MISS S LENTULUS v SUTCLIFFE CATERING (UK) LTD [2002] UKEAT 1145_01_1107

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1145_01_1107

Case No Appeal No. EAT/1145/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MISS S LENTULUSAPPELLANT

SUTCLIFFE CATERING (UK) LTDRESPONDENT

Before

Mr Recorder Langstaff

Date 11 July 2002

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR RECORDER LANGSTAFF QC In this Preliminary Hearing, of an appeal from a decision of the Employment Tribunal sitting at London (Central), Miss Lentulus has not appeared to pursue her appeal.

[2]She has complained, on paper, that the Tribunal wrongly rejected her complaint of race discrimination. She has raised a number of grounds. Because we see no arguable point of law in those grounds we shall briefly set out our reasons why.

[3]The underlying facts are that she was employed, through an agency, as a butler to provide catering services at Old Mutual. She raised complaints, in part that she had been so busy that she was unable to take the rest breaks to which her contract of employment entitled her. However, she did say to the Tribunal that that was not because she was not told to take any breaks but because of her dedication to her duties.

[4]She complained that Mr Payne, her immediate manager, had been rude, discourteous and racist toward her, that he had visited her at inappropriate times and that he had offered her less money to do the job on a permanent basis than he would have offered to someone who was not of her race.

[5]The Tribunal set out, at paragraph 5, a number of itemised matters which the Appellant had identified as constituting less favourable treatment. The first was that the pay rate she was offered was inadequate. The second was the condition of the premises. The third was that Mr Payne came at inappropriate times to see her without an appointment. The fourth was that other staff took breaks and she did not. The fifth was that other staff were not helpful.

[6]e sixth was that she was not paid £10 per hour to take the job on a full-time basis. The seventh was that Mr Payne was discourteous, arrogant and racist, would not look her in the eye and would not shake her hand and the last, that she was not allowed sufficient breaks.

[7]It may be plain that some of those overlap one with another. In each case, save one, the Tribunal decided, as a matter of fact, that there was no evidence that on any of those bases the Appellant had been less favourably treated than anyone to whom she did, or might have, compared herself. The one case which was different was that the Tribunal found less favourable treatment in respect of not being allowed sufficient breaks.

[8]Next, they considered whether or not the less favourable treatment, if it had been less favourable treatment, would have occurred on the grounds of her race. They found no evidence of any explicit racial conduct. They considered whether they should draw an inference of race, applying the appropriate authorities, and came to the conclusion that there was no evidence that any of the treatment, less favourable or not, had been afforded to her on the ground of her race. They concluded that the less favourable treatment they did identify was not caused by the race of the Appellant.

[9]Not only did they look at the incidents individually but they looked at the totality of them taken together. On those two bases, therefore, there was no less favourable treatment and if there had been it was, in any event, not on the grounds of her race. The Tribunal rejected her complaint.

[10]They did find that there were some aspects of the arrangements which were not entirely satisfactory, as between the Appellant and her principal. But, they rejected the view that any of the treatment, which was less than ideal, was caused consciously or unconsciously by race. They said, at the end of paragraph 8:

"A reasonable employer might have done more but his unreasonableness is not sufficient in itself to persuade us that the difference in race was a factor which he took into account."

[11]The grounds of appeal are, first that there was an error of law in that the Tribunal failed to distinguish racial discrimination, under Section 7(2) of the Race Relation Act 1976 , as to an agency worker from racial discrimination as to the Appellant's race. Section 7 (2) makes it:

"unlawful for a principal…to discriminate against a contract-worker."

[12]Pausing there, that requires a finding of discrimination. Discrimination is defined as treating another less favourably than the perpetrator treats, or would treat, other persons on racial grounds. It involves, therefore, both less favourable treatment and that that less favourable treatment is occasioned upon racial grounds. Since, as a matter of fact the Tribunal found that there was no less favourable treatment, and that even if there had been it was not on racial grounds, there is no force in the first ground of appeal

[13]The second ground of appeal, in essence, repeats the suggestion that there is some distinction to be drawn on the facts of the present case between an agency worker and a person discriminated against on the grounds of race. Accordingly, the answer is the same.

[14]The third ground deals with the suggestion that the Tribunal erred in law when it failed to take into account or give due weight to the Appellant's evidence that she had repeatedly complained about her entitlement to rest and breaks to the Respondent, but to no avail. The evidence was looked at and it is plain that the decision not to have breaks was one for the Appellant alone and was not by way of imposition of any unfair regime upon her by her principal.

[15]The fourth ground complains that the Tribunal failed to draw necessary inferences in respective race discrimination from a recorded decision that the Applicant's complaints would not be taken further due to the commercial necessity of keeping the costs of the contract down. Again, this falls foul of the same factual matters to which we have already referred.

[16]Next, the grounds 5, 6 & 8 (in part) relate to whether or not the decision of the Tribunal is vitiated by the fact that Miss Sian Hughes acted on behalf of the Respondent. She, it is said, was a lay member at the Croydon Employment Tribunals. It has turned out that she is a lay member; however, this is not at Croydon, it is at Southampton.

[17]There is no sustained suggestion that she spoke to the Chairman of the Tribunal on the hearing date in the restaurant. The most the Appellant can allege is that there was a possibility or probability that they spoke on that occasion. This is denied by the Chairman. It is, in any event, influenced by the suggestion that Miss Sian Hughes was a member of the Croydon Tribunals which, as we have indicated, she was not and accordingly there is no force in it which justifies any further hearing.

[18]Finally, it is suggested, in ground 7, that the Employment Tribunal failed or refused to award the Appellant an effective remedy. This, it seems to us, is consequential upon its findings, that there was no race discrimination. If there is no discrimination, there can be no remedy for it. It follows on all these grounds that the case must be dismissed.

[19]We should add for completeness that representatives on behalf of the Appellant have written to this Tribunal and have sent a fax dated 10 July 2002 (which is yesterday), to say that Counsel who had been instructed to appear has received new instructions and is not able to appear on behalf of the Appellant.

[20]They indicate that, in the event that another Counsel becomes available they would be most grateful to send him or her to assist this Tribunal. They say that they have fully explained the position to the Appellant, who has reluctantly agreed the hearing can proceed in her absence based on the information placed before the Employment Appeal Tribunal. They have sent us in addition a two-page fax which contains the Skeleton Argument.

[21]In essence, that Skeleton Argument, which we have considered, raises the issues to which we have already referred, makes specific reference to the Working Time Directive , the local implementation of which is the Working Time Regulations guaranteeing an entitlement to breaks during work.

[22]We, having given consideration to that material as we are bound to do where we hear a case in the absence of a party, have concluded that it made no difference to the conclusion to which we would otherwise have come, and accordingly this appeal, though in the absence of the Appellant, must be and is dismissed.