United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J KENDALL (of Counsel) Instructed by: Securicor Management Services Ltd Legal Services Sutton Park House 15 Carshalton Road Sutton Surrey SM1 4LD
For the Respondent	MRS J RUSSELL (of Counsel) Instructed by: Avon & Bristol Law Centre 2 Moon Street Stokes Croft Bristol BS2 8QE

SUMMARY

Race Discrimination

The majority of the Employment Tribunal failed to apply Section 54(A)(2) RRA 1976. It relied upon exactly the same evidence to find (a) the Claimant had proved sufficient evidence of discrimination so that the burden of proof shifted to the Respondent and (b) that the Respondent had discriminated against the Claimant.

Application of Igen Ltd & others v Wong [2005] [ICR 931]


 


HIS HONOUR JUDGE BIRTLES

1. This is an appeal from the decision of an Employment Tribunal sitting at Bristol on 15 and 16 November 2004. The Chairman was Mr C G Toomer and the members were Mr A Edwards and Mrs H Stevens. The reserved decision of the Tribunal was sent to the parties and entered in the register on 23 November 2004.
2. The majority of the Employment Tribunal found that the Claimants claim for victimisation was well founded and the issues of remedy were adjourned to a date to be fixed. The material facts are set out at paragraphs 2 - 15 of the Employment Tribunal judgment, although we begin this judgment by saying that it would have assisted us and no doubt the parties if the Chairman had had regard to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 which came into force on 1 October 2004, in other words some 6 weeks before this case was heard. Those Regulations set out what the Tribunal should put into a written decision and sets out an appropriate structure.
3. Although I have indicated that it would appear to us that the facts found are set out in paragraphs 2 - 15, there are passages in other paragraphs which might be taken to be findings of fact, but it is by no means clear. The short facts are that Mr Toujani is from Tunisia and of Arab ethnic origin. He commenced employment with the respondent, Securicor Security Ltd, in June 2002. In June 2003 he commenced Tribunal proceedings against the Respondent and fellow employees alleging race discrimination. It is not necessary to go into the facts of that.
4. By virtue of what happened to him subsequently, Mr Toujani alleged that he had been victimised and the bringing of the original claim fell within Section 2(1)(a) of the Race Relations Act 1976 and both parties accepted that that was a protected Act upon which he was entitled to rely. The present proceedings arise out of what happened after he brought that claim.
5. Complaints were made about the Claimant's conduct at work in the middle to late September 2003; the Claimant was taken to task for not searching a vehicle which was leaving the premises where he then worked. This was a Safeway site at Cribbs Causeway in Northern Bristol. Safeway required that all vehicles leaving the site were to be searched.
6. Mr Buchanan instructed a Mr Osmant to ask the Claimant about the search incident. Mr Osmant did that and reported back to Mr Buchanan who was apparently satisfied with Mr Toujani's response. On 28 September 2003, there was an incident on site in the course of which a panic alarm was set off accidentally, and which had the effect of calling out the police. Mr Toujani was not on site at the time and when he came in to start his shift the following morning, he learnt what had happened and observed that the alarm had not been reset. He therefore reset the alarm, logged the incident and notified a Mr Thomas who was his immediate line manager what he had done. Mr Thomas reported the matter to Mr Buchanan.
7. On 30 September 2003 a decision was taken by the Respondent's management to hold a formal investigation into Mr Toujani's conduct. That included the evidence of the incident relating to the failure by Mr Toujani to conduct the search of the Safeway vehicle. Other issues to be canvassed in the inquiry were his alleged lateness and poor attitude towards colleagues.
8. There was an investigation, although there appears to have been a dispute about what was said during that investigation. As a result of that investigation, the current proceedings were instituted at the end of December 2003. Before the Tribunal Mr Toujani relied on two specific matters as acts of victimisation. First, he claimed that the Respondent treated the initial matter relating to the failure to search a vehicle more seriously than it would normally do, in that it involved three managers in the matter, that is Mr Osmant, Mr Buchanan and Mr Thomas. He said that that incident involved him getting two separate informal warnings about the incident. The second complaint before the Employment Tribunal was in relation to the Respondent's decision on 30 September 2003 to conduct an investigation.
9. The Tribunal reminded itself of the relevant provisions of the Race Relations Act 1976, and in particular Section 54 (a) to which I will turn in a moment. The Tribunal unanimously rejected Mr Toujani's first alleged allegation of victimisation and that does not concern us on this appeal. There is no cross-appeal in respect of that matter.
10. On the second matter, the Employment Tribunal split. Paragraphs 21 through to 26 of the judgment involved a discussion of the issues involved in the claim and made some reference to the evidence, although as I say, it is not clear that the Tribunal is actually making findings of fact in those paragraphs. The minority member, Mr Edwards, took the view that Mr Toujani had not established the primary facts of discrimination or sufficient primary facts from which inferences could be drawn. The discrimination had not therefore taken place and therefore the burden of proof did not shift to the respondent under Section 54(A)(2) of the Race Relations Act 1976. He therefore rejected the second ground of appeal as well.
11. The majority disagreed and their decision is contained exclusively in paragraph 28 of the decision:

"28. The majority of us however, while accepting that there were genuine complaints over the claimant's lateness and his failure to keep his colleagues informed of the situation, remained concerned by the fact that there was no real evidence to show that serious efforts had been made to resolve those issues on an informal basis, as Mr Thomas said he so often did. We were also concerned at the lack of any evidence as to why it was that Mr Buchanan instituted the investigatory procedure when he did, and why he thought it necessary to include in Mr Osmant's brief the issue over the failure to search a vehicle and which seems to have been investigated fairly exhaustively already. It seemed to us that in the absence of such an explanation, it would have been open to us to draw the inference that another employee in a similar position who had not brought proceedings alleging race discrimination, would not have been treated in the same way and in that formal investigation would not have been instituted - at least at that point. In those circumstances the majority of us concluded that the claimant had gone far enough to effect the shift in the burden of proof and that it therefore fell to the respondent to prove on a balance of probabilities, that it did not commit the act of victimisation complained of. That being so the majority of us concluded that the respondent had not discharged the burden placed upon it. We concluded that there was no adequate explanation of why greater efforts had not been made to resolve issues informally; neither was there any explanation as to why it was decided to commence a formal investigation on 30 September, when Mr Osmant had not been instructed to investigate the issues of lateness when he was told to enquire about the search issue, and it was not clear why the search issue was included again in the investigation, when Mr Osmant had already reported on it."

12. Against that decision of the majority Securicor Security Limited have appealed and the appeal is based upon the correct meaning of Section 54(A) of the Race Relations Act 1976. It is not necessary to read Section 54(A)(1), but Section 54(A)(2) reads as follows:

54 "Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-

(a) has committed such an act of discrimination or harassment against the complainant, or

(b) is by virtue of Section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act"

13. Section 54(A)(2) has been authoritatively to be interpreted in a recent decision of the Court of Appeal in three conjoined cases which we will refer to as Igen Ltd & others v Wong [2005] [1985] ICR 931 (judgment delivered on 18 February 2005). In those cases, the Court of Appeal held that in deciding a case under Section 54(A)(2) there were two stages in the Employment Tribunal's decision-making process. Although that did not mean that the Tribunal had to decide hearings into two parts to correspond to those stages: See paragraph 19.
14. Furthermore the Court of Appeal made clear that an Employment Tribunal was entitled to have regard to a respondent's evidence in deciding whether the Claimant had established a prima facie case of discrimination. The Court of Appeal also looked closely at what is known as the Barton guidance and revised it to the extent of adding a new paragraph. It is not necessary for the purposes of this judgment to set that guidance out: it is contained in full in paragraph 76 of the Court of Appeal decision in Igen and we adopt and follow it in this case.
15. Before us today Mr Joel Kendall for the appellant has argued that the Employment Tribunal erred its application of the burden of proof as set out in Section 54(A)(2) of the 1976 Act in that it required an explanation from the Respondent employer prior to the Claimant proving facts from which the Tribunal could have concluded that the Respondent had committed an act of discrimination and accordingly concluded incorrectly that the burden of proof had shifted. In doing so it disregarded the words "apart from this section" in Section 54(A)(2).
16. In support of his argument, Mr Kendall has analysed paragraph 28 of the Employment Tribunal decision and submitted that the three factors relied on by the Employment Tribunal in showing that the Claimant had satisfied the Employment Tribunal that there was a prima facie case of race discrimination so that the burden of proof shifted to the Respondent are the same three matters showing that the Respondent had not discharged the burden of proof which had shifted to it.
17. We note that this decision of the Employment Tribunal was decided before the decision of the Court of Appeal in Igen, but it was decided after the decision of this Tribunal in Barton v Investic Securities Ltd [2003] ICR 1205 when the original Barton guidance was given by His Honour Judge Ansell. Apparently no authorities were cited to the Employment Tribunal in this case and certainly none are referred to in the Employment Tribunal's decision.
18. Ms Jane Russell who appears for the Respondent Mr Toujani, has submitted primarily that there is sufficient material in the totality of the Employment Tribunal decision which enables us to say that the Employment Tribunal did have other factors in mind in reaching its decision that the Claimant had proved sufficient primary facts from which an inference of discrimination could be drawn so that the burden of proof shifted to the Respondent to disprove discrimination.
19. While we have listened carefully to what Miss Russell has to say and indeed have some sympathy with her position, at the end of the day we have to look at the way in which the Employment Tribunal has expressed itself. It seems to us to be crystal clear that the only reasons why the Employment Tribunal reached the decision it did are contained in paragraph 28 of its decision and, as Mr Kendall has pointed out, the Employment Tribunal relied on three factors and three factors alone in deciding that the burden of proof shifted to the Respondent and the same three factors in deciding that the Respondent had not discharged the burden of proof. This seems to us to be logically impossible and it amounts in our judgment to an error of law and on that basis and that basis alone, this appeal will have to be allowed. There has been a failure to make adequate findings of fact and draw the necessary inferences from the totality of the evidence presented to the Employment Tribunal before it could decide that the Respondent had failed to disprove discrimination.
20. We carefully considered what counsel have submitted to us about disposal. However, we did not hear the evidence and we are quite unable to make a decision in the Tribunal's place. Second, we do not think it right to remit this case to the same Tribunal and because this was a split decision and we also find it difficult to see how the Employment Tribunal is going to deal with the matter on remission. Regretfully this matter will have to be remitted to be reheard by a fresh Employment Tribunal.
21. We end by saying this Mr Toujani is still employed by the Appellant. Looking at the act of victimisation which the majority of the Tribunal found to be proved, we would certainly think that apart from a small loss of overtime the only other obvious head of compensation would be for injury to feelings. On the face of the papers that we have seen, this would fall into the bottom bracket of Vento and in view of the costs of a fresh Tribunal hearing to both parties and the stress that it would certainly place Mr Toujani under we would urge the parties if at all possible to come to some suitable settlement.