Taylor v Suddards & Ors [1993] UKEAT 728_91_2806

EAT

Taylor v Suddards & Ors

[1993] UKEAT 728_91_2806 · 1993-06-28

MR JUSTICE WOOD (PRESIDENT): The Applicant, Mrs Evelyn Jean Taylor, by an Originating Application dated 9th May 1991 alleged that she had been the subject of racial discrimination under the Race Relations Act 1976 at the hands of her employers, Hammond Suddards, a large firm of solicitors, Ms Eileen Henry the Personnel Manager and Mr Britton, who was a Solicitor and a partner in the firm.

Mrs Taylor was born in the United States of America. She had been to College in New York, studied computers, taking a course in typing and for six years she had worked in the British Virgin Islands for a firm of lawyers, finishing there in 1986 when she completed a business administration course. She came to this country in 1989, working for someone else before coming to the Respondents Hammond Suddards.

In November 1989 she was called for an interview. She was interviewed by Mr Britton, for whom she was going to work as a partner in charge of a new section of the firm, the Intellectual Property Law Unit. That department had to be established, the Applicant was to be his secretary; she had that interview late in 1989, she started work in January 1990.

The allegation which she made in her Originating Application is as follows:

"I feel I have been treated unfairly and less favourably in being dismissed than other employees who took longer lunch hours and I feel the reason for this treatment is on racial grounds."

The hearing took some four days. Both the Applicant and the Respondents were represented by Counsel. The Tribunal therefore had ample time to see and hear a number of witnesses. There are no Notes of Evidence before us, they were not called for, we therefore look to the pleadings, to the Originating Application and the Notice of Appearance to see the issues that were before the Tribunal and the way in which this case was being put. We are able to do it in this case because in fact the Originating Application is carefully drawn and the defence is drafted, as one would imagine from a large firm, with some care and in some detail.

The case for the Applicant is that from January until November 1990 she worked for Mr Britton without any complaint from him and that he could have had no reason to complain about her work. That in November 1990 she was called to a meeting with the Personnel Officer, Miss Henry and Mr Britton, on the subject of taking long lunch hours and being late on a particular day for work. In fact her husband had been ill. Other secretaries had thought that she was taking time off because she jokingly had said she had stayed to have breakfast with her husband. But there was also the question of the lunch hours, she felt that she was only a minute or two or a few minutes late and that other secretaries on other occasions were also a few minutes late. She said that on this occasion, in November, no mention had been made about her standard of work. Thereafter she continued to work for Mr Britton and then on the 22nd February 1990 she was called to an interview; there was Mr Britton and Miss Henry and she was told that her work was not up to scratch and she was dismissed after half an hour; that was an unfair way of treating her and not in accordance with the practice as set out in a disciplinary practice part of the terms and conditions of service. That, in essence, was her case and her case was that there was differential treatment in that other secretaries took a few minutes over the hour for lunch, that she had been monitored by Mr Britton, other secretaries were not monitored and thirdly that the procedure used did not strictly follow that laid down, that in fact anyone else who had been dealt with had been dealt with strictly in accordance with the procedure and therefore there was differential treatment and that this differential treatment was on the grounds of race.

The Respondents put a very different case. Their case was that the Applicant had really been engaged on the basis of her curriculum vitae. We have already mentioned some of the details, but it was thought that with that background she was well able to take on a high degree of responsibility, that she was an accomplished legal secretary, and could work unsupervised, and indeed, with this new department starting up it was important that someone who was absolutely first class, but that is not the word used, but someone who was strong in these secretarial skills should be in that particular post. As a result of the necessity to market this new department, and to encourage people to use it, Mr Britton had spent a substantial amount of time out of the office and therefore the Applicant had not been seriously tested in the amount of work and the pressure on her during the earlier months of 1990. However, gradually he had realised that her accuracy, spelling and grasp of office procedures and her general secretarial ability, was poor and lower than he had expected from a senior secretary in the employ of the firm. The matter came to a head in November 1990 because two other secretaries had reported the fact that she was late for work and as a result an interview took place on the 3rd December. Miss Henry was present at that interview, and at that interview - and this was in conflict with the Applicant's case - there was a discussion about her poor time keeping, her lack of commitment, her unreliability and overall her poor performance.

Moreover, it was said for the firm that positive suggestions were made to her as to how she could improve, how, if she felt pressurised they should try and help her in that matter and to look forward positively. She was given a warning.

The next period of time is between December 1990 and the February 1991, and according to the case for the firm, the matters came to a head. Mr Britton decided that he could no longer keep the Applicant as his secretary. He spoke to a Mrs Hicks on the 20th, subsequently he spoke to Ms Henry, on the 22nd, that there was a meeting on the 22nd when they discussed the whole matter and as a result the Applicant was dismissed. The case really being that this matter had been looked at over a substantial period of time, there was no improvement, it was really useless to go on further and that the only appropriate course at that stage was to dismiss her, to give her notice, in fact she was paid an ex-gratia payment of £750.00.

They were the issues, the Tribunal had to decide and it had to decide on the evidence. They saw and heard the witnesses and they have given their reasons in a judgment which is clarity itself. The law and their direction to themselves on the law is impeccable. They refer to the Race Relations Act 1976 Section 1(1)(a), direct discrimination, and to 4(2)(c) the any other detriment, dismissal as the case may be in this case. They look at the background, they look at the meeting in December 1990, the meeting at which it is expressly found that Mr Britton did make complaints about the general standard of the Applicant's work and she was given a warning. Thereafter, a number of matters were the subject of complaints. Mr Britton was complaining of spelling mistakes, time keeping, general standard of work and in particular that there had been a complaint from someone at the Bradford Office that there was spelling mistakes in a document and that on another occasion Mr Mitchell had wanted to speak to him urgently and had been informed that Mr Britton did not arrive until about 9.30 am in the morning at his office. He usually, in fact, got there at about 8 to 8.15 am and Mr Britton expressed this as "the last straw". As a result of this he spoke to Mrs Hicks and subsequently, on the 22nd February sometime after 5 pm, he spoke to Miss Henry who then called the Applicant in to the meeting.

The finding is that the matters were all examined, and that the Applicant told, that she was being dismissed. The Tribunal put both sides of the case in this way in paragraph 5:

"So the case for the respondents is that she was dismissed because she was not up to the standard required of someone in the position of senior secretary, on a salary of £9,000 a year. Therefore the case for the respondents is that the reason for the applicant's dismissal is that she failed to reach the required standard in her work. The applicant's dismissal was on the grounds of lack of competence and not in any way connected with discrimination or because of her colour or ethnic background."

So that was the case as they understood it for the firm.

Thereafter the Tribunal, possibly because of the way in which the matter was being argued by Mr Panton and indeed as he has argued it to us today, felt that this was really an examination of the procedure of the firm as if it was claim for unfair dismissal. The Applicant did not have the necessary qualification period and the Tribunal remind themselves that this is not a Section 57(3) case, it is a case under the 1976 Act. Having set that out they say:

"We are concerned as to whether the respondents acted in a discriminatory manner in dismissing the applicant and the burden of proof is on the applicant to satisfy us on the balance of probabilities that the reason for dismissal was discrimination."

The Tribunal, therefore, had to look to see what were the reasons for the dismissal. Was there differential treatment? If there was differential treatment, was the reason for the differential treatment, or substantial reason, that of race.

They deal with the question of the reasons and the dismissal as a unanimous decision in paragraph 7. We emphasise that because in fact when it comes to the discriminatory aspect, in other words, the racial aspect as opposed to the differential treatment, a minority member thought that there was. It was a case where the Applicant had proved that whatever happened had happened because of race. But in the unanimous decision the Tribunal say this, and it is important to see the way in which it is drafted, they say:

"The tribunal is unanimous in regard to Mr Britton."

and as we will remember he is one of the Respondents.

"He has complained about the applicant's timekeeping, the general standard of her work including the speed and quality of her work and the manner in which she dealt with enquiries and particularly one in February when she said that Mr Britton did not come to work until 9.30 am when in fact on that very morning at that very time he was in the building."

So there are the complaints which were made, they were threefold, there. They say:

"We are not satisfied, on the evidence, on the balance of probabilities that Mr Britton discriminated against the applicant."

so that is still a unanimous finding.

"We are satisfied he had genuine complaints about the applicant's ability and that he asked in the first place, Mrs Hicks the assistant personnel officer, if he could change his secretary."

Pausing there, the tribunal, therefore, are finding that the complaints about time-keeping, standard of work and quality and the manner in which she dealt with enquiries, are all well found as reasons for dismissal. They continue:

"And the tribunal are satisfied that he would have acted in that manner and in that way with any secretary irrespective of her ethnic background and therefore we are satisfied that even if there were grounds on which the tribunal could say there was discrimination we are satisfied that there were good reasons for his action. But we are not satisfied, on the balance of probabilities that there is evidence to say that he acted in a discriminatory manner in regard to the applicant."

Pausing there, the Tribunal found that the reasons which were put forward by the firm are valid reasons, they found them to be true, and so far as Mr Britton concerned they are unanimous in finding that there was no discrimination.

The further evidence which they found was that between December 1990 and 22 February 1991 the Applicant had worked for two other partners who gave evidence and confirmed that she was really not up to it and that, ultimately, she was dismissed. So that tends to corroborate the case being put forward by Mr Britton.

The incident of the lunch hours is looked at. Two other secretaries were complaining but in fact, the Tribunal found indirectly, that there were other incidents which were involved and we are told by Mr Crawford that there was a great deal of evidence about lateness for lunch and bad time-keeping; that is indeed accepted by the Tribunal in paragraph 7. We cannot think that time-keeping refers to one incident only of being late back from lunch. So that is the situation. Thereafter they are split. So they continue the case against Miss Henry and against the firm, because of course Miss Henry was employed by the firm, and if she was discriminatory so were the firm. There is no defence set up under Section 62(3) of the 1976 Act.

The Tribunal majority look at the situation and they reject the case against Miss Henry. They say there is no evidence of discriminatory treatment and they find as a majority that neither Mr Britton, unanimously, nor Miss Henry by a majority, were guilty of discriminatory treatment of the Applicant. The firm is, therefore, not guilty or liable.

However, the minority member turns to look at the situation of Miss Henry and the firm. The minority member takes two points about the evidence of Miss Henry. First of all, that although in evidence and indeed according to the Applicant, the meeting on the 22nd February lasted about half and hour, just over, a letter had been written indicating that it had lasted over an hour. Secondly, that Miss Henry had referred to reports from the other two partners, Mrs Bailey and Mr Shaw, whereas when she came to give evidence it was that they had spoken to her direct. In any event both of them gave evidence, it was clearly found to be satisfactory, and it seems to us that the second point is really of no moment.

So far as the first point is concerned, the question of the length of the hearing on the 22nd February, what matters is the substance of what occurred and, indeed, it is suggested that Mr Panton went so far as to say that the Applicant's case was that the reason put forward by the firm were bogus, were spurious. That was a very serious charge indeed to make and if it had been made to the Industrial Tribunal, it seems from a reading of their decision, that it was very clearly rejected. However, the decision of the minority member ends thus in paragraph 12:

"Therefore one member of the tribunal calls into question the accuracy and credibility of Ms Henry's evidence and consequently prefers the evidence of the applicant and is satisfied that on the balance of probabilities there was discriminatory action in the dismissal and consequently he does not accept the majority finding of the tribunal. This member also finds that there was discrimination in that the work of the applicant was monitored in relation to the quality of her work and in particular to the times which she kept whereas the other secretaries were not. For all those reasons he does not accept the majority decision which is that all 3 respondents should be dismissed from the case, or in other words the application against all 3 respondents fails. . ."

It is not quite clear to us why the minority member there was finding that there was discrimination. So far as the monitoring is concerned, if someone is not working or not keeping time, not working properly or adequately, the natural thing is to keep some sort of a note. Whether it is properly called monitoring or not, there is no evidence that we can see that there is anything improper in what Mr Britton was doing and, if there was, then it could have been and should have been, held against Mr Britton, but this minority member found that Mr Britton was not guilty of discrimination. It seems to us a little difficult, therefore, to see quite how that can be relevant on the monitoring. As to the earlier part of paragraph 12 there is no detail as to why that member felt that it was a discriminatory action. Even if there was differential treatment, which we doubt, there seems to us to be no evidence upon which he could say, that there was discrimination on racial grounds.

Having read the decision, having understood the matter as best we may, we can find no error of law, indeed, it is difficult to find a point of law. This was essentially a question of fact and the decision of this Industrial Tribunal seems to us to be eminently correct and well founded on what was before them. This appeal is dismissed.

ORDER FOR COSTS

After arguments £6,000 costs were asked for.

Our decision is that the Appellant shall pay £2,000, part of the costs of the Respondents to the Appeal. Liberty to the Appellant to apply on or before the 30th July for a stay of execution in the event that the CRE does not meet the order for costs. By implication I hope that is clear enough that the view of the three of us is that they should but that there is no power to order it.