United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	Mr P Wallington (of Counsel) Messrs Edward Lewis Solicitors Verulam Gardens 70 Gray's Inn Road London WC1X 8NF
For the Respondent


 


JUDGE PETER CLARK: The Applicant before the Bedford Industrial Tribunal, Mr Wilson, was employed by a contract cleaning firm, Barkland Cleaning Ltd ("Barkland") and its predecessor, from 29 July 1995 until his dismissal on 6 November 1996. At the relevant time he was employed on a cleaning contract made between Barkland and Tesco Stores Ltd ("Tesco") at the Tesco Store in Mereway, Northampton. He worked on the 10 pm to 2 am shift. It was common ground that he was a contract worker within the meaning of section 7 of the Race Relations Act 1976, and as such entitled to the protection of the provisions of the Act vis-a-vis Tesco.

In the early hours of 5 November 1996 the Applicant finished worked at about 3.30 am. On duty at that time was a Mr Abrahams, a Tesco plain clothed security officer, who had been tasked by the store manager, Mr Campbell to monitor staff leaving the staff car park at night. Goods had been going missing from the store to the value of £7,000 per week and security had been stepped up.

It was the Applicant's case that Mr Abrahams banged on his car window and asked to search both the Applicant and his car. At that time the Applicant did not know Mr Abrahams, he was in plain clothes and although he waved a wallet in front of him the Applicant could not see what he was being shown. He refused to be searched at that stage, whereupon, according to the Applicant Mr Abrahams said:

"the thing with you lot is that you think you can get away with anything"

and that he would report him and make sure he did not return on site. The Applicant, a black Rastafarian Afro-Caribbean, took that remark to be a reference to his race.

Later Mr Abrahams made a report to Mr Campbell, who in turn informed Barkland's contract manager that he was withdrawing store approval for the Applicant. That conversation took place on 6 November, the same day the Applicant was dismissed by Barkland. He brought a complaint of racial discrimination against Barkland, Tesco and Mr Abrahams. The complaint against Barkland was withdrawn.

The matter was heard by the Industrial Tribunal over 4 days between 17 and 20 March 1998. The was a complete conflict of evidence between the Applicant and Mr Abrahams who denied the remarks attributed to him, the Applicant saying that he used the expressed "you lot" on more than one occasion, and asserted that he, Mr Abrahams, acted professionally whilst the Applicant was aggressive, and that the Applicant's behaviour in refusing to be searched was highly suspicious. In support of Mr Abrahams' account Tesco called various witnesses, including Mr Jordan and Mrs Blakemore, Tesco employees who were in the vicinity during the confrontation between the Applicant and Mr Abrahams.

Having heard the evidence the Tribunal preferred the account given by the Applicant. On that basis they found that Mr Abrahams gave a false report to Mr Campbell about the Applicant with a view to his being excluded from the site, and that his actions in doing so were racially motivate. In particular, the Tribunal found that Mr Abrahams did make the remark about "you lot" and that was a reference to the colour of the Applicant's skin. Based on that report Mr Campbell did exclude the Applicant and as a result he lost his job with Barkland. The complaint of racial discrimination against Tesco and Mr Abrahams was upheld.

Against that decision, promulgated with extended reasons on 8 April 1998, this appeal is brought. Mr Wallington for the Appellants, principally takes two lines of attack.

First, he submits that the Tribunal misapplied the relevant legal principles. He has referred to the House of Lords decision in Zafar v Glasgow City Council [1998] ICR 120 in which Lord Brown-Wilkinson warned that the question as to whether inferences of racial discrimination are to be drawn is a matter to be determined in the light of the facts found, it does not arise automatically from unreasonable conduct by the Respondent to the complaint. Secondly, the principle that because the Complainant was unreasonably treated it does not follow that other, white comparators would have received different treatment. In this case, Mr Wallington submits, the Tribunal in the course of its reasons makes no reference to a comparison between the Applicant and either an actual or a hypothetical comparator of different race or ethnic origin.

His second line of attack can be broadly categorised as perversity. Lord Justice Mummery Stewart v Cleveland Guest (Engineering) Limited [1994] IRLR Pages 440-443, set out a number of epithets which have been used in the cases to describe what is truly a perverse finding by an Industrial Tribunal. One of those expressions is illogicality. The way in which Mr Wallington has developed this part of his submissions, is to point to the fact that the Industrial Tribunal, contrary to the case advanced by the Applicant that there was a racist conspiracy between the witnesses called on behalf of Tesco, found that the witnesses called in support of Mr Abrahams' account of events were essentially truthful witnesses. Without going into the matter in the detail in which Mr Wallington has necessarily had to set the matter out in his written and oral submissions to us, he has just persuaded us that there is sufficient in the argument that there are illogical inconsistencies within the findings made by the Industrial Tribunal in their reasons to give rise to a potential finding of perversity in this case. On that ground we shall allow the matter to proceed to a full appeal hearing together with the further ground that on the face of the Tribunal's reasons there is no comparison made between the Applicant and an actual or hypothetical comparator for the purposes of determining whether or not there was less favourable treatment on the grounds of race within the meaning of section 1 of the Race Relations Act 1976.

We have reached this conclusion with some anxiety, conscious always of the very difficult task facing any Appellant who seeks to have an Industrial Tribunal decision set aside on the grounds of perversity. Nevertheless, we are satisfied that the matter ought to be fully argued in due course at an inter-partes hearing.

We should make this observation that Mr Wallington has told us that an application for a review of the Industrial Tribunal's decision has been granted and a review hearing is to take place. We think it highly desirable that the full hearing of this appeal should not take place before the review procedure has been exhausted and we make that observation for listing purposes.

Mr Wallington seeks the Chairman's notes of evidence and at this stage we will hear submissions from him as to what evidence or what nature of evidence he says are necessary for the purposes of determining this appeal.

From Mr Wallington.

We shall direct that the Chairman provide his notes of the evidence given by the witnesses, Wilson, Abrahams and Blakemore. We already have their written statements which formed part of their evidence in chief. The case will be listed for one full day, category B. There are no further directions.

I have indicated that it should not be listed until the review procedure is completed which means that there is a decision one way or another from the Industrial Tribunal, and then each party will take a position on the review matter and it follows that if somebody is going to appeal the review decision, whatever it may be, then there will have to be a preliminary hearing in that matter and then the question of listing this case will be dealt with; it may affect the time estimate and so forth.