Mr X Vs Michelin Tyre Co Ltd
THE DECISION OF THE INDUSTRIAL TRIBUNAL
Held at Shrewsbury on 23rd of November 1977/ 13th of February 1978/ 19 December 1977
Chairman Mr a L Gordon Members Mrs P M Gwynne Mr HW Hay
The majority decision of the tribunal is that that the applicant is dismissed
1. The hearing of this case occupied three full days the 23rd November, 19th December 1977 and the 13th February 1978. At the conclusion of the hearing we reserved our decision
2. This is an important case. Nevertheless, and despite the large amount of evidence given, we think it is possible to state the essential facts (on which conclusions are unanimous) with a reasonable brevity.
3. In his Originating Application the applicant applied to the tribunal for a decision on the following question:
“Trade union and Labour relations act 1974 and race relations act 1976 the company forced me to hand in my resignation notice and I have strong evidence to support my claim of racial discrimination.”
In his Originating Application the applicant contends that his employment began on 1 April 1963 and came to an end on 5 August 1977. These dates are not correct. In their Notice of Appearance of the respondents contend that the date of commencement of the applicant’s employment was 24 June 1967 and that his employment terminated on 8th August 1977 – the date the latter date is correct: the applicant’s employment terminated on that date when he handed in a written notice of resignation. The date the 24 June 1967 is the date when the applicant became employed by the respondents otherwise than under a contract of apprenticeship: for the purposes of the Industrial Relations legislation a contract of apprenticeship is sufficient to give rise to the relationship of employer and employee. The applicant’s apprenticeship with the respondents commented on 18 November 1963.
That apprenticeship was completed on the 2013 1967. The applicant’s connection with the Michelin group did commence before 18 November 1963: it would appear from the documents that it probably began in January 1963 and not 1 April 1963 the date given by the applicant but nothing turns on that. Initially, however, his employers were Michelin (Nigeria) Limited not the respondents.
Neither the Originating Applicant nor the Notice of Appearance is therefore entirely accurate with regards the dates of the applicant’s employment by the respondents. The correct dates are 18th of November 1963 to August 1977. This slight but not unnatural confusion by both parties about the dates is of no significance under to the ultimate result of these proceedings, but we state the correct position for the purposes of clarity.
4. As is, we think, reasonably apparent from the Originating Application but it was in any event made quite clear by subsequent correspondence before the first day of the hearing, and very clearly outlined in the opening statement of Mr hand (Counsel for the applicant), the applicant is contending that he has claims against the respondent under the provisions of the Trade Union and Labour Relations Act 1974 and the second plane is a claim under the Race Relations Act 1976. That act came into force on 13 June 1977 and Mr Hand not seek to contend that it was of the retrospective effect, and did not seek to contend that the applicant had any claim in respect of alleged discriminatory acts prior to that date. However, he contended, and we think that this is obviously right, that we were entitled to take into account the whole history of the applicant’s relations with the respondents for the purpose of reaching a conclusion as to whether any of the respondents actions after 13 June 1977 were on racial grounds within the meaning of the 1976 act.
5. The applicant is a Nigerian and of the Negro Race. It is his case that he came to England from Nigeria in 1963 to serve an apprenticeship with the respondents as an electrical technician. It is the respondents case that his apprenticeship was simply as an electrician. The evidence of this point point is rather obscure and unsatisfactory. The Exhibit R5 states that the applicant “joined this company in November 1963 having been employed as an apprentice electrician by Michelin (Nigeria) Limited since January 1963.” The certificate states that the applicant served “an electrical apprenticeship with this company” commencing 18th of November 1963 and concluded on June 23 1967. It appears that in the 1960s, at any rate, the apprentice electrician and apprentice technicians undertook the same course (we have the evidence of one of the respondents witnesses, a Mr Bill Boyson, on this point). It is not clear, however, at what stage (i.e. whether at the outset of the apprenticeship or subsequently) apprentices would be put into different streams, albeit doing substantially the same course, and whether an apprentice technician would be given a different form of certificate and if so in what respects from an apprentice electrician. It does seem clear that Mr E was sent to England because he was regarded as of above average capability: and we think it clear that the applicant thought that he was serving an apprenticeship with a view to qualifying for a technician. However, it is quite clear that after completing his apprenticeship the applicant was graded as an electrician, and he remains in that grade throughout the remaining 10 years (plus 6 weeks or thereabouts) of his employment by the respondents, although for some reason which we will indicate in due course, he did not work in that capacity throughout that period. With the respondent company (and presumedly throughout the Michelin in group) a technician (whether in electrical or mechanical, but we are only concerned with electrical in this case) is all higher category and status than an electrician. The latter is an hourly paid “shop floor” worker; a technician, however, is according to staff status and is not remunerated upon an hourly paid basis. We gathered (although the evidence was not quite as clear as perhaps it might have been) that sometimes a relatively young men, perhaps just after the apprenticeships, are made technicians, sometimes from amongst the company’s own employees, sometimes directly engaged in that position: such a technician will be “staff” and will have a higher status than an electrician, but he does not necessarily earn more than, or even as much as, an experienced electrician. A young technician will earn less than an experienced and long serving electrician, rather as (though we appreciate that the analogy is far from exact) an experienced legal executive in a firm of solicitors may be remunerated at a higher rates the newly qualified assistant solicitor.
6. It is quite clear that the applicant did accept the position of an electrician on completion of his apprenticeship. Is equally clear that Mr X is a man of ambition and he was not at all satisfactory remain indefinitely as an electrician. He ardently desired to become a technician and believed that he was capable of undertaking the work of a technician. After completion of his apprenticeship the applicant continued with his theoretical education. Eventually in 1973 he passed Higher National Certificate. Obviously the applicant did not find it easy to pass this examination: he only did so on the fourth attempt. The reason for the three failures (an unusual number but perhaps after one or two failures many persons less dedicated than the applicant would have given up the effort altogether) is not necessarily to be attributed to a lack of ability by applicant, still less to a lack of application. The applicant was, after the completion of his apprenticeship, given ‘day release’ (which of course he had had as a matter of routine during his apprenticeship) for the purpose of attending technical college in connection with his HNC course: it is impossible on the evidence to make any firm finding as to whether the day release was for more than one year. The delay in obtaining the HNC qualification may well have been due to the applicant having to work on shiftwork, and may have been partly attributed to the difficulties with the English language. The applicant’s English now, judging by the way in which you gave his evidence, is very good, but it is not unreasonable to infer that in the late 60s and early 70s he may have been considerably less proficient in the language than he is now. At any rate in considering whether the applicant’s failures were or were not attributable to lack of ability, we think he should be given the benefit of the doubt on this point.
7. We are satisfied that the holding of an HNC qualification is not regarded by the respondents as a necessary prerequisite to appointment to the staff position of technician. Moreover, it is at least unusual, and very possibly unique for a ‘mere electrician’ (we do not use that expression in any derogatory sense, far from it) to hold the HNC qualification. Naturally, therefore, when the applicant sometime during the summer of 1973 heard that he had past his HNC, he desired once again to be considered for promotion to the grade of technician. The respondents, as one would expect from a company in such a worldwide organisation, has fairly elaborate promotion procedures. They have what were referred to as “half day boards” and “full day boards.” In effect the “half day board” is an internal short-listing procedure (applicants from outside the company seeking a position which required boarding will go straight to the “full day board” stage.) The applicant his “half-day board” on 15 October 1973 and he did exceptionally badly. We use this expression advisedly. The results were far inferior to what one would expect from someone who had in the relatively recent past, obtained his HNC. It is difficult to escape the conclusion that when he took this board the applicant was not well. The medical certificate (exhibits A3) put in by the applicant on the last day of the hearing confirms this. The applicant did not tell the respondents he was not feeling well at the time, and indeed it is obvious that he did not then realise that he was in the initial stages of a very grave illness. Is not suggested that the respondents were in anyway unreasonable in not at that stage taking any further steps in relation to the possible promotion to technician, following the poor results of the board in October 1973: but it is was suggested on behalf of the applicant that the response failure to (it appears) give any active consideration to promotion for technician before the result of his HNC was for racial reasons. We can see no evidence to support this. There was evidence by the applicant, which we accept, that he had prior to his getting his HNC asked consideration for such promotion but we were unable to find any evidence on which we could properly infer that he did not receive promotion for racial reasons. On the contrary there was evidence that the applicant lacked ability to deal with the problems which were not of a routine nature.
8. In about March 1974 it became apparent that the applicant was very seriously ill. He was suffering from kidney failure. It is not necessary to go into very much detail with regard to this aspect of the case. The applicant had to be put on a dialysis machine. At first he had to attend the hospital for the dialysis which made it impossible for him to work on the ordinary full-time basis. Eventually a machine was installed in his home and the applicant was able to go on to full-time work but not shift work. In February 1976 the applicant underwent transplant operation: fortunately this appears to have been highly successful. The applicant was fit to return to work, but not fit for his ordinary work as an electrician, in August 1976 and he did then return to work. It is not in dispute that the applicant was treated fairly and reasonably by the respondent during the period of his illness. In the early stages of dialysis, when the applicant was having to attend hospital, the applicant was put on a part-time work on night shift plus Saturday, this being what to get him best, and after he had had the machine installed in his home he was put on work during the day of a desk nature: during the first period the applicant was not expected to do for work of a skilled electrician: during the latter period he was really doing a special job which was created for him of clerical nature. Throughout this period he was paid at skilled electricians rate for the hours that he worked. The skills of electrician’s rate is higher than the clerical rate. After the applicant’s return to work in about August 1976 he went back to the clerical type work (at, of course, the electrician rate) but eventually on 19 May 1977 the respondents doctor past the applicant as fit to do the practical work of an electrician in the field but with certain (in our view relatively minor) restrictions.
Race Relations Act 1976
Michelin Tyre Co. UK
Trade Union and Labour Relations Act 1974