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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wandsworth Borough Council v Warner [2005] UKEAT 0671_04_0607 (6 July 2005) URL: https://www.bailii.org/uk/cases/UKEAT/2005/0671_04_0607.html Cite as: [2005] UKEAT 671_4_607, [2005] UKEAT 0671_04_0607 |
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At the Tribunal | |
On 5 and 6 April 2005 | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D BLEIMAN
MR D G SMITH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MR JOHN CAVANAGH QC (of Counsel) Instructed by: Messrs. DMH Solicitors 40 High Street Crawley West Sussex RH10 1BW |
For the Respondent | MR NICHOLAS TOMS (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW |
SUMMARY
Race discrimination -and- Unfair Dismissal
Adequacy of reasons. The Employment Tribunal substitution of own view (unfair dismissal and direct race discrimination). Perversity. Delay by the Employment Tribunal in promulgating decision.
HIS HONOUR JUDGE PETER CLARK
Factual Summary
(1) Ms Essop. She alleged, first, that on 16 November 2000 she and the Claimant passed each other and "he lifted both arms up and out and touched her on the arm in an intimidating fashion". Her response was to say "Sorry Kelvin". Secondly, that on 24 November 2000 the Claimant, in the Tribunal's words, "invaded her personal space by brushing the left side of his body against her as he reached with his right hand for a piece of stationery from the booth occupied by the person seated next to Ms Essop".
(2) Mr Lord, a Manager, that the Claimant had deliberately bumped into him on 28 November 2000.
(3) By Mr Murphy, another Manager, that the Claimant had bumped into his shoulder, also on 28 November 2000.
The Claimant's Case
In relation to racial discrimination:
"(1)The Applicant (Claimant) denied any wrong doing. He believed that the allegations by Mr Lord, Mr Murphy and Ms Essop would not have been made if he had been white.
(2) The Applicant believed that the investigation against him was carried out with undue enthusiasm and vigour by Ms Smith and Ms Murphy-Chen and Ms Blan. The Applicant believed that the investigation was carried out with a view to recommending his dismissal and was not approached by the investigators in an objective way. The Applicant believed that this was due to his race. In similar circumstances, the Applicant and Ms Thompson's complaint against Ms Essop was not investigated with the same vigour and enthusiasm.
(3) A white colleague, Tommy Regan, had assaulted Mr Lord by grabbing him around the neck. This incident was far more serious than any allegations made against the Applicant, yet no investigation had been carried out against Mr Regan and Mr Regan was not suspended, dismissed or in any other way disciplined.
(4) The Applicant believed that when the Investigators discovered that Ms Davis' allegations against him were unfounded, the investigators tried to substantiate other allegations about his failure to disclose his relationship with Ms Davis. The Applicant believes that this would not have been done if he had been white.
(5) The manner in which the Applicant had been treated throughout the period from November 2000 to the way in which the investigation against him was carried out, to his dismissal, amounted to race discrimination. The Applicant believed that he was stereotyped into an aggressive violent black man."
"(1) That no reasonable employer would have reached the conclusion that the Applicant was guilty of any misconduct.
(2) That the Respondent failed to carry out a full and proper and objective investigation.
(3) That even if the allegations of Mr Lord, Mr Murphy and Ms Essop were true, dismissal was not a just sanction in all the circumstances."
The Tribunal's Reasoning
Racial discrimination
(1) Less favourable treatment
Unfair Dismissal
The Appeal
(1) The Tribunal's Reasons
(2) Substitution
(3) Perversity
(4) Delay
In advancing that formulation of the first ground of appeal Mr Cavanagh relied on the Employment Appeal Tribunal judgment delivered by Burton P in four appeals heard together, the lead case being Kwamin v Abbey National PLC [2004] ICR 841. The fourth of those appeals was the case of Bangs v Connex South Eastern Ltd. Each case involved a substantial delay between termination of the Tribunal hearing and promulgation of the Tribunal's decision. For example, in Bangs written closing submissions following the oral hearing were completed and exchanged on 15 August 2002. The Tribunal decision was finally promulgated on 18 August 2003, one year later, following private deliberations held by the Tribunal on 22-23 August 2002, 8 April and 25 June 2003. In Kwamin the delay from final day of hearing to promulgation was 14 months.
Conclusion