MR LEXINGTON BURKE v ESSILOR LTD [2001] UKEAT 605_00_0310

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 605_00_0310Case No Appeal No. EAT/605/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR LEXINGTON BURKEAPPELLANTESSILOR LTDRESPONDENT
Before
Her Honour Judge A Wakefield Mrs T A Marsland Ms H PitcherDate 3 October 2001
[1]APPEARANCES For the Appellant MISS CAROLINE UNDERHILL (of Counsel) Instructed by: Mr J Wiggins Tottenham Legal Advice Centre 754-758 High Road London N17 OAL For the Respondent MR NIGEL MOORE (of Counsel) Instructed by: Mr H Mercorios Eritrean Community in Haringey Selby Centre Selby Road London N17 8JN JUDGE A WAKEFIELD This is an appeal by Mr Lexington Burke against a Decision dated 27 March 2000 of an Employment Tribunal sitting at Bristol, by which his applications alleging constructive unfair dismissal, racial discrimination and sex discrimination against his former employers, Essilor Ltd were all dismissed.[2]The Decision is criticised on two bases. The first is that the Employment Tribunal failed, when dealing with complaints of direct discrimination, to identify appropriate comparators and to go through the successive stages required to identify and resolve the main issues for decision in relation to race discrimination.[3]These stages are set out in Anya v University of Oxford [2001] IRLR 377 , to which we have been referred, in the judgment of

Lord Justice Sedley on page 380 as follows:

"As the industrial tribunal have to resolve disputes of fact about what happened and why it happened, it is always important to identify clearly and arrange in proper order the main issues for decision eg: (a) Did the act complained of actually occur? In some cases there will be a conflict of direct oral evidence. The tribunal will have to decide who to believe. If it does not believe the applicant and his witnesses, the applicant has failed to discharge the burden of proving the act complained of and the case will fail at that point. If the applicant is believed, has he brought his application in time, and if not, is it just and equitable to extend the time? (b) If the act complained of occurred in time, was there a difference in race involving the applicant? (c) If a difference in race was involved, was the applicant treated less favourably than the alleged discriminator treated or would treat other persons of a different racial group in the same, or not materially different, relevant circumstances? (d) If there was difference in treatment involving persons of a different race, was that treatment "on racial grounds"? Were racial grounds an effective cause of the difference in treatment? What explanation of the less favourable treatment is given by the respondent? In answer to each of these questions, the tribunal must make findings of primary fact, either on the basis of direct (or positive) evidence or by inference from circumstantial evidence."
It is right to say that the Decision with which we are dealing in this appeal did not address the issues in that ordered way, nor in respect of the only two specific incidents expressly relied upon by the Appellant, as constituting direct discrimination, did they identify a comparator. It is therefore necessary to look at the detail of those two incidents.[4]The first concerns an alleged difference in dealing with a request for holiday leave. The Employment Tribunal dealt with this at paragraph 5 of their Decision as follows:
"He [that is the Applicant] complains of a refusal to allow him holiday when the same holiday was allowed to Mr Jenkins. The documentation makes clear that in fact Mr Jenkins had put in his holiday request form first."
This may in fact be a mistaken finding, in that the documentation we have seen does not support that conclusion as to the sequence of dates, and I refer to pages 38A and 38B of the supplemental bundle, which we have been provided with, which is the documentation which was before the Tribunal. The holiday request form of the Appellant is said to have a request date of 28 February 1999 and it requests leave from 4 March to 5 March. The refusal of that leave is dated 3 March. The holiday request form of Mr Dave Jenkins has a request date of 1 March, but the acceptance of the leave request which he had asked for from 4 March to 5 March is initialled and dated 2 March, so the sequence of events may be slightly different from that which the Employment Tribunal found in their Decision. However, there was apparently evidence directed to the question of when the forms were submitted, although the Chairman's Notes which we have seen do not reflect this, and the only further information before us is a further note from the Chairman, written for the purposes of this appeal, in which he says on this point:
"Document 38B was added to the bundle. This document indicates that Mr Dave Jenkins signed a request on 1 March and that it was approved on 2 March. That approval was not by any witness for the respondent and this point had not been pleaded. I have searched my notes and I cannot find any note of what the applicant said about this in his evidence in chief or in cross-examination. However, my clear recollection is that an issue was raised as to when he handed that holiday request in. That was the basis of the decision that he was not discriminated against in that regard."
It therefore appears that the finding of overall fact was correct, even though the sequence of dates may have been wrong.[5]The second specific incident is dealt with in paragraph 7 of the Employment Tribunal's Decision in this way:
"On 31 March the applicant was left alone to supply the line. He allowed the line to run out of materials. This caused production to stop. The criticism of him was that he failed to notify Gaynor Smith, who was working at the other end of the line, that he was getting behind. We consider that the respondents were justified in treating this as a serious matter."
The Applicant's evidence in his written statement referred to another similar incident, when another employee was apparently involved. He had said on that point:
"There was an incident when the line operated by Dave ran out of work and yet Gaynor sought to blame me."
It is now said that this was a difference of treatment in respect of which there was an obvious comparator, but that the Employment Tribunal failed to consider the differential treatment in that context.[6]As to this first basis of criticism of the Employment Tribunal Decision, we have come to the conclusion that it has not been made out. It is clear that the Employment Tribunal were presented at the hearing with multiple allegations as to incidents which were said to constitute differential treatment, and these they addressed specifically or collectively in paragraphs 2 - 11 of the Decision and concluded that they were all unfounded.[7]Although the analysis was not as formalised as was suggested in Anya , we consider that the right questions were asked and adequately answered, save only as to there being no specific references to a comparator in relation to the supply of line incident. As to that omission we are satisfied in the light of the overall and substantial findings of the Employment Tribunal that it would have made no difference to the outcome.[8]The second basis of criticism of the Decision is that it does not specifically deal with any allegation of victimisation. As to this, we are firstly satisfied that victimisation was never sufficiently raised by the Appellant as a specific issue or separate aspect of race discrimination, so as to warrant any separate findings. The Originating Application is said by Counsel on behalf of the Appellant today to raise victimisation by reference to the details of complaint to "imposing unfair measures only on me to silence me or bring about my dismissal" in the context of a meeting held on 6 June 1999.[9]The sequence of events which had led to that meeting is dealt with the Employment Tribunal's Decision at paragraphs 8 - 11 in this way:
"8 At this point the applicant contacted Mr Goodwin by telephone to ask about the Grievance Procedure." [this is immediately following the supply of line incident] "
He raised for the first time the alleged favouritism and "discrimination". He was told he could raise it with Mr Goodwin if it persisted, but the fact is that he never raised a formal grievance, despite having many opportunities to do so. 9 On 14 April the applicant again contacted Mr Goodwin to pursue a matter which was of great concern to him. He was trying to buy a house and was anxious to maximise the earnings to justify a mortgage. He pressed, as a matter of urgency for a re-grading. This led to a meeting with Gaynor Smith and Sonya Pearsall from personnel. We accept that the note of this meeting is correct where it says:- "sex or race not too sure, but feels discrimination but behind now. Getting on with it". 10 The applicant was not regraded, but he took no further steps to pursue his grievance or any allegation of discrimination. His first annual appraisal was due in June, but when he was told that there was to be no upgrade he refused to co-operate with the review. This led the respondents to being operating the Poor Performance Procedure. 11 Accordingly he was summoned on 6 th June 1999, to what is inaccurately described as a "counselling meeting". If fact it was a meeting to discuss his appraisal, performance, general approach and attitude and it was made clear that it might result in disciplinary action under the Poor Performance Procedure. He duly attended that meeting and the net result was the warning. This makes it clear that his performance would be reviewed over the next 6 months and if he did not show signs of improvement then at the end of that 3 months he could be dismissed." This highlights the overall impression we have formed from all the documents to which we have been referred in the course of this appeal, and from the respective submissions on behalf of the parties. That, far from trying to silence the Appellant, the Respondent had been encouraging him ever since early April to particularise any complaints which he had about discrimination so that they could be properly addressed. He consistently failed to do that.[10]As I have said we found no basis for the argument that the Appellant was asserting before the Employment Tribunal a claim that he had been victimised in the specific meaning of that term, set out in Section 2 of the Race Relations Act .[11]We further considered that by their findings, as referred to paragraphs 8 - 11, just read, the Employment Tribunal was satisfied that the 6 June 1999 meeting and the subsequent warning would have resulted, regardless of the Appellant having in April, and possibly also in relation to the proposed appraisal in June, raised the issue of discrimination. In all those circumstances the appeal fails and is dismissed.