United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 724_95_1904

Appeal No. EAT/724/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19 April 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MRS R A VICKERS

MR R SANDERSON OBE

---

MR M RIAZ          APPELLANT

THE TRUSTEES OF THE GMB
MR IVOR THOMPSON          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MR NICHOLAS COOKE

(of Counsel)

Ms Elizabeth Roth

Messrs Robin Thompson & Partners

1 Fitzalan Place

Newport Road

Cardiff CF2 1US


 


MR JUSTICE BUTTERFIELD: This is an appeal by Mr Riaz from a decision of the Industrial Tribunal sitting at Bristol notified to the parties on 22 June 1995. The Tribunal unanimously decided that the Appellant's complaint of racial discrimination was not established and dismissed his application.

Mr Riaz appealed against that decision by notice dated 11 July 1995. His appeal was considered at an ex parte preliminary hearing on 30 November 1995 when the Tribunal ordered the appeal to be allowed to proceed to a full hearing.

This Tribunal only has jurisdiction to hear appeals from an Industrial Tribunal on a question of law. Parliament had expressly left the determination of all questions of fact to the Industrial Tribunals themselves and to no one else.

The Appellant is a solicitor. He was appointed as a solicitor to the General and Municipal Boilermakers Union, the first Respondents, on 29 June 1992. He was dismissed from that employment on 19 May 1994 by Mr Ivor Thompson, the Regional Secretary of the Union and the second Respondent to the application and to this appeal.

The Appellant made complaint of racial discrimination in relation to a large number of matters which occurred at the inception of his employment, during its course and, in particular, at its conclusion. In brief, the Appellant claimed that he had been discriminated against at the time of his appointment; later, in the provision of a secondhand rather than a new car for his use; in a somewhat brusque letter written to him in August 1992 by the second Respondent; in a disagreement in December 1992; in an argument with a Regional Organizer, Mr Evans, in the Summer of 1993 and in the course of an internal dispute between the Appellant and another Regional Organizer, Mr Burns, over the conduct of claims. Further, the Appellant alleged that Mrs Brown, his assistant, was racially prejudiced against him. There were other allegations of less central importance. Finally, the Appellant claimed that his dismissal, which was on any view unfair, was racially motivated.

In their extended reasons, the Industrial Tribunal set out the facts in detail as disclosed by the evidence which they heard over no less than five days. The Tribunal further recorded full careful findings of fact which they reached on that evidence. In relation to each complaint made by the Appellant the Tribunal concluded that there was no racial discrimination.

In reaching that conclusion, the Tribunal had directed itself correctly that it was for the Appellant to make out his case on the balance of probabilities. The Tribunal further was careful to remind itself that direct evidence of racial discrimination is unusual and that few people will admit to racially discriminatory conduct. As the Tribunal correctly stated, racial discrimination can be provided by findings of primary fact and drawing inferences from those facts. In ordinary language, in our judgment, it is quite clear that the Tribunal addressed the specific questions required of it, namely, whether the Appellant was less favourably treated than other employees and, if so, whether that treatment was on the grounds of race.

The Appellant sought to persuade the Industrial Tribunal that the incidents which occurred and his final dismissal came about because he was black. He would not have been treated in the same way if he had been white, he submitted. The Industrial Tribunal rejected that submission. It held that the explanation for the events lay not in the colour of the Appellant but in his character and conduct and in the character and conduct of the staff with whom he worked. The Tribunal concluded that the dismissal and the whole background to the matter had no basis at all in racism. The Appellant was a casualty of office politics, poor management and his own failings.

The Appellant now seeks to set aside those conclusions and that decision. His primary ground is that the decision of the Tribunal was against the weight of the evidence to such an extent that no reasonable Tribunal could have come to the conclusions in fact reached.

The Law which this Tribunal must apply to such a submission is clear. It is, perhaps, most readily to be found in the case of Piggott Brothers & Co Ltd v Jackson and Others[1992] ICR 85. There, the Master of the Rolls, Lord Donaldson, expressed the matter in this way at page 92:

"A finding of fact which is unsupported by any evidence clearly involves an error of law. The tribunal cannot have directed itself, as it should, that findings of fact need some evidence so support them. ... It does not matter whether, with whatever degree of certainty, the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal was a permissible option. To answer that question in the negative in the context of employment law, the appeal tribunal will almost always have to be able to identify a finding of fact which was unsupported by any evidence or a clear self-misdirection in law by the industrial tribunal."

Mr Riaz has sought to persuade us that we can find one or other of both of those necessary prerequisites in a series of matters upon which he relied.

Firstly, he points to the fact that when he originally applied for the post which he was ultimately given he was discriminated against because, he says, another man was first given the job who was considerably less qualified than him. When that other person turned the job down, he was appointed in his stead. The Appellant was in the event appointed which hardly points very clearly in the direction of any form of discrimination but, more to the point, the Tribunal itself in considering this matter, said in clear terms that they had no hesitation in finding that the appointment of the Applicant was welcomed and that the circumstances of the interviews and eventual appointment did not contain:

"the faintest hint of racial discrimination"

In those circumstances, there is nothing in the Appellant's first point.

Secondly, he relies upon the undoubted fact that another employee of the Respondent, a Mr Evans, berated the Appellant in round terms, describing him as unhelpful, arrogant, useless and having a chip on his shoulder. Those were trenchant and offensive observations and plainly regarded as such by the Tribunal. The Tribunal considered this incident in detail and concluded that there was nothing whatever racial in what was said. That Mr Evans would have exploded in a similar manner with whoever he was dealing. In those circumstances we are unable to detect anything of substance in the second matter raised by the Appellant.

Next, the Appellant asserts that the Tribunal's finding that the Union was anti-discriminatory per se was against the weight of the evidence. It is plain from the evidence that was before the Tribunal that they were entitled to reach the conclusion they did. It was a matter for them and not for us.

Similarly, the Appellant complains that the Tribunal wrongly drew inferences from the fact that he did not make a great deal of fuss about what he perceives now as being racial matters at the time they occurred. Again, however, this was simply a finding of fact made by the Tribunal with which we could not, even if we were minded to, interfere. Next, he points to the fact, as he asserts, that the Tribunal accepted his evidence unequivocally, whereas they had doubts about the witnesses called on behalf of the Respondents. In those circumstances, the Appellant submits that the Tribunal should have acted on his evidence and found in his favour. Of course, it is right to point out that even if the Appellant's evidence had been accepted in full, it would still have been a matter for the Tribunal to draw inferences from that evidence. However, it is perfectly plain from the terms in which the reasons are expressed, that the premise upon which this submission is based is incorrect. The Tribunal did not accept unequivocally the evidence of the Appellant, any more than they accepted unequivocally the evidence of the Respondents.

Finally, the Appellant relies upon a number of matters upon which he says it was open to the Industrial Tribunal to infer discrimination. It plainly was open to them to infer such discrimination. They did not do so. The Appellant says that they should, indeed, had to do so, they in effect being driven to that conclusion by the weight of the evidence before them. We do not accept that submission. This was entirely a question of fact for the Tribunal on the evidence placed before it, which it considered with care and at great length.

For those reasons this appeal is dismissed.