London Borough Of Tower Hamlets v Miller [1996] UKEAT 316_94_2203

EAT
London Borough Of Tower Hamlets v Miller
[1996] UKEAT 316_94_2203 · 1996-03-22
MR JUSTICE HOLLAND : This is an appeal by the London Borough of Tower Hamlets against a decision of an Industrial Tribunal sitting at London (North). The decision being announced orally on 26th November 1993, was the subject of extended reasons dated 22nd February 1994.That Borough had then been responding to complaints by three employees, each alleging racial discrimination. The employees were the present respondent, Miss B M Miller, together with two other ladies, Miss A Bailey and Miss T Graham.The decision which is under appeal is:
"The Respondent have discriminated against the Applicant, Miss Miller, contrary to section 1(1)(a) and 4(2)(b) of the Race Relations Act 1976."
For completeness sake it is to be noted that like applications on the part of Miss Bailey and Miss Graham were dismissed. The question of remedy was adjourned to a date to be fixed if the parties found themselves unable to agree.We turn to the facts. We make the initial point that the form of the extended reasons and the content repay careful analysis. In the early paragraphs the following facts emerge. On 1st May 1987 Miss Miller had commenced her employment as an information assistant in the Borough's "One Stop Shop" at Bethnal Green. Miss Miller is Afro-Caribbean. The shop had a staff of four and, initially, that staff amounted to Miss Miller, the two other applicants each Afro-Caribbean, and at that time a Ms Price who was white.In September 1989, Ms Price was succeeded in her post by another white person, Mrs Kingham. Miss Miller wrote at that time a powerful letter complaining about the procedure adopted so as to achieve that replacement, and alleging racial discrimination at not being herself allowed to progress either to a managerial position or at the very least, to assessment and training for managerial work. That letter, as the Tribunal found, was not acted upon.In paragraphs 5 and 6 the Tribunal found as follows:
"5 At the end of February 1992 Mrs Kingham was due to go on maternity leave. Miss Miller, understandably, expected to be asked to act up during her maternity leave. She was not. There was a meeting attended by Mrs Kingham, Ms Patterson-Dick (Mrs Kingham's immediate line manager), Ms Hayes and Mr Norton. It was decided that a temporary post would be advertised with one-year contract. Mrs Kingham conveyed this information to Miss Miller and advised her to apply for the post. In her evidence, which we accept, Miss Miller told the Tribunal that she did not apply for the post because she felt there was no point in applying for it if they were not going to give her the opportunity to act up. The post was advertised and Miss Weddell was interviewed on 12 March 1992. A letter confirming Miss Weddell's appointment was dated 16 March 1992 and she commenced her employment on 30 March 1992. Miss Weddell was white. During the six or so weeks prior to Miss Weddell taking up her post, Miss Miller, Miss Bailey and Miss Graham dealt with all the administration and management of the One Stop Shop between them. To that extent they had a short period of management experience. We find that Miss Miller would be the person who took most responsibility. Miss Miller also in evidence stated that she was told there was no point in her applying for the post whereas Mrs Kingham said that she suggested to Miss Miller that she apply for the post. Where the evidence of Mrs Kingham and Miss Miller differs we prefer the evidence of Miss Miller. We find she was told not to apply for the post as there would be no point in her doing so. That only confirmed her own view. Neither Miss Bailey nor Miss Graham wished to apply for the post as they felt loyalty to Miss Miller and that she should have at the very least, been allowed to act up if not given the post.
6 The next event that took place was the reorganisation of the Bethnal Green Neighbourhood staff. That was to take effect from 1 May 1992. The posts of Public Relations and Information Assistant were to be abolished as a result of this reorganisation. There was an agreed assimilation procedure, which had been agreed with the union. There would be automatic assimilation of displaced staff where the new job involved 60 percent or more of the job held currently by the Public Relations and Information Assistant. Miss Miller, Miss Bailey and Miss Graham were offered posts as Administrative Officers whereas they believed they should have been assimilated into the post of Communications Support Officers. They appealed against the decision not to assimilate them into the post of Communications Support Officer in accordance with the appeals procedure. Their appeals were rejected on the ground that they had no managerial experience. In effect, the posts of Administrative Officer we find was a downgrading in that the maximum salary was £1,500 less than their old posts."The extended reasons then go on, so far as material, to record the fact that there were eight vacancies for Communications Support Officers. In the event eight person were appointed to that position. Turning then to those eight persons, seven were white and one black. Mrs Kingham did not apply for the post, but was offered it.The appeal already referred to, was on 27th April 1992. The appellants learnt immediately that they were unsuccessful.Having thus rehearsed the essential facts, in paragraph 11 the Tribunal directed itself as to the law and in terms about which no complaint is or can be made.Then come the crucial paragraphs 12 and 13.:
"12 In the case of Miss Miller, we find the following:- (i) She started virtually at the same time as Mrs Kingham.
(ii) She was not given an opportunity to apply to take Ms Price's place.(iii) She was not given an opportunities to obtain managerial skills either by it being suggested she went on courses or in any other way.(iv) She had the same experience as Mrs Kingham.(v) Mrs Kingham was given the post of Communications Support Officer without applying.(vi) She was not given the opportunity to act up when Mrs Kingham went on maternity leave.(vii) A temporary post was advertised to cover Mrs Kingham's maternity leave and we have found as a fact that she was told not to apply for it.(viii) Miss Miller, who had had the same length of service in the One Stop Shop albeit not as the manager, was not short-listed for interview for one of the eight vacancies for a Communications Support Officer.(ix) Seven out of the eight people appointed were white.(x) Although her timekeeping had been criticised orally, she had never received any formal warnings. We have found a fact, save on one occasion, she was not more than 10 minutes late. She by arrangement and agreement left at 4.30 pm not 5 pm but only took half an hour for her lunch. Had she been told that if she was to have a managerial position she would have to stay until 5 pm, we find that she would have been willing to make the arrangements to enable her to do so."The Tribunal then go on:
"From the above primary facts we draw the inference that Miss Miller was discriminated against by reason of her colour, that the appeal should have been upheld in relation to her complaint about her assimilation. The experience she had had covered the majority of the tasks need for the post of Communications Support Officer. Her application succeeds in that we find that there was discrimination contrary to section 1(1)(a) of the Act and as a result of that discrimination she was not given access to opportunities for promotion and training contrary to section 4(2)(b) of the Act."
"13 Miss Bailey and Miss Graham had less experience than Miss Miller although they assisted Miss Miller in the five or six weeks before Mrs Kingham taking her maternity leave and Miss Weddell being given the temporary post for one year. In their case we are not able to find that on the balance of probabilities they should have been assimilated to the posts of Communications Support Officer by reason of the fact that they had less experience than Miss Miller. Miss Bailey was not appointed until October 1989 to the post of Public Relations and Information Assistant, therefore she had two years and five months less experience than Miss Miller, and in the case of Miss Graham she was not appointed until 25 January 1991 and had had only one year and three months in the post of Public Relations and Information Assistant before the reorganisation and assimilation. Their applications are dismissed."
Before this Tribunal on behalf of the now appellant Borough, Mr Cotter has taken, in effect, four points. First, he submits that the assimilation process, that is the whole process including the appeal that resulted in the allotment of the status of Administrative Officer to Miss Miller, is not subject to critical findings by the Industrial Tribunal. In particular, a Mr Crouch who was seemingly a responsible for the whole exercise is not criticised. Therefore he submits that the reasoning which led to the Industrial Tribunal finding of racial discrimination with respect to the result of that appeal, such being the subject of the IT1, was perverse.Second, he submits, that in so far as the Industrial Tribunal relied upon events occurring more than three months before 16th June 1992, that is more than three months before the date on which the IT1 was presented, such was impermissible having regard to the time limit of three months imposed by Section 68(1) of the Race Relations Act 1976 . All events prior to the inception of that period were inevitably out of time and the Industrial Tribunal did not therefore have jurisdiction to adjudicate upon them.The third point is that he was, as Counsel for the Borough at the proceedings before the Industrial Tribunal, taken by surprise by the decision of the Tribunal to differentiate between the three appellant. The case for the three appellants had been presented by the same representative on the basis that they all stood or fell together. He contends that he should have been forewarned that the Industrial Tribunal were contemplating making the differentiation that is ultimately set out in paragraph 13, so that he might have the advantage of addressing them on that point.Fourthly, he has put before us a note taken at the time of the oral announcement of the decision by the Chairman. It is his contention that there is such a material difference between that which was said by her on 26th November and that which appears in the extended reasons, that the whole procedure is potentially perverse, so that the matter should be sent back to be considered again by a fresh Tribunal.There then are the four points. It behoved us to consider them seriatim . As to this it is convenient to proceed immediately to point three. This submission is with all respect to Mr Cotter, readily disposed of. Thus reverting to the terms of paragraph 13 taken in the context of the extended reasons as a whole, leads this Tribunal to discern that the Industrial Tribunal was finding that all three applicants had been prima facie the subject of racial discrimination. But that when they came to consider the particular position of respectively Miss Bailey and Miss Graham, that Tribunal was able to find that the Borough had rebutted the inference that such discrimination was racial, on the basis that as the Tribunal itself pointed out there were grounds other than racial for making the decision finally reflected in the appeal. That rebuttle as accepted by the Industrial Tribunal seems to us to either reflect points made to it specifically by Mr Cotter doing his best for his clients, alternatively, it reflects points taken by the Industrial Tribunal of its own volition, but in favour of his clients. Either way, we find it difficult to see a good basis for any complaint by the Borough to this Tribunal as to the way in which the Industrial Tribunal proceeded, and it is difficult indeed to see what further advantage might have accrued to Mr Cotter had this line of thought been vouchsafed to him in advance. Presumably he would have hardly challenged it given that it meant that he was on his way to a two thirds victory. There is, in our judgment, absolutely nothing in that point whatsoever.Let us then however, turn to the more serious points that can compendiously be considered together, that is his first and second grounds as already set out.The argument raises essentially a question as to what was the nature of the applicant's case to the Industrial Tribunal. Was that case solely based upon the procedures immediately leading to the failed appeal, that is the assimilation procedure itself and the appeal, in which event, as Mr Cotter points out, there are no specific findings of racial discrimination inherent in such? Or, as is the response of Mr Galbraith-Marten, was the nature of the case for Miss Miller that she had been subjected in the course of her working history with the Borough to racial discrimination, such as put her at a disadvantage so that she could not through the assimilation process and the appeal, obtain the position of Communications Support Officer, in which event, as the respondent to this appeal would submit, the extended reasons and the decision can respectively be sustained?Investigating this point, we accede to Mr Galbraith-Marten's invitation to start by looking at what happened at the first day of the hearing before the Industrial Tribunal which was 14th July 1993. As to what happened on that day, we quote paragraph 2 of the reasons furnished for the decision of that day.
"2. Ms Geldart opened the case referring to the documentation in the bundle of documents and taking the tribunal clearly through the history of the Applicant's employment with the Respondents. She also in her opening statement made it clear that Miss Miller was relying on the fact that throughout her employment which began on 1 May 1987 various mangers had unconsciously discriminated against her in that 1989 she was not promoted nor interviewed for promotion as she would have expected to be, and that she and the other two Applicants were not given the opportunity for training to take managerial responsibility. After Ms Geldart had closed Mr Cotter, for the Respondents, made an application that any evidence relating to the allegations of discrimination in 1989 or earlier than the three month period beginning with the 27 April 1992 should be excluded. He stated that he had not the witnesses to deal with such allegations and in any event they were out of time. The tribunal refused that application on the grounds that in the vast majority of complaints of racial discrimination previous alleged acts are given in evidence not as a complaint on which the tribunal could adjudicate if the alleged act was outside the three month period within such a complaint has to be brought by reason of Section 68 of the Race Relations Act 1976 but because it is evidence from which inferences may be drawn in relation to the complaint before the tribunal."
Having thus directed itself at that earlier hearing, the Tribunal then granted Mr Cotter an adjournment in order to allow those instructing him to take statements from the persons involved in the earlier history as had been opened by Miss Geldart.Thus it is that one comes to the actual decision of 14th July 1993, namely that the hearing was adjourned to 24th, 25th and 26th November 1993. Thus it is further, that when one comes to that adjourned hearing and the extended reasons thereby produced, one finds carefully set out that earlier history, and one finds in particular that in paragraph 12, the facts relied upon for the inference of racial discrimination, do not include the assimilation process nor the appeal. What they amount to is everything that bore upon the ability of Miss Miller to take advantage of that assimilation process to take of advantage of that appeal, in order to secure the position that her experience and her talents would naturally fit her for.That then being the way in which matter had proceeded, the issue that then is raised is as to whether the Industrial Tribunal was in law entitled so to approach this matter. As to that, we have been helpfully referred by Mr Galbraith-Marten to a decision of this tribunal Din v Carrington Vyella Ltd [1982] ICR 257 . The complainant in that case relied upon the refusal of the respondents to re-engage him as an employee in September 1980. His case was that that refusal was racial by reason of the nature of an incident in earlier period of employment with them, that is in July 1980. At 261 the Tribunal said as follows:
" Mr Beaumont for the employers took another point, namely, that the acts done in July 1980, even if discriminatory, were done more than three months before the complaint was brought which gives rise to these proceedings. Section 68(1) of the Act provides:
"An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done."
Mr Beaumont takes the point that even if there was a racially discriminatory act done by Mr Rogers in July 1980, that was more than three months before the present proceedings were commenced and, therefore, cannot in any way influence a decision as to whether the acts done in September 1980 were racially discriminatory. In our view, that is not correct. Section 68(1) prevents an act occurring more than three months before proceedings are started being treated as being the cause of action giving rise to a remedy under Act. Section 68(1) does not say that no regard shall be had to any discriminatory acts done outside the period of three months. Though no damages or other relief could be obtained relying simply on the act of July 1980, it does not follow that acts done within the three month period which are related to acts done outside the three months period are incapable of giving rise to a cause of action. We therefore do not think that that is a good ground of objection to a decision that there was racial discrimination in this case."In our judgment, those observations of this tribunal are to be followed by us and deal entirely with the legality of the approach of this Industrial Tribunal to the case as a whole. Plainly they were entitled to do as they did. If then, the decision was open to them as a matter of law, was it in any way perverse? As to this we draw strong attention yet again to paragraph 12. All ten facts there set out would appear to be beyond challenge in as much as either they were agreed, or else they were reasonably established to the satisfaction of the Tribunal. That then leads to the totality. As to that, in the judgment of this Tribunal the totality of such facts was sufficient that the finding based thereon cannot possibly be attacked as perverse. Manifestly taking those ten points together, the Tribunal was entitled to reach the conclusion that was recorded without this Tribunal being able to say that in any way their conclusion was one which no reasonable Tribunal could form.In viewing this part of the case we have given some consideration to the potential for injustice. Let it be supposed, Mr Cotter argues, that there was an incident early on in a long working history from which an inference of racial discrimination could readily be inferred. Let it be further supposed that within three months of that incident no complaint was ever made. He asks rhetorically, how can it be right that perhaps years later that incident be prayed in aid of support of a subsequent complaint of racial discrimination. As to this, in the view of this tribunal, the answer lies quite simply in the realm of fact. Before any such earlier incident can legitimately be taken into account when deciding whether the subsequent matter complained of reflects racial discrimination, there must plainly be a sufficient causal connection. That need is amply demonstrated by the decision of this tribunal in Seide v Gillette Industries Ltd [1980] IRLR 427 . We refer particularly to the passages in the judgment at 431 underlying this very point. Turning however, to the instant situation, the issue does not, in our judgment, arise. True it is that one matter that is relied upon and understandably so is that which happened in 1989, but as the extended reasons make abundantly clear, the Tribunal dealt with the issue in the case, on the basis that racial discrimination was continuing right up to a date reasonably approximate to the assimilation process itself, and the subsequent appeal. Thus it is the Tribunal had no difficulty in being satisfied as to the causal connection. Thus it is that this Tribunal does not find itself in a position to criticise that appraoch to the matter.That then leads on finally to his fourth point. At the conclusion of the hearing on 26th November 1993, the Chairman delivered herself of the decision of the Tribunal supported by a short resumé of some of the factors weighing with them. The terms as noted down by Mr Cotter are as follows:
"We are unanimous in the decision that the Respondent has discriminated against Ms Miller. The reason is that we are not satisfied that her time keeping was as bad as suggested and we find that in February 1992 when Mrs Kingham went on maternity leave the only inference that we can draw with her clear experience and our finding that if she was as late as stated she would have been given an official warning the only inference we can draw is that it was a discriminatory act that would not have been taken if she were a white person. Ms Miller was the subject of an act of continuing discrimination being from February 1992 until Weddell was appointed. This was the final act of discrimination that affected Ms Miller in the assimilation process. Had she been acting up the chances though not 100% certain are very high that she too would have become the Communications Support Officer."
Mr Cotter tells us, and we accept, that at that stage, the Tribunal did not know precisely when it was that Miss Weddell was appointed. That being the case, the Tribunal asked for the necessary information, so that it could be taken account of in the extended reasons. In the event, some research had to be done, and eventually the Tribunal was told that which appears at paragraph 5 and is already set out in this judgment, namely, that Miss Weddell was appointed on 16th March and she commenced her employment on 30th March 1992.Mr Cotter points out, first, that he would submit that the appointment of Miss Weddell was just outside the three month period appropriate to the IT1 in this case. We interpose: it can only have been just outside at best. But, second, he points out that when the Tribunal came to give its reasons, it did not measure the length of the discrimination by reference to that appointment. He submits that in those circumstances, there was some material variation between the reasons as originally promulgated by the Industrial Tribunal, and those that appear in the extended reasons. He speculates that the way in which they put the matter originally their finding meant that they found that they were relying on something that was outwith the appropriate limitation period.What is said in response? Mr Galbraith-Marten, invites us to look not just at the sentence:
"Ms Miller was the subject of an act of continuing discrimination being from February 1992 until Weddell was appointed."
But invites us to add in the subsequent sentence:
"This was the final act of discrimination that affected Ms Miller in the assimilation process."
He submits that reading both sentences together, there is in truth, no departure at all from the way in which the matter was finally set out in the extended reasons. The Tribunal, as already explained in this judgment, was approaching the matter on the basis that the act finally complained of was the appeal, that that was the culmination of the selection process, and that the discrimination alleged, reflected the earlier history. All, as he would submit, that the Chairman was saying on this occasion, was that the discrimination relied upon was evidenced as late as March, that is when Miss Weddell was appointed and not Miss Miller. Thus it is, he submits, that on a fair reading, there is indeed no contrast or no serious contrast between that which the Chairman said at the conclusion and that which was finally set out in the extended reasons. He additionally submits that unlike the situation that is reported in certain other cases, there was no difference as to the decision, that is there was no difference between the decision as promulgated on 26th November, namely that the respondent had racially discriminated against Miss Miller, from the decision that was set out in the extended reasons. If there was any difference at all, it arose in the expression of the reasons. He would invite us not to be over critical of any revision process pointing out that it is the advantage of the parties and of course for the Tribunal, to have the benefit of considered thought as expressed in extended reasons. In the course of argument it was pointed out that any judge has the opportunity to correct and revise judgments delivered, as I am doing now, in an extempore fashion. Why should not a Chairman do likewise providing that the alteration does not go right to the root of the matter, so that the parties should be given opportunity to consider the process afresh?In our judgment Mr Galbraith-Marten is right to submit that on a proper and fair reading, there is no real discrepancy between than which the Chairman said on 26th November and that which subsequently appears in her extended reasons.Yet further, we would be very reluctant to be over critical of the revision exercise in the course of the preparation of the extended reasons, not least for the point made by the Chairman herself in a letter to this Tribunal prompted by the Notice of Appeal. In this letter she indicated that if there was something in this, then the short answer was that she would never give any oral reasons at the time. The disadvantage to the public of this is obvious, and her comment merely underlines the force of the point made by Mr Galbraith-Marten and our concern, that it is only in extreme circumstances that differences as to reasons could conceivably found an appeal to this Tribunal as distinct from differences as to decision, which as the authorities put before us show, can obviously be found an appeal, indeed an effective appeal, to this Tribunal.Thus it is for the reasons we have set out, this appeal is dismissed.Leave to appeal refused.