Appeal No. EAT/1227/02/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 December 2002

Before
HIS HONOURABLE MR JUSTICE ELIAS
MS J DRAKE
MR B V FITZGERALD MBE

ROSELODGE LTD	APPELLANT

MR M ABUZAHARA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR M WEST
(Advocacy Systems Manager)
Instructed by:
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester
M3 5PB	
For the Respondent		

MR JUSTICE ELIAS

1.	This is a Preliminary Hearing in which the Appellant is seeking to challenge the decision of the Newcastle Industrial Tribunal that they had discriminated against the Respondent on grounds of race contrary to Section 1(1)(a) of the Race Relation Act 1976.  

2.	The background briefly is as follows.  The Applicant was from Palestine and at all material time he was an asylum seeker.  He applied for a job with the Respondent as a night porter and was appointed to that position at the hostel being run by the Respondents who run hostels for asylum seekers.  He was appointed to that position before the hostel opened.  His hours of work were 8 pm to 8 am four days a week and another night porter covered for four other nights.  He attended work on 28 January 2002 and met the temporary manager of the hostel, Miss Bleasdale.  She showed him round the premises and told him the essential nature of the job.

3.	When giving evidence to the Tribunal, Miss Bleasdale said that when she checked his details, the Applicant stated that he was from Palestine and that he had asked her in an aggressive manner whether she had a problem with that.  She assured him, she said, that she did not.  She also gave evidence that there had been a discussion between the Applicant and herself concerning the time the front of the hostel was to be locked.  The Applicant suggested to her that it should be locked at 11 pm whereas in fact it was 11.30 pm.  She says the Applicant asked how residents gained access after the doors were locked and was told that they used the intercom and were then let in.  She alleges that the Applicant said that the residents should be in their rooms by 10 pm and remained there until 8 am or would be locked out.  He is alleged to have said that that would make his job easier and when it was put to him where should these residents sleep, he said in the park.

4.	The Applicant gave a very different version of events.  He denies saying that the residents should be locked in their rooms.  He himself had been a resident in an asylum seekers’ hostel.  He submitted that, on the contrary, it was Miss Bleasdale who had made remarks that he found outrageous.  He said that she had told him she did not like Iranian asylum seekers and that Asians were in the United Kingdom in general, because they were not educated and were poor.

5.	The Applicant worked shifts on 29, 30 and 31 January 2002 without further incident.  He was then due to start a shift on 5 February.  Miss Bleasdale gave evidence that she had asked the Applicant to contact her prior to attending work for a new shift to confirm that he would be attending.  She says she did not have any communication from him on that occasion.  She tried to get him on his mobile phone but there was no response.  When the Applicant attended the shift on 5 February 2002, he found the other night porter, Mr Basham, also present and Mr Basham told him that he was no longer working for Roselodge.  The Applicant tried to telephone Miss Bleasdale but was unable to do so.  He talked to somebody else who told him that it was a policy of the Respondent not to give asylum seekers work.  Subsequently, he went to see a Mrs Edwards, who was more senior in the hierarchy.  Mrs Edwards recounted what she had been told by Miss Bleasdale and effectively told him that he was being dismissed because he had the wrong attitude.  He wished to imprison residents in the hostel.  The Applicant said that he tried to explain the nature of his conversation with Miss Bleasdale but was not allowed to by Mrs Edwards.  

6.	So the Appellant was saying that effectively he was not suitable for the job because of some views that he was expressing.  It is pertinent to note that Mr Basham was also dismissed subsequently.  He had been reported to the Appellants for expressing racial comments.  It took some weeks in his case for the relevant disciplinary action to be implemented and for his dismissal to take effect.  Indeed it appears that he walked out of the disciplinary meeting and resigned.

7.	The Tribunal set out the law.  There is no challenge to their direction on that score but they then came to a decision that the Applicant had indeed been discriminated on grounds of race.  They did not accept that the Applicant had said to Miss Bleasdale that the residents should be locked into their room for most of the evening and the night.  Furthermore, they clearly put some weight on the fact that Miss Bleasdale had given a number of different reasons at different stages as to why she required the Applicant and other night porters to phone through to her to confirm that they would be attending.  They also concluded that she had made racial comments to the Applicant about other racial groups as she alleged, and that they found that she had arranged for the Applicant to be dismissed on spurious grounds.  Taking all these matters into account (and one of these factors was what they perceived to be the different treatment meted out to Mr Basham in relation to his dismissal) they concluded that Miss Bleasdale had invented the grounds for dismissal, and that the true reason was that she did not wish to have a Palestinian working for her.

8.	Accordingly, this is a case where there was a fundamental conflict of evidence and the Tribunal came down decisively on one side.  We have heard from Mr West today a number of reasons why he submits this matter should go the full appeal.  Three of them that at some extent inter related.  He said that the hearing before the Tribunal went in a rather different direction than had initially been envisaged.  Firstly, the Originating Application specified that the Applicant believed that he had been discriminated against because he was an asylum seeker and that that constituted race discrimination.  Mr West submitted that in those circumstances the Tribunal ought not to have permitted the Applicant to have changed his case from one of racial grounds of being an asylum seeker to the case that was in fact run before the Tribunal of racial grounds on the basis that he was a Palestinian.  He says that this effectively changes the nature of a claim.  True it is that alleging discrimination on grounds of being asylum seeker may well constitute indirect discrimination but that is a different matter from the allegation of direct discrimination the Tribunal permitted him to run.  He said that the Appellants had not had an opportunity to oppose this amendment of the grounds.  
 
9.	Secondly, he said that the evidence given by the Applicant in the witness box was quite at odds with a written statement of evidence that he had produced but which was not apparently put before the Tribunal.  He accepted that the Applicant was cross-examined along the lines of what he was saying to the Tribunal did not reflect his original written statement.  The original written statement apparently indicates that the Applicant at that stage was saying that he had made comments of the kind referred to by Miss Bleasdale but that they were only expressed as his opinions and they were not to be treated as anything more than that.

10.	Thirdly, Mr West referred us to certain notes of the meeting between the Applicant and Mrs Edwards.  That is the meeting which led to his dismissal which were taken by a friend of the Applicant who was also present at that meeting.  These notes were provided to the Appellants’ representative at a relatively early stage, it seems, at the Tribunal hearing.  It is not necessary to go into them in any detail.  Suffice it to say that although they are, it seems to us, somewhat cryptic about a remark made by the Applicant, one construction of these notes is that the Applicant was indeed confirming what Mr West submits he was saying in his witness statement.  That is, that yes, he had expressed views along the lines which Miss Bleasdale gave in her evidence but that they were just simply in the context of expressing an opinion.

11.	Mr West says that in all these ways there was unfairness meted out to the Appellant.  We do not accept that.  Firstly, as to the alleged change in the basis of the claim, we note that the Notice of Appearance before the Tribunal stated that “it is denied that the Applicant was discriminated against on grounds of race as claimed or at all”, and the Notice of Appearance goes on to say that he was dismissed on grounds of general unsuitability which was unrelated to his race.  We can quite see why a Tribunal, given the somewhat vague way in which the case was put by the claimant, and given the basic denial of any discrimination on grounds of race by the Appellant, would want to clarify precisely what the nature of the case was.
 
12.	But there is no objection at the time by the Appellants’ legal representative, nor do we accept that they would have been prejudiced in the kind of evidence that was given to the Tribunal.  Their case was that the Applicant had been dismissed because he was unsuitable.  That was their case whatever the nature of the allegation, whether it was direct or indirect discrimination.  Plainly there is a difference in the legal requirements of indirect discrimination as against direct discrimination but it seems to us that the clarification of the grounds - and we think that is probably what it was rather than any formal amendment - did not in any way change the basic evidence that would be given by the Appellants nor the fundamental nature of the cross-examination of the Respondent.

13.	As to the question of evidence we can, if we may say so, understand that the Appellants feel genuinely aggrieved.  They think that the Tribunal has got the wrong end of the stick here.  They believed that the Tribunal has wrongly accepted the evidence of the Applicant and that in truth they ought not to have done so and should have accepted the reasons put forward by Miss Bleasdale in this case.  They are no doubt upset at that decision.  But we cannot interfere with the decision on the grounds that the Tribunal has accepted certain evidence and rejected other evidence even if it does, on the face of it, seems somewhat surprising.  The fact is that the Tribunal had evidence before them from the Applicant and from Miss Bleasdale and they accepted the Applicant’s evidence.  They did so notwithstanding the fact that he was cross examined on the basis that what he was saying to the Tribunal was not consistent with an earlier statement.  Similarly, if we turn to the notes of the meeting, it seems to us that the notes really do little more than confirm that the Applicant may have said at some point to Miss Bleasdale that his attitude was that the residents should be locked in their rooms at night.

14.	It must be borne in mind that the notes of this meeting were provided, as we say, earlier in the day.  It was open to the legal representative to seek an adjournment if necessary shortly to read those notes or indeed to look at them in the short adjournment and to ask for further re-examination in the light of them.  None of those steps were taken.  In these circumstances, although we can understand some of the concerns of the Appellant we do not think it is right that we should interfere with the decision of the Tribunal.  We do not accept that these notes even if they had been the subject of cross-examination, would have been likely to change the general thrust of the evidence.  The Respondent did indeed have the chance to look at them and to decide whether to make any use of them.

15.	There were one or two other grounds raised in the grounds of appeal.  One was that the Tribunal had erred in drawing any adverse inference against the Appellant on the grounds that Mr Basham was treated differently in the way his disciplinary matter was handled to that of the Applicant.  It was pointed out by Mr West that Mr Basham had by the time of his dismissal been employed for a longer period at that in any event the nature of the complaint against him was a different one.

16.	The difficulty with this ground of attack is that the Tribunal was plainly aware of the argument being advanced by the Appellant on this matter.  They refer to it in terms in paragraph 16 when they recount the submissions of the Appellant.  They say this in the context of putting the Appellant’s case:

“There was no comparison between the dismissal of the applicant, who was dismissed because he was unsuitable for the position and Mr Basham was dismissed for racist comments.”

17.	So, the point was in their minds but they felt that the difference in treatment was a relevant factor.  I put it like that because it clearly is not a crucial factor for a finding of race discrimination but it is fair to say, as Mr West points out, that it was a factor that they took into account when assessing the veracity of the evidence of the Applicant and Miss Bleasdale.

18.	There was also a ground of appeal that there had been some misunderstanding of Mr Basham’s role but we do not think that is sustainable.  In any event it does not seem to us to be very material ultimately to the conclusion that the Tribunal reached.  So, for these reasons, notwithstanding the courteous and cogent way in which Mr West sought to persuade that this matter should go to appeal, we have come to the conclusion that in truth this case turned on the Tribunal’s assessment of the witnesses in the light of the material before them.  They reached a decision which the Appellants do not like and no doubt feel strongly about but we do not think that it is a matter that warrants a full hearing.