Appeal No.	 EAT/954/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 October 1999

Before
HIS HONOUR JUDGE ALTMAN
MRS M T PROSSER
MR J A SCOULLER

MR L CLARKE	APPELLANT

MR LA PARKES AND SECURITAS UK LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr A Small (Of Counsel)
Messrs Toussaints
First Floor
150 Soho Road
Handsworth
Birmingham B21 9LN	

JUDGE ALTMAN:
1	This is an appeal from the decision of the Employment Tribunal, sitting at Birmingham on the 18,19 March and 27 May 1999.  The majority decision of the Tribunal was that the Appellant was not unfairly dismissed and that he failed to prove his complaint of racial discrimination.

2	The appeal comes before us by way of preliminary hearing to determine if there is a point of law which is reasonably arguable in full before the Employment Appeal Tribunal.  There are two essential grounds of appeal.  

3	The first, is that it is contended that before the Employment Tribunal the Appellant argued that he was treated differently, in similar circumstances, to a white employee or two white employees at least, namely Andy Jones and Steve Mason and who were not, he said, dismissed.  

4	The second ground relates to the contention that upon the primary facts found the Employment Tribunal should have inferred racial discrimination.  We have been greatly indebted to Mr Small for the realistic succinct and comprehensive way in which he has argued the case and he has effectively conceded that the second ground really is a challenge of the findings of fact.  There is no obligation in law upon an Employment Tribunal to draw an inference of race discrimination, though it is of course empowered to do so, where it considers it appropriate, without being accused of speculation.  

5	We turn our attention to the first ground and the concern we have at this stage, is the extent to which, if at all, the argument about the treatment of other employees was in fact part of the case before the Employment Tribunal.  The essence of the Appellant’s case before the Employment Tribunal was that it was not he that had stolen money and that the employers were unfair and unlawfully discriminatory in accusing him of doing it.  However, in the originating application in the last sentence of the second paragraph of the statement of his case he said.

“There has been other proved cases of manager misappropriating of cash without such action being taken”.

6	And in the further and better particulars under Section 2(2)(b), he said.

“In similar circumstances white people have not been disciplined at all eg. Steve Mason (who left cash-bags in a van) and a supervisor (who wrongly signed a receipt for them); or been dismissed or given the chance to resign rather than be dismissed eg Andy Jones (for borrowing £700 as holiday money) and Steve Mason (for taking a tank-full of diesel for a rented van)”.

7	On the other hand, a questionnaire was served by the appellant upon the respondents and in the section headed, Incidents of Mislaid Cash/Cheque Bags, the question was asked.

“How often during the period from June 1996 to May 1998 were cash or cheque-bags mislaid or otherwise unaccounted for at any time at the Garretts Green branch?”

8	And question 13 was asked.

“How many employees were dismissed during the period in question for alleged theft or other gross misconduct?

9	And questions were also asked about whether employees were suspended or reported to the Police.  The answer to the questionnaire indicates that the only incident was that with which the appellant was concerned; that no-one had been suspended, no-one reported to the Police, and the only other employee dismissed for theft or gross misconduct is alleged to have been Steve Mason for theft of diesel, which was in fact categorised as gross misconduct.  

10	Accordingly, on the face of it, it looks as if the allegation in the further particulars that Mr Mason was treated differently may on the evidence have been shown to be unsupported.  Mr Small’s understanding in relation to that is that Mr Mason’s position was in issue before the Employment Tribunal.  The decision of the Employment Tribunal carefully sets out not only the decision of the majority but also the minority member of the Tribunal with reasons which were set out in some detail in Paragraph 19 and 20 of the decision.  It is clear that no reference to other employees and their treatment is contained in the decision of the majority but also it must be pointed out that there is no reference to that issue in the finding of the minority member either.  

11	In those circumstances Mr Small has done his best to tell us what he understands the appellants case to be.  He did not appear in the Employment Tribunal, and he is here alone today and his understanding is that these matters were raised during the hearing before the Employment Tribunal.  

12	We have decided that it is important to clarify what happened before the Employment Tribunal.  

13	This should be done before the Employment Appeal Tribunal comes to a decision as to whether there is an arguable point of law upon the assertion that the Employment Tribunal failed to consider, in relation to the complaint of racial discrimination, the allegation that there were white employees who were treated less severely for comparable matters, serves to give rise to the contention that an inference should be drawn that the appellant was treated differently because of his race.

14	Accordingly we adjourn the preliminary hearing and direct that a letter be written to the Chairman, requesting that he check with his notes and if appropriate with his own recollection and that of the members and to notify by letter the Employment Appeal Tribunal the extent to which if at all, this issue was part of the proceedings before the Employment Tribunal. 

15	Upon receipt of that letter this matter should then be relisted at short notice to resume the preliminary hearing.  We direct that it is not necessary that I or the members sitting here today need sit on the adjourned hearing.  If it can be arranged that the members sit so much the better, but it is not necessary.