Dodson-Apple v British Broadcasting Corporation [1996] UKEAT 1177_95_2406

EAT

Dodson-Apple v British Broadcasting Corporation

[1996] UKEAT 1177_95_2406 · 1996-06-24

MRS JUSTICE SMITH : This is the preliminary hearing of an appeal against the decision of an Industrial Tribunal sitting at London (North) on 25th July 1995. The appellant had complained to the Industrial Tribunal that she had been discriminated against on grounds of race contrary to Sections 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976 . The tribunal found that there had been no discrimination on the ground of race and dismissed her application.

The appellant had been employed on a short-term contract as a telephonist by the BBC at Brock House, 19 Langham Street, London. She was so employed from 31st May 1994 until 3rd September 1994.

Her complaint to the tribunal contained two aspects. She complained first that she had been discriminated against during her employment, and also she complained that the decision not to renew her contract but to terminate her employment in September was discriminatory.

Immediately following the non-renewal of her contract, the appellant had lodged a formal grievance pursuant to the BBC's grievance procedure. There had been an investigation into her complaints by a Mr Wing. He had investigated complaints of racial discrimination during the employment and discrimination and unfairness in relation to the decision not to renew her contract.

At the outset of their extended reasons, the tribunal explain that in their view they had no jurisdiction to consider alleged acts of discrimination subsequent to the date of termination, 3rd September 1994, because the applicant was then no longer an employee of the BBC.

The tribunal went on to say:

"Events subsequent to the termination of her employment can only be considered if they are relevant probative evidence: see Chattopadhyay v Headmaster of Holloway School [1982] ICR 132, EAT. The Tribunal's jurisdiction is limited to consideration of matters which occurred on or prior to 3 September 1994."

Mr Swift on behalf of the appellant accepts that that is a correct statement of the law. However, he submits on the appellant's behalf that the tribunal should have heard evidence of that which happened after 3rd September 1995 because it might be relevant to and probative of attitudes and acts of discrimination during the employment and at the time of the decision not to renew the employment.

The tribunal heard a good deal of evidence as the record of the proceedings reveals. They set out their findings of fact in at pages 4 to 7 of our bundle, but it is not necessary for us to recount them in any detail. Suffice it to say that the appellant, having been taken on on a short-term contract, was one of 22 permanent and temporary operators employed on the switchboard at Brock House. Of those 22, six including the appellant were either black or Asian. The BBC operated an Equal Opportunities Policy. The tribunal found that from the start the appellant's supervisors were not satisfied with her performance. There were discussions amongst the supervisors as to her shortcomings, and she was told of her supervisors' concerns. The tribunal found that the appellant's response was that she was being picked on because she was black, and that she did not accept the criticisms that were made of her, nor improve upon those matters which were criticised.

During the three months employment, a number of small upsets occurred. One related to the appellant's request for time off to attend a church service for the blessing of her marriage. Another concerned an allegedly offensive remark by a women named Barbara Salvage, who was alleged to have said "Bloody foreigners can't speak proper English" in the presence of the appellant.

The tribunal came to the conclusion that the incident relating to the appellant's request to have time off had been an unfortunate muddle, was not in any way related to her race and did not amount to an act of discrimination. They also found that the alleged remark by Ms Salvage was not an act of race discrimination.

At the beginning of August 1994, discussions took place between management and supervisors as to whether the appellant's contract was to be renewed, and it was decided that it would not be. The evidence was that two white temporary telephonists who had been taken on at about the same time as the appellant, had had their contracts renewed. The appellant's case was that this raised an inference of racial discrimination. However, on investigation by the Industrial Tribunal it appeared that the BBC had given proper consideration to the appellant's performance of her job and had decided that because it was poor she should not have her contract renewed. It also emerged that about the same time a white telephonist, who had been employed under a short term contract similar to the appellant's had not had her contract renewed.

In the event, the tribunal came to the conclusion that there had been no evidence of racial discrimination, either during the employment or in respect of the decision not to renew the contract. No criticism is made in the Notice of Appeal as to the general approach of the tribunal to the law. Ground 1 of the appeal alleged that the tribunal's finding that Ms Salvage's remark about `foreigners' was wrong in law. It seems to us that that was a finding of mixed law in fact and that it was entirely proper for the tribunal to find as they did. Mr Swift for the appellant has not sought to persuade us to the contrary.

Mr Swift has concentrated his argument upon the second ground of appeal. We have found him of the greatest assistance and are indebted to him for the care with which he has addressed us. His submission is that because the Industrial Tribunal did not hear evidence relating to the investigation which occurred after the employment had been terminated, they ruled out evidence which may have been relevant to and probative of the issues of discrimination during the employment.

When Mr Swift was asked for an example of a way in which this evidence might have made a real difference to the way in which the tribunal approached their task and the conclusions which they reached, he was able to make only one suggestion. He suggested that because it appeared that the supervisory staff and management had had meetings regarding this appellant's performance in her absence, that would or might have demonstrated an unfair attitude or approach towards her.

We can see in theory how evidence of a post-employment investigation might on occasions throw light upon that which had happened during the employment. But here, the tribunal investigated the actual grievances in detail both in relation to the currency of the contract of employment and in relation to the way in which the contract came not to be renewed. The tribunal came to the conclusion on the basis of such evidence as was before them, that the investigation had been exhaustive. Mr Swift, quite properly, points out that they reached that conclusion on the basis of incomplete evidence. It does not seem to us that it could be seriously argued that the fact that the tribunal did not hear the appellant's views on the post-employment investigation could have made any difference whatsoever. Their refusal to hear evidence about the investigation cannot in any way undermine the validity of their general conclusion, reached after a proper and thorough investigation of the primary facts, that this appellant had not been discriminated against on the grounds of race.

We conclude therefore that this ground of appeal, although most attractively argued by Mr Swift, has in reality no merit. Accordingly, this appeal must be dismissed at this preliminary stage.