United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SARAH MOOR (of Counsel) Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW
For the Respondents	MR W DIAMOND (Consultant) Heald House Cottage Heald House Road Leyland Lancashire PR5 2JA


 


HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by the Appellant, Mr Pennant, before an Employment Tribunal sitting at London North, now Central, chaired by Mr Ivor Walker, on 1-2 March and 4-5 May 2000, the first two dates do not appear in the Tribunal's decision and we understand that the last day, 5 May, was spent in Chambers deliberating over this case, against that Tribunal's decision, promulgated with Extended Reasons on 31 May, dismissing his complaints of direct race discrimination and victimisation under the Race Relations Act 1976, brought against, (1) his employer, IPC Magazines Limited and (2) the first Respondent s' Retail Sales Director , Mr Nigel Clout.
2. The nature of the Appellant's case was clearly set out in particulars attached to his Originating Application dated 6 September 1999 as follows:

"1 I am black British of West Indian origin.

2 I have worked for the first Respondent since February 1992 as Retail Sales Analyst. The second Respondent is the Retail Sales Director and is responsible for the Department in which I work including determining pay rises.

3 I consider I have been less favourably treated on the grounds of my race while working for the first Respondent in relation to my pay rises for the years 1998 and 1999 and otherwise. I received the smallest pay rises in the Department. This has been to my detriment.

4 On 7 June 1999 the second Respondent said to a colleague that I was "a lazy black bastard".

5 I lodged a Grievance under Company procedures on 5 July 1999.

6 On 8 July 1999 the second Respondent demanded that I provide him with a list and print out of all schemes I had analysed to date. He shouted at me and set an unreasonable time scale for this work.

7 The second Respondent has also required that I take on extra duties without extra pay. He has also prevented me from coaching school children by withdrawing my previous arrangement where I was able to use flexi time to leave early.

8 The second Respondent continually monitors my time keeping and work load in an oppressive manner. This monitoring is not applied to other colleagues.

9 My grievance was not properly investigated by the first Respondent. The first Respondent reached conclusions in my grievance and published those conclusions before giving me an opportunity to comment. The grievance procedure has been used to produce unjustified complaints about me from my colleagues. This is the first time I have been aware of such complaints. In breach of the first Respondents procedure, I have not been allowed an appeal against the conclusions.

10 And in all the circumstances I consider I have been less favourably treated on the grounds of my race and victimised for raising a grievance about my less favourable treatment."

3. Thus, the following questions of fact and law arose for the Tribunal's determination.

(1) Did the Appellant in 1998 and/or 1999 receive lower pay rises than his colleagues in the department in which he worked as a Retail Sales Analyst? If so, was there a difference in race between the Appellant and those comparators? Is so, what explanation for the difference in treatment was given by the Respondent? Was the explanation, in each instance, considered satisfactory by the Tribunal?

(2) Did Mr Clout tell a colleague, it transpires a Ms Richardson, that the Appellant was a "lazy black bastard"?

(3) Depending on the Tribunal's findings on (1) and (2) above, should they go on to draw an inference of unlawful racial discrimination?

(4) Did the Appellant do a protected act for the purposes of Section 2 of the Race Relations Act?

(5) If so, could he show less favourable treatment than that which would have been meted out to a person who had not done the protected act in that: -

(a) on 8 July 1999, after he had lodged his grievance against Mr Clout, the latter shouted at him and/or

(b) thereafter he was over-monitored by Mr Clout and/or

(c) his grievance was not properly investigated by the first Respondent?

This question will depend upon the Tribunal's findings of fact as to the incidents complained of at (a)-(c).

4. In identifying the issues in this way we are not seeking to place Employment Tribunal chairmen, who come to write the Tribunal's reasons for their decision, into a formulaic straightjacket requiring them to parrot the relevant statutory provisions, or the well-known guidance given by Lord Justice Neill in King v Great Britain China Centre [1991] IRLR 513, approved by the House of Lords in Glasgow City Council v Zafar [1998] IRLR 36, but to ensure that Tribunals not only ask themselves the right questions and answer them clearly, but that they are seen to have done so by their written reasons so that the parties may know why they have won or lost. – Meek v City of Birmingham District Council [1987] IRLR250. Nor are we suggesting, contrary to the guidance given by Mr Justice Mummery in Quereshi v Victoria University of Manchester now reported at [2001] ICR 863, that each allegation of discrimination or victimisation must be separately considered in order to see whether the statutory tort is made out. It will be for the Tribunal to consider the totality of the evidence and then of their findings of primary fact, before deciding whether or not the statutory definition of discrimination or victimisation is made out, bearing in mind that the question is whether or not to draw an inference of discrimination or victimisation from the totality of the facts. Before reaching that stage, it is important that the Tribunal carries out a full enquiry, that is, that they make all necessary findings of fact to enable them to reach a proper conclusion in the case. – Anya v University of Oxford [2001] IRLR 377.
5. Turning to this Tribunal's reasons, it seems to us that they do not seek to set out the issues in clear terms. Rather, they make passing reference to the words of Section 1(1)(a) of the Act and to Section 2; they set out some findings of fact, shortly at paragraph 5 of their reasons, and then go on to deal with the arguments raised on behalf of the Appellant, interspersed with further findings of fact. Looking at the reasons as a whole we are persuaded by Ms Moor that they do not demonstrate on their face that the Tribunal has properly considered this case. Whilst the story is told in understandable form it leaves too many gaps, which we feel unable to plug, reading the decision in a way favourable to the Tribunal. The specific criticisms which we accept are these: -

(1) There was a straight conflict of evidence between Ms Richardson and Mr Clout as to whether Mr Clout made the 'lazy black bastard' remark at her leaving party. The Appellant was not present and could give no evidence about it. Curiously, the Tribunal made no reference to Ms Richardson's evidence at all. They instead concentrate on the fact that Mr Levrett, who was tasked to investigate the Appellant's grievance, reached a reasonable conclusion that Ms Richardson's allegation that the remark was made by Mr Clout could not be sustained. It is right to point out that Mr Levrett did not interview Ms Richardson.

That finding is plainly relevant to the Appellant's complaint of victimisation in relation to the investigation by Mr Levrett, but it does not go to the factual issue at the Tribunal between Ms Richardson and Mr Clout. As to that, as Mr Diamond points out, there is a finding by the Tribunal that the remark was not made. But there is no reference at all to Ms Richardson's evidence and no explanation as to why her evidence was rejected. We refer to the observations of Mr Justice Morison in Tchoula v Netto Foodstores Ltd (EAT 6 March 1998 Unreported) cited with approval by Lord Justice Sedley in Anya, paragraph 24. A bald statement that X's evidence was preferred to Y's is both implausible and unreasonable. In fact, this Tribunal did not even go that far. Curiously again, at paragraph 14 of their reasons, they state that where there is a conflict in the evidence between Mr Clout, Mr Gould (the Junior Manager) and the Appellant, they prefer the evidence of Mr Clout and Mr Gould. They simply do not mention the evidence of Ms Richardson.

(2) At paragraph 13 of their reasons they refer to the 1999 pay award. They refer specifically to an explanation for the difference in treatment between the Appellant and his colleagues in his department, he received a lower increase than anyone else, given by Mr Clout in his witness statement, namely that the Appellant had caused difficulties with regard to work following the departure of a Ms Julie Russell. In fact, Ms Russell left the employment after the 1999 pay award was made, as is common ground. If that was the explanation given by the Respondent for the difference in treatment, how could it be accepted? We are not told.

(3) The Tribunal has plainly overlooked the complaint made by the Appellant, as part of the victimisation claim, that he was over-monitored after he had raised his grievance about Mr Clout's alleged racial remark. It was raised in the Originating Application at paragraph 8 of the particulars of complaint. The Appellant gave evidence to that effect; Mr Clout was, we accept from Ms Moor, cross-examined about that matter; she raised it in her written closing submissions to the Tribunal. But that part of the cross-examination is not recorded in the Chairman's notes of evidence which are before us and it is nowhere referred to in the Tribunal's reasons.

6. These matters, coupled with the Tribunal's patent failure to identify and resolve the actual issues in the case, in their reasons, lead us reluctantly to conclude that the decision cannot stand. The appeal must be allowed and the case remitted for full rehearing before a fresh Tribunal.
7. We reach this conclusion with reluctance because the parties will be put to the inconvenience and expense of a rehearing, when memories of witnesses may have faded and in circumstances where it may be that the Tribunal's conclusions are correct. However, that is not the question for us. The basis on which we have allowed this appeal is that the Tribunal's reasons simply do not show that they have correctly approached their difficult task in this case.