Appeal No.	 EAT/1010/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 1997

Before
HIS HONOUR JUDGE D PUGSLEY
MR D J JENKINS MBE
MR R N STRAKER

MISS S HENRY	APPELLANT

RIVERSIDE MENTAL HEALTH NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR L ADENEKAN
(of Counsel)
Messrs Nathan & Chelva
Solicitors
169 Tooting High Street
London
SW17 0SY	

	JUDGE PUGSLEY:   In this case we are considering an application which arises from a decision of the Industrial Tribunal sitting in London (South), wherein they find that the applicant was not unlawfully victimised contrary to s.4(2)(c) in conjunction with s.2(1)(d) of the Race Relations Act 1976; and the applicant was not unlawfully discriminated against on ground of race contrary to s.4(2)(c) of the 1976 Act read with s.(1)(a). Also, the issue of contribution in that the tribunal found the applicant was constructively dismissed and that her dismissal was unfair, but that she contributed to an extent to 65%. 

	This was a long decision of the Industrial Tribunal, and it is right that one bears in mind it took some nine days to hear. The tribunal heard evidence from the applicant and on her behalf from Mr Thomas, a former trade union representative, and Ms Bennett, an analytical psychotherapist, who had previously been a team leader, a Miss Keep, a senior social worker at the day centre, and a Mr Idiabana, the director of the Pepper Pot Day Centre for the Elderly and the applicant’s present employer. 

	On behalf of the respondents, evidence was called from a Miss Wilkinson, who was the site service manager, a Miss Newsome, who had responsibilities in connection with this unit, a Mr Jerffery, a senior social worker, a Miss Lace, a personnel manager with the respondents, and a Mr Regnault, the care practice manager of the day centre.

	The tribunal in paragraph 1 make the primary finding of fact that where there was a conflict of evidence between the applicant and witnesses called on behalf of the respondent it preferred the evidence of the respondents’ witnesses. It may it quite clear that it was not suggesting that the applicant was untruthful, they were satisfied that she believed the incidents had occurred, and that she had become ill as a result, but it accepted the evidence of the applicant’s own witness, Miss Bennett, that the applicant was over-sensitive to criticism. The tribunal found that the respondents’ witnesses were consistent, frank and they were impressed with the openness and frankness of three witnesses they cited in particular. One says that because it must be made very clear that tribunals have the opportunity of hearing witnesses and we cannot and do not sit as an appeal on issues of fact. With the greatest of respect to the arguments of Mr Adenekan, many of the argument he has sought to before us seek to dispute findings of fact by the tribunal. He has prepared a most helpful skeleton argument which has enabled us to follow the contentions he raised with greater clarity. 

	The first issue that he wishes to raise is whether the test determining the words of s.1(1) of the Race Relations Act 1976 which states:

“he treats that other less favourably than he treats or would treat other persons”

is subject or objective. He quite rightly reminds us of the case of James v Eastleigh Borough Council [1990] IRLR 288 HL where Lord Goff said:

“If it were necessary for the purpose of s.1(1)(a) to identify the requisite intention of the defendant, that intention is simply an intention to perform the relevant act of less favourable treatment. However, in the majority of cases, it is doubtful if it is necessary to focus upon the intention or motive of the defendant in this way and simple “but for” test avoids, in most cases at least, complicated questions relating to concepts such as intention, motive, reason or purpose, and the danger of confusion arising from the misuse of those elusive terms”

	There are a number of arguments raised as to this, but in particular, the appellant focuses on a finding by the tribunal which is set out in paragraph 8, page 5 of the decision, where dealing with a particular incident where Mr Jeffery had been recounting an experience he had with a mentally ill patient, and accounting it in exasperation, the tribunal said this of the remark:

“The Tribunal is satisfied that this was not intended, nor was it said in any racially derogatory manner.”

There we are quite satisfied the tribunal does not fall into the error of deciding that as the remark was not intended to be a racially offensive that was the end of the matter, it said that it was satisfied that it was not intended nor was it said in any racially derogatory manner. If the law was otherwise it would lead to certain bizarre situations. If one could not look at the context in which a remark was made the teacher of Shakespeare’s Merchant of Venice might well find himself the subject of a criticism if they were to dealing parts of that play and certain sections of the class were from the Jewish community. We consider that the tribunal correctly applied the law and they made a most precise findings of fact on this issue. 

	Nor do we think that there is any force in the argument that there was victimisation on the findings of fact by the tribunal. They made very clear findings of fact and came to the view that there was no victimisation. 

	This is a long decision, and we pay tribute to the careful way in which the Chairman has set out the various issues in relation to the matters. The tribunal had the opportunity of hearing the witnesses. And if we may put it into very clear specific terms, it helps no one to comb through a long decision to find if some argument of law can possibly be reached when in its totality a tribunal has reached a proper conclusion. The main thrust of the very clear findings of this tribunal was that the applicant was not discriminated against either in terms under s.1(1)(a) or in relation to victimisation. These are the clearest findings of fact to that effect. One accepts of course that the applicant may not agree with such findings, but no ground arises in our view as a matter of law that we can identify that justifies sending this matter to a full hearing.

	However, in relation to the issue of constructive dismissal, we are bound to say that certain matters do cause us concern. The tribunal found that there was constructive dismissal and the essence of that was that the respondents failed to investigate the applicant’s complaint. Nothing was done about a complaint despite it being formally addressed through her trade union to the Director of Human Resources. The failure to pursue the investigation was contrary to the employers’ harassment policy and the profound silence on the matter was, in the opinion of the tribunal, sufficient to allow the applicant to believe that her employer no longer wished to be bound by the terms of her contract. The tribunal was satisfied that by September 1995 the applicant was seriously stressed by her employers’ failure to deal with what she considered to be a legitimate complaint. The tribunal stated that they believed that judged objectively this was a situation which no reasonable employee could tolerate.

	The tribunal also decided that that constructive dismissal was also unfair, since no real attempt was made to follow the provisions of its own harassment policy and to investigate the complaint quickly by impartial and independent investigators. The tribunal then in paragraph 37 of the decision goes on to make the finding:

“The Applicant contributed to her dismissal and had assessed this contribution as 65%. For reasons which are dealt with in more detail below with regard to the race discrimination claim, the Tribunal is satisfied that the Applicant was over-sensitive  to criticism against herself and frequently reacted strongly to other people. She was also insensitive to the effect which her actions and words had on her fellow workers and this contributed substantially to the tensions in the office. They also contributed to Miss Newsome’s decision not to continue with the investigation.”

	In our view there is an issue that does give rise to an arguable ground of appeal. The issue is whether the tribunal were right to reduce the compensation that the applicant would otherwise have received by 65%, in view of the reason for their finding that the applicant had been constructively dismissed. We consider that that is the only arguable matter. As we say the test is not whether it will succeed whether in our view it is arguable.

	It ought to be said for the purposes of clarity, that part of the Notice of Appeal is completely misconceived in that the skeleton argument addresses a number of arguments without failing to take into the question the applicant’s pension rights. That matter has not even yet been considered, and Mr Adenekan does accept it is not correct to appeal a decision not yet made.

	We will give leave for Mr Adenekan to amend his Notice of Appeal within 14 days to reflect the ground upon which we have given leave for this matter to proceed.