United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MS J MULCAHY (of Counsel) Instructed By: Messrs Cripps Harries Hall Solicitors Wallside House 12 Mount Ephraim Road Tunbridge Wells TN1 1EE


 


MR JUSTICE WALL:

1. This is an appeal by Mr Francis Robertson (the Appellant) against the unanimous decision of the Employment Tribunal sitting at Ashford in Kent on 10, 11 and 12 April; 24 July 2000 and promulgated on 10 October 2000. The Tribunal's decision was that the Appellant's employer, Bexley Community Leisure Ltd, trading as Leisure Link (the Respondent) did not unlawfully discriminate against him on the grounds of race. The Tribunal accordingly dismissed the Appellant's complaint of unlawful racial discrimination.

The Facts

2. The Appellant is a man of Black-Caribbean origin, who was employed by the Respondent as one of its Plant Technicians based at its three leisure centre sites identified in the Tribunal's Reasons as Riverside, Splashworld and Lamborey. Of the three candidates short-listed for interview, the Appellant was the only candidate from an ethnic minority.
3. The Respondent employed three other Plant Technicians, one of whom was Mr Don Pankhurst. The Tribunal found that it was the Respondent's intention to train the Appellant to operate the plant at its three sites so that he would be able to take over the duties of Mr Pankhurst on a permanent basis when Mr Pankhurst retired at the end of the year 2000. The Appellant's job offer was also subject to a six month probationary period.
4. The Tribunal found that when the Appellant started work, Mr Pankhurst was away on holiday and that it was not until two days after his starting date that the Appellant met Mr Pankhurst at Splashworld. The Tribunal continued with the following findings of fact:

"7 … We find that Mr Pankhurst was very disgruntled at the appointment of (the Appellant) and that he failed to extend any welcome or any courtesy to the Appellant. Mr Pankhurst adopted a wholly hostile and negative approach towards the Appellant but, notwithstanding the hostility he encountered, the Appellant with commendable dignity and restraint decided not to challenge Mr Pankhurst in any respect because, as he told the Tribunal, he did not 'want to rock the boat'.

8 Mr Pankhurst refused to sit at the same table as the Appellant during break periods and on an occasion when it was suggested by Mr Ray Colgate [one of the other Plant Technicians] that both the Appellant and Mr Pankhurst should go down to Riverside to enable Mr Pankhurst to instruct the Appellant to backwash, Mr Pankhurst told the Appellant that he was intending to take the bus and that the Appellant would not be coming anywhere with him. The Appellant received no training from Mr Pankhurst and he had to train himself. The Appellant was a qualified mechanical engineer but he did require training in backwashing and in the use of chemicals for the Respondent's swimming pools. We find that the Appellant was the victim of the most disgraceful abuse on the part of Mr Pankhurst, which was wholly racially motivated.

Thus by way of example following the completion of some successful electrical work carried out by the Appellant Mr Pankhurst sneeringly retorted that [he] thought it would have been 'a black man connection' and he would say to the Appellant 'we do not want you here, I do not want to work with the likes of you'."

5. In circumstances which are not entirely clear to us, the Appellant made a formal complaint in writing dated 13 April 1999 addressed to the Respondent's Operations Manager and the Respondent's Building Services Manager. To the typescript of that letter the Appellant added a postscript in these words:

"I am not trying to do anything to discredit Don as I think he is an experienced plant operator and can teach me a lot. He is a very important part of my training and an important part of Leisure Link.

I wish him no harm and I only want an acceptance from him that we can work together. Until he left he will always be one of those who I can gain experience from."

6. As a result of the Appellant's letter disciplinary action was taken against Mr Pankhurst. The Tribunal found that when seen by Mr Brian Whaley, the Respondent's Business Development Manager, before Mr Pankhurst's disciplinary hearing, the Appellant stated that he did not wish to see Mr Pankhurst dismissed but that he wanted him to stop the abuse.
7. Mr Pankhurst's disciplinary hearing was held on 29 May 1999, following which he was issued with a formal written warning. The Tribunal found that a formal written warning was considered appropriate because, at the hearing, Mr Pankhurst had produced a letter in which he stated that he was sorry if his remarks had caused offence and that he would be more than happy to assist in the Appellant's training.
8. On 27 May 1999 Mr Whaley wrote to the Appellant informing him that Mr Pankhurst had been issued with a formal written warning and recording Mr Pankhurst's apology. The letter continues:

"Clearly, this unfortunate set of incidents has raised a number of issues. To assist the establishment of good working arrangements with Don, I have asked Paul Newton and Carol Corpe [the Respondent's Personnel and Training Manager] to arrange a meeting with yourself and Don, prior to you returning to work at Splashworld. In addition, Paul Newton will arrange formal monthly meetings with all of the Plant Technicians. This will enable, amongst other things, your training plan and working arrangements to be discussed and agreed."

9. Unfortunately, Mr Pankhurst went on sick leave shortly after the disciplinary hearing, and it was not possible to convene the "reconciliation meeting" until he returned. He does not appear to have done so until some time in the middle of September 1999. The Appellant himself was then away on sick leave for a period of approximately a fortnight and the "reconciliation meeting" did not take place until 5 October 1999. The Tribunal found that at that meeting Mr Pankhurst refused to shake hands with the Appellant. The Appellant (who appeared in person before us) told us that he had told the Tribunal that Mr Pankhurst was also racially abusive of him at the meeting. The Tribunal found that the Respondent, through Ms Corpe took a very serious view of Mr Pankhurst's behaviour at the meeting and immediately suspended him pending disciplinary proceedings. The need for such proceedings was, however, obviated by Mr Pankhurst resigning from his employment the following day. The Tribunal accepted Ms Corpe's evidence that had Mr Pankhurst remained she would have had no option but to dismiss him as he had reneged on his stated intention to work with and attend to the Appellant's training needs.
10. The Appellant's form IT1 alleging racial discrimination and victimisation was received by the Employment Tribunal on 4 October 1999, although it was completed by the Appellant on 23 September 1999. The Appellant in an extended answer to question 11 in the Originating Application deals with the history of his relationship with Mr Pankhurst in some detail and goes on to make a number of complaints about his treatment by the Respondent culminating with his suspension from his employment on 3 September 1999, in circumstances which we shall outline shortly. His complaint concludes with this paragraph:

"Given the history of my employment with Leisure Link, the racist abuse I have suffered, the stereotypical attitudes held by some members of staff to me as a black employee, my employer's failure to deal inadequately [sic] with my abuser even under the terms of their own disciplinary procedures, their failure to train me properly thereby putting me in a position where I could have injured myself and caused injury to others I view the decision to extend my probationary period as an excuse and a way for the company to get rid of me which I view as victimisation on top of the racial discrimination."

11. The circumstances in which the Appellant suspended from his employment were found by the Tribunal to be as follows. On 2 September 1999, after the Appellant had left Splashworld early in order to attend a dental appointment, a high level of chemicals was discovered in the teaching pool at Splashworld. As a consequence, it had to be shut down. Mr Whaley, who was on site, decided that he should meet the Appellant at the start of his shift on the following day in order to go over the events of the day in question to determine whether the situation had occurred through any act of the Appellant. However, on the following morning, the Appellant telephoned to say that he was unwell, and would not be attending work. Mr Whaley decided to suspend the Appellant until either he or Mr Newton could have the opportunity of speaking to the Appellant about the matter. The Tribunal's Reasons continue:

"14 … We find that Mr Whaley was very concerned about the chemical level in the teaching pool which was a health and safety matter and which had caused the closure of the teaching pool, which had consequences for pre-arranged swimming lessons. We consider that Mr Whaley understandably felt that repetition of such an incident had to be avoided. On the day of the incident the other 2 Duty Officers had not been on duty and accordingly Mr Whaley decided that there was no reason to suspend either of them and by memo dated 6 September 1999 … he requested Mr Newton to carry out a full investigation into the matter. We find that the decision to suspend the Appellant was not racially motivated but was caused by wholly genuine concerns on the part of Mr Whaley to identify the cause of the chemical problems in the teaching pool which had occurred at a time the Appellant was the Plant Technician on duty. The Respondent was justifiably very concerned for the health and safety of all those using the pool and we consider that in the circumstances the decision to suspend the Appellant was reasonable until it was in a position to determine whether the Appellant's use of the equipment had caused the problem. We find that it was the first priority of the Respondent to ensure that the problem did not recur and in such circumstances the suspension of the Appellant until the investigation had taken place was reasonable.

15 The Appellant was asked to attend an investigatory meeting about the matter, which was arranged for 10 September 1999. The meeting was conducted by Mr Newton, and Mr Ray Colgate accompanied the Appellant. The Appellant was asked a number of questions about his duties on 2 September 1999 … and as a result of the investigation, which did not reveal conclusively the reason for the high chemical levels in the pool, the Appellant was totally exonerated from any blame for the incident.

16 A meeting took place between the Appellant and Mr Whaley and Mrs Corpe on 14 September 1999 when he was told that the outcome of the investigation had concluded that no blame could be attached to him for the high chemical level in the training pool. The Appellant was informed that he could return to work on the following day but that he should return to Riverside rather than Splashworld. We find that the reason for the decision to move the Appellant to Riverside was because Mr Ray Colgate who was the Plant Technician based at Riverside had gone off sick and there was in consequence no cover at Riverside, and because Mr Pankhurst had by this time returned from sick leave to his position at Splashworld, which was now covered. Mr Whaley considered that the Appellant and Mr Pankhurst should not work together until the reconciliation meeting had taken place between them, which Mr Pankhurst's absence on sick leave had prevented taking place earlier. Mr Whaley also decided to extend the Appellant's probationary period because he felt that he had not gained the necessary experience in the job as a result of the absence of the qualified Plant Technician, Mr Pankhurst, on sick leave. In any event the Appellant's position could not have been confirmed at that stage because he had failed to attend a number of appointments with the Respondent's Occupational Health team in order to obtain medical evidence.

17 We find that the Appellant was very unhappy about the decision to move him to Riverside and the extension of his probationary period. We consider that it was very unfortunate that the decision to communicate the somewhat discouraging news that his probationary period was to be extended coincided with the return of Mr Pankhurst and the proposal that he should move to Riverside, and we can fully appreciate that such factors caused the Appellant to conclude that he was being treated unfairly and was being victimised in circumstances involving the return of Mr Pankhurst to the Splashworld site. At the meeting on 14 September 1999 the Appellant stated that he was dissatisfied with the disciplinary action which had been taken against Mr Pankhurst, but we find that this was the first occasion on which the Appellant had expressed any dissatisfaction about the Respondent's treatment of the Mr Pankhurst and Ms Corpe reminded the Appellant that he had himself requested that Mr Pankhurst should not be dismissed. We find that notwithstanding the unfortunate timing of the return of Mr Pankhurst there was no racial motive involved in the decision to move the Appellant to Riverside and to extend his probationary period. We find in the circumstances that there were sound operational reasons for the Appellant's move to Riverside to cover for Mr Colgate's absence, and the Appellant had known as long ago as May 1999 that it had been decided that he and Mr Pankhurst should not work together until a reconciliation meeting had taken place between them … . Further we find that the decision to extend the probationary period was in order to provide supervised and structured training to enable the Appellant to acquire the necessary experience to be confirmed in the position of a qualified Plant Technician. On 15 September 1999 Mr Whaley wrote to Mr Paul Newton, the Respondent's Building Services Officer, explaining the decision to extend the Appellant's probationary period and setting out what it was required to achieve."

12. We have deliberately focused on the Appellant's complaints about the conduct of Mr Pankhurst prior to 13 April 1999, and the outcome of Mr Pankhurst's disciplinary hearing on 24 May 1999 since both were outside the three-month period within which proceedings under section 54 of the Race Relations Act 1976 have to be brought. Section 68(1) of the Act provides that:

"An employment tribunal shall not consider a complaint under section 54 unless it is presented to the Tribunal before the end of –

a) the period of three months beginning when the act complained of was done."

However, section 68(6) of the Act states that: -

"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Additionally, the point was taken before the Tribunal that the "reconciliation meeting" on 5 October 1999 could also not be relied upon by the Appellant since it post-dated the issue of the Originating Application on 4 October 1999.

13. The former point plainly troubled the Tribunal because after it had reserved judgment on 11 April 2000 it considered that it required the parties to address it on the question of Section 68 of the Act 1976, which had not been fully addressed at the full merits hearing. Accordingly, the matter came back before the Tribunal on 24 July 2000, on the sole issue relating to why the Appellant's Originating Application was not presented until 4 October 1999 and whether, if a complaint was out of time it would be "just and equitable" to consider such complaint in all the circumstances of the case. In the event, the Tribunal came to the conclusion that it would not be "just and equitable" to allow the Appellant to revive his complaint against Mr Pankhurst. Its reasons for this conclusion appear to be (1) that it was the Appellant himself who urged restraint upon the Respondent and (2) that the Respondent acted reasonably and appropriately in its approach involving the sanction of a formal written warning and a proposed "reconciliation meeting" before the Appellant and Mr Pankhurst resumed working together.
14. As this point goes to the heart of the case, and is the first ground of appeal relied upon by Mr Robertson, we take it first. We are in no doubt at all that in failing to exercise its discretion under Section 68(6) of the Race Relations Act 1976, the Tribunal erred in law and reached the wrong conclusion.
15. The effect of the Tribunal's decision not to consider the Appellant's complaint against Mr Pankhurst delivers, in our judgment, what can be colloquially described as a "double whammy" against the Appellant. Not only is he precluded from relying upon the undoubtedly discriminatory behaviour of Mr Pankhurst prior to the disciplinary hearing in May 1999, he is also precluded from relying upon the events of the "reconciliation meeting" on 5 October 1999. The irony is that if he had delayed – say – a week longer and issued his IT1 on 11 October 1999, he would not only have been in time in relation to the events of 5 October 1999 (on which he was plainly entitled to rely) but could also, in our judgment, have pleaded a course of conduct on the part of Mr Pankhurst which began in February and which had not changed by October.
16. The Tribunal, rightly in our judgment, described Mr Pankhurst's behaviour in strong terms. At paragraph 33 of the Reasons the Tribunal says:

"33 In this case we have found that the behaviour towards the Appellant by Mr Pankhurst was of a deplorable nature and there was no issue that such behaviour was motivated by racial grounds; the Appellant was treated less favourably on the grounds of his race. The Appellant's treatment by Mr Pankhurst in our view amounted to direct racial discrimination of the most flagrant kind. We consider that such behaviour on the part of Mr Pankhurst did not form part of a continuing act of discrimination and that the other matters relied upon by the Appellant as amounting to unlawful racial discrimination were of a wholly different nature to the instances of crude racial abuse on the part of Mr Pankhurst. …"

17. With great respect to the Tribunal we cannot agree that Mr Pankhurst's behaviour did not form part of a continuing act of discrimination. It plainly did. Mr Pankhurst's attitude had not changed at all. His apology consequent upon the disciplinary proceedings in May was plainly hollow. Mr Whaley considered that the Appellant and Mr Pankhurst should not work together after Mr Pankhurst returned from sick leave in September, and the Tribunal found that decision not to have been racially motivated. That finding must be questioned in the light of Mr Pankhurst's subsequent behaviour. The fact that Mr Pankhurst maintained his clearly racist attitudes did not fully emerge until 5 October 1999. But the events of 5 October 1999 demonstrate plainly that Mr Pankhurst's attitude had not changed. The fact that he had not been at work and able to demonstrate them is not, in our judgment, a reason for saying that they did not continue.
18. We also respectfully disagree with the Tribunal in its assessment that the action taken by the Respondent in response to Mr Pankhurst's behaviour was appropriate. The circumstances in which Mr Robertson came to write the postscript to his letter of complaint dated 13 April 1999 are not clear to us. Mr Robertson suggested that this had been written at the suggestion of Mr King. But even if that was not the case, the mere fact that Mr Robertson had stated that he simply wished the harassment to cease and did not wish to see Mr Pankhurst dismissed does not warrant either what, in our view, was extremely lenient and inappropriate treatment of Mr Pankhurst, nor does it warrant the refusal of the Tribunal to exercise its discretion under Section 68(6) of the Act 1996.
19. In our judgment, the Tribunal does not give any adequate reasons for its failure to exercise the discretion under section 68(6). It made three findings of fact in relation to the issue of time limits. The first related to the Appellant's attitude to the disciplinary proceedings in relation to Mr Pankhurst. We have already dealt with this. The second refers to the fact that the Originating Application had been presented on 4 October 1999 before the "reconciliation meeting" with Mr Pankhurst had taken place. This, of course, is true but we do not see it as a reason for refusing to exercise discretion: rather the reverse. The third is that the Appellant had sought assistance from the Bexley Council Racial Equality in September 1999, no more than a couple of days after he had been suspended. The Appellant was a member of the Union, AEEU, and he accepted that he was "very much aware of the Race Relations Act". Once again, we do not see why this fact militates against the exercise of discretion under Section 68(6). Even if it does, however, it has to be weighed against what, in our judgment, is a much more important consideration, namely that the failure to exercise discretion effectively excluded from consideration a substantial part of the Appellant's case, and prevented the Tribunal from considering the case properly and in the round.
20. In our judgment, accordingly, the Tribunal's error in refusing to exercise discretion under Section 68(6) goes to the heart of the case, and, inevitably, taints findings by the Tribunal in relation to other aspects of the case which would otherwise be unimpeachable. Apart from the behaviour of Mr Pankhurst and the facts leading up to the Appellant's short-term suspension in September 1999, the Appellant relies upon some five incidents as acts of racial discrimination, the detail of which, we do not propose to examine for reasons which will, we think, be immediately apparent. In each case, however, the Tribunal found that there was no racial motive involved in the approach adopted by the Respondent, whilst accepting that the Appellant had been obliged to work in an isolated environment which may have caused him to become "over-sensitive regarding his race".
21. As the authorities recognise, racial discrimination is often subtle, and those guilty of it rarely acknowledge that they have acted in a racially discriminatory manner. Mr Robertson's submission to us was that although it was possible to look at each individual incident and assert that in relation to it, the Respondent had not behaved in a racially motivated manner, the cumulative effect of the incidents, combined with Mr Pankhurst's behaviour and the Respondent's failure to deal firmly with it, should have led the Tribunal to find that the Respondent had been guilty of racial discrimination.
22. Had it not been for the Tribunal's failure appropriately to exercise its discretion under Section 68(2) of the Act 1976, we doubt very much whether Mr Robertson's argument in this respect would have succeeded. However, it must also be said that had the Tribunal been seized of the entire history, and had it been required to adjudicate on Mr Pankhurst's behaviour as part of an overall pattern of treatment of the Appellant lasting between February 1999 and October 1999, we think it at the lowest arguable and at the highest likely that the Tribunal would have reached a different conclusion.
23. We have, of course, considered anxiously what the effect of Mr Robertson's success on the first limb of his appeal has on the case overall. Had we been able to isolate parts of the case or individual incidents which we could return to the Tribunal for rehearing we would have done so. It seems to us, however, that there is no alternative but for the appeal to be allowed and for the matter to be re-heard as a whole by a different Tribunal.
24. There are, however, some other matters which can be disposed of at this stage. The first is the suggestion made by the Appellant that the Chairman of the Tribunal had a conversation with the Appellant on the first day of the hearing. We have the Chairman's response to this suggestion. Mr Robertson did not press the issue, and we need say no more about it other than that this ground of appeal fails.
25. Mr Robertson also raised the suggestion that a complaint he made subsequently relating to his alleged constructive dismissal by the Respondent should have been heard at the same time as the race discrimination claim. This matter can again be disposed of immediately. It is common ground that the Appellant did not have the requisite service to bring an unfair constructive dismissal claim. Mr Robertson readily accepted that this was the case, and did not pursue that ground of appeal.
26. The remaining two grounds of appeal were firstly whether the Tribunal properly applied the law to the facts and secondly, whether the Tribunal failed to deal with the complaint of victimisation. Since we are directing that the matter should be re-heard by a fresh Tribunal, we do not propose to adjudicate on these two grounds. They will, in our judgment, be matters for the fresh Tribunal which, inevitably, will have to review the whole matter and make its own findings of fact.
27. Finally, we should record that at the outset of the hearing before us, the Appellant raised the question of an application for an adjournment, on the basis that although he had found solicitors to represent him, they had been unable to appear. In the event, the Appellant did not press his application for an adjournment. He had produced a skeleton argument which set out the grounds of appeal, and his submissions in relation to them, with sufficient clarity, and we felt able to deal with the matter fairly, notwithstanding his lack of legal representation. It is, however, to be noted that when the case was before the EAT by way of preliminary hearing, the constitution hearing the preliminary application, presided over by Douglas Brown J, expressed the firm view that it would be advisable for the Appellant to obtain legal representation given the complexities of the case.
28. We respectfully agree with that view. It is, in our judgment, essential that the Appellant should be clear in relation to all the allegations which he makes, particularly insofar as they relate to Mr Pankhurst. In our judgment legal representation for the Appellant is likely to save both time and costs, and we hope very much that the Appellant, or his Trade Union, will find solicitors willing and able to act for him. Furthermore, and without expressing any view on the likely outcome of any rehearing, we take the view that this is a case which is eminently suitable for settlement by negotiation, and legal representation for the Appellant would undoubtedly facilitate that process.
29. For all these reasons, the appeal will be allowed and the Appellant's applications remitted to a differently constituted Tribunal to be heard on the basis that the discretion under Section 68 is exercised, and whether by amendment or as evidence of continuing discrimination, the events of the "reconciliation meeting" on 5 October 1999 are included within the Tribunal's jurisdiction.