Skeiky v Argos Distributions Ltd [1997] UKEAT 1129_95_1205

EAT
Skeiky v Argos Distributions Ltd
[1997] UKEAT 1129_95_1205 · 1997-02-24

JUDGE PUGSLEY :

By a decision promulgated on the 7th September 1995 the Industrial Tribunal sitting in London (North) dismissed the application for unfair dismissal but found proved the claim of unlawful discrimination on racial grounds. The employee has appealed against the dismissal of the claim for unfair dismissal; the employer has appealed against the finding of racial discrimination.According to the findings of fact made by the tribunal Mr Skeiky, (wrongly described as Sheiky in the decision) who originated from Sierra Leone, worked for the employers from November 1989 until March 1994. He was valued as a good and hard worker. He had entered this country to study law and he had, and continues to have, permission to remain in this country. There were limitations alleged to be placed on the number of hours he could work. The tribunal had before them his current visa which showed no restrictions upon the number of hours he could work. The tribunal did not have the documentation which the applicant had when he first obtained employment because it was no longer available. In paragraph 3 of their decision after reviewing the correspondence which had passed between the employers and the Immigration and Nationality Department the tribunal concluded that it was quite clear that Mr Skeiky had permission to work but because the original documentation had not been retained by the employer the tribunal were unable to make any finding as to whether there had been limitations on the amount of hours which could be worked.The circumstances which led to the application before the tribunal arose out of events which occurred on the 30th of December 1993. Mr Skeiky reported to work as usual and was asked to see a Mr Stone who was in effect a security officer. Mr Stone wanted to find out the whereabouts of a friend of Mr Skeiky, a Mr Marween, who was a fellow employee in order to interview him about a possible act of dishonesty which it was alleged had occurred the day before. The tribunal found as a fact, as they were entitled to do, that where there was a dispute on the evidence between Mr Stone and Mr Skeiky they preferred the evidence of Mr Skeiky. The tribunal found that a manager, a Mr Bickell, was a credible witness in most respects but was being loyal to his friend, Mr Stone.On the findings of fact which the tribunal made Mr Skeiky was accused of being an illegal immigrant. He was told he was a foreigner and should not be working. He was effectively detained in the circumstances which are set out in the tribunal's decision. He was arrested. The tribunal rejected Mr Stone's evidence that he had sought the advice of the police because of his concerns about Mr Skeiky's evidence. The tribunal accepted that the decision to arrest Mr Skeiky on suspicion of being an illegal immigrant was a matter within the discretion of the police officer and not a decision of Mr Stone. However, the tribunal were critical of Mr Stone's actions. They considered that he should first have investigated Mr Skeiky's personnel file before involving the police. The result was that Mr Skeiky was arrested and remained in police custody from 1 p.m. until 7 or 8 p.m. when the Home Office verified that he was entitled to be in the country.The factual narrative and the reasoning of the tribunal can best be summarised by setting out the relevant passages of the decision:
"7. On 31 December Mr Skeiky attempted to speak to Mr Bickell and the person he first spoke to, Miss Simm, was amazed to hear he was still in the country, as indeed was Mr Bickell, because from what Mr Bickell says he was told by the Home Office official he thought Mr Skeiky would be on a plane out of the country by that time. On 27 January Mr Skeiky visited the Respondents, spoke to a member of the Personnel Department and he was told that his suspension, which was without pay, would continue until he produced the necessary documentary evidence to show that he could remain in the country and work in the country. His passport had been sent to the Home Office, who had to make checks with his College of Law. He received his passport on 24 February from his college. He spoke to Mr Bickell the day after and read what was written in his passport. On 4 March he went to the Personnel Department and he also saw the Deputy Manager who, because the letter from the Home Office did not specify that it referred to Mr Skeiky, was uneasy as to whether or not it was sufficient documentation to entitle the Respondents to put Mr Skeiky back on the payroll. Later Mr Bickell saw the documents and again hesitated but eventually was satisfied that Mr Skeiky could work for twenty hours during the college term times and forty during vacations, and he offered him employment because, as he stated in evidence, Mr Skeiky was a valued employee and they wanted to keep him and they were willing to accommodate the hours he could work. However Mr Skeiky, who was taking legal advice, decided through his solicitors to refuse that offer, saying that after the way the Respondents had behaved between 30 December and 4 March he no longer had any faith in them. He maintained a fundamental term of his contract had been breached and he was entitled to repudiate the contract. The fundamental term was the term that is implied into every contract that there must be trust and confidence between employer and employee.
8. Dealing first with the question of the claim under the Wages Act, that is the claim for the money he was not paid while he was suspended from 30 December 1993 to 4 March 1994, we have not seen any contract of employment but we have no doubt that in a case where a firm was genuinely concerned as to whether they could allow a person to work for them, or rather to continue to work for them, they would be entitled in the circumstances to suspend without pay. Therefore the claim under the Wages Act fails.9. The claim for unfair dismissal the Tribunal have found difficult. It is very much on the borderline in many ways. However the treatment on 30 December was incorrect and unfair. He was given no opportunity on that day to go home to try to find any documentation he might have, nor was the personnel file checked. Mr Skeiky would be entitled to find what happened on that day unnecessary and unfair and it could have so shaken his confidence that he was not prepared to work for the Respondents any longer. However between then and 4 March he continued to make efforts to return to work. Therefore at the material time that was not treatment which made him repudiate the contract. In his Originating Application he refers to the treatment between 30 December and 4 March. We cannot criticise the Respondents for suspending during that period and for wanting to be sure the documentation was correct. That was reasonable and was not a breach of any term of the contract between themselves and Mr Skeiky. Therefore, although we are troubled by the behaviour on 30 December, we find it was accepted at the time, although resented, because Mr Skeiky still made efforts to go on working. Therefore the application alleging unfair dismissal under the Employment Protection Act is dismissed.10. Finally we come to consider the question of racial discrimination.

(a) of the Race Relations Act provides:

"A person discriminates against another in any circumstances relevant for the purpose of the provision of this Act if (a) on racial grounds he treats that other less favourably than he treats or would treat other persons."
Section 4(2)(c) provides:
"It is unlawful for a person in the case of a person employed by him at an establishment in Great Britain to discriminated against that employee
...

(c) by dismissing him or subjecting him to any other detriment."

11. The onus is upon Mr Skeiky throughout to satisfy us on the balance of probabilities that there was discrimination contrary to section 1(1)(a) and that led to a breach of section 4(2)(c). In this case unless Mr Skeiky had been someone of a racial origin that required a visa he could not have been treated in the way he was on 30 December. We are satisfied Mr Stone referred to him as a "foreigner", but that does not give a defence of justification under section 1(1)(a). That, we think, is probably the defence the Respondents were attempting to establish. Legally it is not possible. He, Mr Skeiky, must have been treated differently from other person of different race and nationality who were in this country either as British Nationals or permanently. We then have to consider whether as a result of that breach he suffered a detriment within the meaning of section 4(2)(c). In order to suffer a detriment he must under that subsection be an employee at the material time. He was. We are satisfied that Mr Stone's treatment of Mr Skeiky was substantially motivated by the fact that he was, as he said, "a foreigner", in this case from Sierra Leone. His behaviour was unnecessary and, as we stated earlier, we do not accept the fact that he asked advice from the police. We are satisfied that the most likely thing that happened was that he suggested the police should arrest Mr Skeiky. We fully understand the decision would ultimately be the police's, but it was triggered off by Mr Stone and therefore the results were a direct cause of Mr Stone's action, which we find was racially motivated. The Respondents could, if they were not satisfied, have sent Mr Skeiky home and if necessary notified the Home Office. That is the State Department, not the police, which should be dealing with illegal immigrants. It is only in exceptional cases that the police may have to be called in to arrest people. We therefore find that the allegation of racial discrimination is proved on the balance of probabilities. The Respondents are in breach of section 1(1)(a) and 4(2)(c) of that Act."The tribunal then went on to consider the question of compensation and awarded the applicant the sum of £4,000.

The employee's appeal

The applicant's appeal against the finding that he was not constructively dismissed is based on the analysis of the law contained in paragraph 9 which has been set out in full above and in particular the crucial sentence:"Therefore, although we are troubled by the behaviour on 30 December, we find it was accepted at the time, although resented, because Mr Skeiky still made efforts to go on working".In his Notice of Appeal the applicant set out five grounds of appeal:(1) That the tribunal erred in law in finding that as the appellant had made efforts to return to work, the treatment he received at the hands of the respondent's servant or agent (which the tribunal accept amounted to a repudiatory breach) was not treatment which made him "repudiate the contract".(2) The tribunal failed to ask themselves the correct question, that being whether the appellant had accepted the repudiation, or whether he had affirmed the contract: Boyo v Lambeth Borough Council .(3) If they had asked themselves the correct question they would have been bound to consider whether the appellant's conduct in making efforts to return to work amounted to an affirmation or simply an attempt to give the respondents an opportunity to remedy the breach: Cox Toner v Crook [1981] ICR 823 .(4) The tribunal failed to consider whether the offer of employment made on or about the 4th of March by the respondent on considerably fewer hours per week the appellant had been working and without recompensing him for his lost wages from 30th December 1993, sufficiently remedied the breach.(5) Alternatively, the tribunal failed to consider whether that offer itself, being a unilateral variation of the contract, was a repudiatory breach of contract entitling the appellant to claim constructive dismissal.In the original skeleton argument the applicant did not rely on the ground pleaded in paragraph 5(5) of the grounds of appeal. In the event the parties have reached an agreement that this is a matter which might be reargued at a later stage if the case is remitted for a further hearing. In his supplemental skeleton argument Mr Galbraith-Marten concedes that this could only be a matter about which a decision could be made if the tribunal heard fresh evidence. We agree with that submission. That would require a consideration of the evidence and findings of fact which it is not open for us to make. In any event even if it did constitute a ground for constructive dismissal it is still necessary for the tribunal to determine whether such a breach is unfair having regard to the criteria of Section 57(3), as it then was.The applicant's case is that the tribunal confuse acceptance of the repudiatory breach with affirmation of the contract. The applicant's contention is that the fact that the applicant made efforts to go on working does not necessarily mean that he had been held to have affirmed the contract. There must be consideration of all the circumstances and affirmation may only be implied if with knowledge of the breach the innocent party does some unequivocal act from which it may be inferred that he intends to go on working regardless of the breach. The applicant cites passages from Chitty on Contracts Vol. 2 Para. 24-002 and the cases of Bashir v Brillo Manufacturing Co [1979] IRLR 295 ; Cox Toner v Crook [1989] ICR 823 and Farnworth v Attryde [1970] 1 WLR 1053 .It is pertinent to note that in the letter written by the applicant's solicitor and in the originating application the treatment which is alleged to justify the contention that the applicant was unfairly dismissed is not limited to the 30th December 1993 but extends through to the whole period until the 4th of March 1994.Mr Lewis, on behalf of the employer has, in his able argument, correctly submitted that we should not submit the decision to meticulous treatment or trawl through it with a fine toothcomb and what matters is the substance of the decision broadly expressed. Moreover in referring to Mr Skeiky's efforts to go on working it is submitted the Industrial Tribunal were clearly directing their attention to acts which were only consistent with the continued existence of the contract. There was, he states, no suggestion that in any of the steps Mr Skeiky took he was reserving his rights to allow the alleged breach to be remedied.We are troubled by the terms in which in paragraph 9 the tribunal finds that the application based on constructive dismissal is dismissed. There will be many occasions in which an employee who has been suspended may well consider that the circumstances in which the suspension took place amounted to what in lawyer's language amounts to constructive dismissal. Yet equally such an employee may well have financial obligations and may well fear that if he does not return to work for his employer he will have a prolonged period of unemployment. If the words of the decision "it was accepted, although resented, because Mr Skeiky still made efforts to go back to work" are an accurate statement of the law it means that an employee who seeks to return to work even though he does not know the terms upon which he may be reinstated loses his right to claim that he was unfairly dismissed. Whilst the suspended employee's efforts to go back to work may well be evidence which is relevant in determining whether the employee affirmed the contract we consider it a misdirection of law to put the matter tersely as stating "it was accepted, although resented, because Mr Skeiky still made efforts to go back to work". Although the tribunal made no criticism of the suspension of Mr Skeiky and dismissed his claim under the Wages Act for his wages for that period we consider that the tribunal was required to consider all the circumstances up to the 4th of March including the fact that the applicant ultimately refused to work on the terms offered in deciding whether the applicant had affirmed the contract. We consider that the tribunal should have asked itself the question whether it could be inferred from the fact that the applicant made efforts to go back to work that he intended to return despite the breach and considered the extent to which his actions should be construed as attempting to allow the employer to remedy the breach.

The employer's appeal

The employer's appeal raises five grounds of appeal:(a) That the tribunal should have found on the balance of probability that there was a restriction on the hours which the applicant was entitled to work and the tribunal ought to have therefore considered whether the applicant's contract was tainted by illegality.(b) That the tribunal failed to identify the relevant material circumstances in the applicant's case for the purpose of section 3(4) of the Race Relations Act 1976 in that: (i) the tribunal ought to have considered whether the applicant was treated less favourably than employees of other races or nationality would have been treated if they were suspected that they were in breach of the conditions of leave to remain in the United Kingdom.(ii) the relevant comparator was between the applicant as a national of Sierra Leone and persons of different nationality who were in the United Kingdom. There would be no scope of suspicion that persons of any race and nationality who were British Citizens or in the United Kingdom permanently would be in breach of the condition of their leave to be in the United Kingdom.(c) That the tribunal ought to have found that the race relations claim was barred by illegality. (d) That the conduct of the tribunal Chairman, Mrs Calvert QC, was such that a reasonable observer present at the hearing, not being a party, or an associated party, would gain the impression that she was biased against the respondent. (e) That the finding of the tribunal to award compensation was perverse.In view of the multiplicity of issues and the shortage of time Counsel have come to an agreement which effectively means that we should only deal with part of the appeal which may, depending on our findings, make certain of the issues somewhat academic.

The allegation of bias

The employer's representative has filed an affidavit in which she alleges that the Chairman displayed a degree of hostility to the respondent's case. Mr Lewis has drawn our attention to the case of Peter Simper & Co v Cooke [1986] IRLR 19 (EAT) in which Peter Gibson J posed the following test:
"Would a reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias?"
We are well aware that legally qualified advocates as part of their professional armoury acquire certain philosophic resignation to robust judicial expression of view and, however great their commitment, nevertheless retain a degree of detachment about their client's case. When as in this case neither party was professionally represented the position is rather different. According to the affidavit of Alison Tate, who appeared for the respondent, said of the Chairman, Mrs Calvert QC, and recounts the sequence of events was as follows:
"Mr Skeiky was called to give evidence first. He read out his Originating Application as his evidence in chief. Throughout his evidence Mrs Calvert shook her head and tutted in disapproval about the treatment he alleged that he had suffered and was clearly sympathetic to his case. After Mr Skeiky had completed his evidence, Mrs Calvert turned to me and said "this situation is intolerable". She then added words to the effect that she could not see how the company could defend its behaviour. At this stage the Company had not given any evidence and the Tribunal has only heard the evidence of Mr Skeiky."
There are other allegations in which it is alleged that bias was evinced by the Chairman which are summed up in the ground of appeal by the allegation that throughout Mr Stone's evidence Mrs Calvert QC continued shaking her head and tutting in disapproval.Although the Notice of Appeal alleges bias by the Chairman in argument the matter has been put on the appearance of bias a much as bias itself.The Chairman, Mrs Calvert QC, many months after the event was informed of the allegation does not claim to recall the exact words she used but accepts that she used words to the effect that calling the police was unnecessary and must have caused the applicant much distress. Both the industrial members state that in their view the hearing was a fair one. One of the members whose membership of the tribunal goes back since 1977 makes the point that that member looks to a chairman for advice on aspects of the law but takes her own independent view on the evidence. Mr Skeiky was sworn an affidavit in which he deposes that he thought the Chairman's questions were to elicit what happened rather than to provide her own answers to the questions.The applicant has worked for this company for a period of years. He was interviewed merely to find the whereabouts of a friend. He ended up being arrested and detained in police custody. We cannot see that the Chairman's observation that the calling of the police was an unnecessary step was in any way an improper one. Nor having considered the letters from the Chairman and the members and having carefully scrutinised the terms of the decision can we see that at any stage the Chairman evinced any bias or said anything which could be construed as giving the appearance of bias to an impartial observer. It would be a sad day for the administration of justice if members of the judiciary could not give expressions of view. Such indications enable advocates to know what is in the judicial mind and have the opportunity to deal with the matter. It is wrong to reach a premature decision and evince an intention, to totally disregard any evidence that may be called or any argument that might be made on certain issues. An expression of view is unobjectionable as long as it is clear the judicial mind is not closed. We therefore dismiss the employer's appeal on this matter.However, we consider the employer is on much stronger ground in the criticisms made of the formulation of the law in paragraph 11 which we have already set out. Mr Lewis has referred us to 3(4) of the Race Relations Act 1976 which provides:
"A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1 (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."
In the case of Dhatt v McDonald Hamburgers Ltd [1991] ICR 238 (CA) it was held not to be discriminatory to ask for evidence of permission to work from those who were not citizens of the European Community. As Neill LJ put it in at page 247D:
"In the case of someone seeking work his nationality is a relevant circumstance because Parliament itself recognises and seeks to enforce by reference to a nationality a general division between those who by reason of their nationality are free to work and those who require permission."
Mr Lewis's submission that the tribunal erred in concluding that Mr Skeiky received less favourable treatment on racial grounds because:
"unless Mr Skeiky had been someone of a racial origin that require a visa he could not have been treated in the way he was on the 30th December. We are satisfied Mr Stone referred to him as a "foreigner", but that does not give a defence of justification under section 1(1)(a). That, we think, is probably the defence the Respondents were attempting to establish. Legally it is not possible. He, Mr Skeiky, must have been treated differently from other persons of different race and nationality who were in this country either as British nationals or permanently."
Mr Galbraith-Marten concedes that asking "foreigners" whether they had permission cannot amount to an act of unlawful discrimination but contends that treating them badly because of a suspicion that they are illegal immigrants can and should be discrimination. He cites the approval given by Waite LJ in Jones v Tower Boot Co Ltd decided in the Court of Appeal on 11th December 1996 to the dictum of Lord Templeman in Savjani v IRC [1981] 1 QB at page 466 as follows:
"The Act was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."
We accept Mr Galbraith-Marten's contention that it was clearly open to the tribunal depending on its finding of facts to conclude that if the respondents had not given an innocent or adequate explanation for their treatment of the appellant they could draw the inference that there had been unlawful discrimination. But that is no answer to the fundamental objection made by Mr Lewis that the tribunal expressly drew the comparison between those persons who would need a visa and those who would not. The relevant circumstances in each case were materially different. The true test must be, as Mr Lewis submits, whether Mr Skeiky was treated less favourably (on grounds of race and nationality) than a person of a nationality which required permission to work in the United Kingdom. Although not argued before us it may be that a tribunal could have taken a wider test of whether the applicant was treated less favourably on grounds of race than an employee of a different race in comparable circumstances as, for example, an employee who was suspected of working whilst claiming unemployment benefit or in breach of a statutory prohibition against taking employment.We have great sympathy for the Chairman and members of this tribunal. With commendable expedition the whole of this case was heard in one day. The tribunal did not have the benefit of professional representation. For the reasons we have given we allow both the appeal and the cross appeal and direct that the case be remitted to be heard by a freshly constituted tribunal. There are certain matters which we have not decided but have been the subject of agreement between the parties. In the light of our decision on the unfair dismissal claim it is agreed the employer may argue illegality before the tribunal and that whether the employee can argue the issues raised in paragraph 5(5) of the Notice of Appeal shall be a matter for that tribunal. In the light of our decision to allow the appeal against the finding of racial discrimination it is agreed that the issue of quantum as well as liability is to be remitted to a freshly constituted tribunal.