MR C A DALEY v (1) LAFARGE REDLAND AGGREGATES LTD (2) MR P RAMSEY [1999] UKEAT 525_99_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 525_99_2009Case No Appeal No. EAT/525/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C A DALEYAPPELLANT(1) LAFARGE REDLAND AGGREGATES LTD (2) MR P RAMSEYRESPONDENT
Before
His Honour Judge Peter ClarkLord Gladwin of CleeDate 20 September 1999
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK : This is an appeal by Mr Daley, the applicant before the Bedford Employment Tribunal, against that tribunal's decision, promulgated with extended reasons on 26th March 1999, dismissing his complaint of unlawful racial discrimination brought against his former employer, Lafarge Redland Aggregates Ltd and his line manager, Mr Peter Ramsey. The Notice of Appeal is dated 2nd April 1999. On 18th May 1999 a Notice of Hearing for today's date was sent to the appellant at his home address, 36 Glencoe Avenue, Ilford, Essex. No response was received to the Notice of Hearing and he has failed to attend before us today without explanation. An attempt was made to telephone him, but enquiries revealed that his telephone number was unlisted. We put the case back to the end of our list, but still there has been no attendance or explanation by the appellant who is in person, and in those circumstances, it now being 3 p.m., we shall proceed to give our judgment, having considered the case on the papers. The appellant is black and of African-Caribbean racial origin. On 10th October 1997 he joined the respondent as a management accountant in Lafarge's Waste Division. He was recommended for a transfer to the post of 'No. 2' to the newly appointed Financial Manager, Mr Ramsey, who took up his post on 27th April 1998.[2]It was the appellant's evidence that when he first met Mr Ramsey the latter remarked "I am surprised it is you, you guys do not normally do accounting, you normally do office admin, etc.". The appellant took that remark to be directed to his race. Mr Ramsey denied making the remark, but the tribunal accepted and found as a fact that words to that effect were used by Mr Ramsey.[3]It is clear from the tribunal's further findings of fact that the working relationship between the appellant and Mr Ramsey never gelled. The difficulty, so the tribunal found, was the appellant's continuing disagreement with Mr Ramsey's insistence that the appellant was essentially his subordinate and was required to follow instructions. The tribunal refer in their reasons to certain memoranda written by the appellant on 30th April, 14th May and 18th May to a wide audience. Finally there was a memorandum of 19th May which the tribunal found constituted a threat to Mr Ramsey's authority.[4]On 21st May a disciplinary hearing took place before Mr Ramsey lasting for nearly 1½ hours. At one stage this exchange, which the tribunal found to be significant, took place: Mr Ramsey :
"Do you accept the structure and my authority to make all decisions?"
The appellant :
"No response, I choose to withhold my answer."
[5]At the end of the meeting the appellant was dismissed with immediate effect. A letter of dismissal dated 22nd May gave as the reason for dismissal an irretrievable breakdown in trust and confidence as a result of the appellant's attitude towards Mr Ramsey as his line manager, his failure to obey reasonable instructions, failure to prepare himself to assume responsibility for the computer system and poor time-keeping. An appeal against that decision was heard on 2nd June 1998 by one of Mr Ramsey's juniors, Mrs Baynes. The appeal was dismissed.[6]Finally, the tribunal found that on 13th March 1998 an incident occurred involving an altercation between an accounts clerk, Mr Hawkes and his supervisor, Miss Mellilo. Mr Hawkes, who had been suffering from a dental problem, was reprimanded by a Mr Reilly and sent home. He was subsequently given a verbal warning.[7]On these facts, and having considered the parties' detailed submissions, the tribunal concluded that so far as the complaint of racial discrimination was concerned, the appellant had failed to make it out. In particular, they rejected the argument that his dismissal was referable to the racial attitude connoted by Mr Ramsey's remark to the appellant on 27th March 1998. There was a fundamental incompatibility between the personalities of the appellant and Mr Ramsey coupled with a real threat to Mr Ramsey's authority caused by the appellant's attitude displayed in his memoranda. He was not treated less favourably on racial grounds than would another subordinate employee have been in the circumstances as found.[8]In the absence of any skeleton argument or oral representations by the appellant, we look to his grounds of appeal in the Notice of Appeal dated 2nd April 1999. They read:
"3. The ET found the respondent lied in regards to a racist statement. However they failed to appreciate the manifestation of that statement via the unfair dismissal."
Under the heading grounds of appeal:
"Contrary to RR 1976 Mr Daley was unfairly treated because of color. His dismissal was predetermined before the disciplinary hearing. A white male who grossly misconducted himself was treated differently."
[9]It seems to us that the thrust of the appellant's case on appeal is that having rejected Mr Ramsey's evidence as to the alleged remarks made on 27th March 1998, the tribunal ought to have concluded that the dismissal was on racial grounds. We cannot accept that submission. It seems to us the tribunal, having decided the factual conflict as to the remark on 27th April in favour of the appellant, they properly took it into account and deciding whether or not to draw the inference of unlawful discrimination, however they accepted the respondent's explanation that the reason for dismissal was the appellant's attitude to the authority of Mr Ramsey. Further, the Hawke's incident was not material. In these circumstances we can see no grounds in law for interfering with the tribunal's decision to dismiss the race discrimination complaint. Cross-appeal[10]In addition to his complaint of racial discrimination the appellant raised a complaint of unfair dismissal. He had completed less than one years service at the effective date of termination, let alone the two years then required by s.108(1) of the Employment Rights Act 1996. It was submitted on behalf of the respondent below that the Employment Tribunal had no jurisdiction to entertain the complaint. Reference is made in the tribunal's reasons to the Seymour-Smith litigation, which is concerned with those employees claiming unfair dismissal who have between 1and 2 year's service.[11]The Employment Tribunal took what, in our experience, was a highly unusual course. They considered the complaint of unfair dismissal, purported to find that it was made out, and then held that the appellant was precluded from seeking a remedy based on that finding. The unfair dismissal application was then adjourned generally, presumably pending the final determination of the Seymour-Smith case by the House of Lords.[12]In their PHD form, and in a covering letter from their solicitors dated 27th April 1999, the respondent has indicated an intention to cross-appeal against the tribunal's finding of unfair dismissal, which cross-appeal they say will form part of their Answer. No Answer has as yet been filed, and the respondent has not appeared today to advance the cross-appeal.[13]We see the force of the proposed cross-appeal. Unless the tribunal has jurisdiction to entertain the complaint of unfair dismissal it should not, arguably, embark on an investigation of that complaint. However, there is no timeous appeal against that finding by the respondent. The preliminary hearing Practice Direction, effective from 1st October 1997, draws a clear distinction between cross-appeals which will only be pursued in the event that leave is given to the appellant to pursue his appeal to a full hearing, and those where the respondent wishes to pursue the cross-appeal regardless of the outcome of the preliminary hearing so far as the appeal is concerned. In the latter instance the respondent must send an answer and cross-appeal with the PHD form. Thereafter the respondent must attend the preliminary hearing in order to show that the cross-appeal raises an arguable point of law to go forward to a full appeal hearing.[14]Thus, although the proposed cross-appeal appears to us to have considerable merit, procedurally this case falls into the first category identified in the Practice Direction. Accordingly we can take no further action on the proposed cross-appeal.[15]In the event, our order is simply that this appeal be dismissed.