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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Jayaratne v Clerk Of The Parliament & Ors [2002] EWCA Civ 305 (28 February 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/305.html Cite as: [2002] EWCA Civ 305

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(Application of Appellant
for Permission to Appeal)

		Royal Courts of Justice Strand London WC2 Thursday, 28th February 2002

1. LORD JUSTICE LATHAM: This is an application for permission to appeal a decision of the Employment Appeal Tribunal in which the Employment Appeal Tribunal dismissed an appeal by Mrs Jayaratne from a decision of the Employment Tribunal which had been entered on 22nd December 2000. The Employment Tribunal had rejected Mrs Jayaratne's complaint of racial discrimination against the respondents.
2. The background to the case is as follows. Mrs Jayaratne had been employed since 3rd April 1989 as a clerical officer in the House of Lords. She remained so employed right through until an incident in June 1999, without there being any apparent difficulty in relation to her employment; by that I mean that there was no complaint by her at any stage during those ten years of racial discrimination.
3. However, there was an incident on 30th June 1999 when she believed that she had been treated badly by Mr Ellwood who was one of her superiors. She clearly at that stage believed that she was being treated badly by reason of her race, as against another employee of the respondent, Carole Hunt. A consequence of that was that a meeting was held at which the question arose as to whether or not Mrs Jayaratne wished to make a complaint under the grievance procedure. She asserted that she did. The agreement procedure was then put in train. Her complaint was rejected. She, thereafter, presented her complaint to the Employment Tribunal.
4. The basis of her complaint was that over a period of ten years or so, she had been subjected to discrimination on the grounds of race. The main complaints related to the fact that she was refused full-time work because she had, in fact, only worked on a part-time contract, although she asserted that she had been working full-time hours on many occasions during the ten years. She was required to work when she was off sick, and not only work in the sense of being sent work to do at home but was required to attend work, the respondent sending taxis to collect her.
5. It was said that she was not provided with the training with which she should have been provided for the purposes of carrying out her work. Her duties were reallocated, in the sense that part of her job was given to Carole Hunt, to whom I have already referred. The work which was in fact given to Carole Hunt has been described on Mrs Jayaratne's behalf by her husband in his submissions as what might be called 'front of house work', as opposed to office work. She was relegated therefore to the office itself. She was put in a position where she was effectively kept from the public. She was not provided with appraisal reports which were appropriate. Indeed, one appraisal report was late. She was subjected to racist and offensive comments during the course of her employment. The grievance procedure was not operated in a fair and appropriate way.
6. That, in general, was the nature of her complaints. The details were set out in the documents, which were voluminous, and which were put before the Tribunal. In the course of preparation for the hearing before the Tribunal, Mr Jayaratne, on behalf of Mrs Jayaratne, submitted a 75-question questionnaire to the respondents, which they declined to answer. They themselves produced documents at a late stage before the hearing.
7. The essential complaints made by Mr Jayaratne on Mrs Jayaratne's behalf to the Employment Appeal Tribunal were, firstly, that in relation to those preliminary matters the Tribunal Chairman failed to require the respondents to answer the questionnaire and permitted the respondents to rely upon the documents, which were served late. The Tribunal failed properly to deal with the allegations made by Mrs Jayaratne in that they rejected her evidence that she had been discriminated against on racial grounds, and preferred the evidence of the respondents' witnesses where that in any way conflicted with the evidence of Mrs Jayaratne. They failed to give proper reasons for those decisions, and the way in which both the proceedings themselves had been dealt with, and the extended reasons which were provided to support the decision, justified the conclusion that the Employment Tribunal Chairman had been biased. Lindsay J rejected those allegations in a detailed decision.
8. As I have already indicated, Mr Jayaratne, on Mrs Jayaratne's behalf, reiterates before this court that the Employment Tribunal failed properly to deal with the case before it, both procedurally in relation to the pre-hearing matters to which I have referred, and in the conclusions and reasoning which supported the decision. He further submits on Mrs Jayaratne's behalf that Lindsay J failed properly to deal with the arguments which he put before him in not giving full or adequate reasons for concluding that the appeal was bound to fail.
9. He has made his submissions both in written form before the hearing and in oral submissions before me today, which have been helpfully set out in typescript. This has enabled Mr Jayaratne and me to go through those submissions in detail and in a way which enables me to understand the complaints which are made.
10. The problem for Mrs Jayaratne is that this court will only intervene by way of appeal in decisions of the Employment Appeal Tribunal if it has made errors of law. Equally, the Employment Appeal Tribunal will only interfere with the Employment Tribunal if it has erred as a matter of law.
11. The complaints made by Mr Jayaratne on behalf of Mrs Jayaratne relating to the procedural matters are, in my judgment, not sufficient to justify the conclusion that there was any error of law. The Employment Tribunal was entitled to conclude that the questionnaire was not a matter which required any response from the respondent. As far as the documents which were used - and which arrived late - were concerned there was nothing before Lindsay J, nor is there anything before me, to suggest that there is in any sensible way prejudice to the Jayaratnes in presentation of the case. In particular, there was no complaint made in proper form at that time which can justify the conclusion that the Employment Tribunal was not entitled to proceed through the hearing as it did, bearing in mind that there was indeed a break during the course of the total eight-day hearing.
12. The complaint about the failure of the Tribunal to give reasons, or at least to give adequate reasons, for the conclusions that it came to in relation to the facts is, in my judgment, wholly and completely misconceived. There are, in the extended reasons, full and ample reasons given in respect of each of the grounds upon which complaint was made for the conclusions which were reached. The fact is that in cases such as this there will undoubtedly be a problem in a tribunal coming to a conclusion which it can express in any other way than that it prefers the evidence of one witness as opposed to another. The overall impression that I gain from the reasons that were given by the Tribunal indicates that they were, as they obviously indicated during the course of hearing, sympathetic to the way in which Mrs Jayaratne was treated by the respondents. She was required to work substantially greater hours than were appropriate for her part-time contract. The question which at the end of day had to be answered was not whether they had sympathy for Mrs Jayaratne in those respects, but whether or not the way in which she was treated by the respondents was the result of discrimination on the grounds of race.
13. Full and proper reasons, in my judgment, have been given for their conclusion that it was not. The Tribunal clearly had in mind the fact that it had to approach the matter on the basis that overt racial discrimination is rarely found; interestingly enough in this case there was, indeed, evidence from Lorna McWilliam to the effect that she admitted that she made racist remarks, or remarks which could be construed as racist, and did so in circumstances of which she was clearly not proud. The fact is that that in the Tribunal's mind redounded to her credit as far as her truthfulness and reliability was concerned. It seems to me that the Tribunal was entitled to take that view.
14. I have come to the conclusion that the complaints made by Mr Jayaratne on Mrs Jayaratne's behalf, whilst understandable, bearing in mind the stresses that undoubtedly Mrs Jayaratne has been under over the past few years, which are fully detailed in a judgment of Lindsay J and in the decision of the Employment Tribunal and which I certainly do not propose to repeat, have made it difficult for either Mr or Mrs Jayaratne to understand conclusions which have been reached which are contrary to the views that they have formed. The fact is that this was a very careful hearing before the Tribunal which resulted in a careful decision, with proper reasons, which could not possibly be capable of providing the basis for a successful appeal.
15. Accordingly, Lindsay J was fully entitled to conclude that this was an appeal which was bound to fail and to dismiss it at the stage that he did.
16. The allegation that the Tribunal Chairman was biased and that Lindsay J was biased is based essentially on the fact that Mr & Mrs Jayaratne cannot accept that anybody who was unbiased could have come to the conclusions that they did. For reasons that I have given, the Tribunal and Lindsay J were entitled to come to the conclusions that they did. Accordingly, there is no basis upon which any allegation of bias could properly be founded.
17. For those reasons, I conclude that this application for permission to appeal must be refused.