Alibhai v E Moss Ltd [1995] UKEAT 758_93_2401

EAT
Alibhai v E Moss Ltd
[1995] UKEAT 758_93_2401 · 1995-01-24
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Plymouth on 2 June and 6 August 1993. The unanimous decision of the Tribunal was that the Appellant's complaint, that he had been the victim of an unlawful act of discrimination on the ground of race, was not well founded.As the only ground of appeal advanced before us is that the decision was perverse, it is necessary to set out the facts found by the Tribunal in some detail. Before doing so, we observe that it is not suggested that the Tribunal's findings of fact were not based on the evidence. Rather it is suggested that the Tribunal was perverse in refusing to infer racial discrimination from the facts they found.The Tribunal found that the Appellant was a self-employed pharmacist who obtained placements as a locum with retail chemists. The Respondents operated a chain of chemists shops. The Appellant took up a placement with the Respondents on 2 November 1992. The placement was arranged by an agency, Provincial Pharmacy Services Ltd (PPSL), and was due to last for two weeks.The Appellant is black and a practising Muslim. On the first day of work, 2 November 1992, the Appellant mentioned to the Dispensary Assistant, an employee of the Respondents, that he would wish to perform prayers during the quiet time in the afternoon, and established with her that there would be no objection to his doing so.The Tribunal recorded that from the outset of this employment there were problems. The Appellant spent a considerable amount of time using the Respondents' telephone to make personal calls. They found that he left the preparation of prescriptions entirely to the Dispensary Assistant, and then took a considerable amount of time to check them, with the consequence that there were complaints of delay from waiting customers.They found that he performed ritual ablutions involving the washing of his face and hands and the wiping of his head and feet, in the Dispensary, as part of the preparation for his daily prayer, and that he told the staff that he was not to be disturbed while at prayer unless there was an emergency. That meant that he was not available to supervise the sale of medicines and check prescriptions in accordance with his professional responsibilities as a pharmacist, while he was at prayer, thus causing further delays.By the Thursday of the first week, the Dispensary Assistant had decided that the situation with the Appellant had become unacceptable. Particularly, she was concerned, as the Tribunal found, that the slow dispensing service was seriously affecting the branch's service to its customers, and that business would suffer if this were allowed to continue. She rang her Area Manageress and asked that a replacement locum should be obtained. She gave as her prime reason the slow dispensing service, but she also mentioned the Appellant's use of the telephone and his prayer ritual including washing in the Dispensary. The Area Manageress contacted PPSL, the agency, to ask that they provide another locum for the following week, which they agreed to do.The Area Manageress then visited the branch to tell the Appellant that he would not be required for the second week but, as the Tribunal found, on the advice of PPSL, she gave as the reason the fact that the Respondents would be appointing its own full-time Manager to the branch. That was not true.The Appellant continued to work at the branch until the close of business on 7 November and then left. It was not until he received a letter dated 24 November 1992 from PPSL, that he was made aware of the true nature of the Respondents' complaints against him which were as set out in the letter as follows:
"1. .... lengthy of periods of time using the telephone ....
2. ....a long time dispensing prescriptions ....3. .... washing feet in the dispensary sink ....4. .... told staff that he would not supervise sales of medicines or dispense prescriptions during certain times of the day unless it was a dire emergency as he would be involved in meditation".The Tribunal then recorded that the Appellant's complaint was that the Respondent employers had wrongfully terminated his contract on 7 November 1992, and that its action in doing so, together with the complaints made against him, amounted to unlawful discrimination contrary to Section 1(1) and Section 4(2)(c) of the Race Relations Act 1976.The Tribunal summarised the effect of Section 4(2)(c) by saying:".... It is therein provided that it is unlawful for a person, in the case of the person employed by him at an establishment in Great Britain, to discriminate against that employee .... by dismissing him, or subjecting him to any other detriment".They then considered the Respondents' contention that the Appellant was not in fact a person employed by them and that, in consequence his complaint failed on a preliminary ground. The Tribunal found in favour of the Appellant on that preliminary point. They found that although he was a self-employed person, he was working under a contract personally to execute work and therefore, he came within Section 4(2). The Respondents have not appealed against that finding.The Tribunal then turned to consider whether there had been any discrimination against the Appellant. They set out Section 1 of the Race Relations Act 1976 as follows:
"1(1) A person discriminates against another in any circumstances relevant for 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: or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but - (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and(iii) which is to the detriment of that other because he cannot comply with it".They also set out Section 3(1) of the Act which provides that:

"In this Act, unless the context otherwise requires -

`racial grounds' means any of the following grounds, namely colour, race, nationality or ethnic or national origins".They then set out the Appellant's main contentions, which were two. The Appellant had submitted that the various allegations of misconduct made by the employer whilst he was working for them, amounted to less favourable treatment on the grounds of his colour and therefore constituted direct discrimination, contrary to Section 1(1)(a).

(b) In dealing with the first submission they said this:

"As to the first submission of direct discrimination the Complainant has not presented any evidence to satisfy us that the allegations made against him by the Respondent were made on the grounds of his colour. We considered these allegations in turn. As to the first, the Complainant admitted in the course of his evidence that he had made substantial use of the Respondent's telephone on personal matters (including his placement next following the termination of his locum placement with the Respondent, his temporary accommodation in Plymouth and so on), without being able to show that he was entitled to do so under the terms of his engagement. On the contrary, the Respondent's evidence quite clearly showed that all staff including the pharmacist were expected to pay for their personal calls and a money box was placed by the main telephone in the branch precisely for that purpose. As to the next allegation, we found the Dispensary Assistant, Miss Smith, to be a very reliable witness and we fully accepted her evidence that the Applicant was slow in dealing with prescriptions and that this was having a potentially adverse effect on the business of the Branch because of customers' dissatisfaction at the delay in obtaining their prescriptions. On the basis of her evidence we were satisfied that this was the principal reason why the Respondent requested PPSL to find a replacement for the Complainant".As to the allegation that the Complainant washed his feet in the Dispensary sink, there has been some conflict of evidence. We are satisfied that in the course of his ablutions preparatory to his daily prayer, the Complainant could be seen in the Dispensary by staff and customers alike cleansing his face, hands and feet at the Dispensary sink but not in the sink - and this appears to have caused some consternation. In relation to the last allegation, we also accept Miss Smith's evidence that the Complainant performed his prayers in the stock room while on duty and therefore while required by his professional code to be supervising the sale of medicines and the provision of prescriptions. We are entirely satisfied, however, that while all these allegations were a cause of concern to the Respondent, it was only the second which was treated by it as grounds for deciding to terminate the Complainant's engagement prematurely".We interpose to say that it is clear from that finding that the Tribunal were saying that it was only the allegation of delay in dispensing, which was affecting the business of the branch due to customers' dissatisfaction, which was a ground for deciding to terminate the engagement prematurely. The Tribunal then went on to reject the complaint of direct discrimination in the following terms:
"Moreover, in relation to all these allegations, the Complainant has not produced any evidence from which we can infer that the Respondent treated him less favourably than it treats or would treat other persons. By contrast, the Respondent's evidence showed that in its various branches it employs directly and on a locum basis a significant proportion of non-white pharmacists; that the Complainant's immediate predecessor at the Plymouth Branch was a non-white locum; and that, on an earlier occasion, there was engaged there a practising Muslim who was permitted to attend to her prayers on a daily basis. In order to do so, however, that pharmacist took part of her lunch break and cleansed herself discreetly and without making use of the sink in the Dispensary. The Respondent therefore raised no objection to her doing so.
Accordingly, it is our unanimous decision that the Respondent did not treat the Complainant less favourably than it treats or would treat other persons on racial grounds or at all. We therefore find the complaint of direct discrimination by the Complainant to be not well founded".The Tribunal went on to deal with the complaint of indirect discrimination by saying that:".... the Complainant [that is the Appellant] has not presented any evidence in support of this contention that it was a requirement of the Respondent that he, the Complainant, should not spend time away from his duties in prayer. Indeed, on his own evidence, he asked the Dispensary Assistant who was the most senior permanent member of staff at the Branch whether there would be any objection to his taking off time for prayer during the early part of the afternoon and was told that there was none. What the Respondent objected to was the fact that he did so whilst remaining on duty (for which time he would be paid) and was not therefore available to supervise the Pharmacy in accordance with his professional obligations. Moreover, as noted above, a previous locum who was a practising Muslim had conducted her daily prayers at the Branch during her own lunchtime and without objection from the Respondent. Accordingly, we are entirely satisfied on the evidence of the Respondent that it did not impose upon the Complainant a requirement not to take off time during the day for prayers".No complaint has been made before this Appeal Tribunal as to the finding that there was no indirect discrimination by the Respondent. Rather the complaint is made in respect of their finding that there was no direct racial discrimination.Before us it has been submitted that the Tribunal's conclusion that there was no evidence from which an inference of racial discrimination could be drawn, was perverse and irrational. It is submitted that the treatment afforded to the Appellant in being dismissed without being given any chance to improve, and without even being told the true reason for his dismissal, was so atrocious and showed the Respondents in so bad a light that the Tribunal were perverse in not drawing the inference from that, that this was discrimination on the ground of race.Mr Nicol for the Appellant has also submitted that all the other employees of the Respondents had the benefit of grievance and disciplinary procedures. He pointed to the fact that these were large employers who must be taken to know how to treat their staff properly. This Appellant, he submits, was treated differently from other members of staff because he was not given the benefit of a grievance or disciplinary procedure.We reject these submissions. Whilst it is manifestly true that the manner of dismissal of this man would be regarded as grossly unfair, if the fairness of his dismissal were under consideration, ignoring as it did every precept of good employment practice, there is no reason to suppose that this man's treatment was any different from that which would have been given to another self-employed locum who proved unsatisfactory to the Respondents. Indeed, the Respondents acknowledged that they did not operate any disciplinary procedure for such persons. There was before the Tribunal, as it is before us, a letter from the Respondents to the Appellant dated 2 December 1992 in the following terms:

"Dear Sir

Further to your recent letter I regret to inform you that we are unable to send you a copy of our disciplinary and grievance procedures.These Procedures are only applicable for our employed staff. They do not apply to Self Employed Locums like yourself".Secondly, it is submitted by Mr Nicol, that the Tribunal was perverse in finding that it was a proper and true reason for the dismissal, that the Appellant had prayed whilst on duty and was being paid, and was not therefore available to supervise the pharmacy in accordance with his professional obligations. It seems to us that that submission is based upon a misconception and we therefore say no more of it than this, that in our view it is clear that the Industrial Tribunal did not find that this was a reason for dismissal. They found that it was only a cause for concern.We consider that this Industrial Tribunal applied the right test when they turned to consider whether there had been direct discrimination in this case. They reminded themselves properly that the burden of proof lay upon the Appellant and they reminded themselves also, by implication, of their right to draw inferences from primary fact, but they found themselves unable to do so. In our judgment, the Tribunal's decision that there was no direct discrimination, "on racial grounds or at all" was by no means perverse. It was wholly justified on their findings of fact.The third ground which was argued before us, was that if the case were to be remitted, as it was submitted it should be, to a fresh Tribunal for a re-hearing, additional germane matters would be ventilated such as those matters which were raised for the first time in a letter written by the Appellant to the Industrial Tribunal as part of a request that there should be a review.This submission is no more or less than a request for "a second bite of the hearing cherry" and, in our judgment, it cannot possibly form a proper basis for an appeal. We are disturbed that this case should have occupied the time of this Appeal Tribunal and should have put the Respondents to the cost of an appearance. It discloses no point of law and the arguments on perversity are, in our view, wholly ill-founded.This appeal is therefore dismissed.