Appeal No. EAT/1108/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 February 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MRS M T PROSSER

MS M RAY	APPELLANT

REALIGHT LTD	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MS FINDLAY
(of Counsel)
Instructed By:
Royal College of Nursing
67-69 Harbourne Court
Harbourne Road
Edgbaston
Birmingham
West Midlands B15 3BU	

JUDGE PETER CLARK:

1.	This is an appeal by Ms Ray, the applicant, before the Southampton Employment Tribunal, sitting on 17 May and 15 June 200, against that Tribunal’s decision, promulgated with extended reasons on 2 August 2001, dismissing her complaints of unfair constructive dismissal and direct race discrimination brought against her former employer, the respondent, Realight Limited.

2.	Background

The appellant, who is of Indian ethnic origin, was employed by the respondent as a registered nurse at their Tatchbury Manor Nursing Home, near Southampton, from 20 April 1999 until her resignation, effective on 29 July 2000.  By her originating application she set out particulars of 10 heads of complaint which she contended, separately or cumulatively, amounted to less favourable treatment on grounds of her race (the discrimination complaint) and to a fundamental breach of the implied contractual term of mutual trust and confidence entitling her to treat herself as constructively dismissed.

3.	The Tribunal Decision

The Tribunal considered each of those heads of complaint individually, making findings of primary fact where a dispute arose, between evidence given by the appellant on her own behalf, and, by principally, Mrs Hartog, the Matron/Manager of the Home and also Mr S S Adkar, Managing Director of the respondent.  In short, where a conflict occurred, the Tribunal preferred the evidence given on behalf of the respondent.  Having found the facts, the Tribunal concluded:- 

(a)	that the appellant was not less favourably treated than others, but if she was it was not on racial grounds and 

(b)	that taken singly or cumulatively there was no breach of the implied term of trust and confidence but that, in any event, the effective cause of the appellant’s resignation was the fact that she found another job at Southampton General Hospital which suited her, it being a short bus ride from her accommodation.

4.	The Appeal

Ms Findlay’s principal line of attack is directed to the Tribunal’s fact-finding and reasoning.  It is well established that a Tribunal is under a duty to make all necessary findings of primary fact from which proper inferences may, where appropriate, be drawn, Anya v University of Oxford [2001] IRLR 377 and that adequate reasons for their ultimate conclusion should be properly expressed, Flannery v Halifax Estate Agents [2001] 1 AER 373.  

5	Did this Tribunal fail to discharge either or both of these obligations?  It is important to place Anya in context.  There, it was clear that there was a difference in treatment and a difference in race.  Dr Anya, who was black, had not been selected for a vacant post at the University.  The successful candidate was white.  The question was whether that difference in treatment was on racial grounds.

6.	In order to decide that question it was necessary for the Tribunal to make all necessary findings of primary fact based on the allegations made by Dr Anya before it could determine whether or not to draw the inference of unlawful discrimination, discrimination which may be subconscious as well as conscious.  

7	In the present case we are satisfied that this Tribunal did investigate and make findings on each of the ten allegations made by Ms Ray.  Ms Findlay has sought, in our view, to re-open those factual questions with that fine toothcomb deprecated by Lord Russell of Killowen in Retarded Children’s Aid Society Ltd v Day [1978] ICR 437 444D.  We shall not sanction that exercise.  

8	We have considered and reject the submission that in the various respects raised by Ms Findlay, the Tribunal has failed to make all necessary findings of primary fact or give adequate reasons for their decision.  The reality is that having carefully considered the evidence, preferring that of the respondent’s witnesses where a conflict occurred, they were unable to find any difference in treatment and insofar as explanations were given by the respondent, they were accepted by the Tribunal.

9	She raises a separate point in relation to the Tribunal’s finding that Mr Adkar threatened the appellant that he might seek a termination of her work permit for alleged poor timekeeping and would not permit the work permit to be transferred to another employer.

10	She submits that this is a race or nationality specific act for which no comparator is required under the 1976 Act.  That is not our reading of the Court of Appeal decision in Dhatt v McDonalds Hamburgers Ltd [1991] ICR 238.  There it was held that a comparison between those who required a work permit and those who did not was not a like for like comparison with the purpose of section 3(4) of the 1976 Act.  We think that the same principle applies here.

11	It follows that we are not persuaded that the appeal against the Tribunal’s finding that the claim of racial discrimination failed, raises any arguable point of law.  Since no separate point is taken in relation to the finding of no constructive dismissal, it follows also that this appeal must be dismissed at this preliminary hearing stage.