United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 868_95_1412

Appeal No. EAT/868/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 December 1995

HIS HONOUR JUDGE P CLARK

MR S M SPRINGER MBE

MRS M E SUNDERLAND JP

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MR M MORGAN          APPELLANT

DUDLEY METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE CLARK: This is an appeal by Mr Morgan against the unanimous decision of the Birmingham Industrial Tribunal (Chairman Mr D W Crump) following a 3 day hearing, dismissing his complaints of unfair dismissal and race discrimination against his former employers, Dudley Metropolitan Council ("the Council").

The facts are fully set out in the Tribunal's extended reasons dated 19 July 1995. In summary, the Appellant was employed by the Council as a mobile cook, specialising in Asian cookery. He prepared school meals. He is of Indian ethnic origin.

He commenced employment on 12 September 1988. From 1991 onwards the Council received a number of complaints about his cooking from various schools. The main complaint was that food which he prepared was over-spiced. This led to disciplinary hearings, warnings about his future performance and guidance and support from management. All to no avail. Finally a disciplinary hearing was held on 5 September 1994, after which he was dismissed. He appealed against that decision to the Council's Appeals sub-committee. That appeal was dismissed.

As to the complaint of unfair dismissal, the Industrial Tribunal found that the reason for dismissal related to the Appellant's conduct in not following instructions as to food preparation. Further, they found that the decision to dismiss was reasonable under Section 57(3) of the Employment Protection (Consolidation) Act 1978, and that the dismissal was fair.

The claim of race discrimination centred on the Appellant's complaint that he had been harassed on racial grounds by various members of management and in particular a Mrs Coleman. The Tribunal found that although the Appellant was treated less favourably than other employees who were not dismissed, the Council had provided a satisfactory explanation for their treatment of him. The Tribunal declined to draw an inference that such treatment was meted out to him on the grounds of his race or ethnic background. Accordingly that complaint was also dismissed.

This is a preliminary hearing to determine whether the Appellant has raised an arguable point of law to go to a full hearing of this Appeal Tribunal.

His Notice of Appeal, under paragraph 6 relating to the grounds of the appeal, refers to his complaints of unfair dismissal and race discrimination accompanied by the cryptic observation "I'm not fully satisfied".

Those grounds were supplemented by a letter to this Tribunal dated 2 August 1995.

We have looked at that letter and we can detect there no arguable point of law.

Today, Mr Morgan has directed our attention to paragraphs 71 and 72 of the Tribunal's reasons which read:

"71 The tribunal is satisfied that the applicant was treated less favourably than were others of the respondents employees who were not dismissed.

72 The tribunal is satisfied that the explanation for the dismissal of the applicant given by the respondents is an innocent and reasonable explanation. ..."

And they then go on to deal with that explanation.

In relation to paragraph 71 the Solicitor to the Council wrote to the Industrial Tribunal on 25 July 1995 with this question:

" ... I am wondering if there has been a typing error [that is in paragraph 71] and if there is a negative missing here, and whether the paragraph should read `The Tribunal is not satisfied that ...' or `The Tribunal is satisfied that the Applicant was treated no less favourably ...'."

The Chairman replied through the Industrial Tribunal secretariat on 1 August, and that letter informs the Council that there is no typing error in paragraph 71 of the decision. The Applicant was treated less favourably than other employees who were not dismissed, because he was dismissed.

Mr Morgan really asks us whether there is an error of law here. Of course it is not for us to answer that question, but put another way, if he is submitting that there is an error of law in those two paragraphs we cannot agree. In paragraph 71 the Tribunal identify unequal treatment in the sense that he was dismissed, other employees were retained.

They then go on, given that he is of Indian ethnic origin, to consider the explanation for the dismissal put forward by the employers and they find that that was a satisfactory explanation. It seems to us that the Industrial Tribunal in this respect followed closely the guidance in relation to discrimination claims which is to be found in the Court of Appeal's decision in King.

In all the circumstances, having considered this decision as a whole, we find that it is flawless; that no possible error of law is raised and accordingly we must dismiss this appeal at this stage.