United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARC JONES (Solicitor) MESSRS UNDERWOODS Solicitors 2 Bushfield Road Bovingdon Herts HP3 0DR
For the Respondent	MR JACQUES ALGAZY MESSRS MALE & WAGLAND Solicitors 4 Barns Road Potters Bar Herts EN6 2QT


 


JUDGE CLARK

1. This appeal, brought by Mr Sikpi, the Applicant, before a Employment Tribunal sitting at Stratford under the Chairmanship of Ms V K Gay, which dismissed his complaint of unlawful racial discrimination and breach of contract made against his former employer, the Respondent, Care First Plc, was permitted to proceed to a full hearing by a division presided over by Mr Justice Morison, at a preliminary held on 7 July 1999, on one single ground. Today Mr Jones had developed his submissions on behalf of the Appellant which we think strictly are not entirely covered by the ground identified in the preliminary hearing judgment, but Mr Algazy takes no procedural point and has dealt with the submissions made by Mr Jones in reply, as a matter of substance.
2. The Employment Tribunal heard the case below over 2 days on 9-10 September 1998. They then spent a day in chambers in deliberation and produced a decision with extended reasons dated 24 November 1998.
3. We should say at once that the structure of the Employment Tribunal's reasons drafted by the Chairman is admirably set out, identifying the relevant law, summarising the parties' cases and making all the necessary findings of fact before setting out their conclusions and reasoning in dismissing the complaints. Did the Employment Tribunal nevertheless fall into error as a matter of law?
4. For the purposes of the issues now raised in this appeal the facts may be shortly stated. The Appellant, who is black and of African ethnic origin, commenced employment as laundry supervisor at the Respondent's care home in Ilford on 3 March 1996. At all relevant times the principal nursing officer/manager at the home was Mr Moonoosamy, a Mauritian of Asian ethnic background.
5. During the course of his employment, which ended in summary dismissal by Mr Moonoosamy on behalf of the Respondent on 14 July 1997, disciplinary problems arose. The final incident concerned an allegation that the Appellant had been 10 minutes late for work on 12 June 1997, and had then falsified his time sheet, a disciplinary offence under the Respondent's disciplinary rules which constituted gross misconduct if made out. That, on the Respondent's case, justified his summary dismissal. There was no claim for unfair dismissal, the Appellant not having completed 2 years qualifying service for the purposes of section 108(1) of the Employment Rights Act 1996.
6. The question for the Employment Tribunal in the race discrimination complaint was whether in dismissing the Appellant the Respondent treated him less favourably than it did or would have treated another employee of a different race, that is, was there any less favourable treatment on racial grounds?
7. Was there less favourable treatment? The Employment Tribunal's findings on that issue are we think encapsulated at paragraph 8.1(iii) of their reasons in this way:

"There is no evidential basis upon which we could determine that an employee of any other nationality would not have been dismissed for such misconduct when it was linked to (c) the previous recent warning, and (d) the disobedience, which we have found proved, in refusing to leave the laundry."

Thus on the Employment Tribunal findings the complaint of race discrimination fell at the first hurdle, that is establishing less favourable treatment.

8. At paragraph 8.2 of their reasons the Employment Tribunal summarise their conclusions in 2 sentences:

"In the event we have made a finding that the dismissal was substantially for a reason which was legitimate and not such as to constitute less favourable treatment. It follows that it is not appropriate for us to consider the drawing of inferences because the Applicant has not made out the foundation of a discrimination claim in respect of the dismissal (the only matter about which he complained)."

It is that passage in the Employment Tribunal's reasons which caused the Employment Appeal Tribunal at the preliminary hearing stage to allow the matter to proceed to this full hearing. The point is put in this way at paragraph 3 of Ms Justice Morison's judgment:

"It seems to us arguable that the Tribunal's conclusion that the dismissal was substantially for a reason which was legitimate and not such as to constitute less favourable treatment, involves a non seqitur. The fact that a reason was a legitimate reason in terms of unfair dismissal does not mean that the Applicant was thereby not treated less favourably than others were or might have been. In any event, it is arguable, as it seems to us, that by their decision not to consider drawing inferences given the findings to which we have referred, the Tribunal disabled themselves from fulfilling their duty in applying the criteria set out in King."

That is a reference to the well known guidance given by Lord Justice Neil in King –v- Great Britain China Centre [1992] ICR 516.

9. Thus the appeal is limited to considering whether the Employment Tribunal erred in concluding that the Appellant was not subjected to less favourable treatment than would be meted out to an actual or hypothetical comparator of different racial origins.
10. It seems to us that there is a great danger in extracting one or two sentences from an Employment Tribunal's reasons in order to construct an argument that the Employment Tribunal erred in law.
11. This Employment Tribunal was trying 2 complaints; one of wrongful dismissal, the other direct racial discrimination. All, we apprehend, that the Employment Tribunal was saying in paragraph 8.2 of their reasons was that (a) the Respondent had good cause for dismissing the Appellant summarily and (b) that in dismissing him, the Respondent had not subjected the Appellant to treatment less favourable than they would have afforded to a comparator of different racial origins.
12. On the question of less favourable treatment, what were the relevant findings by the Employment Tribunal? In their findings of fact (paragraph 7 of their reasons) they deal with the Appellant's contention that black African employees in the laundry were less favourably treated when it came to dismissal than white employees, and the Employment Tribunal accepted Mr Moonoosamy's explanation that those white employees who were not dismissed were not true comparators. The Employment Tribunal also referred to the statistical evidence as to the proportion of black African – Caribbean, Asian and white employees who were dismissed according to the ratios within the working population of those different ethnic groups at the Respondent's care home. They found that such statistics did not prove the discrimination case one way or the other (paragraph 7 (xxxviii)).
13. In their conclusions, expressed at paragraph 8, the Employment Tribunal observed that the dismissal by Mr Moonoosamy of the Appellant was conducted in such a way that had they been considering a complaint of unfair dismissal, they would have found that the Respondent had acted unreasonably in dismissing the Appellant. They were not. That was a different question from that raised by the complaint of wrongful dismissal, and further does not answer the question arising in the discrimination complaint. Simply because an employee is treated unreasonably by his employer it does not necessarily follow that he has been unlawfully discriminated against on grounds of his race. See Zafar –v- Glasgow City Council [1998]IRLR 36, to which this Employment Tribunal directed themselves.
14. The Employment Tribunal were not satisfied, on the evidence, that a person of different racial origins would have been treated differently in circumstances were he to have the same disciplinary record, culminating in the falsification of a time-sheet, which the Appellant had. That in our view makes the necessary hypothetical comparison for the purpose of the exercise in section 11(a) of the [1976] Act. That it seems to us, was an end to the Appellant's discrimination claim.
15. The fallacy in the proposition said to be arguable at the preliminary hearing stage, and advanced by Mr Jones on behalf of the Appellant before us, is that the single sentence at the beginning of paragraph 8.2 of the Employment Tribunal reasons does not in our view involve the non sequitur that because the Appellant was dismissed in accordance with his contract of employment he has not suffered less favourable treatment on the grounds of his race. That is plainly not the Employment Tribunal's reasoning. If it was, the sentence might be expected to read:

"In the event we have made a finding that the dismissal was substantially for a reason which was legitimate and as such did not constitute less favourable treatment."

We do not interpret the Employment Tribunal's reasons as a whole to amount to that statement of their conclusions.

16. Mr Jones' further submission is that the Employment Tribunal did not consider the case of an actual or hypothetical comparator when arriving at their conclusion on the issue of less favourable treatment, or if it did it did not give adequate reasons to explain its conclusion, see Meek –v- City of Birmingham District Council 1987 IRLR 250. On the analysis of the Employment Tribunal's reasons which we have proffered earlier in this judgment we are satisfied that the Employment Tribunal considered and rejected as not being truly comparable with the Appellants case, the cases of the 2 white employees relied on by the Appellant (reasons paragraph 7(xxxvi), and further made the necessary hypothetical comparison at paragraph 8.(1) (iii) of their reasons.
17. In these circumstances we are unable to discern any error of law on the part of the Employment Tribunal. Accordingly the appeal must be dismissed.