Appeal No.	 EAT/790/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS T A MARSLAND
MRS D M PALMER

MISS M HOLT	APPELLANT

KENT COUNTY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MISS HEWSON
(of Counsel)
Ms Sue Willman
Hammersmith & Fulham Law Centre
142-3 King Street
London 
W6 0QU	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether there is an arguable point of law raised by the appellant in this case in her Notice of Appeal, and for this purpose we look at the amended Notice of Appeal.

	The decision against which this appeal is brought is that of an Industrial Tribunal held at Ashford following eleven days of evidence, and their decision was sent to the parties on 4th June 1996. Although substantial criticism has been made of the general approach of the Industrial Tribunal, we have to say that we do not accept that general criticism. It seems to us that in terms of its structure the decision is well thought out and well presented.

	The background facts emerge from the decision itself, and for the present purposes may be very shortly stated. The appellant was engaged by the Kent County Council with a view to her training to become a social worker. It was made clear in her contract of employment that she was required to pass the necessary qualifications and that if she did not qualify they reserved the right to terminate her employment or place her in a post commensurate with her unqualified status. Accordingly she set about seeking the qualification, which involved theoretical and practical work using the Christ Church College as the educational body which was to provide her with the diploma if she satisfied the examiners at that college.

	During the course of her employment, a question arose as to whether as part of her practical training she should be entitled or allowed to belong to the Family Therapy Team, which is a specialised unit working in its own time dealing with very serious mental illness. A decision was taken that she was not suitable to join that team. The tribunal note:

“... because they felt that her skills were not up to the required standard.”

	The original incident giving rise to complaints of race discrimination, so far as the tribunal were concerned, arose out of an incident which occurred on or about January 1993. They refer to the fact that there was a conflict of evidence between the appellant and a witness called by Kent County Council, the tribunal preferred the appellant’s evidence on this point and concluded that the employee in the conversation did say “the ability to speak Irish is a waste of time”. The appellant is Irish and an Irish speaker, and, as such, complains that she has been discriminated against on the grounds of her race and was unfairly dismissed in the circumstances which I will describe.

	The tribunal also noted that the same employee of the Kent County Council took the view that she was unsuitable to join the Family Therapy Team and that one of the reasons why was because she could not take personal criticism, and used as an example the offence which she showed when someone remarked that the ability to speak Irish as a waste of time.

	The repeat placement to which she was subjected was due to end on 11th June 1993, but the employers decided that a second opinion should be obtained from another person, a Mrs Annie Harrison. There had previously been a complaint made to a Miss Leonard about the comment to which I have referred, who misread it as I think the tribunal accepted, and did not understand it to be a complaint of race discrimination. Miss Leonard herself, after the complaint was made, had recommended that that applicant should fail the placement, but as I have indicated there was also the second opinion taken by Mrs Annie Harrison who was of the view that she should pass that placement. Accordingly a judgment had to be made by some higher authority as to whether she should pass or not.

	The Assessment Board met on 1st October 1993. It included two external assessors, and the tribunal noted that the practice teacher, Avril Leonard, did not take part in the decision-making concerning the applicant. There was an appeal to the Academic Board, which is a further independent body comprised of people who have nothing to do with her case. The Appeal Panel concluded that the decision of the Assessment Board should be upheld.

	On 21st January 1994, the Head of Corporate Personnel on behalf of Kent County Council, wrote to the applicant’s union explaining that her dismissal was a result of her failure to complete the appropriate course leading to her qualification as a professional social worker. As was her right, she made a complaint to the Central Council, which has overall responsibility for training courses such as this, and that complaint was rejected by the Central Council. They concluded, having completed their own investigations, that the Appeals Panel and the Assessment Board had acted properly. That is recorded at paragraph 24(66) of the decision.

	In relation to the dismissal, having written the letter of dismissal, a complaint was made of unfair dismissal. The third element in this case was the grievance that the appellant raised in the course of her employment. She consulted her union, UNISON, on 6th July. She made various complaints. At the beginning January 1994 she was still being advised by UNISON. The Kent County Council also arranged for a consultant, a personnel consultant, to advise her about her grievance with the Kent County Council. That enabled her to pursue a grievance against the Authority. It is to be noted that after that person had been instructed yet another further personnel consultant was offered and accepted at the Kent County Council’s own expense to enable her to pursue her grievance against the Authority. That is dealt with at subparagraph 62. At subparagraph 75 the tribunal record the fact that on 5th September 1994 the Authority wrote confirming the outcome of the grievance hearing. The conclusions were stated to be firstly that:

“There was no evidence of gross negligence, misconduct or discrimination by management on the evidence of what we heard and it became absolutely clear that your case was gravitating towards a submission that you should have been passed on the Diploma in Social Work by Christ Church College. As previously explained to you this is outside the locus of the County Council and has in any event been the subject of a separate unsuccessful appeal by you to the College.
With regard to your discrimination allegations, you have in any event submitted an Industrial Tribunal application and these matters were in some degree sub-judice. With the concurrence of the Director of Social Services I therefore decided there was no point continuing your hearing into a second and possibly third day as it would have been impossible, on the evidence submitted, to have satisfactorily resolved the matter or found for you.”

The letter concluded by confirming that her contract of employment ended with effect from 31st August 1994. Subsequently, Mr Cheatle wrote a further letter to the Head of Corporate Personnel in which he made a reference to the deep seated paranoia from which he believed the appellant suffered.

	In an able argument presented on behalf of the appellant, it is said that the whole approach of the Industrial Tribunal on the question of discrimination was flawed. It is pointed out that they have not directed themselves expressly to the decision in King to the five guidance provisions given Neill LJ in that case. Accordingly, they appeared to have, so it was said, simply accepted at face value that which the employers were saying without digging deeper underneath to see if inferences should properly be drawn. A powerful complaint was made to us about the employers’ readiness to make comments about the mental stability of the appellant. It was submitted to us that this was destructive; that it would have been destructive of her future prospects with the Authority, and accordingly it is said that the Authority should have been called on to justify their conclusions and that in the absence of any justification the Industrial Tribunal should have been prepared to draw the inference that they were motivated by race.

	We understand the criticism which is made about the comments about her mental health. We for our part do not consider that employers should say any comments about somebody’s mental health without having evidence from a doctor to support it, and we can quite understand that such comments are capable of being extremely destructive. Furthermore, we accept Ms Hewson’s submission that the Industrial Tribunal were wrong to comment upon their own perception of the applicant’s mental health. There was no medical evidence before them on which they could have formed their view; they were not qualified to make such judgments; making such judgments was not what tribunal are there to do. In any case, the picture which a tribunal has of a person appearing before them is derived solely from their perception of him or her as an advocate/witness. The behaviour of a person unused to such a role is unlikely to be a reliable indicator of their normal persona or mental well being. On the other hand, it seems to us that the Industrial Tribunal cannot be thought to have simply accepted the case for the employer. They have recorded between paragraphs 25 and 29 with great care the submissions which were made to them by the appellant’s representative. They have also preferred the appellant’s evidence to that of the respondents’ witness on a crucial issue as to what was said in relation to her Irishness. It seems to us that there is no reason to think that merely because they have not mentioned in their decision the case of King that they are to assumed not to have paid attention to the guidelines which are so well known that they barely need to be referred to. 

	As we said at the outset, it seems to us to be  a well-reasoned decision.

	On the question of the dismissal. What the tribunal held was this. 

“43		During the course of this hearing the Applicant has made reference to what she perceived to be various anti-Irish incidents. These are set out in paragraph 24(80). It is significant that the Applicant did not make specific complaints at the relevant times and, as in the case of the remark referred to at paragraph 24(26), the Applicant herself did not at the time, appear to take the remarks seriously. In the hustle and bustle of the workplace there is a dividing line to be drawn between good humoured banter and racially abusive remarks.”

Pausing there, it seems to us that that was a conclusion which they were fully entitled to arrive at. Of course the mere fact that a complaint is not timeously made is not of itself grounds for thinking that the substance of the complaint did not occur. But it seems to us that the whole context can be taken into account by the tribunal and that is precisely what they have done. 

	In paragraph 44 they find:

“... that the remarks between 1990 and June 1993 were separate remarks by different individuals. We have had no evidence that the Applicant suffered any detriment as a result of any of the remarks and we do find that the first Originating Application was presented ... all the remarks are considerably outside the time limit contained in section 68 ... No evidence has been presented to us as to why it would be just or equitable to extend the time limit, and we see no reason so to do.
45		The Applicant’s first complaint to us was that she failed to be appointed to the Family Therapy Team, and this was because of Sue Catmur’s anti-Irish attitude. We do not accept the Applicant’s evidence on this point. We find that the reason the Applicant failed to get on the Family Therapy Team was because the Applicant was perceived not to be suitably qualified. The Family Therapy Team made that judgment and in doing so they did not discriminate against the Applicant on the ground of her race.”

Again, it seems to us that that was a conclusion which they were fully entitled to arrive at on the basis of the evidence before them. They continue:

“46		The other specific complaint made by the Applicant is that Avril Leonard herself did not pursue vigorously the Applicant’s complaint about Sue Catmur’s remark. It may be that Miss Leonard did not deal with the matter as expeditiously as she should have done. However, the reason for that was not in any way due to race discrimination on the part of Miss Leonard. Miss Leonard has in fact hoped to hold a meeting between all three individuals, but her attempts to arrange such a meeting were thwarted by the Applicant when she walked out of the meeting she was having with Miss Leonard. In any event, we find that the incident involving Miss Leonard was one act. [We think they mean one-off act.] It was not a continuing act. ... We find that the Miss Leonard incident was also presented outside the time limit.”

Again, it seems to us that that was manifestly a decision which they were entitled to arrive at on the evidence. We do not accept that there is any substance or merit in the time limit point which has been raised before us. It will have been noted from the paragraphs to which I  have made reference that the tribunal considered the complaints on their merits and only added as a makeweight their conclusion that these complaints were out of time.

	As to unfair dismissal, it was said to us that the Industrial Tribunal failed properly to have regard to the fact that she was kept on on an adhoc basis, in other words she was kept dangling on a string, and furthermore, the tribunal did not take into account the fact that they themselves by their own actions may have thwarted her attempts to obtain the necessary qualifications which was the reason for dismissal relied on by the employer. It seems to us that that submission is simply not open on the findings of fact made by the Industrial Tribunal. Paragraph 53 of the decisions reads:

“53		We find that the KCC did provide suitable training facilities for the Applicant and did provide suitable practice placements and practice teachers. Once the Applicant had failed her course, the KCC did attempt to find unqualified work for her, but nothing suitable was available and in any event the Applicant had indicated that she was not particularly keen on unqualified work. There was in fact no legal requirement on the KCC to find alternative work for the Applicant, because of the Applicant’s contract ...”

That was a conclusion that they were manifestly entitled to arrive at on the evidence before them, and there is no suggestion that they have misconstrued the contract of employment to which they made reference.

	Accordingly, at the end of the day, we are wholly unpersuaded that there is anything wrong at all with the decision of this Industrial Tribunal, or that they have somehow missed points which would have led any other tribunal to the conclusion that the way the appellant had been treated in this case was on the grounds of race, or that she had been unfairly dealt with. We think that this is a very clear case where there is nothing remotely arguable in the appeal which has been lodged before us. Accordingly, the appeal will be dismissed.