United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS LOUISE KANTOR (Friend)


 


HIS HONOUR JUDGE J McMULLEN QC

1. This case is about race discrimination. I have pre-read the papers. I will refer to the parties as Applicant and Respondent.
2. It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Birmingham over two days in November 2002, Chairman Mr D Kearsley. The Applicant was represented there by Ms L Kantor, a friend, who has represented him today; the Respondent by Mr T Hughes, a consultant.
3. The Applicant claimed unfair dismissal and race discrimination. The Respondent denied the allegations but in due course the Respondent consented to a finding of unfair dismissal and the Applicant was awarded £977 by way of compensation. I understand that consent order has not been complied with. I very much disapprove of the fact that the agreement freely entered into by the Respondent has not been carried through; and a copy of my judgment here expressing that disapproval will be of course made available to the Respondent, together with my hope that it will be paid without the necessity for the Applicant to have to take County Court proceedings.
4. As to the claim of race discrimination, they were all dismissed, made as they were variously against six of the Respondents.
5. The Applicant has appealed against the decision on race discrimination. In accordance with the Practice Direction, a judge has made a recommendation on the papers that the Registrar should consider exercising her power under Rule 3 (7) of the Employment Appeal Tribunal Rules 2001. She has done. She has concluded in chambers that the case discloses no point of law. Without it, section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case.
6. The Applicant was given the opportunity to amend the Notice of Appeal or to have the case put before a judge under Rule 3 (8) or 3 (10) respectively. I am thus hearing the case on more material than was available to the judge or the Registrar and as the third judicial officer form my own view of the appeal. In particular, a bundle has been produced to me which I was not able to read in advance because of an administrative error at the EAT. Nevertheless, certain documents in it were available to me in advance and Ms Kantor has directed my attention to certain material which was before the Employment Tribunal and others which were not. It is of course difficult at this stage to deal with material which was not before the Employment Tribunal.
7. The relevant legislation is the Race Relations Act 1976 section 1 (1) and section 4 (1). It is not necessary for me to set those out for the Tribunal did so at paragraph 20. It directed itself in accordance with the relevant authorities which it set out at paragraph 22.
8. The Applicant was employed by the Respondent. He was the only Afro-Caribbean person to be employed within the workforce.
9. The Tribunal noted that all witnesses gave honest evidence to the best of their recollection. Misleading information was put before the Tribunal by the Respondent's representative but this was accepted to be an innocent misrepresentation. The Tribunal further found as follows:

5 "Equally letters written by those representing the Applicant were misleading but they had not been written with the specific approval of the Applicant to their contents."

10. The Tribunal made findings of fact principally in relation to three issues. First, an award of discretionary bonus which was withheld from the Applicant but made available to, for example, Gary Lee who was white. Secondly, the Applicant was not told until after Christmas 2000 that he was to receive no pay rise; and thirdly the Applicant was disciplined and dismissed for poor attendance. That turned out to be an error for it was based upon an assumption that the Applicant had backdated his certificate when the doctor himself had done this. In those circumstances the Respondent, when it learned of this material, reinstated the Applicant without loss of pay. However, he was continually absent from 11 June until his dismissal on 20 July.
11. The Tribunal found that the Applicant had been dismissed before his reinstatement and if he had not been reinstated that would have been unfair. It decided, however, that his second dismissal was unfair on procedural grounds. Thus, by consent, an award was made. It is a strong finding in favour of the Applicant that he was badly treated in terms of unfair dismissal by the Respondent.
12. There was no attempt to investigate how he could return to work or to investigate with his general practitioner whether the absence was merely temporary.
13. The organisation is small but it failed to take proper steps about dealing with the Applicant's sickness and thus the Respondent was condemned as having unfairly dismissed him.
14. As to the claim under the Race Relations Act 1976, the Tribunal was well aware of its requirement to make primary findings and its ability to draw inferences, for it addressed itself correctly on the authorities. It held that there were differences between the Applicant's race and that of others. It noted that except for the final dismissal his earlier complaints were out of time. Nevertheless, it did consider findings on those matters and accepted the Respondent's explanation for all of those. The difference in race was not on the explanation given by the Respondent the reason for the different treatment. The earlier action of the Respondent was not on racial grounds.
15. It then went to consider its decision in relation to the dismissal and held that others of different races would have been treated in the same way as the Applicant. That is a finding of fact which is open to it to make.
16. The Tribunal, in my judgment, cannot be faulted on its approach to the law. It is disappointing for the Applicant to learn that the Respondent's evidence appears to have been accepted when there were differences between what was said at work and at the Tribunal; but it must be borne in mind that the Tribunal's job is to listen to both parties, to hear the evidence and to make decisions on what evidence it finds. The acceptance by the Tribunal of the Respondent's explanation was a matter for it to decide as a fact, having correctly addressed itself on the law.
17. I see no fault in the Tribunal's approach to look at the earlier out of time complaints in the context of the in-time complaint about the dismissal; as to all of which the Tribunal has accepted the Respondent's explanation.
18. Ms Kantor has, if I may say, admirably represented Mr Collymore's case in very clear submissions to me today. But, as I think she will accept, much of what she says is based upon the Applicant's contention about the facts as against the Respondent's; and it is not the EAT's job to resolve those facts, for Parliament has given that task to the Employment Tribunal.
19. It seems to me that, although a powerful case was made at the Employment Tribunal, indicating differential treatment as between the Applicant and others, the Tribunal had all those matters in mind and did its duty in finding the facts.
20. I hope that Mr Collymore will have some consolation in knowing that he was unfairly dismissed by the Respondent and from what I have said above hope that the Respondent will pay the amount due to him forthwith without the expense of going to a County Court.
21. I would like to thank Ms Kantor for the measured way in which she has presented submissions to me today. She has said everything that could possibly be said on behalf of Mr Collymore and he has a good friend in her.