United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	JOHN BAXTER (Representative) Confederation of British Wool Textiles Ltd Merrydale House Roysdale Way Bradford BD4 6SB
For the Respondent	G P BAXTER (of Counsel) Messrs Wadesons Solicitors Southbank House Black Prince Road London SE1 7SJ


 


MR JUSTICE KIRKWOOD: This appeal was heard on 21st January 1997. There was insufficient time on that day for the appeal tribunal to deliberate and for judgment to be given so that judgment was reserved and is now handed down.

This is an appeal by an employer Colne Valley Spinning Co Ltd from the findings and determination of an Industrial Tribunal, registered on 19th January 1996, that the respondent Mr S Francique was unfairly dismissed, wrongfully dismissed and discriminated against on racial grounds. On each aspect, the thrust of the appeal is that findings of fact made by the Industrial Tribunal were outside the range of findings open upon the evidence to a reasonable tribunal.

Mr Francique was employed by the appellant from 1967 onwards. He was born in December 1935 and is a man of Afro-Caribbean origin.

Mr Francique's employment was as a twisting machine operator. In March 1994 the Company ceased to operate a rotating shift system of production on the twisting machines and Mr Francique was offered a choice between retraining or remaining in the twisting department on a day shift. He chose the latter. There was some discussion about his hourly rate of pay, his basic hours and his possible overall hours of work.

On 4th July 1995 at 4 p.m. an event occurred to which Mr Francique took exception and he decided to go home. That led to a disciplinary process which resulted in Mr Francique's suspension and subsequent dismissal. That in turn led to these proceedings.

The employer Company maintained that it was entitled to dismiss Mr Francique for gross misconduct. What was said was that Mr Francique refused to co-operate with assistance given to him by his supervisor Mr Nuttall and walked out. His walking out was in breach of his contract because the proper time for his shift to finish was 6 p.m., or at least 5 p.m., and not 4 p.m..

Mr Francique maintained that when he accepted work on the day shift it was on the basis that he had responsibility for two machines. That was increased to three in 1994 and to four at Easter 1995. Whether that is a correct history was in issue, although the issue was not of any central relevance. What is relevant is that by July 1995 Mr Francique did have responsibility for four machines.

In his form IT1 Mr Francique said:

"On 4 July 1995 I was running three machines and cleaning the fourth. The previous day Kevin Nuttall had said that there would no be work for this machine until about the Friday of that week. However, after I had cleaned the fourth machine, Kevin Nuttall started it up and put a job on it without saying anything to me. At the time I was running three machines, one of which was giving problems. I knew that I could not cope with a fourth machine, so I finished my shift at 4.00pm having done my basic hours. Kevin Nuttall saw me leave and he did not say anything to me."

The record of interview in the disciplinary process on 5th July 1995 contains this passage:

"G.W.S.[Mr Stewart] asked D.F. [Mr Francique] why he walked out without permission. D.F. said it was because he wanted to see a friend whose wife has died. (We were aware of this as he asked for time off on Friday 7.7.95 to attend the funeral. This was granted by D.W. earlier this week).

G.W.S. said that he did not accept this answer but indicated that Denis [Mr Francique] was up to old tricks and was now trying it on.

Denis [Mr Francique] hesitated and then talked about his past work history when he said that he had told Mr Kilner, Mr Wenderby, Mr Wormald and G.W.S. that he did not want any assistance from anyone and that he was capable of doing the job without assistance. He was asked by G.W.S. if he was aware of the urgent nature of the particular job he was supposed to start up. He said Mr Leach had told him earlier that a certain machine was required for an urgent job.

G.W.S. again asked Denis [Mr Francique] if the reason for walking out was because his supervisor had assisted in starting up the urgent job. This time he agreed that this was the reason for his actions. G.W.S. told him these actions are not acceptable and the consequences could be serious in forcing us to decide whether to continue employing Denis [Mr Francique]."

The evidence of Mr Nuttall given to the Industrial Tribunal was noted in these terms:

"Not true I started off the 4th machine without saying anything to the applicant - started for a test bobbing.

I did not speak to Mr Francique before doing this. He would not communicate with me at any time.

Operative would know I was going to do a test bobbing.

Not true I was starting the machine to run it.

I had not done this before, ie, starting machine and leaving Mr Francique to run it. Not true that this is what he'd objected to in the past. He objected to assistance at any time. He was given my assistance whenever I wasn't busy. I and others would leave the machines - Mr Francique objected to this. Machines loaded up while they were running."

The finding of the Industrial Tribunal on this aspect was this at paragraph 11(b):

"b) Looking at that then, we have to turn to the evidence given before the Industrial Tribunal, particularly by Mr Nuttall. His evidence was that he found it difficult to speak to Mr Francique although, clearly, when working at weekends with him he spoke to him and helped him. But this was a normal working day and Mr Nuttall was starting up, he says, for the purposes of running a check, the fourth machine over which Mr Francique had responsibility. Mr Nuttall's evidence was that he did not speak to Mr Francique and clearly, therefore, he did not offer him assistance. On the basis of that evidence it is quite clear that to dismiss for failure to accept assistance was incorrect."

The issue of whether it was the assistance offered that precipitated Mr Francique's departure on 4th July 1995, or what it was, is peculiarly a matter for the Industrial Tribunal who heard, and had the chance to evaluate, the oral evidence. They found that there was not a failure to accept assistance. Had they found otherwise that would hardly in itself amount to gross misconduct.

The real question on this aspect is whether the employer established on the balance of probabilities that, in leaving, Mr Francique was in breach of his contract of employment.

The documentary evidence of the contract is inadequate and vague. On 16th February 1994 the employer Company wrote to Mr Francique a letter which was before the Industrial Tribunal and which we have seen. It is essentially in three parts. First it offers Mr Francique the option of either remaining in the twisting department on day shift or re-training for a different job within the rotating shift system. Secondly, it sets out what would be Mr Francique's hourly rate of pay were he to accept a job on the day shift. The third part begins in these words "Based on a five day x 10 hour shift, which you can reduce if necessary, the average wage will be ..." and it then sets out figures. That part of the letter does no more than to give an example of what might be Mr Francique's weekly wage were he to work a five day 10 hour shift.

On 18th February 1994 Mr Francique wrote:

"I have accepted your offer for day-shift working".

On 22nd March 1994 a letter was sent, according to the oral evidence of Mr Wormald, addressed to Mr Francique in these terms:

"There would appear to be some confusion as to what your hours of work are since you have agreed to accept the position as a day shift twisting operative.

The agreed working week is 50 hours, as laid down in the letter to you dated 16th February 1994.

The hours of attendance therefore, should be:-

6.00 a.m. to 5.00 p.m. (Monday to Thursday inc.)

6.00 a.m. to 3.45 p.m. (Friday)

each day taking a break of ¾ hour for lunch.

Any variation to the above working arrangements must be agreed with your Supervisor or myself."

The oral evidence as to Mr Francique's contractual obligations was not entirely clear. Mr Stewart, the production manager, had told the Industrial Tribunal:

"Mr Francique had started at 6 am and left at 4 pm - 10 hours.

He'd agreed to work to 6 pm that day.

Unwritten agreement with Mr Nuttall and Mr Wormald.

This had gone on for weeks - he was working mega hours.

Unwritten agreement many weeks before this occurred."

The evidence of Mr Wormald, Spring Mill manager, appears to have been that Mr Francique always agreed to working 50 hours a week.

The evidence of Mr Nuttall, the assistant supervisor, was that to his knowledge Mr Francique's basic hours were 7 a.m. to 5 p.m.. However, at the time of his dismissal, Mr Francique's hours were 6 a.m. to 6 p.m. and that he had agreed to that. He also said that Mr Francique did not have to seek his permission to leave.

Mr Francique's evidence was that when he moved to the day shift his basic hours were 39 hours. He had been told that to start at 7.15 a.m. to 4.15 p.m.. Mr Wormald had told him that if he wanted more overtime he could start at 6 a.m. and finish at 5 p.m. or 6 p.m., it was up to him.

In respect of the copy letter of 22nd March 1994 which purported to set out Mr Francique's hours of work, the Industrial Tribunal made this finding at paragraph 11(e):

"Mr Francique said he did not receive the document. Even if he did receive the document, then even under that document, it would not be correct for the respondent to say in their letter of dismissal that the applicant had walked out two hours before the end of his shift. It would only have been one hour before because in [that letter] the shift is said to finish at 5.00pm not 6.00pm. But that document on its own, is of little probative value. Mr Wormald said he gave it to Mr Francique. Mr Francique says he never had it. The document is a copy. It is not signed by Mr Wormald. It is said that it was typed on an old typewriter that the company no longer use. It was not said that that typewriter had been discarded. It seems that more is needed for us to accept matters as set out in that document."

Having reviewed the other evidence to which I have referred, the Industrial Tribunal concluded at paragraph 11(g):

"... Clearly the basic starting time was 7.15am and he was then expected to work through until the nine hours was finished. Anything over that was overtime and that clearly is shown by records."

The Industrial Tribunal's findings continued:

"Mr Nuttall also confirmed that when a worker's hours of work came to an end at say 4.15pm, if he started at 7.15am, then he was entitled to go and clock out without reference to any supervisor or manager. And that is precisely what happened on 4 July 1995. Mr Francique came to the end of his shift. He had started at 6.00am . His allotted hours were 9 hours, which finished at 3.00pm. He had already worked one hour's overtime at 4.00pm. He was entitled at any time after 3.00pm to clock out without reference to anyone and he, on this occasion, for whatever reason, and the reason really is unimportant, exercised his normal right and turned his machines off and clocked out. that was normal practice, accepted practice so when in the letter of dismissal ... it states that "you clearly indicated you would not co-operate and show total disregard for authority and also lack of concern for health and safety practices operated in the mill". That is not true. The applicant was doing merely what everybody else did and was therefore registered as clocked out. It was not as though he simply disappeared."

The Industrial Tribunal found that, in those circumstances, the Company had no reason to dismiss Mr Francique. He had not misconducted himself, he had not broken his contract.

The challenges as to that finding relate to the approach taken by the Industrial Tribunal to the evidence.

It seems to us that what is not fully appreciated by the appellant is that the question in issue on the question of breach of contract was whether it was established that Mr Francique had a contractual obligation to work beyond 4 p.m. on 4th July 1995. It is implicit in the finding of the Industrial Tribunal that the employer Company failed to establish that on the balance of probabilities. What informal arrangements or expectations may have been in place from time to time did not go to Mr Francique's contractual obligation. The decision that the appellant had failed to establish a breach of contract and therefore failed to establish misconduct as a ground of dismissal was a decision open to the Industrial Tribunal on the evidence and cannot be called perverse.

The next contention on the appellant's behalf is that the Industrial Tribunal should have gone on to consider the question of genuine belief and reasonableness. It is our view, however, that those questions only arise if the Industrial Tribunal finds that those considerations are relevant in the circumstances of a full and thorough investigation into the course of events by the employer. It is implicit in their finding that the Industrial Tribunal found that a full and thorough objective assessment carried out by the employer - as, indeed, the Industrial Tribunal carried out - would have made plain to the employers that the grounds for such belief did not exist.

In dealing with its award the Industrial Tribunal was, we are told, invited to consider the question of contribution and declined to do so as not being relevant in the particular circumstances of the case. In the course of argument we were reminded of the decision of the Employment Appeal Tribunal in Polentarutti v Autokraft Ltd [1991] IRLR 457. That authority establishes that a finding of contribution can be made when dismissal is held to be unfair because the employer had failed to show a reason for it. However, in our judgment, whether it is just and equitable to make such reduction is a matter for the Industrial Tribunal having before it all the facts and circumstances of the case. In the instant case the Industrial Tribunal declined to do so and that is not a decision with which we can properly interfere.

Having found that Mr Francique was dismissed without notice and without reason, the Industrial Tribunal was plainly entitled to find that there was a wrongful dismissal in breach of his contract of employment.

The Industrial Tribunal went on to consider the question of racial discrimination. It made six supplementary findings of fact , first that it was accepted by the management that on many occasions when there had been a difference of opinion between management and Mr Francique, he had said that they were being "racial" towards him. Secondly, that management accepted that it never investigated that matter. Thirdly, that those who have given evidence accepted that when such allegations were made against them, they never passed the matter up as a complaint to higher authority for investigation. Fourthly, that the company had no written equal opportunities policy. Fifthly, that by and large, there was no management training with regard to equal opportunities matters. Sixthly, that it was clear that from the evidence that the management formed the view that, in Mr Francique, they had an unco-operative worker; one who was perhaps, in the vernacular "a member of the awkward squad". The tribunal found that it was open to them to elaborate on that and to say that what was really meant, whether the management admitted it to themselves or not, was that Mr Francique was an "awkward black".

The tribunal reminded itself in detail of the principles and guidance in such cases to be drawn from King v GB China Centre [1992] ICR 516, at 528F namely:

"(1) It is for the applicant who complains of racial discrimination to make out his or her case. Thus if the applicant does not prove the case on the balance of probabilities he or she will fail. (2) It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that "he or she would not have fitted in." (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 65(2)(b) of the Act of 1976 from an evasive or equivocal reply to a questionnaire. (4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but, as May L.J. put in North West Thames Regional Health Authority v. Noone [1988] I.C.R. 813, 822, "almost common sense." (5) It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."

That was a perfectly proper direction for the Industrial Tribunal to give itself.

Having made findings of fact and directing themselves upon the law, the Industrial Tribunal drew certain inferences:

"a) The applicant was dismissed and that that was a detriment suffered by him.

b) He was treated less favourably by being dismissed, as he had been by the failure to investigate his serious complaint of racial discrimination.

c) The company discriminated against the applicant on racial grounds.

d) The Tribunal draws the inference that this company had no serious policy with regard to racial discrimination.

e) The respondent did not take matters of racial discrimination seriously and that is patently obvious from their failure to investigate the allegations which went back, on the company's evidence, over a long period."

As I have indicated, the challenge to this finding is predominantly on evidential grounds. It is said that it is abundantly clear from the appellant's evidence that the decision to dismiss was based solely on the incident which took place on 4th July 1995 and on the respondent's disciplinary record. That argument can scarcely stand, however, in the light of the Industrial Tribunal's finding that there was no proper reason for dismissal and that the dismissal was unfair. Secondly a point is taken that Mr Francique did not raise any point about race in the disciplinary proceedings that took place in July 1995. But it has to be recognised that it was open to Mr Francique to reserve that complaint to the Industrial Tribunal and he was under no obligation to raise it at that stage. The appellant coupled with that the point that has emerged from the evidence of Mr Rutherford of the Transport and General Workers' Union (TGWU) who represented Mr Francique in disciplinary proceedings in January 1995, that Mr Francique had not made a complaint of racial discrimination at that stage either. The appellants also complain that the Industrial Tribunal did not attach sufficient weight to the evidence that to all other 15 employees dismissed since 1992 have been West European origin; nor to evidence that he had been treated fairly in other respects particularly in the offer to him of work on the day shift in February 1994.

In our judgment none of those matters invalidate the conclusion reached by the Industrial Tribunal.

We have given detailed consideration to each of the matters argued on the appellants' behalf. It is irrelevant whether another, differently constituted, tribunal would have drawn the same inferences and reached the same conclusions; equally, whether this appeal tribunal would have drawn the same inferences and reached the same conclusions is not of relevance.

We have reached the unanimous opinion that, once the Industrial Tribunal had found unfair dismissal, and having directed itself correctly upon the law, and having made the findings of fact that it did make, it was open to it to draw the inferences that it drew and to make the finding on the complaint of racial discrimination that it in fact made.

We have been quite unable to conclude, as urged by the appellant to conclude, that the decision of the tribunal was perverse.

In determining its award, the Industrial Tribunal made provision for injured feelings and concluded that a proper sum under that head was £10,000. We have recognised that that was a high award and have looked for circumstances that might conceivably justify it.

The Industrial Tribunal gave a full account of its reasons for arriving at that figure.

"4. ... The applicant had twenty eight years' service, all with the same employer. He was approaching sixty years of age at the time of his dismissal. He was summarily dismissed for a false reason. He complained at the time of racial discrimination. No-one listened to his complaint. He had made that complaint before. Again no-one had listened. The injury to his feelings was not inconsiderable. A man of that age of that length of service with the same company has a good deal of pride to be hurt in addition to a feeling of total rejection and loss of his life's work and working life. There is now no limit on this head of damage. We take into account that the award should be such as to compensate the applicant for the injury to his feelings without any punitive element in respect of the employer and bearing in mind that the award should not be so extravagant as to go above purely compensating the applicant because to do so would be to bring this important branch of the law into disrepute. Having regard to all those matters we consider that an appropriate award for injury to feelings would be £10,000."

We have in the forefront in our mind that the Industrial Tribunal saw and heard Mr Francique and the relevant management staff from the employer Company. The tribunal had a unique opportunity to make its own assessment of the impact on Mr Francique. Plainly, and understandably, the Industrial Tribunal took the view that the injury to Mr Francique's feelings had, in all the circumstances of the case, been very serious. Thus, whilst we recognise that this award was a high one, we are unable to conclude that it was an award that was wrong in principle or with which we should interfere.

For all those reason this appeal fails in its entirety and is dismissed.