England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL

		Royal Courts of Justice Strand London WC2A 2LL Tuesday 23rd July 2002

1. LADY JUSTICE HALE: This is an application for permission to appeal against the decision of the Employment Appeal Tribunal of 14th April 2002, dismissing an appeal from the Employment Tribunal.
2. The applicant is black. He was employed for some 10 years as a driver/guard by Securitas, a company which provides secure transport for shops and banks. He was summarily dismissed on 2nd June 1998 for gross misconduct as a result of an incident on 31st March 1998, when he was alleged to have misappropriated two bags containing cash and cheques totalling around £10,000, £3,000 of that in cash. He complained of unfair dismissal and race discrimination. By a majority the Employment Tribunal, by decision sent out on 23rd June 1999, dismissed both complaints.
3. He appealed to the Employment Appeal Tribunal. The notice of appeal relied on three grounds:

"(1)The Tribunal failed to deal adequately with the issue of comparing like with like under s3(4) RRA 1976 which was an important part of the Appellant's case.

(2)There was clear evidence presented to the tribunal to indicate that the procedure leading to the Appellant's dismissal was unfair and the investigations had not been concluded reasonably. The tribunal therefore failed to deal with the essential thrust of the Appellant's case.

(3)The tribunal wrongly held that there were no primary factors on which an inference of racial discrimination could be drawn under the guideline in Zafar v. Glasgow City Council."

4. The Employment Appeal Tribunal (chaired by His Honour Judge Altman) in discussing whether to allow the appeal to proceed, said that there were essentially two grounds of appeal, the second being a challenge to the factual conclusions of the tribunal. But the first was that he was treated differently from two white employees (a Mr Jones and a Mr Mason) who in similar circumstances were not sacked. That Employment Appeal Tribunal caused enquiries to be made of the Employment Tribunal as to whether the comparators point was put before them.
5. The response from the tribunal was that the point was indeed before them. Accordingly, a second Employment Appeal Tribunal (chaired by Mr Justice Lindsay) ruled that it was proper to go to a full hearing on the only ground which was now pursued. This was summed up by Mr Justice Lindsay in paragraph 3 of the judgment:

"... the Tribunal failed to deal with a central plank in Mr Clarke's case as to racial discrimination, namely that there were two other persons who had been alleged to be thieves from Securitas ... who were white and had been involved in quite different incidents but had been treated more favourably than Mr Clarke in the sense that, notwithstanding that they were held to be thieves, they had not been dismissed.

A third Employment Appeal Tribunal (chaired by Mr Recorder Jeffrey Burke QC) therefore heard the full appeal and delivered judgment on 22nd January 2001. It is clear from paragraph 3 that they understood the point to be that the tribunal had failed to deal with the comparators who had been treated more favourably in that they had not been dismissed for their acts of dishonesty and had not been reported to the police. This Employment Appeal Tribunal remitted the case to the same employment tribunal

"... to hear further submissions from the parties upon the Applicant's complaint that he was subjected to racial discrimination by being treated differently in circumstances in which he was reasonably believed to have been guilty of theft from the Second Respondents, as compared with Mr Mason and Mr Jones and to determine that complaint."

6. The applicant was represented by the same barrister at all those three appeal tribunals. This was different from his representation at the Employment Tribunal and also different from his representation the case went back to the Employment Tribunal.
7. That tribunal treated it as referring only to racial discrimination and not to the broader issues of unfair dismissal. Furthermore, the tribunal seems to have concentrated on the difference in treatment in reporting the matter to the police rather than on the dismissal. But whereas neither had been reported to the police, one of the others had been allowed to resign and the other had been dismissed. Mr Jones had "borrowed" £700 from the employers and Mr Bishop had filled his own vehicle with the company's diesel. The Employment Tribunal found that there were three material differences between those cases and that of the applicant. The first was as to the value of what had been taken - £700 and £30 worth of diesel, compared with £10,000 (albeit that that was a mixture of cheques and £3,000 cash); secondly, the others had taken the property of their employers rather than of customers; and, thirdly, there was a short trail leading to their detection and they had admitted what they had done. Hence the Employment Tribunal found that those were material differences and that there was therefore no jurisdiction for them to go on to consider whether there had been discrimination on racial grounds.
8. The matter therefore went back to the Employment Appeal Tribunal, this time chaired by Mr Recorder Langstaff QC. They gave a preliminary ruling on 12th April 2002. The applicant was now represented by different counsel again. He accepted that it had to be shown that the Employment Appeal Tribunal's conclusion on the comparators point was perverse and argued that this could be shown. The tribunal, however, clearly having in mind the test in Stewart v. Cleveland Guest (Engineering) Ltd [1994] IRLR 440 at paragraph 33, concluded that it could not be shown that the Employment Tribunal's conclusion was perverse, or certainly wrong, or clearly wrong, or fundamentally wrong, or any of the other adjectives that are used in that paragraph. Therefore they dismissed the appeal.
9. This application is put forward on two bases. One of them is, as Mr Epstein says a conventional basis. This is that the decision of the second tribunal, and therefore of the latest Employment Appeal Tribunal, on the comparators issue was perverse and there is a real prospect of success on that ground.
10. The second and unconventional ground is that, if the first ground permits the applicant to get his foot into the door in an appellate process and indeed to succeed, it would then be appropriate for the whole case to be remitted for a rehearing before a different employment tribunal, (of course it would have to be via the route of the Employment Appeal Tribunal), and it would not be right for that rehearing to be bound up simply with the question of comparators, but it should be capable of rehearing the whole case.
11. Mr Epstein points out that his client has a strong sense of injustice at the way in which he has been treated, not only by his employers but also by the legal system; that there were various matters underlying his complaint of racial discrimination, including a course of conduct by the employers and by his fellow employees which supported his case that the decision to treat the suspicions against him in the way that they were treated was racially motivated; and he points to the discrepancies between the way in which he was very thoroughly grilled about the incident on 31st March, compared with the cursory examination given to the other employees who had relevant things to say about what had happened at that time. It is because of those matters that Mr Epstein argues that, were the thing to be remitted on the comparators point, it would be appropriate for the whole matter to be reopened.
12. He points out that there is a dispute between counsel who appeared before the first set of Employment Appeal Tribunal hearings and instructing solicitors as to whether counsel was authorised to abandon the second of the grounds of appeal which I have quoted. However, Mr Epstein very fairly accepts that, in the light of the decision of this court in Waugh and others v H.B. Clifford & Sons Ltd and another [1982] Ch. 374, whatever the position as between counsel and those instructing him, he may well have had ostensible authority as against the court and the other party to make the concessions that he makes. So Mr Epstein very sensibly does not pursue that as a ground of appeal in its own right; more, he points to it as the context in which, should he got through the door on his principal point, it would be appropriate for the whole thing to be reconsidered.
13. This is not technically a second appeal within the meaning of section 55(1) of the Access to Justice Act 1999. That provides that the criterion for an appeal to this court from the decision of a court which was itself on appeal is that the case raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it. Nevertheless it has been said in this court that, where there is an appeal only on a point of law from a specialist tribunal to which in turn the appeal is only on a point of law, this court should be appropriately modest in approaching applications for permission to appeal and assessing their prospects of success.
14. I thoroughly accept that the applicant may have a real sense of grievance and injustice at the way in which he has been treated throughout. The fact of the matter is that on points of fact there is only one bite of the cherry before an employment tribunal. All other appeals are on points of law alone. It is a further fact that, provided the employer has dealt with the matter in accordance with the law and fair procedures and could reasonably come to the conclusion that he did, leaving aside the racial discrimination element, the Employment Appeal Tribunal is not able to do anything about it even if the employer was wrong. There are, therefore, sadly, many people who feel themselves to have been wrongly treated by their employers for whom the tribunal system can provide no remedy. I realise that that is a scant consolation to the applicant, but it is the case.
15. Turning then to the main point as to whether it was perverse of the Employment Tribunal to find that there were material differences between the applicant and the other two employers for the same reasons as were given by Mr Recorder Langstaff, I am unable to conclude that it was perverse. I accept that differences in value may be of little importance in the context of a business in which honesty is the primary criterion. But it does not seem to me perverse for the tribunal to have identified the difference between its being the property of the company and the particular circumstances of the acts of the other two employees as being a material distinction.
16. For those reasons I would refuse permission to appeal on the basis that an appeal has no real prospect of success.
17. LORD JUSTICE CARNWATH: I agree.
Order: Application dismissed.