Azunda v Heritage Care [1998] UKEAT 1283_98_1112

EAT
Azunda v Heritage Care
[1998] UKEAT 1283_98_1112 · 1998-12-11
HIS HONOUR JUDGE J. ALTMAN: This is an appeal by the Applicant from a decision of the Industrial Tribunal sitting at Stratford on 22 July 1998. It comes before us by way of preliminary hearing to determine whether there is an arguable point of law to justify the appeal being considered in full by the Employment Appeal Tribunal.The Applicant complained to the Tribunal that he had been both unfairly dismissed, and unlawfully discriminated against in the context of that dismissal on racial grounds. In its extended reasons the Tribunal set out its findings of fact. It is unnecessary for us to repeat them. It appears that having begun employment with the Respondents in 1991, the Applicant was suspended on 1 October 1997 on an allegation that he had prevailed upon someone in his care, because this was a care organisation, to buy alcohol for him whilst he was on duty, and that he had later failed to pay for it. That required, in view of the Respondents, disciplinary investigation. Two days' after his suspension, the Applicant gave a statement to the person conducting the investigation. That person then obtained other statements and 14 October was set as the hearing of the disciplinary allegations.In advance of that hearing, the Applicant was unable to work and produced a sick note describing the reason as stress. He was asked by the Respondents to attend their own doctor on 17 October. He said that he would, apparently, but did not attend, and we have been told by Mr Crosfill on behalf of the Applicant, that his evidence before the Tribunal was that he did not feel able to attend. A new date of 24 October was set for the disciplinary hearing in response to the sick note but the Applicant resigned 4 days' before that hearing and he set as the date for his resignation the expiry date of his sick note. That was pre-empted by the Respondents' proceeding in his absence with a disciplinary hearing and dismissing him summarily.The Applicant, through Mr Crosfill, does not criticise the findings of fact but puts his criticism of the decision of the Tribunal under the umbrella of their approach to those facts. We have been helpfully supplied by Mr Crosfill with a clear analysis in the form of a skeleton argument of the grounds of appeal and we are indebted to him for the very full and careful way in which he has argued that there is a point of law to merit further consideration. He raises a number of matters. First he refers to paragraph 7 of the decision of the Industrial Tribunal. The paragraph I quote in full:

"Paragraph 7

While, over a given period, a greater number of black African, as opposed to white UK, support workers had been dismissed, Unison, the relevant union for employees of the Respondent, commended the Respondent's Joint Forum on Equal Opportunities as the most far sighted and positive of any organisation it had encountered. From the above findings of fact we draw no inferences that the Respondent unlawfully discriminated against the Applicant on racial grounds"As a matter of construction, it seems to us that that final sentence was probably intended to apply to all the findings of fact set out at that stage, because of its position within the decision as a whole, although it has been printed as part of paragraph 7. Nonetheless, the essential direct finding that is relevant to racial discrimination at that stage is indeed paragraph 7.We have been told something of the statistical evidence before the Tribunal. Mr Crosfill has said that the narrow statistic, which was central to the Applicant's case, was that during a particular period, quite a long period, 13 black African and 4 white support workers had been dismissed, 2.5 times as many black than white, calling, said Mr Crosfill for an explanation and none was there before the Tribunal. Mr Crosfill argues that the existence of a joint forum on equal opportunities is no more than evidence of a general opportunity to deal with such discrimination as may have existed, it is not evidence that it does not exist. He says that the task facing the Tribunal was to see if there was any explanation for this disparity, other than that related to race, and then to consider whether in the absence of such explanation, an appropriate inference should be drawn.Mr Crosfill complains furthermore that the document to which reference is made was contained in the bundle of papers before the Tribunal but was not drawn into evidence by either party and was not referred to at all. He suggested that there was no evidence of the policy working and he pointed out that a recent survey has shown that organisations with a policy within a particular service tended to be more discriminatory than those without one. This seems a curious conclusion which one would hesitate to adopt, without a very careful examination of the research referred to. Nonetheless it illustrated Mr Crosfill's argument and there was no proper cross-examination available to the Applicant on that document from the Union which we have seen.We accept that this evidence was not specifically alluded to and, of course, it was a document which could not be cross-examined on, but it was evidence in the case and it was more than the existence of a framework for resolving allegations of discrimination, or investigating the possibility of discrimination; it was more than a policy; it was more than an organisation. The statement from the Branch Secretary, said that there was a joint forum and that there had been practical application of policies involving both monitoring and investigation of complaints or allegations. It is against that background, that the opinion of the Union was there expressed. Where a single employee draws to the attention of a Tribunal some general statistics, the Tribunal has to determine how to respond to them and what inference is to be drawn from them. It seems to us that where there is such evidence, as here, of the joint forum, a Tribunal is entitled to take it into account in considering where on the evidence those statistics are shown to lead.It is recognised that racial discrimination is a pernicious evil. Furthermore, it is only rarely that it broadcasts its name. Normally it skulks in the undergrowth and therefore it is difficult to prove and Tribunals are astute to look at the least indicators to see what inferences can fairly and properly be drawn. But where there is evidence before a Tribunal, a Tribunal is entitled to draw such inferences from the evidence that are proper. Whilst we note the arguments that have been addressed in this case, they are factual ones and we cannot find any argument of law. In this case the Tribunal approached the exercise, which they have specifically in effect set themselves, to see what inferences could properly be drawn. They referred to the statistics, they referred to the joint forum, and we have no doubt that they had in mind all the evidence they had heard and they made a finding upon it, which it seems to us they were entitled to make and cannot be, it seems to us, criticised in law. Otherwise one would be moving very close to the proposition, which does not find reflection in any case law, that as a matter of law an unexplained discrepancy in statistical terms proves racial discrimination i.e. - That would be the result if we were to find, within the arguments raised before us on that point, a point of law that could be argued before the Employment Appeal Tribunal, powerful though those arguments are when raised before the Industrial Tribunal.The next criticism of the decision of the Industrial Tribunal comes not so much in the section of the fact finding as in the section headed "race discrimination" in paragraph 12, in which the Tribunal held"such circumstances that the term race discrimination appeared to us no more than what one would expect in a normal employment situation".We have been helpfully told by Mr Crosfill that in his evidence the Applicant made, in Mr Crosfill's words, many and various complaints against a wide cross-section of the management team and expressed the view that this organisation was riddled with racism. Here again, it seems to us, and we have had an opportunity of looking at the Originating Application, that the conclusions expressed by the Tribunal are those which a Tribunal is entitled to express in the exercise of its fact-finding function and its inference-drawing function. Having made that general statement, in the rest of paragraph 12 (it is unnecessary for me to repeat it), the Tribunal set out an admittedly "broad brush" statement consistent with the approach to fairly generalised decisions of Industrial Tribunals that are given these days, some of the areas to which they have addressed their attention.We have had drawn to our attention no glaring, unchallenged piece of evidence which would have disentitled the Tribunal from drawing that inference to which reference has been made. Mr Crosfill suggested that the thought process, in effect, of the Tribunal was wrong. The first thing they should have considered was whether the complaints were legitimate and secondly, whether the actions of the employers in relation to each such matter was motivated by considerations of race. The only complaint, it seems to us that can be made is that that process was not spelt out by the Tribunal as the process they had adopted. But that does seem to us to have been implicit in the conclusions that they have reached, having set out in the preceding paragraph the very test and approach which in effect Mr Crosfill says they should have adopted. It does not seem to us be an arguable point of law on that ground.

The next complaint relates to paragraph 13, in which the Tribunal say

"We were impressed that notwithstanding the availability of the grievance procedure, he had not made any allegation of race discrimination until he sought legal advice after leaving his employment. Prior to dismissal, the Applicant had in fact tendered his resignation and the dismissal took place during the period of notice."
It is right to say that those sentences were preceded in the decision in the same paragraph by other in the following terms:
"The Applicant was put to some embarrassment when he was asked what he found racially discriminatory about the dismissal and its procedures. He was at a loss as to what to say. We took the view that if something offended him, he said that it was race discrimination."
That, it seems to us, is an important sentence within the body of the decision. It relates not only to questions of causation and preceding general allegations against the Respondents, but it also paves the way for the sentence in paragraph 13 of which complaint is made.Not being able to identify anything racially discriminatory about the dismissal and its procedures, the Tribunal then went on to point out the moment in time when the first complaint was made; they also referred to the fact that the Applicant had tendered his resignation, without complaining of such discrimination and they also point that the dismissal took place during the period of notice. In other words, the Applicant had already decided to leave for no express reason of discrimination. Mr Crosfill says that if in reading that finding, it is fair to conclude that the Tribunal was saying that evidence of failure to make a complaint is evidence that there was no racial discrimination, it would be an unjustified finding to make and one which no Tribunal reasonably directing itself could make and that the Tribunal would therefore have erred in law. As to that proposition, we agree wholeheartedly with it. It is a sad fact of the pressures of life that by and large people often feel the need to put up with racial discrimination without asserting the rights in relation to it, which the law entitles them to assert. But our reading of the paragraph is not so simplistic. It seems to us that the Tribunal were making a qualitative judgment of the complaint of racial discrimination in relation to a number of features, all set out within that paragraph. Only one of those features was the existence of a grievance procedure which in this particular organisation, a large organisation, is one which had within it the availability of Union representation of which the Applicant had not taken advantage. In that context it seems to us, the Tribunal were not saying that failure to make a complaint is evidence of no racial discrimination. There is no complaint as a matter of law.The next ground of appeal relates to paragraph 8 of the decision of the Tribunal.
"The disciplinary hearing was conducted in the absence of the Applicant. While the Applicant produced a sick note, it gave no details of any underlying medical problem. That is why the Respondent asked the Applicant to attend an appointment with its doctor. It would not have been too much of a problem for the Applicant to attend."
The complaint is made that the Tribunal were in effect substituting their own view rather than asking whether it was reasonable for the Respondents to conclude that the Applicant should have attended. Furthermore, it is said that in doing so they are making a medical judgment which they were not qualified to make, namely, whether the stress which the Applicant was suffering from reasonably precluded him from attending. But it is right to note the following sentence:

"Indeed he agreed to do so"

Whilst it may be that in the totality of the review of the facts it is true to observe that the Tribunal did not specifically ask itself the question, could it be that his stress in medical terms prevented his attending a doctor? Nonetheless it does not seem to us to be an error of law. They made a specific finding in the following words:
"Having failed , the Respondent was entitled to be sceptical as to his condition and to decide to proceed in his absence as he had full notice of the meeting."
Bearing in mind that the Applicant must have seen his own doctor in order to produce a medical certificate, in reaching our conclusion we do not consider that it can be said that the Tribunal erred in law.All the facts on which the Tribunal were entitled to find that the Respondent was entitled to be sceptical are set out. There is the small factual criticism to be made about the Tribunal is that possibly they jumped to the conclusion that the Applicant could have attended when he said he was not up to it. It does not seem to us that that really affects the broad thrust of the decision, and the approach of the Tribunal to the evidence such as to amount to allegation of an error of law, namely to say that the decision was perverse and beyond a finding which a Tribunal properly directing itself could arrive at.Finally, criticism was made of paragraph 6 of the decision. As to the timing of the appeal, it took two months for the appeal to be fixed. That is a very long time but some employers take longer than two months to fix an appeal and that is even worse. To keep an employee "hanging around" for two months is generally regarded as poor industrial relations practice, as we understand it, by reasonable employers. But the Tribunal is criticised for making a finding that, although the delay was greater than envisaged by the procedure, both parties were responsible for the delay. This relates to the complaint of unfair dismissal. It appears that the Respondents having scheduled to hear the appeal take place, which had taken almost two months for them to offer, the Applicant then asked for an adjournment quite close to that date. While it may be that there was an imbalance of blameworthiness in favour of the Applicant, in saying that both parties were responsible for the delay, the Tribunal did not say that they were both equally responsible and it is, as it seems to us, far too refined an argument to say that it was perverse for the Tribunal to come to the conclusion that there was a measure of joint responsibility here. It was on the facts of conclusion to which they were entitled to come and there can be no criticism that that finding was perverse in the way suggested so as to justify the argument that the Tribunal erred in law. Accordingly, it seems to us that there can be no criticism of their approach to their findings of fact that the Tribunal erred in law in any way and this appeal is dismissed at this stage.