Williams v London Borough Of Southwark [1997] UKEAT 471_97_3110

EAT
Williams v London Borough Of Southwark
[1997] UKEAT 471_97_3110 · 1997-10-31

JUDGE PETER CLARK :

We have before us two appeals by Mr Williams against separate decisions of two Industrial Tribunals sitting at London (South).

The First Appeal

The Appellant is black and of Afro-Caribbean origin, who commenced employment with the Respondent as a van driver in 1990. In 1991 he took out a grievance against certain members of staff which was investigated by his Department Manager, Mr Elliott. A further complaint that Mr Elliott had not investigated his original complaint properly was then made by the Appellant. That second complaint resulted in Mr Elliott receiving a written warning.The original complaint was then processed further by other officers of the Respondent, and was eventually upheld. Meanwhile, pending resolution of these matters, the Appellant was transferred to a job in the post room on Scale 2.In the post room he worked with other employees, including a Mr Patel who was on Scale 5, a higher grade. It seems that from time to time the Appellant performed certain tasks which fell outside his job description, but within that of Mr Patel. Consequently, the Appellant applied for re-grading to grade 5, on a par with Mr Patel.The re-grading application was considered first by Mr Elliott, who was doubtful that it was well-founded, but who suggested that the Appellant expanded his application so that it could be put to the Personnel Department. The Respondent's system was that Personnel would judge the scale against the job description and advise management on whether there should be a re-grading. That exercise was carried out by Linda Nicholas, a Personnel Officer, assisted by Robin Crawford. Having interviewed the Appellant and his then Trade Union representative on 31 January 1994, Ms Nicholas referred the matter back to Mr Elliott, who proffered the opinion that Scale 2 was the appropriate grade for the work which the Appellant ought to be doing. The Industrial Tribunal subsequently found, on the Appellant's complaint of unlawful racial discrimination, that the Appellant, with admirable diligence, looked for duties above his grade 2 job description.On 16 February 1994 Ms Nicholas wore to the Appellant rejecting his application for re-grading. Further attempts by the Appellant and his Trade Union to secure a review of that decision came to nothing and on 19 November 1994 he presented an Originating Application to the Central Office of Industrial Tribunals (Case No: 64289/94) alleging direct discrimination on the grounds of his race contrary to Section 1(1)(a) and Section 4(2) and/or victimisation contrary to Section 2 of the Race Relations Act 1976.The matter came before an Industrial Tribunal chaired by Mr D M Booth on 4 February 1997. Having found the facts as outlined above, the Tribunal concluded that there was no less favourable treatment of the Appellant than a hypothetical comparator of a different race. Such a comparator would not have been re-graded in the view of the Tribunal. Secondly, it found that although the Appellant had done a protected act, in that the Appellant had complained about Mr Elliott's treatment of him in investigating his original complaint for the purposes of Section 2 of the 1976 Act, he was not treated less favourably than a person who had not done the protected act, and further, that the decision not to re-grade him was not in any event caused by his having done the protected act.In this appeal Mr Ibekwe, who appears on behalf of the Appellant, takes a number of points. The first is that the Tribunal failed to determine each of the different ways in which the complaint was put. Following discussion before us, it appears that the argument was that the Tribunal failed to take into account a separate head of complaint under Section 4(2) of the 1976 Act. We pointed out, and we think Mr Ibekwe accepted, that of course Section 4(2) merely renders unlawful discrimination as found under Section 1 and the difficulty he faces is that both for the purpose of Section 1 and for the purpose of Section 2, the victimisation complaint, the Industrial Tribunal found that there was no less favourable treatment meted out to the Appellant than a comparator.That really left Mr Ibekwe arguing that the Industrial Tribunal ought to have given more weight to the finding that the Appellant had done a protected act, or that the Tribunal ought to have made more favourable findings of fact, that is in favour of the Appellant. Our jurisdiction is limited to correcting errors of law. We cannot re-try the facts, nor indeed can we hear a new point which was not argued below. In this appeal Mr Ibekwe suggests that the Respondent discriminated against the Appellant in transferring him from the van driving job to the post room.So far as we can see, that way of putting the case was never advanced both in the Originating Application and at the hearing itself. In all these circumstances we have reached the conclusion that the first appeal discloses no arguable point of law and must be dismissed.

The Second Appeal

The facts here may be shortly stated. In November 1996 the Appellant joined a Trade Union, Public Transport (Staff) Consortium ("PTSC") which was a union not recognised by the Respondent. It had only come into existence earlier that year.On 25 October 1996 the Appellant was called to a disciplinary hearing to be held on 4 November 1996. In a letter from the Respondent of that date he was advised in these terms:
"The Council strongly recommends that you be accompanied at the hearing by either a work colleague or an official of a trade union recognised by the Council. You are advised that it is your responsibility to arrange such representation. If you wish you may also have a note taker at the hearing. Your note-taker will be permitted no other role in the proceedings."
That hearing date was subsequently vacated and PTSC wrote to the Respondent on 11 November asking for the opportunity to represent their new member. That request was denied by the Respondent, on the grounds that PTSC was not recognised by it.Further correspondence ensued, but the Respondent maintained that line.Eventually the Appellant presented a further complaint to the Industrial Tribunal (Case No.2301860/96) alleging that the Respondent had taken action short of dismissal against him contrary to Section 146(1)(c) of the Trade Union and Labour Relations (Consolidation) Act 1992.Section 146(1)(c) provides:
"(1) An employee has the right not have action short of dismissal taken against him as an individual by his employer for the purpose of - (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions."
We should also refer to Section 148(1) which provides:
"(1) On a complaint under section 146 it shall be for the employer to show the purpose for which action was taken against the complainant."
It seems to us that it is for the Applicant who asserts that action short of dismissal has been taken against him as an individual to prove, on the balance of probabilities, that action. Having done so, the burden of proof then shifts to the Respondent to show that the purpose for which the action was taken was not a prohibited purpose under Section 146(1)(a) to (c).The complaint came before an Industrial Tribunal chaired by Mr John Warren on 9 May 1997. For the reasons given in full on 31 July 1997 that Tribunal dismissed the complaint.In this appeal Mr Ibekwe challenges the Tribunal's conclusions on three interlocking grounds:(1) He challenges the Tribunal's finding that there was here no action short of dismissal taken against the Appellant as an individual. He says that the relevant action consisted of depriving the Appellant of his contractual right to representation at an internal disciplinary hearing by his trade union representative, as opposed to a recognised trade union representative or work colleague.(2) He submits that the contract of employment provided for such representation and refers to Rule 2.4 of the Disciplinary Procedure which provides:
"2.4 The Council strongly advises employees to be represented by a trade union recognised by the Council. Employees have the right to be represented by a trade union representative or an employee of their choice."
(3) He argues that action short of dismissal having been made out, the burden of proof shifted to the Respondent to show under Section 148(1) that the purpose in taking the action complained of was other than the prohibited purpose contained in Section 146(1)(c). He points out that the Respondent called no oral evidence although there was documentary evidence before the Tribunal, some of which came from the Respondent's side. Nevertheless, he submits that the Respondent could not be said to have discharged the burden of proof resting on it under Section 148(1) in the absence of any evidence being called.Having considered those submissions we have concluded that the Tribunal was entitled to find that there was here no action short of dismissal. The critical finding of fact, it seems to us by the Tribunal, was that it was the Respondent's invariable practice to afford representation rights to recognised trade unions only; a practice specified in the written guidance to managers, and in the circumstances, implicitly contained in the disciplinary procedure to which we have referred.It follows, in our judgment, that in the absence of action short of dismissal being made out by the Appellant, it is unnecessary for us to consider the argument addressed to us as to purpose and the burden of proof.Finally, Mr Ibekwe challenges the Industrial Tribunal's order for costs in the sum of £50. That is dealt with shortly in paragraph 9 of the Tribunal's Extended Reasons which says this:
"9 The Respondents' application for costs on the basis that the Applicant had been unreasonable in bringing the claim was successful to the extent that, having heard details of the Applicant's means and bearing in mind the Applicant was in receipt of unemployment benefit, the Tribunal ordered that the Applicant do pay a contribution of £50 towards the Respondents' costs on the basis that the Applicant's behaviour had been unreasonable."
The circumstances in which an Industrial Tribunal may make an order for costs are set out in Rule 12 of the Tribunal Rules of Procedure contained in Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 . It is unusual for an order for costs to be made but where, in the discretion of the Tribunal, a case falls within that Rule it may so order.It seems to us that where the Tribunal found that the Appellant had not made out a case for showing that action short of dismissal had been taken against him it was open to them to find that he had acted unreasonably in bringing the claim within the meaning of Rule 12(1) of the Rules.The Tribunal then went on to investigate, as they should, the Appellant's means. He was in receipt of benefit being unemployed at the relevant time. That is a material factor, but there is no rule which requires the Tribunal to make no order for costs because the Appellant/Applicant is unemployed.In all the circumstances, we can find no grounds for interfering with the costs order made on this occasion and in the circumstances we must also dismiss this appeal.