United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 84_92_2201

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BAILII case number: [1992] UKEAT 84_92_2201

Appeal No. EAT/84/92

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 January 1992

Before

HIS HONOUR JUDGE J HICKS QC

MRS M L BOYLE

MR J H GALBRAITH CB

MR M SHAKIR APPELLANT

(1) LONDON BOROUGH OF WANDSWORTH

(2) MR C J FREESTON RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellant IN PERSON

JUDGE HICKS QC: Mr Shakir was employed by the London Borough of Wandsworth as a temporary driver attendant from 26 March 1990, until 9 November 1990, when he was dismissed. He ended his submissions to us by saying "My main point is that they broke the contract" and a number of the submissions that he made to us were submissions in effect that the Borough was not entitled to dismiss him under the contract or that, if they were contractually entitled, nevertheless they acted unfairly. However, his application to the Industrial Tribunal was not on the grounds of unfair dismissal, no doubt because by reason of the shortness of his term of employment the Tribunal had no jurisdiction to entertain such a complaint. His complaint was that they had unlawfully discriminated against him on the grounds of his race. He is of Pakistani origin.

The Tribunal found that that complaint was not made out; and he now appeals against that decision, and this is a Preliminary Hearing of that appeal, so the issue before us is whether there is any arguable ground of error in law on the part of the Tribunal which would justify a full hearing.

Mr Shakir first points to the provisions of his contract of employment which provide for a probationary period and to the fact that he received a letter dated 27 September 1990 which read:

"Dear Mr Shakir

I am pleased to tell you that you have satisfactorily completed your probationary period with effect from 26th September 1990."

which he says shows that he was confirmed as a permanent driver, and he says the Tribunal were therefore in error in finding in paragraph 8 of their Reasons that temporary drivers - and he was such a driver - are not subject to reports.

That in our view is a point which goes to his concern about whether he was properly dismissed, whether under the contract or under the statute concerning a fair or unfair dismissal. It does not show any error of law on the part of the Tribunal relevant to the issue before them of unlawful racial discrimination.

His next submission concerns evidence about the absence of his immediate manager Mr Freeston for illness, and the relevance of that as to whether a report concerning his performance was submitted, and he submits that Mr Freeston was telling lies about that. Whether Mr Freeston was a truthful witness or not was entirely a matter of fact for the Tribunal and is not a question of law with which the Employment Appeal Tribunal can concern itself.

He next criticises paragraphs 13-15 of the Tribunal's Reasons, which deal with a complaint by a Mrs Gough about his driving. Apparently on a number of occasions he had been driving Mrs Gough's son and he complains that the Tribunal wrongly found that he had come into collision with other cars. It is quite plain that they reached no such conclusion. They simply record Mrs Gough's complaint and that complaint itself, as they record it, was not an allegation of actually striking other cars but of her fear that by reason of what she had observed of his manner of driving he would do so. So there is nothing in that.

He next draws attention to the fact that he had no accident during his employment as a driver with the London Borough of Wandsworth, whereas during the period of his employment there were, he says, some 70 other accidents concerning other drivers. That was a matter which was before the Industrial Tribunal; the Accident Report Register was before them and although they do not specifically refer to those statistics in their Reasons, an Industrial Tribunal is not required to set out every matter of fact and evidence in its Reasons, and we are not entitled to conclude that they erred in law or disregarded that evidence in reaching their conclusion.

He says that the Tribunal were wrong in concluding that as to two occasions when he was accompanied by, in one case a manager and in the other case a Shop Steward, Mr Tollhurst - that the Tribunal were wrong in concluding that those two occasions were not "tests" as such. The relevance of that was that that was his reason for refusing to be re-assessed when required by Mr Freeston to have an assessment of his driving. What the status of those earlier occasions was was entirely a matter of fact for the Tribunal and there is no point of law arising in that regard.

He says that no complaints were made by his regular escort, a person called Mr Ted, who made no complaint about his driving. That was clearly a matter which was before the Tribunal and there is no reason for supposing that they did not have it in mind. He says that senior officials should have been consulted before he was dismissed, that Mr Freeston is a relatively junior rank and an autocrat. That is a matter which might or might not go to the question whether he was unfairly dismissed if that question had been before the Tribunal, but it was not.

He says that he had no warning, but as I have indicated the circumstances surrounding the final dismissal were that Mr Freeston, because of a number of complaints of which Mrs Gough's was the latest, took the view that Mr Shakir's driving skills ought to be re-assessed, and it was Mr Shakir's refusal to undergo that re-assessment which precipitated the dismissal. Clearly the stage at which in ordinary disciplinary procedures formal warning would have been given had not at that stage arrived. He was being given the opportunity to show that he was perfectly competent, and had he shown that he was perfectly competent no doubt no further steps at that stage would have been taken. If it appeared from the re-assessment that his competence was in doubt then no doubt further steps would have been taken; whether they would have been a formal warning or a requirement for further training did not arise because he never took the re-assessment, so the question of warning which in any event goes rather to unfair dismissal than to racial discrimination, is not really a matter which the Tribunal were required to consider.

Finally he says that he would not have been treated in that way if white, but that was precisely the question which the Tribunal had to consider - which it was for them to decide. There was no question here of any overt words or acts of a discriminatory nature. The question, and the only question, for the Tribunal was, given all the surrounding circumstances: Could they or should they infer that there was an unstated but nevertheless, in their judgment, existent element of discrimination on the grounds of race? It was a question of fact for them and it is not a matter with which the Employment Appeal Tribunal can interfere. There was in Mr Shakir's written Notice of Appeal a further point raised of an allegation of bias made against the chairperson of the Industrial Tribunal. He swore an Affidavit about that and the chairperson has commented upon it, but he does not pursue that point in his argument before us today and we need only say that we see no grounds which would justify such an allegation, and that therefore is not a ground for allowing the appeal to go forward to a full hearing. In the circumstances there is no arguable ground of law which could be pursued on a full hearing and we must dismiss the appeal at this stage.