United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR Y RAJAH (Solicitor) Messrs Yoga Rajah & Co. Solicitors 19 Undine Street London SW17 8PP


 


MR JUSTICE LINDSAY: We have before us a Preliminary hearing in the matter Mr S R S Tanwar against the London Borough of Greenwich. The Industrial Tribunal gave Extended Reasons on 25 July 1996, there having been a hearing at London (South) on 17, 18 and 19 January 1996.

The Industrial Tribunal had before it two separate "IT1's", one of them as to racial discrimination and another one as to unfair dismissal. In each case the Respondent, the London Borough of Greenwich, had answered that there had been a voluntary dismissal. The particular kind of voluntary dismissal that was in issue was what was called "VR/ER", namely Voluntary Redundancy/Early Retirement.

The position was that Mr Tanwar, the Appellant before us, was head of the London Borough of Greenwich Contracts Compliance Unit (CCU). The Respondent Borough came under severe financial budget pressures and it looked as if the CCU would be dissolved with the loss of all jobs in it except for two. The Applicant, Mr Tanwar, was advised that VR/ER would be a thing it would be prudent for him to apply for. There was a particular additional reason and that was that as part of the budget pressures on Greenwich the terms which were offered to its employees for VR/ER were about to change to the disadvantage of the employees: there was a deadline and applications after that would be less well received financially than those entered before.

There is no suggestion that the advice that was given to Mr Tanwar was other than genuine at the time. It was not said to be disingenuous advice. At all events, on 14 October 1992, Mr Tanwar, recognising that his job was not likely to be one of the two that survived in the CCU, applied for voluntary redundancy. He was then aged 51. If he had delayed much longer then only less attractive terms would have been applicable to his voluntary redundancy. His letter of application for voluntary redundancy dated 14 October 1992 to Mr Atkinson, who in effect was his Line Manager, was specifically made subject to two particular things:

"... I should mention that I intend to try for redeployment within the Council and in case I am successful or in the event of my post not being agreed for abolition by the P & R Committee, I would like to withdraw my application for early retirement/redundancy."

That conditional application for VR/ER was accepted a little later unconditionally because on 27 October Mr Atkinson replied and he said, inter alia:

"... I have accepted your application subject to the final decision of the Chief Executive. I have been told today that the Chief Executive has approved your application. The way is now clear to proceed with your voluntary redundancy/early retirement."...

So at that point of time there was a bargain between the parties in the sense that Mr Tanwar had, subject to only two things, applied for VR/ER and the Council had unequivocally accepted that application.

The reorganisation of the CCU as finally resolved, differed from that which it had been thought would be the case. On 8 December 1992 the Applicant was given twelve weeks notice by the Respondent Borough on the basis that his last day of service would be 2 March, so that the Borough was working through the voluntary redundancy process that Mr Tanwar's letter had put in train. However, because the plan of reorganisation had changed, Mr Tanwar sought to withdraw his voluntary redundancy application. Mr Atkinson, the Line Manager so to speak, decided that he would not allow Mr Tanwar to withdraw the notice and so the notice took effect.

In paragraph 21 of the Extended Reasons the Industrial Tribunal held:

"... We further find that although the committee decision of 4 November was not what it was expected to be, it still gave rise to a reduction in the number of positions, in the context of an overall, drastic reduction in jobs arising from a financial crisis, and therefore there was a redundancy situation. The employment of the Applicant was ended because of the notice to terminate it given in writing on 8 December 1992. That notice was, we find, served because of redundancy. It was given in the context of consent by the Applicant, albeit conditional and qualified, to be dismissed for redundancy, on the basis of an enhancement of financial benefits arising from voluntary retirement. Nevertheless, when it finally expired, it brought an end to the employment of the Applicant .... It was open to Mr Atkinson to withdraw the notice, [by which I think they meant to allow it to be withdrawn] ... There was no obligation on the part of Mr Atkinson to agree to the request of Mr Tanwar that the notice be withdrawn,"...

They held that it was not permitted to be withdrawn and accordingly at paragraph 22 they held:

"We therefore find that the Applicant was dismissed, but he was dismissed for the fair reason of redundancy, and the Respondents acted reasonably in treating that reason as a reason for dismissal."

Crucial to the reasoning there was the consideration of whether or not it was right that Mr Tanwar could withdraw his notice. If he could withdraw his notice and if Greenwich had to accept that withdrawal, the reasoning of the Industrial Tribunal would then fall to the ground. It must be remembered that there were two conditions imposed and only two conditions imposed in Mr Tanwar's letter. I have read them earlier and the first condition was that "if he was successful" (that, in context, meant if he was successful in obtaining other employment with Greenwich) then he would naturally wish to withdraw his application for voluntary redundancy. But he was not successful in gaining some other post and so that condition was unsatisfied. The alternative was "or in the event of my post not being agreed for abolition". The case, as it fell out, was that his post as head of CCU did not survive; some functions, no doubt, of it survived, but the post of head of CCU did not survive because CCU ceased to exist and there was an amalgam with another nomination of committee and the post of Head of CCU did not survive. So that of the two specified conditions, neither came to pass. That being so, and Mr Tanwar having specified two and only two conditions neither of which came to pass, it seems to us that in point of law the Greenwich Borough was entitled to say "you made a conditional application, we accepted it unconditionally, neither of your conditions has been satisfied, therefore your application is unconditional in the events that have happened and therefore you are not entitled to withdraw it unless we allow you to." They did not allow him to withdraw it.

It seems to us that the Industrial Tribunal's reasoning that the Respondent Borough was not obliged to accept a withdrawal was correct. On that basis we see no error of law in their conclusion that Mr Tanwar was dismissed by reason of voluntary redundancy, which was fair, and that he was fairly treated and so on. It was a voluntary termination accepted by the employer and hence no unfair dismissal. So far as concerns that limb of the case, we find no error of law.

In the racial discrimination side of the case the Industrial Tribunal set out at some length a passage derived from the case in the Court of Appeal of King v The Great Britain China Centre [1991] IRLR 513. That summary from King included in paragraph 24 of the Industrial Tribunal's decision the following:

"... There will be some cases where the non-selection of the Applicant for a post or promotion is clearly not on racial grounds, but a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination."...

In that passage, which is identical to the holding in King, the word "discrimination" where it first appears in the expression "but a finding of discrimination" means only at that stage that Mr A has been preferred to Mr B and that in that sense Mr B has been discriminated against. One then has to go on and see whether that preference or discrimination was on racial grounds. It goes on "will often point to the possibility of racial discrimination." As I read it, it is in the same sense that the word "discrimination" is used in paragraph 29 of the findings of the Industrial Tribunal; they say at first:

"... We accept that there are facts from which an inference of discrimination could be drawn."...

The Industrial Tribunal went on to ask themselves whether that discrimination was to be taken to be on racial grounds and they hold that Mr Atkinson had the strongest possible commitment to equal opportunities in respect of race relations. They said his wife is Asian (and Mr Rajah rightly urges that that seems to be an irrelevant feature) but they do go on to say in paragraph 30:

"... At work, he has taken concrete measures to further equality of opportunity."...

Mr Atkinson was a difficult character for the Industrial Tribunal to evaluate because undoubtedly they had misgivings about the reliability of parts of his evidence and they say so at a number of stages. On this part of his evidence they were willing to accept his evidence. It cannot be said that a Tribunal cannot accept part of a man's evidence notwithstanding that it has not accepted other parts. That, more than most, is a question of fact and impression that properly is to be left to the Industrial Tribunal as, so to speak, the Industrial jury.

The Appellant, for whom Mr Rajah has appeared, strongly concentrates on the expression "we accept that there are facts from which an inference of discrimination could be drawn. But there is no inconsistency between that passage and their ultimate finding that the complaint of discrimination on the grounds of race was not well-founded. An inference could have been drawn, but, having regard to the totality of the evidence, was not drawn and, moreover, the necessary racial content was not found.

Although it has been little addressed before us in the Skeleton Argument that was presented to us, another ground that was relied upon on the racial discrimination side depended on a comparison with a white comparator, Mr Gilbert. Mr Gilbert had been the only comparator. If one is to avoid the Industrial Tribunal having to deal with a free ranging shapeless case, one has to limit accusation and the enquiry of fact to particular persons and Mr Gilbert was identified on behalf of Mr Tanwar as the comparator who was to be selected. His case therefore was that whereas Mr Gilbert had been well-treated, he, by comparison, was poorly treated; that Mr Gilbert was white and that he [Mr Tanwar] was not, and that the comparison between them indicated discrimination on racial grounds.

I should say that Mr Tanwar expressly reserved the right to amend his IT1 but failed to do so. The Industrial Tribunal went into the comparison with Mr Gilbert at some length in their Reasons at paragraph 27 and at paragraph 28 they said:

"It is clear that the facts of Mr Gilbert's case were entirely different to those of Mr Tanwar and they do not provide a basis for comparison."

That is a conclusion of fact. They were saying that the case was not one of true comparison any more than it would be to speak of a comparison between chalk and cheese. We cannot interfere with that conclusion of fact unless some error of law is pointed to in relation to it. No such error has been ventilated, still less accepted by us, and accordingly, doing the best we can to find a point of law that can be identified to go forward, we find none, and we accordingly dismiss the application.