United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D SMALL (of Counsel) Instructed By: Messrs Toussaints First Floor 150 Soho Road Handsworth Birmingham B21 9LN


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us by way of a preliminary hearing the appeal of Mr Lambert Clarke in the matter Clarke against Leroy Parkes (an individual) as First Respondent and secondly, a company, Securitas UK Ltd.

1. There was a hearing over some three days in March and May 1999 at the Tribunal at Birmingham under the chairmanship of Mr B. Lloyd. Mr Clarke, who is black, had the First Respondent, Mr Parkes, as his shift manager and the Second Respondent, Securitas, as his employer. He had been employed nearly ten years. He was a driver or guard for Securitas, which provides secure transport to banks and shops, particularly in relation to the movement of money and securities.
2. The Tribunal described the allegations against Mr Clarke as follows, in their paragraph 4:

"4 On 2 June 1998, the applicant was summarily dismissed by the second respondent for gross misconduct. Specifically, that, on Tuesday 31 March 1998 he had, during the course of his duties misappropriated for his own benefit two cash bags containing cash sums of £3,008.05. The second respondent's reason for dismissal for the purposes of Section 98(2) of the Employment Rights Act 1996 was the applicant's conduct."

The Tribunal's majority decision was that the Applicant was not unfairly dismissed and had failed to prove his complaint of racial discrimination.

3. Mr Devon Small appears today for Mr Clarke and only one point is now pursued, or intended to be pursued, and it is that the Tribunal failed to deal with a central plank in Mr Clarke's case as to racial discrimination, namely that there were other persons who had been alleged to be thieves from Securitas - and two were actually named - who were white and had been involved in quite different incidents but had been treated more favourably than Mr Clarke in the sense that, notwithstanding that they were held to be thieves, they had not been dismissed. He made a comparison with those individuals as identified comparators and compared with them, he said, he had been treated less favourably on racial grounds.
4. The EAT first heard this matter as a preliminary hearing on 19 October 1999 before His Honour Judge Altman and two experienced Members. Only Mr Small was before them that day and he had not appeared at the Tribunal below. The EAT Members looking into the matter found no express reference in the Tribunal's judgment to this part of Mr Clarke's case, the comparator point. Mr Small at the time could not be sure, it seems, of whether the case had indeed been put below because he had not been below himself and the Tribunal elected to write to the Chairman to find whether the case of the white comparators had indeed been put to the Tribunal. The penultimate paragraph of the judgment of the EAT on that day said:

"14 Accordingly we adjourn the preliminary hearing and direct that a letter be written to the Chairman, requesting that he check with his notes and if appropriate with his own recollection and that of the members and to notify by letter the Employment Appeal Tribunal the extent to which if at all, this issue was part of the proceedings before the Employment Tribunal."

The Chairman's answer of 30 January was by letter and indicated that the point had been taken. He said, amongst other things, naming the identified comparators:

"The cases of Steve Mason and Andy Jones were specifically considered, with others which the members have identified in their comments."

And he added:

"It is regretted, in retrospect, that the decision has not specifically cited Section 3(4) of the Race Relations Act 1976 or the references in evidence to Steve Mason and Andy Jones in particular."

The Chairman then sought to explain and amplified passages in the decision which had been sent to the parties.

5. It is only fair to note that, when the Chairman answered on 30 January 2000, the EAT's decision in the case Reuben v The London Borough of Brent [2000] IRLR 176, although already handed out, had not been reported; it was not reported until March 2000. It is arguable (and, of course, at this stage we need say no more than that) that the Chairman's explanations by letter which, in any event had not necessarily been put to or agreed with those who had earlier been sitting with him, cannot be taken into account in determining whether the Tribunal's decision, as promulgated, adequately deals with this important plank in Mr Clarke's argument. Moreover, given that the Tribunal's decision does not deal expressly with the comparator point at all and arguably does not even deal with it with sufficient clarity tacitly or by implication it is in our view arguable that there has here been an error of law (and, again, we emphasise that at this stage we are only concerned with whether the point is reasonably arguable) if only because the rule in Meek v City of Birmingham could be argued not to have been complied with.
6. Accordingly, we see this as a case proper to go on that ground to a full hearing and, as I have indicated, Mr Small indicates that this is the only ground which now is pursued.
7. Skeleton arguments are to be sent to the EAT and exchanged between the parties not later than 21 days before the date fixed for the full hearing at the EAT. If that time is not respected, then the case may be adjourned by the EAT without further notice and re-fixed and at the adjourned hearing the issue of whether costs were thrown away by failure to comply with the rule as to exchange of skeleton arguments could be gone into. There is no request as yet for Chairman's Notes and accordingly, we need say nothing more at this stage.