United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H HILL (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us, by way of a preliminary hearing, the appeal of Mr H Bhatty in Bhatty v The Miller Group Ltd. Today, Miss Hill has appeared for Mr Bhatty under the ELAAS system and has helpfully refined and concentrated the argument on Mr Bhatty's behalf. But, for all that, we need I think, to concentrate not only on the grounds which he has emphasised but to look more generally at the other grounds in the Notice of Appeal as well because they haven't been formally abandoned. But we are grateful to her for the assistance which she has given us.
2. The history of the matter is this. On 26 May 1999 Mr Bhatty lodged an IT1 for racial discrimination and unfair dismissal. He had only been employed from 17 February 1999 to 13 April 1999 and, accordingly, unfair dismissal, on the face of things, was not going to be open to him because he hadn't got sufficient qualifying service.
3. On 21 June 1999 there was an IT3 from The Miller Group Ltd, the company. They said:

"Mr Bhatty was recruited by ourselves as Project Manager for a major construction project in Northampton. The first three weeks of his employment were office based prior to site start. On project commencement Mr Bhatty transferred to site after which it became apparent that there were major shortcomings in his ability and performance which would have adversely affected project progress and control.

Mr Bhatty was advised of our concerns on a number of occasions but it quickly became clear that he was simply not able to satisfy the requirement of the role. We lost all confidence in his ability to run the Project and on 13 April 1999 he was advised of this and his employment brought to an end."

So that was the contest that was limbering up and it went forward to a hearing at the Tribunal, spread over three days, 27, 28 and 29 March 2000.

4. On 15 May 2000 the liability decision was sent to the parties. It was a decision of Mr S Ahmed, Chairman, sitting with Mrs D J Bennett and Mrs V E Vernon. Mr Bhatty had appeared in person and the Miller Group had been represented by a Divisional Personnel Director. The unanimous decision of the Tribunal was that Mr Bhatty was unlawfully discriminated against on the grounds of his race, contrary to the Race Relations Act 1976. The issue of remedy was adjourned and the application for unfair dismissal was dismissed because of the want of qualifying service.
5. The parties plainly were unable to agree terms (even if that was attempted, as to which we have no information) and the remedies hearing therefore became necessary and it took place on 10 October 2000. It seems that the result must have been announced orally because on 6 November, before anything in writing had come forward from the Tribunal, Mr Bhatty expressed dissatisfaction to the Employment Tribunal.
6. On 5 December the remedies decision (which was, of course of the same body of three under the Chairmanship of Mr S Ahmed) was promulgated and it was that the respondent was ordered to pay to the applicant, Mr Bhatty, £7,824.80 as damages for race discrimination.
7. On 21 December Mr Bhatty made further complaint to the Employment Tribunal and on 1 January 2001 he lodged a Notice of Appeal at the Employment Appeal Tribunal. It says in its paragraph 6, where the grounds need to be set out:

"(a) The decision was wrongly made as a result of numerous errors on the part of the Tribunal staff in calculation, assessment, and wrong assumptions in calculating the award. Valid evidence was neglected.

(b) New evidence on employment needs to be considered.

(c) The amount of compensation calculated by Respondent though less than the amount demanded by the Applicant is still many times more than that awarded by Tribunal. This Tribunal did not understand the calculations."

That was (c), it seems to jump to (e).

"(e) The interest of Justice requires such a review."

8. On 5 February 2001 the Chairman, treating the correspondence which he had received from Mr Bhatty as a request for a review, declined a review on the basis that there were no grounds upon which it could be ordered. Mr Bhatty has prepared a typed skeleton argument which makes his points more fully and more clearly than the Notice of Appeal itself does and we need to have a look at that because, as I mentioned earlier, although Miss Hill has concentrated the argument, none of these other points have actually been abandoned. Mr Bhatty first argues – this, I think, is his (2.1.1) - that the Employment Tribunal failed to understand that in the 17 months from his dismissal on 11 May 1999 down to the remedies hearing, he had in fact been in employment. The Tribunal, as it seems to us, thoroughly had that in mind. They recognised that Mr Bhatty went immediately into fresh employment. They said in their paragraph 5:

"It seems to us, on a balance of probabilities, that the applicant found work through Hill McGlynn on or about 11 May."

There might be some dispute about whether Hill McGlynn, which is an agency firm, was exactly the right name through which he found work but that he was in work from 11 May seems thoroughly to have been recognised by the Employment Tribunal.

9. When the Employment Tribunal spoke of the effort Mr Bhatty had made to find alternative employment they were plainly looking to see what efforts he had made not to gain any employment but to get employment at a level of remuneration closer to the £33,000 per annum gross plus motor car which he had been entitled to at the Miller Group. One might also have in mind his efforts in seeking a permanent position, which is what he hoped to receive from the Miller Group. But it seems to us no error of law appears in this first head of Mr Bhatty's argument.
10. Next, Mr Bhatty refers in his (2.1.2), to the Employment Tribunal describing his total income for the 1998/1999 tax year as being such and such when he says that the figure that they gave was, in fact, for the 1999/2000 tax year and he says that the Employment Tribunal concluded that he had been out of work for 17 to 18 months. But, again, that seems to us not to be the case.

Firstly, the Employment Tribunal's computation recognises that he had been employed, albeit suffering a shortfall in income, from 11 May 1999. And, secondly, the Tribunal's reference to 1998/1999 should plainly have been to 1999/2000. It seems to us that that was just a typing or clerical error. The Tribunal was unsure of whether a sum of £2,569 received from Millers on 11 May 1999 was within the figure which they gave. But within that paragraph 5, in which these facts are mentioned, the Tribunal was looking to the period forward from 11 May 1999, in other words, to a period after the expiry of the 1998/1999 tax year on 4 April 1999. That makes it plain that the reference 1998/1999 was a typing or clerical error and certainly not an error of law.

11. And then Mr Bhatty says that the Employment Tribunal ignored his continuous employment following dismissal by Millers. But they did no such thing. They recognised that he had earnings. They said as to that:

"Loss of Earnings

The evidence in relation to loss of earnings was unclear and somewhat imprecise. This was largely due to the fact that the applicant has failed to produce any evidence of his earnings with the agency after his dismissal. What he has produced is a copy of a letter dated 4 October 2000 which gives his details of present pay but not at the relevant time. Working with the information that we have, and doing the best that we can, we make the following findings:

(i) That the applicant was working 40 hours per week through the agency at a rate of £13.00 per hour. That equates to £520.00 per week gross. Applying income tax at the basic rate and National Insurance, his net pay would be approximately £408.75. That equates to a monthly net rate of pay of £1,771.25

(ii) The applicant's net pay with Miller was £2,065.61 per month."

It seems to us no error of law (and we have to emphasise that it is only errors of law with which we are concerned) appears in that part of Mr Bhatty's complaint.

12. Next, Mr Bhatty says that there is a material contradiction between the liability decision and the remedies decision on the subject of what the case would have been but for the racial discrimination that was held to have existed. This is an area on which Miss Hill has sought to concentrate. Millers had said, as we have seen from their IT3, that he was dismissed, in effect, for capability. They perceived that he was not able to manage the project which they had assigned to him. But there were, held the Employment Tribunal at the liability decision, serious flaws in relation to the dismissal procedure and at the internal disciplinary appeal stage. His construction manager though, Mr Taylor, had lost complete confidence in him. The question which the Employment Tribunal asked at the liability stage was not so much why was he dismissed but why he was dismissed so quickly? On that they said:

"The applicant's team members held private meetings and discussions where they discussed the applicant's performance and relayed their opinions to Mr Taylor. At the very least, we would expect Mr Taylor to have put those concerns to the applicant so that they could be addressed. We would have expected the company, if this was a capability issue, to have held some form of assessment or appraisal to analyse where the difficulties lay. Instead, Mr Taylor appears to have made a fairly swift decision that the applicant was not the man for the job. We can find no logical explanation for his conclusions. In the absence of any such logical reason we draw the inference that it was because of race. There is no other satisfactory explanation. We are satisfied that, on a balance of probabilities, the applicant was treated less favourably because of his race."

And then in their paragraph 43, their penultimate paragraph:

"The applicant's manner of performing the contract may well have been different to the respondent's expectations. We do not say that the entire reason the applicant's dismissal was because of race, but it seems to us that race was an element in that decision. Had it not been for that element, the applicant may well have been given longer to acclimatise himself to his new job. Given time, he may well have remained in employment. In other words, it is unlikely in our view that he would have been dismissed if race had not been a factor."

In that last sentence the dismissal that they are discussing is the very early dismissal which in fact occurred on 11 May 1999. In context they are not saying that it would have been unlikely that he would ever have been dismissed. That would have required them to say that but for race he would definitely have been given more time to settle in but they do not say that; they say only that but for race he may well have been given more time. Given that race was not the entire reason but merely an element in his dismissal and that the manager was held to have lost complete confidence in him, a dismissal independent of race would have been needed to have been expressly ruled out before it could have been altogether discounted but it was not expressly ruled out at the liability stage. We have seen the language that the Tribunal used at that stage.

13. We then come forward to the remedy stage. The Tribunal says;

"Race was an element in accelerating his process of dismissal, but it was by no means the only element. The respondents were also genuinely concerned about the applicant's performance.

It seems to us that on the balance of probabilities, the applicant was unlikely to remain in employment for very long. At best, he would have remained there for no more than six to seven months had the process of discrimination not served to accelerate his dismissal. We therefore consider it appropriate to award the applicant loss of earnings for a further period of six months after 11 May."

14. Now Miss Hill complains that there was no evidence on which a conclusion about six or seven months was reached. But, of course, in the one sense, one never can never have strict evidence of what would have been the position in such a hypothetical case. The Tribunal was having to do the best it could to estimate what would have happened had not the earlier dismissal, which was tainted by race, taken place. The Tribunal is carefully made up not only by a legally qualified Chairman but by representatives of both the employee - and employer - sides of industry and the whole point of having such a carefully composed industrial jury, as it is said, is that they can hear the evidence and form a view of what the likelihood would have been in the hypothetical situation which they were having to address.
15. At the liability stage, it had sufficed for the Tribunal to be in Mr Bhatty's favour simply because there had been some unfavourable treatment. At the remedies decision they had to focus in more detail about precisely what the unfavourable treatment was and what the consequences would have been had that unfavourable treatment, on a racial basis, not existed. There is a conflict between the two passages in the liability and the passages in the remedies decision only if one ascribes to the passage within the liability decision the view that they were talking about dismissal altogether but in context it seems to us that was not the case. What they were looking at the liability stage was why he had been dismissed as quickly as he had been. And that is quite apparent from the passage in paragraph 38 of their reasoning where they said:

"We have had to ask ourselves: Why was the applicant dismissed so quickly?"

One emphasises this time the words "so quickly"

In the absence, as it seems to us, of there being a clear contradiction both passages can be fully understood and it seems to us there is no ground for error of law in the complaint that is made based on a suggested contradiction between the two passages. The complaint, so far as it concerns an absence of adequate evidence, is not one that we can accept given that the subject is inescapably somewhat hypothetical and the Tribunal, as it said, was left to do the best it could on the grounds of probabilities.

16. On the footing that the Employment Tribunal was not in error of law and held that Mr Bhatty would have remained in Millers employ for only a further 6 or 7 months, there was, it seems to us, no error of law in their computing his loss of earnings by reference to that six or seven months period, which is exactly what they did. The fact that Millers had themselves submitted figures for losses over 18 months cannot vitiate the Tribunal's decision that the loss which required compensation was in fact loss over only the shorter period of 6 to 7 months which they found. Again we see no arguable error of law.
17. In his (2.2.3), Mr Bhatty claims that his computations were ignored and that the low award sends the wrong signal to transgressors, by which we mean those guilty of sex or race discrimination, here race discrimination. The Employment Tribunal had in mind the computations which Mr Bhatty had laid before them and they carefully set those out in their paragraph 3 as follows:

"The applicant seeks compensation and damages as follows:-

(i) Injury to feelings £250,000.00

(ii) Aggravated damages £175,000.00

(iii) Compensation for loss of earnings £ 16,000.00

(iv) Compensation for future loss of earnings £462,000.00

(v) Compensation for damage to reputation £225,000.00

Total £1,128,000.00"

18. The fact that those figures were not adopted does not, of course, prove that they were ignored. There is no doubt that the Tribunal had them in mind because there they are set out in their decision. As for the wrong message being sent to transgressors, awards are required by statute to be compensatory, even as to awards of aggravated damages, (if and when the somewhat particular pre-conditions of such awards are met, which the Tribunal specifically held in this case they were not). So far as concerns damages, it may be worth looking at Gbaja- Biamila v DHL International (UK) Ltd & Ors [2000] ICR 730 EAT at 738 to 741 and the cases there cited. It is not a permissible function of an award of damages to punish beyond full compensation and that is the point more fully explained in Gbaja- Biamila.
19. Mr Bhatty complains that the injury to feelings that he was awarded, £3,000, was too low. However, the Employment Tribunal carefully considered the subject. They directed themselves by reference to 4 relevant authorities. We notice no error in the directions that they gave themselves. They said:

"We do not find anything particularly exceptional about this case. Mr Bhatty was discriminated against but it cannot be said to be a particularly nasty or repugnant case of discriminatory treatment. Mr Bhatty's feelings would certainly have been injured when he was dismissed but they were more to do with his indignation at being dismissed rather than as a result of discriminatory treatment. His pride was hurt. He could not believe that a man of his calibre and qualifications could be sacked so soon into a new job. His injury to feelings was not only because it was a decision tainted by race discrimination, but also because of what he believed to be contrary to common sense and reason. Whilst the applicant cannot complain, as a matter of law, to acts of discrimination after dismissal, the injury to feelings after dismissal is of course, highly relevant. Nevertheless, we would not say that this was a particularly distasteful case of race discrimination. After taking into consideration all the factors, including the guidance referred to above, we consider that a reasonable award for injury to feelings would be £3,000.00. We remind ourselves, and in doing so remind the applicant, that this is not a case of racial harassment or victimisation. It is one act of discrimination which resulted in the applicant suffering detriment. There is no evidence that the applicant has suffered severe deep-seated injury to his feelings or to his health. There is no medical evidence on which to make any award for damages for personal injury following the decision of the Court of Appeal in Sheriff-v- Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481."

20. They obviously, in other words, looked into injury to feelings very carefully and we think we ought to remind the parties of the last paragraph in Gbaja-Biamila v DHL International (UK) Ltd & Ors [2000], page 747 where the Employment Appeal Tribunal said this:

"In considering a subject as nebulous as injury caused to feelings by racial discrimination, a matter so personal to the complainant affected, so potentially variable from one complainant to another and so dependent on surrounding circumstances, the importance of the advantage enjoyed by those who have, over a period, seen and heard the complainant giving evidence is hard to exaggerate, especially where there is little or no reliable independent medical, psychiatric or psychological evidence. The tribunal in our case had that considerable advantage; they did not expressly indicate they were relying upon any wrong principles of law. Indeed, the express directions they gave themselves are not faulted. Nor, in our view, does the figure they awarded of itself indicate that some wrong principle must have been espoused. It cannot be said to be wholly erroneous; it is not perverse. We are unable to detect any error of law in the award."

And that is a passage which, mutatis mutandis, could be fairly adopted to be applied to this case too.

21. Mr Bhatty complains that he suffered a mental shock, giddiness, changed heart rhythm, loss of confidence and so on but he does not suggest that the Employment Tribunal had any medical evidence to such effect laid before it, either evidence of such conditions or, even more so, evidence that showed a causal link between those medical conditions and the racial element in his dismissal, and that last sentence that we quoted from the Tribunal, "There is no medical evidence on which to make any award for damages for personal injury", shows that there was none before the Tribunal.
22. We are unable to say, coming back to the two points on which Miss Hill most concentrated, that there was no ground upon which the Tribunal could have held that had there not been the racially accelerated dismissal that did occur, Mr Bhatty would have survived more than six or seven months. That seems to us inescapably a matter of inference but one which the Tribunal, we cannot say, was unable to make. Secondly, we don't find that there was any significant misunderstanding in the way in which the Tribunal computed the figures which they arrived at. All in all, having now, I hope, dealt not only what has been said orally today but what has been said previously in writing, we are not able to find any arguable error of law and so, even at this preliminary stage, we must dismiss the appeal.