United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Cavanagh (of Counsel) Instructed by: Legal Adviser Engineering Employers Federation Broadway House Tothill Street London SW1H 9NQ


 


JUDGE WILKIE:

1. The Appellant, which was the Respondent below, Appeals against the unanimous decision of the Employment Tribunal, that it discriminated against the applicant of the grounds of race and, that it victimised him in breach of the 1976 Race Relations Act.
2. The hearing before the Tribunal was conducted on the 29 and 30 April of this year, and the decision was dated 27 May. There was a hearing on remedies which was held on the 12 May, a decision dated 21 June. Although that is not the subject of appeal, certain passages in that decision have been relied on in support of the appeal against the conclusions on liability. Both at the substantive hearing and the remedies hearing representation of each side was lay representation. The Applicant was represented by Mr Ghanti of the Race Equality Council in Gloucester and the Respondent below by Mr Smith of the EEF.
3. Mr Cavanagh now represents the Appellant and he has submitted a very comprehensive and clear skeleton argument on the basis of which he has taken a number of specific points. The first is, that insofar as the Tribunal concluded that there was both discrimination, and victimisation arising out of exactly the same events then legally that conclusion is flawed. Whilst he accepts that essentially that is a moot point which would not have brought him to the Employment Tribunal on its own, he indicates that it is indicative of confusion of thought on the part of the Employment Tribunal. He accepts that there is nothing explicit in the statute which precludes an employer being guilty of both in relation to the same events, but he says that logically they are separate.
4. It does not seem to us that it is necessary for us to come to a conclusion on this issue. It is sufficient that we note that it is essentially a moot point which does not appear to be sustainable on the express words of the statute. Therefore we conclude that this particular ground does not on its own constitute a reasonably arguable Ground of Appeal in respect of these substantive decisions which ought to go to a full hearing.
5. As a separate point, Mr Cavanagh raises a time issue, that is to say, the events with which the Tribunal were concerned took place in two parts. The first incident occurred on the 27 July, when there was an argument at shop floor level between the Applicant and a white employee. Following that argument, the Applicant made a complaint that he had been subject to racial abuse. Following upon that, management took the decision to transfer, the Applicant, from the department in which he had been working to another one, with the consequence that the probationary period, which he was serving and which was coming to its end, had to be started afresh. It was at the end of that extended probationary period that the Applicant was dismissed in December of that year. The point that Mr Cavanagh takes is that as far as the earlier instances of conduct, the complaint made by the Applicant was out of time, and it would only be in time if both elements of the history of the matter were rolled up together, as a continuing series of acts.
6. This is a point which is taken at the appeal for the first time. It is a jurisdictional point. It was not a point which was raised by either side at the Employment Tribunal and the Employment Tribunal dealt with the incident on the basis that they were a series of continuing events leading to his dismissal. It seems to us that it was not for the Tribunal explicitly to address itself to the question of whether they were separate events, and if so therefore whether the first one was out of time, in a situation where the underlying assumption of everyone before the Tribunal was that they were a series of continuing events. In our judgment it is explicit in the way in which the Tribunal dealt with this matter that it was dealing with these events as a continuing series of events. On the evidence they were entitled to come to that view and therefore on that issue we conclude that there is no reasonably arguable point for an appeal to advance to a full hearing.
7. The real point of Mr Cavanagh's argument on this Appeal, is that the Employment Tribunal failed to identify sufficiently in its reasoning the thought processes which led to its conclusion. Although it identified some of the steps that it had to take, it failed to deal adequately with some of those steps and failed to address itself in its decision to the proper approach to certain other steps that it had to take. The first task for the Tribunal was to decide whether the applicant had been treated less favourably. It made what we conclude was a finding in paragraph 24 of its decision where they say that:-

"The applicant is from an ethnic minority. He was the only person who was dismissed at the end of his probationary period in this section. He was therefore treated less favourably than his colleagues".

8. The Tribunal concluded that that was the first step that they had to embark upon, in a situation where there was no direct evidence of victimisation or racial discrimination in the decision to dismiss the applicant. Mr Cavanagh criticises the conclusion in paragraph 24 because he says that in order to be less favourable treatment there has to be some attempt to compare like with like and he says that the Tribunal failed to do so. In our judgement there is nothing in this point. The Tribunal did compare like with like. It was comparing the treatment of this Applicant with those other persons in his section who completed their probationary period and either were dismissed or not dismissed.
9. Furthermore in paragraph 26 of the decision the Tribunal goes on to look at the way in which he was treated in comparison with others within the larger workgroup, namely the department, who were dismissed at the end of their probationary periods and it identified the different circumstances which applied to them, they being dismissed because of poor absence records, although one was also dismissed for lack of commitment. In our judgment, the Tribunal at this stage of the process clearly identified the task they had to perform and having addressed that correctly it reached a conclusion which was open to it on the evidence.
10. Mr Cavanagh then accepts that the Tribunal went on to set out a series of inquiries that it had to make in order to decide whether it was open to them to draw the inference that his less favourable treatment was on the grounds of his race. They firstly had to look at the explanation of the Respondent for their actions in order to see whether it was satisfactory. They then had to consider, if they concluded that it was unsatisfactory, whether they should draw the inference from those unsatisfactory explanations, that his treatment was on the grounds of race.
11. They also addressed the question whether the persons acting for the Respondents were acting consciously or unconsciously. Mr Cavanagh criticises the Tribunal for failing to articulate as clearly as they might, whether they were approaching the case as one of conscious or unconscious discrimination. He says, rightly, that this is an important matter, because the authorities require the evidence from which an inference of unconscious discrimination may properly be drawn as having to be strong evidence. That is to say it is a higher evidential burden than if the discrimination found is conscious.
12. In our judgment, whilst the decision could have been clearer, it is clear to us that this Tribunal approached this question of conscious or unconscious discrimination on the footing that they were looking at the situation where what was involved was unconscious discrimination and therefore what they had to do was to address the evidence on that basis.
13. That is implicit from paragraph 28 of their decision of liability where, having praised the straightforward evidence given by Mr Bridges, they reminded themselves that discrimination can be unconscious. Lest there be any doubt that that was in their minds, in the remedies decision they state that the decision to dismiss in December was in part at least unconscious. Mr Cavanagh calls into question whether you can act in part unconsciously and part consciously. Whilst semantically that might be a nice point, in substance it is clear to us that this Tribunal did have it in mind that they were dealing with a case of unconscious discrimination. It is right to say that there is nowhere in the Tribunal's decision any explicit statement in recognition of the now established legal principles that where unconscious discrimination is being considered, the evidence from which an inference may be drawn has to be strong, but it is clear to us that the findings which the Tribunal made on matters of fact attending upon the decision to dismiss were just about as strong as they could be that the explanations given by the employer for the dismissal was unsatisfactory.
14. In paragraphs 17 to 23 of their decision, the Tribunal identified the seven reasons which were given by the Respondent's for having dismissed the Applicant at the end of his extended probationary period. As far as six of them were concerned they concluded that they had no worth whatsoever. One of them only were they prepared to accept was a factor in a non-discriminatory factor in the decision to dismiss. Furthermore, in terms of the procedure which was adopted in dismissing the Applicant at the conclusion of that extended probationary period, in paragraph 25 there were a series of trenchant criticisms which were made of the process by which he was assessed and the decision to dismiss was taken. It seems to us that it was not necessary for this Tribunal to say that there was strong evidence from which they were able to infer, not only that the reasons for the decision were unsatisfactory but that there was racial discrimination at work. The reasons themselves were obviously very strong on their face. It simply had to state them in order for that to be manifest indeed the Tribunal in respect of one of the particular reasons set out in 25(4) described it as "astonishing" what had happened.
15. Therefore, whilst it is the case that Mr Cavanagh has successfully teased out of the interstices of this decision a number of attractive and plausible points, it really amounts to little more than rooting through the decision in order to see what plausible points can be raised and there is, in truth, nothing in substance in the points that he makes. The fact that this Tribunal, addressed by two Lay Representatives, perhaps did not set out in full the logical steps by which they came to their decision, as one might expect if the arguments presented by Mr Cavanagh had been presented before them, does not mean that in substance they failed to address themselves to the correct issues or came to conclusions which were not open to them on the evidence.
16. We conclude that they did come to conclusions that they were entitled to come to on the evidence, having in substance addressed themselves to the right questions and having undertaken the right step by step approach.
17. We therefore conclude that there is no reasonably arguable point raised in this appeal and therefore the appeal will be dismissed at this stage.