United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M S PANESAR (of Counsel) Principal Litigation Officer Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR P IRVIN (of Counsel) Solicitors 124 Aldersgate Street London EC1A 4JQ


 


MR JUSTICE CHARLES: The parties to these proceedings are Mr D.C. Briscoe and Telewest Communications Ltd (Telewest). They have both appealed against the findings of the Employment Tribunal sitting at London (South) on 2 to 6 February and 13 February 1998. The Extended Reasons of the Tribunal are dated 18 February 1998.

The Tribunal decided that:

(1) Mr Briscoe was unfairly dismissed, and

(2) Mr Briscoe was not discriminated against on racial grounds.

Telewest appeals against the first finding and Mr Briscoe appeals against the second.

We indicated at the close of the hearings of the two appeals that we were going to dismiss both of them and that we would give our reasons for these decisions later in writing.

As before the Tribunal both sides were represented before us by Counsel. Telewest were represented by the Counsel who represented the company before the Tribunal. Mr Briscoe was represented by different Counsel. We are grateful to both Counsel for their assistance. In both appeals having heard Counsel for the Appellant we did not think it necessary to call on the other side. Both Counsel answered our questions fairly and skilfully, and in our judgment both of them fully advanced the cases of their respective clients.

Before the Tribunal there was no dispute of law and thus as to the principles to be applied by the Tribunal. The Tribunal set out the issues and questions they had to deal with in paragraphs 2 and 3 of their Extended Reasons. These paragraphs are in the following terms:

"2 Both sides were represented by skilled and experienced counsel, and it is not therefore necessary for us to set out the well known law in detail. The Applicant had a white mother and an Afro-Caribbean father and describes himself as black. He compared his treatment with that of other employees who were white. The issues before us were therefore as follows:

(i) what was the reason for the dismissal?

(ii) if it was an admissible reason, was it fair?

iii) was that dismissal less favourable treatment on racial grounds?

3. So far as the fairness of the dismissal was concerned we asked ourselves the following questions.

(i) did the employer have a genuine belief that the Applicant had been guilty of mis-conduct?

(ii) was that belief based upon a investigation which was reasonable in all the circumstances?

(iii) did the Respondent follow a fair procedure in that the Applicant had adequate notice and understanding of the charges against him, and an opportunity to state his case, and an opportunity to appeal

(iv) was dismissal within the bounds of reasonable reaction of a reasonable employer to the facts as he believed them."

Both sides accepted before the Tribunal and before us that these paragraphs contained an accurate summary.

So far as the issues relating to race discrimination were concerned the Tribunal state in paragraphs 5 and 6 of their Extended Reasons that:

"5. So far as race discrimination was concerned we follow the well-known guidelines in King v Great Britain-China Centre. There was clearly a difference in race and a detrimental treatment, namely dismissal. We made primary findings of facts and asked ourselves whether the Respondent's explanation satisfied us that the decision was not based upon racial grounds. We then went on to consider whether we should infer from the facts we found that the decision was an act of race discrimination.

6. We also bore in mind the recent case of Zafar v Glasgow City Council that a finding of unfair dismissal is not of itself material on which we must conclude or infer less favourable treatment on racial grounds."

As they record the Tribunal heard evidence from 18 witnesses over five days. It is apparent that those witnesses (or many of them) were cross-examined by Counsel.

In paragraphs 7 to 28 of their Extended Reasons the Tribunal set out their findings of fact and in paragraph 29 the Tribunal record as follows:

"29. The submissions were on the facts alone, the parties having agreed the questions of law as we have set them out at the beginning of this decision. We do not therefore record the submissions here."

We pause to comment:

(1) In our judgment the Tribunal in paragraphs 7 to 28 of their Extended Reasons succinctly and clearly set out their findings of fact. We are grateful to them for doing this and are confident that they were assisted in so doing by the representatives of the parties.

(2) Like the Tribunal we would recommend that anyone who is considering our decision should examine with care the statements referred to in paragraph 20 of the Extended Reasons. Also like the Tribunal we have seen the transcript of the appeal hearing before Mr Fishwick, the regional managing director, which is referred to in paragraph 26 of the Extended Reasons.

(3) The conclusions of the Tribunal contained in paragraphs 30 to 36 of their Extended Reasons have to be read in the light of the earlier findings of fact and in the knowledge that they had been reached after the Tribunal heard and considered the submissions referred to in paragraph 29. When this is done, in our judgment, it becomes apparent that much of the argument on both appeals is a re-run of points that were made below and were rejected. Both sides were obviously aware of the nature and content of the submissions the other made to the Tribunal.

Authorities referred to on the Appeals

In oral submission we were referred to Byrne v BOC Ltd [1992] IRLR 505 by Counsel for Telewest. Also before the hearing Counsel for Telewest provided us with photocopies of Clark v Civil Aviation Authority [1991] IRLR 415, Retarded Children's Aid Society v Day [1978] ICR 437 and paragraphs T972 to 988 of Harvey. We heard the Telewest appeal first. After we had heard submissions made on behalf of Mr Briscoe in his appeal and indicated that we did not need to hear from Telewest in respect of that appeal, Counsel for Telewest drew our attention to Wade v Chief Constable of West Yorkshire & Others Times Law Reports 545. It seems to us that the Wade case was relevant on both appeals because both of them contained an attack on the adequacy of the reasoning of the Tribunal. It may well have been the case that Counsel for Mr Briscoe would have drawn our attention to the Wade case on the Telewest appeal if we had invited him to make submissions thereon.

We have had regard to all the authorities, and to the paragraphs in Harvey, referred to in the last paragraph.

Telewest's Appeal

This related to the conclusions and reasoning of the Tribunal contained in paragraphs 30 to 32 of their Extended Reasons and in particular to paragraph 32. We set out those paragraphs below. In doing so we have divided up paragraph 30 (i) into sub-paragraphs (a) to (d). This division does not appear as such in the Extended Reasons. We have done this to indicate the factors taken into account by the Tribunal in that paragraph. With that alteration paragraphs 30 to 32 of the Extended Reasons are as follows:

"30. We have no doubt the dismissal was unfair for the following reasons:

(i) the investigation was far less than was reasonable in the circumstances. ...

(a) Mr Marston had had passed to him an allegation from one employee. Three other employees had been recruited, taken by car to a hotel and had then made statements to a personnel officer in the same hotel lounge as Mr Marston and Mr Dunk who subsequently conducted the disciplinary and appeal proceedings were (although not within earshot) seated.

(b) The statements themselves did not give a date or place of the incident alleged, but were generalised allegations. It was clear from the face of the statements that other workers had different opinions and we cannot see that it is fair that none of those workers were ever canvassed. Whenever an allegation of misconduct is made, it is as important to investigate evidence of innocence as well as evidence of guilt, and no attempt was made to do this.

(c) In those circumstances we cannot accept that Mr Marston's belief was genuine in that it was placed on a proper investigation.

(d) It is true that the memorandum referred to above from the Applicant showed that he had indeed considered Mr Marston's instructions to be a breach of contract, but that evidence was not before Mr Marston either at the time he ordered the inquiry or the time he dismissed. Furthermore an examination of it would have revealed that it was a request to the Human Resources Officer for guidance. If Mr Marston had spoken to others there would have been revealed to him the Applicant's expressions of loyalty at his meeting with the staff.

(ii) It cannot in our view be fair not to disclose those statements to the Applicant. Whether the names of the persons making the statements should have been deleted is a matter of judgement, but to disclose only a few lines was not justified in the circumstances of this case. Unpleasantness there may have been but we have seen no threats of physical violence or anything of the sort.

(iii) To insist on proceeding at only four hours notice against a man who was on his first day back from sick leave and in the teeth of his protest is not fair. If Mr Marston had considered that it was necessary to remove Mr Briscoe from the premises, he could have continued the suspension for longer.

31. We therefore find the dismissal to be unfair.

32. We have considered whether either of the appeals had cured the defects of the dismissal and have concluded that they did not, for they carried the inquiry no further than those who had made the original allegations and therefore suffered from the same defects."

The argument on behalf of Telewest was founded on the assertions that:

(a) It would be fair and reasonable for an employer to dismiss an employee of Mr Briscoe's status on the basis of the accepted evidence of one (or more) employee that he was undermining the authority of his superiors and spreading dissent, and a full scale investigation involving a substantial part of the people who worked for and with Mr Briscoe was not necessary, and

(b) The appeal hearing conducted by Mr Fishwick (which Mr Briscoe acknowledged was fair) followed by Mr Fishwick's interviewing of three of the four persons who had given statements cured the earlier unfairness.

No point was made that the appeal hearing before Mr Dunk cured the unfairness.

As to point (a) we accept that it could be fair and reasonable for an employer to proceed on this basis and that often such a full-scale investigation would not be necessary. However, as a matter of common sense and fairness whether or not in a given case it would be fair and reasonable for an employer to act in this way will depend on (amongst other things) the following:

(i) the identify of the persons who have made the statements,

(ii) the manner in which they have been given,

(iii) the content of the statements,

(iv) the nature of the allegations, and

(v) the background leading up to a consideration of whether an employee should be dismissed.

Unsurprisingly in respect of point (a) Counsel for Telewest specifically drew our attention to paragraph 20 of the Extended Reasons and the fact that, as pointed out there, Mr Lancaster volunteered information to Mr Williams and it was only after this information was volunteered that as is stated in paragraph 30 (i) other employees were "recruited" and taken by car to a hotel where they gave their statements in a room in which Mr Marston and Mr Dunk were also seated, although they did not take any active part whilst the statements were being given.

As we understood Counsel for Telewest his submission was that if, as was the case, Mr Fishwick believed Mr Lancaster that of itself cured any unfairness. For the reasons set out below we do not agree. Additionally, we agree with the Tribunal that this is not a case where it was fair or reasonable for Telewest to reach a conclusion based only on the statements obtained, or an assessment of the evidence of the four employees who gave statements to the Personnel Officer in the circumstances described in paragraph 30 (i) and paragraphs 20 and 21 of the Extended Reasons.

Telewest's argument was advanced on two fronts. First it was submitted that the Tribunal had not given sufficient reasons so Telewest did not know why it had lost. Further, or alternatively, it was submitted that the conclusion reached by the Tribunal in paragraph 32 of the Extended Reasons was perverse.

It is apparent from paragraph 32 of the Extended Reasons that the issue as to whether the appeal before Mr Fishwick had cured the unfairness of the dismissal was raised and argued before the Tribunal.

It was submitted that the Extended Reasons were inadequate and did not tell Telewest why it had lost because in paragraph 32 no mention is made of the Tribunal's views as to the effect of the facts found that by the time of, and at, the hearing before Mr Fishwick, Mr Briscoe had seen the statements of the four persons referred to in paragraphs 30 (i), 20 and 21 of the Extended Reasons, and Mr Briscoe had had ample time to prepare his case and arguments, and thus of the Tribunal's views as to whether the defects referred to in paragraphs 30 (ii) and (iii) of the Extended Reasons had been cured.

It was in this context that our attention was specifically drawn to the Byrne case and in particular to the headnote and paragraphs 19 to 20 of the judgment to the effect that it is desirable that a Tribunal should in terms deal with the issue whether an internal appeal process is sufficiently comprehensive to cure earlier defects. It was submitted that in this case the Tribunal had not acted in accordance with that guidance and therefore their Extended Reasons were inadequate.

In our judgment that submission is unreal and inappropriate because:

(a) The Tribunal do deal with the issue in terms in paragraph 32,

(b) When the Extended Reasons are read as a whole, and it is remembered that the Tribunal had the benefit of submissions from Counsel acting for Telewest, it is unreal to suggest that because the Tribunal do not mention these factors they did not have any regard to them, and

(c) When paragraph 32 of the Extended Reasons is read with paragraph 30 (i) thereof and the earlier findings of fact set out therein it is quite clear that in so far as the defects identified in paragraphs 30 (ii) and (iii) were cured the Tribunal were of the view that the unfairness had nonetheless not been cured.

Further, in our judgment it is clear from a fair reading of paragraph 32 of the Extended Reasons together with paragraph 30 (i) thereof, and the earlier findings of fact therein, that the Tribunal concluded that the hearing before Mr Fishwick coupled with his interview thereafter of three of the four employees who had made statements did not cure the unfairness, and why the Tribunal were of this view. We return to the reasons of the Tribunal when considering the argument that their conclusion was perverse.

We are fortified in these conclusions relating to the attack of the adequacy of the reasons contained in the Extended Reasons by the discussion in Harvey at paragraphs T972 to 988 as to the manner in which Tribunals should state their reasons and how their Extended Reasons should be read, and the decision of the Court of Appeal in the Wade case to which we were referred after we had indicated that we were going to dismiss Telewest's appeal.

It was submitted in the alternative on behalf of Telewest that the conclusion reached by the Tribunal that the hearing before Mr Fishwick and his subsequent interview of three of the four who had made statements did not cure the unfairness was perverse.

In our judgment the conclusion reached by the Tribunal that the unfairness was not cured was well within the band of conclusions open to them and further, in our judgment, given their findings of fact it was plainly right. On the findings made by the Tribunal, like them we have no doubt that the dismissal was unfair.

In paragraph 30 (i) the Tribunal conclude that:

"In those circumstances we cannot accept that Mr Marston's belief was genuine in that it was placed on a proper investigation."

In our judgment that conclusion was clearly justified on the findings of fact made by the Tribunal that we have identified as sub-paragraphs (a) and (b) in our citation of paragraph 30 (i) of the Extended Reasons. These are the findings of the Tribunal relating to the manner in which the information on which the dismissal was based was obtained, and the contents of the four statements. We would add that in our judgment it is also justified by the background set out in the findings of fact made by the Tribunal.

This is an important finding because it means that a further investigation that goes over the product of the earlier investigation, or only relates to the evidence from employees (other than Mr Marston and Mr Briscoe), that was considered when Mr Marston's decision to dismiss was made, will not cure the conclusion that there was not a proper and fair investigation.

In our judgment if the investigation which immediately preceded Mr Briscoe's dismissal by Mr Marston is looked at in isolation having regard to the facts found by the Tribunal it was plainly flawed and unfair having regard to the circumstances in which the statements were obtained. In our judgment the position is made worse when the investigation is considered against the background set out by the Tribunal.

Further we agree with the Tribunal (see paragraph 30 (i), our sub-paragraph (b)) that in this case there was a need, and it was important, to investigate evidence of innocence as well as guilt having regard to the content of the statements relied on by Mr Marston (and then in the sense that he only saw three of the same people Mr Fishwick). In our judgment this need also arises from the manner in which the statements were obtained and the background set out by the Tribunal. Further we agree with the Tribunal on the basis of their findings of fact that if others (and we comment probably only one or two others) had been spoken to, it would have become clear that Mr Briscoe had made statements of loyalty at his meeting with the staff. It follows that this should have become clear to Mr Fishwick even if he had only made limited further enquiries.

We have mentioned the background set out by the Tribunal in their Extended Reasons. In particular as to this we have in mind the changes that had taken place in the management structure, the changes Mr Marston was suggesting and the resentment it was causing (see paragraph 19 of the Extended Reasons and the matters set out in paragraphs 16 and 17 of the Extended Reasons) part of which is referred to in Mr Lancaster's statement.

Further in our judgment the position is not cured if only Mr Lancaster's statement, or evidence, is taken into account together with the fact that he volunteered information before he made that statement. Our reasons for this conclusion are that:

(a) the comments made by the Tribunal as to the content of the statements apply to Mr Lancaster's statement, and

(b) in our judgment the manner in which that statement was obtained has the results that, notwithstanding the fact that Mr Lancaster had previously volunteered information, his evidence, is tainted by the fact that his statement was obtained as part of an inadequate and unfair investigation and it would be unfair (and thus the Tribunal could properly conclude that it was unfair) for Telewest to act on his evidence alone, or to act only on Mr Fishwick's assessment of Mr Lancaster's evidence.

In our judgment a fair reading of paragraph 32 of the Extended Reasons shows that the defects being referred to in paragraph 32 are those identified in paragraph 30 (i). This is because the reasoning of the Tribunal contained in paragraph 32 is that the appeals carried the enquiry no further than those who had made the original allegations.

In our judgment it was certainly open to the Tribunal to conclude, and indeed they were correct to conclude, for the reasons given in paragraph 32 that the internal appeal hearing and the further interviews carried out by Mr Fishwick did not cure the unfairness identified by the Tribunal in paragraph 30 (i). This is because:

(a) For the reasons identified in paragraph 30 (i), and identified by us as factor (a), the investigation and enquiry carried out was seriously flawed.

(b) The Tribunal had rejected Telewest's contention that it was fair in this case for it to proceed on the basis of one, or more, of the four statements having regard to the factors within paragraph 30 (i) which we have identified as factors (a), (b) and (d), and

(c) Mr Fishwick did not widen the investigation and enquiry.

We add that in our judgment having regard to:

(i) the background,

(ii) the manner in which the original statements were made,

(iii) the fact that Mr Marston remained in post, and

(iv) the fact that the makers of the statements were hardly likely to retract them on interview with the regional managing director of Telewest,

we do not accept, and indeed in our judgment it was unrealistic of Telewest to assert, that without a wider investigation of the background and without seeking the views of other employees Mr Fishwick could have made a proper and fair assessment of the truth of the statements, the veracity and motives of those who made them or the weight to be attached to them.

For the reasons we have given we dismiss Telewest's appeal.

Mr Briscoe's Appeal

We shall deal with this more shortly.

Before doing so we comment that having regard to the findings of fact made by the Tribunal we can understand why Mr Briscoe made his claims of direct racial discrimination and victimisation. We agree with the Tribunal that on the basis of the findings of fact they made Mr Briscoe was not treated well. However, we also agree with them that this does not mean that he was the subject of racial discrimination or victimisation.

As a general comment in our judgment when one stands back from Mr Briscoe's appeal it is in effect an attempt to re-argue the weight that should be given to, the inferences that should be drawn from and generally the effect of particular allegations made by him and on his behalf.

As we have already made clear the correct legal approach was identified by the parties and is referred to by the Tribunal in particular in paragraphs 5 and 6 of the Extended Reasons.

The conclusions of the Tribunal on Mr Briscoe's claims of racial discrimination and victimisation are in paragraphs 33 to 36 of the Extended Reasons which are in the following terms:

"33. Mr Briscoe was not treated well. Mr Meehan and others were naive to think that when a black person complains of discrimination he does not mean race discrimination.

34. Mr Meehan did little or nothing about it and the Applicant was right to believe that he was not getting sufficient support from management.

35. However, the complaint is not of the earlier treatment. It is that his dismissal was less favourable treatment on racial grounds and we find that more difficult. We observe a significant number of their employees were black and a number of them had been promoted. We further find it difficult to draw an evidential or inferential link between the treatment at the ands (sic) of Mr Borsberry or neglect at the hands of Mr Meehan and the later dismissal by Mr Marston. Mr Marston was fresh to the scene well after the earlier events complained of and we cannot find any evidence that in similar circumstances he would have treated a white person differently.

36. In those circumstances we are obliged to dismiss the complaint of race discrimination."

These paragraphs have to be read with the earlier findings of fact and in particular the finding that from about May 1997 although Paul Borsberry remained in his position as Head of District Sales he was sidelined in respect of any management he may have had of Mr Briscoe (see paragraph 13 of the Extended Reasons). In his argument Counsel for Mr Briscoe sought to attack this finding but in our judgment it is one that is well within the range of findings that the Tribunal could make. Clearly they had evidence upon which to base that finding. In our judgment it cannot be described as perverse.

The same comments apply to the finding at the end of paragraph 35 of the Extended Reasons. In our judgment this is a clear finding that Mr Marston, and Telewest, were not motivated by racial considerations in dismissing Mr Briscoe.

It is also apparent from paragraphs 5, 6 and 35 of the Extended Reasons that the Tribunal considered whether or not they should infer that Mr Briscoe had been discriminated against on racial grounds. Again in our judgment the conclusion that they reached not to draw such an inference was within the range of conclusions they could have reached as a Tribunal properly directing themselves as to the law.

It appears from the common ground as to the law referred to by the Tribunal in their Extended Reasons that the submissions, or the thrust of the submissions, made on behalf of Mr Briscoe before the Tribunal on this aspect of the case were that he had been subject to direct racial discrimination within section 1 of the Race Relations Act 1976. This flows from the grounds alleged by Mr Briscoe in the statement annexed to his IT1. Within those grounds are matters which could be said to amount to a claim of victimisation within section 2 of the Race Relations Act 1976. This possibility is not expressly mentioned by the Tribunal in their Extended Reasons. However, in our judgment the findings made by the Tribunal, and in particular the finding at the end of paragraph 35, cover any alternative claim based on victimisation. It follows in our judgment that those representing Mr Briscoe were right not advance as a distinct ground of appeal the fact that the Tribunal made no express reference to victimisation.

It was also argued on behalf of Mr Briscoe that the Extended Reasons were inadequate because they did not deal expressly with a number of the allegations that had been made by him and his witnesses in evidence, and on his behalf in submission. In our judgment that is not a valid criticism of the Extended Reasons. In our judgment when they are read as a whole they inform Mr Briscoe why his claims that he had been the victim of discrimination (and alternatively victimisation) were rejected. In our judgment the Wade case in the Court of Appeal supports this conclusion.

In short in respect of Mr Briscoe's appeal, in our judgment, (i) the Extended Reasons adequately explain why his case based on the Race Relations Act 1976 was rejected, and (ii) the conclusion of the Tribunal to reject it is within the range of decisions open to them and thus cannot be set aside on the grounds that it was perverse.

For the above reasons we dismiss Mr Briscoe's appeal.