United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A GUMBITI-ZIMUTO (of Counsel) Instructed By: Messrs Bailey Wright & Co Solicitors 3rd Floor Guildhall Buildings Navigation Street Birmingham B2 4BT


 


JUDGE J R REID QC:

1. This is the preliminary hearing of an appeal by Mr Jassal against a decision of an Employment Tribunal held at Birmingham which promulgated its decision on 11 April 2001.
2. By his claim Mr Jassal had claimed against his former employers, Star Motors Ltd and various persons connected with Star Motors; that he was unfairly dismissed; that he was subject to racial discrimination by way of harassment and victimisation and at one stage had also had a claim relating to equal pay, though this turned out to be one head of the general allegation of less favourable treatment on racial grounds and that particular head was dismissed by withdrawal as a stand alone claim.
3. The outcome of the Tribunal was that the Respondents were held not to have unlawfully discriminated against Mr Jassal on the grounds of his race. They were held to have dismissed Mr Jassal unfairly but it was held that he had contributed to his own dismissal to the extent of 100% and therefore it was held that he should not receive any compensation. He seeks to appeal against that and the grounds of his appeal, as amended, pursuant to leave which we gave today, are set out in paragraphs 6.1 to 6.6 of the Notice of Appeal. I can take the first three of those grounds together.
4. In essence the complaint is that the Tribunal rejected the evidence of Mr Jassal and accepted the evidence given on behalf of the Respondents, but did not properly indicate the basis upon which they preferred the evidence called on behalf of the Respondents to that called on behalf of Mr Jassal.
5. The Tribunal said, in the course of its judgment, that much depended on their view of the credibility of the witnesses and that the parties' evidence was diametrically opposed in many instances. They went on at paragraph 3.1 to say this:

"3.1 The dispute in this case was essentially one of fact. It has seldom been our misfortune to hear such divergent evidence about so many occasions. Clearly, at least one side could not have been honest with us. After careful deliberation, we have concluded on the balance of probabilities that we prefer the evidence of the respondents and their witnesses in each case where it differs from evidence given on behalf of the applicant."

They then set out a number of factors which contributed to the preference and those are set out in paragraphs 3.1.1 through to 3.1.4.7.

6. The Appellant, who has been ably represented by Mr Gumbiti-Zimuto who appeared for him both here and in the Tribunal below, points out that although these matters dealt with by the Tribunal show reasons why the Tribunal was not prepared to accept Mr Jassal or the evidence called on his behalf, the Tribunal does not deal with the veracity of the Respondents and their witnesses in any detail and in particular, it is complained, does not deal with a substantial number of points on which it is said, on behalf of the Appellant, that the evidence on behalf of the Respondents was inaccurate. The impression that is said is left is that the evidence of the Respondents and their witnesses was without fault or difficulty. In our judgment that is not so.
7. It is true that the Tribunal does not deal in any detail with the evidence of the Respondents, in the sense of pointing out why it accepts that evidence over the evidence of the Appellant, but it is clear that the Tribunal cast a pretty sceptical eye over the evidence which was given on behalf of the Respondents and looked for corroboration from unimpeachable sources which, to some extent, was found in the evidence of people who were not employees but only peripherally involved in the matters concerned and to some extent was found in the evidence of another ethnic minority employee, a Mr Nijjar, who gave evidence which at the hearing was unfavourable to the Appellant. The Tribunal had approached the matter on the basis that at least one side was lying, not on the basis that one side was lying and the other side was necessarily telling the truth.
8. We have listened with care to the various points which were put before us on which the Tribunal might have expressed views unfavourable to the Respondents, in particular in relation to the evidence of Mr Nijjar, though we have to say that in that respect we are far from satisfied that there is any criticism to be made of Mr Nijjar in his evidence. What happened was something that happens, not uncommonly, namely that he was asked to make and made a pretty blanket statement saying (to paraphrase) that "everything was for the best in the best of all possible worlds" so far as his employment was concerned. But then, in the course of cross-examination, he went on to deal in detail with various propositions which were put to him.
9. In our judgment, when one looks at the evidence taken as a whole, the Tribunal was making a series of findings of fact starting from the premise that they could not rely on Mr Jassal, that they could not rely on him because he was substantially inaccurate in a significant number of respects which they detailed, and going on from there to extrapolate from that that they would not accept his evidence on any matters. In our judgment that is a far cry from the sort of case which is referred to in the Appellant's skeleton argument, for example, Tchoula v Netto Foodstores, where what has happened is simply that the Tribunal has said, "we prefer the evidence of one side to the evidence of the other side". That was not the case in this particular instance.
10. The Tribunal took considerable care in making their findings of fact. They did not, and did not have to, spell out every particular inconsistency and why they preferred the evidence of one side to the evidence of the other side in that particular case. This was not a judgment being given at the end of a six-month High Court action. An Employment Tribunal is meant to be a relatively simple speedy and informal Tribunal and, so long as the parties are given briefly the reasons from which they can understand why it is they have won or lost, and if they have been disbelieved why it is they have been disbelieved, that is all a Tribunal is required to do.
11. In this instance Mr Jassal can have no doubts at all about why it is that he lost. The Tribunal found (and it is not a matter for us to say whether we would have reached the same conclusion) that his evidence was inaccurate and substantially exaggerated. It was for that reason that his claims of racial discrimination failed.
12. So far as unfair dismissal was concerned, the Tribunal held that he had been unfairly dismissed but, as we read the Decision, that was a finding that the unfairness was purely procedural. Their criticism was that when Mr Jassal behaved as he did Mr Kirby, who was responsible for dismissing him, did not tell him to go to the office and wait or send him home and ask him to attend the following day and then deal with the disciplinary matters, but that he dismissed him there and then.
13. The Tribunal felt that that dismissal was badly handled but they clearly took the view that whatever had been the delay, whatever cooling down period there would have been, the result would have been the same and that was a course of action that the Respondent, Star Motors Ltd, was entitled to take. Very fairly and very sensibly Counsel on behalf of Mr Jassal has accepted that if the findings of fact are to stand, then it cannot properly be said that the conclusion that it was within the appropriate range of responses for an employer to dismiss Mr Jassal summarily, was one that can be properly attacked in this Tribunal.
14. There remains the last ground of appeal which is to the effect that the Tribunal, having decided that there should be 100% reduction in compensation because of the claimant's contribution to his own dismissal, did so without allowing the Applicant to give evidence to deal with the question of contributory fault. In our judgment that is not a valid point. We were referred to the well known cases of Mercia Rubber Mouldings Ltd v Lingwood [1974] ICR 256 and Ferguson v Gateway Training Centre Ltd [1991] ICR 658. Both of those were cases in which the party dismissed was not given an appropriate opportunity to deal with the question of contribution. In the one case compensation was not an issue to be raised at all at the hearing at which it was apparently dealt with. In the other case the issue was whether or not the fact that a person had agreed to his dismissal was a good reason. It was that issue which was ventilated and no evidence was adduced one way or the other, as to whether by his agreement he had contributed to his own dismissal.
15. This case is very different because the circumstances surrounding the dismissal were clearly in issue. There was heavily opposing evidence relating to the circumstances in which Mr Jassal came to be dismissed and it followed necessarily from that that, as indeed it followed from the terms of the ET3, the Respondents' answer, that the question of contribution was one which fell to be decided in the course of this initial hearing. It would have been a nonsense for the matter to be dealt with on any separate occasion. In our judgment it would not, in any event, have served any purpose to ask for further submissions about that because the 100% contributory finding was a finding which the Tribunal would necessarily have made flowing from the findings of fact which it made.
16. In our judgment the only way in which Mr Jassal could seek to upset that finding of 100% contribution to his dismissal would be by attacking the findings of fact made by the Tribunal which, in our view, were findings which the Tribunal on the material before them were entitled to make.
17. It follows that, although we are extremely grateful to Mr Gumbiti-Zimuto for his cogent and reasonably expressed argument, in our view there is no point of law which could properly go forward to a full hearing of the appeal and the appeal should be dismissed at this stage.