Sterling & Anor v Henlys Ltd [1991] UKEAT 7_91_1511

EAT
Sterling & Anor v Henlys Ltd
[1991] UKEAT 7_91_1511 · 1991-11-15
MR JUSTICE KNOX : This is an Appeal from a decision of the Industrial Tribunal sitting at Bedford on 13 September 1990 on an application by Mr Noel Sterling and Mr Anthony Williams v. Henlys Limited their employer, whereby complaints by Messrs Sterling and Williams of unlawful sex discrimination and unlawful racial discrimination by their employers were held to be not well founded and dismissed. The decision was sent to the parties on 21 November 1990.The factual background was that both the Applicants and a lady named Miss Cooke were employed by Henlys as what are called valeters, colloquially - car cleaners. Messrs Sterling and Williams are black British males of West Indian origin. Miss Cooke obviously is female and she is also white.The Industrial Tribunal found facts regarding the background to the important events in this case. The background is of relatively trivial importance because the Industrial Tribunal found as a fact which is plainly binding on this Tribunal, that the reason for the dismissal that occurred on 4 January 1990 of Messrs Sterling and Williams was their not attending for work on that morning so that some of the evidence that had been given about earlier matters for example the rather indifferent record, it would appear, of all three employees from the time-keeping point of view, was of subsidiary importance. What matters in relation to the findings of the Industrial Tribunal is what happened on 4 January and we have succinct findings of fact in the Decision on that score.The personnel involved consisted besides the three employees whom I have already mentioned, of the garage manager a Mr Shipton - he had heard complaints shortly before 4 January about the conduct of the valeters, and a Mr Pickering, who was the immediate supervisor under Mr Shipton of the car valeters. On 4 January none of the three valeters was in at the official start time of 8.30am and at that stage the Industrial Tribunal finds that Mr Shipton was annoyed to hear this and told Mr Pickering that all the valeters not in were to be dismissed. That of course would include not only Messrs Sterling and Williams but Miss Cooke as well.We then come to the critical findings of fact. In paragraph 12 of the decision we find this:
"12.However, shortly after the start time, Miss Cooke rang up to explain the reason for her non-attendance. She was unable to get through to Mr Pickering or Mr Shipton immediately. The reason she gave was that she had had an unpleasant incident involving Mr Sterling on the previous day, which had resulted in Mr Sterling threatening her. Because of this, she felt she could not, and indeed would not, come in.
13.It was reported to Mr Shipton that Miss Cooke had telephoned in. He told Mr Pickering to tell her to come in. Mr Pickering spoke to Miss Cooke and told her to come in, and that the other valeters (that is to say Mr Sterling and Mr Williams, who had not come in) were to be dismissed. Miss Cooke came in for duty."What happened the rest of the day was that Mr Pickering went to see Mr Williams, told him he was dismissed and then went to see Mr Sterling and he got the same information. Messrs Sterling and Williams were concerned about this and they went and saw Mr Shipton. There was a row and they left the premises, hence their claim for unlawful sex discrimination and unlawful racial discrimination.There is no doubt, and the Industrial Tribunal at the end of their decision pointed this out, that the employers' conduct in effecting these dismissals left a great deal to be desired and had either Mr Sterling or Mr Williams had the necessary two years service there is little doubt but that an unfair dismissal claim by whichever had that service, would have been likely to succeed. If this had been just a case of unfair dismissal the likelihood is the complaint would have succeeded but that is not the basis on which this application is brought. The application was brought under both the Race Relations Act and the Sex Discrimination Act in respect of discriminatory conduct and it is clear enough from IT(1) of each of the two Appellants (they are in identical terms, mutatis mutandis), that what was complained of was that the black employees were dismissed and the male employees were dismissed whereas Miss Cooke who was neither black nor male was not. So the question arose whether there was an explanation for that apparent discrimination and that is the way the Industrial Tribunal approached the matter because they said:
"The difference in treatment coupled with the difference in race and sex would entitle the tribunal to draw an inference of unlawful racial and sex discrimination in the absence of a satisfactory explanation."
They then looked to see whether in their judgment, there was an explanation and they found as a fact that the explanation was there in the shape of Miss Cooke's telephoning in to say that she was not coming to work, which was the reason why she was told that if she did not come in to work she would lose her job.That is a finding of fact which is binding on this Tribunal. What has been submitted to us on behalf of the Appellants are three points. First of all it is submitted that there was a warning given to Miss Cooke which was not given to Mr Williams or Mr Sterling and that that constitutes an element of discrimination. True it is, that Miss Cooke received an intimation of what would happen if she did not come in, but the factual explanation which was accepted by the Industrial Tribunal, is that she rang to say she was not coming whereas her fellow employees Messrs Williams and Sterling did not and in those circumstances, although just as there is a difference in treatment in the fact that Miss Cooke was not dismissed whereas Messrs Williams and Sterling were, so we find that there was a difference in treatment in relation to the warning but the reason is just as valid by way of explanation for there not being discrimination in relation to the warning, as it is in relation to the dismissal, namely that Miss Cooke volunteered what she was going to do or not do whereas her fellow employees did not. We therefore see no greater reason for finding that there was unlawful discrimination in relation to the warning than the Industrial Tribunal found in relation to the dismissals.Secondly, it was submitted that the Industrial Tribunal gave undue importance to the events that occurred before 4 January. We doubt whether that is factually correct because it is based on a single sentence in paragraph 6 of their decision which reads:

"..The dispute is really over the degree of lateness and absences."

That in its context looks to us to be concerned with that aspect of the matter which was that there was evidence about the lateness of Messrs Williams and Sterling and of Miss Cooke. For what it is worth the Industrial Tribunal came to the conclusion that from the documents her absence record did not appear to be as bad as Meesrs Sterling and Williams. This is plainly not a matter which carried weight with the Industrial Tribunal because they said in terms that the dismissal was because of what happend on the morning of 4 January and we therefore do not see a factual justification for this criticism but even were that not so and were it true that the Industrial Tribunal did attach considerable importance to the events before 4 January, that would be a matter for judgment and not a matter of law. Tribunals have the onerous task of deciding issues of fact in relation to these matters and had the Industrial Tribunal decided that the facts before 4 January were of substantial importance it would be very difficult for this Tribunal to say they were not entitled to do so, but we are not satisfied that they did.Third and last, it is argued that the Industrial Tribunal applied a reason in finding that there was no discrimination which was not used by the Respondents. "Used", we understood from Mr Davis' argument, in the sense that it was not a matter that was relied upon in argument before the Industrial Tribunal. It is virtually impossible for an Appeal to succeed on what amounts to a claim of perversity without there being Notes of Evidence which of course are not present here at this stage, but more seriously the issues between the parties were very clear in that the IT(1)s of each of the two Appellants claimed sex discrimination and race discrimination in relation to their dismissal on 4 January and it would necessarily be a matter that would need close investigation by the Industrial Tribunal as to exactly what did happen on 4 January. The fact that the Notices of Appearance do not specifically mention the telephone call from Miss Cooke is not, in our view, something which disentitles the Industrial Tribunal from examining the circumstances in which the Appellants were dismissed and attaching such importance as the facts justified on their finding that there was this critical telephone call from Miss Cooke. The proceedings before Industrial Tribunals are not governed by pleadings with the same degree of strictness as are ordinary civil litigation proceedings and in any event, even on a purely pleading basis, this is a case where there was an accusation of racial and sexual discrimination which the Respondents were entitled to deny and challenge on such material as came to their hands so that even on a pleading basis we are not satisfied that the criticism is warranted.We can see no prospect of this Appeal succeeding. The Industrial Tribunal looked at the facts and found facts which seem to us conclusive in favour of the decision that they gave and in those circumstance we dismiss this Appeal at this stage.