Appeal No.	 EAT/968/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 October 1999

Before
HIS HONOUR JUDGE J ALTMAN
LORD GLADWIN OF CLEE CBE JP
MISS C HOLROYD

MRS O O ATIJOSAN	APPELLANT

LAMBETH SERVICE TEAM t/a TEAM LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR OGUNTIMOJU
(of Counsel)
Messrs Ogun
Solicitors
368 City Road
London
EC1V 2QA	

	JUDGE ALTMAN:		This is an appeal from the decision of the Employment Tribunal sitting at London (South) on 3 days in December 1998. It comes before us by way of preliminary hearing to determine whether there is a point of law such as to merit argument in full before the Employment Appeal Tribunal.

1.	The Appellant was employed by the Respondents.  She claimed unfair dismissal by reason of unfair selection for redundancy, unlawful discrimination on grounds of race and sex, and victimisation on the same grounds.  The Employment Tribunal upheld the complaint of unfair dismissal and dismissed the complaints relating to sex and race.

2.	The Appellant worked for Lambeth Council from 1990 until 1997.  She managed the catering services and ultimately became the contracts manager.  She joined the one year women leadership programme for women with potential in September 1996.

3.	A joint venture partnership took over the Council’s blue collar services in December 1996.  This was part of a private finance initiative but the Council remained part of the partnership.  Service Team Ltd was the other partner.  David Hayes was the Operations Director to whom the Appellant reported.  In February 1997 they met and Mr Hayes told of his informal management style and said he would have difficulty in working with anyone who liked writing things down.  The Appellant concurred with the informality of management, but said that she documented things as necessary.

4.	The Employment Tribunal identified a number of problems in the relationship between the two people in paragraphs 8 to 24.  These included acts by Mr Hayes which can be described as calculated to undermine the position of the Appellant, to belittle and humiliate her, to block her attempts to carry out her management role and to threaten her with losing her job if she objected.
 
5.	Mr Hayes was replaced by Mr Edmundson, but the Appellant was informed of this at a meeting with others present.  Mr Edmundson also said he did not want memos. In paragraphs 26 to 30 of their decision the Employment Tribunal made findings in relation to Ms Burke, the Project Manager who reported to the Appellant, which findings clearly amounted to the undermining of the position of the Appellant and led to her being by-passed and excluded from important decisions.  

6.	The dates which followed seem important. On the 4th July, at her request, the Respondents confirmed that they did not intend to delete her post.  On the 11th July the Respondent’s Board approved a re-structure of her departments, prepared by the Appellant with the addition of a further post which was to be ‘deleted’.  There were continuing problems over the position of Ms Burke in the course of which the Appellant and Ms Burke were referred to as ‘just acting like typical women’.  There were further acts of belittling of the Appellant.

7.	There was a re-structure in which the two directors’ posts were removed so that 2 of the Appellant’s fellow managers, who had reported to these directors before, now reported direct to the Board, whereas the Appellant’s Director remained in post and the Appellant felt she was being treated differently.  In paragraph 49 of their decision the Employment Tribunal found that Mr Eden and Mr Drummond were not dismissed for the reason that those senior to them had been.  They also found that 6 managers or directors, all white males, had been made redundant.

8.	On the 25th July the Respondents, through Mr Edmundson, confirmed that the Appellant’s post was safe and that she had nothing to fear.  The Appellant was then away on 2 weeks secondment to British Telecom.  This was followed by 1 week’s annual leave.  However she did not return on the 18th August, but remained off work as a result of stress which was medically certified.  On the 20th August the Respondents wrote to her asking her to contact them so she could be updated on the reorganisation.  On the 26th August the Respondents wrote a letter expressing concern about the cause of the stress.  Yet, on the 27th August the Appellant received 2 unsigned letters suggesting a meeting had been held with her, which had not, and telling her that her post had been ‘deleted’ and that she would be dismissed.  

9.	On the 28th August she returned to work to be told to go home, and it was confirmed that her post had been deleted, that no one else was to be made redundant, that no selection procedure had taken place, and that there was no criticism of her performance. 

10.	The Employment Tribunal concluded that Mr Walker, a witness for the Respondents, was not telling the truth when he maintained that there was consultation with the Appellant over redundancy. 

11.	When the Appellant presented her complaint to the tribunal the Respondents decided to pay only the minimum redundancy payment.  They had earlier offered an enhanced payment but withdrew it upon the Appellant’s issuing proceedings.  There was an issue as to whether this was differential treatment. 

12.	At the outset of the decision the learned Chairman set out the issues and in paragraphs 50 to 52 he set out the submissions of the parties.  Although the claim for victimisation was included it seems to us unclear as to whether in any of those summaries, this was identified as a live issue before the Tribunal. Having set out the relevant law, the Chairman set out the conclusions of the Tribunal.

13.	The Employment Tribunal concluded that the reason for dismissal was redundancy and that it was unfair because there was no consultation.  They considered ‘discrimination’ and set out their findings in paragraph 62:

“We have accepted and set out our findings of fact the humiliation and unreasonable conduct to which Mrs Atijosan was subjected by Mr Hayes, and then Mr Edmundson.  Mr Walker could and should have acted to remove it, but he failed to do so.  Looking at the position in the round, we are satisfied that there was a management culture in the Respondent’s organisation which favoured, for example, an absence of coherent written reasoning.  That was at odds with the attitude of Mrs Atijosan.  Her line managers were indeed prejudiced against her, but it was because of her ability and not her gender or race.  We find this to be a case such as that contemplated by the case law of Quershi and Zafar, where there is incompetent and unreasonable conduct from which the Applicant suffers, but which is not, we find, discriminatory on the grounds of sex or race.”

14.	There are 9 grounds of appeal.

(1). 	It is contended that as the Appellant’s ability was never in issue it was perverse to give that as the reason and that in the absence of any evidence of lack of ability the Employment Tribunal should have found that the prejudice was due to race and gender.  It seems to us that there are 2 fallacies in that argument.  First, it is clear from the findings of the Tribunal that it was her positive ability that led to prejudice.  In other words, they seem to have found that the incompetence of her managers led to their being unable to work with the Appellant’s outstanding ability.  They instance this in particular by reference to the managers’ inability to cope with written procedures and memos.  We find that there is evidence upon which the Tribunal were entitled to base their finding.  Secondly, it is true that, in the absence of evidence of a satisfactory explanation for prejudice, a Tribunal may infer discrimination on grounds of race or sex, without being accused of speculation.  However, a Tribunal is not bound in law to do so, and it would not be, in the context of this case, an error of law to fail to do so.  For both those reasons ground 1 does not raise an arguable point of law.  We dismiss it at this stage.

(2) 	It appears that in this ground the Appellant may be referring to the findings in paragraphs 59 and 60 in which the Employment Tribunal refer to the reasons given for the Appellant’s dismissal.  It seems that the Appellant criticises the apparently uncritical finding of the tribunal. The Appellant points to the fact that these matters were not alleged in the notice of appearance, that the alleged audit report was never produced and was replaced by the assertion that there was only an oral report, and that the first time that the Appellant heard of this explanation was at the tribunal hearing. We consider that there is an arguable point of law that it is not possible to discern from the decision as to what view the Tribunal took of the evidence, particularly bearing in mind the way that this explanation came before the tribunal, and the apparent shift of ground by the Respondents in arriving at it.  We direct that the Appellant confirm to the Employment Appeal Tribunal and the Respondent the actual passage in the decision of the Employment Tribunal to which reference is being made, for the reference to paragraph 49 in the current notice of appeal appears to be an error.

(3) 	The Appellant contends that the Employment Tribunal erred in failing to make any finding on the allegation of either sex or race victimisation.  The Appellant relates this to the substantial reduction of the enhanced redundancy payment to the statutory minimum due to the commencement of proceedings, but the allegation may also relate to the way in which the Appellant was dismissed.  We are puzzled by the apparent lack of a decision by the Employment Tribunal as to victimisation, although the factual basis for the allegation does seem to be referred to, for instance in paragraph 48.  Whilst there is reference in the originating application to victimisation, the decision of the Tribunal makes no reference to this head of claim in either the outline of the issues at the start of the decision or the summary of the submissions of the parties in paragraphs 50 to 52.    Accordingly, we direct that the apparent failure will remain a ground of appeal for the full hearing, but we also direct that the Respondents submit their response to the issue as to whether it formed part of the proceedings before the Tribunal not less than 14 days before the hearing of the appeal.  We also order that a letter be written to the Chairman of the Tribunal, asking him if he would check his notes and write to the EAT (letter to be distributed to the parties) as to whether victimisation formed part of the proceedings over which he presided.

(4) 	This ground relates to the finding in paragraph 64 of the decision that there was no less favourable treatment in relation that Mr Eden and Mr Drummond, who were managers like the Appellant, and whose jobs remained when the tier above them was removed.  The facts in relation to this are dealt with in paragraph 49.  The Appellant argues that the retention of a director above her, as opposed to the removal of director in relation to the others, resulted in less favourable treatment without any explanation by the Respondents, and that was not addressed by the Tribunal.  It seems to us that it is arguable that in ‘adopting the Respondent’s submissions on this issue’ the Employment Tribunal did not state their reasons in relation to less favourable treatment and we permit this matter to be argued in full before the Employment Appeal Tribunal

(5) 	This ground argues that there was no evidence on which a reasonable tribunal, properly directing itself on the evidence, could come to the conclusion that there was no unlawful discrimination in the light of the absence of consultation in contra-distinction to the way in which other employees were treated.  However, it is clear that the Employment Tribunal recognised that the Appellant was differently treated from her colleagues, but they attributed that to the Respondents incompetence in being unable to work with someone of her ability.  There was evidence upon which they could come to this conclusion and we find no arguable point of law on this issue.  We dismiss this ground at this stage.

(6) 	This ground effectively repeats ground number 5, but for different reasons, namely the alleged misapplication of the cases of Quereshi and Zafar. We accept that in this case the Employment Tribunal were dealing with a case of selective treatment rather than the failure of policy or practice, but for the reasons stated above it seems to us that there was evidence which entitled the Tribunal to reach the conclusion it did and we find no arguable point of law on this issue.  We dismiss it at this stage.

(7) 	Paragraph 59 deals with the reason for dismissal in relation to the claim for unfair dismissal.  This particular ground of appeal relates to the single finding of fact in that paragraph that there was an incentive to save costs by dismissing the Appellant.  This ground of appeal relates to the retention of Mr Eden and Mr Drummond.  However the need to reduce costs in the Respondent’s organisation was the backcloth for the events described in the decision and we can discern no error of law in the tribunal’s finding, first, that there was a saving in cost by dismissing a senior employee and secondly in relating that to the redundancy climate at the time.  We have dealt with this as a free-standing ground of appeal. We can discern no error of law in this ground of appeal and we dismiss it at this stage.  We do not, however, shut this item out as forming part of the factual background for the argument which may be raised under ground 8.

(8) 	This ground relates to the finding of the Employment Tribunal that the reason for dismissal was redundancy.  They dealt with this issue separately from their consideration of discrimination.  It seems to us arguable that on the face of the decision the Employment Tribunal do not appear, in relation to their consideration of the issue of the reason for dismissal, to have considered their own findings in relation to discrimination.  It seems to us arguable that there is an inconsistency between, on the one hand, a finding that the reason for dismissal was redundancy in one paragraph and, on the other hand, the possible implication from the later paragraphs that the Respondents were wanting to dismiss the Appellant because they were prejudiced against her.  Also, we have looked at the Education and Catering Contract.  This document does appear to require the Respondents to have in post a Contracts Manager.  This was the very post occupied by the Appellant.  It is arguable that this document was relevant to the findings of the reason for dismissal being for redundancy and that it was not referred to in the decision of the Employment Tribunal.  We consider that this ground merits argument in full before the Employment Appeal Tribunal. 

(9) 	The final ground of appeal relates to paragraph 63 of the decision.  The Employment Tribunal took account of the Appellant’s failure to raise a complaint of racial or sexual discrimination before her dismissal as evidence that there was none.  We recognise that in some cases tribunals do find that allegations of race and sex discrimination are, sadly, from time to time raised after the event to bolster an otherwise weak case.  However, there are other cases where the events which follow after dismissal do genuinely shed fresh light on earlier actions of an employer so that hindsight can sometimes provide a genuine revelation of discrimination that was not earlier apparent.  We note in this case that the conduct of the Respondents after dismissal included a claim, in the second paragraph numbered 8 in the Notice of Appearance, that the dismissal of the Appellant followed ‘a full audit of the Catering Units throughout the borough’.  This was followed by a failure to respond to a request to produce the document and an ultimate revelation that the so-called audit was never written down.  It seems to us that, in concluding that if there had been ‘apparent’ unlawful discrimination the Appellant would have complained about it prior to dismissal, it is arguable that the Employment Tribunal did not take account either of whether any discrimination may not have been apparent, or of the position of a senior employee under stress and concerned about the security of her employment.  We find that this ground contains matters that are fairly arguable in full before the Employment Appeal Tribunal. 

15.	In conclusion, there were three areas of the facts which were considered by the Employment Tribunal.  The first was a general redundancy situation, the second was prejudice against the Appellant because of her ability together with the lack of management capability on the part of the Respondents, and the third was the allegation of unlawful discrimination.  The grounds of appeal seem to impinge on these three elements.  We direct that grounds 2, 3, 4, 8 and 9 should be argued in full before the Employment Appeal Tribunal.  As to ground 3 and the issue as to any findings of victimisation, we direct that the Respondents submit their response to the issue as to whether it formed part of the proceedings before the Tribunal not less than 14 days before the hearing of the appeal.  We also order that a letter be written to the Chairman of the Tribunal, asking him if he would check his notes and write to the EAT (letter to be distributed to the parties) as to whether victimisation formed part of the proceedings over which he presided.  Subject to that, we do not consider that it is necessary to request the provision of any copy of the learned Chairman’s notes of evidence. 

16.	This appeal will be listed in category C for one day.  Skeleton arguments must be filed not less than 14 days before the date listed for full hearing of the appeal.