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Cite as: [1993] UKEAT 654_90_1301

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BAILII case number: [1993] UKEAT 654_90_1301

Appeal No. EAT/654/90

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 January 1993

Judgment delivered on 23 March 1993

Before

THE HONOURABLE MR JUSTICE WOOD MC (PRESIDENT)

MRS M E SUNDERLAND JP

MR G H WRIGHT MBE

MECCA LEISURE GROUP PLC APPELLANTS

MR S CHATPRACHONG RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellant Mr M G Warwick

Messrs Barnett

Alexander Chart

34-35 Dean Street

LONDON W1V 5AP

For the Respondents Mr T D N Kenward

Mr R Wadeson

Commission for Racial Equality

Elliot House

10-12 Allington Street

LONDON SW1E 5EH

MR JUSTICE WOOD (PRESIDENT) By an originating application dated 11th April 1990 presented by the Applicant with the support of the Commission for Racial Equality, Mr Chatprachong alleged Racial Discrimination under the Race Relations Act 1976 and in particular in his dismissal by Mecca Leisure Group Plc (Mecca) on 21st January 1990. He made no claim under the Employment Protection (Consolidation) Act 1978.

In their Reasons promulgated on 12th November 1990 an Industrial Tribunal sitting at Leeds found unanimously:-

"1.That the Applicant was unlawfully discriminated against contrary to the Race Relations Act 1976. A hearing on remedy will take place not before 21 days from the promulgation of this decision.

2.The Applicant's claim of unfair dismissal under the Employment Protection (Consolidation) Act 1978 is dismissed."

Mecca appeal. There is no appeal by Mr Chatprachong.

The applicant hails from Thailand. He was born in Bangkok on 16th September 1955. He came to this country in 1975 and started work as a croupier in 1980. In 1981 he joined A & S Leisure Group in Huddersfield as a dealer/inspector from whence he was transferred to Bradford as a croupier and then became an Assistant Pit Boss and even later a Pit Boss.

Control of gaming in this country, under the Gaming Act and the Gaming Board, is undertaken pursuant to the terms of that Act. A number of qualifications are required according to the position occupied within a gaming establishment. A blue certificate is required to be a croupier, a yellow certificate to be an inspector, a green certificate to be a supervisor/junior manager and finally, a grey certificate to be a full manager of an appropriately sanctioned gaming establishment. At all material times the Applicant was in possession of his green certificate which he had obtained on 29th April 1987.

In October 1988 Huddersfield Casino was sold to Pleasurama Casino Ltd. In January 1989 Mecca took over Pleasurama and by so doing took over the casino and its staff. It is therefore from that date that Mecca were responsible as employers of the Applicant. The Regional Director for Mecca was Miss Welsh, who herself held a grey certificate and was someone with many years' experience in the gaming industry.

In due course the Applicant moved to Leeds where Mr Santana was the Manager.

Although the hearing before the Industrial Tribunal is shown as three days, it seems that the hearing on the first day was adjourned to allow further consideration of documents and thus in effect the hearing lasted only two days. We have before us the learned Chairman's full notes of the evidence. During the course of the second day, the Applicant's counsel was asked to clarify his case. He did so in writing and the draft was included in the Reasons of the Tribunal. It read as follows:

"The respondent unlawfully discriminated against the applicant by:

(1) Not affording him access or sufficient access to opportunities for promotion and/or training, and/or refusing, or deliberately omitting to afford him access to them; contrary to the Race Relations Act 1976 section 4(2)(b) and the Code of Practice (Race Relations).

ii)Dismissing him contrary to section 4(2)(c) of the 1976 Race Relations Act.

iii)Subjecting him to other detriment in that:-

(a) the general manager in the presence of customers addressed and/or referred to the Applicant in racially insulting and abusive terms;

(b) the said general manager spoke to the Applicant's wife in terms which were racially abusive and insulting concerning the Applicant;

(c) the Applicant was denied the benefit of an effective equal opportunities policy and/or the Race Relations Code of Practice or contrary to section 4(2)(c) of the Race Relations Act 1976."

It seems to us, as it seemed to the Industrial Tribunal, that this disclosed three areas of complaint. The first, and indeed looking at the evidence clearly the major area, was that the dismissal was on the grounds of race. This was the main allegation contained in the originating application. Secondly, there was the racial abuse, and thirdly, it was suggested that the Applicant suffered detriment due to the absence of an effective equal opportunities policy, in that he was not afforded sufficient or any access to opportunities for training or advancement within the wording of S.4(2)(b) of the 1976 Act. This latter allegation is not drafted with particularity, and it is a breach of statute not a failure to comply with a Code of Practice which provides the remedy for an individual. The Tribunal found in favour of the Applicant on the latter two issues, but against him on the first, the dismissal issue.

It is agreed, although not so stated, that all allegations were of direct discrimination - section 1(1)(a) of the Act. That Act is to be construed as one with the Sex Discrimination Act 1975 and this hearing took place before the report of a recent decision in the House of Lords of Webb v. Emo Air Cargo (UK) Ltd [1993] 1 WLR 49. This case dealt with the approach which was appropriate when considering direct discrimination.

On the issue of racial abuse, the Industrial Tribunal found as follows:

"We find that Mr Santana on occasions, that have not been precisely dated but which we are satisfied did happen, was racially abusive to the applicant in that he would refer him directly inthe presence of customers as "Chinaman"

We rely on Mrs Chatprachong whom we accept as a witness of truth, that she received a telephone call at home, at least once, from Mr Santana and he was grossly abusive to her concerning her husband with these words "Get that f..... chink on the phone."

Mr Dodd has been a witness before us. Mr Dodd is a witness of truth, who said in cross-examination that Mr Santana was a man prone to making questionable jokes. Mr Dodd was not amused by these. He was not amused at the directly racialist "jokes" that Mr Santana was making. The complaint that "the general manager (Mr Santana) in the presence of customers addressed and/or referred to the applicant in racially insulting and abusive terms", is in our judgment proven and we so declare."

Mr Warwick, for Mecca, submitted that bearing in mind the guidance given by May LJ in De Souza v. Automobile Association [1986] ICR 514, there was no evidence of distress and no detriment found by this Industrial Tribunal. However, bearing in mind the whole passage from the judgment of Lord Justice May at p.524E - H, we have no doubt in the present case that on the facts found this Tribunal were entitled to hold that this was racial abuse within the Act. The abuse was before customers and the Applicant's wife. The seriousness of the view taken by the Tribunal can be reflected in any award for injury to feelings. No defence was here proffered by Mecca under the provisions of S.32(3).

We can find no error in law or criticism of this finding and the appeal on this issue fails.

The second area of dispute was the dismissal itself. Although the Tribunal found that the dismissal was not unfair, the allegation being made was that it was the result of direct discrimination. The dismissal arose out of an incident on 17th January 1990. The Applicant was acting manager on that evening and apart from all his other duties of supervision and management, he would have to act as the final abitrator in any disputes that might arise between any of the customers of the casino over any of the gaming or associated activities in which they were allowed to participate.

It was gross misconduct for the Applicant to have played a card game "kalooki" with the patrons of the casino. It would put the licence at risk.

That is what Mecca found that he had done and he was dismissed. It was the duty of Mecca and Miss Welsh as its agent to report this matter to the Gaming Board. This was done and the various statements obtained during the internal disciplinary processes were sent. After due consideration, the Gaming Board varied the Applicant's certificate "and reduced him to a blue certificate, meaning a croupier certificate. The consequences to him are financially and professionally dramatic. In saying that, however, we have no doubt that the truth is Mr Chatprachong did play kalooki for a considerable period and it was not in a learning situation. The Applicant has not told this Tribunal the plain and unvarnished truth, nor have his witnesses, about the extent of his involvement that night."

There had been a direct conflict of evidence and the Applicant was disbelieved on his oath. We can find no error of law on this issue. His dismissal was not unfair and not on the grounds of race.

Our reasoning so far might be considered sufficient to dispose of this appeal, but we propose to consider the third area of dispute in some detail, first, because it is necessary so to do before compensation can be considered, although we would have thought that the damage suffered by not being put forward for a grey certificate would have to be considered in the light of the cancellation of the Applicant's green certificate: secondly, however, because in the view of the industrial members the facts of this case raise matters of considerable general importance to both sides of industry.

The wording of S.1(1)(a) is worth repeating -

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

(a)on racial grounds he treats that other less favourable than he treats or would treat other persons; ..."

This difficult branch of the law is gradually becoming clarified. The approach to these issues has now been finalised, finally in King v. Great Britain - China Centre [1992] ICR 516 in the judgment of Lord Neill LJ.

The principles to be applied can now be derived from

King (supra)

Seide v.Gillett Industries Ltd [1980] IRLR 427

Owen & Briggs v. James [1981] ICR 377

Shomer v. B & R Residential Lettings Ltd [1992] IRLR 317

Webb (supra)

James v. Eastleigh Borough Council [1991] AC

The Applicant must establish on the balance of probabilities:-

(a)that he has suffered treatment from the respondent which treatment falls within Part II of the Act;

(b)that treatment was less favourable than that meted out to others (the comparator or comparators);

(c)that the relevant circumstances are the same or not materially different (the comparison with like with like) - S.3(4) of the Act;

(d)that the direct cause (causa causans) was racial grounds (S.3(1). The Applicant would not have suffered the less favourable treatment "but for race".

It follows from this that the particulars must be sufficiently precise to identify the treatment, as to its nature and timing, in order to afford an appropriate comparison.

The findings of the Industrial Tribunal are stated in the following passages:

"f) When the 1989 acquisition took place, Miss Welsh therefore became the applicant's director, and as such she saw him at Leeds. She gave him the appropriate documentation with which to start studying for the necessary degree of familiarity and expertise in the Gaming Act itself. To progress to the full certificate requires an oral examination by the Gaming Board, to ensure that the person presenting themselves for the grey certificate is absolutely fully aware of all the requirements of the law and all its practical ramifications. That examination, we understand, is taken orally, and we are quite satisfied that at this stage it was made plain to the applicant that his English language facility was not such as to allow him to explain the Gaming Act with precision, and to the necessary standard required by the Gaming Board and so therefore, in those circumstances, he would be unlikely to obtain his grey certificate. We are satisfied that words to this general effect were used and exchanged by Miss Welsh to Mr Chatprachong, but that was as far as his training really went in gaining a grey certificate."

...

"That is the policy statement but exactly how it is applied in employment practice and in reality, is something that we are wholly at a loss to understand. As far as we can find there is this policy statement and this statement only, but nothing more. We therefore are not surprised when the applicant says, and alleges as he has done in his further particulars, that the respondents have failed to afford him access or sufficient access to opportunities for promotion and training and that "the applicant was denied the benefit of an effective equal opportunities policy and/or the Race Relations Code of Practice."

What do we find in relation to access to opportunities for promotion and the benefits of this policy in real terms? We are satisfied that in relation to training to obtain the grey certificate that there was no training. The simple provision of the necessary documents is a start but it is little more other than that. As for other aspects of training there appears to be no scheme of development and although there are some training course available, who goes on them and when, is a matter of uncertain determination. There is no policy discernible, established and revealed to us. Mr Chatprachong's principal problem is obvious to anybody who has been in this tribunal, let alone to those who have known him for much longer, and it is that he had a limited clarity in his oral English which plainly calls for some training and opportunity to improve. There is no policy for giving members of a racial minority training to prepare them for progress up the ladder of promotion. Therefore, we repeat, that we find that these complaints are true and that the respondents have no effective equal opportunities policy; they have not shown that the Race Relations Code of Practice is understood by them. We therefore find that this applicant was denied access, or sufficient access, to opportunities for promotion or training. Tosimply say that you must prepare yourself for an examination on the Gaming Act is barely sufficient, and we therefore think that the true construction of the facts as we find them is that the respondents have no real policy, and they did nothing to encourage, or provide training, and opportunities for training to the applicant. Their inertia, or their lack of interest, or both, seem to us to be patently obvious."

"6 ... We further find that the respondents have not provided any equal opportunities policy; that they have failed to provide access or sufficient access, to promotion and training, and they have taken no steps to see that Mr Chatprachong was given the benefit of proper training, which included not only the technicalities of the job but also the opportunity to promote himself which in this particular instance meant the provision to some degree, (depending of course of the willingness of the applicant himself to co-operate) of the changes to improve his spoken English and communicative skills.

For the above reasons we are satisfied that this application is well founded under the Race Relations Act and we so declare. The application under the 1978 Employment Protection (Consolidation) Act, fails.

..."

No comparison seems to have been drawn.

Within their experience the industrial members of this Tribunal express the view that whereas in many instances it may well be in the best interests of an employer and an employee for the employer to accept an obligation to carry out training in a general or specific context, there has never been an obligation to educate. There may clearly be situations in which an employee seeks an outside qualification and is indeed encouraged both in time and possibly in financial terms by his or her employer. Many courses are run by Local Authorities and others, the benefits of which can be obtained by application from an employee and this is often encouraged, but that is different from providing in-house educational courses.

What are the facts as indicated from the notes of evidence?

Although the Applicant had been in the United Kingdom since 1975 and had obtained a blue, a yellow and a green certificate (the latter requiring a three weeks' course) it is clear that his facility in use of the English language was imperfect. It was not his capacity to understand, it was "the limited clarity in his oral English". It would place him at a disadvantage at the interview with the Gaming Board at the conclusion of his application for the grey certificate.

The Applicant obtained his green certificate on 29th April 1987. In October 1988 he was told that he needed to have a green certificate for two years before moving on to seek the grey certificate. In January 1989 when Mecca took over, Miss Welsh gave the Applicant documents to start to work towards the grey certificate. He studied the documentation, no training was offered to him at that time.

The Applicant himself appreciated that he would have to have an interview with the Gaming Board but said - "I do not think my accent would have been a problem here."

Mrs Jean Elizabeth Chatprachong, the Applicant's wife, who by her name seems to be of western origins, said "My husband told me he had asked about grey licence and been told that there were no vacancies". The lack of vacancies was confirmed by Miss Welsh and it was clear that the need for holders of grey certificates was looked at from a wider viewpoint than that of the individual casino. It was for Miss Welsh to decide who would go for training.

The holder of a grey certificate has, in effect, managerial status. Quite apart, therefore, from a detailed knowledge of the provisions of the Gaming Act, an applicant would need the necessary experience and skills in other fields. These would include catering, staff management and general managerial skills. The training required attendance at the minimum of three courses. They spread over some 18 months at least.

Miss Welsh explained the position in various places in her evidence -

"I moved Chatprachong to Leeds in the hope of promoting him in due course. I said he must improve his English, that is his spoken English and I gave him documents for the Gaming Board grey certificate qualification.

The Gaming Board require you to explain the Act in ordinary practical everyday language.

..."

"I had to tell Mr Chatprachong that if he went to the Gaming Board for interview they might have problems understanding him and he might have problems about his spoken English that is to say take lessons.

I did not send him on or provide him with specific English language improvement.

..."

"I agree I am a Glaswegian and speak quickly and have an accent, and I have been told that my accent and speech might be a problem at that interview.

"Chatprachong was not ready to proceed to grey, apart from his language, due to his lack of experience and/or skills. He had been on courses but certainly was not ready in my judgement to progress to a grey certificate.

He'd not yet been on grey training, I agree. He was given the paperwork to start him off, to learn all about it.

Chatprachong was trained up as assistant manager. This is our company policy to train people up. To go for the "grey" would require specific attendance at a specific course. He must be a competent green certificate holders and be aware of all procedures in the company and so your progression depends on your individual progress and knowledge and abilities.

It was the Gaming Board's interview that I pointed out would cause difficulties.

..."

"... Appraisals of staff are all done on their ability. Outsiders do the training and assess the candidates on training..

Managers manage the casino."

...

"Inarticulate staff we have no language training given those staff whoever they may be.

There was no specific necessity to train Mr Chatprachong in the English language. To do so would have been a unique event. No courses have been given in my time, that is to say in my 15 years.

I have sent no one on "Grey" courses since the takeover of the Leeds casino."

It seems here that during the relevant period - 1989 - no one had been sent on a grey course. Secondly, it was at the interview stage that some problems of elecution might arise. Thirdly, that it was only in the speaking rather than in the understanding of English that the problem arose. Fourthly, that before reaching the "Gaming Act" stage, there must be sufficient experience and skill in the other fields for which a casino would be responsible. Appraisals took place at all stages.

There was no evidence at all about comparators. Even if one took the hypothetical comparator, it would be one who had difficulty in making himself understood because of an accent or the ability to express himself with clarity. There is no evidence to suggest that Mecca would have been given any special speech training to any member of the staff who had difficulties. The industrial members take the view that to have done so would have been positive discrimination and would have entitled all the other members of staff to require education in the English language.

Before going on the final 18 months' course, a possible grey certificate applicant must be considered to have the requisite experience and skills to proceed and it would only be after he had reached that stage that any treatment or lack of treatment in connection with language would become relevant.

The Applicant was on shift work and could have taken English lessons externally: he had been advised so to do by Miss Welsh. It is generally recognised that such courses are available and information about them is also readily available to those who wish to take advantage of them. It may be that it was to this that the Tribunal were making reference when in the final passage of the Reasons which we have quoted they use the phrase "depending of course on the willingness of the applicant himself to co-operate".

The Tribunal, as we have said, did not have the advantage of the decision in Webb and did not therefore approach the case on the principles there set forth in seeking a comparator and making the comparison. In this we are satisfied that they erred in law. Secondly, the Tribunal did not identify the time when the discrimination, the less favourable treatment, occurred. The problem for the Applicant was the oral interview with the Gaming Board and as we understand the evidence the training for that had not yet begun.

In returning to the wording of S.4(2)(b) - what was it that Mecca did or failed to do to the Applicant or for the Applicant and when which was less favourable than it did or failed to do to other members of the staff who were not of Asian origin?

In any event in the light of the Gaming Board decision to remove the Applicant's green certificate we query whether he has suffered any detriment (the phrase "less favourable" imports the notion of detriment) as the result of any alleged action or absence of action on the part of Mecca?

On this issue therefore, we would allow the appeal on this third issue and find no breach of S.4(2)(b).

We have been referred to the case of Chiu v. British Aerospace Plc [1982] IRLR 57. That was a case where there were problems with language and where it was alleged by Mr Chiu that he had suffered unlawful racial discrimination because he was required to carry out work and produce reports without being given the necessary help and facilities so to do unlike other employees. In its findings of fact in that case the Industrial Tribunal had made the following findings -

"... Never at any time during his employment with the respondents did he complain of racial discrimination. It was only after he was dismissed and started these proceedings that he suggested that the 21 occasions when things were done which he considered detrimental were caused by racial discrimination. Never, at any time before he was told he was to be dismissed, did he invoke any formal grievance procedure. He never complained to his superiors of any racial discrimination until he had been dismissed. The applicant's use of the English language, both spoken and written, is surprisingly inadequate for someone of his education and knowledge. It was unacceptable to the respondents as he used it in his written scientific work. It made it difficult for him to express himself lucidly in this Tribunal."

In commenting on those findings Mr Justice Browne-Wilkinson in the judgment goes on to say:

"... Then the tribunal expressed its conclusions by saying that, despite the applicant's submission that the action taken by his employers was discriminatory, 'he did not show that others had been treated differently from him in similar circumstances'. ..."

and then later he adds:

"... As we have said, the Industrial Tribunal found that Mr Chiu had not shown that other employees had been treated differently from him in similar circumstances. That finding of fact, if correct, means that the evidence before the Tribunal contained no evidence which showed directly racial motivated conduct and no differential treatment from which any inference of racial discrimination could be read. ..."

It seems to us that the emphasis in a case, where the facts are vaguely similar, indicate the necessity for the existence of the comparator and the making of the comparison. There was no need here for any hypothetical comparator, there were comparators available and it was necessary to make the direct comparison under similar relevant circumstances.

We would welcome the assistance of counsel as to the appropriate form of order in these circumstances.