MR B A WILLIAMS v (1) GRAY SECURITY SERVICES (2) SENATE SUPPORT SERVICES [2003] UKEAT 1082_01_1002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1082_01_1002Case No Appeal No. EAT/1082/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B A WILLIAMSAPPELLANT(1) GRAY SECURITY SERVICES (2) SENATE SUPPORT SERVICESRESPONDENTS
Before
Mr Justice Rimer Mrs C Baelz Mr K EdmondsonDate 10 February 2003
[1]APPEARANCES For the Appellant MR D LEWIS (of Counsel) Instructed by: Messrs Grant Saw & Sons 142 Greenwich High Road Greenwich London SE10 8NN For the First Respondent For the Second Respondent MR J KENDALL (of Counsel) Instructed by: Securicor Management Services Ltd Sutton Park House 15 Carshalton Road Sutton Surrey MR M SMITH (of Counsel) Instructed by: Messrs Mentor Solicitors 134 West Regent Street Glasgow G2 2RQ THE HONOURABLE MR JUSTICE RIMER This is an appeal by Mr Bashir Alexander Williams against the decision of an Employment Tribunal sitting at London (Central) on 2 and 3 May 2001 and chaired by Mr I H Walker. The Tribunal's extended reasons were promulgated three months later on 7 August. By their decision the Tribunal dismissed Mr Williams' claims that he had been unfairly dismissed, had been discriminated against on the grounds of race and had been victimised. They also rejected his claim that his employment contract had been breached.[2]The facts as found by the Tribunal were, so far as we understand them, as follows, although the task of identifying them is not as easy as it should be because the Tribunal's extended reasons manifest some lack of care in the manner in which they have been set out. It is unfortunate that this particular panel do not appear to have set any store by basic considerations of order, accuracy, syntax or punctuation. The extended reasons give every impression of having been the fruit of a hurried piece of dictation, the typing of which no-one even bothered to check. We consider the parties deserved better than this.[3]Mr Williams had originally been employed, from 3 October 1997, by SSR Security Services Ltd as a security officer. There was a TUPE transfer to the first respondent, Gray Services Ltd ("Gray"), in November 1998, when Mr Williams became a Gray employee. He remained employed by Gray until July 2000 when the second respondent, Senate Support Services Ltd ("Senate"), was given the contract at the Swiss Centre where Mr Williams was employed.[4]The Tribunal found that Mr Williams had signed his employment contract on 31 October 1997 and that paragraph 1.1 of it included a term providing that "You will be expected to work at night, during weekends and to work shifts inclusive of bank holidays." The Tribunal also found that a term such as that was normal in the security industry, although the relevance of that finding is not clear to us. They also found that both Gray, and subsequently Senate, were entitled to require Mr Williams to move sites and to work nights, weekends and on bank holidays.[5]Mr Williams is black and his complaint was that for much of his employment with Gray he was treated badly, differently and in a matter contrary to the Race Relations Act 1976 . He had claimed that he had for long sought employment from Monday to Friday on a permanent site rather than on a casual basis, under which latter he was sent to different sites as and when needed. He asserted that white people were not treated like this. His case before the Tribunal was that, even if he was contractually obliged to work the shifts and on the sites to which he was allocated, he was anyway discriminated against on the grounds of his colour because he had not previously been given a Monday to Friday shift. By his originating application he had complained of two heads of racial discrimination. First, he complained that he had written a letter on 16 March 1999 complaining about unfair and discriminatory treatment by fellow workers and his complaint was that this complaint had been ignored and never investigated. Secondly, he complained of victimisation, namely that he had made various complaints orally and in writing of racial discrimination (such complaints being in the nature of protected acts) and he claimed that he had been victimised because of this.[6]The only evidence in support of Mr Williams's case was his own. The evidence from Gray on the topic was from Mr Hopley, Gray's operations manager, who said that the type of Monday to Friday shifts that Mr Williams wanted were few and far between. He said that Gray had about 50 sites, of which only about 12 to 15 had a Monday to Friday requirement "and that out of a staff of 650 only 30-40 were required to do a day shift." Gray's evidence was that permanent Monday to Friday shifts were given to those with exemplary records and were reliable; and Gray did not regard Mr Williams as being within this category.[7]Mr Williams's evidence, as recorded in paragraph 17 of the reasons, was that after he had made complaints of discrimination "at one stage Mr Graig [sic] Reed was sent away to deal with it but he never did." On the other hand, Gray's evidence to the Tribunal, as recorded in paragraph 18, was that Mr Williams had never complained about race discrimination. He had merely complained about not being given a permanent site on a day shift basis.[8]On two occasions Mr Williams had apparently refused to go to particular sites and he had two disciplinary hearings. One ended inconclusively, the other resulted in a final written warning. The date of the first one is not clear and the Tribunal made no finding about it, but it probably took place during the period between 16 and 31 March 1999. Gray claims that Mr Williams was later sent a letter on 4 November 1999 explaining he had been removed from a site at Mindshare, would not be allowed back on it and that he had been banned from other sites – in particular, ITN, Slaughter and May and South London and "Morsely" (we think the Tribunal probably meant Maudsley) Trust. Mr Williams had denied receiving that letter.[9]The second disciplinary hearing was on 3 April 2000, although the Tribunal do not trouble to identify the year in which it was held. Following that, Mr Hopley, Gray's operations manager, wrote to Mr Williams and pointed out he had failed to comply with the terms of his contract on three occasions and had been banned from six of Gray's assignments. Mr Williams did not respond to that letter, nor did he deny the truth of what it said. His explanation to the Tribunal for not doing so was because in the same letter he was offered what he had always wanted – a Monday to Friday shift from 7.00 a.m. to 7.00 p.m. with only occasional weekend work.[10]That shift was to be at the Swiss Centre. Mr Williams had worked there on the odd occasion and Mr Hopley's evidence was that he should be given the opportunity to prove himself there. The Swiss Centre contract was later lost to Senate, but Mr Hopley denied that he knew at the time he offered the shift to Mr Williams that Gray was later to lose that contract.[11]The Tribunal found that Mr Williams worked at the Swiss Centre with no problems until suddenly he found that Senate was taking over the security contract there. This potentially brought into play the Transfer of Undertaking (Protection of Employment) Regulations 1981 . The effect of Regulation 5 (1) is that prima facie Mr Williams's employment contract with Gray would not have been terminated by the takeover, but would be treated as if it had originally been made between Mr Williams and Senate. But that is subject to Regulation 5 (4A), which provides that:
"Paragraphs (1) and (2) above shall not operate to transfer his contract of employment and the rights, powers, duties and liabilities under or in connection with it if the employee informs the transferor or the transferee that he objects to becoming employed by the transferee."
[12]It appears to us that the Tribunal made no, or at any rate no express, finding on whether Mr Williams informed either Gray or Senate that he objected to becoming a Senate employee. In paragraphs 21 and 23, the Tribunal recorded that: 21 "…There is no doubt that the Respondents have always said that the Applicant refused to go over to Senate that he did not want to stay with Gray but was adamant in refusing to go to Senate although he insisted that he wanted to carry on working at the Swiss Centre. This clearly was dependent on whether Senate wanted him to work there. In few of our findings that the Applicant's contract was as set out earlier in this decision it seems to us that those terms and conditions passed over with the transfer to Senate and that they were accordingly entitled to ask the Applicant to work elsewhere. They deny and we accept that in doing so it did not act in any way in contravention of the Race Relations Act. Indeed some of the people they put into the Swiss Centre after the transfer were black although they were not on day shift… 23 There is no doubt that regardless of what happened at the meeting" We interpose to say it is not clear which meeting the Tribunal is here referring to "Senate wrote to [Mr Williams] telling him that he had a job with them that it was not at the Swiss Centre but that they were prepared to offer him employment as a security officer but it would require him to work some nights and weekends. That on our finding is within the terms of his contract."[13]Paragraph 21 might appear to suggest that the Tribunal were finding that Mr Williams's contract passed to Senate, but the Tribunal then went on in paragraphs 26 and 27 to make these observations, which we find less than lucid: 26 "We are somewhat divided on whether or not [Mr Williams] did in fact invoke the regulation 5 (4) A the difficulty is that if [he] did in fact say he did not want to work for Senate and communicated it within 5 (4) A he really had no option other than to negate the result of the transfer of undertakings. He was no longer employed by Gray by operation of law. By saying that he did not want to become employed by Senate he in fact gave up all claim or rights arising out of the transfer of undertakings. We are not convinced that [Mr Williams] fully understood the implications of what he was doing nor was he properly advised on those implications and of course by the time he took legal advice time had passed and he was no longer working and had indeed accepted that he was no longer employed by either Gray or Senate. 27 In the end it is probable whichever version is right i.e. did or did not invoke 5 (4) A the effect is the same. [Senate] did not act unlawfully in not keeping him on at the Swiss Centre unless [Mr Williams] could show that he was not selected because of his race or colour and this we feel he has not been able to do." Having stated that they were so divided, we cannot detect from the Tribunal's reasons any express finding on the point. They appear to have ducked it and satisfied themselves that it made no difference either way.[14]The Tribunal then, in paragraphs 28 to 30, summarised their conclusions. They found that Gray did not discriminate against Mr Williams on the grounds of race or colour. They also found that Gray did not victimise him. The Tribunal then said as follows, in paragraph 28: 28 "Mr Lewis on behalf of [Mr Williams] complains that Craig Reed never came back having dealt with [Mr Williams'] complaints but we find as a result of the disciplinary enquiries there is implicit to finding that [Mr Williams] did not complain about race discrimination and the evidence which we accept is that neither of the two disciplinary hearings did he allege race was a factor in what happened to him. His concern throughout has been that he wanted a job on a permanent basis working Monday to Friday from 7.00 a.m. to 7.00 p.m. with occasional weekends only."[15]We translate the first sentence of that as meaning that the Tribunal found that Mr Williams did not complain of race discrimination at either disciplinary hearing. We do not interpret it as an express finding that he did not complain of race discrimination on any other occasion, although, as we shall explain, we are asked by the respondents to this appeal to conclude that that is implicit in the finding which the Tribunal there made. If that is what the Tribunal did intend to convey by what they said in paragraph 28, their intentions were left obscured in the fog of their chosen language.[16]The Tribunal then referred to the fact that Gray had submitted that there had been a transfer of undertaking to Senate and that any default by Gray had passed on the transfer to Senate, including any finding of race discrimination. The Tribunal expressed the view that, had they found any race discrimination by Gray, they would have held that any complaint in respect of it had passed to Senate but then added: 29 "…however in view of our finding, we do not have to deal with that other than to say that [Senate] are not liable in respect of any breach of the Race Relations Act."[17]The Tribunal also found that there had been no unfair dismissal. They said in paragraph 30: 30 "There was an offer by [Senate] in conformity with [Mr Williams'] contract of employment, [Mr Williams] did not accept the offer, there was no dismissal, constructive or otherwise and because of our findings on the contract we find that there was no breach of contract and therefore no wrongful dismissal either."[18]By his notice of appeal, Mr Williams raises two grounds of appeal. The first is as to the Tribunal's rejection of his victimisation claim. Section 2 of the 1976 Act provides, so far as material, that:
"2 Discrimination by way of victimisation (1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has –… (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act. or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them."
[19]Mr Williams's case before the Tribunal was that he had complained to Gray that they had committed a contravention of the 1976 Act and that he had been victimised in consequence. The protected act he primarily relied on was said to be evidenced in his letter of 16 March 1999 – the one he had pleaded in his originating application. It was written to Gray's personnel manager and there is no dispute that Gray received it on the same day. It was headed " Deprivation, Unfair Treatment, As Regards: Welfare, Promotional Opportunities, Training, Benefit and Transfer ". The letter was a two-page one of which the first two paragraphs read:
"Approximately 5 months since been on duty at DMG from Canary Wharf, every day had been filled with nightmare from abuse, defamation of character, character assassination, nepotism of the highest order, and unfair duty postings. The list is endless, coupled with indiscriminating behaviour of duty supervisors who regards me as a treat, and so try dirty tricks of character assassination, abuse and misuse of power, unnecessary complaint as to my performance, flimsy excuses as to their report on my duty posting and other conspiracy theory to label me."
But then, towards the end of the letter he wrote a paragraph on which particular reliance is placed, which reads:
"At this point I belief it is paramount to say that on these site there had been numerous incidents of discrimination, nepotism, deprivation and uncare attitude towards some class of officers, and abuse of power by duty supervisors, favouritism in duty allocation, and nomination for training and promotion and its high time something is done about it."
The letter was written by a black worker, who was not disabled, and it is urged by Mr Lewis, who appears for Mr Williams before us, and who also appeared for him before the Employment Tribunal, that it can sensibly only have been referring to racial discrimination.[20]Mr Williams's case on this appeal is that, quite apart from what was prima facie an unambiguous complaint of discrimination in that letter, he was asked in his evidence in chief about the discrimination to which he was here referring. According to the notes of evidence taken by his solicitor, Mr Williams explained his reference to discrimination in that letter as follows:
"Discrimination – Had training. Other officers on the same site were given training. Majority of black colleagues like myself made to work in cold conditions. Racial."
Further notes made of his evidence in chief suggest that he was clearly asserting discrimination and that he had complained of it. The notes record that he said that:
"I did not believe him. Mostly white South Africans come in… I always complained, everytime… I never stopped complaining."
With regard to the consequences of his letter of 16 March 1999, Mr Williams is recording as having said:
"Feelings – oppressed and suppressed for my opinion. Because of letter 16 March all this happened."
Mr Lewis submits that that evidence supports the conclusion that Mr Williams did complain of discrimination in his letter of 16 March 1999 and submits also that his oral evidence clarifies the meaning of the discrimination he was referring to.[21]The Tribunal's findings of fact about that appear to be encapsulated in their less than immaculate piece of English we have quoted from paragraph 28 of their extended reasons. If those findings amount to findings that there was no complaint of racial discrimination by Mr Williams, Mr Lewis submits that they were simply contrary to the evidence. To the extent that the Tribunal found that no complaints of race discrimination were raised at the disciplinary hearings, Mr Lewis says that this does not show that Mr Williams did not complain about race at any other time. The disciplinary hearings were not about matters of race discrimination. Mr Lewis submits that the Tribunal have simply failed to make any findings as to whether, as he had asserted in chief, Mr Williams had made the discrimination complaints of which he gave evidence. But, and perhaps most importantly, Mr Lewis submits that the Tribunal appear wholly to have failed to consider the sense or effect of the letter of 16 March 1999, particularly the use of the word "discrimination" included in it, in the light of the fact that Mr Williams was black and not disabled. The Tribunal make no reference to that letter anywhere in their reasons and the inference is that they have simply overlooked it.[22]As for the Tribunal's failure expressly to make findings on Mr Williams's evidence in chief that he had made regular complaints, Mr Lewis suggests that this is not particularly surprising in view of the fact that the Chairman appears to have made, or at any rate to have kept, no notes of Mr Williams'' evidence in chief. As to that last point, although directed to do so by this Appeal Tribunal, the Chairman was unable to produce any notes of that part of Mr Williams's evidence. In a scribbled manuscript letter to this Tribunal on about 6 February 2003, the Chairman wrote that, if there was any such evidence, he:
"…almost certainly recorded it – but not in my notes – probably on the applicant's proof of evidence which he read. Unfortunately it appears that all the documents (including the statements) cannot be found."
That response appears to show that the Chairman's note-taking was as painstaking as was the writing of the Tribunal's extended reasons. The Tribunal's decision was made three months after the hearing and one inference which it might be open to this Appeal Tribunal to draw is that by then they had simply forgotten that evidence.[23]In all these circumstances, Mr Lewis submits that the Tribunal were obviously wrong to find that no complaint of racial discrimination was made, either by the letter of 16 March 1999 or by the oral complaints, and were consequently also wrong to fail to go on to consider whether Mr Williams was victimised. Mr Lewis submits that, had the Tribunal found that there had been a protected act, their conclusion on victimisation could have been different, a matter to which they simply did not address themselves.[24]The second ground of appeal is that Gray failed to investigate Mr Williams's complaint of direct race discrimination. It was not in dispute, as we have said, that Gray had received the letter of 16 March 1999 and that Gray had instructed Craig Reed (or Graig Reed, as the Tribunal preferred to call him) to investigate the grievance. Gray adduced no evidence at the hearing that Mr Reed did investigate it and Mr Williams complains that the Tribunal failed to consider whether Gray's failure to do so amounted to less favourable treatment, contrary to section 1 of the 1976 Act. Since the Tribunal found that no complaint of race discrimination was ever made, they made no finding on this latter matter.[25]Senate has appeared by Mr Smith before us. Senate resists Mr Williams's appeal on the grounds found by the Tribunal, namely that Mr Williams made no complaint of discrimination nor was discriminated against on the ground of race. It also cross-appeals on the ground the Tribunal failed to make a finding of fact on whether Mr Williams had informed either Gray or Senate that he did not wish to transfer to Senate. If he had done so, as Senate claimed in its evidence to the Tribunal that he did, then even if Mr Williams ever had a complaint against Gray for race discrimination he could not maintain that claim against Senate, but only against Gray.[26]Mr Smith advanced a cogent argument to the effect that the Tribunal's language in paragraph 28, which we have quoted verbatim, justifies this Appeal Tribunal in interpreting it as amounting to a finding that they were indeed also rejecting Mr Williams's allegations that he had made oral complaints of discrimination. Mr Smith submitted that the Tribunal's reasoning in that paragraph can and should be interpreted as being to this effect, namely that if Mr Williams had made any complaints of discrimination it is improbable, indeed inconceivable, that he would not have raised them at the disciplinary hearings. This was particularly so with regard to the first disciplinary hearing which was held within a week or so of the letter of 16 March 1999. Mr Smith submits that we should interpret the Tribunal as having held in paragraph 28 that, as Mr Williams did not raise any complaint of discrimination at the disciplinary hearings, nor did he raise any such complaints at other times either. In support of that, the short account of the rival evidential cases to which the Tribunal had referred in paragraphs 17 and 18 underpinned the conclusion that they had the issue well in mind. Mr Smith pointed out that other parts of the Tribunal's reasoning also show that they did not appear to regard Mr Williams as a wholly reliable witness.[27]Gray has appeared on this appeal by Mr Kendall. Gray too resists Mr Williams's appeal and also Senate's cross-appeal. As to the former, Mr Kendall adopted Mr Smith's submissions. As to the latter (that is to say, the cross-appeal), Mr Kendall acknowledges the inadequacies of the Tribunal's reasoning in paragraphs 26 and 27 in which the Tribunal leave obscure whether they had made any finding on the Regulation 5 (4A) point. But he submits that the Tribunal show elsewhere in their reasoning that they had in fact accepted that Mr Williams did transfer to Senate. Mr Kendall refers to various paragraphs of the Tribunal's extended reasons, namely: (1) Paragraph 2:
"[Mr Williams] was employed b [sic] Gray Security Services from 30 October 1997 until July 2000 when Senate were given the contract at the Swiss Centre at which [Mr Williams] was then employed." (2) Paragraph 21: "
In few [sic] of our findings that [Mr Williams'] contract was as set out earlier in this decision it seems to us that those terms and conditions passed over with the transfer to Senate and that they were accordingly entitled to ask [Mr Williams] to work elsewhere." (3) Paragraph 23:
"…regardless of what happened at the meeting Senate wrote to [Mr Williams] telling him that he had a job with them." (4) Paragraph 27: "[Senate] did not act unlawfully in not keeping him on at the Swiss Centre."
[28]In the light of those observations, Mr Kendall submits that, although the Tribunal may not have found, one way or the other, whether Mr Williams had informed anyone that he did not wish to transfer to Senate, they nevertheless found that he had in fact so transferred. Mr Kendall submits that the inevitable inference is that the Tribunal were in fact finding that he (that is, Mr Williams) had made no such objection to a transfer.[29]We come to our conclusions. As we have indicated, we regard the Tribunal's extended reasons as unsatisfactory. Such reasons do not need to be long but they do need to be clear and they do need to address and make clear findings on the issues of fact which are material to the issues which the Tribunal has to decide. We accept that there was oral evidence before the Tribunal from Mr Williams that he had made complaints to Gray about discrimination and we consider that the letter of 16 March 1999 can also arguably be said to have made a complaint of discrimination. We can detect no clear finding one way or the other by the Tribunal as to whether or not they accepted that Mr Williams had made any such complaints. They appear to us to do no more than find expressly that he had not made any such complaints at the disciplinary hearings. We follow the argument that it may have been implicit in what they said in paragraph 28 that they were also finding that Mr Williams had never made any complaints of discrimination at all. But we feel unable to reach the view that they did so conclude. They had apparently not made, or at any rate not retained, a note of Mr Williams's evidence in chief. In any event they do not even mention the letter of 16 March 1999, and they make no finding as to whether that letter, which was at the heart of Mr Williams's case, did amount to the making of a complaint of discrimination. In our view the Tribunal's disposal of the issue in paragraph 28 was not good enough. They should also have made express findings as to whether Mr Williams had made any such complaints of discrimination, either in his March 1999 letter or otherwise. They did not do so. Had they done so, and had the findings been favourable to Mr Williams, the Tribunal would then have had to address the victimisation claim, which they wholly failed to do. We consider that Mr Williams's second ground of appeal is also made out, namely, that for like reasons, the Tribunal simply failed to consider his complaint that Gray had been guilty of racial discrimination against him.[30]The other matter of dispute is whether Mr Williams's contract was taken over by Senate. Again, the Tribunal's findings on this are wholly unsatisfactory. We conclude that they made no finding as to whether or not Mr Williams informed anyone he was not prepared to transfer to Senate. If he did, then it is difficult to see how he could have transferred unless only the subsequent acts of the parties gave rise to an implied contract of employment between Senate and Mr Williams. We agree that other parts of the Tribunal's reasoning appear to proceed on the basis that Mr Williams became Senate's employee, but the Tribunal make no findings as to the factual basis on which this was founded, if indeed the Tribunal had any particular factual basis in mind at all. Bearing in mind that the transfer of the undertaking to Senate took place on 7 July 2000 and that Mr Williams ceased working for either Gray or Senate on the same day, we can identify no factual basis on which the Tribunal could have found that he anyway became Senate's employee. Mr Kendall urged upon us that the only conclusion to which the Tribunal could in fact have come, had they troubled to focus expressly on the point, was that Mr Williams had not indicated that he did not want to work for Senate. We feel quite unable to accept that submission. As we follow it, there was a clear dispute of fact about whether Mr Williams did or did not inform Senate that he did not wish to work for them. The Tribunal's duty was to decide that issue but they failed to do so.[31]In our view, justice requires Mr Williams's complaints of racial discrimination and victimisation to be remitted to a differently-constituted Employment Tribunal for a fresh re-hearing. We allow the appeal and also Senate's cross-appeal and we will make such an order. There will of course be no remission to any such Tribunal of the other matters of which Mr Williams was complaining. (retire for discussion)[32]The other matter which we are required to rule upon is that Mr Smith has indicated that at the original hearing both his client, Senate, and also Gray raised a time bar point that Mr Williams' application was presented out of time. (Discussion). We are not ruling one way or the other on the matter but it will be open to the respondents to seek to take the point, if necessary, by amendment at the hearing, and it will be a matter for the Employment Tribunal dealing with the matter to rule on whether either or both of the respondents is or are entitled to do so.