United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	DAVID NYE (Representative) Sheffield Racial Equality Council 3rd Floor Norfolk Chambers 9-11 Norfolk Row Sheffield S1 2PA
For the Respondent


 


MR RECORDER BURKE QC

1. Mr Wilson, who is of mixed West Indian and English origin, appeals against the decisions of the Employment Tribunal sitting at Sheffield, chaired by Mr David and sent to the parties on 21 August 2000.
2. There were three complaints before the Tribunal contained in three originating applications. In the first, Mr Wilson claimed that he had been subject to racial discrimination by his employers arising out of the removal from him of an enhanced rate of pay, called a plus rate. In the second, Mr Wilson claimed victimisation and unlawful deduction of pay arising out of the manning arrangements for the machine on which he worked, the unlawful deduction of pay being the removal of the plus rate referred to in the first complaint and the protected act relied upon being the complaint of racial discrimination set out in the first originating application. The third originating application claimed unfair dismissal, racial discrimination and victimisation. The dismissal alleged was a constructive dismissal. Mr Wilson alleged that his team leader had in April 2000 been told by his line manager, Mr Smith, not to talk to him. This caused such stress, claimed Mr Wilson, that he went off work. His terms and conditions of employment, he said, were completely undermined and he felt he had no alternative but to resign. All of the complaints were dismissed. This is the Preliminary Hearing of Mr Wilson's appeal against those decisions.
3. The three applications were consolidated and heard together. There is only one Notice of Appeal to the Employment Appeal Tribunal, which we treat, of course, as a Notice of Appeal against all of the three elements of the consolidated decision.
4. The decision of the Tribunal is lengthy and reasoned. It sets out the Tribunal's findings on the evidence clearly and in great detail. Mr Wilson, we hope, understands that the Employment Appeal Tribunal can only interfere with a Tribunal's decision if there is a demonstrable error of law. At the stage of the Preliminary Hearing the question is whether the grounds of appeal put forward demonstrate an arguable error of law. The Employment Appeal Tribunal cannot entertain a re-consideration of the facts or re-evaluation of the weight given to evidence.
5. The Notice of Appeal sets out nine grounds; but we need not go through those nine grounds in detail because Mr Nye, who has appeared for Mr Wilson today and has put forward Mr Wilson's case with skill and frankness, accepts and indeed urges that we should concentrate on the grounds set out at paragraphs 7 and 8 of the Notice of Appeal. The other grounds, he says, are merely legal formulations of the result which he would argue for if the errors to which he directs our attention and which are referred to in paragraphs 7 and 8 of the Notice of Appeal are arguably established.
6. In paragraph 8 of its decision the Tribunal, in dealing with the first complaint, found that when the plus rate was removed, as it was after the employers had decided to discontinue the Mauri production in respect of which the plus rate had originally been agreed to be paid, the Applicant Mr Wilson and Mr Parks immediately complained to Mr Corke, the production manager. There was a meeting at which both were represented by their shop steward. The removal of the plus rate was discussed, said the Tribunal, but Mr Corke was unable to overrule the decision; then come the words on which Mr Nye has focused:

"Although expressing some sympathy with Mr Parks."

At the end of the meeting Mr Wilson indicated that he felt he was being treated unfairly because of his colour. There were further meetings; eventually, the Tribunal found at paragraph 9, Mr Crowther offered to restore Mr Wilson's plus rate. Mr Nye tells us that Mr Wilson, by that time angered by what he thought was discrimination against him, decided not to accept the offer of restoration of the plus rate. Mr Nye, having drawn our attention to those words which we have quoted, submits that the expression of sympathy for Mr Parks but the absence of such an expression of sympathy for Mr Wilson was in itself a difference of treatment between the two, Mr Parks being white and that the Tribunal ought to have considered that difference in treatment between two employees of different ethnic origins and examined whether that difference of treatment was on racial grounds.

7. We do not believe that the Tribunal arguably erred in that respect. The complaint which they were investigating, as is clear from the first originating application, was of unfavourable treatment in relation to the removal of the plus rate. For that purpose, because the only two employees who had the plus rate were Mr Parks and Mr Wilson they plainly regarded Mr Parks as an actual comparator throughout the lengthy exercise, in their decision, of considering whether there had been such unfavourable treatment.
8. There is nothing to indicate whether they were ever asked to consider a separate item of unfavourable treatment, namely, the expression of sympathy in relation to one employee rather than the other. The submissions put on behalf of Mr Wilson at the end of the case by his representative are summarised in paragraph 11 of the decision and do not indicate that the point now taken was then being taken. Nor indeed in any of the subsequent IT1's, the second of which certainly referred in detail to the event relating to the removal of the plus rate, is there any reference to differential treatment in relation to an expression of sympathy. The likelihood is, in our judgement, that that differential was not regarded as being of sufficient substance to justify separate investigation, and insofar as it formed part of the total treatment of Mr Wilson as compared with Mr Parks in relation to the removal of the plus rate, the Tribunal plainly expressly found on the facts that there was not any differential treatment; and that is a finding of which, in our judgement, is not open arguably to attack in this appeal.
9. We think it is probable that Mr Corke expressed sympathy with Mr Parks for this reason. Mr Wilson, as the Tribunal found, and Mr Parks were both entitled while working on the Mauri line originally to an enhanced rate of 50p per hour. So far as Mr Parks was concerned he was promised that that would continue for as long as he was on the Mauri line; and so when the Mauri ended he was inevitably going to lose 50p per hour. Mr Wilson, on the other hand, on the findings of the Tribunal was to start with a plus rate of 50p for working on the Mauri line which was made up of 35p for training Mr Parks over a training period estimated to last about 3 months, and 15p for other work. When the training period ended Mr Wilson went on being paid 50p per hour working on the Mauri line by way of a plus rate; and that plus rate was not reduced, although the employers on the findings of the Tribunal were entitled to reduce it, to 15p per hour. Thus the employers had been paying an extra 35p per hour to Mr Wilson for several months. Needless to say Mr Wilson did not complain about that; who would? The employers did not complain about it either; but clearly Mr Wilson was losing only an entitlement of 15p per hour as compared with Mr Parks who was losing an entitlement of 50p per hour by the termination of the Mauri production line; and that is likely to be, in our judgement, the reason why the expression of sympathy was made. Certainly it does not appear to have been argued before the Tribunal that it had been made on racial grounds or that they should consider that it had been so made.
10. Mr Nye goes on to submit that that expression of sympathy foreshadowed a further and much more important differential in the treatment of Mr Wilson and Mr Parks, namely that Mr Parks got his plus rate back while Mr Wilson did not. No one reading the decision of the Tribunal in this case could think that those were in reality the facts. The Tribunal says nothing at all anywhere about Mr Parks getting the plus rate back, either at all or earlier than it was offered to Mr Wilson.
11. The Tribunal does record at paragraph 9 that the plus rate was offered back to Mr Wilson while enquiries were made into his allegations of discrimination; but Mr Nye tells us that he rejected it; and the inference from the Tribunal's decision is that he did reject it, because it is certainly not suggested that he accepted it. In any event the offer was only during the course of the investigation. The Tribunal finds at paragraph 7 that both the Applicant, and Mr Parks were told that they would revert to their grade rates of pay and would lose the plus rates. It finds at paragraph 8 that Mr Corke was unable to overrule the decision that the plus rate would be removed. It finds at paragraph 9 that the offer to restore Mr Wilson's plus rate, to which we have referred, was made but says nothing about any restoration of the plus rate, or even an offer of restoration of the plus rate to Mr Parks. In paragraph 11 it sets out the arguments on behalf of Mr Wilson which plainly concentrated on the withdrawal of the plus rate and said nothing at all about any differential in relation to the restoration of the plus rate to Mr Parks.
12. The Tribunal conclude by finding in paragraph 11 that the Applicant's plus rate was not different in principle from that of Mr Parks, and the circumstances were shown by the employers to be virtually identical to the removal of the plus rate from two other employees. Thus the Tribunal plainly found that there was no difference in treatment between Mr Parks and Mr Wilson or indeed, between Mr Wilson and anybody else.
13. It is extremely difficult, if not impossible, to believe that if Mr Parks had had his plus rate restored to him while Mr Wilson did not, on the evidence before the Tribunal, that would not have been a specific part of the submissions made by the advocate on behalf of Mr Wilson and would not have been plainly and clearly flagged up by the Tribunal in its decision, because it would have been too obviously a major point. It is fair as well to draw attention to the fact that in none of the three originating applications does Mr Wilson suggest that the differential treatment to which we have referred which is suggested, namely the restoration of the plus rate, had occurred or was part of his complaint.
14. For those reasons we do not accept Mr Nye's suggestion which he has been unable to support by anything concrete. He was not present at the Tribunal himself and has not got any information from the person who was representing Mr Wilson as to what the evidence was in contradistinction to what appears in the Tribunal's decision.
15. We therefore have come to the conclusion that paragraph 8 of the Notice of Appeal also contains no arguable ground; and thus, in neither of the two ways in which Mr Nye has submitted to us that the Tribunal erred, did the Tribunal in fact make an error of law. Accordingly there is no arguable ground for this appeal which is dismissed.