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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Apelogun-Gabriels v London Borough Of Lambeth & Anor [2002] EWCA Civ 1619 (25 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1619.html
Cite as: [2002] EWCA Civ 1619
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IN THE COURT OF APPEAL (CIVIL DIVISION)
EMPLOYMENT APPEAL TRIBUNAL
(JUDGE D M LEVY QC)
Strand London, WC2 Friday, 25 October 2002 |
||
B e f o r e :
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| MR TUNDE APELOGUN-GABRIELS | Claimant/Appellant | |
| -v- | ||
| 1. LONDON BOROUGH OF LAMBETH. | ||
| 2. DAVID COWAN | Defendants/Respondents |
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Smith Bernal Wordwave Limited
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(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented.
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- LORD JUSTICE BROOKE: This is an application for permission to appeal against an order of the Employment Appeal Tribunal dated 31 May 2002, dismissing the appellant's appeal against the decision of an Employment Tribunal dated 16 October 2001.
- This is a proposed second appeal. The same strict test does not apply in relation to second appeals from the Employment Tribunal as applies to second appeals from a court. The way in which this court entertains applications for permission to appeal from the Employment Appeal Tribunal is not as strict as it is in relation, for instance, to appeals of very specialist tribunals like the Social Security Commissioners. The Court of Appeal has to bear in mind that it is an inexpert appeal court concerned with points of law. It does not have the same specialism in employment matters as the Employment Tribunal and the Employment Appeal Tribunal, both of which include members of the tribunal who have great experience in the workplace.
- The second general matter, and this constantly causes difficulties on appeals in employment matters, is that the Employment Tribunal is the tribunal of fact. There is no appeal against decisions of an Employment Tribunal in cases of fact. That is why, as the present appellant appreciates, challenges to the decisions of the Employment Tribunal are frequently presented as raising points of law on the basis that no reasonable tribunal presented with the evidence could rationally have reached the decision it did. That is why, during the course of the submissions I received today, it was argued that the Employment Tribunal was perverse, that it did not act reasonably and that it acted illegally. The appellant is commendably familiar with the law in this area.
- The appellant has been working for the London Borough of Lambeth since April 1990. He was transferred to the accountancy section as an accounts assistant in 1999. It is clear that he feels strongly that his employers have not appreciated his true merits. His post involved providing support and assistance on financial information to the management accountants and the finance manager.
- At the hearing the tribunal heard evidence over two days from Mr Cowan, a management accountant, from an account officer in the division and from a Mr Harding, the interim assistant director, as well as from the appellant himself. It found as a fact that Mr Harding, at the material time, was the finance manager. He had under him four management accountants and a support staff of six, including accountancy assistants.
- The management accountant who features in the present history is Mr Cowan, whose status was that of a temporary management accountant from 1997 onwards. He was a non-permanent member of staff employed through a jobs agency. He had been transferred to the finance unit of the Social Services Department in May 1999.
- The tribunal found as a fact that the position of accountants was made clear at staff meetings. They found that Mr Harding had discussed the working relationships with the whole team at team meetings from January to March. He made no distinction between the managerial authority of Mr Cowan and the authority of management accountants directly employed by Lambeth. He sought to ensure that the accounts assistants gave the management accountants their full support. He expressed the importance of them working together as a team. He told the staff that management accountants could ask the accounts assistants to carry out work for them. He said that management accountants had delegated authority to require accounts assistants to carry out work, and for supervisory purposes. The only distinction Mr Harding made was that he himself had the responsibility for personal development of his staff. Mr Cowan concurred with this view.
- The appellant hotly contests this. He contests the nature of his relationship with Lambeth. Mr Cowan had no business to give him instructions, whatever Mr Harding may have said. He said that it was all wrong for somebody in the status of temporary management accountant to tell him off in the context of the smooth working of the division.
- The tribunal, which contains people of experience from both sides of industry, rejected the appellant's arguments on this point. They made very clear findings of fact based on their knowledge of the workplace and workplace practices and how matters operate at work. In this particular division Mr Cowan did have authority in relation to minor matters.
- Of the two matters which gave rise to the present proceedings, the first occurred on 1 February 2001 when the telephone was ringing continuously. The appellant did not answer the phone when requested by Mr Cowan to do so. The tribunal, having heard both sides of the case and the evidence, said that being told to answer the telephone in these circumstances was no more than would be expected as part of the routine of the appellant's work. The appellant maintains that he was having lunch at the time, but the tribunal, as a matter of fact, came to the conclusion that he should have answered the telephone. It was not disputed that Lambeth required telephone calls to be answered within five rings. If there is anything that infuriates members of the public dealing with a public authority, it is when they make a phone call and it simply goes on ringing.
- The tribunal found that when Mr Cowan asked the appellant, "Would you answer the phone, please", and the appellant said something to the effect of "You are not my boss, do not tell me what to do," and that the appellant did not have the right to adopt this attitude.
- The second matter occurred nearly two months later on 28 March 2001. Mr Cowan was worried that the appellant, in his view, was using a non work related site on the internet during working hours. The appellant has strongly argued that he was entitled to access this site for work purposes, alternatively that he was entitled during working hours to a limited extent to access the internet for private use. The tribunal found as a fact, having heard the evidence, that Mr Cowan did have the authority to ask him whether he was using the internet inappropriately for personal use. Again, they found as a fact that this treatment was no more than would be expected as part of the routine of the applicant's work. They rejected the applicant's interpretation of one of the clauses of the contract and found that Mr Cowan worked for the council on a substantive basis as a management accountant and that it was not for the appellant to challenge this authority.
- In relation to Lambeth's application for costs after the application was dismissed, the tribunal said that whilst the appellant was not legally obliged to raise his concerns about Mr Cowan's behaviour with Mr Harding before bringing a complaint to the Employment Tribunal, they considered that what he had done in this instance was quite unreasonable. Ne put Lambeth, which is a public authority dependent on taxpayers' money, to substantial cost in time and money without taking the most elementary steps to ensure that the interpretation of Mr Cowan's authority was either correct or in any event arguable. In those circumstances the tribunal not only dismissed the appeal, but took the exceptional course of requiring the appellant to pay £500 by way of costs.
- The appellant appealed to the Employment Appeal Tribunal, chaired by Judge Levy QC, who set out in brief the facts of the case. They said, correctly, that the conclusions of fact made by the tribunal were wholly against the appellant. Judge Levy explained that the appeal tribunal told the appellant at the commencement of the hearing that they had to find an error of law in the tribunal's findings before committing an appeal to a full hearing. They considered the points that he raised and said that there was nothing in the terms of employment that they were shown which would help him. They went on to find that the tribunal was entitled, on the evidence before them to find the facts they found and on those facts to reach the decision they made. They said that they knew the appellant was disappointed about the decision of the tribunal. He had had his day in court. He was not entitled to have a re-run in an attempt to challenge findings of fact before an Appeal Tribunal.
- Nothing daunted, the appellant has sought permission to appeal to this court. On pages 9 and 10 of the bundle he set out in detail his grounds of appeal which he has sought to develop in argument in this court. I have listened to his arguments, I have read very carefully each of the grounds of appeal. If any of the grounds of appeal raised an argument of law fit for the consideration of this court, the Court of Appeal would grant permission to appeal. It is well settled that we will not refuse permission to appeal unless we consider that there is no real prospect of success on the appeal.
- I have considered all the points that Mr Apelogun-Gabriels has raised. Unhappily, I have reached the same conclusion as the Employment Appeal Tribunal, namely that this was a familiar case in the employment field where the result turned completely on the impression the witnesses of fact made to the three members of the tribunal who heard them. This tribunal heard Mr Cowan give evidence, they heard Mr Harding and another employee of Lambeth give evidence and they heard the appellant give evidence. They preferred the evidence of Lambeth's witnesses to the evidence of the appellant and they found against him. In my judgment that was a conclusion that they were entitled to make. They were entitled on the material in front of them to conclude that this management accountant did have authority to act as he did -- to ask for the telephone to be answered and to enquire whether somebody at a lower level of seniority was using the internet for an inappropriate purpose. In those circumstances I am of the clear view that this appeal raises no point of law fit for the consideration of this court. It is an issue of fact.
- The appellant will believe very strongly that the Employment Tribunal got the facts wrong, but Parliament has not provided the resources for appeals of fact to be taken to an appeal tribunal.
- In those circumstances, I would dismiss this application.