MR A CEESAY v SECURICOR SECURITY LTD [2004] UKEAT 0105_04_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0105_04_0812Case No Appeal No. UKEAT/0105/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A CEESAYAPPELLANTSECURICOR SECURITY LTDRESPONDENT
Before
His Honour Judge J R ReidDate 8 December 2004
[1]APPEARANCES For the Appellant MR JOEL DONOVAN (of Counsel) Instructed by: Free Representation Unit 4th Floor, Peer House 8-14 Verulam Street London WC1X 8LZ For the Respondent MR H HAMILL (of Counsel) Instructed by: Securior Management Services Ltd Legal Services Sutton Park House 15 Carshalton Road Sutton Surrey SM1 4LD SUMMARY Unfair Dismissal / Race Discrimination Claimant dismissed unfairly. Employment Tribunal wrongly took account of post-dismissal conduct in reducing award. Employment Tribunal wrongly held wrongful dismissal claim "subsumed" in unfair dismissal claim. Respondent not allowed to raise "failure to mitigate": it had not done so before the Employment Tribunal. HIS HONOUR JUDGE J R REID QC This is the appeal and cross-appeal against a Decision of an Employment Tribunal held at London (Central) between the 3 and 6 of November 2003. The lengthy decision was sent to the parties and entered on the Register on 24 November.[2]By its decision so far as the Appellant Mr Ceesay is concerned the Tribunal held that Mr Cessay's claim for wrongful dismissal was subsumed into his claim for unfair dismissal and went on to hold that, the Respondent having conceded unfair dismissal, it was just and equitable that a percentage reduction of 75% applied his basic and compensatory award. He was then held to be entitled to a sum of £750.11 by way of compensation. His claim for direct race discrimination was dismissed.[3]On the appeal, there are four points in essence which are taken by Counsel on behalf of Mr Ceesay. Two of those relate to the 75%reduction. One of those relates to the question of whether the race discrimination claim should have been dismissed and one very short one relates to the determination that is wrongful dismissal claim was subsumed into his unfair dismissal claim. By way of cross-appeal what is said, it being accepted that the first of the Appellants two points in relation to the percentage reduction is a good one, effectively the same result should be achieved by way of looking at his alleged failure to mitigate his loss. This was a point which, although other mitigation points were taken below, itself was not taken below.[4]Dealing first then with the first of the deduction points. The background to the case could be put in fairly short form. The claimant, Mr Ceesay worked on the night shift at Woolgate Exchange in the City of London in premises occupied by West LB. He was a security guard as might have been gathered from the identity of the Respondent. It was asserted that he had been guilty of gross misconduct by sleeping whilst on duty which was supposedly recorded on CCTV footage. He denied that. He claimed that he was unfairly dismissed. He also claimed that during his employment and in his dismissal he was discriminated against by reason of his race. The first of the contributory conduct points is this: the Tribunal held that whilst he had been sleeping whilst on shift, there was no evidence that he was sleeping whilst on duty as opposed whilst he was on a break, and whilst it was said to be company policy that even whilst there were on their breaks personnel were not entitled to sleep, sleeping during breaks was at least condoned by a particular supervisor in this particular case.[5]The points on the basis of which the Tribunal deducted 75% from the award that they made for unfair dismissal were firstly because he failed to appeal against his dismissal and the Tribunal's view was that had he done so it was likely that he would have succeeded in his appeal. And secondly, both in the disciplinary hearing and at the Tribunal, the admission to sleeping on his break, though at the Tribunal he talked about merely nodding off. Now clearly the first of those grounds for reduction was a bad one because conduct contributory to the unfair dismissal must necessarily take place before the dismissal. Failure to appeal having been dismissed maybe something which in the appropriate case could be argued about on the question of failure to mitigate but it cannot properly be said to be contributory conduct in the unfair dismissal itself. That much is common ground between both Appellant and Respondent. The Tribunal plainly in error in relation to that, and to that extent, the appeal will have to be allowed, though we will return to the question of what should be done to carry the allowing of the appeal into effect.[6]The second of the deduction points arose out of the admissions as to sleeping. The way that the Tribunal dealt with that, in the end paragraph 50, was in one sentence. Having said that he contributed to his dismissal, which he didn't appeal when he had been told he had the right of appeal, the Tribunal went on:
"In addition, he admitted to sleeping on his break at his disciplinary hearing and at the Tribunal hearing, he admitted to nodding off. 51. Having taken these matters into account it is unanimous decision of the Tribunal, it is just and equitable, there should be percentage reduction of 75% from the basic and compensatory award for Mr Ceesay, in respect of contributory conduct."
[7]The terms of Mr Ceesay's employment clearly required that he should not be sleep whilst on duty. There was, however, no finding that his contract did not permit him to be asleep whilst on a break. The employees were told not to, but as I have indicated sleeping during the break was condoned. Conduct may justify a reduction even though it does not amount to a breach of contract or tort, but in order for it do so it has to be properly capable of being described as "perverse, foolish, bloody minded or unreasonable in all the circumstances" to quote from Brandon LJ in Nelson v British Broadcasting Corporation No 2 [1988] ICR 110. It does not seem to us that in the circumstances of this case the Tribunal could properly regard that his admitted sleeping during his break as being a good reason whether taken with his failure to appeal or otherwise for reducing his award by 75%. It seems to us, therefore that this ground of appeal too must succeed.[8]Moving on then to the race discrimination point, what is said is that the Tribunal failed to deal with the most important factors in the race discrimination complaint, in particular there was no comparison between the treatment meted out to Mr Ceesay and the treatment meted out to Mr Debono who it is said was white, being of Maltase nationality, and who was caught on, CCTV at the same time as Mr Ceesay was caught. Apparently, there was evidence (though there are no findings about it) from the representatives of Securior that no steps were taken against Mr Debono because they could not be satisfied from what they were able to see on the CCTV that he had indeed been asleep. That was evidently an issue which at an early stage Mr Ceesay wished to ventilate. At a preliminary hearing the Chairman, on that occasion Mr Buckley, made this direction in relation to the race discrimination claim. "(iv) Race Discrimination(a) Whether the Applicants suffered less favourable treatment by acts of harassment and/or by being dismissed on grounds of their race, namely that they were black African. They compare themselves to white or Asian employees who, they claim, were treated more favourably.(b) The alleged acts of discrimination include the following."[9]Nine matters are then set out none of which identifies Mr Debono or makes any reference to his dismissal or deferential treatment on his dismissal.

(c) :

"(c) Whether the Applicant's complaints of race discrimination presented in time within the period prescribed by section 68 of the Race Relations Act 1976., if not presented in time whether the period of the presentation should be extended by the Tribunal on grounds of justice and equity."
When it came to the hearing the Tribunal, at least in their decision, appear to have treated the nine numbered matters set out in paragraph 4 (b) of the Directions as being the totality of the alleged acts of discrimination rather than merely being inclusive. Given that on the face of it that was the position our instinct of this opening of the appeal was to take the view that here was lacuna because the Tribunal had failed to deal with one of the matters put before it. However, it's become clear during the course of the hearing that matters are not as simple as that and that the reason that Mr Debono's position and allegedly differential treatment was not dealt with, was because nobody raised at the hearing. No allegation of discrimination on the grounds of non-dismissal of Mr Debono as opposed to dismissal of Mr Ceesay, was put in cross-examination to any of the Securior representatives and clearly the matter was not urged on the Tribunal as being a separate and, as it now appears, supposedly extremely important point.[10]In those circumstances it does not seem to us that it is possible to criticise the Tribunal for failing to deal with the point which was never put before them as being a live point.[11]That, however, was not the only complaint about the Decision of the Tribunal because it was in addition asserted that there were other errors in the Tribunal's decision. Firstly, for not dealing adequately with the suggestion that black staff were discriminated against by being made to work on the night shift which was(a) less convenient and(b) less well paid. The Tribunal dealt with that in very short terms saying at paragraph 42 of the Decision:
"Black people worked on the day shift and white people worked on the night shift."
It said that was not an adequate disposal of the point, but in our judgment, it has to be looked at against the unchallenged evidence which was put before the Tribunal which showed a fairly substantial racial mix on both day and night shifts.[12]It was further suggested that was a failure to deal with the fact that black people were discriminated against because they were paid less, to which the answer is within each shift people were paid the same. There were separate day and night shifts and no flexibility between the two. The day shift was paid more because the perception of the client, West LB, was that the responsibilities of the day shift were greater and they had to have additional training and they had to undertake different tasks. The mere fact therefore that Mr Ceesay was(a) black and(b) on the night shift did not demonstrate any discrimination against him.[13]Then it was said that there was inconsistency in between paragraphs 40 and 42 of the decision because at paragraph 40 the Tribunal said:
"The Applicants had not demonstrated that they suffered a detriment because their contract was to work on the night shift. We have a full explanation as to why the night shift and day shift were separate, because of the requirements of West LB."
Then at paragraph 42 it was said the night shift did have a lower rate of pay than the day shift and to that extent there is a detriment. It was said there was inconsistency between those two. It is entirely true that it is unhappily phrased passage in the judgment and that by plum-picking for those two sentences out of their context it is possible to make it look as if there is a substantive inconsistency between the two paragraphs of the judgment but when looks at it in context, it is clear that there was no detriment simply because the Applicant was required to work on the night shift. There were two separate shift patterns and indeed the evidence was that he had been offered the chance to work on the day shift and refused. Secondly, when one looks at the second passage what the Tribunal is saying is simply that night shift were paid less and therefore might be thought to worse off, but there was a very good reason for it, namely the perception that the day shift who had to better trained had to a different and more complex job. In our judgment, there is no substance in this complaint.[14]Beyond that it was complained that, although the Tribunal carefully went through each of the nine specific complaints, one, the eighth, was not properly dealt with. That complaint was that the Respondent had made allegations that Mr Ceesay had been responsible for dishonest appropriation of articles belonging to the day shift. It appeared this related to an instance in February 2002 concerning to a missing tie and that there was evidence that night shift as a whole were asked about some pens missing from reception in May 2002. The Tribunal said this:
"Both of these events took place more than three months prior to the presentation of the Originating Application and are isolated matters that cannot form part of any continuing act. No reason has been put forward as to why it is just and equitable to extend time and it is the unanimous decision of the Tribunal that there is no jurisdiction to consider this complaint."
So far as that is concerned it was said that even if it was thought that these matters were out of time, the Tribunal should have made findings of fact as to whether or not Mr Ceesay had been alleged to dishonestly appropriated the tie and whether or not any allegations as opposed to enquiries had been made about missing pens. In our view the Tribunal was perfectly entitled to say, here are two matters which even if true (they carefully made no findings about them) are separate matters which cannot form part of a continuing act and to take the view that they were not of sufficient significance to be something which it was necessary to make findings about for the purpose of looking at the totality of the background of the allegations.[15]Finally, in relation to race discrimination complaints, there was a complaint that an employee of the Respondents had accused Mr Ceesay of being a member of the Al-Qaeda terrorist group. The Tribunal, in relation to that, set out the alternative contentions made by Mr Ceesay on the one hand and Mr Baker, the site supervisor on the other hand. Mr Ceesay says that the remark was made in November 2002. Mr Baker says that there is no such remark, there was an occasion in June or July 2002 when he made a remark to the effect, that Britain should not be involved in Afghanistan and asked Mr Ceesay whether he agreed, which Mr Ceesay had done. The Tribunal found that whatever was said was said in June or July and then went on to say this:
"On the evidence the Tribunal was unable to resolve exactly what was said."
[16]In our judgment if Mr Ceesay was going to make an allegation of a specific matter which was said to show racial discrimination, it was down to him to prove the matters on which he relied. It is wrong to say that the Tribunal's abrogated its responsibility by sitting on the fence, what it did was hold (as it appears from the words they used) that Mr Ceesay had not made out the allegation that he asserted. In those circumstances there was nothing to be added into the pot as indicating any racial discrimination against him, in relation to this particular point. We should add (though this was not a point taken before us) that, given the primary findings of fact on the alleged discrimination, there could be no proper complaint about the Tribunal's failure to look at the nine alleged acts of discrimination globally.[17]The final point raised on behalf of the Appellant was that the Tribunal was wrong to say that the wrongful dismissal award was subsumed in the unfair dismissal award. It was not seriously argued to the contrary. This does not have any financial consequences because that amount was to be offset against the compensatory award for the unfair dismissal, but the claimant is entitled to have a declaration as to wrongful dismissal, and we propose to make such declaration. That disposes, (of the subject to the question of remedy to which I will return) of the appeal.[18]As to the cross-appeal, the issue of mitigation in relation to the failure to appeal was not one which was raised before the Tribunal, it seems to us is too late to seek to raise at this stage. It is not simply a question of re-labelling something which was already in issue. There was some evidence before the Tribunal that there had been a complete breakdown of trust and confidence between Mr Ceesay on the one hand and Mr Baker his immediate line manager on the other hand, and it might well have been that there was also evidence that Mr Ceesay had no faith that an appeal would produce any worth while result albeit one of his colleagues, similarly dismissed, was reinstated. He took the view, as he wrote to his employers, that in effect the result of an appeal was foregone conclusion. Now, those are matters which could and should have been investigated more fully and on which findings would have been made had the question of mitigation been raised before the Employment Tribunal. In those circumstances we do not think that it is a matter which can be properly raised at this stage.[19]We therefore come to the conclusion that the contributory conduct on which the Tribunal rely to reduce the award by 75 % does not serve the purpose which they have sought to make it serve and what we propose to do is to allow the appeal simply by removing that 75% reduction so that we substitute for the award which was made, an award of the full amount that he would have received, which as we understand it from page 15 of the bundle would have been £3,000.44. We will also give him the declaration to which he is entitled but so far as the racial discrimination element of the appeal is concerned and so far as the cross-appeal is concerned, we will dismiss them. The net result, therefore is that in money terms, which is presumably what Mr Ceesay is most interested in, is that for the figure of £750.11 will be resubstituted figure of £,3000.44.