Taxi Driver Online

There was a recent thread on TDO about driver discrimination and feading favourite drivers. Here is a case which touches on that subject.

Hinkrose Ltd (trading as City Cars) v Aslam

Employment Appeal Tribunal

EAT/441/88, (Transcript)

HEARING-DATES: 25 April 1989

25 April 1989

COUNSEL:
BS Aston (Personnel Consultant) for the Appellants; M Mabiletsa (Senior Legal Officer) for the Respondent

PANEL: Knox J, GA Peers DFC, P Turner OBE

JUDGMENTBY-1: KNOX J

JUDGMENT-1:
KNOX J: This is an appeal by Hinkrose Ltd, which trades as City Cars in Sheffield, against a unanimous decision of the Industrial Tribunal sitting at Sheffield on 6th and 20th April, 4th and 6th Mfay and 9th June 1988, whereby it declared that the applicant, Mr Mohammed Aslam, suffered direct racial discrimination by an employee of the respondent Company and awarded him the sum of $400 for compensation for injury to his feelings. The decision was sent to the parties on 24th June 1988.

There were, in fact, two complaints, one of which was rejected by the Industrial Tribunal. We need not go into those matters, save to record that that was one complaint against the present appellants that was not upheld. The one that we are concerned with, of course, was the second complaint, namely that there was racial discrimination against Mr Aslam and some other drivers who worked for the respondent Company, although the other drivers had not themselves made formal complaints.

The employer Company ran a taxi business, not of a taxi that is licensed to ply for hire and has a Hackney carriage licence but the mini cab or hire car variety, which operates on a different basis.

The evidence before the Industrial Tribunal was, as the number of days' hearing indicates, voluminous and there was direct evidence from several coloured taxi drivers, the complainant himself, Mr Mohammed Aslam, Mr Mohammed Fiaz, Mr Monasseh Green and Mr Jawed Akhtar Khan, who all deposed to a greater or lesser extent to the existence of discrimination of which they had been victims.

The central issue on the question of discrimination concerned the operation of the radio, which controls the drivers. Notably, during the evenings, which are the busy times of Friday and Saturday, going over into Saturday and Sunday respectively. The early hours of the morning is the busiest time for this particular line of trade.

The radio is operated by one individual who is fed by two telephone opertors with slips, from which the radio operator directs the trade. The first method adopted is to call a rank, there being some four ranks designated by the employer firm, and if there is somebody on the rank the first driver to answer gets the particular job in question. When there is not somebody on the rank, then the radio operator has the job of allocating the job in question and it is at this stage of the operation that the question of discrimination primarily arises.

The Industrial Tribunal, having heard not only the evidence of these coloured drivers whom I have named but also evidence that was given on behalf of the employer, notably by Mrs Jean Hands, who was the radio operator against whom the main criticisms were levelled, expressed its conclusion fairly shortly, as follows. They first cited a passage in Khanna v Ministry of Defence [1981] ICR 653, [1981] IRLR 331, to which I shall return a little later and they then said:

"There has been much conflict of evidence but the tribunal is satisfied that Mrs Jean Hands, a radio operator in the employment of the respondent company, from time to time took discriminatory action against various drivers who had broken her interpretation of operating rules and that when she did so she was influenced by the racial origins of the drivers involved. As a result more frequent sanctions were taken by her against some of the coloured drivers than against white drivers. In particular, from time to time she unlawfully racially discriminated against Mohammed Aslam, the applicant. While she was very busy at times carrying out her duties as a radio operator, it was a comparatively simple matter for an experienced operator such as she to divert the more profitable jobs away from those drivers against whom she wished to discriminate, and she did this from time to time."

The Industrial Tribunal then points out that because she is an employee of the respondent Company, it has to accept responsibility for her actions and the consequences which I read out in the decision of the Tribunal at the outset followed.

It was because the first complaint failed, and that was a complaint concerning the dismissal of Mr Aslam, that the sum of compensation was limited to the injury to Mr Aslam's feelings, because the Tribunal concluded that he was not entitled to compensation under any other heading because the respondent Company was entitled to terminate its relationship with him and did so and so they made no further award in his favour.

Those findings that I have read out are, of course, findings of fact. This Tribunal's function, as is well known, is limited to questions of law. The notice of appeal, which we have to deal with, states the question of law on which the appeal is brought, as follows:

"That the Tribunal reached a decision which no reasonable Tribunal could have reached and/or came to a decision which was perverse since the evidence did not support it."

In support of that, there are essentially two points of evidence made and one point of law. The point of law arises in connection with the authority mentioned a moment ago, Khanna v Ministry of Defence. The passage which the Industrial Tribunal quoted was a passage directed to the proper course for an Industrial Tribunal to take where direct evidence of discrimination is either entirely lacking or is slight and in that context, Mr Justice Browne-Wilkinson said that:

"If the primary facts indicate that there has been some discrimination of some kind, the employer is called upon to give an explanation and, failing clear and specific explanation being given by the employer to the satisfaction of the Industrial Tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds."

In the present case it was submitted to us that that was really an irrelevance for the present case in that there was affirmative evidence that there was no discrimination. We saw the force of that submission but the difficulty from the appellant Company, Hinkrose's, point of view, is that it does not lead to the conclusion that the decision was flawed because it is just as clear that there was affirmative evidence, that there was discrimination, as it is that there was some, that there was none. This is, perhaps, one of those cases where the principle in Khanna v Ministry of Defence [1981] ICR 653, [1981] IRLR 331, is of relatively slight significance because what the Tribunal had to do in this case was to make up its mind which set of witnesses it accepted, some giving direct evidence of discrimination and others giving direct evidence that there was no discrimination. In those circumstances, it is probably true to say that the Industrial Tribunal's task is more a question of deciding which set of evidence is the correct one, rather than one of drawing inferences from previously established primary facts.

The two points of evidence upon which reliance is made in the notice of appeal are these: first it is said that a Mr George Parker who was, in fact, called as a witness on behalf of Mr Aslam and not on behalf of Hinkrose Ltd, was sent to the premises of Hinkrose Ltd to make an analysis of slips that are made when calls come for a car and about that, the notice of appeal says this

". . . there were some 250,000 slips completed over the period in question, and a selection of days (chosen by the respondent) [Mr Aslam] were made and discovery of slips for those days made."

Mr Parker went to make an analysis of them:

"As the slips do not indicate a taxi drivers name but only a number, Mr Parker, in making his analysis was not able at that point to distinguish the ethnic origin of any driver. The analysis in documentary form was presented to the Industrial Tribunal and evidence led in person by Mr Parker. That evidence [it is said in the notice of appeal] established that, on the days examined, that the two drivers with the highest earnings were coloured."

We were directed in the notes of evidence of the Chairman to the relevant passages in Mr Parker's evidence. In fact, he gave evidence on two separate occasions but the first occasion was not relevant. On the second occasion, he is recorded in cross-examination by Mr Rennison, the director of Hinkrose Ltd, who conducted the base on their behalf, as having said this in a question and answer series:

"Q. [by Mr Rennison] Driver No 30 is shown as taking #138 and opposite Driver 77 shows #142. Do you know driver 77's colour? It's black."

The answer was a blank.

The next question was: "Driver 68 took #69." The answer to that was, "I didn't know he was black."

Then the questioning turns to Friday night and Mr Rennison asked, "On Friday driver 25 took #68 and driver 38 took #67" and he said, "Both of those drivers are black." To which the answer was, if that was a question, "I'd say they had a fair night's work."

On that evidence, the notice of appeal states what I have already read, that it was established that on those two nights the drivers with the highest earnings were coloured. In fact, the evidence does not go that high. We have been shown the schedule that was prepared, presumably by Mr Parker, and was in evidence before the Industrial Tribunal and what that schedule shows is that on the Saturday in question driver No 30 did take #138, driver No 77 did take #142 and that, of the 13 or so drivers on that day those were, by quite a large margin, the two highest figures for takings. So far as the colour of the drivers is concerned, there is not even an asseveration by Mr Rennison in the course of asking questions that driver No 30 was black. True it is that Mr Rennison did put to Mr Parker that driver No 77 was black and Mr Parker, who it is accepted, did not know what the numbers referred to, is not recorded as having made any answer to that.

There is, in fact, so far as we are aware, no affirmative evidence that driver No 77 was black and there is absolutely no evidence, even treating the question as evidence, that driver 30 was black.

In relation to the Friday, it is again true that on the schedule which, on this day contains 20 numbers, the two highest figures are those beside the numbers 25 and 38. They are, in fact, actually it is stated in the evidence, at #68 and #67. There are others that are not far behind. No 55 is recorded as taking #63, No 31 as #60, and so on.

Here, again, the only evidence if it can properly be called evidence, on the subject of the colour of those two drivers, is what Mr Rennison said in cross-examination. He, of course, at that stage was an advocate and not a witness.

If one looks at the matter strictly, the evidence for the proposition that the two highest figures were the figures attributable to black drivers, is rather less than complete but if, as the Industrial Tribunal may well have done, one looks at it somewhat more broadly, they had to put that on the scales on the one side and they had to put on the scale on the other side, the evidence that had been led by the coloured drivers that they were, from time to time, discriminated against in one way or another and the Industrial Tribunal came to the conclusion that I have read.

That is a process which is essentially the process that the Tribunal of fact has to go through and it is, unless one can establish that there is no evidence upon which the Industrial Tribunal could reach the conclusion that it did reach, a process which this Tribunal is not in a position to interfere with. It is pure fact.

The same considerations apply to the evidence that was led by Mrs Jean Hands. She gave evidence that she had a busy job, putting it shortly. She deposed to the fact that there were very numerous calls, particularly on the Friday and Saturday nights.

The notice of appeal refers to her having given evidence that it was "impossible, in the circumstances to divert more profitable jobs away from drivers against whom she wished to discriminate". That is on the footing that she gave evidence that the calls came in at the rate of 7 per minute.

We have been shown the evidence that she gave, it covers some 5 or 6 pages in the notes of evidence and the most that can be found to substantiate the propostion that is set out in the notice of appeal, is the extent to which she said that she was busy and the evidence that she gave of the very large number of calls that were received by her. She, at no stage, is recorded as having said that it was, in fact, impossible for her to discriminate.

In fact, she said the precise opposite for reasons, no doubt, other than of racial discrimination but she was asked, "Do you favour one driver against another" to which she replied, "To be truthful, yes." She then proceeded to explain that the basis which she did favour one driver against another was one which had nothing to do with racial discrimination but was based on the extent to which the driver in question had been guilty of what, we understand, is known in the trade as "goosing", which means operating on a freelance and illegal basis as opposed to operating off the radio.

Although Mrs Hands gave evidence that she did not racially discriminate, the evidence that she gave was that she did, in fact, discriminate on the non-racial basis and it seems to us impossible to draw an inference from the evidence that she did give on that ie "On Friday night we receive about 1700 jobs and about the same on Saturday night" that it was impossible to discriminate, in the light of the fact that she accepted that she discriminated, although not on a racial basis.

We, therefore, can see no solid ground upon which it can be said that the evidence to which our attention has been directed establishes the proposition that this Industrial Tribunal came to a conclusion that can be properly described as perverse, in the sense that there was no evidence upon which it could have been reached. That, inevitably, means that this appeal must fail, and we dismiss it.

DISPOSITION:
Appeal dismissed

SOLICITORS:
IRPC Ltd; Commission for Racial Equality