MR N ETIENNE v LONDON UNDERGROUND LIMITED [2000] UKEAT 219_99_0703

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] EAT 219_99_0703

Case No Appeal No. EAT/219/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR N ETIENNEAPPELLANT

LONDON UNDERGROUND LIMITEDRESPONDENT

Before

Mr Justice Burton Mr J A Scouller Mr N D Willis

Date 7 March 2000

[1]APPEARANCES For the Appellant MR S PATEL (Representative) Free Representation Unit Fourth Floor Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondents MR P THORNTON (of Counsel) Instructed by: The Legal Executive London Underground Ltd 55 Broadway London SW1H 0BD MR JUSTICE BURTON : This is an appeal by Mr Etienne against the dismissal by the Employment Tribunal of his applications for unfair dismissal and racial discrimination arising out of his dismissal by London Underground Ltd, the Respondent, initially, in March 1998 and then on appeal in May 1998, for the taking of cannabis by Mr Etienne when he was employed by the Respondent and in such a manner as to amount to gross misconduct. The position is that Mr Etienne was employed as a train maintainer for nearly 10 years and it was not in issue before the Tribunal that in relation to that job it was important that the public and his fellow employees and, indeed, he himself, should not be put at risk by his taking drugs.

[2]The circumstances as put before the investigation officer at a fact-finding interview, in which Mr Etienne was called upon to take part, was that he, the Appellant, could recall having consumed alcohol at a party, but could not recall smoking. At the subsequent disciplinary board before Mr Kinane, the Group Station Manager, on 16th March, when he was accompanied by a workplace colleague, he put forward a case that he had been socialising on a day four days before the day when he was tested positive for drugs, that people around him were smoking cannabis, and either he or his colleague who was with him put forward the proposition that he could have taken the substance passively or unknowingly, albeit that four days later he accepted that there was a positive test detected from a sample that he had supplied for the purpose of the Respondent's policy of random drug testing.

[3]Mr Kinane concluded, notwithstanding Mr Etienne's personal domestic difficulties, that due to the seriousness of the matter and the unsatisfactory explanation for the positive drug test, Mr Etienne would be dismissed.

[4]The Appellant appealed to a Mr Vellacott, the Engineering Development Manager for the Metropolitan and Circle lines. He was again accompanied at the appeal hearing. At this stage, at the appeal, he now admitted that he had taken cannabis. He told Mr Vellacott that he would keep away from users and would avoid friends who used cannabis. Mr Vellacott, who gave evidence before the Tribunal, took into account, he said, that the Appellant had a previous good record, but he also took into account that he had, by taking cannabis and then attending on duty, put not only himself but his colleagues and the respondent's customers at risk, and he told the Tribunal, and the Tribunal accepted, that he had no confidence in, and felt unable to rely on, assurances given by the Appellant that this conduct would not occur again, and so he dismissed the appeal.

[5]There was no mention in the course of the appeal of any comparative events, and it was only subsequently when this Originating Application was served that the case was made by the Appellant, which has formed the basis of his two application before the Employment Tribunal, that he had been unfairly treated by comparison with what had been done in relation to a Mr Yeo some 15 months earlier by a different disciplinary board.

[6]The applications that were made to the Employment Tribunal were first: that he had been unfairly dismissed and, secondly, that he had been discriminated against on grounds of his race, Mr Yeo being white.

[7]The Employment Tribunal in fact dealt with the matter in full, both by reference to what had occurred in relation to the Appellant, hearing both evidence from the Appellant and from those involved in his dismissal, and also by reference to evidence from a Mr Scott, the Performance Manager for the Metropolitan and Circle lines, who had been the chairman of the disciplinary board hearing in relation to Mr Yeo on 19th November 1996.

[8]The Employment Tribunal in fact considered the two sets of facts relating to each of those two employees and set out at paragraph 15 the matters that they took into account. They are as follows:

"(a) Throughout the disciplinary process Mr Etienne never mentioned the case of Mr Yeo by way of comparison, although he told us that he had been fully aware of the situation throughout. (b) Both Mr Kinane and Mr Vellacott told the Tribunal that they had no knowledge of Mr Yeo's case. (c) We noted that in the disciplinary process the personnel department of the Respondent was not involved. The Tribunal considers that part of the benefit in the personnel department being involved in disciplinary proceedings is that this can avoid inconsistency. (d) Both Mr Yeo and Mr Etienne were dismissed. It is the mitigating factors that differ in the two cases. In Mr Yeo's case he had 18 years' service whilst Mr Etienne only had 10 years' service. Mr Yeo had 80 per cent more service, which is a substantial amount. Mr Yeo was consistent throughout and told his disciplinary panel that he took cannabis deliberately for pain relief which did not work. On the other hand, Mr Etienne gave inconsistent explanations throughout the disciplinary process and at appeal admitted that he had taken cannabis on the basis that he thought that this would avoid his dismissal. Mr Scott felt that he could rely on the assurances given by Mr Yeo and Ms Singer in Mr Yeo's case, whereas Mr Vellacott felt unable to rely on the assurances given by Mr Etienne."

[9]The grounds of appeal in respect of the decision of the Employment Tribunal, which was unanimously to dismiss both such applications, falls into two parts. So far as the race discrimination allegation is concerned, the Appellant claims to be entitled to look straight at the comparator, Mr Yeo, and allege, as he did before the Tribunal, that, simply by virtue of what he submits to have been a material difference in treatment, he was discriminated against.

[10]So far as the unfair dismissal allegation is concerned however, it is not so simple. It is not simply a matter of going straight to the comparison with Mr Yeo because, as was found and, indeed, as was not challenged before the Employment Tribunal, Mr Kinane and Mr Vellacott had no knowledge of Mr Yeo's case, and therefore did not appreciate that they ought to be acting, if they indeed were so obliged, in such a way so as to avoid any disparity with that case, and although Mr Etienne apparently knew about the case of Mr Yeo, he did not mention it or bring it forward. It is not, therefore, as Mr Patel eventually accepted, a straightforward matter of looking immediately at the two cases, but an initial step for the purpose of unfair dismissal has to be arrived at first.

[11]The question of course is in unfair dismissal, did the employers act reasonably in treating the misconduct of the Appellant as sufficient grounds for dismissal? Neither of the two gentlemen involved, Mr Kinane and Mr Vellacott, knew about the events of Mr Yeo. So, first of all, the question has to be: did the employers, through those two gentlemen, act unreasonably in not knowing and thus not being in a position to compare them?

[12]What was submitted before the Employment Tribunal was that there ought to have been some system whereby employers put themselves into the position, or that in any event such a large employer as the Respondent ought to have been in the position, to put its dismissing officers into the knowledge of similar factual circumstances. Mr Patel, whether he put it in quite the same way before the Employment Tribunal is not clear to me, but certainly before us, submitted that the employers acted unreasonably in not ensuring that there was a system which enabled them to do so, either by having some kind of filing system on computer, in which the facts and circumstances of every relevant disciplinary matter would be stored and which could thus be called up by anyone carrying out a disciplinary hearing; or by way of officers involved in such a hearing asking around before hand to see if anyone of their fellows had any knowledge of any similar cases, in which case, says Mr Patel, Mr Yeo's situation would have become known to Mr Kinane and Vellacott because it would have been common knowledge; or by virtue of the involvement of the personnel department on a more active basis.

[13]This argument, in more or less that form and certainly based on the evidence which was before the Tribunal, was put before the Tribunal and they went so far as to make the implicit comment in the passage which I have read at paragraph 15(c) that it would have been better if the personnel department had been involved. It is apparently the case, that there is now at least an Action Plan which was at any rate placed before us even though it was not in evidence before the Tribunal, for 1998-1999, an Equal Opportunities Action Plan, by which it is planned that records of disciplinary cases should be collated, kept and reviewed with regard to ethnic origin. It may be, and we are not in a position to express any kind of informed opinion on it, that implementation of that would be beneficial. It has to be said, as I shall return a little later in my judgment to say, that it is not and must not be the be all and end all simply to look at such files and then operate some kind of tariff. This is made clear by the persuasive words of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Limited

[1981] IRLR 352

, as endorsed by the Court of Appeal in Paul v East Surrey District Health Authority

[1995] IRLR 305

. Waterhouse J said at paragraph 25:

"It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One only has to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import into this particular legislation."

In endorsing that guidance Beldam LJ in the Court of Appeal said at paragraph 35:

"I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved."

But certainly it may be sensible, particularly for a large employer, to have available that pool of information, if it can be done economically, and still leaving a wide sphere of discretion and judgment to the dismissing officer, so that he can and must take into account the individual circumstances of the employee before him, as well as the inevitably changing circumstances of employment, because nothing remains static and comparisons with other circumstances in other contexts and even in relation to facts months before, never mind years, need not remain relevant. But whether or not it would have been a good idea for London Underground to have such a system, or to involve the personnel department in order to achieve some kind of attempt at such a system, was canvassed before the Employment Tribunal, and although they indicated their view, as I have previously mentioned, they clearly considered that on the facts of this case it could not be said that the respondent had acted unreasonably in not having such a system, in not involving the personnel department or in creating, causing or contributing to a situation in which in fact the dismissing officers thus had in fact no knowledge of Mr Yeo's case, albeit that they had knowledge, as was clear from the evidence, of other cases which, insofar as they were within their knowledge, they did take into account.

[14]There is, we can see, no point of law to be elevated into this case that the Tribunal erred in law in concluding that the employers did not act reasonably by not having such a system or by leaving, causing, relying on or contributing to a system in which not all information about all disciplinary offences was automatically easily available to dismissing officers. Too many arguments which are in fact arguments of fact are sought to be elevated into points of law. The only basis on which an appeal point could arise out of this would be if there were a case that could be sustained that the Employment Tribunal was perverse, acting in a way in which no reasonable Employment Tribunal could act in failing to conclude that the employers were unreasonable in not having that system in place. We have heard Mr Patel's submissions in this regard and we are wholly satisfied that there is no case that can be made that this Tribunal acted in any way unreasonably or perversely in coming to the conclusion it did.

[15]But that is not the only hurdle in the way of Mr Patel because, in fact, notwithstanding its conclusion in that regard, the Tribunal did in fact consider, as in any event it was bound to do for the purposes of the racial discrimination case, the question of comparison between Mr Yeo and the Appellant, even though that comparison was not drawn to the attention of, and was not known to, Mr Kinane and Mr Vellacott at the time. The Tribunal heard the evidence, which of course this Appeal Tribunal has no opportunity to do, albeit that some limited notes of evidence have been put before us.

[16]I have recited the passage in which the conclusions of the Employment Tribunal are set out. They concluded that there was a material difference which could justify different treatments of Mr Yeo and the Appellant.

[17]Mr Yeo was dealt with by the Respondent on the basis that he was given what amounted to a suspended dismissal. He was, as it was put at the time by Mr Scott, 'dismissed on notice' but such dismissal was suspended for 104 weeks and would only be activated in the event that there were any further repetition of the offence of using drugs, and he would be subject to continuous monitoring to ensure that that was not the case. The Appellant, however, was dismissed outright.

[18]In the passage which I have read at paragraph 15(d) the Chairman says:

"Both Mr Yeo and Mr Etienne were dismissed."

Mr Patel submits that that shows that the Employment Tribunal had misunderstood the position, and had thought that in fact that there was no difference between the two because they were both dismissed. If of course that was the only sentence in the decision, then there could be such an argument, but it is totally clear to us, and Mr Patel of course himself it was who argued the matter the below and so he knows that that was not the limit of the argument before the Tribunal, that they did not stop there. It is a perfectly possible sentence to stand as it does, given that in fact they were both dismissed, in the sense that the dismissal that was imposed on Mr Yeo was a different kind of dismissal, it was suspended – a somewhat unusual animal as far as this Tribunal is concerned – but nevertheless it was a kind of dismissal. But the sentence does not in any event stand alone, because the Chairman goes on to set out the material differences as they saw them to be. If they had not considered that they were differently treated, they would not have gone on to consider whether that different treatment was justified, as in fact the Tribunal did.

[19]So what were the differences which the Employment Tribunal identified between Mr Yeo, who was only given a suspended dismissal, and the Appellant who was dismissed outright? The differences that were identified by the Chairman in that paragraph are, though not in this

[20]Secondly, intertwined but even more important, Mr Scott gave evidence that he accepted Mr Yeo's assurances that he would not do it again, whereas Mr Vellacott gave evidence that he did not accept the Appellant's assurances. There were thus, on the evidence before the Tribunal, substantial differences between the two cases as presented to the Tribunal on behalf of the Respondent.

[21]Mr Patel has submitted before us that Mr Scott of the Respondent should not have accepted Mr Yeo's account, in the light of the fact that there was contested medical evidence that he may have taken the cannabis on more than one occasion. It seems to us that that takes Mr Patel nowhere. If in fact Mr Scott should not have accepted Mr Yeo's assurances, that simply means that Mr Yeo was lucky to get away with suspended dismissal rather than dismissal. In fact, in any event, the dispute was limited to the number of times he had used cannabis and not, even on Mr Patel's submission, to a dispute about whether he had been taking it for medical reasons. However, Mr Patel, in the course of argument, seemingly accepting the fact that it would not help him at all if it was simply that Mr Scott should not have accepted the assurance, indicated that (although reluctant to do so) he was really wishing to suggest that Mr Scott was not telling the truth when he said that he had accepted Mr Yeo's assurances. That would at least have the merit of some logic, because the argument would be that the Tribunal should have found that Mr Yeo was simply treated leniently, and that Mr Scott was coming to court to give evidence to say that he had accepted the assurances, when in fact he had done nothing of the kind, but had not accepted the assurances, and thus that Mr Yeo should be treated as being in the same position as the Appellant, in respect of whom Mr Vellacott was saying that he had not accepted his assurances. If that case had been put, which we do not believe it was because of the reluctance with which Mr Patel put it before us today, then the Employment Tribunal would have had the opportunity of deciding whether or not Mr Scott was telling lies, but we understand that it was not put; even if it had been put, it is quite plain that the Employment Tribunal accepted the evidence of Mr Scott that he accepted Mr Yeo's assurances.

[22]It appears to us that it is not open in any way for us to conclude that the Employment Tribunal was unreasonable or perverse in accepting that evidence, and nothing has been put before us, particularly in the absence of any challenge put to Mr Scott that he was lying, upon which we could reach such conclusion.

[23]In those circumstances, we are faced with the issue as to whether there is, having heard all the evidence, a material difference between Mr Yeo's case, unknown as it was to Mr Kinane and Mr Vellacott, and Mr Etienne's case. This is where one has to consider both unfair dismissal and racial discrimination, because Mr Patel has accepted that the consideration must be the same for both. If there were grounds for distinguishing the two, then(a) it was not unfair, or would not have been unfair had the employers known about it, for them to have treated the Appellant differently; and

(b) there would be no grounds, no separate case on racial discrimination, based upon inferences to be drawn from the difference of treatment of the two comparators.

[24]The Chairman in paragraph 16 of his decision, in the context of unfair dismissal, referred to Hadjioannou and spoke of decisions made by an employer in truly parallel circumstances in which it might then be sufficient to support an argument that it was not reasonable for the employer to dismiss for the employee's conduct, but that some lesser penalty may be appropriate and he said:

"…We have to be satisfied that the cases of Mr Yeo and Mr Etienne are truly parallel. For the reasons given above, we do not consider that they were truly parallel – they have differing mitigating factors."

[25]So far as racial discrimination is concerned, when returning to the same question in paragraph 21, the Chairman says:

"In reaching our decision on this case we took into account that there was no evidence before us that the reason for Mr Etienne's dismissal was because of his race. Nor was there any evidence that Mr Etienne was treated any differently from Mr Yeo because of his race. We are unable to draw any inference from the facts found that Mr Etienne was discriminated against on the grounds of his race and it is the unanimous decision of the Tribunal that the complaint of direct racial discrimination fails."

The wording used by the Tribunal in the context of the claim of unfair dismissal, is 'truly parallel', which phraseology does appear in Hadjioannou , but Mr Patel rightly submits it should more correctly have been 'truly similar' rather than 'truly parallel'. However in the end he submits that the test would be whether there were any material differences. In the case of racial discrimination, the words used by the Tribunal are 'treated any differently', when the statute would again highlight the question of material differences.

[26]It seems to us that, in relation to the racial discrimination claim, if anything the Tribunal was too favourable to the Appellant by asking the question as to whether Mr Etienne was treated any differently than Mr Yeo, when all it needed to have asked was whether there was any material difference between the treatment of Mr Etienne and Mr Yeo. But even if that were not so, it is quite plain that the questions that they were asking themselves were the right questions, and that in practice, whatever the language used, the Tribunal was identifying material differences for the purpose of both unfair dismissal and racial discrimination, and on the basis of the findings made by the Tribunal they concluded that there were material differences.

[27]Mr Patel has accepted that an employer dismissing an employee in this kind of case must have a wide discretion and that the question of disparity must always involve a degree of judgment. That is a correct concession, but it renders it the more difficult for Mr Patel then to submit, as he must in this case, not only that no reasonable employer could have come to different decisions in relation to the cases of Mr Yeo and Mr Etienne in order fairly to dismiss the latter and in order to avoid the conclusion that the only distinction must have been one based on race, but also that no reasonable Employment Tribunal could reach a conclusion other than that the employer acted unreasonably and discriminatorily. That is a double hurdle over which Mr Patel fails to jump.

[28]In our view there is no criticism that can be made of the Employment Tribunal's conclusion that the Respondent had grounds upon which to distinguish between Mr Yeo and Mr Etienne, certainly such as to eliminate any inference that there was no proper distinction, and thus differentiation on grounds of race. In those circumstances, this appeal is dismissed.

order

first, that there was difference in length of service between Mr Yeo and the Appellant. Certainly, if that were the only matter, this Tribunal, at least, would not conclude that that was a sufficient ground, or indeed any ground for differentiating between the two, once it was clear that both of them were employees of longstanding. But the Chairman did not leave it there. The fundamental differences between the two were identified as being, and they intertwine: that the Appellant gave inconsistent accounts and that the Appellant's assurances were not to be trusted, unlike Mr Yeo's. I have already recounted these inconsistent accounts. He first of all said that he thought it was simply alcohol he must have taken, and could not recall anything else at a party, and then subsequently he thought he may have taken cannabis unknowingly or perhaps imbibed, if one can, by way of passive smoking, which account was disbelieved by Mr Kinane, and then on appeal he admitted taking the cannabis. At the Tribunal he indicated that he had only admitted that because he thought that it would be the best way of saving his job. Whether that is right or not does not matter, because that was not the explanation that was given before the employers at the time. They were being faced with someone who initially had denied, giving an explanation, which they had disbelieved, and then was subsequently accepting, that he had been guilty of misconduct, and that was where they were at the time of the appeal. So he had given inconsistent accounts, whereas Mr Yeo had said that he had taken cannabis for medical reasons; that was an account that was accepted by the different representative of the Respondent, namely Mr Scott who dealt with it, albeit that there was some issue about how many times Mr Yeo had taken cannabis for that purpose, and he was consistent, on that basis, throughout.