28th April 1997

My problems began soon after I started my employment at Hammersmith & Fulham Borough Council. The office was arranged in a way whereby my seating position was segregated away from other administrators and members of staff in general.  I quickly grew accustomed to my seating arrangement and just buried myself in my work each day.  I somehow did not find any time to make small talk with other members of staff and soon, I began to notice that both Jean & Glenda would speak down to me in a rather demeaning fashion when instructing me to carry out work in the office.  Other members of staff would make snide remarks which I assumed were directed at me.  I did not say anything in response to this behavior but, I did make a mental note of people’s behavior towards me.

Jean Cromwell (one of my line managers, my immediate superior), began to give me regular supervision whereby she took me into the small meeting room on the 3rd floor and she would sit me down and began to hurl insults at me with regards to my appearance and my attitude.  I was accused of having a permanent frown on my face, and I was told that I constantly sigh in the office which was taken as a sign of aggression.

In other supervision sessions that occurred in the following months, I was told that in Jean’s absence I did not work hard enough, that the jobs she had assigned me were not being done quickly enough, that I was not meeting the deadlines she had set for me.   Jean then informed me that I have been accused of shouting in the office in her absence.  I was also accused of shouting over the telephone.  I asked Jean to tell me the name of the person who told her those tales but she refused to tell me the name of the person who had accused me of behaving inappropriately.  The supervision sessions persisted and the allegations got even more outrageous. 

At one point Claud Osterman in IT even accused me of throwing water in the keyboard.  I denied it because of course it was not true, nevertheless, Jean insisted that I was lying and that in fact, the allegations were true.  One day during the supervision sessions, Jean let it slip that Simone Barestfield had informed her that I was shouting at staff over the telephone and that I was not working hard enough in the office.  I denied that comment immediately.  I explained to Jean that I was working twice as hard as any other staff in the office.  And, I attempted to express my concern that a manager such as Simone Barestfield should stoop so low as to falsely accuse me of not pulling my weight in the office. I felt despair because there was no one I could turn to for help or support. I felt like everyone in that office was against me, not because I had done anything to them to warrant that hostility, but simply because most of the junior staff in the office were afraid that they might become the next victims, and that their own jobs might be at risk if they did not comply with the majority.  

Eventually, I went upstairs and told Caroline O’Shea and Carmen Atman of the allegations that were being hurled at me by managers on the third floor.

I told them that Simone Barestfield had been telling tales to Jean Cromwell who then took me into the conference room and give me a dressing down based on false information obtained from Simone Barestfield.  This intolerable situation went on for 3-months but I stuck it out because I desperately needed the job and was determined to stick it out no matter what.

Then in July 1997, Jean Cromwell conducted an appraisal on me.  The appraisal was grossly unfair. She accused me of being incompetent, not being able to do the work properly despite the fact that during that first 3-months, I had completely set up a new filing system for the Child Protection Registration single-handed, set up a new system for the Guardian Ad Litem Invoices, set up a new system for the Missing Children Register both on Office Power TS3 System and on file. Set up a new system for the Schedule One Offender’s Records on Office Power TS3 System and on File.  Gone through all the records and re-arranged them into date as well as alphabetical order.

Recorded relevant children’s details on Office Power Record System before destroying manual files, which were more than five years old in order to make room for new ones.  Typed reports, minutes of meetings, letters, memos, and confidential documents. I set up new filing systems to record and keep copies of strategy meetings held regarding complaints made against teachers, care workers, and even social workers.  Set up new filing systems for reports and minutes of meetings.

At that moment in time, I felt that I was not appreciated for all the volume of work I did.  It also became clear to me that the two-line managers I was working for, namely Jean Cromwell and Glenda Allman wanted to take the credit for all my work, and instead of showing me a little appreciation for the work I did for them, they simply hurled abuse at me.  I knew then, that if I wanted to keep this job, I had to fight for it.

Monday 4th May 1998 

On Monday 4th May 1998, I was feeling extremely ill, brought on by anxiety, depression, and being overworked, so I did not go to work.  I called the office to explain that I was unwell and would not be able to come to work. I stayed in bed all that day trying to recover my strength but my illness got worse.

Tuesday 5th May 1998

On Tuesday 5th May 1998, I telephoned the office at 9 am, spoke to Carmen Mount, I asked Carmen to pass a message on to Jean Cromwell to say I was feeling extremely ill so I would not be coming into work that day, but instead, I was going to see my doctor.  I went to the doctor for medication.  I saw Dr Enzeoblen at 9:50 am.  He examined me and told me that I was showing signs of exhaustion, stress, and high blood pressure.  He asked me if I was experiencing problems in my life to account for my condition.  I explained that I was enduring a lot of stress at work due to the high workload I had at work as well as the intimidation, victimization and harassment I was receiving from certain managers at work.  He asked me for the names of the managers concerned, I told him their names were Jean Cromwell, Glenda Allman (my line managers), and Simone Barestfield the Administration Manager.  My doctor then asked me if I had done anything about it? I said no, I just kept my head down, got on with the work in the hope that things would get better. 

My doctor said I could not go on this way so he picked up the telephone and asked me for the telephone number of the company I worked for (Hammersmith & Fulham) Borough Council, he then asked for the name of my boss (who was on duty).  I gave them the information he requested.  When he dialed the number, he was told that Jean Cromwell was in a meeting so he spoke to Carmen Atman (PA to Assistant Director, Andy Chatsworth) instead. 

Dr. Enzeoblen left a message to say that he was signing me off work for at least a fortnight because I was suffering from exhaustion. After he made the call, he advised me to contact the Racial Equality Commission and lodge a complaint about the harassment I was (and still am)experiencing at work.  He gave me the telephone number and advised me to ring them as soon as I got home.

Wednesday 6th May 1998

On Wednesday 6th May 1998 at 9:30 AM, I telephoned the Racial Equality Commission, spoke to Mr. Eamon Olagama, gave him details of my complaint regarding the victimization and harassment I was experiencing at work.  I explained that I wanted this complaint to remain confidential because I was afraid of losing my job.  Mr. Olagama connected me with a female Complaints Officer (whose name escapes me).  The Complaints Officer advised me to lodge a formal complaint with the Unison Representative, give them all the details of the victimization I had been experiencing.

The complaints Officer took my full name, address, then she asked for the name and address of the company I worked for at which I was experiencing racial harassment.  I explained that it was Hammersmith & Fulham Borough Council.  The clerk obtained further relevant details from me before she finally assured me that all the information, I had given her would be placed on file confidentially and that I should not be afraid of losing my job because if I was dismissed unfairly, then it would be possible for me to bring the matter to the attention of a tribunal hearing.  The complaints officer also promised to send me details relating to victimization in the workplace through the post.  A few days later I did in fact receive those leaflets in the post.

Monday 18th May 1998

I returned to work on 18th May 1998.  Caroline O’Shea informed me that Jean Cromwell had lost the keys to the filing cabinet which housed the Child Protection Register during the period I was off on sick leave.  Caroline gave me a new set of keys and told me that the lock on the Child Protection Register Cabinet was now changed and the keys in my hand are for the new locks on the CPR filing cabinet.

Tuesday 19th May 1998

At approximately 2:30 PM Jean Cromwell escorted me to the small meeting room on the 4th floor of 145 King Street.  There, she handed me two letters.  The first was in relation to my sick leave which stated I was off sick for 2 weeks due to “High Blood Pressure”.  I disputed that claim and pointed out that the sick certificate stated clearly “stress of work, depression and high blood pressure”. Jean Cromwell disagreed.

Wednesday 3rd June 1998

On 3rd June a meeting was convened.  Present at that meeting was Jean Cromwell Line Manager), Mary Green (Unison Convenor), and myself.  I was disciplined by Jean for taking too many sick days off work and I was put on probation and told that if I took any more sick leave within the next 3-months, I would be brought up on disciplinary charges again.  I worked continuously for 4-months without taking off any further sick leave.  At the end of the 4-month period, Jean Cromwell informed me in writing that my probation period had ended.

Wednesday 4th August 1998

At this point in time, I decided to go to college to take a course: Business Technology Education Council BTEC National Certificate in Business & Finance.  So, on Wednesday 4th August 1998, I approached Jean Cromwell with the college details I had obtained from Lewisham College earlier.  I explained that I wanted to further my education by taking a business course at Lewisham College.  I explained that I wanted to start the course in September and asked her to sign a form, which would enable me to get financial assistance from the Training Department at Hammersmith & Fulham Borough Council to pursue this training course. 

Jean Cromwell refused to sign the form saying “that course does not directly relate to the work you are doing at present.  Therefore, you are not entitled to any help from the Council”.

Friday 7th August 1998,

I spoke to Robert Jensen (Head of Training Department).  I asked him if there was some way his Training Department could pay for my tuition without the authorization of my line manager? He said “No”.

Tuesday 1st September 1998

I enrolled at Lewisham College to do a course in BETEC National Certificate in Business and Finance. This was a vocational training course aimed at furthering my education to enable me to obtain a better-paid job later on in my career.  I paid an enrolment fee of £15.00 to start.  The remainder of the fees (£395.00) were to be paid by me at a later date.  I took the original documentation with me to work for a few days in my handbag in the desperate hope that Jean or Glenda would change their minds and sign the form on my behalf.  But they did not. 

Thursday 3rd September 1998

I was working at my desk in the afternoon when Glenda came to me and told me that she wished to discuss my college course with me.  She asked me if I still had the enrolment papers with me and I said “yes”.  I Immediately reached into my handbag and produced the documentation, then Glenda escorted me to a meeting room where Robert Jensen was waiting.

I was asked to sit down, then Glenda informed me that she would not sign the form to enable me to obtain financial assistance from the Council.  Then she suggested that I should study to become a social worker rather than attempt a Management Course.  She said that if my work improved then maybe next year she might reconsider.  I then responded by saying “no thank you”. If I have to start this course on my own then, I will finish it on my own.  I then made my excuses and left the meeting room with the documentation in my hand.  

I returned to my desk and placed the papers on my desk with the intention to return them to my handbag sometime later.  I continued typing the document that I had started before I was interrupted by Geraldine earlier.  About five minutes later, Geraldine came to my desk and sat down next to me in my spare chair.  She spoke to me about the work she wanted me to do later on.  She retrieved mail from her “In-Tray”, read some of them at my desk, and a few minutes later she returned to her own office.

When I finished typing the report, I searched my desk for the enrollment documentation (with the intention to place them in my handbag) but somehow they had mysteriously disappeared from my desk. 

I searched my handbag, desk draws, asked other staff if they had seen the papers, or picked them up by accident? But they all said no.  Nevertheless, the documents were nowhere to be found, they had vanished off my desk.   They were never found.  That afternoon, apart from myself, Glenda Allman was the only person who had access to my desk.  I did not see her remove those papers from my desk, so I could not accuse her outright of removing the papers from my desk, but it is my belief that she did it.  Lucky for me, the college was able to accept me without my copies of the enrollment documentation.

 11th January 1999

Jean Cromwell called me into her office, showed me a list of topics to be discussed at the supervision meeting on 12th January 1999.  Jean also showed me two letters of complaint she had received from Brenda Best accusing me of shouting over the telephone and using derogatory remarks over the telephone in December 1998.  I immediately denied those allegations.   I asked her to provide evidence of my misconduct, but Jean did not provide any evidence.  She claims that the complaint she received was sufficient for her to believe them to be true.

The second letter was from Glenda Allman who accused me of hanging up the telephone on her in December 1998.  I was shocked to hear these allegations.  I mumbled to myself “O God not more allegations”.  I told Jean that they were not true.  She looked directly at me and smiled and said we will discuss this in the supervision session tomorrow.  I began to feel anger and frustration building up inside me, and I did not wish to sit there listening to any more of those false accusations.  So, in response to Jane’s comment, I said OK and I got up and returned to my desk.  Jean followed me to my desk shouting for everyone to hear “Sarah I have not finished talking to you”.  I turned to Jean and said, “leave me alone, just leave me alone”.  I just cannot believe that they pay you a salary just to come to work and harass me like this.  Just then, Simone Barestfield walked over to my desk and shouted at me saying “Shut up Sarah, I do not want to hear another word from you”.  I did as I was told and said nothing more.  Jean returned to her office.

12th January 1999

At 1 PM Jean took me to the Supervision Meeting in the large conference room, 4th floor (next to the Director’s Office). To begin with we went through the list of the outstanding backlogs of work for me to complete within the next 2 weeks. I was again shown the two letters of complaint.  I was told she would carry out another investigation into my conduct, I was verbally accused of being aggressive, abusive and incompetent.  I was told to complete the backlog of work within the next 2-3 weeks. We discussed going through payments records on excel to ensure our records were up to date and that they coincided with that of Finance Department records.  We discussed the Child Protection Register records and things needed to bring it up to date.

Then Jean produced the two letters of complaint again.  The first from Glenda Allman who accused me of slamming down the telephone on her.  The second from Brenda Best who accused me of saying “meeting was a waste of time” over the telephone.  Jean explained that these were serious allegations and that there would be another investigation, which could lead to a Disciplinary Hearing.  Jean had the usual smirk on her face, which assured me that she took a great deal of pleasure gathering those false allegations against me.  At this point in time, I could feel a sense of anger, frustration and an overwhelming sense of helplessness come over me and tears began to fill my eyes.  I then told her that black people like myself are victimised every day of our lives and nothing positive is ever done about it!  I commented about black men in the streets who are constantly stopped and searched in the streets for no reason whatsoever.  Jean commented that my comments are unfair and unjust.  I then said to her “Jean you have no idea what it feels like to be black”.  Jean did not respond.  I then asked Jean “is this meeting over”?  She said “yes”.  Then Jean gave me a hand-written copy of the Appraisal, which took place in October 1998.  She told me that at some point in the near future I should read it and then sign it and return it to her.

I quietly left the conference room and returned to my desk downstairs.  As soon as I got to my desk, I burst into tears and began to sob.  Mark Rodney, Danny Wimplow, Andy Hogwarts and Ann (the temp) were all staring at me but said nothing.  Just then Jean came to me and told me to come into her office.

I followed her into her office and she sat me down and gave me a tissue from the box (which was lying on her desk) to dry my eyes.  Jean then whispered softly to me saying “Sarah you have only yourself to blame, you brought this on yourself because if you had left in 1997 when you should have, then none of this would be happening to you now”.  I just sat there and stared at her trying to control my sobbing.  After approximately a minute or two, Jean told me to return to my desk and carry on with my work. I left her office quietly and returned to my desk.  When I sat down, Mark asked me if I was OK, I said “yes” and continued typing up the minutes of the meeting I had begun earlier.

When I first came to work at Hammersmith & Fulham Borough Council, I was an experienced secretary who had previously worked for a Finance Company (Mercantile Credit Company Ltd) for 10-years.  I had also worked at the NatWest Tower in the City of London for 1-year.  I also spent several years earlier working as a legal secretary in the Chancery Lane area.  I was confident in myself and my abilities and felt that I could do the job assigned to me without any difficulty at all.  In fact, I knew for a fact that I was doing a good job.  But my immediate line managers did not appreciate my efforts and took steps to belittle me as much as they could, as often as they could.  Because I believe they wanted to get rid of me.  They had made that quite clear to me.

I was a highly skilled office worker.  But at that point in time, the UK fell into a deep depression, and many companies went into liquidation because they did not have enough money to go on.  Many hundreds of thousands of people lost their jobs at that point in time.  So, those people who still held a job were forced to hang on to their jobs regardless of how unhappy or miserable they work in that employment.  Because we know if we lost our jobs, we would not be able to find another job easily, if at all!

I worked hard to ensure all the work was completed on time regardless of whether or not Jean or Glenda was at work. Owing to the fact that their job was shared, I felt it was my duty to bridge the gap which occurred due to the fact that they job-shared.  I made sure I brought them up to speed when they began their shift.  I helped and assisted them in all the work they did.

I ensured that I demonstrated my skills and experience by carrying out work that I knew Jean and Geraldine should be doing as Line Managers.  But, as they did not show any interest in doing it themselves, I felt it my duty as the administrator of their team to do it myself.  So, I did.  I found myself approaching managers, social workers, and administrators alike, to chase up work that was not completed or to ensure that case conference minutes were placed on the Office Power System in order that I may confirm it at my end.  This did not go down well with those managers, social workers, and administrators who thought I was overstepping my bounds.

But at the same time, Jean and Geraldine were attacking me by accusing me of not doing my job satisfactorily when in fact, they were the ones who were not doing their jobs satisfactorily.  However, as I said before, there was no one I could turn to for help and guidance.

I have been used and abused by Jean Cromwell and Glenda Allman for two years now.  I am very unhappy working for them and although I do need to keep my job, I feel I can no longer work for them and keep my sanity at the same time.

No matter how hard I work or how much I do for them, they are never satisfied.  I want the harassment, victimization, and intimidation in the workplace to stop.

18th May 1999

London Borough of Hammersmith & Fulham Social Services Department)

Between April 1997 and September 2000, I (Sarah Kerr) have worked with the following members of staff in the Social Services Department.

They have all since received promotions and have moved on to better-paid jobs within the Borough Council while I, on the other hand, was removed from my job, demoted, and placed in the Older Persons Section as a supernumerary employee for 1-year and 3 months.  The names of those that have obtained promotion and better-paid employment are as follows:

May McDoogan:

Between 1997-1998, May McDoogan worked as an Administration Assistant on the 3rd Floor, 145 King Street, where I worked at the time.  In 1998, May falsely accused me of shouting in the office (I suspected she was persuaded to do so by Simone Barestfield (Divisional Manager) to falsely accuse me of shouting in the office because I was punished and a couple of weeks later Simone Barestfield interviewed May McDoogan for a job in the Transport Team and May got the job.  May McDoogan later came to me and apologized for having told a lie to me.  She said she felt a need to apologize to me because she felt guilty and since that incident, she was having trouble sleeping at night.  She asked me to forgive her.  (It was with a heavy heart, I reluctantly agreed to forgive her because at that point in time, the damage had already been done, and nothing I say or do could change that).  

Mark Rodney:

Between 1998-1999 Mark Rodney worked as an Administration Assistant in the Social Services Department, the same area as myself on the 3rd floor of 145 King Street.  After I was fired and removed from my post in June 1999, it was announced via email to all staff that Mark Rodney had obtained promotion and had relocated to the Youth Offending Team in August 1999.

Valerie Pace:

In the Older Persons Team, Social Services, 145 King Street, Valerie Pace sat next to me in the office on the 2nd floor.  Valerie worked as an Administration Assistant in that team.  She worked for Adam Tyrell and Sasha McConnell.  Occasionally, when Fern Trevaun’s admin assistant was absent from the office, Valerie was asked to do work for Fern as well.  Valerie constantly complained about the volume of work she received from all three Divisional Managers and the fact that she would not understand Adam Tyrell’s handwriting.  She hated the job and she made it clear to staff in the Human Resources Department.

In May, Nadene – PA to the Assistant Director announced that she was retiring, Vicky Page applied for the job.  I was mysteriously accused of shouting over the telephone by another member of staff, an investigation was conducted in June and I was later told that there was no case to answer.  In the meantime, Vicky was interviewed by Simone Barestfield for the post of PA Secretary to Jim Radley and she got the job.  So, I was denied the chance to apply for that post.   I was qualified and experienced enough to have got that post however, I was prevented from getting it because of four reasons.

1. Valerie told me that the job was advertised, however, to this day, I never saw that advert in any of the job vacancies circulated and distributed around the office.

2. I was again falsely accused of shouting in the office just at the crucial moment when certain members of staff knew that a suitable promotion was coming – they wanted to make sure that I did not get the job.

3. Valerie Pace accused me and other Admin Support Officers of not answering the telephone when it rings. She lodged a formal complaint to Simone Barestfield who in turn sent us all email accusing us of not answering telephone calls for Valerie The pace and not doing our jobs properly.  Clearly, this was a false accusation made by Valerie in order to discredit me whilst seeking to secure a promotion for herself at the same time.  Office Politics as well as other unfair and injustices perpetrated by a handful of individuals within the Department.

4. I was not given the chance to apply for the job because I am a black woman and of course, they did not want to give job promotions to a black person.  Especially the position of Personal Assistant to an Assistant Director or anyone senior within the council, because jobs like those were earmarked especially for someone who was while and therefore considered better suited to those positions.

It did not matter to them how qualified or experienced I was, they had this unwritten rule that did not allow black members of staff to obtain permanent promotions of any kind.  If a black person obtains a promotion, it is only for a temporary period of time such as a secondment. So once again, another person got promoted and I was left behind.   In March, Tommy Hedges informed me that he was going to be transferred to Children Services, South in Barclay House.  I believe he also received an increase in salary for giving false statements against me in the disciplinary hearing held in June 1999 just before I was dismissed from my job.

During the time I was employed by Hammersmith & Fulham Council, I was denied the opportunity to apply for each and every promotion that came up.  Management took steps to prevent me from obtaining advancement at every turn.

Danny Wimplow remained as Simone Barestfield Admin Support Officer. I understand that Simone Barestfield rewarded him handsomely in the form of a secret salary increase for falsely accusing me of shouting in the office and giving false evidence against me in the disciplinary hearing held in 1999.

I have become a laughing stock in Hammersmith & Fulham Borough Council.  Whenever I go into that Council, members of staff are constantly whispering about me and as soon as they caught sight of my face they stop talking and looked away or turn their backs on me.

Sarah M. Kerr

Typed: 5th September 2000

Immediately after losing my job at Hammersmith & Fulham Council in 1999, I took them to the Employment Tribunal believing that I would obtain justice in court.  But I was wrong.  Once again, I came to realize that there is no justice in the British Courts for black People, especially one such as myself.

Believe me, I am speaking from experience, as you will come to see for yourself as my story progresses into the future.

The Employment Tribunal held on 20th August 2001

Decision of the Court

In this court hearing, I was forced to represent myself in court, because at that point in time, I could not find a law firm or a solicitor anywhere in London who would take on my case and represent me in court.  That just goes to show how civilized the British Jurisdiction System was back then.

I have decided not to name the presiding Judge, for fear of a legal backlash, but the following information was the decision made by the presiding judge and other members of the court.

The unanimous decision of the Tribunal is that:

1.      Case Number 2204720/00 1.1  The Applicant’s claim of direct racial discrimination in relation to her non-appointment to the out of personal and administrative assistant is out of time, does not form part of a continuing act and it is not just and equitable to extend the time and the Employment Tribunal has no jurisdiction to consider this complaint. 1.2  The Applicant’s complaint of harassment by way of racial discrimination fails.

1.3  The Applicant’s complaint of victimization under section 2(1)(d) of the Race Relations Act 21976 fails.

2.      Case Number 6000539/00

2.1 The Applicant’s complaint of racial discrimination in relation to a preliminary investigation fails.

3. Case Number 6000631/00

3.1 The Applicant’s claim of direct racial discrimination in relation to two part-time post in January 2000 is out of time and it is not just and equitable to extend the time and there is no jurisdiction for the Employment Tribunal to consider this complaint.

3.2 The Applicant’s complaint of direct racial discrimination in relation to a job share post in September 2000 fails.

3.      Case Number 6000632/00

The Applicant’s complaint of direct racial discrimination fails.

4.      Case Number 6000633/00

The Applicant’s complaint of direct racial discrimination fails.

1.    EXTENDED REASONS:

The Applicant Miss S. Kerr (aged 45) was employed by the Respondent as an Administrator from 28 April 1997 until 11 April 2001.  She presented five originating Applications to the Tribunal on the date set out by the respective case number.

Case Number: 2204720/00                        14 August 2000

Case Number: 6000539/00                         06 November 2000

Case Number: 6000631/00                         09 November 2000

Case Number: 6000632/00                         09 November 2000

Case Number: 6000633/00                         09 November 2000

2.    THE ISSUES:

The issue for the Tribunal is as follows:

2.1  Case Number: 2204720/00

2.1.1 Whether the Applicant was less favourably treated by reason of her race under section 1(1)(a) and 4(2)(b) of the Race Relations Act 1976 in relation to her non-appointment to the post of Personal and Administration Assistant to Managing Directors Department between 2 and 11 May 2000.

2.1.2 Whether the complaint at 2.1.1. is out of time or amounts to a continuing act of race discrimination or whether it is just and equitable to extend time in relation to the complaint.

2.1.3 Whether the Applicant was less favourably treated by reason of her race under section 1(1)(a) and 4(2)(c) of the Race Relations Act 1976 in relation to allegations of harassment.

2.1.4 Whether the Applicant has been victimised under section 2(1)(d) of the Race Relations Act 1976, the protected act being a memorandum to her union dated 18 May 1988 and the treatment complained of being alleged harassment accusations of rudeness and disciplinary hearing between January and September 1999.

2.2  Case Number 6000459/00

Whether the Applicant was less favourably treated by reason of her race under section 1(1)(a) and section 4(1)(b) and 4(2)(c) of the Race Relations Act 1976 in relation to matters arising from a preliminary investigation.

2.3 Case Number 60006321/00 2.3.1 Whether the Applicant was less favourably treated by reason of her race under section 1(1)(a) and section 4(1) (b) and 4(2)(c) of the Race Relations Act 1976 in relation to two part-time jobs and a job share.   2.3.2 Whether the complaint at 2.3.1 in relation to the two part-time jobs is out of time of amount to a continuing act of race discrimination or whether it is just and equitable to extend time in relation to that complaint.   2.4  Case Number 6000632/00 2.4.1 Whether the Applicant was less favourable treated by reason of her race under section 1(1)(a) 4(1)(c) or 4(2)(c) of the Race Relation Act 1976 in relation to the placing of advertisements in the job’s vacancy circular of the Social Services Department. 2.5 Case Number 6000632/00 Whether the Applicant was less favourably treated by reason of her race under section 1(1)(a), 4(1)(c) or 4(2)(c) of the Race Relations Act 1976 in relation to a job interview. CONDUCT OF THE HEARING: 3. At the beginning of the hearing the Chairman explained to Miss Kerr the way in which the proceedings would be conducted.  The Chairman repeated the explanation of the cross-examination to Miss Kerr prior to the cross-examination of the first of the Respondent’s witnesses and explained to Miss Kerr the nature of submissions.

4. It appeared during the course of Miss Kerr’s evidence that there were additional documents which she wished to introduce into the proceedings.  The Chairman directed that Miss Kerr should produce a list of documents that she wishes to refer to, together with the page numbers in the agreed bundle or any additional documents.  Miss Kerr produced a list of documents after the lunch adjournment on 18 June 2001 and at the beginning of the hearing on 19 June 2001 produced three bundles of documents which the Chairman indicated should be handed to Mr Caspel for the Respondent, prior to being shown to the Tribunal.

5. After the lunch adjournment on 19 June 2001, Mr Caspel indicated that the documents produced by Miss Kerr fell into three categories.  There was no objection to a memorandum from Miss Kerr to her UNISON Representative dated 18 May 1998 as this document was what was alleged to be protected act in case number 2204720/00.  There was a second bundle of documents which were duplicates of the documents already in the bundle and these were accepted.  In relation to the third bundle of documents, contained in a blue file, Mr Caspel told the Tribunal that these contained the Respondent’s Child Protection Register and other documents in relation to protected children, giving details of those children and notes made by Miss Kerr in which she recorded what took place. 

The Respondent was extremely concerned, that Miss Kerr having left the Respondent, these documents were in her possession and that she had removed them from the Respondent’s office.  The Tribunal considered that the documents were clearly confidential and refused to allow them to be used in the proceedings.  Miss Kerr conceded that if the documents ere not going to be used in the tribunal hearing, then the respondent could keep them.  The Tribunal noted that Mr Caspel handed the file to Mr P. Hamilton had given his evidence.   6. Miss Kerr had obtained witness orders against giving individuals.  These were:

6.1   Irene Cadbury; 6.2  Martha Romney 6.3  Mavis Ifaluma 6.4  Dan Cambridge 6.5  Ian Edison   Miss Kerr told the Tribunal that Mr Edison was not coming to court to give evidence.  During the course of the hearing, Irene Cadbury sent a fax to the Tribunal to say that she would not attend the tribunal to give evidence after all.   Mr Dan Cambridge had not been properly served, his witness order being returned to the Tribunal offices and Miss Martha Romney and Miss Ifaluma gave evidence under witness orders.   7. At the end of the Applicant’s case following an application by Mr Caspel, for the Respondent, the Chairman explained that the Applicant’s case was finished and she would not be able to adduce further evidence.  The Applicant told the Chairman that she understood this.  During the course of Mr R. Devine’s evidence, (on behalf of the Respondent) the Applicant applied to the Tribunal to introduce a tape recording to prove the date of relocation to Cobbs Hall.  This application was refused by the Tribunal on the grounds that the Applicant’s case was ended and no application to introduce a tape recording had been made by Miss Kerr at any earlier time during the course of the proceedings.   8. At the beginning of the cross-examination of Miss Barestfield, who was the second witnessed called by the Respondent, Miss Kerr indicated that she had not had time to prepare for cross-examination.  The Chairman offered Miss Kerr 10 Minutes to collect her thoughts but Miss Kerr declined this.   EVIDENCE:

9. The Tribunal heard the following witnesses called on behalf of the Applicant:

Miss S. Kerr (Applicant)

Miss M. Romney

Miss M. Ifaluma

The Applicant had a witness statement and the chairman went through the witness statement with the Applicant to ensure that if there was additional evidence that she wanted to give she did so.   10.  The Tribunal heard evidence from the following witnesses called on behalf of the Respondent each of who gave evidence by means of a witness statement. Jean Cromwell Simone Barestfield Rob Digby Doreen De Seavey Danny Wimplow Ronda Varman Peter Hamilton Viola Burges Mazey James Fiona Gilbert Brenda Best   In addition, the Tribunal had a statement from Mr P. Redraught.  Miss Kerr indicated that she wanted to ask Mr Redraught one question which the Tribunal established had already been answered by Miss Burges.

11.  In addition, the Tribunal had an agreed bundle of documents (in two volumes together with the Applicant’s memorandum to her UNISON representative dated 18 May 1998. References in this decision to page numbers in the agreed bundle.

THE MATERIAL FACTS:

12.  On 24 April 1997 Miss Kerr started her employment with the Respondent as an Administrator Scale 4.   The evidence was that the terms Administrator and Administrative Assistant were inter-changeable and that the scale, in Miss Kerr’s case Scale 4, determined the level of seniority.  Miss Kerr was an Administrator in the Child Protection Department of the Respondent.  Her duties included providing secretarial and administrative support including typing, attending meetings, taking minutes of meetings, and dealing with telephone calls.  In addition, Miss Kerr took monthly statistical data on Child Protection to Sister Disley of the Accident and Emergency Unit at Charing Cross Hospital.  Miss Kerr was Administrator to the post of Principal Officer Child Protection which was shared on a job share basis between Miss Jean Cromwell and Miss Glenda Allman.  Miss Cromwell and Miss Allman shared Line Management responsibilities for Miss Kerr.  Miss Cromwell told us that she took the lead in relation to this responsibility.

13.  The Responsibility had a probationary period set out in its probationary procedure. During her probation, Miss Kerr had supervision with Miss Crowther on a fortnightly basis.  After her probation was confirmed, supervisions were made formal on a monthly basis.

14.    Miss Cromwell completed a probationary report for Miss Kerr on 22 July 1997 (Pages477-479).  Miss Kerr set out her response to the probation report on 15 August 1997 in a document which appeared at pages 336-339 of the bundle.  Miss Kerr’s response set out her duties and comments on Miss Kerr’s view of herself.

15.  On 5 May 1998 Miss Kerr saw Dr Enzeoblen also advised Miss Kerr to contact the Council for Racial equality and gave her a telephone number.  Dr Enzeoblen spoke to Miss Cromwell and indicated that Miss Kerr was off sick with high blood pressure.

16.  Miss Kerr contacted the Commission for Racial Equality who advised her that she should lodge a formal complaint with the UNISON Representative.  Miss Kerr did this by her memorandum to Mary Green the UNISON Trade Union Representative dated 18 May 1988.  The memorandum stated.

“I wish to lodge a formal complaint of racial harassment in the office by Simone Barestfield, Jean Cromwell and several other members of staff in the office who are or who have been manipulated by the above-mentioned persons”.    I have constantly been accused of raising my voice in the office when in fact I hardly ever stopped work long enough to speak to anyone casually, let alone raise my voice to them.  I always make a conscious effort to speak softly to colleagues over the phone.  I also ensure that I am polite and friendly to all members of staff.   Nevertheless, I constantly find myself being picked on in the workplace, and I am harassed on a daily basis and find myself unable to respond for fear of being further accused of actions unbecoming to the Council’s policies.   It is my belief that certain members of staff are attempting to build a case against me in order to have me removed from my current position (however humble it might be).   I work very hard each and every day.  In fact, I sometimes feel that I am being asked to do a great deal more work than should be necessary for an employee of my grade or standing.  Nevertheless, I do as I am told.   At this point in time, I feel I have no other recourse other than to make this complaint in the hope that I might eventually be left along to do my job.   This letter was relied upon by Miss Kerr as the Protected Act in her claim of victimisation under section 2(1)(d) of the Race Relations Act 12976 in case number 2204720/00.  The evidence of Miss Cromwell and Miss Barestfield was that they were unaware of this complaint until it was presented as part of the disciplinary proceedings in June 1999.   17. On 3 June 1998 a meeting took place between Miss Cromwell, Miss Kerr and Miss Green of UNISON because Miss Kerr had triggered the sickness absence procedure by exceeding the target number of days sick.  The outcome period in which to improve her sickness absence and was recorded in a letter to Miss Kerr from Miss Cromwell dated 8 June which appeared at page 448 of the bundle.   18. By a letter dated 24 December 1998 (page381) Miss Best the Head of Information and External Relations of the Education Department wrote to Miss Cromwell complaining that she had telephoned Miss Kerr to ask for an appointment with Miss Crowther and “she said that you had something on in the morning and that you were due to meet with her at 2PM.  I asked what time you’re meeting with her would be finished she said that she did not know and that it was a waste of time anyway”   At this point I said to Sarah that I did not think that she should be speaking to me about you in this way.  She did not respond.  I said I would speak to you directly about a meeting day.    I was quite taken back by Sarah’s lack of professionalism and co-operation and would be grateful if you would deal with this matter in an appropriate way”.   19.  On 12 January 1999 Miss Kerr had a supervision with Miss Cromwell.  At this supervision Miss Crowther discussed the complaint that she had received from Miss Best and other complaints from Miss Allman and considered with Miss Kerr how she could deal with her backlog of work.   20 Following a number of complaints about Miss Kerr’s behaviour Mr Andy Chatsworth the Assistant Director of Community Social Services asked Miss Sasha McConnell, Divisional Manager for people with learning difficulties and people with physical disabilities to conduct a preliminary investigation under the Respondent disciplinary procedure.  Miss McConnell wrote to Miss Kerr by letter dated 22nd February setting out the three allegations of misconduct being investigated namely.   “1. An incident took place on 30 November 1998 when you became agitated when asked to maintain the Principal Officer’s diary by Glenda Allman and put the telephone down on her, thus failing to comply with the legitimate management instruction and maintain official records.   2. On 7 January 1999 your behaviour was offensive to your manager.   3. A complaint was received from Brenda Best dated 24 December 1998 (copy enclosed) that you did not facilitate her planning of a meeting and made inappropriate statements about your managers”. 21.  By a letter dated 14 April 1999 (page 295) Mr Chatsworth notified Miss Kerr that she was convening a disciplinary hearing on 29 April 1999.  The letter said that he would consider the following allegations.   1. That you behaved in an unprofessional and offensive manner towards both fellow colleagues and your line managers. 2. You have made inappropriate remarks and detrimental statements about your line managers”. Following various correspondence, the disciplinary hearing was fixed for 8 and 10 June 1999.

22. The disciplinary hearing took place on 8 and 10 June 1999.  Mr Chatsworth was the Chairman of the hearing. The hearing was attended by Miss Cromwell, Miss Allman and Miss Barestfield the Divisional Manager for Resources and Support Services within the Social Services Department.  Miss Kerr attended with Miss Green, her UNISON Representative.  

23. On 10 June 1999 Miss Green send a memorandum to Mr Chatsworth in which she stated

“It has been agreed that Sarah would be granted special leave for the afternoon of 10 June 1999 to return to work for a meeting with Rob Digby (Employee Relations) which has been set for Friday 11 June at 9:30 AM to discuss this transfer.  It was also agreed that if there is nothing available at this time which may be suitable then Sarah will be granted special leave for the rest of 11 June 1999 to continue the week commencing Monday 14 June to Friday 18 June.  If nothing else has been identified”.     The letter requested a transfer for Miss Kerr.  

24. At the end of the hearing on 10 June 1999 Mr Rob Digby accompanied Miss Ker out of the Respondent’s Building.

25. Mr Digby explained to the Tribunal that Mr Chatsworth Division of Respondent comprised five main local offices at Sawley Road, 145 King Street, Marzelle House, Cobbs Hall and Barclay House.  Miss Kerr had had communication difficulties with staff at Barclays Road, and Sawley Road and had expressed a preference not to go to those sites.  Mr Digby did not wish to place her at 145 King Street because of the possibility of coming into contact with the staff who had given evidence in her disciplinary hearing.  That left only tow locations at Cobbs Hall and Marzelle House.

26. By a letter dated 16 September 1999 Mr Chatsworth wrote to Miss Kerr following a meeting with him on 14 September at which he had read out his decision.  The letter of 16 September states.

“Having heard my finding, your representative, Mary Green, referred to the submission she made in the course of the hearing that the allegation of racial harassment and discrimination be formerly investigated.  I said that were this matter to be formerly put in the form of an allegation in writing, I would have arranged for it to be investigated.   I confirmed that I had agreed to your request that you be found a different job.  I have left a message asking for Rob Digby or one of his colleagues from personnel, to meet with you and Mary Green to consider the options for your re-deployment.  

27 Mr Chatsworth’s letter of 8 September 1999 was before the Tribunal at page 272 to 275 of the bundle and set out his decision following the disciplinary hearing.  He concluded that the allegations against Miss Kerr were proved and set out the evidence that he took into account.  He concluded that Miss Kerr should be given a first written warning and specifically agreed to Miss Kerr’s request to be transferred to another post under different line management arrangement to be arranged in the near future.

28. Neither Miss Kerr or Miss Green ever put forward any written allegation of racial harassment and discrimination to the Respondent.

29.  In September or early October 1999 Miss Kerr was held as a supernumerary at Cobbs Hall to work in an administrative capacity as a temporary measure.  Miss Kerr complains that she was required to work in a dark cold basement with cobwebs but did not complain to anyone at the time.

30. On 6 January 2000, Miss Kerr moved back to 145 King Street on the second-floor reporting to Fiona Gilbert a support service manager in the social services department of the Respondent.  At this time Miss Kerr was still undertaking a supernumerary job.

31. Miss Kerr refused a number of offers that were made to her, in particular, there was a vacant full time for 18-months due to a secondment but this was rejected by Miss Kerr (on the grounds that the job offered for an 18-months period was a secondment post and not a permanent job as they would have you believe.  Also, getting to the location on a daily basis by public transport would prove extremely difficult for someone without a car), she therefore remained a supernumerary.

32. In May 2000 Miss Kerr applied for the post of Personal and Administration Assistant at grade SO1.  On 11 May 2000 she was notified by letter from Miss V. Burges, Administration Manager that she was not short-listed for the interview.

33. On 15 May 2000 Handy Van Zepture, a Social Worker, had a telephone conversation with Miss Kerr following which he lodged a complaint.  On 17 May 2000 Mr Teddy Mandalink lodged a complaint about Miss Kerr. 

34. On 12 June 2000 Miss Kerr submitted a grievance letter to Mr Digby by hand.  The letter was dated 9 June 2000.  Miss Kerr claimed harassment and victimisation from members of staff within the office.  Mr Digby acknowledge the letter.

35. Between April 1997 to July 2000 Miss Kerr applied for eight separate jobs with the Respondent. But she was none offered any of those jobs.

36. On 14 August 2000 Miss Kerr presented her first Originating Application in case Number 2204720/00.

37.  On 27 September 2000 an incident took place between Miss Kerr and Miss R. Varman, a Social Worker in the Older Person team, in connection with a panel report which Miss Vernon placed in an orange in-house envelope.  Miss Kerr told Miss Vernon that this was not good enough and she would not accept it in an orange envelope and it must be presented in a brown envelope.  Miss Varman complained about the matter to Miss Fiona Gilbert.  We heard evidence from Miss Varman who we found to be in entirely credible witness and we accept her evidence in its entirety. 

Miss Gilbert a meeting with Miss Kerr on 28 September to raise her concerns about the incident with Miss Vernon and that Miss Kerr had left the office before 5 PM without arranging cover on the previous day.  Miss Kerr told Miss Gilbert that she only accepted panel reports in a brown envelope and flung the reports to the side of the chair.  Miss Gilbert raised the issue of Miss Kerr leaving the office early.  Miss Gilbert was so concerned about this meeting and the incidents that she raised the issue with her line manager, Miss Barestfield.  The matter was taken to the Personnel Department who advised that a Preliminary investigation should be undertaken by a manager outside the team management structure.

38. In January 2000 Miss Kerr was offered two half-jobs in two different locations but it was accepted by the Respondent that this was not a satisfactory arrangement and Miss Kerr declined them.

39. In September 2000 Miss Kerr was offered a job share but declined this because she needed a salary from a full-time employment in order to meet her monthly expenses and pay her monthly bills.

40. The investigation following the incident with Ronda Varman was conducted by Mr P. Hamilton the Divisional Manager of the Children’s Resources and Asylum Services in the Children’s Services Division of the Social Services Department and by Mandy Jones a Quality Project Development Manager in the Social Services Department.

41. Mr Hamilton and Miss James conducted an investigatory interview with Miss Kerr on 2 November 2000 at which Miss Kerr was accompanied by her Union Representative Mary Green.  Mr Hamilton and Miss James concluded that the evidence of Miss Kerr and the other witnesses was at variance and the matter should go to a full disciplinary hearing.

42. Miss Kerr then went off sick and remained on sick leave until she resigned and her employment came to an end on 11 April 2001.

THE LAW: 

43. Section 1(1)(a) of the Race Relations Act 1976 provides.

“A person discriminates against another in any circumstances relevant for the purpose of any provision of this act if:

(a) On racial grounds he treats that other less favourable than he treats or would treat other persons.

Section 4(1) of the Act provides:

“It is unlawful for a person in relation to employment by him at an establishment in Great Britain to discriminate against another”   (b)  In the terms on which he offers him that employment or; (c)   By refusing or deliberately omitting to offer him that employment”

Section 4(2)(a) of the Act provides:

“It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain to discriminate against that employee.   (b) In the way he affords him access to opportunities for promotion, transfer or training or to any other benefits, facilities or services or by refusing or deliberately omitting to afford him access to them or

(c) By dismissing him or subjecting him to any other detriment”

Section 68 of the Act Provides

  (1)  An Employment Tribunal shall not consider a complaint under Section 54 unless it is presented to the Tribunal before the end of

(a)  The period of three months beginning when the act complained of was done. (6) A Court or Tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.   (7) For the purposes of this section (b) Any act extending over a period shall be treated as done at the end of that period.

44. In any complaint of unlawful discrimination the Tribunal must take into account the guidance of Lord Justice Neill in King v Great Britain China-Centre [1991] IRLR 513 CA as approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLA.  The Guidance of Lord Justice Neill is:

 “1. It is for the Applicant to make out his or her case; if this is not done, on the balance of

     probabilities he or she will fail.

2. It is important to bear in mind that is unusual to find direct evidence of racial discrimination.  Few employers will be prepared to admit such discrimination even to themselves.  In some cases, the discrimination will not be ill-intentioned but merely based on the assumption that he or she would not have fitted in.

3. The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

4. Though there will be some cases where the non-selection of the Applicant for a post or for the promotion is clearly not on racial grounds, a finding of discrimination and a finding of difference in race will affect point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation.  If no explanation is then put forward (or if the Tribunal considers the explanation to be inadequate or unsatisfactory) it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds.

5. It is unnecessary and unhelpful to introduce the concept of a shifting evidence burden of proof.  At the conclusion of the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.  They should reach their conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case”

 45. Miss Kerr also complains of discrimination by way of victimisation.  Section 2(1)(d) of the Race Relation Act 1978 provides.

“A person (the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has.   (d)  Alleged that the discriminator or any other person has committed an act (which whether or not the allegation so states) would amount to a contravention of this Act. 

46.In any complaint of victimisation the Tribunal must take into account the text in Aziz v Trinity Street Taxis [1998] IRLR 204 in which the Court of Appeal held that the correct approach is to compare the treatment given to the Applicant with that given to people who had not done the protected act.  The Tribunal must be satisfied that the Applicant has proved a casual nexus between the fact of doing something by reference to the act and the decision of the employers to impose less favourable treatment.

THE CONCLUSION OF THE TRIBUNAL:

47. Miss Kerr has presented five originating Applications and the Tribunal considered her complaints in relation to each Originating Application in turn.

Case Number 2204720/00

48. The first complaint in this originating Application is that Miss Kerr was not appointed to the post of Personal and Administration Assistant to the Managing Director’s Department.

49. The letter saying that Miss Kerr was not short-listed is dated 11 May 2000 and her Originating Application should have been presented by 10 August 2000 to be within the three-month time limit under Section 68 (1) of the Race Relation Act 1976.  In fact, the Originating Application was pr3esented on 14 August 2000 and is out of time.   The issue for the Tribunal is therefore whether this is part of the series of continuing acts but is not a matter that can be linked to any other act and it is therefore the unanimous decision of the Tribunal that it cannot amount to a continuing act under Section 68 (7)(b) of the Act.

50. We must therefore consider whether it is just and equitable to extend time under Section 68 (6) of the Act.  We know that Miss Kerr was in touch with the Commission for Racial Equality in 1998 and that she has had the benefit of representation by UNISON.  She says that she did not discuss presenting an Originating Application with Miss Green of UNISON and that it was the Commission for Racial Equality who told her in August 2000 about the time limit.  The Tribunal have no satisfactory explanation of the delay and it is the unanimous decision of the tribunal that there is no jurisdiction for the Tribunal to consider Miss Kerr’s complaint of direct racial discrimination in relation to her non-appointment of the post of personal and Administration Assistant to the Managing Director’s Department on 11 May 2000.

51. If the Tribunal is wrong in relation to jurisdiction, then the detriment was Miss Kerr’s failure to be appointed the job.  However, at page 148 of the bundle in her application, she stated that she was not good at maths which was one of the criteria for appointment and the Tribunal were satisfied that the conclusion of the Respondent were reasonable conclusions particularly bearing in mind that the ethnic origins of the individual applications were detached from the applications when they were considered.  The Tribunal would therefore have found that this complaint did not succeed had it had jurisdiction.

52.  Miss Kerr also complains of harassment in her complaint under Case Number 2204720/00

53. Miss Kerr’s complaints of harassment related to an incident on 15 May 2000 involving Mr Handy Van Zepture and on 17 May 2000 involving Teddy Mandalink. These complaints relate to the preliminary investigation about which Miss Kerr complains in case number 6000539/00.

54. Miss Kerr complained of racial discrimination in the workplace by her memorandum to UNISON dated 19 May 1998.  This was a complaint to her UNISON Representative to whom she been advised to complain by the Commission for Racial Equality.  It was not a complaint of her employer.  UNISON took no action on the complaint and, notwithstanding the advice of Mr Chatsworth that if there was a complaint of harassment it should be set out in writing and would be investigated, no formal written complaint was ever put to the Respondent. 

It is, therefore, the unanimous Decision of the Tribunal that Miss Kerr’s complaints of direct racial discrimination by way of harassment in this complaint fail as no complaint was ever put to the Respondent.  Miss Kerr also complains of victimisation under section 2)1) (d) of the Race Relations Act 1976.  The protected Act is the memorandum from Miss Kerr to her UNISON Representative dated 18 May 1998.  This complaint was not passed on to the Respondent and it was only at the disciplinary hearing that it was mentioned to the Respondent.  Miss Kerr has failed to establish any link between the letter of 18 May 1998 and the matters that she complains of in her Originating Application in case number 2204720/00.  It is therefore the unanimous decision of the Tribunal that her complaint of victimisation under Section 2(1)(d) Act 19789 fails.   

Case Number 6000539/00 

55.  Miss Kerr’s complaint is that she was the subject of direct racial discrimination in relation to alleged harassment in relation to the preliminary investigation on Thursday 2 November 2000 conducted by Mr Hamilton and Miss James and attended by Miss Kerr and Miss Green of UNISON. The preliminary investigation was to establish whether there were grounds for discrimination proceedings.  The disciplinary hearing recommended never took place because of Miss Kerr’s sickness.   Miss Kerr’s Originating Application was dated 2 November 2000 and presented on 6 November 2000.  The substance of her complaints is a number of incidents and not the investigation.  Miss Kerr has failed to show any detriment.  The preliminary investigation was properly constituted and Miss Kerr did not know of the outcome before she presented her Originating Application.   

56.  Miss Kerr has failed to show any less favourable treatment and it is therefore the unanimous decision of the Tribunal that her complaint under Case Number 6000539/00 fails.   Case Number 6000631/00 

57.  The issue in this complaint is alleged racial harassment in relation to two part-time posts in January 2000 and separately, to a job share vacancy.    

58.  The offer of two part-time posts in January 2000, which the Respondent recognised would not be suitable because of being located in two separate places – travelling to and from those locations would be impossible to maintain for any length of time, is out of time.  The Originating Application was presented on 9 November 2001 and Miss Kerr has not adduced any evidence to show that it is just and equitable to extend time.  It is the unanimous decision of the Tribunal that there is no jurisdiction to consider her complaint of direct race discrimination in relation to an offer of two part-time posts in January 2000.   

59 The second part of her complaint relates to an offer of a job-share post in September 2000.  In this case there is a detriment as the offer relates to only half a full-time position.  However, this was only an offer and Miss Kerr did not give up her permanent post.  The job share post was also offered to two other individuals.      

60. We took into account that the evidence is that Miss Kerr would not take a secondment to a Finance Administrator post for 18-months.  She complains that she would not take half-job but failed to take the full-time job (a secondment), that was offered to her for 18-months. This full-time job offer did not guarantee that Miss Kerr would have had full-time employment for the 18 months period.  At the end of the 18-months, unless the council could provide her with alternative employment elsewhere (which seems unlikely) she would then be unemployed.   

61. It is the unanimous decision of the Tribunal that Miss Kerr has failed to show any detriment and, even if there were detriment there is no evidence of a comparator or of less favourable treatment on grounds of race.  It is therefore unanimous decision of the Tribunal that her complaint under case number 6000631/00 fails.   

Case Number 6000632/00 

62. In this complaint Miss Kerr complains of racial harassment in relation to the placing of job advertisements and dividing her job into three different jobs. The evidence of Miss Barestfield of the Respondent is that the three jobs created were different jobs from that which was previously undertaken by Miss Kerr.  Miss Kerr did not apply for any of the jobs in question and was off sick at the time of the advertisements.  One of the jobs advertised was for a manager and Miss Kerr was not on a managerial grade.  The other two vacancies were for administrators/minute takers. There is no evidence before the Tribunal as to who was offered these three jobs.   

63. Miss Kerr has failed to show that there was any less favourable treatment in relation to these three vacancies and it is the unanimous decision of the Tribunal that her complaint of race discrimination in relation to these matters fails.   

Case Number 6000633/00 

64. Miss Kerr complains that she was less favourable treated by the Respondent in relation to the placing of job advertising in September 2000.  The evidence before the Tribunal is that the vacancy was filled by a white person.  There is therefore evidence of a detriment.   

65. We were however, referred to Miss Kerr’s typing text (at page 232) which was full of grammatical and spelling errors.  Miss Kerr was short-listed with eight others.  There were four out of 123 criteria for appointment that she did not meet.  When the shortlisting was undertaken those shortlisting did not have the ethnic monitoring forms.   

66. There is no evidence before the Tribunal from which we can draw any inference that the failure of Miss Kerr to be appointed to this post was because of her race.   67 It is therefore the unanimous decision of the tribunal that Miss Kerr’s complaint of racial discrimination fails.  

This is the end of the Court’s ruling on this matter.       

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