United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW SHORT (Of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors 247 The Broadway Wimbledon London SW19 1SE
For the First Respondent	MR R E GREGORY (Of Counsel) Instructed by: Rentokil Initial Ltd 2 City Place Beehive Ring Road Gatwick Airoprt West Susses RH6 0HA
For the Second Respondent	MR JAMES STUART (Of Counsel) Instructed by: Messrs Shoosmiths Solicitors Regent's Gate Crown Street Reading Berkshire RG1 2PQ


 


SUMMARY

In a claim for unlawful discrimination on the ground of race, where the Employment Tribunal has set out the appropriate statutory requirement of Section 54A of the Race Relations Act 1976 and the Barton Guidelines, and has adhered to the approach there indicated, it is not an error of law if the Employment Tribunal does not spell out, when dealing with each fact requiring an explanation in stage 2 of Section 54A(2), the burden of proof and the relevant provision of the Barton guidelines, so long as it is clear that in that part of the judgment the Employment Tribunal have correctly applied the relevant law.

As a matter of general practice The EAT suggest that, in such cases, the Employment Tribunal may find it helpful to clarify and identify at an appropriate stage the specific facts from which an inference of discrimination could be drawn in stage 1 of that sub-section.

In a claim for unlawful deduction from wages, where there is a contractual undertaking by the employer to give reasonable notice of any change to the length of a shift, that requirement for notice cannot be avoided in a separate contractual provision involving the variation of hours of work, where such reduction also involves a change to the length of a shift.


 


HIS HONOUR JUDGE ALTMAN

1. This appeal is from the Reserved Judgment of the Reading Employment Tribunal promulgated to the parties on 22 June 2005, following a hearing in May 2005 when the Appellant's claim that he had been unlawfully discriminated against on the ground of race was dismissed. The grounds of appeal are that the Tribunal failed properly to apply the burden of proof in accordance with the provisions of Section 54A of the Race Relations Act 1976.
2. Additionally there is an appeal from the dismissal of the Appellant's claim against the First Respondent in respect of unlawful deductions of wages under the Employment Rights Act 1996. We deal first with the appeal under the Race Relations Act 1976.
3. At all material times, the Appellant Mr Hundal, has been an employee of the First Respondent (ISL), working at the site of the Second Respondent (Logicalis). The essential complaint of Mr Hundal was described in paragraph 24 of the Employment Tribunal's judgment. Broadly that paragraph states that Mr Hundal said that on the 12^th May 2004 he was told by his shift manager that he had been taken off the evening shift because of difficulty with his communication skills. He was devastated when told his English was not good enough. The change took effect 5 days later. Mr Hundal was transferred to the day shift, and there was some reduction in the 'working week schedule'. Further he lost the advantage of the enhanced evening shift payment.
4. That was the primary complaint before the Employment Tribunal. However, the issues in this appeal focus on the way in which the Employment Tribunal dealt in their judgment with the alleged failure of the respondents to warn Mr Hundal about such communication difficulty and to require him to improve. The Appellant contends that the Employment Tribunal failed to ask themselves whether the respondents had discharged the burden of proof and shown an adequate explanation for this failure.
5. There was also an allegation in relation to a comparator which has not formed part of this appeal.

The facts found by the Employment Tribunal

6. The Employment Tribunal found that Mr Hundal's duties on the evening shift included answering telephone calls from colleagues of staff or customers and connecting callers to an appropriate extension. This was unlike the duties on the day shift which did not involve answering telephone calls to such a great extent.
7. The Employment Tribunal found that on at least 3 occasions Ms Richens for Logicalis had raised the issue of Mr Hundal's 'verbal communication skills' with his manager at ISL Mr Kimbell. Ms Richens recognized that Mr Hundal was a reliable worker but she complained that a number of comments had been made by clients, employees and contacts as to Mr Hundal's communications skills. The Tribunal found:

"Concerns were expressed that he had a tendency to mumble and was often difficult to understand especially during conversations with him on the telephone."

The Employment Tribunal found there were no written records of specific complaints. The Employment Tribunal found that Mr Kimbell had spoken to Mr Hundal on one occasion to the effect that he needed to speak a little more clearly when he answered the telephone. Mr Kimbell did not see Mr Hundal's communication skills as a major problem, but he had never seen the situation to judge for himself.

8. The Employment Tribunal also dealt with the way in which Mr Hundal gave evidence. They found he was not easy to understand. His English vocabulary appeared to be good, but he had a strong Indian accent which no doubt affected his pronunciation. The Employment Tribunal went on to find that what was noticeable was the

"lack of clear enunciation and a quietness (that is a lack of volume) in his voice".

The Employment Tribunal referred to having to concentrate extremely hard and to ask Mr Hundal to repeat things so as to ensure that they could hear and understand what Mr Hundal was saying. The Employment Tribunal then found:

"The Tribunal have no doubt that had any of them spoken to the Claimant over the telephone then the problems they had observed in understanding him in evidence would have been exacerbated in telephone conversation with him.

They continued:

It is a matter of regret, and no doubt to no-one more than the Claimant, that no one addressed the issue with him bluntly but allowed the status quo to continue."

9. It is clear to us that from the outset the Employment Tribunal were clearly alive in a critical way to the fact that the Respondents had not warned Mr Hundal in the way they described, and had allowed the situation to continue.
10. Mr Rogers became finance director of Logicalis and on arrival faced a substantial operating loss and difficult financial circumstances. He conducted a review which involved, amongst other things, the "public face" of Logicalis and the way in which they dealt with third parties. Mr Rogers was concerned that Logicalis should present a professional image in any communications. Thereafter Mr Rogers became aware of complaints about Mr. Hundal's telephone manner and he was concerned that potential customers might be put off. He accepted that vocabulary and grammar were acceptable but defined the problem as "the ability of external parties to understand Mr. Hundal". The Employment Tribunal found that this was his honest belief.
11. Mr Starkey, a colleague of Mr. Rogers in Logicalis' sister company, complained to Mr Rogers that he found it very difficult to understand what Mr. Hundal was saying on the telephone. ISL and Logicalis met in April 2004 and decided that Mr Hundal's shifts should be rearranged so that he did not take the early evening shift, which was the time when most telephone calls were received:

"Chandit Hundal when on reception duties during 17.30 to 21.00 does not have adequate skills to perform his task with English not being his mother tongue. S, V and JR said that a change in the roster could resolve this issue. There was also a brief discussion about the pay review as the contract was coming up for a review."

The Employment Tribunal noted also that this was the first written record of the Claimant's difficulties with verbal communication. Mr Hundal was then told on the 12^th May of the change to be implemented on the 17^th May.

The issues

12. This appeal concerns that part of the judgment of the Employment Tribunal that dealt with the failure of the respondents to speak to Mr Hundal, in effect to give him an opportunity to improve, to give him a warning. It is said that the Employment Tribunal failed to apply Section 54A of the Race Relations Act 1976 and "the Barton guidelines", as amended and approved by the Court of Appeal in Igen v Wong & Others [2005] IRLR 258 and annexed to the judgment of the Court.
13. Section 54A provides:

"(1) This section applies where a complaint is presented…that the respondent—

"(a) has committed an act of discrimination, on grounds of race or Ethnic or national origins, which is unlawful…

(2) 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…against the complainant…

the tribunal shall uphold the complaint unless the respondent proves that he did not commit …that act."

14. This new section provides in subsection (2) for a shifting burden of proof in what has been called two stages. In the first stage the applicant, who has complained of discrimination on the ground of race, must prove those facts, which are defined in the first part of subsection (2). The burden then shifts to the respondent to prove they did not commit the act of discrimination referred to in Section 54A(1).
15. In dealing with the approach to the second stage in section 54A, the Barton guidelines provide:

"…(10) It is then for the Respondent to prove that he did not commit…that act.

(11) To discharge that burden it is necessary for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex (race), since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.

(12) That requires a Tribunal to assess not merely whether the Respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question."

16. Section 54A itself does not require express consideration in stage 2 of a fact which qualifies to cross the threshold in stage 1. Indeed, Section 54A, in subsection (2) and in setting out the way in which the burden of proof is to be discharged at stage 2, makes no reference to 'explanations' for the 'facts' from which an inference can be drawn in stage one. Rather the section places the burden on the respondent to prove, not that he had an adequate explanation of such 'facts', but rather that he did not commit the 'act' of discrimination complained of under subsection (1). The shift of focus in subsection (2) from the complainant's having to prove the qualifying 'facts' in stage one to the respondent's having to prove non-committal of the 'act of discrimination' in stage 2 is clear on the face of the statute. The Barton guidelines are more specific in paragraph 12 where they provide that a tribunal is 'required'

"(12) …to assess not merely whether the Respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question."

That reflects paragraph 18 of the Igen judgment of Peter Gibson LJ where he states:

"If the second stage is reached, and the Respondent's explanation is inadequate, it will be not merely legitimate but also necessary for the ET to conclude that the complaint should be upheld. The statutory amendments shift the evidential burden of proof to the Respondent if the Complainant proves what he or she is required to prove in the first stage."

However, in approaching the relation of that paragraph to the wider words of Section 54A itself, we note that in Igen Peter Gibson LJ makes clear in paragraph 16 that

"It is important to stress at the outset that ETs must obtain their main guidance from the statutory language itself. No error of law is committed by an ET failing to set out the Barton guidance or by failing to go through it paragraph by paragraph in its decision",

And again, in paragraph 76 he states:

"We repeat the warning that the guidance is only that and is not a substitute for the statutory language."

It seems to us that the word 'requires' in paragraph 12 of the Barton guidelines must be understood in the light of those caveats. Further, it may be said that the use of the singular for "explanation" in the Barton Guidelines, and indeed in the passage quoted from paragraph 18 of Igen, may well signal a need for the Employment Tribunal to look overall at the Respondent's explanation for the facts, rather than at all the explanations for all the facts, although we do not rely on that observation for our conclusions.

17. Accordingly, we recognise that part of the exercise in the second stage will generally will be to examine the explanation as part and parcel of the fact-finding process in accordance with Section 54A; even though that is not an express legal requirement of Section 54A, it is a 'requirement' of the Barton guidelines. It must be a matter of construction in each case, and of course there may be cases in which the form of words belies an error of approach in a tribunal or court. Is that the reality behind the form of words in this case?
18. There is no appeal from the way in which the Employment Tribunal dealt with their findings in relation to the first stage of Section 54A. The appeal relates to the Employment Tribunal's treatment of the respondents' failure to warn Mr Hundal when dealing with the second stage.
19. Mr Short complains of the 2 sentences at the end of paragraph 33 and the beginning of paragraph 34:

"33…It is a matter of regret that nobody chose to speak to him direct about the problem and the Tribunal accept his clear upset at being told what the problem was.

34. Whilst that may be unreasonable behaviour, it is not in this Tribunal's view evidence of discriminatory behaviour and they do not draw that inference from the facts heard…"

20. The appellant contends that in considering for stage two the explanation for the particular fact of failing to give a warning, the tribunal failed to ask themselves if the respondent had discharged the burden of proof under Section 54A by proving an adequate explanation for not giving Mr Hundal a warning, as signalled by the Barton guidelines. It is argued that the Employment Tribunal should have asked themselves if the respondents had an adequate explanation and in the absence of such explanation to uphold the complaint. Rather, it is said, the Employment Tribunal considered whether themselves to draw an adverse inference from the primary facts of failing to give a warning. Mr Short submits that rather than adopt the approach required by the second stage in Section 54A(2), the Employment Tribunal slipped back to the approach taken by tribunals before the enactment of that Section and encapsulated in the judgment of Neill LJ in King v The Great Britain-China Centre [1991] IRLR 513. At paragraph 38 Neill LJ stated:

"…a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the Tribunal will look to the employer for an explanation. If no explanation is then put forward or if the Tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the Tribunal to infer that the discrimination was on racial grounds. This is not a matter of law…It is unnecessary and unhelpful to introduce the concept of the shifting evidential burden of proof. At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts."

21. King was there concerned with the proper approach of a tribunal to a respondent's 'explanation' for an 'act' complained of, as this passage makes clear. Mr Short argues that having established one of the facts in stage one of Section 54A as being the failure to warn, the Employment Tribunal slipped back into applying the earlier law in King, rather than asking themselves in the second stage if the respondents had discharged the burden of showing that there was an adequate explanation for such failure. In the light of these submissions we turn to consider the nature of the case before the Employment Tribunal and their decision.
22. The passage in the judgment of the Employment Tribunal that is the focus of this appeal dealt with what we have termed the alleged 'failure to warn'. First, we have examined the issue of the failure to warn in the context of all the issues before the Employment Tribunal, secondly we have examined the passage complained of itself in the context of the Employment Tribunal's approach to the 'explanation' for failing to warn and thirdly we have considered the approach of the tribunal to the appropriate legal tests as they apply to this passage.

The issues before the Employment Tribunal

23. We note that the central complaint of unfavourable treatment under Section 54A(1) was the removal of Mr Hundal from the night shift and the consequent change of hours, and not the failure to warn him in advance. Mr Stuart, for ISC, referred to the judgment of Mummery J, as he then was, in Quereshi v Victoria University of Manchester [2001] ICR 863:

"The industrial tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. If the applicant fails to prove that the act of which complaint is made occurred, that is the end of the case. The industrial tribunal has not jurisdiction to consider and rule upon other acts of racial discrimination not included in the originating application: see Chapman v Simon at p128 para 33(2) (per Balcombe LJ) and p129, para 42 (per Peter Gibson LJ)…The considerations of the tribunal and their decision should, therefore, focus on those complaints and on the issues of fact and law which have to be resolved in order to decide whether the complaints are well founded or not".

In this case, in his originating application to the Employment Tribunal Mr Hundal said that:

"The applicant was told that his hours of work would have to change because he was not good enough to answer telephone calls. The Applicant found this extremely offensive and consequently he has a reduced income and is being required to work on a Saturday and Sunday to try and increase his income."

And the less favourable treatment was defined as:

"(Mr Hundal) claims that he has been treated less favourably by the Respondents by giving him 15 ½ hours less that Mr Jeffries and (Mr Hundal) is required to work 7 days a week and Mr Jeffries is working 5 days with more pay".

In reply to a request for further particulars of the claim of race discrimination,

Mr Hundal replied:

"Since the Respondent has not been able to give a reasonable explanation why his hours of work have changed (he) believes that the real reason or one of the influencing factors for his less favourable treatment is because of his race."

And this was repeated in Mr Short's closing submissions to the Employment Tribunal. The removal from the night shift with the consequent change of hours appears to have been the essential matter of complaint before the Employment Tribunal under Section 54A(1) Their approach to this issue is not subject to appeal.

24. There was some debate before us as to whether the failure to warn staff was one of the facts in stage one of Section 54A(2) from which an inference could be drawn to shift the burden to stage 2. Mr Short in his written submissions before the Employment Tribunal and in dealing with the issue as to whether Mr Hundal had established the facts from which an inference could be drawn, referred to the removal of Mr Hundal from the night shift for reasons relating to his accent, adding

"after several years carrying out the work without a complaint"

In the end it was common ground that the failure to warn was indeed one of those facts.

25. Mr Short conceded that it is not necessary for an Employment Tribunal to consider if there was an adequate explanation for every 'peripheral' fact in a case. It is true that the failure to warn is not a wholly 'peripheral' fact, but it does appear to have been a subsidiary issue. We do not conclude that there was no need for the Employment Tribunal to deal with the failure to warn in relation to Section 54A at all, but the subsidiary nature of this issue does assist when we come to consider the actual words used by the Employment Tribunal in the particular passage complained of.

The 'determination' of the Employment Tribunal

26. The Employment Tribunal set out its 'Determination' in paragraphs 29 to 35. Before that, in paragraphs 27 and 28, they referred to the 'Submissions'. In paragraph 27 the Employment Tribunal first set out the names of the eight legal authorities that were referred to them and then referred the Commission for Racial Equality Code of Practice. Mr Short suggests that because this list includes reference to King v The Great Britain-China Centre and to Zafar v Glasgow City Council without comment, the Employment Tribunal may have been relying on them in the way that is no longer appropriate. We reject that submission; the Employment Tribunal were clearly simply listing those authorities to which reference had been made by one or both of the parties.
27. Then the Employment Tribunal go on to say in paragraph 28:

"The Tribunal do not propose to repeat in these reasons what is fully set out in the written submissions. However, the general comment they make is that they have considered very carefully the guidance contained in Igen and the application of section 54A RRA in considering their findings of fact in this case."

That passage immediately precedes the Tribunal's "determination". It is clear that the Employment Tribunal had very much in mind the correct and new approach in Section 54A and the Barton guidelines. As this passage followed on from the list of authorities it would appear that the Employment Tribunal were fully aware both of the distinction to be drawn between such authorities and the need to extract the relevant principles. We find that the Employment Tribunal were certainly intending to consider their decision in the light of the appropriate principles.

28. The Employment Tribunal then set out its determination of the issue of discrimination in paragraphs 29 to 35. (They refer to Mr Jefferies who was the comparator to which earlier reference is made in this judgment). This appeal has centred upon an analysis of the Employment Tribunal's reasoning and we set out the major part of their 'determination':

"29. The less favourable treatment complained of by the Claimant was his removal from the evening shifts. The racial grounds on which it is claimed that alleged less favourable treatment took place are that because of his Asian Indian Ethnic origin his ability to speak clearly in English was hampered because of his heavy accent…

31. The Tribunal accept on the evidence heard that security guards were required to undertake reception-based duties on both the evening shift and the morning shift. They accept on the evidence heard that the requirement to answer the telephone was greater on the evening shift than the morning shift. They accept on the evidence heard that it was the evening shift which was the more important of the two and that the requirement of the Second Respondent was to move the Claimant from that early evening shift so that he was only on the morning shift.

32. …has the Claimant proved on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Second Respondent had committed an act of discrimination? On the face of it, yes, because his ability to communicate did relate to his accent.

33. Accordingly the burden of prove passes to the second respondent. Has the second respondent proved that its behaviour was in no sense whatsoever on the grounds of race? Having heard all the evidence, the Tribunal accept that it was in no sense whatsoever on the grounds of race but was motivated by the grounds that whoever was manning the switchboard on the busy evening shift needed to be able to communicate clearly and effectively to anyone making calls. It was argued on behalf of the claimant that the failure to record anywhere in writing problems with communication skills as opposed to problems with the Claimant's English was indicative that the second respondent was now seeking to put a "spin" and to move away from a direct criticism that could be seen to relate to race. It was also argued on behalf of the claimant that the absence of any records of any earlier complaints indicated that in reality this was not the reason for moving him. It was also argued that the failure to speak directly to him again was indicative of this not really being the reason. Further, the fact that he was allowed to remain on the morning shift it was argued must be indicative of the reason not really being communication skills because he would on occasions still need to use the telephone in the morning. However, the Tribunal find that the reality of the situation was that there were always concerns on the part of the second respondent about the claimant's ability to communicate clearly but that those had never really been tackled and because, as was quite clearly accepted by the second respondent, he was a good worker, the status quo had been preserved. What caused the change was the arrival on the scene of a new director in the shape of Mr Rogers, which combined with his communications with Mr Starkey and Mr Starkey's clear difficulties in communicating with the claimant resulted in the claimant's shift. The Tribunal find that the respondents were sensitive to the claimant and that is borne (sic) his retention of him on the morning shift which required less switchboard work. It is a matter of regret that nobody chose to speak to him direct about the problem and the Tribunal accept his clear upset at being told what the problem was.

34. Whilst that may be unreasonable behaviour, it is not in this Tribunal's view evidence of discriminatory behaviour and they do not draw that inference from the facts heard. The Tribunal have considered the Commission for Racial Equality Code of Practice also. That emphasizes that discrimination can arise from requiring "a standard of English higher than needed for the safe and effective performance of the job". However, this was not a problem over a standard of English, but it was a problem over an ability to communicate and enunciate clearly, which is more than simply a standard of English. Lack of clarity in verbal communication can result from a heavy accent regardless of the individual's Ethnic background. A Glaswegian or Newcastle accent can be as impenetrable as a French or Norwegian accent but it is possible for an individual to alter their enunciation regardless of their Ethnic background to ensure they can be understood when speaking English. Had the claimant been from Newcastle or Norway and exhibited the same difficulties in verbal communication as the claimant the Tribunal are satisfied the outcome would have been the same. Accordingly for all those reasons the Tribunal accept the evidence of the second respondent that its behaviour was in no sense whatsoever on the ground of race.

35. Accordingly the claims of race discrimination against the second respondent fail and must be dismissed and inevitably must fail and be dismissed against the first respondent also as the provisions of section 33 of the Race Relations Act clearly cannot apply."

29. In paragraph 29 the Employment Tribunal carefully identified the "less favourable treatment" complained of, the "racial grounds" and the comparator. They then go on to find that the applicant has satisfied the test for stage 1 of Section 54A.
30. Paragraphs 30, 31 and 32 deal with the alleged comparator, Mr Jefferies, with whom this appeal is not concerned, together with an analysis of some of the facts which are not contentious. There is no complaint of the analysis by the Employment Tribunal for the purposes of the first stage of Section 54A.
31. At the outset of paragraph 33 the Employment Tribunal records that the burden of proof passes to the Respondent. The burden here passes from stage one, of which no complaint is made, to stage 2. An examination of the structure of this section of the judgment shows that the Employment Tribunal in fact start their consideration of the second stage with their overall conclusions:

"Has the Second Respondent proved that its behaviour was in no sense whatsoever on the grounds of race? Having heard all the evidence, the Tribunal accept that it was in no sense whatsoever on the grounds of race but was motivated by the grounds that whoever was manning the switchboard on the busy evening shift needed to be able to communicate clearly and effectively to anyone making calls."

32. The Employment Tribunal then go on to give their reasons for that conclusion in paragraphs 33 and 34, reverting to it at the end of paragraph 34 by stating:

"Accordingly for all those reasons the Tribunal accept the evidence of the Second Respondent that its behaviour was in no sense whatsoever on the ground of race."

Mr Short acknowledges that in those conclusions the Employment Tribunal have correctly expressed the approach required by Section 54A and the guidelines. However, Mr Short submits that the Employment Tribunal were there 'simply' accepting the evidence of the Respondents that they did not discriminate without examining the evidence, especially the impact of the burden of proof on any explanation for the failure to warn. We disagree. The Employment Tribunal were, we find, there expressing their conclusions that the burden of proof had been discharged by the respondents, based on their reasoning in paragraphs 33 and 34, so that these conclusions and the intermediate reasoning must be read together. By using the word "accept" in these two passages it seems to us that the Employment Tribunal were again acknowledging the process of proof by the Respondent that is required by Section 54A. Indeed, by reference in both these passages to "no sense whatsoever", a requirement of the EC Equal Treatment Directive 76/207 (as amended), and specifically incorporated into the Barton guidelines, the Employment Tribunal appear to have had the Barton guidelines clearly in mind as well. The issue remains whether, in between those two passages and in "showing their workings" the Tribunal have revealed that, contrary to the way in which they expressed themselves in those passages, the Employment Tribunal have in fact adopted the wrong approach to the issue of the failure to warn. Accordingly, we now turn to the reasoning in paragraphs 33 and 34.

33. We find that the Employment Tribunal do in fact consider the issue of the failure to warn elsewhere than only in the passage complained of. It does seem to us that a proper reading of the judgment of the Employment Tribunal leads to the conclusion that before the passage complained of the Employment Tribunal did in fact consider the explanation for the absence of a warning in accordance with the correct burden of proof under Section 54A. In paragraph 33 they identify four features argued for by the Claimant:

"It was argued on behalf of the Claimant that the failure to record anywhere in writing problems with communication skills as opposed to problems with the Claimant's English was indicative that the Second Respondent was now seeking to put a "spin" and to move away from a direct criticism that could be seen to relate to race. It was also argued on behalf of the Claimant that the absence of any records of any earlier complaints indicated that in reality this was not the reason for moving him. It was also argued that the failure to speak directly to him again was indicative of this not really being the reason. Further, the fact that he was allowed to remain on the morning shift it was argued must be indicative of the reason not really being communication skills because he would on occasion still need to use the telephone in the morning."

34. The failure to 'speak to him directly', referred to in our judgment as 'the failure to warn', is set out as one such feature. The Employment Tribunal then go on to make a finding:

"That the reality of the situation was that there were always concerns on the part of the Second Respondent about the Claimant's ability to communicate clearly but that those had never really been tackled and because, as was quite clearly accepted by the Second Respondent, he was a good worker, the status quo had been preserved."

35. We read the judgment of the Employment Tribunal as making the finding that an "explanation" by the respondents was their toleration of the situation. The Employment Tribunal then went on:

"What caused the change was the arrival on the scene of a new director in the shape of Mr Rogers, which combined with his communications with Mr Starkey and Mr Starkey's clear difficulties in communicating with the Claimant resulted in the Claimant's shift (being changed). The Tribunal find that the Respondents were sensitive to the Claimant and that is borne out (by) his retention of him on the morning shift which required less switchboard work… "

36. It seems to us that the Employment Tribunal there find that the 'explanation' for the 'change' from toleration to removal from the evening shift was the arrival of Mr Rogers and the communication from Mr Starkey. The Employment Tribunal appear there to set out the explanation of the first three of the features raised on behalf of the Claimant, that is the failure to record in writing, the absence of records of complaints, and including 'the failure to warn'. The Employment Tribunal then go on to consider separately the explanation for the fourth of those features, that is Mr Hundal's move to the morning shift, and they find that it relates to the Respondents' sensitivity. At that point it seems to us the Employment Tribunal have dealt with the evidence appropriately, and have made findings as to the explanations, which must be read together with their conclusions at the start of paragraph 33 and the end of paragraph 34, and the other passages which show that they applied the burden of proof requirements. Whether or not a tolerance of communication difficulties followed by the employer's perceived need to change the 'public face' of the company to help a financial rescue of its business are adequate explanations is a matter of judgment for the Employment Tribunal; it seems to us they are capable of being adequate explanations. The Employment Tribunal have there and in their conclusions found the explanations adequate. No criticism is made on behalf of Mr Hundal of the judgment of the Employment Tribunal up to this point.
37. Having dealt with the failure to warn up to that point, it can be said that the Employment Tribunal went on in the passage complained of to find another reason, or explanation, namely that the respondents behaved unreasonably.
38. Further, it seems to us that in the passage complained of, the Employment Tribunal go on to deal with the 'treatment' of failure to warn, and then afterwards continue by considering the 'treatment' of

"Requiring a standard of English higher than needed for the safe and effective performance of the job"

in accordance with the CRE code of practice. The Employment Tribunal appear, in the second stage of Section 54A, to have considered not only the 'explanations' for the facts in stage 1, but also to have considered the 'treatment' of Mr Hundal, as Section 54A requires them to do. King was indeed dealing with the way to approach the evidence of the respondent's 'explanations'. In so far as the passage complained of was dealing with 'treatment' that was capable of being distinguished from the 'explanation' of a fact from stage 1, we are in this respect satisfied that the passage complained of does not disclose that the Employment Tribunal were slipping back into the King approach.

The meaning of the words in the passage and the application of the legal tests.

39. Further, it seems to us that the words are part of the section dealing with the determination of the tribunal, and must be read together with the conclusion as expressed at the beginning of paragraph 33 and the end of paragraph 34, as referred to earlier in this judgment. We find that the correct approach set out in those two 'conclusions' is the framework within which the Employment Tribunal considered the 'failure to warn' in the passage complained of, and those conclusions are to be read as having been applied to the reasoning set out between those conclusions, in the passage complained of as well as in the rest.
40. By way of illustration, in a regular civil action for instance in negligence, a judge may state his finding in the course of a judgment when dealing with one particular act complained of, in words such as 'I find this was not negligent', rather than 'I find that the claimant has failed to discharge the burden of proof on a balance of probabilities', and such a form of words would not undermine the validity of the final conclusion expressed in those words.
41. The Tribunal expressly directed themselves to the correct legal tests particularly those in Section 54A and Igen. They identified the act complained of under Section 54A(1) of the decision in paragraph 29 of the decision. They then expressly considered the facts in the first part of Section 54A(2):

"32…has the Claimant proved on the balance of probabilities facts from which the Tribunal could conclude, in the absence of adequate explanation, that the Second Respondent has committed an act of discrimination?"

Finding that burden discharged, the Employment Tribunal expressly move on to the second stage of Section 54A(2) with the words:

"33. Accordingly the burden of proof passes to the second respondent"

They express their conclusion and set out their reasoning, part of which is the passage complained of. It is true that in the particular passage complained of the Employment Tribunal did not again set out the specific words 'have the respondents discharged the burden of providing an adequate explanation for the failure to warn?' or 'have the respondents shown that the conduct of the respondents in failing to warn was in no sense whatsoever on the ground of race?'. However, when viewed in the context of the decision we find that it is clear that that is what the Employment Tribunal were doing.

Conclusion

We have had to consider if the wording of the passage complained of did belie an error of approach. Was this an error of approach that demonstrated a failure to apply the provisions of Section 54A in relation to the approach signalled by paragraph 12 of the Barton guidelines, or does this come within the approach indicated by Peter Gibson LJ in that a failure to refer specifically to a particular guideline is not an error of law?

42. We find that the Employment Tribunal did deal also with the explanation for the 'failure to warn' elsewhere in the judgment. We find that the form of words used in the passage complained of was not an aberration in which the Employment Tribunal show that they reverted to the King test, outside the general tenor of the judgment. With respect to the Employment Tribunal it may not have been the most clear of phraseology, but it does not in our judgment display the application of the King test when viewed in the context of the whole 'determination' of the Employment Tribunal. Whilst the Employment Tribunal in the passage complained of did use the phrase "they do not draw that inference from the facts heard" which, looked at alone and in isolation from the context might contain an echo of the approach in the King case, we find that the form of words used in the passage complained of was not on the face of it the application of the King test to an explanation. The words may be said rather to echo the words of Peter Gibson LJ in Igen where he referred to the reasons of the Employment Tribunal in that case:

"The ET then directed itself correctly by stating that unreasonable behaviour was not the same as discriminatory behaviour."

Indeed, for an employer to fail to give an appropriate or fair warning has, over the years, been found to be an all too frequent feature of unreasonable management by employers, in cases where there was no element of discrimination.

43. In the light of this overall examination of the judgment, we find that a proper reading of the judgment of the Employment Tribunal leads to the conclusion that the reasons of the Employment Tribunal set out in paragraphs 33 and 34 were all arrived at on the correct application of the provisions of Section 54A and the Barton guidelines. At every stage the judgment is imbued with the recognition and application of the correct legal test. It is true that in this particular passage, when dealing with an issue which is subsidiary in so far as the act of discrimination complained of itself is concerned, the Employment Tribunal did not again in terms expressly state the Section 54A burden, or paragraph 12 of the Barton guidelines. We find that this does not show that there was an aberration in which, unlike the rest of the judgment, the Tribunal slipped back into pre-Section 54A legal tests.
44. Not only does the overall judgment show a recognition of the appropriate approach to the issues, principles and legal tests, but the structure of paragraphs 33 to 35 shows that the passage complained of is to be read as part of the reasoning within the framework of the conclusions at the start of paragraph of 33 and the end of paragraph 34. The Employment Tribunal can be seen to have applied here Section 54A and the Barton guidelines.
45. In so far as the Employment Tribunal did not, in this context, expressly apply paragraph 12 of the Barton guidelines, this is a case in which, applying and adapting the words of Peter Gibson LJ in paragraph 16 of Igen,

'No error of law was committed by the Employment Tribunal in failing to set out the Barton guidance or by failing to go through paragraph 12 in this part of its decision'.

46. There was before the Employment Appeal Tribunal an application on behalf of Mr Hundal to adjourn these proceedings to obtain the Chairman's notes, to confirm the notes made on behalf of Mr Hundal, which record one question and answer in which Ms Richens agreed that if the problem had been that the Claimant had mumbled she could have spoken to him and given him a chance to improve, saying it was not her decision and that she could give no explanation as to why no steps were taken to warn Mr Hundal. This note is disputed by the Respondents. This is not an appeal based on perversity and such a note, even if correct, would have made no difference to our decision. For this reason we determined to refuse the application for an adjournment.
47. This appeal falls to be dismissed on the first ground.
48. By way of footnote to that part of this appeal, it occurs to us that it may assist tribunals in dealing with these issues to engage in the exercise of identifying, in a particular case, the specific qualifying facts for stage 1, either by agreement or submission at the outset, or at some other stage or by some other means, depending on the circumstances of the particular case. This would provide a platform for the Employment Tribunal to assess that part of the second stage that is involved in assessing the adequacy of any explanation for such facts. That is of course not a legal requirement.
49. We turn now to the appeal from the dismissal of the Appellant's claim for unauthorised deductions from wages against the First Respondent. This arises from the fact that it was on 12 May 2004 that the Appellant was told that his hours would change from 17 May 2004. The Appellant argued that because of the shortness of notice he is entitled to claim compensation for the 'deduction' from his pay for the period for which the notice should have run. The Respondents alleged there was no obligation to provide notice and relied upon the contract of employment.
50. Paragraph 2.1 of the contract provided:

"2.1 Your regular hours of work will be stated in your appointment letter or Statement of Particulars and will be used in calculation of all your benefits …. Your regular hours of work for this purpose will be varied only in writing. It is agreed that the company may change the length of your daily shift to suit the customer's site requirements. The Company undertakes to give you reasonable notice of such change.

……..

2.3 The company reserves the right to reduce your regular hours of work."

51. In paragraph 36 of their judgment the Employment Tribunal found, in the light of clause 2.3, that the hours of regular work could be reduced and that the First Respondent was contractually entitled to do what it did. The Employment Tribunal responded to the arguments of the Appellant that the reduction could only be on notice and in writing by repeating the submissions on behalf of the First Respondent that breach of the undertaking to give reasonable notice did not deprive the Respondents of the right to the contractual right to reduce the hours and that the provisions of clause 2.3 "overrode" the undertaking to give notice so as to entitle the First Respondent to alter the hours and reduce the wages.
52. The contract did not, we find, require a written notice before hours could be reduced in the circumstances of this case. Clause 2.1 refers to the need for writing only where there is a variation in the hours of work for purposes of calculating benefits. We find no error in the Employment Tribunal's judgment that there was no requirement for written notice of a change of hours. However, the second part of clause 2.1 makes a separate provision; the company's entitlement to change the length of the daily shift and their undertaking to give reasonable notice. Whilst clause 2.3 gives a right to reduce regular hours of work we see no basis upon which it can be argued that it "overrides" clause 2.1 so as to avoid the need for notice. If that were so the two clauses would be inconsistent in circumstances where a change to the length of the daily shift under clause 2.1 also involved a reduction in regular hours of work under clause 2.3. Whilst the former may relate to the work of the security officer on a particular site in his practical arrangements there, and the second provision relates to the personal hours of work on whatever site, it seems to us that in the context of the case before us they are and must be regarded as linked. The length of the daily shift was changed under clause 2.1 and there was a reduction in regular hours of work under clause 2.3. Are there to be two conflicting provisions as a result? The construction of this contract is a matter of fact and law. We find that the right to reduce regular hours of work in clause 2.3 is not inhibited or rendered inconsistent by the existence of an undertaking to give reasonable notice. We see no reason why the contract could not, and did not, provide for the Respondents to have the right to do something and at the same time to have undertaken to give notice of it. We find that the contract provides that where a reduction in hours of work under clause 2.3 involves a change in the length of the daily shift, such reduction is accompanied by a contractual undertaking to give reasonable notice.
53. Accordingly we find that in this aspect of their decision the Employment Tribunal erred in their construction of the contract which contains a provision for reasonable notice. There is sufficient material in the papers before us to be able to identify the facts already found which establish what reasonable notice is in practice, and it is unnecessary for this matter to be remitted to the ET for further findings of fact. In practice five days' notice was given. We have been shown an e-mail in which there is some concession, after the event, by the Respondents that notice of between two and four weeks should have been given. The evidence indicates that the Appellant did not work on the night shift at weekends. But during the week he worked from 5.30 pm to 9.00 pm. In view of the concession by the Respondents we have found, simply for the purposes this case and without intending to lay down any practice which should be of assistance to any person in any other case, that reasonable notice would have been twenty-eight days. In fact five days' notice was given but two of those days were at the weekend. Accordingly, the Appellant lost the enhanced payment for the night shift for seventeen days, being four working weeks, Monday to Friday, less the three days. A loss of three and a half hours per day for seventeen days is 59 ½ days which, at £7.75 per hour leads to a finding of an unlawful deduction of £461.12. We allow the appeal from the dismissal of the claim for unlawful deduction from wages and substitute a finding that there was an unlawful deduction and order the payment of gross wages in the sum of £461.12 or in such sum as remains after deduction of tax for which the Respondents account.