United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1311_95_2005

Appeal No. EAT/1311/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20 May 1996

THE HONOURABLE MR JUSTICE BUTTERFIELD

MRS E HART

MRS M E SUNDERLAND JP

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MR A AKINSANYA          APPELLANT

LONDON BOROUGH OF HACKNEY          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR JIBOWU

(Representative)


 


MR JUSTICE BUTTERFIELD: This is an appeal against the decision of an Industrial Tribunal sitting at London (South) promulgated to the parties on 10 November 1995, whereby the Appellant's complaints that he was unfairly dismissed and subjected to racial discrimination, were dismissed.

The Appellant now appeals against both those decisions. The case is listed for a preliminary hearing in order to decide whether the notice of appeal raises a question of law, which is reasonably arguable. This Tribunal only has jurisdiction to hear appeals from an Industrial Tribunal on a question of law. If the appeal does not raise a point of law that is reasonably arguable no purpose is served by allowing the appeal to go on to a full hearing at which both parties would be represented.

The Appellant is of black ethnic origin. In June 1988 he took up employment with the London Borough of Hackney, the Respondents, as a senior valuation officer. There were problems in relation to his employment in 1992. The Appellant complained that his workload was excessive and that he had not been allocated work arising from the Respondents' "right-to-buy" policy, which attracted additional remuneration. There was concern about the Appellant's use of the Respondents' telephones and fax facilities, resulting in a written warning to the Appellant.

In April 1993 the Appellant was off work for a week immediately prior to a period of holiday and sent a sick note to cover the period. A need arose for the Respondents to contact the Appellant. When they tried to do so they found that he had gone to Nigeria. On the Appellant's return from holiday, the Respondents sought to investigate their suspicions that the Appellant had gone sick in order to give himself an extra week in Nigeria but, in the event, nothing further transpired. No satisfactory explanation was given to the Respondents by the Appellant.

On 19 October 1993, the secretary of the manager of the Appellant's Bank telephoned the Respondents to advise the Appellant that an appointment made by him to see the manager had been cancelled because of the manager's sickness. The Respondents knew nothing of such an appointment. On the same morning the Appellant telephoned to say he would not be at work that day because he was ill. The Appellant's casual sickness rate was amongst the highest of any staff in his division at the time.

The Respondents telephoned the Bank to inform them that they could not pass the message on to the Appellant. The Respondents were informed by the Bank that it did not matter because the Appellant was already there. The Appellant did not attend work at all on 19 October.

He was questioned about these events informally on 22 October 1993. He denied that he had visited the Bank. The Respondents made further enquiries, which were inconclusive. Mr Davis, the Appellant's section head, instituted a "notice of complaint", which was heard on 11 and 12 January 1994. The Appellant's version of events remained the same. The Appellant's representative alleged for the first time that the Appellant had been racially harassed by Mr Davis - an allegation later withdrawn.

The Chairman of the hearing of the complaints decided the only way forward was to write to the Bank Manager. Texts of letters were agreed and an undertaking was given by the Appellant that he would not contact the Bank Manager pending receipt of replies. The hearing adjourned.

On its resumption it was learned that the Appellant had breached his undertaking. There was a further adjournment. The Appellant then admitted he had in fact been to the Bank on 19 October 1993, had lied consistently up to that point on that issue and had breached his undertaking not to contact the Bank.

A further notice of complaint alleging misconduct and gross misconduct was laid against the Appellant. The complaint was heard on 14 February 1994. The complaint was found to be proved. The Appellant was dismissed. He appealed against that decision. On 15 September 1994 his appeal was heard by the Appeals Sub-Committee of the Respondents, comprising three elected councillors. They rejected his appeal.

The Industrial Tribunal received evidence in detail, considered all the incidents forming the background to the events surrounding the Appellant's dismissal and concluded, having heard that evidence, that they were satisfied that what had transpired in the previous 18 months before the 19 October 1993 and, indeed, since the commencement of the Appellant's employment, gave him no reasonable cause to believe that he had been discriminated against by reason of his race and that he could anticipate future discrimination. That was a finding of fact which the Tribunal were plainly entitled to reach on the evidence produced before them.

As to the disciplinary hearing, the Industrial Tribunal were satisfied that the Respondents honestly believed the Appellant was guilty of gross misconduct and had reasonable grounds for such belief. In the light of the admissions made by the Appellant to the disciplinary hearing, no other finding was in reality possible.

The Industrial Tribunal then considered the Appellant's assertion that he had been treated less favourably than other employees who had been found guilty of disciplinary offences on earlier occasions and who had not been dismissed. The Tribunal considered each comparator advanced and distinguished the treatment afforded to them because in each case there were substantial mitigating circumstances not available to the Appellant. That was a matter for the judgment of the Industrial Tribunal on the detailed evidence presented to it over no less than five days.

The Industrial Tribunal, having so distinguished the comparators advanced, concluded:

"28. Having regard to the conduct of the Applicant at the local office hearing we regard it as reasonable that Mr Hinde, and subsequently the Appeal Committee, should have regarded the offences taken together as gross misconduct which could properly attract dismissal as a sanction."

The Appellant now raises a number of grounds of appeal. He first asserts that there was an insufficiency in the finding of facts so that the conclusion reached on the facts cannot properly be justified by an examination of the decision. We have been referred to the well known decision of Meek v City of Birmingham District Council [1987] IRLR 250, which sets out in broad terms the extent to which an Industrial Tribunal should state its reasons.

We have carefully considered the extended reasons given by the Industrial Tribunal in this case against the guidance given to Industrial Tribunals in that decision. We are all quite satisfied that the reasons contained within the extended reasons wholly satisfy the tests drawn to our attention this morning. It is not necessary for a Tribunal to set out every detail of the evidence which it has considered. It is sufficient that it has considered that evidence. It is plain from the terms in which the Tribunal expressed its conclusions in relation to the comparators in paragraph 27 of the decision under appeal that the Tribunal did, indeed, consider those comparators and distinguish them. It is true that the reasons were not given extensively for that distinction but plainly the Industrial Tribunal were entitled, as a question of fact, to reach the conclusions it did.

The Appellant further relies upon what is described in the skeleton argument as the law of vicarious liability in relation to the treatment of a comparator, Mr S, who was lucky to escape dismissal because it took five years for the Respondent Council to get round to instituting disciplinary proceedings. In our judgment there is nothing in that point.

Finally, Mr Jibowu, on behalf of the Appellant, submits that the effective date of termination of the Appellant's contract of employment was September 1994 and not February 1994.

As was pointed out in argument, the IT1 submitted by the Appellant in terms asserted the date of the termination of employment was 28 February 1994. The decision of the Industrial Tribunal is silent on the point. It was not raised in the original application. If it is to sound at all, and we do not by what we say seek to encourage the Appellant in this, it sounds in a Wages Act application. No such application was before the Tribunal. They did not consider it nor were they obliged so to do.

An additional ground advanced to us is that the Industrial Tribunal failed to apply s.3 of the Race Relations Act 1996 in accordance with its proper interpretation in that, in its extended reasons, the Industrial Tribunal, by implication, suggested that because Mr S was also of an ethnic minority background, the different treatment accorded both parties, that is to say, the Appellant and Mr S, cannot lead to an inference or finding of racial discrimination. We do not accept that the words used in the paragraph to which reference is made carried such an implication. It was simply an observation by the Tribunal that, as a matter of fact, Mr S was a member of an ethnic and religious minority group who was fortunate to be treated well and it was merely an indication and no more that in those circumstances the Respondents were not racially motivated in any way in their treatment of the Appellant.

In all those circumstances and for those reasons this appeal must be dismissed.