United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1056_95_0412

Appeal No. EAT/1056/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4th December 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR D J JENKINS MBE

MISS A MACKIE OBE

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MR C T BOYO          APPELLANT

LONDON BOROUGH OF LAMBETH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal by Mr C T Boyo against the decision of the Industrial Tribunal held at London (South) over 25 days, between 9 May 1994 and 25 July 1995.

The Tribunal notified the full reasons for their decision on Mr Boyo's claim for race discrimination against London Borough of Lambeth in the decision document sent to the parties on 16 August 1995. Mr Boyo was dissatisfied with the decision and served a Notice of Appeal on 28 August. As in the Industrial Tribunal, Mr Boyo has represented himself, and if we may say so, has presented a clear, articulate argument in support of his appeal. The Notice of Appeal as elaborated in oral submissions by Mr Boyo in about 3 hours, is centred on eight main legal points, developed in 144 paragraph critique of a decision running to 47 pages.

The wealth of argument and detail should not, however, obscure this Tribunal's vision of the principal point. That point is whether the Industrial Tribunal committed any error of law in the decision to reject Mr Boyo's claim of race discrimination. There may be points of detail in a decision open to criticism. It may be open to criticism in that the explanation is not as full as it might have been on the facts and the legal reasoning. There may be criticisms of the way the Tribunal have expressed themselves. There may be criticisms of individual passages which, taken on their own, might be the basis of a possible argument that the Tribunal failed to consider all the matters which they should have done. There may be criticisms of indications in certain passages that the Tribunal have taken account of things which they should not have taken account. The function of this Tribunal is, however, clear. It must look at the decision as a whole and ask is there any arguable legal error in it? If there is, that should be investigated at a full hearing.

It is accepted by Mr Boyo that the Tribunal gave themselves correct directions as to the issues and the law. The thrust of his argument is that the Tribunal fell into error of law when they came to apply the statutory provisions and legal principles to the facts. The facts are set out in detail in the extended reasons. The dispute, on which those facts were found, was initiated by Mr Boyo in an Originating Application, presented to the Industrial Tribunal on 26 November 1991. The claim was originally for unfair dismissal only. It was later amended to add a claim of unlawful racial discrimination contrary to the Race Relations Act 1976. Later, we are informed by Mr Boyo, the claim for unfair dismissal was withdrawn by him, in the context of other proceedings brought by him in the County Court against Lambeth Borough Council for wrongful dismissal.

The essence of his case is that he was an employee of the London Borough of Lambeth, as a Local Government Officer, from July 1987 until, on 9 August 1991, he was suspended from work pending the outcome of police investigations into allegations of fraud. There were bail conditions which inhibited him making contact with Council Officers, with limited exceptions, and limited his contact with persons who would make contact with any member of the Council. He was subsequently charged, along with others, with an offence of conspiracy to defraud Lambeth Council. He appeared in Court and was granted bail on the terms mentioned, that there should not be contact. On 29 October 1991, the Council wrote to him lifting the suspension and in the same letter contended that the contract of employment had been frustrated. He was sent his P45 and other documents received by him on 2 November 1991. The Council failed to pay him his salary on 15 November and failed to comply (this is an important aspect of the discrimination claim) with own disciplinary procedures. The claim was resisted by the Council.

At the 25 day hearing the Tribunal heard a large number of witnesses. They heard evidence from Mr Boyo and from four witnesses called by him. They heard evidence from a large number of witnesses who were officials of the Council. It also appears that a large number of documents contained in various volumes were studied by the Tribunal. The Tribunal, under the findings of fact, set out the history of Mr Boyo's employment. They gave an account of the circumstances of his suspension and of the decision of the Council to treat his contract of employment as terminated by frustration.

The Tribunal identified the issues in paragraph 19 of the decision as follows:

"The Applicant complains that he has been unlawfully discriminated against on grounds of his colour and/or his national origin in the way the Respondent failed to apply the disciplinary procedures to him, thus depriving him of the opportunity to state his side of the case; by treating his contract as terminated by reason of frustration and finally in the exercise of the Director of Finance's discretion, firstly in suspending him and then by refusing him access to paternity leave, special leave and annual leave following the 18 October 1991."

The important point to note is that the question on each issue was whether, what was done to Mr Boyo's detriment, was on grounds of his colour, race, or national origin. It is not enough to prove that there has been unfair or detrimental treatment. It must be established that any such treatment to his detriment has been on the ground of race or colour.

The Tribunal set out in paragraphs 20-25 a correct summary of the relevant statutory provisions and of the approach which they should adopt to resolving the issues. In particular, they gave an accurate summary of the approach laid down by the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513 at 518. Although the burden of proof was on Mr Boyo to establish his claim, on the balance of probabilities, the Tribunal were entitled to make a finding of racial discrimination, if they found that there was different treatment of persons of different colour or race, and no explanation or no adequate or satisfactory explanation was given by the Council for that treatment. The Tribunal pointed out that they could take into account a failure to reply to a questionnaire served under Section 65 of the 1976 Act or to an evasive or equivocal reply to such a questionnaire, if it considered just and equitable in all the circumstances.

The Tribunal said that the question they had to ask themselves is whether Mr Boyo would have received the same treatment from the Council but for his race or national origin. The Tribunal in the succeeding paragraphs dealt with the various complaints. On the complaint that the Council had failed to apply its disciplinary procedure to him, the Tribunal found that he had been treated less favourably than persons of other colour or race. They said at the end of paragraph 26:

"... The Tribunal notes that the Applicant is black and Nigerian and that there are examples of white and non-Nigerian employees of the Council, accused of fraud, who have been given the benefit of a disciplinary hearing. It therefore looked to the Respondent to provide an explanation for its behaviour."

The Tribunal considered in detail the explanations for the behaviour of the Council. The explanation started with the account which the Council gave in their evidence that the police had told them that none of the evidence on which the charges were based, could be made available to the Council prior to the criminal proceedings. The Council saw the disciplinary issue in terms of gross misconduct by fraud. They took the view that the refusal of the police to make the evidence available to them, meant that they could not institute the proper disciplinary procedures. Mr Boyo asked the Tribunal to infer that the failure to implement the disciplinary procedures was a ruse based on their racism. He drew the Tribunal's attention to an important point, also drawn to our attention in some detail, that, in response to the questionnaire of the Commission for Racial Equality, the Tribunal had found that the Council's answers to questions, insofar as answers were given at all, were untrue and misleading. The Council had said that the disciplinary procedure was followed in every respect. That was not the case. Mr Boyo asked the Tribunal to draw the inference which it was entitled to draw, the inference under Section 65, that the Council had acted unlawfully, because they had acted on racial grounds.

Having considered this point, the Tribunal said that it did not find it appropriate to draw the inference which they were invited by Mr Boyo to draw. They went on to say that a major consideration for the Council, leading up to the urgency committee report, was the unavailability of the evidence on which the criminal charges were based. They said that no-one had spotted, at that time, the possibility that disciplinary proceedings could be brought on the basis of failure to attend work. They said it was clear to them [the Tribunal] that the thoughts of the Council's officers were totally on the question whether disciplinary procedures could be instituted on the ground of fraud. The police response to their request for evidence made that impossible. In those circumstances the Tribunal found that the failure to institute the disciplinary procedure against Mr Boyo was not based on his race or colour. They therefore ruled against him on that part.

They next considered his second complaint of discrimination, that his employment had been treated as terminated by reason of frustration. He claimed that that was a dismissal on the ground of his colour or national origin. He relied on a number of matters. He relied on alleged racist remarks made by Mr Botfish at an interview on 8 August. That interview was discussed in detail earlier in the decision. The Tribunal found that the remarks which Mr Boyo alleged had been made by Mr Botfish were unsubstantiated. He referred to other matters, such as the denial of his right to institute a grievance procedure, the failure of the Council to reply to his letters, or to allow him a meeting at which he could put forward his views: the refusal to consider alternatives; such as paternity leave or special leave: the fact that white employees were treated more favourably in disciplinary matters than black employees; in particular, that they are more frequently allowed to remain on suspension with pay for long periods and are allowed sick pay and early retirement, and finally that the decision to terminate his contract by reason of frustration was orchestrated by a Mr Scrace, against whom racist allegations had been made.

The Tribunal considered all those complaints and found that they were successfully refuted by the Council in their evidence. A general point made by the Tribunal is that they had received the overwhelming impression that the disciplinary proceedings of the Council were not dealt with in any consistent and efficient manner (paragraph 29). The Tribunal found that there was no evidence that white employees were consistently treated better than black employees. They rejected the claim that the treatment of Mr Boyo's contract as frustrated was on the grounds of his race or colour. They say that played no part in the solution which the Council had reached.

In the remaining matters, that is, the exercise of the Director's discretion in suspending Mr Boyo, in refusing to allow him to institute grievance procedures, and in refusing to allow him to substitute various kinds of leave in place of suspension, the Tribunal also came to the conclusion that there was no evidence that a white person or non-Nigerian would not have been suspended in similar circumstances. They found that the decision of the Director was reasonable. They accepted the Council's argument that it was generally inappropriate to permit the invoking of grievance procedures whilst the person was legitimately on suspension. They also accepted the Council's explanation about substituting annual leave, paternity leave, or special leave for a person on suspension.

That is a summary of the way in which the Tribunal reached this decision that Mr Boyo had failed to establish his case on the balance of probabilities. In the case of every allegation of race discrimination, the answer of the Tribunal was the same; that is, that although there had in certain respects been less favourable treatment of Mr Boyo than the treatment that would have been given to whites or people of other national origins, the Tribunal accepted the explanations given by the Council for what they had done as adequate or satisfactory. That does not mean that they had no criticism of the Council. They had serious criticisms of the Council for the lack of consistency in the way that they dealt with such matters and their lack of efficiency in dealing, but they were unable to find that Mr Boyo had proved that any of the detrimental treatment was explained on grounds of race or colour. That is essentially a finding of fact. It is for the Tribunal which hears the witnesses and examines their evidence and the documents, to decide whether, as a matter of fact, treatment had been meted out to the Applicant on the grounds of race, or on some other ground which is not unlawful. We can only interfere with that decision if we can show there is a legal misdirection.

Mr Boyo has argued in detail today, by reference to his arguments in the Notice of Appeal, that there are legal points. He has argued in detail about the circumstances surrounding the failure to apply the disciplinary procedure to him. He has singled out for particular criticism the failure of the Tribunal to make an inference under Section 65 of the Race Relations Act on the basis of no replies at all to many questions and untruthful replies to some crucial questions. He said that inefficiency or inconsistency should not be relied on as an excuse for racial discrimination. A theme which ran through his submissions was that there was a difference between explanations which might be regarded as adequate or satisfactory and excuses which were not enough. He emphasised, by reference to the cases, that it is important for a Tribunal to find that the explanations which are given are not just adequate or satisfactory but genuine. He said that in this case it was really one of excuses which did not amount to genuine explanations of the way the Council had treated him. In all those circumstances the Tribunal should have come to the conclusion that the matters he complained of were motivated by racial grounds.

We do not think it is necessary to review the arguments in more detail than that. Mr Boyo is to be commended for the thoroughness of the way in which he has examined the Tribunal's decision but we would emphasise this: it is not enough to present to the Appeal Tribunal detailed criticisms of the reasoning of the Tribunal in relation to the facts or the law. What has to be identified is an error of law in the Tribunal's decision which led them to make a wrong conclusion about the complaint. Reading this decision as a whole, in the light of all these detailed arguments, and in the light of the detailed documents in another folder of documents presented this morning by Mr Boyo, we are unable to find, in all these points of detail, any error of law in the Tribunal's decision. It really comes back to this. In the paragraphs mentioned, the Tribunal correctly identified the issues. They made findings of fact relevant to those issues which cannot be disturbed on this appeal. Mr Boyo has not attempted, and he could not hope to do so with any prospect of success, to disturb those findings of fact. The Tribunal made a correct statement of the legal principles.

This appeal is an attempt to question the legal correctness of the way in which they have applied those legal principles to the facts. We can see that another Industrial Tribunal might, on the material put before them, have reached a different conclusion on some of the complaints made by Mr Boyo. That is not enough. In the area of inferences, it is possible for one Tribunal, correctly, to infer that there was racial discrimination and for another Tribunal, correctly, to infer that there was not. The only way in which a failure of a Tribunal to make an inference of racial discrimination can be faulted on legal grounds, is if it can be demonstrated that no reasonable Tribunal, with a correct appreciation of the facts and the correct understanding of the law, could have failed to make the inference of racial discrimination. We are unable to say that there was perversity or irrationality in this Industrial Tribunal's decision.

The Tribunal have made clear findings of fact and a correct identification of the issues of the law and have applied them in a way that they were entitled to, even though Mr Boyo disagrees with that result, and even though we, had we been the Industrial Tribunal, might have taken a different approach. We have to examine the approach they did take and identify a legal error in it, if there is one. We are unable to find one. For all those reasons there is no arguable legal point on this appeal. It will be dismissed today.