HOME START CAMDEN v MS J SCOTT [1999] UKEAT 823_99_1011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 823_99_1011Case No Appeal No. EAT/823/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
HOME START CAMDENAPPELLANTMS J SCOTTRESPONDENT
Before
His Honour Judge D Pugsley Mr A C Blyghton Mr J C ShrigleyDate 10 November 1999
[1]APPEARANCES For the Appellants MISS DIANA GALPIN (of Counsel) Instructed by: Mr D Norris Messrs Fairbairn Morris Solicitors Grant House 56-60 St John Street London EC1M 4DT JUDGE PUGSLEY : In this case we are indebted to the way Miss Galpin, who appears for the appellant, has put her case with great clarity. We have, of course, read all the papers in the case; a very detailed skeleton argument and she has courteously and kindly prepared for us a bundle of documents that set out the various issues. It is not the function of an appellate tribunal or court to rehear cases. In a recent decision of the House of Lords in Prglowsra v Prglowsri [1999] 3 All ER 632 at 643 Lord Hillman made it very clear that every judge, (and everyone exercising any judicial office) could well with hindsight improve the felicity of the wording of a judgment and deal with it in a slightly different way. At the end of the day, the authority of this appeal tribunal to intervene is only there where there is a misdirection of law and included within that, of course, are areas of perversity; but it cannot be said too often that it is not our task to rehear the case. Sometimes we may be tempted to do so, but we have to apply a self-denying ordinance to recognise that the Employment Tribunal is the tribunal of fact. I say that because Miss Galpin is a forceful and persuasive advocate and we have absolutely no doubt at all that the point she has made to us were made to the tribunal. It is therefore against that context that we say and say very firmly to ourselves, is there an arguable point of law? The facts of the case are relatively within short compass.[2]The applicant was employed by the respondent from December 1994 as an administrative assistant with a charity in Camden which provides support to families under stress. It occupied a small office which accommodated its two employees in a single room. The co-ordinator, Mrs Farnworth, was a full-time employee, the applicant was part-time working 18½ hours per week. In fact, as we suspect happens with many part-time workers, she worked hours rather greater than those for which she was given formal credit.[3]The tribunal set out the various difficulties and problems there were. It is right to say in paragraph 4 they suggest that Mrs Farnworth was a person to whom the tribunal did not, if we may say so, warm. They took the view that she was a person better at talking than listening and that she was a rather dominant person. The actual phrase used was "she appeared to the Tribunal to be of a dominant personality and a better talker than she was a listener." They also concluded that once she became aware of the applicant's aspirations lay further than the subservient role for which she had been recruited, she was not best pleased.[4]In paragraphs 6 to 12 the tribunal set out the various matters where they say there was differential in the treatment. They are rehearsed again in paragraph 15 where the tribunal said:
"15 In this case we found a number of instances of less favourable treatment. The Applicant was treated less favourably in situations where compassionate leave might have been appropriate. While complaints by her white managers were given the fast-track treatment to the detriment of clearly laid down procedures, the Applicant's grievance was not given any consideration. It was not made clear to her that progress on this grievance was barred because of pending disciplinary action. There was increasing hostility from Mrs Farnworth to the extent where the Applicant's removal was her main objective. The Applicant was treated less favourably in respect of personal telephone calls. While there was the expectation that someone might have approached her for payment, no-one did so and moreover, it was a subject that Mrs Farnworth was not even prepared to discuss with her."
[5]The law is set out by this Employment Tribunal at paragraph 14. We do not think that the direction can be in anyway criticised. Indeed, in fairness, nor does Miss Galpin because the headnote she refers to in Zafar Glasgow City Council [1998] IRLR 36 is almost in the exact terms of the well-known area of this particular citation from King v Great Britain China Centre [1991] IRLR 513 at page 518:
"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus, if the applicant does not prove the case on the balance of probabilities, he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption [that] "he or she would not have fitted in". (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts as found by the tribunal. …"
In this case there was a difference of race and instances of less favourable treatment. The tribunal is entitled to look to the employer for an explanation:
"…If no explanation is put forward, or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."
We are bound to say that that passage is hardly striking new ground. It has been accepted for a very long time that the decision in Khanna v Ministry of Defence [1981] IRLR 331 which seems to suggest that a tribunal should find discrimination where it finds unequal treatment for which there is no acceptable explanation has long been regarded by tribunals as erroneous. See - Leicester University Student Union v Mahomed [1995] IRLR 292 . We can take obvious examples. A person who is black may apply for a job and be unsuccessful, the employer may give all sorts of dishonest explanations for that, but that does not mean the real reason is based on ethnic considerations; it could be the case the employer was fearful that person was a political activist, who was going to recruit people to a trade union to which the employer was hostile. It might be that the particulars revealed a religious persuasion that the employer felt would be one that would be divisive in the organisation. It is a matter of common-sense, if there is no explanation or if the explanation is not credible, it may well be that the inference of discrimination on grounds of race or gender may be drawn but equally it may not be, it could be for other reasons. But we do not intend any discourtesy to Miss Galpin in saying that really she has approached us in this case as though we were hearing the case or rather rehearing it. She has pointed out that there are certain minor factual errors which do not occur to us to be matters which really are issues at the moment.[6]The real complaint she has is that although the tribunal have properly set out the test, what they have not done in their decision is given enough weight to the fact that in drawing comparisons of less favourable treatment the only people the applicant could be compared with was with Mrs Farnworth, who was her manager, and with other people who were volunteers. Therefore, says Miss Galpin with a considerable degree of force, how can one say this is race discrimination as opposed to saying that the differential treatment is related to the difference of status of one person supervising another and the other being volunteers in the organisation.[7]Well that is a very good point and it was raised below as is indicated in paragraph 16. But if one followed the logic of Miss Galpin's position, one would come perilously near to saying that a tribunal could never find race or for that matter sex discrimination in any small organisation but only where there was a large undertaking in which many many people were on the same level as in a a transport undertaking or a large factory. That cannot be right. Of course one has to take into account the differential treatment may relate to a difference of status within the organisation. To put it very simply, we doubt if many managing directors who are late for 10 minutes a day over a few days receives a note of warning, which might, we suspect, not be the case with the office boy. But at the end of the day this tribunal said:
"17 … we gave considered the difference of race, the instances of less favourable treatment and the explanation given by the Respondent. It is case where we are prepared to draw an inference and we find that the Applicant has succeeded in proving on the balance of probabilities that she was the victim of unlawful race discrimination."
[8]We finish where we start. There is absolutely no point in us departing from our statutory powers and it would be wrong to do so. This matter is not the product of just one mere holder of judicial office, it is a decision of a Chairman and two members. We have no doubt at all, having heard Miss Galpin, that the tribunal would have been well aware of the issue on the limitations of drawing inferences, in view of the differential nature of the status of the people within the organisation, but we are firmly of the view that no arguable point of law has arisen. These are really complaints about the way the tribunal decided the case. That is and never can be a reason for allowing an appeal. It has to be on a point of law. No error of law, in our view, can be identified. We therefore dismiss the appeal.[9]We refuse leave to appeal to the Court of Appeal for the reason we have already set out.