Hoverspeed Ltd v Pillay [1997] UKEAT 302_97_0306 (3 June 1997)

JUDGMENT PRELIMINARY HEARING © Copyright 1997 APPEARANCES For the Appellants MR P NICHOLLS (of Counsel) Cripps Harries Hall Seymour House 11-13 Mount Ephraim Road Tunbridge Wells Kent TN1 1EN JUDGE J HULL QC : This case is in our list under our Practice Direction to see whether we can, with Mr Nicholls' assistance, discover any point of law which would allow it to proceed to a full hearing. The principal facts are that Mr Andrew Pillay, who is a young man of about 25 years of age, was employed by Hoverspeed Ltd, the well known operator of hovercraft from Dover and Folkstone, on a temporary basis. The employers, not surprisingly, had a good deal of seasonal employment, and Mr Pillay was first employed on 14 March 1996; first as a Customer Service Agent, as it was called. He began his duties, after some training, on 29 March 1996. On 14 April 1996, it was discovered that the requirements of the employers had changed and they wished him to change his job, and he did change his job from that of being Customer Service Agent to being a marshal for vehicles and people going on to the hovercraft and a passport checker, in which, apparently, he performed satisfactorily. He was told that his hours would be reduced at one stage, because there was a lesser demand for his services than had been expected and then there came (there seems to be no doubt about this) what I hope I can call a redundancy situation, in May, and the question of choosing somebody to be made redundant arose. The pool was reduced to three. There were two white men and Mr Pillay, who is described as a Franco-Mauritian; he is not a white man and he was the third man in the pool. He was the one who was chosen for redundancy. He complained to the Industrial Tribunal that he had been discriminated against on the ground of his race. Needless to say, of course, his period of employment was quite insufficient to entitle him to other relief that he might have been entitled to for unfair dismissal, or redundancy money, or anything of that sort. The Industrial Tribunal sat at Ashford in Kent under the chairmanship of Miss Wallis. They devoted three days to the actual hearing of the evidence on 26 September, 12 and 13 November 1996 and they considered the matter further in chambers on 6 December and they gave their decision on 20 January 1997. They found that Mr Pillay had been discriminated against on the basis of his race and that, of course, is unlawful discrimination. There is an appeal to us. Mr Nicholls puts it shortly and forcefully as follows. He says that the Industrial Tribunal did not tell the employers why they had lost the case and the employers are entitled to have the reasons of the Tribunal. Here, it is true the Industrial Tribunal did set out reasons in which they described the unsatisfactory work carried out by the employers in choosing one of the people for redundancy. They found, it is clear, that there was incompetence here, to say the least of it. Perhaps one should emphasise the words "to say the least of it". They then went on to say that they rejected the explanation of the employers for what had happened in choosing Mr Pillay for redundancy, and they felt able to infer that, therefore, Mr Pillay was discriminated against on the ground of his race. That, says Mr Nicholls, is quite insufficient. They should have set out the basis, their findings of fact on which they reached the conclusion, the inference, that there had been racial discrimination; there was no direct evidence of discrimination, apart from the fact that Mr Pillay was chosen and the others were not. To see the justice of this we have to look at the reasons given by the Industrial Tribunal. On the face of it, it is a fully stated and careful decision. After setting out some of the facts, which I have referred to, they refer to the evidence given to them by some of the management team of the employers and they go on to say, when discussing how Mr Pillay had been chosen: "It was accepted by Miss Thomas, [she was one of the Directors] when cross-examined by Mr Pillay, that the other two operatives in the pool [the two white men] had no knowledge of the computer system at all, as they had received no training on that, and his own knowledge of that was gained from his [Mr Pillay's] customer services training. It, therefore, became increasingly unclear exactly how Mr Pillay's marks had been awarded, but he scored 1 under 'knowledge of systems' whilst the other two scored a maximum 5. Under 'passport checking' he scored 2, again compared to 5 each for the other two." So they there record that the performance of the two white men was apparently quite perfect; Mr Pillay's, on the face of it, gravely defective. The Tribunal continue: "We also found that although there was a heading 'time-keeping' and that this is a fairly usual criterion for redundancy selection, the timesheets held by Personnel were not consulted when scoring under this heading. We found that the scoring was haphazard and based largely on Customer Services Directors relying on reports from their senior staff, and feeding this back to Mrs Gajic. A further example of this occurred under the heading 'attendance'. The evidence was that Mr Pillay was marked down on this because on six occasions he had swapped his rostered duty with another member of staff. However, the other two members of staff, who had also swapped shifts, were awarded full marks under this heading, and Mr Pillay had never been told that this was an unacceptable practice. The Respondent's evidence was that the person with whom Mr Pillay had swapped duties had always arrived for duty and so no problem had been created by this practice. There was also, however, an incident when Miss Golding [another Director] had to speak to Mr Pillay about being absent from the Port during a break. This incident was agreed by both parties and we found it to be relevant under 'attendance'. However, Mr Pillay claimed that he had not been told about leaving the Port during breaks, until this warning, and that he had seen others go out, for example to collect takeway food. His score under this heading was 3, the others 4 and 5 respectively." They then go on to reject certain allegations of a serious sort made by Mr Pillay suggesting, among other things, that an alleged equal opportunities policy might simply have been produced after the matter was raised, simply for the benefit of the Tribunal and not being a genuine policy at all. So they found those matters in favour of the employer. They then went on to their statement of the law and on this, of course, we have to look very carefully at what they said. They said: "The burden of proof in such cases [after setting out the provisions of the Race Relations Act 1976, so far as is relevant] is on the Applicant. He must show, on a balance of probabilities, that he was treated less favourably than other people [of different race]. Once he has established that, we may look to the Respondent for an explanation for his actions. We are able to draw inferences from primary facts. This does not lift the burden of proof from the Applicant." And they come to their conclusions: "We concluded that the redundancy process was faulty. There was no consultation with the candidates in the pool, and the criteria were poorly defined, misinterpreted and scored in a slapdash manner. In the light of those faults, we understood entirely Mr Pillay's concern that he had been badly treated by the Respondent." Pausing there, Mr Nicholls says to us: if this was a case of unfair dismissal there really would be here no defence for the employers. It was perfectly obvious that such a slapdash system would leave them with no platform to stand on, on an averment of unfair dismissal. But of course, the question was not whether there was unfairness. The question was, whether that was on the ground of race. The Tribunal continue: "We had to decide, however, whether he had received less favourable treatment than his two white colleagues." They were aware that the Respondents denied any discrimination, but it was not necessary to show malice or prejudice in these cases. They also noted that, to some extent, Mr Pillay's colleagues were treated in a similar fashion. For example, they too were not consulted about the situation; that of course, is the white colleagues. However, in the scoring of the criteria the Tribunal found that Mr Pillay was less favourably treated, particularly when considering the definition of passport checking and knowledge of systems. This worked against him by reducing his score, thus leading to his dismissal. Ostensibly, as they had said above, there were no sufficient reasons for marking him down and treating his white colleagues as quite perfect in these matters. They go on: "We were not satisfied by the Respondent's attempted explanations. From the facts which we had found, we were prepared to draw the inference that the reason for Mr Pillay's less favourable treatment was his race." What more were they expected to say? Mr Nicholls says they should have set out the facts from which they drew the inference, or were prepared to draw the inference of racial discrimination. But they had found that, apparently without any justice, he was marked down, whereas his white colleagues were not; and that caused them surprise on the facts which they heard about in their long hearing. Plainly they thought there was no justification for that. The explanation put forward was, in part at any rate, a "slapdash approach". But that, of course, did not by itself prove the case. What more were they expected to say? They had to listen to the explanations. The explanations were virtually saying that it was a "slapdash approach". "We had no proper system for this or that, we had no system for consultation" and so on. Did they accept that? Did they accept that this was simply a case of an employer who was rather casual about these matters, or did they not? They said they did not. Mr Nicholls is quite right to say that this is a very serious matter. Of course it is, for the employers. We have asked ourselves, "Is the Tribunal obliged to go further and say, we found these witnesses dishonest, shifty, obviously guilty about the matter" and so forth? We think that no tribunal, indeed, no court, is bound to make such observations. It is enough that, having listened carefully to the explanation (and certainly they must have listened carefully here) they are not satisfied with it. Here, the Tribunal had clear evidence of discrimination, if they were able to draw that inference, and we think they were not under any obligation to set out any further facts than those which they did. It is always tempting, in a case like this, to say, "Well we would rather they dotted more i's and crossed more t's; we should have liked a fuller statement of facts" and so forth. And also, another temptation, which we must beware of, is to say, "We think looking at it on paper we might have reached a different conclusion"; that is nothing to the point. The question for us is whether this Tribunal were entitled to reach the conclusion which they did, on the facts which they have stated, or whether it is, at any rate, arguable as a matter of law that they have insufficiently set out the basis of their decision. We have come to the conclusion that it is not fairly arguable; that is the conclusion of all of us and we are therefore obliged to dismiss this appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII