Appeal No.	 EAT/441/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 1996

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS M E SUNDERLAND JP
MR G H WRIGHT MBE

MISS J CORNELIUS	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR W PANTON
(of Counsel)
Instructed by:
Mr W Parry-Davies
Messrs Dowse & Co
Solicitors
23/25 Dalston Lane
London E8 3DF	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether the Notice of Appeal in this case raises any arguable point of law against a decision of an Industrial Tribunal which was held over a period of some sixteen odd days, which adjudicated on Miss Cornelius’s complaints of unfair dismissal, racial and sex discrimination. Those complaints were unanimously dismissed, for reasons given in a decision which runs to 49 pages and a copy of which was sent to the parties on 13th March 1996.

	Before us to today, Mr Panton whom if we may say so has conducted this appeal with conspicuous ability, has urged on us effectively that there are four points of law which we should consider.

	The first relates to paragraph 183 of the decision. There the tribunal indicate:

“That contemporaneous record of the allegations of sexual and racial discrimination harassment and discrimination, provides the Tribunal with an excellent opportunity to assess the possible truth or falseness of the allegations, and the good faith of the Applicant in making them. We analyse that account provided by Ms Bloch.”

At paragraph 184, having carried out an analysis, they conclude:

“The wildness and absurdity of the above allegations is clear, and casts an illuminating light on all such allegations made by the Applicant. We have no hesitation in holding that the accusations of racial and sexual discrimination made at the meeting in Ms Bloch’s office were false, and were not made in good faith.”

	The point that is put is this. If one looks at the letter of dismissal which sets out at length the reasons why the Council concluded that Miss Cornelius’s employment should be terminated. There is no suggestion made by the Council, expressly at any rate, that one of the reasons was that she had made a false allegation. Therefore it is said by Mr Panton, it was not right for the Industrial Tribunal to apply its mind to the question as to whether the allegations which she was making were false or not, which is what they have done at paragraphs 183 and 184. Therefore, it is submitted, the Industrial Tribunal have misdirected themselves; that was not an issue which they were required to determine. The basis of the decision to dismiss in the letter was:

“Your behaviour towards Caroline Bloch was hostile, aggressive, intimidatory and personally offensive. You have also made serious allegations against the Head of Personnel Services and Members of the Council. Further to this you have used derogatory language against a member of staff in CSG Personnel. I believe that your behaviour, the allegations and remarks made by you constitute gross misconduct. In behaving in this way you have broken the Council’s Code of Conduct ...”

	We see the force of this submissions and had there not been an allegation of victimisation in this case, we could have given some weight to it. But part of the complaint with which this tribunal had to deal was victimisation. I will return to that when I deal with the third point which was made by Mr Panton. Suffice it to say for present purposes, we are not in the slightest bit persuaded that it is arguable that the Industrial Tribunal were not entitled to reach their own conclusion on the truth or otherwise of the allegations, because it formed part of a picture and pattern which they thought that they had identified after a careful review of the facts which indicated that those with whom Miss Cornelius did not agree were accused of race and sex discrimination.

	The second ground of appeal relates to the alleged failure by the Industrial Tribunal properly to apply their minds to the principle that similar behaviour deserves similar treatment. In other words they failed properly to direct their minds to the disparity argument which was raised before them. We refer to paragraphs 252 and 253 of the Industrial Tribunal’s lengthy decision:

“252	We have also considered a submission that there was inconsistency in the treatment of the Applicant, compared with the treatment of other persons who have misconducted themselves. This submission was based on two pieces of evidence. The first was evidence by Mr James that “he had seen situation where other officers had done worse and not been punished”. The second was an incident described by Mr Hallisey when Ms Bloch was present. This was at a disciplinary meeting and a manager interviewing an employee became exasperated at not receiving satisfactory answers. The manager jumped up, knocked over his own chair in so doing, shouted and banged his fist of the table. No disciplinary proceedings took place against that manager.
253	The evidence of Mr James is too general and non specific to be of any assistance to us in considering this matter of disparity. However, we have given very careful consideration to the evidence of Mr Hallisey, which we accept, in preference to Ms Bloch’s, on that incident. That incident was not known to Mr Augrue at the time of his dismissal of the Applicant. No complaint had been made about it, nor any attempt made to initiate any disciplinary proceedings against the manager concerned. However, the Respondents cannot say that because a different human agent was involved, they did not know about the matter. We will assume in the Applicant’s favour that the corporate Respondents did “know” about that incident. We accept the potential relevance of arguments based on disparity. However, such arguments should not lead the Tribunal away from a proper consideration of the issues raised by Section 57(3) of the Act of 1978. The emphasis is that Section is upon the particular circumstances of the individual employee’s case. Tribunals are warned about adopting rules of thumb, or a tariff approach to industrial conduct. Ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. In any event, we consider that the incident for which the Applicant was dismissed was much more serious than that recounted by Mr Hallisey. We reject the submission that an inconsistency of approach resulted in unfairness in the dismissal of the Applicant.”

At paragraph 254 they concluded:

“In the result, we find that, bearing in mind the provisions of Section 57(3), the employer acted reasonably in treating the Applicant’s misconduct in Ms Bloch’s office as sufficient reason for dismissing the Applicant and we have determined that question in accordance with equity and the substantial merits of the case.”

	It seems to us, having looked with care at paragraphs 252 and 253, that the decision that they arrived at, that there was no detectable inconsistency in approach such as to render the decision in her case unfair, was one which they were entitled to arrive at, having regard to the evidence before them. We of course can only deal with points of law. We are not persuaded that the tribunal has erred in law in the way in which they have directed themselves as to the principle of similar behaviour deserving similar treatment.

	We turn therefore to the third point, which is the way the tribunal dealt with victimisation which is from paragraph 255 onwards. At paragraph 255 they set out the contentions which were made. They had regard to the decision in King v GB China Centre [1992] ICR 516, and refer to the relevant statutory provisions. They conclude:

“260	We direct our attention specifically to those allegations against Ms Freestone and Mr Howe on 12 May 1993 and we deal, in two ways, with the submission that the Applicant was victimised thereafter. Firstly, we find that whatever less favourable treatment the Applicant received thereafter was not by reason of any act protected by Section 4(1) of the Sex Discrimination Act of Section 2(1) of the Race Relations Act. Secondly, we find that the allegations by the Applicant of sexual and racial discrimination made against Mr Howe and Ms Freestone were false and were not made in good faith. Each of the Sections of the Acts referred to has a sub-section which provides that, “sub-section 1 does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith. In our judgment, the allegations made by the Applicant were false and were not made in good faith.”
261	The Applicant was as we have found, dismissed because of the “Bloch incident”. The words spoke by the Applicant on that occasion included clear allegations that she had been discriminated against by the Respondents on the basis of race and sex. They have been set out in detail elsewhere. The dismissal letter makes it clear that those allegations influenced the dismissal. Accordingly, it is submitted on behalf of the Applicant, that the dismissal is itself, “an act of victimisation”. We would be sorry if a person abusing another were protected by interspersing the abuse with racial and sexual allegations. We found that the allegations made in the Bloch incident by the Applicant, of racial and sexual discrimination, were false allegations and were not made in good faith. Therefore, sub-section 1 of Section 4 and of Section 2 of the respective Acts do not apply.”

	It will be noted that the Industrial Tribunal have asked themselves the question whether the allegations which formed the basis of the protected act had been made in good faith. They had regard, taking the Race Relations Act 1976 as the example, to section 2(2) which provides:

“	(2)	Subsection (1) does not apply to treatment of a person by reason of any allegation made by him if the allegation was false and not made in good faith.”

	It seems to us that although the IT3 is cautiously drafted in terms that it does not appear to be making a positive case, the Industrial Tribunal were required by the terms of the statute, whether under the Sex Discrimination Act 1975 or Race Relations Act 1976, to inform themselves as to whether a protected act had been committed. If an allegation of race discrimination formed the basis of the protected act, then they were required to ask themselves if the allegation was false or made in good faith. Accordingly, we are satisfied that that was an issue which they could properly consider in the context of the issues between the parties. It is to be noted that at the hearing in the Industrial Tribunal, both parties were represented by Counsel. Accordingly, we have no doubt that all issues were raised and dealt with in the course of argument, and there is no suggestion made to us today that their conclusions on this matter came as something of a surprise in terms that it had not been canvassed before the Industrial Tribunal. In those circumstances reverting to the first point that was made, if it was pertinent for the Industrial Tribunal to ask itself whether the allegations of discrimination which formed the basis of the protected act were well-founded and had been made in good faith, the Industrial Tribunal was fully entitled in arriving at that conclusion to have regard to the truth of falsity of other allegations which had been made. Accordingly we are not persuaded that it is arguable that the Industrial Tribunal has misdirected itself in law in dealing with the case of victimisation.

	I turn to the fourth ground, which is perversity. As we understand the submission made by Mr Panton, it effectively is harking back to the previous submissions which he had made. It seems to us that the argument on perversity, standing on its own, is simply unsustainable. This was a decision of enormous length, arrived at after a very long hearing. We have looked at the way the tribunal have dealt with the whole case, apparently in painstaking terms, perhaps on one view of it at inordinate length, but apparently conscientiously. We are unable to say that they misdirected themselves, or that their decision is so manifestly unreasonable to be categorised as perverse.

	We think that this is a most unfortunate case. Miss Cornelius was a well-respected, well-qualified member of staff, Senior Project Officer, employed for over six years in the MSD Division, having completed in 1986 a post-graduate diploma in Management Studies, and also a member of the Institute of Management Services and the Institute of Personnel Management. It would appear that the cause of the problem may have an underlying medical aspect to it, although that matter was, as it seems to us, properly considered by the Industrial Tribunal at paragraph 248 of their decision. This was a matter which no doubt caused them considerable anxiety, because it greatly affected the question as to whether an employer when faced with this pattern of conduct from an employee who had never been in trouble before in their employment history, could reasonably take the view that dismissal was a fair option. If seems to us that the way the matter was dealt with in the tribunal’s decision cannot be criticised, sad though the background to this case may be.

	In those circumstances we are satisfied that there is no arguable point of law fit for hearing before a full panel of the Employment Appeal Tribunal, and we shall dismiss this appeal.

	We refuse an application for leave to appeal. It seems to us that the Industrial Tribunal’s decision cannot be faulted for the reasons we have tried to express in this case. Accordingly it will be a matter for the Court of Appeal themselves to determine whether we were right in the view which we have formed.