MR A BOSEPA GONZALVEZ v MR P J DIMENT & MRS A M DIMENT T/A MESON DON FELIPE [2003] UKEAT 870_02_1601

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 870_02_1601

Case No Appeal No. EAT/870/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A BOSEPA GONZALVEZAPPELLANT

MR P J DIMENT & MRS A M DIMENT T/A MESON DON FELIPERESPONDENTS

Before

Mr Justice Rimer Mrs R A Vickers Mr G H Wright

Date 16 January 2003

[1]APPEARANCES For the Appellant MR D OHLSON (Representative) Southwark Law Centre Hanover Park House 14 -16 Hanover Park Peckham London SE15 5HG For the Respondents MR A BLAKE (of Counsel) Instructed by: Messrs Mackintosh Duncan Solicitors 103 Borough High Street London SE1 1NL THE HONOURABLE MR JUSTICE RIMER This is an applicant's appeal by a notice dated 15 August 2002 and amended on 23 October 2002. The appellant is Mr Armando Bosepa Gonzalvez ("Mr Gonzalvez"). The respondents are Mr P J Diment and Mrs A M Diment, who trade in partnership as Meson Don Felipe, a Spanish restaurant.

[2]The appeal is against the decision of the Employment Tribunal (Chairman, Mr N A Halton) sitting at London South on 6 June 2002. The Tribunal rejected Mr Gonzalvez's complaints of unlawful discrimination under the Race Relations Act 1976 and unfair dismissal. Their extended reasons are dated 10 July 2002.

[3]The originating application to the Employment Tribunal was dated 30 October 2001. Mr Gonzalvez advanced complaints of racial discrimination and unfair dismissal and sought compensation. He was then just under 26 years of age. He said he had been employed as a barman by Meson Don Felipe from 25 June 2001 until 29 October 2001, when he was dismissed. He obtained the job through his girlfriend who knew the girlfriend of Mr Fernando Cantero, the first assistant manager of the restaurant, and it was Mr Cantero who interviewed Mr Gonzalvez for the job.

[4]Mr Gonzalvez set out his case in an accompanying statement at some length. That statement, as slightly amended, formed the basis of his witness statement for the purposes of the hearing before the Tribunal. It is of importance to the issues raised by the appeal to set out the nature of his case before the Tribunal, and we will do so at this stage. He explained that during the evening shift at the restaurant there were one other barman, three waitresses, four kitchen workers and the manager. All of them were either white Spanish or white Spanish speaking South Americans. Mr Gonzalvez is black, his mother is Portuguese and his father is from Guinea in Africa. He was brought up in Spain and is a fluent Spanish speaker.

[5]Mr Gonzalvez asserted that he had early problems with Piedad Tenorio, the second assistant manager at the restaurant. He says she was regularly rude to him and one evening, on about 20 July 2001, she shouted at him in front of other staff and the customers. He said she told him later that she did not have any specific criticisms of his work, she just did not like him. He said that after about a month he and others had a meeting with Mr Diment, the restaurant owner. They wanted to raise various matters, including a claim to be entitled to breaks of 20 minutes, and Mr Gonzalvez said that, in particular, Ms Tenorio did not give the staff regular breaks. He said that following this meeting, staff were given such breaks, which he took to be a recognition of the justice of the point they had raised. Other matters raised were whether the staff could eat the food left over in the restaurant. Ms Tenorio had been saying no to this, whereas Mr Cantero had been saying yes.

[6]Mr Gonzalvez asserted that, following this meeting, Ms Tenorio made it clear that she was looking to find fault with him on every possible occasion and he gave an example or two of this. He says he was told by certain unnamed colleagues that, about four weeks before he was sacked, both Ms Tenorio and Mr Cantero were going round the staff asking whether they liked working with him, and one member of staff, Felipe Pardo, told him that Mr Cantero had told him that he did not like working with black people. Mr Gonzalvez said in his witness statement that Ms Tenorio "was I understand more cautious, and just tried to encourage hostility towards me"

[7]Mr Gonzalvez said that when he first started working at the restaurant he and his girlfriend rented a room in Mr Cantero's house, a five bedroomed one which he rented and sublet. He said that three weeks before he was sacked, Mr Cantero told him to go, saying that he and his girlfriend wanted to live there by themselves; Mr Gonzalvez says that Mr Cantero nevertheless continued to sublet the house.

[8]Mr Gonzalvez said that on 10 October he was summoned to a meeting by Santiago Sosa, the general manager, and Ms Tenorio. They told him that they had had a complaint about a barman the night before but did not say which one it was. Mr Gonzalvez's response to Mr Sosa was that this was not the first time he had been blamed for something he had not done and he said he felt that they were just playing games with him.

[9]Mr Gonzalvez was sacked on 29 October. On that day he went to the restaurant at 5 pm and got changed. Mr Sosa called him into his office and told him that he did not need to work that day. He said he would be paid for the whole week and that the restaurant did not need him, it did not have enough work for two barmen. Mr Gonzalvez responded that it could not be that there was no work, since the restaurant had taken on two new waitresses the previous week. Mr Sosa insisted there was no work and said that as Mr Gonzalvez had been the last one in, he was to be the first one out. Mr Gonzalvez said that, following his dismissal, at least three members of the staff handed in their notice because of the way he had been treated, and they include Mr Pardo. He says he asked Mr Sosa for a letter confirming the reasons for his dismissal, which he claims were not work related but were personal. He later received a letter dated 29 October saying that his dismissal was for reasons of redundancy.

[10]Mr Gonzalvez asserted in his claim that he had been treated less favourably during his employment on racist grounds. In support of this he said that, at the beginning of October 2001, his sister had asked for a job at the restaurant but Mr Cantero told her that the general manager had told him that it was a general rule that no family related people were allowed at the restaurant, and he said this too was untrue, giving an example demonstrating it. He claims he was less favourably treated for racist reasons during his employment by Ms Tenorio and Mr Cantero, and asserted that that was one of the main reasons for his dismissal.

[11]Mr Gonzalvez had been employed by the restaurant for less than a year at the time of his dismissal, but he also advanced a claim of unfair dismissal. He claimed that the reason, or one of the main reasons, for his dismissal was that he had alleged the restaurant had infringed the staff's statutory right under Regulation 12 of the Working Time Regulations 1998 to proper rest breaks. In these circumstances, he claimed that section 108(1) of the Employment Rights Act 1996 represented no bar to an unfair dismissal claim since his case was one to which section 108(3) applied, in particular he claimed that his case was governed by section 104 of the 1996 Act.

[12]The restaurant's notice of appearance was dated 16 March 2002. It asserted that Mr Gonzalvez was dismissed for reasons of redundancy. It set out what we might call the profile of the restaurant and further asserted that Mr Gonzalvez was made redundant in the ordinary course of business, and that no one had been employed to replace him. As for rest breaks, the respondent said that staff were advised that if they wished to eat prior to starting work they should arrive at 4.30, eat and start work at 5.00 and, depending on the volume of business, they were given breaks at various times but always before 11 o'clock.

[13]We turn now to the decision of the Employment Tribunal. Mr Gonzalvez was represented at the hearing by Mr Ohlson. He gave evidence in accordance with his witness statement and was cross-examined. The Chairman's notes, which were produced pursuant to a direction of this Appeal Tribunal, appear to reveal that he made no notes at all during Mr Gonzalvez's evidence-in-chief or cross-examination. Mr Gonzalvez called supporting evidence from Ms T del Paso and Mr Pardo. Mr Pardo was also a barman at the restaurant from December 2000 until November 2001 and, in his witness statement which was before the Tribunal and on which he was cross-examined, he related how Mr Cantero voiced hostile attitudes towards gypsies and told him that Mr Gonzalvez was the last negro the restaurant was going to employ. Mr Pardo said that the conversation was in Spanish and that Mr Cantero used the word "negro" - no doubt "negro" is a Spanish word - but made clear in his evidence that he used this word in what he refers to as a derogatory tone.

[14]Mr Pardo gave evidence of a specific incident in which Mr Cantero displayed his antipathy towards a black student whose car had apparently collided with Mr Cantero's. Mr Pardo said of Ms Tenorio that she was more cautious, but constantly tried to set him against Mr Gonzalvez. If there was any complaint about the bar, she always blamed him rather than the bar staff generally. Mr Pardo said in his witness statement that he felt she was racist as well as Mr Cantero, although she did not say anything explicitly to that effect to Mr Pardo. Mr Diment represented the respondents and gave evidence and so also did Mr Sosa and Ms Tenorio.

[15]The Tribunal found in paragraph 8 of its extended reasons that:

"…. from early on there were difficulties between the Applicant and particularly the Assistant Manager at the Restaurant ….."

And we interpose to say that that was a reference to Ms Tenorio. "…There was a clear clash of personalities and evidence was given of several incidents of the nature in which this was apparent. There were certain other incidents involving the other members of management, again which suggested that the management took, to say the least, a cautious view as to the abilities of the Applicant to fulfil his job role satisfactorily." The Tribunal did not, however, provide any further findings as to the precise nature of the incidents to which they were there referring. They then, in paragraph 9, referred to the meeting held at the end of July at which Mr Gonzalvez and other members of the staff raised with Mr Diment the matter of the rest breaks, and they recorded that Mr Gonzalvez himself accepted that the position with regard to that matter was regularised following the meeting and so ceased to be a problem.

[16]Then, in paragraph 10, the Tribunal referred to two particular incidents as having occurred on 20 July and 25 August 2001, but again, they did not identify their nature save to say that on each occasion "the Applicant was spoken to by the management" and that the restaurant made no contemporaneous note of them. The Tribunal also found that, at the same time, Mr Diment was concerned that staff costs in relation to turnover were taking an adverse trend, as a result of which he consulted with the management as to how to reduce costs.

[17]The Tribunal commented that the respondents' evidence about this was poor, there being no documentation evidencing the concern or the conclusions reached by management from the discussions, but they found that by early September:

"It had been identified that one of the bar staff was to be a candidate for termination, the Respondent says by reason of redundancy."

The Tribunal then said that it:

"is concerned to note that is was [sic] from this time onwards, on the Respondent's own evidence, that the management sought to enhance the record against the Applicant, by questioning staff about their working relationship with him and in early October by the Assistant Manager inserting in the complaints book (post-dated) entries in relation to the 20 July 2001 and 25 August 2001 incidents. In that there was reliance placed by the management upon these complaints, the Tribunal is greatly concerned as to the manner in which that evidence apparently against the Applicant was being at the very least annotated, and perhaps created."

[18]The Tribunal then recorded that the restaurant decided that it was Mr Gonzalvez who was to be the subject of the alleged redundancy and that he was dismissed on 29 October and paid for the rest of the week. They also recorded the respondents' evidence as to their claimed open-mindedness in the employment of staff from a wide variety of backgrounds.

[19]The Tribunal then referred to sections 1(1)(a) and 4(2) of the Race Relations Act 1976 which provide respectively in part:

"1 Racial discrimination (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a) on racial grounds he treats that other less favourably than he treats or would treat other persons" ….. 4 Discrimination against applicants and employees ……. (2) It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee - ……. (c) by dismissing him, or subjecting him to any other detriment."

[20]The Tribunal then set out its conclusions. Dealing first with the unfair dismissal claim, they concluded that the raising by Mr Gonzalvez of the rest breaks point in July 2001 was one of many background reasons "which created a sudden level of disaffection by the Respondent as regards the Applicant". They found, however, that the matter of the rest breaks was then promptly dealt with and that it played no further part in the restaurant's decision to terminate his employment. They held this was not the reason - or at any rate, if more than one, not the principal reason - for his dismissal and they therefore dismissed his claim under section 104 of the 1996 Act that he had been unfairly dismissed and Mr Gonzalvez does not seek to appeal against that decision.

[21]The Tribunal then turned to Mr Gonzalvez's complaint under the 1976 Act. They focused separately on the dismissal and on the allegations of discrimination during the currency of his employment. Dealing first with the dismissal, they found that it constituted less favourable treatment in that Mr Gonzalvez was treated less favourably than other members of the bar staff. They then rejected the respondents' explanation for the dismissal, which they regarded as unsatisfactory. They found that such was the turnover of staff that sooner rather than later a reduction in staffing costs could have been achieved whilst retaining Mr Gonzalvez. The Tribunal were also critical of the manner of the dismissal allegedly for redundancy, saying:

"We do not have to make this determination, but it is clear to us that the process was less than transparent, there was no consultation, there was no serious effort to consider other employment and we have grave doubts about the quality of the annotated criticisms on which the management relied."

[22]The Tribunal were, therefore, quite severely critical as regards the respondents' evidence and effectively rejected the redundancy explanation for the dismissal. The Tribunal then went on to say in paragraph 23 that they concluded that:

" … despite those reservations we decide we are not able to reach the inference that the decision was arrived at by reason of the Applicant's race. The problems were as to personality and particularly as between the Assistant Manager and the Applicant. There seemed to us to be a grave absence of management skills in the face of these problems, which could and should have been addressed at an earlier time. But we are satisfied on balance that this was not a matter of race as such, and conclude that there was not here a discrimination unlawful under the 1976 Act."

[23]Turning then to the allegation of racial discrimination during the currency of Mr Gonzalvez's employment, they dealt with this in paragraph 24 where they said:

" …… the Applicant in his allegations had identified the cold and offhand manner to him and the way in which he says he was singled out for criticism. Although in the generality we are not able on the evidence to conclude that there was less favourable treatment within the meaning of the 1976 Act, we accept that there was evidence of an attitude and a coldness to him by (at least) the Assistant Manager. However, even if we take that position in our conclusions, we find that there was a failure by the Respondent to address the issues and a failure to manage the Applicant properly, which underlay the difficulties which arose. At all events we reach the conclusion that these problems were not created by matters of discrimination under the 1976 Act, but rather (as indicated in the analysis above), as to the personality clashes and problems that existed between the individuals."

The result was that the Tribunal dismissed the claims under the 1976 Act as well.

[24]On this appeal, Mr Ohlson has appeared again for Mr Gonzalvez, and Mr Blake has appeared for the respondents. Mr Ohlson is critical of the Tribunal's reasons, which he says fall materially short of including the findings of fact which, in a race discrimination case of this nature, they ought to have included. There is now a familiar line of authority which underlines that in race discrimination cases there will rarely be direct evidence of discrimination and whether or not claims succeed will depend on what inferences the Tribunal is prepared to draw from the primary facts. One of the authorities is King -v- Great Britain China Centre

[1991] IRLR 513

in which Lord Justice Neill, at page 518, set out some well-known guidelines, pointing out in the third of them the extent to which the outcome of the case will usually depend on the drawing of inferences from the primary facts found by the Tribunal. That guidance was approved by the House of Lords in Zafar -v- Glasgow City Council

[1998] IRLR 36

, and the cases were recently helpfully reviewed by Lord Justice Sedley in the course of his judgment in Anya -v- University of Oxford & Another

[2001] IRLR 377

. At page 380 of that decision, Lord Justice Sedley referred to the guidance which had been given by Lord Justice Peter Gibson in Chapman -v- Simon

[1994] IRLR 124

and quoted from Lord Justice Peter Gibson's judgment, as I will, the Lord Justice saying:

"…… Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion" and then Lord Justice Sedley himself said in paragraph 10 of the Anya judgment: "

Running through this guidance, and the guidance cited in it, is the ubiquitous need to make the findings of primary fact, without which it is impossible to consider the drawing of relevant inferences. It can be found again in this Court's judgment in Marks and Spencer plc -v- Martins which cites Lord Browne-Wilkinson's reminder in Glasgow City Council -v- Zafar that 'claims [of race and sex discrimination] present special problems of proof for complainants since those who discriminate on grounds of race or gender do not in general advertise their prejudices'

[25]Finally,

Lord Justice Sedley said, in part of paragraph 12 of his judgment in Anya :

"Mr Nicholas Underhill QC, for the respondents has submitted that Qureshi is distinguishable from the present case inasmuch as there the industrial tribunal's reasons, far from overlooking the factual issues, had practically sunk under the weight of them. But the importance of the Employment Appeal Tribunal's guidance in that case in no way depends on this. It is of general relevance, among other things, in demonstrating why an inadequately reasoned judgment denies the parties, especially but not solely the losing party, the materials necessary to know why the outcome has been what it has and whether it is appealable - a principle reiterated by this court in Flannery - Halifax Estate Agencies Ltd [2001] All ER 373 where the want of adequate reasons was held to be a free-standing ground of appeal. To this can now be added the jurisprudence of Article 6 of the European Convention on Human Rights, which the Human Rights Act 1998, by ss 2 and 6, requires courts and judicial tribunals to take into account, to the effect that adequate and intelligible reasons must be given for judicial decisions. Extended reasons, such as have by law to be given in race relations cases, are designed amongst other things to meet precisely this need."

[26]We take the view that Mr Ohlson's criticism of the lack of reasons in the Tribunal's reasoning is well-founded. This is a case in which the Tribunal found that there had been less favourable treatment of Mr Gonzalvez, at any rate in respect of his dismissal, and had rejected as unsatisfactory, and in quite critical terms, the respondents' evidence as to how and why it came about that he was selected for dismissal. Those circumstances, by themselves, were circumstances which might have entitled, although we make clear certainly did not require, the Tribunal to conclude that the less favourable treatment suffered by Mr Gonzalvez was on racial grounds. As we say, the Tribunal were certainly not bound so to conclude. They still had to make a finding about that and, having first considered all the relevant evidence, they might well have felt justified in not arriving at any such conclusion. But having arrived at the state of play which they did in the manner in which we have described, their duty was, in our judgment, to assess the evidence relevant to the racial discrimination allegation which was adduced by both sides, with a view to making findings on what were, in fact, the true reasons for the dismissal, they having rejected the respondents' contention that it was on grounds of redundancy and having also rejected what appears to have been submitted to the Tribunal, namely that one of the factors in the dismissal was the applicant's work record.

[27]The Tribunal can be said to have set themselves the correct test in this case and can be said, as Mr Blake does say, to have made a perfectly unambiguous finding of fact which was that, even having rejected the respondents' evidence, nevertheless there was no justification for concluding that the less favourable treatment was attributable to racist grounds. But the difficulty with that is that we take the view that there was a material enquiry which the Tribunal should have embarked upon, but which they did not, which omission leaves anyone studying the decision the Tribunal reached wondering how the Tribunal satisfied itself about the various matters which they left unanswered.

[28]For example, the evidence was to the effect that some four weeks or so before Mr Gonzalvez was dismissed, Mr Cantero and Ms Tenorio were going around the staff canvassing the staff members' views on Mr Gonzalvez, and the evidence of Mr Pardo is that Mr Cantero, at least, had displayed manifestly racist attitudes to black people generally, and, according to Mr Pardo, to Mr Gonzalvez in particular. Mr Pardo is not quite so unequivocal as regards Ms Tenorio's attitude, but his evidence is that he felt that she too harboured racist attitudes about it, although she did not spell that out.

[29]If one has a picture of those two individuals - one of them holding those very unsympathetic views towards Mr Gonzalvez on racist grounds, the other perhaps sharing like views, maybe even views she was not conscious she held - that was, in our judgment, an area which, having regard to the rejection by the Tribunal of the expressed reasons for the dismissal of Mr Gonzalvez, raised matters which should have been considered by the Tribunal before they came to a final conclusion as to whether it was correct to draw an inference that the reason, or the main reason, for the dismissal of Mr Gonzalvez was in fact a reason outlawed by the 1976 Act. But when we look at the reasons given by the Tribunal we find that there is not a single mention of these matters, there is no finding of fact as to whether Mr Cantero did in fact express or hold these views, no finding of fact as to what Ms Tenorio's views were, and no satisfactory finding of fact as to what the real cause for dismissal was. That was effectively said to be explicable by reference to the personality clash to which the Tribunal referred in paragraph 8 of its reasons, that being a reason for dismissal which was not advanced by anyone at the Tribunal and, as we understand it, was not a reason which was tested by anyone at the Tribunal, it was merely the Tribunal's own theory as to what underlay it all.

[30]Now it is possible that the Tribunal's conclusion was perfectly correct. The difficulty, however, with being satisfied that it was is that there was, if not a wealth, certainly a degree of evidence before them which did touch directly upon the question of whether there had been any unlawful discrimination, and which did require a proper investigation. We consider that they needed to make a far more thorough enquiry as to the real reasons for Mr Gonzalvez's dismissal than they did, and instead of that we are left with extended reasons which are, in material respects, inadequate.

[31]Mr Blake, in his sustained argument for the respondents, was disposed to accept that the decision was, as he put it, less than perfect. He was at pains to submit that the Tribunal had posed themselves the right question and had made very clear findings of fact that the dismissal was on what might be described as "personality clash" grounds. That is true, that is what the Tribunal did find, but for reasons which we have endeavoured to give, we take the view that there was more to enquire into and make findings upon in this case than the Tribunal in fact did, and we are left with the uncertainty as to whether the decision at which they arrived was in fact a properly reasoned decision, for the simple reason that the Tribunal has not gone to the trouble of providing the reasons which ultimately led it to that conclusion.

[32]We have come to the conclusion that this appeal should therefore be allowed. We propose to set aside the order of the Employment Tribunal and we will remit the application to a fresh Employment Tribunal for a re-hearing.