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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Dhillon v. May & Baker Ltd (t/a Sanofi Aventis) [2009] UKEAT 0120_09_0508 (5 August 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0120_09_0508.html Cite as: [2009] UKEAT 120_9_508, [2009] UKEAT 0120_09_0508 |
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At the Tribunal | |
Before
THE HONOURABLE MRS JUSTICE SLADE
MR D CHADWICK`
MR B R GIBBS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR JOHN HORAN (of Counsel) Instructed by: Messrs MWP Solicitors Freedom House East Sq Basildon Essex SS14 1HS |
For the Respondent | MR GAVIN MANSFIELD (of Counsel) Instructed by: EEF Legal Services Broadway House Tothill Street London SW1H 9NQ |
SUMMARY
RACE DISCRIMINATION
Comparison
Mr Dhillon was dismissed for misconduct after he had received a final written warning in respect of previous conduct. The Employment Tribunal found his dismissal to be unfair. It held that Mr Dhillon's final written warning was unreasonable and the employers would not have dismissed him for the subsequent incident but for the warning. In any event the Employment Tribunal considered that dismissal for the subsequent incident was outside the range of reasonable responses. It dismissed Mr Dhillon's complaint of race discrimination. It held that he had failed to identify an actual or hypothetical comparator in that he had failed to show that a white comparator in comparable circumstances would have been treated more favourably. The decision could have been more clearly reasoned but there was no error of law. The appeal was dismissed as was the Company's appeal from the finding of unfair dismissal.
THE HONOURABLE MRS JUSTICE SLADE
Introduction
The Facts
Grounds of Appeal
Grounds 1 and 3
"No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the Claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined. The present case is a good example."
Mr Mansfield for the company says that the Tribunal did not err in law in its approach to the need to identify a comparator. An employer is not required to justify every decision to show that it is not taken on grounds of race. He contends that the Employment Tribunal appropriately considered the comparator issue.
"50. The thrust of the Claimant's case was that the Respondent had reacted with far less severity to conduct of a much more serious nature. Although not put by him in terms his hypothetical comparator was a white employee who had committed an act of more serious misconduct but was either not disciplined at all or was subjected to a sanction short of dismissal. However he did not point to any examples in which an individual not dismissed was subject already to a final written warning at the time of the alleged misconduct.
51. We accept Ms Eady's submission that the Respondent is entitled to take a less serious view of errors or mistakes in carrying out work even if the negligence is gross than of deliberate conduct on the part of an employee. That it did so is clear from the list produced by Mr Knight [Mr Knight was a witness for the Respondent]."
"In our judgment the Claimant's examples 6, 13, and 18 are perhaps the most useful in seeking to identify a hypothetical comparator. However one of these involves managers who appear to have been acting within their authority, and two relate to sexual misconduct. If the Respondent takes a relatively tolerant attitude in relation to sexual misconduct without reference to race, as might be suggested as well as by what we accept to have been the widespread circulation of pornography, then this is of less utility in identifying a comparator."
"We do not consider that we are able on the basis of the evidence before us to construct a satisfactory hypothetical comparator. Because of the difficulty in identifying a satisfactory comparator, we are not satisfied that the Claimant has proved on the balance of probabilities facts from which we can conclude in the absence of adequate explanation that the Respondent discriminated against on the grounds of race in dismissing him.
…
Further, in our judgment there is no direct evidence that race had a causative effect on the decision to dismiss the Claimant. Accordingly the discrimination claim is dismissed.
"Had the burden of proof shifted we would not have been satisfied, in light of our findings in relation to unfair dismissal, that the Respondent offered a cogent, non-discriminatory explanation."
Ground 6
Ground 2
'… we cannot be satisfied on the basis suggested by the Claimant that impermissibly differential treatment might be inferred.'
Ground 5
'3 Meaning of "racial grounds", "racial group" etc
…
(4)A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) [or (1A)] must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.'
It seems that the Employment Tribunal recited the case which Mr Dhillon was advancing and it is his formulation which appears to be the subject of criticism in ground 5 of the Notice of Appeal. In paragraph 60 the Tribunal say:
"The thrust of the Claimant's case was that the Respondent had reacted with far less severity to conduct of a much more serious nature. Although not put by him in terms his hypothetical comparator was a white employee who had committed an act of more serious misconduct but was either not disciplined at all or was subjected to a sanction short of dismissal. However he did not point to any examples in which an individual not dismissed was subject already to a final written warning at the time of the alleged misconduct."
The Tribunal clearly had in mind the lack of any comparator who was on a final written warning. However it does appear that they did not confine their inquiry to those who had a final written warning, but took into account in seeking a comparator the totality of the offending behaviour, if we can put it in that way, of Mr Dhillon as compared with putative comparators. For reasons which they set out in their judgment they concluded that no actual or hypothetical comparator had been identified. On this basis they concluded that since a comparator had not been identified and no less favourable treatment had been shown, the claim was dismissed. Whilst, with respect, this judgment is not as clearly expressed as it might have been, in our view the Appellant has not established that the Tribunal erred in law in the respects advanced before us. Accordingly the appeal against the dismissal of his claim of race discrimination and victimisation fails and is dismissed.
The Cross Appeal
"In our judgment the final written warning in this case was given both without prima facie grounds and in manifestly inappropriate circumstances. We are slow to reach this conclusion mindful that we should not seek to substitute our view of the seriousness of the Claimant's conduct for that held by the Respondent.
37. We are not satisfied that the Respondent could reasonably conclude that the Claimant's behaviour constituted a contravention of its information system security policy."
"Even if we are wrong in this we would still reach the same conclusion for the following reasons. First we find that the Claimant acted without any malicious motive, albeit submitting the blog in the form he did was unwise. Second, far from attempting to deny or conceal his misconduct he disclosed it voluntarily. Third, as soon as criticism of it was made by management he volunteered to remove it, so that it was live for not more than some 32 hours."
The Tribunal then in numbered headings set out the other reasons why it held that the Respondents' reaction to the conduct which gave rise to the final written warning was without basis and inappropriate. The Tribunal continued in paragraph 43:
"On this basis, we find that the dismissal was unfair. The Respondent's evidence was that dismissal would not have been an appropriate sanction in the absence of the final written warning and we agree. In light of our finding regarding the final written warning, in our judgment the case cannot be distinguished from the case of Lucas and Ms Eady did not seek to draw any such distinction.
44. If we are wrong in this conclusion we consider the position on the basis that the Respondent was entitled to have due regard to the final written warning. Having regard to the industrial experience of the members in our judgment dismissal was in any event unfair.
45. It is our judgment that the Claimant's act in writing on the trolley did not constitute misconduct at all, that is that no reasonable employer could characterise it as damage to property.
46. However if we are wrong in this, that is if the Claimant's conduct could be reasonably construed as damage and accordingly as misconduct we consider that any damage was de minimis and that no reasonable employer could have treated the misconduct as a sufficient reason for dismissal, whatever the previous disciplinary history."