United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DAVID LEWIS (Solicitor) Instructed By: Messrs Grant Saw & Sons 142 Greenwich High Road Greenwich London SE10 8NN


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a preliminary hearing the appeal of Mr B A Williams in Williams against two respondents, first of all, Gray Security Services and, secondly, Senate Support Services. Mr Williams, who is black, is represented today by Mr D Lewis.
2. On 2 October 2000 Mr Williams presented an IT1 for unfair dismissal of the constructive dismissal type, for racial discrimination, victimisation, wrongful dismissal and breach of contract. There were two respondents, as there still are, Gray Security Services and Senate Support Services. Mr Williams had been a security officer working latterly at the Swiss Centre and had been dismissed on 7 July 2000, he said, after some three year's service. He understood there had been a Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE") transfer from Gray to Senate and he said it was Senate that had dismissed him.
3. On 23 October there was an IT3 from Senate saying that he had not been dismissed. The case was, they said, that there was work for him at other sites other than the Swiss Centre but that he had failed to turn up to work at those other sites. That was their allegation.
4. On 27 October there was an IT3 from Gray. They said that as there was a TUPE transfer to Senate, Gray had no liability. On 3 May 2001 there was a hearing at the Employment Tribunal. All parties were professionally represented. On 7 August 2001 the decision was sent to the parties. The decision was unanimous. The Tribunal, under the Chairmanship of Mr I H Walker at London Central and the decision was:-

"The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed nor discriminated on the grounds of race nor was he victimised. Further the Respondent [sic] were not in breach of contract."

5. On 7 September 2001 a Notice of Appeal was received at the Employment Appeal Tribunal. The first ground asserted in the Notice of Appeal depends on the Race Relations Act 1976 section 2(1)(d). Section 2 begins:-

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has" …

And then at (a) to (d) are a list of so-called protected Acts and the section continues:-

"or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."

6. Leaving aside whether there was less favourable treatment and leaving aside, if there was less favourable treatment, whether it was "by reason that" the protected Act had occurred, one is left with the problem, had there been a protected Act? Under section 2(1)(d) one type of protected Act is where the person victimised has:-

"alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act."

7. So the question, so far as concerned the allegation of victimisation and so far as concerned whether there was a protected Act, came down to whether Mr Williams, during his employment, had alleged that Gray or Senate had committed an act which amounted to a contravention of the 1976 Act, or that Gray or Senate knew that Mr Williams intended so to allege or that Gray or Senate suspected that he had so alleged or intended so to allege.
8. That Mr Williams put his case as falling within section 2(1)(d) is quite plain from the written submissions put in to the Employment Tribunal. The allegation of breach by Gray or Senate was argued to arise out of a letter Mr Williams wrote to Gray on 16 March 1999. We have that letter in our bundle of papers. It is true that it does not mention the Race Relations Act or race or colour but it does mention discrimination and Mr Williams is black and male and not disabled. The letter says, amongst other phrases:-

"At this point I belief [sic] it is paramount to say that on these sites there had been numerous incidents of discrimination, nepotism, deprivation and uncare attitude towards some class of officers, and abuse of power by duty supervisors, favouritism in duty allocation, and nomination for training and promotion and its high time something is done about it."

And a little earlier he had said:-

"Other incidents were unbearable and I had to put my feet down which resulted in the intervention of the duty Manager"

And he had said in the first page of his letter:-

"my call had been neglected and the result had been further torments."

He had said:-

"The list is endless coupled with indiscriminating behaviour of duty supervisors"

And he had said:-

"As the management had failed on their part to look into the said situation as they had recruited new officers rather than consider the old officers for permanent position, training, and promotion."

And on the second page, he adds further:-

"Further incidents dates are 27/02/99, 02/03/99 and the non-inclusion on the duty roster for 12/03/99 which resulted in my being posted to another site for the day."

9. So there are a whole number of incidents referred to. Quite what Gray, the addressee of the letter, made of the letter and quite what Mr Williams was intending to refer to really needed to be explained, to some extent, in oral evidence. In oral evidence it seems that Mr Williams made it clear that the sort of discrimination he was referring to in his letter of 16 March had been racial discrimination. We got what might be described as unofficial notes of evidence; they are not the Chairman's notes but they were said to be contemporary notes taken by Mr Lewis's instructing solicitors at the time and they make a number of points such - I am looking at our page 107 – as:-

"AW [and that is obviously Mr Williams giving oral evidence] – discrimination – had training. Other officers on same site were given training. Majority of black colleagues like myself made to work in cold conditions. Racial"

And then a little later at para 10:-

"RS discounted race as a factor – and I did not believe him. Mostly white South Africans come in …."

And a little later:-

"I always complained every time."

And a little later:-

"I never stopped complaining – Ian Tanner gave CR another copy of CV – always promising next 12-18 months raised complaint."

And then there are some other passages:-

"AW – feelings – oppressed and suppressed for my opinion because of letter 16 March all this happened."

10. And the case put for Mr Williams was plainly one of racial discrimination. However, the Employment Tribunal's conclusions suggest that it had not been appreciated by the employer that the complaint that Mr Williams had made had been based on race. Thus the Tribunal says in their paragraph 28:-

"We find as a result of the disciplinary enquiries there is implicit to finding that the Applicant did not complain about race discrimination and the evidence which we accept is that neither of the two disciplinary hearings did he allege race was a factor in what had happened to him."

And earlier in their paragraph 18 they had said:-

"In evidence from the Respondent is that the Applicant never complained about race discrimination but merely about him not being given a permanent site on a day shift basis."

11. The fact that the disciplinary process was not about race does not prove that Mr Williams had not complained about race nor does it prove that the employer had not understood him to have complained about race nor that the employer did not know that he intended so to complain nor that the employer had not suspected that he intended to complain about race.
12. The Employment Tribunal does not say that on examination of the evidence the complaints Mr Williams said he had made had not, in fact, been made at all, nor that it transpired that they were unrelated to race, nor that he was disbelieved by the Employment Tribunal nor that the employer had not understood that they were about race. It seems to us, therefore, that there may be an arguable error of law here and, of course, all that we are concerned about here at this stage is what is arguable. Much will depend, as it seems to us, on the Chairman's notes of evidence but it may be arguable that the Tribunal came to a conclusion which was an impermissible option on the evidence and that that failure coloured the Tribunal's conclusion on victimisation because it never truly went beyond its conclusion that there was no protected act and hence did not look into the other elements of victimisation. Its conclusion on victimisation could, perhaps, have been different had it gone further, having recognised that there had, indeed, been a protected act. So that is the first ground of the Notice of Appeal and it seems to us appropriate that it should go to a full hearing.
13. The second ground asserted is that the Employment Tribunal failed to notice that the employer did nothing to investigate Mr Williams's complaint of racial discrimination notwithstanding that they said that they would look into it and that that failure represented less favourable treatment.
14. It was plainly argued by Mr Williams's counsel at the Tribunal that that was the way the case was put. We have the closing submissions put in on behalf of Mr Williams below and they include this:-

"It is also submitted that the applicant was subjected to discrimination by reason of the failure of the first respondent (Gray) to investigate his complaint of racial discrimination as alleged or at all during the 14 months that the applicant complained:"

15. It is arguable that the Tribunal's failure to make any findings on that part of the case represented an error of law. So we see that this matter is appropriate to go to a full hearing. We will hear Mr Lewis on the subject but, it would seem to us, that the Chairman's notes are going to be necessary.

We see it as being a category B matter which should take an hour and a half. Skeleton arguments to be exchanged between the parties and sent to the Employment Tribunal not less than 14 days before the date of the full hearing.