Appeal No. EAT/1299/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 March 2001

Before
MR RECORDER LANGSTAFF
MR J R RIVERS
MR H SINGH

MISS T M MULLALLY	APPELLANT

SECURICOR RECRUITMENT SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS D KING
(Of counsel)
Instructed by:
Hillingdon Law Centre
12 Harold Avenue
Hayes
Middlesex
UB3 4QW	

MR RECORDER LANGSTAFF QC

1.	We have before us a Preliminary Hearing in an Appeal by the employee Appellant in respect of a decision by the Employment Tribunal for London Central, which was promulgated on 1 September.  It raises the often difficult question of the extent to which banter based upon racial identity may be acceptable in the sense that it does not offend the statute.  There is, I think, little doubt having heard the arguments of Miss King that such banter is inadvisable and where it comments upon the identity of an individual may be thoroughly undesirable.  One of the issues which this Tribunal had to consider was whether or not in the circumstances of the case before them it was a breach of statute.

2.	The Tribunal found that they had no jurisdiction to consider the Appellant’s complaint of unfair dismissal and they found that there had in the circumstances before them been no racial nor sexual discrimination contrary to the 1976 or 1975 Acts.  The facts are not in dispute save in a few limited respects.

3.	The Appellant was employed as a receptionist administrator.  She was first employed by the Respondent on 24 June 1998.  She stopped work on 16 February 1999 but she was asked to go back to work by her employer and did on 4 March 1999.  Then, she gave notice on 11 November.  The Employment Tribunal found that she told her branch manager that she found the job too much and did not enjoy coming to work.  They add that although it is clear that she did not have any problems operating the pay roll on computer she did not enjoy some of the other computer work.  Her contract obliged her to give four weeks notice but she asked to be retained until January 2000 and Mr O’Brien agreed.  In effect Miss Mullally resigned.

4.	She claimed in respect of her complaint to sex discrimination that she had had less favourable treatment than a man would have done in respect of Christmas holiday arrangements, in respect of the use of a computer, and in respect of the treatment which was given to one Mark Egan who was said to have been treated more leniently in respect to disciplinary matters than she would have been had they occurred in her case. 

5.	But the essence of the Appeal and the essence of her complaints before us, is the way in which her complaints of racial discrimination were dealt with.  The Tribunal found:

“It is accepted by witnesses for the Respondent that Miss Mullally’s accent was mimicked that the phrase “top of the morning” was used and that there had been mimicry of a television programme (That was the Father Ted programme)  All the witnesses are clear that this was in response to Miss Mullally herself making lighthearted references to her Irishness from time to time and exaggerating the way she spoke often referring to job applicants as “tick” and wishing other people in the office “top of the morning”.  Miss Mason-Hill for example accepts that she wished the Applicant “top of the morning” from time to time and this was usually in response to the Applicant wishing her “top of the morning”.  Sometimes she accepts that she would say it first.  This was because the Applicant was in the habit of saying it to her.  Mr Harris for his part (we are told that he was a peer of her) accepts that he mimicked the TV show but this was as a result of Miss Mullally bringing his attention to the character in the show he was mimicking in the first place.”

This conduct was conduct about which Miss Mullally complained to the Employment Tribunal.  They found in the last full paragraph as follows:

“In effect Miss Mullally is claiming that she was racially harassed by other employees mimicking a way of speaking particular to someone of her origin in a way which she found offensive.  We have no doubt that this is less favourable treatment on the grounds of race and is capable of amounting to discrimination.  However we have to find some element of detriment.  A racial insult such as mimicking might be considered to affect the working environment to such an extent as to amount to a detriment.  In this case however, we have found that Miss Mullally initiated what occurred and participated with her own light hearted approach to her racial origin.  In those circumstances we do not find that there was any detriment.”

The go on to say that they were confirmed in that view by:

“The fact that Miss Mullally did not raise the issue with anyone in a position of authority at the company at any stage and the first time it was raised was when these proceedings were launched.  This confirms us in our view that there was no detriment.”
7.	Before the Tribunal it was a matter of dispute whether Miss Mullally had complained to Mr Harris.  It was accepted that she had not complained to anyone else.  Of that the Tribunal said: 

“Mr Harris for his part accepts that he mimicked the TV show (and went on to say) he does not agree that Miss Mullally complained to him or that he told her that this was not a racial thing because she was white.  We prefer the account given by the Respondent’s witnesses and accept that whilst there was mimicry this was in response of Miss Mullally’s own light-hearted references to her origins. (and they go on to give three principal reasons for so preferring the Respondent’s witnesses)”

8.	In general terms, it is for an Employment Tribunal to assess the witnesses before them to assess the facts and to determine which evidence they prefer.  We take this as a finding that they preferred the evidence of Mr Harris that she had made no complaint to the Tribunal.  Miss King points out that that although that might be a reading of the paragraph it is arguably inconsistent with what then follows.  She says that attention should be drawn to the words:

“In the first place on her own account Miss Mullally did not raise the issue with anyone apart from Mr Harris during the time she was employed at the company.  Secondly, she did not raise the issue subsequently until launching these proceedings.”

She adds to that, the need to look with care at the finding on page 10 of the decision itself that they found as a fact that Miss Mullally did not raise the issue with anyone in a position of authority and I emphasise those last seven words.  The argument she says is circular.  There is no logic to identity as a reason for preferring the evidence of the Respondents that Miss Mullally did not raise the issue with anyone apart from Mr Harris since that after all was the issue or one of the issues which they were resolving.  If however, that reason was one which went to other matters in respect of which there were disputes and in respect of which the Tribunal might have been preferring the Respondent’s evidence then it makes sense to put it in that way.  She suggests that there is no logic in adding the words in a position of authority unless it were accepted that indeed Mr Harris had been approached.  It would be far simpler to leave the words out.

9.	We have been troubled by some of her submissions but we think there is a danger in over analysing the precise language used by a Tribunal and here it seems to us that the reasoning as expressed by the Tribunal is clear that they did not accept that Mr Harris had received a complaint.  If Mr Harris had not received a complaint then the issue which remained would be whether there was any other basis for finding that the treatment to which Miss Mullally was subject was less favourable treatment to her detriment.

10.	As to that Miss King points to the duty which is placed at the outset upon the employer under the Race Relations Act, to which the code of practice adds emphasis, that is a duty to ensure that racial discrimination does not take place.  She points to a report in 1997 demonstrating that the Irish are often the subject of discrimination and that there is a strong resistance to recognition of the Irish experience in Britain so that there is a widespread and almost completely unquestioned acceptance of anti Irish racism in British society.  

11.	The employer, approaching what happens in his work place in that night ought, she urges, - I am summarising her submissions I hope without doing them violence - to take account of the inadvisability of allowing any comment by way of banter in response to any employee’s racial origin.  It is different from ordinary banter because it affects identity and an individual’s identity is critical to his or her sense of dignity.  

12 	However, she was constrained to accept that inadvisable as such conduct is and inadvisable as it is for employers to permit it to arise where it may cause offence the law has not yet evolved to the stage at which it can be said that such banter is of itself necessarily a breach of the Race Relations Act.  The statutory test to which we have to have regard and which the Tribunal had to have regard is that set out in the Race Relations Act 1976.  Section 1(1)(a) defines discrimination as arising in circumstances in which a person discriminates against another if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons and, within the context of discrimination by employers, Section 4 makes it unlawful for a person to discriminate, in the case of a person employed by him by subjecting her or him to any detriment.  (Again, I am omitting immaterial words).

13.	The Tribunal by their conclusion here that Miss Mullally had herself not only accepted the humour but had herself encouraged it and participated fully in it led them to conclude that there was here no detriment to her.  We accept that an Employment Tribunal needs to undertake a sensitive examination of the circumstances, and in situations such as this, particularly where it involves purported discrimination against the Irish where for the reasons expressed in 1997 report such discrimination may easily be over looked, needs to look with particular care at the facts before it.

14.	Nonetheless our task here is to see whether there is any properly arguable case that this Tribunal applied a wrong principle of law or were perverse so that there is an arguable appeal.

15.	Once one takes the view that the Employment Tribunal here were saying that Mr Harris had not received a complaint by Miss Mullally at the time that the offensive conduct was being committed against her it was open to them, we think, to come to that conclusion.  It follows that we can see no arguable basis for a full appeal in this present case and the Appeal must be dismissed.  We would say only this that the arguments which Miss King has addressed to us with conviction have given us much greater pause for thought than we might otherwise have had and we are very grateful to her for her patient and sensitive exploration of what are, we think, difficult issues.