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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Allen v. Birmingham City Council [1999] UKEAT 489_99_1507 (15 July 1999) URL: http://www.bailii.org/uk/cases/UKEAT/1999/489_99_1507.html Cite as: [1999] UKEAT 489_99_1507

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APPEARANCES

 

For the Appellant	MR D SMALL (of Counsel) Messrs Bailey Wright & Co Solicitors 3rd Floor Guildhall Buildings Navigation Street Birmingham B2 4B1


 


JUDGE WILSON: This has been the preliminary hearing of the appeal by the Appellant against the decision of the Employment Tribunal sitting in Birmingham that the Respondent did not unlawfully discriminate against the Applicant and therefore dismissing his application.

1. The application had been based on alleged racial discrimination and the facts very briefly were that the Appellant had been an Acting Centre Manager at one of the Respondent's centres for Juvenile Justice in the Juvenile Justice System where he had frequent contact with the local police. He was arrested and subsequently cautioned for possessing herbal cannabis and cultivating cannabis. He failed to inform his superiors. When confronted he was evasive but eventually conceded that there had been an incident.
2. He was suspended and there was due to be a disciplinary hearing. But the urgent need for an appointment for a Manager at the Centre in question, and at another one due to staff shortages and sickness, meant that the decision was taken to interview people for those jobs. The Appellant was one of four shortlisted for two manager jobs and arrangements were made for him to have what he needed in order to prepare for it. His performance on the day of the interview, which was in three parts, significantly less good than the two best candidates, and he was not appointed.
3. When the disciplinary proceedings were convened later on, the Appellant was given a written warning and transferred to another centre. He appealed and that decision was upheld. It was said on that occasion that in order to protect the reputation of the Department, the Appellant was being offered an opportunity to rebuild his reputation in youth justice by transferring to another team.
4. In a lengthy judgment, the Tribunal directed itself about the law and there is no complaint about the way in which it did direct itself. But Mr Small, who has appeared today on behalf of the Appellant, makes three points. First of all, that the conclusions of the Tribunal are silent about the terms of the statutory provisions found in the Race Relations Act 1976 section 3(4), so far as the comparator was concerned. Secondly, that the conditions under which the Appellant had to go through the interview were in themselves discriminatory, not least because two of the interviewers were on the disciplinary panel. Thirdly and finally, that the complaint which the Appellant made to Anne Dokov after the disciplinary proceedings had been completed was neglected, and that that amounted in itself to discrimination.
5. Dealing with those points in turn, we have reminded ourselves that we must not interfere with findings of fact by the Tribunal. Neither must we substitute any conclusions that we might draw for those that the Tribunal has drawn unless they are manifestly wrong. We also remind ourselves that it is not mere discrimination which has to be proved on a balance of probabilities, but discrimination which is racial. Dealing with the three points with that in mind, we conclude that even if on the first point the Appellant was differently treated from the comparator, it is quite clear that the Tribunal found it was not on racial grounds.
6. Secondly, so far as the conditions of the interview for the job is concerned, inevitably because he was under the shadow of disciplinary proceedings, the Appellant was in a different position from other candidates. But again, that owed nothing to race. Thirdly and finally, we note that it is stated in the decision that Anne Dokov responded to the letter by seeing the Appellant and responding in writing when he asked her to do so. That of course too was after the event.
7. We think that even if the Appellant had not been under the cloud of the disciplinary proceedings, even if they had taken place first, it would have made no difference. He would have been under the warning and subject to transfer. As a matter of reality, it is not reasonably conceivable that the authority would place him in a managerial position until he had rebuilt his reputation.
8. We therefore have concluded that even if this matter were to proceed to a full argument, there is no prospect of success and accordingly it must be dismissed at this stage.