United Kingdom Employment Appeal Tribunal

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Cite as: [1993] UKEAT 574_91_2903

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BAILII case number: [1993] UKEAT 574_91_2903

Appeal No. EAT/574/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th March 1993

Judgment delivered on 27th May 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MR D A C LAMBERT

MRS M E SUNDERLAND JP

MR K JOSEPH APPELLANT

BASS INNS & TAVERNS LTD RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr S Munasinghe

(of Counsel)

Camden Tribunal & Rights Unit

58 Phoenix Road

LONDON NW1 1EU

For the Respondents Mr N Giffin

(of Counsel)

Messrs Nicholson Graham & Jones

25-31 Moorgate

LONDON EC2R 6AR

MR JUSTICE WOOD (PRESIDENT) Mr Joseph who is of Afro-Caribbean origin, appeals from the rejection by an Industrial Tribunal of his complaint of racial discrimination in his dismissal by Bass Inns & Taverns Ltd from his employment as a barman at Drummonds, a wine bar and cafe, in the Euston Road, London NW1. His complaint is of direct discrimination under S.4(2)(c), S.1(1)(a) and S.3(4) of the Race Relations Act 1976.

The issue for the Tribunal was, therefore, whether Mr Joseph has proved that he was dismissed (less favourably treated than a White person in the same or substantially the same circumstances) and that this was on the grounds of his race; that he would not have been so treated but for being Black.

His employment started on 13th September 1990 and terminated, within his trial period, on 5th October of that year. He was selected out of three applicants, the other two being White.

Since November 1989 Drummonds has been managed by Mr and Mrs Wright. Many of the staff engaged were from outside the United Kingdom and their employment was for short durations. Many were Australians or New Zealanders passing through. A number of ethnic races were represented on the staff and had been from time to time. The doorman was Black. Mr Dias, the assistant manager, was half Chinese and half Portuguese. He was one of Mr Joseph's friends and as we understand it, associating with Mr Joseph's cousin. It was Mr Dias who had introduced Mr Joseph to Mr and Mrs Wright at a time when the business which Mr Joseph had been running, selling handicraft items like sculptures and paintings, had been hit by recession. A Miss Michaela Butt, Mrs Wright's daughter, worked at the bar and was said by Mr Joseph to "look half Chinese". The other staff were white, but as we have said from time to time other ethnic minorities were represented. Mr Joseph lived in and was allowed to be accompanied by his Black girlfriend.

The reason given for the dismissal is set out in a letter of 15th March 1991 attached to the Notice of Appearance. It reads in its material parts as follows:

"Mr Joseph was summarily dismissed on Friday 5th October 1990 by the Manager of "Drummonds". He was dismissed because of his failure to comply with a reasonable management request, in that he declined to wear his full uniform without explanation, and because of the animosity caused by his rudeness and attitude which caused personality clashes with other members of staff.

I would also point out that at the time of Mr Joseph's dismissal the Company had in its employ a number of employees of Black Jamaican, Chinese/Portuguese, and Portuguese Nigerian origins. Therefore Mr Joseph was not the only employee of ethnic origin.

Mr Joseph did not request written reasons for dismissal and if he had have requested these, the Company would have confirmed the reasons as above, and not those claimed by Mr Joseph; that he had been discriminated against on grounds of colour, race or ethnic origin. He was treated in exactly the same way as any employee acting in the same manner would be treated."

The tie issue starts on Monday 5th October, when he was told by Mr Dias that he could wear a navy blue tie because his other tie was dirty and needed washing. Mr or Mrs Wright had noticed this on the Monday. On Tuesday he was still wearing his blue tie and Mrs Wright spoke to him about this. She told him to wash his red tie and to wear it. By Wednesday he had not done so and was suspended by Mrs Wright so that he could go upstairs and wash his tie. He was in fact suspended just for that one lunchtime shift. He worked through the evening shift wearing his correct tie, now clean.

The Industrial Tribunal relate his account of what happened as follows:

"... Later he went down to the cellar where he told Mr Wright that he had been suspended, only to learn that he already knew this. He then had a long discussion trying to persuade Mr Wright to pay him while suspended. He finally succeeded in persuading him to change his mind and he was paid. He said that he found the meeting and Mr Wright's attitude humiliating. He felt belittled and "treated like a little black boy".

He said that he explained to Mr Wright that he had been given permission by Mr Dias to wear the tie. He was told that Mr Dias was "nobody" and that permission had to come from either Mr or Mrs Wright."

That seems to have been the end of the tie incident.

On Thursday 4th October, Mr Wright took the view that Mr Joseph was behaving towards him in an insolent and rude manner.

On Friday 5th October, in the evening, Mr Wright called Mr Joseph to one side. He pointed out that things were not working out well and that in addition he had received complaints from two members of staff and a customer. Mr Joseph at once stormed out of the bar swearing at Mr Wright. His attitude was again insolent.

On Monday 8th October, Mr Wright called Mr Vassallo, the retail operation manager, after Mr Joseph had refused to accept his pay or to leave the premises. During the meeting with Mr Vassallo, Mr Joseph had accused Mr and Mrs Wright of being "bloody White Australians come over to persecute as they had the Aborigines". Mr Vassallo having heard all parties confirmed the dismissal.

Mr Joseph's case is set out clearly by the Industrial Tribunal in paragraphs 8, 9 and 10 of their Decision as follows:

"8. It was the Applicant's case that he was treated differently from the way a white employee would have been treated. He instanced the case of another employee, female and white, called Caroline Wilson who failed to wear a tie on many occasions, but who was not suspended. He said Damian Hinton had worn a dirty shirt and nothing had been done about suspending him. No other employee had been suspended by Mr and Mrs Wright. Telling him he would be suspended without pay was contrary to the Respondent's procedure.

9. He believes that the decision to dismiss would not have been taken had he not been black Afro-Caribbean. He said that he was given as the reason for dismissal that there had been complaints from other members of staff about his attitude and a customer had complained. There is a conflict as to whether Andrew Green had been named as one of the members of staff. He was called into Mr Vassallo's meeting and stated that he had not complained. Mr Vassallo said he did not think that Green was telling the truth.

10. We heard evidence of Mr Dias. He said he had given the Applicant leave to wear his own tie. He said that the Applicant came to him to tell him of the dismissal. He had not said to him that he believed that it was race discrimination to have treated him in this way."

The Tribunal recognised that there was a conflict of evidence over the tie incident. Mrs Wright denied that she had shouted at Mr Joseph as he alleged, but pointed out that he had been issued with his uniform and that on the second day when the tie had still not had been washed and worn, she had said tersely "wash it and wear it". She agreed that Caroline Wilson did not always wear her tie, but that it was easy to reach behind her and tie it on. She had worn a necklace, but there had been no need for discipline on this. There was no evidence which we could find in the Notes that she had been asked about Damian Hinton's dirty shirt. Mr Wright denied knowing about that dirty shirt. Mrs Wright had not previously had to suspend any member of the staff in connection with the wearing of uniform and explained her decision on this occasion thus:

"He was going against a reasonable request with no explanation"

The reasoning of the Tribunal is contained in paragraphs 13, 14 and 15 of the Decision as follows:

"13 The reasons for dismissal are confused. The reasons given in evidence by Mr Wright are not clear when read with the letter attached to the Notice of Appearance. Reliance appears to have been made on different issues which were not then referred to in evidence, for example whether the Applicant was to be employed on a temporary basis only. Mention was made of a customer complaint which Mr Wright then said he totally ignored when reaching his decision to dismiss. We had to ask ourselves what the real reason for dismissal was and whether there was any justification on the facts for the dismissal. We find that the reason given by Mr Vassallo, that there was a clash of personality between the Applicant, the management and some staff is acceptable. In reaching this decision on the facts the Respondent was not treating the Applicant any differently from the way they would have treated someone from a different ethnic origin. The Applicant's conduct as viewed by the Respondent deteriorated after the first week and continued to do so. As it was during what they viewed as a trial period they believed their best course was to dismiss the Applicant. They saw no need, on this account, to investigate complaints further or to try to discuss their criticisms of his conduct with the Applicant.

14 We considered very carefully whether these were the true reasons for the Respondent's conduct or whether they were merely a pretence to cover their real intention. Could we infer that these reasons were really masking racist conduct? We were confident that the Applicant sincerely believes this to be the case now. We were concerned that he had not raised race discrimination as an issue when reporting the events to Mr Dias. We accept Mr Vassallo's evidence that this allegation was not raised at the beginning of the meeting he held with the Applicant.

15 We find as we have already said that there could well have been good grounds for alleging unfair dismissal had the qualifications been met. There are good grounds for finding fault with management. Why make no allusion to the Applicant's wrong tie on Monday, thereby allowing him to believe that it was acceptable. On the other hand we heard that the Applicant was permitted to have his girl friend live on the premises. A member of staff who voiced an objection to having a black barman was clearly put in her place and told that was an unacceptable complaint. Having considered all the circumstances we are satisfied that the Applicant was not treated unfavourably on account of his colour or his racial origin and his claim fails."

Mr Munasinghe for the Appellant, submits that the Tribunal did not consider the less favourable treatment alleged by his client, namely the tie issue, and that when one takes into account that the evidence shows that there had been some discussion about the Afro-Caribbean culture, that Mr Joseph was a good worker, and that the explanation for his dismissal had varied from time to time, then the only proper decision was that his claim should succeed. Any other decision was perverse.

The Industrial members are not satisfied with certain aspects of this Decision. In the first place, they feel that there was an element of racial discrimination in the suspension of Mr Joseph in connection with the tie and that, as this formed part of the background to the decision to dismiss, the Tribunal should have analysed the evidence more clearly and established precisely what occurred - or at least which version they preferred. Although references are made to a number of employees with different ethnic origins, Mr Joseph was the only black Afro-Caribbean employed by the Respondents at Drummonds. The different ethnic backgrounds of the employees are referred to in the Industrial Tribunal's decision, but no reference is made to what appears in the notes of evidence that Mr Dias, Mrs Wright, Mr Wright and Mr Vassallo gave evidence that there were a number of discussions taking place amongst the staff at Drummonds on cultural differences. Although the industrial members accept that the Industrial Tribunal does not have to record its assessment of every item of evidence, the fact that references were made to arguments on cultural differences by all the witnesses, should have been assessed and referred to in the Industrial Tribunal's decision, noting that this is a racial discrimination case. The industrial members felt that both the matters referred to in this paragraph indicate that Mr Joseph's case was not sufficiently analysed and considered and this should be recorded as an error of law.

Finally, they are critical of the way in which the latter part of paragraph 14 is phrased and point out that Mr Joseph told Mr Wright at each state that he was being treated as he was because he was black and the paragraph - in stating Mr Vassallo's evidence that the allegation of racial discrimination was not raised at the beginning of the meeting - should have balanced that finding by recording that Mr Vassallo, in evidence, clearly accepted by the end of the meeting that Mr Joseph was alleging racial discrimination.

They would not go so far as Mr Munasinghe would have them, and say that the decision was perverse. They would therefore allow the appeal and remit the case to be reheard, so that these aspects can be fully re-examined together with the remainder of the evidence.

It is with regret that I find myself taking a different view. I do not accept that the employers have been inconsistent in the reasons given for the dismissal; the tie issue was background to the decision, but the basic reason was that Mr Joseph's behaviour "deteriorated after the first week and continued to do so", culminating in the events of the 1st to 5th October, the failure to comply with a reasonable request concerning the tie, and the subsequent attitude on 4th together with the complaints from other members of the staff. It was clear that Mr Joseph was not going to fit into the team at Drummonds. This became clear during his trial period. Bearing in mind the guidance given in Meek, it was unnecessary for this very experienced Chairman to set out every piece of evidence. The case for the Applicant was clearly and fully stated, those issues were well before the Tribunal and I am satisfied that they must have been considered. Mr Vassallo's evidence was accepted and all the surrounding circumstances were considered, including the variety of ethnic groups and that Mr and Mrs Wright had dealt entirely appropriately with the earlier objection to a Black barman.

The Notes of Evidence refer to statements made both by Mr and by Mrs Wright, which were before the Tribunal. They were placed before us as part of the Notes of Evidence. The company's witnesses were cross-examined at great length and this Tribunal had the inestimable advantage of seeing and hearing the witnesses.

It is important to caution myself against too minute an examination of the Reasons, which must be read as a whole, and in this case with the benefit of admirable notes of evidence. I am unable to discern a misdirection in law. The Tribunal has decided that any other person in the position of Mr Joseph and upon the facts and circumstances of this case, would have been dismissed. Colour had no relevance. This was an allegation of direct discrimination. The burden of proof was upon Mr Joseph. To disturb this decision would, in my judgment, be to substitute another view for the view which was taken by the Industrial Tribunal upon the facts before it, and after seeing and hearing the witnesses.

This appeal is therefore allowed and the matter is remitted to a different Industrial Tribunal for a rehearing.