United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MUNASINGHE (of Counsel) Mr R Lawanson Commission for Racial Equality Maybrook House 40 Blackfriars Street Manchester M3 2EG
For the Respondents	MR P CAPE (of Counsel) Mr W Struthers Stockton Citizens Advice Bureau Bath Lane Stockton TS18 2EQ


 


MR JUSTICE KEENE: This is an appeal from a decision of an Industrial Tribunal at Middlesborough entered in the Register on 9th May 1995. By that decision the tribunal concluded that the appellant had been discriminated against on the grounds of her race and ordered the respondent to pay her £750 compensation. However, it also decided that her dismissal by the respondent had not been due to her race and that she would have been dismissed in any event. It is that latter part of the decision which is now challenged in this appeal.

The appellant, who is Arab-African by race and origin, was employed by the respondent from 4th May 1993 to 5th May 1994 as a Project Co-ordinator at its Outreach Project at Hartlepool. The respondent is a trust working for the benefit of disadvantaged children.

It is clear that from early on in her employment there was friction between the appellant and another employee at Hartlepool, Ms Hargin. According to the appellant Ms Hargin, who was white, was making regular racist comments to her. She did not report all this to her superiors at the time but she did tell the respondent's manager, Ms Tibbett, at the end of June 1993 about one incident involving derogatory remarks alleged to have been made by Ms Hargin when the appellant had eaten a bacon sandwich. Ms Tibbett asked the appellant whether she wished her, Ms Tibbett, to deal with the matter, but the appellant told her that she felt able to deal with it herself. The tribunal in its decision said this about these aspects of the case:

"The Tribunal having carefully observed the Complainant, Ms Hargin and Ms Tibbett and all other witnesses who gave evidence as to this aspect of the matter has decided and finds as a fact that the allegations made by the Complainant were exaggerated."

It found that there was a very poor relationship indeed between the appellant and Ms Hargin, that there was resentment on both sides and that so far as the appellant was concerned Ms Hargin was not the easiest of colleagues to deal with.

At the end of August 1993 the appellant complained to Ms Tibbett that Ms Hargin was at all times trying to undermine her in front of colleagues and volunteers. The tribunal found that this did not justify any complaint of racism on the part of Ms Hargin. In September 1993 there were some petty cash discrepancies at the Project. The only persons with direct access to the petty cash were the appellant and Ms Hargin. After a meeting to consider these discrepancies, both were suspended and the police were informed. They however felt that there was insufficient evidence to prosecute anyone and the respondent's Council of Management lifted the suspension on both women. But both were given a warning as to future conduct of petty cash accounting procedures. It was said that the warning would be removed from the records after six months.

However, there was a further incident involving the petty cash at Hartlepool less that two months later. The respondent wrote to the appellant on 2nd December 1993 saying this:

"In a recent incident concerning Petty Cash accounting you disregarded the financial procedures of the Trust by not entering the Petty Cash money. Not only does this cause concerns for your management, but it has also increased pressure on other staff who have responsibility for financial transactions.

I have to say that your behaviour and attitude in this matter has been completely unacceptable, especially in view of your recent warning. Therefore I am issuing you a final written warning with regard to your behaviour."

The appellant appealed against that final written warning. The appeal was heard by the respondent on 17th December 1993. The appellant submitted a lengthy written submission to the respondent, most of which dealt with the financial irregularities but which also included allegations of racial comments by Ms Hargin. In the event the respondent rejected that appeal against the final written warning.

The tribunal found that this was the first occasion upon which detailed allegations were made against Ms Hargin in relation to race to the respondent. The respondent did not wish to deal with those allegations during the appeal hearing, but decided that there would be a further meeting of its full management committee in order to enquire into the racist aspect which the appellant had raised. That committee meeting appears to have taken place on 1st February 1994. The respondent then proposed arranging meetings to talk to the appellant and other members of staff involved, but in fact Ms Hargin resigned on 8th February 1994. The tribunal noted that the appellant was dissatisfied in the extreme about the fact that the respondent appeared not to have taken any heed of the allegations of racism which she had made. The tribunal found that the respondent had not made any great attempt to enquire into the allegations. It also concluded that this was probably because it felt that after the resignation of Ms Hargin the pressure was removed to consider further the relationship between her and the appellant.

However, Ms Tibbett had reached the conclusion that the appellant was not a satisfactory employee. She felt that the appellant was making derogatory remarks to colleagues and to members of the community in general about the organisation of the respondent. At an extraordinary meeting of the respondent on 29th March 1994, to which the appellant was not invited, Ms Tibbett referred to the performance of the appellant and her general attitude and the damage that she felt the appellant was causing to the organisation. As a result the Council of Management of the respondent decided to terminate the appellant's employment with them. The respondent wrote to the appellant stating that:

"... it was felt that the essential relationship of mutual trust and confidence between employer and employee no longer exists between yourself and the Trust. In view of this situation we have reached the decision to terminate your employment as per section 9 of your contract."

The tribunal reminded itself of the provisions of s.4 of the Race Relations Act 1976 and of the test which it had to apply thereunder. It found that there was no evidence that the appellant had been the subject of a virulent and repetitive campaign by Ms Hargin on the grounds of the appellant's race. It also took the view that it was reasonable for the respondent to have decided not to deal with the allegations of racial abuse in the course of the hearing of the appeal on 17th December 1993. However, the tribunal also decided that it was clear that thereafter the respondent dragged its feet. The tribunal said this:

"However the allegations were of a most serious nature. They demanded attention. The Respondents clearly had the honourable intention of pursuing some enquiries but after Ms Hargin resigned they decided (as the tribunal has found) that the pressure upon them to make further enquiries had been lifted. From then onwards they became more concerned about the fact that the Complainant was causing them considerable difficulty by virtue of her open allegations against them and their management of their organisation."

The tribunal then considered whether the dismissal of the appellant had been due to her race and decided that that was not the case. It said:

"By 29 March 1994 the Complainant's attitude had almost invited the Respondents to dismiss her. Had she been of a different race the Respondents would, in the view of the Tribunal, have reasonably taken the same course. Whatever the race of the Complainant she would have been dismissed."

However, the tribunal then went on to conclude that the failure of the respondent to make proper enquiries into the allegations made by the appellant against Ms Hargin was discriminatory, in that she was treated less favourably than people of another race would have been. The tribunal noted that the respondent had not put forward any satisfactory explanation for the delay, and thus it found that the complaint that the respondent had discriminated against the appellant by subjecting her to "any other detriment" had been made out. It therefore proceeded to assess the amount of compensation which should be awarded, in the course of which assessment the tribunal commented that had the appellant been of a different race she would have been dismissed in any event because of the attitude that she took from the outset of her employment.

On behalf the appellant Mr Munasinghe notes that the decision to terminate her employment was for the reason that the essential relationship of mutual trust and confidence had broken down but submits that it is important to ask what the reason was for that breakdown of trust and confidence. He accepts that the appellant was criticising her employers but submits that that was because her complaints about racial abuse were not being investigated properly by them. Thus from the appellant's point of view a contributory factor for the breakdown of trust was the way in which she was treated by the respondent. Therefore it is said that the dismissal was directly linked to the appellant's race. It is pointed out that the respondent's Notice of Appearance made it clear that the appellant was not dismissed because of the petty cash incidents. That is true. It is argued therefore on behalf of the appellant that it was perverse of the tribunal not to have drawn the inference that the dismissal was tainted by racial discrimination.

Mr Cape on behalf of the respondent has referred to the finding that the appellant had made exaggerated allegations against Ms Hargin in June 1993 and had made more complaints about her in August of the same year, However, he concedes that it was principally the appellant's attitude and behaviour after the appeal hearing in December 1993 and until the end of March 1994 which formed the basis for the dismissal. That concession appears to accord with what is said in the respondents' Notice of Appearance, where the following passage appears:

"Following this appeal [emphasis added] Miss Ismail became extremely uncooperative with her Manager dismissing attempts to resolve the deteriorating situation through counselling. She began voicing her negative opinions about the Trust to other members of staff and also to our teenage volunteers stating that she intended to sue the Trust. ... It was the opinion of the Board that her negative attitude and her damming comments in the local community were not going to end despite our efforts to resolve the situation."

Mr Cape submits that the Industrial Tribunal did not close its mind to inferences of racial discrimination, as one can see from the fact that it found one instance of such in the respondent's failure to investigate adequately and rigorously the allegations of racial abuse.

As for the argument that the appellant's attitude arose from the respondent's failure to investigate, it is submitted on behalf of the respondent that the tribunal found that the respondent would have treated a white employee in the same way. In effect, this means that the respondent would have dismissed a white employee for displaying such a negative attitude, even if that attitude had arisen because of a legitimate grievance about the respondent's lethargy in investigating a complaint. Therefore, submits Mr Cape, the appellant was not being treated less favourably than the respondent would have treated other persons.

It seems to us that a great deal in this case turns on what the "breakdown in mutual trust and confidence" consisted of and was evidenced by. There certainly was some evidence of an attitude problem on the part of the appellant long before the first three months of 1994 when she had, as found by the tribunal, a legitimate grievance in the respondent's failure to investigate her complaints properly. She had made exaggerated allegations against Ms Hargin in June 1993 and other complaints in August of that year. On the other hand, the respondent expressly disclaimed any reliance on the incidents concerning the petty cash irregularities and have conceded that it was the negative attitude and comments on the part of the appellant in the first three months of 1994 which led to the breakdown in mutual trust and confidence. This of course was the very period when, according to the tribunal, the respondent was discriminating against her on racial grounds by not pursuing her complaints energetically. Prima facie, there could be some causal link between that racial discrimination by the respondent and the appellant's criticisms of the management of the respondent during that period.

The tribunal does not seem, so far as one can tell from its decision, to have addressed the question of whether the appellant's negative opinions about the Trust were themselves the result, wholly or largely, of the respondent's own discriminatory acts. It seems to us that this was a relevant consideration in at least one of two ways. First of all, it could have a bearing on whether the dismissal itself amounted to racial discrimination. That question is not to be determined simply by looking at the dismissal itself in isolation and treating it as if it were something necessarily separate from earlier events, including any earlier discrimination. The immediate reason for dismissal may have been the appellant's negative comments about the respondents' management, but an Industrial Tribunal should not refrain from investigating what gave raise to those negative comments themselves. It is right that it is not enough, in order to establish that dismissal was on racial grounds, merely to show that race was one factor in the chain of causation: Seide v Gillette Industries Ltd [1980] IRLR 427 at 431, paragraph 30. But the racial factor may be of more importance than that. In the case of Din v Carrington Viyella Ltd [1982] IRLR 281, it was said by Browne-Wilkinson J giving the judgment of this tribunal that:

"If an act of racial discrimination gives rise to actual or potential industrial unrest, an employer will or may be liable for unlawful discrimination if he simply seeks to remove that unrest by getting rid of, or not re-employing the person against whom racial discrimination has been shown. ... It does not seem to us in law correct simply to look at the position in September 1980 without considering the nature of the unresolved and potentially explosive situation that existed as a result of the events in July 1980. If that unresolved and potentially explosive situation was due to racial discrimination exercised by one of their employees against others, then those facts might constitute grounds for holding that the failure to re-engage was unlawful as amounting to racial discrimination."

It follows from that passage, with which we agree, that a dismissal could amount to racial discrimination even though there is an industrial reason for it, if the industrial reason itself was due to racially discriminatory acts on the part of the employer. Thus if the appellant were dismissed because of her negative attitude but that negative attitude was itself the result wholly or partly of the racial discrimination found by this Industrial Tribunal to have been shown by the respondent, then the dismissal itself might be racial discrimination. So far as we can see, the tribunal below does not seem to have applied its mind to this question.

The second relevance of the wider context of the dismissal is this: if the dismissal was the consequence of behaviour of the employee's which was the result of discriminatory conduct by the employer, then unless the employee's behaviour was an unreasonable reaction to that discrimination, the loss of employment will form part of the damage suffered by the employee flowing from the earlier discrimination which the tribunal has found to have existed in the failure to investigate her complaints. That damage should be reflected in the award of compensation under s.56 of the 1976 Act. Again, the tribunal below does not seem to have approached the question of compensation on the basis of considering whether such a causal connection exists.

We do not conclude that the decision of the Industrial Tribunal in this case was perverse, in the sense that they were bound to find that the dismissal of the appellant was racially discriminatory. But we do propose to allow this appeal on the ground that the tribunal has erred in law in failing to consider whether the appellant's negative attitude which gave raise to her dismissal was the result of the respondent's discriminatory behaviour towards her and whether this, if it were so, made the dismissal itself racially discriminatory or at least meant that the dismissal was a consequence of the respondent's earlier racial discrimination which should then be reflected in the award of compensation for that earlier discriminatory conduct. This appeal is therefore allowed and the matter will be remitted to the same Industrial Tribunal to reconsider those matters which we have indicated.