United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A GUMBITI-ZINIUTO (of Counsel) Avon & Bristol Law Centre 2 Moon Street Stokes Croft Bristol BS2 8QE


 


THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a Preliminary Hearing the appeal of Mr L Campbell in the matter Campbell v Computeraid Services Ltd. This morning Mr Gumbiti-Ziniuto has appeared for the Appellant, Mr Campbell.
2. On 5 February 2001 Mr Campbell lodged an IT1 for racial discrimination. He continued to be employed by Computeraid as a Field Service Engineer. He had been there some 14 years. He said that whites had been promoted to the position of Senior Engineer but blacks had not and he is black. He lodged a grievance on those lines, he said. It had been rejected. He identified Mr Ben Butler as a comparator in relation to his complaints about promotion, and Miss Jacqui Spice as to another part of his complaint, which was that he had been removed from work at a site and, unlike her, he said, he had not been offered the opportunity of "on the job" training in order to improve. That was broadly speaking the nature of his case.
3. On 28 February 2001 Computeraid put in its IT3. They said that in fact his grievance had merely been about pay. His grievance had been thoroughly investigated and the evidence did not support racial discrimination. He had appealed against the finding on the grievance and the appeal had also failed. There had been a detailed examination of the charge of racial discrimination and it was rebutted. Also, it was said that the comparators that Mr Campbell had selected were not appropriate.
4. In June 2001 there was a hearing spread over some three days and there was one day in July which the Tribunal dealt with the case in Chambers. Mr Campbell was represented by the Avon and Bristol Law Centre and Computeraid by counsel. On 29 August the decision was given and sent to the parties; it was:

"The unanimous decision of the tribunal is that the applicant was not treated less favourably than others on racial grounds contrary to s.1(1)(a) of the Race Relations Act 1976. The complaint is dismissed.

That was a decision of the Tribunal at Bristol sitting under the Chairmanship of Mr M Sutton. On 9 October 2001 the Employment Appeal Tribunal received a Notice of Appeal. So the matter has come to a hearing very quickly.

5. Mr Campbell's complaints can be properly divided into two limbs or headings. The Tribunal said of the second heading in their paragraph 2(2) as follows:

"the applicant was removed from an assignment as site engineer with Great Western Trains in Swindon on or about 26^th April 1999, without any proper justification or explanation. If, contrary to the applicant's primary case, there was a genuine concern about his technical ability to perform the assignment, the applicant contends that he was discriminated against in not receiving support and training sufficient to enable him to perform the role. Miss Jacqui Spice was identified as a comparator.

That second limb, the whole of 2(2), itself divides into two parts. The first sub division of that second limb is that he was improperly removed from the site on racial grounds. Then there is a second sub division, alternatively, if that first one is wrong, then, again on racial grounds, he was not given on the job training which would have enabled him to stay at the site and become adequate, one would hope, as a result of that training, which had been the treatment afforded to Jacqui Spice. He had been removed from the site on 26 April 1999. The Tribunal well knew that it had before it an application for a just and equitable extension of time in relation to both limbs, (1) and (2), of Mr Campbell's complaint. In their paragraph 46 they say:

"So far as the second limb of complaint is concerned, namely the allegation that the applicant was removed from the GWT site at Swindon after one day, the tribunal finds that such complaint, which concerns an event which took place on 26 April 1999, is brought out of time, and that no basis has been advanced to justify the exercise of the tribunal's discretion to consider the complaint out of time on 'just and equitable' grounds."

6. That appears to speak in one part to the whole of the second limb of complaint and yet when it comes to describe the nature of the complaint it is merely 'that the applicant was removed from the GWT site at Swindon after one day'. It neglects there to deal with the second sub division of the second limb which involves the differential treatment, as it was said to be, of him compared with Jacqui Spice. Continuing in their paragraph 47 the Tribunal said:

"The applicant's representative, in her submissions, points to the discovery of the contents of Mr Jones' e-mail as the event that crystallised the applicant's complaint. The tribunal does not accept that this is so. The facts material to the second limb of complaint were known to the applicant some 18 months prior to the commencement of proceedings. Although the respondent's treatment of Miss Spice is a matter which may have come to the applicant's attention within the relevant three month period, we do not find that the applicant's perception that he had been treated unfairly on grounds of race stemmed from that event."

That reference to Mr Jones' e-mail is a reference to an e-mail of April 1999. That was dealt with in paragraph 19 which says:

"Following a discussion with Mr Hughes, Mr Jones sent an e-mail to Mr Vierk advising the applicant's line manager that 'a number of general straightforward tasks are proving to be quite difficult for [the applicant] to understand'. There were also anticipated changes in the on-site personnel at Swindon which would make 'the on-site position far more demanding'. Mr Jones stated in conclusion:

"unfortunately I do not feel that Leighton [that is Mr Campbell] possesses the required experience nor the basic fundamental skills to run the site effectively unsupervised."

It is plain that the drift of that e-mail was brought to Mr Campbell's attention because in the next paragraph the Tribunal says:

"Mr Vierk took the decision to withdraw the applicant from the site after the first day of his trial period. The applicant was not shown a copy of Mr Jones' e-mail at that time, but was provided with a generalised account of Mr Jones' concerns. The applicant was understandably upset by the whole episode, but did not query the outcome. He did not consider at the time that the decision was in any way affected by his race."

One can therefore see that the Employment Tribunal could very reasonably conclude that the second limb sub division one, was not only out of time but that it was not just and equitable to extend time. We have not understood Mr Gumbiti-Ziniuto to be advancing any complaint about the way in which the Employment Tribunal treated the first sub division of the second limb.

7. On the second sub division of the second limb questions arose; was the complaint out of time and, if it was, was it just and equitable to extend that? That, at any rate as to the latter part, depended on when Mr Campbell learned for the first time that Jacqui Spice, although held by her employer not to be up to the job, instead of being removed from the site was instead given on the job training that enabled her to stay on and improve. As to that, one goes back to the Tribunal's phrase 'although the Respondent's treatment of Miss Spice is a matter which may have come to the Applicant's attention within the relevant three month period, we do not find that the Applicant's perception that he had been treated unfairly on grounds of race stem from that event'. That reference to the Respondent 's treatment of Miss Spice seems to suggest that that knowledge only came to Mr Campbell's mind within the three month period before the IT1.
8. So there was some factual basis for an argument that, at any rate the second sub division of the second limb was a case which should have been permitted to go forward on just and equitable grounds. It was never properly dealt with on that basis. There is no resolution by the Tribunal of whether in fact Mr Campbell's knowledge of Miss Spice's different position did come to his notice within the relevant three month period or some other time and how that affected the justice and equity of an extension.
9. Although the case is certainly very close to a dividing line between that which is arguable and that which is not, we think on balance that it is right that that part of the case should go forward. We think there is an arguable error of law in that the Tribunal cannot clearly be seen to address whether the second sub division of the second limb was out of time and, if it was, whether it was just and equitable to extend time.
10. The Tribunal went on to consider the substantive case, including the substantive case so far as concerned the second sub division of the second limb. They say this:

"A white engineer, similarly placed, would have been treated no differently. Neither do we find any basis of complaint arising out of the respondent's decision to withdraw the applicant from site instead of providing on the job support and training. Such a course would not have been practicable in the circumstances.

Further, we do not find that the case of Miss Spice satisfied the requirements of a proper comparator within the meaning of section 3(4) of the Act. The circumstances of her case were materially different from those of the applicant. No meaningful comparison can be drawn between them."

It may be that the Tribunal felt that they could deal with the case very briefly because they might have thought they were dealing with a case where time had not been extended. Treating that as a free standing treatment of the second sub division of the second limb, it is, as Mr Gumbiti-Ziniuto argues, at least arguably insufficient. To say such a course would not have been practicable in the circumstances without explaining why is at least terse. To say that no meaningful comparison can be drawn between them without explaining why, again, can be said to be too brief a description in the situation that the parties are entitled to know why they lost and why they won. It may well be that to those who heard the evidence it was dazzlingly obvious that no meaningful comparison could be drawn and that the course of on the job training would not have been practicable in the circumstances as they applied to Mr Campbell. If that had been spelled out nothing arguable would have arisen but it was not spelled out and, on balance, we find it arguable that the matter was too tersely dealt with.

11. We do allow the arguments in the Notice of Appeal applicable to the second part of the second limb (as to the lack of on the job training) to go forward to a Full Hearing. It seems to us that Chairman's notes are going to be necessary. A request will be made that the Chairman should supply –

Notes of submissions made on the time limit issue

Oral evidence given on the time limit issue

Oral evidence as to the treatment of Jacqui Spice

Oral evidence as to Mr Campbell's learning of the treatment of Jacqui Spice

Oral evidence as to the difference between Mr Campbell's treatment and the treatment of Jacqui Spice

Oral evidence as to why on the job training would not have been practicable in the circumstances in which Mr Campbell found himself.

Subject to that particular request the matter is to go forward to a Full Hearing on the usual basis that skeleton arguments should be exchanged between the parties and sent to the Employment Appeal Tribunal not less than fourteen days before the hearing.