Appeal No. EAT/827/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13th July 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MR S M SPRINGER MBE

	MISS D WHITTINGHAM

MISS P S DEMPSEY	APPELLANT

THE NATIONAL ASSOCIATION OF BOYS CLUBS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R ALOMO
(of Counsel)
Brixton Law Centre
506 Brixton Road
London SW9 8EW

For the Respondents	MR C WALKER
(of Counsel)
Messrs Parrys
63 Oxford Street
Whitstable
Kent
CT5 1DA

	MR JUSTICE TUCKEY:   This is an appeal from the decision of the Ashford Industrial Tribunal following a hearing which took place on 27th and 28th June 1994. Their unanimous decision was that the applicant, Miss Pauline Dempsey, had not been discriminated against on the grounds of her race, and they dismissed her application.

	Miss Dempsey was Irish. She was employed by the National Association of Boys Clubs, which is a charity, as the secretary to a Mr Sowden. She was one of a staff of about 20. Her employment last for 11 months between 7th April 1992 and 31st March 1993. 

	Miss Dempsey's evidence to the Tribunal was that things had started off quite well, but over time she had begun to fall out with Mr Sowden and she began to be ostracised by other people working with her. People made jokes about her, referring to her Irish origin. This had led to her making a number of complaints which had not been taken seriously. This was denied by the respondents.

	All this was considered in great detail by the Tribunal. They found that where there was a conflict between the evidence given on behalf of the respondents and Miss Dempsey, they preferred the evidence of the respondents. And indeed there was a considerable conflict of evidence, because the respondents case was that she had not made any complaints of a racial kind until 23rd February 1993. The Tribunal found as a fact that there was no discrimination against her before that date.

	Turning to 23rd February, the Tribunal found that on that date the appellant asked for a meeting with a Mr Orbell, who was the Director of Development and Administration. It was then that she first complained of discrimination, saying that the real reason that the staff were all against her was because she was Irish and pro-Irish. It was not a very satisfactory meeting, but it concluded by Mr Orbell saying, that he would make enquiries with other members of staff about the complaint which the appellant had made. In fact, Mr Orbell was away from the office for two days following the meeting and there were other reasons why he was unable to make the enquiries which he had promised that week.

	His promise to make enquiries was however, overtaken by events. Because on 1st March 1993, the appellant wrote a letter of resignation, which was received by the respondents the following day. They accepted her resignation, saying that there was no need for her to work out her notice which was due to expire and the end of that month so, she did not return to the office.

	The events on and after 23rd February 1993 for reasons which we are not entirely clear about, were the subject of a separate allegation of victimisation against the respondents. The Tribunal dealing with that allegation at paragraph 43 of their reasons said:

		"43		So far as the claim for victimisation under section 2 is concerned, the applicant says that she raised a complaint about race. This was done on 23 February to Mr Orbell. The applicant says that she was victimised because of Mr Orbell's failure to deal with the complaint. In this context we have to ask ourselves if Mr Orbell's failure to deal with the complaint was itself due to racial motives. We find it was not. Mr Orbell, fully intended to deal with the complaints. He had not had time to do so during the latter part of that week. His failure to deal with the complaints was not racially motivated. We find that there was not victimisation contrary to section 2."

It is only against that finding that this Appeal is pursued.

	When the matter came before a preliminary hearing before Mr Justice Pill and two members of this Tribunal on 2nd November 1994, the matter was allowed to proceed to a full hearing. The appellant was then alleging that one of the respondents witnesses, (it is not quite clear who) had admitted in cross-examination that if the complaint of discrimination had been made by a black employee on 23rd February 1993, that would have been investigated straight away. So this formed the basis for a case that Miss Dempsey was treated less favourably. The respondents denied that any of their witnesses said any such thing, so the Court directed that the Chairman's Notes of Evidence should be obtained, although he made it clear that this did not imply a view that there was merit in the point which required them.

	The Chairman's Notes have been obtained. They contain no reference to any such admission by any of the respondents witnesses, and Mr Alomo who appeared for Miss Dempsey today, very realistically and properly did not pursue the appeal based upon that point. 

	However, he pursues the appeal on the basis that when addressing the complaint of victimisation, the Tribunal misdirected themselves in law by asking themselves the question whether Mr Orbell's failure to deal with the complaint was due to racial motives.

	The appropriate tests when considering a claim for victimisation under Section 2 of the Act, have been considered by this Tribunal in Aziz v Trinity Street Taxis Ltd [1988] ICR 534. They are helpfully summarised as applicable to this case in the respondents skeleton argument. To establish victimisation Miss Dempsey must show two things:  first that she was treated less favourably when compared with the treatment which would have been applied to persons who had not made a complaint of discrimination, as she had; and second, that the very dact that this was a complaint of racial discrimination influenced the respondents employee in his unfavourable treatment of her.

	We have great difficulty (as Pill, J, did when he held the preliminary hearing if we read his note correctly) in understanding how this really gives rise to a complaint of victimisation at all. We can well understand that it could amount to discrimination. But when one comes to victimisation and the first question: was the appellant treated less favourably when compared with the treatment which had been or would have been applied to persons who had not made the complaint, we find our difficulties. Because if one compares the position of Miss Dempsey, who complains she has been discriminated against with someone who has made no such complaint and the less favourable treatment relied on is a failure to investigate, one asks oneself the question if the other person makes no complaint, what is there to investigate? The answer to that must be nothing. And therefore we think that, although it is not expressed in so many words in paragraph 43, the Industrial Tribunal in finding as they did, in the final sentence of that paragraph, that there was no victimisation may well have had this point in mind. Even if they did not, it seems to us, that this is a point which we have to consider to see whether this really is a case of victimisation, and we are bound to say that Miss Dempsey's case fails the first test.

	As to the second test, did the fact that this was a complaint of racial discrimination influence Mr Orbell's failure to investigate it speedily. Mr Alomo lights on the passage in paragraph 43, "we have to ask ourselves if the failure was due to racial motives" and says that that is not the test. All that is required is that his failure to investigate speedily was influenced by the fact that this was a complaint of discrimination. Motive or intention is not to the point if, as a matter of fact, the racial character of the complaint influenced the decision not to investigate.

	This Tribunal has often said that it is not appropriate to examine and construe the reasoning of an Industrial Tribunal as if their words were statutes. The use of the word "motives" was we think, unfortunate, but if one looks at the whole of this decision, it is perfectly clear that what the Tribunal concluded was both at this time, and indeed in the earlier periods which were the subject of Miss Dempsey's complaints nothing that these respondents did was in any way influenced by racial factors, and specifically the failure to investigate this complaint over the week or so between its making and the receipt of Miss Dempsey's letter of resignation, was explained as the Tribunal made clear, simply by Mr Orbell's inability to find the time to do so, and not for any other racially influenced reason. That being so, despite the clear and helpful way in which Mr Alomo put his arguments before us, we do not think that there is anything in this appeal, and it must be dismissed. The plain fact is that, sadly, Miss Dempsey's employment did not work out. It is clear that there was a growing incompatibility between her and other members of the staff which led, as it inevitably was going to lead to her leaving this job.