United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR PAUL T ROSE (of Counsel) Instructed By: Messrs Hammond Suddards Solicitors Trinity Court 16 John Dalton Street Manchester M60 8HS


 


JUDGE A WILKIE QC:

1. This is an appeal by the School of Finance & Management (London) Ltd and Nord Anglia Education Plc against a decision of an Employment Tribunal sitting at London (South), its decision sent to the parties on 15 March 2000, in which the Tribunal unanimously decided that:

"1 The Respondents unlawfully discriminated against the Applicant by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976.

2 The Applicant was unfairly dismissed by the first Respondent.

3 The Applicant was wrongfully dismissed and is entitled to damages in respect of wages payable during his contractual notice period of 1 month."

2. When we refer to the Appellant in respect of the unfair dismissal and wrongful dismissal case, we refer to the First Respondent (First Appellant) who was the employer of the Applicant. When we refer to the Appellants in respect of unlawful discrimination under the Race Relations Act 1976, we refer to both the Appellants because the Tribunal concluded that the second Appellant was liable under the provisions of section 32 (2) of the Race Relations Act.
3. The Notice of Appeal sets out a number of grounds under paragraph 6 in six numbered sub-paragraphs.
4. We have been greatly assisted this afternoon by Mr Rose of Counsel, who has argued both forcefully and well on his client's behalf. On the basis of his submissions we accept that there are arguable points of appeal in respect of the findings of race discrimination against both Appellants, that is to say as enumerated in sub-paragraphs 1, 2, 3 and 4 of the grounds of appeal.
5. We also accept that there is an arguable appeal in respect of wrongful dismissal as set out in sub-paragraph 6 of the grounds of appeal.
6. As far as the appeal against the finding of unfair dismissal is concerned however, despite Mr Rose's best endeavours we are not persuaded that there is any arguable case to go on appeal.
7. The Tribunal decision set out the Tribunal's findings of fact and, in essence, those findings included their making a fundamental finding, in paragraphs 37 to 39 of the decision, that the First Respondent acted in bad faith in purporting to dismiss the Applicant for misconduct. Their conclusion, in paragraph 38, was that the Applicant's alleged misconduct was not the genuine reason for his dismissal. Rather they acceded to a primary contention of the Applicant that they were used as a convenient means of terminating the Applicant's employment. That conclusion is repeated at the end of paragraph 39 in which they conclude that Mr Lunt was not pursuing his investigation in good faith but as a device to get rid of the Applicant.
8. The Tribunal in its Decision then went on in succeeding paragraphs, to consider the allegation that the Applicant was dismissed on racial grounds and, as we have already indicated, we accept that there are arguable grounds for saying that in addressing that question they erred in law.
9. As far as unfair dismissal is concerned, however, their conclusions are set out in paragraph 42 and they are shortly put because they said that:

"42 It follows from the findings [the findings of bad faith] that the Respondents have failed to show that the Applicant was genuinely dismissed for a reason falling within section 98(2) of the Employment Rights Act 1996. That being so, it follows that that we find that the Applicant was unfairly dismissed."

10. They then went on to consider what the position would have been "Had the Respondents succeeded in establishing a potentially fair reason for dismissal" but that was not necessary for their decision. Their decision, put shortly, was that the Respondent, having the burden of establishing what the reason was and that it was a permissible reason, had failed to do so essentially because the Tribunal found that the reason the Respondent put forward was a reason put forward in bad faith and was not the true reason for the dismissal. That was a finding of fact. There was ample evidence on the basis of which this Employment Tribunal could have made that finding of fact and, in our judgment, there is no arguable case that they either erred in law or were perverse in so finding.
11. It therefore follows that we do not give permission for the appeal to proceed insofar as it is an appeal against the finding of unfair dismissal. The remaining grounds will go forward to a full hearing.
12. We give this case Category C and a time estimate of one day. No Chairman's Notes are required.