Appeal No.	 EAT/901/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 June 1998

Before
HIS HONOUR JUDGE J HULL QC
MS S R CORBY
MR T C THOMAS CBE

MR G PATEL	APPELLANT

LEICESTER CITY COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR G PATEL
(in person)	

	JUDGE J HULL QC:	This is an appeal to us by Mr Patel against a decision of the Industrial Tribunal sitting at Leicester under the Chairmanship of Mr Solomons on 19 June 1997.

	Mr Patel had complained to the Industrial Tribunal that he had been unfairly dismissed, that he was entitled to a redundancy payment, that he had been wrongfully dismissed, that is to say dismissed in breach of contract and that there had been discrimination against him on the ground of his race.   Those matters were denied and I will go into the story as explained to the Industrial Tribunal a little more fully.

	Mr Patel was first employed on 1 October 1990 as a security officer and reception officer by the housing department of Leicester City Council.   We know nothing of his employment which no doubt went on in a satisfactory way until 5 June 1996 when he alleged - I put it like that because there was some difficulty about it - that he had been robbed by three young men and jewellery and a watch had been stolen from him.

	As I explained to Mr Patel we are only a Tribunal of Law.   Parliament has said that we have no jurisdiction to inquire into facts, that jurisdiction is given exclusively to the Industrial Tribunal.   So to say what the facts are on which we must base our considerations we must refer to the decision of the Industrial Tribunal which is given in their Extended Reasons.

	They say that there was this reported robbery and that on 6 June Mr Patel made a claim to the Council;  he wished to make a claim for compensation and he quantified it;  a sum of over £1000.   

	Then they say that he submitted another estimate and this one was for just under £1000.   This caused some suspicion on the part of his supervisor, a Mr McKinnon, and Mr McKinnon saw Mr Patel with his union representative (the UNISON union), a Mr Prendergast, in order to discuss the claim for compensation.   At that time Mr Patel had gone sick and it clearly was a serious illness.   Mr Patel has told us that he suffered physically and mentally, perhaps as a result of his experiences.

	They go on with this:   

“5.   At the end of that meeting with Mr  McKinnon” on 11 July “the applicant was told.[by Mr McKinnon] that Mr McKinnon considered his claim to be fraudulent...”

	Later that afternoon Mr McKinnon was telephoned by Mr Prendergast the union representative and Mr Prendergast told Mr McKinnon that Mr Patel wished to withdraw his claim for compensation.   An indication was given, again by Mr Prendergast, “that the report of the incident made by Mr Patel was a false one”.

	Then matters went into abeyance because Mr Patel was away from work until December when he returned.   There was an investigatory interview on 6 December conducted by a Mr Thomson, the line manager and neighbourhood manager.  There again Mr Prendergast attended with Mr Patel.   There was a short adjournment in which Mr Patel and Mr Prendergast discussed the matter and they then returned to Mr Thomson and it was indicated that the claim was not to be pursued and, furthermore, it was said that the incident which was alleged to have taken place on the night of 5-6 June did not occur.

	That statement was confirmed in writing on Mr Patel’s instructions by Mr Prendergast in a note dated 6 December which was shown to the Industrial Tribunal.

	The Industrial Tribunal record that thereafter a disciplinary hearing took place on 30 January and they say that Mr Scott, of the employers, considered the evidence before him including Mr Thomson’s report and documents.   Representations were made on Mr Patel’s behalf by Mr Prendergast and the Tribunal say this:

“It is important to note that at that meeting on 30 January 1997 the case still being presented on behalf of the applicant was that the complaint of attack on the night of 5 to 6 June was a false complaint.”

	That is what the Tribunal say and those are the facts that they found.

	Then they find that Mr Scott made his decision.   It was that Mr Patel should be dismissed for gross misconduct on the basis that the had made a false complaint, having fabricated an attack on himself and having made a false claim for compensation.   Then they say that in June 1997 there was an appeal but the dismissal was upheld.   But at that appeal, they say that, for the first time, the Applicant sought to contend that his complaint that he was attacked and robbed was in fact true and that his contention at the disciplinary hearing that the robbery did not take place was not true.

	We note and the Tribunal undoubtedly noted Mr Patel’s very sad condition (which he has told us about) his illness and so on and I am quite sure, we are all sure, they had that well in mind.   They go on like this:

“10.   At this Tribunal he [Mr Patel] has given evidence that in fact he was attacked and that the items of expensive jewellery... were stolen from him.   We have to say, having heard the evidence of Mr Patel that we did not believe much of his evidence.   We do not accept that he had items of expensive jewellery stolen from him... We are prepared to accept that there was an attack of sorts upon him.   It may be that he had a watch stolen from him.    We do not accept that he was telling us the truth, let alone telling his employers the truth at an early stage in his request for compensation...”
	They go on to say:
“...there are many inconsistencies in the applicant’s accounts to the police and to his employers.”
	They finish up by saying:
“Where there are disputes between the applicant and the witnesses called on behalf of the respondent” the Council “ we prefer the evidence of the respondent’s witnesses who we consider came across as truthful witnesses on issues of fact.”

	Then they go on to say what they make of all this.   They came to the conclusion, they say, that it was reasonable for the employer to decide that there was a false claim for compensation;  indeed any other conclusion on the matters before the employer would have been flying in the face of common sense.

	Then they ask whether it was fair or unfair to dismiss Mr Patel.   They apply the correct statutory test.   They say:

“13.  It is quite clear to all of us that the conduct which the employers found the applicant had been guilty of falls within the definition of gross misconduct...
14.  We are all of the view that” Mr Patel “was guilty of gross misconduct... The majority of us conclude that it was reasonable for this employer to dismiss this applicant for that misconduct.”

	They say there was a reasonable investigation and the majority conclude that:
“...no reasonable employer could take any other course of action but to dismiss this applicant.”

	That is their conclusion about that.   It also follows, they say, that there has been no breach of contract;  no wrongful dismissal.

	One of their members reached a different conclusion, it is not fair to say, I think, whether it is one of the lay members or the Chairman,  but one of the members:
“The minority of us take the view that it was not within the band of reasonable responses... “
	Firstly that having initially made a fraudulent claim he then withdrew it and secondly they referred to a case of two other men, a Mr Becks and a Mr Wagstaff, they apparently are white men, they were found guilty of fighting but were not dismissed.   They only received a final written warning.   That member thought that there should have been some other sanction short of dismissal, for instance a final written warning.   

	The majority disagreed.   They took the view that he was fairly dismissed.   They said there was no inconsistency in substance because although fighting might well be gross misconduct it was gross misconduct of a different sort and the employers were entitled to take a different view and therefore, they said, the Applicant was not unfairly dismissed.

	They looked at the evidence and they said there was no question of redundancy here.   It was clear to them that the employers hoped to employ another person in Mr Patel’s place and they came to the very important question of racial discrimination.   They referred to the statutory definition of racial discrimination.   They said, in paragraph 21:

“The burden of proof is upon the applicant to establish that he was discriminated against on grounds of race.”

	They set that out and what he said about Mr Becks and Mr Wagstaff, the two gentlemen who had been fighting, and he said:

“As far as I know black people who are found guilty of disciplinary matters are always sacked by the City Council and white people are not, they are only warned.”

	But the Tribunal say:

“There is no evidence in our view to establish that that is the case, whether the applicant believes it or not...
23.   We are firmly of the view that there is no evidence whatsoever of race discrimination...

	And they directed themselves that it is very difficult to prove and there is rarely any direct evidence.   They say:

“...we can find no evidence of a difference in treatment in this case or that there is any discrimination on the grounds of race at all and so the applicant’s claim for race discrimination in this case is also dismissed.”

	Now Mr Patel appeals to us.   He says in his Notice of Appeal that he disputes the findings of the Industrial Tribunal, he says first of all that he was unfairly dismissed, he mentions the history of the matter shortly, he says “no one has taken over my job so far as I am aware”, and third, “I was treated less favourably than my white colleagues”.   He has told us very courteously and carefully about his illness with which we sympathise very much.

	His complaint is that management failed to look into the hospital records and the police inquiries in the matter and he said he believes that there is racial discrimination because, he says, “I am an Asian”.   He says  “the character of our community is good and I got no warning in this case”.

	We are not here to make another inquiry into the facts.   It is perfectly possible that if Parliament did allow us to make an inquiry into the facts we might very well reach a different conclusion from an Industrial Tribunal.   We have to face that, perhaps, in most of the appeals which are made to us and particularly where there is a difference between the situation when the case comes to us and what it was in front of the Industrial Tribunal.   We are not allowed to go in for any such mental process as that.   What we do have to do is to ask ourselves “has this Industrial Tribunal made any error of law?”   Such matters as “did they refer wrongly to the statutory provisions?   Did they make a mistake of some sort?   Did they  reach a conclusion which no reasonable Industrial Tribunal could reach?”   If we think there is any fairly arguable case about that then of course the case will go to a full hearing on appeal.  

	So we have asked ourselves about that but in spite of Mr Patel’s help we have all come to the conclusion that there is here no fairly arguable point of law which we can consider.   It is not up to us to say whether we agree or disagree with the Industrial Tribunal decision, whether we think the employers might have made further inquiries or whether the Industrial Tribunal might have taken a different view on any of the facts.   We think the decision is one which cannot be faulted in law and therefore the appeal can go no further and we have to dismiss it at this stage.