England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE REID, QC)

		Royal Courts of Justice Strand London WC2 Thursday, 3rd May 2001

Thursday, 3rd May 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal dated 13th September 2000 which dismissed an appeal by the applicant against a decision of an Employment Tribunal on 26th February 1999. The applicant, who is black, had complained to the employment tribunal of race discrimination and victimisation, and of wrongful dismissal.
2. The applicant had been employed by the respondent company as a security officer at various sites belonging to clients of the company. His employment began on 31st May 1996 and ended on 21st May 1998. It involved a number of sites. Initially, the applicant was at a site in Kensington High Street belonging to Visa International, one of the more prestigious sites at which the respondent operated (known as a "blue chip" site). He was, however, removed from there to another site because it was said the client insisted on that, saying that the applicant had insufficient communication skills especially over the telephone. The Employment Tribunal was concerned about this but found that in the security business such peremptory demands were quite common by clients, and that the respondent company was in no position to demand that the applicant be kept on at that site. No racial reason was articulated by the client for demanding the applicant's removal.
3. He was then employed at a Videotron site (the new name for Cable & Wireless) in Hammersmith. He was there for some four months. His complaint in respect of this period was that he had to operate a security barrier out of doors in all weathers, whereas a white security guard worked inside, and there were no non-white security guards working out of doors. The tribunal, however, found that white guards were used at other equally unattractive sites, and they found no discrimination or victimisation on this complaint.
4. The applicant then worked at a site in Acton after a period of compassionate leave because of his father's death. His complaint about this was that at some stage the liaison manager for the client company insisted on having one of the three guards, Mr Morville, who had worked on the site the longest but who was white, to work the day shifts, Mondays to Fridays. This meant that the other two guards, who were both black, had to share the nights and the weekends. The evidence was that the respondent's manager for the site protested about this but his protest only resulted in a complaint about him from the client company, with the result that he ceased to be responsible for the site. The respondent offered to the applicant a move to another site where he would have had weekends off but the applicant refused. He ceased work at that site on 11th January 1998.
5. The tribunal found that at all the sites belonging to that client, Videotron, the client wanted a named security guard on duty during daylight hours, Mondays to Fridays. This new rota impacted equally, said the tribunal, on all of the respondent's employees – black or white – who worked at those sites. The tribunal concluded that there was no discrimination against the applicant on racial grounds nor any victimisation arising from those events.
6. After the cessation of his work at that site the applicant was absent from work initially on sick leave and on compassionate leave from 11th January 1998 until the termination of his employment on 21st May 1998. On 14th May the respondent asked the applicant to contact their scheduling department on 18th May to arrange a suitable assignment for him or they would have to deem his contract of employment repudiated. He did not contact that department but spelt out instead his grievances. The respondent then wrote on 21st May 1998 to state that they regarded him as having repudiated his contract and his employment was terminated.
7. Apart from their findings on the individual complaints of discrimination the Employment Tribunal also dealt with the issue of the time limit on bringing proceedings under the Race Relations Act 1976. That Act sets a three-month time limit for presenting a complaint, that period beginning when the act complained of was done. The applicant presented his first originating application on 26th May 1998, so that on the face of it the complaints about discrimination at the Kensington, Hammersmith and Acton sites were out of time. However, the Employment Tribunal considered an argument that there was here a continuing act of discrimination so as to bring those earlier complaints within section 68(7)(b) of the Act. The tribunal found as a fact that there was no evidence of any regime, rule, practice or policy of discrimination against the applicant by the respondent at the material time within the meaning of the leading authorities on this concept which they cited. Thus the only alleged acts of discrimination within the three-month period were the dismissal and an alleged failure to investigate his complaints.
8. The Employment Tribunal found that the dismissal was not racially discriminatory because any employee, whatever his race, would have had his employment terminated for failing to contact the scheduling department as requested; nor was the dismissal wrongful. It also found that a failure by the respondent for two months to investigate his discrimination grievance was not based on racial grounds; nor was he being victimised thereby.
9. The Employment Appeal Tribunal found that the Employment Tribunal had correctly applied the law as to what was a "continuing act", especially bearing in mind the decision in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. In the light of the authorities the EAT held that:

"Their conclusion that they"

- the tribunal -

"could not 'find any evidence of any regime, rule, practice or policy to discriminate against the Applicant which was operated by the Respondent at the material time' was therefore fatal to Mr Jack's claim in respect of all but two of his complaints, whether or not the Tribunal were correct in their view that these matters were not shown to be free-standing acts of discrimination. "

10. The Appeal Tribunal noted that the complaints made by Mr Jack were of different types: one of being moved from a site because of his race, another that he was made to work at an unpleasant site and another that he was given unfavourable rostering. They concluded that the finding by the Employment Tribunal that there was no regime, rule, practice or policy of discrimination could not be regarded as a perverse one, and, since it was a finding essentially of fact, was not one with which they could interfere.
11. The EAT also upheld, in any event, the Employment Tribunal's conclusions on the Kensington site events. It noted also that the finding that the respondent would have dismissed any other employee in Mr Jack's circumstances regardless of race was one of fact which could not be successfully attacked; likewise the finding that the delay in dealing with his grievances resulting from boardroom departures was also characterised as a finding of fact. Consequently the Employment Appeal Tribunal dismissed the appeal.
12. Mr Jack now argues that the Employment Appeal Tribunal were wrong as a matter of law in a number of respects. He has presented his case today in person with great skill and with some succinctness, given the complexity of the factual matters with which he has had to deal. He contends first, that it was wrong of the Employment Appeal Tribunal to conclude as it did that there was not here a continuing act. In essence, he submits that the various actions about which he complains should be seen as evidence that there was a continuing regime of discrimination operated by the respondent company. He relies, amongst other things, on the fact that wages were not paid to him for certain periods including a period of compassionate leave from 21st to 25th October 1996 which the respondent conceded before the Employment Tribunal should have been paid and which it undertook to the tribunal to pay. Mr Jack says that this nonpayment was itself a continuing act. Such payments were made to white employees. The nonpayment is clearly a fact. The interpretation to be put on that fact is, however, a different matter. Employers do sometimes make mistakes about moneys which are due to their employees without there being any racial basis for the mistake.
13. There can be no doubt that the Employment Tribunal and the Employment Appeal Tribunal applied the right legal test to determine whether there was here a "continuing act" which could bring in the earlier complaints. Both those bodies cited a number of the leading authorities on this particular matter and discerned from those authorities the appropriate principles. The only question which therefore arises is whether their conclusions on the facts were perverse.
14. Mr Jack is seeking to present fresh evidence (which to some extent I have admitted this morning) and to re-argue the point by relying on evidence of certain nonpayment of wages. But the Employment Tribunal heard the witnesses, including a number of management witnesses from the respondent company, and considered the documentary evidence before reaching its conclusion. It seems to me that it was open to the Employment Tribunal to find that the evidence did not show any regime or policy on the part of the company to discriminate on racial grounds. That was essentially a matter of interpretation upon which they had to arrive at a judgment. There was evidence that at the Kensington and Acton sites the initiative for the actions complained of came from the client company – not from the respondent. Indeed at Acton the respondent site manager sought originally to resist the client's desire to have Mr Morville, the white guard, working the day shifts.
15. The applicant's view of these events is that there was a continuing policy of discrimination by the respondent. He is of course entirely free to hold that view which I have no doubt at all he genuinely does. But there is an alternative interpretation of the facts, namely that there was no such policy, and that the events in particular at Kensington and Acton did not stem from any such policy; and it was properly open to the Employment Tribunal on the evidence to conclude that that was the appropriate interpretation to place on the facts before them. There is, in my judgment, no reasonable chance of showing on appeal that the Employment Tribunal's decision on that aspect of the case was perverse.
16. If that is so, then all that remains are the complaints about events within the three months prior to lodging the first originating application. So far as the applicant's dismissal is concerned, Mr Jack argues that the tribunal's finding that Pinkerton would have dismissed any other employee in his circumstances regardless of race was against the weight of the evidence. He refers to evidence about how the company treated one of his colleagues, Mr Malik, who was an Iranian and certainly not black. But the Employment Tribunal did consider how Mr Malik had been treated and noted that the situations of the two employees were not comparable. The finding that it made on this was again one of fact and that finding cannot be said to have been perverse.
17. As for the failure to investigate his complaints, Mr Jack argues that the Employment Tribunal's finding on this is perverse because there was no upheaval in the respondent company's management. It needs to be borne in mind that some of the applicant's complaints over this whole period were, on the tribunal's findings, dealt with by the respondent company. The failure by the respondent, which was acknowledged by the tribunal, related in particular to a complaint made by the applicant to the respondent's chairman by letter dated 9th February 1998. It was that letter which was not responded to for some two months.
18. There was evidence before the Employment Tribunal that the company was in some turmoil at that time and that the chairman, chief executive and human resources director all left the company thereafter. That evidence came from a Ms Quirke, the personnel manager. Given that evidence it seems to me that the Employment Tribunal was entitled to conclude that the respondent's failure to respond to the applicant's complaint was not based on racial grounds and that there was no intent to victimise him. That was not a perverse conclusion on their part.
19. Mr Jack raises certain specific points about the Kensington, Hammersmith and Acton sites. Those cannot be a sound basis for appeal because they were out of time. But Mr Jack says (and I deal with them as a matter of courtesy because he has raised them this morning) that in respect of the Kensington site he was removed without any reason being given. He emphasises that he did not have to take telephone calls at that site and that the explanation for his removal, namely that he did not have adequate communication skills, particularly on the telephone, could not hold water. That, however, was a question of fact for the Employment Tribunal. They regarded all the witnesses whom they heard from both sides as being honest, and they said so. They accepted the evidence given on behalf of the respondent company that that was the explanation proffered by the client company at that site. They also accepted that it was very difficult for the respondent company to investigate that particular aspect of the matter any further than they did with the client company.
20. In respect of the Hammersmith site Mr Jack emphasises that only black people were sent to work there. Whites, he says, were sent to the more attractive sites. But the tribunal accepted evidence from the company that there were other sites just as unpleasant as Hammersmith where white employees were sent. That finding is not something with which this court would be prepared to interfere.
21. In connection with the site at Acton, Mr Jack argues that the change in the rota to his disadvantage was not in fact based on a demand by the client but was something inspired by the respondent company itself, and he points to evidence to support that contention. Again, however, this it was a question of fact for the tribunal. They took into account all the evidence before them before arriving at the conclusion which they reached.
22. The applicant complains about the conduct of the chairman of the Employment Tribunal during the hearing and says that he was disadvantaged by it. This was a matter which was raised before the Appeal Tribunal and with which they dealt. They say specifically at paragraph 29 of their judgment:

"Mr Jack's attack on the Tribunal's decision as being perverse stemmed in part from his unhappiness at the way in which the hearing before the tribunal went. There was initially an allegation of bias against the tribunal, though this was abandoned before the hearing of the appeal, and an allegation that the two lay members did not bring any independent consideration to bear. This too was abandoned, not surprisingly in the light of the fact that one of the members had in part dissented. What was left was a dissatisfaction with the late disclosure of some of Pinkerton's evidence and with the extent of Pinkerton's answers to questionnaires. There was a suggestion that this had left Mr Jack at a disadvantage. In relation to this, it is notable that no application was made to adjourn in order to deal with any point arising unexpectedly."

23. I have to say that I can see nothing wrong with the reasoning in that paragraph or with the way in which the Appeal Tribunal approached this part of the case. It cannot be said that the Appeal Tribunal erred in law in the way in which they treated these allegations about the conduct of the hearing at the Employment Tribunal level.
24. Mr Jack also raises a number other points into which I do not propose to go in this already lengthy judgment. In essence, I can see no real prospect of success for him on any of the matters which he raises. His arguments about whether the respondent company can avoid responsibility because the alleged discriminatory act was imposed upon it by a client company are interesting ones; but they relate to complaints which were out of time. In those circumstances it must follow that this application has to be dismissed.
(Application dismissed; no order for costs).