Perera v White & Anor [1996] UKEAT 377_93_1803

EAT
Perera v White & Anor
[1996] UKEAT 377_93_1803 · 1996-03-18
MR JUSTICE MUMMERY (PRESIDENT) : This appeal is against the unanimous decision of the Industrial Tribunal held at London (North) as long ago as 17th and 18th February 1993.The tribunal decided that the claims by Mrs Perera of sex and race discrimination against Mr J White and Care Management Advisory Services Ltd failed and should be dismissed. The tribunal sent the extended reasons for the decision to the parties on 12th March 1993. An appeal was served against the decision on 23rd April 1993.There had been delay in the hearing of the appeal for a number of reasons. One of the problems raised by the Notice of Appeal was that it sought to bring into the appeal two of the original parties to the claim, London Borough of Tower Hamlets and London Homes for the Elderly, who had been struck out of the proceedings by an interlocutory order made before the hearing of the application. That interlocutory order was not appealed. The Employment Appeal Tribunals Registrar ordered that those two parties should be deleted from the Notice of Appeal.The matter remained in a state of uncertainty as far as the appellant was concerned. That uncertainly was resolved by the decision of this tribunal at the preliminary hearing of this appeal on 28th February 1996. It is unnecessary to repeat the judgment given on that occasion. It was made clear to Mr Perera, who represents his wife on this appeal, that no point could be raised on the appeal against the two parties removed from the proceedings before the hearing of Mrs Perera's complaint by the Industrial Tribunal.As explained in that judgment, we then adjourned the preliminary hearing for further consideration as to whether there were any arguable points of law against the two respondents Mr White and Care Management Advisory Services. This is the adjourned hearing.Mr Perera submitted that there are errors of law in the decision. The decision sets out the findings of fact by the tribunal. Mrs Perera, who the tribunal described as "a very experienced and highly qualified lady", was appointed on 26th March 1990 to be Officer in Charge of Sydney House in Stepney, London E1. Sydney House was one of three homes for residential care to the elderly. It was then managed by a charity, London Homes for the Elderly. Mrs Perera carried out her duties and at no time was she criticised by the director of London Homes for the Elderly to whom she was responsible. She took up her post on 26th March 1990. She completed her six months' probationary period satisfactorily and continued to look after the home and run it to the satisfaction of her employers.The present case arises out of changes in the arrangements for the running of Sydney House. A letter was sent on 5th April 1991 to Mrs Perera by the director of London Homes for the Elderly explaining that a decision had been made by the management committee to relinquish the management of Sydney House to the London Borough of Tower Hamlets, and to their managing agent, Care Management Advisory Services Ltd. That that organisation would take over the existing contracts of the staff and would be responsible for all matters to do with Sydney House from the following week in April 1991. The lease of Sydney House would be handed over to the London Borough of Tower Hamlets. From then on all the staff would be paid by the managing agent, who would recognise the rights of staff. That managing agent would continue to manage Sydney House until such time as the local authority had found an organisation to undertake the long term management. They in turn would take over the accrued rights of all the staff.The tribunal referred to evidence of Mr White about the running of the home. There were severe financial difficulties. They were the reason why London Homes for the Elderly relinquished the management.The tribunal referred to a management agreement drawn up between the London Borough of Tower Hamlets and The Greytree Trust of which Mr White was the director. That was an agreement dated 3rd June 1991. The tribunal said:
"At that time The Greytree Trust was not in existence. It did not come into being until 11 June 1991."
Mr White decided soon after Care Management Advisory Services took over the management of Sydney House that he would be the manager and Mrs Perera would go. She was notified of this in writing by a letter of 8th May 1991. The letter is signed by Mr White on headed notepaper of Care Management Advisory Services Ltd. A line underneath the details of its address and phone number states:

"To be known as the Greytree Trust"

"This is to formally notify you that, as from Saturday June 8th 1991, I shall be assuming direct management responsibility for Sydney House and, as such, will become the registered Officer in Charge.
Regretfully, therefore your position as Matron of the Home will cease from this date."He expressed sorrow for the decision, but added:
"The financial structure and liabilities of the Home have required some unpleasant decisions to be made to avoid the ultimate solution, namely its total closure."
The tribunal dealt with matters raised by Mr Perera in paragraph 8 of the decision.:
"8 One of the matters that has been submitted forcibly by Mr Perera on behalf of his wife is that she was not employed by Care Management Advisory Services Ltd because the London Borough of Tower Hamlets had improperly allowed them to manage the Home and that to this day it had not been handed over to a charitable trust which was one of the conditions on which it was originally founded. The London Borough of Tower Hamlets may not have carried out the transfer in the correct way but that does not affect the situation and it is clear from the letter from London Homes for the Elderly on 5 May that it was Care Management Advisory Services Ltd by whom Mrs Perera was employed from 11 April to 9 June. We make that as a finding of fact."
The tribunal summarised the background to the claims of Mrs Perera that she was a victim of race and sex discrimination in relation to her dismissal from her position as Registered Manager and Officer in Charge of Sydney House. The tribunal referred to the relevant provisions of the Race Relations Act 1976 , and the equivalent provisions in the Sex Discrimination Act 1975 and applied those provisions to the facts.The essence of the tribunal's reasoning is in paragraph 11. We are unable to find an error of law. The tribunal correctly directed themselves that the onus was on Mrs Perera to satisfy the tribunal that the reason or main reason for her dismissal was either that she was a woman or because she was of an ethnic minority. The tribunal found as a fact that the reason for her dismissal was that:
"Mr White took the view that new management was needed as a great deal had to be done to put the Home back so that it was in financially sound position."
The tribunal said this in paragraph 11:
"We do not find that Mrs Perera's ethnic origin had anything to do with that decision and nor do we find that her sex did. It is quite clear that women had been appointed to her position. It is unfortunate that Mrs Perera had not completed two years' service. Had she done so, there can be no doubt whatever that she would have been unfairly dismissed. The way she was dismissed was peremptory, Mr White had not criticised her at all in the short time that he had been in the Home, and it is surprising that a man of his experience in dealing with people in Homes and in the Social Services should have acted so insensitively."
In that reasoning that the tribunal found as a fact that the reason for Mrs Perera's dismissal was not racial and not on the grounds of sex. There is no error of law in that conclusion. That is a conclusion of fact which the tribunal were entitled to reach on the evidence. There was no misdirection by the tribunal on the applicable law or on the burden of proof.We asked Mr Perera what were the grounds of law on which he sought to appeal. He referred us to his Notice of Appeal. The main points were these. He submitted that:
"The criterion that the reservation of a vacancy for a particular individual could lead to discrimination against other applicants to that vacancy was established in a number of cases including that of British Gas v. Sharma [1991] I.C.R. 19, E.A.T."
That proposition is relied on by Mr Perera, not in relation to paragraph 11 of the decision, which sets out the basis for dismissing Mrs Perera's claim, but in relation to paragraph 12 of the decision. Paragraph 12 of the decision deals with a submission made by Mr Perera, but does not form one of the grounds of tribunal's decision. The grounds for the tribunal's decision finish at paragraph 11. Paragraph 12 deals with a point that Mr Perera raised on the effect of the agreement which purported to hand over the management of Sydney House to the Greytree Trust. That was a document produced by Mr White, at the tribunal's request, on the first day of the hearing. It contained a provision in Clause 5.1 that Mr Perera submitted was discriminatory. Clause 5.1 is extracted in the tribunal's decision. It was under the heading "Registration Under the Registered Homes Act 1984" :
"The Trust shall procure that John White Director of CMAS shall be nominated pursuant to the Registered Homes Act 1984 as a fit person to be responsible for the management of the Home and the care of the Residents."
Mr Perera submitted that the wording of that clause was discriminatory because it precluded a woman or anyone of an ethnic minority being appointed. The tribunal found that that submission was correct. The clause related to a person who was to be employed in the management of the Home and the care of the Residents. It excluded women and anyone of ethnic minority. To that extent it was discriminatory. The tribunal added that that did not assist Mrs Perera in her claim because neither of the parties to the agreement, that is the London Borough of Tower Hamlets and the Greytree Trust, were parties to the case.Mr Perera's submission is that the case of British Gas v Sharma assists in the claim for race discrimination against the respondents, because it held that there could be discrimination on the grounds of race or sex if a vacancy was reserved for a particular individual. In our view, this point is not an arguable point of law on the appeal for a number of reasons.First, we have consulted British Gas v Sharma and it does not lay down such a broad proposition as Mr Perera suggests. The case is an authority on the burden of proof in cases of race and sex discrimination. The burden of proof remains on the applicant, though inferences may be made of race or sex discrimination from all the circumstances of the case. A provision of the kind referred to in paragraph 9 of the grounds of appeal could be one of the circumstances from which an inference is made.Secondly, the point made by Mr Perera is not relevant to the decision against his wife. As is made clear in paragraph 12, the tribunal's view on the effect of the clause in the agreement between the London Borough of Tower Hamlets and the Greytree Trust does not assist Mrs Perera, because the discrimination claims by her were not against either of those parties: they were against Mr White and the Care Management Advisory Services Ltd.Thirdly, if it were relevant to consider the effect of Clause 5.1., we have reservations about the correctness of the observations by the Industrial Tribunal. It is not necessary to express a concluded view about that, because it is clear, reading the decision as a whole, that paragraph 12 of the extended reasons does not state reasons why the claim was dismissed. Paragraph 12 expresses a view on a final submission made by Mr Perera on a point that did not assist his wife in her claim against the respondents.Another point raised by Mr Perera is in relation to the Equal Treatment Directive which he quotes in the Notice of Appeal. He says that the Equal Treatment Directive applied to employees of the Borough of Tower Hamlets. It applied to the employees of Sydney House when it was handed over to Tower Hamlets. The same rights of the employees would apply if Sydney House were then transferred by the London Borough of Tower Hamlets to another party. Reference was made to another directive of the Council of Europe, the Acquired Rights Directive. In our view, there is no error of law by the tribunal on the directives. The case against the respondents was brought under the Race and Sex Discrimination Acts 1976 and 1975. The case was not brought under the Directive and could not be. The directives are not directly effective in the tribunal against private individuals such a Mr White, or against therespondent company. A directive is only directly effective against the State or an emanation of the State. The only emanation of the State in these proceedings was the London Borough of Tower Hamlets. They were removed by an interlocutory order before this case was heard and decided by the Industrial Tribunal. This point is another attempt by Mr Perera to do what we said in our earlier judgment was impermissible, to implicate a party, struck out of the proceedings, in an appeal from the decision in those proceedings. There is no point of law on the directive.We are also satisfied, from examining the decision as a whole in the light of the grounds of appeal, that there is no other arguable point of law for the determination of this tribunal.The position is that the tribunal made findings of fact on the evidence heard over a two-day hearing. The crucial findings of fact were that Mrs Perera was employed by London Homes for the Elderly starting in March 1990. She was dismissed with effect from 8th June 1991. That meant that she did not have a long enough period of continuous service to bring a case of unfair dismissal. The tribunal said that, if she had the requisite period of service, such a claim would have succeeded on the grounds of procedural unfairness. The only claim she could bring was of race or sex discrimination. To succeed on either of those she had to show that the reason she had been dismissed was out of race or of sex. That was a factual question. There is no appeal against that, unless it was shown that the tribunal took the wrong legal approach. The tribunal found as a fact that the reason for dismissal was related to financial considerations, unconnected with sex or race. It has not been shown by the grounds of appeal or by Mr Perera in his oral submissions that there was any misdirection by the tribunal as to the relevant law or the application of it to the facts of this case.We have reached the conclusion that this appeal is not arguable. It will be dismissed at this stage.