United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON.


 


MR COMMISSIONER HOWELL QC:

1. In this appeal which is before us today for a preliminary hearing, Mr Victor Tunde Apelogun-Gabriels seeks to pursue an appeal against the decision of the London (South) Employment Tribunal reached on 2 September 1999 at the preliminary directions hearing and set out in extended reasons issued to the parties on 16 September 1999 recorded at 5-15 of the appeal file before us. The proceedings in which that hearing took place were long drawn out proceedings by Mr Apelogun-Gabriels against the London Borough of Lambeth, his employers, in which he was accusing them on many fronts of racial discrimination, victimisation, harassment and bullying as well as a breach of his employment rights. The particular ground of complaint which gave rise to the issue of his originating application dated 13 November 1998, (at pages 30-31 of the appeal file) were that he felt that he was regularly overloaded with work and that reorganisation within the council had resulted in undue pressure on him and that this was, in his words an "ongoing situation." warranting his making a complaint to the Tribunal.
2. There had already been an earlier directions hearing in May 1998 attended by Mr Apelogun-Gabriels, dealing not with, this but a related complaint but the only decision before us on the present appeal today is that given after the hearing on 2 September 1999. On that date a Miss Hyde, the Employment Tribunal Chairman sat with two side members and considered the question of what issues should be allowed to go forward for a full hearing before the Employment Tribunal into the merits of the complaint Mr Apelogun-Gabriels, was seeking to bring forward under the application he had launched on 13 November 1998. It is important to stress that that was simply a procedural hearing, not the full hearing of any issues on the appeal and not an occasion at which the lengthy evidence would be properly entertained by the Employment Tribunal. It was dealing simply with defining what questions should be dealt with at the full hearing of the application. As recorded on page 5 of the appeal file before us, the Tribunal unanimously decided that the Tribunal did have jurisdiction to determine a number of itemised complaints, specified by reference to paragraph numbers in a lengthy document, headed Applicant's statement of complaints' which had been prepared by Mr Apelogun-Gabriels and was before the Tribunal. That document dated 7 June 1999 is not in the original appeal file before us but has been helpfully included by Mr Apelogun-Gabriels in the file of documents to which he has referred us in the course of his submissions this morning and it is at pages 44-55 inclusive of that supplemental file of documents.
3. Since the decision of the Employment Tribunal with which we are concerned was entirely on procedural issues, it is important to emphasise that on procedural issues the function of this Appeal Tribunal is not to reconsider or rehear the questions determined by the Tribunal itself. It is simply to determine whether the decision it reached can in any way, be said to have been erroneous as a matter of law: in failing to take account of some relevant issue, or in misdirecting itself as to the proper way in which to approach the question of defining and clarifying the issues to be dealt with in the normal way at the full hearing of the case. It has been said on several occasions in this Tribunal that, particularly in relation to race discrimination issues, which can be of a difficult and sensitive nature, it is highly important in the interests of all parties, both those who consider that they have suffered discrimination and those against whom those allegations which may be of a serious nature are being made, for the real issues to be clarified by the Tribunal at the outset, and if possible at a suitably convened preliminary hearing for directions. It appears to us entirely proper and right that the Tribunal on this occasion conducted such a hearing and attempted to make a determination, so as to clarify and define the real issues that were to go forward in the case.
4. To complete the summary of the history of this matter the substantive hearing of the issues directed to be heard has in fact already taken place. That hearing occupied some 9 days in November of last year, in front of a different Employment Tribunal headed by a different chairman, and ended in a decision set out in Extended Reasons issued to the parties on 2 December 1999 at pages 16-29 of our appeal file. The unanimous decision of that Tribunal was that the entire application by Mr Apelogun-Gabriels, against his former employers was dismissed, and all his complaints were found to be unjustified, for reasons, which the Tribunal went into in great detail. That decision is the subject of a separate appeal by Mr Apelogun-Gabriels to the Employment Appeal Tribunal but again it has to be emphasised that that separate appeal is not before us today. We are concerned only with the question of whether the issues determined by the preliminary tribunal hearing on 2 September 1999 were the subject of a proper decision or whether any or all of Mr Apelogun-Gabriels' complaints against that decision, or the way that it was arrived at, are arguably well founded as a matter of law.
5. Mr Apelogun-Gabriels has helpfully explained to us at some length in the course of this morning's hearing the grounds on which he seeks to pursue an appeal against that procedural decision of the Tribunal. The first ground on which he sought to attack the Tribunal's decision was that he considered that the way the proceedings had been conducted by the Chairman had been unfair to him, in that the Chairman interrupted his discourse and had not allowed him to explain the basis of his complaints in sufficient detail to enable him to feel that they had been adequately understood. In particular, he made a complaint that the Chairman had wrongly failed to accept what he wished to say about the way his grievances had been dealt with by the employers themselves, and about how in the course of his attempting to pursue these matters by way of the Employer's Grievance procedure, he had been told that certain matters would not be dealt with or would not be dealt with in a way which was satisfactory to him.
6. Mr Apelogun-Gabriels has in accordance with the directions of the Employment Appeal Tribunal sworn an affidavit dated 26 October 1999 in support of his allegations against the Chairman, which we have read and is at pages 37-40 of the appeal file. In the normal way, the comments of the Chairman have been obtained and are also in the appeal file at pages 41-43, supplemented by a letter from the Council's solicitor recording her recollection and supported by her own notes of what took place at the hearing. It is plain from those documents that the Chairman and the Respondents' solicitor do not agree at all with Mr Apelogun-Gabriels' assertions that he was wrongly prevented from making relevant points to the Tribunal and was wrongly interrupted by the Chairman in the course of the submissions he was attempting to make. The solicitor in particular records that she does not accept that the Tribunal failed to consider the applicant's case properly; she did not recall the Chairman interrupting the applicant's presentation as alleged, and he had been given ample opportunity to present his case fully.
7. Taking all that material into account, we are unable to be satisfied on a balance of probabilities that the breach of natural justice alleged by Mr Apelogun-Gabriels has been established sufficiently to provide an arguable ground for saying that there was any error of law on the part of the Tribunal in the way the case was dealt with. In particular, whether or not Mr Apelogun-Gabriels felt that the points he wished to make were not being allowed to be made in sufficient detail, it appeared in the course of our questioning of him that his main ground of complaint was that his allegations about his own grievances in the way things had not been dealt with satisfactorily by his employers were the main subject which he had wished to ventilate further at the directions hearing before the Tribunal. When we asked him to identify in his own statement of complaints the particular heads under which he had sought to introduce these into the proceedings, the only paragraphs which he identified for us were paragraphs 41-45 inclusive of the document on pages 49-50 of the supplemental bundle before us. Reference to the decision of the Tribunal at the hearing on 2 September 1999 at page 5 of our appeal file shows that the unanimous decision of the Tribunal had been that those paragraphs were within the jurisdiction of the Tribunal and should be sent forward for full hearing. Accordingly we are not satisfied that any arguable ground for saying that any injustice had been suffered by Mr Apelogun-Gabriels in relation to those paragraphs in any event, even if one were to accept his assertions and ignore those of the Chairman and the Respondent's solicitors.
8. The second ground of complaint was that Mr Apelogun-Gabriels was dissatisfied with the way the Chairman had recorded some particular grievances he had sought to put forward at the hearing. His assertion was that the way his case had been recorded in the course of the decision on directions at pages 5-15 of the appeal file had, or might have affected the way the substance of the case had been considered at the full Tribunal hearing. He suggested that bias had been shown in particular in the way that his complaints, relating to paragraphs 41-45 to which we have just referred had been recorded by the Tribunal Chairman in paragraph 23 of the Tribunal's decision under the heading:-

"Complaints about which it is not in dispute that the Tribunal has jurisdiction."

9. Under the heading "Complaint 1 paragraphs 41-45" the Chairman had summarised, in obviously not full but apparently adequate terms, the nature of the complaints the applicant was seeking to make under those heads, which the Tribunal were directing should go forward without qualification for a full hearing. We have been quite unable to see from the way that summary is set out at the top of page 12 of the appeal file that there is any bias, one way or the other in the way in which the Chairman recorded the nature of the complaints. She does not appear to us, to be in any way even arguably suggesting what the result of the ultimate hearing on those complaints should be and we cannot see that any reasonable person should read it in the way that Mr Apelogun-Gabriels suggested. We accordingly reject that as a ground of criticism of the decision of the Tribunal recorded in the extended reasons issued on 16 September 1999.
10. The second instance under this head to which Mr Apelogun-Gabriels referred was, that issues relating to his being overloaded with work, to which he had referred in particular in paragraph 11 of his original statement of complaints, had been insufficiently dealt with or overlooked or as he put it "suppressed" by Miss Hyde in the way she recorded the Tribunal's decision. In our judgment there is no more substance in that ground of complaint than the previous one. Paragraphs 49 and 58 of that same document specifically raise complaint's relating to issues of whether the applicant was wrongly overworked by his employers or not and again reference to paragraph (ii) in the issues directed to go forward to a full hearing of the Tribunal on page 5 of our appeal file, shows clearly that the paragraphs 49 and 58 were among the issues in which it was unanimously decided the Tribunal did have jurisdiction and that those complaints should be the subject of investigation and consideration at the full hearing. And it is worth recording that the decision of the full Tribunal at pages 16-29 of our appeal file does in fact contain extensive reference to the issues of whether the applicant was in fact overworked and oppressed in that way by his employers as he had alleged.
11. The third instance under this head was Mr Apelogun-Gabriels' repeated submission that in paragraphs 20 and 21 of the Employment Tribunal's extended reasons, they had made a reference to a case Sougrin v Haringey Council [1992] IRLR 416 CA as having been cited to them by a Mr Burns who appeared for counsel for the Respondents at the Hearing. Mr Apelogun-Gabriels' firm recollection was that counsel for the Respondents had not in fact cited that case to the Tribunal, but that it had been he himself who had made reference to it in the documents he had prepared for the hearing. It had been a case, along with others, on which he himself had been intending to rely in the course of the hearing and he felt that he had had insufficient opportunity to develop legal argument upon it.
12. We were unable for our part to discern that the question of whether counsel for the Respondents or Mr Apelogun-Gabriels, should be credited with having first cited this authority, had any material effect at all on the outcome of the decision on what issues should be sent forward to a full hearing of the Employment Tribunal. As is apparent from paragraphs 20 and 21 of the Tribunals' extended reasons on page 10, the point for which this case had been apparently referred to as authority was the question of whether a written warning which appeared on Mr Apelogun-Gabriels' file could give rise to a properly made and timeous complaint to the Tribunal under the present proceedings. Since it had been entered on his file some time earlier and the only way in which a complaint to the Tribunal launched in November 1998 could normally be based on it would be if it formed part of a continuing act of discrimination, lasting down until three months before the proceedings themselves were launched. The question of whether the presence of a written warning on a file is part of a continuing act or is simply part of the consequences of an earlier completed act of making an entry on the applicant's employment record appears to us to have been clearly understood by the Tribunal and to have been clearly recorded by them as a relevant consideration in paragraph 20 of their decision. Accordingly, we were unable to see that the confusion over who had cited the case made any material difference to the outcome of the decision, or gives rise to any arguable point of law for saying the Tribunal erred in the way they approached the issues to be sent forward for full hearing.
13. A further complaint by Mr Apelogun-Gabriels relates to remarks he understood to have been made at the hearing by the Chairman in relation to black people and referred to him in a letter he wrote to the Tribunal on 15 September 1999 at page 90 of his supplemental bundle, where he referred to it in these terms: -

"Contrary to comment of the Employment Tribunal during the pre-hearing of 2 September 1999 that black people are the same, I shall like the Tribunal to consider that racial discrimination or just discrimination do occur around people of the same colour. The law recognises this. The relevant circumstances, the facts of the case and the cultural background of the people involved are some of the factors to consider."

14. We have again have been unable to see that his complaints or his reference to this alleged remark provide any arguable ground for his being allowed to pursue an appeal against the actual decision of the Tribunal after the hearing on 2 September 1999. It should be recorded that this complaint is referred to by the Chairman in her comments at page 43, where she states as follows: -

7. "I note that Mr Apelogun-Gabriels has not repeated in his affidavit the complaint that I made a comment about Black people being all the same. This appears at paragraph (X) of his grounds of appeal. I have no recollection of making such a comment or anything like it. As a Black person myself it is certainly not my view that Black people are all the same."

15. Looking at that alleged comment and the context in which the topic must have arisen we think it fairly clear that whatever understanding Mr Apelogun-Gabriels took away with him from the hearing, must have originated from a discussion in the course of the proceedings about the proper basis of comparison for the purpose of assessing whether he, as a black Nigerian of the Yoruba tribe, had suffered any discrimination or not. The particular context was that among his colleagues in his workplace were other black Caribbean and African employees, although the only other Nigerian happened to be from the Ibo tribe rather than the Yoruba tribe as Mr Apelogun-Gabriels is. It appears to us fairly likely that there would have been some perfectly proper discussion as to the proper pool of comparators to be used for the purpose of assessing the racial discrimination issues in this case, but again we are not in any way satisfied that the way in which that appears to be dealt with by the Tribunal on 2 September 1999 gives rise to any arguable ground for appeal against the decision they actually took to let certain issues but not others go forward for a full hearing.
16. A further ground on which Mr Apelogun-Gabriels sought to contend that the decision of the Tribunal was erroneous in law was in their failure to make any specific reference to paragraph 46 in his document of complaints, in which he had sought to rely on alleged direct discrimination by the Council, in failing to give him special leave to attend his own Employment Tribunal hearings, in the Council's time. He complained he had been told on 1 December 1998 that the Council does not give special leave to employees in such circumstances and that in consequence he would have to use his own annual leave entitlement to attend Tribunal hearings on 7 May 1998, 3 December 1998 and 27 April 1999. It is to be noted that any complaint about what happened on 7 May 1998 would have been out of time, as regards an application launched early on 16 November 1998, the date at which this application was submitted to the Tribunal. Conversely the events of 3 December and 27 April 1999 post-dated the commencement of the present proceedings. It is also significant that in the originating application of 13 November at page 31 of our appeal file, there is no mention of seeking to bring a complaint on that ground, as distinct from the allegations of overloading him with work and bullying which are specifically recorded there.
17. Consequently, it was a matter of discretion for the Tribunal whether this additional matter should be allowed to be included in the issues to go forward in the present proceedings or not. Although we agree with Mr Apelogun-Gabriels that there is no specific reference to this paragraph number in the Tribunal's statement of reasons, we do not think it right to infer in the circumstances of the very large list of alleged racial discrimination matters that were being dealt with by the Tribunal that they misdirected themselves or wrongly failed to take account of his submissions on that particular subsidiary issue. It is ultimately a matter of judgment, whether such an additional complaint, which in this case is not stated in very specific terms but only as an assertion as to what Mr Apelogun-Gabriels had been told, should be allowed to be introduced by way of a separate head of complaint and a separate issue in the existing proceedings. As we have already said, it is not in our judgment right for this Tribunal to interfere in the decision of an Employment Tribunal on such a procedural issue unless we are clearly satisfied they were wrong in law in the way they determined whether it should be included or not. Since the actual decision of the Tribunal was clearly that it should not be included, we are not satisfied there is any arguable ground for saying that the Tribunal wrongly exercised their discretion as regards that question.
18. The final ground which Mr Apelogun-Gabriels sought to put before us this morning was that he had unhappily been suffering from a depressive illness, at the time of the Tribunal hearing in front of Miss Hyde or earlier. He felt that this had been insufficiently taken into account as a special reason to justify the admission of additional complaints, outside of the normal time limit for bringing applications before Tribunals under Section.68 of the Race Relations Act 1976. However, Mr Apelogun-Gabriels himself very fairly made clear to us that although he had wanted to rely on this to a greater extent than he felt himself able to at the actual hearing, he had in fact specifically mentioned the fact of his having suffered from this illness to the Tribunal: and had as he recalls, specifically said that it was sufficiently bad for him to experience a "burning sensation like fire", so that it was not a merely trivial illness. He had mentioned this, but in the event he does not appear to have been specifically recorded by the Tribunal Chairman in her record of the decision as having done so. The fact that a point like that is not mentioned specifically in the record of the decision is not in our judgment a proper ground for us to infer that there has been any error of law on the part of the Tribunal, or any improper failure to take such matters into account, when considering whether the Tribunal should exercise its discretion under Section.68 to admit complaints for determination by the Tribunal outside its normal jurisdiction and out of time. Accordingly we are not satisfied that that issue gives rise to any arguable ground of appeal against this Tribunal decision either.
19. Mr Apelogun-Gabriels in the course of his address inevitably touched on numerous grounds in which he was dissatisfied with the substantive outcome of his Tribunal proceedings and which he wished to pursue further. We again emphasise that our consideration and this decision today relates only to the procedural issues determined by the Tribunal at the procedural hearing on 2 September 1999. What we have said does not in any way prejudge one way or the other any issue Mr Apelogun-Gabriels may properly seek to raise under his separate appeal to the Employment Appeal Tribunal against the substantive decision of the later Tribunal issued on 2 December 1999. Anything he wishes to raise in relation to that Tribunal decision will have to come separately before the EAT by way of another preliminary hearing of his separate appeal in that matter in due course. For the reasons we have given we are not satisfied that any arguable ground has been shown to us today to warrant directing that this appeal against the procedural decision should go forward to its own full hearing before the Employment Appeal Tribunal, and we accordingly unanimously now dismiss the appeal against that decision.