United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at London (North) on 1 April 1998. The Tribunal found that the Appellant had been fairly dismissed by the Respondent and rejected his complaint of racial discrimination.

The background was that the Appellant worked for Brian Smith Catering Plc, the Respondent, as a hospitality assistant, from February 1994 until 18 August 1997. In fact, at the time the Appellant's employment began, the business belonged to another entity and Brian Smith Catering Plc took over the business in about August 1995. It appears that his contract of employment did not specify any particular area in which he was, or could be, required to work. He was dismissed on 18 August 1997 for a failure to carry out the instructions of his manager, Ms Finegan.

The Appellant is a national of Sudan and the basis of his complaint of racial discrimination was that Ms Finegan, his manager, showed favouritism to a Mrs Bulger who, like Ms Finegan, is white and of Irish origin. Before us the Appellant has complained that there was favouritism shown to Mrs Bulger at the time of her appointment as hospitality co-ordinator, which appears to be a grade of employment above that of hospitality assistant. The evidence before the Tribunal was that Mrs Bulger was appointed to that grade in November 1995, and it was plainly far too late for the Appellant to make any complaint about that appointment at the time when he lodged his IT1 in this matter in September 1997.

The Tribunal found that Mrs Bulger's job function was different from that of the Appellant. Although many of the tasks they undertook were similar, she had additional duties and responsibilities, including administrative tasks. She provided silver service whenever this was required.

It appears from what the Appellant has told us today that he and some of his workmates, also hospitality assistants, were unhappy over a long period of time throughout 1996 and much of 1997, about the way in which the duties were organised by Ms Finegan. He has told us that he and his workmates felt that Mrs Bulger was treated more favourably than they were. However, matters came to a head in July 1997, when as the Tribunal found, the Appellant was instructed to work in 'A' block at the BBC premises where he was then employed, in addition to his usual work in their 'C' & 'E' Blocks. He refused to work in 'A' block unless all the hospitality assistants, including Mrs Bulger, hospitality co-ordinator, were also required to work there on a rota basis. That condition was not acceptable to the employer and the Appellant was suspended. He was required to attend a meeting with his general manager, Ms Finegan, on 16 July. The disputed issues were then discussed and the Appellant explained that he considered that Ms Finegan was showing favouritism towards Mrs Bulger. He repeated that he was not prepared to work in 'A' block unless all the other workers, including Mrs Bulger, were also required to work there. Accordingly, he was given a first written warning and was told that he was expected back at work on 25 July. He failed to report for duty on that day and Ms Finegan wrote to him asking him to return on 27 July. When he returned on the 27th he was asked to work in 'A' block. He gave the same answer; he would do so provided the others were also required to work there on a rota. That was not accepted and he was suspended again and told to consider his position.

On 13 August Ms Finegan wrote to him pointing out his right to challenge her decision through the company's grievance procedure. She required him to resume work again on 18 August. That letter was treated as a second written warning. On 18 August the Appellant returned to work and he was asked by Ms Finegan whether he was willing to work in the 'A' block. He gave the same reply, that he would do provided Mrs Bulger was also required to work there on the rota. As a result of his refusal to accept the instruction to work in 'A' block, Ms Finegan dismissed him.

The Tribunal found that in view of his persistent refusal to accept a reasonable instruction, which was within the rights of the employer to demand of him, his dismissal had been fair and they also concluded that Ms Finegan's actions had not been, in any way, influenced by racial factors. We note that the Tribunal enquired as to the number of white Europeans, black Africans, black Afro-Caribbeans, Chinese and persons of mixed race who were employed by the Respondent. They also considered the racial mix of Ms Finegan's management team which comprised 2 white Irish, 2 white British, 1 white Hungarian, 1 black Afro-Caribbean and 1 black African. They also considered the number of persons who had left the Respondent's employment on a non-voluntary basis. Those included 9 black Africans, 1 Chinese, 5 white Europeans, 2 white Irish and the Appellant who, as we have indicated, is Sudanese.

In this appeal the Appellant has sought to argue that there was no basis for the Tribunal's decision. The Notice of Appeal says that the Tribunal erred in law in that it was wrongly stated that Mrs Bulger was, throughout the whole of the relevant time period, employed in a supervisory position in hospitality and was not promoted by the Respondent. The Appellant complains that he was not given the opportunity to apply for the supervisory position when Mrs Bulger was promoted and he complains that she was promoted because he is Sudanese and she is white Irish and of the same ethnic origin as Ms Finegan. As we have already indicated, that promotion took place in November 1995 and it was far too late, by 1997 for the Appellant to complain about it.

We have read this decision with care and we have listened today to the Appellant's submissions. We understand the nature of his grievance, but it is impossible for us to say that this Tribunal may have fallen into an error of law. We only have jurisdiction to consider and to correct errors of law and we are satisfied that no such error of law is raised in this appeal. Accordingly, the appeal must be dismissed.