Appeal No.	 EAT/0733/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 October 2001

Before
HIS HONOUR JUDGE J R REID QC
MR D CHADWICK
MS J DRAKE

WEST MIDLAND LAMINATING COMPANY LIMITED	APPELLANT

MR J W HARVEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR C W WILSON & MR A SMITH
(Representatives)

HIS HONOUR JUDGE J R REID QC

1	This is a Preliminary Hearing of an appeal by West Midland Laminating Company Limited against the decision of an Employment Tribunal sitting at Birmingham whereby, first of all, they dismissed a claim by Mr Harvey, a former employee of West Midland Laminating, that he was unfairly dismissed but secondly, they upheld a claim that he was subject to racial discrimination by the Respondent.  They went on after a separate remedies hearing which took place after the appeal was launched to award £4,000 compensation plus interest of £740.  That payment was stayed pending the determination of the Respondent’s appeal

2	There were essentially three points that the company wished to raise on the appeal.  The first point was that Mr Harvey’s representatives had tactically outwitted them at the hearing by launching a claim for unfair dismissal which was then abandoned with a view to ensuring that West Midland Laminating had to go first.  It was said that the result of this was, first of all, that certain matters which were relied on by the Tribunal in their findings were never put to the company’s witnesses.  Secondly, that the company was unable to conduct its defence as effectively as it might have done.  Thirdly, that there was a problem about the possibility of getting evidence from a union representative, a Mr Bunday, who had been at one stage at the Tribunal but had then left.  

3	That seems to us to be based on a false premise because in fact what happened was not that the claim for unfair dismissal was abandoned at an early stage, but that it was accepted by counsel on behalf of the Applicant, Mr Harvey, that he was dismissed for some other substantial reason, namely, the need to work shifts, which he was not prepared to work.  The Tribunal were left to determine whether his dismissal was in fact unfair because counsel did not concede that.  The position therefore was that there was a live issue in relation to unfair dismissal on which the Tribunal had to make a decision, which they did in paragraphs 6.1 – 6.4 of their decision in which they held that:

“6.4	Ultimately following that analysis it appeared that if the applicant was not prepared to move from his refusal to work a double day shift, then there was no alternative but to terminate his employment.  The Tribunal were satisfied that Mr Smith had acted as a reasonable employer and had taken proper advice and engaged in lengthy discussions to try and resolve the dilemma.  Consequently, when the discussions failed to arrive at an acceptable solution to the applicant’s demands, his dismissal was fair.”

In our view there is no substantial point on this ground of appeal to go to a Full Hearing.  

4	The second of the points which it was sought to take was that the quantum of the award, namely, £4,000 capital plus the £740 interest, was excessive because it did not take account of the fact that the company, in particular Mr Smith the Managing Director, who was present here today, and from whom we heard in addition to hearing from his representative, had treated Mr Harvey very well in time past.  In particular by giving him unlimited paid leave at a time when Mr Harvey’s mother was ill and being a Jehovah’s Witness had to go into a special hospital at Stoke, and also in not only paying up Mr Harvey when he left but in addition giving him an ex gratia payment of £1,700.  Mr Smith pressed upon us that he was extremely upset and shocked when the allegation of racial discrimination was made against him and his company.

5	It does not seem to us that that goes to the decision of the Tribunal.  The Tribunal would have had all the factual matters that had been raised available to them, or they could have done to the extent that they were not in fact put before them and nonetheless the Tribunal took the view that £4,000 was the appropriate figure.  That figure is within what is at present regarded as being the lower band for awards of this type.  It does not seem to us that there is any indication of any error of law or perversity which ought to go to a further hearing.

6	The third question is whether the Tribunal should have extended the time within which Mr Harvey could make his complaint.  The findings of the Tribunal in relation to that are set out at paragraph 6.12 of the decision where they say as follows:

“The conclusion of the tribunal was that there was evidence that the applicant had been subject to racial discrimination by the respondents in the way that he had been treated in particular by Gary Swan and to the extent that there were specific occasions when the applicant had been otherwise subject to discriminatory action, in particular by Martin Smith in his derogatory racist jokes, the tribunal considered whether it would be appropriate to exercise its discretion to allow the applicant to proceed with those claims, notwithstanding that they had been presented outside his statutory time limit.  The tribunal took account of the fact that the applicant was employed in a relatively small company with a small management structure.  Although he had had confidence in the previous Works Manager up to his departure at the beginning of 1999, once Mr Swan was appointed as works Manager and he was then faced with a management structure which otherwise comprised Martin Smith who was the son of the Managing Director, the tribunal accepted it would have been extremely difficult for the applicant to have been able to pursue a complaint of racial discrimination, either through his immediate manager or through the Managing Director, with any degree of confidence that it would have been dealt with satisfactorily.  His decision therefore to refrain from pursuing the matter formally until he had been dismissed in the tribunal’s view justified the exercise of their discretion to the claim to proceed and to be included in the assessment of any compensation.”

7	In our judgment it is at least arguable that that decision is wrong and is one with which this Tribunal can interfere.  Even if Mr Harvey was unable to pursue a racial discrimination point internally, there was nothing to stop him doing it through legal channels.  He was not a man who was incapable of looking after his own rights.  He was somebody who had been a union member before he had joined West Midland Laminating some seven and a half years before.  Indeed, he had been recruited through the union.  He was a long standing member, and he was somebody whose departure from the company was negotiated through the union, in particular through Mr Bunday, to whom I have already referred.  It seems to us that there is a properly arguable point as to whether, in those circumstances, the Tribunal could or should properly have extended time, and whether the reasons that they give, which omit any reference to the union representative and Mr Harvey’s dealings with the union and the union’s dealings with the company, can properly stand.  In relation to that ground and that ground only we direct that this matter should proceed to a Full Hearing.