Appeal No. EAT/1369/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MR D CHADWICK
MR N D WILLIS

MR D WILLIAMS	APPELLANT

PROVEND SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR ANDREW GUMBITI-ZIMUTO
(of Counsel)
Instructed by:
Commission for Racial Equality
Elliott House
10/12 Allington Street
London SW1E 5EH	

JUDGE J McMULLEN QC

1	This is an appeal against the Decision of the London South Tribunal, with Extended Reasons sent to parties on 1 October 2001.  The Tribunal was constituted as Ms Carol Taylor Chairman, Ms J Kettrick and Mr D Ramakrishnan, a Tribunal highly experienced in trying race discrimination claims.  The Extended Reasons were contained in fifty seven paragraphs in the Decision of nineteen pages which, if we may say so, deal with exemplary care with all of the issues raised.  

2	The Respondent company supplies and operates snack beverages and food machines throughout the UK.  The Applicant starting working for the Respondent as a Sales Executive in May 1994 and reported to Ms Fletcher, Divisional Sales Manager.  Mr Harvey is the Divisional General Manager for the division in which the Applicant worked, known as ‘Bankside’ in S. London.  The Applicant is of British origin and is black.  

3	The Applicant presented a complaint to the Tribunal in 1999 of unlawful discrimination and unauthorised deduction of wages.  It was heard in 2000, and a settlement was reached by the parties in the middle of it and no admissions were made.  The Chairman of that Tribunal urged the parties to have regard to the continuing working relationship between them and to take such steps as were necessary to work together constructively in the future.  The settlement included a promise by the Respondent to pay the Applicant another £1000 a year to repay the deductions made from his salary, in respect to damage to his company car, and that he should receive a sum of £8,500 relating to back pay.  

4	Consistent with the invocation by that first Tribunal, Mr Harvey was tasked with the responsibility of meeting the Applicant and sorting out the details.  The matter was left for a little while so that everybody could settle back into work.  In due course, a number of issues arose which required to be dealt with.  There were disputes which the Tribunal regarded as background matters which it took into account, and upon which it made decisions.  The disputes concerned: the driving by the Applicant of the company vehicle without water, causing engine failure and substantial damage; the sales relationship with Morleys of Brixton; matters arising in a meeting held on 13 April 2000 between Mr Harvey and the Applicant; the training of the Applicant; matters arising at a meeting between the two of them on 17 April 2000; a complaint about the Applicant’s visit to a client of the Respondent; matters arising at a meeting on 25 April 2000; matters arising at a similar meeting between the Applicant and Ms Fletcher on 27 April and 10 May 2000.  A grievance was raised on 14 June 2000.  

5	The Tribunal carefully identified the issues at the outset of its hearing as follows: 

1) whether by its conduct at the meetings, the Respondent unlawfully discriminated against the Applicant by way of victimisation on the ground of his race, when the Applicant’s grievance was rejected;

2) whether the Respondent unlawfully discriminated against the Applicant by way of victimisation on the ground of his race when the Applicant’s grievance was rejected;

3) whether the Respondent unlawfully discriminated against the Applicant on the ground of his race by the conduct of the meeting held on 25 April;

4) whether the phrase used during that meeting amounted to a detriment.  

The Tribunal found that the Respondent did not unlawfully discriminate against the Applicant on racial grounds, nor did it unlawfully victimise him.  

6	The appeal focuses upon matters arising at the meeting on 25 April 2000 and that is the sole basis upon which we make our judgment.  At that meeting, as the Tribunal recorded in paragraph 27:
“It was Mr Harvey’s opinion that the Applicant was making no effort to resolve matters during their meeting.  In frustration at their lack of progress in arriving at a resolution Mr Harvey told the Applicant to “…..play the white man”, by which he meant that the Applicant should play fair.  He realised immediately that it was an inappropriate phrase to use in front of the Applicant and he immediately apologised.  The Applicant protested at the use of the phrase and made a display of writing it down.  He did not understand what it meant but thought Mr Harvey was being sarcastic.  Mr Harvey told him that it was an old expression that meant to play fair and he offered to apologise in writing.  This offer was not taken up by the Applicant and the meeting moved on.  Mr Harvey did not record his apology in the minutes of the meeting because he believed that the Applicant, who had made no further reference to his comments had accepted his apology.”

7	Broadly speaking, the Tribunal accepted the evidence of Mr Harvey about the way in which the matters we have listed above were tackled within the business and rejected claims of unlawful discrimination and victimisation, said to arise out of the way in which he had so tackled them.  

8	The Tribunal was astute to consider the statute and the relevant authorities and, in particular, section 4 of the Race Relations Act 1976, which provides:
“(2)    It is unlawful for a person, in the case of a person employed by him to discriminate against that employee –
……
        (c) by dismissing him, or subjecting him to any other detriment.”
The Tribunal correctly directed itself to the relevant authorities, namely King –v- Great Britain-China Centre [1991] IRLR 513, Glasgow City Council –v- Zafar[1998] IRLR 36, Burton –v- De Vere Hotels [1996] IRLR 596, De Souza –v- The Automobile Association [1986] ICR 514, and Driskel –v- Peninsula Business Ltd and others [2000] IRLR 151.  In particular, it extracted the essence of De Souza as follows:
“Racially to insult an employee is not enough to prove a detriment even if the employee was distressed by the insult.  Before an employee can be said to have been subjected to some ‘other detriment’ the tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.” 

It is accepted by Mr Zimuto that the Tribunal has accurately condensed the judgment of May LJ at 522 F – H in De Souza in that passage.  

9	The Tribunal also considered written submissions presented by the parties before it made its decision.  Focusing on the allegation of the remark made at the meeting, the Tribunal said this at paragraph 52:
“The Applicant submitted that the ‘…..play the white man’ remark evidenced discrimination.  Whilst we accept Mr Harvey’s evidence that he did not intend it as such, the Tribunal was satisfied that Mr Harvey’s remark was a racial insult.  We therefore considered whether it constituted a ‘detriment’ within the meaning of section 4(2)(c) Race Relations Act 1976.  The Applicant gave evidence that he did not agree that Mr Harvey had apologised immediately after he made the remark.  (We bear in mind that the Applicant appeared to have instructed his solicitors that Mr Harvey had done so.)  The Tribunal preferred the evidence of Mr Harvey and found that he had apologised because he recognised the inappropriateness of the remark.  The Tribunal found no evidence that the Applicant believed that the remark had put him under a disadvantage in the circumstances in which he had to work after that meeting.  We therefore find that this racial insult was not a ‘detriment’ for the purpose of the Applicant’s complaint of direct discrimination.  In arriving at this finding we noted that the Applicant did not mention the incident to his line manager at the meeting which was held a few days later.  We also bore in mind that Mr Harvey had been careful to note the issues discussed and whether any issues remained outstanding at the close of the meeting.  The Tribunal considers that  had there been an issue to be resolved or taken further either Mr Harvey would have made a note after the meeting or the Applicant would have raised it with Ms Fletcher.”

It is on that passage Mr Zimuto’s fire is targeted.  

10	The first submission is that the Tribunal was wrong to consider the impact on the Applicant of the language used.  Since it is accepted that the Tribunal has accurately distilled the judgment of the Court of Appeal, the scope of the attack is, necessarily, narrow.  It is submitted that a detriment is proved within the statute without reference to the subjective effect on the victim of the detriment, that is that there is an objective standard, as indicated by the use of the word ‘reasonable’.  That, of course is true, but the use of the further phrase ‘in the circumstances in which he had thereafter worked’ in the judgment of May LJ at 522H indicates that the precise circumstances of the individual detriment must be examined with care.  Here, the Tribunal has made a number of findings about the impact of the phrase upon the Applicant.  First it is to be noted that, although the Applicant simply regarded the remark as ‘sarcastic’, the Tribunal went much further and found in his favour that it was a racial insult.  That is because the Tribunal did, and the Applicant did not, appreciate what those words mean.  

11	Secondly, the Applicant did not raise complaints about it and, indeed, the Tribunal noted that he had instructed his solicitor that Mr Harvey had apologised.  That must indicate a diminution in the impact; for someone to apologise immediately after making an insult clearly diminishes the impact on the receiver.  It also indicated Mr Harvey’s attitude to the remark which was that it was quite inappropriate.  In these circumstances, the Tribunal drew the conclusion that the Applicant did not regard the remark as putting him under a disadvantage in the circumstances in which he had thereafter to work.   

12	It was submitted that the application of De Souza to the circumstances of this case ought to have yielded the result that simply to issue a racial insult is per se an act of direct discrimination, consisting of a detriment.  We reject that submission.  Certainly, the Court of Appeal in De Souza indicated a refinement of the statutory approach by requiring an examination of the circumstances in which a person continues to work for the employer after an insult has been made. So it is appropriate for the Tribunal, as it did here, to consider the immediate consequences of the remark being made in evaluating whether a detriment has, in fact, occurred.  In the passage which we have cited it is clear the Tribunal carried out that evaluation and came to the conclusion that there was not a detriment because of the response of the Applicant to the remark being made.  It did not put him at a disadvantage within the workplace.  

13	It was submitted to us that the approach in De Souza is a little out of date. Both Burton –v- De Vere Hotels and Porcelli –v- Strathclyde Regional Council [1985] ICR 564 were cited to us but, as Mr Zimuto put it, their circumstances and facts were very different to the circumstances and facts in the instant case.  His submission does have some force because the language of May LJ almost 20 years ago is not the language which would be used by a judge today.  For example, at 522 he said:
“Racially to insult a coloured employee is not enough by itself, even if that insult caused him or her distress”

Nevertheless, we consider that the judgment of the Court of Appeal was correctly applied by the Employment Tribunal upon which it was binding, and is binding upon us, and no error can be detected in its application in this case.  We therefore reject the first ground of the appeal.

14	As to the second, it is contended that the Tribunal Decision was perverse in that it took into account irrelevant factors and failed to have regard to the evidence of the Applicant about his considering the remark to be sarcastic.  The relevant factors were matters occurring after the racial insult.  Since, as we have indicated, De Souza requires an examination of the circumstances, these can include events before and after. Indeed, they generally do in any claim where inferences are sought as to whether an act has occurred on racial grounds. A similar approach, it seems to us, informs an analysis of whether a detriment has occurred, and therefore, this part of the argument simply does not get off the ground.  But even if it did, it is misconceived because the Tribunal itself recorded, in the passage we have cited at paragraph 27 of its Reasons, both the Applicant’s response and his consideration of it being sarcastic.  Therefore, it seems to us that allegations of perversity do not have any substance.  

15	The third ground of the appeal mirrors the first, in that it is submitted that for a person in a supervisory position to use a racial insult, in the course of a meeting to resolve outstanding difficulties, is a detriment in itself.  We have already given our view about the application of De Souza in the circumstances of this case from which it is clear that something more than a simple racial insult is required, that is examination of the circumstances and thus we reject the contention that in the circumstances found by the Tribunal in this case, the offensive remark constituted a detriment per se.  

16	We are grateful to Mr Zimuto for his careful argument presented orally and succinctly stated in his written submission to us today.  The appeal is dismissed.