Levenes Solicitors v Dalley

This appeal by the original claimant, Ms Dalley, is listed before the court for a full day’s hearing. Yesterday an application was received from Ms Dalley to stand the case out -- not to any fixed date -- on the ground that she was without representation and did not feel capable of conducting the appeal herself. Today she has not appeared at all and has indicated an intention not to appear.

The reason why the case has remained in the list is that, upon receipt of her application for an adjournment yesterday, and having considered a response from the respondents, I refused it. This appeal has been pending since the grant of permission to appeal by Maurice Kay LJ on 21 May 2007. The respondents (the defendants below) who, as solicitors, have been representing themselves, were kept informed by the claimant’s then solicitors about the problems that they were having, both with being put in funds and with obtaining instructions from the claimant, Ms Dalley. In December 2007 Ms Dalley’s solicitors came off the record. This left the claimant with at least a few weeks in which to prepare and present her own case. She would have been doing so with the advantage of a skeleton argument prepared for her by counsel, which we have of course read along with the other papers.

There has been no renewal today of the application to adjourn but the three of us have of course considered whether, notwithstanding my decision of yesterday, it would be right to do so. We have concluded that it would not. Any adjournment would be of indefinite duration and, while one can understand even a qualified solicitor’s diffidence about representing herself, we consider that Ms Dalley has had sufficient opportunity either to be represented or to conduct her own case.

In this situation it would be open to the court to dismiss the appeal without more. But because the case is not without its intrinsic interest, and in fairness to both parties (stressing, however, that we have not heard oral argument at all on either side), it may be relevant to state in very brief terms what at least is my provisional view of the appeal.

Ms Dalley, a black Afro-Caribbean woman of Jamaican origin (that is her self-description), is a qualified solicitor, admitted in 1990. She was employed by Levenes, the defendants below and the respondents to this appeal, who are a firm of solicitors specialising in employment and personal injury law. She was so employed from the year 2000 until 21 October 2004, when she was summarily dismissed for (a) neglecting to serve a personal injury claim in time and (b) absenteeism. The two in combination were found by the Employment Tribunal to have been an admissible reason for dismissal, and the firm was found to have acted reasonably in treating them as a sufficient reason for dismissal. For the avoidance of doubt, the Employment Tribunal added:

“Any suggestion that the dismissal was tainted by either considerations of race or sex is rejected.”

Had this been all, Ms Dalley’s claims for unfair dismissal and race discrimination would manifestly have failed. But it was not all. Both claims succeeded at first instance because the tribunal went on to find that another employed solicitor, Audrey Onwukwe -- a black African woman -- had been more favourably treated in comparable circumstances. She had not been dismissed or even disciplined, notwithstanding having failed on three occasions to serve proceedings in time. The Employment Tribunal took the view that this unexplained differential treatment of similar cases made the decision to dismiss the claimant unreasonable and therefore unfair. They went on to find that the firm had failed to discharge the onus now placed upon it by section 54A(2) of the Race Relations Act 1976, as amended. Instead of deciding whether, in the light of the difference of treatment and of race, an inference of discrimination should be drawn -- the old law -- the tribunal was now required to uphold the complaint unless the defendant proved that it had not discriminated and this, they found, the defendant had failed to do. Without pausing to further analyse the statutory provision, it is manifest that both of these findings were predicated on differential treatment by the defendant firm of similar cases.

The Employment Appeal Tribunal (Richardson HHJ presiding) overset both findings -- that is, of unfair dismissal and of race discrimination -- and allowed the defendants’ appeal. Their first reason, which was common to both limbs of the case, was that the cases of the two women concerned were not truly comparable. Although some of the EAT’s reasons were on the face of them, debatable, the final one was in my judgment crucial. Moreover it appeared to have been overlooked by the Employment Tribunal. It was that the claimant was facing not one but two disciplinary charges: neglect and absenteeism. It was entirely possible that an overworked solicitor might miss deadlines, but it might well be another story when a solicitor, albeit overworked, had not only missed a deadline but had also failed without good reason or excuse to turn up for work.

As the EAT reminded itself, tribunals have for many years been warned against deciding reasonableness in individual cases by means of comparison with other cases. This court, in Paul  v  East      Surrey  District  Health  Authority  [1995] IRLR 305, endorsed    what     Waterhouse J had said in the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352:

“The emphasis in that section [the material statutory provision] is upon the particular circumstances of the individual employee’s case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.”

It is on this single ground, unless dissuaded, that I would have been minded to uphold the EAT’s decision oversetting what was in all other respects, if I may say so, a well-structured, full and most conscientious Employment Tribunal determination. I would, however, have needed (speaking for myself) to be persuaded that the remainder of the EAT’s reasoning, to the same ultimate effect, should be sustained. The EAT returned to the finding that the decision to dismiss had not been tainted by race or sex, and built upon this a syllogism to the effect that this excluded any possibility that the decision to dismiss was taken on racial grounds. It is possible that this formulation reverts to a concept of discrimination which, as the Employment Tribunal had noted, is no longer the law. I propose to say no more in the circumstances than that I would not want, in dismissing this appeal, to be taken to be endorsing, without much further consideration, the passage of the Employment Appeal Tribunal’s judgment appearing at paragraphs 37 to 40 of the text. For the rest, however, I would dismiss this appeal.

I agree.

I also agree