Ali v Bass Taverns Ltd (t/a Bass Taverns North West) [1993] UKEAT 680_92_0707

EAT
Ali v Bass Taverns Ltd (t/a Bass Taverns North West)
[1993] UKEAT 680_92_0707 · 1993-07-07
MR JUSTICE TUCKEY : On 1st and 2nd June 1992 the Industrial Tribunal in Liverpool heard a complaint by Mr Ali that he had been unlawfully discriminated against by prospective employers, Bass Taverns Ltd, who were the Respondents to the complaint. The unanimous decision of the Tribunal was that he had not been unlawfully discriminated against and he appeals against that decision.Essentially Mr Ali made two complaints of discrimination. The first arose out of his application to be the Assistant Manager at The Boundary Public House, Pilch Lane, Liverpool. He was short-listed and as part of the selection process he went to The Boundary Hotel where he met Mr Grimes who was then the Manager. He worked on a trial shift at that pub and was told by Mr Grimes that he was happy with his work and that he could do well. The Tribunal's findings of fact record that:
"However Mr Grimes went on to say to Mr Ali that "the Boundary" was a "difficult" house. Subsequent evidence to the Tribunal would seem to indicate that that was a masterpiece of understatement... Although Mr Grimes had praised Mr Ali's efforts he did also express some reservations as to whether Mr Ali might, because of his colour, be suitable for this particular place because it was "difficult"."
That gives rise to the first complaint of discrimination.The story however continues because Mr Grimes suggested to the brewery that Mr Ali should be put on a course for relief management. In due course he worked for a trial period at another public house belonging to the Respondents, the Cock & Bottle. Again he appeared to aquit himself well and he was made an offer of employment as the assistant manager at that pub but the offer was subject to (among other things) undergoing a medical examination. He did undergo such an examination on 23 September 1991 and the report which has been put before us by Mr Halson who appears for the Appellant today, said among other things that "He needs to restrict alcohol use" and that "Liver tests should be repeated in one year". The report concluded that he was fit for the job of assistant licensed house manager.That report was considered by Mr Cox whose responsibility it was to decide upon the applicant's employment and on 14 October he saw Mr Ali and told him that following the result of the blood test they were withdrawing the offer which had been made to him. Mr Cox's statement had been based, so the Tribunal found, on the medical report and the comments on it to which we have already referred.Mr Ali's second complaint was that it should be inferred that the offer of employment had been withdrawn because of his race and not because of the medical report.The Tribunal, having directed themselves very fully as to the relevant statutory provisions and the right approach to the questions they had to ask, reached the conclusion that he had not been discriminated against in either of the two ways alleged. So far as the remark by Mr Grimes was concerned, they reminded themselves of the statutory provisions which make an employer vicariously liable for the acts of an employee and the defence which is available to them if they can show that they took such steps as were reasonably practicable to prevent the employee from doing the act complained of.The Tribunal further said:
"By bringing the question of Mr Ali's colour into the question of unsuitability for the post of a particular location, as he seems to have done, Mr Grimes might be seen to be in breach of the Act. We accept that his own motivation was not, in fact, racial but was rather a question of concern as to how the applicant might be treated by the customers and, indeed as to his personal safety."
The reference to motivation was at one time the subject of criticism but Mr Halson properly withdrew any criticism of the Tribunal on that ground because they had reminded themselves in clear terms earlier in the decision that motivation was not the point. However, on this point they then said:
"We take the view that the respondent does, in this case, have a defence ... in that it has a known Equal Opportunities Policy."
Mr Halson in his helpful Skeleton Argument has set out detailed considerations and questions which it is said a Tribunal considering such a defence should ask themselves and he argues that the Tribunal here could not have applied the proper test in reaching the conclusion which they did. He is however unable to point to anything in the terms of the Decision itself to support that contention but relies simply on the brevity of the conclusion to which we have referred to say that they must not have appreciated the task which they had to perform.We are unable to accept that submission. The Tribunal clearly set out the relevant statutory provisions and there is nothing to suggest that they erred in the way that they reached their conclusion. On analysis the essential complaint seems to be that it was wrong for the Tribunal to conclude that the Respondents had established the defence merely because they had an equal opportunities. This however was a finding of fact and unless it can be shown be perverse it is not one with which this Appeal Tribunal can interfere. We are quite unable to say that this finding was arguably perverse.The second ground of appeal is that it was perverse for the Tribunal to have concluded that the decision to withdraw the offer was not made because of Mr Ali's race. The Tribunal say:
"We consider it fair to say that Mr Cox was genuinely interested in obtaining his services as an employee. Had he been faced with a similar medical report in respect of a white employee, we do not consider his reactions would have been any different"
and on that basis they decline to infer that the withdrawal of the offer was racially motivated. It is submitted that this was a perverse conclusion. We are unable to accept that submission. The mere fact that Mr Ali was assessed fit in the sense that he was not unfit for the job as assistant licensed house manager is not in our view to the point here. This medical report highlighted a problem with Mr Ali which was highly relevant to someone who was to embark upon a career of managing a public house. The Respondents' conclusion that that was something which disqualified him for such employment is readily understandable.The question for the Tribunal was simply whether one could infer racial discrimination from the withdrawal of the offer in those circumstances. They concluded that they could not and that the complaint should be dismissed. We can see nothing which is arguably perverse in that conclusion. Accordingly this appeal, if pursued to a full hearing, would in our judgment be bound to fail and it should therefore be dismissed at this preliminary stage which is what we do.