Sharma v Allsports (Retail) Ltd [1999] UKEAT 950_98_0102

EAT

Sharma v Allsports (Retail) Ltd

[1999] UKEAT 950_98_0102 · 1999-02-01

THE HONOURABLE MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Sharma wishes to make against the unanimous decision of an Industrial Tribunal, which rejected his complaint of unlawful discrimination on the grounds of race. Their decision followed a hearing at Ashford in Kent on 1 June 1998. Mr Sharma had brought a complaint against Allsports (Retail) Limited, his former employers. He alleged initially that he had been unfairly dismissed in addition to his complaint that he had been discriminated against, because he did not have the requisite period of service. His complaint of unfair dismissal was unsustainable and he withdrew it. This case before the Industrial Tribunal was therefore concerned, and concerned only, with the complaint of unlawful dismissal, that is dismissal on grounds of race, and this appeal is similarly so confined.

The Applicant was employed for just over 10 months until his dismissal. The Respondent company is a multiple retailer operating over 200 stores in the United Kingdom. The particular store where the Applicant worked was in the Pentagon Centre at Chatham in Kent, where he was employed as a sales assistant until his dismissal on 2 February 1998. He was summarily dismissed on that occasion for alleged gross misconduct, the allegation being that he was guilty of threatening and abusive behaviour to his branch manager and his work's colleagues.

The history of the matter is set out by the Industrial Tribunal in their decision. The essential findings may be summarised in this way: Firstly, there was an occasion on or about 10 November 1997 when the manager was asked by the Applicant for his tea break but he was asked to continue to work. The Tribunal said this:

"The Applicant became angry and threatened to fight (the manager) whereupon the Applicant was told that he should calm down and he was then allowed to go on his break."

The second incident appears to have occurred earlier in time, on or about 12 September 1997, when the Tribunal record their finding that "The Applicant became very angry and aggressive towards (a member of staff)."

The third incident took place around the middle of January 1998 when the manager was informed that another assistant had complained about the Applicant's alleged behaviour. Accordingly, an investigation was carried out into the attitude and behaviour of the Applicant. That led to an interview on 2 February 1998. The interview was recorded in writing and the interview record was initialled by the Applicant and signed by him as being correct. In the course of it, he admitted that he had offered to fight the person concerned in the third matter and that he had spoken angrily to his branch manager, but denied that other members of the staff were scared of him. He also denied having been involved in the incident on or about 12 September 1997 as had been portrayed by the company. He was then dismissed because of "his threatening and abusive behaviour to his work colleagues."

Not satisfied with his dismissal, he wrote and complained about it and his complaint was rejected, but an appeal was heard. The Tribunal say this:

"On the appeal, the applicant did not complain of any racial discrimination or harassment. He did admit to smashing a box on the counter and kicking a tote box. He also admitted to offering to fight outside the store. As a result, Mr Clayton dismissed the applicant's appeal and upheld the dismissal and wrote on 27 February confirming it."

There was a further appeal held on 28 March 1998 when the appeal was dismissed and the dismissal was upheld.

The Tribunal noted that there were many unsatisfactory aspects to the case. They concluded that the investigatory interview was held on 2 February 1998, which was recorded in detail and in writing, and that a "disciplinary hearing" was convened almost immediately afterwards and at that stage, the Applicant was not made aware that he was about to be dismissed. He was not notified of the specific allegations against him nor was he shown any of the statements made by those accusing him. He was not given the opportunity to have a representative with him. Most surprisingly of all, there were no notes whatsoever taken of the disciplinary hearing, no letter confirming the dismissal, nor was there any proper reply made to his letter of complaint to 12 February 1998.

The Tribunal said this:

"The way in which the dismissal was dealt with and the way in which the applicant was treated on 2 February 1998 was not very fair and indeed, the applicant may have succeeded had he been able to make a claim for unfair dismissal. However in a case of racial discrimination, we have to ask ourselves whether or not we can draw an inference whether the applicant's treatment was based on racial grounds. We cannot draw such an inference in this case. The applicant's treatment was unfair but we do not find that such treatment was racially motivated."

"There was a reference to an employee, Miss Basi, who was entitled to believe and did believe the statements which had been made to her by the four staff member and in the light of her belief that aggressive behaviour had been shown towards his colleagues, she was entitled to conclude that dismissal was a reasonable option. We accept the Respondent's reason for the dismissal as being their belief the Applicant's attitude towards his work colleagues, and in these circumstances the Applicant's claim for unlawful discrimination fails and is dismissed."

In his appeal, Mr Sharma has represented himself. Quite apart from the unsatisfactory matters to which the Tribunal has expressly drawn attention, Mr Sharma says that the whole of the Respondent's case was unreliable, if only because if he had been behaving aggressively, for example on 12 September 1997 as the employers alleged, it was astonishing that there was no oral warning or evidence in writing in relation to such an incident. As he rightly pointed out, aggression in the workplace is unacceptable and he would have expected to have received some kind of reprimand or warning had he stepped out of line. Yet there was no such evidence.

He feels strongly that his own case was not properly considered by the Industrial Tribunal. He was told, as he told us, that if he signed the interview notes as being accurate, then what was going to happen to him is that he would be given a written warning or verbal warning. So on that basis, he signed the document. Having done so, the employers immediately turned round and dismissed him. He says that that account should have been included in the Tribunal's decision. He says that the effect of branding him a violent or difficult man in the workplace has effectively damaged his long term prospects very substantially and that this is an injustice which the Employment Appeal Tribunal should put right.

Whilst we have some sympathy with the position adopted by Mr Sharma in this case, we must respectfully point out to him the limited nature of the powers we have as an appellate body. We can only interfere with a decision of an Industrial Tribunal if we are persuaded that there has been an error of law in their decision. A general allegation that the Tribunal's decision was perverse is not generally to be regarded as a point of law, and there is nothing in the detail of the case which leads us to believe that the Industrial Tribunal has overlooked an important element of the evidence. It is true that they do not appear to have said anything about the signing or initialling of the notes of evidence, but on the other hand, it does seem to us it is for the Tribunal to decide which parts of the evidence they regard as important and which parts they do not. Not all evidence that is presented to them by one party, even if uncontradicted, will be thought to be sufficiently reliable to be recorded in the decision, even if it is pertinent.

In this case, it seems to us that the Industrial Tribunal have fairly balanced their concerns about the evidence in paragraph 15 to which we have referred. They were well aware that the fact that an employer has behaved unreasonably does not of itself lead to the conclusion that they have behaved unlawfully on grounds of race. It seem to us that the Industrial Tribunal were entitled, on the basis of the material before them, to arrive at the conclusion which they did, even though the consequence of what Mr Sharma perceives to be a very unfair result may have longer term consequences on his job future. We would wish to record that Mr Sharma left school, according to his evidence, with 5 'O' levels and 2 'A' levels and behaved with complete propriety at the hearing before us, not displaying any sign of aggression or anger. We hope very much that he will be able to put this matter behind him as soon as possible.

For the purposes of this judgment, we can simply say that no arguable point of law has been shown and accordingly, this is not a matter which should go for a full hearing and we must dismiss the appeal. Because of the strength of his feeling, Mr Sharma indicated to us that if we were of the view that the appeal should be dismissed, he would wish to take the matter further. Accordingly, we treat what he said to us as an application for leave to appeal. In a case such as this, where we take the view that there is no arguable point of law, it seems to us not to be right for us then to give leave to appeal because that would indicate that somehow or another, we were in some doubt as to whether an arguable point of law had been shown. That is not the position in this case. We are sure that there is no arguable point of law. We therefore would not grant leave to appeal, but as we indicated, without encouragement to Mr Sharma, if he wishes to apply to the Court of Appeal for leave to appeal then he may do so.