Humayun v Greenwich Citizen Advocacy & Ors [1998] UKEAT 188_98_1311

EAT
Humayun v Greenwich Citizen Advocacy & Ors
[1998] UKEAT 188_98_1311 · 1998-11-13

JUDGE D PUGSLEY :

This is a case which is listed before us on a preliminary hearing as to whether there is an arguable point of law. The Industrial Tribunal dismissed the Applicant's case that the Respondents had been guilty of race discrimination. The breach of contract was upheld and the Respondents were ordered to pay £110 to the Applicant.The facts as found by the Tribunal are found in paragraph 5 of their Decision:
"5. .... Greenwich Citizen Advocacy exists to provide people with learning difficulties with a volunteer called an Advocate who befriends and assists them. The Project is run by a Management Committee of 12 people. Some of the Committee are nominated by the Greenwich Borough Council which together with a number of other bodies funds this Project. The Project employs a part-time Co-ordinator and a part-time Administrative Assistant. In February 1994 the Applicant became an Advocate. This is a volunteer post she has no previous experience in this field. On the 1 August 1995 she began employment with the Project as a part-time Administrative Assistant. By all accounts she did a good job and was able to cover for the Co-ordinator from time to time. She took an active part in fund raising and was clearly well liked by those who administered the Project. In July 1996 she suffered an unfortunate accident and was off work until the 7 October 1996. Thereafter she attended hospital from time to time.
6. The Project was funded only until the end of March 1997 and its future after that was uncertain. The Project Co-ordinator Miriam Mica left on the 30 September 1996 and at the time she raised the question of an extended role for the Applicant. Whether that was a post replacing the Director for the time being or merely an enhanced post considering that a new Director would need more assistance was not clear and in any case it did not progress because at the time the Applicant was still off sick. The Applicant makes no complaint of this.7. Tracey King who is a black Afro-Caribbean was appointed for a period of three months. Because of pregnancy she was not able to work for the Project beyond the end of 1996 and by November only six weeks after she started work the Committee began their considerations of a successor for her. The matter was raised at the Committee meeting on 20 November. Tracey King asked the Committee to consider appointing the Applicant to act-up until March 1997 when the funding position would be more clear. The Committee expressed some doubts about this but deferred a decision until the meeting of the 17 December. Attendance at the Committee had not been good and therefore they directed that the Applicant who handled the Committee minutes and the clerical work associated with the Committee should send a letter out with the agenda urging all members to attend. Furthermore, the Committee were not happy that the post of Co-ordinator was properly defined or controlled by the Committee and two members, Ann Fodgen who worked in an office next door to the Project officers and Lorraine Brooks met on the 10 December proposed a more closely defined job description and the formation of a small Executive Committee with more day to day control of the Project. The Applicant heard this and was very angry and she therefore apparently with the support of Tracey King wrote a letter to a number of Committee members which as well as urging those members to attend the Committee as she had been instructed added the following:-'Ann Fogden and Lorraine Brooks had a meeting to discuss the Co-ordinator's post and have a proposal to put forward for the running of the Project. A suggestion for an Executive Committee to run the Project has been discussed by Ann and Lorraine which will mean the Project would be run on a daily basis by members who volunteered to be on the Executive Committee.To be honest I feel really insulted. Are my skills and ability being questioned here? Am I not good enough to take the role of Acting Co-ordinator? It seems I was good enough when Miriam was away on leave and during her sick absence. I feel that I am able to do the work and should be given the opportunity to try. The Project is in a crisis situation and something needs to be done especially with regard to recruitment of volunteers to replace the ones we have lost and also a consideration has to be made with the recruitment of the development worker for those with learning difficulties'."That letter had, according to the Decision of the Tribunal, paragraph 7, a negative impact upon Committee members, some of whom were shocked. When they met on 17 December they asked Tracey King to leave the meeting while they discussed the letter. After an extensive discussion they decided that three of their number should discuss the letter with the Applicant as soon as possible and they arranged a meeting for 8 January. Events overtook that. There was a further discussion on the replacement of Tracey King and it was, in the Tribunal's view, significant that not one member of the Committee, even those who had supported the Applicant in this case, suggested her name. The Tribunal put the matter in this way:
"We suspect that was because of the effect of the letter but in the event it was suggested that an approach had been made to Anita Rickard. Ms Rickard is well known in the Greenwich area for her work with bodies such as this and it was thought that she might have the time to cover the job at least until the end of March. She was a person with a high profile who it was thought could be instrumental in raising funds for the Project so that it could continue beyond the end of March. Therefore the decision was made and minuted that she should be approached to see if she was available. It was understood that the Applicant would have to be told about this and a member of the Committee, Caroline Sullivan Wallace was asked to do it. We suspect that it was the letter which finally caused the Committee not to discuss the Applicant's suitability for this post. However, other reasons were given which we accept and these were:- (i) the gap between the position of Administrative Assistant and Director. It is not as if one would be a deputy to the other. There is a great gap both in salary and authority between:

(ii) the Applicant's state of health following her accident; and

(iii) the need for a high profile fund raiser in this job.The Applicant regarded this approach to Miss Rickard as a rebuff and resigned. She referred to a number of difficulties in the job as a reason for resignation, but apparently, according to the Tribunal, she did not refer to the failure to get the Director's post.The Tribunal properly set out the considerations that should apply in a race discrimination case. In paragraph 3 of their Decision they set out the well known guidelines in the leading case of King v Great Britain-China Centre [1991] IRLR 513 . It is unfortunate that, when reconsidering the matter the Tribunal was less clear in its reasoning. In paragraph 11 it says:
"We accept that the Committee could have reasonably made the decision not to appoint the Applicant for the reason they themselves gave that we have recorded in our findings of fact. We accept that whatever the structural, financial and staffing difficulties they faced (and they were real) they made a decision which is within the powers of reasonable people and can be explained in terms which entirely exclude racial considerations. It follows that we were not required then to consider inferences of race discrimination and this part of the application is dismissed."
That final sentence at paragraph 11 is unfortunate. We do not think it is a felicitously worded way of approaching it, Tribunals are always required to consider an inference. What the Tribunal we believe meant to say was, that having considered the reasons the Committee gave, they declined to draw the inference of any racial discrimination. We consider that that is a proper and appropriate way of looking at their Decision.The Applicant has raised a number of matters as a ground of appeal. We have tried to explain to her that the only basis that we can allow an appeal to a full hearing is if there is an error of law. All the matters to which she adverts, and has adverted in her submission to us, deal with issues of fact. The issue is not whether the Committee took the right decision or the wrong decision, a wise decision or a foolish decision, a considered decision or an ill-considered decision, all those matters are relevant only to the extent that they lead to a position when inference can be drawn that she was discriminated against on grounds of race. The Tribunal clearly had that issue well in mind although as we say, the final sentence of the Decision could have been much better expressed.At the end of the day they made the point that no witness for either side would support the Applicant's allegation that there was a racial factor in her rejection and they came to the view that there were reasons, other than issues of race, that readily explain the decision that was taken. It follows therefore from that that, in our view, notwithstanding the slight criticism we made of the drafting of the Decision, that this is a case where there is no arguable point of law and it would be a cruel kindness to put this case to a full Tribunal when, in our view, it is not a matter that raises any arguable issue.