United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR S VOKES (of Counsel) Messrs Bonser & Dawes Solicitors 66 Birmingham Street Oldbury West Midlands B69 4HD


 


JUDGE HAROLD WILSON: This hearing has been the preliminary hearing in the proposed appeal by the applicant before the Employment Tribunal whose applications were rejected by the Employment Tribunal. Mr Faux of Counsel represented the applicant before the tribunal and the Company was represented by their solicitor.

The hearing itself occupied two consecutive days and then a final hearing on 19^th November 1998. In the course of it the tribunal had before it a lengthy statement by the applicant which he had attached as his statement to the IT1. He was examined at length and had two witnesses on his behalf. The tribunal came to the conclusion that the applicant had not been constructively dismissed and was not the victim of racial discrimination.

Mr Vokes, on his behalf today, submits a skeleton argument together with a chronology, and he submits that the tribunal erred in law in more than one respect. In the first place Mr Vokes referred to the evidence given by Amir Kabul and two Asian ladies, which is referred to in a newspaper report, which is attached to his skeleton argument, but which is nowhere referred to in the decision. The evidence of Amir Kabul and the Asian ladies concerned conduct by members of staff at the respondent Company's premises towards shoppers of Asian origin. Mr Vokes submits that that is probative evidence of what the applicant was complaining about. It should have been referred to and considered by the tribunal and its failure to do so is a fatal flaw. Mr Vokes relies upon what is stated by those witnesses and says that it was clearly relevant.

We disagree. The evidence that those witnesses gave concerned conduct by shopfloor workers of the respondent Company towards shoppers, and in so far as we know anything about it, the newspaper report makes it plain that when management learned of what was going on they took immediate and appropriate action to stop it and to ensure that racial discrimination did not occur amongst their staff. Furthermore, in our view, there is no merit in the submission that it was relevant as potentially probative of the applicant's case, because the applicant's case, with two exceptions, was not concerned with the behaviour of his fellow shopfloor workers. The whole thrust of his case was of discriminatory behaviour by management figures towards him on racial grounds which ultimately lead to his resigning, because he was forced so to do by their conduct. So far as complaints about racial comments by fellow workers were concerned, there were two put before the tribunal. The first concerned Diane Cooper when he complained about that, management took immediate action and an apology was forthcoming. The applicant himself agreed that that was the end of the matter so far as she was concerned. That matter, as the tribunal observed, had happened a year or more before his departure from the Company. The second racial remark by a fellow employee concerned Steve Barnet who, he said, had on more than occasion called him a "black bastard". That is clearly racial and a matter of proper complaint it was not mentioned in the IT1 and the applicant's own witnesses said that they had regarded it as a joke. The applicant himself had never reported it. The tribunal concluded that if it had been a serious allegation by the applicant the tribunal would have expected it to have been included in the Originating Application.

Mr Vokes complains that there is no reference at all to the evidence by Amir Kabul and the Asian ladies in the decision by the tribunal. We agree with him that it would have been preferable for the tribunal to have referred to the evidence if only to dismiss it as irrelevant and unhelpful. The fact that they did not do so is not, in our view, a matter which would affect the outcome of the appeal were it go forward.

The second matter of complaint and error of law is that the tribunal expressly excluded evidence about incidents which had happened after the end of the employment. In that regard Mr Vokes refers us to the decision of the Court of Appeal in Chattopadhyay v The Headmaster of Holloway School [1981] IRLR 487. He submits that on that authority evidence of what went on after the applicant had left the employment of the respondent should have been admitted because he says that it was probative.

What information we can glean about the incidents which happened in the fish and chip shop, run by the appellant with his family and involved members of the staff of the respondent Company, is that there was considerable verbal abuse of the appellant. It does not appear from the references to that abuse that it was racist – it may well have been – we do not know and certainly where the applicant refers to it he does not indicate that it was racist. He says that it was abuse. In those circumstances, it seems to us that the tribunal rightly excluded any reference to that evidence because it was not in any way probative of the case they were considering which was being brought before them by Counsel on the applicant's behalf. It seems to us that those matters fell within the strictures set out in the obiter dicta in Chattopadhyay which started by stating that "the judgment should not be treated as a charter for the wholesale allegation of subsequent events." In those circumstances, we find that there was no error of law as asserted by Mr Vokes.

The complaints made by the applicant before the tribunal were of a number of instances which they considered on his evidence and on the evidence of the respondent. The tribunal either preferred the evidence on behalf of the respondent or rejected some of the claims of the applicant. Those are issues to do with evidence, which it is not for us to go behind. It seems to us that the tribunal properly directed itself on the law and concluded that all the specific points raised by the applicant in support of his unfair dismissal allegations had been satisfactorily dealt with by the evidence called by the respondent. Many of the applicant's complaints were stale and he had never at any stage activated the grievance procedure. When he had made complaints management had dealt with them promptly and appropriately. The tribunals found no breach of any express term of contract and were not satisfied of any breach of the implied term of trust and confidence. The burden of proof was on the applicant, and was not discharged.

The same goes for racial discrimination. In particular, that issue was dealt with fully in the tribunal's concluding paragraphs 17, 18, 19, 20 and 21. Accordingly, we can see no reasonable prospect of success were this matter to go to full argument and we therefore dismiss the appeal.