United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R CRASNOW (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR RECORDER UNDERHILL QC:

1. This is the preliminary hearing of an appeal from the decision of an Employment Tribunal at London (South) dismissing the Appellant's claim for racial discrimination.
2. The Appellant was employed by the Respondents on a probationary basis from 15 November 1999 until his dismissal on 14 February 2000. The reason which the Respondents gave for his dismissal was that he had not performed sufficiently well, or shown a sufficiently good attitude to his supervisor, to justify turning his probationary employment into a permanent employment. He brought proceedings in the Employment Tribunal alleging that his dismissal was on racial grounds.
3. The Employment Tribunal heard the Appellant's complaint over four days, between 12 September 2000 and 6 December 2000, and by Extended Reasons sent to the parties on 1 June 2001 it rejected it. The Tribunal correctly directed itself in accordance with the well known decision of the Court of Appeal in King v The Great Britain-China Centre [1992] ICR 516. It identified the various particular complaints on which the Appellant relied as evidence from which it ought to draw an inference of racial discrimination, and it made findings on some, but not - as we shall discuss in a moment - all of the complaints so raised.
4. The Tribunal found that there were various unsatisfactory aspects of the Respondents' employment practices, but it did not believe that those justified an inference that the dismissal had been on racial grounds. The Reasons conclude as follows in paragraph 23:

"Having found the primary facts, we conclude that the Respondents have provided satisfactory explanations for the complaints made by way of background, i.e. time off for Friday prayers and the EID Festival and the cold and freezing working conditions. We find that the explanations provided by the Respondents for terminating the Applicant's employment during his period of probation are satisfactory. We have reservations about certain aspects of the Respondents' procedures which emerged in the course of the evidence and which specifically relate to granting time off when reasonable requests are made in advance, as well as adhering to proper equal opportunities procedures in matters of promotion. Furthermore, we were concerned about the practise of resorting to formal disciplinary procedures to deal with performance related issues during a probationary period. We were told that this practise has been abandoned. In other circumstances, these matters could have provided material from which an inference may be drawn. In this case, they do not provide any such material and the Tribunal does not draw an inference of discrimination. The Applicant was dismissed by reason of poor performance and attitude towards his supervisor. We find that any employee, regardless of racial origin, would have been similarly treated in the same or similar circumstances. The Originating Application is dismissed."

5. The Appellant's grounds of appeal are set out in a three-page statement supplemented by a skeleton argument lodged more recently which also exhibits his written opening in the Employment Tribunal. We will return to these grounds in a moment, but he has had the advantage this morning of being represented by Miss Crasnow, under the ELAAS Scheme, to whom we are indebted for her succinct and forceful submissions. She has emphasised one aspect in particular. What she says is that the Tribunal was not entitled to refuse to draw an inference of racial discrimination in the present case without making fuller and more detailed findings of fact on the Appellant's performance and attitude. She relies on the recent decision of the Court of Appeal in Anya v University of Oxford [2001] ICR 847, which emphasises the importance of a Tribunal making proper findings on disputed issues of primary fact which are relevant to the issue of whether an inference of racial or sexual discrimination should be drawn.
6. We have considered these submissions carefully, as they deserve, but we do not accept that the Tribunal erred in law in this regard. The reasons are not as well constructed as they might be and are not always particularly well expressed. In particular, it is correct that the Tribunal has not, in every case, made a finding on disputed issues of fact. Miss Crasnow emphasises that while finding that the Appellant had made errors in his performance it made no finding as to the nature or extent of those errors, which was hotly disputed by him. But it is not necessary, even after Anya, for a Tribunal to make findings on every disputed issue of fact. It is necessary to consider in each case whether the fact in question is one which has to be resolved in order for the Tribunal to make a fair and transparent decision on whether an inference of discrimination should be drawn.
7. In the present case the Employment Tribunal's finding was that the principal reason for dismissal was not simply the fact that the Appellant had made errors but that the way in which he reacted when taxed with errors by his supervisor, Ms Purser, was unsatisfactory. This is what is being referred to in the phrase "attitude towards his supervisor" in paragraph 23 of the Extended Reasons which we have already cited.
8. It is clear, reading the Extended Reasons as a whole, that this was at least as important a part of the employer's reasons as the actual errors and, perhaps, more important. There is a clear finding at paragraph 15 of the Extended Reasons that, contrary to the Appellant's evidence, he had been taken by the supervisor through a document showing examples of errors which he had made but, so the Employment Tribunal finds, was reluctant to accept these. (We noted in passing that there is clearly a typographical error at the end of paragraph 15: the phrase "the Applicant was giving examples" must be intended to be the "the Applicant was given examples"). That finding is amplified by other findings by the Tribunal in paragraphs 10 and 11 of the Extended Reasons. In paragraph 10 it found as follows:

"Although the Applicant indicated that he accepted her position as a Supervisor, it was clear to the Tribunal from the manner in which he responded, that he found it difficult to accept that a person far younger than himself and less experienced, should become his Supervisor."

And, in paragraph 11, it found this:

"As far as the relationship between Ms Purser and the Applicant is concerned, the Tribunal find that Ms Purser, being young and inexperienced compared to the Applicant, found him a difficult person to deal with. He challenged her authority and did not wish to take instructions from her. He took the view that he was more knowledgeable than her. Ms Purser did not accept various suggestions made by the Applicant, to re-organise the work. We find that Ms Purser lacked the experience and training to deal with him. She would have reacted in the same way to any subordinate employee being much older than herself telling her in effect how to do the job."

9. Those clear findings of fact seem to us fully to justify the explicit finding in paragraph 23 to which we have referred and the Tribunal's consequent refusal to draw an inference of racial discrimination. It is wrong to regard this as a case where it was necessary for the Tribunal, in order fairly and transparently to decide what inferences should be drawn, to enter into a detailed analysis of precisely what errors the Appellant had or had not made.
10. We turn briefly to the Appellant's written grounds of appeal. The statement to which we have referred is organised under three headings.
11. The first is headed "Evidence". It contains five numbered points through which it is unnecessary for us to go in detail. They consist essentially of an attempt to reargue the factual issues as to the extent of the errors of which the Applicant was guilty. The Tribunal however was not ultimately concerned with whether or not the Appellant's dismissal was justified in terms of his performance or attitude, but only with whether it was on racial grounds. For that reason, as we have already explained, we take the view that it was not essential for the Employment Tribunal to go in detail through the evidence which the Appellant, so we are told, put before it explaining how good his performance was, or to master the technical detail which the Appellant tells us the members of the Tribunal made it clear that they did not feel competent to master.
12. The second heading is "Wrongful exercise of discretion". The points made under this heading amount to a submission that the Employment Tribunal was bound on the evidence that it heard to find that the Respondent's witnesses were lying on various points. That is, of course, a factual question and we have been shown nothing that would suggest there was an arguable case that the Tribunal was not entitled, in law, to accept the Respondents' case on the essential issue of their motivation in dismissing the Appellant.
13. The third is headed "Recovery of documents". It complains that the full relevant documents were not before the Tribunal, which was consequently misled. But the Appellant does not suggest, nor has any submission been made on his behalf by Miss Crasnow, that any application was made for the documents in question to be disclosed at the time. Indeed, it appears from elsewhere in the Appellant's documentation that he feels he has a grievance against the Law Centre who he hoped would be representing him for not making such an application prior to the hearing. Be that as it may, we can see no error of law raised by that aspect of the grounds of appeal.
14. The supplementary skeleton essentially raises the same points in shorter form and does not require separate consideration.
15. We accordingly see no error of law on the part of the Tribunal and dismiss this appeal.