Shakespeare v Hall & Tawse Western Ltd [1993] UKEAT 634_92_1805

EAT
Shakespeare v Hall & Tawse Western Ltd
[1993] UKEAT 634_92_1805 · 1993-05-18
MR JUSTICE WOOD (PRESIDENT): By an Originating Application received on the 12th November 1990 Mr Shakespeare complained that he had suffered racial discrimination and harassment at the hands of his employers Hall & Tawse Western Limited. He had only been employed by them for some five months or more and had not therefore qualified under the Employment Protection (Consolidation) Act 1978 for his statutory remedies.The sole issue therefore before the Tribunal was not as to unfair dismissal but as to racial discrimination and the remedies under the Race Relations Act 1976 .The matter was heard on the 14th February 1992 by an Industrial Tribunal sitting at Birmingham. The decision, which was a reserved decision, was promulgated on 24th March 1992. The Tribunal rejected his allegations and his application failed. He now appeals to this Appeal Tribunal.We are hearing, what we term a preliminary hearing, so as to see whether, after full investigation of the decision and the documents and the submissions which are made to us, there is a point of law which, if erroneous, would therefore give right to an appeal to this Tribunal.It is important to realise and to accept that an appeal to this Tribunal lies, and lies only, under Section 136 of the 1978 Act . The relevant words read:
"An Appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of . . . an industrial tribunal . . ."
Unless there is an error of law, a faulty decision on the basis of law, we are powerless to help or to deal with the matter at all. The Tribunal, as has been said on a number of occasions, are the judges of fact. They are the industrial jury. We must, therefore, abide by the findings of fact made by the Industrial Tribunal. Thus, we turn to the decision here and we must distinguish between findings of fact and errors of the principles of law to be applied.The case for the Applicant, Mr Shakespeare, was conducted by a legal executive and the case for the respondent Company by a Mr Stephens of the Building Employers Confederation.Mr Shakespeare's allegations fell into two parts and looking at his Originating Application that is made quite clear. The first part of his complaint refers to verbal abuse. He alleges that this continued over the period of those five or seven months when he was employed. He did complain about the abuse but, he says, that did not really get him anywhere. The second part of his complaint is that he was dismissed on the 28th September 1990 to make way for a white man and, therefore, he suffered racial discrimination on that basis.Those are the two parts of his complaint. Although the Originating Application does not give the date, time and place of each allegation of verbal abuse, those details were made clear at the hearing before the Industrial Tribunal because they deal with them specifically in the course of their finding.We have been assisted today by the submissions of Mr Adamson, who is a layman, but was representing Mr Shakespeare before us. We have also had the advantage of hearing from Mr Shakespeare himself who has largely reiterated and repeated the case, which must have been his case, in front of the Industrial Tribunal.The Tribunal start by setting out the issues and they then turn in paragraph 4, 5 and 6 to the questions and the issues of law, and the directions of law. There is no criticism of the direction which the Tribunal gave to itself nor indeed could there be. We have read it through, as we have read all the documentation, and that direction was entirely accurate and correct.They then turn to the issues of verbal abuse and to the issue of dismissal to replace with a white man. On the question of the latter, for the moment, the Tribunal find that probably the real nub of the dissatisfaction of Mr Shakespeare was that although Mr Jordan was due to take the post, Mr Jordan did not arrive on the relevant date to take it up, nor did he arrive for a fortnight. Mr Shakespeare may well have thought, therefore, that this was another instance of the Company rigging the situation so as to prejudice his position as a black. It is quite clear, however, that Mr Jordan was going on holiday, he had been working at another site, that had not been appreciated and therefore his absence for that fortnight is explained by the fact that he was on holiday.

(k) , make a very clear finding:

"We find as a fact that this black applicant was not dismissed to make way for a white person. The applicant was dismissed because it is the company's commercial policy to move persons who have acquired employment legislation rights on other sites where there are workers of less service whose services dispensed with. That is a commercial decision made and in no way can be construed in this case as racially motivated."
That, therefore, is a finding of fact. That latter part of Mr Shakespeare's complaint is really a finding of fact. There is no error of law and we can not help upon that issue.It seemed to us, however, that the nub and the real depth of feeling in Mr Shakespeare was the way he had been abused and dealt with by Mr Whitehead over the period of those few months prior to his dismissal and the question of Mr Jordan. That came across to us as the nub of his real complaint. We repeat, that it is for the Industrial Tribunal to say whom it believes; what it believes; what it rejects. It is not for us, our views are wholly immaterial, they are the judges of fact. They saw and heard the witnesses, it is their function to make their minds up and it is clear, that at the end of paragraph 6 of the decision, they make a clear declaration, they say:
"ALL IN ALL we prefer and accept the evidence of the respondent and its witnesses to that of the applicant and this preference is reflected in our findings of fact in the following paragraphs."
A number of the allegations, which Mr Shakespeare made, are particularly delicate and abhorrent and have obviously caused him revulsion. The Tribunal must have been able to hear Mr Shakespeare, as we did. They also had the advantage, which we do not have, of hearing him cross-examined and of hearing the other witnesses, and of hearing Mr Shakespeare's representative cross-examining the other witnesses. All those were matters which they were entitled to take into account, and indeed, had to take into account, that was their duty so to do. The problem for Mr Shakespeare before us, is that the only jurisdiction which we have, which is on a point of law, we can not interfere with a clear finding of fact. If a tribunal disbelieve, or believe, accept or reject a fact, that is a matter for them and there is nothing that we can do to assist. So we went through, and have been through, and again, having risen we have been through it together in my room, each of the allegations of fact which were made; the complaints about abuse; about being given dirty work; about what was said, and the particularly unpleasant remarks. It is right that on one occasion the Foreman, Mr Whitehead, apologised, which indicates that something was said and there was something for which an apology was due. We have read it all, we have looked at it and there is nothing that we can find which indicates an error of law in the findings of fact. So that we must not substitute any view that we have, or might have, it is not for us. Those facts were found by the Tribunal they were perfectly entitled to reach them. They did reject his evidence and when one turns to paragraph 8 they say this:
"We having found the primary facts turn to the tests laid down and which we have referred to in reason 5 of this decision. Firstly as to the racial remarks, abuse and harassment alleged by the applicant, we do not accept the applicant's evidence and therefore he has failed to shoulder the burden placed upon him. As to his replacement by a Mr Jordan a white person, there is here, of course, a more complex situation. There is a difference in race and discrimination between a black and a white person and that is why this tribunal has so carefully gone into the reasons for the applicant's displacement by a white person. At the end of our deliberations we are entirely satisfied that this employer having been called upon to give an explanation has given one that is altogether adequate, patently satisfactory and true and therefore we can draw no inferences that the discrimination was on racial grounds."
It follows that their conclusions are based on fact. There is no error of law and I am afraid we are quite unable to assist. This appeal will have to be dismissed.