McPherson v Jewish Care & Anor [1998] UKEAT 874_98_0111

EAT

McPherson v Jewish Care & Anor

[1998] UKEAT 874_98_0111 · 1998-11-01

JUDGE D PUGSLEY :

This is a case in which we are grateful to have had the assistance of a representative of the ELAAS scheme, Mr Weisbard, who has submitted amended grounds of appeal. We have to say that the original Notice of Appeal, drafted by the Appellant, really only raises issues that relate to fact: that does not mean they are not extremely important to her but, of course, we are only able to deal with issues arising of law.

The amended grounds of appeal state that the Industrial Tribunal were wrong in law in respect of the claim for race discrimination in that:

1) The Tribunal failed to consider adequately or at all whether the first Respondent treated the Appellant less favourably than they would have treated any other person not being in the same racial group and/or colour as the Appellant in the circumstances relevant to the purpose of the Race Relations Act 19.., contrary to Section 1(1) and 4(2)(c).

2) In particular they failed to consider adequately or at all(1) whether the first Respondent would have dismissed the Appellant but for her racial group and/or colour

(2) whether but for her racial group and her colour, through their assistant director, Mr Coleman, the Respondent would have told the Appellant, on 18 December 1995, that they would be meeting again on 20 December, then sent her letter of dismissal without holding such a meeting.

(3) What inferences, if any, it would be proper to draw from such dismissal contrary to Principle 3 of the principles set out in King v The Great Britain China Centre

(1991) IRLR 513

& 518.

The Tribunal hearing lasted some two days and it is pertinent to note that at its conclusion the Respondents applied for costs against the Applicant and the Tribunal made no order. They found that the Applicant did have a genuine belief she had been discriminated against on racial grounds by both Respondents although on their finding there was never any evidence to support that belief and there was, in their view, no foundation to the case. They said that her case was non-existent, in the conclusion of her evidence, it was nevertheless pursued into the second day in the misplaced expectation that cross-examination of the other Respondent witnesses would make her case stronger. It did not. A weak case became weaker.

It is perfectly right, as Mr Weisbard has reminded us, that Tribunal's decisions should make it clear that in reaching their decision they have asked the right question. The question that Mr Weisbard says has not been asked is what he says is the crucial one; whether the Respondent would have been dismissed but for her racial group and colour and whether but for her racial group and colour she would have been told that on the 18th there would be a further meeting and then - it seems without a further meeting - on 20 December sent a letter of dismissal without holding such a meeting.

The facts of the case, which it is unnecessary to go into at great length, are that the Applicant started work for the Respondents, Jewish Care. There is no complaint made of the decision of the Industrial Tribunal that they had no jurisdiction in the unfair dismissal case as the Applicant had only been employed there for one month and ten days. It was inappropriate to stay the matters pending the resolution of the Seymour-Smith decision.

A number of people gave evidence and it is quite clear that this organisation unfortunately was one in which, long before the Applicant arrived, there had been a series or spate of thefts in the office and employees were told to take particular care in ensuring that both company property and their own personal property was locked away and kept safe.

The Applicant started work on 20 November 1995. The position is that by the 20 December it is quite clear, on the findings of the Tribunal, that relations between the Applicant and other working colleagues were such that there had been a complete breakdown in relations between her and the other employees. The Applicant, who at all times was represented by Counsel instructed by the Camden Community Law Centre, was putting her case in this way; they say the way the Applicant's complaint of harassment was handled and the speed of her dismissal was such that no proper investigation was carried out; they say the proper inference to be drawn is but for the fact there had been racial overtones there would have been no dismissal. The reason for the dismissal was that the Applicant had brought a race complaint and they say this was victimisation. The second Respondent, it is said, was a person who had also discriminated, treating the Applicant, it was said, like a thief.

The Tribunal summed up their position in this way at para 15:-

"Mr Colman carried out a proper investigation in so far as he could. The Applicant was given sufficient time, including time off from work in order to enable to formulate a complaint in writing. Mr Colman took the view, rightly, in this Tribunal's judgment, that the Applicant's allegations were so nebulous that they were incapable of being investigated. He held meetings with the staff concerned. The Applicant was not followed round the building nor considered by the other staff to be a thief. She had misconstrued the innocent actions and comments made by her colleagues which were not directed at her. It is clear the atmosphere in the property department had deteriorated as a result of the Applicant's allegations, there was an irretrievable breakdown in the relationships between the Applicant and the other staff, as became apparent at the final meeting on 19 December. Mr Colman felt there was no point in moving the Applicant to another department - she had also made allegations against staff who worked outside the property department - something had to be done to restore the property department as a functioning unit. That would not have been possible given the breakdown in relationships. The Applicant was a probationer with four weeks service. Mr Colman took the view there was no point going back to the Applicant for further discussions. He dismissed her. It is the Tribunal's unanimous decision that dismissal by the first Respondent was not an act of race discrimination and/or victimisation contrary to Section 1(1)(a), 2 and 4(2)(c) of the 1970 Act, nor did the first Respondent subject her to any detriment on racial grounds in relation to the investigation or complaint contrary to Section 1(1)(a) and 4(2)(c) of the 1976 Act. The first Respondent did not dismiss her because they had perceived that her 'black sheep' references in a report was a race discrimination complaint. In fact they did not take that to be a reference to an allegation of race discrimination. It is not in dispute that apart from that one reference to 'black sheep' the Applicant did not make any other allegation which was capable of being construed even by implication as a protected act under Section 2 of the 1976 Act. There was no act of victimisation or race victimisation by the first Respondent against the Applicant. The fact she was the only black employee in that small department at that particular time is irrelevant. Black persons had been previously employed in that department and there are black employees currently employed by the first Respondent in other departments.

16 It follows, and it is the unanimous decision of this Tribunal, that all the complaints of the Applicant against both Respondents under the 1976 failed and they are dismissed."

The point of law which Mr Weisbard argues before us, and argues very persuasively, is that whilst the Tribunal have comprehensively set out reasons in para 15 one looks in vain for them asking the simple question whether or not they would have treated any other person, not being of the same racial group or colour as the Appellant, in the circumstances relevant to the purposes of the Race Relations Act and in particular whether she would have been dismissed and whether the second meeting would not have taken place.

It is clear that the Applicant was told there was to be a further meeting though it is also right there is a finding of fact, made in para 15, that Mr Colman took the view there was no point in going back to the Applicant for further discussions because of the breakdown of the relations which had occurred. One bears in mind that there had been earlier findings of fact as to the reaction of the other staff after the meeting with the Applicant on 18 December.

It is true that the Tribunal do not set out that issue in the text book manner in which Mr Weisbard says it should be set out. Although the Tribunal make reference to King v The Great Britain China Centre , do they in terms set out in the extended test. But looking at the decision as a whole it is in our view quite clear that the Tribunal made a finding of fact that there was no evidence of discrimination and no evidence from which an inference of discrimination could be drawn. That is, in our view, quite clear from the terms of para 15 of their decision. They note that Mr Colman had carried out a proper investigation. The Tribunal took the view that the Applicant's allegations were so nebulous that they were incapable of being investigated. Mr Colman held meetings with the staff concerned. The Tribunal made the finding that the Applicant misconstrued the innocent actions and comments made by colleagues which were not directed at her and they made the finding that there had been an irretrievable breakdown of relations between the Applicant and the other staff which was such that no further meeting was appropriate because it would have had little or no point to it. They made the point that, apart from the reference to 'black sheep' - which was not taken to be a reference to an allegation of race discrimination - the Applicant made no other allegation that was capable of being construed even by implication as a protected act. They make the point there was no history in this department of race discrimination in the sense that employing anyone who was black was in any way unique. Black persons had been previously employed in that department and there were black employees employed in other departments.

Whilst it is appropriate to say that the questions asked in the Amended Grounds of Appeal might preferably be ones that were in terms recited in the Tribunal we consider it is not an error of law not to recite a particular formula when it is patently clear from the way in which the matter is dealt with that the Tribunal had those issues very much in mind and resolved them in a way which made it quite clear, on any fair-minded reading of the decision, what the basis of their decision was.

We are extremely grateful that Mr Weisbard has appeared and he has obviously found issues that could be construed as matters of law. Having looked at the whole of the decision, we have come to the view that it would be an unrealistic counsel of perfection, and not desirable, to say that in each and every case a decision discloses an error of law unless a particular liturgical formula is used. As long as the Appeal Tribunal is satisfied, as we are, that the Tribunal asked the right questions and directed themselves as to what the real issues in this case were. In those circumstances we dismiss the appeal.