United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR I AZIZ (REPRESENTATIVE) CRESCENT & STAR CONSULTING 386 HANWORTH ROAD HOUNSLOW MIDDLESEX TW3 3SN


 


HONOURABLE MR JUSTICE LINDSAY:

1. We have before us, as a preliminary appeal, the appeal of Ms T Ohagwa in the matter of Ohagwa v London Borough of Southwark. On the 3^rd July 1998, Ms Ohagwa lodged an IT1 complaining of constructive dismissal, breach of contract and racial discrimination against the London Borough of Southwark.
2. At that stage the complaint was very broadly phrased but later there were extensive further and better particulars, not in question and answer form as is common but more as an expanded narrative of complaint. Ms Ohagwa also raised a race relations questionnaire.
3. The hearing took place over three days spread rather widely between the 17^th September 1998 and then the 3^rd & 4^th of February 1999. That was at the Tribunal at London South under the Chairmanship of Mr C B Taylor. Ms Ohagwa was represented then, as she is today, by a professional representative, Mr I Aziz. The decision, which was unanimous, was as follows:-

"The unanimous decision of the Tribunal is that the Respondent did not unlawfully discriminate against the applicant. The unanimous decision of the Tribunal is that the Applicant was not unfairly dismissed".

4. So far as far as concerns unfair dismissal, the Tribunal directed itself by reference to the well known leading case in the area, Western Excavating (ECC) Ltd v Sharp and so far as concerns constructive dismissal, by reference to section 95 and section 98(4) of the Employment Rights Act 1996, those directions thus dealing therefore with constructive dismissal and unfair dismissal.
5. So far as concerns racial discrimination, the Tribunal directed itself by reference to another leading case in its respective area, King v The Great Britain-China Centre and also by reference to section 4(i) of the 1976 Act and the case in the House of Lords, Glasgow City Council v Zafar. All those directions are proper directions for a Tribunal to give itself and the Notice of Appeal asserts no defects in the directions which the Tribunal gave itself on the law nor do we notice any on our own. But the Notice of Appeal does raise a number of points and, perhaps, also there is to be added to those a broader ground which Mr Aziz has raised this morning, namely that the Tribunal do not sufficiently spell out in detail why it was that the racial discrimination side of the case was lost.
6. Dealing with that one first, there is a considerable narrative decision that we have in front of us and although it does not pick out each of the many issues as it goes along in terms of whether each issue did or did not amount to racial discrimination or why it did not, the Tribunal does at the end of their judgment, come to a conclusion that nothing by way of racial discrimination had been shown to them or, at any rate, none within the Act. We would have thought that, within the well known parameters of the Meek v City of Birmingham test, that here sufficient reasons were shown and this first ground of the Notice of Appeal or more properly, of the grounds of the appeal not in the Notice of Appeal, in our view, fails.
7. Coming to the specific grounds that are relied upon in the Notice of Appeal, the first has not been amplified by Mr Aziz today but it has not been abandoned. A Mr Saunders was not called as witness. He would have only have been called after Ms Ohagwa's case was closed because it was proposed that he would be called, if at all, as a Respondent's witness. There is no ground for believing that Southwark had indicated that it would necessarily be calling Mr Saunders and there is no ground for believing that Mr Aziz had even asked Southwark whether Mr Saunders was to be called as witness.
8. In the event and, as it would seem, with some encouragement from the Tribunal, Southwark elected not to call him. Mr Aziz has made a statement in which, dealing with this point, he says:-

The Chair then asked the Respondents which witnesses they were calling. A conversation took place between the Respondents' representative and the Chair where the relevance of the witnesses was considered. As a result of this exchange, the number of witnesses that the Respondents were calling was reduced.

I was concerned that one of the witnesses Mr Saunders was not going to be called. I expressed my unhappiness with this position. I explained the reason why Mr Saunder's evidence was important. The Chair explained that because Mr Saunder's was the Respondents' witness it was up to them to decide if they wanted to call him to give evidence.

The Chair was clear that the Tribunal did not need to hear Mr Saunder's evidence.

9. No witness summons had been issued, so far as we can tell, to require the attendance of Mr Saunders and we can see no error of law in the Tribunal having permitted Southwark not to call Mr Saunders. So that particular ground of the Notice of Appeal, which is not amplified by Mr Aziz, fails.
10. The second ground that we deal with is what you might call "slotting into the job". On the 26^th March 1998 Mr Ohagwa had a job interview. In their paragraph 10 on page 10 the Tribunal says:-

At the interview Mr Saunders had informed the Applicant about 4 alternative job vacancies. One of the vacant posts was that of Training Officer, which was a more senior post than staffing officer and graded at principle officer scale PO1. The Applicant was very interested in this position. The Applicant decided to telephone Ms McMurray office about this job vacancy. She gave evidence that she telephoned only because she had been told to do so by Mr Saunders. and that he had said that she might "slotted" into the job. Having considered Mr Saunder's letter which was written on the same day as their interview, the Tribunal rejects the Applicant's evidence. In his letter, Mr Saunder's clearly confirms his advice to the Applicant that she would have to be tested and interviewed for any of the PO1 posts.

11. As that passage says, on the same day as the interview Mr Saunders had written a letter and we have that on our page 136 of a very large secondary bundle. It is a letter to Tina Ohagwa from Mr Saunders of 26^th March and at the foot of the first page it says:-

I made available four job descriptions which you might wish to consider as alternatives to be assimilated in to the Scale 5 Staffing Officer post. I did confirm, however, that there would be interview requirements for some and for others (PO1) an interview and testing.

12. The criticism of this inclusion is as follows on our page 2:-

The basis for rejecting the Applicant's evidence is that Mr Saunders letter of 26^th March 1998 (136) states that for any PO1 post there will need to be a test, so it must follow that the Applicant would not have been told that she could be slotted into the job, this finding is perverse. The evidence before the Tribunal was that the post of training organiser was SO1 and not [PO1 then some page references are given]. Therefore, the basis for this finding was not there and so the finding is not one which any reasonable Tribunal would have found.

13. Well, it may be noticed that Ms Ohagwa's evidence was that she might be slotted into the job not that she could be slotted into the job as there stated but, much more importantly, fairly read Mr Saunder's letter suggests that in relation to any job on offer, be it PO1 or other, some check would be necessary. There would either be an interview for the more junior jobs or, for the more senior, interview and testing. The Tribunal was thus entitled to take the view that it was improbable that Mr Saunders would have said she could or might be simply "slotted" into the job. That improbability was a factor to be taken into account as to credibility and was, in fact, taken into account as to credibility. It is for the Tribunal to decide what evidence to accept and what not to accept. Here, on this point, they rejected Ms Ohagwa's evidence. It cannot, in our view, be said to have been perverse (as the Appellant suggests) for them to have done as they did.
14. Another complaint may be called "The Issues".

Again, this has not been greatly amplified by Mr Aziz this morning, but it is there in the Notice of Appeal. The issues were identified by the Tribunal, so far as concerned racial discrimination, in their paragraph, under the headings "The Issues", Paragraph 4 reads as follows:-

"Having heard the parties, the agreed issues for the Tribunal to determine were identified and are as follows.

(i) whether the Respondent unlawfully discriminated against the Applicant on racial grounds when she was not appointed to the post of senior staffing officer scale SO1 at our about 30^th March 1998.

(ii) whether the Respondent unlawfully discriminated against the Applicant when she was not appointed to the post of training officer in/or about May 1998 and:

(iii) subject to the applicable time limits, whether the Respondent unlawfully discriminated against the Applicant by the way in which it treated her during the course of her employment".

15. It often happens before the Tribunal, despite IT1's and despite even the giving of particulars, that the issues remain diffuse and unfocussed and a very valuable part of the function of the Tribunal is to try and sort matters out and separate them into clear issues. It must be noted that paragraph 4 begins by describing those three sub headings of issues as the agreed issues and there is no reason to believe that that was not so; in other words, that those were agreed to be the issues.
16. Under this particular head of complaint in the Notice of Appeal, Ms Ohagwa, complains that those were not the right issues but it really is too late to take that point. Those were the issues that were agreed, and they were moreover, so far as we can tell, the right issues to select and to specify as being clearly identifiable issues. So far as concerns racial discrimination, the Tribunal looking at those issues, came to clear conclusions. What they said as to racial discrimination was this:-

"The Tribunal find no evidence that the Applicant was less favourable treated when she was not appointed to the post of Senior Staffing Officer and therefore that part of her complaint fails. The Applicant was offer accept the post of Training Organiser and we find that she was given time to reconsider her resignation and offer in the post. The Tribunal find no evidence of less favourable treatment and therefore we find that this part of her complaint also fails".

17. And then, a little later, as a sweeping up of racial discrimination generally:-

"We have considered all of the circumstances of the case and we conclude that the Applicant has failed to satisfy the burden which was upon her to show that she had been discriminated against on racial grounds during the course of her employment".

Well, no doubt, as we mentioned earlier in relation to Meek v City of Birmingham, it might have been wiser for each individual sub issue to have been picked out and dealt with but it cannot be complained that the Applicant did not know why she lost, given the issues that were agreed and the findings in respect of those issues and we see no error of law in that area.

18. A third heading in the Notice of Appeal could be described as "Procedural failure". There was undoubtedly some, if not incompetence, then at least awkwardness, in the arrangements by which Southwark failed to tell Ms Ohagwa earlier than they did that she was indeed offered the training officer job in May 1998. It is a rather strange chronology. She was interviewed by a Miss McMurray. Miss McMurray then went on holiday. It was decided that Ms Ohagwa should be offered the job. A draft of the offer letter was put into Miss McMurray's in tray to await her return from her holiday. When she did return from her holiday, she was unaware of any urgency about the matter. In the meantime Ms Ohagwa was orally assured that she would get the job. On the 3^rd June 1998, Miss McMurray telephoned Ms Ohagwa to offer her the job, not knowing that that very day Ms Ohagwa had resigned. In paragraph 27, the Tribunal say:-

Even when Miss McMurray told the Applicant she had not been aware of her resignation and that she ought to consider withdrawing it, the Applicant refused to do so. Miss McMurray wrote a letter restating the offer and setting out the position in full.

19. In the meantime, says Mr Aziz in the Notice of Appeal, the grievance procedures had not been duly followed. The Notice of Appeal says that the Tribunal's decision shows that they did not take into account the fact that the Respondent had failed to comply with the guidelines for dealing with re-organisations and had not followed the Respondent's own grievance procedures. In addition, it is said the Respondents acted in bad faith because a decision had been taken and communicated to the Applicant by Mr Saunder's on 1^st May 1998 which was that no further assessment by the centre process will be required.
20. These matters were brought to the Tribunal's attention but no reference is made to them in their decision. Therefore, their finding in relation to constructive dismissal was, it is said, perverse. However, no one could suggest, in all the surrounding circumstances as we just explained them, that departure in relatively minor ways from the strict grievance procedures either represented a fundamental breach of contract on Southwark's behalf or that Ms Ohagwa relied on that as enabling her to regard herself as constructively dismissed. We have her resignation letter; that is at page 191 of the larger bundle I am not going to read all of it, but it begins.

"As you are aware I was interviewed for the position of training organiser on 20^th May 1998. Today is exactly two weeks from that interview and I have heard nothing, even though I was promised a decision that afternoon. Nobody has even had the courtesy to inform me of any delay".

And a little later she says:-

"….I am left with no alternative other than to take my redundancy option".

21. There is no suggestion that the shortcomings, such as they might have been at Southwark, in relation to grievance procedures was any factor in her mind at all. So that, first of all, there seems to have been no fundamental breach of contract in that area and, secondly, it seems not to have been relied upon and in that case there was very good reason why the Tribunal did not say more than they did on that particular subject.
22. We think we have now exhausted the reasons either raised by Mr Aziz this morning or in the Notice of Appeal. We are unable detect any error of law (and we emphasise of law) in the Tribunal's decision. It is only errors of law which give us the ability to intervene and, having detected no error law, we must dismiss the appeal even at this preliminary stage.