United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A BROWN (of Counsel) Commission for Racial Equality Elliot House 10/12 Allington Street London SW1E 5EH
For the Respondents	MR T KIBLING (of Counsel) Messrs DLA Solicitors 3 Noble Street London EC2V 7EE


 


JUDGE REID QC:

Preliminary

1. This is an appeal from a decision dated 26 February 1999 of an Employment Tribunal held at London (North). The Tribunal held that Mr William Jack's complaints of race discrimination and victimisation failed and should be dismissed and that his further complaint of wrongful dismissal also failed.
2. From this decision he appealed. The basis of the appeal was refined following an ex parte preliminary hearing (although the notice of appeal, which had already been amended once, was not formally re-amended). Argument on the appeal concentrated on the matters set out in the Appellant's skeleton argument.

Background facts

3. Mr Jack was employed by the Respondent company ("Pinkertons") as a security officer at various sites of their clients. His employment began on 31 May 1996 and ended on 21 May 1998. After his induction training he was employed first at Site 102 (Visa International in Kensington High Street) from 9 June to 12 June 1996. On 13 June he was posted to a site off the M3 which he never in fact reached because his car burst a tyre on the way there. From 14 June to 15 October 1996 he was employed at Site 395 (Videotron, Hammersmith) and after a gap on leave following a family bereavement he was posted to Site 398 (Videotron, Acton) where he remained until January 1998. From 11 January 1998 he was absent from work because of sickness, and having not co-operated with Pinkertons in arranging a suitable return to work assignment his employment was terminated on 21 May 1998.

Mr Jack's complaints

4. Mr Jack complained before the Tribunal that he was removed from Site 102 because of his race; that Pinkerton' s discriminated against him and other black and Asian workers at Site 395 because only they (and not white employees) worked at the gatehouse there which was said to be a particularly unpleasant assignment; that at Site 398 he and a fellow black worker, Mr Ibuanokpe, were discriminated against because the rotas were changed and so arranged that Mr Morville, a white employee, got the plum part of the job, being on the gate 7am to 7pm Monday to Friday; that he was victimised because of his complaints by being called to a disciplinary interview over his use of the telephone on site; that Pinkertons did not deal with his complaints of discrimination; and that his dismissal was an act of race discrimination and victimisation. He further complained that taken as a whole the events over the course of his employment constituted a continuing act of discrimination.

The Tribunal decision

5. The Tribunal produced a lengthy and careful decision. The decision set out the law accurately and proceeded to deal with each of the matters complained of individually. The Tribunal also looked at the totality of the matters complained of to determine whether there was a continuing act of discrimination.

The Tribunal concluded:

(1) In relation to Site 102: Mr Jack was moved at the insistence of the client, Visa International, which expressed the view that he did not have sufficient communication skills, especially over the telephone. Mr Hobbs of Pinkertons (and the Tribunal) could see nothing wrong with Mr Jack's communication skills, but the Tribunal concluded that Pinkertons could do nothing except comply with the customer's demand. The majority of the Tribunal concluded (a) that Mr Jack's transfer was genuinely because of the demand of the client about which Pinkerton's could do nothing; and (b) that there was no evidence from which an inference of race discrimination could be drawn.

(2) In relation to Site 395: the Tribunal accepted that there were other "equally less-regarded sites ... to which white guards were sent" and that Mr Jack's claim failed in respect of this site.

(3) In relation to Site 398: Pinkerton's contract manager, Mr White, tried his best to resist the rota changes insisted on by the client's representative, Mr Lorraine, and as a result the management of the contracts was removed from him at Mr Lorraine's insistence because he protested too much. It was Mr Lorraine who insisted that Mr Morville was on duty from 7am to 7pm Monday to Friday. This he did because Mr Morville had been longest at the site and had an intimate and deep knowledge of how the client company operated and was well-known to the managers and staff of the client company. Mr Lorraine insisted on similar arrangements at all six Videotron sites. The Tribunal accepted that Pinkertons had to fall into line with Mr Lorraine's demands at all the Videotron sites. Pinkerton's tried to meet Mr Jack's complaints by offering him a transfer to another site, Site 105 (Associated News), but he refused and tried to insist on remaining at Site 398 with the original rotas despite the fact that he knew that the rotas were changed at the client's insistence. The Tribunal found that the rotas impacted equally on all staff, black and white, working at Videotron sites equally and there was no race discrimination against Mr Jack. They further held that there was no victimisation of Mr Jack in requiring him to attend a disciplinary interview in respect of his use of the telephone at this site.

(4) In relation to his dismissal: the Tribunal held that there was no discrimination and in the circumstances Pinkertons would have dismissed any other employee regardless of race or whether he had alleged race discrimination or victimisation by the employer.

(5) In relation to the failure to investigate Mr Jack's race discrimination complaint: the Tribunal concluded that the failure of Pinkertons to deal with Mr Jack's complaint to the Chairman for a period of two months was due to the upheaval in Pinkerton's management. The Chairman, the Chief Executive and the Director of Human Resources all left shortly after the making of the complaint. When the letter eventually came to the attention of Ms Quirke, the Personnel Manager, she responded promptly. They also held that a Mr Malik was not a proper comparator in relation to this complaint. Mr Malik had his grievance dealt with promptly by Mr Phillips. It was one that Mr Phillips could deal with, whereas Mr Jack's grievance was one Mr Phillips could not deal with as it had been imposed on Pinkertons by the client.

(6) In relation to the "continuing act" of discrimination, the Tribunal concluded that they were unable to find any evidence of any regime, rule, practice or policy to discriminate against Mr Jack.

The Appellant's complaints on the hearing of the appeal

6. Counsel for Mr Jack argued that in relation to Site 102 the Tribunal was wrong to conclude that Pinkerton's had no choice but to accede to the Client's request to move him. She relied on Burton v De Vere Hotels Ltd [1997] ICR 1 and submitted that Pinkertons had control of the deployment of its staff. Since, it was submitted, Pinkertons were aware that the ground on which Visa International asked for Mr Jack to be moved was not sustainable, they should have declined to move him. It was asserted that because Mr Jack's replacement was white, the replacement appeared to result from Mr Jack's ethnic origin. Pinkertons were simply accepting a direction made on racial grounds and so were aiding and abetting discrimination by Visa International.
7. In relation to Sites 102, 395 and 398 it was argued that the Tribunal was perverse on the evidence in concluding that there was not discrimination against Mr Jack because of his ethnic origins. Counsel complained that matters which were relied on by Pinkertons were not referred to in witness statements exchanged before the hearing, that Pinkertons had been late in disclosing documents, that the Tribunal accepted evidence for which there was no documentary support, and that one of the witnesses called on behalf of Pinkertons (Mr Bassom) had resiled from a part of his witness statement. All these were, she submitted, matters of which the Tribunal failed to take proper account. In particular she criticised the Tribunal because it had apparently accepted the evidence of Mr Bassom (which she submitted had been crucial). She accepted that in relation to this submission she faced an "uphill task".
8. Counsel then submitted that the Tribunal erred in concentrating on "the failure to go to work" as the reason for dismissal and therefore failed to consider whether non-consideration of Mr Jack's complaint of racial discrimination was itself discriminatory and so a substantial reason for his dismissal. He had been, it was submitted, complaining persistently from August 1997 to March 1998 without getting any response. The Tribunal was also said to have erred in holding that the complaint about rostering ceased to be a live issue on April 1998 when Pinkertons lost the Videotron contracts and they were transferred to Rentokil.
9. Finally counsel submitted that the Tribunal erred when considering the alleged the continuing act of discrimination in not considering whether the individual matters complained of when taken as a whole amounted to a continuing act of discrimination.

The Respondent's Answer

10. On behalf of Pinkertons it was submitted that the Tribunal had considered everything necessary and made all the necessary findings of fact. The Tribunal dealt with each matter of complaint separately and then looked at the totality of the evidence to see if there was a continuing act of discrimination. In essence, counsel submitted, the attack was an attack on the basis of perversity.
11. Having determined that there was no evidence of any regime, rule, practice or policy to discriminate, the complaints other than as to dismissal were out of time. It followed that the Tribunal could only look at them as background evidence in considering whether Mr Jack's complaint in relation to his dismissal was justified.
12. Mr Jack was moved from site 102, it was said, simply because of the requirement of the client. Pinkertons were in no position to refuse to transfer Mr Jack and could not be said to have "subjected" Mr Jack to any detriment by moving him, since they had no control over Visa International. The case was markedly different from the Burton case. If Mr Jack believed he had a case against Visa International under section 33 of the Race Relations Act 1976, he should have brought it. there was, however, no finding that Visa International had given a discriminatory instruction to Pinkertons, and as a matter of fact the majority of the Tribunal had found that Mr Hobbs of Pinkertons had given a genuine, satisfactory and reasonable explanation for Mr Jack's removal from site 102.
13. So far as the dismissal was concerned, there was a finding of fact that Pinkertons would have dismissed any employee in Mr Jack's position, irrespective of his complaints of racial discrimination or victimisation.
14. So far as criticism of the employment of staff at 395 and 398 was concerned, and the delay in responding to Mr Jack's complaints, there were findings of fact which were not perverse and which could not be challenged. It was pointed out that bad or inadequate management practice is not the same as discrimination or victimisation.

The Law

15. The relevant portions of sections 1, 2, 3, 4 and 68 of the Race Relations Act 1976 are set out in paragraph 8 of the Tribunal's decision. In addition it is worth noting that section 7(2)(b) makes it unlawful for a principal to discriminate against a contract worker by not allowing him to do work or to continue to do it and section 33 makes a person knowingly aiding another to do an act made unlawful by the Act liable as "himself doing an unlawful act of the like description".
16. The onus of proof in race discrimination and victimisation complaints is on the applicant on the balance of probabilities. The guidelines on the approach a Tribunal should adopt in race discrimination complaints are now well known. They were set out in King v Great Britain-China Centre [1992] ICR 516 at 528E to 529D and were approved by the House of Lords in the Zafar case [1998] ICR 120. The proper approach to victimisation complaints was set out by the Court of Appeal in Aziz v Trinity Street Taxis Ltd [1988] ICR 534. The authorities on "continuing acts" of discrimination are, as the Tribunal correctly observed, Barclays Bank v Kapur [1991] ICR 208, Sougrin v Haringey Health Authority [ 1992] ICR 650 and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. It is important to note that section 68(7) (b) is in these terms: "any act extending over a period shall be treated as done at the end of that period". Where there are a number of discrete acts of discrimination they cannot be lumped together as a continuing act, although they may be used as background evidence to show that other acts were in fact discriminatory. Section 68(7) is not a way of artificially extending the limitation period in respect of acts of discrimination which are not part of a continuing act.
17. Burton v De Vere Hotels [1997] ICR 1 on which Mr Jack's counsel placed reliance is authority for the proposition that the question whether an employer has "subjected" an employee to discrimination is a matter for the Tribunal in its capacity as an industrial jury. The tribunal have to ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented or reduced its extent.
18. If an appellant is to make good an appeal on the ground that a Tribunal's decision was perverse, he must show that the decision was one which no reasonable Tribunal could fairly have reached: see Stewart v Cleveland Guest (Engineering) Ltd [1994]IRLR 40 and Levy v Marrable & Co Ltd [1984] ICR 583.

"Continuing act"

19. The members of the tribunal clearly had the law well in mind when they made their decision that there was no continuing act of discrimination. Not only had they referred to the relevant authorities at page 12 of their decision, but the language used when they turned to consider whether there was a continuing act was taken straight from the judgment of Mummery J in Owusu. In these circumstances it is impossible to accept the suggestion hat the Tribunal did not direct its mind to the correct test and failed to look at the entire history of the matter as well as the individual items of complaint taken singly in reaching their conclusion.
20. Their conclusion that they could not "find any evidence of any regime, rule, practice or policy to discriminate against the Applicant which was operated by the Respondent at the material time" was therefore fatal to Mr Jack's claim in respect of all but two of his complaints, whether or not the Tribunal were correct in their view that these matters were not shown to be free-standing acts of discrimination.
21. Their conclusion was made against a background in which the complaints made by Mr Jack were of different types: one that he was moved from a site because of his race, another that he was discriminated against by being made to work at an unpleasant site, another that he was discriminated against by unfavourable rostering. In each case the Tribunal made findings on the evidence which was before it and reached conclusions which (as we hold below) it was entitled to reach. The conclusion that there was no evidence of any regime, rule, practice or policy of discrimination was one that could not properly be attacked as being perverse.
22. The consequence of this was that of the acts of discrimination and victimisation alleged, the only acts alleged which fell within the time limit of three months before the commencement of proceedings and so within the jurisdiction of the Tribunal, were the dismissal and the failure to investigate Mr Jack's race discrimination grievance.

Site 102

23. In the light of the Tribunal's decision that there was no continuing act of discrimination and our approval of it, it follows that complaint relating to Site 102 was out of time. However since the complaint was the subject of considerable argument we should express our views on the point.
24. The majority of the Tribunal formed the view that Mr Hobbs, Pinkerton's witness, gave a genuine, satisfactory and reasonable explanation of Pinkertons moving of Mr Jack from site 102. It was as a result of Visa International's request. The Tribunal unanimously found as a fact that it is quite common in the security business for the client to make such peremptory demands and the security firms have no option but to act in accordance with those demands provided that the removal does not result in a breach of the law. Here, the Tribunal found, there was no overtly racial reason for demanding Mr Jack's removal. The site was described as a "blue chip" site and, as the Tribunal observed, if Pinkertons had been minded to discriminate against Mr Jack, they would not have sent him there.
25. The majority of the Tribunal took the view (as they were entitled to in the evidence) that in the face of a demand for Mr Jack's removal on what was apparently a valid reason, there was effectively nothing that Pinkerton's could do, and that an investigation of the client's asserted reason for asking for Mr Jack's removal would have been pointless. The fact that Mr Hobbs did not agree with Visa International's assessment of Mr Jack's competence did not mean that a different view could not be genuinely held by the client. The suggestion that Pinkertons knew that the ground of complaint was unsustainable is incorrect. The question of Mr Jack's communication skills was one on which it was possible for Visa International's view to differ from that of Mr Hobbs. The moving of Mr Jack was the consequence not of discrimination by Pinkertons on the ground of race, but of the necessity following the demands of the customer. The policy that "The customer is always right' in such circumstances is not racial discrimination, though it may sometimes be bad business practice. The majority of the Tribunal were entitled to hold that there was no evidence from which an inference of race discrimination by Pinkertons could be drawn.
26. The fact that there was no evidence from Visa International (and therefore there might be a suspicion that their request was in truth racially motivated) is irrelevant. It cannot be said that Pinkertons subjected Mr Jack to any discrimination (if such there was) by Visa International. There was no evidence to suggest that the discrimination alleged was foreseen. Pinkertons were in no position to control whether or not it happened. The circumstances were entirely different to those in the Burton case where, if matters had been properly regulated and proper instructions given to guard against a foreseeable risk, the staff involved would not have been subject to the treatment they received.
27. In all the circumstances the decision in relation to Site 102 was one to which the Tribunal was entitled to come.
28. We should add only that there was no attempt either to rely on section 33 of the Act before the Tribunal (though it was mentioned in the course of the appeal) or to make Visa International liable for what was alleged to be its discriminatory behaviour, and we were not, therefore, required to consider how such a claim could properly be made. We were left with the uncomfortable feeling that the law may be difficult to apply effectively in circumstances where a customer demands action which may be discriminatory. There are increasing numbers of workers who may be affected by such demands and it may be an area in which the legislation could be reinforced.

Perversity

29. Mr Jack's attack on the Tribunal's decision as being perverse stemmed in part from his unhappiness at the way in which the hearing before the Tribunal went. There was initially an allegation of bias against the tribunal, though this was abandoned before the hearing of the appeal, and an allegation that the two lay members did not bring any independent consideration to bear. This too was abandoned, not surprisingly in the light of the fact that one of the members had in part dissented. What was left was a dissatisfaction with the late disclosure of some of Pinkerton's evidence and with the extent of Pinkerton's answers to questionnaires. There was a suggestion that this had left Mr Jack at a disadvantage. In relation to this, it is notable that no application was made to adjourn in order to deal with any point arising unexpectedly.
30. The Tribunal heard the witnesses and formed a view of them. It was entitled to accept the evidence which it did despite the submissions forcibly made to them on Mr Jack's behalf (such as appear in the written final submissions of his counsel which are in the papers) as to the unsatisfactory nature of the evidence. In relation to Site 102 ,as already indicated, we cannot say the Tribunal was perverse in taking the view that Pinkertons believed they had no choice but to accept Visa International's requirement for the removal of Mr Jack. In relation to site 395 it was entitled to hold that there were other equally unregarded sites, even if Mr Bassom was an unsatisfactory witness in relation to other matters, and that there was no discrimination in posting Mr Jack to the gatehouse there. Similarly, the Tribunal was entitled to hold that there was no discrimination against Mr Jack when the client, Videotron, insisted on the alteration of the rosters so that the longest serving guard who knew the client company and its workings intimately was on duty Monday to Friday 7am to 7pm.
31. Counsel was realistic in opening the appeal in accepting that she had an uphill task in making the submission of perversity. In our view it cannot be said that the findings of the Tribunal were perverse.

Reasons for dismissal and non-consideration of complaints

32. The Tribunal found as a fact that Pinkertons would have dismissed any other employee in Mr Jack's circumstances, regardless of race and regardless of whether the employee had alleged racial discrimination or victimisation. This is a finding of fact which cannot be successfully attacked.
33. The submission that the Tribunal "took its eye off the ball" in failing to consider whether the non-consideration of Mr Jack's grievance alleging racial discrimination "was itself discriminatory and a substantial reason for the decision to dismiss" confuses two points. On a proper reading of the decision there was a finding of fact as to the reason for the dismissal and that the reason had nothing to do with his complaint. On the question of whether the non-consideration of his complaint could amount to discrimination, there was a finding of fact that the reasons for the failure to deal with the complaint related to difficulties arising from boardroom departures and were not due to racial grounds or any intention to victimise Mr Jack. There was no suggestion that failure to deal with a grievance alleging racial discrimination could not itself be discriminatory .
34. The subsidiary complaint that the Tribunal erred in law when it said that the complaint about rostering at Site 398 "ceased to be alive issue on 1 April 1998, the date of the transfer of the Videotron contracts to Rentokil" is misconceived. The complaint did indeed cease to be alive issue on that date, because after that there was nothing that Pinkertons could do about the rosters at that site. That is not the same as saying that the issue of whether Mr Jack had been discriminated against in the arrangement of those rosters was a dead issue as far as the Tribunal or Pinkertons were concerned for the purposes of redress for any discrimination suffered. However the issue of redress did not arise because the Tribunal held there was no discrimination by Pinkertons in relation to the rosters at site 398.

Conclusion

35. It follows that none of the grounds of appeal eventually argued succeed and the appeal must be dismissed.