United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M S PANESAR (of Counsel) Instructed by: Commission for Racial Equality (Litigation Dept) Elliot House 10-12 Allington Street London SW1E 5EH
For the Respondent	MISS L SEYMOUR (of Counsel) Instructed by: Messrs Stevens & Bolton Solicitors The Billings Walnut Tree Close Guildford Surrey GU1 4YD


 


HIS HONOUR JUDGE D PUGSLEY

1. This is an appeal from the Decision of the Employment Tribunal sitting at Bristol in which it dismissed the Applicant's case that he had been discriminated against on racial grounds. In essence there were two complaints. In paragraph 2 of the Decision the Tribunal set out the nature of the allegations. The first matter of complaint was that the Applicant was denied sufficient training to enable him to be promoted to the position of a customer engineer. The second complaint concerned the Applicant's removal from the site of Great Western Trains in Swindon in April 1999 without proper justification or explanation. Subsumed within this complaint there was a second limb of complaint namely that if, contrary to his contention, there was a genuine cause for concern about his technical ability to perform the assignment that he was discriminated against in not receiving support and training to enable him to carry out such work. Ms Spice was identified as a comparator in relation to that allegation.
2. The Applicant had been employed with the Respondents since 1 October 1986. The Respondent is an IT company and the Applicant was employed in support services. The Tribunal set out its directions of law in exemplary fashion and in paragraph 42 onwards dealt with the first complaint. Although the Tribunal noted certain shortcomings in the policies and procedures it noted that these disadvantages were not specific to the Applicant. The Tribunal concluded that there were no grounds for drawing an inference of less favourable treatment on grounds of race. There is no appeal on this aspect of the matter.
3. This appeal centres around the removal of the Applicant from the GWT site in Swindon in April 1999. There had been significant problems at the site in Swindon and the client was unhappy with the IT support it had received. Relations with the client were somewhat difficult. The Applicant was assigned there on a trial basis. The tasks required a high level on unsupervised and autonomous working. Following a discussion with a sub-contractor, Mr Hughes, Mr Jones sent an e-mail to Mr Vierk, a member of management, saying he did not think the Applicant had the requisite skill and experience for the job. The Applicant was not shown a copy of the e-mail but was given a generalised account of its contents. Thereafter the Applicant was transferred to work at the Audit Commission which he continues to do, and indeed is a valued member of staff.
4. The Tribunal rejected this allegation of racial discrimination. They found that the application was not in time; their reasoning is set out in paragraph 47 and they decided that even if it had been in time they would have held that discrimination had not been established and they set out their reasoning at paragraph 48.
5. There is certain artificiality in appeal cases. There is no doubt that the bulk of the Decision deals at length with the first complaint. The main thrust of the appeal is that the Tribunal did not deal adequately with the second complaint.
6. Lord Hoffman, in the case of Piglowska [1999] 3 All ER HL 632 at 643, a case cited by the then President in this Tribunal, Mr Justice Lindsay, Chief Constable of West Yorkshire -v- Vento, IRLR 2000 129 was scathing in his criticism of Appellate Courts purporting to substitute their own view for that of the Court of trial.
7. Each case has its own chemistry, and even the best drafted decision or judgment is but an inadequate attempt to convey the impressions of the findings of fact of the Tribunal which is trying the issues of fact. There has been a considerable jurisprudence centred on such cases as Meek -v- Derby District Council [1987] IRLR 250 as to the extent to which Tribunal decisions can be impugned because of the inadequacy of the reasons. It is not a matter of confidential information to say that the members of the Employment Appeal Tribunal, like the presiding judge, all get the papers well in advance, and we all have the opportunity of reading the papers and the Skeleton Arguments, and, of course, the judgment of the Honourable Mr Justice Lindsay, the President, where he analysed the various issues on which leave was given.
8. It is appropriate to note that Lindsay J said at page 5 of the transcript that the case is certainly very close to a dividing line between that which is arguable and that which is not, but on balance that it is right that part of the case should go forward.
9. Lindsay J then went on to note in the original Tribunal Decision and went on to consider the substantive case, including the substantive case as far as concerned the second subdivision of the second limb. They say this:

"48 …..…a white engineer, similarly placed, would have been treated no differently. Neither do we find any basis of complaint arising out of the respondent's decision to withdraw the applicant from site instead of providing on the job support and training. Such a course would not have been practicable in the circumstances.

49 Further, we do not find that the case of Miss Spice satisfies the requirements of a proper comparator within the meaning of section 3(4) of the Act. The circumstances of her case were materially different from those of the applicant. No meaningful comparison can be drawn between them."

10. Lindsay J went on to say this:

"It may be that the Tribunal felt that they could deal with the case very briefly because they might have thought they were dealing with a case where time had not been extended. Treating that as a free standing treatment of the second sub division of the second limb, it is, as Mr Gumbiti-Zimuto argues, at least arguably insufficient. To say such a course would not have been practicable in the circumstances without explaining why is at least terse. To say that no meaningful comparison can be drawn between them without explaining why, again, can be said to be too brief a description in the situation that the parties are entitled to know why they lost and why they won. It may well be that to those who heard the evidence it was dazzlingly obvious that no meaningful comparison could be drawn and that the course of on the job training would not have been practicable in the circumstances as they applied to Mr Campbell. If that had been spelled out nothing arguable would have arisen but it was not spelled out and, on balance, we find it arguable that the matter was too tersely dealt with"

11. The position it this, that one of the issues for our consideration is what is the yardstick by which Tribunal decisions should be judged? Is it that they should give a clear, cogent, comprehensive and compelling and conclusive statement of the findings of fact that were made, and why those findings were made, so that someone who knew nothing about the case would nevertheless be able to see exactly all the arguments that were before the Tribunal at the time the issue was made?
12. It is, of course true, as Lord Bingham said in the oft cited case of Meek, that there is not a legal requirement for a legalistic findings of fact in a long tortuous document, but in homely terms, each party will go home and know why they have won and why they have lost. But as Lord Justice Keene, as he then was, Mr Justice Keene, said in Derby Specialist Fabrication Ltd -v- Burton [2001] IRLR 73 at paragraph 32:

"it must be borne in mind that Extended Reasons of an Employment Tribunal are directed to parties who know in detail the arguments and issues in the case. The Tribunal's Reasons do not need to be spelt out in the detail required, were they to be directed towards a stranger to this dispute."

13. We have now had the opportunity of not only looking at the notes of evidence, but also the submissions made on behalf of the Applicant which are at page 22 - 33, the submissions made on behalf of the Respondent, dated 5 July by Miss Seymour, pages 34 - 57 and the Respondent's response to the Applicant's written submission dated 5 July 2001. The sole surviving actor in the original drama, if that is not too melodramatic a way of putting it, is Miss Seymour, who tells us and we all accept, including Mr Panesar, that there were not oral submissions, but written submissions.
14. We therefore are, if we may say so, in a good position to know exactly what the issues were that were before the Tribunal. Put very simply this, we accept that this Tribunal could have, if it so wished, have been more expansive, but we approach this case by the test of looking at whether or not the parties, and now at this stage, ourselves, armed with the information that was before the Tribunal, understand why the Applicant did not win and why the Respondents did. The starting test is to recognise that there is often an extreme area of artificiality in any appeal procedure. Issues that were central and basic to the case at first instance are, often, by the time it becomes part of an appellate procedure, marginalised, because there is no appeal in respect of those, and subsidiary issues move to the centre of the stage.
15. The issue which is central to this case was that the Applicant was denied the opportunity to obtain training and development of his skills sufficient to enable him to secure promotion from the position of Customer Engineer to that of Senior Engineer, and much of the Tribunal's Decision was directed to that issue; it was one that the Tribunal ultimately rejected in a measured decision and from which there is no appeal.
16. The second complaint, as we have noted, is that the Applicant was removed from the assignment of site engineer with Great Western Trains in Swindon on or about 26 April 1999 without any proper justification or explanation if contrary to the Applicant's primary case there was a genuine concern about his technical ability to perform the assignment, the Applicant contends he was discriminated against in not receiving support and training sufficient to enable him to perform the role as Mrs Jackie Spice who was identified as a comparator.
17. It is only pertinent to note at this stage, if we may adopt a point made by Miss Seymour, that the distinction of that which was drawn at the preliminary hearing, as to two limbs is, if one may say so, perhaps owes more to the rarified metaphysical arguments that than it does to the actual reality of life, because it is a distinction without a difference. If the Applicant had received training, he would not have been removed.
18. The finding of fact by this Tribunal as to the removal from the site at Swindon, contained in paragraph 17 onwards of the Decision, GWT required the services of a site engineer at Swindon. There had been significant problems with the IT system at that site and the company were concerned that they were in a sensitive and vulnerable position as far as their relation with their client was concerned. Unfortunately, the management had made a mistake in relocating the Applicant at that site because:

17…….." the tasks involved were of a more technically challenging kind than the bulk of those performed by him previously, and required a high level of unsupervised and autonomous working.

18. The Applicant duly attended, spent a good deal of time with Mr Hughes in the course of the day, and had a relatively short discussion with Mr Jones about the job's requirements, lasting probably not more than 30 minutes or so.

19. Following a discussion with Mr Hughes, Mr Jones sent an e-mail to Mr Vierk advising the applicant's line manager that 'a number of general straightforward tasks are proving to be quite difficult for [the applicant] to understand'. There were also anticipated changes in the on-site personnel at Swindon which would make 'the on-site position far more demanding'. Mr Jones stated, in conclusion:

"…..I do not feel that Leighton [the applicant] possesses the required experience nor the basic fundamental skills to run the site effectively unsupervised."

20. Mr Vierk took the decision to withdraw the applicant from the site after the first day of his trial period. The applicant was not shown a copy of Mr Jones' e-mail at that time, but was provided with a generalised account of Mr Jones' concerns."

He was obviously upset, and one can well understand why. According to the Tribunal:

"…. he did not consider the decision was in any way affected by his race".

19. Some months after the episode at GWT, the Applicant was assigned as a site engineer working at the Audit Commission, a role which he has continued to perform up to the date of the hearing, and we understand still does. There he is engaged in solving problems and everyone speaks highly of him.
20. Now, the Tribunal noted the position of a Ms Spice. Ms Spice had no technical knowledge or experience, but she was located at the Audit Commission. In fact her position is mentioned extensively in that the Applicant was claiming in his IT1 that his position contrasted with Jacqui Spice, in that she was given much more favourable treatment with the Audit Commission and offered training, and that he was denied a similar opportunity and the inference should be drawn that there was race discrimination .
21. In the Notice of Appearance it was clearly put that:

"The treatment of Jacqui Spice was not originally part of the Applicant's grievance and was only raised by him at the appeal stage. She was not in a comparable position to the Applicant. It is not therefore open to the Applicant to use her as a comparator for the purpose of any complaint of discrimination. She was declared redundant in her position within the Bristol office with effect from 1 October 2000. The Respondent company in accordance with legal requirements looked for alternative positions for her within its organisation. A place was found for her working on site at the Audit Commission where the Applicant also worked. She was asked to perform work of an administrative rather than technical nature. After a period of time the Audit Commission concluded that Ms Spice's skills were not equal to the tasks which she had to perform at the site. Mr Spice's manager considered the possibility of retraining but the Audit Commission would not accept that this would solve the shortcomings in Ms Spice's skills and she was dismissed by reason of redundancy on 21 December 2000."

Now, if you look at the body of this Decision, it is true, as we have said, that the Decision could have been more specific in certain findings, but we think it right to say that the primary issue, namely that he was denied the opportunity to obtain training and development, was really dealt with at considerable length.

22. Secondly, the Tribunal find as a fact that they accept the explanation given by Mr Jones and the Respondent Company that he had made a mistake in matching the Applicant's technical knowledge to the demands of the particular assignment at GWT, and this error only became apparent in the course of discussion on site, and through discussion between Mr Jones and Mr Hughes. It was accepted on the company's behalf that the Applicant was upset when they were unfortunately revealed the contents, and he regretted expressing himself in these blunt terms.

"48. ………However, we do not find that the decision to withdraw the applicant from site, unfortunate though it was, was affected, consciously or unconsciously, by race. A white engineer, similarly placed, would have been treated no differently. Neither do we find any basis of complaint arising out of the respondent's decision to withdraw the applicant from site instead of providing on the job support and training. Such a course would not have been practicable in the circumstances.

49. Further, we do not find that the case of Miss Spice satisfies the requirements of a proper comparator within the meaning of section 3(4) of the Act. The circumstances of her case were materially different from those of the applicant. No meaningful comparison can be drawn between them."

23. In the context of the information that we have before us as to what was said, what was in the pleaded case and what the written arguments before the Tribunal were, we do not consider that that terse statement is inadequate. We have little doubt that anyone who attended the hearing, or anyone who, like ourselves, has had the benefit of seeing the notes of evidence and submissions made, the requisite part of the pleaded case has any doubt at all as to why the Tribunal reached its Decision as it did.
24. Mr Panesar, whose professional skills have been a source of great admiration by all of us has at the end of the day, failed to persuade us that this Decision is, as at first blush it looked, inadequate. What we say now we say without any spirit of criticism. One of the difficulties we have is that Mr Panesar has considerable experience in employment law and has put his arguments with great skill and subtlety, but also with a very great depth of knowledge. If you compare his Skeleton Argument and the oral argument with the written argument that was put before the Tribunal on the Appellant's behalf, one has to say that there is something of a difference. If one looks at page 32, it was not being put that the discovery about Ms Spice and her position was the trigger point for the making of the application for race discrimination. What was being put was very different and it was alleged it was only when the Applicant discovered the e-mail in November and that triggered the application. It was being argued that (a) the application was in time, and (b) if it was not in time, then the argument, it is said, should be used that it was just and equitable to extend it.
25. Whilst we consider a Tribunal should help unrepresented applicants, it is difficult for a Tribunal, where a person is represented, to take hold of their case and say "No, this is what your case should be" and the Tribunal dealt with the case that was being put before them. If one looks at paragraph 46 of the judgment and 47, it is clear why the Tribunal made these findings in the light of the written submissions being put to them.

"46 ….….. out of time and there was no basis being advanced to justify the exercise of the tribunal's discretion to consider the complaint out of time on 'just and equitable' grounds.

47 The applicant's representative in her submissions points to the discovery of the contents of Mr Jones' e-mail as the event that crystallised the applicant's complaint. The tribunal does not accept that this is so. The facts material to the second limb of complaint were known to the applicant some 18 months prior to the commencement of proceedings. Although the respondent's treatment of Miss Spice is a matter which may have come to the applicant's attention within the relevant three month period, we do not find that the applicant's perception that he had been treated unfairly on grounds of race stemmed from that event. We note, as is pointed out in the respondent's submissions, that Miss Spice's case was only referred to by the applicant in the course of the grievance appeal."

26. Notwithstanding the winning oratory, at times, of Mr Panesar's lucidity, we really cannot avoid going back to the original Decision and saying that at the time this Decision was made, did the Tribunal deal in a comprehensive and clear way with the issues that were before them? And our answer to that must be "Yes" and that its terseness has to be read in conjunction with the arguments which were being expressed to the Tribunal about the issue of discrimination and about the issue of times. The Tribunal were perfectly entitled to make the findings of fact made in paragraph 47 and we are not empowered to reverse that finding.
27. We do not propose to go down the route of saying whether or not this is a case where we should make any or add to the learning for the need for an objective comparator, as suggested in Chief Constable of West Yorkshire -v- Vento [2001] IRLR 124. In this case, we consider that it was quite open on the information before them for the Tribunal to make the finding that they did, that a white engineer would have been treated exactly the same, given the particular difficulties that were at this site.
28. In a nutshell, we, as with many decisions, would have welcomed at this stage, as Mr Justice Lindsay pointed out, an expansion of the Decision. It would, perhaps, have made this hearing unnecessary because it would have been clear at an early stage exactly the basis. We believe that it would be wholly artificial to isolate from this Decision, the documentation that was before the Tribunal in all the circumstances of this case. We find:

(a) that the Tribunal did adequately deal with the issue raised before them and found, as it was entitled to, that this was out of time, and that it was not just and equitable to permit the case to go forward;

(b) secondly, we accept that in reaching that determination, they did deal with arguments not only put to them on the Applicant's behalf at that stage but those mentioned in Miss Seymour's submissions.

29. As to their admittedly brief summation, we believe that this is a case where the Tribunal could have said that was it, but they went on to consider the substantive issue on the second limb of complaint, and they were entitled to come to the view which they did, that although it was unfortunate in the way the matter was dealt with, it was not a matter affected, consciously or unconsciously, by race and a white engineer, similarly placed, would have been treated no differently.
30. Having heard the evidence as they did, and considered the arguments put before them, we think they were entitled to say that the issue as far as Ms Spicer was concerned, was not a matter which could assist them because she was in a different category. Without going into an endless series of causation, really if the Tribunal made, as this Tribunal did, the decision that to move the Applicant was made in good faith, arising out of a management mistake in assigning him to a job where the demands were beyond that which they had trained to do, we do not think that there is any basis that we as an appellate tribunal can alter a fundamental finding of fact, and where, as in this case, we have been referred to a body of documentation being before the Tribunal, there is no way in which that could be said to be a finding of fact made capriciously, lightly or without evidence on its part. We therefore dismiss the appeal.