United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS K MONAGHAN (Of Counsel) Messrs Zoi & Co Solicitors 548 Barking Road Plaistow E13 9JU


 


JUDGE HULL QC: This is an appeal to us by Mr Anthony Apena. He is a qualified professional valuer and surveyor and has the qualification of the Royal Institution of Chartered Surveyors. He also has a degree of Master of Sciences in that professional skill. He was employed by the Respondents, the London Borough of Hackney. They were one of four Respondents. He was first employed on 3 or 4 April 1989 and, ostensibly at any rate, all was well until in March 1991 a Mrs Collins, who is the second Respondent to his application and appeal to us, was appointed the Borough Valuer. Thereafter things went less well. He himself had complaints. He had a grievance against a Mr Bynoe. Mr Bynoe was the acting team leader. There were also complaints against Mr Apena.

There were eventually, and I am only summarising what we read in the decision of the Industrial Tribunal, doubts about Mr Apena's ability as a surveyor. It was suggested that he failed to make accurate drawings of buildings and failed to measure them accurately and so it was decided that he should be asked to do a trial on five buildings after inaccuracies had been detected in other drawings, and with those tests he was unsuccessful.

The result of all this was that there was a capability review hearing, as it was called, on 5 January 1994. It was found that he was incapable of doing his job properly as a surveyor and on 10 January 1994 he was dismissed. He brought a complaint to the Industrial Tribunal. He complained of unfair dismissal. He claimed also that he had been discriminated against in the matter of race, he being a gentleman of Nigerian origin.

To complete the chronology, an internal appeal by him was dismissed shortly after he had presented his complaint to the Industrial Tribunal and the Respondents then put in their answer and the matter was heard by the Industrial Tribunal. The Industrial Tribunal sat for five days to hear the complaint and they published their decision on 7 January 1997. They have given a long judgment which is with our papers. It goes on for fourteen or fifteen pages. They dismissed the claims made by Mr Apena. I will not go right through their decision but we must refer to certain matters there.

It is recorded by the Industrial Tribunal that certain complaints which had been made were accepted by Mr Apena and that there was a hearing where he had been warned about these matters. Mr Apena appears to have been unnecessarily sensitive in certain respects, perhaps this is really by the by, but he was told that "he could not see the wood for the trees" - a comment which can be made about a great many of us when we get involved in detail, as a surveyor must - he took that as terribly insulting, but when it was explained to him he could see that perhaps it was not intended to be an insulting remark, but merely a legitimate criticism.

There were various incidents, in particular one where the Tribunal found that Mr Apena had been perhaps treated more favourably than he had any right to expect and they then embarked on the story about his lack of performance. Quite plainly, even the most scholarly man can have an unhappy practical difficulty in taking measurements and drawing plans, as is often seen in practical life; that is a skill, an undoubted skill, which some people have and some people do not. Clearly, for a surveyor to have that important part of his professional skills called into question is bound to be a serious matter. The Tribunal record how, after various complaints and conversations, the five tasks which he was to carry out were set for him and how he made mistakes in measurement.

The Applicant among other things said he did not deny that he had made mistakes but he said his mistakes had always been highlighted and exaggerated, whilst those of others had been ignored. He said he had been subjected to victimisation "as there have always been constant references by certain officers as to my having an MA and MSc." He then named an officer, one of the Respondents, who had been saying that "I should not think that I am superior to him because he has got an FRICS qualification which is superior to my academic qualifications."

At any rate, even on these trial jobs he continued to make mistakes and so eventually there was what was called a "capability review hearing" which was important, because he had been told that he might lose his job. That was held in January 1994 and chaired by Mrs Collins, the Borough Surveyor. The case was presented by Mr Davis, another of the Respondents, who called Mr Evans, the fourth Respondent, as a witness. Mr Apena was represented by his union official, Mr Cordell.

Eventually what was said by Mrs Collins, who of course was herself a professional surveyor, was:

"After giving full consideration to all the evidence before me, I am of the opinion that the standard of your work falls considerably short of that required for the proper execution of your duties. I am satisfied that all reasonable steps have been taken by your line managers to help you to surmount your difficulties and improve your performance. Unfortunately, there has been no significant improvement in your performance and I am reluctantly forced to conclude that you are incapable of fulfilling your role within the Valuation Division as described in your job description. Personnel have established that there is not an alternative post available for you which I could consider transferring you into within the authority. Consequently I am dismissing you from the Council's service with effect from 10 January 1994."

There were various submissions made on behalf of the Applicant to the Industrial Tribunal.

The representative for Mr Apena, who we are told is not a solicitor, but was simply another fellow employee, did not deny Mr Apena's shortcomings and acknowledged that everyone makes mistakes and no-one is infallible. But then he complained that the procedures which had been adopted by the local authority were unsatisfactory and made what was really a suggestion of bad faith. The Respondents' aim was, he said, to dismiss Mr Apena at all costs.

Then we come to the important matter of comparators. This is the subject of the appeal which Ms Monaghan has laid before us. In relation, the Tribunal say, to race discrimination:

"Mr Boateng designated several comparators. Firstly Mr John Edmunds who had been demoted in 1982 on grounds of inefficiency but had been allowed to remain working for the Council at his old grade and salary level. He also invited us to compare Mr Apena's treatment with that of a colleague Robert Turner who had sought a change of team leader and had had direct access to Mrs Collins who had granted his request and moved him without reference to Mr Evans. Finally he referred to Mr Davis who had, he alleged, been negligent in handling a number of responsibilities and had caused problems with the valuers in his department by too much interference and inefficient attention to various tasks."

Then he put forward his case that Mr Apena was being discriminated against because of his race.

The Tribunal went through these various matters. In particular they found that in seeking to avoid dismissing the Applicant, the Respondents had gone through their property and administration divisions and the valuation division, and they had said that that covered some 2,500 potential posts, which they suggested was enough. Clearly, not all those posts, if any of them, would have been as a professional surveyor. Some of them no doubt would have been on a par with that. Some of them might have been inferior posts. That seems inevitable with such an enormous number of potential posts; but they had failed to find one which would suit Mr Apena.

The Tribunal then set out the law with regard to unfair dismissal and race discrimination. They referred to the leading case of King v Great Britain-China Centre and the questions which the Tribunal should ask themselves in the light of that authority and they went on to their findings. They said in paragraph 12 of their Extended Reasons:

"The reason given by the Respondents for Mr Apena's dismissal was capability. We were concerned as to whether this was indeed the reason for dismissal. Mr Apena had been employed by the Council since 1989, and yet his deficiencies in basic skills did not become apparent to his managers until November 1992" ...

So that was clearly a matter of comment and a matter which they were quite right to enquire into. They said he was a Chartered Surveyor. They set out his Degrees. How could it be that he was so lacking in basic skills? Was it really incapability or could it be said to be incompetence or wilful neglect on his part to prepare proper work? They considered the evidence and said:

"12 .... The fact that he failed [that was with the tasks] persuades us that the ground of capability is justified. Having come to that conclusion, Mr Apena's glaring lack of competence in basic skills was sufficient to justify dismissal on grounds of capability."

In other words, they were not finding that what was put forward, was not put forward in good faith on that very important matter. They referred to the Council's guidelines and they said that they found there were a number of procedural defects which cast serious doubt on the fairness of the dismissal. They said in paragraph 13(1):

"Mr Apena rightly complains that no comparable drawings were actually presented to the Hearing or the Appeal. [That was a just complaint they said.] It might be argued that this was not necessary for Mrs Wendy Collins who is herself an experienced qualified valuer, but surely the members of the Appeals Committee would have benefited from seeing comparable correct drawings...

.... In her evidence before the Tribunal Mrs Collins dismissed the possibility of demotion or relegation as being inappropriate. In that she was quite wrong as Mr Apena had apparently given satisfactory service prior to this promotion to his current grade."

They were there criticising Mrs Collins' evidence, it seems to us, and saying that that evidence was wrong by reference to the guidelines which they had already cited; that demotion or relegation is one of the alternatives which can be considered.

Then they go on, after referring to the general duty of an employer to try to find alternative employment, in paragraph 14:

"In relation to the first two defects referred above, we have applied the Polkey test - if those defects had not occurred, and the procedures strictly complied with, would it have made any difference to the outcome? On balance we consider that it would not and that while the defects are established by the evidence of the Applicant, they were not such as would have affected the outcome and the fairness of the decision to dismiss."

We think the only natural way to read that is that the Tribunal has in fact misunderstood the Polkey decision; that is to say that they were doing the very thing which the House of Lords said they were not to do and taking into consideration in deciding on fairness, whether it would have made any difference had these blemishes not occurred. That, of course, is to be considered, if it is to be considered at all, at the compensation stage and not at the liability stage. That is an overt error and, as we have said at the start of the hearing, we propose to give leave for this appeal to proceed on that point.

They go on, after referring to other authority:

".... We are persuaded that the Respondents did take reasonable steps to find other work for Mr Apena and that having regard to his capabilities and in particular his shortcomings, the Respondents had fulfilled their obligation in that respect. We therefore find that dismissal was on grounds of capability and that it was fair."

As I say, there is a flawed decision on that, but it is important that they made the findings which they did. It is quite apparent that this was not a Tribunal which was accepting everything that was said to it. They looked very critically at all that was said to them by the employers and were not going to accept all of it by any means.

They then go on to the very important matter of race discrimination in paragraph 15:

"With regard to race discrimination, we find that the Applicant fails at the first hurdle - he has not shown that he was treated less favourably than others, comparing like with like. The comparators put forward by Mr Boateng to demonstrate less favourable treatment are not in our view comparable and even if Mr Apena can show that he was the victim of less favourable treatment, the reason put forward by the Respondents was a valid and genuine one. Mr Apena has been unable to demonstrate that the complaints made against him by several line managers including one who was himself from the black and ethnic minorities, were not consistent and entirely justified. The enquiry made by Mrs Collins about Mr Apena's expenses was also justified in relation to the much higher claim which he was making as compared with the claims of other students and in any event, when Mrs Collins was given the information which she requested, she approved the expenses and Mr Apena suffered no detriment. We therefore conclude that in the case of Mr Apena there was no race discrimination, and to the extent that he was treated less favourably, it was on objectively justifiable grounds which had nothing to do with his racial or ethnic group. The claim is therefore dismissed in all respects."

Now Ms Monaghan says that we should give leave to appeal not merely in regard to the error which we discovered, or ostensible error which we discovered, in the unfair dismissal proceedings, but also on the basis that the Tribunal have failed to deal in accordance with law with the complaint of racial discrimination. She makes a number of complaints. First of all she says there is a misdirection with regard to the comparators. No reasons are given for saying that they are not truly comparators and they are therefore inadequate reasons given by the Tribunal for reaching its conclusion, and in particular the dismissal of the complaint of race discrimination. She says the Tribunal do not even refer to one comparator who was put forward, a Mr Chaggar.

What the Tribunal have said is that none of the comparators put forward were, in their view, like for like. They were not truly comparable cases. They are entitled to say that. The burden is on the Applicant to show, if he puts forward a comparator, that that comparator, whoever he may be, is in a truly comparable situation with only immaterial differences. He failed to do that.

The Tribunal are not obliged, in our view, at any rate in a case like this, to give reasons for rejecting every comparator. The fact is that if they are not satisfied that they are truly comparable, then they are not to take them into consideration. The statute says so. They are, in our view, no more required to give reasons for such a decision, than they are to give reasons if they say prefer the evidence of one witness to that of another witness. They have done their duty by considering them. It is quite clear that this Tribunal was doing its duty to the best of its ability.

With regard to Mr Chaggar they do not, supposing a large number of comparators are put forward, have to list them all by name. It is enough if they say that none of those who were put forward were in their view true comparators.

Then it is said by Ms Monaghan that inadequate reasons were given for dismissal of the complaint of racial discrimination. If the Applicant did show a difference in treatment (the Tribunal have expressly said that that was not so) she says that the Tribunal themselves have said that here the question of relegation was not considered by the employers and indeed apparently not by the Tribunal. The Tribunal had it very well in mind that Mrs Collins was mistaken in her attitude, so they had hardly overlooked the matter, but they found that in fact with 2,500 posts being considered as possible alternatives, or with work being looked for amongst those 2,500 posts, the Respondents did take reasonable steps to find other work for Mr Apena. To use commonsense for a moment, it cannot be an easy task to find work for a highly qualified surveyor who is incapable of carrying out a number of the basic and most important tasks that can fall to a surveyor. In the nature of things it would probably, one thinks, have to be work which is not surveyors' work.

Then Ms Monaghan refers us to two matters that the Tribunal has failed to refer to and she says they should expressly have referred to these matters. The first is the Code of Practice of the Commission for Racial Equality and the second matter is the answers to the questionnaire which were given by the Respondents. She says a decision on the matter of racial discrimination which fails to refer to these two matters is not a complete decision and she has cited to us a case before the President of our Tribunal, Mr Justice Morison, dated 21 November 1996, in which Mrs Berry, who was a qualified pharmacist, applied for a position to the Bethlem & Mawdsley NHS Trust, and for reasons which did not seem at all satisfactory, was refused even a short-listing. Mrs Berry had reason to suspect that this was in connection with a previous complaint which she had made, being sometimes called a "protected act" and this Tribunal, finding that the Industrial Tribunal had failed to make such enquiries as they should in the circumstances, referred to the failure to deal with the answers to the questionnaire and to the CRE code. But that was very different case from the present.

In this case not merely were there reasons for which an employer might consider dealing adversely, unfavourably so to speak, with the Applicant, but they were the strongest reasons. He was found defective, after a number of tests, in fundamentals of his art of surveying. The Tribunal is, in our view, not to be criticised for looking to see whether he had been treated differently from anybody else, in looking to see whether there was any clear evidence of unfavourable treatment and finding the contrary. We deprecate the suggestion that there are set routines of intellectual exercises which a Tribunal must, in their reasons, go through. It may help them to refer to the CRE code and if so, they will do so. There is no statutory or other necessity in our view to do so. It may help them to refer to the answers to the questionnaire if there is one. It may be said in a particular case that they ought to have referred to it in their reasons. It cannot be said as a generalisation that they always should.

Therefore, having thought about it as carefully as we can, we have come to the conclusion that notwithstanding the matters which are raised, it cannot be said that this Industrial Tribunal was not entitled as a matter of law to reach the conclusion which it did. We think that the omissions which are discovered by Ms Monaghan in their reasons are not matters which in any way vitiate it or give rise to legitimate criticisms of law. We think that it was a thorough decision and we have no doubt that there was plenty of material to justify it so far as the race discrimination claim was concerned. It was not a complaint which they passed over lightly and it was most certainly not one into which they failed to enquire.

In those circumstances we give leave for the appeal to proceed with regard to the averments of unfair dismissal on the ground which we have already referred. We do not give leave for the appeal to proceed on any of the other grounds.