Appeal No.	 EAT/39/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 September 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR L D COWAN
MR E HAMMOND OBE

MR A DOSHOKI	APPELLANT

DRAEGER MEDICAL LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MS MARY STACEY
(of Counsel)
ELAAS	

	JUDGE HICKS QC:		The appellant, Dr Doshoki, was employed by the respondent company, Draeger (Medical) Limited, as a territory sales manager from 9th June 1997 until 4th March 1998, when he was dismissed because of his conduct at a conference attended by staff, senior management and potential customers. As the senior management considered, he drank too much, behaved foolishly and uttered what they regarded as offensive statements. 

The appellant complained of unfair dismissal, but he also complained of racial discrimination and victimisation. The background to those complaints was that, as indeed the tribunal found, colleagues of his had made racist remarks including such terms as “Ayatollah” and “Arab”, Dr Doshoki being of Iranian origin, although of British nationality. There was also a finding that a colleague used the word “Eunuch” as a play on words of an offensive kind when the appropriate word was “unique”. 

	As the tribunal found, Dr Doshoki had complained of those matters to his manager, Mr Jones, but had emphasised that he did not wish any steps to be taken formally, as to do so he would, he felt, threaten the development of team spirit. However, as the tribunal found, he did not treat them in the joking manner in which they were apparently intended. So it was a matter, as the tribunal found, which he took seriously, and sufficiently seriously to complain, although his complaint was of the muted kind which the tribunal mention.

	The tribunal go on to find that Mr Jones promised that he would deal with those complaints by having a word with the colleagues, but then what happened thereafter was not the subject of any evidence; whether he did so is not known. Mr Jones left the company before Dr Doshoki. What is implicit in the findings of the tribunal is that Mr Jones did not tell Dr Doshoki whether he had done anything or what, if so, the result was. 

	The victimisation complaint was simply that having made that complaint Dr Doshoki was entitled to the protection of s.2 of the Race Relations Act 1976. His case was that the fact that he had made that complaint led to his dismissal.

	The complaint of unfair dismissal was sustained. The reasons why Dr Doshoki nevertheless wished to appeal were as follows. First, he considered he had received insufficient compensation, but that ground of appeal is no longer pursued and we therefore formally dismiss the appeal on that ground. But secondly, he complains that the tribunal dismissed his complaint of racial discrimination and failed altogether to deal with the complaint of victimisation.

	Dealing with the latter first, because it is the shorter, it is indeed the fact that, although the complaint of victimisation and the respondent’s answer to it are recited at the opening to the tribunal’s reasons, thereafter there is no further mention of the matter. There is not, for instance, any finding as to whether the members of senior management involved in Dr Doshoki’s dismissal knew anything about the complaints. Manifestly, if they knew nothing about them, that might have been have a proper ground for dismissing that complaint, but the matter is simply not dealt with at all. We conclude that in failing to deal with one of the complaints before them the tribunal arguably erred in law and that that ground ought therefore to go forward to a full hearing. 

As to the racial discrimination point, that falls into two parts. There is first the fact that having found the racial insults to which I have referred, and not having found any report back to Dr Doshoki as to whether Mr Jones had done what he promised and if so with what result, the tribunal, when coming the section of their reasons headed “Assessment”, having repeated in summary form their finding of the racial insults go on to say:

“9 (a) … Accepting that the Applicant would not enjoy such references and indeed remarked upon it to his business unit manager, there is no evidence however to show that by such remarks on the few occasions on which they occurred the Applicant was thereby subjected to any detriment. They did not lead in any way to his dismissal or in any manner have an adverse effect upon his employment.”

The complaint by way of appeal is that it is simply and flatly contradictory to accept that the racial insults were made and were taken sufficiently seriously by the applicant to result in those complaints, and then to find that there was no detriment. It is the knowledge of the insults that is the detriment and the effect on Dr Doshoki’s feelings. We have concluded that that is an arguable ground of appeal and should go forward.

	There is a further argument, perhaps the most substantial in terms of potential consequences, that in dealing with the question whether the racial discrimination affected the unfair dismissal, or whether an element of racial discrimination entered into the unfair dismissal, Ms Stacey for Dr Doshoki says that the tribunal should have addressed, on what is commonly called the King test, the question whether the way in which Dr Doshoki’s conduct on the night in question was dealt with, was less favourable than the way in which conduct by a non-Iranian of a similar kind would have been dealt with. That might well have had to be a hypothetical comparison, because it does not appear that there was evidence of a case of similar conduct by anybody else on that occasion or at any other time, but Ms Stacey says that that is should have been addressed. Our conclusion is that the tribunal did not err in law in that respect. Like all authorities which suggest ways in which the issues under this particular statute or other statutes in the employment field should be dealt with King V Great Britain China Centre [1992] ICR 516 provides useful guidelines. It may be a matter for adverse comment and may indeed in the circumstances of the particular case be an error of law for a tribunal not to follow them, but they are not themselves part of the statute. In our judgment it is quite apparent from the way in which the tribunal deals with the issue of the dismissal, which we remind ourselves again they found in Dr Doshoki’s favour, that they were indeed judging the matter objectively and comparing what was done in Dr Doshoki’s case with what should have been done and with what the respondent would have done whatever the racial or national origin of the alleged offender. We do not consider it an error of law that they failed step by step to spell out a specific finding of what the respondent would have done in the case of hypothetically identical conduct on the part of someone not of Dr Doshoki’s racial and national origin. That ground of appeal is therefore dismissed. I say “that ground of appeal” as if there were a paragraph in the Notice to that effect, but I have really been dealing with the matter on the basis of Ms Stacey’s very helpful submissions and recording our findings by relation to them; it follows that there will have to be an amended Notice of Appeal raising the points which we have found should proceed to a full hearing. We shall allow whatever time is reasonably needed for that purpose.

[After discussion.]

	The amended Notice of Appeal is to be filed and served within 28 days, confining the grounds of appeal to those which we have directed should go forward. Skeleton arguments to be served seven days before the date fixed for the hearing. The case is to be listed for half a day, Category C.