, and later a Director. Mrs Harris is Jamaican by birth and black in colour. She was in that job from 20 November 1989 until 10 December 1990, when Mr Sunman, in an interview with her, made it clear that he was not satisfied with her performance and, as the Industrial Tribunal found, made it clear to her that he would have to dismiss her unless she chose to resign. He put to her that one of the advantages of her resigning would be that the company would not then be obliged in any reference to refer to, or suggest, that she had been dismissed. She did resign.The Industrial Tribunal found that that was a constructive dismissal. It is also quite clear, although the matter was not strictly before them, that the Industrial Tribunal was of the view that the circumstances of the dismissal were unfair and it is therefore very likely, to say the least, that had Mrs Harris been employed for as much as two years, she would have had a claim for compensation for unfair dismissal. However, as she had not been employed for two years there was no jurisdiction to entertain any such application.She applied nevertheless on the alternative ground - a ground that was certainly open to the Industrial Tribunal as a matter of jurisdiction - that she had been by that constructive dismissal discriminated against on the grounds of her race. The Tribunal accepted that she had suffered detriment by that constructive dismissal, which was the first question that they had to ask themselves under the Race Relations Act 1976, and they then, in the remainder of their reasons extending to a further 13 paragraphs, deal with the substantial question argued before them, whether that detriment was suffered on the grounds of her race. They found that it was not and dismissed the application.Mr Edwards, addressing us on this preliminary hearing of the appeal, outlined the facts as alleged by Mrs Harris, but of course it is not for us to make findings of fact or to reach our own conclusion. The question is, whether the Industrial Tribunal erred in law in their approach to the matter or in the conclusion which they reached. The way in which it is put in the Notice of Appeal - and, as we understand it, Mr Edwards did not really put it in any significantly different way in his address to us - is first that the Industrial Tribunal erred in law in the conclusion that they reached in the circumstances that Mrs Harris was dismissed "without a formal warning of some sort and an opportunity to improve in the light of the warning of the consequence" . That is really an attack on the Industrial Tribunal's findings of fact rather than an allegation of any error in law.The next matter is that they erred in law "in failing to give any or any sufficient weight to the evidence of less favourable treatment towards the applicant" . The particulars given of that are that:
"The applicant was dismissed without being given any verbal or written warnings as against a white woman who received both verbal and written warnings before she was dismissed"
That refers to particular matters of evidence which were before the Tribunal and which the Tribunal dealt with. Again, it is apparent that on the face of the Notice of Appeal that an allegation that the Industrial Tribunal failed to give any, or any sufficient weight to certain evidence, is an attack on their findings of fact, not an allegation of error in law.The next matter alleged is:
"Whether the Industrial Tribunal has misdirected itself in failing to draw inference from the fact that the respondent have appointed 2 white women less qualified than the applicant."
One of these women had worked as a temporary secretary for 3 weeks and after appointment left after only working two days, and the other was alleged to have been less qualified than Mrs Harris and had therefore, it is said, to be sent on courses to improve her skills in shorthand and typing. Again, those are both matters that were dealt with by the Industrial Tribunal, and again it is really apparent on the face of the Notice of Appeal that an allegation that the Industrial Tribunal failed to draw the inference that the applicant invited it to draw is not an allegation of error or law, but at the utmost an allegation of an error of fact.The same is true of the last matter referred to, namely:

"Vacancy created was not advertised internally or externally."

That was matter which the Industrial Tribunal took into account, as is apparent on the face of their Reasons.A matter which is not dealt with in the Notice of Appeal, but which was relied on by Mr Edwards in his argument, was that at the time of Mrs Harris' dismissal and during the period when first one white person and then, for a very short period, another were appointed in her place, Mr Edwards says that there were better qualified black persons in the employ of the company who should have been considered.So far as that is concerned it is quite clear, as he agrees, that that was put before the Tribunal - the Tribunal dealt with it in paragraph 14 of their Reasons - so again that can only be a criticism of the conclusions that they reached on a matter of fact on the evidence before them. It cannot amount, in our judgment, to an allegation of error of law on their part.We therefore are unable to find any arguable error of law that is alleged in criticism of the decision of the Tribunal and in the circumstances must dismiss the appeal at this stage.