United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P GREEN (of Counsel) Instructed by: Mark Taylor & Co The Third Floor Stamford Bridge London SW6 HIS
For the Respondent	MR C MITROPOULOS (of Counsel) Instructed by: Messrs Shergill & Co Solicitors 22 Bath Road Hounslow Middx TW3 3EB


 


JUDGE H WILSON

1. This has been the full hearing of the appeal by the original Respondents against the decision by the Employment Tribunal sitting in London North on 1 and 2 July 1999, that the original Applicant was discriminated against because of his race when he was dismissed from his employment. Secondly, that the Applicant was dismissed in breach of his contract of employment, and thirdly the award of £22,084.77 compensation to include interest.
2. The Appellant today has been represented by Mr Green of Counsel who presented a comprehensive Skeleton Argument together with a series of authorities to support that argument. The Respondent, Mr Ali, has been represented today as he was before the Employment Tribunal by Mr Mitropoulos who also has submitted a generous Skeleton Argument amplified by oral submissions today.
3. The matter started with an application by the Applicant alleging unfair dismissal but not specifying any particular matter of complaint. Because of that, the case came before a Chairman sitting alone on 20 November 1998, and following what was submitted on that occasion, an interlocutory hearing was ordered to determine applications for the amendment of the original application and give directions and therefore, of course, postponing the hearing.
4. Meanwhile, this case had been consolidated for hearing with another case. That second case involved an applicant called Lambert who failed to demonstrate any interest in the proceedings he had initiated, and the case was dismissed. Meanwhile, in July, when the matter came on for hearing the Originating Application was amended and we have had that put before us today.
5. The amended application complained of wrongful dismissal and of racial discrimination and particulars of both those complaints were set out as part of the Originating Application. The response to the amended applications was to deny racial discrimination and to justify dismissal on the grounds of incompetence. So far as the latter is concerned, that is not the reason given in the evidence which we observe in passing.
6. The first named Respondent was employed by the second Respondent as head of security, very shortly before the matters with which this Tribunal was concerned, in July. He came to be in charge of a force of security guards and sent a memorandum soon after his arrival, setting out what was required of the staff. A week later, a second memorandum was sent round. Both of these memoranda dealt with questions of appearance and other matters of that nature, pointing out that people in the present team who did not meet up to the standards, through lack of common sense, would be dismissed. That, as the Tribunal found, was quite contrary to what was set out in the terms of employment which the Applicant had signed: that he could rely on a grievance procedure if there was any matter that he wished to raise, and there was also a disciplinary procedure.
7. Mr Lowery, the first named Respondent, said that he had decided to dismiss the Applicant together with another African and a Moroccan, because they failed to reach required standards. He admitted that Mr Ali had made some effort to improve, but not enough to justify his retention.
8. At the conclusion of the case, the Tribunal found that there had been racial discrimination and there had been wrongful dismissal and they made the award to which we have already referred. On behalf of the Appellant, Mr Green accepted the way in which it was put by this Tribunal, namely, that the issue was that the Employment Tribunal had failed to keep separate the issues involved in a case of racial discrimination and the issues involved in a case of wrongful dismissal. We emphasise "wrongful" because this was not unfair dismissal, because the Applicant had only been employed from September 1997 until June 1998, and the initial response of the Respondents had been to say that he was entitled to one month's notice and had been paid salary accordingly. Different issues, of course, apply where wrongful dismissal is concerned.
9. So far as wrongful dismissal is concerned, this Tribunal finds that the decision of the Employment Tribunal was clear and unequivocal and indeed, Mr Green's heart did not seem to be in his opposition to that finding. For our purposes, it seems to us that it is summarised in the generality of the lengthy extended reasons which are pulled together in the latter part of paragraph 38:-

"The employer had not investigated the matter They had not followed the proper procedures. They did not allow the Applicant to have a fair hearing as stated in the contract"

And they go on in the next paragraph to say that for those reasons they find that the Applicant was wrongfully dismissed. We concur, and find that part of the Decision unappealable: accordingly it will stand.

10. The position with regard to the issue of race discrimination, and the question of quantification of compensation, is different in each case for different reasons. So far as the award is concerned, we concur with Mr Green's objection that it is impossible to know what factors and what amounts were made with regard to the different heads under which compensation was payable. That matter must be remitted for further consideration after a decision has been made concerning the issue of whether or not there was racial discrimination against Mr Ali.
11. The position can be summarised in our view by saying that the Employment Tribunal probably, because of its failure to keep separate the two issues, fell into error of law by not applying the questions set out in the House of Lords Decision Judgement in the case of Zafar -v- Glasgow City Corporation IRLR 36 1998 which approved and set out the guidelines from the Court of Appeal decision in King 1991 IRLR 513. At paragraph 10 of the judgment in the House of Lords case of Zafar, Lord Browne-Wilkinson said:-

"10 Although at the end of the day, s.1(1) of the Act of 1976 requires an answer to be given to single question viz has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts - (a) less favourable treatment, and (b) racial grounds -as did the Second Division."

Later on, at paragraph 16, Lord Browne-Wilkinson quotes, with approval, the guidelines enunciated by Lord Justice Neill in the earlier case of King and Lord Browne-Wilkinson said that, in his judgment, that guidance was what should, in future, be applied in these cases.

12. In the case with which we have been concerned, it seems to us that the questions were not asked in the right order. There should, first of all, have been identified, a protected characteristic so far as Mr Ali was concerned. Next, there should have been identified bad treatment so as to raise the possibility of racial discrimination. Then the reasons for the treatment in question should have been scrutinised including any reasons put forward in evidence. Finally, it if was found that the reasons were insufficient, there were inferences to be drawn, and evidence sought, with regard to comparators.
13. Because there was an error of law in that regard, we direct that the issue of racial discrimination be remitted to a differently constituted Employment Tribunal which, having completed its deliberations and reached a decision concerning that matter, should proceed to consider the question of the award to be made in respect of the wrongful dismissal and the racial discrimination if that is what they find. Otherwise the wrongful dismissal by itself.