No A1/2002/1496
Neutral Citation Number: [2002] EWCA Civ 1524
IN THE SUPREME COURT OF JUDICATURE                         
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO 
AND AN EXTENSION OF TIME

								Royal Courts of Justice
								Strand
								London WC2

							Tuesday, 24th September 2002

B e f o r e:

LORD JUSTICE LAWS

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MEKINI
Applicant
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DSG RETAIL LTD
Respondent

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

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MR A ELESINNLA (Instructed by J R Jones of London) appeared on behalf of the Applicant
The Respondent was not represented and did not attend

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J U D G M E N T
1.	LORD JUSTICE LAWS: This is a renewed application for permission to appeal against the decision of the Employment Appeal Tribunal given at a preliminary hearing on 26th April 2002, His Honour Judge Wakefield presiding. Permission to appeal was refused on the papers by Lord Justice Pill on 7th August 2002.
2.	The applicant, who is black, had been employed by the respondent at the latter's Croydon branch as a key time sales assistant from 15th May 2000 to 21st December 2000 when he was dismissed. He brought a complaint of race discrimination before the Employment Tribunal pursuant to Sections 1 and 4 of the Race Relations Act 1976. He had not been employed for a sufficient continuous period to clothe the Employment Tribunal with jurisdiction to hear a complaint of unfair dismissal. Accordingly, as the Employment Tribunal noted, the sole issue was whether the dismissal was an instance of direct racial discrimination. The Employment Tribunal found that there was no evidence of race discrimination and the Employment Appeal Tribunal saw no error in the Employment Tribunal's decision.
3.	The respondent company pursued a strict security policy which meant that all staff were supposed to be searched each day when they left work. Such a search was commenced in the applicant's case on 4th December 2000. On the facts found by the Employment Tribunal the applicant broke off the search. A security guard Mr Gilbert was doing the searching. The respondent's witnesses believed, on the Employment Tribunal's finding, that the applicant had broken off the search - I put the matter shortly - to avoid getting caught with a stolen computer game. There was a disciplinary hearing on 21st December 2000. The applicant alleged a conspiracy to plant the computer game in his locker. At length, the applicant was dismissed, not for theft but for breaking off the search. The Employment Tribunal considered that this process was unfair.
4.	Mr Elesinnla, who represented the applicant today with very great skill and economy of language, has pointed to a number of passages in the tribunal's decision. I will not read them all but I will take the following passage from paragraphs 27 and 28:
“27 In an effort to avoid pursuing a charge”
5.	I interpolate, that would be a reference to theft
“which, apparently, the respondent had concluded it could not prove an offence was constructed which, in the view of the tribunal, does not exist in any identifiable form. This constructed offence would not in itself be regarded as gross misconduct by any reasonable employer and in order to give it that characteristic the respondents link it to the surrounding allegedly suspicious circumstances. It is those circumstances which primarily cause the alleged breakdown of trust and confidence. The respondents themselves admit that that breakdown is only likely if the offence of breaking off a security search is tied in with the uncharged and un-established suspicion of theft. The circumstances supporting that suspicion are constantly raised an discussed in all the proceedings. But it is made quite clear to the applicant that he is not charged with theft and that the respondent is not seeking to establish a basis for suspicion of theft.
28 In the light of these considerations there is no doubt in the minds of the members of the tribunal that an application for unfair dismissal, if it had been available to the applicant, would have succeeded.”
6.	However, unfair dismissal was not the issue.
7.	The Employment Tribunal proceeded (at paragraph 30) to conclude that there was not a shred of evidence to support an inference of racial bias. They rejected the applicant's suggestion of a conspiracy. They said at paragraphs 32 and 33:
“32 The process was badly handled but the tribunal believes that the decision to dismiss the applicant was genuinely arrived at on the basis of the supposed charge of breaking off the search and the supposed suspicious circumstances. The fact that Mr Barrett and Mr Wilkinson (who, incidentally, were probably not part of the alleged conspiracy) mistakenly believed that they had separated the charge of breaking off the search from any charge of suspicion of theft does not alter the fact that they did so believe. In the view of the tribunal any employee against whom such a belief existed would have been liable to summary dismissal. The fact that that summary dismissal would have been unreasonable because of the way it was handled and because of the existence of an unsubstantiated primary reason does not alter the fact that these suspicions provide a non-discriminatory reason for the applicant's dismissal.
33 If we were to summarise our decision it would be very simply that there is no supporting evidence whatsoever of a charge of racial discrimination and this tribunal believes there is no ground for an inference that such discrimination is the explanation for the improper, and indeed unreasonable, processes which the respondents adopted. The explanation for them is much more likely to be a lack of experience of handling this sort of situation where a lesser charge is pursued in the absence of ability to prove a continuing suspicion of a greater act of misconduct.”
8.	Mr Elesinnla has advanced two grounds in this court. His first ground largely flows from a passage in the Employment Tribunal's decision where reference is made to institutional racism. The passage is as follows: (paragraph 24):
“It is important to note that the applicant in the present case seeks to establish the existence of a conspiracy among certain members of staff specifically to plant goods belonging to the respondent on him. It is not clear who, among the actors in this case are said to be party to that conspiracy but it is reasonably certain that it is alleged to include Mr Ham, Mr Gilbert and Mr Shillingford. It should be noted that there is no allegation of institutional racism in the present claim. Institutional racism was never referred to during the hearing and no evidence was presented to support its existence. The tribunal assumes, therefore, that whoever is said to have participated in the alleged conspiracy is said to have been motivated, albeit possibly subconsciously, by racism.”
9.	The argument is that it was an error of law for the Employment Tribunal to take into account the fact that the applicant had not alleged institutional racism. Institutional racism is not a term that appears in any of the relevant statutory provisions. With respect to Mr Elesinnla, I cannot understand this argument. The reference to institutional racism in the tribunal's decision is not in any sense adverse to the applicant. It may, as Lord Justice Pill thought when he refused permission on the papers, have been superfluous. All the tribunal is doing is emphasising that the applicant's case was one of actual racism on the part of individuals, and so it was. It seems to me that the reference to institutional racism is simply neutral as regards the outcome of the case.
10.	The more substantial argument upon which Mr Elesinnla concentrated his fire was to the effect that the tribunal was not justified in holding that the respondent would have treated any of its employees in the same way as it treated the applicant, in effect without positive evidence that that was how it treated its employees. Reliance is placed on some observations of Lord Justice Sedley in Anya v University of Oxford [2001] IRLR 377 at paragraph 14:
“If an employer behaves unreasonably towards a black employee it is not to be inferred without more that the reason for this is attributable to the employee's colour in that the employer might very well behave in a similarly unreasonable fashion to a white employee. As Lord Justice Neil pointed out in King [1991] IRLR 513:
`Such hostility may justify an inference of racial bias if there is nothing else to explain it. Where there is such explanation as the Industrial Tribunal posit will depend not on theoretical possibility that the employee behaves equally badly to employees of all races but on evidence that he does.'“
11.	The principal difficulty which Mr Elesinnla faces, as it seems to me, is that in order to get this argument off the ground he has to attack the findings of fact made by the Employment Tribunal that offer an explanation of the conduct of the relevant actors on behalf of the respondent, in particular the reference in paragraph 32 which I have read to the belief on the part of Mr Barrett and Mr Wilkinson that there was a viable separate charge of breaking off the search. Mr Elesinnla grasped that nettle and accepted that that was a finding he would have to attack. He said there was no evidence on which it was based. But if one reads, as I have done, the whole of the Employment Tribunal decision, which is tightly packed with detailed references to the whole factual history, it seems to me that is unsustainable.
12.	The real answer to this case may be that given by the tribunal at the very end of their decision, and I repeat the sentence again:
“The explanation ..... is much more likely to be a lack of experience of handling this sort of situation where a lesser charge is pursued in the absence of ability to prove a continuing suspicion of a greater act of misconduct.”
13.	This is not a case where some explanation not apparent from the papers or the evidence is called for in order to negative racism. Moreover I notice that the tribunal were well aware, at any rate of the essence of the approach that was described by Lord Justice Sedley. I say that having regard to a passage from paragraph 23 of the decision as follows:
“The need for the respondent to explain its conduct other than in terms of racial discrimination may arise if the applicant establishes a prima facie ground for supposing that he has been treated differently from those of other racial backgrounds. An improper course of conduct directed at an applicant, therefore, may well raise such a prima facie case since it can usually be assumed that the respondent would not normally act improperly.”
14.	Despite Mr Elesinnla's admirable advocacy, I cannot see that the Employment Appeal Tribunal fell into error in dismissing the appeal from the Employment Tribunal.
15.	Accordingly, I would refuse this application.
Order: Application refused