MR S HUSSAIN-SHAH MR A JABBER v DEXION LTD [2000] UKEAT 276_00_2706

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 276_00_2706

Case No Appeal No. EAT/276/00 & EAT/277/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S HUSSAIN-SHAH MR A JABBERAPPELLANT

DEXION LTDRESPONDENT

Before

His Honour Judge J Altman Mr S M Springer

Date 27 June 2000

[1]APPEARANCES For the Appellants MR C GRUMBALL (solicitor) Messrs Underwoods 83 / 85 Marlowes Hemel Hempstead Hertfordshire HP1 1LF JUDGE ALTMAN These are appeals from the decision of the Employment Tribunal sitting at London (North) on 3 December 1999. The Employment Tribunal found that complaints of unfair dismissal, wrongful dismissal and race discrimination in relation to both Appellants fell to be dismissed. In respect of Mr Jabber they found proved his complaint of unlawful deduction from wages. The only appeal in relation to both Appellants is against the dismissal of their claims for race discrimination. Mr Grumball has put the argument to us in this hearing. The appeal comes before us by way of preliminary hearing to determine if there is a point of law to merit argument in full before the Employment Appeal Tribunal.

[2]Mr Grumball contends that the Originating Applications before the Employment Tribunal made it clear that there were two white people who were treated more favourably so as to give rise to a need for the Employment Tribunal to determine if the Appellants were treated less favourably on the grounds of their race. Mr Baker was alleged to have previously placed a beam against the safety switch of a similar machine but only received a verbal warning and a Mr Collins to have placed a tape over the safety switch of a different machine and received only a verbal warning.

[3]The ground upon which the appeal is argued at this stage is that there is an arguable point of law, it is said, that the Employment Tribunal in assessing the complaint of race discrimination did not properly deal with the cited comparators. Reference was made to the decision of the Employment Appeal Tribunal in The Cromwell hospital –v- Mr F Francis & Mr K Licorish

EAT/654/98

, in which His Honour Judge Peter Clark set out the steps to be taken by the Employment Tribunal in determining complaints of racial discrimination. The first step was described as follows:

"Was the complainant treated less favourably then an actual or hypothetical comparator of different racial origins in circumstances where the case of the complainant is the same or not materially different from that of the comparator (Section 3(4))? It follows that it would be necessary for the tribunal to identify an actual or hypothetical comparator complying with section 3.4."

[4]We pause to observe that in formulating the first question in that way the learned Judge in that case emphasises that it arises "Where the case of the complainant is the same or not materially different from that of the comparator"

[5]The reason why the Appellants were dismissed, according to the Respondents, was that Mr Hussain-Shah, with the knowledge and co-operation of Mr Jabber, had placed a tape over a safety switch so as to disable it. It was not so much a safety switch as a switch that had to be pressed in order to operate machinery, which was, in effect, held in constant operation from that switch.

[6]The immediate background to this incident was that another man was injured in near fatal circumstances because the machine upon which he was working and of which he was inside, cleaning parts of it, was operated. Thereafter the machine had been provided with two operating buttons so as to ensure two man operation. It was by taping one of the buttons that Mr Hussain-Shah circumvented this safety device. In the words of the Employment Tribunal Mr Jabber "objected but took no action" and as he was the operator on number one button he was regarded by the Respondents as equally responsible and no difference in responsibility has been contended for before us.

[7]Not only was the modification of the machinery there set out, but also in making their findings of fact the Employment Tribunal spent a considerable amount of time detailing what steps the Respondents in fact took. The very first improvement notice in the history of this organisation was served upon the Respondents which gave rise to the modification in the switching to which I have referred. Both operators thereafter had to be in a position, each pressing their own button, for the machine to work. When that installation of the modification was completed all the operators were given new instructions on pieces of card and they were fixed to the machines as well, emphasising the need to use both buttons.

[8]In dealing with the allegations of fact against the two men, Mr Baker and Mr Collins, by way of comparison, it appears that the allegations about what they had done related to the period before that modification and instruction to employees, subject to one matter. In the case of Mr Baker there was, initially, some concern on the part of the Respondents that he may have been involved to some extent in permitting the incident which gave rise to the dismissal. However, in due course it was apparent to the satisfaction of the Respondents that that was not the case and that particular finding of fact has not been challenged.

[9]When the Employment Tribunal considered the position of the two men they made a number of findings. In paragraph 3(xii) the Employment Tribunal referred to the denial by the Respondents that the racial background of the Appellants had played any part whatsoever in the decision to dismiss.

[10]It was pointed out that at the time no complaints of race discrimination were made during the disciplinary procedure and including the appeal. The Employment Tribunal went on in (xiii) to say this: - "Both (Appellants) also relied upon alleged incidents involving white employees and disparity of treatment. It was said that Mr Baker, the Service Setter on the shift in question, had previously committed similar acts: A Mr Biggs gave evidence under witness summons for the (Appellant) that, on the day after the incident when Mr Baker had also been suspended, he had told Mr Biggs that he had placed a beam against the safety switch a few weeks before and that Mr Baker had told Mr Day of that incident. The other allegation was that, at some unidentified time, a Chris Collins had placed tape over a safety switch. The Respondents denied that Mr Biggs had told Mr Day that he had placed a beam against the safety switch but said that he had seen another employee so doing as se t out above. Mr Day, when asked what Mr Baker had told him seemed to find it difficult to give a definite answer to the question as to whether Mr Baker had told him that he had committed a similar incident. When pressed to give a direct answer by the Chairman, he denied that Mr Baker had made such an admission. The (Appellants) also alleged that the real reason for their dismissal related to redundancy as some employees were made redundant subsequently."

[11]The Employment Tribunal then considered the question of unfair dismissal and they rejected the argument that redundancy was the reason. In the context of unfair dismissal, in paragraph 5, the Employment Tribunal considered the question of disparate treatment. They said this: - In their aid, the (Appellants) said they were treated inconsistently with the other incidents relating to Mr Baker and Mr Collins and, further, that the incident was not so serious that employees of their seniority and good record should have been dismissed."

[12]They then go on to deal with the position of Mr Collins and they make this clear finding: - "There was no clear evidence that Mr Collins had been involved in any such incident. His personnel file was checked and found to be clear. It appears that there might have been some incident in respect of the Swager machine many years ago but the Tribunal does not consider it relevant to the fairness of dismissal of these (Appellants)."

[13]It appears therefore that, although that finding was made under the heading of unfair dismissal, the Employment Tribunal rejected any assertion that there was an incident in which Mr Collins had taped a switch on the ground and found that there was no clear evidence to support it. Although there was an earlier incident, possibly in relation to another machine, it certainly was not attributable so far as the Employment Tribunal was concerned, to Mr Collins. Accordingly returning to the test in the case to which we were referred of the Cromwell Hospital there was no finding of fact in relation to the case of Mr Collins which was the same or not materially different from that of the Appellants. Therefore, with that basic finding of fact having been made, there can be no error of law in failing to address specifically in their findings the question whether there was racial discrimination because it could never have arisen. So far as Mr Baker was concerned the Tribunal in relation to unfair dismissal found as follows: - "The Tribunal found it difficult to determine what Mr Baker had told Mr Day in respect of whether he had on a previous occasion temporarily impeded the button when he was carrying out maintenance. Mr Baker himself did not give evidence and the notes of the interview, where it was alleged that this was said, were not available. Mr Day's evidence on this point was not entirely satisfactory. However, even were it the case that Mr Baker had admitted that previously he had temporarily taken a similar action, and no disciplinary action was taken against Mr Baker, the Tribunal does not consider that this makes the dismissal of these (Appellants) unfair."

[14]The Employment Tribunal then goes on to point out, in the context of unfair dismissal cases, the relevance of disparity. It is however rightly said by Mr Grumball that the issue of disparate treatment in the context of race discrimination is a quite separate testfor there is, putting it in a rough and ready way, a much lower threshold than the one of disparate treatment in the context of unfair dismissal. The Employment Tribunal then came on to consider and specify their findings of race discrimination. In paragraph 9 they point out that to succeed the Appellants "Would have to establish that they had been treated less favourably than (the Respondents) treated or would treat other persons of a different racial group on racial grounds."

[15]The Employment Tribunal then direct their attention to the case of King –v- the Great Britain-China Centre

(1991) IRLR 513

and the need to look where there is disparate treatment for an explanation. They then conclude as follows: - "In this case the Tribunal do not make a finding of less favourable treatment of these (Appellants). Focusing on the incident which led to their dismissal, on their own admission Mr Baker knew nothing of it and that was the reason why he was not disciplined. The evidence does not suggest that Mr Day was guilty of favouritism towards Mr Baker, as he initially suspended him alongside the suspension of the (Appellants). As recorded above, the Tribunal find no evidence which directly or indirectly points to race discrimination in this case and is strongly of the view that the action taken against the (Appellants) arose out of their own conduct and was not influenced by their colour, race, nationality or ethnic or national origin."

[16]It is perfectly true, as Mr Grumball points out, that on the face of paragraph 11 which encapsulates their findings, the Employment Tribunal do not expressly entertain and reject the assertion of inconsistent treatment in relation to the Appellants on the one side and Mr Baker and Mr Collins on the other. But a number of factors are nonetheless clear on the face of the decision. First of all, in the second sentence of the paragraph the Employment Tribunal set themselves the task of "focusing" on the incident which led to the dismissal. In other words, it seems to us clear that they were looking to that incident in relation to differences of treatment. Already in their decision they had eliminated the possibility of Mr Collins, on any view, being found on the evidence to have taped a switch. Already in the decision they had found a degree of uncertainty in relation to Mr Baker's position. It is clear from the way in which they focus on Mr Bakers involvement in the dismissal incident, it seems to us that they were not considering the earlier incident, whatever it may have been, as in any way comparable. There is no finding that it took the place, or that it did take place, after the watershed of the introduction of the two button operation following the effect of accident. Furthermore in the context of the unfair dismissal aspect the Employment Tribunal had clearly set out their findings, implicit in which is their reluctance to find on the evidence that there had been such an earlier incident. The phrase they used was in the words "even were it the case" that Mr Baker had admitted previously he had temporarily taken a similar action.

[17]Mr Grumball says that for the purpose of their finding of race discrimination the Employment Tribunal should then have gone on to ask that question again and sought to come to a finding of fact, one way or the other, as to whether the earlier incident had taken place and then gone on to ask themselves whether it was the same or not materially different from that of the Appellants. In so far as paragraph 11 of the decision of the Employment Tribunal does not specifically spell out that process, there is support for Mr Grumball's argument. However, it is quite clear that in the view of the Employment Tribunal any earlier incident involving Mr Baker was founded upon evidence which was very tenuous. Secondly, at the very most, was a temporary stopping of the button, not a taping over of the button, as it was even found by the succeeding shift. We can consider no circumstances in which one can construe this decision as leading to any other conclusion than that the Employment Tribunal were satisfied that any incident that may have involved Mr Baker was not comparable as an incident with the dismissal incident. We are not satisfied that simply because the Employment Tribunal did not specify in paragraph 11 of their decision that particular process that one can say they erred in law in failing to make clear in paragraph 11 what seems to us to have been plain in the rest of the decision.

[18]We would apply the words of the then Master of the Roles Sir John Donaldson in Dobie –v- Burns International Security Services (UK) Ltd

(1984) ICR 112

where at page 818 he says this: - "Once you (Appellant body) detect that there has been a misdirection, particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the Tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection."

[19]In this case after a near fatal accident there was a mechanical modification introduced to ensure safe operation of a machine and to avoid a repeat accident. The employees including the Appellants were told orally of the reason for it, they were given cards with the instructions printed on them. Cards with instructions printed on them were placed by the machinery. The incident that took place was very soon afterwards. It was to disable the safety process built into the machine in a way that on the face of the findings of the Tribunal was clearly intentional and deliberate over the period of a shift to ease the employees' working conditions as they saw it. Summary dismissal followed. We cannot conceive of circumstances, on the facts as found by the Employment Tribunal, in which they or any other Employment Tribunal could come to the conclusion that the dismissal was not due to this incident alone but was also harsher than it would otherwise have been because of the race of the Appellants. On any view the final decision in dismissing the claims for racial discrimination was "plainly and unarguably right." In those circumstances this appeal falls to be dismissed at this stage as failing to contain an arguable point of law.