United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR C HAY (Community Worker) Northern Complainant Aid Fund Checkpoint 45 Westgate Bradford West Yorkshire BD1 2TH


 


JUDGE PETER CLARK: These are appeals by four applicants before the Leeds Industrial Tribunal sitting on 3rd and 4th September 1996 against a decision of that tribunal dismissing their complaints of sex and race discrimination. A further complaint by Mr Rasab that he was dismissed by reason of his trade union activities was also dismissed. He does not appeal against that decision. Extended reasons for the tribunal's decision are dated 30th September 1996.

The facts

The respondent is a spinning company carrying on business in Keighley, Yorkshire.

In early 1996 the works manager, Mr Rutter, decided to hire an additional three workers in anticipation of future production demands. Accordingly, Mr Khan was employed on 25th March; Mr Rasab on 15th April and Mr Nazir on 29th April.

It was the custom of the respondent to engage new staff on a trial probationary period. In this case the trial period for Messrs Rasab and Nazir was one month; for Mr Khan three months.

As events turned out the Company's trading position was not such as to require additional staff. The management accounts for April 1996 showed a deteriorating turnover, reduced order book and a substantial decrease in profits. Consideration was given to reducing the workforce by three. The Company operated a LIFO system; the three male appellants were the last in. They were seen on 10th May 1996 and told that their employment was to end. They were paid to the end of that week and received one week's pay in lieu of notice.

The Managing Director, Mr Wood, apparently believed, wrongly as a matter of law, that the Company was obliged to retain the three male appellants for the duration of their trial periods. In fact the trial periods expired in the case of Mr Khan on 24th June 1996; Mr Rasab on 14th May 1996 and Mr Nazir on 28th May 1996. So that in the cases of Messrs Khan and Nazir those trial periods were not completed.

There was a further complication. On 2nd May Mr Rutter had offered employment to the fourth appellant, Ms Williams, which she had accepted. However, she had to give notice to her existing employers and was not due to start until 13th May. In her case, Mr Wood believed, correctly, that if he resiled on the agreement to employ her she would have a claim for breach of contract against the Company. Accordingly, he decided that she should start work as agreed on 13th May, as the three male appellants were leaving the employment. He acknowledged, and it is recorded in paragraph 12 of the tribunal's reasons, that if he resiled on the offer to Ms Williams then the Company would be open to a claim for damages for breach of contract by her; if he kept to the promise, then he would be open to claims of the sort which were in due course made before the tribunal by the three male appellants, namely that the Company was acting inconsistently in employing Ms Williams whilst at the same time claiming shortage of orders and redundancy in respect of the three male appellants. Nevertheless, that was the decision which he took. On 5th June Ms Williams' employment was terminated with one week's pay in lieu of notice.

On 6th June a meeting was held to discuss complaints made by Mr Rasab, via his trade union, of dismissal for trade union reasons and unlawful race discrimination. The meeting was minuted.

The grounds of complaint

(1) The three male appellants complained of less favourable treatment on the grounds of their race and sex by comparison with the fourth appellant. They are black males, she is a white female. They were dismissed, ostensibly on grounds of redundancy; she was promptly started on.

(2) Ms Williams complained of race discrimination on the grounds that she was dismissed on 5th June as a result of Mr Rasab's complaint of racial discrimination.

The tribunal decision

The tribunal was referred to the well-known guidance contained in the judgment of Neill LJ in King v Great Britain China Centre [1992] ICR 516, 582F-529C. It accepted that in the absence of an adequate or satisfactory explanation by the respondent for the difference in treatment afforded to the three male appellants compared with Ms Williams, and the difference that existed in race and sex, it was open to the tribunal to infer unlawful discrimination on grounds of race and sex. Similarly, it accepted that if Ms Williams dismissal was as a result of Mr Rasab's complaint of race discrimination, her dismissal was on racial grounds and was unlawful. It therefore looked to the respondent for an explanation.

The explanation given by the respondent, and accepted by the tribunal, was as follows:

(1) in relation to the complaints by the three male appellants, Ms Williams was taken on because of the respondent's contractual obligations to her.

(2) Ms Williams was dismissed the day before the meeting with Mr Rasab held on 6th June coincidentally at the end of her trial period; it was not as a result of Mr Rasab's complaints of racial discrimination.

Having accepted the respondent's explanation the tribunal declined to draw an inference of discrimination in any of the four cases, and dismissed the complaints.

The Appeal

Mr Hay submits that the tribunal misdirected itself by concentrating on the intentions of the respondent rather than the disparity of treatment between the three male appellants and Ms Williams. We disagree. The tribunal accepted that there was disparity of treatment; it looked for an explanation from the respondent. We cannot see that it fell into the error of considering the respondent's motives. Their intentions provided the explanation which was accepted by the tribunal.

Secondly, he argues that the tribunal failed to make material findings of fact. Having considered that submission, in our judgment the tribunal made all necessary findings of fact. It does not have to deal with every twist and turn in the evidence in order to explain to the parties why the tribunal accepted the explanation given by the respondent and declined to draw the inference of unlawful discrimination.

Generally, we consider that this appeal is an attempt to re-open factual issues which were resolved in favour of the respondent by the tribunal. In all the circumstances we can see no grounds for interfering with this decision. No arguable point of law is raised, and accordingly the appeal must be dismissed.