United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LEVINSON (Solicitor) ELAAS


 


JUDGE PUGSLEY: In this case the appellant is represented by Mr Levinson who appears under the auspices of the ELAAS Scheme. We are bound to say that we are extremely grateful to Mr Levinson for the assistance he has given in presenting the appellant's case to us.

The tribunal decision of which criticism is made was heard at London (South) between 3rd and 7th March 1997, namely over a period of five days. The matters which the tribunal were required to determine was a complaint of unfair dismissal in which there was a complaint of unfair selection for redundancy and a failure to find alternative employment. In respect of racial discrimination, the acts complained of were the failure to appoint the appellant to any of the three vacancies for which he had applied and his dismissal. The comparator relied upon was Caroline Eaton. There was a claim of victimisation and the protected act relied upon was a complaint of discrimination made at a meeting in June 1993, and complaints made at subsequent feedback meetings.

The appellant is of Asian origin and he was born in Mauritius. he came to the United Kingdom in 1972. He changed his career from the position of a psychiatric nurse and took a law degree. He then started to qualify as a solicitor, but instead switched and qualified at the Bar. He joined the Inns of Court School of Law in September 1983, and in 1984 he was called to the Bar by Lincoln's Inn. He was in pupillage at some stage. In March 1987 he was appointed to the role of assistant solicitor with the respondent Local Authority. He seems to have had a certain responsibility for prosecutions, and was also involved with other forms litigation, namely, housing litigation.

There were changes in the respondents' spread of the work in 1990's. In due course a decision was taken that was a need to monitor the increasingly complex cases which the Borough Solicitor's Office was required to handle. There was a review of structures and re-organisation. On 1st December 1994 the staff were formally notified of their vulnerability to redundancies. There were consultations during 1995, and in February 1995 at programme with interview skills workshop was arranged to equip members for staff interviews which were considered to inevitable.

If one may take the picture fairly shortly thereafter, Mr Ramful, the appellant, was not appointed to any of the positions. He was ultimately dismissed due to redundancy. The circumstances are set out at paragraph 21 of the decision. The tribunal make some criticism of the letter of dismissal, pointing out it could have been more felicitiously drafted.

The appellant claims that he has been discriminated against, has been the subject of victimisation and has been unfairly dismissed.

The tribunal set out the facts. They make clear, comprehensive and incisive findings of fact. Their conclusions are set out at paragraph 36 onwards. In respect of the complaint of discrimination on the grounds of race, they find that the decision not to appoint Mr Ramful to any of the three positions for which he applied was made on the merits of his case, and was not influenced to any extent by his race.

It was the consequence, the tribunal found, of the decision not to appoint him to any of the three vacancies for which he had applied. He was not treated less favourably than Caroline Eaton for any reason other than their respective merits.

In respect of the complaint of victimisation, the tribunal at paragraph 38 said this:

"38. ... We find that the first time Mr Ramful ever raised a complaint of unlawful discrimination was by his letter of 1st May 1995, when his dismissal was imminent. All the relevant decisions had been made by then. We find that the Respondents did not treat Mr Ramful less favourably by reason that he had done anything under or by reference to the Race Relations Act, or because he made an allegation that the Respondents had committed an act which would amount to a contravention of the Race Relations Act."

In paragraph 39 the tribunal consider that the respondents acted reasonably in treating the redundancy as a reason for dismissal. They said that the process of redeployment was fair in a reorganised structure; and reasonable and open-minded consideration was given to the appellant's potential redeployment. The possibilities were extremely limited. The tribunal came to the view that the dismissal was not unfair.

It is pertinent to note that, although the appellant is legally qualified, certainly the skeleton argument and the grounds of appeal have been considerably refined in the capable hands of Mr Levinson. We say that because there was a barely concealed attempt in the skeleton argument and grounds of appeal, to invite us to reverse the findings of fact made by the Industrial Tribunal. That is not a course open to us. We are concerned purely to see whether there is an arguable point of law that should proceed to a full hearing.

Mr Levinson with considerable skill has isolated from the decision three matters. He submits if we find that the matters to which he has averted, are matters that cause us concern we should let this go forward to a full hearing of this tribunal.

The first point that he takes concerns a finding in paragraph 38 where the tribunal say:

"38. ... we find that first time Mr Ramful ever raised a complaint of unlawful discrimination was by his letter of 1st May 1995, when his dismissal was imminent. All the relevant decisions had been made by then. ..."

Mr Levinson is far too experienced an advocate to ignore a finding in paragraph 10, when in terms, the tribunal rejected the appellant's account of a complaint made in June 1993. Mr Levinson proceeds on that basis, he is bound by that finding. But, he says, if one goes on to look at the race relations questionnaire and in particular the answer given to question 5 by the respondents, then it is, he says, accepted and conceded by the respondents that in fact there was reference made at a meeting on 27th March to the fact that the appellant was making an allegation of race discrimination. Now Mr Levinson says, perfectly properly, we should be concerned in the charge of victimisation if a tribunal has misunderstood the evidence in the case. That is true, but if on the other hand you look at the whole of decision, and particularly paragraph 20, it is quite clear that the tribunal were well aware about the incident of 27th, when the tribunal says this:

""20. ... Mr Ramful questioned the process leading up to the interviews, including consultation, and raised suggestions of breach of the Equal Opportunities Policies, but without being specific in his complaint. ..."

It is quite clear that the tribunal were well aware of what was occurring and had occurred on 27th March. We do not consider that there was any inherent conflict between that. What is a complaint and what is raised as a query about a breach is a matter of semantics. We consider that it would be a retrograde step if we were to submit tribunal decisions to the sort of textual analysis that might be relevant if one was concerned with the disputed sonnet amongst the Elizabethan poets. The reality is that this tribunal fully understood the matter of 27th March. They did not regard it as a complaint. They set out in terms in paragraph 20 matters of a very similar to the admission made and answered in the questionnaire. Therefore, despite the considerable skill of Mr Levinson in raising this issue, in our view it is an issue that turns on semantics and is not one that could not in any sense of the matter be said to give an arguable ground of law which might even begin to foreshadow an argument of perversity.

Mr Levinson makes criticism of the tribunal when they said this in paragraph 25:

"25. Mr Ramful missed an opportunity to go to the interviews skills workshop because he had to go to court. He said there was only one opportunity for him to do so. On the evidence of the Respondents, we find that that was not the true position. It was open to him to take the necessary arrangements. We believe that the true position was that he had such a high opinion of his own standards of advocacy, it did not occur to him that he had any need of such a workshop."

Mr Levinson says, well when was it possible for the appellant to make his own arrangements? And the comment, the rather disparaging comment, that the appellant had such a high opinion of his own advocacy, he did not think it necessary to go, is one that is unjustified on the evidence.

That is a powerful submission made to us. If we may so, if one actually looks at the document with which he was concerned, namely a document paged 79 of the manuscript skeleton argument, if one looks at that document a letter of 20th January 1995, it says:

"Should you wish to receive additional skills training in this area, please let me know by Wednesday, 25 January 1995 for the course on Friday, 3 February.

If there is a large number of staff interested investigations will be made into the possibility of arranging another course prior to 3 February."

In our view, it is perfectly open for the tribunal having regard to that letter and no doubt having regard to the evidence, to come to the view. They heard the evidence that the appellant could, if had wished, arranged matters so that he could, if he had felt the need, have received a training in the interview techniques. This is really a matter for the Industrial Tribunal. We do not consider that in the light of the full extent of that letter, it would not have been open to him, if he so wished, to make the requisite enquiries.

Paragraph 30 of the tribunal's decision is criticised, because it is said in that paragraph:

"30. .... There was no formal system of regular appraisals and in the absence of complaints, Mr Smith and Mr Welsh did not have an informed view of the real level of competence of Mr Ramful."

With a certain degree of diffidence, Mr Levinson says that the two witnesses, Mr Smith and Mr Welsh, who were both solicitors, were misleading the tribunal. It is true that if one again looks at the bundle of documents which is attached to the skeleton argument, there is in fact a pro forma of what is clearly a formal system of appraisal. But that deals with events considerably prior in time to the matters with which the tribunal were concerned. The document that the appellant has brought to our attention was not brought to the Industrial Tribunal's attention; and as one of the members, with long years of experience in appraisals points out, that a system of appraisal may pertain in one year but not in another.

This case went on for five days. No doubt during the course of the five days there were many issues that were raised. If a party considers that the tribunal, for various reasons, has not given justice to their case, in appropriate circumstances it is always open to them to seek a review. That course was not taken.

The reality in this case, if we may say so, is that this tribunal gave very clear thought to this case; they made very specific findings of fact; they set out the law in an unimpeachable way, and in our view, there is no ground for saying that this Notice of Appeal raises any other than issues of fact which were resolved by the Industrial Tribunal. In our view there is no arguable point of law in this case. The overriding impression of the arguments that have been put, even refined with the sophistication of Mr Levinson, is that the appellant, which is understandable, does not like the result and he wants us to reverse the findings of fact that the Industrial Tribunal made. Unfortunately for him, and one understands his regrets about the matter, the simple fact is that at some stage there has to be finality in litigation. There is, in our view, no point of law which is arguable which justifies the matter going to a full tribunal. We therefore dismissal the appeal.