United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I OMAMBALA (of Counsel) Instructed by: Messrs Christian Fisher 42 Museum Street Bloomsbury London WC1A 1LY
For the Respondent	MR TOM WEISSELBERG (of Counsel) Instructed by: Messrs Wedlake Saint Solicitors 14 John Street London WC1N 2EB


 


JUDGE D PUGSLEY

1. This is an appeal from a decision of the Employment Tribunal sitting at London North. Leave was given by His Honour Judge Peter Clark to argue certain points of law; leave was not given to argue either the issues of perversity or bias. We mention, in passing, that an allegation of bias against a Chairman of a Tribunal is in reality an allegation against the whole Tribunal. If the industrial members of a Tribunal consider that proceedings are being conducted in an unfair manner, in failing to intervene, they are culpable in colluding with unfairness.
2. We have been considerably assisted by the Skeleton Argument of Counsel for the Appellant. In essence the Applicant's case - summarised at paragraph 15 of the decision - was that he was transferred from a job he enjoyed; that he was given disproportionately high targets as compared to white colleagues; he was denied access to vacancies; that opportunities for training and personal development were blocked and he was subject to intimidation by his manager and an attempt was made to frame him for offences which he did not commit.
3. In essence the Appellant's attack on the decision is that the Tribunal have not set out their findings of fact and the decision does not satisfy the test laid down in Meek v City of Birmingham [1987] IRLR 280 CA and the Tribunal failed to draw appropriate inferences as in the guidelines set out in King v Great Britain China Centre [1992] ICR 392 as approved in City of Glasgow Council v Zafar [1998] ICR 120. Further it is said that by adopting a fragmented approach, the Tribunal failed to have regard to the cumulative effect.
4. It is of course important that any Tribunal adjudicating upon an allegation of discrimination has regard to the total picture. An isolated incident may in itself not point to discrimination. However the position may be very different when a number of incidents, in themselves not necessarily significant, point to a pattern of behaviour. If authority is needed for that rather trite proposition then it is found in the Balcombe L J's judgment in West Midlands Transport Executive v Singh [1988] IRLR 186 in which he justifies the admission of statistical evidence and, although not a discrimination case, the judgment of Brown-Wilkinson J in Woods v W M Car Services (Peterborough) Ltd in which he describes the course of conduct which can constitute an example of a breach of the implied term of mutual trust and confidence.
5. For reasons that are obvious, those who are going to discriminate are hardly likely to advertise the fact and a degree of realistic cynicism for differential treatment of a person of ethnic origin is appropriate. This case took several days and there was a mass of documentation. The decision in itself runs to some six pages of close typed pages. Although various authorities were put before us this is a case in which the argument has largely been directed to the terms of the decision itself.
6. It is vital to remember that an Employment Tribunal is an industrial jury. We do not consider there is a requirement for the Tribunal to set out every subsidiary finding of fact that they make in reaching their ultimate conclusion. The Tribunal had detailed written submissions from the parties before it when making its determination. It had the opportunity of seeing the witnesses and appreciating the particular chemistry of the case. In Piglowska v Piglowski [1999] 3 AA ER 632 at 641 (HL) Lord Hoffman reiterated the need for caution in reversing a trial judge's evaluation of the facts is based on much more than professional courtesy. It is because precise findings of fact, even by the most meticulous judge are inherently an incomplete statement of the impression that was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision so as to emphasise, relative weight, minor qualification and nuance of which time and language do not permit exact impression but which may play an important part in the judge's overall evaluation. Lord Hoffman went on to point out that the exigencies of court life are such the reasons for the decision will always be capable of being better expressed. Lord Hoffman's strictures against appellate courts intervening to overrule the trial judge are of even greater weight in the context of the Tribunal which sits as an industrial jury.
7. It is true that this decision could have been organised in a better way. At certain points the decision might have dealt with matters in more detail. The Tribunal made a global finding of credibility that it preferred the evidence of the Respondents and its witnesses to those of the Applicant and his witnesses. That is an approach stigmatised by Morison J in Tchoula v Netto Foodstores Ltd PY EAT/1378/96. It may be that the drafting of the decision was shaped by the copious documentation and written submissions which the Tribunal had before it. It is wiser to avoid such global findings. Yet the Respondent's Skeleton Argument goes through each of the points about which criticism is made and points out on each issue the Tribunal dealt with the matter in the body of the decision. A common form direction to a jury points out that they are the judges of fact; that they may take into account matters the judge does not mention in his summing up and are not bound to consider matters to which the judge attaches weight. In any case that lasts several days numerous issues will be raised; the weight to be attached to the various matters is a matter for the Tribunal. Lord Hoffman's comment in Piglowska that these reasons should be read on the assumption that, unless he has demonstrated to the contrary, the judge knew how he should perform his functions and which matters he should take into account is equally applicable to the decision of a Tribunal. To subject a Tribunal decision to myopic scrutiny in an attempt to find buried within the text a line of flawed reasoning is to adopt a totally unrealistic yardstick in evaluating a decision.
8. If one looks at the totality of this decision, at the end of the day, does a fair-minded reading of that decision lead to the following matters: do we know what the Appellant's case was? Do we know what the employer's case was? And do we know, from the findings of fact that were made, why the Appellant has won, or in the context of this case, his case has been dismissed?
9. We do not think it is an idle exercise to say that the industrial members of this Tribunal have, of course, listened to all the arguments, have had the opportunity of reading the decision and the background papers, and their view, having heard all the arguments, is to confirm their provisional view - that they knew what the Appellant's case was; that they knew what the Respondents' case was, and they knew why the Tribunal had resolved the case in the way it has.
10. The findings of fact made by the Tribunal are set out from paragraph 1 onwards. The difficulties that confronted the Respondents are set out and we do not accept, having regard to the very helpful submissions made in the Respondents' Skeleton Argument, this is a case where the Tribunal failed to make findings of sufficient particularity. A crucial finding, made by the Tribunal, is that:

"While the Second Respondent [Mr Ridgewell] was perceived by some to display an aggressive manner, he was also aggressive to black and white in equal measure. He also took disciplinary action against white staff, as well as black."

11. The Tribunal noted the need to change the culture which existed, and that Mr Ridgewell, the Second Respondent, was in a difficult position of preaching a message that no one wanted to hear. The Tribunal went on to make detailed findings of those particular instances, which it is said were evocative and redolent of a discriminating employer. They did not accept these incidents pointed to discrimination and they gave their reasons in sufficient detail. They conclude at paragraph 14:

"14 From the above findings of fact we draw no inferences that the Respondent unlawfully discriminated against the Applicant on racial grounds."

In clear terms, we ought to say, that it is difficult to see the case was being put on any other basis than that the First Respondents were responsible for the Second Respondent. We think that is a sufficient finding and that it meant both Respondents.

12. Under the heading "treatment" the Tribunal set out their views; they give the reasons for finding, as they say they do, that they cannot and do not draw the inference of race discrimination. We see no inherent internal inconsistency, no incoherence, and no flawed reasoning for the view they reach. We therefore dismiss the appeal.