MR T A KYTE v FIRE BRIGADE UNION [2001] UKEAT 0291_01_0308

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0291_01_0308

Case No Appeal No. EAT/0291/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T A KYTEAPPELLANT

FIRE BRIGADE UNIONRESPONDENT

Before

Mr Justice Lindsay

Date 3 August 2001

[1]APPEARANCES For the Appellant MR T A KYTE (The Appellant in person) MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Preliminary Hearing the appeal of Mr T A Kyte in the matter Mr T A Kyte v Fire Brigade Union . Mr Kyte alleges that there has been racial discrimination against him in relation to the Fire Brigade Union failing to offer him representation in a disciplinary case brought against him by his employer, the comparison being that had he been black he would, he said, have been granted that representation. He draws attention to the case of a black who was given representation and he says the comparison shows that he, a white, was less favourable treated.

[2]On 15 March 2000 Mr Kyte lodged an IT1 for racial discrimination. On 6 April the Fire Brigade Union put in its IT3. It made the point that the complaints were out of time. Mr Kyte had been told on 25 August 1999 that he was not to be granted representation by the Union and his internal appeal was rejected on 15 September 1999 so that he was out of time and moreover, said the Union, he had no case on the merits. On 8 May 2000 at a Preliminary Hearing the Employment Tribunal indicated that the complaint was permitted to go forward on the ground that it was just and equitable to extend time. On 2 November there was an application for an amended IT1 to be lodged. On 20-24 November 2000 there was a hearing at the Employment Tribunal with counsel on both sides. On 16 January 2001 the decision, which was the decision of the Tribunal at London Central sitting under Mr C A Carstairs, was sent to the parties. The decision was:

"The unanimous decision of the Tribunal is that the Respondent did not discriminate against the Applicant on ground of race."

On 24 February 2001 there was a Notice of Appeal from Mr Kyte.

[3]It is worth drawing attention to some points which may assist the Full Hearing when it comes to deal with this matter, because we have indicated to Mr Kyte that this matter should go to a Full Hearing. The Union, it is said, will normally grant representation to one of its members when he or she is the object of a disciplinary complaint from the Tribunal. The Tribunal said:

"However, where the allegation against the member is that he or she has committed any act of discrimination, harassment or bullying, a procedure has to be gone through with a view to the Respondent deciding whether or not representation should be granted. The procedure requires that officers investigate the matter and report to the Regional Committee. The Regional Committee must then decide whether or not the Applicant's representation has an arguable defence."

Note that the report is required to be made by the investigators there to the Regional Committee. The only question, it would seem, that is for the investigators or, indeed, ultimately for the committee to answer, is whether the Applicant has an arguable defence. Of course it is difficult to establish whether a member has an arguable defence until one knows precisely what the disciplinary offence is with which the member is charged.

[4]The Employment Tribunal does not at first describe the charge against Mr Kyte except to say that Mr Kyte had made a racist comment. What he was said to have used was the word 'Nigger', itself an offensive word; moreover it was said to have been said in an offensive context. There does not seem to have been any suggestion that the racist comment was made to a black person, the race at which that offensive remark is usually directed. Whether the charge was no more than 'that he had made a racist comment', may perhaps be doubted. Indeed, later in the Tribunal's decision they say that the charge was that he had been guilty of conduct prejudicial to discipline. Assuming that to be the case, the question that should have been looked at, reported on and fully decided upon was whether Mr Kyte had an arguable defence against the charge of having made a racist comment such as to amount to conduct prejudicial to discipline.

[5]Mr Kyte denied the allegation that he had made the comment at all and he applied for representation by the Fire Brigade Union. The Fire Brigade Union investigators commissioned to look into the incident interviewed several individuals and recommended that Mr Kyte should receive representation. The Tribunal says:

"The matter came before the London Regional Executive Committee comprising the chief officers of the London area of the Respondent. They considered the report and decided to recommend to the LRC that there should be representations."

That squares rather oddly with the earlier finding, that the investigators would report to the Regional Committee; this seems to be a slightly different system - an intervening report to the London Regional Executive Committee - but at all events the LREC recommended to the London Regional Committee (LRC) that Mr Kyte should receive representation. The LRC then met. It is quite plain the LRC considered things quite outside whether an arguable defence existed to the charge of 'conduct prejudicial to discipline'. Thus, for example, the Tribunal records a Mr St Paul, substituting for another member, saying:

"He said at one stage that whenever the word 'Nigger' was mentioned, he always thought that 'they' were talking about his children."

A Mr Williams, who was a union regional representative, who had not heard, and did not claim to have heard, the alleged original offensive remark said that another fire officer had kept a diary, of which the investigators had not obtained a copy, which itself (the diary) alleged that Mr Kyte had been guilty of earlier incidents of discrimination. The Employment Tribunal says:

"The LRC members, all experienced union officers, voted ten to five against representation being provided to the Applicant."

I should say that in the meantime, at the meeting of the LRC, something that was close to a rather unpleasant threat was made. The Tribunal said:

"Ms Griffiths who was substituting for Miss Phemister from the Women's Advisory Committee said that she proposed to take the names of all those who voted in favour of representation. She was challenged by another fire fighter, Mr French, about this who suggested that she withdrew the remark but she refused to do so."

[6]Mr Kyte's IT1 drew attention to another FBU member, a Mr Samuels, a black, and the way in which he had been, as Mr Kyte said, differently treated. Mr Kyte's IT1 said:

"I applied to the union for representation as I was charged by the Fire Brigade with "

Conduct prejudicial to discipline". Two union officials (Buck J + Bailey M) were appointed to carry out an investigation which they did and made recommendations. The recommendation was that I receive union representation and they listed the reasons why (report will be available if required). The London Regional Executive voted to accept that representation. The London Regional Committee voted against representation at a meeting at which a female member of that committee threatened to "NAME + SHAME" and take "Retribution" against anybody who voted for representation. A union official at that meeting (one of the 2 who first spoke to me, and the one who lied to the black firefighter) also told the meeting that I had admitted making the remark, which as I have stated I have never done. The vote was 5 for 10 against + 1 abstention so I was denied representation. I appealed to the FBU national office and was sent a letter stating that an officer would contact me to explain the appeals procedure. The next correspondence I received was a letter saying my appeal had been turned down. The procedure was never explained to me. Approximately six weeks ago I was contacted by a Stn O Burn who asked me if I was aware of the case of a black firefighter (FF Samuels) who had been reported by Stn O Burn and LFF Cook making racist remarks and Irish people and in particular an Irish Sub Officer. I was not aware of this case and he then told me about it. The black firefighter was transferred by the Brigade to another station and he's received and is still receiving the full support of the union. As of yet he has not faced a Brigade disciplinary hearing. The black firefighter is a union official and a member of BEAMM (Black + Ethnic Minority Group) which is a group within the FBU. My complaint is therefore that I have received unfavourable treatment on the grounds of my being a white officer as a black firefighter has clearly been treated differently and more favourably." The 'therefore' in that last sentence is in summary of all of Mr Kyte's complaints which had preceded that sentence and it therefore includes the earlier passage that I read out that referred to the conduct of the London Regional Committee meeting.

[7]The IT1 is thus two-fold in its complaints. First, that there was racial discrimination relative to the procedure and conduct of the LRC meeting and at the appeal stage. Secondly, that there is racial discrimination relative to the way the Mr Samuels was, by contrast, treated. That both aspects of the complaint were before the Tribunal is plain from the Tribunal's record of what Miss Monday, then appearing for Mr Kyte, had said to the Tribunal in paragraph 10 of the Tribunal's decision which says:

"Miss Monday also relied on King and dealt with Fraser . She submitted that there was a direct comparison between the Applicant and Mr Samuels case. She submitted that there was sufficient evidence before the Tribunal to satisfy the Tribunal that the LRC had discriminated against the Applicant; certainly the LRC had failed to concentrate on what should have been the issue in hand, namely that the Applicant had an arguable defence to the allegation made against him. She also noted that there was no evidence as to what had happened at the Appeal Committee meeting."

So, that there were two elements to the complaint seems plain enough, one limited to Mr Samuels, one relative to what had happened at the LRC.

[8]The Tribunal dealt with the 'Samuels' comparison. They said:

"The first conclusion that the Tribunal reached was that Mr Samuels was not a true comparator having regard to the provisions of section 3(4) of the 1976 Act. Whereas there was evidence given to the union and also the union had obtained the formal statements provided by the two alleged witnesses to the comment alleged to have been made by the Applicant, those concerned with the allegations against Mr Samuels did not co-operate at all. Accordingly, when the matter came to be considered by the LRC there was no evidence against Mr Samuels at all. The difference in the evidence available in respect of each case amounts to a material difference and accordingly Mr Samuels is not an appropriate comparator."

But that only disposes of Mr Samuels as a comparator if the LRC had decided that Mr Samuels had an arguable defence because there was no evidence against him. However, there is no indication that that had been the case. In the 'Samuels' case the Tribunal held:

"An investigation was carried out by the union officers but those involved in the allegation had declined to provide any evidence of the allegation against Mr Samuels. There was a brief discussion of the London Regional Committee which decided to grant him representation to defend the allegations. In the event disciplinary proceedings were never taken against him."

What that "brief discussion" consisted of is not clear. Nor is it clear that the Employment Tribunal knew what it consisted of. It is very easy to imagine several brief discussions which would have made Mr Kyte's case for him. For example, if the brief discussion had been "We ought to support Mr Samuels, he is a member of BEAMM", or if it was "We always support our men so let's support him", such brief discussions would greatly have assisted Mr Kyte's case. Indeed, anything short of "there is no evidence against him so he surely therefore has an arguable defence" would be likely to assist Mr Kyte's case.

[9]Whether there was an error of law on the Tribunal's part in disposing of the Samuel comparison depends very much on the contents of the so called brief discussion at the LRC which had led the LRC to conclude that Mr Samuels' case would be supported. It will also be important to know whether the Tribunal knew what that brief discussion consisted of. At the moment we have no information on that subject. The very fact that the Tribunal does not explain itself more fully may itself represent an error of law in the sense that there might have been a failure to comply with the requirements of Meek v City of Birmingham .

[10]At this point we are disposed to allow the appeal to go to a Full Hearing. In addition, the Tribunal do not seem fully to have grasped the other aspect of Mr Kyte's complaint, namely the complaint about the procedure and conduct of the LRC meeting. They diminish the complaints by referring to them as merely 'procedural', but, did they consider, firstly, whether the LRC would have entertained an emotional appeal about children if a white man had been traduced, or secondly, whether the unpleasant threat to take names would have been made had a remark offensive, to say, white or Asians, been made, and, perhaps more significantly, thirdly, would Mr Williams' apparently damaging hearsay, which Mr Kyte had no reason to expect to have been given to the LRC, have been deployed at an LRC meeting if the case had not been, as it was, the offensive use of the expression 'Nigger' that Mr Kyte had been alleged to have used? Could it in any event have been right for not only hearsay to be entertained, but hearsay as to quite separate allegations of racism, to have been taken on board by the LRC? It is also hard to resist the reflection that there is very little point in having FBU members specifically given the task of investigating all the surrounding facts and reporting on them to the LRC if the LRC can then simply receive hearsay, evidence not even the intended production of which was known in advance to the so called accused and which had not been obtained or considered by the investigators.

[11]The Tribunal was very critical of the LRC meeting in its paragraph 21 but to describe the possible shortcomings of the meeting as merely 'procedural' might arguably have been to diminish the aggregate effect which it was arguable that they had. The Tribunal said: "In the circumstances the Tribunal has concluded that there is not sufficient evidence on which to draw an inference that the LRC discriminated against the Applicant on the ground of race." but it is in our view arguable – and we have to emphasise that we are only dealing with what is arguable – that had it asked itself, for example, those three questions that we raised a moment ago, and had it asked for an explanation from the Fire Brigade Union, it might not have been able to conclude as it did. The comparison that needed to be made was not simply between Mr Kyte's case and Mr Samuels' case but between Mr Kyte's case and the case of anyone who was given due process at the LRC.

[12]We do think here that it is arguable that there was error of law in leaving unraised and unanswered questions about the due process at the LRC meeting. We therefore send the whole Notice of Appeal to a Full Hearing. Skeleton arguments should be exchanged not less than 14 days before the date fixed for the hearing and also by then sent to the Employment Appeal Tribunal. Whether there need to be chairman's notes is probably best dealt with when both sides have come into the matter because, of course, at this stage it is only ex parte. The proper course would be in the first place for applications for chairman's notes to be in writing to the President and only if truly necessary would there then be an oral hearing on the question. We leave over chairman's notes to be dealt with in that way.