England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Serota QC (sitting alone)
UKEATPA/1148/11/SM

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th January 2013

Lord Justice Rimer:

1. This is a renewed application for permission to appeal. Elias LJ refused permission on the papers on 8 November 2012, giving succinct reasons why an appeal had no real prospect of success. The applicant, Dr Paul Igboji, was not prepared to accept that and applied to renew his application at an oral hearing. By a letter of 13 December 2012, however, he wrote to the Civil Appeals Office explaining that he had returned to his parents in Nigeria and would not be attending the hearing. I have not seen that letter, but understand from the court's summary of it, when referring the case to Lewison LJ for directions during the Christmas vacation, that the applicant was inviting the court to deal with his application on the basis of his written submissions or else to appoint an advocate to represent him. Lewison LJ, on 28 December 2012, directed that today's hearing should remain in the list. As expected, the applicant has not attended in order to present his application. As for the suggestion that the court might appoint an advocate to represent the applicant, I know of no jurisdiction in the court to do that. Nor do I regard this as a case in which it is appropriate for the hearing to be adjourned with a view to ascertaining whether any pro bono representation might be available for the applicant. On the face of it, the case is a straightforward one in which, as it appears to me, as I shall now explain, the only proper course open to me is, like Elias LJ, to refuse the application.
2. The applicant is a former employee of Tesco Stores Limited, the respondent. He was employed by Tesco as a customer assistant, working nights, and was so employed for about six years until he was dismissed on 3 September 2010. Some time before his dismissal, he had commenced race discrimination proceedings against Tesco in an employment tribunal, which I understand were later struck out as disclosing no reasonable prospect of success. It is not, however, those proceedings that led to this application. The proceedings which did are proceedings for unfair dismissal that the applicant presented in the Bury St Edmunds Employment Tribunal ("the ET").
3. Tesco had dismissed the applicant summarily for misconduct. The misconduct was his failure to respond to a reasonable management request by failing to attend meetings and failing to make contact with the store since a meeting on 24 June 2010. The purpose of that meeting had been to investigate assertions against the applicant that on 11 and 19 June 2010 he had failed to adhere to Tesco's procedures concerning the placement and storage of food. The ET explained in its findings how the applicant refused to respond to questions put to him or otherwise to co-operate at the meeting, following which he was suspended. On 25 June, he was invited to an investigatory meeting to be held on 30 June and was told that its purpose was to obtain information regarding his:

"...unacceptable conduct and behaviour, and failure to answer our reasonable questions to support the meeting regarding incidents on 11.06.10 and 19.06.10."

4. The applicant responded to that invitation with a letter of 28 June, but did not attend the investigatory meeting, and the ET set out the subsequent history of the matter, being a history reflecting his continued refusal to co-operate with Tesco or to attend meetings, including a disciplinary meeting to be held on 27 August 2010, which was in fact then adjourned to 3 September so as to give the applicant a further opportunity to attend, which he did not take up. The applicant was dismissed at that adjourned meeting. He appealed against the dismissal, but he did not attend the meeting on 28 October 2010 at which his appeal was to be considered. His appeal was dismissed. The applicant then brought his claim to the ET for unfair dismissal.
5. The ET's conclusion, following a two-day hearing on 20 and 21 June 2011, for full written reasons sent to the parties on 19 July 2011, was that Tesco's dismissal of the applicant was:

"... entirely predictable and reasonable in the face of an almost impossible situation put before it by Dr Igboji for reasons which we cannot even now begin to guess of [sic: or] explain."

That is not, I should say, because the applicant did not give evidence and so have the opportunity of explaining himself. He did give evidence although, as the ET said in paragraph 17, they found him "an unhelpful witness", explaining further that:

"We were unable to rely in any way on almost all he said. We felt he was disingenuous and at times evasive. This is a view we formed on the basis of his evidence before us which was often in contradiction with itself. We also formed that view on the basis of a simple comparison of that which he told us and the documents and material before us. Sadly, there was frequent obvious illogicality and exaggeration through his evidence."




6. On the applicant's proposed appeal to the EAT, Langstaff J, on the paper sift, concluded that the grounds of appeal disclosed no arguable error of law on the part of the ET, although he did give directions for the service on the ET and the respondent of copies of the applicant's complaint that he had been refused the opportunity to address the ET orally on the second day of the hearing. The outcome of that exercise was that Langstaff J concluded that there had been no such procedural irregularity in proceedings as the applicant had alleged, and the overall outcome was that Langstaff J made a direction under Rule 3(7) of the Employment Appeal Tribunal Rules 1993 (as amended) that no further action was to be taken on the applicant's proposed appeal.
7. The applicant exercised his right under Rule 3(10) to argue that there was arguable merit in his appeal. That application came on for the hearing before HHJ Serota QC, sitting alone, on 26 June 2012, a hearing at which the applicant appeared in person. Judge Serota delivered a very full, thorough and careful 36-paragraph judgment explaining the background to the case, the nature of the applicant's complaints and why there was no arguable substance in any of his grounds of appeal. The applicant will have read what Judge Serota said in his judgment, and I see no merit in repeating it. In particular, Judge Serota made the basic point, in paragraph 30 and following, that it is no part of the EAT's function to review the facts found by the ET and that it has no jurisdiction to do so. The EAT's jurisdiction is confined to dealing with appeals based on arguable errors of law on the part of the ET. It is apparent that the applicant's attack on the ET's decision was substantially based on a challenge to its findings on the facts, whereas Judge Serota explained that it was for the ET to find the facts, as it had, and that there was no basis on which the EAT could interfere with those findings "save in the clearest cases of perversity, which did not pertain here". The applicant's complaint as to the finding that the dismissal was unfair was one which had no real prospect of success on a full appeal before the EAT, because he was unable to identify any arguable error of law on the part of the ET.
8. Elias LJ, in paragraphs 2, 3 and 4 of his written reasons of 8 November 2012, made essentially the same point, namely that the case did not raise any difficult questions of law. It turned on the facts, and the ET, which is the fact-finding tribunal, made the findings as to the facts that it did.
9. I agree with both Judge Serota and Elias LJ that the applicant has identified no arguable error of law on the part of the ET in coming to its conclusion that the applicant had been fairly dismissed. None of the new written material that the applicant has put before this court causes me to take any different view. Three points, however, remain.
10. First, there is the point as to the procedural fairness of the hearing before the ET. The applicant asserts that the ET did not give him, as they did to Tesco, the chance to summarise his final submissions orally on 21 June 2011 "and only relied on paperwork, irrespective of [my] being physically present during the hearing". That assertion was referred by Langstaff J, for their comments, to the ET. The response of Employment Judge Cole, who had presided at the hearing, was explained in his letter of 2 February 2012 and was that, at the end of the first day of the hearing, 20 June, he reminded the parties of the opportunities to make closing submissions if they wished to do, and that as the applicant was in person:

"... in accordance with my usual practice, I explained to him that it would not count against him in any way if he decided not to do so, but that the final decision lay with him."

Judge Cole continued by saying that, on the following day, the applicant said that he wished to read from a written closing
submission that he had prepared the previous day. The ET allowed him to do so, following which Judge Cole asked him if there was anything he wished to add. The applicant replied that he did not. Judge Cole continued:

"I have absolutely no doubt whatsoever that Dr Igboji was given the opportunity to add to the statement he read aloud, but declined to do so, despite what amounted almost to encouragement from me.

If my recollection was in any way vague (happily it was not), I am reminded from my contemporaneous note of the following sentence:

'C (the Claimant) does not want to add to written submissions'."

That account was supported by Miss Lee, one of the wing members, who explained by her letter of 25 January 2012 that she clearly remembered that the applicant did not wish to given any oral submissions in addition to his written two-page submission, as her notes confirmed. She added:

"Also, I noted that Judge Cole asked if Dr Igboji wished to add anything orally. He declined."

Miss Walsh, the solicitor from Squire Sanders who had presented Tesco's case to the ET, also gave her recollection, although it was one made without the benefit of a written note as to the particular matter in issue. She recalls Judge Cole explaining on the evening of 20 June that she, Miss Walsh, and the applicant would make submissions the following morning to close their cases. She recalls that the following morning the applicant produced a copy of his "Final Submissions to Employment Tribunal", of which she has retained her own copy. Her recollection is that Judge Cole asked the applicant if he wished to read the document aloud, or whether the ET could take his written submissions as his final submissions. She said that the applicant agreed that he was happy for the panel to read the submissions and that he did not want to read them aloud. She then proceeded with her own submissions. She added:


"It is certainly not the case that the Claimant was not permitted to address the Tribunal orally. He was given this opportunity and declined it."

11. The applicant is right that there is a discrepancy in those recollections, in that the two panel members recall that he read out his written submissions, whereas Miss Walsh's recollection was that he did not, although she had not been able to refresh her memory with a written note. All, however, are agreed that the applicant was given the opportunity to address the ET orally, but he declined it.
12. Langstaff J took the view that those responses to the applicant's assertion that he had been deprived of the right to address the ET orally were consistent in their view that he had been given that right and that the applicant had no reasonable prospect of showing otherwise on a full appeal to the EAT. In that context it is important to note, as the applicant may not have appreciated, that it would not have been open to him to cross-examine the ET members on their account since that is something that the EAT does not permit.
13. On the Rule 3(10) application, Judge Serota agreed with Langstaff J. He roundly rejected the applicant's assertion that the ET members were lying in saying that he had been offered the opportunity to address the tribunal orally. He said this was:

"... quite unarguable and the [EAT] is bound to accept the statements of the Employment Judge to the contrary, noting that they are supported by the lay member, the solicitor and, further, by a passage in the judgment itself."

That last reference was to paragraph 17 of the ET's reasons, which opened as follows:

"This morning, we heard, having reminded the parties yesterday, closing submissions from each of them. Dr Igboji again preferred to give his first. He read from a short written statement prepared last evening. For the respondent Ms Walsh addressed us orally…."

That of course supports Judge Cole's recollection that the applicant read his submissions out and paragraph 1 of the reserved reasons records that the reasons were "prepared by the tribunal at the conclusion of the hearing today", which I read as meaning promptly after that hearing. It is fair to note that paragraph 17 does not refer to the giving to the applicant of the opportunity to add to what he had read by way of submissions, but the omission to make any reference to that does not mean that he was not given that opportunity, and Langstaff J and Judge Serota were satisfied on the material before them that he was.

14. I can see no prospect of the Court of Appeal taking a view on this question different from that of Judge Serota. The Court of Appeal, no more than the EAT, is not going to permit any cross-examination of the ET panel. Like Elias LJ, I agree that the issue raised by the applicant as to the procedural integrity of the hearing before the ET has been decided by the EAT, and that, for all practical purposes, is the end of the matter. There is no basis on which the Court of Appeal can or will review the EAT's decision on it.
15. The second point to which I should refer is the applicant's complaint that no contract of employment was provided to him by Tesco. Judge Serota dismissed that point summarily at paragraph 35, saying that, even if so, it was irrelevant. Elias LJ dealt with it rather more fully in his reasons for refusing permission to appeal, saying that even if the assertion was correct, it made no material difference. As he said:

"…it does not meet the point that the continuing lack of co-operation was a fundamental breach of contract, as would be the case, whether or not he had seen the disciplinary rules."

I agree with that, but perhaps the more significant point that Elias LJ made, with which I also agree, was that this is not apparently a point that the applicant made to the ET. Therefore, even if there was something in it, it cannot have been an error of law for the ET not to deal with a point not put to them; and there was therefore no proper basis on which the point could be raised for the first time in the EAT.

16. The third point that I should notice is that, in his written grounds of appeal submitted to this court, the applicant says on the second page:

"The EAT in their decision on 26.06.12 decided to stand by the ET decision, ignoring all my affidavits with supporting documents, made up of 329 pages of my personal file [of] employment at Tesco Stores Ltd legal disclosure, 116 pages of evidence bundle submitted to the EAT, 168 pages full merit hearing bundles submitted to the ET and over 50 pages of evidence submitted to both the ET and the EAT. Yet, there is no single supportive evidence from Tesco Stores Ltd, except the 7 pages witness statement from Tesco Stores Ltd -- Sue Green."

17. I should mention that there is also in the material provided to this court a very large bundle of documents headed "New admissible legal evidence for case". To what extent it includes or adds to the documents which are referred to in the passage I have just read is not clear to me. In relation to that comment by the applicant, to the extent that he was relying before the EAT, and seeks to rely before this court, on material that was not before the ET, such material cannot be relevant to whether the ET made an error of law. The ET cannot have made an error of law by not having regard to material that was not put before it. To the extent that the applicant was referring to material that was before the ET, he can still only mount a proper ground for challenge against the decision of the ET if he can show in what respect the ET made an error of law. His generalised reference to that bundle of material does not, without more, assist him in demonstrating any such error. The applicant has prepared a long 75-paragraph account of his perception of the history of this matter, and it reflects a deep dissatisfaction with the whole process, including the parts played in it by the ET and the EAT, of which he is unreservedly critical. The only basis, however, upon which the applicant can legitimately seek permission to appeal from this court is that the EAT made one or more errors of law in ruling against the applicant on his Rule 3(10) application. None of the material before this court, including the document to which I have just referred, shows that the EAT made any arguable error of law. Whether, had the applicant attended this application in person with a view to persuading me otherwise, I would come to a different view, I of course cannot know. I can, however, only deal with this application on the basis of the written material.
18. Like Elias LJ, I too would refuse permission to the applicant to appeal.

Order: Application refused.