Barnes v The Cheese Cellar Co Ltd [1997] UKEAT 98_97_2506

EAT

Barnes v The Cheese Cellar Co Ltd

[1997] UKEAT 98_97_2506 · 1997-06-25

JUDGE J HULL QC :

This is an appeal to us by Mr Andrew Barnes from a decision of the Industrial Tribunal sitting at London (South) on 13 November 1996. The Tribunal was presided over by Mrs Mason, with two industrial members.

Mr Barnes had complained to the Tribunal that he had been unfairly dismissed by his employers on 10 May 1996; that he had been subjected to racial discrimination; and he asked for compensation. He had been employed by a Company which had merged with the Respondents, his employers, after 1986, when he was first employed.

There was a break, as the Industrial Tribunal found, in 1991 when there had been some trouble over his timekeeping. He was dismissed, but he came back after a fortnight or so and spoke to the Manager and the Manager agreed to take him back. So it is clear that he must have merits which, in the view of the Manager, outweighed any faults and entitled the Manager to take him back.

So far as we know, from then on he worked satisfactorily, for a considerable period. There are no complaints recorded for five years. Then in March 1996 there was the transfer by the predecessor company, Rustic Cheese Co Ltd.

The Industrial Tribunal had to look into the case. They had to see what the true reason was for the dismissal. The Respondents had said that it was redundancy, but the Tribunal, of course, had to find whether that was so. Then they had to decide whether Mr Barnes had contributed in any way to his dismissal, if they found that it was unfair. Then they had to consider most seriously the suggestion that there had been racial discrimination against him. There the burden, of course, was on Mr Barnes. The Tribunal would naturally look to see whether he was treated in any way differently from other employees and, if so, what the explanation might be.

The Tribunal does seem to us to have carried out their task with considerable care. It is a careful and comprehensive decision on the face of it. We say that subject, of course, to the criticism which is made of it, which we shall have to consider in a little while.

The Tribunal said, after finding matters about Mr Barnes' race and the underlying facts, that Mr Williams was a Director of the previous company and he came with him to the new company. They said that, five years before this, Mr Barnes had been unpunctual and often absent. He was warned by Mr Williams that he would be dismissed, but he did not improve and so in October 1991 Mr Williams dismissed Mr Barnes. Then the Tribunal set out the story, which I have already told, about how Mr Barnes went to see Mr Williams and was re-employed and so they found that it was not, in fact, continuous employment; there was a break back in 1991.

Then they go on to deal with various other matters. They deal with the merger, and they say that a young woman (I believe she is Sharon Carey, another employee) went to work for another wholesale cheese company after the merger, but then she came back late in 1995 (we are told that ought to be 1996) and she returned to employment with the Respondent company, who were pleased to re-employ her, particularly with her added knowledge.

Then they go into the reason for dismissal. The Respondents said they wanted Mr Barnes to change over to a computerised invoicing system and it appears that in the view of his employers at any rate he was not good at that, although he had been good with the calculating machine.

And also, the Tribunal said:

"Mr Barnes was also giving problems as an employee by repetition of lateness and absenteeism. From March 1996 to the effective date of termination Mr Barnes took days of absence or arrived late without advance notice, merely telephoning and saying that he would not be in or he would be late. This caused problems to The Cheese Company and other employees who resented Mr Barnes's lateness and attitude and consequently the company's relationship with them. We think also it must have impacted on Mr Barnes's performance. Mr Williams [the Manager] spoke to Mr Barnes about the lateness and absenteeism and told him that he would be dismissed if it did not stop. Matters came to a head when at the beginning of May 1996, a week before he was dismissed, Mr Barnes took four days off work. He did not telephone himself to speak to Mr Wiggins or to the Directors but asked someone else to do it for him. Mr Williams regarded the absence as unjustified."

They go on to say that the decision was taken to dismiss him. It was considered that it would be kinder to state as the reason for dismissal that Mr Barnes was redundant, because the Manager was concerned that Mr Barnes should not have any slur on his character as an employee. So the Tribunal look into that and they go, at this stage, into the question of race. They say:

"We cannot detect any indication that one racial group has been favoured or treated less favourably than another. On the evidence we accept that the company saw its employees as individuals and treated them accordingly. We see nothing in the treatment of Mr Barnes to indicate that on racial grounds the company treated him less favourably than it treated or would have treated another employee."

Then they set out the law most comprehensively and they go to their conclusions. They say:

"The Tribunal finds that the principal reason for dismissal was Mr Williams's view that Mr Barnes had misconducted himself by his lateness and absenteeism. A subsidiary reason was Mr Barnes's lack of capacity in working the computer system. The Tribunal accepts that there was a redundancy situation ... but at the effective date of termination that was not the principal reason for dismissing Mr Barnes."

The Tribunal then went on to say, if it was this reason they found that it was a reason which, on the face of it, could justify dismissal. They decided whether the employers had acted reasonably or unreasonably, as the statute requires them to do. They say:

"We find the employers acted unreasonably. ... We note that, although Mr Williams gave Mr Barnes oral warnings, he did not give him any formal written warning and we think did not focus him sufficiently on the fact that he would lose his job if he did not improve. Furthermore, for fairness we would expect to see a formal interview between the employer and the employee before the decision to dismiss was taken. In our view this was a 'knee-jerk' reaction to Mr Barnes's behaviour and in all the circumstances we find the employer acted unreasonably."

That clearly is the finding one would expect on those findings of fact; that the employer should have done more to warn and consult the employee before dismissing him. They made findings on the subject of mitigation, which are not the subject of any appeal, and then they turn to the race discrimination complaint:

"The Tribunal has considered the evidence very carefully. There was a difference in race and a difference in treatment in this case because the Respondents dismissed the Applicant and they did not dismiss other employees at that time. We have therefore looked at the company's explanation for the dismissal. We are satisfied that, although they dismissed Mr Barnes unfairly nevertheless the dismissal was untainted by considerations of race. That being so, this complaint of unlawful discrimination on the grounds of race is dismissed."

As I say (I have not read the whole decision) it was clearly, on the face of it, a careful decision which was arrived at after paying careful attention to the evidence.

Mr Green has appeared under the Employment Law Appeal Advice Scheme (ELAAS) and we are extremely grateful to him for saying what there can be said in support of this appeal. We must say at the outset (what of course, Mr Green knows, but Mr Barnes may not) that we can entertain appeals only on grounds of law. We cannot possibly go into the facts again. Parliament has said that we are not to.

Mr Green makes points as follows. He says there is a possibility here that this dismissal took place in breach of the Transfer of Undertakings (Protection of Employment) Regulations 1981 . That might well be so, if the Tribunal had found that this was a case of redundancy, and that that was the reason for the dismissal. If they found that, it might very well have been necessary for them to look into the question whether the dismissal was caused by the transfer? And whether that had caused a redundancy situation? They did not do that and, in our view, there was no occasion for them to do that. What they did do was to find that the reason for dismissal, or at any rate the principal reason, was Mr Barnes' absenteeism and, in particular, the fact that he took four days off without permission; so that was the ground of their decision. We cannot go behind findings of fact of that sort.

Then Mr Green said to us that a finding of 50 per cent, in all the circumstances, was excessive. He said that Mr Barnes had only been absent on a number of occasions since the merger. That was the worst that could be said against him, and he ought not to have held against him the fact that he had been absent, or late, something like five years before. One can see the force of that. There is no indication that the Industrial Tribunal, so to speak, took that against him, but it was material to their consideration that he had, on a previous occasion, been warned by his employer. That was one of the many facts which they would take into consideration and they would also take into account that the employer, being reassured by Mr Barnes of his future intentions and behaviour, took him back and was not disappointed for a substantial period after that. So we cannot see any error there.

On the basis that this dismissal was unfair, for the reasons identified by the Tribunal, can it be said that the finding of 50 per cent contribution by Mr Barnes to his own dismissal was wrong in law? We are not concerned with the questions, "Would we have made the same deduction? Would we have reached the same conclusion?". Bearing in mind all that is said by Mr Green, we cannot find that that deduction is excessive, as a matter of law. As I say, it is not up to us to say whether another tribunal would have reached the same conclusion, whether another tribunal might have been more severe to Mr Barnes, or another less severe to him. We think it is within the range of possible views, on the facts of this case, and we cannot, in any way, interfere with that finding.

Then it is said that there is a mistake about Miss Carey. She is apparently a lady with a white skin and she, it is said, was doing Mr Barnes' job or part of Mr Barnes' job after he left. Miss Carey's position was one matter considered by the Industrial Tribunal and it seems to us that, bearing in mind that the employers put first and foremost here that they treated all their employees the same, as individuals; that they told the Tribunal all about the fact that they had a number of employees of different race; that they had never had any suggestion made that they were, in any way, prejudiced or discriminating in dealing with them; the question for the Tribunal, was first and foremost, whether they accepted that evidence, or whether they regarded it as just so much nonsense. The Tribunal had to enquire into that. They heard Mr Williams. They were satisfied of that matter. They had the situation of Miss Carey in mind.

We do not think it is even credibly suggested to us that any mistakes over Miss Carey's precise position affected their judgment that the employers were here putting forward their defence in good faith, and that the Tribunal felt obliged to accept their word with regard to race discrimination. That is important. Mr Barnes has told us - because Mr Green has only recently been instructed, of course, this morning - Mr Barnes thought it right to tell us, and we heard from him himself: he said that his case was that from the time of the merger he was doing a great deal of overtime, something like 26 hours in the 6 or 7 weeks which followed, and he said that one of the managers, a Mr Slawson, was making life uncomfortable for him. He wanted to back Mr Barnes into a corner and then take advantage of anything that went wrong and so Mr Slawson had found a way of making him, Mr Barnes, redundant.

We asked Mr Barnes whether he told the Tribunal about that and he said, yes, he did. So that was an important matter for the Tribunal to consider and of course, if they thought that that was the correct version and that was the real truth of the matter, and the clue to the case, they would inevitably have rejected the Manager's evidence and said, "Yes, this is a case where, in truth, the employers are treating this man unfairly, discriminating against him; and this is just a smokescreen that they are putting up". They did not say that at all. They heard Mr Barnes. They of course, we are sure, gave proper weight to what he and any other witness said and they reached the decision which they did. It is, in our view, a pure decision of fact and therefore, under the statute, we cannot possibly interfere with what has been done.

We cannot find here, even with Mr Green's assistance, any error of law. We realise that Mr Barnes, like any litigant who has the misfortune to have a decision against him, in which his evidence is not accepted and the evidence of others is, naturally feels a sense of grievance and resentment about that, but that unhappily is not a matter which we can help him with. All we can do is to say whether there is any error of law here. We cannot find any basis on which this appeal could succeed. We cannot find any error of law.

In those circumstances it is our duty to dismiss the appeal at this stage and not allow it to proceed to a full hearing. That is the decision of us all and those are the reasons of us all.