Appeal No. EAT/0904/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MISS A MACKIE OBE
MR N D WILLIS

MR G COWELL & MRS L COWELL T/A THE STABLES	APPELLANT

MR G WILLIAMS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT IN PERSON	
For the Respondent	MISS KARON MONAGHAN
(of Counsel)
Instructed By:
Commission for Racial Equality
3rd Floor
Lancaster House
67 Newhall Street
Birmingham B3 1NA	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT):

1.	We have before use the full hearing of the appeal of Mr G Cowell & Mrs L Cowell in the matter of Gwilym Williams v Mr & Mrs Cowell.  Today Mr Cowell has appeared in person for himself and his wife and Miss Monaghan has appeared for Mr Williams.  

2.	Mr & Mrs Cowell owned a restaurant at the Stables Hotel, Llanwnda near Caernarfon.  All of the staff were Welsh speaking but could speak English.  Mr Williams, the Applicant below, was chef.  Mr & Mrs Cowell spoke no Welsh.  On the 31 July 1996, Mr Williams presented an IT1.  He said that he had been dismissed as from the 14 May 1996 and he claimed racial discrimination.  On the 10 April 1997 the Employment Tribunal at Abergele heard the case and, on the 6 June 1997 the decision was sent to the parties.   It was the decision of the three-person panel under the Chairmanship of Mr Stuart Williams.  It was a unanimous decision and it was that the Respondent had discriminated against the Applicant on racial grounds.  The question of remedies was adjourned.  

3.	Mr Cowell had presented the employer’s case in person.  The Tribunal noted this:-

“The applicant’s first language is Welsh and he, together with the witnesses Elizabeth Lewis and Mary Wyn Morris, elected to give their evidence in Welsh.  Simultaneous interpretation facilities were provided and used by those who required them.”

4.	A number of findings were made by that Tribunal.  We do not need to set them all out but some we do need to mention; they are these:  first of all, Mr Williams had been dismissed ostensibly for redundancy but, secondly, there was in fact no true redundancy.  There was, found the Tribunal, a poor relationship between Mrs Cowell and Mr Williams.  Important factors in that poor relationship were the events of the 7 and 11 April 1996.  So far as concerns the events of the 7 April 1996, the Tribunal said this:-

“The Tribunal found the facts of the incident of 7 April to be as follows.  It was Easter Sunday, a busy date for the Respondent’s business.  One hundred and thirty guests were booked in for lunch.  There was some, though not particularly serious delay in making preparation for the service of lunch.  Mrs Cowell was on hand to help and did so by washing dishes and in ante-room to the main kitchen.  The atmosphere in the kitchen was quite hectic and voices were raised.  Mrs Cowell was the only person present who could not follow everything that was going on because it was in Welsh.  Mrs Cowell wanted to be in a position to understand everything that transpired in case something arose which required her attention.  She approached the Applicant and asked him to speak English with the staff in the kitchen.  A little later, the Tribunal found that she had asked the Applicant to speak English with the staff in the kitchen on that day and in the future.  The Applicant reacted by saying that he was Welsh, that Welsh was his mother tongue and that it was natural for him to communicate in Welsh with the other staff in the kitchen.  This reaction upset Mrs Cowell who asked Mr Pugh, another employee who was in the kitchen, who by then had come into the kitchen area, to repeat her request to the Applicant.  The Applicant’s reaction to Mr Pugh was similar.”   

Continuing still with events of that day:

“The remaining staff, many of whom were junior waiting staff, agreed.”

That is to say, to speak English in the kitchen. That is the incident of the 7 April.  On the 11 April there was a staff meeting and the Tribunal said this of that meeting:-

“At the staff meeting on 11 April, the events of the previous Sunday were brought up again.  Mrs Cowell was critical of the Applicant’s attitude.  There was a heated exchange in which the Applicant again asserted his right to speak Welsh with his colleagues and made clear to the Respondents, by his references to other cases of alleged anti-Welsh sentiment and to taking the matter to the Welsh Language Board that he viewed the matter seriously.  There followed the Applicant’s resignation and its retraction shortly afterwards.”

Then the Tribunal add, after a while, that from that time forward, as indicated above, the relationship between the Applicant and Mrs Cowell remained extremely poor. 

5.	In paragraph 9, they say 

“In our judgment the dismissal of the Applicant was because the relationship between him and Mrs Cowell in particular and to a lesser extent him and Mr Pugh had deteriorated to such a poor state.  The question which we pose for ourselves at this stage is whether that dismissal amounted to discrimination against the Applicant on racial grounds, that is to say whether the Applicant because of his ethnic origins was treated by the Respondents less favourably than some other person would have been.  The primary reason why the relationship between the Applicant and Mrs Cowell deteriorated to the extent that it did was because of the events of 7 April and their sequel on 11 April.”  

At the end of that paragraph 9, they say:-

“There is no doubt in our minds that the continuing displeasure of Mrs Cowell at the Applicant’s refusal to speak English in the kitchen was a significant cause leading to his ultimate dismissal.”

6.	The Tribunal in their paragraph 8 had dealt with what they saw to be the law on the point.  They said:-

“The case of Gwynedd County Council v Jones & another [1996] ICR 833 decided, if there were any doubt about the matter, that the Welsh were an indivisible ethnic group for the purposes of Section 3 of the Act 1976.  The Applicant complained that he being a member of the ethnic group was discriminated against firstly by being required desist from speaking Welsh with other members of that ethnic group at his place of work, and secondly by being dismissed.”

7.	As for detriment, the Tribunal said that, although Mr Williams could have spoken English had he chosen to, he chose not to in the way that we have already seen.  They said in their paragraph 8:-

“In the view of the Tribunal, the fact that the Applicant could, if he wished, have complied with Mrs Cowell’s requirement that he speak English does not in itself prevent that requirement from being a detriment.  It is perhaps a matter of comment, if not universal, human experience that people feel a particular affinity for their mother tongue and use it as a matter of natural course when in the company of others of the same ethnic group.  In the view of the Tribunal the requirement of Mrs Cowell that the Applicant speak English to his Welsh-speaking colleagues in the kitchen did amount to subjecting him to a detriment.  It must be remembered that there was no complaint against the Applicant that he refused to speak English to Mrs Cowell or that he ever refused to keep her fully informed of matters relevant to his work.”

8.	Accordingly, the Tribunal found the case in racial discrimination proven.  The case, they held, was not, it has to be emphasised, one of indirect discrimination but of direct discrimination under Section 1(1)(a) of the Act.  So that was the decision.  On the 15 July 1997, Mr and Mrs Cowell lodged a Notice of Appeal which raised two points.  However, on the 14 November 1997 the matter came before the Employment Appeal Tribunal as a preliminary hearing and neither of those two points had been identified in the Notice of Appeal was permitted to go forward and the scope of this appeal was very severely limited.  The order of the 14 November 1997 made here at the EAT said that: -

“The Tribunal orders that the appeal be allowed to proceed to a full hearing of the Employment Appeal Tribunal limited to the one point of whether the failure of the Industrial Tribunal to consider whether there had been an attempt to coerce Mrs Lewis to sign the document of the 15 July by falsely representing that Mr Pugh had signed vitiated the decision.”

9.	That order of the 14 November 1997 has not been appealed against and therefore we have to respect that limitation.  It needs some explaining.  Mrs Lewis was a Welsh speaker and also able to speak English.  She worked in the kitchens.  She gave evidence to the Employment Tribunal.  She had been called by the Cowell side and her evidence, as one can see from the decision, helped the Tribunal to the conclusion that there had been no true redundancy.  In paragraph 4 of the decision, where this subject is dealt with, it says: -

	“It was undisputed by Mrs Cowell that she placed an advertisement in the local press for a chef on the same day the Applicant was dismissed and she did so, according to her, because she knew the business would struggle with just Mr Pugh and Mrs Lewis to do the cooking, particularly as the season was progressing to its busier period.  She told us that part of the Applicant’s duties went to Mrs Lewis, part to Mr Pugh but that the bulk of the Applicant’s duties went to the new appointee, Mr Graham Thompson, who replied successfully to her advertisement.  She said the Respondents did not offer the Applicant the post being advertised because there was, in her words, “no way he would have gone for that.  His relationship with Christopher Pugh was absolutely dreadful”.  On the basis of that evidence, which was not in any dispute at all, the Tribunal had no difficulty in concluding that this was not a case of redundancy.”

It would seem that Mrs Lewis gave evidence that was relative to that conclusion.  On the 15 July 1996, (that is to say before the IT1 had been presented) Mrs Lewis had signed a document headed ‘To Whom It May Concern’.  It was prepared in typed form by or perhaps on behalf of, but presumably by, Mr Williams.  It says underneath the heading ‘To Whom It May Concern’: -

“I the undersigned witnessed, on Sunday 14 April 1996, Mrs Lois Cowell insisting that Mr G Williams and then other members of the staff to speak only in English in the kitchen at the Stables Hotel, Llanwnda at all times”.
Her name and then written in Elizabeth Lewis and signed E. Lewis and then an address is filled in in handwriting, position held and filled in in writing is 2nd chef; date is filled in in handwriting, 15 July 1996.

10.	That ‘To Whom It May Concern’ statement was produced to the Employment Tribunal during the hearing.  After the Tribunal decision, on the 11 November 1997, only shortly before the preliminary hearing at the EAT, Mrs Lewis made a statutory declaration, which said this inter alia: -

“On 15 July 1996 Mr Gwilym Williams stopped me in Caernarfon.  He was sitting in his car on the square by the post office.  I was parking my car nearby to do my shopping.  I could not stay there for a long time, as there is a time limit for parking in front of the post office.  Gwilym Williams shouted at me to go over to his car.  We were speaking with each other for a few minutes and he then produced a statement, which he had prepared.  The statement read.”

Then she sets out the ‘To Whom It May Concern’ statement.  She continues,

“As I was in a hurry, I glanced at it and I asked Gwilym what it was.  He said that it was nothing really and not to worry.  He informed me that Chris Pugh; the restaurant manager had already signed it.  I then proceeded to sign it without thinking in order to get out of the car.  When I went back to work that evening I asked Mr Pugh if he had signed the statement for Gwilym Williams?  Mr Pugh said that he had been requested by Gwilym to do so but Mr Pugh informed me that he had refused and had told Gwilym Williams that the contents of the statement were a pack of lies.  Gwilym Williams had therefore lied to me when he told me that Chris Pugh had signed the statement.”  

A little later, she deals with the subject of what was being said in the kitchen and she says: -

“All Mrs Cowell had asked Gwilym was to speak English to his co-workers on this one occasion only as things had got out of hand and Mrs Cowell wanted to know what was going on.  He told me that the best thing for me to do was to shut up and say nothing.  My co-workers who were all Welsh speakers and who were on duty on the 14 April 1996 know that these allegations made by Gwilym Williams are all lies.”

11.	As a result of the ruling of the preliminary hearing here at the EAT, the Chairman’s notes of evidence were sought and, turning to those notes, one sees that the very weak status of the ‘To Whom It May Concern’ statement of July 1996 signed by Mrs Lewis was thoroughly before the Employment Tribunal.  Thus in her oral evidence to the Tribunal she described how that statement, the ‘To Whom It May Concern’ statement, came to be made.  She said in evidence in chief (and she, I remind, was called by the Cowell side), said:-

“Outside the post office, he” that is of course, Mr Williams “shouted and I went to see him in his car.  He asked if I would sign it. I said what?  He said nothing much but CP (Mr Pugh) has signed, if so I might as well sign too.  He said nothing would come out of it.  He did not say he was taking us to IT”, meaning therefore Industrial Tribunal.  “I went to work that p.m., saw Mr Pugh, said I had seen the Applicant.  I said I have signed the form you signed.  CP (Mr Pugh) said which form.  I just signed it without thinking anything.  I did not know what I was signing, I did not take much notice.  A few weeks later I sent the Applicant a letter to get a copy of what I had signed.  No reply.  In cross-examination she said referring to that statement of July 1996, “my signature,  I did not know what it said.  She only asked us not to speak Welsh that time.  I did not hear Mrs C speak to the Applicant.”

12.	Returning to the order made at the preliminary hearing at the Employment Appeal Tribunal, we need to ask on the basis of the evidence that we have seen, had there been an attempt to coerce Mrs Lewis to sign the document of the 15 July?  That does not seem to be the case.  She signed it so as to get on with her shopping.  She said 

“I just signed it without thinking anything”    

In the statutory declaration she says 

“I then proceeded to sign it without thinking in order to get out of the car”

Presumably meaning Mr Williams’ car, as he had asked her to go over to his car.  But there is no hint there that she was not free to get out if she choose to without signing it and there is no suggestion that she felt trapped or intimated or harassed or anything of that order.  As for her signing it because it had been falsely represented that Mr Pugh had already signed it, she did not say that.  She did not say that the representation that Mr Pugh had signed it had influenced her.  She said,

	“I then proceeded to sign it without thinking”.

That was what her statutory declaration said but her oral evidence at the Tribunal had suggested more strongly than that that the representation had influenced her.  Going back to what she said in oral evidence, 

“He said nothing much but (CP) Mr Pugh had signed.  I said if so I might as well sign too.”

Nowhere does she say that she would not have signed if she had known Mr Pugh had not signed.  

13.	As for whether, and this is an important consideration, these matters can be regarded as vitiating the decision that the Tribunal below came to, the Tribunal had these very facts in front of them.  So far as the influence upon Mrs Lewis of the representation about Mr Pugh having signed goes, the Tribunal in fact had a stronger form before them from her oral evidence than the later declaration gives.  The Tribunal had these matters before them in evidence and yet they came to the decision that they did.  It is, of course, for the Tribunal to evaluate the evidence that they have in front of them.  They have to choose which witnesses to believe and what weight to give to various parts of various persons’ evidence.  That is entirely their province.  It is very easy to find the Tribunal’s decision somewhat disquieting.  Although they say the case is not one of indirect discrimination, they never seem fully to address what the less favourable treatment was for the purposes of Section 11A.  The Tribunal seems to have been greatly concerned with what was detriment under Section 4 Subsection 2, although it might be observed that dismissal surely would have sufficed.  But there is no mention of less favourable treatment save for that brief mention that we cited earlier.  Exactly what the less favourable treatment was regarded as and who was the comparator, if there was a comparator, that suggested that Mr Williams was less favourably treated never clearly emerges.   And it seems that the Tribunal resolutely refused to accept, although they do not in terms say why, Mrs Lewis’ evidence that the request made by Mrs Cowell that the kitchen staff should speak English when Mrs Cowell was with them was what one might call a one off occasion, a request just made for that busy Easter Sunday.  They thought that that would not have been rational.  A slightly odd comment because it suggests that one should necessarily expect nothing but a rational decision at all times, even in a busy working kitchen on a hectic day.

14.	There are some disquieting features, therefore, about the decision below.  They might possibly be capable of being explained away but they are not before us and we need say nothing more about them.  There was no appeal against the limitation imposed on this appeal at the preliminary hearing and, as we have observed earlier, we must therefore accept it.  And, accepting it, we cannot over-emphasise that we are dealing only with an extremely limited point.  We are unable to find that the decision below was vitiated in the single way which the preliminary hearing entitles us to examine.  Miss Monaghan has added that this is not a case where the Tribunal’s decision can be said to fail the Meek v City of Birmingham test.  We accept that is right.  The reasons certainly are sufficient to make it clear to the losing side why they had lost and, indeed, to the winners why they had won, nor can it be described as an inherently perverse decision.  

15.	We are not, of course, able, as an Employment Appeal Tribunal limited to points of law, to afford to Mr Cowell some form of action replay.  Limiting ourselves to the one topic that is left to us, we cannot see any error of law; we cannot see the decision below to have been vitiated in the only way which we are required to examine it and, accordingly, we must dismiss the appeal.