United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 80_95_2504

Appeal No. EAT/80/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 April 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MRS T A MARSLAND

MR J A SCOULLER

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MR M C HUSSAIN          APPELLANT

ELONEX PLC          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MS I OMAMBALA

(Of Counsel)

C.R.E.

Alpha Tower

Suffolk Street

Birmingham

B1 1EE

For the Respondents MS R DOWNING

(Of Counsel)

Messrs Kosky Seal & Co

Ambassador House

2 Cavendish Avenue

Sudbury Hill

Harrow

Middlesex

HA1 3RW


 


MR JUSTICE BUTTERFIELD: The Appellant, Mohammad Hussain, appeals against the decision of the Industrial Tribunal sitting at London (North) promulgated to the parties on 16 December 1994. By that decision, the Tribunal unanimously held that the Appellant was not unlawfully discriminated against by the Respondents, and by a majority held that the Appellant was not unfairly dismissed.

We wish to make two preliminary observations before dealing with the substance of the appeal. The first concerns the representation that the Appellant has enjoyed this morning from Ms Omambala. Each Member of the Tribunal wishes to make it plain that we have been greatly assisted by the care and skill with which she has presented the Appellant's case. He could not have been better represented. We are grateful to her. The second matter is this: each Member of the Tribunal feels considerable sympathy for this Appellant. It may well be that had it not been for the activities of another employee, the Appellant would not ultimately have been dismissed. But this Court is concerned only with matters of law and it must resolutely set its face against allowing sympathy or prejudice to affect its application of the law.

The Appellant is a Pakistani by birth and ethnic origin. He was employed by the Respondents as a Computer Engineer. He alleged that over a substantial period of time he was subjected to racial harassment and abuse by a fellow employee, one Michael Gurden. Many and profuse were the allegations of harassment. The Tribunal who heard evidence over no less than three days, concluded that most of the incidents alleged by the Appellant had not occurred at all. That was a matter for their judgement on the evidence they heard. The Tribunal did find however that certain incidents had occurred in which Mr Gurden behaved offensively towards the Appellant.

It was, however, on their findings, not only the Appellant who had to suffer at the hands of Mr Gurden. He behaved in an equally objectionable unpleasant and boorish manner towards most, if not all, of his fellow employees, black or white. When the Appellant complained about these incidents, which the Tribunal found proved, he did so on their findings in the context of Mr Gurden's general bad behaviour. He did not, the Tribunal concluded, make any contemporaneous complaint of any racist remarks, taunts or actions by Mr Gurden. The Tribunal found that Mr Gurden treated everybody equally badly and there was no evidence that his conduct was racially motivated. On that basis they dismissed the complaint of racial discrimination.

Today, the Tribunal's findings on this issue are attacked on the basis that the Tribunal has erred in law in failing to ask itself the appropriate question derived from the words of the statute in Section 1(1)(a). It is submitted that the Tribunal should have asked itself, firstly, whether the Appellant was treated less favourably than some other person was or would have been treated. The answer to that is "yes". Secondly, did he receive that treatment on racial grounds? Ms Omambala has sought to persuade us that on a true analysis of the words used in the extended reasons provided by the Tribunal in paragraph 12, the Tribunal can be shown not to have applied the proper test. Ms Downing, on behalf of the Respondents, submits to the contrary. She submits that if one looks at the words used by the Tribunal in its Extended Reasons, it is quite plain that they applied the proper test and they applied that test to the evidence they found to be true.

In our judgment, the Respondents' contention is correct. It is not necessary in giving reasons for an Industrial Tribunal to "dot every `i' and cross every `t'". It is in our judgment plain that the words used in paragraph twelve, carry with them the implication that the Tribunal considered the appropriate test here. Having considered that test, they concluded that there was no racial harassment or any other racial discrimination against the Applicant.

The Tribunal's findings on this issue are further attacked in this way: one of the incidents which they accepted had occurred, was an occasion when Mr Gurden called the Appellant a "slave" or "servant". It is submitted that the words found to have been used by Mr Gurden were so obviously racist in content, that it was perverse not to find that the use of the words were not racially motivated. Further, once that finding is made, as Ms Omambala submits it should have been, the Tribunal should have gone on to re-examine the other incidents they found to have taken place against the background of a proved racist taunt. Had they done so, it is submitted, they should have concluded that at least some of those other incidents were also racially motivated. We do not agree. We accept that there may well be circumstances where the use of words "slave" or "servant" may have a racist connotation, particulary here where as they were uttered by a white man against a coloured man. But equally they may not. The word "slave" carries many meanings, including as is pointed out to us by Ms Downing, "that of a drudge or menial servant". It was a question of fact for the Tribunal in all the circumstances whether the use of the words in those circumstances in which they were spoken, was racially motivated. The Tribunal concluded they were not.

We are satisfied that they were entitled to reach that finding. We wish to make it plain that it may be that had we been determining the application before the Industrial Tribunal, we might have reached a different conclusion. We have been troubled particularly by the use of the words "servant" or "slave" in the context of this case, but in the end, we are driven to conclude that no error of law is disclosed. Nor can the findings be described as unreasonable, to the extent that no reasonable Tribunal properly directing itself as to the law, could have reached that finding. The appeal against the finding that the Appellant was not unlawfully discriminated against by the Respondent therefore fails.

The complaint of unfair dismissal arises in this way. On the morning of 17 June 1993 there was an incident in the packing area of the Respondents' premises in which Mr Gurden pointed a knife at the Appellant. Later that same day there was some form of physical confrontation between the Appellant and Mr Gurden. Mr Gurden's version of the incident was that the Appellant had head-butted him. The Appellant's account was that his head had come into contact with Mr Gurden, but by explanation, that had occurred when Mr Gurden had obstructed his passage and held his wrists, so that the Appellant had used his head to try to push Mr Gurden away.

Mr Gurden complained to Mr Sashdev, his immediate superior. Mr Sashdev reported the matter to Mr Kelly, the Manager of the department in which both Mr Gurden and the Appellant worked. Mr Kelly suspended both men. A disciplinary hearing was later held by the Respondents Managing Director, Mr Wetrin. Statements had been taken from witnesses, but only one witness had seen anything of the actual incident. That witness said that the Appellant "appeared to head-butt Mr Gurden" but the witness had not seen any actual contact. The statements were not copied to either the Appellant or Mr Gurden and were not read out at the hearing.

It is apparent from the notes of the disciplinary hearing which we have seen, that both men were allowed to hear what the other had to say about the incident and the background to it at the disciplinary hearing. Both men were permitted to give their individual accounts. Having heard those accounts and considered the matter with considerable care, Mr Wetrin decided that the Appellant had head-butted Mr Gurden. The Appellant's contract of employment specifically provided that fighting was an example of behaviour which could result in instant dismissal. Mr Wetrin dismissed the Appellant and paid him one month's wages in lieu of notice. As a matter of history, he also dismissed Mr Gurden, for the knife incident to which we have referred, but in his case paid him nothing. We observe in passing, that some of us at least, think it is a thousand pities Mr Gurden had not been dismissed months before.

The Tribunal found that the Appellant was dismissed because he had head-butted Mr Gurden. They further found that the investigation and disciplinary procedures had been conducted reasonably by the Respondents. The Tribunal thus concluded that the Appellant was dismissed for his conduct and proceeded to consider Section 57(3) of the Employment Protection (Consolidation) Act 1978. The majority view of the Tribunal was that the penalty imposed, namely dismissal, was within the band of responses for a reasonable employer and was fair. The minority view was that the degree of provocation was such and the violence so out character for the Appellant, that no reasonable employer would have dismissed the Appellant for this, his first offence.

The Appellant submits that the Industrial Tribunal erred in law in reaching the conclusions that they did in this aspect of the matter, in particular in its finding that the disciplinary procedure was conducted reasonably and fairly. The fact that statements from witnesses were not copied to the Appellant, submits Ms Omambala, was a fatal procedural flaw in these particular circumstances. The Tribunal found as a fact when considering this matter, that the statements added little to the allegations which were clear, namely that the Applicant had head-butted Mr Gurden. Mr Wetrin, observed the Tribunal, was aware of the background of complaints by both men about each other.

It is at least tacitly accepted by Ms Omambala that so far as informing the Appellant of the nature of the allegations made centrally against him, the statements probably did not assist. However, she submits that these statements have additional implications, in particular reflecting the nature and extent of the provocation which the Appellant had had to endure from Mr Gurden and mitigation which was disclosed in those statements and which he may have been able to expand upon had he been aware of the contents of them. The Respondents submit that in reality there was no prejudice to the Appellant in his not seeing the statements. He was able to and did indeed raise at the disciplinary hearing the generality of the provocation he had suffered at the hands of Mr Gurden over many months and that was, in effect, the mitigation to which the statements drew attention. In those circumstances submit the Respondents, there was no denial of natural justice to the Appellant in the failure of the Respondents to provide those statements to him. We accept the Respondents' submissions on that point. We are satisfied that there was material which permitted the Tribunal to conclude as they did, that this was a reasonable investigation and a properly conducted disciplinary procedure. That being so, no error of law is disclosed.

We have considered anxiously the final and general ground raised on behalf of the Appellant, namely, that no reasonable Tribunal could have found that in the circumstances here the dismissal fell within the band of reasonable responses from a reasonable employer. We are of course acutely aware of the fact that one Member of the Tribunal reached precisely that conclusion. The finding which is attacked is the finding of the Tribunal in its majority. It is at least possible and maybe more than possible, that had this Tribunal been considering the Appellant's case at an Industrial Tribunal, it would have concluded that to dismiss this man, bearing in mind the provocation he had experienced on any view, and bearing in mind that this was his first disciplinary offence, was an excessive response by the management and fell outside the proper range of responses, but we are not, we are here to review the decision of the Industrial Tribunal as promulgated by it.

In the end and having considered the matter with great care, we are driven to conclude that there was evidence here entitling the Industrial Tribunal sitting as it does as the industrial jury, to reach the conclusion it did. It is for those reasons and with some considerable regret, that we have decided that this appeal must be dismissed.