MR A BROWN v AVONLINE LTD [2001] UKEAT 1047_00_0802

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1047_00_0802

Case No Appeal No. EAT/1047/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A BROWNAPPELLANT

AVONLINE LTDRESPONDENT

Before

Mr Recorder Underhill

Date 8 February 2001

[1]APPEARANCES For the Appellant MR D BURCH Solicitor Messrs Burch Phillips & Co Solicitors 63(A) Station Road West Drayton Middlesex UB7 7LR MR RECORDER UNDERHILL QC The Appellant worked for the Respondents as a cable engineer under a contract for services. His contract was terminated with effect from 15 June 1999. He complained to the Employment Tribunal that the termination of his contract was on racial grounds and constituted unlawful discrimination contrary to section 4 of the Race Relations Act 1976 .

[2]The Tribunal's Extended Reasons, promulgated on 7 July 2000, contain a full review of the circumstances leading to the termination. Essentially, the Tribunal held that the Respondents had terminated the contract, only with considerable reluctance, because the responsible manager at the company for whom they provided cable-laying services, Mr McInnes, had insisted that the Appellant should not work any further on the contract because he had been seen on 12 June 1999 not wearing a high visibility vest, which is regarded as an essential safety precaution. Mr McInnes had first reported the incident on 12 June and had confirmed his insistence by fax dated 14 June. The fax stated in terms:

"I write to formally request the withdrawal from our Franchise of Residential Installer Mr T Brown. This is due to one of my staff observing the above Avonline Employee working on a public highway not wearing the required high visibility clothing."

The Respondents had attempted to persuade Mr McInnes to take a more lenient view, but he was adamant.

[3]The Appellant had asserted before the Employment Tribunal that that pressure from Mr McInnes was not the true reason for the termination of his contract; and that the true reason, and what he had been told at the time, was that the contract was being terminated because of an earlier incident - the so-called "Slough incident" - on 25 May when he was reported to have been working in a hole in the road without having surrounded it with safety cones. If that had been the true reason, it was at least strongly arguable that the Tribunal could draw an inference of racial discrimination because he had been less favourably treated than a white colleague.

[4]The Tribunal expressly considered the difference between the Applicant's evidence and that of Mr West, the manager responsible for his dismissal, as to the reason for the dismissal. At paragraph 21 of the Reasons they said this:

"21 The Tribunal did not accept this evidence from the Applicant. There was nothing to contradict the evidence received from Mr West that a complaint had been made to Mr McInnes at Cable Corporation and that Mr McInnes had demanded the removal of the Applicant from the contract. Mr West would have preferred to terminate the contract with the Applicant and told the Tribunal he would have given the Applicant a verbal warning as to future conduct. Furthermore, Mr McInnes had asked for the identity of the crew in question, and the outside worker but had not requested any details as to the Applicant's colour or ethnic origin. The letter which had been faxed to Mr West on the 14 th of June was absolutely clear in its terms and there was no suggestion from the Applicant that this was a fabrication by Cable Corporation to assist his removal by Mr West. The Tribunal is satisfied that the reason for the termination of the Applicant's contract given by Mr West is the correct one."

And they go on in a subsequent paragraph to say that they had found the Applicant's evidence overall to be unsatisfactory and contradictory and to give some reasons for that conclusion.

[5]The Notice of Appeal, lodged by the Appellant seeks to attack that finding. The essential point which it makes, ably developed by Mr Burch in submissions before us, is that there were important arguments which tended to show that Mr West's account of events was incredible and that the Applicant was to be believed which are not referred to in the Tribunal's Reasons at all. They are set out under eight numbered points, but there is a degree of overlap, and we believe they can be summarised as four points.

[6]Firstly, and most significantly, in the Respondents' Notice of Appearance, signed by Mr Warn, the Managing Director who had been responsible for investigating the Slough incident, the Respondents had given, as the reason for termination of the contract, that the Appellant:

"failed to observe the Health and Safety regulations i.e. 'correctly sign or cone off work areas whilst working on a public street or road'"

That was clearly a reference to the Slough incident. That Notice of Appearance, dated 21 September 1999, was corrected, or altered, on 7 October 1999 when solicitors put in a more extensive Notice of Appearance which gave effectively Mr West's version of the reason for the termination of the contract. What is said is that it is remarkable, if Mr West's version had been the true reason, that it was not given first time round.

[7]The second area which it is said that the Tribunal failed to deal with was the point that the Appellant in his Originating Application made no reference to the allegation that he had failed to wear a high visibility vest. He makes the point that if that is what he had been told by Mr West he would certainly have wished to protest his innocence and take various points, which he did take before the Tribunal, that he had not been issued with a vest and so forth.

[8]Thirdly, it is pointed out that the Respondents had failed to investigate the allegation that the Appellant had not been wearing a high visibility vest. It is said, having regard to the procedure they had followed in relation to the Slough incident, that if they had taken the matter seriously enough to terminate the contract for it they would certainly have carried out some sort of investigation.

[9]Fourthly, it is said that there was no direct evidence to substantiate the allegation that the Appellant had been observed by a Cable Corporation employee not wearing the vest.

[10]It is not clear whether all these points were specifically made in argument or submissions to the Tribunal. But one at least, in our view probably the most substantial one, clearly was. We have before us the Applicant's closing submissions in written form, which were submitted to the Tribunal on 31 March 2000; and paragraph 8 expressly makes the point about the change in the Notice of Appearance. We will assume, in the Appellant's favour, that all of these points were made to the Tribunal.

[11]The question then is whether the Tribunal's decision is vitiated in law by the fact that they did not, in their reasoning, expressly deal with all or any of them. We do not believe that it is arguable that the decision is so vitiated. There is ample authority that there is no obligation on an Employment Tribunal, in giving its Reasons, explicitly to set out and deal with every argument that is put to it in relation to a particular disputed issue. In this case, the Tribunal gave a reasoned explanation of why they preferred Mr West's evidence to the Applicant's, and we cannot see that the points raised in the Notice of Appeal are so compelling that the Tribunal was bound to spell out why they did not accept those particular points as part of their grounds for preferring the evidence of Mr West.

[12]It is perhaps unnecessary for us to do so, but we observe in relation to the Notice of Appearance point, that the first version of the Originating Application was signed by Mr Warn, who was, as we have mentioned, fully involved in investigating the Slough matter, and was not, as far as the evidence goes, himself involved in the dismissal on 15 May. It may well be that he was simply unaware of what Mr West's reason for termination had been. But, as we say, it is unnecessary for us to speculate. The point merely indicates that there may well have been reasons - whether they were those or some other reasons - why the Notice of Appearance might wrongly have stated the position first time round. It was for the Tribunal to consider how this point weighed in their assessment of who was telling the truth, and we do not believe that there is any error of law in their failing to deal with the point explicitly.

[13]In those circumstances, we do not believe that there is an arguable point of law on which the appeal should be permitted to proceed. We dismiss the appeal.