Appeal No.	 EAT/375/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 June 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MR S M SPRINGER MBE

MS N HUSSEINI	APPELLANT

CAMDEN ITEC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS K PATEL
(Solicitor)
Nucleus Legal Advice Centre
298 Old Brompton Road
London  SW5 9JF

	JUDGE PETER CLARK:	By an Originating Application presented to the London North Employment Tribunal on 12 February 1998, the Applicant complained of unlawful sex discrimination on the part of her former employer, Camden ITEC, its then Chief Executive, Mr Goss, and a fellow tutor, Mr Bellalem.  The nature of her case was that she was harassed by Mr Bellalem and that when she complained of this, no action was taken.  Instead, she was forced to resign.  The claim was resisted.

1	The matter came before a Tribunal chaired by Mr J P Coman on 6 May and 14-15 December 1998.  By a reserved decision with extended reasons promulgated on 22 January 1999, the Tribunal dismissed her complaint.  Against that decision she now appeals.  

2	The Tribunal heard from the Applicant and three supporting witnesses on one side, and Messrs Goss and Bellalem and Miss Lander (the Applicant’s line manager) on the other.  There was a sharp conflict of evidence.  The Tribunal accepted evidence given on behalf of the Respondent and roundly rejected that of the Applicant and her witnesses.

3	The facts, in summary, as found by Tribunal, were these.  Camden ITEC is a charity providing training services to the unemployed.  The Applicant and Mr Bellalem were recruited as part-time tutors in November 1996 to deliver a course for refugees.  The first course ran from December 1996 until March 1997.  The relationship between the two was good.  Prior to their appointment the Applicant had been a student of Mr Bellalem.  A close relationship developed between them during this first course.  It ended during the second course.

4	In June 1997 Mr Bellalem was appointed a full-time tutor.  He enjoyed facilities, such as an office of his own, not made available to Applicant .  Her attitude towards him became resentful and antagonistic and the working relationship between them became strained.

5	In August 1997 the Appellant complained to Mr Goss when Mr Bellalem was praised by a student at the end of the second course and she was not.  Mr Goss investigated the complaint and found that Mr Bellalem had helped that student prepare a speech of thanks.  Mr Goss admonished him for that.

6	Following that complaint, Mr Goss decided that the Applicant and Mr Bellalem required closer management supervision.  He deputed Miss Lander to act as their line manager.

7	In September 1997 Mr Bellalem told Miss Lander privately that the Applicant had assaulted him the previous month.  The incident had been recorded on a tape, which he played to Miss Lander.  At that stage he indicated that he wished to take it no further.  Miss Lander informed Mr Goss who, in light of Mr Bellalem’s wishes, decided then to take no action.

8	The Applicant made disparaging remarks about Mr Bellalem to Miss Lander, saying that he was an Algerian spy, that he had murdered someone, that he had a gun, that he was a terrorist and was very dangerous.  Significantly, so the Tribunal found, she made no complaint of sexual harassment.  Indeed, so the Tribunal found, she never did during the employment.

9	In November 1997 a team building exercise, attended by the Applicant and Mr Bellalem, took place at Dunford House, West Sussex.  The event went well and afterwards the Applicant wrote to Mr Goss on 7 November 1997, expressing contentment with her work and a commitment to continue in the employment.  There was no complaint about Mr Bellalem or his conduct towards her in that letter.

10	On 12 November 1997, Mr Bellalem complained to Miss Lander that the Applicant had threatened him again.  She was summoned to a meeting with Mr Goss and Miss Lander on 14 November.  She was not told that it would be a disciplinary hearing, which the Employment Tribunal found to be poor industrial relations practice, caused by Mr Goss’ lack of experience in such procedures.  At the meeting, so the Tribunal found contrary to the Applicant’s case, the Applicant admitted threatening and assaulting Mr Bellalem and made no attempt to defend her actions.  She did not then complain of any sexual harassment by him, or indeed, harassment of any sort.  She was offered the option of resigning or being dismissed.  She chose the former option and signed a letter of resignation prepared by Miss Lander.  Her employment thereupon terminated.

11	In December the Applicant met Mr Goss and sought reinstatement in her old post.  On that occasion she complained that Mr Bellalem had a gun, was an Islamic Fundamentalist and an Algerian secret agent.  She made no complaint of harassment against him.  That complaint was raised for the very first time in her Originating Application.

12	The Tribunal directed themselves as to the law by reference, among other cases, to Strathclyde Regional Council v. Porcelli (1986) IRLR 134.  They accepted that treatment of a woman in an employment context containing a significant sexual element was to be treated as less favourable treatment on the grounds of her sex.  However, on the Tribunal’s findings of fact, the case of sexual harassment, and consequent inaction by management, was simply not made out.  In these circumstances the complaint failed.  It was not necessary to go on to consider the statutory defence advanced by Camden ITEC under section 41(3) of the Sex Discrimination Act 1975.

13	In this appeal Miss Patel who appeared on behalf of the Applicant below submits that the Tribunal’s conclusion that the Applicant had not discharged the burden of proving discrimination under section 1(1)(a) of the Act, was a conclusion to which there was no evidence.  During the course of submissions this morning, Miss Patel has relied upon a principle contained in the judgment of the Court of Appeal in North West Thames Regional Health Authority v. Noone (1988) IRLR 195, and in particular this passage.

“As there is not often direct evidence of discrimination complaints of discrimination more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts.  If there is a finding of discrimination and a difference of race and then an inadequate or unsatisfactory explanation by the employer to the discrimination, usually the legitimate inference would be that the discrimination was on racial grounds.”  

14	That principle applies in a case in which the primary facts disclose a difference in treatment and a difference in race or sex.  It would then be appropriate for the Tribunal to look at the explanation given by the employer and if it finds that explanation for the differences to be inadequate, then it may infer that discrimination was on racial grounds.  

15	However, that is not this case on the Tribunal’s findings of fact.  Had the Tribunal accepted the Applicant’s evidence and that of her supporting witnesses, there is little doubt that her complaint would have succeeded.  Her difficulty was that it was flatly rejected by the Tribunal, in favour of the version advanced by the Respondent’s witnesses.  That account was that there was no harassment of the Applicant by Mr Bellalem and no complaint of harassment was made to the Respondent’s management.  On those findings of fact, the case simply could not succeed.  It follows that the Tribunal were entitled in our judgment to reject this complaint, and further, that the alternative contention on behalf of Camden ITEC that they could rely on the statutory defence under section 41(3) became immaterial.

16	In our view this appeal is an attempt to retry the factual questions.  It is misconceived and it must be dismissed.