United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR KEVIN McFADDEN Representative Instructed by: Northern Complainant Aid Fund Midlands Unit 70 Villa Road Handsworth Birmingham B19 1BL


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for Preliminary Hearing Mr Jaylesh Rajani is seeking to set aside as erroneous in law the decision of the Leicester Employment Tribunal on his claim for racial discrimination against his former employers Field Boxmore Packaging Ltd. That is a firm which supplies packaging and printed material for the health care industry, and Mr Rajani was employed by them as a driver for the relatively short period from 18 October 1999 to 31 July 2000 when he was dismissed on conduct grounds.
2. Mr Rajani's complaint that his dismissal had amounted to an act of racial discrimination against him was heard by the Tribunal on two days, with further consideration on a third day, in July 2001; and their decision set out in the Extended Reasons sent to the parties on 3 August 2001 was that Mr Rajani's complaint of racial discrimination had not been made out on the facts and was dismissed.
3. What gave rise to the proceedings was that Mr Rajani who had been employed as a driver delivering the company's materials had in his own time qualified to drive a heavier grade of vehicles than the ones he was originally employed to drive. In common with other drivers employed by the Respondents, he had from time to time by agreement taken on the additional job of driving the heavier vehicles for which an extra supplement was included in the pay of the drivers concerned.
4. As the Tribunal recorded in their findings of fact, in July 2000 there was a change in the pay arrangements for the supplementary allowances for driving heavier vehicles. As a result, instead of there being a weekly supplement for any week in which a driver happened to have driven a heavier vehicle, there was substituted a daily supplement only for the particular day in which driving duties on the heavier class of vehicle was undertaken. Mr Rajani was unhappy about the way in which the supplements were paid to him in his payslips. There was a further incident in July which played some part in the history of the matter, when Mr Rajani had locked his bicycle to railings in the wrong place and the Respondents had had his bicycle removed by cutting through the lock and the bike had been moved to the proper park.
5. This was treatment which was also meted out to the bicycles of other employees, not of Asian origin, who had been treated in exactly the same manner as a result of what was obviously something found irksome by the management. That resulted in a dispute between Mr Rajani and the Respondent about the costs of repairs to his bicycle, which he said had been damaged in the course of being moved; and that was unresolved at the time of the events that gave rise to his dismissal. They were that as recorded by the Tribunal at paragraph 7 of their Extended Reasons, on Thursday 27 July, he was asked to drive a higher category vehicle the following day and agreed. He came into work on the morning of 28 July and collected the keys for the vehicle. He also then looked at his payslip and realised that he had not been paid the higher rate at all for his driving duties the previous week. He went to speak to a member of the Respondents about it and was told that there had been a mistake and that it was impossible to resolve it straight away.
6. Nevertheless the Applicant was dissatisfied, as he considered he ought to have been paid the higher rate for the whole of the previous week. When that was not agreed (as not being in accordance with the revised pay arrangement coming into force from July as recorded by the Tribunal), the Applicant then said he was not prepared to drive the vehicle that he had previously agreed to drive. He said in future he would not be prepared to drive higher rated vehicles at all and would only drive vehicles of the original class in accordance with his contract.
7. That caused problems for the Respondents, as the delivery he had been scheduled to carry out was to the Respondents' most important customer, and other arrangements had to be made causing difficulty and inconvenience. The Tribunal recorded that it was not in dispute that the Applicant was not told that if he refused to drive the vehicle his job was at risk. The member of the Respondents' staff to whom he spoke suggested in evidence that he told the Applicant there would be serious consequences; but the Tribunal recorded they thought it was probably more likely that he simply said the Applicant was being unreasonable, and they accepted evidence that he was very annoyed about the Applicant's refusal.
8. Accordingly, the member of staff concerned, a Mr Glaister, once the vehicle had been despatched went to see the manager Mr Robinson and said he considered disciplinary action should be taken. That disciplinary action was undertaken by Mr Robinson and led to a disciplinary meeting at which Mr Rajani was represented by a Mr Mullins, who was a trade union representative who had agreed to take on the task of appearing with him at the meeting even though Mr Rajani was not in fact a member of the trade union concerned.
9. That followed a discussion between Mr Robinson and Mr Moosa, the father of the chapel of the union concerned, who was himself of Asian origin. As recorded in paragraph 10 of the Tribunal's Extended Reasons to which we were referred, a suggestion had been made by Mr Robinson that he was not necessarily looking to dismiss Mr Rajani if some acknowledgement was given that Mr Rajani was in the wrong and should not have reacted in the way he did.
10. As the Tribunal recorded:

"On the Monday morning Mr Robinson saw Mr Moosa, the father of the chapel. He said to Mr  Moosa that the respondent was not looking to sack the applicant but wanted him to realise he should not have reacted in the way he did, to accept that he was wrong and to acknowledge that he had been wrong. It seems on the evidence put to us that this did not reach the applicant because it was a different union representative, Mr Mullins, who was with the applicant. The further disciplinary hearing then took place on the Monday. The applicant was still firm in his view that he had done nothing wrong. As a result Mr Robinson decided to dismiss the applicant for his refusal to act upon a direct order. That is a matter which under the respondent's rules could amount to gross misconduct."

11. As the Tribunal recorded there was then an appeal process which did not result in the lifting of the dismissal but as this is a racial discrimination case nothing turns on that. The Tribunal then considered evidence, put before them primarily by the Applicant, as to other incidents where employees of the Respondent had refused to carry out direct instructions from the management and in the course of being disciplined had not been dismissed. The first of these had involved a Mr Tebbutt and the second involved a Mr Strachan, on whose case the submissions made to us by Mr McFadden on the Preliminary Hearing of this appeal principally focussed. As recorded by the Tribunal in paragraph 13, Mr Strachan on 25 February 2000 had refused to comply with an instruction from his superior and was verbally abusive to him. A disciplinary hearing had been held. However Mr Robinson had drawn a parallel between his treatment and that of Mr Tebbutt who had not been disciplined on the earlier occasion in 1999 when he had refused to carry out work and started to go home, though he had afterwards thought better of it and returned. In addition, and most materially for our purposes, Mr Strachan had made it clear that he was sorry for what he had done and accepted that he had been in the wrong and had agreed to apologise to his manager. Consequently instead of being dismissed Mr Strachan had been given a final written warning, suspended without pay for a week, and told that on his return he would be classed as a probationary employee for three months.
12. Following these two incidents the company had decided to take action to clarify and tighten up its notices to the employees about the disciplinary position if direct orders were refused by employees. As recorded by the Tribunal in paragraph 14 of their Extended Reasons:

"Because of the difficulties over the case of Mr Tebbutt and Mr Strachan, following discussion with the union, the respondent decided to make clear what its view was on the failure to act upon orders. Accordingly, notices were placed on all of the company's notice boards to ensure that there was no doubt in anyone's mind about the importance of the rule that failure to comply with a reasonable instruction amounts to gross misconduct which could lead to the immediate termination of employment. The applicant's refusal to act upon instruction was the first incident since that notice had been given."

13. And we have helpfully been provided for the purposes of this appeal hearing with a copy of the notice itself dated 21 March 2000, that is shortly after the dealings with Mr Strachan, which states in terms:

" Company Rules and Procedures

As some of you may be aware there have been a number of recent incidents when employees failed to comply with a reasonable instruction given by a Supervisor. All employees need to be clear that such an action amounts to gross misconduct which can lead to the immediate termination of their employment with the Company. The Company is issuing this reminder now so that there is no doubt in anyone's mind about the importance of this rule and the consequences of a refusal.

If, for any reason, you are unhappy with something you are asked to do, the right course of action is to carry out the instruction and discuss the matter later, involving your union representative if you wish. A refusal is only justified if you believe there is a serious and immediate risk to your health and safety.

There is also a right and wrong way to go about making your feelings known. Excessive use of bad language is never justified, nor is any swearing directed at another person."

14. As noted by the Tribunal the Applicant was perhaps unfortunate in that was his first case of refusal to act upon instructions that had occurred since that notice had been given by the company to all its employees. It may be for that reason that as recorded in paragraph 10 of the Extended Reasons Mr Robinson had a quiet word with Mr Moosa the father of the Chapel, understanding Mr Moosa to be acting on behalf of Mr Rajani, indicating that if an apology was given it would be unlikely that the disciplinary proceedings would be followed through to the point of dismissal.
15. It is also significant that as the Tribunal record in paragraph 15 of their Extended Reasons although the Applicant was the only Asian driver of the Respondent, the Respondent does employ a number of other Asian employees. Indeed Mr Moosa the father of the Chapel is himself of Asian origin, and the Tribunal recorded that they were given no evidence to suggest that the Respondent had ever acted in a discriminatory way to any other minority employee.
16. The Tribunal considered whether the way Mr Rajani has been treated at the disciplinary meeting and the way he had been dismissed gave rise to discrimination against him, and whether it was right to infer that any such discrimination had been directed against him on racial grounds. They directed themselves in impeccable terms to the general requirements of the law in particular to the cases of King v Great Britain China Centre and Zafar v Glasgow City Council, as well as to the recent decision the Court of Appeal in Anya v University of Oxford as to the need to make clear findings and have a proper basis for any inferences to be drawn as to racial conduct or otherwise.
17. They then recorded in paragraphs 19 – 24 of their Extended Reasons that on their findings of fact there was no actual comparator with the Applicant who had refused a direct order to drive a vehicle at the point when he was due to take it out having already agreed to drive it. And they said specifically:

"We can see no reason to suppose that the respondent would not have treated such a refusal just as seriously whoever did it. It is hard to see how the respondent could organise its delivery part of the business if the drivers were to act as the applicant did and the respondent took no action."

18. They then recorded that the only useful comparators that had been put to them were in relation to the cases of Mr Tebbutt and Mr Strachan. They did not know all the details of those cases, because they were comparisons volunteered by the Respondent, and as the Tribunal recorded they were not really in a position to carry out a comparison for themselves of the relative seriousness of the incidents, but they said that:

"On the face of it they are comparable as being a direct refusal to follow an order. Both Mr Tebbutt and Mr Strachan are white and the applicant is of asian origin. Neither of them were dismissed, but the applicant was. Accordingly, there appears to be a difference of treatment between the applicant and two people of different racial origin. We are entitled to seek and consider the respondent's explanation for that difference."

In that passage the Tribunal appear to us clearly to have been assuming in favour of the Applicant that there had been something identifiable as a difference in treatment; and then proceeding to the second stage of the enquiry under King v Great Britain China Centre, of determining for themselves whether there were grounds for inferring that any such difference in treatment had been on racial grounds, since only then could a claim for racial discrimination succeed.

19. They referred to the differences and similarities between the cases of Mr Tebbutt and Mr Strachan and expressed their conclusions as follows:

"22. In the case of Mr Strachan and Mr Tebbutt the third and most important difference was that following their cases an instruction was placed on the notice boards on 21 March showing the likelihood of dismissal in the future, if anyone again refused to carry out an order. It is not relevant for our deliberation whether the applicant did or did not see that notice, as both the respondent and the union accepted that it clarified the position, so that different action could be taken after that notice had been issued."

23. It is also important for us to consider that despite the clear warning in March, Mr Robinson did say to Mr Moosa, who he understood was assisting the applicant, that if the applicant was prepared to apologise he would not be dismissed. This shows that if the applicant had done that he would have been treated in the same way as Mr Strachan, even though what he did followed the notification. However, not only did the applicant not apologise he maintained his position and at the same time raised other complaints and grievances he had against the respondent.

24. We have considered whether there is any other evidence which should make us reject the respondent's explanation for the difference of treatment of the applicant and Mr Tebbutt and Mr Strachan. There is no other evidence of asian employees being treated differently adversely by the respondent. We are not satisfied that any of the other incidents raised by the applicant were themselves on racial grounds. In particular, the incidents with the applicant's bike, which upset him considerably, was clearly not on racial grounds. His bike was treated in the same way that the bikes of others had been treated."

20. They then referred to one incident of a racial comment which they discounted as a factor and concluded that having considered all of the evidence and the way in which the witnesses gave their evidence:

"We see no reason to disbelieve the respondent's explanation for the different treatment of the applicant. It is an understandable explanation, which shows that the applicant was treated differently from Mr Strachan and Mr Tebbutt for reasons, which had nothing to do with race. Accordingly, our decision is that the applicant was not dismissed on any ground in relation to his race."

And it followed therefore that his complaint of racial discrimination must fail and was dismissed.

21. Against that decision Mr McFadden on behalf of the Mr Rajani seeks to pursue an appeal, on what he summarised helpfully for us as four grounds but in reality all comes back to the same point. First of all he said there was a discrepancy between what the Tribunal said in paragraph 10 of their Extended Reasons about Mr Robinson having mentioned to Mr Moosa that the Respondent was not looking to sack the Applicant, and what they said in paragraph 23 about Mr Robinson having made this remark as showing that if the Applicant had apologised he would have been treated in the same way as Mr Strachan.
22. Here Mr McFadden's submission was that the Tribunal had erred in failing to place sufficient emphasis on the fact that Mr Robinson's indication had not reached Mr Rajani at all, while the suggestion of an apology had according to Mr McFadden been made to Mr Strachan directly at the disciplinary meeting involving him. Secondly, he submitted that the Tribunal had erred in paragraphs 12-14 of their Extended Reasons and later, in not inferring that there had been a difference of treatment compared with Mr Strachan on that ground, in that the possibility of an apology had been mentioned to Mr Strachan directly by Mr Robinson at the disciplinary meeting. Thirdly, he said that if the company had in truth been intending to draw what he described as a "line in the sand' by reason of the publication of its notice on 21 March 2000 after the cases of Mr Strachan and Mr Tebbutt, the indiscriminate nature of the application of those procedures was invalidated by the hint that Mr Robinson dropped to Mr Moosa that the 'line in the sand' was not such a firm line after all and that an apology would save him from dismissal.
23. Finally, Mr McFadden said that the Tribunal had, on the facts before them and in the light of the evidence, reached a perverse conclusion and that no reasonable Tribunal could have done other on the basis of the Tribunal's findings and the evidence before them than to draw the inference that Mr Rajani had been discriminated against on racial grounds.
24. It is important in our judgment to bear in mind that this is not an unfair dismissal case, because Mr Rajani did not have sufficient length of service to bring proceedings for unfair dismissal. Accordingly, his only claim against the Respondents was for alleged racial discrimination. The issues on the claim for racial discrimination are of course different from the question of whether a fair and reasonable procedure was adopted in the course of the disciplinary investigation before the decision was taken to dismiss Mr Rajani. What was important for the purposes of the racial discrimination claim was whether there was any ground for inferring that the treatment in fact accorded to Mr Rajani would have been any different from that accorded to another employee in comparable circumstances, and if so whether that difference was on racial grounds. All Mr McFadden's points appeared to us really to depend on the same contention that there had been discrimination against Mr Rajani in that the suggestion of an apology had not been put to him openly by Mr Robinson at the disciplinary meeting itself, as he told us the evidence showed had been the case with Mr Strachan.
25. The relevant point for the Tribunal is however somewhat different namely whether the established facts gave grounds for an inference that Mr Robinson in acting as he did had acted against Mr Rajani on racial grounds. The two most crucial facts as recorded by the Tribunal relevant to consideration of that issue were first of all the terms of the company's notice of 21 March 2000, which postdated the treatment of Mr Strachan, and gave in the Tribunal's view no ground for inferring that after the publication of that notice any other employee who had refused to carry out an instruction to drive a vehicle as Mr Rajani would have been treated any differently from the way he was; and secondly that in any event Mr Robinson had made the suggestion to Mr Moosa whom he understood to be acting for Mr Rajani that he would in fact be treated in the same way as Mr Strachan if he was willing to admit that he was in the wrong and make some form of apology.
26. It may be unfortunate, but there is no ground in the Tribunal's findings or the evidence for thinking that it was Mr Robinson's fault that that message did not apparently reach Mr Rajani from Mr Moosa; or that (whether for that reason, or because he was in any event adamant about his own position as the evidence rather suggests) Mr Rajani so far from apologising or admitting that he was in any way in the wrong maintained his previous stance and indeed introduced further complaints against the Respondents themselves.
27. We have been unable to see that in that context whatever differences in treatment are said to have been accorded to Mr Rajani as compared with Mr Strachan provide any grounds on which it could be said that a reasonable Tribunal was driven to make the inference that the difference in treatment had been on racial grounds. As Mr McFadden very fairly admitted in the course of his argument, the contention on perversity at least had really to go that far. He had to say that on this material no reasonable Tribunal could have done other than draw the inference that there was discrimination, and that that discrimination had been on racial grounds.
28. As he also very fairly acknowledged, all the points he was seeking to argue before us were points on the facts and the inferences to be drawn from the evidence that had been fully argued before the Employment Tribunal. In our judgment they were adequately dealt with in their decision, and we have concluded despite Mr McFadden's arguments that all of these are matters on which the Tribunal was entitled to form its own view. They have in the paragraphs of their Extended Reasons which we have quoted explained clearly and adequately the reasons which led them to conclude that there were not grounds in this case for drawing the inference of any difference in treatment of Mr Rajani on racial grounds, and we have been unable to see that there are arguable grounds for the Appeal Tribunal to interfere with what appears to us to have been a conclusion of fact and degree, drawn by the Tribunal of fact having heard the evidence, and to be justified on the material before it. For those reasons we have been unpersuaded that there are arguable grounds here to warrant our directing that the case should go forward to a full hearing inter partes before the Appeal Tribunal and we accordingly now unanimously dismiss the appeal.