United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 389_95_1010

Appeal No. EAT/389/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10th October 1995

THE HONOURABLE MR MAURICE KAY

MR P DAWSON OBE

MR R H PHIPPS

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MS C REID          APPELLANT

GMB BUSES (NORTH) LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR C HAY

(Advice worker)

Northern Complainant Aid Fund

Checkpoint

45 Westgate

Bradford

West Yorkshire

BD1 2TH

For the Respondents MR R HARTLEY

(of Counsel)

Messrs Lace Mawer

42 King Street West

Manchester

M3 2NU


 


MR JUSTICE MAURICE KAY: The appellant commenced work with Lancashire United Transport in October 1979 as a bus conductor. That company was a predecessor of the respondents. In August 1988 she began working as a driver of their buses, and continued in that position until 6th October 1993 when she was dismissed. She had been working at the Atherton Depot.

During the entire period of her employment she attracted complaints regarding abusive behaviour to passengers and others. There is before us a document which was also before the Industrial Tribunal summarising the complaints that were made, and the steps that were taken as a result of them. Suffice it to say that the first was on 14th January 1983, and that the document is three pages long. In the course of these complaints, she was given a number of warnings, including written warnings, some of these were described as final warnings, but the common theme of those in practice and effect was their lack of finality.

The last of those was on 18th March 1993. Thereafter, two further complaints were received. One in respect of 30th September 1993, the other in relation to 6th October 1993. These most recent complaints resulted in a disciplinary hearing on 6th October 1993.

That disciplinary hearing was conducted by Mr Farrington, who was an operations superintendent at Atherton. The case put forward on behalf of the applicant by her trade union officials was that the allegations were simply not true. Mr Farrington found that they were true, and concluded that the appropriate course was summary dismissal.

The appellant appealed from that decision and her appeal was heard by Mr Thomason, the respondent's business manager, on 13th October 1993. On the hearing of the appeal, the trade union representatives of the appellant took a different approach. They accepted the facts as found by Mr Farrington, but sought to persuade Mr Thomason that something short of dismissal ought to be the consequence.

The outcome of that hearing was a variation of Mr Farrington's decision, because Mr Thomason chose to substitute a finding of dismissal with notice. The appropriate notice in the appellant's case was 12 weeks.

She appealed again, and her final appeal was dealt with on 22nd October 1993 by Mr Ashworth, the respondent's business manager in another depot. The approach taken on behalf of the appellant was the same as it had been before Mr Thomason. The outcome was substantially the same, in that the dismissal was upheld, but to avoid any further incidents, it was decided to pay the appellant in lieu of notice.

As we have indicated, there was a significant difference in the approach adopted on behalf of the appellant, between the first of the hearings, when she was denying the allegations, and the two appeals where she was accepting them, but at which it was suggested that she ought to be re-trained rather than dismissed. In this regard it is necessary to refer briefly to agreed minutes of those two appeal hearings. So far as 13th October 1993 is concerned, it is recorded that Mr Green, one of the trade union officials made some observations about the appellant, and stated that she loved her job and was a perfect employee in many respects. The essence of what he was saying was that she was herself the subject provocation from time to time, and he wondered whether a training course on how to act when abused might be the answer. A little later it is recorded that Mr Green was not saying that there were no problems with the appellant, but he felt that her only problem was a loose tongue, and that a refresher course might help. Mr Green's colleague, Mr Twist referred to previous courses which drivers had had to attend regarding behaviour, and he thought that a one-off course for the appellant might help.

So far as the final appeal hearing, on 22nd October 1993 is concerned, Mr Green is recorded as acknowledging that the appellant sometimes did step out of line, but he pointed out that she was devastated by her dismissal and the union felt that remedial training would help. Later on in the minutes of that meeting Mr Green is recorded as pointing out that as a black woman she received more abuse than most drivers and he requested that she be given remedial training.

As we have indicated those requests for remedial training were not acceded to by the respondents, and the dismissal took effect.

The appellant issued two originating applications to the Industrial Tribunal. We have been given some explanation relating to a change of representation as to how this came about. The first application was dated 20th December 1993 and the complaints were described in the following terms:

"I am of Black Caribbean origin. I have worked for Greater Manchester Buses for 14 years. On 6 October 1993 I was dismissed from my job and I believe that I have been discriminated against on the grounds of race. I believe that the incident for which I was dismissed was not of sufficient seriousness to merit a summary dismissal. Furthermore, the dismissal did not fall in line with proper procedures and I was not given 3 months notice to quit. After the management realised this, they asked me to go back to work which I did, only to dismiss me again; but this time following procedures. I do not believe they would treat white staff in this manner."

The second application, dated 12th January 1993 in its relevant part reads as follows:

"I believe that I was unfairly dismissed as I do not believe that my conduct warranted dismissal. Further to this, I believe that my former employer has discriminated against me on racial grounds. I base this claim on the fact that I have made a series of complaints both orally and in writing to my employer regard racial abuse which I have suffered directly from individual employees of that company. Greater Manchester Buses have failed to investigate those complaints to my satisfaction and have failed to provide me with written proof of their investigations."

Pursuant to the reapplication or applications, the Industrial Tribunal first attempted to deal with this matter on 4th August 1994. On that occasion it soon became clear that the one day for which it had been listed was inadequate and the Tribunal with the consent of both parties adjourned the matter until 21st November 1994 and gave it a hearing time of five days.

It must have become apparent on 4th August 1994 that the drafting of the appellant's complaints left something to be desired, and as often happens in cases such as this, the Tribunal took the opportunity to direct that the applicant should serve upon the respondent a schedule of her complains and allegations in a fully particularised form on or before the 25th August 1994 with a provision for the respondent to reply on or before 15th October 1994.

That direction engendered a schedule which was before the Tribunal and is before us. It lists complaints by the appellant under different headings. Under heading (1) she alleged that she had been unfairly dismissed on racial grounds by Mr Farrington on 6th October 1993; she had been discriminated against on racial grounds when Mr Thomason rejected her appeal on 13th October 1993, and had been further discriminated against on racial grounds, when Mr Ashworth rejected her final appeal on 22nd October 1993.

In subsequent paragraphs, she alleged discrimination on grounds of her race on numerous earlier occasions being occasions of disciplinary hearings between 1988 and 1993. She also went into further detail about the allegation that the respondents failed to investigate and take appropriate action in relation to her complaints that she had been racially abused. Finally, in paragraph 4 of the schedule she stated:

"The Applicant was the only Afro Caribbean employee at the Respondent's Atherton depot, and, in relation to the above-mentioned complaints, she was treated less favourably than white employees at that depot."

The decision of the Industrial Tribunal is dated 17th February 1995. It amounted to a unanimous dismissal of the complaints of unlawful racial discrimination and unfair dismissal.

The appellant now appeals to this Tribunal, contending that the Industrial Tribunal erred in law. The contention put forward on her behalf by Mr Hay concentrates, and rightly so, on one aspect of the Tribunal's findings. That aspect arose as follows. Mr Hartley who appeared for the respondents in the Industrial Tribunal, and has represented them before us today, submitted that the Industrial Tribunal had no jurisdiction to deal with the question of unfavourable treatment in relation to re-training, because it had never formed part of the complaint in either of the originating applications or in the schedule. This submission found favour with the Industrial Tribunal. In paragraph 17 of their decision they declined to make findings on aspects of evidence in the following terms:

"... it is not necessary for the Tribunal to form any final view on that matter, although ... we are able to do so if the necessity arises. We say that because we find that our jurisdiction is limited in context of the decision in Chapman and another v Simon [1994] IRLR 124. We find that the case is directly in point in this matter."

Then a little later in the decision in paragraph 18 and dealing specifically with the issue of re-training the Tribunal stated:

"... If the applicant was allowed to maintain those allegations, then it seemed to us that they would be allegations that would come within the statutory definition of discrimination within Section 1 of the Race Relations Act 1976 and could well be the type of conduct which might well come within the test of racial discrimination of King v The Great Britain-China Centre [1991] IRLR 513. The Tribunal did, of course, look briefly at that case but did not find it necessary to apply the three-fold test set out in that case because of the limit of jurisdiction which we hold is imposed upon us. The argument by Mr Hartley is that there is nothing in the two applications to the Tribunal or in the particulars supplied pursuant to the Order of 4 August 1994 to support the allegation that there was a failure to provide remedial training."

Then finally in paragraph 19 of the decision the Tribunal stated:

"... The primary ground relied upon by Mr Hay, therefore, namely the failure of the respondent to offer remedial training when it was clearly offered to white employees, is not one that is within the jurisdiction of the Tribunal. It follows that the Tribunal cannot accept that it has jurisdiction to deal with that aspect of the complaint."

For that, and an associated reason which is not pursued further in this appeal. In paragraph 23 of the decision the Tribunal found that the claim for racial discrimination was beyond their jurisdiction.

The argument of Mr Hay before this Tribunal, really comes down to this: he states that in the schedule to which I have referred, the appellant made it abundantly clear that she was alleging racial discrimination in the decision to dismiss her. So far as the appeal hearings of 13th and 22nd October 1993 were concerned, he points to the fact that the issue between the parties on those occasions was clearly stated and recorded as being dismissal or re-training. He says that when the respondents received the schedule complaining of racial discrimination so far as the decision to dismiss is concerned, that by implication is a complaint of racial discrimination in preferring dismissal to re-training.

In the course of the Tribunal hearing which proceeded over several days the Tribunal heard the appellant's evidence, and the evidence of others dealing with the question of re-training. It seems that there was evidence to the effect that a number of other drivers who had become the subject of disciplinary proceedings, sometimes in respect of allegation of conduct towards passengers, were given the opportunity for re-training. The appellant was the only Afro-Caribbean driver in the Atherton Depot. The drivers who were given the opportunity for re-training were white. It is therefore suggested that there was an evidential basis upon which the Tribunal could find, if it was so minded, that there was unequal treatment and that the reason for that unequal treatment had a racial basis. However, the Tribunal declined to make those findings of fact or indeed any findings of fact on that issue, although they specifically stated that they could do so if the situation should arise.

The argument put forward on behalf of the respondents by Mr Hartley is that the schedule simply was not sufficient to put the respondents on notice of that allegation, and that the submission which he made to the Tribunal was properly accepted there.

We have considered this matter with care and looked at Chapman v Simon. In our judgment that decision of the Court of Appeal is not on all fours with the present case, because that was a case in which the Court of Appeal found that the Industrial Tribunal had rejected all the complaints of the applicant, but had gone on to find in her favour on the basis of a complaint which they, the Tribunal, abstracted from the evidence, but which had never been put forward as a complaint on behalf of the applicant. We do not think that the present case is a case such as that. We take the view that there is force in Mr Hay's submission that the schedule, and particularly paragraphs 1(b) and 1(c) thereof, did raise as complaints racial discrimination on the two dates in question, such racial discrimination taking the form of dismissal rather than the re-training which had been put forward by the union representative but was rejected by the respondents.

We emphasise that we are expressing no view on factual findings which might have been appropriate on the evidence in the case. That is not our task. Having said that, however, we have come to the conclusion that the Tribunal erred in law when it came to the decision that it had no jurisdiction to decide that issue. Accordingly, this appeal must be allowed.

The question then arises as to what should happen next.

The submission of behalf of the appellant is that the matter should be remitted to the Industrial Tribunal but that we should specify that a different Tribunal hears the matter, because in the words of Mr Hay, the first tribunal got the matter so fundamentally wrong.

Mr Hartley on the other hand, submits that if we allow the appeal, we should remit to same Industrial Tribunal because they have heard all the evidence on this subject; the only mistake which has been identified is one of law going to jurisdiction, and that there is no reason to re-open evidential matters. It would be sufficient simply for the same Tribunal to proceed to make findings of fact as they have indicated they are able to do.

We have considered this matter carefully, and it seems to us, that there is no justification for referring this matter to a different Tribunal. Accordingly, it will be remitted to the same Tribunal for further consideration of the evidence and rulings upon it. In particular the Industrial Tribunal must decide whether the respondents treated the appellant less favourably than others, in dismissing her without affording her an opportunity for re-training in October 1993. If they do so find, they must then consider whether that finding of less favourable treatment was racially based. This will not require further evidence from either side. Both parties have made that clear before us. However, it is of course appropriate that the Industrial Tribunal should afford both parties the opportunity for further submissions on the evidence that it heard originally.