MR T DHILLON v MAY & BAKER LTD T/A SANOFI AVENTIS [2009] UKEAT 0120_09_0508

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0120_09_0508

Case No Appeal No. UKEAT/0120/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR T DHILLONAPPELLANT

MAY & BAKER LTD T/A SANOFI AVENTISRESPONDENT

Before

Mrs Justice Slade Mr D Chadwick` Mr B R Gibbs

Date 5 August 2009

[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Instructed by: Messrs MWP Solicitors Freedom House East Sq Basildon Essex SS14 1HS For the Respondent MR GAVIN MANSFIELD (of Counsel) Instructed by: EEF Legal Services Broadway House Tothill Street London SW1H 9NQ SUMMARY RACE DISCRIMINATION Comparison Mr Dhillon was dismissed for misconduct after he had received a final written warning in respect of previous conduct. The Employment Tribunal found his dismissal to be unfair. It held that Mr Dhillon's final written warning was unreasonable and the employers would not have dismissed him for the subsequent incident but for the warning. In any event the Employment Tribunal considered that dismissal for the subsequent incident was outside the range of reasonable responses. It dismissed Mr Dhillon's complaint of race discrimination. It held that he had failed to identify an actual or hypothetical comparator in that he had failed to show that a white comparator in comparable circumstances would have been treated more favourably. The decision could have been more clearly reasoned but there was no error of law. The appeal was dismissed as was the Company's appeal from the finding of unfair dismissal. THE HONOURABLE MRS JUSTICE SLADE Introduction This is an appeal by Mr Dhillon from the judgment of an Employment Tribunal entered in the register on 25 September 2008. The Employment Tribunal held that Mr Dhillon had been unfairly dismissed but dismissed his claims of race discrimination and victimisation.

[2]Mr Horan, who has appeared for Mr Dhillon, has advanced six grounds of appeal to challenge the dismissal of the complaints of race discrimination. Mr Mansfield, who appears on behalf of May & Baker Ltd, the Respondents, raises by way of cross appeal a challenge to the finding of unfair dismissal. The Facts

[3]The relevant facts briefly stated are these. The Appellant, Mr Dhillon, who is of Indian national origin, was employed from 1 May 2003 by the Respondent as a Production Operator. In February 2007 he created a weblog, describing his working day including office banter and employee names. It seems that this may have been created in connection with a bid to appear on Big Brother. He circulated this weblog to a limited audience of some of his workmates. Disciplinary proceedings were taken against him for creating the weblog. He was given a final written warning by a Mr Betson. Subsequently on 6 July 2007 Mr Dhillon wrote on a trolley with what seems to have been a marker pen in ink which could be cleaned away using a wipe. He wrote words on the trolley which were not thought to be generally offensive but which referred to employees' bonuses depending on carrying out certain actions. He was suspended from his duties for writing on the trolley and a disciplinary meeting was convened. He was dismissed. He appealed against his dismissal but his appeal was dismissed.

[4]It appears that prior to the Employment Tribunal proceedings in which he challenged his dismissal Mr Dhillon had issued other tribunal proceedings or made other claims of race discrimination in relation to the final written warning he was given. Those proceedings were dismissed upon their withdrawal. Grounds of Appeal Grounds 1 and 3

[5]The principal grounds of appeal are Grounds 1 and 3. By Ground 1 it is contended on behalf of Mr Dhillon that the Employment Tribunal erred in failing to make findings of fact relating to racist remarks about him alleged to have been made by Mr Betson. Mr Horan contends that it was important for the Tribunal to have made factual findings as to whether those remarks had been made and if so how often. He submits that such remarks were important evidence from which an inference that the dismissal was on the grounds of race could have been drawn.

[6]It was said that it was significant that these racist remarks were made by Mr Betson because he had been involved in giving the final written warning. Further it was said by Mr Horan that Mr Betson was responsible for suspending Mr Dhillon prior to his dismissal and that he had been spoken to by those who were involved in the decision to dismiss or in the appeal against dismissal.

[7]Mr Horan points out that a Mr Dadson gave evidence to the Tribunal that Mr Betson had used racist language. In response to a request for information by this Employment Appeal Tribunal the Employment Tribunal stated that there had been evidence before them from Mr Dadson citing a particular instance of his hearing Mr Betson use the expression "black bastard" when referring to Mr Dhillon.

[8]Mr Horan says that the fact that Mr Betson was not challenged in cross-examination by Mr Dhillon as to whether or not he had used this language could not reasonably be taken as an acceptance by Mr Dhillon that such language had not been used. Indeed the Tribunal's own comments indicate very clearly that they accepted that Mr Betson had used such language. Mr Mansfield, for the Respondent, contends that there is good reason for the absence of any reference by the Tribunal in its judgment to the allegation that Mr Betson used racist language. It was not relevant to the issues which were before the Employment Tribunal in determining the claim that Mr Dhillon was dismissed on grounds of race.

[9]Further, Mr Mansfield says that there is issue estoppel relating to an allegation that the final written warning was given on racial grounds because a claim in that regard had been dismissed by a tribunal on its withdrawal. He relied upon British Airways v Boyce

[2001] IRLR 157

to the effect that issue estoppel arises on dismissals on withdrawal of Employment Tribunal claims. Accordingly he says that what racist comments Mr Betson did or did not make and his involvement in giving the final written warning is not relevant. In any event by reason of issue estoppel these matters could not be relied upon either as founding a cause of action or as evidence of later alleged race discrimination.

[10]Further, as a matter of fact Mr Mansfield said that Mr Betson was not the person who suspended Mr Dhillon prior to his dismissal and that the notes of evidence do not support a contention that he had been consulted by the decision makers or influenced the decision to dismiss.

[11]An Employment Tribunal is not obliged to make findings of fact on every point raised in proceedings. It is only obliged to make findings of fact on those matters which are relevant to its decision. In this case we accept the contentions on behalf of the Respondent that in order to determine whether the dismissal of Mr Dhillon was on grounds of race or whether he was victimized within the meaning of the Race Relations Act 1976 ('RRA'), the Employment Tribunal did not have to decide issues relating to Mr Betson and it did not err in failing to make findings of fact as to his use of racist language. Further, we accept the submissions that there was issue estoppel in regard to an allegation that the final written warning given by Mr Betson was on grounds of race. However that is as far as the issue estoppel goes, because it is quite plain that it was not only Mr Dhillon but also the Respondents before the Employment Tribunal who relied upon the facts and circumstances which gave rise to that final written warning as relevant and material to the dismissal and to its fairness.

[12]In our judgment the Employment Tribunal did not err in failing to make findings of fact relating to Mr Betson. Those findings were not material to its decision on the claim before it.

[13]Ground 3 of the Notice of Appeal raises the issue of whether the Tribunal erred in considering whether Mr Dhillon had identified a comparator before considering whether there had been race discrimination in the decision to dismiss him. Mr Horan on behalf of Mr Dhillon contends that the Employment Tribunal erred in failing to consider whether Mr Dhillon had suffered discrimination on grounds of race before considering the question of whether he had identified a comparator. Mr Horan refers to the well-known case of Shamoon v Chief Constable of the Northern Ireland Constabulary

[2003] IRLR 285

in which Lord Nicholls held at paragraph 8:

"No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the Claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined. The present case is a good example."

Mr Mansfield for the company says that the Tribunal did not err in law in its approach to the need to identify a comparator. An employer is not required to justify every decision to show that it is not taken on grounds of race. He contends that the Employment Tribunal appropriately considered the comparator issue.

[14]We would have liked more reasoning from the Tribunal as to their decision that no appropriate comparator had been identified by Mr Dhillon. However the failure to give full reasons was not raised as a ground of appeal originally or even in the amended grounds of appeal. No Meek point ( Meek v Birmingham District Council

[1987] IRLR 250

) was taken. Largely as a result of our concerns, there was an application to amend the Grounds of Appeal to add the Meek point. The amendment was resisted by Mr Mansfield on behalf of the company. He contended that prejudice would be suffered by the Respondent in that had the point been raised at an earlier stage it would have been in the Notice of Appeal at the latest by the time the matter came before a judge in February of this year, 2009, who may well have remitted the matter to the Employment Tribunal for further reasons using the Burns/Barke procedure ( Burns v Royal Mail Group

[2004] ICR 1103

; Barke v Seetec Business Technology Centre Ltd

[2005] IRLR 633

). If that had been done then the Tribunal's reasoning would have become even clearer. Prejudice would be suffered by the Respondent if the amendment were allowed as that step is now too late and not available in practice. Somewhat reluctantly but having regard to the overriding objective of proceedings in the Employment Appeal Tribunal and in the interests of justice we accepted that prejudice would be suffered by the Respondent if we allowed the amendment. That prejudice is not outweighed by prejudice to Mr Dhillon in refusing it. In the circumstances we refused the amendment.

[15]The Employment Tribunal considered material placed before it both by Mr Dhillon and by the Respondent as to the treatment of other individuals who had been guilty of some misconduct. We were not provided with the lists which are referred to in the judgment nor does the Tribunal set out in any detail the misconduct of which each of the individuals on the list was guilty nor the action which was taken in relation to them. However the Employment Tribunal referred in a global way to some of the allegations against some of the individuals. At paragraph 50 the Tribunal observed:

"50. The thrust of the Claimant's case was that the Respondent had reacted with far less severity to conduct of a much more serious nature. Although not put by him in terms his hypothetical comparator was a white employee who had committed an act of more serious misconduct but was either not disciplined at all or was subjected to a sanction short of dismissal. However he did not point to any examples in which an individual not dismissed was subject already to a final written warning at the time of the alleged misconduct. 51. We accept Ms Eady's submission that the Respondent is entitled to take a less serious view of errors or mistakes in carrying out work even if the negligence is gross than of deliberate conduct on the part of an employee. That it did so is clear from the list produced by Mr Knight [Mr Knight was a witness for the Respondent]. "

[16]The Tribunal continued in paragraph 52:

"In our judgment the Claimant's examples 6, 13, and 18 are perhaps the most useful in seeking to identify a hypothetical comparator. However one of these involves managers who appear to have been acting within their authority, and two relate to sexual misconduct. If the Respondent takes a relatively tolerant attitude in relation to sexual misconduct without reference to race, as might be suggested as well as by what we accept to have been the widespread circulation of pornography, then this is of less utility in identifying a comparator."

[17]At paragraph 53 the Tribunal held: "We do not consider that we are able on the basis of the evidence before us to construct a satisfactory hypothetical comparator. Because of the difficulty in identifying a satisfactory comparator, we are not satisfied that the Claimant has proved on the balance of probabilities facts from which we can conclude in the absence of adequate explanation that the Respondent discriminated against on the grounds of race in dismissing him. … Further, in our judgment there is no direct evidence that race had a causative effect on the decision to dismiss the Claimant. Accordingly the discrimination claim is dismissed.

[18]In the final sentence of paragraph 54 the Tribunal observe of Mr Dhillon's dismissal:

"Had the burden of proof shifted we would not have been satisfied, in light of our findings in relation to unfair dismissal, that the Respondent offered a cogent, non-discriminatory explanation."

[19]With respect to the Tribunal, the findings on the reason why they did not find that there was a satisfactory comparator are given but, with respect, could be clearer. However on the ground of appeal advanced on behalf of Mr Dhillon in relation to the comparator, in our judgment the Tribunal did not err in failing to consider first whether the Respondents had shown a reason for dismissing Mr Dhillon which was not related to race before considering whether Mr Dhillon had established that he had been less favourably treated than would have been an actual or a hypothetical comparator. As has been said by this Employment Appeal Tribunal and also endorsed by the Court of Appeal in the case of Bahl v The Law Society

[2004] IRLR 799

, an employer is not required to justify even unreasonable treatment at pains of a finding of unlawful discrimination. Unreasonable treatment of a complainant alleging discrimination by an employer cannot of itself lead to an inference of discrimination, even in the absence of evidence from the employer justifying that unreasonable treatment. Accordingly in our judgment the Employment Tribunal did not err in the respects alleged in ground 3 or generally in its treatment of the issue of the need for establishing a comparator to show less favourable treatment had been meted out to Mr Dhillon. Ground 6

[20]In the sixth ground of appeal it is contended on behalf of Mr Dhillon that the Employment Tribunal erred in its approach to the question of whether his dismissal was on the grounds of race in that it failed to take into account its finding that the dismissal was unfair. Mr Mansfield on behalf of the Respondents contends that because a dismissal is unfair does not mean it is an act of race discrimination. In this case the reason for his dismissal was Mr Dhillon's conduct in writing on a trolley. That was, it is said by Mr Mansfield, a reason falling within the range of statutorily acceptable reasons, being a reason relating to conduct. The fact that the Employment Tribunal came to the conclusion that the sanction of dismissal for the conduct of writing on the trolley was unreasonable does not mean that the dismissal was on grounds of race. In our judgment those contentions of Mr Mansfield are correct. Whilst unreasonable conduct, in this case unfair dismissal, can form part of the background leading to a conclusion that the dismissal is an act of race discrimination, the fact that the dismissal is unfair does not of itself lead to such a conclusion. In this case the foundation of an allegation of race discrimination, namely a difference in treatment and the difference in race, had not been laid. Accordingly we find against the Appellant on the principal grounds of appeal against the dismissal of his claim of race discrimination. Ground 2

[21]We will deal fairly shortly with the remaining grounds of appeal against the claim of race discrimination. By Ground 2 of the Notice of Appeal Mr Horan contends that the conclusion of the Employment Tribunal in paragraph 51 that the employers treat negligence, even gross negligence, more leniently than deliberate conduct on the part of an employee was pure speculation. In our judgment it is not apparent from the material in the Tribunal decision that the acceptance of the submission made to it in this regard by Ms Eady QC then appearing for the company was unwarranted. The Employment Tribunal was entitled to come to the conclusion that it accepted that this employer took a more lenient view of grossly negligent conduct than of deliberate misconduct. Whilst somewhat surprising, the reasonableness of such an attitude on the part of an employer was not in issue in the way in which it was relied upon by this Employment Tribunal. Whilst we consider that the difference in approach taken by this employer to sexual misconduct as compared with the conduct of writing on a trolley may by some be regarded as surprising, nonetheless the Tribunal at this stage was not assessing the reasonableness of that difference in approach but simply making an observation that this employer in fact did treat two categories of conduct differently. In our judgment they were entitled to make this observation on the material that appears to have been before them. We make a similar observation in relation to the third sentence in paragraph 53 of the Tribunal's judgment that:

'… we cannot be satisfied on the basis suggested by the Claimant that impermissibly differential treatment might be inferred.'

Ground 5

[22]Ground 5 of the Notice of Appeal relates to the issue of whether the Tribunal erred in its decision that there was not advanced before it a satisfactory comparator, whether actual or hypothetical. The RRA Section 3(4) provides:

'3 Meaning of "racial grounds", "racial group" etc … (4)A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) [or (1A)] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.'

It seems that the Employment Tribunal recited the case which Mr Dhillon was advancing and it is his formulation which appears to be the subject of criticism in ground 5 of the Notice of Appeal. In paragraph 60 the Tribunal say:

"The thrust of the Claimant's case was that the Respondent had reacted with far less severity to conduct of a much more serious nature. Although not put by him in terms his hypothetical comparator was a white employee who had committed an act of more serious misconduct but was either not disciplined at all or was subjected to a sanction short of dismissal. However he did not point to any examples in which an individual not dismissed was subject already to a final written warning at the time of the alleged misconduct."

The Tribunal clearly had in mind the lack of any comparator who was on a final written warning. However it does appear that they did not confine their inquiry to those who had a final written warning, but took into account in seeking a comparator the totality of the offending behaviour, if we can put it in that way, of Mr Dhillon as compared with putative comparators. For reasons which they set out in their judgment they concluded that no actual or hypothetical comparator had been identified. On this basis they concluded that since a comparator had not been identified and no less favourable treatment had been shown, the claim was dismissed. Whilst, with respect, this judgment is not as clearly expressed as it might have been, in our view the Appellant has not established that the Tribunal erred in law in the respects advanced before us. Accordingly the appeal against the dismissal of his claim of race discrimination and victimisation fails and is dismissed. The Cross Appeal

[23]The Respondents appeal the finding of unfair dismissal. It is contended that the Employment Tribunal erred in substituting its view of the reasonableness, first of the final warning issued to Mr Dhillon and second of the reasonableness of the assessment of the conduct which led to Mr Dhillon's dismissal. On behalf of the company Mr Mansfield frankly acknowledges that the Employment Tribunal correctly directed itself in paragraph 36 that it should not seek to substitute its view of the seriousness of Mr Dhillon's conduct for that held by the Respondent. However Mr Mansfield contends that the Employment Tribunal merely paid lip service to those words and in fact did substitute its views for those of the employer. For reasons which will become apparent we did not invite Mr Horan to develop orally the grounds of resistance to the cross appeal which he set out in his skeleton argument.

[24]The Employment Tribunal reached the following conclusions in relation to the claim that the dismissal for writing on the trolley was unfair. At paragraph 6 it held:

"In our judgment the final written warning in this case was given both without prima facie grounds and in manifestly inappropriate circumstances. We are slow to reach this conclusion mindful that we should not seek to substitute our view of the seriousness of the Claimant's conduct for that held by the Respondent. 37. We are not satisfied that the Respondent could reasonably conclude that the Claimant's behaviour constituted a contravention of its information system security policy."

[25]At paragraph 39 it held:

"Even if we are wrong in this we would still reach the same conclusion for the following reasons. First we find that the Claimant acted without any malicious motive, albeit submitting the blog in the form he did was unwise. Second, far from attempting to deny or conceal his misconduct he disclosed it voluntarily. Third, as soon as criticism of it was made by management he volunteered to remove it, so that it was live for not more than some 32 hours."

The Tribunal then in numbered headings set out the other reasons why it held that the Respondents' reaction to the conduct which gave rise to the final written warning was without basis and inappropriate. The Tribunal continued in paragraph 43:

"On this basis, we find that the dismissal was unfair. The Respondent's evidence was that dismissal would not have been an appropriate sanction in the absence of the final written warning and we agree. In light of our finding regarding the final written warning, in our judgment the case cannot be distinguished from the case of Lucas and Ms Eady did not seek to draw any such distinction. 44. If we are wrong in this conclusion we consider the position on the basis that the Respondent was entitled to have due regard to the final written warning. Having regard to the industrial experience of the members in our judgment dismissal was in any event unfair. 45. It is our judgment that the Claimant's act in writing on the trolley did not constitute misconduct at all, that is that no reasonable employer could characterise it as damage to property. 46. However if we are wrong in this, that is if the Claimant's conduct could be reasonably construed as damage and accordingly as misconduct we consider that any damage was de minimis and that no reasonable employer could have treated the misconduct as a sufficient reason for dismissal, whatever the previous disciplinary history."

[26]Accordingly the Tribunal found the dismissal to be unfair. In our judgment no error of law or error in reasoning has been established in the conclusion reached by this Employment Tribunal. In determining whether a dismissal was within the band of reasonable responses of a reasonable employer Employment Tribunals naturally have to test the employer's decision against some external standard. This was not a case in which in our judgment it can be said that this Employment Tribunal substituted its view of the seriousness of the conduct for which Mr Dhillon was dismissed for that of the employer nor can it be said that it substituted its view as to the seriousness of the conduct which gave rise to the final warning for that of the employer. In any event it also considered the situation in the alternative on the basis that the employer was justified in giving the final written warning. Having regard to the nature of the misconduct for which Mr Dhillon was dismissed the Employment Tribunal concluded that even if the final written warning had been justified, the dismissal of Mr Dhillon for the act of writing on the trolley was unfair. In our judgment the appeal against that finding fails and that cross appeal is dismissed.