Appeal No.	 EAT/265/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 November 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
LORD GLADWIN OF CLEE CBE JP
MR A E R MANNERS

MR R DUGGAL	APPELLANT

CONNEX SOUTH EASTERN LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON	
For the Respondents	MR D MATOVU
(of Counsel)
Messrs Kennedys
Solicitors
Longbow House
14-20 Chiswell Street
London EC1Y 4TY	

	MR JUSTICE LINDSAY:     We have before us as a full hearing the appeal of Mr R.K. Duggal in his case in which the Respondent below and here is Connex South Eastern Ltd, a Railway Company.

	Mr Duggal has been employed in the Railways for many years and he issued an IT1 form of complaint, an Originating Application, on 20 December 1995.  It summarises his complaint in three ways:  firstly victimisation for making complaints.  That seems to have later fallen away completely and plays no subsequent part; secondly, unfair dismissal and then, thirdly (written in a different hand, perhaps at a later time) discrimination contrary to the 1976 Race Relations Act.  The box 12 that he then completed under the heading “Please give brief details about your complaint” said that:

“I was first unfairly dismissed on 21.2.95 due to ‘unsatisfactory attendance’ because of sickness, then I successfully appealed against it on the grounds that (a) it was racially discriminatory and (b) most of my recent sickness was caused by mistreatment at work.”

Then leaving out some other paragraphs it goes on:

“Instead of helping me to improve the situation at work, I was again dismissed for the similar reason as in my previous dismissal.
I shall also be submitting RR 65 [the Race Relations Questionnaire] in due course.”

	So, by referring in that latter paragraph to “the similar reason” being relevant to his second dismissal, as it had been in the first, he touches, therefore, upon racial discrimination in relation to his second dismissal.

	That IT1 was met with an IT3 in the usual way and that, on behalf of the Railway Company, said, among other things, at paragraph 4:

“The Respondents further deny that the Applicant has been discriminated against, should this be alleged by the Applicant.”

	And their principal case was that he had been dismissed from his employment by reason of his unsatisfactory level of absence from work due to sickness.  They indicated in their IT3 that his level of absence from work had been a matter of concern since 1992 and that he had been interviewed on several occasions in respect of it.

	So the employer was not entirely sure whether racial discrimination in relation to the dismissal was being raised or not, but they say in any event he had not been discriminated against in that sort of way.

	Then one needs to go into the procedural history a little because there had been an interlocutory hearing for directions on 17 May 1996 and the result of that was summarised, for the benefit of Mr Duggal and of Kennedys, the employer’s Solicitors, by the Industrial Tribunal’s letter of 29 May 1996 and on the second page of that letter it said:

“It appears that the acts of race discrimination/victimisation which fall within the period 22 September to 21 December 1995 are:
(1)  The dismissal on 2 October 1995.”

And then, secondly, a different series of acts are mentioned and it continues:

“The Tribunal ordered that the Applicant provide full particulars of each and every act of racial discrimination/victimisation which occurred during the period 22 September to 21 December 1995 (apart from the dismissal on 2 October 1995).”

	So it is clear from that that it was understood at the time that the dismissal of 22 October 1995 was complained of in racial discrimination terms   There was an order of 25 June 1996 or thereabouts, for further and better particulars to be given by Mr Duggal, the Applicant, and we have a long letter that purports to set out those particulars and at paragraph 8 of that, under the heading “Sickness absence” the following appears:

“One of my white colleagues John Collier had many time worst sickness than myself and he was not seen under this so-called Managing for Attendance procedures.  In fact this was one of the grounds of my appeal on my first dismissal in February 1995.  I understand he has since been given medical retirement.
Result:  DIRECT DISCRIMINATION.  
I am also giving details of some of my other white colleagues who have been dealt more favourably than myself in relation to their dismissal and other disciplinary matters.
1.  Roger Munn, who was dealt with under sickness and competence procedures was given an alternative employment at Cannon Street.
Result:  DIRECT DISCRIMINATION.”

	So there is Mr Duggal claiming, as a matter of complaint, that he had been directly discriminated against in comparison with white comparators Mr Collier and Mr Munn, in relation to treatment in response to sickness.

	The employer’s Solicitors understood that to be the case because, on 19 November 1996, they wrote to Mr Duggal stating that his situation was quite different to the situations of both those men, Mr Collier and Mr Munn, and they set out what they see to be reasons supporting that view.  They say that Mr Duggal was essentially fit but suffered from sporadic sickness absences which led to irregular attendance, whereas Mr Collier and Mr Munn were sick in comprehensively different ways.  That was what was to be the Respondent’s case.  

	Before the hearing the Respondent prepared witness statements and among the witness statements was that of Mark Gideon Smith (it might, in fact, have been the only one, I am not sure of that).  At paragraph 17 Mr Smith’s witness statement said this:

“I am asked to compare Mr Duggal’s case with that of two other employees named by Mr Duggal, namely Mr Collier and Mr Munn.  In my view, there is no comparison.  Mr Collier was on long term sick leave following his reaction to a robbery at his home.  I believe his problems were mostly psychological, but he never recovered from them and he was eventually ill health retired.  Mr Munn had a genuine medical problem with his leg which ultimately resulted in a long-term absence.  He was certified by the company medical officer as unfit for his own job but fit for alternative work and he was accommodated accordingly.
So far as I am aware, Mr Duggal had no particular underlying medical condition.  He had suffered variously from stress, a strained shoulder, a bad cold, asthma and various other ailments.”

	The hearing took place over 10 to 12 December 1996 and the decision was promulgated on 6 January 1997 and the decision of the Industrial Tribunal at London (North) under the chairmanship of Mr I.H. Walker was as follows:

“The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed nor was he discriminated [against] within the Race Relations Act.”

	The matter came before the Employment Appeal Tribunal, as all these matters now do by way of preliminary hearing, and an amended Notice of Appeal was directed and that emerged on 12 May 1997 and reduced Mr Duggal’s complaints to three.  The first is:

“The tribunal erred in their decision in that:
(i)   It failed to deal adequately or at all with the Appellant’s contention that his dismissal was an act of discrimination on the part of the Respondents.
(ii)  It failed to consider whether, in relation to the acts of discrimination which it accepted the Appellant did raise, it would have been just and equitable for it to have extended the Appellant’s time for making his complaint.
(iii) Both, in relation to the Appellant’s claim of unfair dismissal and race discrimination, it failed to consider the treatment afforded to two other (white) employees who had also been absent through sickness on many occasions and/or for extended periods.”

	As for the second of those three, the time-bar point was dealt with in paragraphs 8 and 9 of the Industrial Tribunal’s conclusions.  They indicated that there had been directions on 17 May 1996 and that it had been left to the Industrial Tribunal to decide to what extent events occurred prior to the three month limitation period, how far they were admissible, either as evidence of a relevant complaint or as background, and they said, in paragraph 9:

“This Tribunal has considered this issue and decided that the Applicant is barred from going back prior to the three months preceding the Originating Application as specific allegations but the Applicant has been allowed to refer to earlier matters as background information.”

	We do not find any support there for there having been an error of law in relation to that consideration, and so we cannot assist Mr Duggal on the second of his three grounds in his amended Notice of Appeal.

	But the other two grounds, the first and third, can to some extent be blown together in that both of them deal with the issue of dismissal by reason of an act of discrimination, the act of discrimination involving comparison with two other white employees, specifically Mr Munn and Mr Collier.  As to that, the Industrial Tribunal mentions that it has heard the evidence of Mr Smith and the Applicant, Mr Duggal, and it then says:

“Mr Smith has denied any racial discrimination against Mr Duggal and has also maintained that the Applicant’s work record was such as to justify the dismissal.”

	In fact, they do not specifically say whether Mr Smith’s denial is accepted, nor do they indicate what particular weight they attach to that evidence.  They simply state, baldly, that Mr Smith has denied racial discrimination against Mr Duggal.  They then point out (and it was undoubtedly the case) that the Tribunal assisted Mr Duggal during his presentation of the case.  That needs a little further mention.

	Mr Duggal, quite plainly, is very emotionally upset by the facts and the history that he relates and, indeed, before us, more than once, he has been reduced to tears.  He is obsessed (that might be the word) by the nature of his complaint and very emotionally involved in it.  It plainly does not assist a clear presentation of his case.  And the same, broadly speaking, was apparently the case before the Industrial Tribunal because, after evidence was completed and when speeches ordinarily would be made, it appeared (and for this we are grateful to Mr Matovu, who is appearing before us for the employer today but who also appeared for the employer in front of the Industrial Tribunal) that Mr Duggal, in effect, broke down in front of the Industrial Tribunal and the Industrial Tribunal, as one would expect, leaned over backwards in order to enable him to put his case as best it could be put.  What they did (and it seemed a sensible course and still seems a sensible course) was to allow him a time (and they put no limit on it) during which he could reduce to writing his final submissions.  There was then a break of some length during which Mr Duggal prepared his written submissions, which are some four and a third pages of longhand, and they were handed in as, in effect, the final speech.  

	Those final submissions make no reference to a comparison between his position and that of Mr Munn and Mr Collier.  There had been some evidence given on the subject.  Mr Smith had given evidence in the passage I have read from his witness statement and it is, it seems, common ground that whilst Mr Duggal was attempting to cross-examine Mr Smith, the Chairman himself broke into the questioning and asked some questions about Mr Collier’s alleged more favourable treatment and questions regarding the medical report of the Respondent’s doctor, so that it would seem that the Chairman recognised (and from the procedural history which I have set out, it seems to be inevitably proper that he should have recognised) that there was an issue before the Industrial Tribunal as to the relationship between racial discrimination and dismissal and that racial discrimination required a consideration of the relative positions of Mr Duggal, Mr Munn and Mr Collier.  If the Tribunal had thought there was no issue whatsoever of that nature then the Chairman would have had no reason to intervene and raise questions during that part of Mr Smith’s cross-examination.

	It also seems that the Industrial Tribunal, by the Chairman, asked Mr Duggal what precisely his complaint was as to racial discrimination and, in relation to that, it would seem that, orally at any rate, Mr Duggal identified only that he had not been given promotion on four separate occasions going back over quite a long period, going back, indeed, to 1986.  

	At paragraph 13 of their Extended Reasons the Industrial Tribunal say this (with our emphasis):-

“In reply to specific questions on racial discrimination, the Applicant has failed to produce any acceptable evidence, certainly none occurring within the three months time limit.  His only complaint under the heading of race discrimination relates to the four applications for promotion over the period 1968 to 1995 [it should, in fact, be 1986, although it says 1968].  On each occasion the job went to somebody else but we find that there is no evidence to indicate that race discrimination played any part in his failure to achieve promotion.”

	Then they deal at some length with his sickness position and they say:

“In so far as his dismissal for sickness is concerned, we have come to the conclusion that the decision reached by the Respondents falls within the band of reasonable responses of a reasonable employer and that the dismissal accordingly was not unfair.”

	And they point out that Mr Duggal has difficulty in recognising some points of employment law and they add that the Respondent employer had not been unsympathetic, but, on the contrary, had at one stage reduced a disciplinary stage 3 to a disciplinary stage 2 against Mr Duggal.

	Mr Duggal makes the point to us that there was no adequate consideration by the Tribunal of the position of his dismissal for sickness in comparison with that of the white men’s, Mr Munn’s and Mr Collier’s, and it is a notable feature of the Industrial Tribunal’s Extended Reasons that there is no mention whatsoever of Mr Munn and Mr Collier and of a comparison of their position with that of Mr Duggal.  Is that simply an oversight which we could overlook, having regard to cases such as Retarded Children’s Aid Society Ltd [1978] ICR 437, or is it something more serious than that.  In the Retarded Children’s Aid Society case Lord Denning says at page 443, where the criticism had been that specific matters should have been mentioned but had not been mentioned by an Industrial Tribunal, as follows:

“If you read their reasons in a broad sense, it seems to me exceedingly likely that they did have those points very much in mind.”

A little later he says:

“So, reading between the lines, it seems to me that, although not stated explicitly in the reasons, this tribunal very probably did have all the considerations in mind which it is suggested they may not have had.”

Continuing he says:

“I do not think it would be right to upset them and have fresh hearings on points of meticulous criticism of their reasoning.”

	He suggests that Industrial Tribunal decisions should be looked at broadly and fairly and, in a passage that is cited time after time in this court, Lord Russell of Killowen, at page 444 talks about the impropriety (if that is not too strong a word), when looking at decisions of the Industrial Tribunal, of searching around with a fine tooth-comb for some point of law and that one cannot take it that a point has not been considered simply because it has not been expressly mentioned.

	Here, though, there is a difficulty.  This is not simply a case where the comparison with Munn and Collier was perhaps by an oversight, not mentioned, but, reverting to that expression in paragraph 13, it is said, of Mr Duggal, “his only complaint under the heading of ‘Race Discrimination’ relates to the four applications for promotion over the period 1986 to 1995”.  Mr Matovu says that, in context, and one can see the force of it grammatically, that that surely was intended to mean his only complaint “which he has orally developed today”, or “which he has not orally abandoned”, or “his only complaint in respect of which any useful evidence has been adduced”.

	If the Industrial Tribunal had said something such as any of those expressions one might be able to take a different view, but when they say, “his only complaint under the heading of “Race Discrimination” relates to the four applications for promotion, and leave that statement unqualified, that seems to us not correct having regard to Mr Duggal’s express reference in his particulars to a comparison between his dismissal and the position of the white men, Mr Munn and Mr Collier.  So far from its being simply an omission which we can make good having regard to Retarded Children’s Aid Society on the grounds that the Industrial Tribunal must surely have had the point in mind, they are saying, in effect, that they did not have other points in mind and that the only points they had in mind, in relation to race discrimination, were the four applications for promotion.  In other words, they did not consider the point about a comparison between the treatment of sickness relative to dismissal in Mr Duggal’s case with its treatment in Mr Munn’s and Mr Collier’s cases.

	Now that, it seems to us, is a very grave point and, indeed, so grave that we see no alternative other than to remit the whole matter afresh to a new Tribunal.  A substantial part of Mr Duggal’s complaint was left out of the Tribunal’s deliberations.  That does give rise to this consideration.  As we mentioned earlier, Mr Duggal twice broke down in the comparatively dry atmosphere of the EAT and broke down in the Industrial Tribunal (where one might expect the atmosphere to be a little more emotional, given that evidence would be given) and it does his case no service when that happens.

	We would urge upon Mr Duggal that he takes the fullest steps that he can to ensure that at the hearing before the fresh Tribunal (of which we have spoken) he is represented professionally.  He is far too close to, not to say, obsessed by, the case adequately to address it himself.  But, simply coming back to our conclusion, for the reasons we have given we do not feel at all comfortable with the reference to the “only complaint” being, in relation to race, as I have mentioned.  We feel, therefore, there is a serious omission that cannot be remedied by reference to cases such as the Retarded Children’s Society case, an omission that amounts to an error of law, and we see the only practical remedy (with some reluctance) to be for us to remit the whole matter to a fresh Tribunal.