United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S BRANNIGAN (of Counsel) Instructed by: Mr J P Braithwaite Messrs Smith Braithwaite Solicitors 23 Heddon Street London W1R 7LG
For the Respondent	MS H GREWAL (of Counsel) Instructed by: Mr K Harvey Commission for Racial Equality Principal Litigation Officer Elliot House 10/12 Allington Street London SW1E 5EH


 


JUDGE PETER CLARK

1. Mr Eldridge was at all relevant times the Managing Director of Barbican Car Hire Ltd (Barbican). Barbican were in the business of providing cars with drivers, mainly to large financial institutions with offices at Canary Wharf. Mr Zhang (the Applicant) was on the books of Barbican as a self-employed owner driver from February 1995 until shortly after 6 December 1996. He is of Chinese ethnic origin.
2. Following termination of his engagement by Barbican he presented an Originating Application to the Central Office of Industrial Tribunals on 11 February 1997 alleging unfair dismissal and racial discrimination against (1) Mr Eldridge and (2) Barbican.
3. Whilst he is properly to be regarded as an employee of Barbican for the purposes of the Race Relations Act 1976 (see section 78) he was not an employee for the purposes of section 230(1) of the Employment Rights Act 1996. Accordingly he withdrew his complaint of unfair dismissal and the case proceeded only on the racial discrimination complaint.
4. That complaint was heard by an Employment Tribunal sitting at London North under the chairmanship of Mr Giles Flint, over 7 days, between 13 May 1998 and 16 February 1999. At the close of the evidence both Counsel then appearing, Ms Grewal for the Applicant, and Ms Walden-Smith for both Respondents, put in detailed written closing submissions. Ms Walden-Smith's submissions ran to 38 typed pages. Those written submissions are before us, and were considered by the Tribunal, together with the oral and documentary evidence during their deliberations on the final day in chambers.
5. The Applicant put his case of racial discrimination on three bases:

(1) The first complaint: that he was removed from a particular job, driving an employee of Morgan Stanley, Liz Mohan, from their offices at Canary Wharf to her home in Dagenham, because she had indicated to Barbican Control that she did not want to be driven by "coloured drivers" and Barbican's subsequent refusal, through Mr Eldridge, to provide him with further driving work.

(2) The second complaint: that work allocated to him was less financially productive compared to that given to white drivers.

(3) The third complaint: that he, along with other ethnic minority drivers, was required to work the night shift rather than the day shift.

6. By a decision with extended reasons promulgated on 30 March 1999 the Employment Tribunal rejected the 2^nd and 3^rd complaint, but upheld the first. It is against that latter finding that this appeal is brought by the Respondents below.
7. The first complaint

It was the Applicant's evidence below that on 6 December 1996 he attended the offices of Morgan Stanley. He had been instructed to pick up Ms Mohan but alleged that he was pulled off the job by Patrick McCormack, Barbican's controller, because Liz Mohan did not want a "coloured" driver. In these circumstances he approached Ms Mohan when she appeared and calmly asked her whether she was a racist.

8. Two other Barbican drivers present at the scene, who gave evidence to the Tribunal, were first, Mr Saleh, who in his witness statement, said that he had heard the Applicant say to Ms Mohan "Excuse me, are you Liz? Can I ask you what you think is wrong with coloured people.", to which she replied "Ring your office". The Applicant said "I already have. They told me you don't want coloured drivers. Are you a racist?" She then went back into the building. Secondly, Ernest Hibbert, a white Barbican driver who was eventually given the task of driving Ms Mohan home, although in fact she cancelled the booking, was called on the third day of hearing. He said that he saw the Applicant gesticulating and talking very loudly to Ms Mohan. He only heard one word. That was racist. He feared that Barbican would lose the Morgan Stanley account as a result of the Applicant's actions Ms Mohan was not called to give evidence.
9. That is the core of the factual evidence concerning the relevant incident. It was common ground that the Applicant was originally assigned by Mr McCormack to drive Ms Mohan to Dagenham; that he was pulled from that job and given a job of roughly equivalent value; that the Applicant approached Liz Mohan and raised the issue of racism with her; that Liz Mohan thereafter cancelled the job; after 6 December the Applicant's services were dispensed with by Barbican.
10. The factual issues were, who pulled the Applicant from the job and the reasons for so doing? The Applicant said it was because Ms Mohan refused to have a coloured driver and her wishes, as a valued customer, were respected by Barbican. It was the evidence of Mr McCormack and the supervisor on duty that night, Jasmine Butler, that the reason was the Applicant's attitude to Ms Mohan and other female employees of Morgan Stanley.
11. In support of the Respondents' case that race was not a motive for the actions of either Ms Mohan or Barbican the Respondents led evidence from other employees, Caroline Barker, Thava Lingham and Mustafa Izzet to the effect that in the past, dealings with Ms Mohan had shown no indication that she was racially prejudiced. Further, the Respondents adduced documentary evidence from their records to show that Ms Mohan had regularly been driven in the past by black or Asian Barbican drivers, although not the Applicant, and that she, on behalf of Morgan Stanley, had assigned non-white Barbican drivers to drive other members of Morgan Stanley's staff.
12. Employment Tribunal Decision

Having reviewed certain parts of the considerable volume of evidence in the case the Tribunal expressed their reasoning and findings at paragraph 6 of their extended reasons. We should set out that paragraph in full:

"6 This is the totality of the oral evidence which was given about this incident. On the one hand the Applicant says that there was a definite instruction that Ms Mohan did not want coloured drivers supported in part by the evidence of Mr Salih whose statement about the matter was made some time after the incident and must be regarded with some reservation. Against this is the evidence of Jasmine Butler who says that there was no question of the Applicant having been refused the work because of his colour but merely because of his perceived attitude towards female passengers. There is also the evidence of Mr McCormack. Further there are general statements by Mr Eldridge who denied that racial considerations ever entered into the question of what driver was allocated to what work. We are left with the difficult task of trying to resolve this conflict about which there was a great deal of discussion between the members of the Tribunal. We finally came to the conclusion that we should approach the matter in this way. The Applicant gave positive evidence about the incident which he maintained in cross-examination and which indicated that there had been a request that he should not drive Ms Mohan because of his colour. This was supported to a certain extent by Mr Salih whose evidence as we said must be received with some reservation because of matters which came out in cross-examination. We could see nothing in the evidence given by the Applicant maintained as it was during a vigorous cross-examination which would cause the Tribunal to say that his story was so incredible that it could not possibly be true and that therefore the Tribunal must reject it. In our view therefore the Applicant did establish a prima facie case that there had been a request that night by Ms Mohan that she should not be driven by a coloured driver. Against this was the Respondents' failure to call Ms Mohan to give evidence about her version of what happened that night, particularly as to the fact that according to evidence given by the Respondents' employees the Applicant had been abusive and did not simply put forward as the Applicant had alleged he had done, his point of view and ask for an explanation as to Ms Mohan's conduct. There have been different and inconsistent accounts given by the Respondents' witnesses as to the circumstances in which the Applicant was pulled from the job. There was unconvincing evidence given by Ms Butler which was the only direct evidence put forward by the Respondents as to their version of the events of that night coupled with Mr McCormack's revised version of his evidence in which he commented on what had happened and Mr Eldridge's general denial that racism ever entered into the question of who should drive either generally for the Respondents or particularly any particular client of the Respondents. We have to bear in mind that it would be unlikely that Mr Eldridge would give any evidence to the Tribunal other than that he was not influenced by racial matters in dealing with clients and that Ms Butler and Mr McCormack would be unlikely to give evidence which would indicate that Ms Mohan had on that night given instructions that either the Applicant of Chinese ethnic origin in particular or coloured people generally should not drive her because she declined to accept other than a white driver. We have also looked at the computer records the dockets and invoices relating to the Respondents' drivers who did work for Morgan Stanley. There were shortcomings in these documents and we found them unreliable. The situation is an extremely difficult one but we have come to the conclusion after much discussion that we do prefer the evidence of the Applicant to the evidence of the Respondents and find that there was an instruction given that night that the Applicant because he was of Chinese ethnic origin and not because of any general distrust as to his attitude by Ms Mohan was not allowed to drive her on racial grounds."

13. The Appeal

In support of the appeal Mr Brannigan takes essentially two points. He has abandoned a third point, that the Tribunal did not give reasons for their finding that the documentary evidence to which we have referred was unreliable.

14. The first point is that, on the face of their reasons, the Tribunal failed to take into account relevant evidence from Mr Hibbert. We accept that Mr Hibbert is not mentioned by name in the Tribunal's reasons, but we also accept Ms Grewal's submission that that does not mean that his evidence was not taken into account. There is reference to him at paragraph 3 of the reasons, where the Tribunal set out the Applicant's evidence; the Tribunal took into account evidence led on behalf of the Respondents to the effect that the Applicant was abusive to Ms Mohan; Mr Hibbert confirmed the Applicant's account that he used the word 'racist' when speaking to Ms Mohan.
15. Mr Brannigan places much reliance on the opening words of paragraph 6 of the reasons:

"This is the totality of the oral evidence which was given about the incident."

However, the Tribunal then go on to refer for the first time to relevant evidence given by Mr McCormack.

16. Looking at the Tribunal's reasons as a whole we are not persuaded that the Tribunal failed to take into account the evidence of Mr Hibbert, or that it was critical to the finding of fact which they eventually made.
17. Secondly it is said that the Tribunal erred in law by shifting the burden of proof, impermissibly from the Applicant to the Respondents. Again, much is made of the use of the expression "a prima facie case" in paragraph 6 of the reasons.
18. We reject that submission. It is clear to us from the Tribunal's reasons that, having weighed up the evidence they found that whereas the Applicant's evidence, supported to some extent by Mr Saleh, was on the face of it credible and unshaken in cross-examination, the same could not be said of the Respondent's witnesses, in the absence of Ms Mohan herself. Their accounts were different and inconsistent; Ms Butler was unconvincing, so the Tribunal thought, and Mr McCormack changed his story.
19. In our view the Tribunal did not decide this case on the burden of proof. They preferred the Applicant's account to that of the Respondents' witnesses. In that way did they resolve what they accepted was a difficult factual question.
20. Conclusion

It follows that we are unable to accept that any error of law is made out in this case. Whilst the Chairman's articulation of the Tribunal's reasons in this case is unlikely to prove a model for decision-writing techniques at part-time Employment Tribunal Chairmen induction courses for years to come, we are satisfied that it passes the Meek test of adequacy. There was no self misdirection in law. Accordingly this appeal is dismissed.