Appeal No. EAT/1144/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th December 1995

	Before

	THE HONOURABLE MR JUSTICE KEENE

	MR A C BLYGHTON

	MR R N STRAKER

MISS N ELLIOTT	APPELLANT

DOMNICK HUNTER LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)
Commission for Racial Equality
11th Floor
Suffolk Street
Queensway
Birmingham
B1 1TT

For the Respondents	MR BRUCE CARR
(of Counsel)
Mr N J Chronias
EEF
Broadway House
Tothill Street
London
SW1H 0NQ

	MR JUSTICE KEENE:   The Appellant in this case who is of African/Caribbean origin complained to an Industrial Tribunal of direct discrimination against her by the Respondent in the course of her employment contrary to Section 4 of the Race Relations Act 1976, ["the Act"]. The discrimination alleged was said to have consisted of her dismissal by the Respondent, but she also complained that she had been subject to detriment within Section 4(2)(c) of the Act in relation to racial abuse which she had suffered, an alleged failure by the Respondent to take her complaint of racial abuse seriously, a failure to follow the disciplinary procedures laid down by the Respondent and an unfair allocation of overtime. The Tribunal dismissed the Appellant's complaint. The present appeal is directed largely though not exclusively to the complaint of racial abuse causing detriment to her.

	Section 1(1) of the 1976 Act reads as follows:

		"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

			(a)	on racial grounds he treats that other less favourably than he treats or would treat other persons;"

	Section 4(2) provides:

		"(2) it is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

			...

			(c)	by dismissing him, or subjecting him to any other detriment."

	The Appellant commenced her employment on 29th June 1992 as a quality insurance inspector on the basis of a six month probationary period. The Respondent company is involved in the production of filters of various kinds, some for breweries and others for pharmaceutical companies. The Appellant's employment in the initial stages of her probationary period seems to have been relatively uneventful. However in due course she began working on what was known as the `twilight shift' and she alleged that on her move there she received a cold reception. Her team leader was a woman called Mrs Hall. The Appellant alleged that Mrs Hall made her life unbearable and would not allow her to carry out her job. She alleged that she overheard Mrs Hall telling another employee:

		"That black bitch is not telling me about the work in this place. I don't know what they were thinking about bringing a nigger into this department."

	The Appellant also complained that there was an incident arising from quality at the pleating machine when she spoke to Mr Porter, the technical director of the Respondent company. Her team leader, Mrs Hall, apparently became angry at this and there was friction between the two of them. There was a further allegation which has featured prominently in this appeal, namely that the Appellant was called `Kizzy' in about December 1993 by an employee Carol Grant. The reference to `Kizzy' is a reference to a black baby born to a slave in the film Roots, a film which was based on the life and circumstances of negro slaves in the southern states of the United States of America at the time when slavery there was legal.

	The Respondent's evidence before the Tribunal was at variance in a number of respects with the evidence given by the Appellant. On the issue of racial abuse Mrs Hall, the team leader, gave evidence denying that she had sworn at the Appellant or had referred to her as "black bitch" or "nigger". The Tribunal records that Mrs Hall said in evidence that she was comfortable with black people, having a brother-in-law who was black African with whom she got on well and whose four children she looked after in the summer. Mrs Hall accepted that she was annoyed with the Appellant after the Appellant had gone to Mr Porter and that she had told the Appellant that in future she should not go above her to someone in Mr Porter's position because she, Mrs Hall, was the team leader. Mrs Hall explicitly denied using the words "fucking black bitch" which the Appellant alleged she had overheard.

	On the use of the word `Kizzy', Mr Armstrong and Mr McMahon who were from the management within the Respondent company, as well as Mrs Hall, denied that they were aware that that was a name attributed to the Appellant. Mrs Grant did give evidence that that word was used, but used on the Friday before Christmas at the firm's disco when she was in the toilet with the Appellant and another woman called Tracy Degan. She said that the women were all having a good time, having before that been drinking at a public house, and Mrs Grant explained the circumstances in which she used the word. Her evidence was that she thought that the music that was playing at the time was a good type of music, and had some connection with the film Roots, and in that context said to the Appellant "I think I'll call you Kizzy". She maintained that the Appellant laughed at that. According to Mrs Grant the Appellant had not taken offence. As we shall see, that was not the conclusion reached by the Tribunal.

	The Tribunal in applying itself to the evidence reminded itself that direct evidence of discrimination on racial grounds is rarely going to be available and that the evidence of discrimination will normally come by way of inferences to be drawn from the primary facts. They expressly referred to the guidelines to this effect in the well-known case of King v Great Britain China Centre [1992] ICR 516. We note that it is conceded on behalf on the Appellant that the Tribunal appears to have directed itself properly on the law, but that does not mean that the Appellant is conceding that the Tribunal did in fact direct itself properly in law. The Appellant in a number of respects is alleging a misdirection of law in this case.

	The Tribunal stated that where there were areas of conflict in the evidence it preferred the evidence of the Respondent and its witnesses to the evidence of the Appellant. They noted that they were impressed by Mr Armstrong as a witness, and that Mrs Hall gave clear and persuasive evidence. They expressly found that Mrs Hall did not make the derogatory racial remarks alleged by the Appellant. The Tribunal also found that Mr McMahon's evidence was to be preferred to that of the Appellant in other areas of conflict. 

	It is also relevant to note that the Tribunal commented that:

		"If there had been any discriminatory intent reposed in the respondent we find it unlikely that her probationary period would have been extended by Mr McMahon in the light of what was perceived as unsatisfactory performance. We think that if there was an attitude problem then it was on the side of the applicant."

	The Tribunal concluded that the Appellant had been dismissed because of inadequate performance and not because of her colour. It was not prepared to draw any inference of discrimination by the Respondent. It went on to say at paragraph 24 this:

		"We find the matter of Kizzy was a situation solely between Mrs Grant and the applicant and is peripheral to these proceedings. It caused the applicant no detriment and management were not aware of the situation. Mrs Grant may have been insensitive but her evidence was that she intended no offence. The applicant's view was that it was and this is quite understandable."

	It is that last conclusion in relation to the reference to `Kizzy' which forms the focus of the first two grounds of this appeal.

	The first point taken by the Appellant is that the finding that the reference to her as `Kizzy' caused her no detriment within the meaning of the Act was perverse, in other words that it was a finding which no reasonable tribunal properly directing itself could have arrived at. The submission has to be put in those terms because the question of whether or not a person has been subjected to detriment within the meaning of Section 4(1)(c) of the Act is one of fact. See amongst other cases: Ministry of Defence v Jeremiah [1980] ICR 13 at page 26 letters C to D. Issues of fact are of course not something on which an appeal lies to this Appeal Tribunal.

	Miss Monaghan submits that the term `Kizzy', being a reference as it was to a black baby born to a slave in the film Roots, was a racially specific name and was insulting. The Respondent does not deny that it was racially specific, and the Tribunal found that it was understandable that the Appellant regarded it as insulting as she did. Although there was some evidence that the term was used by others about the Appellant, the only occasion when the Appellant was aware of its use was the occasion at the firm's disco when she and Mrs Grant were in the toilet. Miss Monaghan says that a single act of verbal harassment can cause or amount to a detriment within the meaning of Section 4(1)(c). In support thereof, she relies on the decision in Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 a case of sexual harassment but which we accept gives guidance in cases of racial discrimination. In that case the Industrial Tribunal had found that a single act of verbal sexual abuse had caused an employee to suffer a detriment and this Appeal Tribunal found that the Tribunal below had not committed an error of law in arriving at that conclusion. We note that at page 5 paragraph 11 of that judgment Morison J. commented that:

		"Whether a single act of verbal sexual harassment is sufficient to found a complaint is also a question of fact and degree."

	Miss Monaghan then contends that to abuse or insult someone racially in the workplace will amount to a detriment if objectively the abuse is racially insulting and the recipient is in fact offended by it. That proposition is put forward in those somewhat stark terms because only if such a proposition is accepted will the Industrial Tribunal's decision on detriment be perverse.

	It seems to us to be a proposition which conflicts with the Court of Appeal's decision in De Souza v Automobile Association [1986] ICR 514. At page 522 letter G of that decision May LJ., with whom the rest of the Court of Appeal agreed, said this:

		"Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of section 4, and in particular section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some "other detriment" the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

	The cases to which his lordship had just been referring were ones where there had been some disadvantageous effect on the complainant's working conditions. The Court of Appeal was in essence saying there that something which is objectively a racial insult and which does offend the employee is not enough by itself to establish a detriment, or putting it at its lowest, is not necessarily enough to establish such a detriment. It must follow from that that even if it was open to an industrial tribunal so to regard it, a tribunal is not required to find that a detriment has automatically occurred as a result of a racial insult which offends the recipient. In some circumstances it may be that a racial insult or insults would affect the working environment in such a way and to such a degree that a detriment resulted. We are not saying that a single episode of racial abuse is necessarily incapable as a matter of law of amounting to a detriment. It will depend on the circumstances, as the Insitu Cleaning Co case shows. It may be the case that the more such abuse occurs over a period of time, the more readily a tribunal will be prepared to find that a disadvantage in the complainant's working circumstances has occurred, and hence that a detriment has been suffered. That is a matter for the fact finding tribunal. But the question before us is whether this Industrial Tribunal was bound to find detriment in the shape of such a disadvantage in the Appellant's working conditions, so that finding otherwise as it did was a perverse conclusion.

	Miss Monaghan argues that the decision in De Souza is now ten years old and she submits that industrial tribunals today are probably more willing than they would have been ten years ago to find such racial abuse to be something with caused a detriment. That does not seems to us to avail her at all. The Industrial Tribunal here, in a recent decision not one taken ten years ago, has found that there was no detriment in the circumstances of this case. In the event we are unable to say that the Industrial Tribunal was acting as no reasonable tribunal could in arriving at this conclusion on the absence of detriment. Whether we would have found detriment on the facts is neither here nor there. It was not perverse of the Tribunal to arrive at the conclusion which it did on this aspect of the case.

	The second ground which is relied upon on behalf of the Appellant is that the Tribunal below in concluding that the reference to the Appellant as `Kizzy ' was "peripheral to these proceedings" thereby misdirected itself as a matter of law. In her succinct submissions Miss Monaghan says that whether that allegation was peripheral or not was quite irrelevant to the task which the Tribunal had to perform.

	On a fair reading of the Tribunal's decision, we take the view that this particular reference by the Tribunal was a comment on how central or otherwise to the Appellant's overall case this particular point was. It is right to note that the form IT1 which originated these proceedings referred to the Appellant's complaint as being one of dismissal on racial grounds. That was her, it seems, primary complaint. The reference to the calling of the Appellant by the name `Kizzy' does get mentioned briefly in the reasonably lengthy grounds set out in support of the originating application to the Industrial Tribunal, along with other allegations to the effect that employees had called the Appellant a "black bitch" and a "nigger". We for our part are not seeking to make any comparison between the abusiveness of those various words, nor do we think that the Industrial Tribunal below was doing so. The point is simply that this was one of a number of allegations about racial abuse said to have been suffered by the Appellant, and all those allegation seemed to have been included almost in second place to the allegation about dismissal on racial grounds.

	For those reasons the Tribunal's comment was perhaps understandable. In any event we cannot see that it amounted to a misdirection of law. The Tribunal below did consider, as their reasons show, whether the use of this term `Kizzy' gave rise to a detriment to which the Appellant was subjected. The Tribunal did perform its duty under the Act, and did ask itself the relevant questions. In those circumstances, whether the Tribunal regarded this complaint as being of prime or secondary importance in the hierarchy of complaints is neither here nor there. They regarded it as one of the complaints with which they had to deal, and they dealt with it. We cannot see therefore that there was any error of law on the part of the Tribunal in this respect.

	Ground 3 of this appeal, as put before us today by the Appellant, is that the Tribunal in reaching the conclusion that the Respondent's evidence was more reliable than the Appellant's, relied on the fact that the Appellant had written to the Respondent a letter about her dismissal, but "what was absent from that letter which appeared to us to be curious, was any imputation of race discrimination." That comes from paragraph 20 of the Tribunal's Reasons. Miss Monaghan does not put this particular ground at the forefront of her case, but nonetheless she submits that this was irrelevant and that the conclusion about the preferability and greater credibility of the Respondent's evidence was perverse. In support of that she draws our attention to the fact that that letter was written after the Appellant had already put in her application to an industrial tribunal complaining of dismissal on racial grounds. 

	We do not find that there is anything of substance in this particular point. The Industrial Tribunal's reference to that letter was merely one element in the reasoning by which it arrived at the decision to prefer the evidence of the Respondent's witnesses to that of the Appellant where there was a conflict. The Tribunal below heard all these witnesses and as they say, "they judged their demeanour and their evidence". It does not seem that particular significance, ahead of everything else, attached to this one particular aspect of their reasoning. It was simply part of the whole. In any event, the Tribunal's comment that it found the omission of any reference to the dismissal being racially discriminatory curious cannot be categorised as a perverse comment. The Tribunal was entitled to take that view. We say that because the letter in question was expressly challenging the reason for her dismissal, but while doing so, does make no reference to racial discrimination as having been in any way involved in the decision to dismiss her. 

	So far as the point about the sequence of events is concerned, namely that the letter came after the originating application to the industrial tribunal, we cannot see that that makes the omission of any reference to racial discrimination in the letter any the less curious. The letter which was sent to the Respondent does not seek as it were to incorporate within its contents what was said in the originating application. We find it understandable that the Tribunal was surprised that there was no express reference to racial discrimination within the body of that letter. Nonetheless, our task today is simply to consider whether the conclusion about the reliability of witnesses reached by the Tribunal below was perverse or not. We conclude that it was not perverse, but was a conclusion open to that Tribunal which heard the witnesses. Nor can we regard their reference to the letter as being the taking into account of an irrelevant consideration.

	The final ground of appeal refers to that sentence in the Tribunal's Reasons at paragraph 23 which says:

		"If there had been any discriminatory intent reposed in the respondent we find it unlikely that her probationary period would have been extended by Mr McMahon in the light of what was perceived as unsatisfactory performance."

This was dealing with the dismissal of the Appellant and the reasons for it. It is submitted on behalf of the Appellant that this amounted to a misdirection. Reliance is placed on James v Eastleigh Borough Council [1990] ICR 554 where the House of Lord held that the question of whether a person treated a man less favourably on the ground of his sex than a woman was treated or would be treated was a matter to be judged objectively. The subjective reason for the less favourable treatment was irrelevant. On the other hand, under the relevant statutory provisions the complainant does have to show that the less favourable treatment was on racial or, as in the James case, sexual grounds. In the case such as the present there has to be a racial factor playing a significant part in the decision to dismiss. In the present case it seems to us to be important to see the Tribunal's reference to "discriminatory intent" in its context. Those words were preceded by paragraphs 21 and 22 where the Tribunal had considered the objective facts and had concluded that any probationary worker would have been treated in the same way as the Appellant, and that the reason the Appellant was dismissed was purely and simply that she failed through her performance to influence her employer while she was on probation to award her full employee status. They said:

		"We find that it had nothing to do with her colour."

In short, it had already found that the Appellant had not been less favourably treated than others on racial grounds. In so doing, the Tribunal had applied the correct test looking at matter objectively. When it came later in the Reasons to use the words "discriminatory intent", it was doing so when considering a specific allegation that another employee knew that the Appellant was going to get a verbal warning for absenteeism and that this disclosure to the other employee had been racially motivated. It was in that context that the reference to intent was made. When allegations of a racial motive are made, it will not necessarily be irrelevant to consider the employer's frame of mind. Indeed, it may well be inevitable that such matters will be referred to, if only by way of rebuttal. But that does not mean that intent or any other mental state is being substituted for the objective test as set out in the James v Eastleigh Borough Council case. It is simply an evidential element in the total case. 

	In the present case we are satisfied that the Industrial Tribunal correctly approached the question of whether the Respondent had treated the Appellant less favourably on racial grounds. It did not misdirect itself in this respect. For that reason this final point raised on behalf of the Appellant must fail. It follows that the appeal overall is dismissed.