Appeal No. EAT/1469/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 November 2000

Before
MR RECORDER BURKE QC
MR I EZEKIEL
MS G MILLS

MS MARCIA LAWRENCE	APPELLANT

WEST MIDLANDS PROBATION SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	IN PERSON	

MR RECORDER BURKE QC

1	Ms Lawrence was employed by the West Midlands Probation Committee as a Probation Officer from July 1990 until 1997.  In November 1996 she issued proceedings in the Industrial Tribunal, as it then was, claiming racial discrimination.  She relied in particular on 7 separate incidents between June 1994 and October 1996.  The last 3 of those 7 incidents were also alleged to include victimisation.  

2	In 1997 she issued a second application to the Tribunal claiming further unlawful racial discrimination and victimisation.  The allegations in the second proceedings either consisted of or included allegations that she had been discriminated against in relation to the failure to shortlist her for the post of Senior Probation Officer.  That application was dismissed on withdrawal in July 1997.  In March 1998 she issued a third application.  Her employment had, to put it neutrally, ended in December 1997 and by the third application she claimed that the sustained and persistent unlawful race discrimination and victimisation which she had suffered had amounted to a repudiatory breach of her contract of employment and therefore that she had been constructively dismissed, and that her dismissal was (a) unfair and (b) itself constituted racial discrimination and victimisation.  

3	The first and third applications were heard by the Tribunal in Birmingham chaired by Mr Crump, over a period of 42 days, the first 3 of which were abortive for reasons which we need not go into, between March 1998 and 12 October 1999.  By its unanimous decision dated 26 October 1999, the Tribunal found that there had been discrimination against Ms Lawrence in respect of one of the 7 incidents brought together in the first application, but dismissed all her other complaints.  The Tribunal’s decision is a lengthy one; it runs to some 68 pages and 298 paragraphs.  The Tribunal saw and heard a very large number of witnesses and had before it about 800 documents.  Ms Lawrence now seeks to appeal against the dismissal of all her complaints, save the one complaint upon which she succeeded.  This is the preliminary hearing of her appeal.  

4	The Notice of Appeal put in by the solicitors who were representing her together with Counsel before the Tribunal, sets out with admirable economy 3 grounds: firstly, it claims that the Tribunal failed properly to assess the evidence of Ms Macdonald, who was Ms Lawrence’s Assistant Chief Probation Officer and as a result made findings on the 7 complaints of the first set of proceedings, which it was not entitled to make.  Specifically it is said that it having been found that Ms Macdonald was capable of victimising Ms Lawrence for complaining of protected acts, and acting in a racially discriminatory manner against her in respect of the one complaint upon which the Tribunal found in Ms Lawrence’s favour, and Ms Macdonald viewing Ms Lawrence as a person who was difficult to manage, it was perverse to have found discrimination only on one of the 7 grounds in the first set of proceedings, and the Tribunal should have found in Ms Lawrence’s favour on all 7.  We will come later to the constructive dismissal, but plainly if Ms Lawrence had succeeded on all 7, that would, or might, have had an effect on the approach which the Tribunal took to the issue of constructive dismissal.

5	Secondly, the Notice of Appeal seeks to argue that the Tribunal applied the wrong test in law to the process of deciding whether there was or was not discrimination in the case of each of the relevant incidents.  It is fair to point out that the Notice of Appeal does not, as it should do, set out where in the decision the Tribunal can be seen to have applied the wrong test, or in what respect the test applied was wrong, but nonetheless especially because Ms Lawrence is in person, we have to look at that ground too, no matter how undefined it may be in the Notice of Appeal. 
6	Thirdly, the Notice of Appeal contends that had the Tribunal not erred in the two respects I have set out, it would and should have found that Ms Lawrence was unfairly dismissed.  The solicitors who put in that Notice of Appeal are no longer acting, but Ms Lawrence has very helpfully provided us with a Skeleton Argument and today has appeared in front of us, has graciously and intelligently fielded a whole host of questions from the Tribunal, and in particular from me, and it is only right to pay tribute to the intelligent and persistent way in which she has put forward her arguments.  Her written Skeleton consists of just over 7 close typed pages which, to a considerable extent, consist of attacks on and criticism of detailed individual findings of fact of the Tribunal, as well as criticisms of the Tribunal’s approach to the law.  Ms Lawrence has very fairly accepted that for the most part, those arguments go to her general argument that the decision to reject her complaints, save one, was a perverse decision.  

7	Although the grounds which she has been arguing from her Skeleton do not strictly fall within the grounds set out in the Notice of Appeal, we have felt it right to look at them with care to see whether there is, or may be within them an arguable basis on which this appeal can be put, on Ms Lawrence’s behalf.  

8	We propose to start with the grounds in the Notice of Appeal itself and to take first the ground of appeal that the Tribunal applied the wrong test.  It is fair to say that Ms Lawrence has not herself put that forward, with any vigour, if at all, during the course of her argument today; nonetheless it is right that we should say a few words about it.  The Tribunal set out the law as to the approach to their drawing of inferences of discrimination or victimisation, and this is the area in which they are criticised, at paragraph 216 of their decision, they refer to their having taken into account all the decisions referred to them by Counsel on both sides, and in particular, the decisions in King -v- Great Britain China Centre [1992] ICR 516 in the Court of Appeal and  Zafar -v City of Glasgow [1998] IRLR 36 in the House of Lords.  Those are, of course, the two leading authorities from which the relevant principles in this area are to be derived, but the Tribunal, possibly exhausted by 50 pages of fact-finding, and a further 4 pages setting out the relevant statutory provisions, did not set out, in referring to King and Zafar, what precisely the principles derived from those cases were.  But it is not, in our judgment, necessary for them to do so.  It is certain that they were set out in the written final submissions of Counsel, and highly unlikely that there was any disagreement between Counsel as to what those principles were.  Because they have not set out these principles, what is necessary, is for us to look at the decision itself to see whether the way in which the law has been applied to the facts reveals that they applied the wrong test.  

9	In our judgment it is clear from reading paragraphs 221 - 280 of the decision that there is no arguable case that the Tribunal did apply the wrong test.  The Tribunal took pains to identify the acts or failures to act, which were said to constitute racial discrimination or victimisation, and to find the facts surrounding each of the relevant incidents.  It then considered, with patent care, the explanations given by the employers as to the reasons for, and the circumstances of those acts or failures to act, and concluded in each case, save one, that the explanation was satisfactory and that the matters complained of were unconnected with Ms Lawrence’s race or with her complaints of discrimination or with any protected acts.  We do not propose to go through each and every one of the incidents to demonstrate precisely how the Tribunal dealt with them, but the decision sets the position out with care, save in relation to Incident 3; the Tribunal identified the explanation, looked at that explanation, decided in each case that there was no discrimination, and that the explanation, which was inconsistent, with discrimination or victimisation was satisfactory.  That was a task which the Tribunal was wholly entitled and indeed bound to undertake; and they appear to ask to have undertaken it in a manner, which so far as the law is concerned, was exemplary.

10	We are going to turn next to the first ground which appears in the Notice of Appeal, that is to say that because the Tribunal found that Ms Macdonald was capable of victimising Ms Lawrence, and had indeed victimised her and acted with racial discrimination in respect of one of the 7 specific incidents, it was perverse of the Tribunal to find that Ms Macdonald had not been guilty of discrimination and victimisation in the case of the other incidents, or to find that the employers, through persons other than Ms Macdonald, had not been so guilty.  This ground is, in our view, wholly unarguable.  The Tribunal took great care to consider the facts of each incident separately, in great detail, and to apply to each incident, as we said, the correct legal principles.  While, perhaps, it may not be easily understood by the parties to litigation, it is quite common for a Court or Tribunal to accept some part of what a witness says, while rejecting other parts if what a witness says.  These matters are not black and white; and it is for a Tribunal to decide whether it accepts all of what a witness says, most of what a witness says, a little of what a witness says, or none of what a witness says.  

11	It was entirely for the Tribunal, once they had applied the correct test, to decide whether, where the primary facts could speak of discrimination or victimisation, the Respondents had given in evidence, through Ms Macdonald or otherwise, a satisfactory explanation.  That is the task that they carried out, and their decision is not, in our judgment, open to attack simply because they did not accept Ms Macdonald’s explanation in relation to one matter, any more than it would have been if open to attack by the other party if the positions had been reversed.  

12	We turn therefore, before coming to the third ground which goes to constructive dismissal, to the arguments in the Skeleton which may be said not entirely to fall within the ground of appeal to which we have just been referring, but which nonetheless go to perversity.  There are many arguments which Ms Lawrence has put forward to us this afternoon, I hope she will forgive us if we do not go through them all: it is very plain that most of them are arguments that the Tribunal should have given greater weight to one piece of evidence or another piece of evidence than it appears that they did.  When pressed, I hope not unfairly by us, to identify what was the thrust of the detailed submissions of facts which Ms Lawrence was making, she, on a number of occasions, accepted that what she was saying was that it was perverse of the Tribunal to give too much weight, as Ms Lawrence sees it, to piece of evidence of ‘X’ of insufficient weight, as Ms Lawrence sees it, to piece of evidence ‘Y’.  Ms Lawrence, I hope will understand, and we must remind ourselves, that this Appeal Tribunal is not a tribunal which re-hears the evidence or sits as a revising tribunal to consider what facts should or should not have been found below, still less to consider what weight should have been given or not have been given to any particular piece of evidence.  An appeal to this Appeal Tribunal lies only on a point of law.  If a finding is unsupported by evidence or is reached without regard to evidence, then there is, or may be, an error of law; but otherwise the facts are for the Tribunal and not for us; and the reality here is that this Tribunal dealt with the facts, not only over many, many days but after written submissions from Counsel in a very detailed judgment.  They were not bound to set out all of the facts in their judgment; they were entitled to find what evidence was persuasive to them, and to give such weight to each piece of evidence as they thought right.  

13	Just to take, perhaps, the leading example of Ms Lawrence’s submissions; her first point in this area was what she calls the ‘why’.  It comes to this: that the Tribunal did not sufficiently consider why all the acts of which Ms Lawrence was complaining had occurred and whether there was or was not some racial factor involved in all of them.  But it is clear to us that the Tribunal did consider ‘why’; they considered both the background and the history in detail, identified in each case what the complaint was about, what the facts of the complaint were, what the explanations put forward were, and asked themselves whether they accepted the explanation put forward by the Respondents or not.  That is, in our judgment, a sufficient consideration of what Ms Lawrence has called the ‘why’ and we put it in those terms because it is easier for her to comprehend precisely with which of her arguments we are dealing, when we put it that way.  

14	A second set of criticisms which Ms Lawrence makes is that the Tribunal failed to give sufficient weight to admissions or concessions which she says the employers made.  Let us give an example of the points that she has urged.  In a witness statement, (and of course we do not have notes of evidence, and do not know the details of what he actually said in his evidence):  Mr Williams, who was Deputy Chief Probation Officer, said that he acknowledged that Ms Lawrence had experienced racism in the sense of racism being endemic in institutions and there being a legacy of historic racism.  Ms Lawrence battens on that as an admission of the discrimination of which she complains; but it is only an admission (and it may have been contrary to other evidence for all we know) at the very highest of what has been called elsewhere ‘institutional racism’; and the existence or non-existence of institutional racism does not determine in any individual case whether a particular set of circumstances of which a person complains were or were not circumstances in which racial discrimination or victimisation occurred.  One, of course, can have racial discrimination without institutional racism, and one can have institutional racism without, on the facts canvassed before the Tribunal, there being on those facts racial discrimination in the case of the individual matters complained of.  It is suggested that this and other admissions were not properly given weight to by the Tribunal; we can see no basis on which it could be arguably said that this is so.  As we have already said, the Tribunal took the details of the facts into account.  We have not seen within the Tribunal a detailed recitation of every single piece of evidence which could be said to amount to an admission, but it was not necessary for the Tribunal to approach the facts in that way.  
15	A third example of Ms Lawrence’s criticisms is that, in December 1996, there were 4 persons, including Ms Lawrence, at a meeting.  The Tribunal accepted the evidence as to what happened in that meeting from one of them, Mr Morrell, although that evidence is said to have been inconsistent with what all the other persons present were saying and certainly inconsistent with what some of what those persons were saying.  In paragraph 143 of its decision, the Tribunal said that it reached its conclusions as to what happened in that meeting, taking into account Mr Morrell’s role within the service (that is a reference to his seniority, which is a legitimate factor which the Tribunal were entitled to take into account) and the Tribunal’s views as to him personally, which is plainly, in our judgment, a reference to the view that the Tribunal had formed of him, and his reliability as a witness during what was no doubt a lengthy exposure to their glare and concentration at the witness table.  Ms Lawrence argues that, if a balance of probabilities test is to be applied, where 3 persons say ‘A’ and one person says ‘B’, on the balance of probabilities ‘A’ is proved and ‘B’ is not.  That, with respect, is an error.  One does not assess whether something is proved to have occurred or not by the number of witnesses who give a particular version, but by the quality of the evidence that the witnesses give; and it is entirely open to a Tribunal to prefer the evidence of one person as to what happened at a meeting over the evidence of another 3 and it is not for this Appeal Tribunal to intervene where a Tribunal so prefers.  That being so, we do not propose to go through all the other arguments which Ms Lawrence has put before us.  That is not to say that we have not considered them, we most certainly have; but they all fall generally within the same rubric and approach which we have been outlining so far.  We have looked at them all and have studied the papers to which we have been directed to see if any of these arguments give rise to an arguable ground of appeal.  We have considered the points made in the Skeleton and in oral argument with care; and while we have sympathy for Ms Lawrence and understand why she feels very deeply about what has happened, we have no doubt there is no arguable ground of appeal based on all the arguments as to perversity which have been put before us.  
16	Finally we have to deal with the argument on constructive dismissal.  What the Tribunal found in relation to constructive dismissal was that the reason why Ms Lawrence sought employment elsewhere was not the matters which were set out in her 7 incidents of complaint, but because she was not shortlisted for, and appointed to the post of Senior Probation Officer in the spring of 1997.  Ms Lawrence points out that, while the 7 incidents had occurred quite a long time before, when she left in December 1997 the investigation of them was still going on, so, she argues, they could not be said to be factually separated from her leaving.  The Tribunal itself referred to that specifically in paragraph 293 of its decision.  It found that the one act of discrimination that it found to have taken place, was a repudiatory breach of contract, but that what had caused Ms Lawrence to leave her employment, as we have said was, according to their findings, the fact that she did not become shortlisted or get the job of Senior Probation Officer.  That was not a matter which formed any part of the complaints which the Tribunal was dealing with; it was, as we understand it, one of the complaints, or the complaint in the second set of proceedings which had been withdrawn.  The Tribunal having found, as it did, that there was no repudiatory breach which led to Ms Lawrence’s decision to leave, it was plainly right in law to find that there was no constructive dismissal.  

17	Had the Tribunal found that there had been the 7 acts of discrimination which Ms Lawrence complained of, it might very well have taken a different view; and if we had found that there were arguable grounds of appeal, and this matter were to go to a full hearing, and if the appeal were to be successful, then one can understand that the question of unfair dismissal would have had to be looked at again.  That is not however the situation; and there is therefore nothing in this ground either.  For these reasons, and we are sorry for Ms Lawrence that this is the result, we feel bound to decide that there are no arguable grounds of appeal and that this appeal must therefore be dismissed.