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 WC2A 2LL Thursday 8 November 2001

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal by Mr Brima Kanu against a decision of the Employment Appeal Tribunal. The Employment Appeal Tribunal gave a decision on 13 July 2001 at a preliminary hearing, dismissing Mr Kanu's appeal on the ground that there was no error of law in the decision of the Employment Tribunal, from which he wished to appeal.
2. The Employment Tribunal had given its decision against Mr Kanu in extended reasons running to 65 pages on 4 May 2000, after a 26-day hearing which took place between 27 January 1997 and 23 March 1998. The Employment Tribunal dismissed all Mr Kanu's claims for unfair dismissal, race discrimination and unequal pay against his former employers, The London Borough of Lambeth.
3. Mr Kanu acted in person before the Employment Tribunal, The Employment Appeal Tribunal and this court. Tribute must be paid to the amount of work and research which he has put into the legal aspects of his case.
4. I have to decide, as explained to Mr Kanu at the outset, whether he has a real prospect of succeeding on the appeal he wishes to bring. In deciding that, I have to bear in mind that Parliament has limited the right of appeal to questions of law. That means that there is no appeal, in general, against findings of fact. The appeal is not a re-hearing of the claims, it is a review of the decision which has been made on the claims to see whether that decision contains legal errors which make it an unsafe decision.
5. Mr Kanu was employed as a Safety Assistant in the Directorate of Construction Services with the London Borough of Lambeth from 27 April 1987 until 13 March 1996. He is a national from Sierra Leone. The circumstances of his employment and its termination led him to make a complaint to the Employment Tribunal on 15 December 1995. There are time limits in bringing claims for unfair dismissal, race discrimination and unequal pay. If a case is brought outside those time limits, it can only continue if the tribunal considers it is just and equitable to extend the period for bringing the case. There is a very good reason for having time limits in all litigation and, in particular, time limits in litigation of this kind. So many of these cases depend on people's contested recollection of what happened, what was said and why what was done was done. Therefore, it is important, where there has been a wrong of this kind, to bring it before a tribunal at the earliest opportunity when all the relevant evidence is still fresh in the minds of witnesses.
6. The IT1 sets out the complaints of race discrimination and unfair dismissal. Claims of unequal pay and a claim of the Transfer of Undertaking Regulations were later added to that.
7. The Employment Tribunal decided unanimously that there was no discrimination against Mr Kanu, contrary to the Race Relations Act. In the case of some of the claims, it was decided that the claim was out of time and the tribunal rejected Mr Kanu's submission that the acts complained of, which took the form of unsuccessful job applications, were what he considered to be discriminatory assessment and discriminatory grievance procedures. The tribunal held they were not continuing acts. Many of the claims fell outside the three month period as they occurred before the middle of September 1995. They also decided, in the exercise of their discretion, that it was not just and equitable to extend the period in those cases which were outside the three month period.
8. As regards the claims that were within time, the tribunal's decision was that the actions of which Mr Kanu made complaint were not racially motivated. The tribunal rejected the complaint under the Equal Pay Act and also the complaint under the TUPE Regulations 1981 on the basis that there was no transfer of any undertaking.
9. The tribunal concluded the lengthy decision in paragraphs 54 and 56 by explaining the difficulties there had been during the hearing, in particular the need the tribunal had felt to restrict Mr Kanu to questions, particularly in his cross-examination, on issues that were not relevant. The tribunal criticised him to the extent that he repeatedly asked questions that took the form of a memory test of the witness. Mr Kanu would then treat the failure of a witness to remember something as a refusal to answer the question. It was also recorded that Mr Kanu had been unwilling or unable to accept guidance from the tribunal.
10. There were also problems with the documentation of the case. When Mr Kanu appealed to the Employment Appeal Tribunal, he added to his complaint that the tribunal had reached erroneous conclusions on his claims a further complaint that there had been bias on the part of the tribunal and that he had not had a fair hearing of his claim.
11. As is customary in complaints of that kind, the Employment Appeal Tribunal obtained the comments of the Chairman on the allegations about the way the tribunal hearing had been conducted.
12. The Employment Appeal Tribunal held a preliminary hearing to decide whether there was an arguable error of law in the decision. In his judgment, the President of the tribunal, Lindsay J, dealt with the main points made by Mr Kanu, commenting that they were more points of fact, in the conclusions of the tribunal, than they were points of legal error.
13. The Employment Appeal Tribunal rejected the complaint made by Mr Kanu as to the conduct of the hearing. They said:

"Looking at the accusations made by Mr Kanu and the Chairman's responses, we have no adequate material conclusively, or even tentatively and provisionally, to rule either in favour of one or against the other, or the other way round. We cannot thus find any complaint as to conduct, even arguably, at the moment yet to have been shown to be capable of final proof.... Whilst a careful, painstaking and detailed decision does not, of itself, disprove a Tribunal's misconduct, it is unlikely to be found alongside misconduct on the Employment Tribunal's misconduct, it is unlikely to be found alongside misconduct on the Employment Tribunal's or the Chairman's behalf. Here, as it seems to us, the Decision is exactly that: careful, painstaking and detailed. It is of enormous length, as of course befitted so long a hearing, spread over some twenty six days."

14. At the end of the judgment the tribunal said:

"After hearing Mr Kanu and having paid attention, as we have indicated, as best we can to his case, we must dismiss the appeal even at this preliminary stage."

15. In his application for permission to appeal to this court, Mr Kanu adds yet another complaint to the existing complaints: the failure of the Employment Appeal Tribunal to deal with all his points in his skeleton argument.
16. On this application, Mr Kanu has a very detailed skeleton argument. He read out the main sections: Introduction; the Claim in Relation to Race Discrimination; the Claim in Relation to Non-Promotion and Career Progression, which is sub-divided into Assessment, Non-appointment to Various Posts, Conduct of Grievance Procedure and Disciplinary Proceedings, Dismissal and Miscellaneous Complaints. He read out aloud to me the whole of that section of the skeleton argument.
17. Under pressure of time I asked Mr Kanu to limit his reference to his skeleton argument on the remaining points to those that were important and which he wished to highlight. Most of the remaining pages of his skeleton argument consist of a summary of the relevant statutory provisions and the relevant case law concerning race discrimination, unfair dismissal and equal pay.
18. In another section of his skeleton argument Mr Kanu highlights his allegations that there had been bias on the part of the tribunal. He said that he had been unrepresented at the hearing and that the Chairman of the tribunal had interrupted him throughout his evidence and made a series of comment which he sets out in his affidavit.
19. In Mr Kanu's view the comments of the Chairman were evasive, inconsistent and revealed irregularity and bias on his part. In his conclusion, he submits that he was discriminated against on the ground of race, was unfairly dismissed and was disadvantaged in relation to pay. He points out to me that, if he loses before this court, he will seek permission to appeal to the House of Lords. I have already pointed out to him that, under the procedure of these courts, there is no appeal, with or without leave, to the House of Lords against a decision of this court refusing permission to appeal.
20. I have considered all these arguments, in particular what I consider to be the main point which Mr Kanu wishes to make on the legal aspects of the case relating to the decision of the tribunal that his claim was, in respect of many of the job applications, barred by the time limits imposed by the Race Relations Act, section 68.
21. Mr Kanu's submission on this point was that there was a legal error in the decision of the Employment Tribunal in holding that these were discrete one-off acts. He submitted that they were acts which extended over a period, or were continuing acts. He submitted that they showed that there was a requirement, practice or policy which was being applied by the Lambeth Borough Council with the racially discriminatory effects of which he complains. On that point, I am unable to accept Mr Kanu's submission.
22. In my judgment, the examples which he gives of unsuccessful job applications, which amount to about eleven in all (failure to be promoted etc), are time barred in so far as they occurred before 16 September 1995. Although the failure to be short listed for a job, or failure to obtain promotion or appointment, has continuing effects in the sense that if you do not get a job you go on not having a job, they are not acts extending over a period in the sense referred to in section 68 of the Race Relations Act 1976. I would regard the acts which the tribunal held to be time barred to be one-off acts. The tribunal's decision on that point was legally correct.
23. Mr Kanu also complains of the failure of the Employment Tribunal to exercise their discretion to extend time. He contends that it is just and equitable that it should have been extended. The tribunal have a discretion whether or not to grant an extension. This court will only interfere with the exercise of discretion by the body to whom it is entrusted if it can be shown that there is an error of legal principle, or that the refusal to exercise discretion is an act which no reasonable tribunal, properly directing itself, could have taken. I am unable to reach that conclusion on the discretionary power of the tribunal. In my judgment, the reasons which they have set out for refusing to extend the time are valid reasons and do not disclose any error of legal principle.
24. As for the claim for unfair dismissal, I have reached the conclusion that there was no error of law in the tribunal reaching the decision that the dismissal was by reason of redundancy, and that there was no unfairness in the system of selection or in the question of consultation and consideration of redeployment.
25. As for the unequal pay claim, I have also reached the conclusion that the tribunal were right to dismiss it and no error of law vitiated their decision on this point. I also agree that the Transfer of Undertakings (Protection of Employment) Regulations 1981 has no application to the facts of this case.
26. I would add that I also agree that the Employment Appeal Tribunal, having examined the allegations made against the Chairman and considered his comments on those allegations, were entitled to reject the allegation of bias. I do not think that this proposed appeal has a reasonable prospect of succeeding on any of the claims. The tribunal made findings of fact, which it was entitled to make on the voluminous evidence before it, and applied the law to those facts without committing any error in the interpretation of the relevant statutory provisions or in the application of those provisions, and the case law on them, to the facts of the case.
27. I am aware that Mr Kanu, although he now has a better job with a different employer, feels aggrieved at the treatment he alleges he received whilst he was working for Lambeth. However, one can be sure that he has had his complaints very thoroughly examined by the Employment Tribunal. I think he has the reassurance, although he may not accept it, of both the Appeal Tribunal and this court that the Employment Tribunal conducted the case in a satisfactory manner without committing any errors of law.
28. For all those reasons, I would refuse this application.
ORDER: Permission to appeal refused.