ON DIGITAL LTD v (1) MR C O IBEH (2) FIRST SECURITY (GUARDS) (3) QVC LTD [2000] UKEAT 1071_00_0911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1071_00_0911Case No Appeal No. EAT/1071/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ON DIGITAL LTDAPPELLANT(1) MR C O IBEH (2) FIRST SECURITY (GUARDS) (3) QVC LTDRESPONDENT
Before
His Honour Judge H Wilson Mrs A Gallico Mr H SinghDate 9 November 2000
[1]APPEARANCES For the Appellants MR MICHAEL CREAMORE (Solicitor) Messrs Gregsons Solicitors St Christopher's House Tabor Grove London SW19 4EX JUDGE WILSON : This has been the preliminary hearing of a proposed appeal by the third respondent, On Digital Ltd, against the decision of the Employment Tribunal sitting at London (South) on 4th July 2000 concerning preliminary matters. As we understand it, it was more or less a directions hearing about these preliminary matters, because as things stood the applicant had listed three respondents to his complaints: First Security (Guards) Ltd, first respondent; QVC Ltd, second respondent and On Digital Ltd, third respondent. His complaints were about racial discrimination, victimisation on grounds of race, illegal deductions from his wages, unfair constructive dismissal and breach of contract and the duty of care under the Health and Safety Regulations. What it came down to was that he complained about racial abuse by an employee of On Digital, the third respondent, and victimisation by another employee of On Digital.[2]The applicant himself was employed by various security companies who were bought so that at the end he was employed First Security (Guards) Ltd and was at the QVC site as a supervisor. He made a complaint about racial abuse to his employers and then complained to the tribunal that no action was taken by his employers or the other respondents. On the other hand, however, he found himself moved to another site.[3]No evidence was heard before the tribunal, who were being asked to decide the question whether the three respondents should remain or whether some should be struck out at that stage.[4]In paragraph 2 of the tribunal's decision the tribunal said: "We have not heard evidence. … but for the purposes of this hearing only and without prejudice to any fact which a Tribunal hearing evidence might find, we set out the facts in summary as follows." and that was subject to the further preamble that it was by no means easy to define from the pleadings what the facts of the case were and that that difficulty was compounded by the way in which the matter had been presented to the tribunal.[5]The first fact that the tribunal found, for the limited purposes of their enquiry, was that there was some sort of contract between QVC and On Digital for benefits which On Digital enjoyed, but the tribunal had not seen that contract.[6]Secondly, the tribunal found that On Digital had complained to First Security about the way the applicant was doing his job. Shortly after that the applicant had written a report alleging the racial abuse by an employee of On Digital. Correspondence followed, and it emerged that On Digital had earlier asked First Security to remove the applicant or allocate him to other duties. Eventually QVC exercised their right under the contract to demand that the applicant was removed from the site. On 19th October the applicant resigned.[7]The Employment Tribunal found that the protected act was the complaint about the treatment of the applicant by the On Digital employee. The applicant said that QVC were liable as principals and that they aided and abetted the first respondents by not co-operating in investigations. He claimed that On Digital were liable as well because they were in effect also principals and aiders and abettors.[8]It was conceded on behalf of the first respondents, First Security, that they were properly respondents to these applications. The second respondent, QVC, did not contest that they were principals for the purposes of section 7 of the Race Relations Act 1976 in respect of the race discrimination and victimisation. The third respondents, On Digital, denied responsibility for any of the claims, relying on the decision in Anyanwu and Ebuzoeme v South Bank Students Union and South Bank University [2000] IRLR 37 .[9]The Employment Tribunal went on to say that they had referred themselves to the Court of Appeal decision in Abbey Life Assurance Co Ltd v Tansell [2000] IRLR 387 and had come to the conclusion that the case of race discrimination should proceed against all three respondents. The case of constructive dismissal, breach of contract and under the Wages Act should proceed against the first respondent, First Security, only. The tribunal went on to say that they did not determine finally what a tribunal trying the case would decide in matters of law as well as facts. They said:
"All we say is that it is at least arguable that under the Abbey Life case the Third Respondents could be held to be principals." and the tribunal went on to quote from the decision to show why they thought it was arguable. The tribunal went on to recognise that the case was not on all fours but said: "
It is clear to us that if the Applicant can prove his case then there was a situation in which he provided security services to On Digital and in that case he can argue that the law intends that they owe a duty under the Race Discrimination Act to him. We will allow the case to proceed upon that basis. …" The tribunal recognised that the South Bank decision was an impediment to the applicant so far as aiding and abetting was concerned, and then they went on to consider whether despite the fact that some of the incidents complained of occurred in June and July 1999, it was just and equitable for the tribunal to consider them even though they were out of time.[10]The tribunal came to the conclusion that it was just and equitable that the case should be tried. They said in paragraph 16:
"It is a serious matter when third parties bring influence on an employer to act to the detriment of one of their employees particularly when this is on racial grounds. In a case such as this it is understandable that an applicant needs legal advice in coping with the complexities of the law. The Third Respondent's [ On Digital ] difficulty in tracing a witness can be taken into account by the Tribunal hearing this case. In our experience it is rare that only one witness can know anything about a matter in issue and the fact the Tribunal are not bound by rules of evidence will enable the Respondent to call evidence from other sources."
[11]Concerning the finding by the Employment Tribunal that On Digital should remain in the case as third respondent, Mr Creamore on behalf of On Digital, seeks to persuade us that it was a perverse decision by the Employment Tribunal and one to which no reasonable tribunal could have come.[12]Mr Creamore has failed to persuade us that that is the case. In our view it seems that given the basis upon which the matter came before the tribunal, it is premature now to complain about the basis upon which the decision was reached. As the tribunal itself said, they were finding certain facts only for their own limited purposes. At the end of the day, what the tribunal hearing the matter next year concludes may well be vastly different, but at this stage we can see no prospect of success for this appeal were it go further and it must be dismissed at this stage.