United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KEMPSTER (Of Counsel) Instructed by Head of Litigation London Underground Ltd 55 Broadway London SW1H OBD


 


JUDGE P CLARK

1. The real question in this appeal is whether the Employment Tribunal sitting at London (N) on 28 - 30 March 2000 was entitled to draw the inference, on the primary facts as found, that the Appellant employer, London Underground Ltd had unlawfully discriminated against the Applicant, Mr Delroy Harris, on grounds of his race. They so found in a decision with extended reasons promulgated on 19 April 2000.
2. The facts, briefly, were that the Applicant, a Revenue Control Inspector (RCI) had been racially abused by a passenger, Mr Jackson, on 10 July 1999, whilst he was on duty at Holborn Station. The Applicant purported to confiscate Mr Jackson's ticket to travel. The Applicant approached 3 station supervisors, including a Mr Smith, for assistance. In the event, Mr Smith returned Mr Jackson's ticket to him; there was no authority for its retention.
3. Subsequently, the Applicant accused Mr Smith of racially abusing him and Mr Smith in turn accused the Applicant of aggressive and threatening behaviour towards him. The matter was investigated by Mr Organ, the Duty Revenue Control Manager who concluded that Mr Smith's complaint was justified; the Applicant's was not. The Employment Tribunal agreed with that analysis.
4. Thereafter the Applicant was disciplined on 2 charges, of gross misconduct:

(1) that he behaved aggressively towards Mr Smith and

(2) that he raised a false and malicious grievance against Mr Smith.

5. A disciplinary panel heard those charges against the Applicant and found them proved. Taking them together they concluded that dismissal, even after 29 years service, was the appropriate penalty.
6. The Applicant appealed to Mr Solesy. He also found the two charges proved but decided to impose a lesser sanction, namely reduction in grade to Station Assistant Multifunctional.
7. On these facts the Employment Tribunal dismissed the Applicant's complaint of unlawful discrimination against Mr Smith, but upheld his complaint against London Underground Ltd. The basis for that conclusion is contained in paragraph 16 of their reasons, where they say this:

"However the Tribunal agreed with the conclusion of Mr Solsoy (Sic) that the Applicant whilst clearly guilty of both offences had been treated too harshly by the First Respondent (London Underground) and should not have been dismissed. The correct penalty was a reduction in grade. The Tribunal was of the unanimous opinion that being dismissed in these circumstances was a difference in treatment and that it was more probable than not that the First Respondent had treated the Applicant less favourably than it would have treated others and that the difference in treatment was on racial grounds.

8. The Employment Tribunal correctly directed themselves as to the law, as explained by Neill LJ in King v GB China Centre [1991] IRLR 513, with the approval of the House of Lords in Zafar v Glasgow City Council [1996] IRLR 36. However, the Court of Appeal has repeatedly reminded Employment Tribunals and this Employment Appeal Tribunal that for an Employment Tribunal to properly draw an inference of less favourable treatment on racial grounds, there must first be sufficient findings of primary fact on which to base that conclusion. Examples in the reported cases include Chapman v Simon [1994] IRLR 124, particularly per Ralph Gibson LJ, paragraph 43, and Martins v Marks & Spencer Plc [1998] IRLR 326. A more recent example may be found in the, as yet, unreported case of Abbey National Plc v Ackroyd (10 November 2000 No A1/1999/1231) in which the Court held that a division of the Employment Appeal Tribunal on which I sat ought to have allowed an employer's appeal against an Employment Tribunal's finding of unlawful discrimination based on inference in circumstances where, in the Court of Appeal's view, there was no evidential or factual basis for the Tribunal properly to draw the inference of unlawful discrimination (see per Pill LJ, paragraph 25; Buxton LJ, paragraph 30 and Sir Anthony Evans, paragraph 39). We now understand that that case is proceeding to the House of Lords.
9. With those observations in mind we turn to this Employment Tribunal's findings of primary fact and conclusion expressed at paragraph 16 of their reasons. It is, we think, sufficient at this Preliminary Hearing stage to say that in our judgment it is arguable that this Employment Tribunal failed to make any findings of primary fact, or demonstrate any process of reasoning (see Meek v City of Birmingham Council [1987] IRLR 250, 251, per Bingham LJ) which could justify the apparent inference of unlawful discrimination which they drew against London Underground Ltd in this case. Accordingly we shall allow the appeal to proceed to a full Inter Partes hearing.

Directions:

10. For that purpose we direct that the appeal be listed for half a day, Category B. There is no requirement for Chairman's Notes of Evidence. Skeleton arguments will be exchanged between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged timeously with the Employment Appeal Tribunal. There are no further directions.