United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN WAITHE (of Counsel) Instructed by: Mr C Dennemont Messrs Shah Solicitors 168 Greenford Road Harrow Middlesex HA1 3QZ


 


MR JUSTICE HOLLAND:

1. By an IT dated 28th October 1998, the applicant, Mr Najm-Zadeh made a complaint against his employers, the London Borough of Hackney, alleging unfair dismissal, unfair selection for dismissal, unfair treatment at the workplace, victimisation and discrimination, all on the basis of his ethnic origin.
2. Turning to the circumstances that he then raised in his complaint, he indicated that he had been employed by the Borough from October 1988 and that since April 1996 he had been a hostel manager. It then goes on:

"… I had no disciplinary record. In February 1998 I wrote a letter to Frank Grigg, Director of Customer & Advice Services. This letter drew attention to a range of malpractices in the section involving the loss by theft of significant amount of goods. This included items such as microwave ovens and fridges. I wrote a more detailed letter on 22 April. Since writing those letters, I have been subjected to a campaign of harassment and vilification. This has included the use of disciplinary procedures against me by the line management. I have been absent since August 98 on sick leave due to stress.

My post was deleted from the structure in March 1998. I do not believe that any serious effort has been made to seek alternative employment for me. I was dismissed by reasons of redundancy on 19 November 1998."

3. The matter came for hearing before the Employment Tribunal held at London (North) in May 1999. The hearing took place over no less than four days. In the result:

"It is the unanimous decision of the Tribunal that :-

1. The Respondent did not unlawfully discriminate against the Applicant on racial grounds when dismissing him or by subjecting him to any other detriment in the workplace.

2. The Respondent did not unfairly dismiss the Applicant."

4. Against that decision an appeal has been made to this tribunal. It is our task this morning to conduct a preliminary hearing. The object of this preliminary hearing is to see if an arguable point of law arising out of that decision can be identified. If it can be identified then it is our task to adjourn the matter so that the issues may be pursued before this tribunal at hearing at which both sides are represented. If, on the other hand, we are unable to find any such point, then it is our duty to dismiss this appeal. Without a point of law, this tribunal has no jurisdiction in this matter.
5. The Notice of Appeal raised three grounds, but happily those grounds have been subjected to very sensible assessment by Mr Waithe of Counsel, with the result that grounds 1 and 3 are no longer pursued. That which is pursued and which, submits Mr Waithe in a helpful address, does serve to raise an arguable point of law, is ground 2. That reads:

"That the tribunal erred in law in failing to recognise that the appellant's suspension and delayed disciplining amounted to a detriment under sections 4(2)(c) Race Relations Act."

6. It appears to have arisen in the following circumstances. As has already been noted, the IT1 included a contention by the applicant that he had no disciplinary record. It emerged in the hearing that the contrary was the case. So far as we understand the position, that disciplinary record included a period of suspension from duty in and between April and November 1997. How then did this come into the hearing? The answer appears to be that it was raised by the applicant himself as giving some indication of a pre-existing conspiracy against him which bore fruit in 1998 in the particular set of circumstances upon which the complaint, as detailed in the IT1, was founded.
7. The Employment Tribunal sensibly, in those circumstances, did give some passing attention to this period in 1997. That passing attention was dealt with in paragraphs 5 and 16 of the extended reasons. In paragraph 5 the tribunal set out its essential findings in helpful fashion. Thus, having noted that they found the applicant to be a dishonest witness, they then made successive findings, such including the fifth finding in these terms:

"… that the Applicant was not disadvantaged, in the reorganisation following the redundancy situation, by suspension from work for alleged gross misconduct between 10 April 1997 and his resumption of work on the 12 November 1997."

The further passage dealing with this particular matter is in paragraph 16 in these terms:

"… The Tribunal rejected the Applicant's evidence that Heather Johnson had forged notes relating to the Applicant's supervision meeting in October 1996. The Tribunal preferred Heather Johnson's evidence that the notes were completed at a later date. In any event this matter had no relevance to the issues the Tribunal had to resolve. In fairness to the Applicant the Tribunal was concerned about the length it had taken to resolve the issues relating to the Applicant's suspension and disciplinary hearing but accepted that the excessive length was not for any racist or other improper motive. The documents relating to this matter are to be found A1 pages 81-96. It appeared that the allegations centred on the filling in of a licence agreement to a hostel resident. The alleged misconduct by the Applicant involved the LB of Hackney in lengthy legal proceedings, one of the witnesses was on jury services and the Summer vacation also contributed to the delay. The Applicant appealed, however, apart from aspect concerning his mitigating circumstances, his appeal was dismissed. The Tribunal has dealt with these matters because they were raised by the Applicant as part of his conspiracy theory and called into question the honesty of the Respondent's witnesses. …"

8. Mr Waithe's submission to us is that the tribunal should have given consideration to this part of the history in conjunction with s.4(2)(c) of the Race Relations Act 1976. In his skeleton argument he submits that the fact that there was such a length of time in resolving the issues relating to his suspension and disciplinary hearing arguably amounted to a detriment as defined by the Act. He develops that argument by reference to authority and he submits that there should have been a finding of such a detriment and to that extent the extended reasons reflect an error of law.
9. We pay tribute to Mr Waithe's ingenuity, but in the event we have to say that there is no point of law arising from these reasons such as would, in our judgment, justify an inter partes hearing. That finding also leads to our conclusion that given the lack of any point of law, this appeal must be dismissed.
10. The essential answer to Mr Waithe's submission is that this whole matter of the suspension in and between April and November 1997 was entirely peripheral to what this complaint was about. As we pointed out, it did not feature at all in the IT1; quite the contrary, the IT1 was put on the basis that the applicant had no disciplinary record at all. As the tribunal pointed out this whole matter arose entirely because it was germane to a conspiracy theory being advanced by the applicant. The significance of the conspiracy theory was not what had happened in 1997 but its impact in 1998, hence the terms of the passage cited from paragraph 5. True, the tribunal was concerned about that length of time during which the 1997 investigation was ongoing, but only as a matter of proper but passing interest. There was nothing in this that bore in any way directly upon the issues that were raised and had to be resolved, those issues that were resolved by way of the decision as already cited. Thus, interesting though Mr Waithe's arguments are, in the event they by-pass the meat of this matter, they do not go in any way to found a submission that the decision itself was undermined by an error of law. We are grateful to him, but that is our judgment and the end result is dismissal of this appeal.