Appeal No. EAT/477/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th February 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MS B DEAN

	MR J C RAMSAY

MS A KAUR	APPELLANT

BROSE LIMITED	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R DE MELLO
(Of Counsel)
Ms F Monk
Solicitor
Coventry Legal & Income Rights Service
The Bridge
Broadgate
Coventry CV1 1NG

For the Respondents	MR E DISMORR
(Of Counsel)
Messrs Seymour Smith
Box & Sharpe
Solicitors
Queens House
Queens Road
Coventry CV1 3JN

	MR JUSTICE WOOD (PRESIDENT):  By an Originating Application dated 17th August 1989 the Applicant, Ms Kaur alleged racial discrimination against her employers Brose Limited.  She had been employed for a trial period of about one month as a Press Operator.  Her employment began on the 3rd July 1989 and it came to an end, as she sets out in her Originating Application, on the 19th July 1989, which means she was employed there for some 16 days.  She alleged in her Originating Application that no complaints had been made about her work and that she carried a knife, which was a religious knife and not a dangerous object in any sense but because she was a baptised Sikh she was bound to carry it.  She was spoken to by Mr Hanson on the shop floor on the 19th July and alleges that she was told that she was not allowed to wear a knife and to take it off.  Subsequently, she was called up to the office and was dismissed on the basis that her work was not up to standard.  She alleged discrimination, in particular indirect discrimination, namely that there was a requirement or condition of the employers that their employees should not wear knives.  She suffered detriment as a result.

	The case was heard at Birmingham before an Industrial Tribunal chaired by Mr Pugsley, an experienced Chairman, on the 12th June 1990.  Both sides were represented by Counsel;  those Counsel appear before us today.

	The Notes of Evidence are before us as is the documentation that was before the Tribunal.

	The decision of the Tribunal was unanimous that there was no direct discrimination but by a majority that there was no indirect discrimination.

	The Applicant is some 40 years of age.  She comes from India.  When she was 30 she was baptised as a Sikh.  The Tribunal was told by her that there was a requirement that Sikhs should observe certain ritual rules and the ritual rule which is relevant for this case was that a Sikh had to wear a knife.  Whether the Tribunal saw the knife or not, they made it clear that it was an ornamental knife and not in any sense an offensive weapon.  The Applicant was spoken to on that 19th, as the Tribunal find, by Mr Hanson a member of management; it is relevant to note that the Company was in the stage of a take-over and that everyone was extremely hectic at that time.  Her evidence was that she had been told to take the knife off and had refused to do so;  subsequently she was told she was dismissed in any event because of the standard of her work, and so she was linking the incident of the knife with her dismissal and therefore she was alleging racial discrimination.

	The Tribunal directed themselves in accordance with the law as it stood at that time which, incidentally, was before the decision in the House of Lords in James v. Eastleigh Borough Council [1990] ICR 554.  Having directed themselves on the law and referring to the Statute the Tribunal made the following findings of fact.  They seemed to accept the Respondent's evidence, in particular they were impressed by the evidence of the Trade Union official Mr Wilkshire who was the shop steward and who gave evidence for the Respondents.  The Applicant started on her four week trial period and at the end of the week on Friday 21st July the Works were to close down for the two week holiday break, that is the annual break. It was decided by Mr Hanson that the Applicant was to be dismissed at the end of that period, he proposed to do so on the 21st July and had decided so to do before the 19th.  On the 19th he was on the shop floor dealing with some matter when one of the setters asked him whether he knew the Applicant had a knife.  He had in fact heard this on an earlier occasion but had done nothing about it.  On this occasion, as we read his evidence and the evidence of the Respondents, he probably thought in order to smooth industrial relationships that he ought to speak to the Applicant.  He therefore went over to her and asked her if she had a knife;  she admitted that she had.  He pointed out that that was causing a problem - we imagine that that was referring to the comment from the other setter - but she said it was a part of her religion and according to Mr Hanson he left the matter there.  The effect of the knife on the decision to dismiss, was according to Mr Hanson nil.  He told the Tribunal, and they refer to it in paragraph 13 that it had no significance because he had already taken the decision to dismiss.  However, he told them that the incident of the knife, the fact that he was speaking to the Applicant, jogged his memory that he must deal with her dismissal.   Being extremely busy on that day he therefore decided that that was the time to deal with that matter rather than waiting until the end of the week.  Therefore at a later stage in the day he called the Applicant to his office.  Mr Wilkshire was there.  Over some ten or fifteen minutes Mr Hanson discussed her work and told her that she was dismissed as her work was unsatisfactory.  She was paid until the end of that week. 

	That is the broad outline of the facts, coupled with a further important facet, namely, the make-up of the workforce at the Respondents' Works.  They had 281 employees;  thirteen were Afro-Caribbean; sixty-six were Sikh origin;  fifty were Asians and 152 Europeans.  If one looked at the press operators alone then there were forty-eight;  two Afro-Caribbean;  twenty Sikhs;  twelve Asians and fourteen Europeans.  The Tribunal were also given some further information about the dismissals that had taken place since the preceding December 1989.  There had been twelve dismissals and of those twelve, eight were European;  two were Asian and two were Sikhs.  It is not suggested that this Company did not have a perfectly satisfactory record so far as race relationships were concerned.  There is no doubt that there was ample evidence upon which the Tribunal could be satisfied that the Company had good reason to dismiss the Applicant at the end of her trial period on the basis that she was unsatisfactory.  There were questions of not working fast enough;  there were questions of possibly going to sleep and Mr Wilkshire, whose evidence was clearly accepted, took the view that her attitude was not such that she was going to make a good worker.  It was therefore clear that the senior shop steward and a supervisor took the view that the Applicant's work was unsatisfactory.  Mr Wilkshire's evidence is also important in another connection, namely that he was present in the office where Mr Hanson in fact dismissed the Applicant, and he states quite clearly that the conversation did not involve anything being said about the knife and that he, Mr Wilkshire, was not aware of anything about the knife at that time.  He only heard about it later.

	On that evidence the Tribunal had to decide themselves, on the basis of direct discrimination, whether in the words of Section 1(1)(a) of the Race Relations Act 1976, the Company, in the person of Mr Hanson, had treated the Applicant less favourably than he would have treated other persons on the grounds of her race.  As we have already indicated, the case of James had not yet been decided in the House of Lords, and we also note that the House of Lords in that case reversed the decision of the Court of Appeal.  The way in which the Tribunal unanimously dealt with this is in paragraph 15 where they say:
"The members of the tribunal are united that this is not a case in which the respondents were guilty of direct discrimination.  They all accept that the respondents have a good record on issues of race and do not consider there is any evidence - or any evidence from which an inference could be drawn that the respondents treated the applicant less favourably on racial grounds.  We are satisfied that the investigation of the allegation the applicant had a knife did not turn on her ethnic origin."

It seems to us that if the Tribunal had directed themselves on the basis of James and asked themselves, would the Applicant have been dismissed but for being a baptised Sikh, the answer from their findings of fact, and to be read in paragraph 15, is abundantly clear, that she would.  Therefore, when one is looking to see whether there is a possible misdirection it is right here, in our judgment, to apply the principles of Dobie v. Burns International Security Services (UK) Limited [1984] ICR 812 at page 818 where the learned Master of the Rolls, Sir John Donaldson has this to say in general terms:
"Once you detect that there has been a misdirection, and particularly that there has been an express misdirection of law, the next question to be asked is not whether the conclusion of the tribunal is plainly wrong, but whether it is plainly and unarguably right notwithstanding that misdirection."

Pausing there for a moment, it is not absolutely clear that there was here a misdirection but lest it be thought that this Industrial Tribunal had acted on the Court of Appeal reasoning, we have looked at it in the light that there may have been a misdirection.  We return to the words of Sir John Donaldson:
"It is only if it is plainly and unarguably right notwithstanding the misdirection that the decision can stand.  If the conclusion was wrong or might have been wrong, then it is for an appellate tribunal to remit the case to the only tribunal which is charged with making findings of fact."

The findings of fact, in our judgment, are clear and sufficiently clear.  The Tribunal took the view that the question of race had no relevance to the decision to dismiss, there was a substantial body of evidence on which they could reach the conclusion that it was the unsatisfactory work record which was the basis for the dismissal and we are quite satisfied that even on the test of James this decision was unquestionably and unarguably right.

	That, however, leaves the question of indirect discrimination.  Indirect discrimination is defined in Section 1(1)(b) of the 1976 Act and before one can look to see the relevant pools of persons to be compared;  whether there is any detriment of the Applicant;  whether the selection of pools and the requirement or condition is justifiable, one must start with the question, was there a requirement or condition which was applied to the relevant persons?  That matter had been raised, as we have already mentioned in the Originating Application.  The majority, the Chairman and one other, give their reasons for rejecting the allegation of indirect discrimination in paragraph 16 of the decision that reads:
"However the tribunal are divided as to the issue of indirect discrimination.  The majority of the tribunal accept the evidence of Mr Hanson that the question of the knife had no part in the decision to dismiss.  On this basis the applicant's counsel has realistically conceded that there would be no question upon which the applicant could be said to have been discriminated against."

That, as a paragraph, is a little difficult to understand and Mr De Mello, quite rightly, takes the point that it offends against the principles which were enunciated by Lord Justice Bingham, as he then was, in the case of Meek v. Birmingham District Council [1987] IRLR 250, and in the well known passage from his judgment at paragraph 8 he says this:
"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.  The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises;  and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

Mr De Mello submits here that looking at paragraph 16 the Tribunal has not analysed the alleged condition or requirement nor have they made any specific findings about that matter.  If they had done, and he submits that there was material upon which the condition could be found to exist, then thereafter it would have been necessary to define the pool from which the Applicant comes, whether it is Sikh pool, or a baptised Sikh pool, or however else it is to be defined.  One then finds the comparator pool, one then needs to make the comparison and to see whether there is any detriment and whether it is justifiable.  All those matters would require a great deal of further investigation once the decision had been reached whether or not there was a condition or requirement.  This Industrial Tribunal did not go beyond that initial finding.  It may very well be that the Applicant would have failed further down the line, the detriment of course is only, as we understand it, to be put simply for that period between the discussion on the shop floor and the meeting in the office, because it was between that period that she knew she should not be wearing a knife.  That, however assessed, is a very short period, whether or not that is in reality a detriment would be a matter for a tribunal.  However, for us today the issue is really whether on the principle of Meek it is possible to decipher and decide what was in the minds of this Tribunal on the issue of condition or requirement.  Having reached that stage in our reasoning we remind ourselves that it is important not to look upon these judgments as one would look upon the judgment of a High Court Judge or indeed, a pleading in a High Court matter where nicety sometimes rules.  One must look at the overall view of the Tribunal as we are able to discern it.

	We have, as yet, not looked at the views of the dissenting Member on the issue of indirect discrimination.  His views are to be found in paragraphs 17 and 18.  I read from those paragraphs:
"17	The dissenting member accepts that the applicant's performance had given grounds for concern and accepts that she may well have been dismissed on that ground in any event in due course.  He, like the other members of the tribunal was impressed by the evidence of Mr Wilkshire, the trade union official.  However he does not consider that the `knife incident' had no relevance.  He is not satisfied that the decision to dismiss had already been made.  He considers the applicant's wearing of a knife was a significant factor in the decision to dismiss.  He considers that Mr Hanson imposed a condition that any employee should not wear a knife which the applicant's religious belief made it impossible to comply with in circumstances which constituted indirect discrimination.  The respondent's counsel has not argued that such a condition would be justifiable.

18	The extent of the division should not be exaggerated.  The dissenting member's view is that the applicant was asked to take the knife off;  that she refused and that rather than face the difficulties which such a refusal might engender on the shop floor without making any real investigation as to the circumstances in which the knife was worn or the type of knife carried, Mr Hanson made the precipitate decision to dismiss which he had not yet taken at that stage."

Some of those findings there would seem to conflict with the unanimous finding on direct discrimination but we prefer to accept the unanimous finding as it was expressed and it may be that some of these comments were only considered relevant to indirect discrimination rather than direct discrimination.  However, our present purpose is to see whether or not the question of a condition or requirement was in the minds of the Tribunal, and in particular the majority, and whether or not it made, by implication, a finding that no such condition was imposed.  

	The important part of that passage from the dissenting Member's views, which we imagine was drafted by the learned Chairman, are those lines at the end of paragraph 17 which reads, and I read it again:
"He considers that Mr Hanson imposed a condition that any employee should not wear a knife which the applicant's religious beliefs made it impossible to comply with in circumstances which constituted indirect discrimination.  The respondent's counsel has not argued that such a condition would be justifiable."

	One starts with the Originating Application in which the condition was raised.  The dissenting Member clearly finds a condition, it is indicated in the last line that during submissions the issue of a condition had been raised but that Counsel had not sought to argue that it was justifiable if it existed.  So that it must have been in issue in submissions and before the minds of the Tribunal that a requirement or a condition was being alleged and there was an issue as to whether it existed or not.  Thus looking at the decision as a whole we are satisfied that although the reasoning in paragraph 16 is in "shorthand", nevertheless, the majority accepted the evidence of Mr Hanson that the question the knife had no part in the decision to dismiss and by implication that there was no requirement or condition that knives should not be carried.  Indeed, Mr Hanson had said that it did not give him cause for concern that Sikhs wore knives and he did not know if they were carrying knives.  He also said he did not say that the knife was not to be worn or allowed.  So that if they believed him it was open to the Tribunal to reach that finding on the facts before them.

	We have reached our decision, with some hesitation, after examining the facts and the circumstances and listening to the most helpful submissions from Mr De Mello, but in any event here the detriment to the Applicant, if it is any comfort to her, must have been very slight in the circumstances, and in our judgment therefore the appropriate decision here is to dismiss the appeal on both counts.