Appeal No. EAT/1130/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 February 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MR R THOMSON

MRS M PHILLIPS	APPELLANT

NES COMPUTER SERVICES LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MS SHANTELE ERWIN
Representative
(Instructed by)
Cheshire Halton &Warrington Rec.
1st Floor
Linehall House
88-90 Watergate Street
CHESTER
CH1 2LF	

JUDGE PETER CLARK:

1.	This is an appeal by the Applicant before the Liverpool Employment Tribunal  Mrs Phillips sitting on 10 May 2000 against that Tribunal’s decision, promulgated                               with Extended Reasons on 28 July 2000, dismissing her complaints of unlawful direct race discrimination and victimisation against the Respondent NES Computer Services Limited.

2.	The facts
The material facts found by the Tribunal were these; the Appellant is a black South African born woman.  On 5 May 1999, she commenced employment with the Respondent as a Sales Administrator at their Winsford premises.  She was the first black full time employee to be taken on by the company.  She was subject to a 3-month probationary period .  She first received induction training from her predecessor, Sandra Woodmore.  Mrs Woodmore, who had together with the Administration Manager Mrs Graham interviewed the Applicant and other candidates for the post, reported to Mrs Graham that Appellant’s performance was less than satisfactory.  As a result Mrs Graham extended the initial 2-week induction period by a further three weeks.

3.	At the end of that 5-week period, despite reservations, Mrs Graham allowed the Appellant to proceed with her probationary period.  At the end of the probationary period it was the Respondent’s practice to obtain written reports from the probationer’s immediate superiors.  In the Appellant’s case they were Mr Spibey and Mr Pittam.  Both those account managers gave unfavourable reports on the Appellant’s performance to Mrs Graham.  When Mrs Graham disclosed the contents of those reports to the Appellant she became upset and told Mrs Graham that she believed those comments had been made because she was black.  That, we interpose, amounts to a potential protected act under Section 2(1)(d) Race Relations Act 1976.  

4.	There was a factual dispute between the Appellant and Mr Spibey as to whether, as he asserted and she denied, she had told him a few days later that she had made the allegation that her race had played a part in the unfavourable reports because she was upset by their contents.  She apologised for having done so.  The Employment Tribunal preferred Mr Spibey’s evidence on this point.  However we are told that no point was taken on behalf of the Respondent that the complaint made to Mrs Graham was not made in good faith with the meaning of Section 2(2) of the Act.

5.	Mrs Graham returned to the two managers and reported what the Appellant had said.  Both denied that their reports were motivated by the Appellant’s colour.  Both were upset and annoyed at that suggestion.  Despite those unfavourable reports, Mrs Graham decided not to terminate the Appellant’s employment but to extend the probationary period by 2 weeks.  At the end of the extended period, by 9 August, Mrs Graham received favourable reports on the Appellant’s performance from both Mr Spibey and Mr Pittam.  As a result she decided to make the Appellant a permanent employee.

6.	Thereafter Mrs Graham and the account managers noticed that the Appellant’s performance began to seriously deteriorate.  She arrived late for work, took extended lunch breaks and made basic errors and failed to follow company procedures in her work.  She was then off sick for 3 weeks.

7.	The Appellant’s half-yearly appraisal was due to be carried out on 23 November 1999.  Both Mr Spibey and Mr Pittam considered that in light of the deterioration in her performance since being appointed to permanent staff, her employment should be terminated.  They so recommended to Mrs Graham who, together with those 2 managers, saw the Appellant on 3 December.  At that meeting the Appellant was dismissed.  There was no appeal internally against that decision.  

8.	The Tribunal Decision
The Tribunal concluded on the facts as found that the complaints of direct discrimination and victimisation were not made out because:
(a)	The Respondent had not on racial grounds treated the Appellant differently in dismissing her than they would have treated other employees.  (Reasons paragraph 11).

(b)	The Appellant had not been less favourably treated  because she had complained to Mrs Graham that the two account managers had made unfavourable remarks in her probation review reports due to her race.  She had told Mr Spibey that she had made the allegation because she was upset about the contents of those reports and had apologised to him.  That complaint to Mrs Graham had not caused her dismissal (paragraph 12).

9.	In this appeal Ms Erwin takes two points. First in relation to the claim of victimisation,  she submits correctly that three principle questions arise under Section 2 of the Act.  

	1.	There must be a protected act as defined in Section 2(1).
	2.	There must be less favourable treatment meted out to the Applicant compared with treatment which would have been meted out to a person who had not done the protected Act.
	3.	There must be a causal connection between the protected act and the less favourable treatment, here dismissal.  

10.	She submits by reference to the well-known judgment of Bingham LJ in Meek v City of Birmingham District Council (1987) IRLR 250, that at paragraph 12 of their reasons the Tribunal have failed to adequately set out the reasoning process which led them to conclude that the victimisation claim was not made out.  We accept that in an ideal world a Tribunal would be well advised to go through the different stages under the statutory definition of the particular statutory tort complained of, here victimisation.  However looking at the Tribunal’s reasons as a whole, we are quite satisfied that they have made a clear finding of fact that there was no causal connection between the dismissal and the protected act relied upon, which was a complaint to Mrs Graham about the earlier reports by the two accounts managers.   In these circumstances, if for no other, the victimisation claim failed on the third limb of the test which we indicated at the outset.  In these circumstances, we dismiss the appeal against the victimisation finding.

11.	Secondly, she challenges the finding that there was no direct unlawful discrimination, set out in paragraph 11 of the Tribunal’s reasons, on the footing that the Tribunal have failed at any stage in their reasons to make reference to a point advanced on behalf of the Appellant below, namely that she was not informed of the Respondent’s appeals procedure following dismissal and therefore given no opportunity to pursue an internal appeal.  We have considered that point carefully and we accept that no such references are made in the Tribunal’s reasons.  However, a Tribunal is not obliged to set out, following the principles in Meek, each and every piece of evidence that they heard or argument that was advanced before them.  It seems to us clear that the Tribunal concluded that the dismissal and its process was not treatment on racial grounds even if other employees would have been differently treated.  The question for us is whether that was a permissible finding.  We think that on the whole of the reasons it was.  The thrust of the factual findings, which we have set out earlier, indicates that there was a significant deterioration in the Appellant’s performance after she was made a permanent member of staff and that that was the sole reason for her dismissal.  The submission is made that the Tribunal failed to take into account the possibility of mixed motives.  We cannot accept that submission.  It is apparent to us that the Tribunal found that the poor work performance was the sole reason for dismissal.  

12.	In these circumstances despite the attractive submissions of Ms Erwin, we have reached the conclusion that this appeal raises no arguable point of law to go forward to a full appeal hearing and consequently it must be dismissed.