United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR F ROBERTSON (the Appellant in person)


 


MR JUSTICE DOUGLAS BROWN

1. This is the Preliminary Hearing of an appeal by Mr Francis Robertson. The Respondents are the Bexley Community Centre trading as Leisure Link. He appeals the unanimous decision of the Employment Tribunal at Ashford, the Chairman being Mr Hall-Smith. That was on 6 October 2000 and the decision was that the Respondents did not unlawfully discriminate against him on the grounds of race. The Appellant is of black Caribbean origin.
2. Mr Robertson has represented himself before the Tribunal today and, if we may say so, has presented his arguments in an attractive, persuasive and indeed, skilful manner. Having said that, we propose to allow this matter to proceed to a Full Hearing before the Appeal Tribunal and before we give a short Judgment we would like to suggest to Mr Robertson that however well he has done today, that for the next hearing he does his best to obtain representation from his union, if he is still a member of the union, because the next hearing will be with the Respondents present, no doubt with a professional Advocate, and the points which we are saying are arguable are none of them free from difficulty. So it would be greatly to his advantage, if he can, to have representation at that hearing.
3. Mr Robertson is a qualified maintenance engineer but he is not experienced, or was not when he came to the job, in swimming pool maintenance. He began employment as a plant technician in the employment of the Respondents. We will say very little about the circumstances, but difficulties arose immediately with another technician who was long established there, called Mr Pankhurst, who on any view of this case behaved in a disgraceful and racist manner towards Mr Robertson. The only thing to be said in favour of Mr Pankhurst, if it is in his favour, is that he has been consistent, because from the first moment Mr Robertson arrived to his last contact with him some months later, he was racially abusive to him.
4. That gives rise to the first problem because at the end of the day the Tribunal decided that regarding the matters in relation to Mr Pankhurst, the Respondent's way of dealing with the matter were time limited and time barred. They did not feel that it was just and equitable that that matter should fall for decision. They did in fact hear, no doubt as a matter of background, all the evidence and formed a very firm view as to how deplorable Mr Pankhurst's conduct was. Mr Robertson has persuaded us that it is at any rate arguable that the Tribunal came to a wrong conclusion on the question of time limiting, as his racial conduct was repeated right at the end of the story when he used extremely offensive words very similar to those that he had used on earlier occasions and we think that there is an argument that that either kept the time open by being a fresh incident or that there was a continuing course of conduct. That is the first of the arguable grounds.
5. There are others, and the first to feature in Mr Robertson's Notice of Appeal is on page 2 where he refers to a conversation he had on the 1^st day of the hearing, we are told, with the Chairman during the lunchtime interval when they were sheltering from the rain under a shop canopy. Mr Robertson's account of this is in these words:

"And he told me I have done very well, and he can't see the judgement going any other way but in my favour if I continue like I am doing.

He then pointed out that he couldn't let anyone see him speaking to us outside of the court, as it was not the procedure."

We think on the face of it that that is a matter to be looked at by the Full Court. It is certainly highly irregular if it happened, what effect it may have had on the decision or the correctness of the decision is another matter, but we direct that the Chairman be asked to provide an answer to the matters at that paragraph in the grounds of appeal.

6. The next matter which Mr Robertson raised is in relation to other proceedings which he has been carrying on against the same Respondents. Those are proceedings for racial discrimination and constructive dismissal. The racial discrimination aspect of that was struck out by a decision communicated in the reasons dated 4 April 2000 from Mr Michael Zuke, Chairman. That was because particulars had not been provided in time, but the last paragraph of his letter is in these terms:

"The Applicant's complaint of constructive dismissal under the same case number remains, as does his complaint of racial discrimination under case number 5000419/00. Both these matters remain in the list for hearing on 10, 11, and 12 April 2000."

At the hearing on 10, 11 and 12 April 2000 the complaint of constructive dismissal does not seem to have been dealt with at all. We think it is again arguable that all these matters should have been tried together and not, as the constructive dismissal application is, held over until another date. As we understand it, it has still not yet been decided.

7. Then there is the question of how the Tribunal directed itself on the law. The two leading decisions in the sphere of racial discrimination are King v Great Britain China Centre [1992] ICR 516 and Zafar v Glasgow City Council [1998] ICR 120. At paragraph 31 of their reasons the Tribunal accurately set out the questions posed by those decisions:

"…..the Tribunal has to look at all the evidence and the Applicant must satisfy us that it is more probable than not on racial grounds that the Respondent treated him less favourably than it treated or would have treated others. Evidence of racial discrimination will normally be represented by inferences drawn from primary facts. On the facts as we have found we ask ourselves (1) did the Respondent treat the Applicant less favourably than others comparing like with like? (2) was there a difference in race? And (3) was the treatment on racial ground? In the event of the answers to the first two questions being "yes", it is common sense to look at the Respondent for an explanation."

Having posed the question, it is in our view, at least arguable that the Tribunal did not, certainly with any clarity, answer those questions, and deal specifically with findings of less favourable treatment. Although there are parts of their decision where this might be a matter of inference, we feel it is at least arguable and should be looked into at the Full Hearing, that they did not apply the principles of those cases which they accurately set out.

8. Lastly, it is apparent from the Appellant's application, and indeed, from the reasons themselves, that apart from discrimination, victimisation was also part of the hearing. At paragraph 19 which summarises the parties submissions, the Tribunal records the submission of the solicitor for the Respondent, that the Applicant must establish direct discrimination or victimisation. Whereas the Tribunal did deal with direct discrimination, nowhere, as it appears to us, did they deal with or grapple with victimisation. It is at any rate arguable that they should have done. For all those reasons we have come to the conclusion that this appeal should go forward to a Full Hearing.