Appeal No. EAT/109/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 13th May 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MR P SMITH

	MRS M SUNDERLAND JP

MR M WITTER	APPELLANT

SECURICOR LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR GOOLAM MEERAN
(Of Counsel)
Hillingdon Legal Resource Centre
12 Harold Avenue
Hayes
Middlesex
UB3 4QW

For the Respondents	MR PETER GROBEL
(Of Counsel)
Mr Harry Pool
Solicitor
Securicor Management Services Ltd
Sutton Park House
15 Carshalton Road
Sutton
SM1 4LD

	MR JUSTICE WOOD (PRESIDENT):  Mr Witter, the Appellant, is of Afro-Caribbean origin but was born in this Country.  He was employed by Securicor Limited from the 29th February 1988 until the termination of that employment on the 9th August 1989.  

	He issued an Originating Application dated the 19th September 1989 alleging that he had been the subject of racial discrimination and initially he had joined Securicor Limited and his trade union, the GMB.

	At the hearing the complaint against GMB was withdrawn and, as a consequence, it was dismissed.  We are therefore concerned solely with the claim against Securicor Limited.  

	The hearing took place over some four days during October and December 1990 before an Industrial Tribunal in London (North).  The result was that his complaint of racial discrimination failed but there was a second complaint, made under Section 53 of the Employment Protection (Consolidation) Act 1978 alleging that on request, on termination of his contract of employment by his employer, he had not received accurate particulars of the reasons for that termination.  He was awarded £296.

	Mr Witter appeals against the decision and there is a cross-appeal by Securicor Limited against the award of £296.

	The law in this case is not in doubt.  The facts are somewhat particular because it must be remembered that the whole background to this case is of a well known company carrying on business in the realms of security.  Very substantial sums of money are handled regularly.  There is the greatest temptation for dishonesty in those circumstances, and we mean by that, robbery and armed robbery.  It is well known as the background to this whole picture that there are, unfortunately, a substantial number of well publicised incidents of armed robbery.  It follows from that that the internal security is a vital part of that business and as is evidenced from the facts behind this case, even within the Company, there are of necessity, as part of its internal security screening, under cover operators.

	We do not propose in this judgment to refer to the details of what occurred, save as is necessary to understand the reasoning behind this judgment.

	A second specific aspect of this case is that there is, if we may say so, an extremely sensible arrangement between the trade union and Securicor Limited, which is reduced into writing at some length, and which was before the Industrial Tribunal, whereby somewhat special arrangements are made about disciplinary proceedings;  in particular, as we have had it read to us, where there is a security risk.  For that situation, where termination of an employment may be necessary, preferential terms, which are called "redundancies", are given in circumstances where the employee is asked to leave and decides to do so.  Those procedures as we have said, were before the Industrial Tribunal.  They are not before us in detail, but we have been told of the broad scheme so far as a security risk such as the one which was alleged to be in existence in the present case is concerned.  What happens is that if an employee is thought to be a security risk, then the matter will be considered by the Company, and it may be that the decision is reached that what is called "the terminating process" should take place.  The result of that is that a meeting is arranged between management and the employee, the representatives of the trade union are present, and certain processes are put in place.

	We have seen two forms PM 76 and a later form for a PM 75 which are indicative of the way in which the matter should be handled.  Those forms are also used for ordinary conduct cases without the security element in them, and therefore, perhaps in some ways, their drafting is rather broader than might be anticipated for a security case.  However, what happens is this that an employee is told that he or she is a security risk.  It may be that the employee will accept it, perhaps with indication of what was involved, but perhaps not, and the advantageous terms of termination will then come into play.  However, it may be that the employee does not accept the allegation of being a security risk, in which case the second stage takes place, which is called an appeal stage.  That word "appeal" would be relevant if a decision to dismiss had been made in an ordinary conduct case, but is scarcely relevant when considering the further hearing where a security risk is alleged.  At that second stage a very senior member of management will be presiding over the hearing;  a senior member of the trade union will be with him and it seems, although it is unclear - and for that reason no reliance is put upon that second stage in the present appeal - but it seems that the senior trade union official will be shown the whole of the Company's case, possibly before the hearing itself starts and thereafter he may, as in this case, in effect reach the conclusion that dismissal seems to be inevitable and may advise the employee to take certain steps or to reconsider the matter.  On other occasions the hearing may continue, in which case the result will be in accordance with the decision of the senior member of management alone.  But again, this procedure allows the sensible approach from both sides of industry to a particular situation and it seems to us to be an eminently sensible arrangement.  That is the broad outline of the procedure, which is a highly complicated one in many other ways.

	The history of the present matter starts at about Christmas 1988.  A conversation took place at the West Drayton depot between three members of the staff and Mr Witter;  one of those members of the staff was an under cover security agent.  As a result, of what was said it was thought that the comments made by Mr Witter were rather unusual in the particular employment in which he found himself.  As a result, one of those three told a security executive, who was a Mr Huse.  He saw those members of the staff;  he took statements from them and he, during those statements, asked whether Mr Witter was coloured. He was told that he was.  Mr Huse was sufficiently anxious about the contents of those statements that he prepared a long report, which he sent to the Area Security Manager on the 22nd March 1989.  That report is before us, as it was before the Tribunal.  In its first paragraph, which is the only one I think we need read, although the whole flavour of the report is only obtained if you read the whole of it, it reads thus:
"On Wednesday 14 December 1988 an armed robbery took place at the GPO Old Oak Common Lane London W3 when the counter staff were held up by a number of coloured gunmen.  Officers from Barnes Robbery Squad arrived on the scene and the bandits opened fire on them.  During the course of the shoot-out which followed, two squad officers and three bandits were injured."

Mr Witter, in connection with that, had indicated that he knew something about those connected with those involved and it is quite clear from the content of that report that there was a security risk.

	That report was sent, as we have already said, to Mr Richards, the Area Security Manager, and he sent a memorandum to the Director of Security, the head of security, Mr Wild.  A memorandum was also sent to the Personnel Director.  The matter was considered and after discussion Mr Cowden, the Personnel Director, decided that the Company would initiate termination of employment through the process to which we have already referred in outline.

	It followed from that, that the first hearing, and it is in connection with this hearing that the complaint is really made both before the Tribunal and on appeal before us, took place on 30th June 1989 before the District Manager, Mr Simmons.  The Applicant was there;  Mr Clarke from the Trade Union was there and Mr Woolgar, who is the Branch Manager for West Drayton.  The Applicant was not given details of the report he was merely told about the security risk.  He denied it and as a result, of course, stage two needed to be brought into operation.  That meant that during the interval he was suspended on full pay.  

	On the 31st July 1989 the appeal, or the second stage meeting, took place.  It was described by the Tribunal in two paragraphs, and indeed what happened thereafter, paragraphs 9 and 10 of the decision reads:
"On 31 July 1989 an appeal meeting was due to be held.  There was a preliminary meeting between Mr Wild and Mr Martin, who was standing in for the National Officer of GMB.  This was in accordance with the Company/Union agreement for security cases as distinct from industrial cases.  Mr Martin read the file and concluded in his own mind that the Applicant's appeal was unlikely to succeed.  He asked Mr Wild about the possibility of a transfer for the Applicant to other work.  Mr Wild found out that there was a vacancy at Hayes on parcels work, as distinct from CIT.  This was put to the Applicant on the basis that the alternatives were Hayes or "redundancy".  The Applicant said he wanted time to decide and he agreed to go to Hayes for an interview.  The appeal did not take place.

The Applicant went to Hayes for an interview and decided not to work there.  He told this to Mr Booker, a trade union representative, who told Mr Jones.  Mr Jones consulted Mr Wild, who agreed that this decision of the Applicant need not be treated as a resignation but could be treated as activation of the `redundancy' alternative.  (This was not redundancy in the strict sense.)  It is agreed in the pleadings that the effective date of termination was 9 August 1989."

That, in broad terms, is the background and the history to this matter.

	Mr Meeran, on the appeal, takes what are, in essence, two basic points.  First, he submits, that the content of the report coupled with the question by Mr Huse, the originator of the report, as to whether Mr Witter was coloured, made that report racist;  it was a racial report, tainted in that way.  He argues that the report, in fact, is out of time for the purposes of the Originating Application with which we are concerned, but submits that it is brought into time at the meeting of 30th June 1989 because the report formed the background to that meeting, and it was used in a detrimental manner in that its contents were not disclosed to the Applicant, Mr Witter.  He submits that the primary facts so stated call for some explanation because they point to a clear inference of racial discrimination and that in the present case there was no explanation of that matter.  Mr Simmons, who had been in charge that day, was not called and he was the only person to be able to give an explanation.  Moreover, he adds that it was said during the hearing at the Tribunal, Mr Grobel thinks it was initially, that on reflection it was a mistake not to have allowed the Applicant, Mr Witter, to know the contents of that report on the 30th June.

	Perhaps before turning to the reasoning of the Tribunal we ought to add this.  That Mr Meeran does not rely on the events of the 31st July because, he submits, and having read the Notes of Evidence we entirely agree, that it is not clear exactly what happened on that occasion, and it would be wrong to argue that inferences of racial discrimination should be drawn from the facts on that occasion which are themselves not clear.

	The Tribunal deal with those issues in paragraph 13 of the decision, it is quite shortly reasoned, they say this:
"Mr Meeran's main point for the Applicant is centred on the phrase `coloured gunmen' used by Mr Huse in his report.  Mr Meeran submits that `coloured' was quite irrelevant in the context;  that the report as a whole indicated, without actually stating, that the Applicant was coloured;  that it was an example of racial stereotyping;  and that it tainted all that followed, including the events of 30 June and 31 July."

That is Mr Meeran's first point.  Then the Tribunal continue:
"We ask ourselves, did anyone in Securicor treat the Applicant less favourably because he was black than they treated or would have treated a white person?"

Mr Meeran does not criticise the way that is put.  The Tribunal continue:
"We answer `No'.  We find that if the Applicant had been white Mr Evans would have communicated with Mr Huse;  Mr Huse would have reported to Mr Richards;  and the process would have gone on from there as in fact it did."

Pausing there, that is Mr Meeran's first point.  Looking at the documentation and having looked at the Notes of Evidence it seems to us that the description of the gunmen, the robbers in the report, was simply a repetition of the description which was issued from the Police and that it is part of the description that the robbers were coloured.  It is not in any way racial, it is simply a basic description of the criminals who were involved on that occasion.  In so far as the question was put "was Mr Witter coloured?" it seems to us again that that was a perfectly reasonable question to put and does not indicate any impropriety of approach by someone in security, looking at the security risk in a situation, more especially, when the whole of the rest of that report is taken into account.  This was a question of fact, the Tribunal were not prepared to draw an inference from the report and the surrounding circumstances, they were not, in our judgment, so pointed that the only possible inference was that of a racial approach.  It was essentially fact for them and we can find no error whatsoever in that approach.  So that one has here a neutral report in racial terms which was before the meeting of the 30th June.

	To return to paragraph 13 of the decision the Tribunal continue thus:
"It is true that the Respondent conceded before us that Mr Simmons was probably wrong not to give to the Applicant details as to how the view of him as a security risk had been arrived at, but we cannot see anything racial in that.  We say again that in our view if the Applicant had been white Mr Huse would still have acted as he did in reporting the matter upwards.  We think it would be inappropriate to draw an inference of racial discrimination.  We are not in a state of doubt.  The Respondent succeeds."

The same question really is relevant to the second half of that paragraph and the decision.  The neutral report was not shown, it is conceded that on reflection, it would have been wiser to do so.  However, what would have happened, for instance, in a conduct case?  Maybe that the contents would have been shown but here there was a special procedure.  In a conduct case, a decision would probably have been reached at stage one.  If there had been any failure in the procedure, it would have been cured on an appeal hearing, if it was de novo.  So that one has to bear in mind, that this was a security, and a special situation, and not an ordinary conduct case. 

	If, indeed, there was detriment here, then the question is, what would be, or who would be, the comparators?  There were comparators in the present case.  The information was given during the discovery process that there had been, over a period of time, four dismissals on security issues, where there had been a security risk and where the employees had been employed for more than six months.  Those four were all white, and they were all male.  It is said by Mr Meeran, in those cases there was evidence that they were informed of the particulars of the security risk.  However, it may be that that submission is made on the face of the Notes of Evidence, and in particular the evidence of Mr Martin, who gave evidence for Securicor, and who stated:
"I was the representative in A and B's case [that is two of the four comparators].  They were given full info of allegations."

Mr Grobel has looked at his own notes, because this was in cross-examination, and that note of the learned Chairman is not quite complete.  Mr Grobel has told us, when the appeal started they were given full disclosure of the information of the allegations.  That would indicate that it was at stage two that that information was given as indeed one would expect from the procedure to which we have already referred.  It follows therefore that it is not a strict comparison, so far as one can tell, for those two with the situation in the present case.  Thus, even if, there was a failure to show a neutral report at stage one, and if, there was a detriment to the Applicant despite the existence of the special procedure, the Tribunal still had to decide whether it was on the grounds of race.  It is submitted that the facts point so strongly towards an inference of racial discrimination that the absence of explanation renders the decision erroneous in law.

	It seems to us, looking at the whole matter, that the Industrial Tribunal were not bound to reach that inference on the facts as we have understood them, the absence of the true comparison and the whole background to this situation.  But, in any event even if they were minded to draw an inference, there was the explanation of the special procedure and in fact no direct comparison.

	On the law, it is right to say that the Tribunal referred to Section 1 of the Race Relations Act 1976, but not to any section in Part II, however, it seems to be agreed that it is Section 4(2)(c) "any other detriment" which is the relevant sub-section of that Part.

	There is no other error of law.  The case of British Gas v. Sharma [1991] ICR 19 was referred to by the Tribunal, and we can find that although the decision is stated shortly, nevertheless, it was essentially one of fact.  The Tribunal saw and heard the witnesses.  The impression one gets from the reading of the whole of the judgment is that this was a difficult situation in a rather special background of security and the risks involved, the risks to other employees, as was pointed out, it is all part of team-work, and that the trade union and the employers here had, sensibly, come to agreement about the most advantageous way in which the problems of both sides of industry, in these particular circumstances, could best be handled.

	We find no grounds of error in the decision on racial discrimination and the appeal is dismissed.

	That leaves the cross-appeal.  The cross-appeal by Securicor submits that the Tribunal erred in its approach to the allegation of breach of Section 53 of the Employment Protection (Consolidation) Act 1978.  In its relevant parts that Section 53(1) reads:
"An employee shall be entitled -

. . .

(b)if his contract of employment is terminated by his employer without notice; . . .

to be provided by his employer, on request, within fourteen days of that request, with a written statement giving particulars of the reasons for his dismissal.

. . .

(4)A complaint may be presented to an industrial tribunal by an employee against his employer on the ground that the employer unreasonably refused to provide a written statement under subsection (1) or that the particulars of reasons given in purported compliance with that subsection are inadequate or untrue  . . ."

	The principles behind the decision of the Industrial Tribunal namely that the facts of the case, gave rise to a termination in the sense that although a resignation is mentioned it was really a termination under an option which left the employee with no escape, are set out in "Harvey" in Volume I, Part 2 at paragraphs 229 onwards.  It is largely, almost essentially, a 	question of fact and there are several sets of circumstances which can arise from which a Tribunal is entitled, as a finding of fact, to say:  In reality here this was a termination, it was not a true resignation without any stress or pressure.

	The facts we have already referred to, the Tribunal in paragraph 9 of the decision say this:
"Mr Wild found out that there was a vacancy at Hayes on parcels work, as distinct from CIT.  This was put to the Applicant on the basis that the alternatives were Hayes or `redundancy'.  The Applicant said he wanted time to decide and he agreed to go to Hayes for an interview. . . .

. . . he went to Hayes for an interview and decided not to work there."

On the basis of those facts the Tribunal refer to Section 53 and then continue in paragraph 14 of their decision as follows:
"The first point that arises is whether there was a dismissal.  We think that what happened here was equivalent to a dismissal.  It is rather like the cases of `resign or else'."

pausing there, we can find no error in that approach.  They continue:
"On the 15th August 1989 the Applicant's representative wrote to the Respondent asking for details as to the reason for the Applicant's dismissal within 14 days.  The Respondent's solicitor replied on 1 September . . . The solicitor did not take any point as to whether the Applicant had been dismissed or not."

They rely upon that as a concession and indeed, there again, they were entitled so to do.  They then continue:
"There was some inaccuracy in the reply, in that it stated that the Applicant had accepted transfer and that he had started work at Hayes Parcel Depot.  There was also, in our view, inadequacy in that no detail at all was added to the bald assertion that the Applicant was a security risk."

We appreciate here that Securicor feel that it is extremely difficult to give reasons for dismissal, termination, when you do not accept that a termination took place.  However, the circumstances were such here that the Tribunal were entitled to reach the conclusion which they did.  We can find no error of law and the cross-appeal also is dismissed.