United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D McCARTHY (of Counsel) Instructed By: Messrs E Edward Son & Noice Solicitors 292-294 Plashet Grove East Ham London E6 1DQ
For the Respondent	MR M SETHI (of Counsel) Instructed By: Messrs Coleman Tilley Tarrant Sutton Solicitors 1-3 Union Street Kingston upon Thames Surrey KT1 1RP


 


JUDGE WILCOX: The Appellant, Thomas Ryan, appeals against the decision of the Employment Tribunal sitting at London (South) on 21 May 1999, where the Tribunal found that the Respondents did not unlawfully discriminate against the Appellant on racial grounds; that the Respondents did not dismiss the Appellant and that the Appellant's claim for wrongful dismissal be dismissed.

1. The Appellant is a black man of Afro-Caribbean origin. The Respondents, his employers, were computer specialists selling specialist computer softwear, the business owned and run by two brothers, Rakesh and Robert Gupta, Mr Rakesh Gupta being the director and Robert Gupta being the sales team manager.
2. The company is situated in Surbiton. It is a modest company in size with some 20 sales executives. The employers are working directors and worked amongst a staff of mixed ethnic origin, including people of Asian origin, Afro-Caribbean origin and other minorities.
3. The company had developed an aggressive approach towards meeting its sales targets. The staff were encouraged in that approach by the two employer brothers. The office was an open plan office and all the sales executives carried out their work seated around two tables, seated in two teams. In that competitive atmosphere the daily sales targets were marked up on a white board, clear to all the sales executives in the office. The Tribunal found, as a matter of fact, that the staff were identified on the white board by nicknames created solely for that purpose. The sales performance is recorded on the board as contracts are made or lost throughout the day.
4. It is into that context therefore that the Applicant came, having been recruited into the company. He had worked for an unrelated company for some six months before and was invited by the Respondents for an interview. He was keen, it seems, to join the company. He pursued the company after his interview for a positive reply. The Gupta brothers employed him at a starting salary of some £20,000 and promised him benefits if he made a success of the job. He started work for the Respondents on 4 January 1999.
5. Mr Ryan, as I have already indicated, is called Thomas Ryan. He is commonly known as Tom. He was introduced to the staff as Tom. It seems that he settled in fairly quickly immediately and it has been found, by the Tribunal, that the regime within this open plan competitive office was one where there was a deal of racial and, it would appear, some sexual badinage between the people occupying that room.
6. It appears in connection with that badinage that the Applicant himself caused offence to Ms Debbie Harris, a black female sales executive, by saying that he believed women sent out "signals" and believed that she was sending out signals suggesting that she liked him. In terms of the racial matters, it appears from the finding of the Tribunal that there were assertions such as "Asians are not capable of playing football" or "they are either shopkeepers or doctors".
7. The finding of the Tribunal was that the Applicant's conversations, particularly with Mr Rakesh Gupta, were frequent and animated. Mr Rakesh Gupta did not call the Applicant any abusive names. However, it is found expressly by the Tribunal, that the Applicant soon formed the view that Mr Rakesh Gupta's conversations were racially offensive. On one occasion, by way of example, Mr Gupta said, as part of a wider conversation, that black people were criminals. The Applicant challenged these views. In the words of Mr Gupta "they frequently discussed various topics and the Applicant gave as good as he got". The Applicant accepts that he did enter into many discussions with Mr Gupta and he considered it to be wrong not to challenge comments or views concerning race with which he disagreed or with which he found offensive. It seems that the Tribunal firstly, found that the Applicant formed the view that Mr Gupta's conversation was racially offensive, albeit in an indirect way.
8. By the third day of the Applicant's employment, Mr Rakesh Gupta told the Applicant that it was time for him to have a nickname to put on the white board. The initial suggestion was that he should be described as "ET". He did not like that, he objected to that. The pictures were then removed and that name was not used, somewhat in contra-distinction to what thereafter happened.
9. The Tribunal found that there was a continued insistence, that the Applicant adopt a nickname and Mr Robert Gupta suggested the nickname "Uncle Tom". He gave evidence that he did not know the true meaning of that term or that it might be offensive. The Applicant objected to the term "Uncle Tom" but when he could not agree any other name, Mr Robert Gupta nonetheless finally wrote it on the white board where it remained for the remainder of the week.
10. It is clear that there was a complaint because there was an objection, so found by the Tribunal, to the use of that term. The Tribunal went on to find that there was no formal complaint to either Robert or Rakesh Gupta about it and there was not any expression objection either to any other employee.
11. I pause there, to make this comment. It is clear from the passages I have cited from the findings in paragraphs 8 and 9 of the Tribunal's decision that there was indirect racial offense taken by the Appellant and secondly, as to paragraph 9, the direct use of the term "Uncle Tom" and the persistence in that use thereafter in that crowded room, on a white board, was offensive and had been objected to as well, albeit not formally by seeking out of the employers for a formal interview or the like.
12. As against those specific findings of fact the Tribunal went on in their conclusions, at paragraphs 14 and 15, to draw certain inferences:

"14. … The Applicant, furthermore agreed that he 'gave as good as he got' and he accepted that other than the term 'Uncle Tom' he was not subjected to any direct statement of racial abuse."

That is a finding of fact that is consistent with what was said earlier, particularly at paragraph 8, that there was no direct racial abuse other than the use of the term "Uncle Tom" but acknowledging and finding that there was indirect racial abuse. We go to paragraph 15:

"15. … We believe the Applicant, with the forthright character which he had, would have told Mr Robert Gupta of any matters of concern, [and here is the curious passage and finding] had he in fact been concerned. …"

13. Having regard to the earlier express findings, not subject to any qualification that he found the indirect racial observations offensive and the direct one the subject of express objection, we find it perverse that the Tribunal were able to conclude as they did, in paragraph 15, that he was not concerned. In our judgment, having regard to their earlier findings, quite clearly he was and particularly in relation to the "Uncle Tom" observation objected to it and found it offensive. What would a reasonable Afro-Caribbean in that situation have made of those particular observations of Mr Gupta, particularised at paragraph 8 and the use of the term "Uncle Tom" as found by the Tribunal at paragraph 14? It is a matter that we consider a reasonable Afro-Caribbean in that situation would, indeed, have found injuriously offensive in the circumstances. The finding of the Tribunal was, of course, that he did object and the inference therefore is that he found it offensive and having found it offensive and they having found that he objected because it was offensive, it is at odds with their finding at paragraph 15 that he was not concerned.
14. Mr Sethi persuasively submits that in fact that does not matter. The use of the term "Uncle Tom" may well have been offensive and insulting but, nonetheless, there is a stage further that the Appellant must go beyond before he can succeed in this appeal. He must show that there was in fact a detriment over and above the insult that he suffered on that occasion.
15. We were taken to a number of helpful decisions in relation to the complaint of racial discrimination. Firstly to De Souza v Automobile Association [1986] ICR 514, and in particular we were taken to the passage in the judgment of May LJ, at paragraph F on page 522, after he had considered Kirby and BL Cars Ltd:

"In each of these cases the detriment or disadvantage to the employee was in connection with what Mr Sedley described as his employment context. In the first, it was having to do dirty work: in the second, it was losing the more congenial work at the counter and having to work as a filing clerk in the rear office: in the third, it was being thoroughly checked when coming in to work, substantially more thoroughly than were white fellow employees. Apart from the actual decisions in these cases, I think that this necessarily follows upon a proper construction of section 4, and in particular section 4(2)(c) of the Act. Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress; before the employee can be said to have been subjected to some 'other detriment' the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work."

16. We accept that some detriment has had to be shown, either of the nature that is indicated in that short passage or, of course, in the manner that frequently may occur in such cases as these. I refer in this connection to (1) Reed and (2) Bull Information Systems Ltd v Stedman [1999] IRLR 299, and the passage at page 302, paragraph 27. This applies, of course, to sexual harassment but it can equally well apply to racial discrimination, as we are considering in this case:

"The essential characteristic of sexual harassment is that it is words or conduct which are unwelcome to the recipient and it is for the recipient to decide for themselves what is acceptable to them and what they regard as offensive. A characteristic of sexual harassment is that it undermines the victim's dignity at work. It creates an 'offensive' or 'hostile' environment for the victim and an arbitrary barrier to sexual equality in the workplace."

17. That can equally be a detriment in circumstances such as these. It is right for the sake of completeness that I should make reference to Driskel v Peninsula Business Ltd and Others [2000] IRLR 151, the judgment of Holland J. The passage on page 155, Mr Sethi drew our attention to, the lower part of paragraph 12, which commences on the preceding page. It is after the reference to the American case, the judgment of the US Federal Appeal Court:

"The passage cited from the judgment of the U.S., Federal Appeal Court is germane. By contrast the facts may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment - no finding of discrimination can then follow."

18. We take into account those particulars passages, of course. Each of these cases that I have cited (and indeed this case) are all cases which turn essentially upon their own facts. One gets some guidance to approach in those authorities At the end of the day, it is the individual case before us that we here have to consider in the light of that helpful and authoritative guidance.
19. Firstly I go to the grounds of appeal, those that are extant before us. Firstly, that the Tribunal reached a perverse decision and misdirected themselves in law in failing to find that the Appellant had been subject to racially offensive comments and, consequently, the Appellant did not resign by reason of the same. It follows from our observations, in relation to the indirect and the direct are racial observations and the conclusion at paragraph 15, that we do hold that there was a perverse finding of fact by the Tribunal.
20. It is right, of course, and we have this uppermost in our minds, that when one comes to look at the reasons given by a Tribunal, one should not permit an appellant to trawl through the facts and seek to dress up a matter of fact as a question of law and, equally, that one should take a robust view when considering an expression of reason given by a Tribunal below. Notwithstanding that, we do come to the view that the finding was a perverse finding and that, in fact, by reason of that the Tribunal did not go on to consider the questions then that they should have considered. Had they concluded, as we feel they may well have concluded, that there was some racial abuse by use of the term "Uncle Tom" directly and indirect abuse in terms of their finding in paragraph 8, it could well be that they would have gone on to find that there was a detriment, in the terms that I have already indicated, having regard to loss of dignity and perceived change of treatment in the business in the employment.
21. It is clear to us that the Tribunal placed a great deal of weight upon the racial badinage that went on between the people who were in the office but, more particularly, between the employer brothers and the Applicant. One must always remember, however, that badinage between people of equal status is one thing; badinage where there is an employer who has the employment whip-hand (so to speak) and an employee may be quite a different matter. It is dangerous sometimes to read too much into situations where there is such badinage.
22. We have come to the firm conclusion that this appeal must be upheld on the basis that this was a perverse finding of fact. We find that their ultimate finding was without evidence and we remit this matter for re-trial by a differently constituted Tribunal.