Appeal No. EAT/553/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 1996

Before
THE HONOURABLE MRS JUSTICE SMITH
MR A C BLYGHTON
MISS C HOLROYD

MR C PEART	APPELLANT

BURNHAM & CO (ONYX) LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MRS PEART
(on behalf of the Appellant)	

	MRS JUSTICE SMITH:   This is the preliminary hearing of an appeal against the decision of an Industrial Tribunal sitting at London (South). The decision was promulgated on 15th April 1996.

	The Industrial Tribunal dismissed the appellant’s complaint that his former employers had discriminated against him on the grounds of race, but they upheld his claim that he had been unfairly dismissed from his employment with them. However, they also found that by his own conduct he had contributed to his dismissal to the extent of 90%, and they directed that his compensation should be reduced accordingly.

	The appellant was employed as a welder by the respondents from 1991 until his dismissal in September 1995. He was a skilled and experienced worker. The respondents were signmakers with about 50 employees. 

	Following his dismissal in September 1995, the appellant, who is black, made several complaints of discriminatory treatment during his employment, culminating in his dismissal which he also alleged had been motivated by racial bias. These complaints comprised:

(a)	The alleged refusal to provide him with overalls in contrast to the treatment given to white men.
(b)	The refusal to pay him his full entitlement to sick pay in contrast to their practice with white workers.
(c)	The failure or refusal to take disciplinary action against a foreman who had allegedly assaulted the appellant.
(d)	The discriminatory allocation of piece work to the appellant’s disadvantage as compared with white workers.
(e)	The discriminatory refusal to replace the appellant’s chair which was broken.

	The background to the dismissal was that during 1995 the appellant was given three warnings in relation to his unauthorised absence from work. The third of those was described as a ‘final warning’. We have seen the formal letters containing those warnings, and it is fair to say that the appellant could have been in no doubt as to the seriousness of his position after the third warning.

	On a date in September 1995, about which there has been some confusion in the documents put before the tribunal and in the tribunal’s decision itself, the appellant was dismissed. It appears that he was dismissed on 12th September 1995, but that the incident which gave rise to the dismissal probably occurred on the previous Friday, 8th September 1995.

	On the Friday afternoon, the appellant went home at 1 o’clock. He claimed that that morning he had asked for leave, and had been told that he could not have the morning off. He claimed that in relation to the afternoon he was entitled to assume that he had been granted leave  because he had not been told that he could not. That is what he told the tribunal, and that is the version of events which appeared on his behalf in a questionnaire which was served upon the respondents prior to the hearing.

	Mr Burnham who was the director of the company who was responsible for the appellant gave a different account both in the answers to the questionnaire and before the tribunal. His account was that the appellant had asked him for leave of absence on the Friday, and that Mr Burnham had refused, making it plain that the refusal covered the afternoon as well, and making it plain that if the appellant were to leave his place of work he would be dismissed.

	By a letter dated 12th September 1995, which as we understand was Tuesday, Mr Burnham dismissed the appellant for the unauthorised absence to which we have just referred. He did so without conducting any disciplinary hearing, even of the most rudimentary kind. He did not ask for an explanation from the appellant; perhaps from his point of view he could see little point in so doing, bearing in mind his claim that he had given the appellant clear instructions in the morning that he was not to take the afternoon off.

	The Industrial Tribunal accepted Mr Burnham’s evidence as to the circumstances of all four episodes of unauthorised absence. They were entitled therefore to take a serious view of the appellant’s conduct. However, they also took the view that the dismissal was unfair because a proper procedure had not been followed. They were critical of the employers in two respects. First of all for acting without a disciplinary hearing or without seeking an explanation from the appellant; and second, because the appellant had never been told that it was open to him to appeal against the dismissal.

	So having found the dismissal unfair, they went on to say this:

“8. ... However we have little sympathy for the Applicant and consider he contributed to his dismissal by his own conduct in taking unauthorised absence. Any award of compensation should be reduced by 90%. ...”

That then was the basis of their decision in so far as the unfair dismissal was concerned.

	Today, Mrs Peart, who has appeared on behalf of her husband the appellant, and has argued this appeal most attractively, has invited this tribunal to consider that the 90% reduction was in effect perverse and unjustified.  She has drawn our attention to a number of features of the evidence in support of her contention. In particular, she wished us to know that there had never been a clear company procedure for the granting or refusing of time-off. She wished us to know that over a long period of time Mr Peart had been able to take time-off after filling in a slip of paper and presenting it to his senior foreman or manager. He had been able to take time-off if he had not received notice that his request had been refused. In other words, what we are told is that the company practice was to allow workers to assume that they had been given time-off unless they were told to the contrary. 

	It may well be that that was so. It is not really a matter on which we can adjudicate. But we would observe that whatever the position had been in the earlier part of Mr Peart’s employment, and whatever the position was in relation to other employees, this appellant must have known by early September 1995 that his employers were taking a strict view so far as permission for time off was concerned in his case.

	We have listened very carefully to Mrs Peart’s submissions on this question of the 90% reduction for contribution. But as we have explained to her, the powers of this Appeal Tribunal are limited to interfering in a decision if it appears that the tribunal has erred in law. A deduction for contribution is entirely typical of the kind of factual decision which falls ‘fairly and squarely’ within the discretion of the Industrial Tribunal. They had two versions of the events of 8th September 1995. They had some history of the background of unauthorised absences. They accepted Mr Burnham’s evidence and they had little sympathy with Mr Peart. It seems to us that on the evidence before them (which we have seen, at least in so far as the questionnaire is concerned,) that this was a decision which the tribunal was entitled to reach. It may be that another tribunal would have taken a slightly more generous view of Mr Peart’s position. But there is no basis upon which we could possibly conclude that this tribunal had not been entitled to reach its decision in that regard.

	Mrs Peart has not addressed any arguments specifically to the approach of the tribunal to the Race Relations Act  claim. We consider that she has been wise and right not to do so. It is apparent to us that this tribunal directed itself correctly on the law relating to the approach to a race discrimination case. They referred themselves to the case of King v Great Britain China Centre which is the leading authority on this area of the law. They reached the conclusion, having heard evidence called by both sides, that the appellant’s complaints had not been made out. 

	Once again Mrs Peart has very attractively drawn our attention to a number of factors in the case about which she and her husband feel unhappy. In particular, she has explained to us that she and her husband have reached the conclusion that because her husband had made a number of complaints during the course of his employment, the employers had become prejudiced against him. She goes so far as to say that that may well be the explanation as to why they were anxious to dismiss him. She accepts that this was not a point that was argued on the appellant’s behalf before the tribunal.

	We do understand that an employee who has lost his job and suffers financial hardship, may well wish with hindsight that his case had been put in a slightly different way, that certain evidential matters had been stressed more than they were and additional matters raised which were not. We understand that, but it is a situation with which we cannot assist. This tribunal has directed itself correctly in law in its approach to the race relations claim. We cannot in those circumstances allow this appeal to go forward to a full hearing. We have no alternative but to dismiss the appeal at this preliminary stage, but in doing so, we do express our gratitude to Mrs Peart for the most helpful and articulate way in which she has put forward her husband’s case.