MS G M DE SOUZA v (1) TMP WORLDWIDE (2) MR J TARRANT [2000] UKEAT 815_00_2211

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 815_00_2211Case No Appeal No. EAT/815/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS G M DE SOUZAAPPELLANT(1) TMP WORLDWIDE (2) MR J TARRANTRESPONDENT
Before
Mr Recorder BurkeDate 22 November 2000
[1]APPEARANCES For the Appellant IN PERSON MR RECORDER BURKE QC : The Appellant appeals against a decision of the Employment Tribunal sitting at London (North), chaired by Mrs Hill and promulgated with Extended Reasons on 22 May 2000, by which the Tribunal dismissed the Appellant's complaints that she had been discriminated against by her employers on the grounds of her race. This is the preliminary hearing of her appeal.[2]The Appellant was originally employed as a Customer Services Executive by the Respondents, who are in the advertising industry, from 1990. Everything appears to have gone well until 1998 when it seems that a reorganisation which had taken place in 1997 and changes in personnel may have contributed to a change in atmosphere.[3]From March 1998 the Appellant complained that she had been the victim of unlawful racial discrimination, relying on a number of incidents from that time onwards until her employment ended in the summer of 1999. She brought the present proceedings by Originating Application to the Employment Tribunal on 2 September 1999 and thus, everything which had occurred before 2 June 1999 was strictly out of time, unless events before that date were regarded as continuous acts which took place after that time or unless time was extended on the basis that it was just and equitable to do so.[4]The Tribunal decided that many of Ms De Souza's complaints, those that had taken place before 2 June 1999, were out of time but went on (wisely in the circumstances) to consider the facts of each complaint and to determine in each case whether there was or was not the race discrimination complained of.[5]A considerable part of Ms De Souza's grounds of appeal, which we have heard put before us this morning, relates to incidents which were held to be out of time; and Ms De Souza has not sought to argue that the Tribunal was wrong in any respect to hold that they were out of time. Thus, if there were arguable grounds of appeal in relation to those incidents, on the basis that the Tribunal's determination on the facts or its approach on the law was in error, nonetheless those matters could still not be the subject of a successful appeal.[6]However, we shall set that on one side and deal with the substantive points which Ms De Souza has made, as if there were no time problem, just indeed as the Tribunal did.[7]It is also necessary to say before turning to Ms De Souza's specific criticisms of the Tribunal's decision (and there are ten such criticisms as we have understood and analysed her submissions) that no criticism has been made of the Tribunal for applying anything other than the correct legal test when they came to consider whether, on the facts, there was or was not the discrimination complained of. The Tribunal looked at each incident, found the facts, asked itself whether it accepted the employer's explanation and concluded in the case of each incident that they did not find or did not draw an inference of racial discrimination.[8]To a considerable degree Ms De Souza's submissions to us have concentrated on seeking to establish that she suffered a detriment as a result of the incident complained of. However the decision of the Tribunal on each incident was not that she suffered no detriment, but that there was not differential treatment on the ground of race; we have therefore sought, in dialogue with Ms De Souza during the course of the hearing today, to assist her by seeking her arguments as to where the Tribunal's approach to its decision in respect of each incident that there was no discrimination on racial grounds went wrong.[9]Ms De Souza, as we have said, takes ten points. Firstly, she says, the Tribunal erred in law in accepting, as it did, that there was no racial discrimination in the employers' failing to accord to her the promotion which she sought in 1998. Ms De Souza, when asked where the Tribunal have gone wrong so far as that is concerned, said that she had given her version of the relevant events but the Tribunal did not listen to the facts which she addressed to them as to what would have happened if she had been white and middle-class and not of a different racial origin, as she is.[10]The Tribunal at paragraph 18 says:
"As a matter of fact, the Tribunal found that there had been no offer of promotion. The reason put forward by the Respondents as to why the Applicant was not only not suitable for promotion but in fact inadequate in her present job, we found to be true."
Those findings of fact are the essence of the Tribunal's decision on this part of the case and demonstrate that the Tribunal considered that the reason for the failure of Ms De Souza to obtain promotion was nothing to do with her race but was all to do with her competence. Those findings of fact were findings which the Tribunal was entitled to make. This Tribunal of appeal does not re-hear the facts; it is for the Employment Tribunal to find the facts. We see no arguable criticism in the way in which the Tribunal resolved the facts on this issue.[11]The second ground put forward by Ms De Souza is that the Tribunal did not listen to her evidence about the creation of a hostile atmosphere and bullying tactics, which were part of that hostile atmosphere, from the time when things started to go wrong for her in 1998. It is perfectly clear from the decision that the Tribunal simply found against her on the facts and decided that there was no racial discrimination in this area. In particular, it is right to draw attention to paragraph 19 in which the Tribunal find:
"Whilst we accept the Applicant told Mr Gilby that, had she been a white, middle-class male, she would not have been subject to the bullying tactics, we did not find that she had been the subject of any bullying tactics. She had merely been told some rather unpleasant facts about the way in which she worked."
We see no arguable ground of appeal in this area either.[12]Thirdly, Ms De Souza argues that the Tribunal's biased approach to this case is illustrated by the Tribunal's errors in law in, first of all, referring in paragraph 8 of its decision to her having signed a fresh contract of employment with the employers, and in paragraph 21 to a new contract with the employers, when she had not signed a new contract; she says that she had signed a continuous contract. Secondly, she says, the biased approach is demonstrated by the Tribunal referring to her job as that of an Administrator, when in fact she was a Customer Services Executive[13]As to the first of these points, Ms De Souza has misunderstood either the law or the terminology of the law. Ms De Souza agrees, and accepts that in September 1998 she signed a contract of employment. Of course, there had been a previous contract of employment, whether in writing or not; and what she signed in September 1998 was a fresh document. She says it was not a fresh contract because it provided for continuity of employment from the beginning of her employment in 1990; and no doubt it did; but that does not mean that it was not a fresh contract. It was a fresh document which constituted a new contract of employment, although no doubt it incorporated the terms of the contract which had previously existed. There is no valid criticism to be made of the Tribunal in that respect.[14]As to the second point, it matters not in our judgment what job-title the Tribunal used. What was relevant was not the title but Ms De Souza's duties and it does not appear to us, that, if there was an error in the job-title used by the Tribunal, that was anything other than a technical error. It does not appear to have been of any substance and, indeed, Ms De Souza has not put forward any arguments which reveal that it was of any substance. Therefore, we take the view that there is nothing which is arguable in that criticism either.[15]The fourth criticism which is made is that the Tribunal erred in law in not finding that there had been racial discrimination in the fact that Ms De Souza, when she was off ill or off as a result of having an accident and sustaining an injury in October 1998, was not sent flowers from work while other employees did receive flowers, including other white employees. The Tribunal dealt with this matter in paragraphs 22 and 23. The Tribunal decided that there was no company practice that flowers should be sent to everybody who was off work or had suffered an accident, and that it was a matter which was entirely informal and dealt with on a case by case basis. They found that there was no discrimination in that respect either. That was a finding of fact; and we see no basis on which that finding of fact can legitimately be attacked.[16]The fifth criticism is that the Respondents failed to stop the discriminatory treatment of Ms De Souza by proper management practice. Ms De Souza tells us (and it seems to be right) that this is a matter which the Tribunal addressed in paragraph 28 of its decision. This is another area in which her complaint comes down to the assertion that the Tribunal did not listen to the way in which she was saying the facts should be found. The Tribunal made findings against her. Those are findings of fact and, as in the case of the other findings of fact to which we have referred, we do not see that those findings of fact are properly open to criticism.[17]It is pointed out by Ms De Souza that, at paragraphs 6 and 19 of the decision, the Tribunal record that she had complained to her employers of the treatment she was receiving; plainly she did, as the Tribunal themselves record; but we can see no basis on which the Tribunal's decision that the treatment that she was receiving was not based on racial grounds can be fairly or properly criticised.[18]Ms De Souza's sixth point relates to the fact that in January 1999 she did not receive a three per cent wage increase; she submitted to the Tribunal that the wage increase of three per cent was "statutory". It is not clear what she meant by that but she probably meant that it was an across the board entitlement. She points out that, while she did not get the three per cent, others did and according to Ms De Souza, one white employee got twelve per cent. The Tribunal looked at this area of the case in detail in paragraph 24. They found that there was no promise of an increase, and no across the board increase but that increases were dealt with on the basis of an individual approach and an individual assessment of merit. They conclude:
"Given the standard of the Applicant's work and the number of complaints, coupled with the fact that she had been absent from work from September 1998 to January 1999, the Respondents did not consider that she should receive a merit-based salary increase. The Tribunal could find no reason to draw any adverse inference from the Respondents' view on this matter."
[19]These again are findings of fact. No grounds have been put before us to suggest that it is arguable that those findings of fact were perverse, or took into account some matter that should not have been taken into account or failed to take into account some matter that should have been taken into account.[20]The next criticism, number seven, goes to training; and we are not going to deal with that individually. The Tribunal deal with that in paragraph 28 in the same way as they dealt with the other complaints to which we have already referred, and we see no arguable criticism of their decision.[21]The eighth complaint relates to the employer's failure to complete the Race Relations Questionnaire which had been administered to them. Ms De Souza at one time appeared to be saying to us that they had completed it, but too late, and at another time to be saying that they had not completed it at all. From the decision of the Tribunal, which is subject to a correction made under Rule 10 (9) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993, it appears that the Tribunal found that the questionnaire had not been replied to until close to the hearing. Plainly the Tribunal had been alerted by Ms De Souza to the fact that the Race Relations Questionnaire had either not been completed at all, or had not been completed until too late; and, of course, that is something from which the Tribunal could have drawn an adverse inference, ie an inference adverse to the employers. The Tribunal plainly considered whether they should or whether they should not draw such an inference. Their conclusion was that the explanation of the Respondents' failure which they had been given was truthful and that the reason that the questionnaire had not been completed or, had not been completed in time was not as a result of discrimination or less favourable treatment. Again, these are conclusions of fact and nothing that Ms De Souza has said to us gives rise to an appealable argument or ground in relation to these conclusions of fact.[22]The ninth complaint that Ms De Souza puts before us is that the Tribunal failed to give her sufficient assistance in presenting her case, she being a litigant in person presenting the case on her own behalf. She refers to paragraph 15 of the decision in which the Tribunal says that it noted with concern that a number of assertions put forward by Ms De Souza were clear misunderstandings of the legal position, paragraph 18, in which it says that it found itself frequently in difficulty understanding what Ms De Souza wished to put forward, either as a question or a statement, and paragraph 20 in which it says that it found Ms De Souza quite difficult to deal with during the hearing. What the Tribunal was doing there, in those comments, was simply setting out what it experienced over the three days of the hearing of this matter. We were not there and we cannot comment and do not propose to do so but what we do say is that those comments do not constitute a fundamental part of the decision or of the reasoning upon which the Tribunal was relying in rejecting Ms De Souza's complaints. Nor is there anything to show from those comments or elsewhere that the Tribunal failed to do its best to help Ms De Souza, as a litigant in person, to put her case forward as fully as possible.[23]Finally, Ms De Souza takes a point on the correction. She says that the correction was made, not under the Race Relations Act but under the Employment Tribunal Rules and that, she says, was an error of law. That is a misapprehension of the law. If the Tribunal wanted to make a correction, it could only do so under the Employment Tribunal Rules, as indeed it did. There is nothing in the Race Relations Act which says that it could not make such a correction under the Rules; and we see no error of law in that respect either.[24]We have taken care, firstly, to analyse and divide into separate heads each of Ms De Souza's arguments to us today and, secondly, to give her every opportunity to develop those arguments; but for the reasons we have given we conclude that there is no arguable ground of appeal in this case; and the appeal is dismissed.