Appeal No. EAT/1073/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26 April 1995

	Before

	MR JUSTICE MORISON

	LORD GLADWIN OF CLEE CBE JP

	MR K M YOUNG CBE

MS C CARTER	APPELLANT

LONDON BOROUGH OF HARINGEY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J FARQUHARSON
(Of Counsel)
Messrs Wilson & Co
697 High Road
Tottenham
London
N17 8AD

For the Respondents	MR PITT-PAYNE
(Of Counsel)
Borough Solicitor
London Borough of Haringey
Civic Centre
High Road
Woodgreen
London
N22 4LE

	MR JUSTICE MORISON   This is in many ways a very sad case.  Miss Carter, whom we shall call the Appellant, was employed by the London Borough of Haringey, ("the Council") as a typist in the Legal Services Typing Pool.  She commenced her employment on 7 August 1978 and was dismissed on 21 August 1991.  She claimed that her dismissal was unfair and presented an application to the Industrial Tribunal on 28 October 1991.  That application was, by leave of the Tribunal, amended to include an allegation of unlawful racial discrimination contrary to the Race Relations Act 1976.

	By a unanimous written decision which was sent to the parties on 5 November 1993, following a two-day hearing on 21 and 22 October 1993 before the Industrial Tribunal, which the Appellant did not attend, the Appellant's applications were dismissed.

	Following that decision the Appellant completed two Notices of Appeal herself, each of them received by the Employment Appeal Tribunal on 22 November 1993.  Each of them is signed by the Appellant and dated 18 November 1993.

	In the first of those Notices of Appeal she asked for a doctor's report and asked that she should be seen by a psychiatrist so as to be able to obtain ill-health retirement.  In the second of those Notices of Appeal she expressed dissatisfaction with the Tribunal dealing with her case on the basis of racial discrimination or as she put it, "on racial grounds".  She said this should not have been so.  She said that she only amended her IT1 as a result of advice from the Commission for Racial Equality, who suggested to her that she made the amendment to which we have referred.  

	A further Notice of Appeal was lodged on the Appellant's behalf on 15 December 1993 and the President of the Employment Appeal Tribunal thereupon directed that the appeal should be set down for a full hearing and thus the matter comes on before us today.

	The general background facts may be shortly stated.  It would appear that for about 12 years the Appellant's employment with the Council had been relatively uneventful.  According to the Council, problems began to emerge in 1990.  In the Autumn of the previous year the Legal Services typing pool had been transferred to the same building as the Legal Services Division.  Previously the two functions had been located in different buildings.  From 1990 culminating in her dismissal, according to the Council, there had been constant confrontation between the Appellant on the one hand, and her colleagues' managers and principally the Borough Solicitor, Ms Lomas, on the other.  In essence, she was given a first written warning following a disciplinary hearing on 24 August 1990 for telling a colleague to "fuck off".

	At a disciplinary hearing convened on 10 October 1990, the Appellant was found guilty of, and I quote "interfering with a potential witness at a disciplinary hearing" by abusing him, for which she was given a second written warning.  Two further disciplinary hearings in relation to incidents allegedly taking place in September 1990 and February 1991, were adjourned pending the Appellant's application made to an Industrial Tribunal alleging that she was being unlawfully discriminated against by her employers on the grounds of her colour.  That application came before an Industrial Tribunal whose decision is dated, I think, 10 June 1991 and was dismissed, the Industrial Tribunal taking the view that the Appellant was behaving in what they described as "a disruptive and unreasonable manner".  

	On 11 June there was a letter to the Appellant suggesting that she saw the Council's doctor, and two days later she received a letter from Ms Lomas which proposed that the two outstanding hearings should be convened together so that all the outstanding matters could then be dealt with at the same time.  

	As was her practice the Appellant did not attend the hearing on 3 July 1991, although she had been notified of it, advised to attend it, and was in fact in the building when it took place.  The conclusion of the disciplinary hearing was that the Appellant was guilty of five acts of misconduct, the first three of which merited a third and final written warning.  The outcome of the hearing and the warning were set out in a letter delivered to the Appellant the following day.  

	It was becoming plain to Ms Lomas that the Appellant was in need of some kind of help to enable her to control her behaviour.  She was invited to attend the Council's Occupational Health Unit on 29 July, but did not do so and was therefore told to attend yet another disciplinary hearing fixed for 21 August.  

	The Appellant made her own appointment to see the Unit and did so on 13 August.  She did not attend the hearing on 21 August, at which a decision that she should be dismissed was taken.  The hearing was chaired by the Council's Race Equality Officer and the view was taken that although the Appellant had voluntarily gone to the Occupational Health Unit, her refusal to make the appointment when required by her employer, merited dismissal in all the circumstances of the case.

	The Appellant exercised her right of appeal against that decision and instructed her union representative to look after her interests.  He took the view that she was best advised to seek from the Council an early retirement from her employment on medical grounds.  This suggestion was acceptable to the Council and the hearing was adjourned so that the necessary reports could be obtained.  

	Ms Lomas wrote to the Appellant asking her to attend the Occupational Health Unit for a report on her mental health.  The Appellant took exception to this and it made her, in her own words,"furious".  The Appellant then completed her IT1 the following day and the Appeal Panel was reconvened and in January 1992 it confirmed the dismissal.  

	As the Appellant did not attend the Industrial Tribunal hearing of her complaint of unfair dismissal and unlawful discrimination, the Industrial Tribunal proceeded to consider her complaint in her absence, as they were entitled to do.  In her second Notice of Appeal, as we have already indicated, the Appellant complained that the Industrial Tribunal had dealt with her case on racial grounds when they should not have done so.  

	It is now said, on behalf of the Appellant, that the Industrial Tribunal did not properly consider the allegation of unlawful racial discrimination because it was, or comprised, a complaint of unlawful discrimination in the sense of unlawful victimisation.  It is said that the Industrial Tribunal should have considered the question of victimisation but did not do so.  It is said that the Appellant's IT1 showed that she was complaining of conduct which occurred the very day after the previous Industrial Tribunal hearing, and it could be inferred from that that the Appellant was complaining of victimisation contrary to Section 2 of the Act.  Victimisation is a form of racial discrimination and it is said the Industrial Tribunal should have considered it even if it was not expressly raised.  

	What the Industrial Tribunal said in its decision was this, and I quote:

		"22.  The Tribunal can find no indication of race discrimination in the way in which the Respondent treated the Applicant.  We are satisfied that had a white employee conducted herself in the same way as the Applicant had done, she would have been treated in the same way by Ms Lomas.

		"23  We considered the record of the Applicant's conduct.  We find that the Respondent had reasonable grounds to believe that the Applicant was guilty of all the allegations made against her upon which they reached the decision to give her written warnings.  The Respondent carried out their own disciplinary procedures correctly.  The Applicant knew precisely what allegations were being made against her.  She was given the opportunity to have a representative present at the disciplinary hearings.  She had the opportunity to offer an explanation if she so wished, for her alleged conduct.  We find as a fact that the Respondent acted reasonably in reaching the decision to dismiss the Applicant and that the penalty of dismissal falls within the band of reasonable responses available to a reasonable employer".

	What is said in the Solicitor's Notice of Appeal is that the test for victimisation is to compare the way the alleged discriminator treated the Applicant with the way he would have treated another person in identical circumstances, save that that other had not done the protected act.  In this case, the protected act is the making and pursuit of the complaint of unlawful discrimination.  In other words, the test is designed to isolate as a motivating factor, the doing of the protected act in order to establish whether the doing of that act played a part in the treatment of the complainant.  It is said that the Tribunal did not ask themselves that question.

	In a succinct argument presented to us on behalf of the Appellant, Counsel asked three questions.  First, should the Industrial Tribunal have considered the complaint which was made as comprising a complaint of victimisation on the grounds that she had presented previously an unsuccessful complaint of unlawful discrimination.  He submitted that the answer to that question was "yes".  Secondly, he asked, did the Tribunal consider the question of victimisation and he submitted that the answer to that question was "no".  There is no reference to victimisation as such in the decision, nor is there any reference to the test which we have set out above.

	Thirdly he asked, did they consider a question of victimisation properly, if they considered it at all, and he submitted for the same reason, I think, that the answer to that question should be "no".  On the other hand, in an equally succinct argument, Counsel on behalf of the Council makes two submissions.  Firstly, that the question of victimisation on the grounds of race, was not raised either expressly or even implicitly in any material which was presented before the Industrial Tribunal.  

	It is submitted to us that on the material before the Industrial Tribunal they could have legitimately concluded that the only allegation of racial discrimination was an allegation of direct discrimination and secondly, that the questionnaire, which was before the Industrial Tribunal, and with a copy of which we have been provided, makes it clear that the reason why she alleges she was dismissed was not because she had brought the Industrial Tribunal proceedings, but rather, and I quote, "you decided to sack me because I have commenced County Court proceedings against you for false imprisonment and electric shock", there being no suggestion that such proceedings constituted a protected act within the meaning of Section 2 of the Race Discrimination Act.  

	Secondly, Counsel said, that if he was wrong about that, and that there was material which should have provoked the Tribunal into investigating the question of victimisation, they adequately dealt with it in paragraphs 22 and 23 of their decision.  In effect, what the Tribunal decided was that there was a bona fide disciplinary dismissal on the grounds of misconduct.  That being so, it negatived any question of there being a dismissal by reason of race, whether by reason of the bringing of proceedings in the past or by reason of the Appellant's colour in any event.

	It seems to us that the Industrial Tribunal cannot be criticised for the way that they dealt with this case.  They approached their task, as it seems to us, in accordance with the statute and took considerable trouble in the Appellant's absence, to investigate a possible claim of racial discrimination.  Although they did not deal with the question of victimisation expressly, we have no grounds for believing that they overlooked the question completely.  The burden of proof in such a case lies upon the Applicant and the Tribunal were deprived of the benefit of oral representations or evidence from her.  

	As we read their decision, the Industrial Tribunal were satisfied that the disciplinary procedures were properly invoked after the other Industrial Tribunal case was over.  There was no reason in fact or law why the employer should not have behaved as it did merely because of the previous complaint.  There is nothing in the papers to suggest unlawful discrimination, that is victimisation.  We cannot ignore the fact that the Appellant herself disavowed any suggestion in her second Notice of Appeal and in our view, in effect, disavowed it in the questionnaire in the passage to which I have referred.

	Accordingly, it seems to us that despite the argument that has been cogently put forward on behalf of the Appellant, this appeal must be dismissed.