Ellis v London Borough Of Camden [1995] UKEAT 959_94_2802

EAT
Ellis v London Borough Of Camden
[1995] UKEAT 959_94_2802 · 1995-02-28
MR JUSTICE BUCKLEY : This matter came before the Industrial Tribunal held at London (North) over several days in July 1994. The complaint was of discrimination on grounds of race. The Tribunal concluded, insofar as this originating application is concerned:
"We are satisfied that the Respondent acted with propriety from start to finish and did not treat the Applicant less favourably on account of her race."
The Applicant, represented by Mr Mardner who appeared before the Tribunal, now seeks to appeal against that decision.The question of course, is whether there is any discernable point of law sufficient to justify the matter to go to a further and full hearing. Mr Mardner's first point is that the Tribunal misdirected itself in point of law and he referred us to page 6 of the Tribunal's Reasons, the last full paragraph on that page which begins "The Applicant complained of a number of matters". The Reasons mention that she called no evidence to the effect that anyone was treated more favourably. There is mention of re-grading and good reasons why it was not dealt with in 1991. She was re-graded in 1992. Mr Mardner's point in particular is this passage:
"Ms Kelly, who gave evidence on her behalf, [the Applicant] was an impressive witness but while confirming that the Applicant had become both upset and defensive indicated that it had been a situation of equal misery all round..."
It is the reference to "equal misery all round" that has attracted Mr Mardner's attention and he makes the point, quite rightly, that equal misery all round would not necessarily mean that there had not been discrimination and he draws on that to try and found an argument that the Tribunal misdirected themselves. But there is always a danger in taking a short passage out of fairly lengthy and careful reasons to try and attribute to the Tribunal a wrong approach. It seems to us that they are doing no more there than reciting what that particular witness had said and putting that into the scales, along with all the other matters that they carefully set out and that they were undoubtedly entitled to do. We cannot say there is any evidence of a wrong approach there.The next and perhaps main submission of Mr Mardner is that the Applicant did not have a proper or fair opportunity of acting up. He refers us to page 7 in particular of the Reasons under the heading "The Second Originating Application". Again the Tribunal is here dealing with one of Mr Mardner's own submissions when they say:
"Mr Mardner suggested that as she was the only black manager in the section she should be excluded from the procedure that was applied to everyone else. She should have been the beneficiary of positive discrimination and training to cover her lack of knowledge and experience in the field of welfare and occupational health."
Mr Mardner, as a further string to his bow says - "Of course they have gone wrong on positive discrimination, in their approach to that" but we cannot accept that. The Tribunal are simply identifying an argument that was put before them and there is no evidence reading the Reasons as a whole that they have in any way simply applied a wrong approach in law along those lines.The paragraph goes on:
"We are satisfied that the job description for the new job was sufficiently different from the job description for the old job to warrant an interview and that that interview was properly conducted in all respects including equal opportunities."
The reasons point out that there was an appeal procedure; that the Applicant appealed; the appeal was properly conducted but the Applicant on hearing that the appeal had been unsuccessful resigned and resisted all efforts by the Respondents to persuade her to stay.We are not here to find facts or challenge facts found by the Tribunal unless they have gone wrong in their approach in law and it seems to us that that is a perfectly proper finding on the facts which was open to the Tribunal. We cannot discern there any wrong approach at all.What Mr Mardner next sought to persuade us was that one should put it all together and he tells us that he submitted to the Industrial Tribunal that a pattern of discrimination emerged. One should not just look at the individual incidents which he submitted the Tribunal have done, one must do that but then go on to see if notwithstanding perhaps no one or two or them amount to very much, put together one can in fact see the truth of the position: that is that there is indeed a pattern of discrimination. We have no hesitation in accepting that Mr Mardner is right in that approach, but we cannot find, having read the Reasons and reread them very carefully, that there is any justification for that criticism of these findings. They find the facts. They deal with the submissions that are made by the respective parties and they set out their conclusions and the fact that they do not expressly use the word "pattern" or say that they have looked for a pattern does not, of course, mean that they have not. That is something that one really can only judge by reading the whole of the Reasons and looking at the conclusion. We have done that and cannot find any flaw in the approach.In the result we are afraid that despite Mr Mardner's careful and very helpful submissions we can find no point of law that emerges which can sensibly be criticised from these Reasons. It seems to us it was essentially a matter of fact and that was something the Industrial Tribunal and not this Tribunal were charged to find and deal with and that they did. This matter must be dismissed.