Appeal No.	 EAT/927/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 October 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MR J R CROSBY
LORD GLADWIN OF CLEE CBE JP

MR J KONTOR-MANU	APPELLANT

DIRECT TABLE PRODUCE CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J WIGGINS
(Solicitor)
Instructed By:
Tottenham Legal Advice Centre
754 - 758 High Road
London
N17 0AL	
For the Respondent	MR S PERHAR
(of Counsel)
Instructed By:
Messrs Barnes & Partners
Little Park Garden
Enfield
Middlesex
EN2 6PQ	

JUDGE A WAKEFIELD:

1	This is an appeal by Mr Jeffery Kontor-Manu against a decision of an Employment Tribunal sitting at Stratford by which his complaints of unfair dismissal and race discrimination were dismissed.

2	The background facts, as found by the Employment Tribunal, were that the Appellant had been summarily dismissed on 15 November 1999 for failing to be at his post on the production line at the time required by his contract.  This failure followed a long history of lateness and absenteeism without, from the Respondent’s standpoint, any justification.  

3	The Appellant had been given a succession of warnings with a final written warning on 30 June 1999.  The dismissal was effected by Mr Riccardi, the Appellant’s line manager who, finding the Appellant by the lockers ten minutes after the Appellant’s time to start work, dismissed him on the spot.  It was alleged by the Appellant that Mr Riccardi had then sworn at him saying “black bastard, you stupid haven’t you got a brain”.  This remark was the basis of the race discrimination claim.

4	The findings of the Employment Tribunal on the claim of race discrimination are set out in paragraph 20 of their Decision, in this way:

“The issue of discrimination on the ground of race turned upon whether the Tribunal accepted the evidence of Mr Kontor-Manu and Mr Anderson that Mr Riccardi called him “a black bastard”.  This was a serious matter which inevitably caused the Tribunal concern.  Mr Riccardi managed a predominantly black workforce.  There had been no previous complaint against him and it seemed to us that if he had used such language it was likely that there would have been a strong reaction among the workforce.  There was no evidence of that, or indeed to any complaint to senior management.  Taking those matters into account, and having seen and heard Mr Riccardi, the Tribunal accepted on balance that the words alleged were not used.  It, therefore, dismissed the complaint of discrimination on the ground of race.”

This finding is challenged in the amended Notice of Appeal as follows:

“The Employment Tribunal misdirected itself at paragraph 20 of its decision in that it made evidence of strong reaction against racial abuse by the workforce a prerequisite for a finding of race discrimination.  Further in reaching its decision at paragraph 20 as to whether the Applicant had been called a ‘black bastard’, the Tribunal took into account a wholly irrelevant factor.  It was not necessary or relevant for the Applicant to show whether there had been a previous complaint against Mr Riccardi to demonstrate that the racially abusive remark had been made on this occasion.  Further the reaction of the workforce on other hypothetical unspecified occasions was wholly irrelevant as to whether the Applicant had been racially abused on this occasion.  The Tribunal made an assumption as to the reaction of the workforce without evidence.  The only member of the workforce who was present at the Tribunal:  Mr Anderson confirmed the Applicant’s evidence that he was called a ‘black bastard’.”

5	We consider that this challenge misunderstands the approach of the Employment Tribunal and is misconceived.  The Tribunal were faced with contradictory evidence from the two sides as to whether or not such a remark had been made.  In seeking to resolve that conflict they took into account not only their own assessment of the credibility of the witnesses but also the past behaviour of Mr Riccardi as regards any previous complaint of such behaviour, of which there was none.  This appears to us to have been a proper approach and the finding that no such remark, as alleged, had been made cannot in our view be said to have been contrary to the evidence or perverse.  The appeal on this ground fails.

6	On the unfair dismissal aspect of the claim the Employment Tribunal concluded as follows, in paragraph 19 of their Decision:

“In considering whether the dismissal was fair or unfair, the Tribunal was concerned by what it perceived as the failure of the Respondent to follow correct procedures, in particular the failure to hold a disciplinary meeting and to tell Mr Kontor-Manu of his right of appeal.  However, we had to take into account Mr Kontor-Manu’s record of absenteeism and lateness.  He had been warned about this.  The record was very bad and no proper reason was given, either to the Respondent or to the Tribunal, for his persistent lateness.  It seemed to the Tribunal that, on this occasion, even if proper procedure had been followed the outcome would have been the same.  In these circumstances it did not find that the dismissal was unfair.”

7	This analysis in our view directly falls foul of the decision of the House of Lords in the case of Polkey v A E Dayton Services Ltd [1988] ICR 142.  At page 163 of that report Lord Bridge of Harwich said this:

“If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken.  On the true construction of section 57(3) this question is simply irrelevant.  It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with.  In such a case the test of reasonableness under section 57(3) may be satisfied.”

8	The Employment Tribunal therefore were wrong in law to reach the conclusion as to unfair dismissal in that way.  The appeal must succeed on that aspect and the matter must be remitted to a fresh Employment Tribunal for a re-hearing on the unfair dismissal aspect of the claim.