& Ors
At the Tribunal | |
Before
HIS HONOUR JUDGE J ALTMAN
MR S M SPRINGER MBE
MISS S M WILSON
MR A JABBER |
APPELLANT |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellants | MR C GRUMBALL (solicitor) Messrs Underwoods 83 / 85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF |
JUDGE ALTMAN
"Was the complainant treated less favourably then an actual or hypothetical comparator of different racial origins in circumstances where the case of the complainant is the same or not materially different from that of the comparator (Section 3(4))? It follows that it would be necessary for the tribunal to identify an actual or hypothetical comparator complying with section 3.4."
"Where the case of the complainant is the same or not materially different from that of the comparator"
"Both (Appellants) also relied upon alleged incidents involving white employees and disparity of treatment. It was said that Mr Baker, the Service Setter on the shift in question, had previously committed similar acts: A Mr Biggs gave evidence under witness summons for the (Appellant) that, on the day after the incident when Mr Baker had also been suspended, he had told Mr Biggs that he had placed a beam against the safety switch a few weeks before and that Mr Baker had told Mr Day of that incident. The other allegation was that, at some unidentified time, a Chris Collins had placed tape over a safety switch. The Respondents denied that Mr Biggs had told Mr Day that he had placed a beam against the safety switch but said that he had seen another employee so doing as se t out above. Mr Day, when asked what Mr Baker had told him seemed to find it difficult to give a definite answer to the question as to whether Mr Baker had told him that he had committed a similar incident. When pressed to give a direct answer by the Chairman, he denied that Mr Baker had made such an admission. The (Appellants) also alleged that the real reason for their dismissal related to redundancy as some employees were made redundant subsequently."
In their aid, the (Appellants) said they were treated inconsistently with the other incidents relating to Mr Baker and Mr Collins and, further, that the incident was not so serious that employees of their seniority and good record should have been dismissed."
"There was no clear evidence that Mr Collins had been involved in any such incident. His personnel file was checked and found to be clear. It appears that there might have been some incident in respect of the Swager machine many years ago but the Tribunal does not consider it relevant to the fairness of dismissal of these (Appellants)."
"The Tribunal found it difficult to determine what Mr Baker had told Mr Day in respect of whether he had on a previous occasion temporarily impeded the button when he was carrying out maintenance. Mr Baker himself did not give evidence and the notes of the interview, where it was alleged that this was said, were not available. Mr Day's evidence on this point was not entirely satisfactory. However, even were it the case that Mr Baker had admitted that previously he had temporarily taken a similar action, and no disciplinary action was taken against Mr Baker, the Tribunal does not consider that this makes the dismissal of these (Appellants) unfair."
"Would have to establish that they had been treated less favourably than (the Respondents) treated or would treat other persons of a different racial group on racial grounds."
"In this case the Tribunal do not make a finding of less favourable treatment of these (Appellants). Focusing on the incident which led to their dismissal, on their own admission Mr Baker knew nothing of it and that was the reason why he was not disciplined. The evidence does not suggest that Mr Day was guilty of favouritism towards Mr Baker, as he initially suspended him alongside the suspension of the (Appellants). As recorded above, the Tribunal find no evidence which directly or indirectly points to race discrimination in this case and is strongly of the view that the action taken against the (Appellants) arose out of their own conduct and was not influenced by their colour, race, nationality or ethnic or national origin."
"Once you (Appellant body) detect that there has been a misdirection, particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection."