United Kingdom Employment Appeal Tribunal

APPEARANCES

 

or the Appellant	MR TAYLOR Representative Free Representative Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ
For the Respondent	MR M WEST Representative Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


THE HONOURABLE MR JUSTICE RIMER

1. This is an appeal by Mr A Amin against part of the decision of an Employment Tribunal sitting at London Central over some seven days between 1 August 2001 and 4 January 2002 and chaired by Mr G Solomons. The Tribunal's extended reasons were promulgated on 22 January 2002. The respondent before the Tribunal and to this appeal is Eghoyan's Pitta Bakery Ltd, which we will call "EPB".
2. Mr Amin was employed by EPB from December 1999 to October 2000. By his originating application, presented on 4 January 2001, he brought a number of complaints against EPB, including claims of race discrimination, unfair dismissal, unlawful deduction from wages and breach of contract. The Tribunal dismissed all of them.
3. By his notice of appeal to this Appeal Tribunal, Mr Amin appeals only against the Tribunal's decision that he was not unfairly dismissed. His case was that he had made a "protected disclosure" and that the reason for his dismissal, or the principal reason for it, was that he had done so. If he could have established that, then his dismissal would, by section 103A of the Employment Rights Act 1996, have been an unfair one, notwithstanding that he had not had 12 months' continuous service with EPB at the time of his dismissal. Part IVA of the 1996 Act deals with "protected disclosures". The Tribunal rejected his case on the facts. Mr Amin's complaint about the Tribunal's decision is that it is said that they erred in law in failing to set out sufficient findings of fact in relation to this head of complaint. Reliance is placed on the familiar principles identified by Lord Justice Bingham, as he then was, in Meek -v- City of Birmingham District Council [1987] IRLR 250, in particular paragraph 8.
4. The background facts, as found by the Tribunal, were as follows. EPB are food manufacturers. They are part of the WT Foods Group, which have a number of factories involved in food production, processing and packaging. Much of EPB's production involved the production of pitta bread for supply to small retail outlets and some to supermarkets. EPB was concerned to ensure that its quality control was good. This was important because it was intending to expand its sale of produce to large supermarkets, in particular in the organic area, and supermarkets are more demanding in terms of quality control than the smaller customers.
5. Mr Amin commenced his employment with EPB on 22 December 1999. He occupied a new position as technical manager and was responsible for technical and hygiene matters. In early March 2000, he was issued with a job description which set out the main tasks for his job and made it clear that he was responsible to the general manager, Mr Fucile, and the managing director, Mr Bird. Mr Fucile was responsible for the factory production. He was of Italian white origin, whereas Mr Amin is of South Asian origin. The relationship which developed between Mr Amin and Mr Fucile was at the heart of the race discrimination claim that Mr Amin brought. We consider that, in setting out the background to the particular issue for us, we should refer to certain of the findings of the Tribunal in relation to this aspect of the hearing before them, Mr West, who appears for EPB, placing some reliance on those findings.
6. The Tribunal found that Mr Amin had a degree of resentment at instructions given to him by Mr Fucile, a fact fuelled by Mr Amin's lack of respect for Mr Fucile's qualifications and experience. The result was that Mr Amin became obstructive when dealing with these instructions. The Tribunal found that this was the result of the fact the Mr Fucile, with his 23 years of experience in bakery, regarded Mr Amin as having only a limited insight into the trade and its problems and as lacking in experience in dealing with the problems at EPB. Mr Fucile became increasingly frustrated with what he regarded as Mr Amin's inability to do his job, whereas Mr Amin considered that he was equal to it, but that Mr Fucile put barriers in his way. The Tribunal found that other witnesses confirmed Mr Fucile's declared views of Mr Amin's abilities and also found that, although well qualified in food technology and safety, Mr Amin lacked experience in quality control in the food industry. They found that he was a poor communicator at EPB and they accepted the evidence of various witnesses that he had behaved improperly towards certain members of staff. In all these respects, the Tribunal rejected Mr Amin's denial of these allegations.
7. Mr Amin's complaint of racism was directed at Mr Fucile, whom he alleged had on several occasions uttered racially abusive remarks towards him. These were alleged to have happened between January and September 2000. Mr Amin had said that he had made oral complaints about them to Mr Bird in early 2000 and a written complaint on 30 September 2000. The evidence adduced by EPB was that there had been no such abuse and no such complaints, including no written complaint on 30 September 2000. Mr Amin produced to the Tribunal a document said by him to have been a copy of the written complaint he claims to have put under Mr Bird's door on 30 September 2000. But it in fact emerged that it was no such thing: it was, at best, what Mr Amin claims to be a late reconstruction of the alleged original. The Tribunal found that neither Mr Amin nor Mr Bird was even working on 30 September 2000, they expressed their doubts on the authenticity of the document produced by Mr Amin and found that he had made no written complaint to Mr Bird on 30 September. In the light of all the evidence they heard, they rejected all Mr Amin's complaints of racial abuse by Mr Fucile. They gave their reasons for concluding Mr Amin was:

"a man who is prepared to be manipulative and dishonest and take a number of steps in order to support his false account that Mr Fucile had been racist towards him and that he had made a complaint about such racist behaviour to [EPB]"

8. The Tribunal then dealt with and dismissed certain other claims brought by Mr Amin, before turning to his claim of unfair dismissal. The unfair dismissal claim was to the effect that he had been dismissed for one or other of the three alternative reasons: (1) on racial grounds, or by way of victimisation on racial grounds for having made a complaint of race abuse against Mr Fucile; (2) for having made protected disclosures within the meaning of section 43A of the 1996 Act; or (3) for having carried out his health and safety responsibilities at EPB, a dismissal in breach of section 100(1)(a) of the 1996 Act
9. The Tribunal explained that, were they to find that the reason, or principal reason, for Mr Amin's dismissal was either of alternatives (2) or (3) above, it would follow that his dismissal was automatically unfair, so that they identified the real question for them to answer was as to the reason for the dismissal.
10. The Tribunal found that Mr Bird, the managing director of EPB, was the dismissing officer. He dismissed Mr Amin by letter of 6 October 2000, saying in it that:

"I have now decided after many discussions that you are unsuitable for your current position and your employment is now terminated."

Mr Bird's evidence was that it had become clear, as a result of oral and documentary information provided to him, that so long as Mr Amin was employed at EPB, EPB would continue to take backward steps. That was why he decided to dismiss Mr Amin. The Tribunal said that its task was to decide whether to accept Mr Bird's evidence. If they did, they said they were driven to conclude that Mr Bird dismissed Mr Amin for reasons of capability and not for any of the alternative reasons advanced by Mr Amin. The Tribunal said that, having seen Mr Bird give evidence for some time, they regarded his evidence as truthful and accurate and they accepted that he dismissed Mr Amin for reasons of his capability to do his job. They rejected Mr Amin's alternative allegations as to the reasons for his dismissal.

11. The Tribunal explained their reasons for that conclusion in paragraph 42, and following, of their extended reasons. They referred first to the evidence of Michael Hoffman, the group technical manager for W T Foods, whose evidence the Tribunal also accepted. He had said that EPB employed a new technical manager specifically to deal with quality control issues and to bring the factory up to standard to enable EPB to supply supermarkets such as Waitrose. By April 2000, it was apparent to him that Mr Amin was not carrying out the requirements of his job properly. EPB failed its Waitrose audit in April 2000. Following that, various requirements had to be instigated. Mr Hoffman undertook an audit himself on 1 June 2000. He discovered five important matters, which the Tribunal listed, representing deficiencies which had to be remedied, all being matters within Mr Amin's responsibility. As a result, Mr Hoffman and Mr Bird prepared a daily task sheet for Mr Amin. The Tribunal found that:

"Given that the company was employing [Mr Amin] as its technical manager it is a clear indicator that [Mr Amin] was not carrying out his work properly that Mr Hoffman was driven to the extent of preparing such a daily task sheet for [Mr Amin] which any reasonable employer would be entitled to assume [Mr Amin] would be capable of constructing for himself."

Mr Hoffman also arranged for other internal audits to be carried out on a regular basis. Further, to improve hygiene issues, responsibility for them was move from Mr Amin to Mr Fucile and Mr Said. That resulted in a significant improvement, which was commented on during the internal audits.

12. The Tribunal then found, in paragraph 44, that as a result of extensive team efforts within EPB the Waitrose audit was passed at the end of July 2000. But further audits in August and September showed that Mr Amin was not maintaining a number of necessary systems. This led to discussions in September between Mr Hoffman and Mr Bird as to Mr Amin's suitability to continue in his position. They both concluded that Mr Amin had many weaknesses and that, so long as he remained technical manager, it would continue to be a struggle for EPB to pass any audits which were carried out. They agreed that Mr Amin had to be dismissed.
13. In paragraph 45, the Tribunal found that the views of Mr Hoffman and Mr Bird as to Mr Amin's abilities were supported by Mr Said, the quality assurance manager at the time of the dismissal, and by Mr Buachie, the quality control person at the time. The Tribunal expanded on the evidence given by each of these two witnesses. They pointed out that this evidence was, of course, also supported by Mr Fucile.
14. The Tribunal then turned, in paragraph 47, to the contrary evidence, which was simply that of Mr Amin. His case was that he was doing his job properly and any difficulties were caused by other EPB staff. The Tribunal rejected Mr Amin's implied case that there was a conspiracy to make him a scapegoat for the difficulties EPB experienced between January and September 2000. They also rejected Mr Amin's contentions as to the reasons he claimed he was dismissed. They then said this:

"48. In particular as to the allegation that [Mr Amin] made protected disclosures to [EPB's] management for instance to the effect that Mr Fucile sought to persuade employees like Mr Buachie to fabricate quality control paperwork, we do not accept that. Mr Buachie totally refutes the suggestion made by Mr Amin that Mr Fucile ever made any such suggestion to him. In addition Mr Bird and Mr Hoffman make it quite clear that [Mr Amin] never made such disclosure to them. In addition we are quite satisfied that [EPB's] management was concerned that health and safety matters should receive appropriate consideration and action and that no decision to either discipline or dismiss [Mr Amin] was made as a result of any carrying out by him of his health and safety functions. Equally we are quite satisfied that race played no factor either as free standing discrimination or as victimisation in the decision to dismiss the Applicant….

50 …….We are quite convinced he has sought to raise the question of dismissal for the making of protected disclosures and/or dismissal for exercising his health and safety duties because he knew that was the only way in which a complaint of unfair dismissal could be made, he having less than 12 months continuous service. None of the evidence in the case we are satisfied, supports [Mr Amin's] contention that those matters played any part at all in the decision to dismiss [Mr Amin], whom we are quite satisfied was dismissed on the grounds of capability and for no other reason."

15. Mr Amin's appeal against the Tribunal's adverse decision that he was not dismissed for making a protected disclosure is based on the contention that the decision is not a sufficiently reasoned one. He complains that the Tribunal failed to set out sufficient of their findings of fact in relation to this head of his complaint, and so failed to give sufficient reasons for rejecting this head. Mr Taylor, who appears for Mr Amin, submits that although the Tribunal is emphatic in their reasons for preferring EPB's evidence and rejecting Mr Amin's, they do not identify their findings on what he says were certain crucial relevant issues which were canvassed in evidence. As to that, Mr Amin had alleged, in paragraph 25 of his originating application that:

"25 In September [Mr Amin] also informed Mr Fucile, Mr Bird and Mr Hoffman that they were breaking the law between October 1999 and March 2000 by selling their pitta as "organic" when they did not have a licence to do so. Mr Fucile said "shut your mouth" and the other managers did not respond. Mr Fucile ordered [Mr Amin] to backdate the organic food Quality Control Record from October [2000] to October [1999] to show that a licence had been issued. [Mr Amin] refused to do this."

16. Mr Taylor submits that there was conflicting evidence before the Tribunal about the outcome of a Soil Association audit in October 1999, and the existence or otherwise of a Soil Association licence to manufacture organic pitta bread between October 1999 and March 2000.

He identifies the following pieces of evidence touching on this:

(1) Mr Bird said in cross-examination that EPB failed the organic licensing system. He said that if certain things were dealt with, a certificate would be issued. He said that EPB passed the system at the end of February 1999.

(2) Mr Hoffman said that in October 1999, EPB passed the Soil Association test, but that EPB did not get a compliance form until three months later. He understood from Mr Said that he, Mr Said, had telephoned about it and was told that they would send a form. He said that, on the basis of that premise, EPB started the production organic pitta.

(3) Mr Said said that EPB had a licence to produce organic pitta in March 1999, and that it was producing organic bread before October 1999. He said that there was a stoppage of production, for market reasons, for four to five months and he could not recall if EPB was producing it in December 1999, when Mr Amin started with EPB. He said that the Soil Association did not write a letter after the October 1999 inspection, but the report said that EPB conclusively passed.

(4) Mr Fucile said in cross-examination that EPB did sell organic produce prior to December 1999. He said that he always thought that EPB had a licence from the Soil Association prior to March 2000, because EPB had a Soil Association audit in which he was involved in October 1999. He said he asked the inspector if EPB had passed, and he replied "yes, subject to certain non-conformities". He said that Mr Amin did not follow these matters up, and so he asked Mr Said to do so. He said that EPB had a licence prior to October 1999. In a further piece of cross-examination, Mr Fucile said that EPB had been issued with one licence on 31 March 1999 and that it passed an inspection in October.

17. Mr Taylor points to what he suggests are elements of internal inconsistency in these pieces of evidence with regard to whether EPB had a Soil Association licence for the period October 1999 to March 2000. No such licence was produced to the Tribunal, despite the fact that we are told that they requested the production of such licence, if any such existed. He submits that the existence or otherwise of such a licence was a significant issue of fact which the Tribunal needed to consider in assessing Mr Amin's case that he was dismissed for making a protected disclosure that EPB had no such licence. He points out that, whilst the Tribunal accepted the evidence of Mr Bird as truthful and accurate, Mr Bird's evidence on this particular topic was that EPB had no licence during the relevant period. Mr Taylor submits that when an Employment Tribunal is faced with a significant conflict of fact, it must make clear its findings on that issue. A finding that EPB had no licence during the relevant period would be a material finding in the context of the consideration of whether Mr Amin had, as he claimed, made the alleged protected disclosure. Mr Amin also alleged that he had been dismissed as the result of making health and safety disclosures as well as protected disclosures. Mr Taylor submits that the Tribunal was in error in not sufficiently separating these two complaints and says that they should have been.
18. In our view, there is nothing of substance in this particular way of complaining about the Tribunal's findings. We are disposed to recognise that the weight of the evidence was to the effect that EPB did not have a licence for the production of organic pitta between October 1999 and March 2000, a conclusion apparently supported by Mr Bird, whom the Tribunal regarded as a truthful and an accurate witness. But whether or not it did have such a licence was not the issue. The crucial issue was whether or not Mr Amin made, amongst other things, any protected disclosures to the management about the absence of such a licence, and if so, whether that was the reason for his dismissal. We consider that it is probably implicit in the Tribunal's decision that they found that EPB did not have the requisite licence during the relevant period, since they accepted Mr Bird's evidence.
19. However, it appears to us that the real question raised by this appeal, which was identified in the judgment of this Appeal Tribunal at the preliminary hearing, but which was not put at the forefront of Mr Taylor's argument, although he adopted it in the course of the oral argument before us, is this. In paragraphs 19 to 24 of his originating application, Mr Amin had made various allegations to the effect that he had made points to EPB and its management about matters of hygiene at the factory, and it will, perhaps, be of assistance if we read from those paragraphs. They read as follows:

"19 In March the Applicant spoke to both the Quality Control Manager, Mr Said, and Mr Fucile about improving plant hygiene. The Applicant identified the problems in his role as a food safety expert. Although Mr Said took his concerns seriously Mr Fucile did not.

20. Mr Fucile was directly responsible for the Naan Supervisor who was failing to complete due diligence paperwork. Although the Applicant brought this to Mr Fucile's attention he did nothing to remedy the problem.

21. In bringing various hygiene matters to the attention of Mr Fucile the Applicant was subjected to abusive treatment. However the Applicant had no choice but to continue to bring matters to Mr Fucile's attention as it was his job to ensure that legal requirements were complied with.

22. Although it is a legal requirement to carry out 'deep cleaning' of the bakery every month it was only done twice during the Applicant's time. During this process production is stopped and therefore the Applicant could not organise it without the approval of Mr Fucile, who controlled production. Despite regularly confronting Mr Fucile about the issue he refused to deal with it. Mr Fucile forced the Quality Control Manager to fabricate the entries relating to deep cleaning.

23. Mr Fucile also forced the Night Quality Controller to fabricate all quality control paperwork.

24. The Applicant informed both Mr Hoffman and Mr Bird about the fabrication of the due diligence records and all other breaches of health and food safety laws. No corrective action was taken."

20. We have, of course, earlier set out paragraph 25. The concern which we have is that those paragraphs raise allegations that Mr Amin raised certain complaints with the EPB management about matters of food hygiene, and also, in particular, in paragraph 25, an allegation to the effect that they had been selling their pitta during the period from October 1999 to March 2000 without a licence to do so. That particular allegation is, it appears to us, not an allegation of an infringement of any food hygiene regulations, whereas the earlier allegations in paragraphs 19 to 24 do appear to amount to such allegations.
21. It is apparent to us from the references we have been given to the witness statements and to the cross-examination, that central to the enquiry which the Tribunal were carrying out, were whether in fact EPB had a licence to sell organic pitta between October 1999 and March 2000; and the relevance of that enquiry could only have been in relation to the allegation by Mr Amin that he had told EPB, shortly before his dismissal, that they did not have such a licence and had been selling bread as organic bread illegally. The question, as we understand it, and we do not understand the point to be in dispute, was that it was therefore part of Mr Amin's case before the Tribunal that one of the protected disclosures he was relying upon was this particular matter, namely that referred to in the first two sentences at paragraph 25 of his originating application.
22. The concern, however, which we have, and which is raised by this appeal, is whether the Tribunal ever in terms focused on that particular allegation in paragraph 25. First of all, in identifying Mr Amin's unfair dismissal case, in paragraph 2(1) of their reasons, the Tribunal said this:

"(1) Pursuant to section 103 Employment Rights Act 1996 that he was dismissed for making protected disclosures that the Respondents had been infringing food hygiene regulations, and secondly a qualifying disclosure that he was ordered to backdate quality control records. The Applicant's case is that he was dismissed on the grounds that he had made those protected disclosures. The Respondent's case is firstly that the Applicant never made such protected disclosures at all. Secondly they contend that whatever he said, if anything, could not have amounted to a protected disclosure under the Act. Finally they say, and this is the essence of their case, he was not dismissed and/or disciplined on those grounds but on the ground that he was not carrying out his job properly."

In identifying Mr Amin's protected disclosure case in the way the Tribunal there did, Mr Taylor submits, and we are disposed to agree, that nowhere in that paragraph does the Tribunal identify the allegation in paragraph 25 of the originating application on which, amongst other things, Mr Amin was relying, namely the allegation that he informed EPB that it had been selling organic pitta bread without a licence.

23. Thus, if the Tribunal were confining the only protected disclosures which were in play to those referred to in paragraph 2(1), it follows, submits Mr Taylor, that their generalised statements in paragraph 48, which we have earlier quoted, to the effect that no protected disclosures had been made to EPB, cannot fairly be interpreted as including a finding that Mr Amin had made no protected disclosure to EPB of the specific nature he had alleged in paragraph 25 of his originating application. The natural construction of paragraph 48, so Mr Taylor submits, is that the only protected disclosures which the Tribunal can fairly be regarded as having in mind are the types of projected disclosure they had earlier identified in paragraph 2(1).
24. Mr West, by contrast, submits that that is not a fair reading of paragraph 48. He says that that paragraph is expressed in general terms. It refers, for example, to a particular type of disclosure, one introduced with the words "for instance", and he submits that those words mean that the Tribunal were talking there in general terms, and that their language should fairly be interpreted as including a finding in relation to the disclosure alleged in paragraph 25 of the originating application.
25. We have not found this a particularly straightforward point. We see, if we may respectfully say so, force in the arguments on both sides. Nevertheless, we have come to the conclusion that there is no doubt that the paragraph 25 protected disclosure issue was squarely in the frame during the argument before the Tribunal, and that evidence was squarely directed at it; and we are not satisfied that when, sometime after the hearing of the evidence, the Tribunal came to compose their extended reasons, they identified with sufficient precision in paragraph 2(1) the full range of protected disclosures which Mr Amin was relying upon. We are not satisfied that, as a natural construction of the language used in paragraph 2(1), the Tribunal did in fact there identify the allegation raised by Mr Amin in paragraph 25 of his originating application.
26. Since we are not so satisfied, it follows, in our view, that nor can we be satisfied that when the Tribunal made the findings they did in paragraph 48 of their decision, they were there in terms making a finding that Mr Amin made no such disclosure as he alleges in paragraph 25. It is right to say, as Mr West does say, that the Tribunal went on emphatically to dismiss Mr Amin's allegations that he had ever made any protected disclosures, and it is right to say that the Tribunal were positive in their reasons that EPB's evidence was to be preferred and to be accepted, and that evidence was to the effect that the dismissal was for grounds or reasons relating to Mr Amin's capability. It can, therefore, be said that that very emphatic finding by the Tribunal really trumps any suggestion that Mr Amin's case that he was dismissed for reason of the protected disclosure he said he made, as alleged in paragraph 25 of his originating application, was either the reason for his dismissal or the principal reason for it.
27. There is, obviously, very considerable force in the way Mr West puts it. But the anxiety which we have is that we are left with a decision which, carefully and comprehensively reasoned though it is, does leave us with a real concern that it has not focused on a specific allegation, namely the paragraph 25 allegation which was raised by Mr Amin and was in play during the hearing. We have, therefore, a situation in which the Tribunal has simply not made a finding on that at all, which leaves us with a degree of concern as to the safety of its finding as to the true reason for the dismissal. It is not enough, in our judgment, for the Tribunal to say "we accept the Respondent's evidence (that is to say EPB's) evidence as to the reason for the dismissal", if they have not in terms addressed themselves to a specific issue which might, if duly considered, indicate the possibility that there was some other reason for it.
28. In those circumstances, we have come to the conclusion that we have no alternative but to allow this appeal and to remit to an Employment Tribunal the single question of whether or not Mr Amin was dismissed for the reason advanced by him in paragraph 25 of the originating application, or whether that reason was the principal reason for his dismissal. As it seems to us, the re-hearing should not extend wider than that, although we will, of course, hear from the parties' representatives as to the precise form that any reference back should take.
29. We think, for reasons which have been canvassed, that this ought sensibly to go back to the same Tribunal, which we think will be cheaper and more efficient. But if there is any practical difficulty in that, then we gratefully adopt Mr West's proposal that the matter should then be referred to the Regional Chairman to determine which Tribunal should deal with it. May we thank you both, in particular Mr Taylor, who has been instructed, if that is the right word, by the Free Representation Unit, and we are very grateful for his help, and also for that from Mr West.