United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J LEWIS (of Counsel) Messrs Ingram Winter Green 26 -28 Bedford Row London WC1R 4HF
For the Respondent	Mr Thomas in Person


 


JUDGE CLARK

1. This is an appeal by the employer, Tiny Computers Ltd (the company) against a decision of the London (North) Employment Tribunal, Chaired by Miss A Lewzey, promulgated with extended reasons on 9 June 1999, upholding in part the Applicant, Mr Thomas' complaint of unlawful racial discrimination.
2. The Applicant, who is black, was employed by the Respondent at their Ealing showroom as a Salesman from 28 April 1997 until 17 December 1998. For a period of some 3 – 4 weeks in the late spring/ early summer of 1998 the Applicant, together with another salesman, Gavin Evans, who is white, worked without any manager or senior salesman in post at the Ealing site.
3. By an Originating Application presented to the Employment Tribunal on 30 November 1998 the Applicant complained of unlawful racial discrimination and constructive dismissal. The complaint of unfair dismissal was adjourned by the Employment Tribunal pending the outcome of the Seymour Smith litigation. An application made on behalf of the Applicant to amend his Origination Application to add a complaint of victimisation under the Race Relations Act 1976 was refused.
4. As to the original complaint of direct discrimination, it fell into 2 parts. Those issues were identified at a directions hearing held on 18 February 1999 as follows: -

"(a) Was the Applicant a victim of race discrimination because of the Respondent's failure to promote him to the post of senior salesman, instead of which they appointed a white comparator (Gavin Evans) who was junior to the Applicant?

(b) Was the Applicant a victim of race discrimination/harassment at the hands of his managers from 15 September 1998 onwards, as particularised by the Applicant?

5. The Lewzey Tribunal rejected the second part of the complaint, identified at (b) above. As to the first part, the issue as it appears at (a) in the earlier directions order became re-formulated in the Lewzey Employment Tribunal's decision. That Employment Tribunal found that Mr Evans had not in fact been promoted to the post of senior salesman. The re-formulated question as answered by the Employment Tribunal at paragraph (27) of their reasons may be put in this way: -

"Whether the failure to offer the Applicant the opportunity to apply for the post of senior salesman and the failure to offer him career counselling after his resignation amounted to unlawful direct discrimination on grounds of his race?"

6. In answering that different question in the affirmative the Employment Tribunal, at paragraph 27, took several matters into account. Those facts established that the Applicant had shown, first that there was a difference in the treatment afforded to himself and Mr Evans. Mr Richards, the Area Relief Manager encouraged Mr Evans to apply for the post of senior salesman; he did not so encourage the Applicant; at the time when both Mr Evans and the Applicant resigned their employment, Mr Baigrie, the Area Manager, spoke with Mr Evans about his career prospects, but did not speak similarly to the Applicant. Secondly, there was a difference in race between the Applicant and Mr Evans.
7. In the course of their reasons, at paragraph 23, the Employment Tribunal refer to the well-known guidance given by Neill LJ in King –v- Great Britain-China Centre (1991) IRLR 513, as approved by HL in Glasgow City Council –v- Zafar (1998) ICR 120. They then give this self-direction: -

"At the conclusion of all the evidence the tribunal must make findings as to the primary facts and draw such inferences as we consider proper from those facts. We must reach our conclusion on the balance of probabilities bearing in mind both the difficulties which face Mr Thomas in complaining of unlawful discrimination and the fact that it is for Mr Thomas to prove his case."

8. That, with respect, is not a fair summary of the King guidance. Indeed, it is positively misleading. In every case where a difference in treatment and a difference in race is made out it is then necessary for the Employment Tribunal to consider the explanation, if any, put forward by the Respondent for the difference in treatment; for the Employment Tribunal to decide whether in its view that explanation is adequate or inadequate, and if the latter, finally to go on to consider whether unlawful discrimination has been made out.
9. Looking at the Employment Tribunal's conclusions, expressed at paragraph 28, it is quite clear to us, and Mr Thomas has been unable to point to any relevant findings which assist him, that Mr Lewis is correct in submitting that on the face of their reasons the Employment Tribunal has failed to set out the explanations undoubtedly put forward in evidence by the Respondents witnesses for the relevant differences in treatment; to make findings on those explanations and in particular why they were considered inadequate or unsatisfactory by the Employment Tribunal and then go on to the final stage to explain the evidential basis for their drawing the inference of unlawful discrimination. See Chapman –v- Simon (1994) IRLR 124.
10. As it is, the Employment Tribunal's reasons fail the test of showing the parties why they have won or lost. Meek –v- City of Birmingham District Council (1987) IRLR 250. The decision, in this regard, cannot stand and must be set aside.
11. Mr Lewis has sought to persuade us that we can properly substitute a finding of no unlawful discrimination. In that endeavour he has failed. The absence of material findings by the Employment Tribunal as to the explanation given by the Respondent and its adequacy or inadequacy prevents us from substituting the declaration sought. We are not a fact finding Tribunal.
12. Further, he asks us to rule on the relevance of certain findings made by the Employment Tribunal in paragraph 27 of their reasons, particularly the finding that the Respondent paid only lip service to their Equal Opportunities policy. We decline to do so. It is for the fresh Employment Tribunal to which this case must be remitted to look at the matter anew, making its findings and reaching its conclusions in the light of the correct legal test, to determine what matters are relevant to those conclusions.
13. Finally and for the avoidance of doubt we shall remit the matter only on the reformulated question, identified at paragraph 5 above, which was answered in the affirmative by the Lewzey Employment Tribunal. There is no cross-appeal against the finding by that Employment Tribunal on the issue identified in paragraph 4(b) of their reasons. Consequently that part of the original decision stands.
14. Accordingly the appeal is allowed and the case remitted to a fresh Employment Tribunal for the limited purpose set out above.