United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A NWAUZU (Representative)


 


JUDGE BYRT QC: This is a preliminary hearing in an appeal against a decision promulgated on the 18th August, 1998 of an Employment Tribunal sitting in Liverpool. By that decision, the Tribunal held that the employee's claim for unfair dismissal and racial discrimination failed. The employee, Mr Egbuchiri, appeals.

The facts, as found by the Tribunal, are as follows: Mr Egbuchiri, a black person of Nigerian origin, had been employed by the Respondents for 19 years until his dismissal on the 4th June 1997. His job was that of a kitchen porter at the Atlantic Hotel in Liverpool.

On the 2nd June, he became embroiled in a fight with another porter in the Hotel's kitchen. His adversary's name was Andrew Davies. The staff disciplinary code says:

"... any act of violence whilst on duty is gross misconduct."

On the 4th June a disciplinary hearing was conducted by the Hotel's general manager, a Mr Pearson. Its conclusion was that Mr Egbuchiri was guilty of gross misconduct and should be summarily dismissed. The Employment Tribunal found that that hearing was not satisfactory in a number of respects. Mr Egbuchiri had a limited command of the English language, and accordingly would have had difficulty anyway in presenting his case. He was given no witness statements in advance. Further, Mr Pearson was influenced in coming to his decision by factors contained in Mr Egbuchiri's personnel record which were never put to him.

On the 8th July, Mr McMurrick, the Respondents' Operations Director, held an appeal hearing. The Tribunal found as a fact that it was a rehearing which corrected the errors of procedure in the disciplinary hearing. Mr Egbuchiri had, by then, all the witness statements in his possession. He was represented by a trade union representative. Mr McMurrick found as a fact that Mr Egbuchiri had struck the first blow in a fight with Mr Davies. He held that summary dismissal was reasonable in all the circumstances.

In their decision, the Employment Tribunal were not satisfied, on the evidence, that Mr Egbuchiri had discharged the burden of proving that the reason for his dismissal was that, in defending himself, he took appropriate steps to protect himself from what he believed to be serious and imminent danger. They therefore found that the defence which might have been available to him under Section 100 of the Employment Rights Act was not so available. They found that the reason for the dismissal was Mr Egbuchiri's conduct. They accepted that the Respondents entertained a genuine belief after "a sufficient investigation" that Mr Egbuchiri had started the fight with Mr Davies, and that, notwithstanding his long and good service to the Respondents, summary dismissal was within the bracket of reasonable responses of the reasonable employer. Accordingly, they found that the dismissal was fair.

The Tribunal also dismissed Mr Egbuchiri's claim that he was dismissed because he was black. They expressly rejected Mr Egbuchiri's evidence that he had told Mr Pearson at the disciplinary hearing that he had been racially taunted and that Mr Davies attack was racially motivated. They rejected the contention that he had told anyone that he believed his dismissal was because he was black. In the concluding paragraph of their Reasons, the Tribunal rejected the claim that the dismissal was an instance of racial discrimination. They noted that Mr Davies who is white and who was found not to be the instigator of the fights had also been dismissed. On the strength of their findings of fact, they stated they were not satisfied that Mr Egbuchiri's dismissal was an act of less favourable treatment on the ground of race.

During the course of the hearing before the Tribunal, Mr Nwauzu, Mr Egbuchiri's representative, sought leave to amend his application by adding a claim under Section 4(2)(b) of the Race Relations Act alleging that he had been rostered unfairly, he had not been given days in lieu of notice, and the Respondents had attempted to reclaim monies paid as wages over and above the sums due, for a period of three years. The Tribunal declined to give leave, giving as their reason for such refusal the fact that there was no reference, direct or indirect, to those matters in the originating application which had been prepared for Mr Egbuchiri by a legal officer of the GMB. Further, they relied on the fact that, in evidence, Mr Egbuchiri had not been able to give any particulars of the allegations made. In any event, such a claim was well out of time.

In arguing the case at the preliminary hearing before this Tribunal, Mr Nwauzu has taken a number of points. His first point is that the Employment tribunal erred in law by wrongly identifying the Respondent Company as a 'LTD' instead of a 'PLC'. The IT1 did not specify which it was; it merely named the employer as 'Thistle Hotels'. The Respondents' notice of appearance named themselves, correctly, as a PLC. The Tribunal's decision referred to the Respondents as a private limited company, though they had corrected this error by the time of their decision on the application for review. We are satisfied that the Tribunal made a genuine mistake in referring to the Respondents as Thistle Hotels Ltd, but we are equally of the view that the error misled no one as to the true identity of the Respondents. The Respondents themselves have not taken the point. In our judgment, the misnomer of the Respondent Company in no way invalidates the decision of the Tribunal and a submission to the contrary is in our view unarguable.

Mr Nwauzu's second point is that the Tribunal erred in placing the burden of proving the reason for dismissal under Section 98(1) of the Employment Rights Act on the employee. He is, of course, right in submitting that the burden of proof under this sub-section rests on the employers but, in our view, it is unarguable to suggest that the Tribunal thought otherwise. Section 98(1) says that for the purposes of determining whether the dismissal of an employee is fair or unfair, " it is for the employer to show "(a) the reason for the dismissal". Section 98(2) says that a reason falls within the subsection if it "(b) relates to the conduct of the employee". The Tribunal found that the reason for dismissal under this subsection related "to the conduct of the employee". This was the employers' case. In so finding, the Tribunal rejected Mr Egbuchiri's contention that the reason for his dismissal was that he was black. In our judgment, the Tribunal correctly placed the burden of proof under Section 98(1) and (2) on the employers, and having done so, they found the burden discharged.

Whilst dealing with issues relating to the burden of proof, Mr Nwauzu submitted that the Tribunal erred in that they placed the burden of proving those matters relevant to Section 100(3) on the employee. If they had, that would have been an error of law. The section says that it is for the employer to prove the relevant facts and we doubt very much whether the Tribunal would have got that wrong. But, with respect, we do not think the Tribunal ever reached the stage of having to consider that subsection. They found that Mr Egbuchiri had failed to discharge the burden which rested with him of proving a case under Sections 100(1)(e) and 100(2), and we would wish to consider this point a little further.

The Tribunal found that the employers entertained a genuine belief, as a result of "sufficient" investigation, that Mr Egbuchiri had started a fight in the kitchen with Mr Davies, and further that their decision summarily to dismiss him was reasonable in the circumstances. This is a straightforward decision under Section 98(4) of the Act. Mr Egbuchiri's case set out in his IT1 was that he defended himself and as a consequence he was dismissed. This is a plea that he struck out in self defence and was clearly a matter the Tribunal had to consider under Section 98(4) as part of the equity and substantial merits of the case which the subsection bids them to take into account. Under that subsection, the burden of proof lies neutrally.

The plea of self defence also raises issues relevant to Section 100(1)(e) of the Act. This Section says:

"(1) An employee who is dismissed shall be regarded ... as unfairly dismissed if the reason ... for the dismissal is that-

...

(e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took ... appropriate steps to protect himself ..."

Subsection 100(2) goes on to provide:

"(2) For the purposes of subsection (1)(e) whether steps which an employee took ... were appropriate is to be judged by reference to all the circumstances ..."

In our judgment, the Tribunal correctly took the view that the burden of proving a case under the subsection rests on the employee. It is for him to prove "the circumstances of danger which [he] reasonably believed to be serious and imminent". However, we were concerned that the Tribunal dispatched Mr Egbuchiri's case under this subsection simply by stating in paragraph 4 of the Reasons:

"In the light of our findings of fact above, the applicant has not proved that the reason for his dismissal was that, in defending himself he took appropriate steps to protect himself from serious and imminent danger."

The finding of facts upon which they were presumably relying were the employers' conclusion that Mr Egbuchiri had struck the first blow. They made no finding as to whether, at the time he struck first, he was in a position of danger which he reasonably believed to be serious and imminent. They do not seem to have considered whether the first blow he struck was a pre-emptive strike in self defence and whether in the circumstances it was a reasonable step for him to have taken. Mr Nwauzu similarly criticises the decision because the Tribunal did not set out their detailed findings as to the sequence of events leading to the first blow being struck.

Whilst such criticisms might have an initial attractiveness, we have, after considerable deliberation, concluded that they are beside the point. Mr Nwauzu is stuck with the employer's finding that Mr Egbuchiri struck the first blow, a finding endorsed by the Tribunal. And it has never been Mr Egbuchiri's case that the first blow was a pre-emptive strike: see his IT1. The fact is that the Tribunal rejected Mr Egbuchiri's evidence that Mr Davies made the initial attack in the same way that they rejected his evidence about a number of other material matters. In short, they were not prepared to rely upon him as a credible witness. In the circumstances, it is not surprising that they found Mr Egbuchiri had not discharged the burden of proof which fell upon him under Section 100(1)(e).

Though the Tribunal might be criticised for the brevity of their reasons for dismissing the case under that last-mentioned section, we think that, with a little thought, it should be obvious to the parties why they respectively won and lost on this issue. Accordingly, we think it would be wrong for us to let this case proceed to a full hearing on this point because, for the reasons we have given, we think it would have no prospect of succeeding.

Mr Nwauzu's third point is that the Tribunal erred in failing to outline their findings relating to the background of the incident and, in consequence, failed to put the fight in the kitchen in its proper context. We have already indicated our view when considering the last point of appeal, and we think there is little more to be said. We are mindful that a Tribunal's Reasons are often unnecessarily prolix. They should set out sufficient of their conclusions and the facts upon which they are based to enable the parties to know why they have won or lost on a particular issue. We are satisfied that the Tribunal has done this, albeit in short form, and we are of the view that it is unarguable the Tribunal have erred in law in this respect.

The fourth point of appeal is that the Employment Tribunal erred in law by inferring a belief as the reason for dismissal. We think this point is based on a misconception of what the Tribunal found. They found that the reason for dismissal related to the employee's conduct, and that the employer's belief as to what that conduct was, was genuine and reasonable having regard to the investigation they carried out. The employers' belief is a critical element in their findings: see British Home Stores v Burchell [1980] ICR 303.

As for the fifth point: Having reviewed the evidence about the way in which the internal appeal was conducted, the Tribunal was entitled to form their own view whether the defects in the original hearing had been corrected. Having found as a fact what those defects were, they were in the best position to determine whether they had been corrected.

The sixth point: Having read the Tribunal's Reasons for refusing the amendment, we can see no ground for argument that they had taken in account matters they should not have taken or that they failed to take into account matters which they should have taken. Theirs was the discretion and we think it unarguable that they erred in law in the way they exercised it.

Mr Nwauzu's last point was that the Tribunal erred in the way they dealt with the allegation of race discrimination. In particular, he told us the Tribunal refused to admit in evidence the Respondents' answers to the Race Relations Questionnaire. On the face of it, the Tribunal dealt with all the relevant issues in short form. Without question, Mr Egbuchiri suffered a detriment in that he was dismissed but was that a discriminatory act? Was this an instance where, on racial grounds, the employers treated Mr Egbuchiri less favourably than they would another?

Often the difficulty under the Race Relations Act is the selection of an appropriate comparator. In this instance, the Tribunal took Mr Davies as the appropriate comparator. He was white and was found by the employers not to have been the instigator of the fight. Yet he was treated in precisely the same way as Mr Egbuchiri. The burden of proving racial discrimination rested with Mr Egbuchiri. The Tribunal found, against the background evidence of what happened to Mr Davies, that Mr Egbuchiri had not discharged that burden.

On those facts and findings it would seem that the Tribunal came to an unimpeachable conclusion. However, Mr Nwauzu criticises the decision in two respects. If we may paraphrase his first point: he criticises the selection of Mr Davies as a suitable comparator. Section 3(4) of the Race Relations Act says that:

"(4) A comparison of the case of a person of a particular racial group with that of a person not of that racial group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

We accept that there were certain differences in the circumstances of Mr Davies on the one hand and of Mr Egbuchiri on the other. Mr Nwauzu tells us that Mr Davies had only been employed by the Respondents for approximately two months and earlier on the 4th June 1997, the day of the disciplinary hearing, had admitted responsibility for the fight. Mr Egbuchiri had been in his job for 19 years and was within four years of retirement with a pension. These are obvious differences. The issue is whether those differences are material. The Tribunal thought not. That is a judgment of fact for the Tribunal. Having regard to the matters the Tribunal recite in paragraph 7 of their Reasons, it is in our view unarguable that the Tribunal's judgment on this point was perverse. Accordingly, we cannot disturb the Tribunal's choice of a comparator.

What of the Tribunal's refusal to admit the questionnaire? This document usually assumes importance in a case of racial discrimination because the questions force the employer to divulge information to which the claimant would otherwise have no access, and since the burden of proving discrimination rests on the claimant, the questionnaire's answers are often the only way a claimant can mount a case. Mr Nwauzu tells us the Tribunal refused to allow the answers into evidence. There is no obvious reason why they might have taken this stance. There is no mention in the Reasons of there being an issue on this point. Nor has the Chairman been given the opportunity of giving his account of the relevant events as an explanation. Were we to allow this appeal to go to a full hearing on this point, we would see to it that the Tribunal conducting the full hearing had the advantage of knowing what he had to say. At this stage of the preliminary proceedings, we therefore accept what Mr Nwauzu tells us, that there was such a refusal, but what is the consequence?

This is a matter to which we have given considerable thought. However, in arguing his point, Mr Nwauzu has not sought to show us how the answers to his questionnaire were material or impacted in anyway upon the issues the Tribunal or, in turn, we have to decide. Nor do the notice of appeal or the several written submissions which have been filed. Accordingly, we are driven to the conclusion that the answers to the questionnaire would have been of no assistance had they been admitted in this case and that issue raised by Mr Nwauzu is purely a technical one without consequence.

We have considered Mr Egbuchiri's appeal at more than usual length because Mr Nwauzu has taken such care and displayed such erudition in its preparation and in the course of arguing it before this Tribunal. We are conscious of the hardship the dismissal is likely to have caused Mr Egbuchiri but we can see no arguable point of law arising from the notice of appeal, only an understandable appeal for sympathy. In the circumstances, we think we have no alternative but to dismiss this appeal at this stage. We accordingly do so.