Appeal No.	 EAT/533/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR K EDMONDSON JP
MRS R A VICKERS

MR WILLIAM JACK	APPELLANT

PINKERTON SECURITY SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS ALTHEA BROWN
Instructed By:
Ms V Sequiera
Acting Principal Litigation Officer
Commission for Racial Equality
Elliot House
10/12 Allington Street
London SW1E 5EH	

	JUDGE J ALTMAN:	

1	This is an appeal from the decision of the Employment Tribunal sitting at London (North) on three days in January 1999 and then for a Reserved Decision given on the fourth day.  The Employment Tribunal dismissed the complaints of the Appellant of race discrimination and breach of contract.  The matter comes before us by way of preliminary hearing on an adjourned hearing to determine if there are arguable matters of law capable of being considered in full by the Employment Appeal Tribunal.  The hearing was listed before us for an extended period, presumably because of the various issues.

2	Initially the grounds of appeal included a complaint of bias.  It is recognised by Ms Brown, Counsel for the Appellant, that it was not the correct form of description and the basis of that ground of appeal was really to say that, because of the way in which the Employment Tribunal was conducted, there was an appearance of not giving the Appellant a fair trial in relation to a number of matters, contrary to the provisions, as it was put, of natural justice and, of course, as we must now be aware, no doubt the Human Rights Act.

3	However, having discussed the matter with Ms Brown, it is clear that whilst there are elements of the way in which the evidence was received, which she says should have been material to the decision-making process of the Tribunal, she does not pursue that matter of bias as a free-standing ground of appeal.

4	We have read the correspondence from the Chairman and the Regional Chairman, both containing very serious criticism of Ms Brown and it is clear to us that there was some form of breakdown in the relationship between her and the Tribunal.  Whilst it is clear to us that there was such a breakdown, it is not at all clear to us as to what the cause for that was.  We have had the opportunity of reading the material prepared in documentary form by Ms Brown for the Employment Tribunal and in the form of Notice of Appeal and skeleton argument for the Employment Appeal Tribunal.  We have also had the opportunity of hearing her submissions for the better part of an hour and a half.  We can only observe, and we feel that even although this is a preliminary hearing it is important to say so, that if Counsel conducted the case before the Employment Tribunal in the way she has conducted the case before us, and in the way she has prepared the written material for the Employment Tribunal and the Employment Appeal Tribunal, we are left entirely baffled as to why an experienced Chairman should have formed the adverse view that he did.

5	We are very indebted to Ms Brown who has clearly mastered the material in this case to a very high degree and who has presented arguments which are wholly relevant and sustainable in a way that is readily understandable and authoritative.  We say that so as hopefully to dispose altogether of any relevance in the appeal, arising directly as a ground of appeal, from what was clearly some form of breakdown of communication at the level of the Employment Tribunal and we would not begin to try to understand how that occurred.  We wish to make it clear that insofar as we can judge the situation, we could find no reason from our experience to echo any criticism that has previously been made.  As I say, we mention that at this preliminary hearing, so as hopefully to clear that out of the way for when this matter comes, as it will come, to a full appeal hearing.

6	We acknowledge the force of a large part of the matters raised in the Notice of Appeal and the skeleton argument, in the context of our function which is simply to identify an arguable point of law without coming to any conclusion as to the merits of that argument.  It may be that some arguments are stronger than others, but it may be helpful just to summarise the points of law that have been raised before us in relation to the various findings of the Employment Tribunal.

7	The first matter to which we have been referred is that in paragraph 11 of the decision. The learned Chairman paraphrased the submissions on behalf of the Appellant as being that the Respondent’s witnesses were all “lying through their teeth” and were all “out and out liars”.  We have read the written submissions to which reference was then made.  It is quite clear that credibility was an issue before the Tribunal, so far as the Appellant was concerned, in relation to a number of specific inconsistencies and gaps that were enumerated.  However, we have not found within any material that we have seen such extreme and graphic assertions as were there paraphrased.  Though that was a matter that has in itself not given rise to any issue of law which has been urged upon us, it may be a relevant consideration when analysing the approach to the law and to the evidence of the Employment Tribunal, when seeking to assess and make findings about the submissions that were made.

8	The findings under appeal are set out at pages 15 to 20 of the decision, in subparagraph 12.  First we have considered paragraph 12(1) which relates to the Appellant’s work for the Respondents at site 102 Visa International.  The Appellant was employed as a security guard by the Respondents and was deployed to sites by the Respondents providing security services to their customers.  Site 102 concerned the Respondents’ customer, Visa International and the essential finding challenged there is the finding that whilst the removal from that site by the Respondents may have been a response to an insistence by their customer, the Employment Tribunal seemed to have come to the conclusion that, as the Respondents had no choice but to accede to their client’s request, that therefore there was no discriminatory act.  It is submitted that in their approach to the facts the Employment Tribunal erred in law, in that it is said that the reason of insufficient communication skills, particularly over the telephone, was clearly unsustainable, and in that there was an argument that there was more that the Respondents could have done so as to invalidate the finding that they had no choice.  We find that there are arguable points of law in relation to the factual conclusion insofar as it was based on the evidence as to whether or not the Respondents had any choice.

9	Furthermore, considering the case, amongst others, of Burton v Da Vere Hotels [1997] ICR 1, to which we, and we understand the Employment Tribunal, were referred, there is an issue of law as to whether the Employment Tribunal erred in finding that the response of a Respondent employer to pressure from a third party can be an answer to an allegation of racial discrimination.

10	Secondly, on page 17 of the decision, in reference to Sites 395 at Videotron and 398 at Videotron, the element of lack of choice is also part of the finding of the Tribunal and the same argument, it seems to us, is available as an arguable point of law in respect of those who work on those sites.

11	Thirdly we turn now specifically to Site 395, referred to at page 17 of the decision.  The facts as found indicate that there was a change of shift rota so that the white security guard Mr Morville had, as it were, the plum shift and the two others on the rota, who were both described as black security guards, had to work in such a way as never to have a weekend off.  The complaint here is that the Employment Tribunal were perverse in their findings in the light of the following.  In relation to Site 395 the evidence which the Employment Tribunal said they accepted on the part of the Respondents was that there were other, equally less well-regarded sites, for example Sandown Park Industrial Estate, to which white guards were sent.  This evidence was given orally for the first time by the Respondents’ witness Mr Bassom, we are told, in a bald statement without any factual breakdown or reference to other sites than the one mentioned and against a background to which I shall refer.

12	Fourthly as to Site 398, the same argument is advanced in relation to the finding of the Tribunal that followed Mr White’s evidence which was to the effect that the insistence as to rota changes came from Mr Lorraine and there was nothing that could be done about it.

13	The Appellant’s arguments as to site 395 (and 398) follow from the following sequence of pleadings and allied documents, and we now turn to them as follows.  At page 64 of our bundle is the initial questionnaire, before the hearing and served under the provisions of the Race Relations Act.  It says, at paragraph (f):

“(f)  Please list the names or reference numbers of staff sent to work at the gatehouse in Site 395.”

And in paragraph (g):

“(g) Explain in detail why only Blacks, Indians and Pakistanis were sent to relieve me at the gatehouse of Site 395.”

That relates to the 395 case.

The answer was given at page 68 of our bundle, under paragraph 6 (f) and (g):

“The security officers at that site were of the following ethnic mix.
African
African
African
Afro-Caribbean”

And in answer to 6 (g), the answer was “See 6f”.

14	The next matter that is recorded is a detailed direction given by a Chairman of the Employment Tribunal on 12 October 1998 in advance of the hearing and which provided at paragraph 7:

“The Respondent was ordered to provide full particulars in a unified document of the grounds of resistance by reference to the various allegations made by the Applicant in both his Originating Applications.”

15	That then led, at page 176 of our bundle, to a two-page answer with particulars which made reference to Site 395.  Nothing relevant was mentioned which heralded the explanation that might be given to the Employment Tribunal.  And, as to Site 398, again it is arguable that none of the material given in evidence was set out.  We are then referred to the Witness Statements disclosed before the hearing in which, again, there was no reference to the explanations later given in oral evidence and accepted by the Employment Tribunal.  It is also pointed out to us that Mr Bassom, in addition to adding this material in oral evidence, withdrew a substantial part of his written statement.  As to Site 398 the Tribunal found that there was a detriment and what they described as “a hardship” but, on the face of the decision, they accepted the Respondents’ explanation that they had to fall in line with Mr Lorraine’s demands at all six Videotron sites.  

16	Whilst the same points arise as to the arguments of law indicated above, the question also remains as to the approach to the evidence in relation to those two sites.  The point that is argued is that, in the words of Ms Brown, when the Respondents’ witnesses were giving evidence, she said they did not really know what was coming next and had no opportunity to deal with the issues that were raised, in spite of the enormous opportunity given in advance of the hearing for the Respondents to put their case.  The two arguments that arise from that follow from the argument that the Employment Tribunal erred in assessing the reason and explanation for the detriment, the evidence of the Respondents and whether, bearing in mind all the matters to which I have referred, it was an assessment of the evidence which no reasonable Tribunal could fairly have reached.  There is a subsidiary point as to whether, in the conduct of the proceedings, the Employment Tribunal erred in permitting this evidence to be given without acceding to the requests of the Appellant for an opportunity to prepare in order to meet it.

17	Another matter that has been directed to our attention is page 85 of our bundle which is an internal document of the Respondents which, on the face of it, seems to be a query internally from management, as to the appropriateness of the roster changes that constituted part of the detriment of which the Appellant complained, and the absence of evidence that that management query was investigated or followed up.

18	It is always difficult on a preliminary hearing, when this sort of approach to the evidence is criticised by an Appellant, because essentially, it is a question of argument as to how far down the line an Employment Tribunal has to go in requiring advance disclosure and how far down the line it has to go in setting out, on the face of its decision, the competing evidence before reaching a decision and how far one can go before saying that the balance tips so far as to constitute a finding of fact that no reasonable Tribunal could find.  But the matters that we have been addressed about do, it seems to us, give rise to arguments of law worthy of full development.

19	The next finding of the Employment related to dismissal, at page 18 of the decision, and the argument is that the Employment Tribunal erred in concentrating exclusively on the failure to go to work as the reason for dismissal.  It seems to us that there is an arguable point of law that, where a complaint of racial discrimination is raised as a grievance and is mentioned by an employee as a prerequisite of his return to work or at least a prior request before his return to work, that if the employer then dismisses because of the refusal to return to work, whilst it may be true that the refusal to return to work is the primary cause of dismissal, the argument remains that, if the refusal is due to a failure to address a complaint of racial discrimination, do the Employment Tribunal consider whether that refusal itself was racial discrimination?  So, in effect, did they consider the argument that an employee with a grievance of racial discrimination, who is being ordered back to work without that being considered, may justifiably feel, correctly, that that is itself racial discrimination?  So the point of law really is whether the Employment Tribunal erred in failing to consider whether the non-consideration of the Appellant’s grievance was itself discriminatory.

20	That really leads in to No. 5 and is the same arguable point in relation to that.  Turning to No. 6, at page 19 of the decision, it is said that the Employment Tribunal erred in their finding and approach to the finding that there was no continuing act of discrimination.  In the first sentence of that section, the Employment Tribunal find that there was no evidence of any regime, rule, practice or policy to discriminate.  They had just analysed, in some detail, all the evidence that there was in relation to individual matters and, it seems to us, that there is an arguable point of law that the Employment Tribunal erred, when considering the continuing act, in seeking evidence apart from the individual instances complained of, rather than considering whether those individual instances themselves embraced part of a continuing act.  In other words, were they looking for something additional, rather than considering the instances themselves?  Also, we are aware of the unreported decision of the Employment Appeal Tribunal presided over by Mummery J, as he then was, in the case of Dr A Quereshi v Victoria University of Manchester and Professor R Brazier (EAT/484/95), copies of which we have arranged to be with these papers.  Did the Employment Tribunal err in law, when considering the individual acts, in considering them one by one, rather than by considering them as a totality.  In that connection it is pointed out that in Section 12 (iii) of their decision at page 18, the Employment Tribunal made a finding that the complaint relating to Site 398 ceased to be a live issue on 1 April 1998 and the argument is raised that the Employment Tribunal erred in failing to consider as to whether that remained a live ingredient of any events thereafter and of any continuity or pattern that, we are told, was being argued for.

21	We have given a much longer judgment than is customary at a preliminary hearing to assemble what we understand to be the arguable points of law that are now presented.  We would invite Counsel for the Appellant to frame the skeleton argument for the main hearing around those specific matters and argue the case from that.  These all come from the original Notice of Appeal and we have tried to assemble it in relation to the decision, indeed which is the way in which Ms Brown addressed us today.  Such skeleton arguments must be furnished by both sides 14 days before the day listed for the appeal.  This will be listed in Category C.  It will require a full day.  If, when the representatives for the Respondents, if any, are identified, and the parties consider that that is insufficient time they must notify the Employment Tribunal well ahead so that appropriate arrangements can be made, but we would hope that now that the particular points are identified this matter can be accomplished in one day.