Appeal No.	 EAT/212/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 July 1997

Before
HIS HONOUR JUDGE J HULL QC
MR P R A JACQUES CBE
MR J C SHRIGLEY

MR C HUGHES	APPELLANT

ARGOS DISTRIBUTORS LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS BELGRAVE
(of Counsel)
Employment Advice & Tribunal
Service

	

	JUDGE J HULL QC:     This is an appeal to us by Mr Christopher John Hughes, who was employed by the Respondents, Argos Distributors Ltd, at their premises at Meadowhall, Sheffield.  They, of course, are a well known retail firm.  

	The history of the matter shortly is as follows.  On 21 October Mr Hughes, who had previously been employed by the same firm, began what is, I think, his second period of employment with them.  They were very pleased with him, so far as one can see, to start with, but then there came an official warning in December 1993 with regard to his attitude.  He was apparently inclined to be somewhat surly and uncooperative.  

	Then in September 1994 there was a second official warning.  It was said that he had failed to carry out an order relating to health and safety.  That second official warning, in writing of course, had still some time to run when we come to the events which I am going to speak of.

	At the end of 1995 and the beginning of 1996 a complaint was made of racial language; a tasteless remark, indeed more than one tasteless remark, was alleged to have been made by him, of a racist sort.  That is particularly important to these Respondents.  The Tribunal accepted that.  They employ a number of young people and people of different genders and different racial backgrounds.  So they put particular stress on their Equal Opportunities and Non Discrimination policies.  One would say at once, the Tribunal, I think, said this, certainly we would say this, that such events and their seriousness must depend on all the circumstances of the case.  Sometimes a remark is made in jest and is not intended seriously at all and nobody takes any offence at it at all.  There may almost be a culture of jesting and joking between people in which all sorts of outrageous things are said, which are not intended to hurt and do not hurt.  Equally, of course, some remarks, which are perhaps intended to be in jest, are tasteless and do cause disgust or upset to people who hear them.  That is a question, of course, entirely on the facts in each case.  

	What happened was that the employers did take this complaint seriously.  They made enquiries.  There were, incidentally, a number of complaints, not of a racist sort, but of other sorts of ill manners, boorish behaviour, tasteless remarks, which had caused offence, against Mr Hughes.  All this was enquired into, apparently at great length and eventually there was a disciplinary hearing.  In the course of the enquiries Mr Hughes had written a long and circumstantial letter concerning various matters of complaint against him.  

	There was the disciplinary hearing and at that his behaviour was very unsatisfactory.  He was asked to give an account of these matters to the two executives who were holding the hearing.  He simply said that he relied on what he had written in his letter and declined to be any more communicative.  We are told that he felt that one of the managers, at any rate, might be biased against him, but in view of what I have said, the nature of the complaints, it was essential, one would have thought, for him to do himself justice by explaining exactly what had happened viva voce, by word of mouth, to the managers, explaining (if it was the position, as he certainly says) that this was only a joke, that it must be seen in the context of other employees who also, from time to time, made perhaps rather tasteless remarks which were not intended to cause any upset to anybody and that he had done no more, in other words, than joke about matters.  He denied making other racist remarks.  He could have told the employers about that, but he did not.

	So the employers, taking a very adverse view of this and bearing in mind the previous written warnings which had been given, and what they knew of his attitude, thought it right to dismiss him.  As the Tribunal said, in due course, not every employer would have taken that decision.  The Industrial Tribunal themselves felt that it was a harsh decision.  They nonetheless felt it was within the range of responses that a fair employer might take.  

	Then there was an appeal.  There is no complaint concerning the hearing of the appeal, which was heard by senior managers, but the appeal was, in due course, dismissed.  Mr Hughes complained of his dismissal to the Industrial Tribunal and in his application he complained of unfair dismissal and breach of contract and he claimed compensation.

	The IT3, the Notice of Appearance put in by the employers, said that the dismissal was for serious misconduct relating to racial harassment and the Industrial Tribunal devoted two days to the hearing.  They gave their decision on 23 December 1996.  They dismissed the complaint.  We would refer, not to the whole of the decision, but to the most important parts of it.

	The Chairman was Mr Williams.  He had two members with him and they sat on 14 and 15 November 1996.  They set out the facts and more facts than I have stated.  They set out the reasons for which the employers attached particular importance to their Non-Discrimination and Equal Opportunities policy.  They say that the employers had made it clear that they had no truck with race or sex discrimination or any form of harassment.  Clearly, employers are entitled to have such policies, indeed, are encouraged to have such policies.  The Tribunal set out troubles in the organisation and the history of those, shortly.  In other words, they were taking note of the fact that, as Mr Hughes had told them, he was not the only person who could be criticised in this organisation.  They certainly accepted that.  They set out the history of the official warnings which had been given to him and they set out what the complainant, a young man whose name is Ibrar Hussain, had had to say about the racial remarks made.  They go into the history of how the matter was brought to the attention of the employers and they deal with the decision to dismiss.  

	As we have been told again this morning by Ms Belgrave, to whom we are extremely grateful for inviting our attention to everything that can be said as a matter of law here, he had at the time of the disciplinary hearing recently been bereaved.  The Tribunal go into that.  They say, in paragraph 16, at page 60 of our bundle:

“The respondent claims that whilst the applicant argued that he had insufficient time to prepare he never once suggested that he required a further adjournment on account of the bereavement something which it might more readily have understood [it had already been adjourned once because of the bereavement].  The applicant claimed [this was one of the matters they considered] he objected to Mr Monaghan [the manager] handling the matter.”

	And they record that, while Mr Monaghan and Miss Lomas were there, the applicant declined to put across his own point of view (I have already mentioned that) and then that it was felt appropriate to dismiss the Applicant.  Was it a fair decision? - because the Industrial Tribunal, of course, had to enquire first of all whether the employer had acted fairly in enquiring into it and reaching a decision on the matter, fairly and reasonably.  Secondly, whether the decision to dismiss was within the range of reasonable responses of a fair-minded employer.  The Tribunal say, at paragraph 17:

“Mr Monaghan insisted that ultimately the decision to dismiss had been his and specifically, in response to questions from the Chairman, he told the tribunal that punishment for the offence for which the applicant was currently being disciplined was a first written warning.  It was not classed as gross misconduct.  However in the light of the fact that the applicant was already on a final written warning, he, Mr Monaghan, had felt that he had no choice but to dismiss him.  He told us that in the context of what had taken place and with the applicant being in a position of authority and influence he could not have someone remain who might endanger good relations amongst staff.”

	And then they say this, at paragraph 18, and this is underlined by Ms Belgrave:

“We were told that over the last twelve months the applicant had been the subject of four or more written complaints by staff members concerning his attitude and language towards them though none of these involved racial remarks or attitudes.  Miss Lomas accepted that the decision to dismiss would, in all probability, not have been made for the remarks made on 23 January alone [that is the racist remark] though dismissal she felt was justified because of the cumulative effect of the warnings.  In short the dismissal decision was taken because, overall, the applicant’s track record justified it.  Though this was the first incident of a racial nature it was symptomatic of a general decline in the applicant’s attitude and therefore a justifiable reason for his dismissal.”

	Now it is said by Ms Belgrave that these complaints by staff members were ones of which he had not been aware and which he had had inadequate opportunity to deal with, but it is clear to us that the evidence, which was given by the employers and accepted by the Industrial Tribunal, was that the grounds for dismissal were his general attitude, the two written warnings, of which one was still current and finally this incident which they took very seriously.

	The Tribunal then record that his behaviour at the enquiry had not helped him.  They believed the procedures were carried out fairly and with good intent and in accordance with the company’s normal procedure.  They said that the right of appeal was exercised and was dealt with fairly.  They record that, in their view, the decision was undoubtedly a harsh one, but in all the circumstances they could not say that the Respondents had made a decision which, in the circumstances, no reasonable employer could make and therefore they dismissed the complaint.

	Now the appeal is made to us against that decision.  It does appear to us to be in many ways a model decision.  The Tribunal quite rightly distanced themselves from it and said, “It is not our decision to dismiss.  We have to consider whether it was within the range of responses of a reasonable employer”.  They quite rightly say that the employer was entitled to have the policies which the employer did.  They concentrate particularly on the fairness and the good faith of the managers who took the disciplinary hearing.  Was there any unfairness in springing allegations on Mr Hughes, or because Mr Monaghan might have something against him?  Those were matters for which they had to be very vigilant.  They were quite satisfied that the disciplinary enquiry was held with good intention, in good faith and therefore, having reached the decisions which they did, on all those important matters, they had exhausted their enquiry.  There was nothing else for the Industrial Tribunal to do.  It was not up to them to say whether they agreed with the decision.  They allowed themselves to say and, of course, they are allowed to say anything they wish, that they found it undoubtedly harsh.  If we were to express our feelings they too would be that this was a severe decision, but nonetheless, we are confined, just as the Industrial Tribunal was, to those matters into which we can properly enquire.

	We, here, are concerned to see whether there is any error of law made by the Industrial Tribunal, any unfairness in the way the Industrial Tribunal carried out their task, any injustice, in the sense of an error of law, unreasonableness in the sense of a decision which cannot be supported, by the Industrial Tribunal.  

	We cannot find any such errors by this Industrial Tribunal.  On the contrary.  It seems that the Tribunal approached their task, which they found an unwelcome one, with impeccable fairness and considered the matter at great length and with great patience.

	In those circumstances the appeal cannot proceed because we cannot find any fairly arguable point of law and we have therefore, to save the costs of a fully contested hearing, to say that the appeal must be dismissed at this stage.