MR K KELLY v THE FIRST GROUP [2003] UKEAT 0497_03_0509

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0497_03_0509Case No Appeal No. EAT/0497/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K KELLYAPPELLANTTHE FIRST GROUPRESPONDENT
Before
His Honour Judge D SerotaDate 5 September 2003
[1]APPEARANCES For the Appellant MR K KELLY THE APPELLANT IN PERSON JUDGE D SEROTA QC : This is the preliminary hearing of an appeal by Mr Kelly from a decision of the Employment Tribunal at Leeds, chaired by Mr D Burton and promulgated on 7 May 2003.[2]The Employment Tribunal dismissed a number of applications made by Mr Kelly including that he had been unfairly dismissed on the basis that there was a constructive dismissal that was unfair, a claim that his dismissal was automatically unfair by reason of it being for reason of qualified protected disclosure and further, that he had been discriminated against on the grounds of his race. The hearing lasted some three days and Mr Kelly then, as now, appeared on behalf of himself. The decision was given on the fourth day.[3]We would like at the outset (and we do so without in any sense being patronising or condescending) to say that Mr Kelly has addressed us with great courtesy and moderation. It is quite clear that Mr Kelly feels very strongly that he has received an injustice at the hands of the Employment Tribunal and that the decision of the Employment Tribunal is plainly and manifestly wrong.[4]We also say this. It may well be that a number of different views could have been taken on the evidence that was put before the Employment Tribunal whose decision Mr Kelly has sought to appeal, on the basis that the Employment Tribunal's decision was perverse and that the Employment Tribunal were biased. What Mr Kelly essentially means by biased is that it came to a conclusion that was manifestly wrong and against the weight of the evidence, as he sees it to be.[5]We feel bound to remind ourselves that an appeal to this Employment Tribunal can only be made on a matter of law. The Employment Tribunal must be shown to have misdirected itself as a matter of law, or misunderstood, or misapplied the law, or that there was no evidence to support a particular conclusion or finding of fact, or that the decision was either perverse in that it was one which no reasonable Tribunal directing itself properly on the law, could have reached, or alternatively was one which was obviously wrong.[6]It is clear that appeals on the grounds of perversity will only succeed if it can be shown that no reasonable Tribunal, properly directing itself in law, could have reached the decision which the particular Tribunal has reached. This is all clear and we are citing Harvey on Industrial Relations and Employment Law at paragraph 1642. The learned Editors refer to May LJ, in a celebrated case, putting it in this way:
"When an Employment Tribunal has not erred in law, neither the Employment Appeal Tribunal nor the Court of Appeal Tribunal should disturb its function 'unless one can say in effect, my goodness that was certainly wrong'."
[7]The learned Editors also refer to Mummery LJ in the case of Yeboah v Crofton [2002] IRLR 634 (para 93) stating that a perversity appeal "ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable Tribunal, on a proper appreciation of the evidence and the law, would have reached". It is accordingly extremely difficult for an appellant to succeed in an appeal on the ground of perversity. The reason, as pointed out by the EAT, is that there are many factual situations arising in the field of industrial relations, including sex discrimination, and we would interpolate discrimination on the grounds of race, in which different conclusions may be reached by different Tribunals, all within the realm of reasonableness. It is an area in which there may be no right answer.[8]The relevant background can be shortly stated. Mr Kelly began work for The First Group, which is a large national company engaged in public transport, as a public service vehicle driver. On 3 December 2000 Mr Kelly had the misfortune to have been the victim of an attempted robbery on a bus and this led to him suffering from post-traumatic stress disorder and having a long period off work. In April 2001 he was dismissed on capability grounds, but he successfully appealed and was given a job working on an inside grade at Cherry Row. His job entailed the servicing, fuelling, maintenance, cleaning and washing of public service vehicles and attending breakdowns.[9]In September 2001 Mr Kelly was concerned in relation to a number of issues relating to the conduct of his team leader, a man called Mr Garlick. He considered, for example, that Mr Garlick had put him at risk by the dangerous driving of a bus. There then followed a history recounted by Mr Kelly of what he considered to be improper conduct towards him on the part of Mr Garlick. This was conduct which Mr Kelly maintained to the Employment Tribunal was racially motivated and for which the Respondent was vicariously liable. It led to complaints being made by him against Mr Garlick and by Mr Garlick against him.[10]These complaints were investigated in February 2002 by the engineering controller, a Mr Ibbotson. Further complaints came to light on 8 June and these were reported, after investigation by Mr Ibbotson, to Mr Saynor, who was a senior manager and there were disciplinary hearings which led to written warnings being given, both to Mr Kelly and Mr Garlick. Mr Kelly was to be transferred to the Kirkstall depot but Mr Garlick's trade union intervened and he was not transferred. Mr Kelly sought to appeal against the decision, but we believe he resigned before his appeal had taken place. It is clear that he tendered his resignation contrary to the advice of his trade union which had arranged a meeting for him in early September with a full-time trade union official in Bradford. Among the complaints that had been made by Mr Kelly was the fact that he believed one of his workmates had thrown a brick at him, this had not been properly investigated, that someone had tampered with his card for clocking-in purposes and various other matters which are all referred to in the Decision of the Employment Tribunal.[11]The Employment Tribunal was concerned that inadequate training had been given to the Respondent's managers in equal opportunities and, although there was at least in theory an equal opportunity policy, it was a dead letter so far as its day-to-day application was concerned. Although Mr Garlick had behaved in an inappropriate way towards Mr Kelly, they were satisfied that it was not on the grounds of race. We refer to paragraph 43 of the Decision of the Employment Tribunal.[12]The Employment Tribunal did not have sufficient material before it to form any view as to who had thrown the brick. They did consider that Mr Garlick had conducted himself in a less than desirable way. They were reluctant to make findings because he was not made a party to the proceedings and had not given evidence. Nonetheless, they were prepared to find that he had made inappropriate accusations against Mr Kelly and had made some inappropriate comments. They also heard evidence from a Mr Fasshi, who complained that he had also been subject to bullying by Mr Garlick, and that Mr Kelly invited the Employment Tribunal to find that, as Mr Fasshi was also from an ethnic minority, Mr Garlick's conduct was on the basis of race.[13]The Employment Tribunal also heard evidence from a Mr Ruddiman and Mr Kelly says that the Employment Tribunal has misunderstood Mr Ruddiman's evidence, that his evidence, as recorded by the Tribunal, was that Mr Garlick was someone who picked on employees who he perceived to be weak and whom he thought would be upset by his behaviour. Mr Ruddiman thought that that happened regardless of the race of the employees in question. There was no suggestion that overtly racially abusive words had been used and the Employment Tribunal, in a passage criticised by Mr Kelly, said this:
"If Mr Garlick is a man of the type that has been described to us, we would not have thought that he sufficiently cautious or clever to avoid making racially abusive comments if he is racially motivated."
[14]The Employment Tribunal did take into account the fact that there were a number of reasons why employees might not wish to make complaints about such conduct, particularly when equal opportunities were not a live issue in the workplace and some employees might hesitate about raising the issue for fear of repercussions from colleagues or, indeed, from the employer. But they did not consider Mr Kelly was such a personality. They considered he was a man who was capable and prepared to speak his mind. But weighing all those factors in their mind the Employment Tribunal found, on the balance of probabilities, that Mr Garlick's conduct as complained of is, or was not racially motivated.[15]Pausing there, this is one of the findings that Mr Kelly maintains is perverse. As we have tried to explain to Mr Kelly, it is not for us to say whether we agree or disagree with that finding. We have to ask ourselves whether it was a finding that the Employment Tribunal which heard the evidence was entitled to come to on the basis of the material before it.[16]The Employment Tribunal then dealt with the disciplinary process in which both Mr Garlick and Mr Kelly were disciplined. This took place in August 2002 and the Employment Tribunal's decision is set out in paragraphs 39 to 43. The Employment Tribunal found that, in fact, there were two differences in treatment of Mr Kelly and Mr Garlick which could amount to less favourable treatment.[17]Mr Garlick's disciplinary hearing was adjourned because Mr Saynor considered further investigations were required, whereas when Mr Kelly raised the fact that there were events in the past that might have relevance and bearing on the decision by way of mitigation, Mr Saynor did not think it appropriate to defer making that decision. The Employment Tribunal concluded that that was less favourable treatment and they then looked to Mr Saynor's explanation to see whether that was less favourable treatment afforded on racial grounds. They set out Mr Saynor's explanation, which is set out in paragraph 41 of the Decision of the Employment Tribunal, and they accepted that explanation which was not connected with Mr Kelly's race. Secondly, they found a further differential treatment and that is, that Mr Garlick's transfer to Kirkstall was suspended pending appeal. Mr Saynor said that that was because Mr Garlick's trade union representative had asked for it to be suspended and it was the Respondent's usual practice on a request by the trade union to suspend such penalties. No request was made by Mr Kelly and the Employment Tribunal had found (and though Mr Kelly disputes this) that he had told Mr Ibbotson, in the course of his investigations, he did not wish to return to work at Cherry Row. The Employment Tribunal accepted that explanation which again was one which had no connection to the Applicant's race. They therefore found no discriminatory conduct in relation to the disciplinary process that had occurred in August 2002.[18]The Employment Tribunal did however, consider the first disciplinary process carried out by Mr Ibbotson. They came to the conclusion that the way in which the matter had been dealt with by Mr Ibbotson was unsatisfactory and that Mr Ibbotson had not given a satisfactory explanation and in those circumstances they inferred that the reason Mr Kelly had been treated as he had was by reason of his race. However, the matter had occurred so long before the commencement of the proceedings that it was out of time. It followed from the other findings made by the Employment Tribunal that they did not consider that the Respondent had been guilty of an act extending over a period of which Mr Ibbotson's conduct was simply a particular instance. In the circumstances the Employment Tribunal came to the conclusion that there was no repudiatory breach.[19]Mr Kelly has made an application before us to put in further evidence from himself, from Mr Ruddiman and also from Mr Partosam.[20]In order for the Employment Appeal Tribunal to consider fresh evidence a number of conditions have to be met. In particular, there has to be some explanation as to why this information was not before the Employment Tribunal and some proof that it could not, with reasonable diligence, have been obtained. In addition the evidence has to be apparently credible and such as might have well have had a significant effect on the proceedings, but it seems to us that Mr Kelly has not surmounted the first hurdle and that he has failed to explain to us why this material was not available before the Employment Tribunal and to satisfy us that it could not, with reasonable diligence, have been put in evidence. He then attacks the Tribunal's decision on the grounds that it is biased and perverse.[21]We have already explained the basis upon which Mr Kelly asserts that the decision was biased. He has, in effect, in his careful submission and in his detailed skeleton argument, sought to persuade us that in a number of respects the Employment Tribunal came to a decision on the facts that can only be regarded as perverse, because it was contrary to the weight of the evidence before it.[22]It seems to us that the Employment Tribunal in this case correctly directed itself as to the law and correctly directed itself, by having regard to the case of King , as to the importance of drawing inferences in cases involving discrimination on the grounds of race. It seems to us that, even though there may be a difference of opinion between bystanders as to which evidence might be accepted and which evidence might be rejected, the Employment Tribunal, having correctly directed itself, came to certain firm conclusions on the evidence and, in particular, it came to the conclusions that we have mentioned that firstly, Mr Garlick's conduct was not motivated on the grounds of race and secondly, that in relation to the matters that took place in August 2002, there was no discrimination then on the grounds of race.[23]We do not really know that it is particularly helpful for us to go through in detail the specific points raised by Mr Kelly in his Notice of Appeal, because they all to us seem to come down to the same point and that is that he, in effect, disagrees with the findings made by the Employment Tribunal and characterises its failure to conclude that he was the victim of discrimination on the grounds of race as being perverse. Thus, we find in paragraph 3:
"The tribunal failed to make the necessary findings of fact and where the truth lay; this submitted as perverse."
On the other hand, our reading of the Decision of the Employment Tribunal suggest that they did. In paragraph 4 the matter is put in a slightly different way:
"The tribunal failed to observe the primary facts of this case and to draw such inferences considered proper from those facts; this is submitted as perverse."
Again, it seems to us that the Employment Tribunal did consider the relevant facts and come to its conclusion. In paragraph 5:
"It is submitted that the tribunal misdirected themselves by failing to observe the difficulties faced by an applicant who brings a claim of discrimination, and the fact that it is rare that employers will admit discriminatory conduct, or indeed be consciously aware of its presence; ... ."
[24]Then, reference is made to the so-called King guidelines, but as we have already pointed out in this particular case the Employment Tribunal was clearly well aware of those guidelines and indeed referred specifically to the case of King .[25]It was suggested that the Tribunal was biased, because it had consistently accepted the evidence of the witnesses called by the Respondent and rejected that of the Applicant and his witnesses. Again it seems to us that there is nothing in this criticism of the Employment Tribunal. The Employment Tribunal is entitled to form a view of the witnesses which it did and we cannot, simply on the basis of an assertion that the Employment Tribunal's decision was perverse, substitute our views for those of the Tribunal which heard the witnesses. In paragraph 9 Mr Kelly asserts:
"The tribunal went 'fishing' for specific racist conduct, misdirecting themselves by failing to draw inferences from the evidence placed before them; this submitted as perverse."
And this relates to the fact that the Employment Tribunal had come to the conclusion that no racially abusive words had, in fact, been used against Mr Kelly or Mr Fasshi and the Employment Tribunal in asking itself whether Mr Garlick had behaved in a racist manner had come to the conclusion he was the sort of person who, if he wanted to insult someone on racial grounds, was insufficiently clever and to refrain from doing so. That was not the sole basis of the decision of the Employment Tribunal, but was a matter it was entitled to have regard to in the weighing-up process.[26]Mr Kelly has asserted that the Tribunal failed to have regard to the different way he was treated from the way of white employees. The complaint relates to complaints they made but it seems to us that this matter is adequately dealt with in the evidence. We do not find it necessary to go through all that the other allegations which all seem to come back to the same point, Mr Kelly, and we accept that he is quite genuine in his belief that he did not receive justice at the hands of the Employment Tribunal and considers that they came to the wrong decision on the evidence.[27]Mr Kelly has failed to persuade us that it is arguable that the decision of the Employment Tribunal was perverse in such a sense as would entitle us to interfere and, in those circumstances, we have to say that the appeal must in fact be dismissed.