United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Lawal in person


 


MR JUSTICE MAURICE KAY

1. This is the preliminary hearing of an appeal against a Decision of an Employment Tribunal sitting in Sheffield. The unanimous Decision of that Tribunal was that the Appellant, who had made a complaint of unlawful race discrimination, should have his complaint dismissed because he had not established it.
2. The background to the matter is that the Appellant started to work on 20 June 2000 with Saracen Security Services Ltd. Saracen Security Services Ltd ceased to trade in August 2000 and its business was purchased from a Receiver and, eventually, that business was carried on by the Respondent Company; that was a transfer under the Transfer of Undertakings (Protection of Employment) Regulations. The Appellant's job was that of a security officer at a site in Chesterfield.
3. On the night shift on 27 August 2000, the Appellant was seen by his supervisor, Mr Bothamley, wearing an earpiece. Mr Bothamley assumed that the earpiece was attached to a cassette tape player or radio. He requested the Appellant to remove the earpiece and this led to an altercation.
4. On 28 August 2000, the Appellant wrote to Mr Klenczar, the Managing Director of the company, giving notice that he intended to commence proceedings against Mr Bothamley and the Respondent Company under the Race Relations Act. He said that he wanted the matter to be investigated and asked Mr Klenczar to provide a written report within fourteen days, failing which he would commence proceedings in the Employment Tribunal.
5. As a result Mr Klenczar interviewed Mr Bothamley who denied that he had been bullying in his manner towards the Appellant, and denied that he had spoken inappropriately. Mr Bothamley said that he simply wished the Appellant to remove the earpiece as it was against the company's policy for radios to be listened to on headphones or earpieces at a time when the employee was expected to be alert in carrying out his job as a security officer. Mr Bothamley offered to apologise to the Appellant if he had unintentionally upset him.
6. Mr Klenczar then had a meeting with the Appellant and explained to him what Mr Bothamley had said. Mr Bothamley also subsequently approached the Appellant and apologised. At that point, Mr Klenczar and Mr Bothamley both considered that the matter had been resolved to the Appellant's satisfaction. No notes were made of the meeting and no written report was made to the Appellant. This did not prompt the Appellant to raise any objection at the time and he did not repeat the request that he had made on 28 August for a written report.
7. According to the findings of the Employment Tribunal, the employment then continued apparently uneventfully although it subsequently transpired that the Appellant had been receiving payslips with his first name misspelt. The Appellant's first name is correctly spelt, Adekunle. On the payslips, instead of there being one 'k' in the middle, there were three. These payslips had been prepared by the company's accountants. A spelling error had been made when the payroll print was set up, and as a result, the error was perpetuated in subsequent payslips until the Appellant made a complaint about it on 19 September. He thought that the plurality of 'k's in the middle of his forename was a reference to the Klu Klux Klan and he said that the Respondent was "openly white, supremacist racist.".
8. He then brought up again the question of lack of a written report in respect of his earlier complaint. Mr Klenczar contacted the accountants about the payslips and was told that it was an unintentional error, presumably resulting from a keyboard operator keeping his or her finger depressed for too long on a sensitive keyboard. It was Mr Klenczar's intention to give this explanation to the Appellant and reassure him. However, the Appellant returned to the company's office and said he was resigning.
9. The Respondent Company then sent him a letter on 22 September 2000 saying that his employment had been terminated by him without notice and that a written resignation was required. The Appellant then wrote a final letter dated 28 September. On 28 September, the accountants had written a letter to the Respondent apologising for their error. In the Decision of the Employment Tribunal, under the heading "The Relevant Law", the Tribunal correctly set out the relevant sections of the Race Relations Act and set out the principles in King -v- The Great Britain China Centre [1991] IRLR 513.
10. Turning to the Tribunal's conclusions, so far as the incident on 27 August was concerned, the Tribunal accepted that the Respondent was entitled to require its employees not to have earpieces in their ears when they were on duty. The Decision states:

"We are quite satisfied that any employee of the respondent, whatever their race, would have received the same instruction to remove the earpiece that was given by Mr Bothamley to the applicant. The applicant has put before us no evidence that white colleagues would have been treated any differently."

The Tribunal accepted that voices had become raised in the altercation, but they rejected the suggestion that Mr Bothamley had harassed or bullied the Appellant, racially or otherwise. Mr Bothamley had denied that allegation and there was a witness, a Mr Burton, who had confirmed that voices had been raised and expressed admiration for the Appellant in standing up to Mr Bothamley, but had gone on to say that he did not consider that the Appellant or Mr Bothamley were behaving aggressively, or in an unacceptable manner. On the basis of all that, the Employment Tribunal made factual findings to the effect that there had been no harassment or bullying, and there had been no discrimination. They were impressed by the evidence of Mr Burton, they were also unimpressed by aspects of the evidence of the Appellant. That arose particularly because, initially, his explanation for wearing the earpiece had been that it was not connected to any form of radio or tape player, but was an item being used for noise protection. However, in the course of cross-examination, the Appellant stated that he did not need the earpiece for noise protection. He went on to say:

"It is an entrapment. I was waiting for someone to tell me not to do it. They fell into the trap."

The Employment Tribunal found that to be seriously damaging to the Appellant's credibility and had led them to the conclusion that he had an intention to manufacture a complaint.

11. So far as the payslips were concerned, the Tribunal heard the accountant, Mr Dey. They accepted his evidence that what had happened was nothing more than a typing error. They also found that it was something that was just as likely to have occurred in relation to a white employee as to the Appellant.
12. Finally, on the question of the adequacy of the investigation, they came to the conclusion that whilst it might have been prudent to have investigated the complaint more formally, nevertheless, as the Appellant had consented to an informal resolution, with an apology from Mr Bothamley, in all the circumstances of the case, the lack of greater formality was not reprehensible.
13. Before us, Mr Lawal, who has made his submissions succinctly and courteously, has sought to raise a number of points. First, he criticised the Employment Tribunal for the way in which it had accepted the explanation for there being no notes or report about his complaint. He said that they were not taking his complaint seriously, and that he had been denied a full and proper investigation. In our judgment, the conclusions which the Employment Tribunal reached about the informality of the disposal of the complaint were valid reasons and they are free from any legal error.
14. Next, Mr Lawal suggested that the Employment Tribunal had erred in law in misunderstanding or misapplying Section 32(3) of the Race Relations Act 1976. That is a section which enables an employer to establish a defence by proving that he took such steps as were reasonable to prevent an employee from doing the alleged act, or from doing acts of that description in the course of his employment. In our judgment, it does not arise as an issue in this case. Undoubtedly, Mr Bothamley was acting in the course of his employment; undoubtedly he was a person for whom the Respondent bore vicarious liability. It is not a case of the Employment Tribunal, having misunderstood the burden of proof. What has happened in the present case is that the Employment Tribunal has considered all the circumstances and come to the conclusion that there was no element of discrimination in the way in which the Appellant was treated, and in our judgment, that was a valid and tenable conclusion. The contrary was not arguable.
15. Thirdly, the Appellant fastened on to the word "entrapment", to which the Employment Tribunal accorded importance when making its findings on credibility. It is a word that was introduced into the proceedings below by the Appellant himself in the course of his evidence. His legal researches have led him to refer us to a number of well known authorities in the field of criminal law to the effect that entrapment is not a defence in English law. The best known of those authorities is the case of Sang 1980 AC 402. His complaint is that the Employment Tribunal placed undue focus on that word and in so doing, committed legal error because, in Mr Lawal's words, entrapment is not a defence known to English law. The reality, however, is that the Employment Tribunal was not referring to a defence of entrapment. It was relying on a change of account by Mr Lawal in evidence, by way of explanation of his wearing of the earpiece in order to explain a finding, adverse to Mr Lawal, that it had made on credibility. The defence of entrapment, or the lack of it, in English criminal law has nothing whatsoever to do with this case. The mention of entrapment in the course of the Decision of the Employment Tribunal does not point to any error of employment law on the part of the Tribunal.
16. Fourthly, the Appellant challenged the Decision of the Employment Tribunal on the basis that it was unsupported by any precedent and was accordingly, beyond the authority of the Employment Tribunal. It is not the task of an Employment Tribunal to justify all its findings and decisions by reference to authority. Indeed, in most cases, that is wholly unnecessary. It was unnecessary here; the Decision was essentially one on the facts. The facts were for the Employment Tribunal rather than this Employment Appeal Tribunal to find, and the absence of authorities, apart from the well known case of King -v- The Great Britain China Centre, does not in any way undermine the validity of the Decision.
17. Those were the grounds advanced by Mr Lawal. We cannot find in them any arguable point of law but could sustain this appeal at a final hearing, and accordingly, we shall be dismissing his appeal at this stage.
18. We ought not to leave the case without mentioning a final matter which Mr Lawal brought to our attention today. He has shown us an Order that was made in the Nottingham County Court last week. Clearly from the face of that Order, it refers to an action in which Mr Lawal, as claimant, has taken proceedings against Mr Klenczar as defendant. Securitec Group UK Ltd is not a party to those proceedings. Whatever had gone on at an earlier stage of those County Court proceedings, it seems that last week, Mr Lawal was given permission to appeal an earlier decision in those proceedings, and his appeal is due to be heard in two days time. All we can say about that is that it has no bearing on the present case. Our concern has simply been to see whether there is any arguable ground of appeal arising on the face of the Decision of the Employment Tribunal and for the reasons we have given, we find no such arguable ground of appeal and we repeat that the appeal is therefore dismissed.