United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 383_95_2505

Appeal No. EAT/383/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th May 1995

HIS HONOUR JUDGE SMITH Q.C.

MRS R CHAPMAN

MR P DAWSON OBE

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MR D DE LA CRUZ          APPELLANT

ADOLESCENT CARE: MR & MRS S BIRT          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant THE APPELLANT IN PERSON


 


JUDGE SMITH Q.C.: This is a preliminary hearing ex parte to consider an application by Mr de la Cruz for leave for the matter to proceed to a full hearing by way of an appeal against a decision by an Industrial Tribunal sitting at Ashford in September 1994 and, in part, in January 1995. After a hearing, which took several days to complete, they decided first, that Mr de la Cruz had not been unfairly dismissed, either by way of constructive dismissal or by way of redundancy, and secondly, that Mr de la Cruz's claim that he was unlawfully discriminated against on the grounds of race by the respondents, who were called Adolescent Care, an organisation run by Mr and Mrs Birt, should be dismissed, and thirdly that his complaint under the Wages Act for certain monies that were due to him and had not been paid to him should succeed in part. Both sides in fact appeared before the Industrial Tribunal by Counsel. One of the major complaints, if not the main complaint, as we interpret Mr de la Cruz's submission to us, which he has made in person before us this morning, is that his case, which went on for quite a long time before it reached the final hearing, and in which there were some interlocutory hearings, was not properly handled by his union, which is UNISON, in major part, but also that it had not been properly handled by solicitors. We should make it quite clear that that is a matter which we cannot concern ourselves directly with at all. It may be, or it may not be, that Mr de la Cruz has got a legitimate complaint against the union and/or the solicitors with regard to the way in which his case was prepared, dealt with, and indeed presented, although no doubt counsel did his best, as Mr de la Cruz accepts during the actual hearing, but those matters, we must make clear, are matters which we cannot be concerned with.

The only matter we can consider is whether there is an arguable question of law, which might succeed before the Employment Appeal Tribunal, if the matter were to go to a full hearing. That is the test which we have to apply. Only if there is an arguable point of law, which could include a situation for example where a Tribunal had reached a conclusion on no evidence at all, so that the conclusion of fact that they had reached was a perverse one, can we allow the matter to proceed to a full hearing.

We should mention that the appellant who has argued the matter before us very courteously, although emphatically, this morning, has put a considerable amount of documents before us, which we have carefully considered. In particular of course, his Notice of Appeal dated 28th March 1995 and his skeleton argument dated 19th May 1995.

The appellant, whom the Industrial Tribunal accepted was of mixed racial origin, was employed as a project worker by the respondents, according to the findings of the Industrial Tribunal, and no point arises on this, on 4th December 1990, that is the date they refer to. The respondent organisation, which is called Adolescent Care, in outline provides residential- based care and support services for young people from various locations, in South London including in particular, Station Road in Sidcup and the Outreach Unit at Penge.

With regard to the allegation of racial discrimination, the appellant's complaint, as we understand it, centred around his contention that another employee, a Ms Elise Beck, had been preferred to him, and promoted instead of him to the post of acting senior project worker, on racial grounds. It was his case that the respondent, Mrs Birt, was racially prejudiced against him, and that this had influenced Mrs Dalton, who was directly responsible for making the appointment, not to appoint him to the job. As part of this complaint, and as the other prong in relation to this complaint, the complaint was made by the appellant that he was unfairly laid-off in July 1992, again for reasons connected with race. That in a nutshell is the matter which the Industrial Tribunal had to deal with.

It is in the light of that that we have looked at the decision, very carefully, of the Industrial Tribunal. The Industrial Tribunal dealt with this allegation of racial discrimination at paragraphs 15, 16, 17, 36, and 39 of its decision. We have very carefully considered the contents of those paragraphs, and we consider that they demonstrate, quite clearly, that the Industrial Tribunal referred themselves correctly to the legal principles involved, especially at paragraph 36 where they set out the relevant law in detail, namely Section 1 of the Race Relations Act 1976, Section 3 and Section 4 in detail, and they referred to the important case of King v Great Britain-China Centre [1992] ICR 516, and set out the guidance that was given by the Court of Appeal, particularly by Neill LJ, in that case, and carefully, in our judgment, directed themselves to the appropriate issue. Concluding in this way:

"The question for the Tribunal to resolve is whether the Applicant has shown that it was more probable than not that he was the victim of racial discrimination. In the present case the issue is whether the fact that Elise Beck was preferred for promotion over the Applicant and whether the fact of the Applicant's selection for lay off were motivated by unlawful racial discrimination."

That is no more than a summary, they had carefully considered the law in regard to this difficult topic in detail in the paragraph.

Having considered the law, we are also satisfied that they then made a proper and careful evaluation of the evidence which was before them, and reached findings of fact which they were entitled to reach and correctly applied the law to those findings of fact. This is clear from particularly paragraph 16 of the decision, expressed in this way:

"The Tribunal accept the evidence of Mrs Dalton that she considered that the Applicant was not functioning appropriately to become a senior member of staff and find as a fact that considerations of race played no part in the decision to promote Elise Beck in favour of the Applicant to the role of acting Senior Project Worker. The Tribunal find that Mrs Birt, although concerned about the Applicant's attitude to his work, did not have any prejudices regarding race in respect of the Applicant or any other employee of the Respondent organisation. The Tribunal do not accept the evidence of the Applicant that following his non-promotion he had enquired of Mrs Dalton whether his race had played any part in the decision and was told by Mrs Dalton that it was not so much to do with race but that Mrs Birt had stereotyped attitudes and that his tattoo and his hair were against his promotion. The Tribunal have had regard to the evidence of two former employees of the Respondent, whose evidence we accept, namely Lloydette Gooding, who was an African from Sierra Leone, and Raji Vimalachandran, who was from Sri Lanka. Neither witness had encountered any form of racial discrimination with the Respondent organisation and both said that Mrs Birt had never given any indication of any prejudice against black members of staff. Mrs Gooding said that Mrs Birt had encouraged the recruitment of black staff and Raji Vimalachandran said that she had been promoted by Mrs Birt to the position of Senior Project Manager."

They deal with the matter again at paragraph 39 and 40 of the decision, when they conclude, that at the material time when the question of promotion arose, as follows:

"... Elise Beck was the stronger candidate on the ground of motivation and enthusiasm."

And they conclude at the end of that paragraph that:

"... The Applicant's race was not a factor in either [in regard to the promotion or in regard to the lay off] circumstance."

Thus they accepted the evidence of the respondent in relation to the circumstances of Elise Beck's promotion and the applicant's lay off. They found that there was no unfavourable treatment of the applicant on the ground of race, and there was no evidence to support the allegation that the respondent organisation or Mrs Birt were guilty of unlawful racial discrimination. Indeed, the Tribunal considered that the evidence went the other way and found that the respondent organisation was completely untainted by any element of racial prejudice. So that was how the Tribunal dealt with this allegation.

There is no doubt about it that the applicant considers that they did not look at the evidence fairly and they reached unfair and wrong conclusions in relation to the evidence on this matter. He refers in particular to the fact that there were a lot of contemporary documents in a large bundle of documents, which he submits showed that the oral evidence which they accepted, on this issue, was not to be relied upon, and he submits they should have preferred the evidence in the documents, that is part of his submission. He also argued that his case was not sufficiently, clearly and forcefully presented because of the negligent way in which it had been prepared. With regard to that, we regret none of that gives rise to any arguable point of law on this first issue, which the Tribunal determined. Of course it may be sometimes that documentary evidence is stronger than oral evidence but, on the other hand, oral evidence may be stronger than documentary evidence, as was pointed out by one of the members in the course of argument today. All these matters must be for the Tribunal to decide. Although we understand and accept that the appellant is genuinely dissatisfied and feels wronged by the decision, that is quite a different thing from our being able to accept that there is any arguable question of law, with regard to this first matter which the Tribunal dealt with.

We move on to the allegation of unfair dismissal, which was based on constructive dismissal or redundancy, although the redundancy point was not a strongly argued point. The Industrial Tribunal dealt with the allegation of constructive dismissal against a factual background as they found it to be that the applicant had applied for employment with the City of Westminster on 29th April 1992, and had commenced that employment on 20th July 1992 immediately after he had left his employment with the respondents. It is apparent to us, having looked at the decision carefully, that the Industrial Tribunal considered the evidence relating to this allegation and made their findings of fact in paragraphs 18-23 of their decision. They expressed their factual conclusion at paragraph 23:

"The Tribunal find as a fact that the Applicant left the Respondent's employment because his application for employment by the City of Westminster had been successful and that he had already been given a starting date for such employment when he was requested to return to his duties by Mrs Dalton on 14 July 1992. Accordingly, the Applicant did not leave the Respondent's employment as a result of the Respondent's breach of contract in laying off the Applicant. It, therefore, follows from the finding of the Tribunal that the Applicant was not dismissed by the Respondent for reasons of redundancy."

The Tribunal applied the correct legal test which regard to this matter in paragraph 37 of their decision:

Unfair dismissal:

"23 The question for the Tribunal in the circumstances of the present case are whether the Respondent was in fundamental breach of the Applicant's contract of employment by laying him off and whether the Applicant, in the face of a repudiatory breach of contract, treated the contract as discharged and left his employment. It was common ground that the Respondent was in fundamental breach of contract by laying off the Applicant and consequently the remaining issue involves a factual issue, namely the reason for the termination of the Applicant's contract of employment."

Paragraph 41, the Tribunal found by way of conclusion that:

"... the Applicant left his employment with the Respondent because he had been offered employment with the City of Westminster, and that it was the confirmation of his starting date with Westminster which led the Applicant to leave the Respondent when he did. Despite the breach by the Respondent of the Applicant's contract of employment, the fact of such breach played no part in the timing of the Applicant's departure. In those circumstances, the issue of the Applicant's dismissal for reasons of redundancy does not arise."

Here again, we are quite satisfied that the Industrial Tribunal applied the correct legal test and that they applied it to facts which they were entitled to find on evidence which was before them.

It is against that background that we have come back again to consider the appellant's Notice of Appeal and his skeleton argument, and his submissions before us. We must repeat that we are all quite satisfied that they do not raise any arguable point of law. We consider that the reality is here that the appellant has got two main complaints. Firstly, his very strong criticism of the way the matter was handled by the union and the solicitors who were acting for him. Secondly, his complaint that the Industrial Tribunal reached unfair findings of fact, which were not justified on the evidence. With regard to the first, it is not in any way a matter for this Tribunal to consider whether there is or may be any complaint against the applicant's advisors. With regard to the second, we wholly reject this submission, since, in our judgment, there was plainly evidence upon which the Industrial Tribunal was entitled to reach the findings of fact that it did. We believe, in essence, that what the applicant wishes for is a re-hearing of this matter, and also in addition, he, in our judgment, has chosen to characterise the respondent's conduct as being perverse because they were able to take advantage, in his way of looking at the matter, of the inadequacies in the preparation of his side of the argument, and in that way they unfairly benefited from those shortcomings. We have considered all those matters with the greatest care, but at the end of the day we must conclude there is no arguable question of law for consideration at a full hearing of this appeal. Accordingly for the reasons we have given, we must dismiss this appeal.