(1) TESCO STORES LIMITED (2) MR J D ABRAHAMS v MR D WILSON [2000] UKEAT 749_98_1201

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 749_98_1201Case No Appeal Nos. EAT/749/98 & EAT/710/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) TESCO STORES LIMITED (2) MR J D ABRAHAMSAPPELLANTSMR D WILSONRESPONDENT
Before
His Honour Judge Peter Clark Mrs T A Marsland Mr J A ScoullerDate 12 January 2000
[1]APPEARANCES For the Appellants MR PETER WALLINGTON (of Counsel) Instructed by: Mr B Murphy Messrs Edward Lewis Solicitors Verulam Gardens 70 Gray's Inn Road London WC1X 8NF For the Respondent MS SANDHYA DREW (of Counsel) Instructed by: Ms S Hughes Principal Litigation Officer Commission for Racial Equality 3rd Floor Lancaster House 67 Newhall Street Birmingham B3 1NA JUDGE PETER CLARK : We have before us the following appeals:(1) An appeal by the second and third respondents before the Bedford Employment Tribunal, Tesco Stores Limited ['Tesco'] and Mr James Abrahams ['Mr Abrahams'] against a decision of that tribunal, chaired by Mr G Plenderleath, following a hearing held on 17th-20th March 1998 and promulgated with extended reasons on 8th April 1998, upholding the applicant, Mr Wilson's complaint of unlawful racial discrimination ['the liability decision'], (EAT/749/98);(2) an appeal by Tesco only against the same tribunal's remedies decision, promulgated with extended reasons on 21st April 1999 ['the remedies appeal'], (EAT/710/99);(3) a cross-appeal by the applicant against the remedies decision. We should add that Tesco and Mr Abrahams mounted a further appeal against a decision by that tribunal dismissing their application for a review of the liability decision, promulgated with extended reasons on 14th December 1998 (EAT/189/99). That appeal was dismissed on withdrawal by Order of the Registrar dated 27th May 1999. The liability decision The applicant was employed by a contract cleaning firm, Barkland Cleaning Limited ['Barkland'] from 29th July 1995 until his dismissal on 6th November 1996, working at Tesco's store in Mereway, Northampton on a cleaning contract made between Tesco and Barkland. Accordingly he was a contract worker and Tesco was a principal for the purposes of s.7 of the Race Relations Act 1976 .[2]The applicant is a black Afro-Caribbean rastafarian.[3]In the early hours of 5th November 1996 the applicant finished work at about 3.30 a.m. and left the building to go to his car parked in the staff car park. At that time Mr Abrahams, a security officer employed by Tesco, was on duty in plainclothes in the car park. He was wearing a tracksuit and a baseball cap.[4]The material facts found by the tribunal as to what happened next are these. The applicant having got into his car there was a knock on the window. It was Mr Abrahams; neither man then knew the other. It was the applicant's case, ultimately accepted by the tribunal in preference to the account given by Mr Abrahams, that he wound down his window. Mr Abrahams told him he was a security officer and insisted the applicant got out so that he could search the car. When asked by the applicant for identification Mr Abrahams took out his wallet and waved it in his face. The applicant had not seen a security officer who was out of uniform before at Tesco's.[5]The applicant suggested going to the nearby gatehouse. Mr Abrahams said "no" and then said "the thing with you lot is that you think you can get away with anything". The applicant took that to be a reference to his race.[6]Thereafter others appeared on the scene. Mr Abrahams carried out a form of search of the vehicle. Mr Abrahams said that he would report the applicant and ensure he was denied access to the site. Mr Abrahams did make a report, by telephone, to Mr Campbell the store manager. He also made a written report. As a result Barkland were informed that the applicant would not be allowed on site. The applicant was dismissed by Barkland the following day; he was told that there was no alternative employment available for him.[7]It was the applicant's evidence that Mr Abrahams also used the expression "you lot think you can get away with anything" whilst conducting a heavy-handed search of his car, in the presence of another Tesco employee, Mrs Blakemore. Another person present at that time was Mr Carter, Tesco's Night Section Manager. He did not give evidence before the tribunal, but his statement was admitted in evidence.[8]Mr Abrahams' account, rejected by the tribunal, was that he had not used the expressions about "you lot" attributed to him by the applicant; that he was calm and professional throughout the incident and that the applicant was not simply angry, as he had said, but was aggressive, shouting and thrust his working overalls into Mr Abrahams' chest.[9]On those findings of fact, reached by a process of reasoning which is set out in the tribunal's extended reasons to which we shall return, the tribunal concluded that the expression "you lot" used by Mr Abrahams was a derogatory reference to the applicant's race; that he had a stereotypical view of West Indians as being aggressive; that he made a false report, racially motivated to his superior which resulted in the applicant losing his job with Barkland. Tesco were liable for direct racial discrimination by their employees, first Mr Abrahams, who was racially motivated and secondly by Mr Campbell who was not, but relied on Mr Abrahams' report to exclude the applicant from the site and thus caused him to lose his job with Barkland. The remedies decision[10]Just before the remedies hearing commenced before the tribunal on the morning of 13th April 1999 the applicant, through his Counsel recently instructed Ms Drew, abandoned earlier claims for financial loss, including lost earnings and loss of a chance to buy his council home. Accordingly the claim was limited to compensation for injury to feelings and a further claim for aggravated damages.[11]The tribunal awarded the applicant £5,000 under the first head against Tesco and a further £500 against Mr Abrahams. They made a separate award of £1,500 aggravated damages against Tesco only. In assessing compensation they took into account the fact that the applicant had compromised his claim of race discrimination and unfair dismissal (although as to the latter he had not completed two years qualifying service) against Barkland, originally the first respondent below, for £1,000.[12]The tribunal was also invited by Ms Drew to make recommendations under s.

(c) of the 1976 Act in the following form:

"[ Tesco's ] Equal Opportunities Policies and Procedures to be extended to all contracts staff within three months. National criteria and procedures for withdrawal of site approval/access to contract staff to be drawn up and circulated to all Managers of Tesco Stores and to all Contract Companies within three months. This procedure is notified, as far as is reasonably practical, to all contract staff working at Tesco Stores. The requirement to avoid unlawful discrimination and racial stereotypes to be fully recognised in this document. A procedure for discipline and grievances relating to contract staff and contract companies is drawn up within three months, with a view to avoiding precipitate "dismissal" of contract staff, without appropriate periods of investigation and protection for the rights of contract workers in such circumstances. Tesco to provide additional training for all Managers and other senior staff at their Northamptonshire stores, in respect of the preceding recommendations within three months."
[13]Whilst the tribunal indicated that Tesco ought voluntarily to adopt those recommendations, they held that they had no jurisdiction under s. 56(1)(c) so to order and accordingly rejected that application.[14]Finally they were invited by Mr Wallington for the second and third respondents to make an award of costs limited to £500 against the applicant, on the grounds that the claim for financial loss had been pursued to the door of the tribunal and then withdrawn at the last minute, putting those respondents to additional and unnecessary expense. That application was also rejected, the tribunal holding that the conduct of the applicant and his advisers in this respect did not fall within the terms of rule 12(1) of the Employment Tribunal Rules of Procedure . The Appeals[15]All appeals were heard on 16th December 1999.[16]We first heard submissions from Mr Wallington on the liability appeal. Having read in advance the skeleton argument of Ms Drew we did not find it necessary to call on her to further resist that appeal. We dismissed it. We then proceeded to hear argument from Counsel on the remedies appeal and cross-appeal. Having done so we reserved judgment on those appeals. We also entertained an application by Ms Drew for costs in the appeals. We shall now deal with each of the appeals and that costs application in turn.[17]The Liability Appeal This appeal was examined by a division on which I sat with different lay members at an ex parte preliminary hearing held on 7th October 1998.(1) The Notice of Appeal, settled by Mr Wallington runs to 11 pages. Having considered his submissions, developed in oral argument, we allowed the matter to proceed to a full hearing on broadly two grounds: (i) whether the tribunal failed to make the necessary hypothetical or actual comparison between the treatment of the applicant and a person of different race for the purposes of s. 1(1)(a) of the 1976 Act. Zafar v Glasgow City Council [1998] ICR 120 , (the comparator point) and (ii) whether the tribunal's conclusions were illogical on the basis that they made internally inconsistent findings in their reasons. (The perversity ground).(2) As I indicated in our judgment given on that occasion we were just persuaded that there was sufficient in the latter argument to require an inter partes hearing, a conclusion reached with some anxiety, bearing in mind the difficult task faced by any appellant relying on the perversity ground.(3) In a lengthy skeleton argument, which each of us considered carefully in advance of the hearing, Mr Wallington advanced a number of detailed submissions in support of the perversity ground. He there dealt also with the comparator point.(4) Those submissions were developed in oral argument by Mr Wallington and closely scrutinised by the members of this Appeal Tribunal during the discussion. It is convenient to start at the end of those submissions when Mr Wallington accepted this proposition, that if the tribunal was entitled to find that the "you lot" remarks were made by Mr Abrahams and was entitled to find that those remarks were racially offensive, then it was unnecessary to go through the exercise of making an actual or hypothetical comparison. He made that qualified concession by reference to the judgment of Morison J in Insitu Cleaning Co Ltd v Heads [1995] IRLR 4 , a case of verbal sexual harassment amounting to unlawful sex discrimination.(5) Accordingly the question for us is first, whether the tribunal was entitled to prefer the evidence of the applicant to that of Mr Abrahams, and secondly, if so, whether the words found to have been said by Mr Abrahams could bear the meaning which the tribunal ascribed to them.(6) As to the first question, on the face of it the issue as to which witness is to be believed where there is a conflict of evidence is quintessentially one for the industrial jury, the Employment Tribunal. However, we accept Mr Wallington's proposition, by reference to the judgment of Mummery LJ in Martins v Marks & Spencer PLC [1998] IRLR 326 , paragraphs 53-4, that contradictory findings within the tribunal's reasons may give rise to a finding of perversity in the legal sense on appeal.(7) Mr Wallington sought to make good the perversity ground by comparing the applicant's case, which he characterised in argument below as amounting to a criminal conspiracy by Tesco's witnesses, including Mr Campbell, Mrs Blakemore and Mr Jordan, a baker, as well as Mr Abrahams, to tell deliberate lies about the incident, with the tribunal's finding at paragraph 14 of their reasons that the first three named were "essentially truthful witnesses". If that was so, submits Mr Wallington, how could the tribunal prefer the applicant's account to that of Mr Abrahams when the latter's account was corroborated in certain respects by those other, essentially truthful witnesses?(8) He has developed that submission by a detailed analysis of the evidence given by the various witnesses as to what they told the tribunal they saw and heard of it. We do not propose to deal with each and every step in that argument. We have considered it and we reject it. Two examples will suffice by way of illustration: (i) First, the holdall. It was Mr Abrahams evidence that the applicant was carrying a holdall when he first saw him leaving the store, as well as his overalls. The applicant denied that he was carrying a bag of any kind, although he had a holdall in his car. The tribunal accepted the applicant's account. They remarked that, as a matter of credibility, it was strange that Mr Abrahams had not mentioned that fact in his first written report, compiled shortly after the incident. (Exhibit R10). (ii) Mr Wallington submits that it is inconsistent for the tribunal to make that finding of fact whilst acknowledging Mrs Blakemore as an essentially truthful witness. Her evidence, he contends, differed from that of the applicant. What was her evidence? In her witness statement dated 3rd March 1998 (paragraph 7) she said:
"Although I personally only saw Donald [ the applicant ] with a holdall bag I understand he also had two Tesco holdall bags but I did not see them."
Thus, at the pre-trial stage she did indeed support Mr Abrahams' account. (iii) When she came to give her evidence in chief before the tribunal she confirmed that her statement was true, subject to certain corrections, we see from the Chairman's Notes of Evidence. One of those corrections was to paragraph 7. She now said:
"I only remember him carrying a carrier bag. I cannot remember a hold-all."
That was a material change of story. She no longer supported Mr Abrahams' account that the applicant was carrying a hold-all when he left the store, but, by the same token she did not agree with the applicant's account that he was not carrying any sort of bag. She now put him with a carrier bag, something which she said in her original witness statement she had not seen, but "understood" (presumably from what she had been told) that he had with him (then two bags, not one). (iv) Next, we look at the Chairman's Notes of her cross-examination. First she said that she was "99.9% sure that he had a bag. He usually had a Tesco bag and overalls". Two answers later she said: "I accept that I may be mistaken." (v) We relate that sequence for the following reasons. First, it is quite clear to us, not having heard and seen the witnesses below, that on any view, whilst no doubt doing her best to give a truthful account, as opposed to a deliberately misleading (lying) account, Mrs Blakemore, on the question of the hold-all, got herself into a terrible muddle. It does not require advanced forensic skills for us to see that the tribunal did not feel able to say that Mrs Blakemore's evidence on this issue was wholly reliable. Secondly, the point illustrates why questions of fact are left to the Employment Tribunal and not this Appeal Tribunal by Parliament. We should not attempt to second-guess the fact-finding tribunal. Thirdly, it illustrates the paucity of Mr Wallington's perversity argument. (vi) The second illustration relates to the applicant's evidence that Mr Abrahams used the "you lot" expression a second time whilst searching his car. Mr Wallington submits that the evidence of the respondent's witnesses, found to be essentially truthful, contradicts that assertion and supports Mr Abrahams' denial that the words were said. The first occasion on which the applicant claimed that they were said was when the two men were alone. (vii) Is that submission made out? The applicant said that Mrs Blakemore was present on the second occasion and would have heard what was said by Mr Abrahams. She said in her witness statement that she did not hear Mr Abrahams say anything that would seem racially offensive to the applicant; in evidence she said that Mr Abrahams did not raise his voice, she was about a car's length away. If she had thought that Mr Abrahams had been racially offensive she would have remembered it. She would have thought "you lot" was offensive. Mr Carter, whose evidence was in the form of a witness statement only and therefore something to which the tribunal adopted a cautious attitude and attached no great weight (reasons. paragraph 16), said in that statement that he had been asked if he heard the term "you lot" being used, but he could not recall it being used. (viii) Speaking for ourselves we should not have thought that the evidence of Mrs Blakemore and Mr Carter conclusively corroborated Mr Abrahams' denial that the words were used. However, what matters is how the evidence as a whole struck the Employment Tribunal. We are quite unable to say that there is any material inconsistency between their finding that the respondent's witnesses other than Mr Abrahams were essentially truthful, and their accepting the applicant's account in preference to that of Mr Abrahams. (ix) We shall not labour this judgment with the further points developed by Mr Wallington. We have considered them but have firmly concluded that on the important question of the use of the expression "you lot" the tribunal were entitled to accept the applicant's account. (9) That brings us to the second condition in Mr Wallington's final proposition before us. Could the tribunal properly conclude that the expression "you lot" referred specifically to the applicant's race? The short answer to that is that they plainly were. That is how the remarks struck both the applicant and Mrs Blakemore when she was asked about it. It is not difficult for an Employment Tribunal, using their collective common sense to reach that conclusion in circumstances where a white security officer is dealing with a black, dread-locked Rastafarian. It might have been otherwise had Mr Abrahams admitted the remark instead of denying it, as the tribunal found, untruthfully. He might have explained it as being a reference, for example, to contract cleaners in general. But that was not the evidence before the Employment Tribunal. (10) Accordingly we are satisfied that both conditions laid down by Mr Wallington in his closing concession are met. Consequently this appeal fails.[18]The Remedies Appeal Three issues are here raised:(1) Compensation for injury to feelings . (i) The question for us on appeal is whether the award of £5,000 made against Tesco is a "wholly erroneous estimate" ( McConnell v Police Authority for Northern Ireland [1997] IRLR 652 (paragraph 32); Skyrail Oceanic Ltd v Coleman [1981] IRLR 398 ). Put another way, was the award outside the appropriate "bracket"? Noone v North West Regional Health Authority [1988] IRLR 195 . (ii) In considering that question we take into account that the total award made in the applicant's favour under this head was £5,500, including the award made against Mr Abrahams, and that the tribunal properly took into account the £1,000 settlement figure in the case brought by the applicant against Barkland. (iii) One feature of the tribunal's reasoning which concerned us was Mr Wallington's point that at paragraph 5 of their remedies reasons the tribunal referred to the average and median award figures for total compensation for race and sex discrimination contained in the 1997 statistics, and not the lower figures for compensation for injury to feelings only. However, we have concluded that whilst taking into account those statistics the tribunal did not find them determinative of the question before them (see the observations of Morison J in Orlando v Didcot Power Station Sports & Social Club [1996] IRLR 262 , paragraph 5). Neither did they accept the optimistic figures put forward by Ms Drew on behalf of the applicant. They took into account the factors identified at paragraph 15 of their reasons in concluding that the proper figure to award against Tesco under this head was £5,000. (iv) Mr Wallington describes this as a case for a moderate award. Ms Drew points out that in Armitage v Johnson [1997] IRLR 162 , paragraph 25, Smith J referred to the submission of Counsel for the respondents that an analogy may be drawn between awards under this head and those for post-traumatic stress disorder under the JSB guidelines for personal injury awards. Cases in the moderate bracket under that head were then falling in the bracket £3,000 - £7,500. (v) Mr Wallington points out that in the present case there was no medical evidence to show psychiatric damage suffered by the applicant. He urges us to lay down guidelines for appropriate levels of award in this type of discrimination case. (vi) We should like to be able to do so. However, the source material for such an exercise has not developed to the extent of personal injury awards on which the JSB guidelines are based. We do not find the statistics cited to the Employment Tribunal of much assistance without considering the facts of the underlying cases, by analogy with the JSB personal injury guidelines, which are based on extensive case law to be found in Kemp & Kemp on Damages and Current Law . (vii) In these circumstances we shall restrict ourselves to the particular question raised in this case. Was this award outside the appropriate bracket; a wholly erroneous estimate? In our judgment, whilst being at the top end of the bracket, it cannot be said to be excessive. In these circumstances we shall not interfere with the tribunal's award in respect of injury to feelings.(2) Aggravated Damages . (i) Mr Wallington does not challenge the quantum of the award; he submits that the award was wrong in principle. In particular, he challenges the factors relied upon by the tribunal in paragraph 15 of their reasons. (ii) First, he takes issue with the tribunal's findings that the respondents sought to paint the applicant as a dishonest and/or violent person. It seems to us that that was an impression which the tribunal were entitled to form from Mr Abrahams' evidence taken as a whole. We are not impressed by Mr Wallington's point that the applicant was convicted of an offence of indecent assault on a woman police constable. We have read the material relating to that conviction, for which he was conditionally discharged for six months by the Magistrates. It could not, on the facts, be fairly described as an offence of violence. Equally, we think that the tribunal was entitled to take into account the way in which the defence to this claim was conducted, particularly the review application. In short, we are satisfied that the tribunal gave adequate and permissible reasons for making an award under this head.(3) Costs. (i) The history leading to the remedies hearing has been fully set out in Mr Wallington's skeleton argument. It is right to say that the applicant's affidavit and further statement in support of his claim for financial loss contained inaccuracies and that immediately before the remedies hearing began that claim was withdrawn. (ii) Whether or not we would have made an award for costs under rule 12(1) is nothing to the point. The question is whether the tribunal's decision not to award costs in favour of the respondents in these circumstances was perverse. We cannot say that it was. Accordingly there are no grounds in law for interfering with that part of their decision. In these circumstances we shall dismiss the remedies appeal.[19]Remedies Cross-appeal .(1) The short point taken by Mr Wallington below in resisting the making of recommendations as sought and referred to in this judgment was that since the applicant was no longer working at, let alone for Tesco, those recommendations would not serve the purpose of obviating or reducing the effects of the discrimination to which the complaint relates on the applicant . S.56(1)(c).(2) The tribunal accepted that submission. So do we. Ms Drew was driven to argue before us that we might care to recast the form of recommendations sought below. We decline to do so. It seems to us that the steps suggested may have been entirely appropriate following a formal investigation by the Commission for Racial Equality by way of a non-discrimination notice (s.58), but the link between those recommendations and the effects of the discrimination as found in this individual complaint was not made out. Accordingly, we shall dismissal the cross-appeal also. Costs in the appeals[20](1) Liability appeal . Ms Drew asks for the applicant's costs in this appeal, limited to £900. Mr Wallington does not challenge the amount, but contends that this case does not fall within any of the expressions contained in EAT Rule 34(1). In particular, he relies on the fact that at the preliminary hearing this appeal was allowed to proceed to a full hearing. In these circumstances it cannot be said that the appeal was "unnecessary". Further, he submits that this is a matter of great importance to Tesco as well as to the applicant and indeed Mr Abrahams. We should say something about the effect of allowing an appeal to proceed at the preliminary hearing stage. A preliminary hearing is just that; a preliminary hearing in the appeal. It is not a detailed assessment of the merits of a case. There is no argument, by way of skeleton argument and/or oral submissions on behalf of the respondent to the appeal. Where detailed allegations of perversity are raised it may well be, as in this case, that a full hearing is necessary to properly adjudicate on that issue, with both parties present. Time can then be allowed for the submissions to be developed in a way which is not provided for at the preliminary hearing stage. It must be clearly understood that success at the preliminary hearing stage will not necessarily protect an appellant from a costs order if, at the full hearing stage, after closer examination, it appears to this Appeal Tribunal that the appeal was "unnecessary." That is the position in this case. We have concluded that in the event the liability appeal does not bear close scrutiny. It was an unnecessary appeal. Accordingly, we shall award the applicant, who is supported by a publicly funded body, the modest sum in costs sought by Ms Drew.(2) Remedies appeal This appeal did not go through the preliminary hearing procedure. Although in the event it failed we cannot characterise Tesco's appeal as so hopeless that it falls within rule 34(1). There was a cross-appeal which proved to be unsuccessful. In all the circumstances we shall not order costs in this appeal. Conclusion[21]It follows that the liability appeal is dismissed. The respondents will pay £900 costs to the applicant in that appeal. The remedies appeal and cross-appeal are also dismissed.[22]Before parting with this case we each of us wish to pay our tribute to the Employment Tribunal which sat on this hard-fought and sensitive dispute. It is the nature of our work as an appellate court that from time to time we are required to criticise Employment Tribunal decisions. However, that should be put into context. Of all Employment Tribunal determinations just over 4% result in effective appeals to the EAT. Of those appeals only about 1 in 4 succeed. It follows that 99% of Employment Tribunal decisions stand. The number of tribunal decisions, upheld by the EAT and overturned by the higher courts are statistically insignificant..[23]In this case we have all been impressed by the careful and thoughtful approach of the tribunal, admirably expressed in their reasons written by the Chairman, Mr Plenderleath. In short, we are quite satisfied that neither side has any real complaint on appeal about the outcome.