MRS P MAYENIN v LONDON BOROUGH OF TOWER HAMLETS [2001] UKEAT 1214_99_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1214_99_1403Case No Appeal No. EAT/1214/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P MAYENINAPPELLANTLONDON BOROUGH OF TOWER HAMLETSRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMRS T A MARSLANDMRS D M PALMERDate 14 March 2001
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MISS RECORDER ELIZABETH SLADE QC This is the Preliminary Hearing of an appeal against the dismissal by an Employment Tribunal of complaints of sex and race discrimination made by the Appellant. The Employment Tribunal also held that the Respondent, the London Borough of Tower Hamlets, did not act in breach of contract in withdrawing an offer of employment. There is appeal against that determination. There has been no appearance by or on behalf of Mrs Mayenin but we will proceed to consider the appeal on the papers before us. It appears from the court file that notice of today's hearing was sent to Mrs Mayenin's address.[2]Mrs Mayenin's complaints arose out of the withdrawal of a conditional offer of employment, as Interpreting Officer in the Social Services Department of the London Borough of Tower Hamlets. The language concerned was spoken Sylheti and written Bengali. The applicant and her husband were two of a very large number of applicants for the post and were short listed. An offer of employment, conditional upon receipt of satisfactory references, was made to Mrs Mayenin. That offer of employment was withdrawn from Mrs Mayenin when the references provided by her were either not satisfactory, or in the case of one referee was from an unacceptable person, in the sense that the putative referee was someone who was closely connected with Mrs Mayenin's husband.[3]The grounds of appeal raise a number of allegations and we will summarise them as follows. It is alleged that the Tribunal failed to pay any sufficient regard to an allegation by Mrs Mayenin that documentary evidence had been tampered with. This appears to have been an allegation that the application form of Mrs Mayenin's husband had been tampered with because it looked somewhat different from hers. That contention appears from expanded reasons for appeal submitted by Mrs Mayenin read with her closing submissions to the Appeal Tribunal. The Tribunal deal with this allegation in paragraph 19 of their decision, in which they say:
"Accusations of bad faith against the Respondent not levelled during the course of the hearing had been included in Mrs Mayenin's written submission and include an allegation that the Respondent tampered with documents. It is too late to raise a matter for the first time in closing submissions because the Respondent had had no opportunity to deal with the matter. We would have considered reopening the hearing had a matter of substance been omitted by an oversight and had it appeared with that an arguable and relevant point arose. Having considered Mrs Mayenin's submission, we do not think an arguable point is raised in relation to that allegation and we take no account of it"
. The point raised on appeal was a point which was plainly considered by the Employment Tribunal. It considered that the matter did not require reopening the evidence and was not material to the issues which it had to decide. Having read the Tribunal's findings of fact and the reasons for their decision, we too can find no fault with the approach adopted to that allegation. That ground we consider does not disclose any error of law or perversity in the approach of the Employment Tribunal.[4]The Appellant complains that she was unrepresented and without legal resources and that the Tribunal should be particularly careful in allowing a full opportunity to present her case. Tribunals are well used to dealing with unrepresented parties. In their approach to the question of the alleged tampering with evidence, as indeed with the handling of the matter generally, we do not find any fault with the Employment Tribunal.[5]So far as ground four of the notice of appeal is concerned, the Appellant attacks the decision of the Tribunal in which it preferred the explanations given by the Respondents witnesses over her explanations as having been given without any reasons. The Employment Tribunal heard the evidence of the witnesses and it was for them to assess that evidence and to decide whose evidence they preferred. We find no fault with their approach. There is no reason advanced in the grounds of appeal as to why their conclusion as to credibility was a perverse one.[6]So far as the fifth ground of appeal is concerned, the Appellant attacks the comments made by the Employment Tribunal that the Appellant had made a misleading statement in her statement to her putative employer in which she had stated:
"At my current job as a translator and interpreter for the Bromley and Lewisham Councils I learned to maintain professionalism and work on my own initiative and maintain and prioritise my own work"
. The Tribunal pointed out that the reference to Lewisham was misleading in that the Appellant had not actually done any work for Lewisham but was merely on the list of interpreters. In our judgment the Tribunal were fully entitled to make the inference that it did from the statement which we have set out. This ground of appeal here does not disclose any error of law on the part of the Tribunal.[7]Further the Tribunal is attacked in ground six of the notice of appeal as having given insufficient reasons as to why they rejected the applicants' argument that as a woman taking a career break she was indirectly discriminated against by being forced to give two employers' references. The Tribunal observed at paragraph 20 of their decision that Mrs Mayenin did not complain of discrimination at any time before the decision made on 12 November 1998 that the job offer should be withdrawn. As for the requirement that she provide two references, one to be from the current or last employer if applicable, the Tribunal observe at paragraph 21 that it was a requirement that has not been shown to discriminate against women and it was a requirement with which Mrs Mayenin both could and did comply. In those circumstances it was plain that there was no indirect discrimination against Mrs Mayenin in making that requirement, leaving aside for the moment, the question of the justifiability of the requirement which the Tribunal had held was fully justified.[8]Mrs Mayenin makes further complaints about the Tribunal's decision in the following paragraphs of her notice of appeal. Those paragraphs attack the reasoning and the approach to the evidence by the Tribunal. In all instances we are of the view that there was ample material from which the Tribunal could reach the conclusions that they did and that no error of law is demonstrated in their approach. We pick out two paragraphs from those later paragraphs in the grounds of appeal. At paragraph 10 it is alleged by the Appellant that the Tribunal gave insufficient reasoning as to why they deemed the reasoning of the Respondents that there was a conflict of interest with Mr Anis' reference while the Respondent could not produce written documentary evidence as to what constitutes a conflict of interest. We consider that ground of appeal without merit. The Tribunal noted that in paragraph 12 of the decision Mr Anis' name appeared on the notepaper of an institution together with the name of Mrs Mayenin's husband. Mr Mayenin being the president of that institution and Mr Anis was the treasurer. In those circumstances the Tribunal did give grounds for considering that Mr Anis may not be an impartial referee. Finally, in paragraph 11 the Appellant alleges that the Tribunal's view of the letter written by her to the Respondents Director of Social Services on 5 November 1998 as including a misleading statement as being perverse, in paragraph 17 of its decision, the Tribunal fully explained why it took the view that it did of the comments made in that letter. We consider that the criticisms made of the Tribunal's view of that letter not justified.[9]In summary therefore we consider that these grounds of appeal raise no arguable points of law or perversity and we accordingly dismiss the appeals of Mrs Mayenin against the findings that she was not discriminated against either on the basis of her race or sex.[10]Mrs Mayenin also appeals against the finding of the Employment Tribunal that the Respondents did not act in breach of contract in withdrawing an offer of employment. The offer of employment was conditional on the receipt of satisfactory references. That condition was not satisfied. There was no error of law in the decision of the Tribunal. We also dismiss the appeal against the dismissal of the claim for breach of contract.