Dagogo v Hampshire County Council [1998] UKEAT 1358_97_0406

EAT
Dagogo v Hampshire County Council
[1998] UKEAT 1358_97_0406 · 1998-06-04
MR JUSTICE KIRKWOOD : This is an appeal by Ms Lauretta Dagogo from a dismissal by an Industrial Tribunal at Southampton of her claim against Hampshire County Council, as it was, in respect of race discrimination. The Industrial Tribunal heard the case over four days between April and July 1997 and gave its reserved unanimous decision in extended form on 15th October 1997.Ms Dagogo was and indeed is employed by the County Council or its successor as one of a team of social workers attached to the Social Work Department at the Royal South Hants Hospital. She is a black African and was, and may be still is, the only black social worker in her team. Other members of the team in which Ms Dagogo worked were Ms Tessa Leavesley, the Team Manager, and Miss Adrienne Topham. Another member of the team, though working in a different unit, was Miss Celia Cooke. The responsible Service Manager was Ms Mair Thomas.On 23rd July 1996, Ms Dagogo together with other members of her team attended a meeting at a unit of the Hospital called Countess Mountbatten House. That was not where Ms Dagogo and Miss Topham worked, but it was where Miss Cooke was based. We take what followed from the facts as found by the Industrial Tribunal:
"4. ... At the conclusion of the meeting, the applicant joined two colleagues, Adrienne Topham and Celia Cooke who had moved outside onto the patio. The applicant said to them that they were enjoying the sunshine. Both women said that they wanted to as brown as the applicant. Celia Cooke was stroking the applicant's arm. The applicant suggested that the two women would not achieve their goal. Celia Cooke then asked the applicant if she had seen Dawn, as white colleague who was described by Celia Cooke as having such a deep tan that her skin was almost as dark as the applicant's.
5. Again, the applicant suggested that this was an unachievable target. Whereupon Celia Cooke said to the applicant that she was right and that she had the most disgusting skin colour. At this stage, Celia Cooke was still stroking the applicant's arm. By this time, Ms Tessa Leavesley, their team manager had joined the group. She only overheard the last remark and said to Celia Cooke that it was not a pleasant thing to say. Celia Cooke illustrated her point by extending her arms and slightly lifting her skirt to reveal only a pale tan, despite a week's sailing. There was then a change of subject and shortly afterwards, the parties separated.6. The applicant works with Adrienne Topham and Tessa Leavesley every day. Celia Cooke is also a social worker and part of the same team as the applicant, but she is based at Countess Mountbatten House. In the past, the applicant and Celia Cooke had worked together for a period of several months, when a colleague of Celia's was ill. They had no disagreements at any time.7. The following morning [ that is 24th July 1996 ] the applicant complained to Tessa Leavesley that although she had heard a derogatory remark made by Celia Cooke, she had not appeared to take the incident seriously. Tessa Leavesley explained to the applicant that she did not investigate the matter because she did not notice any adverse reaction on the part of the applicant. Following this discussion and later the same day, Tessa Leavesley sent an electronic mail message to Celia Cooke asking her the context in which she used the phrase. Celia Cooke replied by electronic mail the same day, explaining the remark occurred as part of a conversation about her lack of sun tan and that the remark was in no way intended to be derogatory. Celia Cooke thought that the applicant had taken it in the light hearted way that it was meant. She stated that she would be very concerned if she thought that the remark had been mis-interpreted by the applicant.8. It was her contention that she would certainly have apologised immediately if there had been any indication from the applicant that she was offended by any remark she had made. She offered to apologise to the applicant for a thoughtless remark. Adrienne Topham was also contacted and she gave her version of the incident in an electronic mail message to Tessa Leavesley. She concluded by stating that she had not noticed any distress on the part of the applicant and that Celia's remark concerning skin colour was made in the context of comparing tans as opposed to a comparison of skin colour. In the view of Adrienne Topham, Celia had made a clumsy attempt at a complimentary remark and that there was no intention on Celia's part to make an offensive remark."On the day after that, 25th July 1996, Ms Dagogo complained in writing to the Team Manager. She complained that the remark made by Miss Cooke came across as very derogatory. She requested(1) a written apology,(2) an assurance of no further racial harassment or victimisation,(3) a request for counselling sessions,(4) a commitment by the employer to organise some development work in relation to learning to work with and relate to black staff as part of a team. Meanwhile, Ms Leavesley, the Team Manager, had sought advice from the Training Service Manager, Miss Schefer, and in the absence on leave of Ms Mair Thomas, she had sought the advice of the Area Manager, Mr Love. He advised her to set up a meeting with Ms Dagogo, Miss Cooke and their representatives. Miss Cooke was on leave until 12th August, as was Ms Mair Thomas, so the meeting was arranged for the earliest opportunity, 13th August. The meeting was attended by Ms Mair Thomas, who chaired it, by Ms Dagogo, by Elaine Graham the race policy adviser, by Ms Leavesley, the Team Manager, by Miss Cooke and by Miss Shaw, another social worker.On the morning of the meeting Ms Dagogo handed to Ms Mair Thomas a list of a further six alleged incidents of race discrimination which she had never raised before. We take from the findings of fact of the Industrial Tribunal what occurred at that meeting:
"10. ... The meeting dealt with that incident [ that is to say the incident of 23rd July ] and everyone had an opportunity to discuss their recollection of what had taken place and their reaction to it. During the meeting, Celia Cooke apologised to the applicant, acknowledging that the remark she had made was thoughtless and silly. It was not her intention to upset the applicant, but she could see that it was an inappropriate thing to say. She felt that she and the applicant had a positive working relationship. The applicant responded by saying that it was not her intention to hurt Celia Cooke by making the complaint.
11. At the conclusion of the meeting, Mair Thomas drew everyone's attention to the department's Equal Opportunities Policy which stated that all staff should be treated with dignity and respect at work. She observed that it was clear that the applicant was distressed and upset by Celia's remark. Celia had acknowledged that the remark was thoughtless and insensitive. Mair Thomas did not think that Celia's comment had been deliberately made to hurt the applicant. However, she concluded that there had been a lack of awareness at the impact of her comment made to a black colleague. Mair Thomas made clear her expectations that colleagues would treat each other with dignity and respect and that there would be no repetition of the incident. This was agree.12. Mair Thomas confirmed that a separate meeting would be arranged to discuss the other matters which the applicant had raised in the document she had produced that morning. Which did not involve Celia Cooke. As far as Mair Thomas and Tessa Leavesley were concerned the complaint involving Celia Cooke had been resolved to the satisfaction of the applicant. Celia Cooke had apologised both orally and in writing. The applicant gave the impression that the matter had been resolved to her satisfaction."That was how the incident of 23rd July was dealt with. A meeting about the other six matters raised at the last minute was set for 4th September 1996.There is not in Ms Dagogo's complaint to the Industrial Tribunal any overt complaint that the matter of 23rd July was not dealt with properly or satisfactorily. The Industrial Tribunal recorded that at 4th September meeting to address the other six points, it was agreed that the incident concerning Miss Cooke had been addressed at the meeting on 13th August.In the first skeleton argument put forward in this appeal, however, Ms Dagogo says the appellant reported officially on 25th July 1996 to Tessa Leavesley and no investigation took place before the appellant got her solicitors involved. The investigations were not properly or adequately done.We are at a loss to understand how the employer, through Ms Leavesley, could on the facts that were found, have acted more properly or more thoroughly. The point manifestly lacks merit. So far as it is still alive, we reject it, but we note that it was not pursued in any such terms in the second amended skeleton argument that was produced. I mention it for the sake of completeness.The further six points raised by Ms Dagogo came to be addressed at the meeting on 4th September 1996. The Industrial Tribunal in its extended reasons considered them all and I summarise them.The first was that early in the summer of 1993 Ms Dagogo and a Miss Ball were working on the Cancer Care Directorate. Ms Dagogo wanted a form which was in Miss Ball's office. Miss Ball was having a meeting in the office with a client. Miss Ball took exception when Ms Dagogo interrupted that meeting. Apparently there was some altercation. Ms Dagogo complained. She said that her complaint was not addressed, and even a team building day in April 1994 did not resolve her difference of opinion with Miss Ball. She said, and said in a sense of complaint, that to resolve the issues she had been removed to another ward. She felt that it was Miss Ball who should have been moved.There was another side to the coin which the Industrial Tribunal summarised in paragraph 14 of their extended reasons. The transfer of Ms Dagogo was a resource management decision due in part to her absences on sick leave and tensions within the team, and partly to the best deployment of skills, and in any event, temporary. Ms Dagogo had no thought at the time of race discrimination.The second matter was that Ms Dagogo complained that her colleague Miss Topham tried to give the impression that she was superior to other team members and was encouraged in that by her team manager. Called in aid by Ms Dagogo were one or two occasions when Miss Topham covered for the team manager at meetings relating to the Medical Directorate where she worked. That, the Industrial Tribunal found, was appropriate. When rarely a representative for the team manager was required at other meetings, volunteers were sought from the team. Again, there was no thought in Ms Dagogo's mind at the time or for long afterwards that therein lay any race discrimination.A third complaint was that whilst social workers were encouraged to attend each others ward meetings, it being polite to inform the linked social worker in advance, on one occasion in February 1996 Miss Topham attended Ms Dagogo's ward meetings without first observing that courtesy.The fourth complaint related to about November 1995. Ms Dagogo was duty social worker. As such she should not have left the Hospital grounds unless called out on a duty visit. As duty social worker Ms Dagogo was needed but could not be found. It was thought that she had left the grounds, not on a duty call, but to visit one of her own clients. Ms Dagogo had returned during the lunch hour to find various team members sitting having their lunch in the team room and talking about Ms Dagogo's absence. She complained to the team manger that if there was a team meeting she should have been allowed to attend. But, as the Industrial Tribunal found, there had been no team meeting, merely an impromptu discussion that had taken place over lunch.The fifth complaint related to an anxiety Ms Dagogo felt that there was some sort of scrutiny or gossip over the way she entered time taken off in lieu in the relevant book, but there had been no adverse comment to her about that.The sixth complaint considered at the meeting on 4th September, and we now go by the facts found by the tribunal, not supplemental facts as argued in the first skeleton argument for the appellant, related to Ms Dagogo's selection to attend a practice teacher course for which she had applied. Miss Topham also applied but was unsuccessful. She was distressed and angry at being rejected. The appellant complained to the meeting and the Industrial Tribunal that Miss Topham had seemed upset that she, Ms Dagogo, had been successful and Miss Topham had failed. No direct remarks of a discriminatory nature were made to her. It is, however, said in the first skeleton argument that there was evidence that one of the team said that Ms Dagogo's success was because she was black. That, I stress, was not a fact found by the Industrial Tribunal, who found that there had been no remarks made directly to Ms Dagogo, as transpired indeed at the meeting on 4th September 1996.The upshot of the meeting of 4th September was described by the Industrial Tribunal in the following terms:
"19. ... At the conclusion of the meeting on 4th September, Mair Thomas suggested that many of the incidents focused on the applicant's working relationship with Adrienne Topham and the applicant agreed. It was agreed that all present would meet again to decide a way forward at a further meeting on 18th September 1996. At the commencement of that meeting, Mair Thomas announced that the purpose of the meeting was to decide what would happen next and how to achieve progress constructively in view of the subtlety of some of the issues raised by the applicant, that it the applicant's acknowledgement that no direct statements had been made to her that she had been favoured in her selection for the practice teacher course because she is black.
20. When Mair Thomas announced that she and Tessa Leavesley wanted to take further expert advice about how to proceed, the applicant became upset. She felt that nothing had been done to resolve the issues. In fact, that meeting had been called with the specific purpose of achieving a plan which could lead to the resolution of the applicant's concerns. In the light of the applicant's distress, the meeting was adjourned. The applicant unfavourably contrasted the way in which her complaints had been investigated, with the way in which the department had acted swiftly to investigate a complaint by a female member of staff that a male member of staff had been looking at her breasts.21. Shortly after this, the applicant went off work sick. Mair Thomas kept the applicant informed by telephone. Tessa Leavesley was off sick from 19 September until 7 October 1996. Following discussion with Julie Joliffe, the area support manger, on 14 October, Tessa Leavesley wrote to Adrienne Thomas detailing the complaints made against her by the applicant and notifying Adrienne Topham of the need to attend the meeting on 30 October to discuss the matter.22. On 10 October, Mair Thomas telephoned the applicant to tell her of the arrangements that had been made. On 21 October 1996, the Originating Application to the Industrial Tribunal was presented by the applicant. The respondents decided it would therefore not be appropriate to conduct the meeting scheduled for 30 October. The incidents referred to in the Originating Application include the Celia Cooke incident, Adrienne Topham's reaction to her unsuccessful application for the practice teacher's course and the fact that her complaints did not appear to have been dealt with as swiftly against the male employee who was accused of looking at breasts."This case was due to come on for hearing before the Industrial Tribunal on 29th February 1997. On 17th February, however, the Industrial Tribunal received a further list of complaints of race discrimination from Ms Dagogo. They related to non-promotion. In the light of that the hearing was postponed and eventually began on 19th April 1997.The first of the new complaints was that in 1993 Ms Dagogo had been the only applicant for a post of social work specialist in housing, but she had not been called for interview. Research into the matter showed that this related to 1992 and not 1993, some five years earlier and had never before been the subject of a complaint by Ms Dagogo. After so long, not all the papers could be found. Ms Dagogo's application of 13th May 1992 was found as was a memorandum of 25th August 1992 showing a shortlist of three candidates called for interview on 10th September 1992, which did not include Ms Dagogo. The respondent thought it unlikely that interviews for a post advertised in April would take place as late as September and the post may have been re-advertised. Ms Dagogo's case was that her May 1992 application had not been acknowledged and that she did not both to re-apply when the post was re-advertised.A post of duty team manager was advertised in March 1995. Although Ms Dagogo expressed an interest in it, she never completed and submitted an application form. Ms Dagogo says by her skeleton argument, that she spoke to her manager about it, but she did not bother to apply formally because no application form was forthcoming. She would say that she was not encouraged to apply and that was discriminatory.The Industrial Tribunal summarised Ms Dagogo's case in these words:
"26. It is the applicant's case that since 1992, she has encountered a series of incidents of race discrimination, but she did not take them seriously enough to complain until the incident involving Celia Cooke occurred on 23rd July 1996. When the applicant complained of this incident and other incidents, it is her case that the respondents failed to investigate her complaint, either adequately or at all, or to investigate the matters in accordance with the established policy, if any."
The Industrial Tribunal considered the law carefully and reflected on it at length. All the complaints except that concerning Miss Cooke were out of the three month time limited by statute for making a complaint. The Industrial Tribunal considered the questions of time in paragraphs 36 to 44 of the extended reasons which are available for anybody interested to read, but which I do not read into this judgment because it would overburden it with quotations. I should say that to summarise what is said in paragraphs 36-44, or rather the conclusion of it, the Industrial Tribunal found that the series of events did not lead them to draw an inference of discrimination and that it was not appropriate in this case for them to exercise their discretion in favour of extending time.The Industrial Tribunal made its findings about the Miss Cooke incident and then returned to the question of inference in the following passage:"51. We have carefully examined all the evidence. We are unanimously of the view that the claim arises out of a misunderstanding which occurred during a conversation between the applicant and Celia Cooke. Taken out of context, the reference to disgusting skin colour can be viewed as offensive and derogatory. It is clear that the phrase was used in the context of a light hearted discussion between the applicant and Celia Cooke on the subject of sun tans. The applicant entered into the spirit of the conversation of making the remark that someone seeking a sun tan as dark as hers would be unlikely to achieve their goal. We are satisfied that the phrase "disgusting skin colour" was used in the same idiomatic way as the terms "filthy rich" or "sickeningly successful" or "wicked music" are sometimes used. These terms are not usually used in a derogatory way, but as an indication of envy and approbation.52. A dark skin tan is regarded by most white people as attractive and desirable. This was the whole tenor of the conversation between the applicant and Celia Cooke. Celia Cooke was talking with admiration and envy of another social worker, Dawn who had a sun tan which made her skin almost as dark as the applicants. Our finding that the remark was not used in a derogatory sense is consistent with the evidence that the applicant and Celia Cooke had worked together in the past and that there was no ill will or bad feeling between them which might account for a derogatory remark. Taken in context, the comment was a clumsy attempt to compare favourably the applicant's skin colour with the attractive appearance of a dark sun tan which Celia Cooke strove to achieve without success.53. This was Celia Cooke's explanation when she was questioned by Tessa Leavesley. It was supported by Adrienne Topham who witnessed the whole conversation when she was questioned after the event by Tessa Leavesley. Tessa Leavesley arrived towards the end of the conversation between the applicant and Celia Cooke and only heard the remark relating to disgusting skin colour. Since that is all she heard of the conversation, it is not surprising that she told Celia Cooke that it did not appear to be a very nice thing to say. Taken out of context, that would be true.54. The process of inference is a matter of applying common sense to the facts and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. Assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference. It is our unanimous decision that the force of the primary facts is insufficient to justify an inference on racial grounds. Any inference that the Tribunal might have made is negated by satisfactory explanations from the respondents of non-racial grounds for the action taken or the decisions made. It is the unanimous decision of the Tribunal that this application is dismissed."In addition to the Notice of Appeal and the first skeleton argument which do not easily cross-relate, there is a second skeleton argument in which Counsel for Ms Dagogo ably proffered five grounds of appeal.The first ground is that the tribunal erred in law in holding in paragraphs 43 and 44 of its extended reasons, to which I have referred but not read out in full, that it had no jurisdiction to entertain the claims in respect of previous incidents prior to 23rd July 1996 because they have been presented outside the three months time limit.In our judgment, the Industrial Tribunal properly considered the distinction between a continuing act and an act which has continuing consequences. A succession or series of separate acts can lead to the inference of a continuing practice or regime of discrimination. Whether on the facts of a particular case such an inference can or should be drawn is a matter for the Industrial Tribunal which hears and sees all the evidence. If it holds against drawing such an inference, there is then not a continuing act and there remain two questions about the older events. One is whether the three month time limit for complaint should be extended; the other is whether, even if no such extension is given, those events cast light on the alleged discrimination that is in time and in issue.Counsel for the appellant has argued that this was plainly a continuing act case, a case of a regime of discrimination, and that the various episodes which the Industrial Tribunal considered and which we have outlined, are demonstrative of that.The Industrial Tribunal found, as a fact, to the contrary. That was a finding that lay peculiarly within the sphere of the Industrial Tribunal's function. The concluding words on that part of the finding of the Industrial Tribunal were these:
"42. ... The various incidents cannot be regarded as a seamless whole as where an applicant makes frequent and repeated applications for promotion and upgrading which are then rejected."
The tribunal found that no inference of a continuing regime of discrimination could be found. That is, as I say, a conclusion of fact that lies within the judgment of the Industrial Tribunal and we do not interfere with it.Counsel for Ms Dagogo argues that nonetheless the Industrial Tribunal erred in not extending time for complaint in respect of each of the matters, to which I have referred, going back to 1992.That was a matter which lay within the discretion of the Industrial Tribunal. The Industrial Tribunal set out the considerations it had in mind and plainly gave careful consideration to them. We have not heard argument that the Industrial Tribunal considered wrong factors or considered irrelevant factors. The criticism we have heard goes to the weight attached to the facts the tribunal did consider.Counsel argues in disagreement with the discretionary decision reached.Matters of weight are for the Industrial Tribunal and we are wholly unpersuaded that the discretion was exercised in a wrong or impeachable manner. That is in fact ground 4 of the argument, though I have dealt with it at that point because it follows plainly from ground 1.Ground 5, the other substantial ground, goes to the case about Celia Cooke. The Industrial Tribunal found that the 23rd July 1996 incident was not discriminatory.I have already dealt with such criticism as may be inferred from the papers about the way in which the respondent addressed the complaint that followed.Counsel, however, seems to us to make two more points. The first is that Miss Cooke did not there and then at the scene seek to correct Ms Leavesley's impression that it was not a very nice thing to say by explaining its context.That with all respect to the argument, does not seem to us to take the matter further. The finding is that as soon as Ms Leavesley appreciated the potential gravity of the situation she made urgent enquiries, received full explanation and convened an appropriate meeting.The second point made was that it was not open to the Industrial Tribunal to make findings of fact in accordance with the account of Miss Cooke and Miss Topham since neither gave evidence.The Industrial Tribunal heard Ms Leavesley's evidence. It had the E-mails from those two witnesses and we note that there was no significant dispute as to what in fact transpired on the patio. The difference was a difference of impression, Miss Cooke and Miss Topham thinking that Ms Dagogo had responded in the light hearted way in which the conversation had taken place, Ms Dagogo on the other hand finding it deeply offensive. The Industrial Tribunal was plainly aware of that and made a number of references to it. The conclusion is that there plainly was evidence on which the Industrial Tribunal could find as it did. In saying that, we have regard to the absence of substantial dispute and also to the generous ambit of licence to the tribunal to receive evidence otherwise than directly from the witness box.I have therefore dealt with grounds 1, 4 and 5 of the argument as presented to us.The third ground argued by Counsel was essentially a duplication of the first. The second ground went to a possible s. 32 defence which could only of course have arisen if there had been a primary finding of discrimination which there was not.I should make clear for the benefit of anybody not fully conversant with these things, that an appeal to the Employment Appeal Tribunal is not concerned with a review of findings of fact. An appeal can only succeed if it is demonstrated to this Appeal Tribunal that the Industrial Tribunal reached a wrong decision by reason of error or errors of law. It follows from what I have said that we are not in anyway persuaded that the Industrial Tribunal erred in law and we are accordingly unanimously agreed that this appeal will be dismissed.