United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 672_95_1902

Appeal No. EAT/672/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 February 1996

HIS HONOUR JUDGE D PUGSLEY

MR P DAWSON OBE

MRS M E SUNDERLAND JP

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PREMIER HOUSE          APPELLANT

MR R BLACKETT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant Mr S Devonshire

(of Counsel)

Legal Department

The Greenalls Group Plc

Wilderspool House

Greenalls Avenue

Warrington

Cheshire WA4 6RH

For the Respondent MISS H CLARK

(of Counsel)

Messrs Chamberlins

14/15 High Street

Hitchin

Herts SG5 1AT


 


JUDGE PUGSLEY: This is an appeal from a decision of an Industrial Tribunal sitting at Bedford when it was found by the Tribunal that the Applicant had been the subject of racial discrimination.

The factual background may be very briefly set out. Mr Blackett had worked for the Respondents, the Crown Roast Inn in Harlow, as a second chef from 18 July until his dismissal, which was on 2 September.

The Applicant asked to be given reasons for his dismissal in writing. He was given a letter signed by Mr Elliott, confirming the termination of employment, but nothing was said in that letter about the reason for that termination.

In his originating application, Mr Blackett stated that when he was given his dismissal he was told that he did not fit into the Crown staff:

"because I am black and that he would not have employed me in the first place but it was his predecessor who made the mistake by employing me."

According to the notice of appearance, the reason for the Applicant's dismissal was his failure to perform the job satisfactorily. These matters were particularised and it was claimed: a) He lacked initiative, was unable to carry out duties without instructions and incapable of simultaneous cooking and making meals in more than one area of the kitchen. b) He had difficulties in gaining a working knowledge of the restaurant menu and made mistakes with dishes. c) He was unhelpful, inflexible and unco-operative. d) He had had a row and refused to serve customers with food from the carvery after 9.30 pm and it said that he was aggressive and abusive. e) He smelt of alcohol when on duty.

The Tribunal's decision is extremely short and certainly there is no virtue in prolixity in its own right. In paragraphs 3, 4, 5, 6 and 7 of the decision, the Tribunal sets out the reasons for arriving at the decision that the Applicant was racially discriminated. I think it justifies reading those paragraphs:

"Evidence was given in support of these allegations [namely, that the Applicant had been dismissed because he failed to carry out instructions properly, made a number of mistakes and was aggressive and abusive both to customers and fellow employees and on several occasions smelt of alcohol] by Mr Tomlinson, head chef; Miss Sturgeon, assistant manager; Mr Byers, chef; Mrs James, waitress, and Mr Elliott. Mr Tomlinson and Miss Sturgeon said that Mr Blackett made a number of mistakes with orders, attributed to the fact that he could not read properly without his spectacles. It seems that his problems could probably have been solved by wearing bi-focals. Mr Tomlinson, Miss Sturgeon and Mr Elliott commented on the smell of alcohol on Mr Blackett's breath. This appears to be accounted for by the fact that, for the 3 hours between shifts Mr Blackett had nothing to do other than to go to a pub. This seems to have been largely the respondents fault, in that they failed to provide any rest room or recreational facilities at the Crown Roast Inn.

4. The only really serious incident, of which evidence was given by Mrs James, was when Mr Blackett got angry and swore at her when customers came in at 9.30 p.m. for a meal. Mr Blackett denied that this incident occurred, or at any rate that it was so serious as Mrs James alleged, but we do not think we can ignore Mrs James' evidence on this incident.

5. However, the most general complaint about Mr Blackett was his allegedly aggressively conduct. Both Miss Sturgeon and Mrs James said that they were afraid of him. Miss Sturgeon said in her evidence:

`I was somewhat afraid of Mr Blackett. I did not have cross words with him. His manner could be aggressive. It was the way he spoke. There were no threat. If he was annoyed, he would look very angry.'

6. It seems to us that the effect that Mr Blackett had on the other employees working for the respondents, which led them to think that he was aggressive, is likely to have been attributable largely to the fact that he is black. People sometimes find the appearance of black people alarming when they are not used to them. In Mr Blackett's case, this effect was increased by his habit of making his eyes bulge which Mrs James expressly commented on as being frightening. However our own impression of Mr Blackett was that, once we got used to his habit of making his eyes bulge, we found him a very amiable fellow and any initial alarm was soon dispersed.

7. It is significant that there was no evidence that the respondents' employees have been given any training in dealing with ethnic minority employees or any awareness of such matters as the Code of Conduct. Indeed there was no evidence of any awareness of race discrimination matters whatever. We think that Mr Blackett's dismissal and the incidents which led to it are largely, or at any rate partly, accounted for by the fact that he was black. We do not wish to infer that any of the respondents' employees were consciously being unfair to Mr Blackett. His effect on them was in our view due to the respondents' failure to have trained them properly of dealing with ethnic minorities as they should have done."

It went on to say later on, when considering compensation:

"We do not think that anybody has been other than courteous to him at any time."

That decision has been forcibly challenged by Mr Devonshire, who contends that the Tribunal decision is flawed. He points out that the Tribunal made a number of findings of fact, namely, that Mr Blackett did make mistakes in taking orders, that he did smell of alcohol, that he had sworn at, and been aggressive, to Mrs James, that Miss Sturgeon and Mrs James were afraid of Mr Blackett and that none of the employees had been consciously unfair to Mr Blackett or been any other than courteous to him. Mr Devonshire submits that having made those findings of fact, the Tribunal then went on to substitute its own view of matters by making a hypothesis for which there really was no evidence. In particular, it attacks paragraph 6, where it is said:

"It seems to us that the effect that Mr Blackett had on the other employees working for the respondents, which led them to think that he was aggressive, is likely to have been attributable largely to the fact that he is black. People sometimes find the appearance of black people alarming when they are not used to them."

Mr Devonshire says with some force that there was no evidence to support that hypothesis and that it reveals more about the Industrial Tribunal's own preconceptions than any generally recognized understanding or body of informed opinion. In any event, he says that there is no finding that the individuals alleged to have discriminated were unused to black people.

Industrial Tribunals hear the evidence and they have the opportunity of weighing up a situation. It is a fallacy to think that any appellate body deprived of that opportunity can or should substitute its own view for that of the Industrial Tribunal. We bear in mind the strictures of the President of the Employment Appeal Tribunal, the Honourable Mr Justice Mummery, in the case of Steward v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and, in particular, the concluding observation based on paragraph 33 of page 443. We are well aware of the heavy burden that lies upon those who seek to assert that in any way a decision is perverse.

In this case, however, there are, in our view, serious grounds of concern that there is a misdirection of law. May we say right away that we fully understand the pressures a Tribunal is under and, in particular, where, as in this case, an Applicant is unrepresented and a Respondent is represented. Of course, no one would suggest that an unrepresented person should be put in a better position than the represented person but obviously Tribunals do try to assist an unrepresented employee. It may well be that the desire to make sure that every matter was considered that would have been put on his behalf had the Applicant been represented which led the Tribunal unwittingly into making certain assumptions which were unjustified.

We are indebted for the help we have received on both sides and in no way is it disparaging of the help we have received from Mr Devonshire, to say that Miss Clark has shown a quite exceptional verbal and mental agility in seeking to justify this decision but even she, with a certain degree of cautious realism, recognizes that there are some difficulties about the structure of this decision.

There is no attempt to say in terms exactly what findings the Tribunal has made as to the reason for the dismissal. We are mindful of the fact that the Applicant did not have sufficient continuity of service to have the right not to be unfairly dismissed. The allegations made against the Applicant are evaluated as though this was a case of unfair dismissal. There is no attempt to evaluate those matters in the context of how a white employee would have been dealt with or viewed in relation to those matters.

The Tribunal go on, as we have indicated, to say that in their view Mr Blackett had the effect on other employees of them thinking he was aggressive and this was largely attributable to the fact that he is black. It is perfectly true that Tribunals, by experience and expertise, are well aware that behind certain innocuous phrases there are, in fact, hidden discriminatory stereotypes on either race or gender. The oft-quoted remark that someone does not fit in, on analysis and stripped of its beguiling veil may be no more than an attempt to rationalise race or sexual prejudice. There is nothing wrong in Tribunals bearing this in mind. But it is one thing for a Tribunal to consider the stereotype assumptions there may be and evaluate evidence in the light of those assumptions. It is a totally different matter to take an assumption, infer it applies, when there is no adequate evidence for that. We cannot find any evidence analyzed whereby the Tribunal can come to the view that, in this particular case, these employees found the appearance of the Applicant alarming because he was black. Instead, this is the case, if one may say so, where a stereotype of the Tribunal has not just been examined in the light of the evidence but has been applied irrespective of the evidence.

In paragraph 7, it is said:

"We think that Mr Blackett's dismissal and the incidents which led to it are largely, or at any rate partly, accounted for by the fact that he was black."

As we have already indicated, the evidence concerning his mistakes, the fact that he smelt of drink and the fact that there was an incident where he got angry and swore at his employer over the question of a meal being necessary after 9.30 pm have not been evaluated at all in relation to whether they show that a white employee would have been dealt with differently and there was any element of discrimination. Instead, they have been considered as though this was a case of unfair dismissal.

We have come to the view that the decision is fundamentally flawed because the Tribunal has substituted its own stereotype for evidence to justify that view. Mr Devonshire suggested to us that we ourselves substitute a decision that there was no racial discrimination. We are not prepared to take that course. The Tribunal, which included a Chairman and two industrial Members, had the opportunity of evaluating the witnesses. They clearly were concerned. Moreover, although it is not a matter that is dealt with at all in the decision, it may be that the Applicant gave evidence in accordance with his originating application. If he did, and there is no means of knowing without calling for a note, which we do not intend to do, that in itself might well afford grounds for drawing that inference. Moreover, it may be that a Tribunal might drawn an inference - it would be a matter entirely for them - on the circumstance of which the Applicant's employment was terminated without being given reasons. But those are not matters that have featured. All we can say is that we do not consider we would be justified for the reasons that have been eloquently put to us by Miss Clark, in substituting a decision that there was no racial discrimination. We think that the correct decision in this case is the appeal is allowed and the matter be remitted for consideration by a fresh Tribunal.