Appeal No.	 EAT/147/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 1999

Before
HIS HONOUR JUDGE HAROLD WILSON
MS B SWITZER
MR K M YOUNG CBE

MR G NAGARAJAN	APPELLANT

MR P STANDRING & OTHERS	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS HOGG
(of Counsel)
ELAAS	

	JUDGE HAROLD WILSON:	This is a preliminary hearing in a proposed appeal by Mr Nagarajan against the decision of the Employment Tribunal rehearing his case in June, September and November 1998. The decision of the tribunal at the end of that hearing was that the appellant was not victimised because he accused the respondents of unlawfully discriminating against him upon the grounds of his race.

	Mr Nagarajan says that he was victimised because he accused members of the respondents’ staff of discriminating against him because of his race. The respondents said before the tribunal that in fact his employment was terminated because it was found to be unsatisfactory after a six month probationary period. 

	The case had gone back to the Employment Tribunal following an appeal against an earlier hearing which had been upheld by the Employment Appeal Tribunal. 

	The facts of the matter are that Mr Nagarajan commenced employment as a probationary revenue protection inspector on 27th February 1995; that employment was terminated on 29th July 1995. A Mr Hissey was his line manager and Mr Standring was the senior protection inspector, while Ms Berry was an officer employed in the personnel department who was responsible for executing the decision to terminate.

	During the course of the employment there were from time to time complaints made about the way in which Mr Nagarajan carried out his duties, which included collecting unpaid fares from passengers who boarded trains without obtaining a ticket. He was of the view that they were trying to avoid payment, and if so, he was authorised to issue a penalty ticket. 

	On 16th May 1995 the appellant had been assessed by Mr Hissey who pointed out certain shortcomings and referred to complaints which had been received. Mr Hissey did not give details of the dates or the incidents of the complaints Mr Nagarajan thought that this was unfair and accused Mr Hissey of being a racist and subsequently wrote to Mr Standring setting out the complaints about the assessment interview.

	In Mr Nagarajan’s IT1 he gave full particulars of the contention that he was being victimised in the sense that he was being dismissed in circumstances suggesting that he was picked on because he had made complaints against his superiors and they were behaving in a racist way towards him.

	Those are the agreed facts. Mr Nagarajan has submitted a detailed Notice of Appeal which has been amplified by Ms Hogg, on his behalf, in her submissions to us today.

	Ms Hogg makes four points. The first is that the tribunal fell into an error of law when they expressed matters as they did in paragraph 9 of their decision and in asking itself the following questions:

“i)	Did the Respondents treat Mr Nagarajan less favourably than the control group?
ii)	Was there a difference in race? and
iii)	Was that treatment on racial grounds?”

Ms Hogg submits that the correct test should be whether there had been a difference of treatment because of the protected acts?

	In our view,  Ms Hogg’s test is satisfied by the tribunal in the course of its decision at paragraphs 18 and 19. The tribunal says:

“18	In the course of the assessment interview on 16 May after being told to improve his performance and attitude towards his colleagues and the public, Mr Nagarajan accused Mr Hissey of being a racist. The Tribunal finds that the allegation was put in writing to Mr Standring by Mr Nagarajan the following day and this constitutes the protected act for the purposes of Section 2(1)(d) of the 1976 Act.
19.	On 18 May 1995 an appraisal interview took place which Mr Nagarajan attended together with his trade union representative Mr Fisher. The interview was conducted by the First Respondent who had before him several complaints from Mr Nagarajan’s colleagues. In the course of the interview Mr Nagarajan demanded sight of the complaints but was refused on the basis that they were confidential matters. Mr Standring declined to convert the interview into a formal disciplinary one at the request of Mr Nagarajan. Thereafter, on 22 May Mr Nagarajan wrote to Mr Standring and the Trains Manager of North London Railways (as they then were), bringing to their attention that he had an outstanding grievance. The essential thrust of it was that he was not being given an opportunity to meet the allegations that were being made against him by his colleagues. However, the context of the complaint was significant as he makes it clear that “complaints could be misunderstood as racially motivated since the majority of those who made allegations against me are of different race”. The Tribunal finds therefore that the pursuit of a grievance aired within the context of racially motivated complaints is capable of constituting a protected act for the purposes of Section 2(1)(d) of the 1976 Act.”

Paragraph 20 summarises the conclusions as follows:

“20	The Tribunal has concluded therefore that the Applicant is entitled to have his case considered in respect of the letters of 17 May 1995 and of 22 May 1995.”

Similarly, elsewhere in the decision at paragraph 22(v) the tribunal says this:

“The Tribunal has looked carefully for any difference in treatment between Mr Nagarajan and his non-Asian colleagues in general in order to determine whether or not one can carry forward that analysis and apply it to the control group. The only specific incident that arises from an examination of the evidence concerns the matter involving two white colleagues who made criticisms of procedures that were referred to within the body of their assessment reports. These two white colleagues did not have the criticisms held against them as being detrimental to the successful completion of their probationary period. The Tribunal has looked into this matter in order to ascertain whether or not there is any potential basis for the drawing of inferences. However, the Tribunal has concluded that in the cases of Mr Rocket and Mr English, they are not able to do so. In neither of these two cases was there any indication that the two individuals were unwilling to accept advice or were stubbornly clinging to their view as being the better one. On the evidence, it appears clear from the reaction of Mr Nagarajan to Mr Khan’s advice at the end of the additional assessment period that Mr Nagarajan would not accept that he was mistaken about an issue, even when Mr Khan’s view was corroborated by another senior official. Under the circumstances therefore, there is no potential for seeking to draw an inference that might have any bearing upon an inequality that might exist between the treatment of Mr Nagarajan and the treatment of the control group.”

We shall refer later to Mr Khan’s assessment but finally, so far as the assertion of an error of law is concerned, at the last part of paragraph 22 the tribunal say this:

“... In the light of this finding, based upon the Tribunal’s acceptance of the Respondents’ explanation for Mr Nagarajan’s dismissal, the Tribunal is satisfied that there is an innocent, non-discriminatory reason for it. This precludes an inference that Mr Nagarajan’s dismissal was because he had performed the protected acts.”

It seems to us, therefore, quite clearly that whether they expressed it accurately or not, in the forefront of the tribunal’s mind was the correct test, namely whether Mr Nagarajan was differently treated because of the protected acts. They found no such difference or no evidence of such a difference.

	The next ground of appeal is that found in paragraph 6 (iii)(a) and (b) of  Mr Nagarajan’s Notice of Appeal. He complains that the tribunal failed to establish in evidence those relevant matters upon which the Employment Appeal Tribunal gave guidance in remitting the complaint to them, in that (a) they failed to establish in their findings the reason why the respondents failed to give the applicant any opportunity to contest those allegations upon which the respondents did act to dismiss the applicant; and (b) they failed to establish in their finding why the respondents failed to give the applicant a fair warning that his continued employed was in peril.

	It seems to us quite clear that the importance which the tribunal attached to the complaints which had been levelled against the appellant was not the individual complaint but the pattern that was established by them. That seems to us to be clear from what is set out in the decision at pages 13 and 14 of our bundle. Paragraph 21(iv) sets out:

“The nature and quantity of the complaints received by the First and Third Respondents in the course of Mr Nagarajan’s employment was such as to establish a pattern of behaviour which was inconsistent with satisfactory completion of the six month probationary period. The complaints clearly demonstrated a lack of respect for colleagues within his peer group and of management who were in a senior position to him. Furthermore, the Tribunal finds that the First and Third Respondent were entitled to conclude that Mr Nagarajan was an employee who exhibited an inability to accept constructive criticism and/or direction.”

At paragraph 22(ii) the tribunal says, dealing with the question of pattern again:

“... the content and pattern of the reports which emanated from his colleagues and managers indicated that his behaviour was unsatisfactory in as much as he was unwilling to accept advice and instruction. As for members of the public, their complaints may have arisen as a result of what Mr Nagarajan perceived to be his diligent behaviour. In contrast, however, it is clear from the evidence that the Respondents were entitled to form the view that there was a sufficient pattern of complaint from the general public to confirm in the Third Respondents’ eyes that Mr Nagarajan was an officious individual who had misconstrued his essential role as a Revenue Inspection Officer.”

Pausing there, those are findings of fact behind which this tribunal is not entitled to go, and they are illustrations of the emphasis placed by the tribunal, not upon the individual complaints, but upon their importance as a pattern.

	So far as the second matter of complaint, namely the failure to establish in their findings why the respondents failed to give Mr Nagarajan a fair warning that his continued employment was in peril, that is dealt with by the tribunal in paragraphs 16 and 17 with the question of complaints. Paragraphs 17 reads:

“This was not a disciplinary hearing and was not subject to the written disciplinary procedures of the Respondent Company. ...”

Therefore questions of warnings and other disciplinary matters did not apply. In so far as there was no procedure set down for dealing with probationers, it is stated in the decision that the procedure which was followed was one which had been followed for the previous eight years. The question of the absence of any regulation or procedures was set out in paragraph 22(vii) of the decision:

“... Much reliance has been placed by Mr Nagarajan upon his previous experience in the railway industry and upon the nature of the disciplinary procedures that apply to the Respondent Company. Again, at the risk of repeating itself, the Tribunal has reminded itself that, on the evidence, the testimony of the Respondents’ witnesses has established that the probationary staff are treated differently to the full time staff who have permanent contracts of employment. It may well be that the treatment probationary staff receive is not satisfactory or consistent with sound industrial practice and procedure. For example, the procedures are not written down and may be regarded as being inconsistent with the spirit of the ACAS Code of Practice. However, there is no convincing or credible evidence before the Tribunal that proves directly or inferentially that Mr Nagarajan was treated differently as a result of performing the protected acts. If the procedures do not accord with the tenets of the laws of natural justice but are applied equally and consistently to all in the control group then Mr Nagarajan is not in a position to discharge the burden of proof that he must shoulder. That being the case there is an absence of evidential material to prove that the procedures which applied to Mr Nagarajan were abused with a view to victimising him and eventually dismissing him.”

The tribunal continues at 22(viii):

“The Tribunal is satisfied on the evidence that Mr Nagarajan was not confirmed in his appointment because the Respondents concluded that his attitude to a post which involved interaction between himself on the one hand and the general public and his colleagues on the other, was unsatisfactory. ...”

Ms Hogg’s point was that there was no factual basis for the statement in the tribunal’s decision that:

“ ... Having said all of that, however, the Tribunal is satisfied on the evidence that all probationers were treated in exactly the same way. ...” [see paragraph 22(iii)]

We think that the riposte to that complaint is contained in the rest of paragraph 22(iii) itself:

“Mr Nagarajan has not established that the procedures followed by the Respondents were applied to him because of the protected acts. The complaint and shortcomings were not disciplinary matters. This is not a case of unfair dismissal. The complaints and the shortcomings which attracted criticism were taken into account half way through the probationary period and at the very end of it. The assessments were designed to assess the capability of Mr Nagarajan to actually perform the job. The Tribunal has been impressed by the fact that the Respondents went to the additional trouble of providing a further assessment from Mr Khan in order to allay Mr Nagarajan’s fears and to conduct further enquiries when Mr Nagarajan appealed Ms Berry’s decision. [In passing, Mr Khan was of the same ethnic origins as Mr Nagarajan.] However, although performance in respect of the additional assessment was considered to be satisfactory, that additional assessment led to a further criticism which was consistent with some of the complaints that the Respondent had received in the past. In the course of the assessments, therefore, Mr Nagarajan was found wanting but he was not being disciplined for committing any offences as such. Furthermore, we find as a fact that the poor performance procedure was not applied to Probationers.”

	At the end of the day, having considered exhaustively everything Mr Nagarajan put forward on his own behalf and everything that Ms Hogg has amplified for him, we have come to the conclusion that there is no reasonable prospect of success for this appeal if it were to proceed to a full hearing. It appears to us that all the matters of complaint are in fact, upon a full analysis of the decision in the context of what was required of the Employment Tribunal by the Employment Appeal Tribunal, without foundation. Accordingly, this appeal must be dismissed.