Appeal No.	EAT/1027/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 1998

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR L D COWAN
MR P DAWSON OBE

MRS D SELLEY	APPELLANT

ROBERT BOSCH LTD	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R LEWIS
(ELAAS)	

	MR JUSTICE LINDSAY:	We have before us, as a preliminary hearing, the appeal by Mrs Deborah Selley in the matter Selley v Robert Bosch Ltd.    

	There was hearing at London North before the Industrial Tribunal, under the Chairmanship of Mr D H Roose, spread over three days, the 29 and 30 April and the 2 June 1998.   That led to a decision promulgated on 16 June 1998.    At that stage, Mrs Selley had arguing for her Mr T Cedenio;  he does not appear here today but we have had the benefit of argument from Mr Lewis of ELAAS and we thank him for the help he has given both to Mrs Selley and to ourselves.

	The background to the matter is as follows:   On 9 May 1997 the Industrial Tribunal received Mrs Selley’s IT1 form, dated 25 April 1997.   At the date she completed that form, 25 April, Mrs Selley was on maternity leave.   She did work for Robert Bosch Ltd on 9 May but not again and she was certified by a doctor as suffering from stress.   That IT1 made a complaint as to racial discrimination and as to equal pay.   I should say that Mrs Selley is black.   

	Her IT1 disclosed that she had worked for Robert Bosch Ltd since 1984 and, as she put it, ‘had worked her way up the ranks’.   She found that a white colleague was being paid more than she was for doing what was, she felt, virtually the same job.   Mrs Selley had complained earlier but her most recent complaint to the employer was by letter on 7 April 1997.   She felt that she had not had an adequate answer to that letter and so she launched her IT1 on 9 May 1997.   She also felt that if a white had complained to her employer, as she had, then a proper inquiry would have been made but that none had been made in her case and that, in itself, represented racial discrimination.   That was the shape of her IT1.

	On 25 May 1997 Mrs Selley resigned from Robert Bosch Ltd.   On 11 June 1997 Robert Bosch put in what they call ‘grounds of resistance’ and they said (p16 para 2(C)), speaking of an earlier meeting:

“The Respondents had however concluded that in terms of Bosch’s own pay evaluation systems, the Applicant was paid the correct rate for the job that she performed.   However, in order to redress the difference between the Applicant and Ms Moriarty, [the white colleague to whom Mrs Selley had referred]   the Respondents proposed to red circle Ms Moriarty in order to allow the Applicant to catch up.   It was explained to the Applicant that the red circling would be applied every other year with the result that Ms Moriarty would not receive any increase in those years.   The Applicant appeared to be content with this explanation and, until the Respondents received the Applicant’s letter of 7th April 1997, the Applicant had not raised again with them any issues concerning the pay disparity with Ms Moriarty.
3.   At no time prior to the Respondents receiving this Industrial Tribunal complaint had the Applicant suggested to them that she believed she might be the victim of discrimination on race grounds.
4.   The Applicant was paid more than any other Planner within the Respondent, other than Ms Moriarty.”

	So, that was the shape of allegation and counter-allegation.   It would seem that there must have been a second IT1 lodged by Mrs Selley; at all events, one way or another, the issue of constructive dismissal was raised and put in front of the Industrial Tribunal.  Then, in the chronology, there were the three days of the hearing on 29 and 30 April and 2 June 1998, as we have already mentioned, and then, on 16 June 1998, the promulgation of the decision.

	The Industrial Tribunal directed themselves so far as concerns racial discrimination by reference to the leading case of King v The Great Britain-China Centre [1991]IRLR 513 and brought themselves thoroughly up to date by reference to Zafar v Glasgow City Council [1998]IRLR 36.   In terms of the law, as they set it out in their direction to themselves, it seems to us an impeccable self-direction.

	They turned to the evidence and on that they said, under the heading ‘Generally’ they said:

“In the event we preferred the evidence of the Respondent that Miss Moriarty’s job was the more demanding and that she had the edge in experience and attention to detail.   That was the justification for the differential” [namely, the difference between the two salaries, which they set out in some detail].

	So far as concerns race discrimination they said this in their paragraph 13:

“While we could see that there was a discrepancy between the salaries of the two women, we do not accept that the reason for the discrepancy was anything to do with race discrimination.   We did not accept that the Applicant had been denied the opportunity for promotion again because of race discrimination.   The Applicant did not raise the issue of race discrimination until she had left her employment...”

	Strictly speaking, that was accurate.   In the sense that the letter of 7 April did not in terms mention racial discrimination in a field where there was a possibility of sex discrimination and equal opportunities complaint, it was strictly true that the letter of 7 April 1997 did not mention race.

	As to sex discrimination, the Industrial Tribunal said:

“We find that Miss Moriarty was chosen for promotion not because the Applicant was on maternity leave but because the line manager thought that she was the better person for the job.   Had the Applicant been at work instead of being on maternity leave, the position would have been no different.   By the time that the Applicant complained about the issue, she had returned from maternity leave, albeit for one day.”

	They turn to the issue of constructive dismissal and dealt with that in their paragraph 15 at some length:

“... The main issues were the wages issue and the failure to promote.   The first issue had not come up since 1994 and the second not until the Applicant had made up her mind to go.   As soon as her intentions became clear, the Respondent wrote to her and made it clear that they were prepared to discuss the matter with her, an opportunity which was turned down.   It is clear that the Applicant had sent off her first Originating Application before she returned to work and would not have been in a position to know whether or not it had already been received by the Respondent.   In the event it was not received until 22 May [I think that must be a reference to not being received by Robert Bosch Ltd rather than not being received by the Industrial Tribunal because our copy is stamped as received on 9 May].   In respect of this claim, we do not accept that there was a breach of contract which was sufficiently important to justify the employee in resigning or a series of incidents which justified her leaving.”

	On the question of breach of contract they said this:

“This complaint is a re-run of the last in that the Applicant says that she was denied the opportunity to avail herself of procedures whereby the Respondent would be required to investigate her complaints.   A consideration of the correspondence is sufficient to satisfy us that the Applicant had made up her mind before she returned to work and was not prepared to discuss anything further with the Respondents thereafter.”

	It was in those circumstances, therefore, that the unanimous decision of the Tribunal was that the equal pay claim of Mrs Selley was dismissed, because it was withdrawn, that the  employer, Robert Bosch Ltd, did not unlawfully discriminate against Mrs Selley whether on account of her race or her sex, that she was not unfairly dismissed and that the contractual claim, under the Industrial Tribunal’s extension of jurisdiction, England & Wales Order, was also dismissed.

	I mentioned earlier that we have been assisted by Mr Lewis.   He raises a number of points in Mrs Selley’s favour.   He says that when one looks at the figures the differential between Mrs Selley and Ms Moriarty was maintained rather than reduced, notwithstanding that the employer had said that it would be reduced.   In fact, now we have had the opportunity of looking through the figures more fully, we do see that over time the figures were indeed reduced in terms of the percentage of the discrepancy between the two.   But, in any event, it has to be remembered that the Tribunal specifically looked at the issue and preferred the evidence of the Respondent that Ms Moriarty’s job was more demanding and that ‘she had the edge in experience and attention to detail’ and they specifically included that that was the justification for the differential.
	Mr Lewis mentions that more weight could have been expressly given to the evidence of Mr Paul Hallam, who gave evidence on the Applicant’s side at the Tribunal but who finds no mention in their extended reasons.   It would plainly have been preferable if he had been mentioned.   But, for all that, in terms the Industrial Tribunal preferred the evidence of the Respondent side and it is not possible on the material we have to go behind that preference to upset it.

	Mr Lewis says, rightly, that there had been a complaint as to discrimination earlier and the Tribunal was wrong in mentioning that there had been no raising of race discrimination until she had left her employment.   We have already commented on that.   The letter of 7 April does not, in terms, mention race discrimination and, although it is a small point, something could have been attached to this point as a complaint if it had not been that race discrimination was specifically looked into by the Tribunal and was subjected to a specific conclusion, namely:

“We do not accept that the reason for the discrepancy was anything to do with race discrimination.”

	Mr Lewis says that there was here a failure to observe good personnel practice, particularly in relation to the comparative secrecy with which the promotion of Ms Moriarty was proceeded with.   Well, a failure to observe full and good personnel practice is one thing, fundamental breaches of contract are another, as also is discrimination.   One can quite plainly have a modest failure to observe good personnel practice without it involving either a fundamental breach of contract or discrimination and, consistently with the decision to which this Tribunal came, they must have thought this was such a case.

	Mr Lewis very significantly said: ‘it would have been reasonable for the Industrial Tribunal to draw an inference of discrimination’.   Perhaps that is right.   It is not for us to say.   What we have to examine is whether there was an error of law in the Tribunal’s failing to draw an inference of discrimination and, given the way in which they approached it - giving themselves a proper direction on the law and coming to conclusions on the facts - we do not feel able to describe it as unreasonable not to have drawn an inference of discrimination.   

	Lastly, I think, of Mr Lewis’s complaints, he says that: ‘the secrecy with which the promotion of Mrs Moriarty was treated represents a fundamental breach of the contract with Mrs Selley.   It was a breach, she says, of the implied contractual term as to trust and confidence.  We do wonder whether it would be right to elevate a comparatively secret promotion procedure in relation to someone else as a fundamental breach of contract as between the employer and Mrs Selley.   But here, in any event, the question was gone into by the Industrial Tribunal and they, in terms say: 

“We do not accept that there was a breach of contact which was sufficiently important to justify the employee in resigning or a series of incidents which justified her leaving.”

	We are unable to find any error of law in the conclusions to which the Industrial Tribunal came and, accordingly, we dismiss the appeal even at the interlocutory stage.