United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C A PURNELL Representative Slough Race Equality Council Coleridge House 5-7 Park Street Slough SL1 1PE


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a preliminary hearing the appeal of Mr N E Fleming in the matter of Fleming -v- 1) C B Hillier Parker Management Services Ltd, 2) Mr Anthony Arnold, 3) OCS Cleaning South Ltd. Earlier the first named Respondent, as it earlier was, OCS Cleaning Services South Ltd, settled before the hearing before the Employment Tribunal with Mr Fleming under the auspices of ACAS, so they were not represented below, and they do not appear here and to all intents and purposes have dropped out of the case.
2. Today the Appellant, Mr Fleming, who I should say is black, appears by Mr Purnell. Of course, this being a preliminary hearing, the other parties do not appear. It is to be borne in mind that the employer at all material times was not Hillier Parker, but OCS, the party with whom Mr Fleming has settled.
3. On 1 October of last year, Mr Fleming's employment was terminated on the grounds, it was said, of redundancy. On 22 December 1999 Mr Fleming lodged an IT1 for a number of complaints including, most particularly, racial discrimination. He said in box 11 of his IT1, where details of the complaint are to be given, that OCS were pressurised into making him redundant:

"There was no direct consultation by OCS before I was made redundant"

he says, and he goes on:

"So I believe that it was unfair for lack of consultation although I did receive a redundancy payment, also unfair selection".

And he makes it clear that he alleges that it was unfair on racial grounds.

4. On 14 January 2000 an IT3 was lodged by Hillier Parker and on 3 March by Mr Arnold. Then, on 9 August and 10 August 2000, there was a hearing at Reading before the Employment Tribunal under the chairmanship of Mr J G Hollow. On 24 August the decision, which was unanimous, was sent to the parties, and it was:

"The Applicant was not discriminated against by the 2^nd and 3^rd respondents on the ground of his race. The application failed."

The 2^nd and 3^rd respondents were Hillier Parker and Mr Arnold.

5. It is necessary to make sense of the case to set out some of the findings of the Tribunal in the extended reasons which were sent to the parties. Thus in paragraph 7 the Tribunal says:

"The Applicant's employment had commenced in June 1997 and for the first few months he had been employed on driving duties. After a few months he was transferred to the role of building steward at Concorde Road and there he remained for the entirety of his service."

And it was service, as we mentioned, in the employ of OCS. OCS were sub-contractors to Hillier Parker, who in turn were working for Nortel. A little later in paragraph 8 the Tribunal says:

"On that basis, the applicant continued to work at Concorde Road as an employee of OCS".

And going on in paragraph 9:

"9 Also in place under the terms of the contract were two other OCS employees. They were Mr Darren Florey who was based at Foundation Park, although from time to time he was required to carry out duties as necessary at Concorde Road. At Concorde Road there was a Building Steward Supervisor called Dean Merry. Those two individuals were directly employed by OCS and had longer service than the Applicant. Also based at Concorde Road was Mr Malcolm Henry. He was employed by Aztec under the contract that they had with CB Hillier Parker. His duties included elementary building maintenance and mechanical and electrical work although he had no formal technical qualifications."

Then the Tribunal says:

"Of those four individuals, only the applicant was black. All the others were white."

6. In paragraph 10 the Tribunal says in relation to the circumstance that was said to have led to the redundancy :

"Their evidence to us was that in the summer of 1999 there was always expected to be a reduction in the need for those services. One issue is whether or not there was a situation which was, or was akin to, a redundancy situation. The applicant says that there was not. The respondents say there was. We accept the evidence of the respondent on this in that they were told by Nortel that the demand for their services was expected to decrease".

And then in paragraph 1:

"11 It was also anticipated that the OCS contract was coming up for re-tendering. In the autumn of 1999 the position was that OCS were not invited to re-tender and, in due course, the contract was awarded to a new company, Securiplan."

Still in paragraph 11 the Tribunal said:

"So far as Concorde Road was concerned, the second respondent concluded that there was a need to reduce the headcount in order to save money. They proposed to OCS, by memorandum dated 13 August 1999, that there was no longer need for a building steward and they no longer needed the applicant's position. They asked that the applicant's position be removed from the contract."

A little later:

"They concluded the letter by saying could OCS please terminate the position of the building steward at Concorde House currently held by Neal Fleming in accordance with the terms of their employment? He had the least service of the OCS employees. Accordingly, the first respondent removed the applicant from the contract."

Then in paragraph 12

"12 The applicant was given notice that his employment would come to an end and it did so on 3 October 1999."

7. There was a finding that Mr Arnold made particular efforts to find alternative employment for Mr Fleming and indeed that his efforts were ultimately successful. The Tribunal set out the submissions made by both sides. They were far from uncritical of the Respondents, but, when they turned to racial discrimination, the subject with which we are concerned, they said:

"17………We must also have regard to the explanation given by the respondents that they were acting under a necessity to reduce costs. We accept the explanation and find it to be satisfactory. We are also influenced by the fact that Mr Arnold took action, unsuccessful in one instance and successful in the second, of seeking to obtain employment for the applicant elsewhere. If Mr Arnold had been racially motivated in his desire to get rid of the applicant and had thus discriminated against him, it seems to us extraordinary that he should have gone to those lengths to find a job for a person to whom he bore some antipathy by reason of his race."

8. Mr Arnold had occasionally played squash or tennis with a Mr Henry who was one of the 4 competitors, in effect, to stay on in employment, and as to that, the Tribunal said this:

"We have to say that we are unanimously of the view that we do not regard the activities of Mr Arnold in playing tennis with Malcolm Henry as being significant. It seems to us that those were really nothing more than occasional games of tennis with little or no social contact between them apart from that and we do not think it is a factor which assists us."

It could well be that preferring a tennis partner as such would not have been relevant discrimination, or at any rate, not direct discrimination, although of course, if one preferred a tennis player because he was a white tennis player, different considerations would apply. But that point, as it seems, just simply failed on the facts and the Tribunal recognised the common sense force of the point that if Mr Arnold had indeed been racially motivated, it would have been extraordinary for him to have gone to the lengths which he was found to have gone to find an alternative job for Mr Fleming.

9. As to the background of fact: the Notice of Appeal is dated 15 September and we also have a Skeleton Argument from Mr Purnell and he wisely and properly concentrates on what he alleges to be errors of law, and he first refers to the summary of legal principles which the Tribunal set out for itself in their paragraph 5. After referring to Harrods -v- Remick, King -v- Great Britain-China Centre, Nagarajan -v- London Regional Transport and Zafar -v- Glasgow City Council the Employment Tribunal in that paragraph 5 said this:

"We bear in mind that the applicant must establish that he has been subjected to a detriment such as dismissal and that he has been subjected to that detriment by reason of his race. Race need not be the only cause of the discrimination but it must be an operative cause. We must be satisfied that there is a causal link between race and detriment. We therefore conclude that whether or not the respondents treated the applicant in a racially discriminatory way and draw the inference to that effect, we must have regard to any explanation which the respondent puts forward. We must consider whether it is a good explanation or not. If it is a good explanation we should not draw the inference of discrimination. If it is a bad explanation we may draw that inference but are not obliged to do so."

10. Mr Purnell, in an economical argument, says that the Tribunal should have said that if an explanation is inadequate, rather than bad, then the Tribunal should usually (and he underlines usually) draw the inference of a racial discrimination. This seems to us hair-splitting with a vengeance. One recollects the well known case of Meek -v- City of Birmingham where it is made plain that a detailed analysis is not an appropriate way of criticising a decision of a Tribunal, and here, we think, to distinguish between "bad" and "inadequate" and for the Tribunal not to have referred to "usually" is over-critical, given that in that paragraph 5, which is only two thirds of a page long, the Tribunal were trying economically, and perhaps robustly, to summarise four leading cases in the area, cases with which they would have been familiar in any event, because they are cases that are cited very familiarly to Tribunals.
11. The broad sense of the summary was, as it seems to us, consistent with authority. Mr Purnell also complains that the way in which the Tribunal directed itself made it too easy for the Tribunal to accept redundancy as the reason for dismissal. But one has to remember that Mr Fleming had the shortest service of the four competitors for continuing employment and it was on that ground that he was quite likely to have been the most obvious candidate for redundancy in any event, quite independent of any consideration of race. And also one has to remember the fact that the Tribunal was impressed that Mr Arnold had almost gone out of his way to find continuing alternative employment for Mr Fleming, a thing which would have been a strange course had he been racially motivated against Mr Fleming.
12. Mr Purnell also asserts that Mr Arnold decided to sack Mr Fleming in order to be able to keep on Mr Henry, the white tennis playing partner. But that argument fails on the facts as found, which we have cited. It cannot be said that that was a conclusion of fact to which no Tribunal properly addressing the evidence could have come.
13. The Tribunal's decision shows all the marks of being a conscientious and careful analysis of the material that was actually laid in front of them. They declined to infer racial discrimination; there were reasons not to do so, and we cannot fault them in point of law, and, of course, we have to emphasise that all we are concerned with here is points of law. Certainly it is not relevant for us to consider whether we would have concluded as the Tribunal did. We have no dominion over the facts, and, looking simply at the law, we are unable to find any error of law that is arguable and accordingly, even at this preliminary stage, we dismiss the appeal.