Mason v Ford Motor Co Ltd [1993] UKEAT 221_91_1406

EAT
Mason v Ford Motor Co Ltd
[1993] UKEAT 221_91_1406 · 1993-06-14
MR JUSTICE WOOD (PRESIDENT): The Applicant before the Industrial Tribunal, who is the Appellant before us, Mr Donald Everton Mason, complained to an Industrial Tribunal of racial discrimination under Section 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976 . That is direct discrimination and subsection (c) deals with "any other detriment". The act of discrimination of which he complained was the issuing to him by his employers, the Ford Motor Co Ltd, of a written warning. That was in connection with, and we use the word advisedly, the existence of the suspicions of smoking a supply of cannabis at their premises in Southampton.The issue before us is whether or not this Tribunal in finding against Mr Mason erred in law. The way in which the case has been ably put by Mr Panton, is that in essence this was a perverse decision and that the facts were so strongly in favour of an inference that the inference should have been drawn of racial discrimination.The Applicant has been working for Fords at Southampton since 1977. He was a tyre fitter and at this particular factory they make Ford Transit Vans. We can shorten the description of his work by saying there were no complaints about it, he was an excellent workman. Apparently his father had worked there and his brother also worked there, although his brother's employment terminated in disgrace as a result of the smoking of cannabis. This Applicant worked well, he worked various shifts, and indeed it may very well be that the action taken in this case was taken in an attempt to divert him from any possible influence in the future from those who were involved in smoking, or the supply, of cannabis.There is a small room at the factory known as the "glove compartment crib". It was described to the Tribunal variously as a hovel or a pigsty. It was unnecessary as a room in which members of the staff should congregate, because there were ample canteens and rest rooms for the use of the staff, and the Tribunal so found.In the early part of 1990 an anonymous printed letter was received by management indicating that someone, supposed to be a Mr Mick Leach, was supplying cannabis on the night shift. Naturally the management were extremely anxious and concerned. They employed some 3,300 at this factory, with a very substantial part of that being in the production areas, and they were not prepared to tolerate the use of alcohol or drugs, indeed the safety of staff might very well have been at issue. Moreover, the management knew, as we have now been told during this appellate hearing, that there were no windows in this little room. There was only one door, and sometimes when people were inside the door was bolted from the inside, so that the management were justifiably suspicious of what was going on.As a result they appointed a Mr Bennett, from the security staff, to keep an eye on the particular room. It may or may not have been very easy so to do, but it is clear that Mr Bennett's function was not very adequately or efficiently carried out with the result that one of the management team Mr Webb had reason to doubt the accuracy of what Mr Bennett said subsequently about two dates namely, the 24th and 25th April 1990. Be that as it may Mr Bennett reported that on those two days he had seen two people on the night shift, one white and one coloured, a West Indian, leave the crib in the early hours of morning. Then another time they entered it and he believed that it was the same West Indian on each occasion.There followed a number of observations and on some six occasions numerous cigarette ends of a rolled variety, some of which had cardboard tubes inserted in them, were found. Ultimately, in a report of the 6th July 1990, Mr Bennett indicated that two people of West Indian origin had been seen entering and leaving the crib and one of those two was identified as Mr Mason and the other as a Mr Hudson. Then subsequently, a Mr Travers, also a security guard, found two cigarette ends which appeared to contain an unusual substance, and that was on Monday 2nd July 1990.The matter came to a head on the 2nd July and although there was no evidence on the documentation before us, it was common ground that in the substantial bundle of documents before the Industrial Tribunal was a report from an analyst that these unusual substances, were in fact, drugs.In the early hours of the 17th July 1990 security guards went to the crib and found four men there a Mr Leach, who was not an employee, and three employees. One was the Applicant's brother, Mr Barry Mason, another was a Mr Crossley and they were examined. They were dealt with and it is convenient at this juncture to indicate how those various people were dealt with. First of all Mr Barry Mason, who denied having drugs, but eventually had some drugs found in his locker. He was dismissed. A Mr Sheath was dismissed; a Mr Hudson, who was here on that occasion on the 17th July, was dismissed. Mr Crossley was initially dismissed but he appealed and on appeal he had been re-instated because he had denied that he had any drugs in his possession; he had received a written warning. Mr Leach, who was not employed by Fords, was nevertheless dismissed by his employers for supplying drugs to Fords. So that was how all those other men were dealt with; Mr Hudson of course was of West Indian origin, but the others as we understand it, were white.The factory was shut down for the annual shut-down, from the 20th July to the 13th August but when it was working once more, Mr Webb of the management, called together a meeting to investigate the situation concerning the Applicant. That investigation took place on the 22nd and 23rd August 1990. The Applicant was accompanied by his trade union representative, Mr Hall, and for the Ford Company were Mr Webb, Mr Gobie from the Personnel Department, and a Mr McDonald, who was taking notes. There was a detailed investigation stretching over a period of time. There were notes which were produced to the Industrial Tribunal. The Applicant denied that he was involved, he denied that he had been there on the nights of the 24th and 25th April, but he admitted that he had been there during the daytime on the 2nd July. There was a locker search and nothing was found. His locker was shared with two others but nothing was found during that search. The investigation was adjourned to the following morning. Further questions were put. Mr Bennett was questioned about the whole matter, and he was also cross-examined to know why he had followed the black man rather than the white man, but he gave an explanation about that. At the end no accusation was levelled against the Applicant but he was told that he would be suspended on basic pay. That then was the conclusion of the investigative procedure at the Company.Mr Webb thought he would be able to deal with the disciplinary hearing on Tuesday 28th August but in fact he was unable to do so and it was held by Mr Tudor. Mr Webb had formed the view and the end of the investigative process that Mr Bennett's evidence of the 24th and 25th April really should not be relied upon but he did not in fact tell Mr Tudor that. Thus on the 28th August the disciplinary meeting took place. Those present were as before, save that Mr Tudor took the place of Mr Webb, and it is right to say that the notes again were in front of the Industrial Tribunal and from the start Mr Tudor, who had presumably had seen some documents or a file or whatever is was, made it clear to the Applicant that his job was not at risk but that he wanted to know as much as possible about the activities of the others. At the end of that meeting Mr Tudor said he needed time to think and after a short adjournment, the Applicant and Mr Hall, went back into the room. Mr Tudor indicated that the past few days must have been very uncomfortable for the Applicant, and he sympathised with him, he told him at the same time there must be an indication that things that were not permissible had been taking place and that he found it difficult to believe that the Applicant knew nothing about what was going on. He gave him a written warning, said to be about his conduct, that written warning said in the second paragraph:
"While it was not established that you participated in the use f illegal drugs on Company premises, I had difficulty in believing that you were not aware of their use within the Glove Reclamation Crib during your regular visits to that part of the plant.
Accordingly, I wish to emphasise our very serious view of the use of possession of illegal drugs on the Company's premises: we view such behaviour as gross misconduct.I sincerely hope that you heed this warning and look after the good job which you have here at Ford.

A copy of this letter will be placed in your personal dossier."

That then concludes the findings of fact made by the Tribunal. We have, helpfully, been provided with an excellent set of Notes of Evidence from the learned Chairman and a number of matters become clearer from those Notes of Evidence. We bear in mind of course that it was the Industrial Tribunal who saw and heard the witnesses and were able to get a flavour of what had gone on and the relationship between everyone concerned.A number of matters come clearly through from a reading of those Notes of Evidence. First of all that the initial allegation, and what seemed to have been the main allegation at the start of the case, was that the Applicant was complaining that the action had been taken against him because of his brothers guilt.Secondly, that the Applicant had been advised throughout by his shop steward, Mr Hall, that he had been aware that he could appeal from the decision to award him a written warning, but having discussed it with his shop steward he thought he would leave it as it was.The third thing, that seems to us to be quite clearly to flow from the evidence, is that Mr Tudor was thought to be perfectly fair and that he had discussed the matter with the shop steward and he had felt that a warning would help the Applicant to keep away from the crib. So that it may very well be that this was a situation where Mr Tudor felt that he was doing what was best and in the best interests of this young man who had an excellent record behind him, an excellent future ahead of him, whose father had been working also for Mr Tudor and who Mr Tudor clearly wanted to keep as a valued member of the staff.Those being the facts there were a substantial number of criticisms of the way this matter had been handled and suggestions of facts by Mr Panton from which he said that the obvious inference was really one of racial discrimination. The two major factors he took before us on the appeal was first that the Applicant, when going to the original meeting of Mr Webb, the investigative meeting, had been escorted or accompanied by two members of the staff, foremen. The phrase used in the evidence is "accompanied" but he felt that that was unusual and unnecessary. The second is that there was a difference of treatment of the Applicant from the others involved.However, it is clear from a reading of the decision itself that there were a number of other matters which were raised and which the Industrial Tribunal, quite rightly, investigated and upon which it reached a conclusion. Before turning to each of those individual matters it is right that we should point out that the Tribunal did look at them individually, and in the round, because in paragraphs 45 and 46 of the decision they round off their reasons in the following way:
"When we came to consider these various points we find as a fact that the respondents in dealing with them have given us explanations which are in evidence which we accept as explaining the various matters which have been cited. For instance, with regard to the criticism of the search of the locker shared by Mr Wyeth and Mr Abraham, there was never at any time any suggestion that either of those 2 fellow employees were in any way involved in what had gone on at the crib. We cannot find when we examine the evidence anything there in those matters which would lead us to infer that the applicant had been singled out for special unfair treatment because of his race or colour.
Moreover, we noted that in regard to the written warning it appeared in evidence that the applicant was not the only employee to receive such a warning in regard to the crib. We were told and it was not challenged that another employee, a white man, had also received a written warning in similar circumstances to those of the applicant. It had not been established or alleged that that particular other employee had been involved in drug taking, but nonetheless he had been seen as a visitor on occasions to the crib.The unanimous decision of the Tribunal is that having considered carefully all the points made by both parties we do not find any evidence that the applicant has been discriminated against by the respondents within the provisions of the Race Relations Act 1976, and accordingly his complaint is dismissed."Looking at the various matters involved, first it is said that there were breaches of the Respondents' disciplinary procedure. That is set out and it seems to us that the procedure, as the Tribunal found, had not been transgressed in any material matter.Then, secondly, there is the question of the escort. Mr Webb had indicated on other occasions someone had been accompanied by a supervisor or foreman and the Tribunal deal with that at the end of paragraph 37 as follows:
"However, it appears to the members of this Tribunal that there was nothing unusual in asking for an employee to be accompanied to a manager's office in a plant like the one where these events took place. Moreover, neither the applicant nor those with him knew what the matter was about and he certainly had not been accused of a disciplinary offence at that stage. That did not come until 28 August by which time there had been 2 meetings of investigation and by then we have no doubt that the applicant knew full well what matters were in issue."
In fact the evidence also shows that Mr Gobie made it quite clear during the earlier two hearings what it was that was being looked into.The third or fourth points, depending how one is counting, is that there was insufficient training in equal opportunities policy. That is looked at and examined by the Tribunal, it is true the training is working gradually through the staff, and some had not yet been on a course since 1990. Nevertheless, the Tribunal found that there was no substance, or no point of complaint which was causative, in the breach of the policy.Then next they looked to see whether the reasons which the management had found for thinking that the Applicant knew more than he admitted he knew about the situation, was based on the fact that he was black, and they reject that. They also reject the criticism of the written warning because they felt that if there was some drug taking going on then the employee should have made his suspicions known to them. They also felt that there was nothing racial in the conclusions which were reached by management. The knowledge of the issues involved, they deal with that and they reject that.Finally, they deal compendiously, in paragraph 42, with a number of other minor criticisms which were all set out, as we have been able to see, in the careful note that the learned Chairman took of the submissions made by Mr Panton at the hearing before that Tribunal.Looking at this matter, therefore, in the round, it seems to us that whereas there may well be some criticisms available of the way in which Mr Bennett handled the matter and of the information available about those two dates in April, nevertheless, one is looking here to see whether there is an error of law in the way in which this Tribunal dealt with the matter. This was not a question of dismissal, this was an issue of whether or not a written warning should have been given. In our judgment, despite the able submissions of Mr Panton, we can find no reasons whatsoever for criticising the decision in law and there was ample evidence upon which the Tribunal could reach its decision. Its approach and its direction, or implied direction to itself is clearly correct and this appeal must be dismissed.