MR R ATKIN MUSOKE BUKULU v SAFEWAY STORES PLC [2002] UKEAT 671_01_0608

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 671_01_0608Case No Appeal No. EAT/671/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R ATKIN MUSOKE BUKULUAPPELLANTSAFEWAY STORES PLCRESPONDENT
Before
His Honour Judge D SerotaDate 6 August 2002
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MR SEAN JONES (of Counsel) Instructed by: Messrs Bond Pearce Incorporating Cartwrights Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB JUDGE D SEROTA QC This is an appeal by Mr R Atkin Musoke Bukulu (I hope I pronounce his name correctly) from a Decision of an Employment Tribunal held at London South, in Croydon, chaired by Mr Lamb on 25 July and 17 October 2000, the Decision being promulgated on 13 March 2001. The Employment Tribunal dismissed Mr Bukulu's complaint of discrimination on the grounds of race.[2]On 15 November 1999, Mr Bukulu had started work for the Respondent at their Oxted store, a large supermarket, we are told, with some two hundred and eighty employees working shifts, including night shifts, and Mr Bukulu was employed as a night crew assistant. After having failed to attend a number of shifts, he was dismissed after a disciplinary interview on 21 December 1999. Mr Bukulu is the only (or was at the time) the only employee of African extraction at the Oxted store, although it would seem that other ethnic minorities were employed and, perhaps, we should record that his immediate superior, a Mr Etuate was a Fijian, and Mr Vassen was a South African of Indian extraction.[3]His dismissal, as we say, took place on 21 December, he did not have sufficient service to qualify for protection against unfair dismissal, but on 10 January, he made his application, seeking compensation for discrimination on the grounds of race. The Respondent's reply was on 3 February. It would seem that on 27 April, the Employment Tribunal struck out a claim for unfair dismissal, we know little about that. On 13 March, as we have said, the Decision of the Employment Tribunal was promulgated.[4]The matter came before this Tribunal on 3 December of last year and on that occasion, His Honour Judge Levy, whose judgment we have, having heard submissions from Mr Cramsie from ELAAS, identify two grounds on which the appeal could go forward.[5]The first was the fairness of the Decision, bearing in mind what had happened to the comparator, and the second was an analysis of the evidence found in the findings made by the Tribunal. The Tribunal ordered that there should be an amended Notice of Appeal and an amended Notice of Appal was in fact served dated 10 December, but last year.[6]In that Notice of Appeal, the following grounds are given, firstly that:
"the Employment Tribunal failed to taken account of the fairness of the decision to dismiss the Appellant. The Employment Tribunal should have found that Mr Vassen's decision that there would continue to be problems about the Appellant's regularity of attendance, and his decision to dismiss the Appellant were unjustified and unfair. The Employment Tribunal should have inferred, in the absence of any other cogent explanation, that Mr Vassen's decisions could only be explained on the grounds of the Appellant's race." and secondly: "
The Employment Tribunal erred in finding that the Respondents had provided to the Employment Tribunal a cogent explanation for the differences in treatment of the Appellant and [his comparator] Mr Clark."[7]Two specific instances are given, firstly that on one occasion as a result of an induction, the Appellant was entitled to time off if he did not wish to work overtime. He was not given that opportunity and was rostered to work overtime, whereas Mr Clark was given time off.[8]Secondly, it is said that Mr Clark had unauthorised absences and no disciplinary proceedings were taken against him before his last day of work, and no explanation was provided for disciplinary action not being taken against Mr Clark.[9]It is necessary to look at the history of the matter in a little greater detail. As we have said, employment began on 15 November. Mr Bukulu was working a night shift and it is on the evidence of considerable importance to the Respondent, that they are given adequate notice when someone does not turn up for a night shift because of the difficulties of finding cover.[10]On 22 November, an induction took place. This was attended by both Mr Bukulu and his comparator, Mr Clark (who, we note, is sometimes referred to in the Decision of the Employment Tribunal as Mr Carr). The evidence which was accepted by the Employment Tribunal was that the Respondent stressed to persons attending the induction, the need to follow absence reporting procedures and there is a requirement in the staff handbook, which was stressed at this meeting, that it was essential that if permission had not been given for an absence, notice had to be given to the Duty Manager.[11]Now, Mr Bukulu had a contractual right to have time off in lieu or to work for the time spent at the induction, or for working overtime if he worked an additional shift. The Employment Tribunal found that Mr Clark did have time off allowed to him, but Mr Bukulu did not and was rostered to work effectively overtime. The Employment Tribunal found that this was an administrative error and he was not treated differently to his comparator by reason of race.[12]On 28 November 1999 Mr Bukulu did not turn up for work He says, and the Tribunal accepted, that he did, in fact, give notice to the Assistant Controller that he would not be in. The Assistant Controller was a Mr Paul Corp. He says that he was told by Mr Corp to notify Human Resources and he did not. It seems to us that the Employment Tribunal accepted that Mr Corp was not the correct person to tell.[13]As a result of this absence, and also because the Duty Manager had not been told, a meeting was arranged. Mr Bukulu suggest that this was a disciplinary meeting but the Respondent maintained it was not. It maintained that it was, in fact, a counselling meeting.[14]The meeting was with Mr Etuate, a gentleman of Fijian origin, on 30 November. Mr Bukulu, according to the Tribunal, said that he had not come in because he was tired. It was because he had come in on 22 November, and ultimately, his real reason for absence was he felt cheated because he had not been given time off in respect of his induction.[15]Mr Etuate, the Tribunal accepted, had two concerns: firstly, Mr Bukulu had not spoken to the Duty Manager about his absence and, secondly, he had been absent without permission when scheduled to work. According to the facts, as found by the Tribunal, the outcome of the meeting was that it was made clear to Mr Bukulu the correct procedure needed to be followed. It was explained to him and Mr Bukulu appeared to accept this. Nonetheless, Mr Bukulu failed to attend for work and does not appear to have given notice on 14 December. Neither did he attend on 17 or 18 December, although he did telephone to give notice, I believe, on the 17 th to say that he would not be in. He had, he said, to deal with some certain personal circumstances.[16]Mr Vassen, therefore, arranged for there to be a disciplinary hearing. Mr Vassen was the manager of the supermarket. He had only joined that supermarket on 29 November, and his opinion, as recorded by the Employment Tribunal, was that general discipline, attendance and adherence to procedures at the store was poor, and he was particularly concerned about the reliability of attendance of a few members of the night crew. Normally, it would not have been a manager of his seniority who would conduct the disciplinary interview, but as Mr Massey, the Process Manager, who should have conducted the disciplinary hearing had only recently returned to work after a period of absence caused by stress, Mr Vassen decided to deal with the matter personally, and he was also influenced by the concerns that I have already set out.[17]The substance of the complaint made against Mr Bukulu was that his absences were unexplained and unauthorised and he had a poor attendance record: an absence rate of 16% against the store average rate of absence of 4%. Detailed notes were made by the Human Resources Manager, Ms Starkey. Mr Bukulu said he was absent on 14 December as he had suddenly found himself homeless and had not been able to contact the store; he did, however, contact the store on the Friday.[18]Mr Vassen came to the conclusion that Mr Bukulu would continue to be irregular in his attendance and it was significantly disruptive for the night crew to suddenly find it was short of one person without prior notice. There was no opportunity to arrange alternative cover and reliability was important. Mr Bukulu apparently said that now he had a place to live, it was not a problem and the circumstances were unlikely to repeat themselves, however, Mr Vassen felt unable to accept at face value what Mr Bukulu was saying to him, and he was accordingly dismissed.[19]Mr Bukulu says that he was treated, in this respect, less favourably than the comparator, Mr Clark. I have already referred to the fact that Mr Clark was given time off in respect to the induction course, whereas Mr Bukulu was not.[20]Now, Mr Clark's position was, in some respects, similar to that of Mr Bukulu. He commenced work on 19 October, he did two nights' work the week of 23 October, and came in the following week to see Ms Starkey and said that he had been put out of his home without clothes by his mother, he was visibly distressed, in tears, Ms Starkey, who as I have mentioned, was the Human Resources Manager said "Have the night off".[21]He later, again, came in to see Ms Starkey and was again in tears, and told to take a couple of weeks off to sort himself out. It would seem, therefore, that Mr Clark had been to the Human Resources Officer and had obtained permission, and therefore his time off appears to have been authorised. He returned to work on 14 November. He attended the induction with Mr Bukulu on 22 November. He, however, also failed to attend on 26 and 27 November without authority. One does not know whether there was notification or not. He was interviewed by Mr Etuate on 30 November about that absence, and no disciplinary action resulted.[22]It seems to us that the absence of 26 and 27 November without authority was the first occasion when Mr Clark was absent without authority. His previous absence had been authorised. He went home early on 4 December and he never, ever, returned to work. His mother came to collect his outstanding wages.[23]Now, whereas Mr Bukulu continued to work, received a disciplinary interview and was dismissed, that did not happen in the case of Mr Clark. On 16 January a standard letter was sent to him noting that he had been absent from work since 4 December, and had not contacted the store. He was asked to contact the matter and discuss his absence from work. He ignored the letter and as a result, Ms Starkey recorded on the database that he had resigned and was not working, and recorded he could be re-employed in any job while describing his time attendance and health as poor. That again, differentiated the treatment he received from that Mr Bukulu received, in that having been dismissed, Mr Bukulu's details were recorded on the database as someone who would not be re-employed.[24]However, the Tribunal accepted Ms Starkey's evidence that she had adopted the course of action she had because she was under pressure to reduce hours, and was content to treat his employment as coming to an end, and as there had not been any disciplinary procedure, because he never returned to work, she recorded him as having resigned as he had not in fact been dismissed. She had recorded that he could be re-employed because there was no documentary evidence to support an entry not to re-employ him as there had been no disciplinary procedure. She did say, however, it was most unlikely that he would be re-employed.[25]Mr Vassen gave an explanation as to why Mr Clark had not been the subject of disciplinary proceedings. He, Mr Vassen, had only arrived in post on 29 November, and Mr Clark had worked that week. By the end of the week, he learned that Mr Clark was absent again and the Tribunal accepted Mr Vassen's evidence and found that the particular difference between the treatment of Mr Clark and Mr Bukulu was that Mr Bukulu was the only person still at work and therefore susceptible to disciplinary action. The Tribunal took into account the fact that the run up to Christmas had been very busy, and Mr Vassen would have had a great deal to do in adjusting to the responsibilities of his new position and it is understandable and credible, the Tribunal found, that Mr Vassen would not have concerned himself with Mr Clark's continuing absence.[26]The Tribunal, it seems to us, correctly directed themselves as to the effects of section 1(1) 3(4) and 4 of the Race Relations Act. They also directed themselves as to the well known speech of Lord Browne-Wilkinson in Zafar -v- Glasgow City Council 1998 IRLR 38 and to his citation from the judgment of Neill LJ in King -v- Great Britain China Centre [1992] ICR 516 .[27]They reminded themselves how a Tribunal should approach the argument that the explanation for apparently discriminatory treatment was an innocent error, however careless, and decided that incompetence does not, without more, become discrimination merely because the person affected by it was from an ethnic minority.[28]Now, the Tribunal, as we have said, accepted that Mr Bukulu had been treated in two respects differently from his comparator, firstly in relation to being required to work an extra shift, and secondly, in respect of the disciplinary procedure. The Employment Tribunal, however, accepted the evidence of Ms Starkey and Mr Vassen for the reason that Mr Bukulu was disciplined and Mr Clark was not. We have already referred to the finding by the Employment Tribunal in relation to the time in lieu or overtime to which Mr Bukulu was entitled, as a result of attending the induction.[29]The Tribunal then said this:
"40. In deciding whether to accept the explanation for Mr Carr not being treated ultimately as having been dismissed, and, even more incredibly, being treated as someone who might be re-employed, we accept that Ms Starkey gave us honest evidence, and that the computer record did not mean what it appeared to mean. 41. Applying the principles set out in the case law to which we have referred earlier in these reasons, we have therefore concluded that there were in some respects similar circumstances of Mr Carr and Mr Bukulu, and in so far as those circumstances were similar, there was a difference in treatment. Mr Bukulu was less favourably treated than Mr Carr by the Respondents. The Respondents have provided to the Tribunal a cogent explanation for the differences in treatment, and in so far as it reflects any incompetence on the part of the Respondents, then it is nevertheless a credible explanation. 42. We further accept that in dismissing Mr Bukulu, Mr Vassen was not influenced by his racial origin. The dismissal of the only black employee in the entire workforce by the manager of the store is obviously capable of giving rise to an inference, but for the reasons we have set out, we do not consider it proper to draw that inference. The Applicant has not satisfied us on the balance of probabilities that he was subjected to discrimination on racial grounds."
It seems to us that there is nothing in the way in which the Employment Tribunal directed itself or applied the facts as it found to the law, as could amount to an error of law. Essentially, Mr Bukulu is challenging the failure of the Employment Tribunal to draw the inferences he said should have been drawn.[30]The Employment Tribunal considered and weighed up the evidence and it accepted the evidence put forward by the Respondent. We do not believe that the findings made by the Employment Tribunal, or its failure to draw the inference that Mr Bukulu invited them to do, can be regarded as perverse. It seems to us that the Decision was properly one for the Employment Tribunal; there was evidence to justify the conclusion it came to, and the findings of fact, in a case such as this, are not for us, they are for the Employment Tribunal.[31]Accordingly, in the absence of any error of law, and in the absence of any real case that the findings of the Employment Tribunal were perverse, it seems to us that the grounds of appeal, to which we have referred, cannot succeed and in the circumstances, Mr Bukulu's appeal must be dismissed.