United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr H Mughal Representative


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in relation to an appeal from a decision promulgated on the 24 March 1997 of the Employment Tribunal sitting in Leeds, when it decided that the Applicant's complaints, that he had been racially discriminated, victimised, and harassed were dismissed, but they found that he had been unfairly dismissed by reason of the inadequacy of the procedural arrangements made for the Disciplinary Hearing. However, notwithstanding that finding, they awarded the Applicant no compensation.

The employee, Mr Mirza, appeals against each of those decisions. So far as the facts are concerned, they are that Mr Mirza joined the Respondents in March of 1991, as a trainee service engineer and in due he rose in the position of being a field service engineer. The Respondents themselves are manufacturers of printing equipment, used in conjunction with computers. They also service computer equipment.

A reasonable relationship seems to have existed between Mr Mirza and his Manager Mr Heywood until October 1995. An argument then took place between them as a result of Mr Mirza coming in late for work. The Employment Tribunal found that the argument was heated. They shouted at each other, but there were no allegations relating to racism made as a result of that incidence. [I will come back to that in a minute].

Mr Mirza had the reputation in the Respondent company of being a first class service engineer and this is borne out by the fact that whilst a number of redundancies were from time to time made in the company, his position has always been retained. When it was observed he was looking in the Guardian advertisements for alternative employment, the Respondent company went out of their way to try to satisfy him about his job. Ultimately the breakdown in relations between Mr Mirza and the Company came about because the company felt that measure of trust and confidence which must exist between employer and employee had completely gone, as a result of an instance which took place in October 1996.

The story is that the Respondent company permitted its service engineers to take in repairs for friends and relations to work on them in their workshops in their spare time. As a result, Mr Mirza had in the workshops items belonging to other people, namely, a microwave oven, a broken fax machine, and a video cassette recorder which was in pieces. These items had been about for some time. Other service engineers were doing the same thing and one can envisage that in this workshop, there had gradually accumulated over the course of time, spare parts, broken parts, part completed computer repairs and so on. In October 1996, the company decided to have a clear out of all these items which did not belong to the company and formed no part of their business.

Unhappily, this happened while Mr Mirza was away on holiday. The evidence was that, as a result of the clear out, no less than three skips were filled with junk of this sort. When Mr Mirza came back off holiday, he discovered that his items I have just listed had been thrown away. He made a complaint to the Managing Director about this and the Managing Director took a sympathetic attitude and said he must be compensated.

On 21st November, that is approximately a month later, Mr Mirza wrote to the company asking for compensation and in the letter he said that he had paid the owners of these items, considerable sums of money for the units which had been thrown away. He said the owner of that microwave was paid £200; the owner of the video cassette recorder had been paid £130. No mention was made of the fax, but an additional item, a modem was raised and the owner of that item was said to have been paid £200 by Mr Mirza.

At the hearing before the Employment Tribunal, Mr Mirza produced in evidence, two copy letters dated 16 December 1996. One, it was said, was a letter he had written to the owner of the microwave, a Mr Hutchinson, enclosing £200. So far as the owner of the video cassette recorder is concerned, the letter was addressed to Mr Jina, saying that he would be sending him £130.

Those letters had not previously been produced to the employers. In any event, on receipt of Mr Mirza's letter of 21 November, the Respondents took the course of checking up on these people to whom he said he paid the money. In response, they got a letter from Mr Hutchinson which said he had thought that his microwave was of no particular value and certainly Mr Mirza had not sent him any money. That was a letter of 20 January 1997. On 4th February, the employers called Mr Mirza to a meeting in which they put this letter before him. Mr Mirza said, "Well perhaps after all it was somebody else I paid money to for the micro oven, somebody else on the Grimsby Council.

With regard to the video recorder, he refused to give the name of the person to whom he had been writing about that. He then offered to retract the claim and offered to resign whereupon he was suspended and told that he had 24 hours in which to write to the employers with the names of the people to whom he says he paid this money. These are all findings of fact by the Employment Tribunal.

On the 5 February, Mr Mirza rang up his manager, Mr Hall, and reasserted that the microwave oven belonged to Mr Hutchinson and that the video cassette recorder belonged to a Mr Jina . On 6 February, Mr Hutchinson telephoned a manager in the Respondent company and said that Mr Mirza had contacted a colleague of his the previous day offering money if he would say the oven was his. This colleague had refused to participate in the deceit. Before the Employment Tribunal, both Mr Hutchinson and Mr Hunt gave evidence. Mr Hunt was the colleague of Mr Hutchinson, and he gave evidence that he had been offered £200 if he would say that the microwave was his, and he gave evidence that he declined to do so.

In any event, acting on the information they had at that stage, the employers decided Mr Mirza should be dismissed. They terminated his employment on that date, 6 February.

However, the Employment Tribunal came to the conclusion that the Respondents had totally failed to observe any of the recommended procedures for a fair hearing. Mr Mirza had not been warned that the meeting of 6 February was a disciplinary hearing; he was not advised that he could bring a friend with him, he was not told there was any appeal from their decision, and he was given no warning he was going to be faced with this letter from Mr Hutchinson. Accordingly, the Employment Tribunal found that he had been unfairly dismissed by reason of defective procedures, but they took the view that had the procedures been properly followed and Mr Mirza had been accorded all his proper rights, the result would have been the same, namely, it would have been judged by the employers that he had lied and had sought to defraud them. In consequence, he would have been dismissed in any event. For those reasons they decided that he should not be awarded any compensation.

Mr Mughal who has argued this case in front of us today, has criticised the Employment Tribunal for implicitly finding that the employers had carried out a sufficient investigation into the part played by Mr Hutchinson and Mr Hunt. We take the view that these are matters which were very much within the discretion of the Employment Tribunal who heard the evidence. They have made very clear findings of fact about them and essentially, as a result, come to very clear conclusions about Mr Mirza's credibility. In those circumstances, we find that the Employment Tribunal approached this matter in a perfectly proper way and made reasonable findings of fact. In the result, they decided that Mr Mirza should not be paid any compensation. That was a matter for them and we do not see there is an arguable point of law arising here.

Next, there are allegations made against the Chairman of the Tribunal by Mr Mughal. He appeared on behalf of Mr Mirza before the Employment Tribunal, and has filed a substantial affidavit in which he related the way in which this five day hearing was conducted by the Chairman. As is usual practice, that affidavit has been sent to the Chairman and in turn he has had the opportunity of countering the allegations made by Mr Mughal.

We take the view that this was a particularly difficult case. It went on for five whole days. Whilst Mr Mughal has argued this preliminary point before us today, succinctly, clearly and with great moderation, it is plain that he and the Chairman had difficulty in getting on with one another during the course of this five days. The Chairman alleges that Mr Mughal behaved in a way a professional advocate would not have behaved. I have no doubt that the Chairman found the case difficult to handle, and that during the course of that five days, an element of frustration crept in, but having considered most carefully what is said in Mr Mughal's affidavit, we are satisfied that there is nothing in those allegations which suggests there was any underlying prejudice against Mr Mirza, no prejudice which would have resulted in the Tribunal coming to an erroneous or prejudiced decision; nothing which would justify us intervening, even to the extent of allowing this case to go forward on the basis of the Chairman's conduct to a full hearing.

There is a third matter however, raised by Mr Mughal. This relates to allegations of racial discrimination. Mr Mughal, in his concise address to us today, referred us to two particular statements made by witnesses who are in a managerial position in the Respondent company. One was said by Mr Heywood during a row which took place over Mr Mirza's timekeeping in October 1995. It is alleged that Mr Heywood, said:

"I told him that he had a chip on his shoulder because of his colour."

There is no disagreement about whether that was said as one might suppose, because it was stated in Mr Heywood's own statement that he had said as much. It was also referred to in Mr Mirza's IT1 showing that the remark had been noted by him and had found its mark; but nowhere in their findings does this Tribunal touch upon those matters of racial disparagement. Accordingly, we are of the view it is arguable that the allegation of racial discrimination is an important and substantive one which should be canvassed at a full hearing before this Tribunal.

There is a second remark capable of being construed as racist. This was said by Mr Hall and again it is accepted by Mr Hall that he did. He said that Mr Mirza should:

"Play the White Man."

Arguably, this matter is inadequately dealt with in the extended reasons of the Tribunal in that there is no reference as to how they or Mr Mirza interpreted that phrase . Again we think it is arguable that in the context of the complaints of racial discrimination, those are matters which should be canvassed before a full hearing of EAT.

In the circumstances, we give leave for this case to proceed to a full hearing in relation to those allegations of racial discrimination and in relation to them only.

Mr Mughal, having allowed you to go forward to a full hearing in relation to the allegations of racial discrimination, the question remains whether this Tribunal should make any directions to facilitate that hearing. We think that there should be before the Employment Tribunal who hear this matter, the statement of Mr Heywood, the Chairman's notes of the evidence of Mr Mirza in chief and cross-examination, relating only to the incident in October 1995 when he had his argument with Mr Heywood.

Is there any further directions you would wish me to add?