United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROBINSON (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Leeds over a five-day period in November 1997, after which they dismissed the Appellant's claims that he had been unfairly dismissed from his employment with the Respondents, and found that the Respondents had not discriminated against him on the ground of his race.

The Appellant is Tunisian in origin. He worked for the Respondents from October 1993 until his dismissal on 9 May 1997 for misconduct. By 1997 he was employed as a quality control inspector. The Tribunal found that the Appellant had moved between departments during his employment at the request of his managers and supervisors, not because of any complaint in respect of his work, but on account of his conduct. The complaints against him were that he suffered from uncontrollable outbursts of temper, not provoked by anything anybody said to him, but which arose from trivial incidents which seemed to anger him out of all proportion. The Appellant admitted to the Tribunal that he was a person of volatile temperament.

The Appellant complained to the Tribunal that he had been the victim of racist abuse at work. This was denied. The Appellant sought to put in evidence a tape recording which he claimed would illustrate this abuse. The Respondents suspected that the tape was not genuine, or had been tampered with in some way and they opposed its introduction. At a preliminary hearing it was ordered that the parties could call experts who had examined the tape, so that opinions could be given as to whether the tape had been tampered with. At a hearing called specifically to deal with this issue, the Respondent called an expert, Mr Roy, who said that in his view the tape was unreliable and had been tampered with.

The Appellant did not call an expert. He himself gave evidence, saying that although he accepted that the tape was of poor quality, because the circumstances of the recording had been difficult, the tape had not been tampered with. The Tribunal refused to admit the tape in evidence.

At the main hearing, the Tribunal heard the Appellant's complaints of racial abuse, which they said were singularly lacking in particularity. They noted that, when in 1996 the Appellant had made a complaint under the Respondents' Equal Opportunities Policy that he had not been afforded the promotion he deserved, he had not at that time complained of racial discrimination or racist behaviour. On another occasion, when the Appellant had mentioned racist conduct to a director, Mr Mitchell, he had been asked to put his complaint in writing, according to the company's procedure, but had failed or declined to do so. In short, it appeared that no formal complaint of racist behaviour had been made until after the Appellant had been dismissed, although he had been well aware of the availability of the grievance procedure and the Equal Opportunities Policy. The Tribunal rejected the Appellant's claim that he had been the victim of racist abuse.

The Tribunal then turned to consider the specific acts or decisions which the Appellant alleged were effected by racial discrimination. They identified four such matters which fell within the period of three months before the presentation of the IT1 in June 1997. Those four matters were:

"(a) The final written warning which was given to the applicant.

(b) The act of dismissal on 9 May.

(c) An alleged failure by the respondents to take up a suggestion with regard to the functionality of a piece of electronic equipment manufactured by them and

(d) Possibly the failure by the respondents to deal with the question of the tape recording to which reference has already been made."

The Tribunal considered all four of those matters and concluded that there had been no racial discrimination in the Respondent's handling of any of those four matters. No point arises in this appeal as to the Tribunal's approach to those questions.

The Tribunal then considered the fairness of the dismissal itself. They directed themselves according to the case of British Home Stores v Burchell [1978] IRLR 379 and concluded that the Appellant had been dismissed because the Respondent had an honest and reasonable belief that he was guilty of misconduct in respect of an incident which had occurred on 7 May 1997, when the Appellant had thrown down a craft knife and used foul and abusive language to his manager in the presence of other workers. The Tribunal found that the procedures followed had been fair. They also found that the penalty imposed, dismissal, was within the band of responses open to a reasonable employer. They bore in mind particularly that the Appellant had been warned on previous occasions for a similar form of misconduct. In the event they found that the dismissal was fair.

The first ground of appeal before this Appeal Tribunal related to the Tribunal's refusal to admit the evidence on tape. It is submitted that the Tribunal should have listened to the tape and have formed their own view. By accepting the opinion of Mr Roy, without hearing the tape themselves, they had abdicated their discretion. In our view there is no merit in this argument. The Tribunal's decision not to admit the tape was not only a matter which fell within their discretion, we think it was plainly right. Even if the Tribunal had listened to the tape they would not have known for themselves whether it was reliable. It is well known that tapes can be edited and re-made very skilfully, so that only an expert can tell whether that has happened. If that had happened, and it was Mr Roy's expert view that it had, the evidence on the tape would be worthless and irrelevant to the issues in the case. In these circumstances it appears to us that, not only did the Industrial Tribunal make no error of law, they exercised their discretion in an entirely sensible way.

The only other complaint in this appeal is of bias. The Appellant was unrepresented at this long hearing and we say at once that we recognise the difficulties which he must have faced. He complains in an affidavit, sworn for the purposes of this appeal, that the Chairman did not allow him a fair hearing. He makes a number of specific complaints; that the Chairman shouted at him; that he did not assist him as he had promised to do with procedural and evidential matters; that he belittled and humiliated him; that he sometimes appeared to be laughing at him; that he told him in a curt manner to move on to the next point, which made it appear that he was not interested in the point which the Appellant was seeking to make at the time; that he cut the Appellant short during cross-examination; that he corrected his manner of questioning in a way which was unhelpful and did not assist the Appellant to ask the question in a more appropriate and acceptable way. All in all, the Appellant has said that the five days were a nightmare to him.

Allegations such as this are treated very seriously by this Appeal Tribunal and the practice is to obtain affidavits from all those present. The Appellant, as we have said, has sworn his affidavit. The Chairman has provided his comments upon the allegations, as have the Tribunal members. Also, in this case, Mr Shrives, the solicitor for the Respondents has sworn a long and detailed affidavit. Of course, nobody who has provided their impressions and recollections of this hearing can be regarded as wholly impartial. The Appellant recollects things from his viewpoint. He was alone and inexperienced. No doubt he felt very vulnerable. Moreover, he has lost his claim. The Chairman, as he himself recognises, is unlikely to admit to bad behaviour, let alone to a display of bias. The opposition, the Respondents' solicitor, may be thought to be unlikely to say "Yes, this hearing was unfair". Because those difficulties are recognised, the test which we have to apply is to ask what we think an impartial bystander would have thought about the proceedings. Would he have thought, on watching and listening, "I am concerned that the Appellant might not be having a fair hearing?".

We have read the material before us with great care. It is agreed, on all sides, that at times the Chairman raised his voice. He says so himself. We can understand why the Appellant's perception of that may have been that he was being shouted at. The Chairman explains, and in this he is supported by his members, that there were many times when the Appellant was so loquacious that he, the Chairman, had to raise his voice to stop the flow of the Appellant's speech in order that he, the Chairman, might be able to speak to him.

Next, we observe that the very detailed account of Mr Shrives reveals many instances of the Chairman helping the Appellant and showing consideration for his difficulties. We also have read the members' contributions. We summarise them by saying that their impression was that the Chairman had been patient with the Appellant in what were, at times, very difficult circumstances.

Considering all that material and applying the test of what the reasonable and impartial observer would have thought, we are satisfied that he would not have had any concern about the fairness of these proceedings. Accordingly, this appeal must be dismissed at this preliminary stage.