Appeal No.	EAT/1039/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 March 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR A C BLYGHTON
MR J C SHRIGLEY

MISS E DONELIEN	APPELLANT

(1) SOUTH BANK UNIVERSITY STUDENT UNION 	RESPONDENTS
(2) THE EXECUTIVE STAFFING COMMITTEE (3) MR PAT HANNA	

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING  - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON
and
MS N OKOREFE
(of Counsel)

	JUDGE BYRT QC:	This is a preliminary hearing in relation to an appeal from a decision of the Industrial Tribunal sitting at London (South). Their decision was promulgated on 23rd June 1997 and by their decision, the tribunal held that the applicant’s claims of racial discrimination and victimisation be dismissed. Miss Donelien appeals that decision.

	I do not think I need recount the facts in any great detail. The position is that Miss Donelien was employed by the Student Union for Southbank University for a limited period of time between September 1995 and July 1996. Her contract came up for review in the Spring 1996 and she went into that review with a strongly supportive report by her manager, Mr Hanna. When the Staffing Committee which conducted the review invited Miss Donelien in to meet them for the purposes of the review, they of course had considerable knowledge about her performance because they were all members of the same union. They had formed an adverse view of her performance during the period of time she had been acting as an advice worker. They had Mr Hanna’s report which was favourable. The result was that the Staffing Committee commenced the review by strongly criticising Miss Donelien’s performance in a way they thought appropriate. This undoubtedly dismayed and caught Miss Donelien by surprise, because she had a manager who had delivered a wholly favourable report. It became quite apparent and should have become apparent to the Staffing Committee that Miss Donelien thus caught by surprise because Mr Hanna had made no criticisms of her performance during the period of some six or seven months during which she had been working under him. 

	From then onwards everything went from bad to worse. Miss Donelien quite plainly was not properly equipped to cope with the bucket of water thrown at her, metaphorically speaking, by the Staffing Committee. She was unco-operative, as the Industrial Tribunal found; she was rude; and evoked all the very worst responses from the Staffing Committee. 

	Matters did not improve, following that hearing on 8th May 1996, until the time she finally left her job on 15th July 1996. It culminated in a most unfortunate incident on the last working day of her employment, namely 12th July 1996, when it was suspected by the Executive Staffing Committee of the Union that she had broken into the offices, overnight, of a member of that Committee. They sought to interview Miss Donelien about that on 12th July. They did not tell Miss Donelien, so she says, the reasons why they wanted to interview her. She was full of apprehension and again, once more, she put up her defences and refused to co-operate. She would not go in to the room to be interview by them. The result was that the Executive Staffing Committee responded with vigour and arranged for Miss Donelien to be escorted from the premises, never to return.

	Allegations of racial discrimination have been made by Miss Donelien. The basis of her claim is that Mr Hanna really was the person principally responsible for all her troubles. He had been her manager. He had at all times approved of her performance and had never raised any criticisms whatsoever. Eventually, he accepted before the Staffing Committee that he had been a poor manager, he kept no personnel records, and had raised no criticisms at all on Miss Donelien’s performance. He admitted all that. Yet, Miss Donelien says, when it came to the crunch, Mr Hanna had his contract confirmed, he got a salary increase, whereas Miss Donelien lost her job. She says that Mr Hanna was the comparator. She says she was treated differently because he was white and she was black.

	The point raised on behalf of Miss Donelien by Ms Okorefe is this: It is not plain from the Industrial Tribunal’s extended reasons at paragraph 16 as to whether the tribunal did or did not accept Mr Hanna as the appropriate comparator. If they did so, they do not give any explanation as to why they found the employers had treated him differently from Miss Donelien. 

	We think that this is a gap in the extended reasons which raises a point of law as to whether they gave their minds to this particular issue in coming to the conclusion that there was no racial discrimination.

	There is a second aspect and that is of victimisation. We take the view that they could not really come to a proper conclusion about this unless they had come to a satisfactory conclusion about the allegations of racial discrimination. For the reasons I have already given, we are not satisfied that they have given their minds to the appropriate issue on the discrimination aspect. We also feel it is open to argument also before the full tribunal as to whether they have given their minds appropriately to allegations of victimisation. For those reasons we think that Miss Donelien has a point of law which should proceed to a full hearing of this tribunal. Accordingly, we give her leave so to argue it.

	We think that it is appropriate that the Chairman of the Industrial Tribunal should be invited to extract from his Notes of Evidence those parts which he thinks deal with the issue of the comparative positions of Mr Hanna and Miss Donelien, so that when this matter comes back for a full hearing before this tribunal, this tribunal will be able to see the evidence upon which the Industrial Tribunal acted in coming to the conclusions that they did.