United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS J DYKERS (of Counsel) Ashley Bean & Co Ingledene House 406 High Road Ilford ESSEX IG1 1TW


 


JUDGE J HICKS QC: This is the preliminary hearing of an appeal by the employers, Capital Security Services Ltd, against the decision of the Industrial Tribunal when dealing with remedy, at a hearing which followed the Industrial Tribunal's unappealed decision in favour of the Applicant employee that there had been racial discrimination against him in his dismissal from employment.

The two findings of the Tribunal on the remedies hearing which are attacked are first, the finding that had the Applicant stayed with the employers and not been dismissed, as he was, he could reasonably have been expected to have continued in that employment for three years. The second finding which is attacked is the finding that the employment in which he was working at the date of the hearing, which was part-time employment, was the best that he could obtain and he had not failed to act reasonably in mitigating his losses.

In both cases the only ground of appeal is perversity. No other error of law is alleged and the question therefore is whether the Tribunal erred in law in the sense that no reasonable Tribunal, properly directing itself as to the law, could have reached the decision in each of those two respects which the Tribunal reached.

On the first point - the finding that Mr Samuels, had he not been dismissed, could be reasonably expected to have remained in the Appellants' employment for three years - two elements of the Tribunal's findings are questioned by the grounds of appeal. The first is that, as they put it, Mr Samuels was a "stayer" rather than a "sprinter", in support of which the Tribunal accepted evidence which they had heard that he performed well on his induction course with the Appellants and, secondly, that on the night before his dismissal, having worked a 12-hour shift, he agreed to work a further 12 hours when it was explained to him that this would show his attitude to work and it would assist the company.

The Tribunal also took into account his evidence that he was involved in video groups in his church with a view to impressing potential employers as to his industry and leadership qualities and finally, and not least, the Tribunal relied on their own impression of Mr Samuels, whom they say they had the advantage of seeing before them on four days, and they say that he had impressed them as a serious and honest young man who had not avoided making concessions against his interest when it was truthful to do so.

None of that is, or could be, challenged by the Appellants. What they complain of is that the Tribunal do not in their reasons set out three pieces of evidence, also given by Mr Samuels, which the employers say tell in the opposite direction and should either have been expressly discounted, or at least the Tribunal should have given their reasons for finding, in the face of them, that Mr Samuels would have stayed on for the length of time that they say.

Those three matters are, first, that he had had only one other job before that with these employers, working as a mechanical engineering trainee at British Rail for 9 months and that had been terminated one year early by British Rail after his "boss", as the Skeleton Argument puts it, had expressed dissatisfaction with him, secondly, that after that he had attended East Ham College but had not completed the course and, thirdly, that he was claiming benefit between 1992 and 1994, presumably before this employment, which started and finished in September 1994, and therefore at a time when he would have been between 18 and 20 years of age.

The Industrial Tribunal do not indeed refer to that evidence, and for the purposes of this preliminary hearing we take it, of course, that evidence to that effect was given, although it is of necessity stated very briefly in the Skeleton Argument and we have not the full background against which it was given.

In our view the omission to set out every detail of evidence is not an indication of perversity on the part of the Industrial Tribunal. The reasons which the Tribunal gave, not only on the remedy hearing but also on the original hearing which, in our view, we are entitled to take into account as showing the way in which they approached their task, give every evidence of careful consideration and it would be quite wrong for us to assume that because they do not refer to particular aspects of the evidence, even aspects which no doubt would be material, they have overlooked them, failed to take them into account or failed to consider how they bear on the decision which they have reached and, in our view, there is no prospect of success in an appeal on the basis that they were perverse in failing to record that evidence, or that they were perverse in failing to take it into account. The proper assumption is that they did take into account all relevant evidence that they had heard and the fact that it is not all recited in the reasons is not to be taken as an indication to the contrary.

The other aspect of that ground of appeal concerns the employers' evidence, because there was evidence from the Personnel Officer of the employers that there was between a 65% and 80% turnover in staff every month which, given a staff of 1500 guards, means, as the Tribunal points out, that something like 1,000 guards were leaving every month. The complaint is that the Tribunal say "we find it very difficult to accept that evidence". We are bound to say that we understand that difficulty, but the Tribunal go on to say:

"... and in any event we do not consider that the Applicant was the sort of person who would be likely to leave secure employment."

By that the Tribunal show that they were addressing their mind to the correct question. The correct question was not whether the employers, for whatever reason, either sacked or had leaving the enormous percentage every month which Ms McLean spoke of, but whether a serious and honest employee, as the Tribunal found the Applicant to be, would have lasted longer than that and if so, how long if, of course, properly treated, because the employers could not take advantage for this purpose of any likelihood that they would wrongfully or unfairly have dismissed him earlier, and we see no perversity or error of law in that respect.

The Tribunal went on to consider other evidence as to the length of time for which persons employed by the employers worked, namely those who had figured in the case, and there is no complaint that they were not entitled to take account of that.

In our view therefore there is no perversity and therefore no error of law shown in the Industrial Tribunal's finding that the Applicant would have been likely to have been employed by the Respondents for a period of three years.

The second ground is put in much the same kind of way, namely that there was evidence before the Industrial Tribunal about the issue of mitigation which they failed to record, or comment on, or explain their attitude to, in their reasons and that was evidence that the Applicant had not applied to any security firms for employment after his dismissal, not even after he had succeeded in his claim for racial discrimination, the implication of that (I suppose) being that after that it could not be said that there would be a cloud over any application to a security firm because of his dismissal by this security firm, that being the nature of the employers' business. This is the same sort of point as the first and, as Miss Dykers frankly accepted, perhaps not as strong as the first, and the same considerations apply.

The concept that an Industrial Tribunal, having heard evidence which included this evidence (presumably elicited in cross-examination, but in any event given) that there had been no application to any security firms, simply forgot it or did not take it into account and in particular took no account of whatever explanation the Applicant gave for that failure to apply to a security firm is really, in our view, fanciful. In our understanding of the approach of this Industrial Tribunal we are quite sure that they did take it into account and that would have included, since the employers were represented by Counsel on this hearing, any cross-examination that they chose to address to Mr Samuels on this point and his replies.

We therefore consider for essentially the same reasons as in relation to the first ground that there is no basis for an appeal on the ground of perversity and error of law in that respect in the decision of the Industrial Tribunal.

This appeal is therefore dismissed, but we should add that we have been greatly helped by the submissions of Miss Dykers, who we understand was retained in this case at a very late stage indeed and therefore working under difficulties which she has admirably overcome.

Judge J Hicks QC

Capital Security Services Ltd v Mr T Samuels

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Iris

(Typing)