United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C QUINN (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK

1. An Employment Tribunal sitting at London (S) (under the Chairmanship of Ms Christiana Hyde) over 9 days during June and September 2000 heard complaints of racial discrimination by 6 Applicants, including these 5 Appellants. Only one complaint, that of Mr A S Johal (who does not appeal) was upheld in part. In addition Mr Sanghera succeeded on his complaint of unlawful deductions from wages. Against the Tribunal's findings dismissing the complaints of racial discrimination brought by the 5 Appellants these appeals are brought. The Employment Tribunal's decision was promulgated with Extended Written Reasons running to 34 typed pages on 29 December 2000.
2. The Respondent, Gate Gourmet acquired the business of SAS Service Partner supplying in-flight catering services to commercial airlines at Heathrow Airport in 1995. At all relevant times the Appellants were employed by the Respondent. Messrs Gill, Sidhu, Sanghera and G S Johal were employed as service representatives; M S Johal and A S Johal were employed as LGV drivers.
3. During 1998/9 a reorganisation took place, during which the Appellants Messrs Gill, Sidhu and G S Johal applied unsuccessfully for positions as Airside-Co-ordinator under the new structure; Mr Sanghera claimed that he had been put off applying for that post by Mr Gallop, the operations manager. Both M S Johal and A S Johal applied unsuccessfully for the post of lead hand driver.
4. Each Appellant complained that in being rejected for the position applied for and in the case of Mr Sanghera being put off from applying, he had been less favourably treated on grounds of his race (each is of Asian ethnic origin) than successful white comparators.
5. The Employment Tribunal set out their findings of fact and then considered each case in turn. In rejecting the complaints of unlawful racial discrimination they accepted the Respondent's explanation for rejecting each Appellant's application for the posts in question, in short:

(1) Mr Gill had a poor sickness record, a not uncommon feature among service representatives and had received a final written warning for unauthorised absence given on 7 September 1998, prior to his interview for the co-ordinator post held on 12 January 1999. The interviewing manager, Mr Senter commented that Mr Gill needed to show more commitment. His sickness and disciplinary record counted against him in the Respondent's assessment.

(2) Mr Sidhu failed to impress at his interview with Mr Guest, the Duty Manager, on 5 January 1999. The Employment Tribunal accepted that his unsatisfactory answers at that interview, coupled with his sickness record rendered him unsuitable for the new post.

(3) Mr G S Johal also had a current disciplinary matter outstanding when he was interviewed by Mr Guest on 5 January 1999. It related to an unauthorised absence on 3 December 1998. That offence was not comparable, the Employment Tribunal found, with that with a white employee, Mr Farry, who was absent on genuine health grounds. The Employment Tribunal accepted that that disciplinary matter, coupled with Mr Johal's lack of supervisory experience, explained why he did not get the co-ordinator job.

(4) Mr Sanghera. The Employment Tribunal rejected his evidence that he was put off applying for the co-ordinator postion by Mr Gallop.

(5) Mr M S Johal. The distinction drawn by the Respondent between Mr M S Johal and other successful white applicants for the Lead Hand driver position was his poor sickness record. It was worse than each of his white comparators. That explanation for the difference in treatment was accepted by the Employment Tribunal in his case.

6. Further, the Employment Tribunal held that the claims of Mr Gill and G S Johal were out of time and that it would not be just and equitable to extend time under Section 68(6) of the Race Relations Act 1976.
7. These Appellants are today represented by Mr Quinn of Counsel under the ELAAS Pro Bono Scheme. On behalf of the Appellants collectively and individually he takes 2 broad points. The first is that errors of fact have been made in the course of the Employment Tribunal lengthy reasons to such an extent that there can be no confidence in the Employment Tribunal having properly digested the evidence before it and reached a reliable conclusion in these cases.
8. Secondly, he submits that there is an inconsistency on the face of the Employment Tribunal's reasons between the finding in favour of A S Johal that the Respondent had failed to investigate his complaint made on 1 March 1999 in circumstances which the Employment Tribunal found amounted to unlawful discrimination and a failure by the Respondent to investigate similar complaints made by other Appellants. The Employment Tribunal made no finding on those complaints in the context of unlawful discrimination.
9. Dealing first with the errors of fact, it may well be as the individual Appellants point out in their grounds of appeal that immaterial errors have been made. For example, Mr Gill states that he had been a shop steward since 1996 and not 1991 as the Employment Tribunal record at paragraph 39 of their reasons. In the case of another Appellant it is recorded that he was a shop steward when he was not and so forth.
10. We can deal with this point quite shortly. We are not satisfied that the minor errors pointed out in the various grounds of appeal are such as to dent our confidence in the care with which the Employment Tribunal has set out its findings of fact in this case. None of the individual errors are material to the critical findings which the Employment Tribunal was required to make and did make under its conclusion section and in our view no arguable point of law is here raised.
11. Secondly, so far as the inconsistency point is concerned, we have paid particular attention, first of all to the Employment Tribunal's identification of the issues in this 6 Applicant case at paragraphs 8 through to 16 of their reasons. The Applicants were represented by Counsel, Mr Zimuto who we see outlined the issues in all cases save for that of Mr A S Johal at the outset. Mr A S Johal's case was then outlined in the course of Mr Zimuto's closing submissions submitted to the Employment Tribunal.
12. It is clear to us from that list of issues that it was only Mr A S Johal who took the point that he had made a complaint and that it had not been properly dealt with by the Respondent in circumstances amounting to unlawful discrimination. We can readily see why the remaining Appellants, having seen him succeed on that point, feel aggrieved that the point in their case was not dealt with.
13. However, it is quite clear, on Court of Appeal authority, that a point not taken below cannot be taken for the first time on appeal save in exceptional circumstances. In our judgment no such circumstances arise in these cases and accordingly we reject the second broad ground of appeal.
14. Accordingly, we are not persuaded that any of these appeals raise any arguable point of law and consequently all must be dismissed at this Preliminary Hearing stage.