APPEARANCES
| For the Appellants |
MR A AKINOSHUN
(Representative)
VEASEM
501 Beveridge Court
Saunders Way
London
SE28 8EA |
| For the Respondents |
MR N RANDALL
(of Counsel)
Messrs Orchard
Solicitors
99 Bishopsgate
London
EC2M 3YU |
JUDGE PETER CLARK: These are appeals by the applicants, Mr Adebayo and Mr Olalere, against a decision of an Employment Tribunal sitting at London (South) chaired by Mr N A Halton, on 27th and 28th January 1998, dismissing their claims of unlawful direct racial discrimination brought against their former employer, Swirl Service Group Ltd, the respondent.
The Complaints
- The appellants brought separate complaints, both of which were consolidated and heard together. Both had been employed by the respondent as protection master. That is a highly responsible job. They were charged with the safety of workers on the electrified underground system. Both complained of racial discrimination and automatically unfair dismissal by reason of their trade union activities. The latter complaints were withdrawn. Neither had completed two years service to qualify for ordinary unfair dismissal protection.
The Facts
- The respondent provided services under contract to London Underground Ltd on the Northern Line. Both appellants worked on that contract.
- Due to a reduction in work on that contract the respondent decided that staff cuts were necessary. In the event, 3 out of a pool of 14 employees were dismissed.
- In January 1997 the appellants were warned of the possibility of redundancy. At the end of their shift on 11th April 1997 each appellant was handed a letter of dismissal. The reason for dismissal was given as redundancy. Their selection for redundancy was said to be because each had failed one of the stages of the Safety Critical Licence.
- That was not correct, as the tribunal found. Neither man had failed the first assessment; both were on the point of undergoing the second assessment. It also appears that a white employee, Spencer James, had initially failed the first assessment, but on reassessment he passed. Mr James was retained in the employment.
- In fact, so the tribunal found on the evidence given on behalf of the respondent, the selection process was based on an assessment of competencies, carried out subjectively by management. The appellants and the white member of staff, Mr James, were to carry out their second assessment within three days of the appellants' dismissal. That would have provided objective information as to their competencies. However, the respondent's evidence was that it could not wait for those assessments to be carried out, for reasons which the tribunal did not accept.
The Employment Tribunal decision
- The tribunal identified the issues in the cases at paragraph 5 of their reasons, identical in each case, as follows:
(1) Did the appellants suffer less favourable treatment in being selected for redundancy. It appears from paragraphs 17, 18 and 21 of the reasons that they identified Mr James as a comparator for this purpose.
(2) If so, had the respondent put forward an adequate and satisfactory explanation for the difference in treatment.
(3) If not, was it appropriate for the tribunal to draw an inference of unlawful discrimination.
- The tribunal answered those questions in this way:
(1) There was a less favourable treatment. The appellants were selected for redundancy and others, including Mr James, the white comparator, were not, on the basis of non-objective criteria. We would add that the criterion originally set out in the letters of dismissal, namely failing a stage of the Safety Critical Licence, was found to be wrong.
(2) The explanation advanced by the respondent for that less favourable treatment was unsatisfactory. The respondent had proceeded to select for redundancy on the basis of criteria, necessary to retain a skilled workforce, which was subjective, when objective information in the form of the second assessments to be carried out in the cases of the appellants and Mr James, would have been available shortly.
(3) Finally, the tribunal recognised that there were general factors within the company which created a genuine belief among the staff of racial discrimination. However, those factors had to be weighed with the particular facts of the case. In the tribunal's view the actual method used for selection, as opposed to the information given in the dismissal letters, was race neutral. The purpose was to choose from a pool of some 14 people of whom only two were white. The tribunal noted that had the established LIFO (last in first out) procedure been used, Mr James would not have been selected for redundancy.
In all the circumstances the tribunal found that although there had been less favourable treatment it was not on racial grounds. The complaints were dismissed. The tribunal noted that had the appellants been able to bring complaints of ordinary unfair dismissal the respondent would have been in considerable difficulty in defending those claims.
The Law
- By s. 1(1) of the Race Relations Act 1976:
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if –
(a) on racial grounds he treats the other less favourably than he treats or would treat other persons."
- By s. 4(2)(c) it is unlawful for an employer to discriminate against his employee by dismissing him.
- The difficulty facing an applicant who must make out his case of unlawful racial discrimination is well recognised. There will rarely be direct evidence of racial discrimination. The outcome will usually depend on what inferences it will be proper for an Employment Tribunal to draw from the primary facts. The well-known guidance contained in the judgment of Neill LJ in King v Great Britain China Centre [1991] IRLR 513, approved by the House of Lords in Zafar v Glasgow City Council [1998] IRLR 36, envisages that where there is a finding of less favourable treatment and a difference in race between the complainant and the relevant comparator, actual or hypothetical, the tribunal will look to the employer for an explanation. If the explanation put forward is considered by the tribunal to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.
- In Zafar Lord Browne-Wilkinson corrected certain observations which he himself had made when sitting as President of the EAT in Khanna v Ministry of Defence [1981] IRLR 331 and Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487, to the effect that such an inference should be drawn once the tribunal had found less favourable treatment coupled with a difference in race and that the employer's explanation was inadequate or unsatisfactory.
The Appeal
- Mr Akinoshun is not a lawyer, but he has presented the appeal with considerable skill and clarity. He has pointed to the inconsistency in the respondent's case, between the basis for selection for redundancy advanced in the letters of dismissal and the account given by respondent's management representatives in evidence before the Employment Tribunal. He contends that the tribunal fell into error in two ways. First, the tribunal did not make the necessary comparison between the treatment meted out to the appellants and that afforded to the white comparator, Mr James. Secondly, he submits that on the facts as found no reasonable tribunal properly directing itself could have declined to draw the inference of unlawful discrimination. The decision was perverse.
- As to the first point we are satisfied, by reference particularly to paragraphs 17, 18 and 21 of the respective decisions in these cases, that the tribunal did find in favour of the appellants, that they were less favourably treated than Mr James, in that they were dismissed and he was retained. In other words, they applied the correct test in law and decided the point in favour of the appellants.
- As to perversity, we remind ourselves that the question is not whether we would have drawn the inference of unlawful discrimination, sitting as an Employment Tribunal, but whether the tribunal's conclusion was a permissible option.
- On this aspect of the case we are just persuaded by Mr Randall that it was. He submits, by reference to the findings in paragraph 21 of the reasons, that the tribunal weighed the factors for and against drawing the inference. The less favourable treatment; the wholly unsatisfactory explanation for that treatment and the genuine belief among the workforce that racial discrimination existed within the company, had to be balanced against the tribunal's finding that the basis for selection was in fact that put forward by the respondent in evidence, namely those who management considered were most likely to fail the second assessment. That was a race neutral method. The tribunal referred to the fact that had the established LIFO system been used, Mr James would have been retained on that basis. Had the employer wished consciously or subconsciously to discriminate on the grounds of race that would have been an effective method of doing so. There was evidence that although Mr James had failed the first assessment initially he had passed it second time with flying colours. Further, he had experience as a track cleaner and management needed to retain track cleaners. All these were matters for the tribunal to place in the balance in reaching their conclusion. It is not for this Appeal Tribunal to usurp the function of the Employment Tribunal. There was no patent misdirection in law. We cannot properly interfere with the decision.
- It follows that we have concluded, without enthusiasm, that this appeal must be dismissed.
