United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E W B FRIPP (Of Counsel) Messrs Powell & Co Solicitors 77 Woolwich New Road London SE18 5ED


 


MR JUSTICE CHARLES: This is an appeal brought before us pursuant to the ex parte preliminary procedure to enable the Appellant to show that the Grounds of Appeal are reasonably arguable.

The Appellant is a Mr Siwela and he appeals from the decision of the Stratford Industrial Tribunal as set out in its extended reasons dated 10 July 1998. The Appellant claimed that he suffered discrimination by victimisation. We have received a fairly lengthy written argument in support of the appeal and have heard oral submissions. I will deal with this matter by reference to the written argument, although the matter has been put slightly differently in oral submissions. I will pick those points up as I go through the matters raised in the written argument.

The crux of the first argument put was that the Appellant wishes to say that the Tribunal did not require the employer to give an explanation that the detriment - that is, the termination of his employment - was not motivated by an unlawful reason. Additionally, it is said the Tribunal wrongly required the Appellant to prove unlawful motivation.

In effect what the Appellant seeks to argue is that the failure of the Tribunal to require the employer to do something provides a reasonable basis for appeal. What it is said the Tribunal should have done is to require the employer to give an explanation. It is quite plain to us, having read the Tribunal's reasons, that the Tribunal heard at length the explanations given by the employer and it is not asserted that there was any formal basis upon which this requirement should be made or that it should be made at any particular stage of the proceeding. It seems to us clear that the Tribunal heard extensive evidence as to the employer's explanation.

Next, it said that the Tribunal got the onus of proof wrong on this issue. But, in the case of Aziz v Trinity Taxis Ltd [1988] ICR 534, the Court of Appeal, in the judgment of that court, delivered by Slade LJ, make it clear - in particular at pages 546e to 547a and at 548d - that the overall onus on the issue remains with the employee. Of course, in an issue such as this, when a Tribunal is making findings of fact on the balance of probability, issues will arise which may give rise to a prima facie case or presumption which has to be considered in the context of the totality of the facts to reach a conclusion pursuant to that test. This does not mean that the overall onus shifts, simply that the fact-finding body has to have regard to all the relevant facts and reach a conclusion on the balance of probability. Again, it is clear to us that this is what the Tribunal did.

The second argument in the written argument was put in this way:

"Further, or in the alternative, the Industrial Tribunal failed to require of the Respondents an explanation as required by clear authority in law. Treating a person of one racial group less favourably than a person of another racial group raises a prima facie case from which an Industrial Tribunal may infer discrimination on racial grounds.

Harvey on Employment Law, L, 1145:

"It is submitted that the principle is no different in cases of alleged victimisation under section 2 of the Race Relations Act 1976.""

For present purposes we will accept the analogy although we are very doubtful as to its validity in the way it is put and relied on in this case. Even accepting the analogy it leads to the same point as the first point, namely, that the Tribunal should have required an explanation. In that sense it is at odds with Aziz and we have already dealt with the position as to how the Tribunal, in its fact-finding exercise, would, as a matter of law, deal with any prima facie case or presumption that is raised.

The third ground relied on - and this was a ground pressed before us in oral submissions - is that the Tribunal's extended reasons do not provide adequate reasons and do not tell Mr Siwela why he lost or, demonstrate irrationality. In this context we were referred to and asked to compare in particular paragraphs 18 and 21(e) of the extended reasons. Paragraph 18 reads:

"In this case the protected act comprises the letters from Mr Siwela to Mr Ajayi dated 4 and 5 September 1996 concerning the refusal by the management committee of Mrs Lasker's application for sabbatical leave and the allegation by Mr Siwela contained in those letters that racial discrimination has taken place."

Paragraph 21(e) reads:

"We noted that Mr Siwela made no allegations of racist comments against members of the management committee until his letters of 5 September. 5 September is the same date as the suspension of Mr Siwela and Ms Altenor and Ms Louis did not receive their copies of the letters of 5 September until after 5 September."

As we read those two paragraphs together, the plural in 21(e) of "letters" should be taken as referring to the letters dated 4 and 5 September referred to in paragraph 18.

We were urged to conclude that the finding contained in paragraph 21(e), that the members of the management committee had not received the letters - as we read it - of 4 and 5 September until after 5 September was irrational. We confess that we had difficulty in following that. There may be - and some were put before us - facts that would indicate that they were received before the 5 September, or before the relevant meeting held on that date. However, this is clearly an issue of fact that was before the Tribunal at some stage, if not many stages, during the three days of evidence in this case and the Tribunal have reached a finding about it at paragraph 21(e).

In our judgment, read as a whole, the extended reasons make it quite clear why the Industrial Tribunal reached their conclusion and do not demonstrate an error of law in their approach, they having cited the case of Aziz and followed it.

The final ground, relied on in writing and also put orally, was that the decision of the Industrial Tribunal is perverse or irrational.

In our judgment the arguments put as to that were to the effect that Mr Siwela maintains the Tribunal's decision was wrong. It is clear that there was evidence before the Tribunal on which they could have reached the decision that they did relating to causation and, in our judgment, any argument based upon perversity is doomed to failure for all the reasons just set out. We have concluded that there is no reasonably arguable point on this appeal and we dismiss it.