MS M J GRAHAM v LONDON BOROUGH OF BARNET [1999] UKEAT 221_99_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 221_99_0707Case No Appeal No. EAT/221/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M J GRAHAMAPPELLANTLONDON BOROUGH OF BARNETRESPONDENT
Before
Mr Justice MorisonDate 7 July 1999
[1]APPEARANCES For the Appellant MR R A GERMAN (Lay Representative) MR JUSTICE MORISON: The purpose of this hearing is to determine whether there is an arguable point of law in relation to the majority decision of an Employment Tribunal that the Applicant, Ms Graham, had not been discriminated against on grounds of her race by her employers, the London Borough of Barnet. The Tribunal's decision, which runs to 18 typescript pages, was sent to the parties on 21 December 1998 following a three day hearing in October 1998 and a one day consideration of the parties written submissions which were submitted after the hearing on 19 November 1998. It is unnecessary to go into the background to the complaint which was made, but it essentially related, and I say essentially to emphasise that this is not the only point, to the employer's decision that it was appropriate to institute a disciplinary process against the Applicant and by means of that process, to give her a formal warning about her conduct. Her complaint was that the reason why she was treated in this way was because of her race and ethnic origin.[2]The majority of the Tribunal in arriving at their conclusion, said this:
"They both came from the same ethnic background (Afro-Caribbean) and the majority of the Tribunal found it difficult to accept that she might have been guilty of race discrimination against someone from the same ethnic background as herself."
That statement seems to us to reflect an attitude towards discrimination on grounds of race which may call for further inquiry. We don't understand why they found it difficult to accept that there could be a race discrimination case by one person against another when they both are of the same ethnic background, particularly as the Tribunal were aware of what they described as the cultural differences between the two.[3]The second point which we consider to be arguable and requiring further examination is to be found at paragraph 32 of the decision. They said this:
"Furthermore as Ms Graham [the Applicant] was suspended on full pay, and as the decision of the disciplinary hearing was to find her [we think the word 'not' was missing] guilty of serious misconduct, the majority of the Tribunal found it hard to see how she can argue that she had suffered detriment by the actions of Miss Bennett [her manager]."
It seems to us to be arguable that in making that finding the majority had misdirected themselves in law as to the proper interpretation of the word 'detriment' to be found in section 4(2)(c) of the Race Relations Act 1976. It seems to us arguable that subjecting the Applicant to the disciplinary process itself, or the result of the disciplinary process, namely a written warning, were items which qualified for being considered as detriments within the meaning of the legislation.[4]By giving leave in this way for the matter to proceed to a full hearing, we are not giving an indication as to the outcome of the case. That would be unfair, since this is an ex-parte procedure, in which the employers have no right to participate. The directions which must follow is that this case should be listed as Category A, the PHD form of the Respondents indicate that they would wish to have the appeal restricted to specifically alleged errors of law.[5]As in the previous case, I take the view that the judgment that I have just given on behalf of the Employment Appeal Tribunal will suffice to identify the alleged errors of law and there is no need for a formal amendment to the Notice of Appeal, it being clear that those, and those only, are the matters that will form the subject matter of argument in due course. The hearing is not likely to last for more than three-quarters of a day I would estimate, and I do not consider, as the case presently stands, that notes of evidence are required. Accordingly, this matter can go forward on that basis.