Smith v George Fisher Sales Ltd [1995] UKEAT 172_93_2701

EAT
Smith v George Fisher Sales Ltd
[1995] UKEAT 172_93_2701 · 1995-01-27
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting in Birmingham on four consecutive days in November and December 1992. The unanimous decision of the Tribunal was that the Appellant's complaint of racial discrimination was not well founded.The Tribunal made the following findings of fact.Mr Smith, the Appellant is a black man, born in England in 1957, of mixed Bangali/Jamaican parentage. He came to this country in 1986 and after other employment began work for the Respondents in July 1990. He was the foreman of the twilight shift in the steel tube cutting section of the Respondents' factory. He had charge of about seven men. He was responsible to the warehouse manager, Mr Hall, who was in turn responsible to Mr Malkin, the logistics director.Mr Malkin dismissed the Appellant, Mr Smith on 13 August 1991, after an investigation by Mr Malkin himself, while Mr Hall was on holiday, of complaints from men working under and alongside Mr Smith.Mr Hall regarded Mr Smith as an extremely good employee. He had received a letter of congratulation from Mr Malkin himself in September 1990. Mr Smith had been responsible for almost doubling the production of his shift. He described himself as a disciplinarian who sets high standards. He considered that there was resentment towards him from the beginning of his employment, particularly from two men who had hoped to be promoted.The Tribunal concluded that Mr Smith had become increasingly unpopular with his own men as he had clashed with them over disciplinary and other matters. He had curtailed over-long lunch breaks and excessive talking. Mr Smith had himself been the subject of disciplinary proceedings of a relatively minor nature on three occasions during his short employment and he had twice been reprimanded by Mr Hall for using strong language to his staff.That was the background to the events which occurred in August 1991. At the beginning of August, Mr Hall went away on holiday and a Mr Wijgerden deputised for him. On 1 August Mr Wijgerden received two complaints about the Appellant from men working under him. On receipt of the first, early in the day, Mr Wijgerden told Mr Smith not to repeat that conduct. It was a minor matter. In response Mr Smith accused Mr Wijgerden of "putting down the black man" and made other similar statements. Later the same day a group of five men complained to Mr Wijgerden about Mr Smith's language.Mr Wijgerden reported this matter to Mr Malkin and mentioned other complaints of which he had heard. He suggested to Mr Malkin that Mr Smith was not adopting the right approach to people. Mr Malkin saw the Appellant, Mr Smith on 5 August and advised him to change his attitude towards employees and to adopt a more open style of management. This was not a disciplinary meeting as was made clear at the time.The Appellant said in response that he was being criticised because of his colour and he thought he was being set up to be dismissed. He was concerned about his position and he arranged to go on holiday, at very short notice, until 13 August, when Mr Hall was due to return.During his absence, which began on 6 August, further complaints were made against him. The first comprised requests to the personnel manager, Mrs Walsh for the home address of two employees not to be disclosed to the Appellant. This was reported to the company secretary, who discussed it with Mr Malkin. Mr Malkin decided to investigate in view of the history of which he knew from Mr Wijgerden. He saw about 20 employees from both shifts in the cutting section and the warehouse.He then received a number of complaints against Mr Smith, mainly of intimidation relating to the loss of overtime, but also extending to physical threats to wives and families. He considered that some of the people he spoke to were in an upset emotional state and seemed to believe in the threats as serious. He heard that it was said that Mr Smith had boasted of being in prison for violence while in America. Mr Malkin spoke to a police officer who told him that Mr Smith had been involved in a violent incident, but did not give any details. It appears that there had been an incident in which Mr Smith had been stopped by the police for driving allegedly over the legal alcohol limit. Whether there had been a violent incident is not at all clear, and the Tribunal considered that the rumours which had resulted had probably been quite unfounded. In any event, those rumours existed.On 13 August, Mr Malkin held a disciplinary meeting at which Mr Smith attended. Mr Hall was present as Mr Smith's witness. Mr Malkin told Mr Smith that there were complaints against him of threats, but that the people concerned feared reprisals and had been promised confidentiality.The Appellant denied all the allegations and said that he thought the situation had been created by his shift in order to get rid of him because he made them work, stopped them talking and got a better performance out of his shift than any other. The Tribunal recorded that Mr Smith also claimed that he told Mr Malkin, either on 5 August or on the 13th, that the resentment against him was because of his racial origin and that he had been the object of racial abuse including racial graffiti in the toilet.Mr Malkin thought that the complaints were too many to have been invented and that if only a fraction of the allegations were true, the Appellant's employment must cease. He believed in the allegations of physical threats. Accordingly, he dismissed the Appellant for serious misconduct. The Tribunal record that at that time, Mr Smith did not know who had made the complaints against him or have an opportunity to face his accusers. He had repeatedly asked to be told from whom the complaints had emanated but this had been refused.The Appellant was entitled to an appeal. He elected an immediate appeal in front of Mr Doody, a director based mainly in London. Mr Doody heard the outline of the allegations from Mr Malkin. Then Mr Smith gave his account which was, as before, a complete denial and an allegation that the operators wanted him dismissed. Mr Doody, dissatisfied with the state of the evidence before him, called for written and signed statements to confirm Mr Malkin's report and adjourned the matter.Statements were then obtained by Mr Malkin, Mr Williams and Mr Wijgerden. Confidentiality was maintained. At the resumed hearing, only shortened versions of the statements were read out, although Mr Doody had the full statements before him. The Appellant was not provided with copies of either. Once again he was unable to identify or face his accusers. He continued to deny the complaints. The Tribunal record that Mr Doody did not recall any reference to graffiti at the appeal hearing, and he said that he did not see the case as a race problem.The full statement of Mr Wijgerden, which was before Mr Doody and, as we understand it, before the Tribunal, said that at the meeting on 1 August, Mr Smith had accused him of "putting down the black man" and had made other similar statements. Mr Wijgerden had continued:
"No matter how you spoke to him, or what you said, or how you put it, Munair (that is the Appellant) took it as being colour based"
. Mr Wijgerden had also said in his statement that "at the meeting on 5 August Mr Smith had said that being a black man and a supervisor made his job more difficult as white men did not like taking orders from black men". The Tribunal observed that Mr Doody had not seen the complainants himself but he had nonetheless dismissed the appeal.The Tribunal then examined the statements upon which the employers had relied at the appeal hearing. They observed that, apart from Mr Wijgerden's remarks, the statements contained nothing suggestive of a racial background. They summarised the contents to which it is not necessary to refer in detail. The allegations were of intimidation and threats of violence, some of which were described as "lurid and bizarre". Mr Wijgerden had said that all the 15 people who had been interviewed were terrified of being sacked and some had said that neither they nor their wives could sleep at night with worry. Mrs Neil, a secretary who had assisted in the taking of statements, referred to two men who were trembling and frightened as they made their statements.The Tribunal in setting out its reasons for its decision, began by observing that the complaint was one of direct racial discrimination under Section 1(1)(a) and Section 4(2)(b) and (c) of the Race Relations Act 1976. They observed that direct evidence of racial discrimination is seldom forthcoming in cases of this kind and that Tribunals have to examine the facts in detail and be ready to draw the proper inferences from them. They referred themselves to the case of King v Great Britain China Centre [1991] IRLR 513 and observed that, if there was discrimination and the possibility existed that it was on racial grounds, it would be legitimate for the Tribunal to infer that it was on racial grounds unless there was a good explanation. They reminded themselves of the standard of proof to which they must be satisfied.At paragraph 12 of the Tribunal's decision they turn to explain their reasoning and conclusions. It is necessary to read the last two paragraphs in full."12. There is no direct evidence that the complaints were racially inspired but there is obviously a possibility of racial prejudice in people who stirred up feeling and/or those who dealt with the complaints. However, there is ample alternative explanation of the events that took place in the resentment which Mr Smith's strict attitude caused, shown in his own account of the way his relations deteriorated with the individuals he took to task or reported to Mr Hall, quite apart from the threats which he was said to have made and which Mr Malkin acted on. He could have been warned and given the opportunity to change his ways, and more could have been done to explore some of the complaints. The records of overtime and dismissals and the reasons for them might have been studied and the threats of violence might have been seen in more perspective. Other complaints can be made about the way the proceedings were handled. Mr Malkin was the investigator of the complaints and both prosecutor and judge at the disciplinary hearing on the 15th, and also took the statements for the appeal. Mr Doody did not see the witnesses himself, although so much depended on whether they were to be believed, or hear anything of what the others interviewed had to say. However, the complaint before us is one of racial discrimination".We interpose to say, "as opposed to unfair dismissal". They continue:
"Would a white employee in Mr Smith's position have been treated differently? We answer just possibly, but not probably.
13. Complaint is made that Mr Malkin and Mr Doody gave no attention to the indications of possible racial motive for the complaints - the graffiti and Mr Smith's own complaints of racist attitudes towards him. These were matters for them as employers to take very seriously, both to stop racist behaviour in the workforce and take into account in considering the complaints against Mr Smith. However, they had no serious reason to think that the complaints were malicious inventions based on racial prejudice against Mr Smith and they were justified in treating them as they would have treated similar complaints against a white person. We do not find racial discrimination in the way the proceedings before the dismissal were handled".They found the complaint not to be well founded. As we have indicated, the claim in this case was based upon Section 1(1)(a) of the Race Relations Act, and the decision turns upon the Industrial Tribunal's answers to questions posed by Section 1(1)(a).Section 1(1)(a) provides:"(1) A person discriminates against another in any circumstances relevant for the the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; ...".The case concerned two interrelated allegations of racial discrimination. The first was the allegation that the Respondent management had discriminated against the Appellant in the procedures adopted leading to dismissal. The second was that the employers had failed to take seriously or adequately to investigate the Appellant's suggestion that all the complaints against him of intimidation and abuse of his authority, were trumped up because of racial prejudice against him. Plainly those two issues were related and the Tribunal had to consider both. The question is whether it has, in fact, done so and has concluded properly that neither allegation was soundly based.Mr De Mello for the Appellant, has submitted that their decision is perverse. He puts it in this way. The Tribunal in paragraph 12 of the decision has been critical of the disciplinary procedures followed by the Respondents. The defects as enumerated include a criticism of the depth of the investigation, the dual or triple role of Mr Malkin and Mr Doody's failure to hear the witnesses personally. Mr De Mello submits that that list of criticisms should be expanded to include a failure to allow the Appellant to see the statements of complaint, and to know the names of the persons complaining. He submits that these failures rendered the Appellant's task of defending himself very difficult. He submits that these defects of procedure, taken together, amount to a denial of natural justice, such that the employer's conclusion, namely that the Appellant was indeed guilty of intimidation and misconduct, must be condemned by the Tribunal as ill founded and unreliable. If that conclusion is undermined, he submits that the related conclusion was not open to the Tribunal. The related conclusion is that reached in paragraph 13 of the decision, namely that the employers had no serious reason to think the original complaints were based on racial prejudice.We reject these submissions, ingeniously though they were presented. First, we reject the submission that the criticisms of the procedure amounted to anything approaching a denial of natural justice. The Appellant knew of the allegations against him and had the opportunity to answer them, although we accept that his position was far from ideal. However we do not think that that is crucial to the argument.The essential plank of the argument is that the two aspects of the Tribunal's conclusions are so closely linked that if one is undermined, the other must be perverse. For that to be so, the second conclusion would have to follow logically or be a corollary of the first. We consider that it is not. We consider that there was separate evidence which the Tribunal was able to and did consider, in respect of the two separate issues.Mr Devonshire for the Respondents, has submitted that both issues are fully covered by the Tribunal in paragraph 12 of the decision, and that paragraph 13 was, as it were, an addendum dealing with and rejecting a specific submission made by the Appellant. We think he may be right although paragraph 13 certainly served to underline and clarify one of the Tribunal's conclusions from paragraph 12, which had perhaps not been quite clearly expressed.We consider that in paragraph 12 the Industrial Tribunal posed for itself the statutory question under Section 1(1)(a) in respect of both issues. They began by reminding themselves that there was no direct evidence that the complaints were racially inspired, but that that was obviously a possibility. They then went on to discuss the alternative explanation of the events that had taken place, those events being the complaints made by the workmen, as being attributable to the resentment felt by the workers on account of Mr Smith being a strict disciplinarian.At the end of that passage they do not say so, but it appears to us that they have probably concluded that those initial complaints were not racially inspired. Such a conclusion is entirely consistent with what they have there said. However, it could be said that they have left that conclusion somewhat in the air. They turn then to the question of the disciplinary procedures. They are critical of them, as we have indicated, but they conclude by saying this:"12 .... However, the complaint before us is one of racial discrimination. Would a white employee in Mr Smith's position have been treated differently? We answer just possibly, but not probably".Mr De Mello accepts that he cannot challenge that finding and it disposes of the complaint about management's handling of the disciplinary procedures, and any possible tainting of them by racial discrimination.Then at paragraph 13, the Tribunal deal with the submission that Mr Malkin and Mr Doody have not paid sufficient attention that the complaints against him, the Appellant, were racially motivated. They accept that these were matters to be taken very seriously by the employer and they go on to say:"13 .... However, they [the employer] had no serious reason to think that the complaints were malicious inventions based on racial prejudice against Mr Smith and they were justified in treating them as they would have treated similar complaints against a white person. ....".It appears to us that there was abundant evidence on which the Tribunal could have reached that conclusion. Moreover, that evidence, which we will recite in a moment, was not dependent upon any conclusion that the employer had been justified in finding the complaints of intimidation proved. That evidence, in our view, included the following. First of all there was the alternative explanation for what had happened, which they had already alluded to in paragraph 12. Second, their acceptance of Mr Doody's evidence that he had not seen the case as a racial problem. Third, there was the statement of Mr Wijgerden, which was before the employers, and the Tribunal, that the Appellant was always complaining of racial motivation whenever he was spoken to. Fourth, there was the Tribunal's own examination of the witness statements in which they detected no sign of racial discrimination or motive and fifth, the evidence, of which they had taken note, that the complainants in giving their statements had appeared to be in fear, and the inference that could be drawn from that, is that their complaints were genuine.All of those evidential matters were matters which the Tribunal was, in our view, entitled to take into consideration. It formed a very solid foundation for their finding in paragraph 13. The finding in paragraph 13, when read together with the passage in paragraph 12 to which we have referred, makes it quite clear that they had asked themselves the statutory question in respect of both issues and had answered both questions in the negative.We are quite satisfied that this decision was not perverse. We identify no error of law into which this Tribunal could be said to have fallen. Accordingly, the appeal is dismissed.