Appeal No. EAT/210/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 May 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
LORD DAVIES OF COITY CBE
MRS J M MATTHIAS

MRS A W AYOBIOJO	APPELLANT

LONDON BOROUGH OF CAMDEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR F EDWARD JUNIOR
(of Counsel) (not practising)
Instructed by:
Cain & Abel Law Firm
239 Missenden
Inville Road
London SE17 2HX	
For the Respondent	MISS  A MORGAN
(of Counsel)
Instructed by:
London Borough of Camden
Legal Department
Town Hall
Judd Street
London WC1H 9LP	

MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us by way of a full hearing the appeal of Mrs A W Ayobiojo in the matter Ayobiojo v London Borough of Camden.  The appeal arises against a profoundly unsatisfactory procedural background.  Mrs Ayobiojo lodged her first IT1 in February 1999, and at that stage she claimed sex discrimination, harassment, victimisation, harassment/victimisation, victimisation, victimisation, victimisation and constructive dismissal/victimisation.   

2	She lodged her second IT1 in late July 1999 and then she claimed racial discrimination, racial harassment, racial victimisation, breach of contract, sexual discrimination, sexual harassment, sexual victimisation and unfair dismissal.  

3	Still there has been no merits hearing and there have been further and better particulars, then yet further better particulars, and then still later particulars, and, as the Employment Appeal Tribunal observed at the preliminary hearing on 25 February of last year, we said:
“This case is an unfortunate example of the way in which a matter can be inflated and prolonged and made more expensive than one would think necessary if one or both parties put their mind to it, but, unfortunately, this preliminary hearing before us will do little to provide any early relief.”

4	But the preliminary hearing did at least have the merit of narrowing down the grounds of appeal permitted to come forward to this full hearing of Mrs Ayobiojo’s appeal.  The appeal is against a striking out of part only of her claims; the other parts were allowed by the Employment Tribunal to go ahead, but, of course, the appeal as to the part struck out has delayed the whole case, and it is very unfortunate that that has been the fact.  

5	What we are concerned about in this appeal is an appeal against a Decision of the Employment Tribunal sent to the parties on 25 January 2000.  As limited at the preliminary hearing, the appeal is only against the striking out of some parts identified as (a) and (d).  There is also an appeal against a refusal by the Tribunal below to review their Decision.  

6	Dealing first with the striking out of A and D - A is a case in racial discrimination, D is a case in sexual discrimination.  It needs to be borne in mind in this case that Mrs Ayobiojo is white and her husband is black.  

7	Her complaint at the material time was this: under the heading “A  Racial Harassment”  She said:
“1.   When Mrs Robertshaw”
(and that is a colleague of hers at work, senior to her)
“saw the Applicant on 20th December 1997 with her 2 mixed race children she looked at the Applicant disdainfully.  She gave the Applicant a filthy look of disgust with her 2 children of mixed race.  Even though the Applicant said hi to her she did not acknowledge her.
2.  From that day there was a sudden change in Mrs Robertshaw’s attitude towards the Applicant.  The Applicant began to be subjected to a number of less favourable treatment by Mrs Robertshaw (see below).  
3.  On a number of occasions, starting from about 4th January 1998, when Mrs Robertshaw passed by the Applicant, usually for the first time in the day, she would ask in a derisory and derogatory tone how are the splodge ……….This derogatory remark, although became lesser in frequencies, continued until about the time the Applicant was made redundant in March 1999 by the Respondent.
4.  Mrs Robertshaw’s continuous treatment of the Applicant especially with reference to the Applicant’s children made her ill and distressed.
5.  The derogatory remark and the stress caused by Mrs Robertshaw was such that the Applicant asked Mrs Robertshaw that when she is asking of her children, if she could not refer to them as children, the Applicant will be grateful if she does not ask her about her children at all.  Nevertheless, Mrs Robertshaw continued to ask her how are the splodge as if they were dirt. 
6. On 27th March 1998, the Applicant lodged an internal grievance against Mrs Robertshaw for this treatment.  The treatment was not properly heard or investigated by the Respondent.  
7.  On one occasion Mrs Robertshaw stopped by the Applicant’s desk, looking and pointing to the photograph of her children and said “what are these things on your desk?”
8.  The Applicant’s appeal in August 1998 against the Respondent’s finding of her internal grievance was never heard, up till the time she was made redundant on 31st March 1999.”

8	The Employment Tribunal’s response was first to say that they were not making findings of fact.  They said:
“…..we have considered the Applicant’s evidence and the pleadings rather than making a factual finding between the Applicant and Respondent on these issues.”
And a little later, they said:
“The complaint of racial harassment under paragraph A of the Further and Better Particulars dated 19th August 1999 is based on Mrs Ayobiojo’s claim that Mrs Robertshaw’s attitude to her amounted to less favourable treatment based on race.  She bases this on alleged remarks about the children being referred to as “sprogs” or “splodge” but she accepted in her evidence before us that the use of these words was not necessarily racial.  If this is her evidence, then clearly her claim will not succeed.”

9	At the preliminary hearing the Employment Appeal Tribunal said this:
“It seems to us that it by no means follows that because the use of a word is not necessarily racial that therefore a claim for discrimination on racial grounds based on issues will plainly not succeed.  One cannot disregard the context in which the word is used.  There are many words the use of which is not necessarily racial or racist but which may be racial or racist in a fully understood context.  A moment’s reflection on the word “spade”, for example, would illustrate that proposition.”

And then the EAT set out what Mrs Ayobiojo’s argument was in this part of the case.  

10	Of all the types of claim best determined on a full finding of fact against an understood background derived from the evidence, we would think that racial discrimination would surely come close to the top of any such list.  To bar a claim as a pleading because the claimant accepted, in evidence, that the remark was not necessarily racial seems to us to be inappropriate.  The question should have been whether, in the Employment Tribunal’s view and in point of language, the complaint made could not have been racist or, alternatively, if they were willing to find facts, that in context it was not racist. But neither of those things was done by the Employment Tribunal and so that extent we see error of law in their approach to the racial discrimination issue.  

11	But we need not say more about that because, happily, Ms Morgan, appearing for Camden had, unknown to us, but before the hearing, conceded that it was appropriate that the complaint of racial discrimination which the Employment Tribunal had struck out should be revived and should be enabled, therefore, to go to a full hearing on the merits.  We think that was a well made concession and we are grateful to Ms Morgan for drawing it to our attention, and to that extent, so far as concerns claim A,  the appeal is allowed and the claim that we have described is restored to the issues that can go forward to the full merits hearing which has been so long delayed.  

12	Now we turn to claim C.  Claim C is headed Sexual Harassment and it says:
“The Applicant’s treatment by Mrs Robertshaw in taunting and harassing the Applicant with regard to her children of mixed race amounts to sexual harassment.”

The Employment Appeal Tribunal, at the preliminary hearing, allowed this point to go forward to this full hearing on the ground that it adds nothing to point A and, in a sense, it does add nothing to point A, in the sense that the facts are exactly the same.  But, crucially, which was not sufficiently brought out in the judgment of the Employment Appeal Tribunal at the preliminary hearing, it purports to be a claim in sexual discrimination whereas, of course, point A was in racial discrimination.  What the Tribunal below said about it was this:
“So far as sexual harassment is concerned, we do not accept that remarks about children constitute sexual harassment simply because children are produced as a result of sex between their  parents.”

13	We too, have failed to see how the remarks which are exactly the same remarks as complained of as a basis of the complaint in racial discrimination in section A can properly lead to a properly constituted claim for sexual discrimination.  Ms Morgan has drawn our attention, of course, to section 1(1)(a) of the Sex Discrimination Act; she has reminded us that the term “sexual harassment” is not to be found in the Act.  She has drawn our attention to Smith v Gardner Merchant Ltd and to the comments it made on the case to which Mr Fred Edwards, for Mrs Ayobiojo, drew our attention, namely British Telecommunications PLC v Williams [1997] IRLR 668.  In the Williams case it was said by the Employment Appeal Tribunal that sexual harassment was a particular form of discrimination on the grounds of sex which can best be defined as:
“unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of women and men at work”

But here we have failed to understand in what relevant sense the remark could be taken to be unwanted conduct of a sexual nature.  

14	Going on, looking at the headnote of the Williams case, the EAT said:
“Because the conduct which constitutes sexual harassment is itself gender-specific, there is no necessity to look for a male comparator”

Well, leaving aside the doubt cast on that proposition by, in particular, Lord Justice Ward in Smith v Gardner Merchant Ltd, we have failed to see how the remarks that are relied upon can be understood to be gender-specific.  

15	All in all, we have been quite unable to understand how the allegation in D can amount, properly understood, to a claim in sex discrimination and accordingly, we dismiss the appeal so far as concerns section D and the complaint in section D is not to go to the full merits hearing at the Employment Tribunal.

16	That leaves the issue of the refusal of a review.  The preliminary hearing at the Employment Appeal Tribunal allowed the matter to come forward to this full hearing as the review had been declined by the Chairman alone but had not in terms said that there was no reasonable prospect of success.  Inherent in it, as Ms Morgan’s written argument sets out in particular, is that it is implicit in the Decision of the Chairman that he took it that the review did have no reasonable prospect of success.  We agree that that is a fair reading of the Decision as a whole.  It would, in our view, be quite wrong and ludicrously over-technical to take the view that the Chairman had not, in terms, said that he believed that the review had no reasonable prospect of success, when that was plainly, albeit implicitly, his view.  

17	Moreover, we do not see how the review could serve any practicable purpose.  It was not a review seeking to adduce new evidence; rather it was a review seeking to go over old ground again.  In the last paragraph of his Decision on 3 February 2000, the Chairman said:
“The Applicant’s solicitors letter of 19 January 2000 raises a number of arguments additional to those presented at the hearing on 22 September 1999.  It is in my view not in the interests of justice to allow a review which would in effect cover the ground of that hearing again albeit with a somewhat different emphasis from the applicant’s point of view.  There is nothing in the letter of the 19 January which suggests that there is fresh evidence which would justify a review but rather a reworking of the Applicant’s representatives arguments before the Tribunal.  In those circumstances the Application for a review is refused.”

18	We should add that there has been no appeal against the Employment Appeal Tribunal’s Decision at the preliminary hearing to limit the full appeal, as it did.  If, on the review, the Employment Tribunal confirmed the whole of its previous Decision, then the only point that it seems to us that arguably contains some error of law would be that which we have dealt with under “heading A” which, in the event, Camden conceded, and which in any event, we would have been persuaded to allow.  

19	So if that would be the result, the review would add nothing.  If the review confirmed everything except ground A then that would have added absolutely nothing towards what has emerged from this appeal.  If the review had done anything but those two things, in other words, had found some alleged error of law in some other part of its own Decision, then it would have been Camden that would have been here appealing.  

20	We cannot see that allowing the review, or the appeal against the review, has any practical prospect whatsoever of contributing to the administration of justice in relation to this case.  So far as concerns the appeal against the refusal to review, we dismiss the appeal.  Accordingly, the matter is now, at last we hope, after far too long a delay, to go to a full merits hearing and is to include the claim A for racial discrimination, but otherwise is to stay as the Employment Tribunal ordered it to be.