United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 342_95_0802

Appeal No. EAT/342/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 February 1996

Before

THE HONOURABLE MR JUSTICE TUCKER

MR J H GALBRAITH CB

MR N WILLIS

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MR W PALL          APPELLANT

BENTALLS PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M K GALBERG

(of Counsel)

Messrs Hamilton Williams & Co.

Solicitors

2 High Street

Kingston upon Thames

Surrey

KT1 1EY

For the Respondents MR P DIXON

(of Counsel)

CLAIRE LACEY

Messrs Palmers

Solicitors

89-91 Clarence Street

Kingston upon Thames

Surrey

KT1 1QY


 


MR JUSTICE TUCKER: This is am employee's appeal against a decision of an Industrial Tribunal sitting at London (South) on 16 December 1994. It was the unanimous decision of the Tribunal that the Appellant's complaints of race and sex discrimination were dismissed. The Appellant is of Asian ethnic origin and is now aged 40. He has for many years been employed in the retailing industry. In November 1993 he applied for a managerial position with Villeroy & Boch. He was seen by Mr Paul Clark their area controller. Mr Clark mentioned the possibility of two managerial jobs at Villeroy & Boch's concessions, which they held in certain large departmental stores. One of these was at the Ealing store of the Respondents, Bentalls Ltd. According to the Appellant's evidence to the Tribunal, he said that he would like that job and that Mr Clark told him he could that he could start on 15 November.

The operation of Villeroy & Boch's concessions was subject to a Licensee Shop Agreement made between themselves and the Respondents. This is an important document since it governs the relationship between the two. Unfortunately it was not placed before the Tribunal. The reason for this is that the Appellant's then adviser, apparently considered that there was no dispute about whether or not the Appellant had been offered a job by Villeroy & Boch, which he had accepted. Herein lies the problem which has given rise to the present appeal. Section 65 of the Race Relations Act 1976 provides machinery designed to help a person aggrieved who considers that he may have been discriminated against. He is entitled to question the party who he considers to have discriminated against him, and to rely on the answers given to his questionnaire as admissible evidence in the proceedings which may follow.

The Appellant in the present case took advantage of this procedure. He sent a questionnaire to the Respondents. Question 4 of the questionnaire is in these terms:

"Do you agree that the statement in paragraph 2 is an accurate description of what happened? If not in what respect do you disagree or what is your version of what happened?"

The statement to which that question refers is this:

"On Friday 12th November 1993 I came to Bentalls (Ealing) to meet Ruth Parsons, the Personnel Manager, and the staff with whom I would be working, having been selected by Mr Paul Clark of Villeroy & Boch to be Manager of the Villeroy & Boch concession there. I was to begin my duties 3 days later, on Monday 15th November. Ruth Parsons subsequently told Villeroy & Boch she would not accept me as their representative. She gave no reason."

It was for the Respondents to decide whether they had the requisite knowledge to answer that question. They must have decided that they did, since they chose to do so. Their answer to that question was yes, so it would appear that the Respondents were agreeing (1) that the Appellant had been selected by Mr Clark of Villeroy & Boch to be manager of their concession with Bentalls at Ealing, (2) that the Appellant was told by Mr Clark that he was to begin work there three days later, (3) that Ruth Parsons subsequently told Villeroy & Boch that she would not accept the Appellant as their representative and (4) that she gave no reasons for this decision.

In answer to a later question, the Respondents set out what Miss Parsons reasons were in fact. But when the hearing took place before the Industrial Tribunal, it became apparent that the issue as to who employed the Appellant (which the Appellant was entitled to think was no longer in dispute) was a live issue. That this is so, appears in paragraph 5 of the Tribunal's decision where they say this:

"At the conclusion of the evidence it was clear that the issues for the Tribunal were:

(i) Was this a dismissal by Bentalls following an offer of a job by Mr Paul Clerk of Villeroy and Boch and the Applicant's acceptance or was it a refusal of employment by Bentalls?...

So, it was submitted, the Respondent had changed their case at the last moment and without the Appellant having a proper opportunity to meet it.

The Tribunal proceeded to consider that issue without having the benefit of being referred to the agreement; Clause 5 of which might have assisted them. It provides that:

"The Licensees' [Villeroy & Boch] staff shall be their employees for all purposes... and shall not employ on the said premises any person to whom Bentalls shall reasonably object."

The Tribunal make no reference in their decision to the important admission made by the Respondent in answer to the questionnaire. Given the complaints here were of discrimination both on grounds of sex and of race, and bearing in mind the difficulty for an applicant in ever being able to adduce direct evidence of discrimination, it was clearly important that the factual context of the complaint should be fully investigated. It is not incumbent upon an Industrial Tribunal to set out every piece of evidence upon which they rely on coming to their decision, or to review every argument placed before them. At the same time, it seems to us that the question and answer was of such fundamental importance in the present case, that it ought to have been referred to and commented upon, so as to make it clear that the Tribunal had considered it and to state, if need be, the reasons why they disregarded it.

We are not surprised that the Tribunal did not of its own motion grant or offer an adjournment. It may not have appeared to them to be quite so clear cut a departure from the case as occurred in the case of Hotson v Wisbech Conservative Club [1984] ICR 859. It is to be borne in mind that the Appellant was represented by Counsel from the Free Representation Unit, who apparently saw no reason to require an adjournment. We do not in these circumstances consider that the Tribunal erred in not offering an adjournment of its own motion. However, we do think that the Tribunal reached its decision without considering, or in one case apparently considering, two important pieces of material - the contract and the questionnaire. Again we bear in mind that neither Counsel suggested that the Tribunal ought to look at the contract, but for these reasons we do consider that this decision was flawed. We are not in a position to make any findings of fact. What we propose to do is to allow the appeal - to quash the decision of the Tribunal and to remit the matter for consideration by a freshly constituted Tribunal. We request the area Chairman to appoint a new Tribunal for that purpose.