United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S MUNASINGHE (of Counsel) Messrs Irwin Mitchell Solicitors West Brow 9 Arkwright Road Hampstead London NW3 6AB
For the Respondents	MR J R McMANUS (of Counsel) Mrs N J C Arrigoni National Air Traffic Services Ltd Legal Department CAA House 45-49 Kingsway London WC2B 6TE


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against a decision of an Industrial Tribunal held at London (North) on 1st May 1995. It was unanimous decision of that tribunal that the respondent did not unlawfully discriminate against the applicant on racial grounds, or victimise him.

The respondent to the application was the Civil Aviation Authority ["CAA"] who have been represented by Mr McManus before us to day, and we are grateful to him and to Mr Munasinghe for their considerable assistance. As a result of their help, we have been able to dispose of this appeal much more quickly than otherwise we would have been able to do.

The facts giving rise to the complaint on which the tribunal adjudicated, are somewhat complex. It was the second originating application at that time presented against the CAA by the appellant. The first application had been presented to the tribunal on 2nd August 1993, and that originating application was heard and determined by an Industrial Tribunal presided over by Mr Glossop. On 12th August 1994 their decision was that the applicant had been treated less favourably on racial grounds by the respondents, and he was awarded £5,000 for injury to feelings. The additional compensation for his actual monetary loss was adjourned for settlement between the parties, liberty to apply.

That application arose out of the appellant's complaint that on the grounds of race, he had not been promoted as at May 1993. The two white comparitors with whom he was able to compare himself, had been promoted or upgraded in December 1992. As a result of the first Industrial Tribunal concluding that the reason why there had been non-promotion in the appellant's case was his race, the Civil Aviation Authority thereupon upgraded the appellant as from December 1992 which was the date when the two white comparitors had themselves been upgraded.

As Mr McManus pointed out to us, this was probably a decision taken by the CAA which went beyond what the tribunal could or would have awarded having regard to the fact that the appellant's complaint referred to his non-promotion as at May 1993, rather than December 1992.

During the course the hearing before the Industrial Tribunal presided over by Mr Glossop, the Group Director for Financial Services of the CAA, had stated in evidence that pending the outcome of those proceedings, the appellant's promotion had been put on ice. That was obviously a matter which had not been relied upon by the appellant in his first originating application. The question arose as to whether this first tribunal presided over by Mr Glossop, should investigate the lawfulness of such a statement and the potential claim of victimisation resulting therefrom, and they concluded, on the basis of objection taken, that the matter should not be further explored before them.

As a consequence of hearing that evidence, the appellant thereafter presented a second application to the Industrial Tribunal dated 3rd November 1994. Although that was an application alleging both victimisation on racial grounds and discrimination on grounds of race, when one looks at the substance of the complaint on the IT1, it is plain that the essence of the complaint was victimisation based upon the statement made by Mr Brett to which I have referred. It was his pleaded case that what Mr Brett said amounted to a breach of Section 2 of the Race Relations Act 1976. Accordingly it became the duty, in our judgment, of the second Industrial Tribunal presided over by Mr D H Rouse and which was held on 1st May 1995, to make an adjudication on the complaint of victimisation which was being raised. It was that decision against which this appeal has been lodged.

It seems to us that the Industrial Tribunal may have somewhat taken their eye off the ball when considering the originating application. We can find nothing in their decision which appears to be an adjudication on the issue of whether there had been victimisation within the meaning of Section 2 or not. Indeed, if the Industrial Tribunal had looked with care at the terms of the response (the IT3) put in by CAA, they would have observed, we think, that the CAA could not and were not contending that there had not been victimisation in this case.

On the basis of what Mr Brett said, the appellant was not promoted because he had brought proceedings against the CAA in reliance on the Race Relations Act 1976. That was a protected act falling within Section 2(1)(a), and accordingly, it seems to us, that all the ingredients of an act of unlawful victimisation was made assuming that the Industrial Tribunal concluded that Mr Brett had said what he did, and it is to be noted that Mr Brett was not called by the CAA to dispute that he had made this remark. As I have already indicated their IT3 did not seriously put in issue the question of victimisation.

The Industrial Tribunal said this:

"2 We have heard evidence from the Applicant and made the following findings of fact:

...

(b) In the course of that hearing a Mr Brett who was Group Director for Financial Services stated in evidence that pending the outcome of the proceedings the Applicant's promotion had been put on ice. Those proceedings had been initiated by an Originating Application presented on 2 August 1993. The matter was not explored further at that hearing following objection to the introduction of fresh allegations not previously raised.

4 For the Respondent Mr McManus contended that the Applicant had stated that he did not know about the alleged victimisation until the date of the hearing following which the finding of the Tribunal had been announced. All financial loss had been recovered. There has been no further disadvantage to the Applicant and no further injury to his feelings. Counsel referred to Alexander v Home Office 1988 ICR 685 and North West Thames Regional Health Authority v Noone 1988 ICR 813 and pointed out that it was compensation with which the Tribunal was asked to deal and not punishment. There was nothing in the second Originating Application to suggest any change in the relationships or to set out any further detriment.

5 We now come to our conclusions in the matter. It is for the Applicant who complains of racial discrimination to make out his case but if the Applicant does not prove the case on the balance of probabilities he will fail. It is important to bear in mind that it therefore usually depends on which inferences it is proper to draw from the primary facts found by the Tribunal. The fact that a complainant honestly considers that he is being less favourably treated does not of itself establish that there is less favourable treatment within Section 1(1)(a) of the Race Relations Act 1976. Whether there is less favourable treatment is for the Industrial Tribunal to decide. In his evidence in chief the Applicant stated that he had lost the opportunity to go to JMG1 and that he was aware of a soured atmosphere. In response to a question from the Tribunal he stated that he applied for a vacancy at JMG1 in another department but was not called for interview. He stated that he could not prove that was because of the Tribunal. He suggested that Mr Smith received better quality work than he did. Ms Ketley the other comparitor had since left. The Applicant's case was that he was unaware that he had been victimised until the date of previous hearing. The finding in his favour was announced that day but the reasons for that finding did not become available until 23 November. Following receipt of the decision the Respondent paid to the Applicant the sum of £5,000 by way of compensation for injured feelings and negotiated a settlement of all outstanding matters. Pending receipt of the decision the Applicant presented a further Originating Application complaining of the words used by Mr Brett. The particulars given by the Applicant in support of his second Originating Application were rather thin. His perceptions were that relationships had been soured by the Tribunal hearing and he had been deprived of the opportunity to progress to JMG1. There was no evidence that anyone else had progressed to JMG1 least of all Mr Smith. While the Applicant had applied for a job in another department at a senior grade and had not been called to interview he was not able to say that it was anything to do with his workload. We do not accept that the Applicant has received less favourable treatment whether on account of his complaint or the previous hearing before the Tribunal. The Respondent set about making amends to the Applicant immediately upon receiving the decision and had done so. If we are wrong we would say further that the Applicant has been generously compensated and that any further compensation would move into an area of double recovery. The Respondent will however, be aware of the Applicant's perception of the situation and has been put on notice as to the possible consequences of any further dealings with him. As far as the current application is concerned this is dismissed."

It is to be noted that the Industrial Tribunal recognised that the question of victimisation had not been explored at the first Industrial Tribunal. It is also to be noted that they purport to say that the decision of the first tribunal awarding £5,000 by way of compensation was generous, and that any further compensation would be double recovery. It seems to us that having concluded that the question of victimisation was not before the first tribunal as they have noted, that it was not open to them to conclude that there was going to be double recovery. The question as to whether any loss had been established by the appellant arising from the alleged act of victimisation was something they were required to investigate for themselves, and to form a view about, obviously taking into account what the first tribunal had done, but not, as it seems to me, concluding that the act of victimisation itself was one which the first tribunal had already determined should be compensated.

Having regard to the history which I have just recited, it seems to us to be clear that in the circumstances, the Industrial Tribunal should have considered the question under Section 56 of Race Relations Act 1976, whether it would be just and equitable to make an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates. It seems to us that on the material before them, having regard to the limited issue which was raised by the CAA, that the Industrial Tribunal effectively had only one option available to them, which was to make the order declaring the right of the complainant and the respondent; namely, a declaration that he had been victimised on the grounds relied on by the appellant in his second IT1, and on the basis of what Mr Brett had said during the course of the first hearing.

The question of compensation is plainly much more difficult. It does raise questions as to the extent to which, in part if not in whole, he may have been compensated for by the first tribunal. Mr Munasinghe quite rightly points out that it is possible to be discriminated against on two grounds, and both grounds go to aggravate the injury to feelings and the feeling of anger and distress that comes from any act of discrimination.

We consider that the correct course to follow in this case is for there to be a new hearing on the question of what compensation, if any, the appellant should receive as a result of our declaration that he was victimised. It seems to us that the tribunal which reached the conclusion that no loss had been sustained, is not an appropriate tribunal to hear and determine that issue; because it seems to us that they have, in one sense, somewhat jumped the gun.

The ideal, as it seems to us, is that the matter should go back before a tribunal constituted as they were on the first occasion, that is presided over by Mr Glossop with Mr Howe and Mr Golds as the lay representatives. If that is not possible or reasonably practicable, then it should be heard and determined by a new tribunal. We are of the view that the parties should be able to adduce such evidence as they wish on that occasion.

We note that Mr McManus considers that the appellant has had every opportunity to put forward his claim for compensation arising from victimisation at the second hearing. We do not consider that the tribunal on the second occasion approached the matter in the correct way for the reasons we have already given. But of course Mr McManus will be able to cross-examine the appellant at any rehearing on the basis of what he said at the second Industrial Tribunal.

We wish to give no indication to such Industrial Tribunal as to how the question of compensation will be resolved. It seems to us that they should hear the matter, listen to the arguments, and reach their own conclusion as to whether any award of compensation should be made, and if so, how much.

Accordingly we allow the appeal in part, and substitute a finding or declaration that the appellant was victimised. And remit the question of compensation back, preferably to the first tribunal, but if not, to a freshly constituted tribunal for them to determine any questions of compensation.