MISS J GREENE v LONDON BOROUGH OF HACKNEY [2000] UKEAT 497_00_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 497_00_2211Case No Appeal No. EAT/497/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS J GREENEAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
His Honour Judge H WilsonSir Gavin LairdDate 22 November 2000
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE WILSON : This has been the preliminary hearing of the proposed appeal by the original applicant, Miss Greene, against the decision of the Employment Tribunal sitting at Woburn Place (Stratford) that her complaint of unfair dismissal failed and was to be dismissed and that her complaint of racial discrimination also failed and was to be dismissed. We note that the proceedings before the Employment Tribunal seemed to have taken place over several days and we also note that the decision, which is a very careful and detailed one, runs to 15 pages of A4 typescript.[2]The applicant worked for the London Borough of Hackney for a number of years and her complaints were that she had been unfairly dismissed and discriminated against on the grounds of her race. Her employment had been as a graphic designer. There were several graphic designers employed by the Borough but she was the only black one. In their response, the respondent Borough denied unfairness and discrimination and said that the reason for the dismissal was unsatisfactory work.[3]As I have said, the tribunal met and dealt with all the matters that Miss Greene has sought to urge on her own behalf in support of her appeal. It is probably sufficient to quote from paragraph 27 of the extended reasons, which is the paragraph dealing with the intervention by Mr John:
"… Mr John stated that he carefully considered all the evidence and we find as a fact that he did exercise care. He concluded that: "throughout the performance review meeting you demonstrated an unwillingness to accept broad managerial direction. I also was mindful of the fact that you were working in a way which was disruptive to your colleagues and clients and that the quality of your work failed to meet the requirements of the service."
In his witness statement Mr John's evidence was plain:
"… she was only prepared to voice denial when the facts as presented by Marion Forkin were so overwhelming."
He also commented that the Applicant had little understanding of the issues. He said:
"I was conscious of the fact that she is a black woman in employment and sought to find reasons why I should not dismiss her. However, because of her lack of understanding I could not find any indication that the situation would improve."
Mr John is himself black. In his evidence before us he was equally blunt. He said that he was looking for a spark of willingness on the part of the Applicant, but that she was quite resolute "that mistakes were always someone else's … I was looking for some clear mitigation." He also made the point that the evidence given by the Applicant in the Tribunal was more contrite than that which he received from her. In cross-examination, he said that he was looking for a way out, having an instinctive desire to support the under-dog; he could find none. We find that the statistics were of importance to him. That there had been 13 management meetings in three to four months and that the Applicant had not challenged the assertion that 50% of the errors were made by her were important points to him. We further find that Mr John approached the matter in a thoroughly professional way, and we note, for example, that he deliberately did not read the grievance decision [ that had been a decision by Mrs Langham which found against the applicant ]. We find that he was genuinely reluctant to dismiss a black employee and that he was looking for a solution. He made the telling point that he plainly saw that much energy had been expended by the Applicant on her defence. His view was that she would not have made errors, and would not have been dismissed, if the same energy had been spent in her work. [ Having seen the competence with which she presented her appeal, we endorse that view. ] We further find that Mr John would have had no hesitation in not following Ms Forkin's recommendation, if he felt that he had a good ground for confirming the Applicant's continued employment. We view him as an independent witness who assessed the evidence before him and came to his own decision, putting aside matters that he regarded as irrelevant. When asked about possible victimisation, he confirmed that that issue did not come into play. The Applicant did not allege that she was being disciplined because of the earlier grievance, and Mr John did not consider this issue."[4]The tribunal's decision goes on to set out the relevant law, quite accurately, and then in the concluding paragraphs, in particular 31(vii) they deal with the issue of unfair dismissal and in 31(ix) the separate issue of victimisation. They dealt with these matters completely separately. Similarly, they conclude by dealing with the question of racial discrimination in their decision.[5]We have listened carefully to everything Miss Greene has said, but we can see no prospect of success were this matter to proceed to a full argument and accordingly this appeal must be dismissed at this stage.