United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	BEN UDUJE (OF COUNSEL) INSTRUCTED BY: SOUTHWARK LEGAL (CONTRACT) SERVICES SOUTH HOUSE 30-32 PECKHAM ROAD LONDON SE5 8UB


 


JUDGE WILSON:-

1. This has been the preliminary hearing of the proposed appeal by the Respondent to the application of Mr Mungul. He was employed as a Residential Care Manager from July 1988 until the end of that employment which he says was a result of sex or race discrimination and there are set out seven complaints which were dealt with in evidence and by the Employment Tribunal.
2. The seventh complaint was that he had been differently and less favourably treated than Theresa Finn and on that complaint the Employment Tribunal found against the Applicant. The evidence on the other matters led to their conclusion that he had been discriminated against contrary to the Race Relations Act although not discriminated against on grounds of sex. The Employment Tribunal also found that there was a continuing course of conduct with the result that those matters which took place more than three months before the first Originating Application were validly presented. The Tribunal also found that Mr Mungul had been unfairly dismissed.
3. The Respondent to these applications now seeks to appeal against the findings. The grounds of the appeal are contained in the skeleton argument presented by Mr Uduje together with a Notice of Appeal. So far as the questions asked are concerned, we deal with both of them and answer them.
4. Mr Uduje has amplified what he set out in his skeleton argument orally in his submissions to us today, but the first question he poses is whether it is permissible in law for a Tribunal to draw an inference of unlawful discrimination in the absence of evidence of comparable treatment, real or hypothetical which was less favourable to the complaint. The answer to that question lies in the recent decisions of Effra which was heard in the Court of Appeal on 5^th November 1999 and the earlier case of Glasgow City Council v Zafar which was reported in the House of Lords [1998] ICR at 120 HL.
5. So far as this case is concerned, the Tribunal found that there was a comparator named Mr Archibald. They found that the way in which Miss Peebles, the line manager for the Applicant, and indeed for Mr Archibald, had dealt with similar complaints against him and against the Applicant, was different and less favourable. They found that with regard to the racist language which Mrs Paul alleged the Applicant had used to her, he was never confronted with it, although she testified that she thought that he could have spoken in that way because of her belief that he had been insensitive on other occasions. Later, on cross-examination, when she was pressed for an explanation, she accepted that although it would have meant going back to Mr Mungul there would have been no real difficulty about it. She said that she was not sure that he had said what was alleged and therefore she did not think that she could discuss it with him.
6. We have quoted from paragraphs 19 and 20 of the Extended Reasons and we note that the Tribunal found those explanations inconsistent and unconvincing. They also clearly demonstrate a different and less favourable way of treating Mr Mungul by comparison with the way in which Mr Archibald was dealt with when he was confronted over his remarks.
7. The second question is whether it is legitimate and/or sufficient for a Tribunal to draw an adverse inference of unlawful discrimination from its perception of the alleged discriminator's attitude to issues of race formed from the alleged discriminators non-confrontational style of management, that is describing a racist remark as a politically incorrect statement. The skeleton argument is here referring to the view formed of Miss Peebles by the Tribunal. What we say about that is that the question deals with only one piece of the jigsaw which went to make up the picture which the Employment Tribunal clearly formed of the witness. The portions of the Extended Reasons to which I have already referred, provide a further example of that.
8. In our view there is no prospect of success on full argument, so far as the finding of discrimination on grounds of race is concerned and that part of the appeal is dismissed forthwith now but Mr Uduje went on to deal with the inadequacies of the decision and the Extended Reasons so far as the additional issue of unfair dismissal is concerned.
9. We note that the Employment Tribunal dealt with that aspect of the matter, which is an important and fundamental aspect, in four short paragraphs at the end of a decision which covered over 7 pages A4 typescript. We consider that the matter should go forward for full argument on the following question:-

Whether the Employment Tribunal erred in law in disposing of the issue of unfair dismissal in the summary manner which is disclosed by paragraphs 32, 33, 34 and 35 of the Extended Reasons.

10. We direct that for the full argument there shall be provided that part of the Chairman's notes which relate to the evidence heard by the Employment Tribunal about the unfair dismissal issue, and in particular, additionally, there must be provided to the Employment Appeal Tribunal the witness statement of Miss Susan Toothill and copies of the discipline and capability procedures to which reference is made in the Extended Reasons. We consider that the matter should be categorised C and should be given a time estimate of 3 hours.