St Mary Newington United Charities v Nolan [1997] UKEAT 1077_96_3101

EAT
St Mary Newington United Charities v Nolan
[1997] UKEAT 1077_96_3101 · 1997-01-31
MR JUSTICE MORISON (PRESIDENT): The purpose of this appeal is to determine whether there is an arguable point of law in a Notice of Appeal filed on behalf of St Mary Newington United Charities against a decision of an Industrial Tribunal held at London (South), which unanimously decided that the Applicant, Mrs Nolan, had been unlawfully discriminated against by the Charity on the grounds of her race. They awarded her £3,250 compensation, of which a £1,000 was awarded for her hurt feelings.The Charity did not appear at the hearing before the Industrial Tribunal and were not represented. The IT1 which sets out the Applicant's complaint specifically alleged that the Applicant was enquiring about a particular job and Mr Plowright replied by asking me about my nationality - "Are you Irish" he enquired" - when I answered in the affirmative he told me effectively that Irish were not welcome.The Charity wrote a letter to the Industrial Tribunal on 17 May 1996. The first point that they make is that the application was incorrectly addressed to Christchurch United St Mary's Newington, whereas the correct title is St Mary Newington United Charities. Mr Plowright continued in the letter:
"However, apparently the Complainant called into the Charities Office and in response to a harmless joke shrieked and did a 'war-dance' and then stormed out of the office without collecting an application form for the post of House-Keeper at this Charities Almshouse St. Mary Newington Close, Surrey Square, SE17. There are several witnesses to the bizarre behaviour of Mrs Nolan.
You can rest assured there was no discrimination in anyway whatsoever concerning the job on offer. Indeed the successful candidate is of Caribbean origin."The Industrial Tribunal dealt with the matter by having regard to that letter to which I have just referred, when giving their decision.

(b) they recite her version of what happened:

"On 10 April she went into the charity office in Walworth Town Hall. She was told to see Mr Plowright. He asked her if she was Irish. When she said "Yes" he said "You Irish are always bombing and killing people - there is no job here for you and there never will be". The Applicant said he seemed quite angry and she was scared. She felt very hurt. She told him it was unlawful to discriminate and that Southwark had a policy against discrimination. He replied that it was a charity organisation, that he could say and do what he liked. His final words were:
"There's no job for your type. Get out of this office and don't return"
. She left the office."She denied that it was a joke as had been alleged in the letter, and said that it was her view that Mr Plowright was arrogant and quite frightening. She said that after twenty-five years with Southwark, it was the first job that she had applied for, and now she had lost confidence; she produced an excellent reference from Southwark.On those facts there can be no doubt but that there had been an unlawful act of discrimination committed by the Charity against Mrs Nolan. The Race Relations Act contains provision which governs the way in which employers offer employment to prospective employees. Section 4(1) is drafted so as to be capable of covering people who have yet to be employed. In those circumstances the real question for the Industrial Tribunal was whether Mrs Nolan was entitled to compensation, and if so, how much. They concluded that she was entitled to a £1,000 for injury to feelings and £2,250 compensation for loss of opportunity to work with the Charity and future loss.Before us today Mr Plowright has appeared and has presented to us a written Skeleton submission. His first submission is that the Tribunal did not have jurisdiction to deal with the complaint because there was no employer/employee relationship between the parties. We have already indicated that that submission is plainly and manifestly wrong in law. Were it otherwise, it would follow that in the employment field, employers would be able to discriminate in the way in which they recruited staff. It would enable employers to have all black or all white staff. It is manifestly absurd to consider that the legislation could have permitted such a loophole. It does not.The second point he makes are all of a factual nature. He says that evidence which Mrs Nolan gave to the Tribunal was not correct. He says that the job that she referred to in evidence was not one which the Charity had at any stage on offer and that therefore she could not have been given that job: therefore there was no prospect of an employer/employee relationship.It seems to us that the right course for the prospective employers [the Charity] to take in this case, without any doubt at all, would have been to have appeared at the Industrial Tribunal, given their version of events, and sought to persuade the Industrial Tribunal either that the conversation as alleged did not take place, or that it did take place, but in the context of a joking environment; then the Tribunal could have dealt with the various points of fact which Mr Plowright has set out in his draft submission and it would have been for them to conclude whether the complaint was made out. Instead they chose not to appear. That was a deliberate decision.In those circumstances it seems to us that it is too late for Mr Plowright now to come and present to this Court what he says would have been the facts if they had appeared before the Industrial Tribunal. We have to say that the reason Mr Plowright gave for not appearing at the Industrial Tribunal seems to us hard to credit. It was his view, he said, shared by the Trustees of the Charity, that the Industrial Tribunal would have no jurisdiction as there was no employment relationship. It seems to us that that is a judgment which cannot have been arrived at on the basis of any sensible information. Mr Plowright had the opportunity of going to the Citizens' Advice Bureau, asking the Industrial Tribunal itself, or seeking assistance from solicitors.All such people would have told him without a shadow of a doubt that Industrial Tribunals did have jurisdiction and that it would have been absurd if the legislation had not covered the position. Accordingly he would then have no doubt appeared before the Industrial Tribunal and would have been faced with a decision, arrived at after consideration of both sides of the argument.In our judgment there is no point of law shown in the submission by Mr Plowright. It is most unfortunate that the Charity took the course they did. We are mindful of the fact that this is charitable work of some considerable importance and the amount involved in this case is, no doubt, for the Charity, quite a substantial sum, which is in that sense to be regretted. It seems to us that in future the Charity should recognise that it is their responsibility to defend themselves where allegations are made, rather than simply assuming on the basis of no information whatever, that a particular court or tribunal would not take jurisdiction over them. In these circumstances, there being no point of law, we dismiss this appeal.