United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr A Anderson


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Anderson, the Appellant before the Stratford Employment Tribunal sitting on the 26 & 27 May 1998, against that Tribunal's decision, promulgated with extended reasons on the 24 June 1998, dismissing his complaint of unlawful racial discrimination. His complaint of Unfair Dismissal was upheld subject to a finding of 30% contribution and he was awarded compensation for Unfair Dismissal totalling £1898.40. The Respondent to his application was his former employer, Capital Securities Services.
2. The Respondent provides security guards. The Appellant was employed as a Controller in the Control Room, having started his employment as a Security Guard in 1991. His employment terminated on 28 July 1997.
3. The Employment Tribunal found that the atmosphere in the Control Room was generally unpleasant. It was very busy; telephones were constantly ringing and there was a good deal of banter amongst staff, some of it aggressive, unpleasant and containing racist remarks; however, he made no direct complaint about that aspect of the matter, as part of his race discrimination complaint.
4. His detailed particulars of complaint served with his ITI refer to a history of disciplinary action taken against him, he contended unjustly, culminating in a hearing held on the 23 July 1997 at which his Solicitor attended.
5. The upshot of that hearing was that the Appellant was no longer to work in the Control Room and would be re-deployed as a Security Guard.
6. He regarded that move as a demotion and left the employment in circumstances which he alleged amounted to constructive dismissal.
7. The Tribunal accepted that contention, and found him to have been dismissed unfairly; however, they went on to conclude that neither his demotion, nor his dismissal was action taken against him on the grounds of his race. In particular, the Employment Tribunal rejected the argument advanced by the Appellant that the Respondent had a policy to deploy guards in response to the racist requirements of clients, and accepted the Respondent's evidence that a white Controller Gary Cotterell had been similarly demoted. There was, they found, no less favourable treatment of the Appellant on grounds of his race.
8. Against the finding of no unlawful racial discrimination, the Appellant appealed by a notice dated 23 July 1998. This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law to go forward to a full hearing.
9. In support of the appeal Mr Anderson takes three points. First he submits that the Tribunal had before it uncontested oral and documentary evidence that the Respondent carried out a racist policy in it's deployment of security guards. The finding by the Tribunal is at Paragraph 14 where they say this:

"The Applicant also referred in his evidence there being constant racist undertones in particularly a policy by the Respondent to deploy guards in response to the racist requirements of clients. We find insufficient evidence to support that assertion and upon a careful consideration of all the evidence find that any steps taken against the Applicant in respect of his employment were not racially motivated. We find accordingly that the Respondent is not in breach of Section 1 of the Race Relations Act 1975".

10. In challenging that finding the Appellant has put before us an entry in the account's book made by Mr James, the Manager who was responsible for his leaving the employment. It is dated 4 June 1996 and the entry reads as follows:

"George Messenger to be deployed in New Malden Tesco's until a white replacement can be found. The General Manager's words not mine starts Monday 9/6/97".

11. Pausing there we think that the entry is 4 June 1997 or 1996 as Mr Anderson had told us. The General Manager there referred to is the General Manager of Tesco's store in New Malden, and that evidence was before the Employment Tribunal. Mr Anderson submits to us that no Tribunal properly directing itself could have rejected his case, that the Respondent had a policy of deploying guards in response to the racist requirements of clients in the light of that documentary evidence. We have reminded Mr Anderson that our powers are limited to interfering with Employment Tribunal decisions on a point of law only. It seems to us reading Paragraph 14 of the Tribunals reasons that on all of the evidence including that document, the Tribunal were not prepared to find that the Respondent had a policy to deploy guards in response to the racist requirement of the clients and it seems to us that that was a finding which they were entitled to make.
12. Secondly, he submits by reference to Paragraph 8 of the Tribunals reasons that Mr James had a vendetta against him. It does appear from the finding in that Paragraph that the Tribunal accepted that Mr James was determined to remove the Appellant from the control room, and was seeking ways in which to do just that. That Mr James treated Mr Anderson unfairly is undoubtedly correct in the light of the Tribunal's findings on the unfair dismissal complaint. However, as the House of Lords made clear in Zafar V Glasgow City Council [1998] ILR 36, the fact that a black applicant has been unfairly or unreasonably treated does not of itself lead to an inference of unlawful racial discrimination. The Tribunal were not persuaded that Mr James treated the Appellant in the way that he did on racial grounds. Again that is a factual matter for the Tribunal to determine.
13. His third point related to a fellow employee Mr Gary Cotterell, a white controller. The relevant finding in relation to Mr Cotterell appears at Paragraph 13 of the Tribunal's reasons where they say this.

"So far as Mr Gary Cotterell is concerned the Respondent adduced evidence that Mr Cotterell had ultimately been demoted and treated in exactly similar fashion to the Applicant and accordingly no unfavourable treatment could be shown".

14. Mr Anderson tells us that the evidence was that although eventually Mr Cotterell was demoted in the same way as the Appellant, that did not happen until after he had twice been moved as a Controller. Again it seems to us that this is a factual matter for the Tribunal to consider and adjudicate upon.
15. Having heard all the evidence they concluded that the Appellant was not less favourably treated than his white comparator, Mr Cotterell. We can see no grounds for interfering with that finding of fact.
16. It follows, in our judgement, that this appeal raises no arguable point of law to go forward to a full appeal hearing and consequently it must be dismissed at this stage.