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United Kingdom Employment Appeal Tribunal
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Green v. Priority Services Midlands Ltd [2001] UKEAT 0257_01_2906 (29 June 2001)
URL: http://www.bailii.org/uk/cases/UKEAT/2001/0257_01_2906.html
Cite as:
[2001] UKEAT 0257_01_2906,
[2001] UKEAT 257_1_2906
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BAILII case number: [2001] UKEAT 0257_01_2906 |
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Appeal No. EAT/0257/01 |
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
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At the Tribunal |
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On 29 June 2001 |
Before
MR COMMISSIONER HOWELL QC
MS G MILLS
MR T C THOMAS CBE
MR L N GREEN |
APPELLANT |
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PRIORITY SERVICES MIDLANDS LTD |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
© Copyright 2001
APPEARANCES
For the Appellant |
MR ANDREW BURNS (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme |
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MR COMMISSIONER HOWELL QC
- In this appeal which is before us today for preliminary hearing, Mr Linbird Nathaniel Green seeks to have set aside as erroneous in point of law the decision of the Nottingham Employment Tribunal, set out in extended reasons sent to the parties on 16 January 2001, following a hearing of his claim of race discrimination on 8 January 2001.
- The nature of the claim and the reasons why it was dismissed by the Tribunal appear from the Tribunal's extended reasons. We should say that the claim was one brought by Originating Application dated 30 May 2000 against Mr Green's former employers, Priority Services Midlands Ltd, which is an organisation which runs a telephone call centre. Mr Green had been employed since 29 November 1999 by them, on a probationary basis, as a telephone fund raiser whose job it was to ring up members of the public and attempt to persuade them to agree to carry out house to house collections for charities, who were the Clients of the Respondent.
- The unanimous decision of the Tribunal, having heard the evidence on 8 January 2001 was that Mr Green's complaints of race discrimination failed and were dismissed. As they recorded in paragraph 1:
1. "This is a complaint by Mr Green, who is African Caribbean, that when he was dismissed from his employment with the Respondent as a telephone fundraiser on the 15th March 2001 they discriminated against him on the grounds of his racial origins. Mr Green has given evidence to us and has conducted his own case. The Respondent admits dismissing him and gives the reason that he was guilty of an act of gross misconduct, namely fraudulently claiming to have recruited door to door collectors. The Respondent has been represented by its Chairman, Mr Kitch, who has also briefly given evidence to us, and, in addition, we have heard evidence from Mrs Hobster, a supervisor; Miss Samantha Kitch, General Manager and Miss Claire Price, also a telephone fundraiser."
- Having reviewed the law and the evidence of the facts the Tribunal concluded that Mr Green had been properly dismissed for gross misconduct. They disbelieved his evidence on the facts describing it as almost entirely incredible and concluded that he had been guilty of fraud against his employers and rightly dismissed.
- Those reasons are adequately explained in paragraphs 5 (k) and following of the Tribunal's extended reasons, as follows, in the context of the case put forward to them by Mr Green having regard, as in paragraph 5 (i), that he had been:
"…singled out as a scapegoat because of his colour and because he was performing well when others were performing badly, in order to improve the company's performance."
- That, as the Tribunal recorded, they understood to be why he believed he had been discriminated against on the grounds of his race. The Tribunal referred to that as:
"…an explanation completely devoid of sense".
- As the Tribunal recorded in paragraph 5 (k) – 6:
5. k) "What happened was this. As part of the routine monitoring of the performance of all telephone fundraisers, including those who act as supervisors, it was discovered that Mr Green was making fraudulent claims. Each telephone fundraiser is given a printed list of names and telephone numbers to contact. There is a script to follow. The person being telephoned is asked whether they would be prepared to act as a door to door collector for a named charity in a defined area during a specific period of time when that charity has a license to collect in that area.
l) Not surprisingly the uptake is not great. When a person agrees to act as a collector, that fact is entered on the daily worksheet, which is passed to others who send out the collection pack. The monitoring consists of a supervisor telephoning the contact a second time to confirm that they have agreed to do a collection. On at least two occasions a very high percentage of those whom Mr Green was recording as having agreed to collect had in fact declined to do so but when pressed by Mr Green had agreed to accept an information pack about the charity in question.
8. m) On the first occasion, Mr Green was given a verbal warning, the training was reinforced and his probation period extended. The second time he was dismissed. On that occasion something like 19 out of 20 people contacted denied that they had agreed to act as collectors. Mr Green suggests that the Respondent has simply made all this up as a pretext to get rid of him, a suggestion which we reject and which is as incredible as the rest of Mr Green's case.
n) The Respondent has told us, and Mr Green has not denied, that his is not an isolated occurrence. Over the last 2 years between 15 and 20 employees have been dismissed for exactly the same thing. At least a good proportion of those, the exact number is not available, have been young, white males.
6. Returning to the definition in the Race Relations Act 1976. There is a difference of racial origin between Mr Green and a hypothetical white person caught doing the same thing, but there is no evidence of less favourable treatment. The evidence is that any employee of any racial origin caught doing what Mr Green was doing, would have been dismissed. The evidence that Mr Green was making fraudulent claims to have recruited door to door collectors, is overwhelming."
- As the Tribunal recorded:
7. "For all of the reasons which we have given, mindful though we are of the difficulties facing someone in Mr Green's position, of proving the existence of racial discrimination, his complaint must fail and is dismissed."
- Against that decision, Mr Green seeks to appeal on grounds originally set out by himself in a Notice of Appeal submitted on 15 February 2001, under the main suggestion that the Respondent had not produced any evidence to have rebut the evidence he himself had given. That was amplified in what was described as a skeleton argument annexed to the Notice of Appeal at pages 1-9 but that we need not consider in detail because it is apparent that it simply contains a number of assertions seeking to re-canvass matters of fact already considered and decided by the Tribunal at the hearing and does not identify any arguable point of law at all to warrant the pursuit of an appeal.
- Instead, Mr Burns, who has helpfully appeared under the ELAAS scheme for Mr Green before us on the preliminary hearing of the appeal, focuses on one point only. He has informed us that Mr Green now accepts that because of the limited nature of an appeal to this Tribunal, which must be concerned with issues of law, the remaining issues sought to be canvassed in the original Notice of Appeal cannot properly be pursued.
- The one point Mr Burns raised in his submissions on instructions from Mr Green is this. Mr Green's evidence to the Tribunal had been that he himself had been an exceptionally good fundraiser on the telephone and had been exceptionally successful and persuasive when dealing with people on the telephone to agree to act as collectors for the charities on whose behalf he was telephoning.
- However, he had been unusually unfortunate in that, having been so persuasive, when the members of the public were rung up again to confirm that they were willing to become collectors (by the supervisors as recorded by the Tribunal) an extraordinarily large number of the people he had spoken to had changed their minds on reflection and denied to the supervisors ever having agreed in the way that Mr Green said they had to him personally.
- That argument, Mr Burns submitted, was not one properly taken into account by the employer before deciding to dismiss Mr Green and to reject his explanations and was equally one that ought to have been addressed in more depth by the Tribunal and was not adequately reflected in their record of the reasons for dismissing his claim, in particular the paragraphs which we have read.
- We have, however, despite Mr Burns' submissions, not been persuaded that that point shows any sufficiently arguable point of law to warrant our directing that this case should go forward further to a full hearing of the Employment Appeal Tribunal. It appears to us that the Tribunal made it abundantly clear that the oral evidence given to them by Mr Green was rejected because they found it incredible.
- Sub-paragraphs 5 (l) and (m) contain specific findings of fact made by the Tribunal that the high percentage of those persons whom Mr Green was recording as having agreed to collect, in the Tribunal's express words:
"Had in fact declined to do so".
And in paragraph 5 (m) that on the second occasion leading to his dismissal, the number of people who completely denied his assertions that they had agreed to act as collectors was "something like 19 out of 20 people".
- In those circumstances it is not difficult to see why the Tribunal thought it right to reject Mr Green's protestations to the contrary as simply incredible. That was an issue of fact which was for the Tribunal hearing the case to determine. The fact that Mr Green was not happy with the result does not, in our judgment, give him any arguable ground of law for saying that the conclusion reached was unjustified or the reasons inadequately expressed.
- Accordingly we have been unable to see that there is any arguable error of law in this case and we accordingly unanimously dismiss the appeal.