England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Tuesday, 17th July 2001

Tuesday, 17th July 2001

1. LORD JUSTICE PILL: These are two applications for permission to appeal made by Mr. Apelogun-Gabriels, who has appeared in person before the court this morning. The first is number 2001/0605 and the second is number 2001/0618. I deal with the lower number first, though that is not the order in which the applicant has addressed me.
2. Mr. Apelogun-Gabriels was employed by the London Borough of Lambeth, who are the first respondents in number 0605, the second respondent being Mr. Ivor Bowry. The third was a Mr. N. Good, but he has been struck out of the proceedings.
3. The applicant seeks permission to appeal against the decision of the Employment Appeal Tribunal dated 26th February 2001 whereby they dismissed the applicant's appeal from the decision of the Employment Tribunal sitting at London South on 2nd December 1999. That Employment Tribunal unanimously dismissed the applicant's complaint of racial discrimination at the hands of his employers, the London Borough of Lambeth, and one of their employees, Mr. Bowry, who was the manager of his department.
4. The applicant began his employment with the borough in April 1990 and was an accounting assistant in the finance section of the Department of Social Services. He is by racial origin black African and from the Yoruba nation in Nigeria. Mr. Bowry was a senior manager in the expenditure sub-section of the Social Services Finance Department and was black Caribbean by racial origin.
5. The applicant made a large number of complaints to the Employment Tribunal. They involved events going back over several years. I do not propose to set them out in any detail, for reasons which I will give.
6. In November 1998 there was a three-hour meeting with a panel of representatives of the council, in line with their grievance procedure. Complaints were made about the applicant's work record, which was said to be less than sufficient. The panel found no evidence of racial discrimination, though they did identify weaknesses, not only (as they saw it) in the applicant's attitude to colleagues but in Mr. Bowry's handling of the applicant. The panel made recommendations to seek to deal with the situation which had developed.
7. A number of other incidents occurred while the grievance procedure was in process. There was what has been described as a "spitting" incident in October 1998. There was an incident in January 1999 when the applicant assisted a new employee, Ms. Johnson, and was told not to do so. There were complaints of sarcasm towards the applicant by Mr. Kowalczyk. There was an issue as to a new computer system which had been installed, known as the Oracle system, which required staff retraining. In all these respects, details of which need not be set out for present purposes, the applicant alleged that he was less favourably treated on racial grounds. The applicant alleges that he has been the subject of a sustained campaign of less favourable treatment, solely or principally because of his race, and that that has amounted to direct racial discrimination. In the alternative, he alleges that he was victimised for complaining about racial discrimination.
8. The hearing of the Employment Tribunal took place over eight days in November 1999. There is every indication that the issues were carefully considered by that tribunal. It was noted that the staff in Mr. Bowry's department contained people of different races. Having considered the complaints of the applicant, the Employment Tribunal unanimously rejected them and dismissed his application. He appealed that decision to the Employment Appeal Tribunal.
9. I do not propose to set out the complaints in any more detail because, as I have reminded the applicant, the fact-finding tribunal is the Employment Tribunal. That is the tribunal which forms judgments upon the facts of a case and decides where the truth is and what evidence is reliable and not reliable. There is an appeal only on a point of law from the findings of the three-person panel which constitutes an employment tribunal.
10. Comprehensive grounds of appeal were put to the Employment Appeal Tribunal. They dismissed the appeal. I do not propose to set out their reasoning in detail. The applicant makes complaints about it, but (as I know he is aware and as I have reminded him) what in substance he has to show is some fault on the part of the Employment Tribunal. He must show either perverse findings of fact, errors of law or errors of procedure. The reasoning of the EAT in itself, if for any reason it is defective, does not in present circumstances give a right of appeal to the Court of Appeal, although it may assist the court. This court has to consider whether a complaint can legitimately be made about the findings and procedures of the Employment Tribunal. The Employment Appeal Tribunal dismissed the applicant's procedural complaints, and in my judgment they were right to do so.
11. What the applicant has emphasised is his submission that the Employment Tribunal took false comparators and their decision is defective because they did not make the comparisons which ought to have been made. I do not find merit in that submission and it appears to me that the Employment Tribunal approached this case, both procedurally and in substance, in a way which cannot be the subject of legitimate criticism and which would not merit an appeal to the Court of Appeal.
12. I find no arguable case which would justify granting permission to appeal to the Court of Appeal on number 2001/0605, and I refuse that application.
13. I turn to number 0618. The Employment Tribunal heard what Mr. Apelogun-Gabriels describes as different substantive complaints, so that the substance of the complaints, he submits, is different from that in number 0605, and there are no indications to the contrary in the decision of the Employment Appeal Tribunal which he seeks to appeal.
14. A preliminary point was heard by the Employment Tribunal as to whether the complaint had been made in time. Their ruling was given on 13th September 2000. It stated:

"The unanimous decision of the Tribunal is that:

(i) it has jurisdiction to entertain complaints by the Applicant only as particularised in the written reasons in detail.

(ii) the case is fixed to be heard on its full merits for five days from 5th March 2001."

15. Paragraphs (iii) and (iv) deal with procedural matters in relation to documents and witnesses for the hearing.
16. It was the employers who appealed against that order to the EAT. They had failed to obtain a review of the decision of the Employment Tribunal. The decision of the EAT, Mr. Justice Lindsay (President) presiding, was given on 27th February 2001. The EAT ordered that:

1. The appeal be allowed and the matter be remitted for rehearing to a differently constituted tribunal in accordance with the judgment of the EAT.

2. The tribunal ordered that the appellants do write to the Employment Tribunal and the respondent within 14 days from the date of the order notifying them of the issues on which the matter is to be remitted.

3. The tribunal further ordered that the respondent lodges a reply within 21 days of receipt from the appellants in writing to the Employment Tribunal and the appellants.

4. The tribunal directed that any application for leave to appeal should be made direct to the Court of Appeal within 14 days of the date the judgment was sent to the parties.

17. The EAT bore in mind that the applicant had lodged IT1 the day after the decision of the employers' grievance panel. The Employment Tribunal referred to the decision of the Employment Appeal Tribunal in Aniagwu v. London Borough of Hackney & Owen [1999] IRLR 303. The respondents, at the hearing of the appeal in this case, argued that since Aniagwu had been decided the EAT had, in Robinson v. Post Office [2000] IRLR 804, held that the earlier case did not establish a proposition of broad applicability. It was because of the later decision that the EAT decided to remit the time bar issue to a fresh employment tribunal with the proviso that, even though Aniagwu no longer contained the correct approach to the law in the view of the EAT, an honest reliance on it may provide grounds for an extension of time.
18. That outcome was not entirely unfavourable to the applicant. He seeks permission to appeal to this court, however, on the basis first that the hearing should not be before a differently constituted tribunal, and second to challenge the limitations which the EAT had apparently sought to place upon the matters to be considered by the Employment Tribunal. I have only this morning received a long skeleton argument from the applicant on this issue, and I have heard him orally in support of it.
19. Of course I asked to see the documents which the EAT, on 27th February 2001, ordered should be disclosed to the Employment Tribunal and to the other side. The applicant tells me that the appropriate documents have been prepared by each of the parties. However, they are not in the bundle and he does not have copies for me. He submits that these are for the Employment Tribunal and there is no requirement to place them before the Court of Appeal. I do not regard that as a helpful approach.
20. The EAT has sought to deal with a situation where there are apparently conflicting authorities, and they required the parties to state their position, as was ordered. I do not propose to refer to the judgment of the EAT in detail. What is clear, however, is that they had in mind issues of estoppel. They refer to the classic authority of Henderson v. Henderson. They state at paragraph 28 that:

"It would greatly help the Tribunal that hears the matter, by way of remission, for it first to receive from Lambeth an indication in writing, sent both to the Tribunal and to Mr. Gabriels, stating exactly what issues and claims are firstly, estopped by way of Res Judicata properly so called; secondly, what is estopped by Henderson v. Henderson, estoppel in the wider sense; and, thirdly, what is barred under the time-bar consideration."

21. I am not prepared to give permission to appeal this morning. However, I propose to adjourn the application for consideration by the full court. It appears to me that it would be wrong to refuse the application on the information at present before the court. The Employment Appeal Tribunal (with the best of intentions, I have no doubt) have sought to deal with the situation which has arisen in a certain way, both by reason of the conflicting authorities as to time limits and also on estoppel questions. It appears to me that the way in which they have done it requires some further scrutiny by way of an adjourned application.
22. What the applicant must do on his adjourned application is to provide the court with the documents which the parties have supplied pursuant to the order of the EAT. That will enable the court to consider whether the procedure contemplated by the EAT, when it has remitted the case "in accordance with its own judgment", is an appropriate course in the circumstances.
23. The course I propose to adopt is to adjourn the application for permission, to suggest the attendance of the respondents at the hearing of the application and to order further that if the application is granted then the appeal should follow immediately. The estimated time of hearing is two hours and it should be heard by a court consisting of three judges.
24. For the reasons I have given, the application for permission to appeal on number 0605 is refused and the application on number 0618 is adjourned on the basis that I have indicated.
25. Further, you may consider amending your notice of appeal, if you wish to deal with the estoppel point, which is probably not covered by the notices at present. You may want to consider the judgment of the EAT, now that you have thought about it more fully and set out in your skeleton argument any application to seek permission to amend your notice of appeal to deal with that point. Whether permission is granted will depend on the court hearing the adjourned application.
26. As regards number 0605, I did mention the comparators expressly. I should also mention expressly the submission you have made that the grievance procedure should have been used by the Employment Tribunal as a basis for their consideration. But I do not find merit in that submission.
ORDER: Application refused in number 0605; application adjourned in number 0618. (ORDER NOT PART OF APPROVED JUDGMENT)