MR M ASHRAF v FRANCIS W BIRKETT & SONS LTD [2001] UKEAT 244_00_0803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 244_00_0803Case No Appeal No. EAT/244/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M ASHRAFAPPELLANTFRANCIS W BIRKETT & SONS LTDRESPONDENT
Before
Lord Davies of CoityDate 8 March 2001
[1]APPEARANCES For the Appellant MR COURTNEY HAY Representative Instructed by Northern Complaint Aid Fund Checkpoint 45 Westgate Bradford West Yorks BD1 2TH For the Respondent MR TIMOTHY PETTS (Of Counsel) Instructed by Messrs Addleshaw Booth & Co Solicitors Sovereign House PO Box 8 Sovereign Street Leeds LS1 1HQ MISS RECORDER SLADE QC This is an Appeal from the decision of an Employment Tribunal which dismissed complaints of race discrimination by Mr Ashraf. The Tribunal also dismissed his complaint of unlawful discrimination under the Disability Discrimination Act 1995. There is no Appeal against that decision.[2]The issues on this Appeal are first, that the reasons given by the Employment Tribunal fall short of the standard set by the case of Meek v Birmingham City Council [1987] IRLR 250 in that the Employment Tribunal erred in failing to make a finding of fact dealing with what is alleged to be a change in the explanation given by the Respondent company as to the reasons for the selection for redundancy of Mr Ashraf. It is alleged that there was a difference between the responses to the Race Relations Act questionnaire in this case which were repeated in further and better particulars given as compared with the evidence given before the Employment Tribunal.[3]Second, it is said that the Employment Tribunal erred in that it failed to consider whether to draw an adverse inference from that change and from the responses given in the Race Relations Act questionnaire as is permitted by Section 65(2)(b) of the Race Relations Act 1976.[4]The Employment Tribunal made the following findings of fact. Mr Ashraf had 18 years' experience as a fettler. He started work for the Respondents on 27 October 1997 as a fettler in the Respondents' foundry. He was taken on at the same time as a former colleague, Mr Gill. Mr Ashraf was of Pakistani racial origin. Mr Gill was white. The two men joined six other fettlers in the Respondents' foundry. Five of them were white and one of them was black. In February 1998, due to a downturn in orders, the board of the Respondent company decided that there should be a reduction of the work force from 125 to 100. The Respondents had two sites, one in Huddersfield and the other where the Applicant worked.[5]A large redundancy exercise was carried out at the Respondents' Huddersfield site by use of the following criteria: length of service, disciplinary record, attendance record, performance, flexibility and attitude. Particular note was taken of the financial cost of any such redundancies and this was also a factor in the final choice for redundancy.[6]In June 1998 a decision was taken by the board that one of the eight fettlers should be made redundant. One of the directors, Mr Wilkinson, was to decide who was to be made redundant. At the site where Mr Ashraf worked, Mr Wilkinson carried out the redundancy selection exercise. The Employment Tribunal found that he made an immediate decision that the six employees who were of longer service should be excluded from the pool for selection for redundancy. They had long service, good attendance record, good work record and no disciplinary problems, were flexible and had good attitude. He therefore discounted them.[7]The choice therefore, was between Mr Gill and Mr Ashraf. The Tribunal held that the Respondents had no problems with Mr Gill but had had problems with Mr Ashraf. Mr Ashraf's team leader, a Mr Curtis, had noticed that although Mr Ashraf's work was good he was much slower at his work than Mr Gill. Mr Curtis had spoken to the Appellant on at least two occasions about his slow work which was affecting the bonus of the foundry workers as a whole.[8]Mr Ashraf's view was that he was a good worker and that he had no confidence in his team leader, Mr Curtis. Mr Curtis spoke to Mr Wilkinson. Mr Wilkinson spoke to Mr Ashraf on two occasions about these problems on an informal basis and Mr Ashraf's work did speed up but the old problems returned. Mr Wilkinson considered that Mr Gill outperformed the Applicant significantly in terms of performance and attitude because he was quicker in his work and there had been no problems in relation to his work. It was for that reason that the Respondents asserted that Mr Ashraf was selected for redundancy.[9]Those then are the facts as found by the Employment Tribunal. Dealing with the law, the Employment Tribunal directed themselves to King v Great British China Centre [1992] ICR 516 and Glasgow City Council v Zafar [1998] ICR 120 and no complaint is made about their self direction in law on those cases. There is no reference in the Tribunal's decision, however, to the Race Relations Act questionnaire and the response that was served in this case nor is there any reference to the further and better particulars which were served.[10]When the Tribunal came to consider their decision they unanimously accepted the explanation for selection for redundancy given by the Respondents. However, the Tribunal held that the Respondents should not escape criticism. There was considerable concern expressed about certain aspects of the case. There was, in particular, a difference in approach to the selection for redundancy by Mr Wilkinson in the Applicant's case compared with redundancies which were made in the Respondents' Huddersfield site.[11]The Tribunal went on to find that even if they had not accepted the explanation given by the Respondents for the selection for redundancy, they would not have inferred that there had been discrimination because there was nothing which indicated that there had been any race discrimination either intentional or unintentional against the Appellant. On that basis the Tribunal dismissed the complaint of race discrimination.[12]Mr Hay on behalf of Mr Ashraf draws our attention to the well known case of Meek and says that where there is an important conflict of evidence, that conflict should be dealt with in the decision of the Tribunal. Here, applying that principle to this case, the Tribunal erred in that they failed to mention or take into account an important piece of evidence namely the replies to the Race Relations Act questionnaire and the reply in the further and better particulars on an issue that was central to the case namely the reason for the selection of Mr Ashraf for redundancy. Further, he asserts that the Tribunal erred in failing to consider whether it should draw any adverse inference from the difference that there was in the reply to the Race Relations Act questionnaire as compared with the evidence given to the Tribunal.[13]We will briefly turn to the statutory provisions on the basis of which that submission is made.

(b) provides:

"If it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act."
[14]Mr Petts, on behalf of the Respondents says first that there is no inconsistency between the replies to the Race Relations Act questionnaire and the further and better particulars on the one hand and the evidence given to the Employment Tribunal on the other. He says perhaps it is best categorised as incomplete.[15]Further, Mr Petts asserts that if the Tribunal erred in omitting to refer to and deal with that difference between the replies in the questionnaire and the particulars on the one hand and the evidence given on the other, that is not a material difference. Therefore, he says that even if there is such a difference and even if that difference is not referred to it should not follow that the decision of the Tribunal is to be undermined. He relies on Chief Constable of the Thames Valley Police v Kellaway [2000] IRLR 170 at 175 at paragraph 48 and in particular the following passage:
"Whilst we would not condone a Tribunal decision which does not set out the relevant legal position and does not make findings of fact on all the principal submissions made, this does not amount to an automatic ground of appeal. It has to be shown that a meeting to set out the legal principals or key submissions made has led to a consequent error of law or incorrect finding of fact."
Mr Hay, quite rightly in our view, agrees that that statement is a statement of general application. However, he urges us to consider that observation in the context of the particular facts of the case under consideration by the Employment Appeal Tribunal in the Kellaway case and to distinguish it. Mr Petts relies on that passage and asserts that in this case the Employment Tribunal turned their mind to what it would have done if they had rejected the employers' explanation for selection for redundancy. He relies on the passage in paragraph 11 of the Tribunal's decision to contend that the Tribunal did decide that even if they had not accepted the explanation given by the Respondent they would not have inferred that there had been race discrimination because there was nothing which indicated that there had been any race discrimination either intentional or unintentional against the Appellant.[16]In the light of that finding Mr Petts submits that the omission to deal with the answers in the Race Relations Act questionnaire procedure and in the further and better particulars was not a material omission on the part of the Tribunal because it would not have affected the Tribunal's conclusion on the issue of the reason for selection for redundancy. The Tribunal having clearly stated what they would have decided even if they had rejected the Respondents' contentions.[17]The Employment Tribunal's decision is a carefully reasoned and balanced decision. The Tribunal did not shirk from criticising the Respondents where they found that criticism was deserved. The Tribunal correctly directed itself in law. However, it is somewhat surprising that the decision makes no reference whatsoever to the replies to the Race Relations Act questionnaire and to the letter giving further and better particulars.[18]Those two documents are consistent with each other are but not as complete as the evidence that was given before the Employment Tribunal. The responses in those documents indicated that the reason for the selection of Mr Ashraf was because he had a short service history. However, even if the Employment Tribunal had expressly dealt with the difference that there is between the reply in the questionnaire and the particulars on the one hand the evidence that was given on the other hand in our judgment that would not have made any difference to the outcome of the case. Here the Employment Tribunal very clearly stated what their conclusion would have been if they had rejected the explanation for selection for redundancy which had been advanced by the Respondents.[19]The difference that the answer given in the Race Relations Act response and the particulars as compared with the evidence before the Tribunal would have been relevant to attack the credibility of the explanation advanced. The Tribunal expressly considered and dealt with the issue of credibility of the explanation in the way that we have explained, namely that even if they have not believed the explanation advanced they would still not have made a finding of race discrimination. The omission of a reference to these documents from any decision of the Employment Tribunal therefore did not have a material difference or effect on the outcome of the case. In our judgment it has not been shown that omitting a reference to or failing to consider a difference in the explanation given had or could have materially affected any finding of fact or any conclusion of the Employment Tribunal. In those circumstances we dismiss this Appeal. We would like to thank Mr Hay and Mr Petts for the way in which they presented their respective cases to us.