United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PHILIP ENGELMAN (of Counsel) Messrs Dibb Lupton & Alsop Solicitors 3 Noble Street London EC2V 7EE


 


MR RECORDER LANGSTAFF QC: On 29th February 2000 the Birmingham Employment Tribunal promulgated a reasoned decision extending to well over 40 pages in which it accepted complaints made by the respondents that the appellants had unlawfully discriminated against them on grounds of race and in respect of two of the respondents that they had been unfairly dismissed. At a subsequent hearing it awarded compensation.

1. The length of that decision is no surprise, given that the hearing involved some four week of evidence, 20 days in total, and a very considerable number of documents, only a fraction of which we have been shown at this preliminary hearing.
2. We can express our conclusions shortly, even although to give proper respect to the detailed argument addressed to us by Mr Engelman on behalf of the appellants would take some considerable time. We do so because we are going to accede to the basic thrust of his submissions to us, which is that the case, at least in some respects, merits the fuller consideration which a full Employment Appeal Tribunal may give it.
3. The welter of facts with which it deals should not, in our view, hide the essence of the tribunal decision. As we understand the logic of the decision, so far as the complaint of discrimination on grounds of race in concerned, it is this. It begins at page 39 of the extended reasons (page 42 of our bundle) at paragraph 18.13 in which there are detailed reasons given for upholding the respondents' complaint of less favourable treatment through investigations and appeals processes. The background to this may perhaps loosely be described as office difficulties which had arisen in the office of the appellants in Birmingham, in which there were complaints on the one hand by Diane Rooney and, to a lesser extent, Marion Harper and possibly two other employees, in respect of the conduct and behaviour of a group which consisted of black employees including the appellants. There were two other white employees who were not, although this may be a finding subject to review ultimately, in the clique identified by Diane Rooney as consisting of the respondents and another.
4. The essence of the complaint which found its way to the Employment Tribunal is that Diane Rooney's complaint about the black clique was given more credence and more consideration than were the complaints from the respondents, and at least one of the two white employees we have identified, against Diane Rooney. The Employment Tribunal, without hearing from her, came to the most adverse of conclusions about Diane Rooney and about her honesty. However, the finding which the tribunal made in respect of discrimination was not based upon vicarious liability for any discrimination by Diane Rooney nor was it a direct complaint against her or others. It was, rather, a complaint that in handling the respective complaints of Diane Rooney on the one side and the respondents on the other, the employer had conducted the investigations and appeals process in such a way as to minimise and dismiss the complaints by the respondents that they had been adversely treated because of their race and, on the other hand, to treat the grievance of Diane Rooney with far greater credence than they could possibly have properly entertained. Thus, having set out, as we see it, at paragraph 18 in the decision, the basis for a finding of less favourable treatment, the tribunal continued in paragraph 19 to examine the question whether that was on racial grounds or not. They concluded that it was.
5. Mr Engelman makes complaint that having decided that Kate McAllister or, as they put it "… any of the other witnesses on behalf of the respondents [the appellants] were [not] acting in a deliberate or consciously discriminatory manner" the Tribunal concluded in the next paragraph, paragraph 19.3 of the judgment, that "on the balance of probabilities, a degree of deliberation must have been involved" in treating the respondents less favourably than others of a different race might have been treated. He points to what semantically may seem a difference. In our view there is no proper difference, and what the tribunal is actually saying here is that Ms McAllister was determined not to act in any directly discriminatory manner against the respondents. She was so horrified by the allegation that she might have done that she sought to treat that allegation in a way in which she would not have treated any other allegation of misconduct or any other grievance. By doing so, she was, in effect, put colloquially, covering up, and, if you will excuse the expression in the present context, engaging in a whitewash of what had in fact happened. She sought to see the evidence if she possibly could as non-racial rather than giving it a fair and even-handed consideration, because she could not contemplate the possibility that she, management or the appellants, had in any way been discriminatory. She distorted the facts, so the Employment Tribunal found, to ensure that she could comfortably continue to live with that belief. That, as they set out at paragraph 19.5 is capable of being and, indeed, is, a finding of discrimination to which at least s.3 of the Race Relations Act 1976 applies, constituting victimisation. Therefore, as I have indicated, we see no conflict between the paragraphs which Mr Engelman began his submissions by identifying to us.
6. That said, Mr Engelman has gone on to make two submissions, which we consider warrant further study. First, he submits, that the findings of examples of less favourable treatment at paragraph 18.13, were not conclusions to which an Employment Tribunal was entitled to come to on the evidence before it. This is, in effect, a plea of perversity. It is difficult in any case to sustain and we have been disabled from a fuller consideration of the submissions by reason of the unfortunate and reprehensible lateness of the skeleton argument and the documents which should have accompanied it some long time ago, so that we might examine and scrutinise those documents for what they might tell us. But complaints aside of that nature, which may perhaps indicate why we are at a disadvantage in dealing as fully as we might wish with some of the matters which have been raised so as to be of assistance to the tribunal which ultimately hears this case, we think that there is some possible justification in some of the points that Mr Engelman makes. Whether upon fuller examination the Employment Tribunal will turn out to have been entitled to reach the conclusions it did, should be a matter for them rather than for us.
7. Secondly, Mr Engelman raises the question as to whether or not there was any proper comparison for the treatment given to the respondents. At paragraph 19.3 the Employment Tribunal deal with that and treat or appear to treat as comparators those such as Diane Rooney or Marion Harper and it may be that what the Employment Tribunal had in mind was the expression treats or would treat another which one finds in the 1976 Act ss. 1 and 2. We consider that the points, which Mr Engelman seeks to make in respect of that, are entitled to further consideration.
8. We emphasise that we have not seen all of the documents, which touch upon the particular issues, and we are concerned that some of the skeleton, which has been addressed to us by Mr Engelman, may not perhaps convey a proper and accurate flavour of some of the evidence. We appreciate that it is difficult to single out incidents, but he took some force from what is contained at paragraph 14 of the skeleton argument addressed to us, in which he took issue with the Employment Tribunal's finding at paragraph 6.7.1 that:

"Essentially, Gary Southall's grievance was not related to himself; it was submitted primarily in support of his black colleagues and the complaints being made against them, which he felt were rooted in racism."

Mr Engelman went on to emphasise to us that that evidence was particularly important because, having been misrepresented, the actual grievance having been different, it evidenced strongly the fact that Diane Rooney was not racially discriminatory.

9. We feel that had the extracts upon which Mr Engelman relies being placed in context (we have in mind pages 569, 570 in particular and indeed, the initial complaint at page 494, these references being references to the numbering before the Employment Tribunal), it would be seen that the Employment Tribunal were fully justified in coming to the conclusion which they did in respect of that matter. We mention this because it may be helpful to give an indication as to how we propose that the matter should proceed before the Employment Appeal Tribunal.
10. We give permission to the appellants to pursue this appeal before the full appeal tribunal. The issue to be whether there was sufficient material, which could properly justify the findings to which the Employment Tribunal comes at paragraphs 18.13 and 19.4 of the decision. We think it would be helpful that when the bundle is prepared for the full hearing that there also be a skeleton prepared by Mr Engelman or those instructing him which focuses upon the allegations of fact there made and the detailed reasoning as to why it is said that there was not evidence to support it. We think that documents which are said to substantiate those views should be limited to those which in fact do tell upon those particular issues and only upon those issues, but that some care, given our remarks about that part of the skeleton to which we have drawn attention, be taken to place the documents fairly in context. That will need to be done, to avoid the delay that we have had today in looking through and scrutinising the documentation, at least 14 days prior to the hearing date. It must be in the hands of the respondents by that date so that they, for their part, may no later than four days prior to the hearing be able to respond with any selection of documents of their own which they say fully justify the conclusion to which the Employment Tribunal came. So that the issue as to perversity and evidence may properly be explored.
11. We need make no specific directions as to the examination of the comparator issue, for which, as I have indicated, we also give permission to proceed, save that we would welcome a redrafted Notice of Appeal which contains, (we understand it is likely to do so in paragraph 7) a statement of that ground of appeal and a skeleton setting out the argument in fuller detail than that which we have considered today.
12. We do not consider that there is any merit in the other grounds, which have thus far been advanced to us. We would hope that in dealing with the allegations which we do give leave to proceed on, it is possible to focus upon those matters which are of significance, five or six or seven or eight if possible, so that the argument before the full appeal tribunal may be structured and focused. It is particularly important that that should be so in a case such as this where it may be that every fact has some importance, but certain that a tribunal is going to be assisted by those facts which have the greatest importance and are likely to be decisive.