England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London WC2 Wednesday, 8th May 2002

Wednesday, 8th May 2002

1. LORD JUSTICE BROOKE: This is an application for permission to appeal against a judgment of the Employment Appeal Tribunal on 10th December 2001, when it dismissed an appeal by the appellant from a judgment of the Employment Tribunal following a nine day hearing in June 2000. The Employment Tribunal gave 28 pages of extended reasons.
2. It had heard four consolidated complaints by the appellant against Star Texaco Limited and various of its employees. There were complaints of race discrimination and victimisation brought in October 1996 and June 1998 against the first respondents and Miss Kelly, one of their area managers.
3. On 10th September 1999, there were complaints of the same kind against the company and the third respondent, a Mr Thirukkumar, a site manager, and finally on 25th January 2000, there were complaints of race discrimination, victimisation, breach of contract and unfair dismissal against the company, and a complaint of victimisation against Miss Doukamaris, an area manager.
4. All four applications were heard together. On 29th August 2000, a Notice of Appeal to the Employment Appeal Tribunal was lodged, setting out 19 paragraphs of grounds of appeal, and at a preliminary hearing on 4th April 2001, the Employment Appeal Tribunal allowed some of these grounds to go forward to a substantive hearing.
5. In essence the Employment Appeal Tribunal in its judgment asked itself five questions:
6. First, did the Employment Tribunal conclude that the company was improperly joined without giving the appellant a proper opportunity to deal with the point? That issue arose out of a finding by the Tribunal based on the effect of a transfer of undertaking on 9th November 1999.
7. The Employment Appeal Tribunal formed the view that it was unnecessary to decide this point. If the rest of the claim failed, it was irrelevant to determine whether the complaint should be brought against Texaco Limited or against its successor.
8. That conclusion appears to me to be soundly based, and of course it depends on the quality of its findings on the other issues. The time of the Tribunal and the courts will not be taken up in deciding matters of academic interest if a substantive complaint fails, such that it is unnecessary to reach any firm conclusion as to who is the appropriate respondent.
9. The second question the Employment Appeal Tribunal asked itself was this: did the Employment Tribunal give inadequate reasons for its conclusion about the credibility of witnesses, especially the appellant?
10. This court has very recently, in the case of English, given a judgment about the appropriate approach of an appellant court in a challenge to reasons. As I have said, there were the 28 pages of extended reasons by the Employment Tribunal and a flavour of its conclusion -- a unanimous conclusion -- after a nine day hearing, can be picked up from a few passages. On pages 14 to 15, the Tribunal said this:

"As will become apparent from the findings of fact below, when the Tribunal has had to choose between the accuracy and reliability of witnesses it has favoured the testimony of those who gave evidence on behalf of the Respondent. This is for two reasons:-

"(a) The documentary evidence tended to support their testimony.

"(b) The Respondent's witnesses gave their evidence in a measured way and for the main part attempted to assist the Tribunal by answering the questions put.

"In contrast, Mr Afolayan appeared evasive as he would often delay in answering questions seeking time in which to double check a documentary reference and then repeat evidence he had already given".

11. On page 24 of the judgment, the Tribunal explained why it put onto one side allegations made by the company that Mr Afolayan took an unauthorised holiday in Nigeria and that he falsified the fact that he had attended a doctor's surgery on a date in 1999, but it then continued at paragraph 29:

"Having said that however, it is still only right that we should remark upon Mr Afolayan's credibility and the way in which he has conducted his litigation. Suffice it to say that the Tribunal finds the following criticisms made of Mr Afolayan on behalf of the Respondents to be well founded --

"(i) Many of his allegations have been vague and poorly formulated especially in respect of pay.

"(ii) Several of his allegations do not begin to establish a case as basic points of comparison were not checked when he issued his Originating Applications especially in respect of staff, their status and pay differentials.

"(iii) The reckless way in which Mr Afolayan has cast aspersions upon the integrity of others with no evidential foundation, especially with regard to Mr Theva and Miss Hillyer".

12. The Tribunal then went on to make findings adverse to Mr Afolayan after dismissing his allegations. They said this:

"The evidence of this case has followed a troubling pattern. Each time the Respondent or members of its management team sought to criticise Mr Afolayan he has retaliated over the years with formal grievance proceedings or an originating application making allegations of a serious nature of race discrimination, victimisation and ultimately unfair dismissal. In the course of a ten day hearing this Tribunal has heard little evidence to sustain those grievances and complaints. As to the allegations of forgery and falsification of documents, these are serious matters and it is only right to state that nothing adduced in the course of evidence has established any credible basis for them".

13. Those were certainly clear reasons why they reached the conclusions they did on the credibility of witnesses. Mr Afolayan disagrees with them, and has pointed out matters of detail that they should have taken into account, but this was a unanimous view of an experienced Tribunal, who heard the witnesses for nine days, and the appellate courts have said again and again that a Tribunal of fact who hears the witnesses is in a far better position than an appellate court will ever be in reaching conclusions about credibility.
14. The third issue was: did the Employment Tribunal make perverse findings?
15. It is always difficult for a lay litigant to appreciate the difference between a point of fact and a point of law and the Appeal Tribunal only has a power to interfere in relation to points of law. It concluded that there was evidence to support the findings the Tribunal made, and I can see no real prospect of a successful appeal against that conclusion.
16. The fourth issue that the Employment Appeal Tribunal had to decide was whether the Employment Tribunal was right to conclude that certain of the claims were time-barred. The Employment Tribunal had held that ten of the complaints under the Race Relations Act were out of time, and that two of the complaints were in time, where they exercised their discretion favourably to the appellant.
17. The appellant challenged only two of these matters before the Employment Appeal Tribunal, but it found that these were complaints of one-off acts, and not of a pattern of behaviour. They related to bonus payments made on 14th February 1997, and the complaint which was made about them over a year later was out of time. In my judgment, there is no real prospect of disturbing the Employment Appeal Tribunal's decision on that matter.
18. The fifth question on which the Employment Tribunal was concerned went like this. They said at paragraph 21 of the judgment:

"The Appellant's contention at Ground 10 of the Grounds of Appeal is set out as follows:

"'10. The description and victimisation became even most prominent when the appellant applied for the position of site manager backed by a very strong appraisal and a very high recommendation in 1999 by his site manager at Chelsea. The appellant never received an acknowledgement of his application. This evidence was not even mentioned by the Tribunal in their decision.'"

19. At paragraph 22, the Tribunal said:

"Mr Okai submits, by reference to a favourable appraisal of the Appellant's performance made on 12th March 1999 that it was relevant to his claim this his failure to obtain promotion thereafter was discriminatory and an act of victimisation, but it is barely mentioned in paragraph 33 of the Employment Tribunal's reasons, where they deal with this complaint. That really will not do. At paragraph 33 the Employment Tribunal acknowledged the assessment by Mr Theva in March 1999 but go on to find an overall picture of under-achievement by the Appellant as a supervisor and in particular an audit at the Chelsea site after March 1999 which revealed further inadequacies in his performance. We regard this final point as a straightforward attempt to seek to reargue the facts. That will not be permitted on appeal".

20. In conclusion, they could discern no error of law in the Employment Tribunal's approach and thought that their decision and reasons demonstrated careful attention to their fact finding role and the proper application of the law to the facts. The procedural point as to who is the proper corporate respondent was therefore academic.
21. Mr Afolayan does not seem to have understood what the Employment Appeal Tribunal was saying about the limited function of an Appellate Tribunal, to whom appeals can only lie on a point of law, because in his provisional skeleton argument, many, many, many points of detail on the facts have been put forward.
22. Parliament has determined that there should be no right of appeal on the facts, unless the Tribunal has misdirected itself on the facts in some of the striking ways which give rise to a conclusion that it must have gone wrong as a matter of law.
23. In my judgment, the Employment Appeal Tribunal's approach to the Employment Tribunal's conclusion of fact was soundly based. Reminding myself that it is the conclusion of the Employment Tribunal which would be subject to scrutiny in this court, although Mr Afolayan made a number of points of complaint upon matters of detail, I can see no real prospect of any successful appeal. The Employment Tribunal clearly went into these matters with very great care over this very long hearing, during which they will have had ample opportunity to make up their minds at to whether Mr Afolayan's complaints were soundly based or not. They came to very firm conclusions adverse to his complaint, and for those reasons, I would dismiss this application.
ORDER: Application dismissed.