United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE PETER CLARK: We have before us two appeals by Dr Doshoki,

(1) against a decision of a Chairman, Mr D Booth, sitting alone at London (South) Employment Tribunal on 1st April 1997; that decision was promulgated with extended reasons on 24th April 1997 (the first appeal - EAT/607/97); and

(2) against a reserved decision of a full Employment Tribunal sitting at Ashford (Chairman: Mrs Valerie Cooney) over four days during November 1997 and in chambers on 5th January 1998, promulgated with extended reasons on 13th January 1998 (the second appeal - EAT/297/98).

Those appeals first came on for preliminary hearing before a differently constituted division of this Appeal Tribunal on 24th April 1998 on which I sat. For the reasons given in a short judgment which I delivered on behalf of the tribunal that day we adjourned both appeals pending receipt of comments by each Chairman on certain points made by Dr Doshoki during that hearing. Having received those comments the appeals now return to us on the resumed preliminary hearing.

The Complaint

By an Originating Application presented to the Central Office of Employment Tribunals on 2nd December 1996 the appellant alleged that he had been both unfairly and wrongfully dismissed by his former employer, the respondent, Shiley Ltd t/a Schneider UK. He gave his period of employment with the respondent as 13th March - 15th November 1996.

By letter dated 12th February 1997 he wrote to the London (South) Regional Office applying to amend his original complaint, alternatively lodge a second Originating Application, alleging in addition unlawful racial discrimination. Leave was granted

The Booth Decision

Mr Booth:

(1) dismissed the complaint of unfair dismissal on the grounds that the appellant had insufficient continuous service for the purposes of s.108 of the Employment Rights Act 1996,

(2) dismissed the claim of wrongful dismissed on its merits,

(3) found that the complaint of race discrimination was made within time and gave directions for the hearing of that claim.

The Ashford Decision

The Ashford tribunal considered the appellant's various allegations of direct race discrimination and victimisation (which he was permitted to add) and for the reasons given, dismissed them all.

The Appeals

The first appeal

The appellant was employed by the respondent as Area Manager for the Middle East and Africa. On 14th October 1996 the respondent's General Manager, Mr Terry received a fax from Mr Singer, President of the respondent's Egyptian distributor, Heartcare Medical, alleging first that the appellant was taking steps to set up his own company in Egypt in order to replace Heartcare as the respondent's distributor in Egypt, and secondly that the appellant had offered to sell the respondent's products to Heartcare at a reduced price in return for a payment from Heartcare to him. As the Chairman observed, those allegations, if true, would have led to the appellant's immediate and well deserved dismissal.

Having taken legal advice, Mr Terry arranged a meeting with the appellant which took place on 18th October 1996. Prior to that meeting Mr Terry had prepared two letters setting out two possible courses of action. One to suspend the appellant pending further investigation followed by a disciplinary hearing under the respondent's contractual disciplinary procedure. The alternative was dismissal on one month's notice with a bonus of £5,000 to be paid in December.

It was Mr Terry's evidence, accepted by the Chairman, that having read the fax from Mr Singer the appellant chose the second option. Accordingly he was dismissed on one month's notice.

The first point taken by Dr Doshoki in this appeal concerns the way in which the hearing before Mr Booth was convened. At the earlier preliminary hearing Dr Doshoki drew our attention to letters from the tribunal to the parties dated 3rd, 20th and 24th February 1997. It is fair to say that the drafting of those letters might have given the impression that the hearing fixed for 1st April 1997 was to be an interlocutory or directions hearing and not a full merits hearing. In responding to that contention Mr Booth, writing to this Appeal Tribunal on 17th June 1998, drew our attention to two further letters. The first was a letter from the respondent's solicitors dated 25th February 1997, enquiring whether a merits hearing on the breach of contract claim was planned for 1st April, in addition to an interlocutory hearing as to whether the appellant qualified for unfair dismissal protection. The reply to that letter from the Employment Tribunal dated 3rd March 1997 advised the parties that the hearing on 1st April would deal with the following matters:

"1. A hearing of the preliminary issues as to whether in view of section 108 Employment Rights Act 1996 the Applicant had the right not to be unfairly dismissed.

2. A hearing of the wrongful dismissal complaints.

3. A directions hearing as to any matters remaining to be resolved."

We are told that a copy of the solicitors' letter of 25th February was sent to the appellant; the letter of 3rd March was addressed to both parties.

Dr Doshoki tells us that he did not receive the letter of 25th February, but cannot now say whether or not he received the letter of 3rd March.

We are satisfied that he did receive the letter of 3rd March and are confident that had he not received a copy of 25th February letter he would have asked for one, it being mentioned in the tribunal's letter of 3rd March. Coupled with the fact that the appellant made no application for an adjournment of the wrongful dismissal claim on 1st April, we satisfied that he was aware that the wrongful dismissal claim was listed for a full hearing on that day, as originally intimated in the tribunal's letter of 3rd February. Further, it is still not clear what further evidence he would have adduced as to the critical meeting between himself and Mr Terry on 18th October 1996; a meeting at which nobody else was present.

His second point is that the Chairman ought not to have sat alone to hear the wrongful dismissal claim on 1st April 1997. He should have adjourned it for hearing by the full tribunal which was to hear the race discrimination complaint. In support of that submission he relies on the decision of the EAT in Sogbetun v London Borough of Hackney [1998] ICR 1264. In that case this tribunal presided over by Morison J held that a Chairman's decision to hear an unfair dismissal application without lay members, notwithstanding the consent of both parties, involved a failure to exercise the discretion granted to him by s.4(5) of the Employment Tribunals Act 1996, or a wrong exercise of that discretion.

We have considered the reasoning in that case, which was concerned with a claim of unfair dismissal, quintessentially suited to the industrial jury. However we do not understand the President to be saying that in every case a Chairman will fall into error by hearing a case alone. For example, in Booth v United States of America [1999] IRLR 16, paragraph 16, a case on continuity of employment, the President saw no objection to the Chairman sitting alone.

Dr Doshoki submits that the Chairman ought to have considered in particular the provisions of s.4(5)(c) and (d); the views of the parties and whether there were other relevant proceedings (here, the race discrimination complaint) which could be heard concurrently. As to the first, it seems that the respondent was willing to proceed with the wrongful dismissal claim before Mr Booth; the appellant did not seek an adjournment. As to the second point, it was, in our judgment, open to the Chairman as a matter of discretion to proceed with the wrongful dismissal claim separately from the race discrimination complaint. Dr Doshoki has a further point as to the risk of conflicting findings in the two sets of proceedings to which we shall return when considering the second appeal.

His third ground of complaint in the first appeal is that Mr Terry's letter of dismissal dated 18th October 1996 was framed on the ground of misconduct and therefore a disciplinary hearing ought to have been held under the respondent's procedures, thus providing the appellant with a claim for damages for breach of contract in excess of the one month's pay in lieu of notice which he in fact received. see Gunton v Richmond [1980] ICR 755. Having considered that letter we are unable to accept that submission. It makes no reference to the matters raised by Mr Singer in his fax of 14th October 1996. It is consistent with the second option which the Chairman found the appellant accepted. In these circumstances we reject the first appeal.

The second appeal

The principal argument advanced by Dr Doshoki in respect of the Ashford tribunal decision relates to the way in which that tribunal dealt with the respondent's delay in answering the s.65 Questionnaire and the inconsistency between answers there given and the evidence adduced on behalf of the respondent at the hearing.

Specifically, he draws attention to that part of the appellant's statement forming part of his Questionnaire in which he alleged that at a meeting with Mr Willi Zhwallen (Mr Terry's immediate superior) in Birmingham on 26th August 1996 he asked Mr Zhwallen why he had succumbed to racist pressure and removed the appellant form his post as Area Manager for Lebanon, to which Mr Zwhallen replied that he knew nothing about it. The appellant is of Iranian national origin.

In the respondent's reply to the Questionnaire it was said that Mr Zwhallen agreed that the appellant complained to him about allegedly discriminatory treatment which he was receiving from the United Kingdom staff. It was further accepted that Mr Zwhallen took not action save to speak to Mr Terry and Dr Esquivel who informed him that they were unaware of such treatment.

Those questions and answers formed part of the basis of the appellant's complaint of victimisation which the tribunal permitted him to add to his amended complaint.

Dr Doshoki points to an apparent inconsistency between the tribunal's findings at paragraphs 30 and 45-47 of their reasons as to whether the appellant did a protected act, that is, complained of racial discrimination to Mr Zwhallen on 26th August 1996. However, assuming that Dr Doshoki is correct in that submission, that inconsistency is immaterial if did not cause any less favourably treatment of the appellant, here, his dismissal.

As to that, the Ashford tribunal reached a clear finding in paragraph 46 of their reasons that the sole reason for dismissal was that the appellant chose the second option rather than face a disciplinary hearing over the Singer allegations.

On the last occasion we sought assistance from the Mrs Cooney as to whether that finding was reached as a result of her own tribunal's independent assessment of the evidence, or because the second tribunal felt bound by the findings of Mr Booth as to the circumstances of the dismissal in the context of the breach of contract claim.

By her letter to this tribunal dated 22nd May 1998 Mrs Cooney makes clear that whereas she prevented the appellant from re-opening the question of wrongful dismissal, the factual findings made by her tribunal at paragraphs 30, 34 and 45 of their reasons were based solely on the evidence led before that tribunal.

In these circumstances we have concluded that no injustice was caused to the appellant by having his wrongful dismissal claim heard separately from his race discrimination complaint and by different tribunals. Even if he did the protected act, on the Ashford tribunal's findings that did not lead to his dismissal. Accordingly the tribunal were entitled to dismiss the complaint of victimisation as well as that of direct racial discrimination. Finally, the tribunal had a discretion as to whether to draw an inference adverse to the respondent under s.65(2)(b) of the Race Relations Act 1976. For the reasons given in paragraph 47 of their reasons they declined to do so. That was a permissible conclusion in our judgment.

For these reasons we shall also dismiss the second appeal.