Sofola v Shorrock Guards Ltd [1997] UKEAT 1071_96_1002

EAT
Sofola v Shorrock Guards Ltd
[1997] UKEAT 1071_96_1002 · 1997-02-10
MR JUSTICE MORISON (PRESIDENT) : After a three-day hearing an Industrial Tribunal held at London (South) concluded that the Respondent, Shorrock Guards Ltd, had not unlawfully discriminated against the Applicant, Mr Sofola, on the grounds of his race. That was a unanimous decision. Both parties were represented before the Industrial Tribunal. For Mr Sofola there was Mrs Alexander, described as an adviser.The purpose of this hearing is to determine whether Mr Sofola has presented to us an arguable point of law so that the Employment Appeal Tribunal can accept jurisdiction over the prospective appeal which he wishes to make to us here.The background facts to the decision of the Industrial Tribunal may be shortly summarised. He started working for Shorrock on 30 November 1994 as a Security Officer, full-time. His effective date of termination was 30 October 1995. In other words, he had less than a year's service with Shorrock before he was dismissed.The Industrial Tribunal note that Mr Sofola is black and of Afro-Caribbean ethnic origin and they identify the issue in the case as to whether the company's dismissal was on the grounds of race, contrary to the Race Relations Act and they refer to the fact that, at an interlocutory hearing, the Applicant, acting in person, was comparing himself with a Mr De Rosa, who it was said, wrongly, on Shorrock's behalf, was also black. That was not correct. In fact, Mr De Rosa was white. In paragraph 3 of the Decision, the Tribunal recite the evidence which they received and in paragraph 4 through to paragraph 18, they make their findings of fact.We can summarise the findings of fact in very short form. There was an occasion when Mr Sofola and Mr De Rosa, an Inspector, were travelling in the same car and some time during the journey an incident was alleged to have taken place in which Mr De Rosa said that he had been struck by Mr Sofola. On the basis of his complaint, and following an investigation carried out by the employer, Mr Sofola's employment was summarily terminated on the grounds that he had fought with Mr De Rosa whilst on duty.There was, in paragraph 13 of the Tribunal's Decision, a reference to provocative behaviour by Mr De Rosa. That behaviour included, as we understand it from Mr Sofola's skeleton argument, racial taunts and abuse.The Tribunal, having examined the case for each party with some care, concluded that the reason for the dismissal and the only reason for the dismissal, was the belief by the employer that Mr Sofola had been guilty of fighting whilst on duty. They rejected as unproven the allegation that the dismissal had been tainted by race, or any racial element. They said, at the end of paragraph 22 of their Decision:
"22. ...We accept the principle in Leicester University Students' Union v Mahomed [1995] IRLR 292, that the finding that an explanation is unsatisfactory as to the reason for dismissal does not necessitate inferring that the treatment was on racial grounds: the principle is that the Tribunal may so infer if it considers that but for his race the Applicant would not have been treated as he was."
As we understand it, the Industrial Tribunal was correctly drawing a distinction between the defence of justification, which applies where there is indirect discrimination, and a defence which relates to the reason for the treatment of an individual, where the question of justification itself does not directly arise.In those circumstances they rejected the complaint which was made. It is to be noted that they do not deal specifically with the question of unfair dismissal absent any racial motivation. They were right not to do so because there was no requisite qualifying period and had Mr Sofola's complaint in relation to his dismissal not raised a racial element, the Tribunal would not have proceeded to adjudicate upon it. We consider that the Tribunal were correct to have directed their attention to the relevant issue in this case.In the skeleton argument in support of his Notice of Appeal Mr Sofola raises a number of points. In the first place, he complains that the Industrial Tribunal did not specifically consider the question as to whether documents, which were vital to his case, had deliberately been destroyed because they would have adversely affected the employer's case against him and assisted his case against them. This relates to the mislaying or loss of vital minutes of disciplinary meetings which were held. It seems to us that, in this case, that is more a complaint of fact rather than a complaint of law.The second complaint is that the Tribunal said that the Applicant became aggressive and exhibited exactly the kind of behaviour to which the Respondent's witness testified. He rightly makes the point that what may seem aggressive to one person might well not seem aggressive to another. It seems to us, having had the chance to talk to Mr Sofola, that it was a surprising finding for the Tribunal to make that his behaviour was aggressive towards them, and we quite understand the point which he makes which is that it was not for the Tribunal to be passing, if you will, personal judgment about his conduct. Having said that, it was simply an aside, as we read their Decision, and was not an important part of the reason why they arrived at their conclusion.Thirdly, he says that there is no way that the Tribunal could have determined prima facie that one witness, Mr De Rosa, was an honest and truthful man by just looking at and hearing him for less than an hour. Again, that is a submission which, as those of us who have experience of adjudicating on questions of fact, have some sympathy. It is not easy to tell where the truth lies just by looking at a person for the short period of time that he is giving evidence and listening to his tone of voice. On the other hand, listening and seeing the witnesses is a judicial tool, which is available to be used, provided it is used with discretion and we see no reason to believe that the Industrial Tribunal have overstepped the mark in this case.The fourth point that is made, is that the Tribunal blamed the standard of representation afforded to the Applicant, due to the incessant interruptions. His skeleton argument says that:
"This, again, is an unbelievable statement. I don't know if the Tribunal intended to militarise the proceedings by making us hold our breaths while the case was on or not."
It seems to us that this factor, which the Tribunal were referring to, is a factor intended to indicate that they have taken into account, in the Appellant's favour, the fact that he may not have been represented in a way which most attracted the Tribunal. In other words, they are saying, "We have regard to this point in his favour when considering the merits of his case".The fifth point is that he was not asked how tall he was, and the Tribunal made a comparison between his size and that of Mr De Rosa, whose height was the matter of evidence, in the sense of Mr De Rosa being asked what it was. Again, we think that this is not a question of law, but more of fact, and it was for the Tribunal to make their own judgment about the relative heights of the two participants to the dispute, which occurred when the car stopped during the course of the journey.The next point is in relation to the wearing of uniform. The Applicant asks, rhetorically, how the Tribunal could have reached the conclusion they did that Mr De Rosa was required to wear his uniform and did so, and that that distinguished him from the ordinary guards who were required to travel to their sites in plain clothes. The submission that is made is that the Tribunal failed to see the contradiction and reason in Mr De Rosa's statement that, since Mr De Rosa had never seen the Applicant before until then, how did he know he was the guard to be taken to the Leatherhead site if he was not in security uniform? It seems to us, with respect, that this is not one of the better points which the Appellant is making. Indeed, we believe it to be somewhat specious.The seventh criticism is the Tribunal have cleverly omitted the fact that Mr De Rosa sternly asked the question as to why the Applicant was late for duty; that seems to us not to be a justifiable criticism, having regard to the terms of paragraphs 11 and 14 of the decision.The next complaint is that the Tribunal omitted all reference to the racist abuses. It seems to us that the difficulty for the Appellant in this matter is that there is a clear conflict between two positions. One would be to say, "As a result of racial taunts I did strike Mr De Rosa" and the other was a position in which he was saying "I did not strike Mr De Rosa. I was not the aggressor". If one looks carefully at the decision of the Industrial Tribunal, it seems to us clear that Mr Sofola was denying that he had been the aggressor and had struck Mr De Rosa. That was not the picture which would have emerged had the case on provocation been fully run, although the question of provocation was referred to in paragraph 13 of the decision.Then it is said that the Tribunal have got part of the decision wrong and if one looks at paragraph 7 of it, and the last two sentences, we accept that that is a fair criticism, but it would not have affected the substance of the decision. It seems to us that it is obvious that the last two sentences do not make sense as they stand.Then, it is said that:
" ... In the 10th paragraph, No 13, the Tribunal stated that the Applicant, Mr Sofola said in a meeting, it had been Mr De Rosa's verbal abuse and other provocative behaviour which had led to Mr Sofola's attack on him. Firstly there was never a time that the Applicant said this. It is a complete fabrication. The Tribunal had earlier reported that Mr Sofola stuck to his version of the story as it was on his report in paragraph 13, line 4, ... because Mr Sofola's report never said he attacked Mr De-Rosa because of this verbal abuse and provocative behaviour, nor even said he attacked at all. ..."
This, it seems to me, relates back to the point which I have already just touched on, as to the conflict between a case in which provocation was being raised, and a case in which provocation was not being raised.Having regard to all the matters which were raised in this draft skeleton argument, for which we are grateful, we are satisfied that none of them raises a question of law. All of them are concerned with factual questions which this Court cannot deal with.We have considered also Mr Sofola's contention that the Industrial Tribunal have arguably gone so badly wrong that he is entitled to a fresh hearing. We do not accept that the criticisms which we have looked at, with care, amount to a catalogue of failure by a Tribunal of the sort which would be needed before this Court acceded to such an application.In all the circumstances we are not persuaded that there is any arguable point of law in this prospective appeal and accordingly it is our duty to dismiss it.