IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL

IN THE MATTER:

LEAVE TO APPEAL DECISION  

Reference:            [2022] TRE129

Before:                   Advocate C E Whelan, Deputy Chairman

DECISION

The request for leave to appeal fails.

REASONS

1.       By its judgment of 2^nd August 2023, the tribunal dismissed a claim for discrimination on grounds of race brought by the applicant against the respondent. The essential finding of the tribunal was that there had been no discriminatory act by anyone towards the claimant.

2.       In bringing this application for leave to appeal, the applicant rightly identifies the need to show an error of law if the application is to succeed. She goes on, correctly, to assert that such error can manifest itself by the tribunal misdirecting itself in law, or misunderstanding the law or misapplying the law; or by misunderstanding or misapplying the facts; or by reaching a perverse decision despite otherwise having proceeded properly.  She says that all of those things have happened in this case.

3.       Ground 1 deals with the degree of discrimination which must be demonstrated in order for a claim to succeed. The applicant says that the tribunal did not direct itself to the effect that direct discrimination will be established if the protected characteristic is a more than merely trivial factor in the treatment complained of.

4.       In the absence of any finding of discrimination in the treatment of which complaint is made, no such direction was needed or appropriate.

5.       I find nothing in this ground.

6.       Ground 2 the applicant sets out this passage from the Case Management Orders of 26 January 2023, and makes complaint:

“6. The Tribunal points out that in a discrimination claim the initial burden of proof lies with the Claimant to demonstrate her case and prove facts from which, absent a reasonable explanation, the Tribunal can conclude discrimination has occurred. Supposing that she can meet that burden, then an absence of evidence from the Respondent tending to show that discrimination had not occurred could rightly lead to adverse inferences being drawn against it by the Tribunal.”

7.       The complaint is that the tribunal is able to draw inferences from the facts it hears, and no mention of this is made by the tribunal.

8.       I have added italics to the passage above in order to draw attention to the fact that it is said therein that the tribunal can reach conclusions from facts presented. That amounts to the drawing of inference. I have added emboldened text to show that there is moreover an express reference to the drawing of inferences by the tribunal.

9.       In any event, the direct evidence in the case greatly reduced the need for inference. As it was, we were unable to conclude on any of the evidence, or by way of inference, that the applicant had suffered discrimination at all.

10.    I find nothing in this ground.

11.    Ground 3 complains, in effect, that there is no mention that the standard of proof to be reached by the applicant was the civil standard – the balance of probabilities. I note, though, that balance is referred to more than once in the judgment, thus: the balance which we have found in favour of the respondent.(para 47); We find the balance of the evidence to be in favour of the respondent(para 50). Read with the passage of which complaint is made in ground 2, it is clear that the burden and standard of proof are understood by the tribunal. It is not to be supposed that a tribunal comprised of these experienced members would think that the standard to be reached in a civil matter was the criminal standard.

12.    I find nothing in this ground.

13.    Ground 4  complains of this passage in the judgment: ‘ “…we feel that a particular, enhanced emphasis on discrimination training would be helpful”.

14.    Why, asks the applicant, should that be so, given that you have found no discrimination in this case? The answer is that we heard extensively of a large workplace in which many demanding tasks are undertaken and in which the employees do not necessarily speak English, or have any other language in common. The scope for misunderstanding was evident from this very case, in which the claimant appears wrongly to have thought that it was her race rather than her poor performance which was in issue. Although the respondent appeared to us to have reasonable measures in place to forestall / deal with any discrimination which might arise, it seemed to us that enhanced training would save others from the applicant’s error of supposing she was the victim of racial discrimination, when in fact it was her performance that was unsatisfactory. Enhanced discrimination training might emphasize the distinction between those two things, to the benefit of all.

15.    I find nothing in this ground.

16.    Ground 5: appears to be an attempt to argue a finding of fact. It is simply the case that following the orthodox ‘comparator’ path we found no evidence of discrimination against the applicant. No question of degree arose.

17.     I find nothing in this ground.

18.    Ground 6 complains that a finding should have been made that there had been a reference to ‘stupid Bulgarians’; and that this should have led to a finding of discrimination on grounds of race.

19.    The ground overlooks the passage at paragraph 12 of the judgment to this effect: ‘In this extract, therefore, we take note only of the alleged use of ‘stupid Bulgarians’ and treat it as potential evidence of racial discrimination, to be weighed with other evidence from both parties in the proceedings.’ The judgment shows that the tribunal proceeded accordingly, and preferred evidence that racial slurs of the sort claimed by the applicant did not take place. Expressly we preferred the evidence of those said to be the main culprits, Malgorzata Lacz and Ines Martins, both of whom appeared before us and gave us sworn evidence. The complaint amounts to an appeal against a finding of fact, and cannot therefore properly be heard.

20.    I find nothing in this ground.

21.    Ground 7 complains that victimisation and harassment were not considered by the tribunal; no allowance was made for the fact that at the outset the applicant was unrepresented.

22.    Claims for victimisation and harassment were not before the tribunal. An application had been made to include them, considerably out of time. On usual principles and after proper consideration the application was refused.

23.    This is not a matter arising from the judgment.

24.    I find nothing in this ground.

25.    For the foregoing reasons, I refuse leave to appeal the tribunal judgment in this matter.

Advocate C E Whelan, Deputy Chairman                                                                                Date: 30 August 2023