United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B CARR (of Counsel) Messrs Levi & Co Solicitors 33 St Paul's Street Leeds LS1 2JJ
For the Respondents	MR S GLOVER (of Counsel) Messrs Attersolls Solicitors 40 West Street Reigate Surrey RH2 9BT


 


MR JUSTICE BURTON: This a full hearing of an appeal brought by Mr Mirza, the Applicant in the case below, against Nipson Printing Systems (UK) Ltd, from a unanimous decision of the Employment Tribunal at Leeds, chaired by Mr Pickard, which sat over five days in November 1997.

1. The claims that were brought before the Employment Tribunal were twofold. First, there was a claim for unfair dismissal and, secondly, there were complaints described in the decision as racial discrimination, victimisation and harassment. The claim for unfair dismissal succeeded, but the Tribunal awarded no compensation. The racial discrimination claims were dismissed.
2. In a lengthy decision, the Chairman set out what he found to be relevant facts but not, as he put it, all of the evidence that was heard by the Tribunal, in paragraph 2, to which I shall return. The Tribunal concluded, on the basis of those facts, that the dismissal was unfair "on purely technical grounds". Its conclusion, so far as the Appellant was concerned, is put in this way by Mr Pickard:

"The Tribunal unanimously came to the view that the applicant was a stranger to the truth and a liar. His dismissal was brought about entirely by his own dishonest behaviour and the Tribunal is not prepared to award any compensation. In addition, any further disciplinary process whether by way of appeal or otherwise would have still resulted in dismissal."

3. The circumstances of the dismissal in brief began in the Autumn of 1996 when the Appellant returned to work on 7th October, having been away for a period, to find that certain parts and pieces of useless machinery, accumulated over the years, that had been kept by him in his workshop, together with certain parts of machines which had been left or given to him by customers, were cleared out while he was on holiday. When he returned to work, he was told that certain of these parts had been thrown away and he expressed himself not to be pleased. He had a meeting with Mr Manuel, the managing director of the Respondents, so that he could put forward his complaints. The Tribunal found in paragraph 2(l) of their decision that:

"the meeting took place on 17th October. The applicant told Mr Manuel that he was unhappy with Mr Haywood and Mr Tranmer [two of his superiors] but insisted he wished the meeting to be confidential. … At no stage did the applicant say his complaints were based on racial discrimination."

The complaints that he made about the fact that there had been this clear out developed. He asserted that the items disposed of had been valuable. He further asserted that he had had to compensate their owners in substantial sums. Mr Manuel had indicated to him, in an attempt to pre-empt or solve any complaint, that if there was any compensation that needed to be paid as a result of the clear out, then they would pay it, anticipating, no doubt, some very small sum. But in fact dishonestly, as the Tribunal found, the Appellant built up a very substantial claim, based upon allegations both of the value of the goods and as to his liability to and indeed having reimbursed third parties. When that was investigated, the third parties first of all denied having left goods or being reimbursed in respect of goods, and then in due course, when that failed, it appears that the Appellant offered yet other parties money to say that the goods belonged to them when they did not. In those circumstances and as a result of that sustained period of dishonesty aimed at extracting money to which he was not entitled from his employers, the dismissal was found, albeit procedurally unfair, not to lead to any compensation.

4. The claim, in addition, as I have indicated, was that the Appellant had been racially discriminated against. It was based upon a series of allegations which were dealt with by the Chairman, again, in paragraph 2 of his decision. There were some small incidents which were expressly recited by the Chairman and found to have no foundation, so far as allegations of race discrimination are concerned, these being a supermarket incident and an incident involving the Christmas lunch party.
5. The two incidents which were highlighted in the course of the five day tribunal hearing are what I will now call the 'Heywood' incident and the 'Hall' incident. It is clear, and this has become even clearer as result of submissions today by Counsel, that the primary concentration before the Tribunal was on the dismissal: first, that it was unfair, and should lead to substantial compensation per se, but further, that it was suggested that the course of conduct, as it was being alleged, by the Respondent of race discrimination had led to the dismissal, so that it could be said that the dismissal itself was part of the detriment suffered by the Appellant as a result of racial discrimination, such as to lead to even more substantial compensation. To that extent, therefore, the incidents which one might call 'along the way', were less concentrated on, it seems clear to us, than the overall allegation of unfair dismissal, and race discrimination leading to dismissal. That said, they were naturally dealt with in the evidence and were dealt with briefly in the decision.
6. The first incident, called the 'Heywood' incident, occurred in October 1995. There was a witness statement of Mr Heywood that is relied upon by Mr Carr, who has argued the matter very forcefully today on behalf of the Appellant, as showing what the evidence was that Mr Heywood gave, which he says was not adequately dealt with by the Tribunal. He refers us to paragraphs 6 and 7 of that statement in which Mr Heywood says as follows:

"6. I had noted for some time that Mr Mirza's timekeeping was rather poor and in October 1995, on a day when he was late in again, I decided to speak to him about it. He responded that I did not criticise other members of the team if they were late. I told him that his timekeeping record was far less satisfactory than the others. I was admittedly over the top with what I said, but Mr Mirza, in his application to the Tribunal, uses words such as charged, rage, naked hostility, uncontrolled rage, verbal assault, prodding fiercely and fists in a way that is designed to heighten what was a heated argument into a direct and physical assault on his person, with racial overtones, for the benefit of his application. There is very considerable exaggeration in his account. There was no physical assault as Mr Mirza alleges (I pointed at him quite closely but did not prod him), but when he went on to accuse me of picking on him because of his colour (something which I absolutely deny) I did tell him that he had an attitude problem, and that he had a massive chip of his shoulder because of his colour. Tempers were raised during this exchange, which I regret. In the heat of the argument I threatened Mr Mirza with dismissal, but it was a rash comment which was not meant.

7. After this incident I was reprimanded by Lawrence Shaw. He told me that I should not allow a situation with a member of staff to get out of control, and that in future I should deal with such situation in a proper manner."

7. The Chairman dealt with this shortly in paragraph 2(h) of his decision in which he says as follows:

"In October 1995, the applicant was 10 or 15 minutes later for work. Although Mr Haywood was fairly relaxed about time-keeping, it was apparent that the applicant had been coming late too often. When Mr Haywood protested about this lateness, an argument commenced in which both parties shouted and used bad language. Mr Haywood is a large man and the applicant is fairly slight. Mr Haywood admits saying words to the effect that "I employed you and I can sack you". He immediately informed his then superior, Mr Shaw, that he had lost his temper and gone over the top whereupon he admits Mr Shaw called him a silly prat. Neither party apologised to the other. From that date the applicant says that Mr Tranmer and Mr Haywood treated him coldly and would only speak to him on business. On the other hand, Mr Haywood and Mr Tranmer say that the applicant became totally silent and would only speak to them when necessary."

8. Mr Carr submits that there was inadequate dealing in that paragraph with the evidence because, although it is true to say that the Tribunal entirely rejected the Appellant's evidence, as I have already quoted, and was not prepared to accept that he was telling the truth at all, nevertheless there was an admission by Mr Heywood that he had, after, or in the course of, the argument between himself and the Appellant, told the Appellant that he had an attitude problem and that he had a massive chip on his shoulder because of his colour. That, Mr Carr says, should have been expressly dealt with by the Tribunal and was not, and consequently there was an inadequate dealing with one of the racial discrimination allegations. He has had leave to appeal in respect of that specific allegation, though not in respect either of the unfair dismissal allegations or any of the other race discrimination allegations, save the one with which I will now deal, namely the 'Hall' incident.
9. So far as the 'Hall' incident is concerned, this occurred in December 1996. By this time the Appellant had already, it seems, launched himself on his dishonest campaign to extract money from his employers, which had commenced with his meeting in October 1996 with Mr Manuel when he had made the complaint about the disposal of the bits and pieces while he was away.
10. The interview with Mr Hall is described in this way by the Tribunal in paragraph 5:

"Apart from the interview with Mr Hall who was trying to get to the bottom of the disagreement between the applicant and his superiors, there had never been any suggestion that the fact that the applicant was of Asian extraction had any consequence in the relationship between him and any of his colleagues. He was considered an excellent tradesman not easily replaceable. There were redundancies in 1994 and 1996 when other field engineers were made redundant but the applicant was retained. When it was thought he was looking for another job because he had marked an advertisement, his superiors were anxious to know whether he intended to leave because his going would have caused expense and difficulty. At the interview with Mr Hall he had said that he had heard second-hand that Mr Tranmer had told a customer's employee that "that black bastard was causing trouble' and Mr Hall had tried to smooth things over by saying that he sometimes said "play the white man". Although that was a totally inappropriate thing to say in the circumstances, there had been no previous complaint and the Tribunal takes the view that the applicant, having been dismissed, has been prepared to tell untruths about the latter part of his employment and that there is no basis in fact for his claims to have been discriminated against, or harassed or victimised. His claim of discrimination in any form totally fails."

11. I shall deal first with the appeal in respect of the 'Hall' incident. It seems to us that this incident, which is fully described in paragraph 5, is satisfactorily dealt with by the Tribunal. The allegation that is presumably made by the Appellant is that within section 1(1) and 4 of the Race Relations Act 1976 there was discrimination on racial grounds against the Appellant by virtue of this incident. Section 1(1) contains the following:

"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if-

(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; …"

So far as section 4(2) is concerned:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

(c) by … subjecting him to any other detriment."

It is plain to us that the Tribunal was there unanimously concluding that:

(a) there was no less favourable treatment; and

(b) there was no detriment.

12. The circumstances of the incident, and I repeat once again that it is quite plain that the evidence of the Appellant was rejected by the Tribunal, were that Mr Hall was, as the Tribunal found, trying to get to the bottom of the disagreement between the Appellant and his superiors, which had reached its nadir at that stage, with the purported temper or irritation of the Appellant at the removal of what he was then saying to be valuable goods. It was, the Tribunal found, the first time that there had been any suggestion that the fact that the Appellant was of Asian extraction had any consequence in the relationship between him and any of his colleagues. It was as a result of Mr Hall asking the Appellant whether he thought that race played any part in that difficulty, that it was so proffered by the Appellant. On the findings by the Tribunal, it was in an attempt to smooth things over that Mr Hall said that he sometimes used the expression "to play the white man" and that that did not carry, in Mr Hall's belief, any racial connotations and consequently the Appellant should not consider that such use of language should upset him.
13. Mr Carr has pointed out that the intention with which words are used is not in any way determinative in a racial discrimination case, but that the question is objective so far as behaviour is concerned and certainly subjective so far as the feelings of the Appellant is concerned, but set within the statutory framework. The Tribunal concluded that there was no basis in fact for a claim of discrimination.
14. It is plain to us that, although this was not expressly spelt out in relation to this incident, the Tribunal, setting this incident, as it did, in December 1996 in the middle of what in fact was the cause of the dismissal, namely the dishonest conduct of the Appellant, was concluding:

(1) that by saying what he did in the context in which he raised it, Mr Hall was not treating the Appellant less favourably than he treated or would treat other persons, but was genuinely attempting to assist by enquiring into problems which in fact, as it turned out, were aggravated if not caused by the Appellant's dishonesty; and

(2) that no detriment was suffered by the Appellant, in that the cause of any detriment he suffered had no relationship to this one short conversation but resulted from his own dishonesty.

In those circumstances, albeit not explicitly set out by the Tribunal, it is clear to us that this was a perfectly and satisfactory finding of no racial discrimination by virtue of the 'Hall' incident.

15. I turn back to the 'Heywood' incident in October 1995. Mr Carr submits, so far as this is concerned, that there must have been detriment as a result of this conversation, because it is recited that from the date of the conversation or argument between Mr Heywood and the Appellant, accepting the Respondent's evidence, as the Tribunal did, and not the Appellant's, Mr Heywood and Mr Tranmer say that the Appellant became totally silent and would only speak to them when necessary. That led, Mr Carr submits, to a situation in which there was detrimental treatment of him by the employer, which led later to his meetings with Mr Manuel and Mr Hall and also to other incidents in his employment, such as the suggestion that he might go to Germany to be involved in their business there.
16. The submission, to which I have referred, is that there was an inadequate treatment by the Tribunal with the facts, given the fact that there was an admission by Mr Heywood of the words which I have above referred to. Mr Carr submits that there is no sufficient finding in the decision which would enable him to know, within the well known concept of Meek v City of Birmingham District Council [1987] IRLR 250, why the parties have won or lost, or to enable this Tribunal to gather the reasons in order to be satisfied that they exist. He submits that the Employment Tribunal ought to have found, in terms, that there was discrimination, on the basis of an allegation made on grounds of race that the Appellant was late arriving, which was met by the reaction that that allegation would not have been made against fellow employees and it must therefore have been made because of his colour; and/or that what Mr Glover, who has equally well argued his corner for the Respondent, described as Mr Heywood's robust response to an unfounded allegation of racial discrimination was itself discriminatory, because a response to a complaint by a black employee that he was only making the complaint because he was black was itself a racially discriminatory robust reaction. Mr Carr submits that there was then detriment by virtue of the subsequent treatment.
17. Mr Glover submits, however, that it is apparent that the Tribunal cannot have ignored or disregarded the evidence before them, which was contained in the evidence of Mr Heywood which was admitted by him, and indeed that it was the subject of submission both by him and Mr Mughal, who was legally qualified but not a fulltime lawyer who had represented the Appellant below; and that the only reason that there is not a detailed exposition by the Tribunal of its conclusions is that this formed only a small part in the overall case which stretched over five days and the fulcrum of which was the allegation both of unfair dismissal and indeed of racial discriminatory grounds with regard to the eventual dismissal. He further points out the finding of the Tribunal that there was no mention of race discrimination after October 1995 at all, either in the meeting with Mr Manuel in October 1996, or in December 1996, except when it was raised by Mr Hall, and he submits that the Tribunal concluded that it was only after the dismissal that a retrospective case based on race discrimination was put forward by the Appellant to increase his chances of success and/or increase the amount of his compensation, but which was, on any basis, disbelieved by the Tribunal.
18. We appreciate that, on the one hand, it is necessary for a Tribunal to make plain its reasons and, on the other hand, that this is the more difficult where a whole spread of allegations are made stretching over a period of time, and some allegations are less concentrated on than others because they are not the main part of the claim.
19. It is equally clear to us that it is possible and indeed necessary not to be stringent in the reading of a Tribunal's decision, but to be clear that one can read out of the Tribunal's decision, provided that the facts are clearly found, what the reasons for a conclusion in fact were, provided that conclusions are made. It is clear to us that the Tribunal in paragraph 5 were satisfied that:

"… there is no basis in fact for his claims to have been discriminated against, or harassed or victimised."

Those allegations were not substantial in number, but one of them included the 'Heywood' claim. I have already dealt with the 'Hall' claim in which too the Tribunal did not set out its reasons in as clear a form as one might have wished, but nevertheless did so in such a way that they can be deduced.

20. We are satisfied that the Tribunal had well in mind the evidence of Mr Heywood, which, as has been pointed out, was not challenged. We are satisfied that the conclusion that the Tribunal reached in paragraph 2(h) and the last two lines of paragraph 5 was that there was no basis for the allegation of racial discrimination arising out of the 'Heywood' incident. So far as the initial row was concerned, Mr Heywood was making a complaint of late timekeeping by the Appellant, and that criticism was made by Mr Heywood and, it appears to us, clearly accepted by the Tribunal, on the basis that the Appellant had been "coming late too often", i.e., more often than other employees, as was made clear by Mr Heywood in the evidence which the Tribunal accepted.
21. There is no express reference to the 'robust reaction', as it is put, of Mr Heywood, save that he used "bad language". But it seems to us clear that what the Tribunal is concluding is that there was no discriminatory treatment of the Appellant by virtue of Mr Heywood's rejection of his complaint, either as to its substance or as to the manner of its being carried out, certainly on racial grounds, and that the Tribunal is taking into account the fact that neither then nor at any time thereafter, until the matter was raised by Mr Hall, and even then not by reference to the 'Heywood' incident, was there any suggestion that there had been racial discrimination by Mr Heywood in this incident. It is true that the Tribunal did not in terms say that the admitted words used by Mr Heywood should not be treated as racially discriminatory, because they did not amount either to the treating of the Appellant less favourably than others would be treated or that the Appellant was not subjected to a detriment. But it is quite plain to us from the way in which the incident is found to have occurred, the justified complaint of lateness and the justified reaction of Mr Heywood, coupled with the absence of any complaint of racial discrimination arising out of it at the time and above all with the conclusion at the end of the decision that there is 'no basis in fact' for the Appellant's claims to have been discriminated against, that taken, in the round, this decision, albeit it could have been more fully expressed, contains within it the evidence and the reasons on the basis of which this allegation was rejected by the Tribunal. We do not conclude that there are any grounds to appeal against it. The appeal is therefore dismissed.