United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR D SMEDLEY (Solicitor) Messrs Walker Morris Solicitors Kings Court 12 Kings Street Leeds LS1 2HL
For the Respondent	THE RESPONDENT IN PERSON


 


JUDGE PETER CLARK: Since 1st November 1990 Mr Olaleye has been employed by the Bradford & Northern Housing Association ["the Association"] as an internal auditor. He is a black male of African origin. The Chief Executive of the Association has at all relevant times been Mr D Oxley.

On 18th June 1996 Mr Olaleye presented an originating application to an Industrial Tribunal complaining of unlawful race discrimination in his employment. We shall refer to him as "the Applicant". He named as respondent Mr Oxley, and gave his address as that of the Association in Shipley, Yorkshire. The case was allocated to the Leeds Industrial Tribunal.

On 4th July 1996 the Applicant wrote to the tribunal asking that his application should name the Association as first respondent and Mr Oxley as second respondent.

On 5th July he sent a questionnaire under section 65 of the Race Relations Act 1976. We shall return to the detail of the questionnaire later.

On 11th July the Leeds tribunal secretariat wrote to the Association informing it that a Chairman had given instructions that it be joined as a respondent.

On 12th July a notice of appearance was lodged giving the name of the Association as respondent, and stated:

"The Association seeks confirmation that Mr D Oxleys names can be formally removed as a party."

On 19th July 1996 the tribunal wrote to the Association, enquiring whether the notice of appearance was designed to cover Mr Oxley, or whether he would be submitting a separate notice.

On 22nd July the Association wrote again to the tribunal making application for Mr Oxley to be removed as a respondent. The Applicant was asked for his comments; said that he wished Mr Oxley to remain as a respondent, and the tribunal, by letter dated 29th July, directed that the application would proceed against both respondents.

On 2nd August the tribunal wrote to the parties, arranging for a directions hearing to be held on 23rd August ["the first directions hearing"].

At that hearing, before a Chairman, Mr Hepworth, sitting alone, the Chairman refused an application on behalf of Mr Oxley to remove him from the proceedings. Power to make such an order is to be found in Rule 17(2) of the Industrial Tribunal Rules of Procedure 1993, which provides:

" (2) A tribunal may ... order any respondent named in the originating application or subsequently added, who appears to the tribunal not to have been, or to have ceased to be, directly interested in the subject of the originating application, be dismissed from the proceedings."

In the course of correspondence, and at the first directions hearing, the respondents complained that the Applicant had not particularised his complaint. Specifically, it was said that Mr Oxley did not know the nature of the case against him personally.

Accordingly, at that hearing, the Applicant was directed to state the nature of his complaint. What he said is recorded at paragraph 6 of the directions letter dated 29th August 1996, in these terms:

"6. The Applicant confirmed that his complaint within the terms of the Race Relations Act 1976 centred upon an application in 1994 to be promoted to a post of senior auditor at which he had been unsuccessful, and also in 1995 when he was unsuccessful in an application for promotion to the post of executive assistant. Further that his place on the salary scale had been kept low because of his ethnic origins."

In addition, it is recorded at paragraph 4 of the same letter that he agreed to provide answers to written requests for further particulars from the respondent.

On 10th October the respondents wrote to the Applicant seeking further and better particulars of his complaint. The request ran to 12 separate requests. Request No. 12 reads as follows:

"12 State with full particularity, the way or ways in which you say that Mr Desmond Oxley is directly involved in the allegations of discrimination which have been made by you. Specify, with full particularity, the facts and matters you intend to refer to and rely upon at trial to support your allegation that Mr Oxley is directly interested in the alleged discriminatory acts."

In his reply dated 12th October the Applicant said this:

"My 18 December 1992 appraisal was signed by Mr. D Oxley and he commented "(Discuss with Mr Doyle Question of promotion) 6.1.93". When I queried the outcome of the discussion in 1994 the Secretariat Director stated in her letter dated 23 June 1994 in para 9 that "with reference to your question at the meeting regarding a meeting which took place in December 1992, between Mr Oxley and Mr Doyle" (Mr Oxley dated his comment 6.1.93). The Secretariat Director further stated "As pointed out to you, we cannot possibly advice you of the outcome of any discussions which took place other than to stress they were purely discussions and did take place some time ago, and cannot be relevant to our decision today."

The Applicant continues:

"Also the response to my RR65 Questionnaire (9) "Please state whether the Chief Executive Mr D Oxley did discuss my promotion with Mr Doyle Internal Audit Controller?." The response was "Mr Oxley cannot recall whether or not this was discussed."

We should refer in a little more detail to the questionnaire. Under section 6 the Applicant asked these questions:

" ... I refer to my December 1992/93 Appraisal signed by the Chief Executive Mr D Oxley where he made comments as follows: "(DISCUSS WITH MR DOYLE QUESTION OF PROMOTION) 6.1.93"

9. Please state whether the Chief Executive - Mr D Oxley did discuss my promotion with Mr Doyle - Internal Audit Controller?

10. Please state the outcome of the discussion?"

The answers to those questions, in a reply put in on behalf of the respondents were these:

"9. Mr Oxley cannot recall whether or not this was discussed, however, as stated under question 2, at the salary review following that note on your appraisal form, your post title did change to Assistant Internal Auditor and you new grade of 21-34 was agreed. 21-34 at that time equated to £10,354-£14,129. Prior to that, your Junior Internal Auditor 'Professional' grade had been £8,362-£16,317. As previously explained these were bands rather than grades and were never a useful indication of where within the band/scale any post should sit, hence the change to specific grades on one spinal column.

10. As explained in 9."

Dissatisfied with the Applicant's replies to the request for further and better particulars, the respondents solicitors wrote to the tribunal on 18th October, asking to renew their application to have Mr Oxley removed from the proceedings.

That further application came before Mr John Prophet, the Regional Chairman, on 4th November 1996. He declined to make the order sought. His reasoning is set out in a letter dated 6th November. He said this:

"1. Mr Smedley applies again for Mr Oxley to be dismissed as a respondent from these proceedings. The thrust of Mr Olaleye's case as he has explained it to me today is that he has been underpaid on a continuing basis by his employer and that involved in that is race discrimination. He makes a number of allegations which he says indicate that Mr Oxley as the chief executive played a significant part in that discrimination. That is strongly denied by Mr Smedley on behalf of Mr Oxley. These are all matters which, in due course, will be the subject of determination by the industrial tribunal which hears the case in full. At this stage, I am quite unable to accept that there could be no conceivable ground for Mr Oxley remaining as a named respondent to these proceedings. Indeed on the contrary if, as of course has yet to be tested, the allegations which Mr Olaleye's wishes to make have any substance, then the possibly of Mr Oxley being directly involved can in no way be ruled out. Accordingly the application is refused."

It is against that order that Mr Oxley now appeals to this appeal tribunal.

This is an interlocutory appeal. We cannot interfere with an order of the Industrial Tribunal unless an error of law is made out. See Adams & Raynor v West Sussex County Council [1990] IRLR 215. We must be satisfied that the Industrial Tribunal Chairman has fallen into error by failing to exercise his discretion judicially. In short, that the decision contains a self-misdirection or is perverse in the sense identified by Arnold J in Bastick v James Lane [1979] ICR 778, 782, and approved by the Court of Appeal in Carter v Credit Change Ltd[1979] ICR 908, 918 (per Stephenson LJ).

With those limitations on our jurisdiction in mind we turn to the submissions made by Mr Smedley on behalf of the appellant.

He accepts that an employee for whom the employer is vicariously liable may himself be liable under section 33(2) of the 1976 Act on the grounds that he is aiding and abetting the unlawful racial discrimination. For this reason employees are frequently joined as respondents to complaints under the 1976 Act.

However, he submits that there is nothing in the Applicant's pleaded case to show that Mr Oxley knowingly aided or abetted the Association to commit acts of unlawful racial discrimination. Further, he contends that Mr Prophet misdirected himself in relation to Rule 17(2) of the 1993 Rules. That Chairman held that the possibility of Mr Oxley being directly involved cannot be ruled out. Mr Smedley argues that this is the wrong test. The Rule speaks of a person who does not appear to be directly interested. Directly involved is a different concept.

We have set out the nature of the Applicant's pleaded case against Mr Oxley in both the further and better particulars of the originating application and as it emerges from the questions and answers in the section 65 questionnaire procedure. We make no judgment on the strength or otherwise of that case. However, we are bound to observe that the Applicant may wish to pursue the question of what precisely was discussed between Mr Oxley and Mr Doyle. He tells us today that Mr Doyle is no longer employed by the Association and that he proposes to call him as a witness at the substantive hearing. Questions as to what if anything was discussed between Mr Oxley and Mr Doyle in relation to the Applicant's promotion potential on or about 6th January 1993 may be material. At present no details have been given by or on behalf of Mr Oxley. The letter in June 1994 from Ms Burns to the Applicant indicated that the Association would not tell him what if anything was said about his promotion prospects, and in answer to the section 65 questionnaire, it now appears that Mr Oxley has no recollection of any such discussion. We bear in mind the well-recognised difficulty for Applicants in discrimination cases in establishing their complaint. Often it will be a matter of inference. What inference, if any, is to be drawn from this state of affairs, if maintained in evidence, will ultimately be for the tribunal of fact. But for our purposes, we find ourselves quite unable to say that the Chairman's conclusion is, on the material that was before him, one to which no reasonable Chairman could come.

As to the distinction between the words directly interested in Rule 17(2) and directly involved, used in the letter of 6th November 1996, we regard this is a distinction of semantics, not substance. Looking at the Chairman's reasoning as a whole, and particularly his observation that the Applicant makes a number of allegations which he says indicate Mr Oxley as the Chief Executive played a significant part in the alleged discrimination, lead us to conclude that the Chairman had very much in mind the question as to whether or not the application raised any prima facie case against Mr Oxley personally for the purposes of section 33(2) of the 1976 Act. Again, we are unable to find any misdirection in the Chairman's approach in that reasoning.

In all the circumstances, we have reached the conclusion that no error of law has been made out. Accordingly, this appeal must be dismissed.