Appeal No. UKEATPA/0356/09/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 2009

Before
HIS HONOUR JUDGE McMULLEN QC 
(SITTING ALONE)

MR T O’NEILL	APPELLANT

METRONET RAIL BVC LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

	APPEARANCES

For the Appellant	MR A ELESINNLA
(of Counsel)
Instructed by:
Messrs MTG Solicitors
Warley Chambers
2nd Floor 
Warley Road
Hayes
Middlesex  UB4 0PU	

SUMMARY
RACE DISCRIMINATION
Direct

JURISDICTIONAL POINTS
Extension of time: reasonably practicable
2002 Act and pre-action requirements

The Claimant was employed for less than one year. On the substance of his case, the Employment Tribunal found race played no part in his treatment by the employer. It addressed the law correctly and on the facts made a permissible application of the law. Even if he succeeded on the procedural and time points, he could not overcome these findings. There is no error in an Employment Tribunal finding the employer behaved unfairly or unreasonably yet race played no part: Zafar.

HIS HONOUR JUDGE McMULLEN QC
1.	This case has two aspects: procedural and substantive.  They are based upon allegations of race discrimination.  I will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Stratford East over four days under the chairmanship of Employment Judge Burgher, registered with reserved reasons on 10 February 2009.  The Claimant represented himself.  Today he has the distinct advantage to be represented by Mr Ayoade Elesinnla of Counsel.  The Respondent was represented by Ms Watson.  Today, observing only, is Ms Spicer, who is the instructing solicitor, who also conducted one of the procedural hearings in the case.  She has not been asked to contribute anything today.

3.	The Claimant claimed race discrimination during his short career at the Respondent.  The Respondent denied that what was ultimately a dismissal was on grounds of race but asserted it was on the grounds of the Claimant’s conduct.

The issues
4.	The essential issues in the case had been the subject of two procedural hearings, the first conducted by Employment Judge Duncan on 12 November 2007, when the race discrimination issues were set out.  Then on 15 August 2008 an application by the Respondent to strike out the claims was dealt with by Employment Judge Haynes, sitting alone, and the applications were rejected.  Essentially, the Judge decided that the issues, the subject of the applications, should properly be determined at a full hearing, as had been previously ordered by Employment Judge Duncan, so no order was made.

5.	The issues previously set out by Employment Judge Duncan were inherited by Employment Judge Haynes and were set out, with slight additions, by the Employment Tribunal at a full hearing.  They are these:

“2. Whether the Claimant was discriminated against by the Respondent on grounds of his race, contrary to Section 1(1) and Section 4(2) of the race Relation Act 1976 in the following respects.  The Claimant advanced the following allegations in this regard.
2.1 Being refused permission to go on a company induction course by Ian Medhurst, his Line Manager on 5 June 2006.
2.2 Being refused permission to go on an Area B Track Awareness course by Mr Medhurst.
2.3 On or about 3rd January 2007 being refused a transfer request by Mr Medhurst and Mr David White.
2.4 Being refused permission to go on a welding course by Mr Medhurst on 6th January 2007.
2.5 Mr Abdul Charifi reported false information to Mr David White that the Claimant had called him a Muslim terrorist.  During the Claimant’s evidence, this particular allegation was withdrawn.
2.6 On 7th February 2007 Mr Abdul Charifi reported false information to Mr David White that the Claimant stated that Muslim women dress like sluts.  The Claimant alleged that Mr Medhurst influenced My Charifi to make this statement that he alleged was untrue.
2.7 Being dismissed by Ms Fiona McDonald on 29th march 2007.  The Claimant claims that the allegations against him were contrived and instigated by Mr Medhurst and Mr White.
3. In respect of background evidence, the Tribunal identified that the following allegations for consideration:
3.1 Failure by the Respondent to deal with the Claimant’s complaint about Mr Paul Owen putting greasy boots on his toolbox on 8th August 2006.
3.2 Standing the Claimant down from work after returning from one-day sick leave on or about 1st November 2006.
3.3 The Claimant failing a forklift driving course in November 2006.
3.4 The alleged delay by the Respondent to investigate the Claimant’s complaint made on 14 November 2006 about a dangerous working incident involving Mr Abdul Charifi.  A connected matter was whether the Claimant was excluded from the subsequent investigation relating to the incident that took place on 14 November 2006.”

6.	The Claimant self-identified as Black British and claimed that his treatment was on the grounds of race.  The issues above divide themselves into a number of categories.  There are three periods of time: per-employment, the dismissal on 29 March, and, as will become relevant in the course of this judgment, post-dismissal, which are principally the treatment of the Claimant’s appeal against his dismissal and a grievance subsequently entered.

7.	To that analysis can be added the Tribunal’s separation of those issues falling for consideration directly under the statute and the background material, which I have set out above.  These correspond specifically to the two types of material identified by Mummery J, President, in Qureshi v Victoria University of Manchester [2001] ICR 863 and approved by the Court of Appeal in Anya v The University of Oxford [2001] ICR 847.

The Judgment
8.	The Tribunal rejected the Claimant’s claims on jurisdictional grounds as being out of time and as not complying with the 2002 Employment Act regime, which provides two escape routes: extending the time in certain circumstances where an internal procedure is reasonably believed to be going on.  However, it also made the substantive finding that if it were wrong about the jurisdiction it would not uphold the Claimant’s claim of race discrimination.

The Appeal
9.	The Claimant appealed.  In Haritaki v SEDA EATPA0006/08, at paragraphs 1 to 13, I set out my approach to applications such as this under rule 3.  It should be read with this judgment.

10.	On the sift of this Notice of Appeal in accordance with the Practice Direction, paragraph 9, Underhill J, President, exercised his power under rule 3(7).  He determined that the case had no reasonable prospect of success.  I need say no more about that Notice of Appeal for the Claimant, on being given the opportunity to present a fresh Notice of Appeal, did so.  This was drafted by Mrs A Sheikh of MTG Solicitors and is a more sophisticated document.  It attracted a more sophisticated response from the President, who said this:

1.	1 see no error of law. The Tribunal directed itself appropriately in accordance with Keeble: Ali makes it clear that which of the various phrases used in the case‑law is used is of no real significance provided that the Tribunal has considered the statutory test of justice and equity. It is clear from para. 18 of the Reasons that the Tribunal did so here.
2.	The appeal could only be brought into the "continuing act" equation if there was an allegation that not only the dismissal but the conducting of the appeal was racially motivated. There appears to have been none. The cases cited are concerned with wholly different points.
3.	There is no “fragmented approach” here of the kind disapproved in Qureshi: the Tribunal was entitled and indeed obliged to consider each incident separately.
4.	The proposition here pleaded is the opposite to that established in Bahl and many other cases: the fact that the employers' behaviour may have been unreasonable is not necessarily enough to justify a presumption of discrimination.  In any event the Tribunal found a non-discriminatory explanation for the shortcomings in the dismissal process: see para. 8.32.
5.	1 see no inconsistency in this paragraph; but in any event the inconsistency alleged does not impugn the Tribunal's reasoning on the discrimination issue.
6.	By finding that the Claimant was not dismissed on racial grounds the Tribunal was necessarily finding that he would have been dismissed if he were white: the two questions are two sides of the same coin – see per Lord Nicholls in Shamoon.”

11.	This is a detailed response to the legal points put in the fresh Notice of Appeal.  The Claimant was dissatisfied with that response and then exercised his right to a hearing.

12.	I deal with the matter afresh on more material that was available to the President since I have now a skeleton argument and oral submissions from Counsel.

The legislation
13.	The relevant provisions of the Race Relations Act 1976 in respect of the substantive issue are not in dispute.  These are 
“1. Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purpose of any provision of this Act if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
…

  4. … 
(2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -
(a) in the terms of employment which he affords him: or
(b) in the way he affords him access to opportunities for promotion. transfer or training, or to any other benefits. facilities or services, or by refusing or deliberately omitting to afford him access to them; or
(c) by dismissing him, or subjecting him to any other detriment

54A.  Burden of proof: employment tribunals

(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -
(a) has committed such an act of discrimination …
… the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.”

14.	The Tribunal directed itself to Igen Ltd v Wong [2005] IRLR 258 relating to the burden of proof.  It also considered whether or not to look at comparators and the characteristics of hypothetical comparators following Shamoon v The Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL.  

15.	As to the adjectival aspects of the case, there is a three-month time limit for the bringing of complaints of race discrimination under section 68.  But there is an extension where an act extending over a period of time is treated as being done at the end of that, (see section 68(7)(b)), and there is a discretion to extend time if in all the circumstances of the case the Tribunal considers that it is just inequitable to do so (see section 68(6)).

16.	Further procedural provisions are made by the 2002 Act, which gives an extension of time limits both for claiming against a decision to dismiss, for which a grievance need not be presented, and making claims, such as here for race discrimination, where a grievance does need to be presented.  The extension occurs in the following circumstances under the EADR 2004 Regulation 15: 

“15 Extension of time limits

(1) Where a complaint is presented to an employment tribunal under a jurisdiction listed in Schedule 3 or 4 and-
(a) either of the dismissal and disciplinary procedures is the applicable statutory procedure
and the circumstances specified in paragraph (2) apply; or
(b) either of the grievance procedures is the applicable statutory procedure and the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

(2) The circumstances referred to in paragraph (1)(a) are that the employee presents a complaint to the tribunal after the expiry of the normal time limit for presenting the complaint but had reasonable grounds for believing, when that time limit expired, that a dismissal or disciplinary procedure, whether statutory or otherwise (including an appropriate procedure for the purposes of regulation 5(2)), was being followed in respect of matters that consisted of or included the substance of the tribunal complaint.

(3) The circumstances referred to in paragraph (1)(b) are that the employee presents a complaint to the tribunal - 
(a) within the normal time limit for presenting the complaint but in circumstances in which section 32(2) or (3) of the 2002 Act does not permit him to do so; or
(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 2 in relation to his grievance within that normal time limit.

(4) …

(5) In this regulation "the normal time limit" means-
(a) subject to sub-paragraph (b), the period within which a complaint under the relevant jurisdiction must be presented if there is to be no need for the tribunal, in order to be entitled to consider it to- 
(i) exercise any discretion, or
(ii) make any determination as to whether it is required to consider the complaint. that the tribunal would have to exercise or make in order to consider a complaint presented outside that period; and
(b) in relation to claims brought under the Equal Pay Act 1970, the period ending on the date on or before which proceedings must be instituted in accordance with section 2(4) of that Act.”

The facts
17.	The Employment Tribunal did not explain that the Respondent maintained a part of the London Underground network before it went into administration and subsequently under the control of the Mayor through Transport for London.  The Claimant was employed on 30 May 2006 as a train maintainer.  His manager was Ian Medhurst.  The Claimant was subject to disciplinary proceedings.  There were informal and formal investigations conducted by Mr Munro.  The Claimant was ultimately dismissed on 29 March 2007, just ahead, of course, of the one year necessary for him if he were to complain of unfair dismissal: Employment Rights Act 1996 s 108(1).  The Claimant complained of his dismissal by way of an appeal, which was dismissed on 20 April 2007.  On 1 June 2007 the Claimant raised a grievance in which for the first time he alleged that his treatment by the Respondent was on account of his race.  That grievance was dismissed.

18.	In a letter on 15 June 2007 the last word by the Respondent is that the matter is closed.  Dissatisfied with that the Claimant on 26 June 2007 asked for the issues to be placed in the company’s statutory individual grievance procedure and he asked for a meeting to be arranged as soon as possible.  There is no evidence of a reply to this.  The date is important.  26 June 2007 was within three months of the dismissal on 29 March 2007 so if advantage were to be taken of Regulation 15, for the purposes of extending the period for claiming that he was involved in a dismissal, then it would be arguably within time.  The Claimant also presented his grievance which, on the analysis which Mr Elesinnla has accepted, was out of time.

19.	The last event in the sequence of per-employment criticisms the Claimant makes was 7 February 2007.  If the dismissal is part of a continuing act extending throughout the per-employment matters, then 29 March would be the last date.  The Employment Tribunal makes a reference to regulation 6(1), but it is agreed by Mr Elesinnla, correctly, that this is a reference to regulation 6(5), that is, the question has to be whether there was a reasonable belief that there was some procedure ongoing dealing with the dismissal.

20.	As to this time limit point, I would have agreed with Mr Elesinnla that further steps should be taken and I was minded to refer this matter back to the Employment Tribunal for it to consider specifically whether it had evidence in relation to the state of mind of the Claimant as at the close of play on 28 June 2007.  This is the correct date (see my judgment in Reploy v Shaw [2009] ICR 1159). If the Claimant believes reasonably that there was a relevant procedure then he automatically has an extension of time, so that life could be breathed into his claim form, which was submitted on 17 July 2007.  I have taken a broad approach to the meaning of “a procedure” in Eagles v Rugged Systems Ltd UKEAT/0018/09 and a number of other cases.  What is required is analysis of what happened after 26 June 2007.  On its face, the Claimant is invoking a procedure from 1 June.  Part of that is to do with his allegation that his dismissal was racially motivated.  It seems to me therefore that either a reference under the Burns/Barke procedure would be appropriate, or some other mode, such as sending this to a preliminary hearing

21.	The second matter relates to the presentation of a grievance.  Mr Elesinnla accepts here that although there is a mistake by the Tribunal and the period seems to end in February and not January 2007 this does not help him unless there is linkage to the dismissal and to the appeal.  Mr Elesinnla argues that an appeal is part of a dismissal, relying upon West Midlands Cooperative Society Ltd v Tipton [1986] IRLR 112 (HL) per Lord Bridge at paragraph 18.  I would be prepared to say, for the purposes of a hearing, that it is reasonably arguable that matters arising in the course of an appeal are capable of affecting consideration of a decision to dismiss for the purposes of race discrimination.  In other words, since reasons given in an appeal reflect on the reasonableness of a decision to dismiss for the purposes of unfair dismissal, it is reasonably arguable that they also affect claims under the Race Relations Act and therefore could be part of the dismissal.  This exercise might look like a house of cards. The Claimant has to establish a continuing act not only from 7 February 2007 but up to and including the dismissal of the appeal.  Nevertheless, I would be minded to send that matter to a hearing.

22.	However, the real issue in the case is the substantive issue, and the Employment Tribunal’s findings on this are important.  In a conscientious and carefully drafted judgment, the Employment Tribunal dismissed the race claims.  The conclusions separately for what might be regarded as the race discrimination claim are set out in short paragraphs.  The Tribunal says this:
“In any event in view of our findings of fact the Tribunal do not find the Claimant has established that he was subject to less favourable treatment on grounds of his race.  The Claimant has not established less favourable treatment in respect of a number of his allegations.  In respect of the Claimant’s main allegations concerned allegations of poor treatment and motivation of dismissal at the hands of Mr Medhurst we ding that any such facts made out were not on racial grounds.  Mr Medhurst was initially supportive and relationships were generally acceptable during the Claimant’s probationary period.  However, following the IRF incident with Mr Charifi the Claimant resented the way it was dealt with and became difficult.  It was this difficulty, not his race that led to his dismissal.
There were shortcomings in the investigatory and dismissal process identified above.  We have found that these were not on grounds of the Claimant’s race but due to an untested assumption that the allegations against the Claimant were well founded due to Mr Charifi breaking down in tears when relaying his complaints and the fact that the Claimant had less than 12 months’ service.  This may have been unreasonable and unfair but we are satisfied that the Claimant’s race played no part whatsoever in this process.”

23.	On the basis of this, Mr Elesinnla submits that the Employment Tribunal has failed to consider whether it should draw inferences (see, for example, Bahl v Law Society [2003] IRLR 640, and, in particular, from the seemingly atypical conduct of the Respondent of the kind identified by Elias J, President, in Brown v the London Borough of Croydon UKEAT/0672/05 at paragraph 25).  

24.	In his written skeleton but not argued at all is a complaint that the Tribunal failed to give proper reasons and was not Meek compliant; (see Meek v The City of Birmingham District Council [1987] IRLR 250).  I agree with him that it is, as he put it, necessary to concentrate on the meat of this case, which is the substantive finding by the Employment Tribunal.  But I have come to the conclusion, that, notwithstanding my sympathy with the procedural point, that cannot survive the finding against the Claimant on race discrimination.

25.	Although the Tribunal’s conclusions are short it notes inconsistencies and unfairness in the procedure adopted by the Respondent, principally through Mr Munro.  But this is precisely the kind of case where it is not logical to move from a condemnation of an employer for conducting a poor procedure to a finding that it discriminated on the grounds of race.  The leading authority for this, of course, is City of Glasgow v Zafar [1998] ICR 120 HL.  Bearing those shortcomings in mind the Tribunal nevertheless came firmly to the view on a number of occasions throughout paragraph 8 that the steps taken by the Respondent were not on account of the Claimant’s race.  It did do, having addressed itself correctly to the burden of proof applying the guidelines in Igen vWong.

26.	The solution to the Claimant’s problem has been given by the Employment Tribunal.  It has very fairly dealt with both the procedural and the substantive aspects, and, of course, he must succeed on the latter.  I approve the way in which the Tribunal has decided this matter, not simply as a matter of procedure.  It was, after all, along the tracks laid for it by the earlier CMDs.  In the four-day hearing it has given careful attention to the substantive issues, holding that the Claimant was not discriminated against on the grounds of his race.

27.	The judgment was Meek-compliant.  The cottage industry for barristers, identified by Sedley LJ in English v Emery [2003] IRLR 710 CA has now become globalised in this court and others.  This judgment does not fail the test. As it happens, my opinion under rule 3 is the same as that given twice by the President. The Claimant can see why he lost this case.  It was that the Respondent’s actions, while being imperfect, were not discriminatory on the grounds of race. An important distinction which has to be borne in mind throughout all of this is the Claimant, not having 12 months’ service, was unable to bring a claim for unfair dismissal, which might have resulted in a different outcome.  

28.	I thank Mr Elesinnla for his exemplary submissions today.  The application is dismissed, and, effectively, the appeal will be dismissed. Permission to appeal refused [reasons not transcribed].