MISS J MAHLANGU v LONDON BOROUGH OF HACKNEY [2000] UKEAT 1263_99_1503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 1263_99_1503

Case No Appeal No. EAT/1263/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS J MAHLANGUAPPELLANT

LONDON BOROUGH OF HACKNEYRESPONDENT

Before

His Honour Judge Collins

Date 15 March 2000

[1]APPEARANCES For the Appellant In person For the Respondent JUDGE COLLINS : This is an appeal from the decision of an employment tribunal at Stratford whose extended reasons were promulgated on 11 August 1999. The proceedings before the tribunal were extraordinary. They occupied a total of 16 days sitting time, spread over the end of January and the beginning of February 1999 and the end of June of 1999. The tribunal had before it nearly 2,500 pages of documents. After the close of the evidence, they spent something like 7 days together discussing their decision.

[2]The appellant for the purpose of this hearing has produced a Notice of Appeal, which is 25 pages long. She has also produced a proposed amended Notice of Appeal attached to her preliminary hearing and directions form, which is not paginated but looks about 50 pages. She has devoted an enormous amount of time and trouble to combing through the decision of the tribunal and the supporting evidence to identify the minutest details where the tribunal might be criticised in relation to their findings of fact.

[3]The tribunal had before it no fewer than 6 originating applications issued by this appellant. The first was presented on 27 October 1994 and the latest on 16 September 1996. The first 5 all alleged discrimination on the grounds of sex and race and victimisation. The last continued allegations of victimisation on the grounds of race and sex, but also claimed that the appellant had been unfairly dismissed and that the respondents were in breach of contract. The tribunal dismissed all her applications.

[4]The local authority employed the appellant as the Directorate Training Officer in the Directorate of Construction Services from 5 January 1987 until 28 August 1996. She is a black African woman and has a perception, as the tribunal put it, that she has been discriminated against in recent years, firstly on the grounds that she is a black African and secondly that she is a woman. I am not going to rehearse for the purposes of this judgment the detailed allegations, which she made; they are set out in a systematic way by the tribunal in their decision. There were 12 separate issues, which the tribunal had to consider for the purposes of race and sex discrimination. The basic findings of fact are set out in paragraphs 21 to 32 of their decision and I will just give the headings. 1. Exclusion concerning Women in Management 2. Exclusion from Investors in People 3. Manner in which Ms Witchell's grievance was handled 4. Treatment with Regard to Quality Assurance Non-Conformances; 5. Criticisms of the procedures concerning the Sharon Lindsay grievance 6. The Janet Merchant Investigation and the fact that the complaint was not addressed; 7. Restructuring to make the Applicant redundant; 8. Refusal to allow return from sick leave in April 1996 9. Exclusive at Attendance at Courses 10. Less favourable Treatment in Terms of Pay and Promotion 11. Selective Targeting, Misuse of Grievances and Investigations to the Applicant's Detriment 12. Breach of contract 13. Unfair Dismissal

[5]In those paragraphs occupying some 14 pages of their judgment they set out their essential findings of fact. It is apparent from what I have already said about the length of hearing and the number of documents, that the tribunal only extracted from the vast mass of evidence which they had the essential findings of fact which they considered material for the purposes of their decision and have not, for reasons which are obvious, set out in detail the evidence which supported each of those findings of fact. To do so would have been a massive and unnecessary task producing a quite unreadable judgement. But it is clear that the tribunal had regard to the whole of the evidence, which was before it when extracting their essential conclusions of fact.

[6]The tribunal's conclusion in relation to those issues is set out in paragraphs 33 to 65 of their judgment. Paragraphs 33 and 34 deal with their essential approach to their conclusions and in view of the length of the time that the case took and the trouble that the appellant has given, I think it right that I should read paragraphs 33 and 34 in full. (33) It has become clearer and clearer as this case has progressed over the weeks that the Appellant's position is founded upon a perception that Mr Quinn, aided and abetted by his senior managers and some compliant junior staff, has promoted a lengthy and complicated campaign over a number of years to obtain her dismissal because she is a black Zimbabwean woman of the Ndbele tribe. Furthermore, in addition to this malevolent design of Mr Quinn's and others, and Mr Obazuaye in particular, they have at times acted upon their own initiative to harass and victimise her, and this has been inspired by the fact that she has presented Originating Applications to the Employment Tribunal. One of the basic tasks of this Tribunal is to discover, inter alia, whether the Applicant has proved her basic proposition, and I quote from her final submission:

"Mr Quinn achieved his ultimate objective on 11 March 1996 to have my post deleted for good."

This submission concerns the deletion of the post approved by the appropriate committee, which considered the reorganisation of the Directorate. (34)Having said that, the Tribunal is obliged to say that the evidence in this case points in quite a different direction. The Tribunal accepts that, by the way of background, the Crawford Report portrayed a grim picture of race discrimination in the Respondent Borough. However, although the Tribunal takes note that the Respondents accepted the report, it is the facts of this case and the behaviour of the relevant witnesses within the DCS (Directorate of Construction Services) which determines our conclusions. The Tribunal has preferred the evidence of the Respondents witnesses. It has done so not just because of their demeanour and the fact that they had little difficulty in providing their evidence in a lucid and consistent manner, but also because it sat logically and reasonably with the documentation and the general pattern of the evidence as it emerged and was tested in the case. On the other hand, the evidence of the Applicant and one of her witnesses, Ms Obia, did not conform to that standard and was considered to be unreliable and sometimes misleading."

[7]It is in the light of that approach that the tribunal proceeded to give their conclusions in relation to each of the 12 issues, which fell for their consideration. I ought to mention that although this tribunal is aware of the investigation by Mr Lincoln Crawford into the affairs of the borough, like the tribunal we take this opportunity to say that our findings and the findings of the tribunal have no implication, one way or the other, for the general picture of the handling of race issues within the London Borough of Hackney. Our decision relates solely to the allegations made by this appellant against the specific individuals who are named. In the light of their general approach the tribunal dealt in paragraphs 35 to 59 with all the allegations of race and sex discrimination and in paragraphs 60 to 65 with the allegations of breach of contract and unfair dismissal.

[8]In relation to all the allegations of race and sex discrimination the tribunal found as facts that the allegations were unsubstantiated because in relation to all of them the appellant had not been treated less favourably than any notional comparator. We cannot see in the Notice of Appeal or in the amended Notice of Appeal or in the light of any of the submissions that have made to this morning, any grounds for saying that the tribunal's decision in relation to any or all of these matters were conclusions which we are justified in interfering with. They are decisions, which they made on the facts having examined them with great care. For that reason, the tribunal was never obliged to consider the question of whether or not any less favourable treatment was attributable to discrimination on the grounds of race or sex. I mention that because there is one area in their directions of law where it is clear that the tribunal through no fault of its own was mistaken. In paragraph 19 they dealt with victimisation by reference to the decision of the Court of Appeal in Nagarajan v London Regional Transport

1998 IRLR 73

and directed themselves that they had to be satisfied that there was some conscious motivation for any discrimination that existed. That decision was subsequently overruled by the House of Lords deciding that motivation was irrelevant and all that had to be decided was whether there was less favourable treatment and if so, whether it was attributable to the fact that the appellant had performed one of the protected acts referred to in s2 Race Relations Act 1976.

[9]That totally forgivable error was immaterial for the reasons we have already given; the tribunal never had to consider the reason for less favourable treatment because it had decided that there had been none. That disposes of the complaints in relation to race and sex discrimination.

[10]The tribunal dealt with breach of contract in paragraphs 60 to 62. They decided that any complaint that the appellant had about the basis on which she was to report or her job description and functions were ancient matters, well out of time, and in any case were flexible and matters of contractual entitlement. So far as the tapering provisions are concerned they decided that these were entirely discretionary and gave no rise to contractual claim. These are findings of fact with which we cannot interfere.

[11]As to unfair dismissal the appellant was dismissed by reason of redundancy. What had happened was that there was a reorganisation; the tribunal had held that there was no racial or sexual element in the reorganisation, which meant that there were two jobs where three, had existed before. The appellant had a reasonable prospect of getting one of those jobs but refused to take to part in the selection process. The tribunal thought that considerable lengths had been gone to assist her in applying and that she was subjected to no undue pressure. In paragraph 64 they say:

"It is a significant feature of this case that the Applicant attempts to argue the proposition from a contradictory stand-point: on the other hand she had complained in terms about the effect of the tapering arrangements and on the other hand about Mr Obazuaye's attempts to pressurise her, which would have secured the maximum financial package for her. On the evidence it is clear that Mr Obazuaye is not responsible for treating the Applicant unfairly: until she signed her severance form her contract could not be terminated. Towards the end, the Applicant was still being paid while absent for over a month without even complying with the Respondents' sickness procedures which required a medical certificate."

[12]And in those circumstances they decided the respondents had behaved fairly in relation to the dismissal. There is no arguable point of law arising out of this conclusion and the appeal must be dismissed in this as in all other respects.

[13]We wish to conclude our judgment by paying tribute to the extraordinary stamina of the chairman and members of the tribunal and to the care and trouble which they took in reducing what must have seemed an unmanageable mountain of oral and documentary evidence, to a systematic, clear and well structured judgment. This appeal depended entirely on a minute examination of the evidence. Miss Mahlangu has been unable to identify any material point of law, which the tribunal has got wrong. When she commenced her submissions by telling us that the tribunal were wrong in refusing certain evidence which she says would have been material she was unable, although we gave her a long opportunity to leaf through her papers, to identify the particular piece of evidence which she thought was the strongest piece of evidence which should have been admitted. She still feels that she has been she has been discriminated against and has devoted an enormous amount of time and energy to preparing the documents for our use but in the end she was able to identify no reasonably arguable point of law.