APPEARANCES
| For the Appellant |
MR F KHAN
(OF COUNSEL)
INSTRUCTED BY:
PEMBERTON WILLIAMS & ASSOCIATES
EMPLOYMENT LAW CONSULTANTS
SUITE 29
EMBASSY HOUSE
WEST END LANE
WEST HAMPSTEAD
LONDON NW6 2NA |
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MR JUSTICE LINDSAY (PRESIDENT):
- We have before us, as a Preliminary Hearing, the Appeal of Mr S Hyman in the matter Hyman v London Borough of Hackney. There was a hearing spread over 3 days in March 1999 and a day in chambers on 28th May 1999 when the Tribunal received further written representations. The decision was sent to the parties on the 15th June. The conclusion, which was explained over some 10 plus pages, "It is the unanimous decision of the Tribunal that the Applicant was unfairly dismissed by the Respondent but the Applicant was not discriminated against on grounds of his race. Remedy will be considered on a date to be fixed".
- The background was that an autistic boy in Mr Hyman's care was found to have minor wounds on the back of this head. It was not suggested that Mr Hyman had caused them or even that they had necessarily been caused whilst the boy was in his care but the fault with which he was charged, if charged is the right term, was that he had not spotted the wounds so that they could have been attended to earlier or that he could have seen them to be attended to earlier.
- Mr Hyman, who is an Afro Caribbean, failed in his claim for racial discrimination, as we have just indicated. He had been a childrens' carer and resource worker. There was quite a long investigatory history in this matter. First of all there was a suspension. Then there was a disciplinary investigation considered by two persons, one of whom, a Ms Wilson, was a black woman from a wholly independent organisation brought in for the task. The Tribunal held that their investigation had been painstaking, conscientious and untainted by racial bias. They held Mr Hyman to have been negligent. Accordingly, next there was a formal disciplinary hearing conducted by a Mr Gurrey. Mr Hyman was then represented by his union. Mr Gurrey concluded that he agreed with the 2 investigators as to Mr Hyman's negligence. He took that negligence to amount to gross misconduct and, as for as the appropriate sanction, he held that to be immediate dismissal. Then there was an appeal by Mr Hymen to the Director of Social Services at Southwark; that appeal was dismissed.
- The Tribunal directed itself by reference, so far as concerns racial discrimination, to the well known case of King v Great Britain China Centre. There is, of course, no appeal as to unfair dismissal, but, as to that, it was apparently procedural faults that told against Hackney. What the Tribunal said was:
Whilst we are satisfied that Mr Hyman was dismissed for a reason relating to his conduct. That discharges the only burden resting upon the Respondent. The Respondent did not act fairly in treating that reason as sufficient to justify Mr Hyman's dismissal because of the serious procedural flaws identified above. We have gone on to consider whether those flaws were corrected on appeal but conclude that they were not. That is sufficient to require us to conclude that Mr Hyman was unfairly dismissed.
- The procedural flaws referred to by the Employment Tribunal in the course of that passage are not, perhaps, as clearly spelled out in as the words identified above suggest but they seem to consist as a maximum, of the following matters. First of all, of a degree of confusion because the serious possible accusation that the boy's injuries actually occurred whilst the boy was in Mr Hyman's charge was not clearly laid on one side and might therefore have lingered on into the question with which he was charged and which might have affected the decision as to what the appropriate sanction was. Secondly, the investigators and Mr Gurrey had seemed to have failed to address the evidence of a Ms Osei-Brenyah. Thirdly, the investigators and Mr Gurrey had failed sufficiently to address the evidence of a Ms Jackson. Fourthly, Mr Gurrey, misread, it was said, the investigators' report. Fifthly, the investigators' preference for the evidence of a Ms McGuire was flawed. Next, no judgment was reached on an issue which the Tribunal took to be necessary to have been decided, namely, whether or not blood eventually found on the boy or his clothing was blood which had flowed after the wounds had first been discovered. No judgment was made, either, on whether the wounds had not only occurred but had been treated before the time when Mr Hyman took the boy over, which would have been a factor that perhaps would have explained why he had not noticed the wounds.
- It is not for us to investigate whether those criticisms of Hackney's processes were or were not justified. There is no appeal by Hackney. They would seem to be, as a maximum, the procedural flaws to which the Tribunal referred. It certainly cannot be said that the Tribunal was unwilling to draw conclusions against Hackney, given that series of flaws which the Tribunal held to have existed.
- Turning to the Tribunal's dealing with racial discrimination. They set out the case as it had been argued. They say:-
"Put shortly the basis of the complaint was that Mr Hyman throughout the disciplinary process was dealt with less favourably than the Respondent was dealt with or would have dealt with a white person in similar circumstances. Further, it was suggested that the process involved consideration of evidence. Some from white persons, some from black, it was said that less weight was given to the evidence of the black witnesses. Had that be shown to be true we would have concluded that it constituted less favourable treatment on racial grounds. We consider that Mr Gurrey and the investigators approached their task in a conscientious way and the conclusions reached were genuinely held. In finding against Mr Hyman, both the investigators and Mr Gurrey were exercising a judgement that was flawed but we are not satisfied that the process was tainted by racial bias. One of the investigators was from an independent organisation and was from an ethnic minority, factors tending against any suggestion that racial stereotyping had influenced the approach to the evidence".
- So far as concerns witnesses, they said this in their paragraph 32:-
The only direct resolved conflict was between the evidence of Ms McGuire and Mr Hyman, one white, one black. Those matters raised by Ms Osie-Brenyah, also black, were not addressed at all and Mr Gurrey decided that he need not resolve the conflict in the evidence between Ms McGuire and Ms Jackson who is black. Had Mr Gurrey first considered and had then rejected the evidence of the three black witnesses, we might have been persuaded that we should draw an adverse inference. In fact, Mr Gurrey's mistake was not to address the evidence either of Mr Osei-Brenyah or of Ms Jackson.
- The Tribunal did not feel categoric about this, they say:-
"We feel a sense of lingering unease but we remind ourselves that unreasonable treatment on its own is not sufficient to justify the conclusion that race played a part. That unease is not a sound basis for a conclusion that Mr Hyman was less favourably treated on racial grounds and accordingly the complaint is not made out and is dismissed".
- So far as concerns the Notice of Appeal, paragraph 6.1 on our page 2 says:-
"The decision of the Employment Tribunal that the Appellant had not been discriminated against on the ground of his race is inconsistent with their finding that the Appellant had been unfairly dismissed by the Respondent for the following reasons".
- We find nothing inherently inconsistent between a dismissal being found to be unfair for procedural reasons, which was the case here, on the one hand and a dismissal of the charge of racial discrimination. There is no logical inconsistency between the two. Then there follows in the Notice of Appeal a list of shortcomings which are not shortcomings of the Employment Tribunal but of Hackney, thus the list begins at 6.1.1:-
"The Employment Tribunal in recognising that the Appellant had been unfairly dismissed has failed to access fully the reasons why this was so. In particular, it is submitted that they failed to appreciate that the Respondents, in the course of their internal investigation procedure in weighting up the various matters before it gave more weight/credence to……"
And a whole list follows but these are matters to which the Tribunal itself referred. Thus the Appellant complains about the evidence of white witnesses being preferred by Hackney for no objectively justifiable reason. But the Tribunal had already referred to that in the citation which we have already quoted. Hackney, it is said, gave little weight to Mr Hyman's long good service, but, on the other hand, that was a factor that the Tribunal had in mind and in their paragraph 6 they say:-
"Mr Hyman had been assigned to the boy on a regular basis over the course of ten years and there had been no prior concern as to the quality of care provided",
So that was a factor that the Tribunal had clearly had in mind. Next it is said that Hackney had uncritically accepted the evidence of a Ms McGuire, she being the white care worker who cared for the boy immediately before Mr Hyman came on the scene.
- What is said in the Notice of Appeal is that the Respondents completely accepted the account of Ms McGuire, a careworker, despite the fact that she had only had care of the child over a six month period and therefore had only dealt with the child on five or six occasions. But it really is hard to see why a careworker should be taken to be less able to tell that a child had wounds on the back of his head on the ground that she had only had the care of him over a six month period. Next it is said that the Respondents failed to give consideration to the report of a Dr Mace but, so far as that is concerned, the Tribunal said in their paragraph 13:-
"The available evidence made it impossible to conclude with any degree of certainty just when the injury occurred. There were, however, apart from the evidence of Mr Hyman, a number of factors to suggest that it had occurred before 5.30 pm but after 4.30 pm".
That is a subject to which Dr Mace's evidence went and presumably, therefore, although they do not take the trouble of actually naming whose evidence it was, they must have had in mind the evidence of Dr Mace.
- It has to be remembered that the charge against Mr Hyman was not of allowing the boy to injure himself, still less of actually causing the injury, but of failing to notice and report the injuries.
- The rest of the Notice of Appeal - the relative treatment of the evidence of Ms McGuire and Mr Hyman, the Tribunal's unease, the exaggerations (as the Appellant would have it) of superficial wounds into a serious matter - all lead, say the Appellants, to the conclusion, as put in the Notice of Appeal that:-
"in the premises, the only explanation for the disparity in treatment of the Appellant and Ms McGuire is race. It is submitted that the Employment Tribunal's decision that the treatment received by the Appellant does not amount to racial discrimination is perverse".
- But the Notice of Appeal identifies no error of law beyond that bald assertion of perversity. We revert to the passages from King v The Great Britain China Centre which the Tribunal itself directed themselves to have in mind. Thus on page 11, paragraph 29(3) in an extract from King v Great Britain China Centre, the Tribunal says:-
"The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal".
And a little later:-
"At the conclusion of all the evidence the Tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case".
- We cannot say that the Tribunal's conclusion that its unease was not enough represents any error of law, nor do we find any error of law in their conclusion that there had been no unlawful discrimination. Truly, the Appellant's argument really comes to this, that it would have been open to a Tribunal to have found racial discrimination on the facts which they have found. It is of no assistance to an Appellant to say that they could have done so, given that they chose not to do so. If the Appellant is going to raise a point of law in this area, that point of law has to be that no reasonable Tribunal properly directing itself could here have decided as this one did. To show that a Tribunal might have found in the contrary sense to that which they did does not satisfy that test. We, doing the best we can in response to Mr Khan's argument this morning, have failed to find any error of law and, of course, it is only errors of law which we are entitled to address.
- Accordingly, having found no error of law, we must dismiss the Appeal even at the preliminary stage.
