Gutzmore v J Wardley (Holdings) Ltd [1996] UKEAT 372_95_1806

EAT

Gutzmore v J Wardley (Holdings) Ltd

[1996] UKEAT 372_95_1806 · 1996-06-18

JUDGE HULL QC:

This is an appeal to us by Mr Walter Gutzmore. The Respondents to the appeal are his former employers, J Wardley (Holdings) Ltd. Mr Walter Gutzmore is a carpenter and joiner of experience. He is a gentleman who is now aged 54 and today he is represented in front of us by his brother. His brother has said a great deal, very much to the point, on his behalf and we are very grateful for his assistance which we found moderate and fair (if we may say so).

The employment of Mr Walter Gutzmore with the Respondents began on 27 January 1986 and he was employed throughout as a carpenter and joiner in their business, which is, at any rate primarily, making shielding apparatus for X-ray equipment, which involves a good deal of carpentry and joinery. Something approaching half their employees are skilled employees in those crafts.

Going through the history, in July 1989 Mr Walter Gutzmore made a complaint of racial discrimination. Indeed, he made two complaints and they came before an Industrial Tribunal. He was at that time, of course, still employed. That Tribunal was chaired by Mrs Hollis. The Tribunal found that one of the complaints was not made out but another allegation of discrimination, which was a letter written by the employers, was found to amount to discrimination; but clearly the view was taken by that Tribunal that the complaint was of a nominal sort and merely ancillary to other matters, because the award made was of compensation of £20.

Mr Gutzmore continued in his employment and then on 26 October 1990, there was an assault alleged against him. It was said that after a quarrel with a fellow-employee, a Mr Davies, another craftsman, Mr Gutzmore had struck Mr Davies a single blow on the head.

The firm had a strong policy on fighting and violence and it was a dismissable offence to fight and a fortiori to assault somebody without, at any rate, gross provocation. As a result, Mr Davies's complaint was of course taken very seriously. Enquiries were made by Mr Wardley, the Managing Director, and by Mr Davis, the Works Manager, and the decision was taken to dismiss Mr Gutzmore and he was dismissed on the ground of gross misconduct, arising out of these events, on 31 October 1990.

He presented a two-fold complaint to the Industrial Tribunal by his IT1 (as it is known) at page 19 of our papers, on 17 January 1991, in which he complained first of all of unfair dismissal and he also complained of racial discrimination and sought reinstatement. By their reply the employers said that he had been dismissed for gross misconduct and there was a decision of the Industrial Tribunal on 9 August 1991. We know nothing of that matter except that it was unsatisfactory to one or other of the parties.

There was an appeal to this Employment Appeal Tribunal; there was an appeal apparently to the Court of Appeal and the net result of all that was that the matter was sent back to be tried by another Industrial Tribunal. That Industrial Tribunal sat on 10 and 11 November 1994 and 15 December 1994 for London (South), under the chairmanship of Mrs Gilbert, with two industrial members and that Tribunal, in their decision which was promulgated on 24 February 1995, dismissed the complaints which had been made to them and it is from that decision that the appeal is brought to us.

There was a Notice of Appeal by the Commission for Racial Equality, acting on behalf of Mr Gutzmore, dated 6 April 1995 and Mr Gutzmore, who had found himself at odds with the Commission, put in his own Notice of Appeal dated 7 April 1995, the day after and both those Notices of appeal were before this Employment Appeal Tribunal when the matter came on for a preliminary hearing before Mr Justice Tuckey and two of the members of this Tribunal, under our Practice Direction.

Under our Practice Direction, preliminary hearings are held to decide whether there are any fairly arguable points of law brought forward by the Appellant. If not, then of course the appeal cannot proceed. If there are, then leave will be given to proceed limited to those points which this Tribunal thinks are fairly arguable. It is also an occasion on which parties make allegations which it may be impossible for this Tribunal to test at the time. In particular, it may be alleged that there has been misbehaviour of some sort, or bias of some sort by the Industrial Tribunal and it may be alleged that there is evidence which is not dealt with or which is ignored, or that the Tribunal's decision is contrary to all the evidence, is perverse in some way; that may have to be decided and can only be decided of course, in many cases, by asking the Chairman for his or her notes of evidence and that was the situation which arose upon this occasion.

Mr Justice Tuckey, in giving the decision of this Employment Appeal Tribunal said, having set out the facts that the Tribunal had unanimously decided that the Applicant's complaints were dismissed. He said:

"We do not wish to say much at this stage, in view of the fact that we think there is one point which should go forward for a full hearing. But in view of the fact that a number of points have been raised before us (and wholly exceptionally we have allowed Mr Wiltshire of Counsel, to address us on some points and the Appellant, Mr Gutzmore, to address us on further points) we think it is necessary to say something for the record.

The point raised by Counsel on behalf of the Appellant is that, in dealing with the allegation that there had been victimisation, the Tribunal have not referred to a piece of evidence which, it is submitted, is of significance. To explain its alleged significance, it is necessary to sketch in the background very briefly.

One of Mr Gutzmore's main complaints was that his employers did not allow him to work on site, that is to say away from their premises where he was employed as a joiner. His allegation was that this was because he was black. He had made a complaint of racial discrimination to an Industrial Tribunal in 1989 and the evidence of his Works Manager, Mr Davis, was that, while that complaint was still unresolved he had treated Mr Gutzmore `with kid gloves'. It was the Appellant's case that, because he had made that complaint to the Tribunal, he was not given site work; in other words he was victimised.

It is contended, on behalf of the Appellant, that Mr Davis conceded in cross-examination that he would not consider any request by Mr Gutzmore for site work favourably until such time as the proceedings in the Industrial Tribunal had been resolved.

There is no reference to that evidence in the Tribunal's decision. It is obviously a piece of evidence of importance since, if that was the only reason why Mr Gutzmore had not been given site work, it would at least arguably amount to victimisation within the meaning of the act.

The Tribunal did deal with this complaint at length and made specific findings of fact to the effect that there had been no victimisation of Mr Gutzmore in the way that he alleged, but they did not refer to this piece of evidence. They deal with the reason which the employers gave as to why he had not been given site work, namely that they were concerned about his punctuality and reliability and that they thought he was more capably employed in the work shop. They accepted, that this was why Mr Gutzmore was not given site work. But if Mr Davis did make the alleged concession there may have been more than one reason why he was not given site work and it would be a matter for argument as to whether, in those circumstances, there had been victimisation or not.

We are anxious that, in the event that the Chairman's notes show that Mr Davis did make this concession, any consideration by this Tribunal or reference back to the Industrial Tribunal, should be confined and, confined only, to this point. ..."

And then, the learned Judge, on behalf of this Tribunal, went on to consider whether we would decide it ourselves or might perhaps send it back to the Industrial Tribunal, if we found that the ground was made out.

They said that there was nothing in the other grounds raised or in Mr Gutzmore's own grounds of appeal and therefore the appeal was limited to that if Mr Davis said that he would not consider any request by Mr Gutzmore for site work favourably until such time as the proceedings in the Industrial Tribunal had been resolved, because that would be, on the face of it, a reason which might very well arise out of the complaint against the company by the Applicant, Mr Gutzmore, that he had been discriminated against; might therefore be victimisation, treating him less favourably on the ground of his race. That was, of course, what was in the mind of this Tribunal. It would be a question of fact for the Industrial Tribunal whether that had happened, it would depend on exactly what view they took of the evidence of Mr Davis, the Manager and all the other evidence which they heard and all this Tribunal asked was to see the evidence which was given in cross-examination.

When we look to see what resulted when the Chairman provided his notes, they did not say that Mr Davis said that he would not consider any request by Mr Gutzmore for site work favourably, until such time as the proceedings in the Industrial Tribunal had been resolved; he said, amongst a number of other things (this is only his cross-examination, not his examination-in-chief) after saying a good deal about why Mr Gutzmore had not been out on site work, that he had earlier been out on site work but Mr Davis had decided he was the sort of man he wanted in the workshop and so on. But he said at the top of page 27 of our bundle (the second page):

"I was not punishing him by not sending him out on site. I wanted to get the race discrimination out of the way then might have considered it. I still felt his work better suited to workshop."

He was not saying that he would not consider any such request. He said that he had considered the matter and reached the conclusion which he did and he gave a great deal of evidence about that, which was considered by the Tribunal. But he did add: "I was not punishing him. I wanted to get the race discrimination out of the way then might have considered it" .

If that had been thought by the advocate, who appeared there for Mr Gutzmore, to be an important point, it seems inevitable that he would have pursued that, perhaps at length:

"Why exactly were you not prepared to consider it now?" and the answer might have been very various, we do not know. Mr Davis might have said: "

Well I had already considered it and it seemed to me that there was no reason to reconsider my decision, which had been reached over a substantial period of time on proper grounds at any rate, until these proceedings were over and then in the happier atmosphere that there certainly would be, after the proceedings were over, it might very well mean that we would feel that Mr Gutzmore had developed sufficiently in the job to accept the responsibilities of working outside".

On the other hand, of course, he might have conceivably said, "Well I have to admit that we were very prejudiced against him because he was bringing proceedings against us and until those had been got out of the way, I was not prepared to reach a decision in his favour", one does not know and of course, he was not tested on that matter.

The Tribunal gave a long decision which goes on for about ten pages. They dealt with these matters, but it is perfectly true they do not refer to this one sentence in the cross-examination, nor do they deal at length with Mr Davis's evidence. They set out the issues; they set out the facts. They, of course, were dealing first and foremost with the question of whether there was a fair or unfair dismissal and then secondly, and equally important, whether there was racial discrimination. They say at page 11 of our bundle, page 4 of their decision:

"Mr Gutzmore's central complaint was that the Respondents did not allow him to work out on site. ... In September 1989 the Applicant asked to be given site work. This was refused by Mr Wardley [the Managing Director] in the letter dated 4 October. He was concerned about his punctuality and reliability in attending work and in evidence said he did not think he had the initiative and ability to think quickly that was necessary for site work. Mr Davis gave evidence that it was important to have good joiners doing quality work in the workshop and that in the past there had been two or three joiners who had never been out on site, all white. Mr Wardley, in cross-examination, said that there were currently several joiners who worked in the factory all the time. Mr Davis made the point that different people were suited to different work and that Mr Gutzmore was a bit of a plodder but a good quality joiner, better suited to working in a workshop than going out on site. We accept the Respondent's denial that the Applicant had suffered any financial loss from not going out on site because he would have lost the travel allowance paid to him ever since the relocation, that they were in any way punishing the Applicant for making complaints of racial discrimination in 1989 by not sending him out on site and the allegation made by the Applicant that he was given run of the mill jobs."

So that was their finding on the evidence which they had heard, which of course was not merely Mr Davis's evidence in cross-examination, but his evidence-in-chief and Mr Wardley's evidence - he appears to have taken the primary decision.

They considered the matter further in the succeeding passages and they dealt with a remark which could have been taken to be a racial remark made by another Mr Davies, the alleged victim of the assault.

They deal with a large number of matters. Then they refer to the law and having set out the law, as far as we can see entirely accurately, they repeat certain observations which had been made by eminent Judges, in particular Mr Justice Browne-Wilkinson, as he then was, in a case of Khanna v The Ministry of Defence

[1981] ICR 653

and another case, the China case in which Khanna was referred to and they go on to say what the issues were in their view.

"So far [they say] as the complaint of victimisation is concerned, we have to consider whether there is causal link between the Tribunal proceedings brought in 1989 and the Applicant's subsequent treatment by the Respondents. It has to be shown that the fact that the Applicant had previously brought proceedings for race discrimination influenced the Respondents in their less favourable treatment of the Applicant".

They refer then, again, to the failure to allow him to work out on site. They say what his case is about that and then they set out their conclusions.

"We accept the Applicant's current allegations of racial discrimination have to be viewed with the 1989 Industrial Tribunal proceedings in mind, and the evidence of Mr Davis that partly as a result of those proceedings things were strained, that he was `being a bit kid gloves' with the Applicant and had to be careful of what he said or did. We also bear in mind the impression we have formed from seeing and hearing the Applicant and Mr Davies give evidence, that the Applicant is an exceptionally tall man with a tendency for aggression when pressed by Counsel, whereas Mr Davies is small and slight in physical build [that of course is the Mr Davies who was the alleged victim of the assault]."

Then at the bottom of page 17:

"(5) We have given careful consideration to the question whether the fact that Mr Gutzmore was not sent out on site could have an element of racial discrimination. The Respondents did not consider him suitable for site work. They thought he lacked initiative and his timekeeping was unreliable. They felt his skills were more suited to being under supervision in the workshop. They denied that they were in any way racially motivated. We find that by not sending the Applicant to do site work Mr Davis was treating him differently from other joiners ..."

Pausing there, we would say not from all other joiners, but from some other joiners

"We then have to ask whether we can draw the inference from that that he was treated differently because he was black. We have concluded that Mr Gutzmore's race bore no part in Mr Davis's decision not to send him on site. The onus is on an Applicant to satisfy the Tribunal that his employer is in breach of Section 1(1)(a) and Section 4(2)(c) of the Race Relations Act 1976. We are unable to to draw the inference from the findings we have made that any treatment Mr Gutzmore received was due to his race or colour. Moreover, we do not accept that he was victimised within the meaning of Section 2."

Which would of course, be the type of racial discrimination involved if it was because

he had made a complaint to the Industrial Tribunal that he was not being considered for site

work.

Our task today, because of the ruling of our own Tribunal, under the chairmanship of Mr Justice Tuckey in July 1995, is a very narrow one; bearing in mind what the Industrial Tribunal say in their very long and thorough judgment, which could, no doubt, have been lengthened still further but perhaps not improved by referring to the evidence in more detail.

They referred to "kid glove" treatment but they do not refer expressly to this one sentence: "I wanted to get the race discrimination out of the way then might have considered it" which was given in cross-examination by Mr Davis.

Is the failure to refer to and deal with that expressly a blemish which shows that the Tribunal did not do its job properly in the sense that it did not fairly tell the Applicant why he had lost, why his complaints were being dismissed?

In the nature of things, an Industrial Tribunal cannot possibly deal with every bit of evidence which is given before them. If they were to do that, their decisions would be enormously long and would, indeed, amount to a recycling of the evidence showing the parts which they accepted; the parts which they rejected; and the reasons they had in each case for doing so. That would place an intolerable burden on tribunals which are intended to proceed in a summary way and indeed is not, so far as I know, a duty which is laid on any tribunal, except possibly the Official Referees'courts dealing with cases involving a great deal of detail. In Retarded Children's Aid Society Ltd v Day

[1978] ICR 437

, Lord Denning said at page 443, referring to various matters and in particular the omission to refer to the Code of Practice which was in force at that time:

"... It is true that the tribunal did not mention those matters specifically in their reasoning: but it does not mean that they did not have them in mind or that they went wrong in law. I go further. If you read their reasons in a broad sense, it seems to me exceedingly likely that they did have those points very much in mind. ..."

And Lord Russell of Killowen, who was also a member of the court, said:

"I agree. The function of the Employment Appeal Tribunal [that of course, is our tribunal] is to correct errors of law where one is established and identified. I think care must be taken to avoid concluding that an experienced industrial tribunal by not expressly mentioning some point or breach has overlooked it, and care must also be taken to avoid, in a case where the Employment Appeal Tribunal members would on the basis of the merits and the oral evidence have taken a different view from that of the industrial tribunal, searching around with a fine tooth comb for some point of law."

It appears to us that on a fair reading of this decision of the Industrial Tribunal, which (as I say) extended over 10 or 11 pages, they did have very much in mind the evidence which they had heard over the 3 days. The suggestion that Mr Davis would not consider any request for an out placement on site, and said as much in cross-examination, is not made out and it is our duty merely to consider that. What he in fact said, after declaring roundly, "I was not punishing him by not sending him out on site" was "I wanted to get the race discrimination out of the way then might have considered it". So what did it amount to? That was a matter for the Tribunal. If they had thought that it was a very important point, which was of importance to their decision and that it had made them doubt Mr Davis's sincerity, or that they had had to consider in the light of that whether he was being frank with them; they would have had to consider whether that was really an admission that he was proceeding on racial grounds. It is inconceivable that they would not have said so. They said nothing about it at all.

We think, having considered it as fairly as we can, that their omission to mention that one sentence is clearly because they considered that it, and the other evidence which they did not mention, of which there must have been many pages of notes, was not of decisive importance to their decision; that is to say, that it did not indicate victimisation or any other sort of discrimination. It was a matter of fact for them and having considered what has been said so well by Mr Gutzmore's brother, on his behalf, we are not persuaded, in the narrow task which is the task allowed for us by the decision of this Employment Appeal Tribunal on the preliminary hearing, that that shows any error of law by the Industrial Tribunal.

We are not minded, therefore, either to reconsider the matter ourselves or to do what we think we should have to do in other circumstances - send it back for further consideration by the Industrial Tribunal - for the short and simple reason that it shows no error of law. They dealt with the matter in the way required by law and that is all that is required of them.

So far as this Tribunal is concerned, we are confined by the statute which creates our jurisdiction to considering matters of law. I should say for completeness what we have already dealt with, that the Applicant sought at the outset, through his brother, and in accordance with a long skeleton argument, carefully drafted, which has been sent to us, to reopen the decision reached by this Tribunal chaired by Mr Justice Tuckey in July 1995.

For the reasons which we indicated, we have no power to do that. If the decision of this Tribunal chaired by Mr Justice Tuckey is unsatisfactory to the Appellant, as we understand it to be, if indeed our decision is unsatisfactory to the Appellant, then in those circumstances, of course he can seek leave from the Court of Appeal to appeal not merely against our decision today, but against the decision of this Tribunal as encapsulated in the Judgment given by Mr Justice Tuckey on behalf of this Tribunal. But that is not a matter for us.

The result of our decision is that all matters have now been concluded on this appeal against Mr Gutzmore and we have to say that the appeal is dismissed.