Appeal No. EAT/84/02/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 January 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MS J DRAKE
MISS C HOLROYD

MR M LAWRENCE	APPELLANT

CLINTON CARDS PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

	APPEARANCES

For the Appellant	MS S ROBERTSON
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

MR JUSTICE BURTON (PRESIDENT):

1	This is the adjourned preliminary hearing of the appeal of the Appellant, Mr Lawrence, against the findings of an Employment Tribunal sitting at Sheffield, after some five days hearing, and two days discussion in Chambers, in which it reached a number of conclusions relating to his claims before that Tribunal. 

2	The claims with which it dealt were as follows.  He made a claim of unfair dismissal and that was dismissed;  he made a claim in respect of unlawful race discrimination on a number of bases, and he succeeded as we shall indicate in relation to one of the aspects of the complaint.  He made a complaint in relation to victimisation, and that was dismissed, and then he had previously withdrawn a claim in relation to breach of contract, which was thus not adjudicated on by the Tribunal.

3	The matter has come before this Tribunal on two previous occasions, and we are not happy that this is now the third basis on which it has come before us, ex parte.  It appears to us that, if it was going to be adjourned to come back again, it would have rather been appropriate for it to have done so inter partes, instead of this now being a third occasion on which only one side is here to argue the matter before us.  The first occasion was on 27 June 2002 before the Appeal Tribunal, differently constituted, chaired by His Honour Judge Levy QC, and the second occasion, when the matter came back, was when it came back before His Honour Judge Pugsley and Members on 13 November 2002.

4	On the first occasion the Tribunal, chaired by His Honour Judge Levy, dealt with three grounds of appeal, as then summarised before them, by Counsel provided by ELAAS.  The grounds were slimmed down from a much lengthier document, which had been put in on the Appellant’s behalf, as follows:

(1) A claim that, in respect of the Appellant’s unfair dismissal claim, the Tribunal had failed to consider complaints which the Appellant was said to have made under Sections 57A and 99 of the Employment Rights Act 1996.  

(2) The second basis was a claim that the Tribunal had erred in relation to its conclusions with regard to victimisation, and 

(3) The third ground related to his appeal on the question of race discrimination.  That ground of appeal was summarised, as follows by His Honour Judge Levy QC, at paragraph 5:

“Here a broad complaint is made that, although reference is made to King v The Great Britain China Centre the Tribunal, though they referred to the test, failed to follow the comparative three stage enquiry to establish unlawful discrimination; that it made findings of fact contradicted by the evidence; that it failed to consider evidence relevant to each of Mr Lawrence’s complaints.”

Judge Levy QC said:

“It may well be that there is something in this, but on the material before us we cannot say whether there is or there is not.”

5	At that stage he ordered that what we think was the entirety of the Chairman’s notes be requested.  It does appear to us that that was, to a considerable degree, a fishing expedition thus instituted, and one that has resulted in the passage of quite a substantial period of time, because it was nearly six months before the matter came back, as we have indicated, before His Honour Judge Pugsley.

6	At that stage the notes of evidence had only been produced very shortly before, and there was no assimilation of the notes of evidence before the Tribunal, and Counsel then instructed by ELAAS before the Tribunal felt that there was no alternative but to either ask or succumb to the Tribunal’s suggestion (it is unclear to us which it is) that there be an adjournment in order that the notes of evidence should be trawled, and it could be sought to be seen what could be gained from them, in terms of supplementing the grounds of appeal, summarised by His Honour Judge Levy QC, some five months before.  

7	The matter has now come back before us today, and we have had the benefit of submissions from a new Counsel, Sally Robertson, instructed through the services of ELAAS, and she has very frankly accepted that there is, in fact, nothing of any substance in the notes of evidence, which does give any further assistance to the grounds of appeal, and, certainly, it was only in one minor respect that as she pointed to them at all.  We are left, effectively, therefore, notwithstanding both the passage of time, and the provision of the notes, with the question as to whether the ground, as described by His Honour Judge Levy QC, is, or is not, sustainable.  

8	We must deal first with the other two grounds before we come to our conclusion on the surviving third ground.  In relation to the first two grounds, it appears that His Honour Judge Levy’s Tribunal allowed those two grounds to proceed to a full hearing on the basis of the ex parte argument that was before them.  This is set out in the Order of 27 June, which was drawn up as a result.  So far as the unfair dismissal ground is concerned, we are very far from persuaded that the point on which the Tribunal on 27 June gave ex parte permission begins to be arguable in law.  His Honour Judge Levy, at paragraph 3, having referred to what was submitted before him, namely, that:

“On the unfair dismissal claim the Tribunal failed to consider complaints which the Appellant made under Sections 57A and 99” 

referred very briefly to those sections, and then said, 

“Having looked at the decision, it seems arguable to us that the Tribunal failed adequately to consider that section [that is Section 57A] within the Appellant’s complaint.”

9	Section 57A of the Act is headed up “Time off for dependants”.  It is provided by that section that an employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours, in order to take action in certain specified circumstances relating to, among other things, the birth, or illness, of dependents.  By Section 57B of the Act, there is provision for the presentation of a complaint by an employee to an Employment Tribunal that his employer has unreasonably refused to permit him to take time off, as required by Section 57A;  and that complaint can only be considered if it is presented in the relevant three-month period. 

10	There was no such complaint presented in this case, so far as we understand it, either within the three months or at all, under Section 57B of the Employment Rights Act, and indeed no case, as we can see it, that was made out, alleging an unreasonable refusal by an employer to permit the taking of time off.  What was specifically alleged in the IT1 was the following, in paragraph 52:

“I also believe that I was unfairly dismissed for reasonably taking time off to care for dependents.”

That is a plain reference to Section 104 and/or to Section 99 of the 1996 Act.  Section 104 relates to a situation in which an applicant can make a claim for unfair dismissal, irrespective of whether the qualifying period of one year has been completed.  It relates to the assertion of a statutory right and it reads as follows:

“104(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee -
(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or
(b) alleged that the employer had infringed a right of his which is a relevant statutory right.
(2) It is immaterial for the purposes of subsection (1) -
(a) whether or not the employee has the right, or 
(b) whether or not the right has been infringed;
but, for that subsection to apply, a claim to the right and that it has been infringed must be made in good faith.”  

Section 99 provides, as follows:

“99(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -
(a) the reason or principal reason for the dismissal is of a prescribed kind, or
(b) the dismissal takes place in prescribed circumstances.
(2) In this section ‘prescribed’ means prescribed by regulations made by the Secretary of State.
(3) A reason or set of circumstances prescribed under this section must relate to -
(a) pregnancy, childbirth or maternity,
(b) ordinary, compulsory or additional maternity leave,
(c) parental leave, or
(d) time off under section 57A.”

11	The Tribunal, in terms, considered Section 104.  If an applicant qualifies under Section 104, he does not need the qualifying period of one year, which applicants otherwise require before making a claim for unfair dismissal.  For the purposes, however, of Section 99 a qualifying period must be served of 12 months.  That is provided by Regulation 20 of the Regulations referred to in subparagraph (2) of Section 99, which we have quoted, namely the Maternity and Parental Leave etc., Regulations 1999 SI 1999/3312.  The Appellant had not served his qualifying period of 12 months, which alone would have justified his bringing an ordinary unfair dismissal claim, which he could not bring, and which, too, was necessary for him in order to bring a claim under Section 99 that there had been automatic unfair dismissal in those circumstances.

12	The Tribunal, far from not dealing with the issue, appear to us to have dealt with it, in terms, namely under paragraph 10(d) under the heading “The unfair dismissal claim”.  The Tribunal said as follows:

“We find that although the applicant had not been employed long enough to acquire the right to take parental leave [a reference to Section 57A] he nevertheless in good faith believed that he had such a right [a reference to Section 104].  He was not disabused of this during the employment (nor indeed during the hearing).  Accordingly whilst in these circumstances the applicant cannot rely on Regulation 20 within the 1999 Regulations [a clear reference to Section 99 of the Act and the Regulations which govern the right under that Section] he can rely on the provisions in Section 104 Employment Rights Act 1996.”

13	The Tribunal went on to deal, and there is no appeal in respect of their findings, with regard to Section 104.  It appears to us utterly clear that they did have in mind the provisions of Section 57A and Section 99, did deal with those provisions, and dealt with them in the only way they could deal with them, namely by pointing out that there could be no claim under Section 99, because there was no qualifying period fulfilled.

14	We put this today to Ms Robertson who, perfectly understandably, because she was briefed today to deal primarily with the third and outstanding ground, was unable on her feet to put together any argument to counter what we have just set out, which in any event we consider, at the moment, to be unanswerable.  The permission to appeal in respect of this ground was given ex parte.  The Respondent should plainly be given the opportunity of challenging the grant of permission in respect of this head, and we expressly set out in the order we propose to make, that the Respondents shall have liberty to apply, on paper, on notice to the Appellant within 21 days of receipt of this judgment, to discharge the permission granted in respect of this ground, with liberty to the Appellant to respond within 14 days, after receipt of that paper application, to seek to resist the setting-aside of the Order;  or, of course, if either then, or in the meanwhile, having considered the matter, the Appellant takes the view that he no longer wishes to pursue that ground, then notice can be given, either then, or indeed earlier, to the Employment Appeal Tribunal that it is proposed to withdraw, or consent to the dismissal of the relevant ground.  If the Appellant decides to contest the matter, then the Respondent will be given a further 14 days to respond, in writing, to the submissions in opposition by the Appellant, and the matter will be decided, on paper, by the Employment Appeal Tribunal unless, for good reason, it appears that there should be yet a further oral hearing of this matter.

15	The second ground on which permission has already been given by this Appeal Tribunal at the hearing on 27 June relates to the victimisation claim.  It was alleged before the Tribunal that the Appellant was victimised, having made complaints of race discrimination against him, albeit that they were subsequently found to be baseless and/or dismissed.  Section 2 of the Race Relations Act provides as follows:

“2(1)	A person (‘the discriminator’) discriminates against another person (‘the person victimised’) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -
(a)	brought proceedings against the discriminator or any other person under this Act; or 
(b)	...
(c)	otherwise done anything under or by reference to this Act in relation to the discriminator or any other person; or 
(d)	alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, 
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”

16	His Honour Judge Levy was referred to paragraph 10(c) of the Employment Tribunal’s Decision, to which we shall turn in a moment, and was further referred to Sections 2(c) and 2(d) of the Race Relations Act, and to what was described before the EAT, on that occasion, as the broad definition of protected acts under Race Relations Act legislation.  The passage in question reads as follows:

“Whilst the tribunal appreciate that victimisation, (the definition of which we have referred to), is a distinct complaint, a particular type of discrimination, we do not consider that in the way in which the case has been presented to us anything has been added to this applicant’s complaint by this allegation.  We are not referred to any particular protected act and the difficulty for the applicant is that we find that he made only passing reference to racial complaints during the course of the employment.  We have dealt with the matter of Mr Entwistle and Mr Hoodless.  Whilst we accept that the applicant may, in private, have voiced his concerns in terms of racial matters to Mrs Shore, none of the respondents were fixed with notice that the applicant complained of racial discrimination until a very late stage in the employment.  Accordingly we find that the victimisation claim does not succeed.”

It was in relation to that passage that the Appellant has been given leave on the basis, effectively, of the complaint made to His Honour Judge Levy in the Tribunal, in June that, contrary to what is there said, there were matters which could amount to a protected act.  We do not say anything at all to counter the order already made that this matter should go forward.  It may be that the issue before the Tribunal and, indeed, on appeal, may be rather whether in fact the dismissal of the Appellant was by reason of the protected acts, rather than whether there were any protected acts, but that must, in any event, go forward.  We refer to it, because it may be under that head that the issue in respect of which Ms Robertson has been addressing us today, namely whether it could be said that the dismissal of the Appellant took place, because he had made earlier complaints against the Respondent can, in any event, become relevant.

17	We turn then to the matter specifically before us today.  We have already referred to the fact that the argument is not improved by the possession of the Chairman’s notes.  The issue, at the end of the day, is whether the Tribunal reached conclusions which they were entitled to reach, on the basis of having made findings of fact, which are not to be challenged in law, pursuant to the case of King v The Great Britain-China Centre [1991] IRLR 513 to which we have referred.  

18	The Tribunal made a conclusion that in relation to the handling of the grievance procedure, the Respondent was guilty of race discrimination, but, save in that regard, they dismissed the claims.  Apart from that aspect the allegations fell into two general categories, as set out in paragraph 6 of the Decision.  There were, first, a number of earlier specific incidents.  Secondly, there were what are described as the complaints against Miss Eales, the second Respondent and the lady who, in fact, was supervisor of, and dealt with, the Appellant leading up to his dismissal.  The dismissal was, in fact, carried out by a Mrs Green, after a disciplinary enquiry and a hearing, who was made the third Respondent.  

19	It does not appear that the Tribunal made any specific, and separate findings, in relation to Mrs Green, but there was no separate allegation against Mrs Green, save for her participation as the relevant officer in the dismissal, and it appears to us, and Ms Robertson did not vigorously dissent from this proposition, that, if there was a sufficient finding that the Respondent was not liable for race discrimination in respect, inter alia, of the dismissal, then the same result properly followed in relation to Mrs Green.

20	The relevant findings in relation to what we have called “the earlier events” were made by the Tribunal in paragraph 10(b)(i) of their Decision, and no appeal has been pursued in respect of them, namely findings either that the matters did not occur at all, contrary to the evidence of the Appellant, or that, if they did appear, they were sufficiently early as to be out of time.  

21	The relevant findings, for our purposes, are set out in paragraph 10(ii) to (vii) of the Decision.  Ms Robertson has pointed out that the Tribunal rightly directed itself that it should not only address each separate item of evidence, but also look at it all in the round.  It appears to us that they did so.  In paragraph 10(b)(ii) to (vii), however, they do address the specific points.  In (ii), they accept Miss Eales’s evidence that she had good cause to speak to the applicant with regard to his bad timekeeping.  They conclude that he was frequently late for work, and that one of the two final written warnings which he received, to which we will refer, which was on the basis of timekeeping, was justified.  There was certainly no appeal against it at the time, and, in any event, they conclude that it was justified, and, indeed, given that it was his second final written warning, they raised a query as to why, in fact, the Respondent did not choose to dismiss the Appellant then, but that, of course, is not what occurred.

22	In relation to the events leading up to the dismissal, the Tribunal, in (iii), concludes, on balance, that the Respondent had good cause to be concerned as to the Applicant’s whereabouts when using the company van, as borne out by his failure to give an adequate explanation for mileage, and time inconsistencies for his journeys, and also that the first final written warning, which was given to him in respect of such a matter, namely unauthorised use of one of the Respondent’s vans, once again appeared to be justified.  They then make specific findings, which are not addressed in any way by Ms Robertson with regard to two further specific allegations of discriminatory conduct by Miss Eales, in subparagraph (iv), and in what obviously was intended to be subparagraph (v), although erroneously numbered as the first of two subparagraphs (i)s, namely an incident shortly before the dismissal in which the Appellant and a Ms Stockbridge were both involved, she being white.  Both he and Ms Stockbridge were spoken to about the matter, although no formal disciplinary action was taken.

23	The Tribunal then turn, against the background of all the facts, to the dismissal of the Appellant.  The Appellant’s dismissal must be seen against the earlier findings of fact, which the Tribunal have made, with regard to the earlier history.  In paragraph 5, the factual background is set out, which includes the first final warning of 3 March 2000 in respect of unauthorised use of the respondent’s vans, and the concerns about the Appellant’s punctuality, and the further final written warning of 3 August 2000, again to which we have referred.

24	The actual events which led up to the dismissal, leaving aside the matters involving Ms Stockbridge, were what were categorised by the Respondent as his unauthorised absences in August 2000.  The Tribunal find, at paragraph 5(i) that:

“The applicant’s girlfriend was due to have their baby in August 2000 and on 7 August 2000 the applicant was absent from work.”

25	There was then a disputed period, during which the Appellant’s girlfriend did have a baby, through to 15 August, when he returned to work.  It was with regard to that period that his claim, which is being dismissed and not appealed against, that he was not entitled to compensation in respect of a breach of Section 104 was made, and in respect of which the claim under Section 99 would have been made, but for his not having qualified for it, as referred to above.  There was evidence given, and there were findings made by the Tribunal, and the Tribunal concluded that the Respondent was entitled, after those absences, to conclude that they were unauthorised and that, particularly, against the background of the two final written warnings, the Respondent was entitled to hold a disciplinary hearing and did so.  The conclusion, in subparagraph (vi), as it should be, of paragraph 10(b), was as follows:

“Insofar as the applicant’s dismissal is said to be an act of unlawful discrimination we do not consider that there has been less favourable treatment in that, subject to what we have to say about the unfair dismissal claim, we do not consider that a white employee about whom the respondent had similar concerns was not likely to have been dismissed.  Whether the respondent would have proceeded in a different way had the applicant enjoyed ‘ordinary’ unfair dismissal rights is a matter for conjecture but we cannot equate the way in which the first respondent did proceed with the matter with a finding that there had been unlawful discrimination.”

And then, finally, in subparagraph (vii), they say as follows:

“Accordingly, in summary, we must reject in entirety the applicant’s complaints against Miss Eales.  Differences may have existed between these two individuals in the workplace but we are satisfied that race discrimination did not have a part to play.  The applicant’s own approach to timekeeping and reaction to being managed by a younger female were contributory factors to the working relationship.”

26	Ms Robertson has submitted that there were no sufficient findings by reference to King, not in relation to the other incidents involving Miss Eales, but in relation to the dismissal.  It is however plain in our judgment that, against the findings of fact that the Tribunal made, they did address the correct question, namely, whether, in disciplining the Appellant and dismissing him, they were treating him in a way different from that in which they would have treated a white comparator with two final written warnings.

27	We are satisfied that, having asked themselves that question, they answered it correctly.  We see no sign here of any failure to identify the issues, either as to the facts, or as to the test they had to apply, and we conclude that there is no arguable ground shown to establish an error of law in relation to the Tribunal’s findings, that with regard to the dismissal there was no race discrimination, because they were satisfied that a white employee would not have been treated differently in the same circumstances.  Equally, of course, the fact that there was no specific mention of Mrs Green becomes, in those circumstances, irrelevant because the case must fail against her on the same basis.

28	We have already indicated that, in any event, the Appellant will have his chance on appeal to deal with his alternative case, that the dismissal came about by reason of victimisation, and that case must proceed, but we do not conclude that there is any ground for challenge to the dismissal of the claim in respect of race discrimination per se.