MRS M LEDEATTE v LONDON BOROUGH OF TOWER HAMLETS [1999] UKEAT 739_99_0510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 739_99_0510Case No Appeal No. EAT/739/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M LEDEATTEAPPELLANTLONDON BOROUGH OF TOWER HAMLETSRESPONDENT
Before
His Honour Judge J HicksDate 5 October 1999
[1]APPEARANCES For the Appellant MR L CRAWFORD (of Counsel) Messrs Christian Fisher Solicitors 42 Museum Street London WC1A 1LY JUDGE J HICKS QC : Mrs Ledeatte, the Appellant, who is black, was employed by the Respondents, the London Borough of Tower Hamlets, from November 1986, originally on scale 6. Within a year or so she had been promoted to grade P1 and from November 1989 she was an Information Technology Training Adviser on grade P3, as it originally was, but which later became renamed PO2. It is an important feature of the facts that Ms Judith Pittaway, who is white, was taken into the same post on the same grade, and on the same day, and is therefore relied upon by Mrs Ledeatte as a comparator for the purposes of questions of race discrimination.[2]There were a number of incidents and changes during a period down to 1997 which were relied upon by Mrs Ledeatte in support of what, as a matter of procedure, became three separate complaints before the Employment Tribunal of race discrimination and victimisation. Those facts are set out at substantial length in a full set of Extended Reasons of the Employment Tribunal which, in the event, rejected Mrs Ledeatte's complaints. It is against that rejection that she appeals.[3]One feature of the proceedings which is of importance to one of Mrs Ledeatte's grounds is that there was a very long delay between the beginning of the hearing before the Employment Tribunal and the reception of Mrs Ledeatte's evidence and that of her colleagues on 8 and 9 July 1997 and the resumption of the hearing, which it was not possible to arrange earlier than 22 February 1999, on which day and the succeeding day the Tribunal heard evidence from the Respondent's witnesses.[4]The Notice of Appeal sets out seven grounds, several of which are sub-divided into a number of heads, but we shall approach the matter by reference to the submissions made today by Mr Crawford, which reduced the number of separate points very substantially, and we should turn first to his submissions about the disposal of the victimisation complaint, because those submissions raise a point which is not, as far as we can see, dealt with in the grounds of appeal at all, but which nevertheless seems to us to be plainly arguable and which we shall therefore direct to proceed to a hearing on the basis of what will have to be now an amended Notice of Appeal raising the point.[5]The point is a very straightforward one. In paragraph 24 of their Extended Reasons the Tribunal, dealing with the law on the issue of victimisation, refer to, rely upon and apply the decision of the Court of Appeal in Nagarajan v London Regional Transport [1998] IRLR 73, but as Mr Crawford reminds us that case subsequently went on appeal to the House of Lords who, in substance, reversed the decision of the Court of Appeal as to the test to be applied in victimisation cases. The Tribunal therefore, absolutely without any fault of their own, applying the law as it was understood to be on Court of Appeal authority, must as we see it arguably have erred by relation to what has subsequently transpired to be the true state of the law as explained by the House of Lords. That ground, when formulated, should therefore proceed.[6]We turn to the other matters submitted by Mr Crawford under the heads in which he marshalled them. His first submission arises out of the procedural history which I have briefly mentioned, namely the 19 months' gap between the first two days of hearing and the resumption of the applications. The submission is that, as a result of that gap, the Tribunal did not recall essential parts of the Applicant's evidence and therefore fell into error. The example which Mr Crawford particularly relies upon is evidence which he says she gave to demonstrate that, as he puts it, the pay scale for her grade of PO2 overlapped with that for the next higher grade, PO3 by which, as we understand it, is meant that a person at the top of PO2, as Mrs Ledeatte was, might be paid as much as, or perhaps more than a person at the bottom of PO3. We see absolutely no reason to suppose that, in so far as the Tribunal regarded that as significant, it escaped their recollection. It is quite clear from the contents of the Extended Reasons that they reviewed all the evidence including, no doubt, their notes of the oral evidence on the first two days before reaching their decision and took it into account in their reasons. The matter of an overlap between PO2 and a PO3 would, in any event, be a matter dealt with by documentation as well as oral evidence, as would the matter of job descriptions which Mr Crawford also referred to under this head.[7]In truth when pressed as to what error of law the Tribunal fell into Mr Crawford was constrained to say that the Employment Tribunal should have canvassed the possibility of starting again, in the sense of allowing Mrs Ledeatte and her witnesses to give their evidence all over again. The Tribunal in fact do, in the course of their reasons, deal with what happened when the hearing was resumed in February 1999 and record that the course which the hearing then took was one reached by agreement with the parties and it is plain that there was some discussion as to how matters should proceed.[8]There is no suggestion, as we understand it, that Mrs Ledeatte or those appearing for her, made any application that she should give her evidence again. The considerations for and against such a course are, of course, numerous and by no means all on one side and we see absolutely no error of law on the part of the Tribunal in the fact that, in the event, and apparently by agreement with the parties, they proceeded with the remainder of the evidence, taking into account Mrs Ledeatte's evidence and that of her witnesses by reference in due course to their notes and, of course, to the documents.[9]So that head of appeal in our view is not arguable and should not proceed. It is in fact dealt with, so far as the grounds of appeal are concerned, by paragraphs 6.1 and 6.5 but, as I have said, we are marshalling our consideration of this preliminary hearing under the categories that Mr Crawford advanced, rather than going through every ground of appeal in the Notice of Appeal one by one.[10]The second head which Mr Crawford advances is that the Tribunal misunderstood the Applicant's case and reached perverse conclusions and this submission centres on the fact that, having in regard to Mrs Ledeatte's application for regrading found, as the Tribunal did, that she was less favourably treated in that respect than Ms Pittaway, the Tribunal when addressing the question whether that less favourable treatment - that discrimination, about which they expressed themselves in the strongest and most condemnatory terms - arose from grounds of race or for other reasons, found that the reason was not race but, as they put it, incompetence.[11]Mr Crawford in his submissions on this point emphasised the importance of this application for regrading to Mrs Ledeatte and the gravity of the discrimination which she suffered in the way the employers dealt with it, but the answer to that is, as I have indicated, that the Tribunal was entirely with Mrs Ledeatte on those points. They could not have expressed themselves more strongly about the way in which she was treated in this respect but, of course, the gravity of that matter (and its importance to her) cannot of itself determine the issue to which they then turned as to the reason for that discrimination. They carefully considered the evidence and came to the conclusion that the reason was incompetence, gross incompetence, very culpable incompetence, but not a ground related to race. That is an issue of fact. They had the evidence. We see no error of law in the way in which they approached it and it is not for us even to consider, let alone to reach a conclusion, as to whether we would have come to the same answer on the facts. That head also must be dismissed.[12]The next head of Mr Crawford's submissions is entitled "exclusive criteria", and this arises in relation to an application by Mrs Ledeatte for the post of Training Manager, which would have been promotion. The position was that she was on grade PO2 and when she applied for this post, it having arisen because of the announcement of a new management structure, she was told by Mr Tipping, the person who made the announcement, that only staff on PO3 and above could apply. She was therefore not a person who could apply because she was PO2. The Tribunal deal with that in this way. In paragraph 16(11) of their reasons they say:
"We find that Mr Tipping had imposed the grade bar on the advice of the personnel department, and that that was a reasonable bar to impose…."
And then again, in paragraph 29, they express themselves in almost the same terms:
" … we are satisfied that the Respondents imposed this bar for good reasons and on the advice of the personnel department. .."
The consequence of that was that Ms Pittaway, who was on PO3, was appointed, the Tribunal say: ".. in the absence of any competing application", which is ambiguous because it is not apparent on the face of that sentence whether no one else was in a position to apply or whether no one else of those who could apply chose to do so.[13]Although we are not absolutely clear that the position is beyond question, our understanding when we raised the matter with Mr Crawford and he took instructions was that this was a post which was open to anyone of the appropriate grade in the department and that would have included about 20 persons of grade PO3, of whom about four were black. Mr Crawford submits that a finding that this criterion was a reasonable one and one applied on the advice of the Personnel Department or one applied for good reasons on the advice of the Personnel Department, is not sufficient. The Tribunal, he says, should have asked itself whether the criterion was objectively justified by reference to such matters as skills, experience, the requirements of the post and so on, but in terms of a complaint of discrimination it seems to us that that is a distinction without a difference. The criterion was, as the Tribunal found, a reasonable one. The fact that it was imposed on the advice of the Personnel Department, of course, is simply an element in the reasonableness of the course taken by the employers but a finding that it was a reasonable bar to impose is, in our view, a finding by the Tribunal equivalent to a finding that it was justified. How far, for the purpose of reaching that conclusion, the Tribunal went into matters like skills, experience and the requirements of the new post was, of course, largely a matter of the evidence that was put before it, but we can see no error of law in its failure, if this is the criticism, to embark upon further enquiries into what was, after all, a management decision for the employers and we therefore find nothing in this head of appeal which would justify its going forward for further argument.[14]Finally, Mr Crawford developed an argument relating to what were described as "the acting-up arrangements". The background to this again involved Ms Pittaway, who by now was the Training Manager. The situation was that not only was Mrs Ledeatte, although not officially her deputy, the most experienced and the senior of the other members of staff in the team, but also in fact she stood in for Ms Pittaway when Ms Pittaway was temporarily absent, and de facto she was the Deputy Training Manager.[15]The time came when Ms Pittaway was to be absent on maternity leave and the question arose who should be appointed temporary Training Manager, who should 'act-up' as it is expressed, in her absence. When a similar situation had arisen earlier Ms Pittaway had simply acted-up in that position and Mrs Ledeatte, it would seem, hoped and expected (one might think not without some justification) that the same thing would now happen and that she would automatically be appointed to act-up in Ms Pittaway's absence. But, as the Tribunal record, Ms Pittaway was concerned that whilst Mrs Ledeatte had experience of one side of the work of the Training Unit, the application of AS400, which we take to be an information technology system, she had little experience on the PC (presumably personal computers) side.[16]In Ms Pittaway's view there was no one person in the department with sufficient experience to act-up as Manager in her place. Ms Pittaway was also concerned that there should be seen to be an open selection process. She felt that it was unsatisfactory that she herself had been appointed Manager without any apparent open competition. Accordingly, she and Melanie Oswald decided that the functions of the Manager should be divided in three ways during Ms Pittaway's maternity absence. Ms Oswald would undertake the management responsibilities, the running of the PC side would be left to Clare Dobbs and Penny Alterton and Mrs Ledeatte would be left to manage AS400, which was by far the largest of the three divisions of Ms Pittaway's work. The Tribunal deal with that in paragraph 31 of their reasons and say:
"The arrangements adopted by Ms Pittaway for cover during her maternity leave were specifically designed to be 'open' and to avoid any risk of discrimination. It is clear from Mrs Ledeatte's evidence, that what in fact she really sought was preferential treatment. Whilst her disappointment is understandable, we can find no basis on which it can be said that the proposed acting-up arrangements were discriminatory."
[17]That in the grounds of appeal is criticised because of the use of the words "preferential treatment", which one can perhaps understand as a reaction to the colour of the word "preferential" in this context but it is quite clear, as we see it, that what the Tribunal is saying is simply that Ms Pittaway recognised, as they say, the unsatisfactory way in which she herself had been appointed Manager without any apparent open competition and the fact that Mrs Ledeatte's assumption that the same thing would happen again was, in a sense, a hope and expectation that that approach, an unsatisfactory one as Ms Pittaway accepted, would be repeated. That, as we understand it, is the only sense of the words "preferential treatment" in paragraph 31. There is bound to be a certain frustration if a person who has taken advantage of a particular course then turns round and says, "Ah, but that was wrong, it should not have happened and it is not going to happen again" but that cannot, in our judgment, make it wrong in law for the Tribunal to find that what happened when Ms Pittaway went on maternity leave was dealt with in an open way and in a way designed to avoid any risk of discrimination.[18]Mr Crawford in his submissions rather concentrated on a different aspect, namely that, as he put it, if there really was going to be an open opportunity for appointment to the post of Training Manager temporarily by acting-up during Ms Pittaway's maternity leave, then that never happened because nobody was appointed and it is the split three ways of the job under which nobody received the appointment (and presumably the temporary increase in salary which would have gone with it) which he criticises as being discriminatory. But that, whether or not as a management technique it is to be criticised or not, cannot in our understanding lead to the conclusion that the Tribunal erred in law. This was after all not an appointment to a substantive post but acting-up. The field was therefore, as everybody seems to have assumed, for practical purposes limited to those already in the team or, as in the case of Ms Oswald, overseeing in a managerial position that and other work, and therefore if the conclusion which the Tribunal found to have been reached, and plainly accepted as genuine - if the conclusion of management was that no one person could satisfactorily fill the post - then we see no ground on which the Tribunal can be criticised for reaching the conclusion that the proposed acting-up arrangements were not discriminatory.[19]That ground therefore also falls away and our conclusion is that this appeal should go forward on the one ground of the Tribunal's error of law, as it has subsequently appeared arguably, to be, in its approach to victimisation. As I have said, that is not in the present Notice of Appeal. We therefore direct that there be an amended Notice of Appeal taking that one point. That should be filed and served within 14 days. As to other directions there is no need for notes. Skeleton arguments should be filed and served 14 days before the hearing.