United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS S DREW (of Counsel) Ms Sian Hughes Principal Legal Officer Commission for Racial Equality Birmingham Office Alpha Tower (11th Floor) Suffolk Street Queensway Birmingham B1 1TT


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in relation to an appeal against a decision of the Industrial Tribunal sitting at Bedford. Its decision was promulgated on 8 May 1997 and by that decision the Tribunal dismissed allegations of racial discrimination brought by each of the Appellants and also a claim for victimisation.

Each of the Appellants were of black Caribbean ethnic origin. They are part of a team of cleaners, black and white people, employed by a firm called Bourne Contract Support Services Limited, (I will refer to them as "Bourne"), to undertake cleaning work at warehouse premises of a firm called Exel Logistics. In that warehouse, there was a large stock of clothing and accessories, some of the items being expensive and valuable.

In the contract which Exel Logistics had with Bourne, they reserved the right to bar any members of the contractor's staff from the premises without having to give reasons. They also reserved for themselves the right to carry out searches. Provision was made in Bourne's own staff handbook to accommodate those terms.

In February 1996 it became apparent to Exel Logistics that a considerable amount of pilfering was going on at the warehouse and the result was that at or about the end of February the searches carried out on people working in that warehouse were dramatically stepped up and other security measures strengthened. This meant that the group of Bourne cleaners were subjected to many more searches and the suspicion grew amongst those cleaners that they were being targeted and discriminated against on racial grounds.

The period upon which the Appellants rely is that between 1 March and 12 March. The searches to some extent were lessened after that date for reasons I need not go into but between 1 March and 12 March it is said that the cleaners were unreasonably targeted for searching and the only reason for this could have been that it was racially motivated. The Industrial Tribunal took note of the fact that the cleaners were both white and black and concluded that, if they were more often searched than anybody else, it was not due to a racially motivated reason.

Ms Drew, who has argued this matter on behalf of the Appellants, says this: The Respondents' case throughout had been that all contractors and employees of Exel would, in fact, be subjected to the same rigorous searches. It then became apparent that the cleaners were searched much more frequently than anyone else and Ms Drew says that instead of just looking at whether there was any discrimination as between the black and the white amongst the cleaners, the Tribunal should have had as their comparator the general body of staff at Exel and the contractors at large, not just the cleaners. Had they done so, they would have seen that the cleaners themselves as a group were discriminated against, both black and white, the whites being discriminated against because they were associated with the black cleaners. She says that had the Industrial Tribunal approached the matter in this way they would have been applying the law correctly and may have come to a different decision. She says this is an arguable point of law which should go forth to a full hearing.

We have considerable sympathy with what I might call the common sense approach of the Industrial Tribunal on this particular issue but Ms Drew has persuaded us that having regard to the wording of the sections and the authorities which have been developed over the course of time under those sections, there is an arguable point of law here for her to advance to a full hearing and we so give her leave.

She then criticises the Industrial Tribunal's findings relating to events which came about on 24 May, that is, at a period of time after the original applications relating to allegations of racial discrimination had already been issued. On 24 May a Mr Knight, a driver in the employ of Exel, found that he had a substantial sum of money missing from his bag which had been hanging in the drivers' room. There were some reports that a white cleaner may possibly have been involved. Once he had made his complaint, four cleaners became the subject of suspicion, three of them black, again being the same people who have made the complaints of racial discrimination in early March, together with a white cleaner, Mrs Martin. The security staff were contacted. They were a contracting firm brought in by Exel to look after security of the premises. Mr Jones, who was a member of that staff, began a preliminary enquiry and his first step was to search Mr Knight's cab to make sure that the money had not dropped down somewhere by mistake. After that Mr Knight was insistent that the Police should be called because this was an allegation of a criminal offence. Mr Jones contacted the centre manager of Exel, Mr Schocklidge. He advised him to call the Police. He also contacted his employers who gave him the same advice. The result of this combined advice was that Mr Jones called in the Police. Thereafter, the Police carried out their own searches of the four cleaners concerned and conducted their own investigations to see whether a criminal offence could be charged against any of these four cleaners. The Industrial Tribunal observed that doubtless the searches and the examination by the Police were distressing and humiliating. The cleaners alleged that the calling in of the Police was an act of racial discrimination.

There are a number of legal issues which the Industrial Tribunal should have addressed before eventually coming to their ultimate conclusion. We know not whether the Industrial Tribunal considered them. All we do know is that in the last sentence of paragraph 7 (2) of their reasons they state quite simply that:

"the calling in of the Police does not amount to racial discrimination and we so find."

Ms Drew says that if that was a good enough reason for a decision, it would be a good enough reason in a number of unrelated situations and does not amount to addressing the issues properly in a racial discrimination case such as this is. She relies upon the inadequacy of reasons which was said to be a ground for remitting a case for a rehearing in the case of Meek v City of Birmingham District Council [1987] IRLR 250. Again, we have to accept that here there is another arguable point of law to be dealt with.

Thirdly, there is an allegation of victimisation brought about, so the Appellants say, as a result of their having issued their originating applications at the end of March/beginning of April. The Industrial Tribunal did not address this allegation at all and so we do not know what they made of it. Inevitably, we feel that we have to give leave for this matter to go forward to a full hearing on that ground as well and we so direct.