United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1327_95_1505

Appeal No. EAT/1327/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 15th May 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J A SCOULLER

MS B SWITZER

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MR O PORTER          APPELLANT

DESKLINK LTD T/A VICTORIA OFFICE FURNITURE (IN LIQUIDATION)          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MR C SAMEK

(of Counsel)

E.L.A.A.S.


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Porter who was unsuccessful in the Industrial Tribunal held at London (North) on 20th October 1995, in his claims for unfair dismissal and racial discrimination against the respondent, Desklink Ltd T/A Victoria Office Furniture.

The extended reasons for the tribunal's rejection of Mr Porter's claim were sent to the parties on 9th November 1995. A letter, treated as the Notice of Appeal, was served by Mr Porter on this tribunal on 11th December 1995.

We have to decide at this preliminary hearing whether there is an arguable point of law on the appeal. We have been fortunate in the assistance given by Mr Samek representing Mr Porter at today's hearing.

In the origination application, Mr Porter set out the details in support of his claims for:

1 Unfair dismissal for asserting a statutory employment right.

2 Unlawful deduction of wages.

3 Race discrimination

4 Failure to provide statement of main terms and conditions of employment."

He had been employed by Desklink as sales administrator for a brief period in 1994 between 22nd August and 24th November.

We can deal briefly with the claims of unfair dismissal for asserting a statutory right and unfair dismissal on racial grounds. In our view, there is no arguable error of law by the tribunal in their conclusions on this point. There was a conflict of evidence dealt with in paragraph 9 of the decision. It was a conflict of evidence between Mr Porter and Mr Cox. Mr Cox gave evidence. He was the manager of the showroom. Mr Cox gave evidence in which he first of all denied that he had given the request made by Mr Porter for a statement of his terms and conditions of employment on 22nd November 1994. Mr Cox stated he was handed that request on 24th November 1994 after dismissing the appellant but before the arrival of a police officer.

Desklink said that their reason for dismissing Mr Porter was not his request for a statement of terms and conditions of his employment, but because he refused to come to work early in accordance with the arrangements agreed between himself and Mr Cox.

The tribunal, faced with this conflict of evidence, correctly identified the crucial question in relation to the unfair dismissal claim as, what was the reason for that dismissal? They accepted Mr Porter's evidence to the extent that they considered it was more likely than not that he did request a statement of his terms and conditions of employment at some time prior to his dismissal on 24th November 1994. But, although they accepted that evidence (paragraph 11), they reached the conclusion in paragraph 12 that Mr Porter's request for those terms and conditions was not the reason, or the principal reason, for his dismissal. They thought it was clear from the evidence from Desklink that their staff were angry and frustrated by Mr Porter's failure to turn up for work at a time which would enable them to satisfy their customer's needs. The tribunal held that the request to be supplied with a statement of terms and conditions played no significant part in his dismissal, and accordingly his unfair dismissal claim was rejected.

In our view, there was no misdirection by the tribunal about the dismissal on grounds of assertion of statutory right contrary to Section 60A of the Employment Protection (Consolidation) Act 1978. There is no arguable question of law. The question was: what was the reason for the dismissal: was it the assertion of statutory rights or some other reason. That was a question of fact. On the question of fact, the tribunal had to make a decision, which only they could make, about the conflict of evidence between Mr Cox and Mr Porter.

The allegation that the dismissal was on racial grounds was rejected by the tribunal in forthright terms. They said that Mr Porter had placed reliance on a series of incidents prior to his dismissal, which, he contended, showed racial bias on the part of Mr Cox's part.

The tribunal dealt with this in paragraph 14 by finding that the allegations made by Mr Porter were wholly without foundation. They said:

"We are satisfied that Mr Cox was in fact a keen supporter of the Applicant in the early period of his employment, and we also accept Mr Shaw's evidence to the effect that Mr Cox's behaviour at the workplace displayed no racial bias. We therefore reject the Applicant's complaint of racial discrimination."

Those reasons of the tribunal focus, as Mr Samek correctly pointed out, on the claim for unfair dismissal. There is nothing in those paragraphs that reveals any error of law by the tribunal in rejecting the complaint that the dismissal was for racial reasons. The reason for the dismissal is a question of fact. There can be no appeal against that.

We do, however, agree with Mr Samek that there are reasonable grounds for arguing that the tribunal erred in law in failing to deal with all the complaints of racial discrimination raised by Mr Porter in his application. Paragraph 13 of the details of his application stated that he believed, that in all the circumstances relating to his dismissal, he was treated less favourably than a white employee would have been treated in similar circumstances. That is a complaint about the dismissal. But he also made a separate complaint in these terms:

"I was the only black member of staff working at the warehouse in Uxbridge Road and I believe that in relation to my terms and conditions of employment I was treated differently to other members of the staff working there."

Mr Samek has pointed to the details given in response to the questionnaire about salary. Mr Porter's salary details were given. The salary details of comparable employees, or possibly comparable employees, who were white are stated to be "confidential".

Nowhere in the extended reasons do the tribunal deal with complaint about discrimination in terms and conditions of employment. Mr Porter himself raised this question in his letter, treated as a Notice of Appeal and dated 20th November 1995. He said that the tribunal had failed to consider his application under Race Relations Act 1976 that he was treated differently by the company. They dealt with it in so far as it related to dismissal, but not in so far as it related to his terms and conditions. If this claim was persisted at the tribunal, and evidence was given about it and legal submissions were made about it, the tribunal should, in order to fulfil its function, have made findings and stated their conclusions about it. This matter must be investigated further. As already indicated to Mr Samek, it will be necessary for the Chairman of the Tribunal to be asked by this tribunal to produce his notes of evidence and his notes of the legal submissions made on the question of alleged racial discrimination in terms and conditions of employment.

On that basis, we allow this appeal to proceed on the limited question of whether there was an error of law in the Industrial Tribunal's decision in failing to deal with the question of alleged racial discrimination in terms and conditions of employment.