United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N O'BRIEN (of Counsel) ELAAS and THE APPELLANT IN PERSON


 


JUDGE PUGSLEY: This is a preliminary hearing of an appeal by the applicant/appellant against the decision of the Employment Tribunal promulgated on 2nd July 1999. In this case we are grateful for the assistance we have received from Mr O'Brien, who appears here on a pro bono basis under the ELAAS scheme. We have also heard the appellant himself who wished to raise other certain matters.

1. The background is simply this. Mr Pintus is in the United Kingdom as a student. He was employed part-time by the respondents, Yate's Wine Lodge in their wine bar in Harrow from 30th April to 25th December 1998. The last day of that employment is significant. The incident that led to the end of his employment took place on Christmas Eve.
2. The tribunal note in their findings of fact that the appellant was a sensitive person who was reduced to tears at several points during the tribunal hearing. It also noted that the respondents were a large organisation with well-developed policies for dealing with discrimination, harassment and grievance.
3. Initially the appellant's employment at the Harrow wine bar was harmonious and he seemed to have had a good relationship or at any rate a harmonious one with the assistant manager, Mr Paul Kent. There was a more difficult relationship at the outset with his supervisor, Emma Harvey, with the appellant's perception of her, according to the tribunal, was that she was bossy.
4. An incident in 1998 occurred when the appellant was told by Emma Harvey not to drink water and removed his glass from him. The appellant was upset about this, as he thought the drinking of water to be a basic human right. The reasons for Emma Harvey's actions was that there was house rule that bar staff could only drink at the bar with management consent. We note that in the Notice of Appearance the respondents said that people were perfectly entitled to drink drinks and they may have a glass of water while working their shift, as people do need a drink in a busy working atmosphere. The view was formed by the employer that the reason for drinking the water was to avoid work. The tribunal found that there was no racial element in Emma Harvey's reprimand of the appellant, but it was the appellant's belief that that event caused Emma Harvey to poison relations between Paul Kent and himself.
5. The appellant has contended that the view was reached that he was avoiding work because he was Italian. There was a further incident, later in June 1998, when Paul Kent reprimanded the appellant again for drinking water near closing time. The tribunal analysed the evidence as to that and they accepted the evidence that Paul Kent may have referred to the appellant's attitude but most specifically did not refer to his Italian attitude, as though that meant that he wished to avoid work. The appellant wanted to get on with his work though matters were not particularly easy between the appellant, Emma Harvey and Paul Kent.
6. The tribunal analysed the staff ethnic diversity, not by reference to the conventional analysis of ethnic minorities, but rather by reference to the holders of United Kingdom passports and non-United Kingdom passports. Half the staff, approximately 35 were non-white United Kingdom passport holders, with the greatest concentration of non-white United Kingdom passport holders in the kitchen, on the door and as glass collectors and the least amongst bar staff. We accept that the submissions made by Mr O'Brien that this is a slightly unusual form of ethnic analysis. We agree, but in the context of this case we do not think that it makes any significant impact on the result of the case, or indeed any discernible influence at all, but we note that it is a somewhat unusual way of drawing up an ethnic profile of a workforce.
7. Events came to a head on Christmas Eve. There was an incident when the appellant believing that there was insufficient empty glasses to justify him continuing any collection activity returned to the bar. There was an altercation with Paul Kent in which the appellant ended up by being instantly dismissed. The appellant walked out and did not come back. Because of the prior experience in the earlier part of the year, the appellant saw that this was due to a racial animosity.
8. The tribunal set out the law in paragraph 5 onwards and Mr O'Brien accepts on behalf of the appellant that this could take place as a sort of template direction. In no way is that meant insensitively or offensively. But one notes in Employment Tribunal decisions there are shifts in emphasis, and this is a shift in emphasis following the House of Lords decision in Zafar v Glasgow City Council [1998] IRLR 36.
9. We have come to the view, and it is not a view from which Mr O'Brien dissents, that there is absolutely no criticism that can be made of the way in the tribunal approached the relevant law. What is said by Mr O'Brien on behalf of the appellant is that this tribunal should have taken heed of the fact that the appellant had a letter, which was before the tribunal, which asked for various documents. It is said that if those documents had been forthcoming the appellant would have been in a position to have more evidence, known where the witnesses were and possibly have been able to call evidence as to various issues, which the appellant was denied. The appellant made no application for formal discovery. We find no basis for thinking that this in any way raised its head before the Employment Tribunal Chairman. We do not think that it is right to place such a duty on a Chairman of its own initiative to explore that each party is satisfied that adequate discovery has taken place. We have already adverted to the other point made by Mr O'Brien which is that the ethnic profile set out in paragraph 3(viii) of the decision is somewhat unusual in the way it takes place, but nevertheless having said that, we really do not think that assists us.
10. At the end of the day we have looked through the decision. We really do not think that either on the grounds alleged or in the skeleton argument there are any arguable grounds of appeal on the issue of race discrimination. We have considerable sympathy with the appellant. Unfortunately for him the rules surrounding the bringing of an unfair dismissal case preclude anyone with his length of service from bringing an unfair dismissal claim. We do not in any way prejudge matters which are not matters for our determination. The tribunal were not impressed by the circumstances in which the appellant was dismissed. On the other hand, we have to say the appellant himself had been rather free with his language. The tribunal looked at every matter. They looked at the time it took to investigate this incident after a complaint. They looked at the circumstances. They directed themselves properly as to the drawing of an inference. In the event, they came to the decision that they were not satisfied in the way required that there was any racial inference, undertone and reason for the treatment this appellant received. We do not think it is open to us, looking at that decision, to say that we can find any arguable misdirection or error of law and therefore the appeal is dismissed.