Appeal No.	EAT/1047/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 January 1999

Before
HIS HONOUR JUDGE C SMITH QC
MR R JACKSON
MISS D WHITTINGHAM

MR J ALLOTEY	APPELLANT

LONDON BOROUGH OF RICHMOND UPON THAMES	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR R A GERMAN
(Lay Representative)	

	JUDGE C SMITH:		This is an application for leave to proceed to a full hearing of an Appeal by Mr J Allotey against a decision of an Industrial Tribunal, held over some eight days in September 1997 and March 1998, of which extended reasons were sent to the parties on 5 June 1998, whereby the Industrial Tribunal unanimously held that the Applicant’s claim for racial discrimination should be dismissed.

	We have had the benefit of a forceful argument today from Mr German, the Lay Representative of the Applicant, and we have carefully considered everything he has said to us and also the skeleton argument which he has placed before us; included also amongst the documents he placed before us was the Notice of Appeal and also the affidavit which he swore on behalf of the Applicant in this case.   We have considered all of that material and we have reminded ourselves that the Applicant only has to show an arguable ground of appeal to be allowed to proceed to a full hearing.

	The decision of the Industrial Tribunal is set out over many pages, as one would expect after such a lengthy hearing.   It is largely self-explanatory.   Reference should be made to the decision itself for the details of the case with which the Industrial Tribunal had to deal.   However we consider it necessary to summarise the matter only to the extent necessary for us to be able to address the potential grounds for appeal which are put forward by Mr German.   

	As appears from the Industrial Tribunal’s decision and the findings which they made the Applicant had been appointed as a day centre manager of the Avenue Centre, a day centre ultimately under the responsibility of the London Borough of Richmond upon Thames - the Respondents to this application - providing day care places for about 120 vulnerable adult clients with learning difficulties.   The appointment of the Applicant commenced on 1 April 1996 and it was a condition of his employment that he should be on probation for the first six months, i.e. until 30 September 1996.   The Applicant is ethnically a black African.   

	The Applicant was dismissed with immediate effect on 30 September 1996, the last day of his probationary period.   As is set out in the Industrial Tribunal’s decision, directly junior to the Applicant was a centre management team, a CMT.   Included on the team were Lindsay Warner, Lucy Harrison and Jane Tunnicliff.   On 1 August 1996 they communicated concerns and reservations about the Applicant’s performance to Mr Harty, the Applicant’s line manager, who had also been the chair of the panel which appointed the Applicant in the first place.

	By 14 August 1996 their concerns had been reduced to writing.  On 18 September 1966, what the Industrial Tribunal described in paragraph 13 of the decision as ‘the most important piece of evidence’ before them occurred, if we may put the matter in that way.   That was, a meeting chaired by Mr Harty at which the Applicant was assisted by Mrs Gill from the Black Workers Support Group of Richmond.

	The Industrial Tribunal found as facts in paragraph 13 that at that meeting the Applicant had admitted various matters, including borrowing cash from an Avenue Centre cash fund, purchasing weekly bus passes other than in accordance with procedures, asking junior staff to purchase duty free cigarettes and alcohol for himself and a friend of his, sometimes leaving the centre early on Fridays, failing immediately to report damage that had been caused to the centre’s minibus and other matters that are referred to in that paragraph.

	The Industrial Tribunal then analysed and evaluated the various matters of concern which the Applicant had admitted, in paragraphs 14 to 24 inclusive of their decision.   They then concluded, in paragraph 24, following the approach in the case that had been cited to them of Martins v Marks and Spencer Plc and leaving on one side, as the Industrial Tribunal did at that stage, the alleged comparators relied upon by the Applicant, that the Applicant had been treated no less favourably than the Respondents would have treated a white centre manager who had behaved similarly to the way in which the Applicant had behaved.   This was the finding of the Industrial Tribunal up to the date of the meeting of 18 September.

	The Industrial Tribunal then went on to consider at that point, in detail, the various comparators which were placed before them, as can be seen from paragraphs 25 to 29 of their decision.   They concluded that they were all too different on their facts to be of assistance or relevance to the issues which the Industrial Tribunal had to decide.   In paragraphs 30 to 38 the Industrial Tribunal considered and rejected the suggestion persisted in at length in cross examination that members of the CMT conspired and colluded to bring about the downfall of the Applicant on racist grounds.

	The Industrial Tribunal went on, in paragraphs 39 to 54 of the decision exhaustively and closely to analyse and evaluate the precise procedure followed by the Respondents leading up to the eventual dismissal of the Applicant.   They concluded that there was no element of discriminatory motive based on race in that procedure.

	Finally the Industrial Tribunal expressed its overall conclusions, particularly in paragraph 60 of their decision.   We note that the Industrial Tribunal took into account the classic guideline decisions of King v Great Britain - China Centre and Zafar v Glasgow City Council and the Industrial Tribunal returned to the question of comparators when they were dealing with the procedure adopted by the Respondents, particularly in paragraph 57 of the decision.

	It is against that background that we come to consider the grounds sought to be placed before us by way of appeal.   The first and perhaps main ground of appeal is an assertion that the terms of the decision itself demonstrate apparent bias on the part of the Industrial Tribunal.   We say straight away that in our judgment there is no evidence whatsoever here of actual bias on the part of any members of the Tribunal and Mr German made clear that that was not the basis upon which he was seeking to put this particular argument.   The issue for our determination is whether there is any arguable ground for there being any kind of appearance of bias from the way in which the decision is expressed.

	The test appears to us to be whether the disinterested reasonable observer, wholly unconnected with either of the parties, be that person a black person or a white person, would, upon reading the decision, form the view that it gave an appearance of a closed mind on the part of the Tribunal or some kind of unreasoning prejudice against the Applicant or in favour of the Respondents.   That is the test in our judgment.   We have taken into account very much the affidavit sworn not by Mr Allotey, the Applicant, himself, we observe, but by Mr German, the adviser to the Black Workers Support Group who represented him with regard to the allegations of bias.    We have in mind everything that is set out in the affidavit.

	We can deal with the matter in this way.   In our judgment the observations by the Tribunal at paragraphs 23, 35 and 36 of their decision, and the way in which those observations are expressed relating to their own experience in sitting on Industrial Tribunal cases of all kinds together with their self-examination at paragraph 36, again based on their experience of sitting on Tribunal cases, is justifiable.   In our judgment the Industrial Tribunal were justified, as triers of fact in this very difficult and sensitive area of allegations of discrimination based on race, to make an appraisal of the evidence before them and, in particular, of the conduct of the Applicant and, indeed, all the issues before them in the case against the background of the previous cases they had tried and to have tested their evaluation of the issues and the evidence before them against the benchmark of their industrial experience.   Further, in our judgment, it was proper for the Industrial Tribunal to analyse and evaluate their own reactions to the Applicant’s behaviour specifically from the angle of race in order to satisfy themselves they were not setting a higher standard for a black manager than they would expect from a white manager.

	Further, with regard to paragraph 36, it must be remembered that the Industrial Tribunal had to make a very careful assessment in respect to the allegation made, on behalf of the Applicant, that he was cold-shouldered, or ignored, or unfairly the subject of criticism or the subject of some kind of conspiracy from the CMT or even more junior employees within the centre.   In our judgment, in making their assessment of that, the Industrial Tribunal were justified in taking into account the inevitable feeling of unfamiliarity or newness on both sides which may be wholly unrelated to any racial motivation.   So we can see no grounds for any arguable case on bias resulting from those paragraphs in the Industrial Tribunal’s judgment.   
	Nor, with respect, can we accept that there is any reasonable ground for asserting bias in any of the matters raised in paragraphs 5 to 8 of Mr German’s affidavit.   We consider that the Industrial Tribunal were entitled to make the comments that they did, particularly in paragraphs 48 and 49 of their decision, with regard to the procedure followed by the Respondents during the last few days of the Applicant’s employment and the difficulties encountered by the Respondents resulting from the non-attendance of the Applicant at the proposed meeting arranged for 27 September 1996.   

	We reach exactly the same conclusion with regard to the criticisms made in paragraph 9 of the affidavit with regard to the Industrial Tribunal’s reasoning and findings in paragraphs 42 to 45 of their decision.   In our judgment those criticisms of the Industrial Tribunal’s approach are quite unfounded.   The Industrial Tribunal had to reach conclusions on all of those matters in order to make an evaluation and judgment of the motives of the employers, in proceeding in the way they did, in order to reach a conclusion as to whether there was any discriminatory motive based on race.

	Nor do we find any indication of any bias in the way the Industrial Tribunal expressed themselves in paragraph 64 of the decision.   We had not had the experience which the Industrial Tribunal had of sitting over an eight day period and listening to the way in which the case had been presented and dealt with on behalf of the Applicant.   That was a matter particularly within the knowledge of the members of the Tribunal sitting and is very much a matter for them and not for us.   Suffice it to say that we, having carefully considered the arguments in relation to the criticisms of that paragraph, note and accept the Chairman’s comments that the Industrial Tribunal’s intention was to give guidance for the future and we do not consider that any of the comments made in paragraph 64 could be regarded by a reasonable, disinterested observer as being in any way intimidatory or insulting to Mr German or the group which he represents.

	So for those reasons the argument relating to bias is rejected.   We do not find any grounds for any arguable point of appeal on that point.

	The next ground of appeal relied upon, as it was put by Mr German in his oral argument, was to the effect that the bias displayed by the Industrial Tribunal had spilled over into their approach to the comparators; they had misdirected themselves in relation to the comparators that were put forward.   We say first of all that we reject that there was any appearance of bias let alone actual bias on the part of the Tribunal, even arguably, for the reasons we have already set out.   But we have considered with care whether their approach to the comparators was a proper one and we are quite satisfied that the comparators were fully and fairly dealt with in the decision in paragraphs 25 to 29 and paragraphs 51 to 53 respectively of the decision.   The Industrial Tribunal were fully entitled to conclude that none of those comparators threw any light at all on the issues which they had to try since they were all concerned with quite different factual circumstances.   So we find that we must reject that ground of appeal.

	The final ground of appeal is based on the proposition that the decision made by the Industrial Tribunal was totally wrong and mistaken with regard to the findings the Industrial Tribunal made in paragraph 13 through to paragraph 19 of their decision.   In our judgment the Industrial Tribunal were entitled and, indeed, it was necessary for them to make findings as to how they characterised, assessed and evaluated the conduct of the Applicant as admitted to his manager at the meeting of 18 September 1996.   In our judgment it was essential for the Industrial Tribunal to deal with those matters and make findings in relation to them in order to judge whether there was any evidence, or any inference that could be drawn, that the Respondents had treated the Applicant less favourably than they would have treated a white manager in a similar situation since that is the first of the two-limbed test that has been re-iterated as being the correct test in the Marks and Spencer case.   In our judgment, what this argument comes to is an attempt by the Applicant, through Mr German, to obtain a re-hearing of this case on the basis that the decision is one with which the Applicant does not agree.   It is put quite clearly in the penultimate paragraph of the skeleton argument, in effect, that the all-white, all-male Tribunal could never have come to anything other than a markedly biased decision. That is really the effect of what is being said at that point in the skeleton argument.   We find that we must reject that approach.

	For those reasons we have concluded that this was a careful, well-reasoned decision, not revealing any error of law or any bias.   Accordingly this application must be dismissed.