Nicholas v Kirton & Anor [1993] UKEAT 95_92_0812

EAT

Nicholas v Kirton & Anor

[1993] UKEAT 95_92_0812 · 1993-12-08

MR JUSTICE TUCKER : This is an employee's appeal against a decision of the Industrial Tribunal sitting at London (South) on 17 and 18 December 1991 that the Appellant's claim of racial discrimination was not made out and was dismissed.

The Appellant, Mr Thomas Nicholas, was employed by the 2nd Respondents, the Financial Times as an in house courier. The 1st Respondent, Mr B Kirton, was the supervisor of the courier department. The Appellant's employment commenced on 7 January 1991. There was a probationary period of three months, which should have ended on 7 April. All being well the Appellant expected to be appointed to the permanent staff at the end of that period. The evidence before the Tribunal was that shortly before 7 April Mr Kirton told the Appellant that he was recommending him for a permanent appointment. But before that recommendation was put into effect, Mr Kirton decided to extend the Appellant's probation for a further three month period taking him to 7 July. Within that extended period, and while therefore the Appellant was still on probation, he was on 30 May dismissed by Mr Kirton from his employment.

The reason given for this was that despite previous warnings the Appellant had been late for work on six occasions and that he had taken extended lunch breaks. The Appellant was dissatisfied with this decision. He felt, and still feels that he had been discriminated against on racial grounds because he is black. The Appellant put in an application to an Industrial Tribunal in which he complained of unlawful racial discrimination contrary to the Race Relations Act 1976. He set out full details of his complaint. Although he referred to Mr Kirton's decision to extend his probation period and alleged that he was the only person against whom Mr Kirton decided to take disciplinary action, it was not expressly alleged that the decision to extend the probation period was itself a matter of racial discrimination. In our opinion anyone reading that document could be forgiven for believing that that allegation referred only to the final dismissal. The Respondents certainly did not address this issue in their Notice of Appearance.

When the matter came before the Industrial Tribunal the Appellant was represented by Counsel, Ms Grewal, Respondents by Counsel, Mr Sendall. The same two Counsel have appeared before us and we are indebted to them both for their succinct and cogent submissions. The Tribunal were not warned by Ms Grewal in opening that the question of racial discrimination was an issue in relation to the extension and this was not a matter which was put to Mr Kirton in cross-examination so as to give him an opportunity of dealing with it. It was referred to on two occasions by the Appellant when he gave evidence but it was only raised as a submission to the Tribunal during Ms Grewal's final address.

The reason we have dealt at some length with this matter is because it now forms the basis of this appeal. Ms Grewal's complaint is that the Industrial Tribunal failed to make a finding of fact on this issue which it is now said was central to the case. Ms Grewal says that a question of law is involved because, she submits, an employer cannot rely on a particular factor to justify disparative treatment (ie that the Appellant was on probation whereas other employees were not) if the factor itself was brought about by racial discrimination. No doubt this is a correct proposition of law but the question for us to determine is whether the Tribunal made or failed to make findings of fact which were relevant to this proposition.

For the reasons we have set out it does not surprise us that the Industrial Tribunal did not focus its attention on this point as closely as it might have done. In particular it would have been difficult, if not impossible for the Tribunal to make precise findings about how other employees were treated during their probation when there was little or no evidence upon the point. But there is, in our opinion sufficient in the Tribunal's Reasons, to indicate that they did have this problem in mind though not perhaps at the forefront of their mind. Thus in paragraph 2 of their Reasons the Tribunal say:

"He [the Applicant] was told by Mr Kirton at the end of his probation period on 7 April 1991 that he was to be appointed to the permanent staff but that subsequently there were complaints about his timekeeping which led Mr Kirton not to confirm his appointment to the permanent staff but to extend his probation until 7 July 1991."

Ms Grewal says this is not a finding of fact but a summary of the Appellant's complaints.

Again, towards the end of paragraph 4 the Tribunal say this:

"In the end having decided and informed the applicant that he would appoint the applicant to the permanent staff he had decided that the applicant's probation should be extended because of the applicant's poor timekeeping."

Again it is said that this is not a finding of fact. But there is a third passage in the middle of paragraph 7 (typed as paragraph 6 but should be 7) which makes us quite sure what the Tribunal are finding or intending to express as their finding. They say this:

"We are satisfied from the evidence which was called before us that the applicant was late on a number of occasions and was also on a number of occasions late back from lunch and that these occasions were sufficiently serious for Mr Kirton to take note of them and to take steps to correct the applicant's poor timekeeping. We also accept that timekeeping is of importance because of the necessity of the second respondents work being distributed promptly and that Mr Kirton was quite within his rights as head of the courier department in taking action against the applicant."

It is clear to us that in any conflict between the evidence of the Appellant and the evidence of Mr Kirton, the Tribunal preferred the evidence of Mr Kirton and in the final passage to which we have referred, it is equally clear to us that the Tribunal are finding whether implicitly or expressly that the reason Mr Kirton extended the probation period was, as they say, "to correct the applicant's poor timekeeping". In other words the Tribunal found that the reason for the extension was not racially based but was due to the Appellant's lateness.

We accept that there was evidence for the Tribunal to examine that other employees were treated differently to the Appellant but whether that was on account of their difference in race was another matter. The Tribunal found that it was not. There was insufficient evidence before the Tribunal for a direct comparison to be made as between like and like so as to lead to the necessary inference that the difference in treatment was made on racial grounds.

It is not open to us to review the evidence or to conduct a rehearing. The Industrial Tribunal is the fact finding Tribunal. We can only interfere with their decision if it is demonstrated that the Tribunal made a finding of fact which no reasonable Tribunal could make ie that they acted perversely or if it is shown that they went wrong in law. Neither of those things occurred here. Accordingly this appeal must be dismissed.