United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondents	MR T BRENNAN (of Counsel) Instructed By: The Solicitor London Borough of Islington Town Hall Upper Street London N1 2UD


 


MR JUSTICE CHARLES: The parties to the two appeals that are before us are Mrs Obasa (the Appellant) and the London Borough of Islington (the Respondent).

1. The two appeals before us are:

(1) An appeal against a decision of an Employment Tribunal sitting at London North (Chairman Mr Williams) case No. 2201426/96 ("the Williams Decision").

(2) An appeal against a decision of an Employment Tribunal sitting at London North (Chairman Mr Flint) case No. 2202539/98 ("the Flint Decision").

2. The Extended Reasons for the Williams Decision were sent to the parties on 7 July 1997 and the Extended Reasons for the Flint Decision were sent to the parties on 29 January 1999.

General Background

3. The two appeals have a fairly lengthy background history. Included within that history have been a number of hearings before Employment Tribunals of claims made by Mrs Obasa against the London Borough of Islington, appeals to this Tribunal in respect of those claims and in respect of one of those claims an appeal to the Court of Appeal and an application by Mrs Obasa for leave to appeal to the House of Lords and an application to the European Court of Human Rights.
4. One of the earlier decisions of the Employment Tribunal has unfortunately given rise to argument as to its meaning and effect and thus to some confusion in respect of the issue as to the date upon which Mrs Obasa's employment by the London Borough of Islington terminated. We shall return to this earlier decision of the Employment Tribunal (it is defined below as the "Roose Decision"). Such confusion has been added to by a concession made by the London Borough of Islington in the Williams Decision. This confusion and the points underlying it are primarily relevant to the appeal against the Flint Decision.
5. Mrs Obasa suffers from a condition known as sickle cell disease. She represented herself before us with the assistance of a friend. She made her points calmly and clearly. It was apparent to us that over the years Mrs Obasa has invested a considerable amount of time on, and has understandably become emotionally involved with, her claims.
6. Our decision will come as a disappointment to Mrs Obasa. Like other Tribunals in the past we have some sympathy for Mrs Obasa. We hope that she will consider this judgment carefully and in the light of it take stock of her position concerning the outstanding claims she has against the London Borough of Islington and generally.
7. In our view it is generally a pity if an individual becomes involved in lengthy litigation. Mrs Obasa is no exception.

History of Proceedings

8. We set this out by listing a number of decisions that have been made. They are as follows:

(A) A decision of the Employment Tribunal sitting at London (North) (Chairman Mrs Calvert QC) case No. 51830/91/LN/B (the "Calvert Liability Decision"), the Extended Reasons for which were sent to the parties on 20 December 1994. That decision was as follows:

"The First Respondents are in breach of Section 1(1)(a) and 4(2)(b) and (c) of the Race Relations Act 1976."

(B) A decision of the Employment Tribunal sitting at London (North) again case No. 51830/91/LN/B ("the Calvert Quantum Decision"), the Extended Reasons for which were sent to the parties on 9 October 1995. That decision was:

"The unanimous decision of the Tribunal is that under the provisions of Section 56 of the Race Relations Act 1976 the Respondents are ordered to pay to the Applicant £24,952.81 by way of compensation."

(C) A decision of the Employment Appeal Tribunal on appeal from the Calvert Liability Decision (Chairman Holland J) (the "Calvert EAT Judgment"). The judgment on this appeal was delivered on 28 October 1996. As a result of that judgment the Employment Appeal Tribunal ordered that:

"THE TRIBUNAL ORDERS that the appeal be allowed and that the decision of the Industrial Tribunal that the Appellants racially discriminated against the Respondent be set aside in accordance with the judgment of the Employment Appeal Tribunal."

(D) A decision of the Court of Appeal on appeal by Mrs Obasa against the Calvert EAT Judgment which was given by the Court of Appeal (Evans Pill and Thorpe LLJ) on 16 February 1998. The Order of the Court of Appeal was as follows:

"IT IS ORDERED

(1) that the appeal be dismissed and the order of the Employment Appeal Tribunal dated the 4^th November be affirmed."

(E) Mrs Obasa has applied for leave to appeal against this judgment of the Court of Appeal to the House of Lords and has made an application in respect of it to the European Court of Human Rights.

(F) A decision of an Employment Tribunal sitting at London North (Chairman Mr Roose) (the "Roose Decision") the Extended Reasons for which were sent to the parties on 21 May 1996. This decision is expressed as follows:

"The unanimous decision of the Tribunal is that the Respondent did not unlawfully discriminate against the Applicant on racial grounds nor did it victimise her."

Additionally at paragraph 8 of the Extended Reasons for the Roose Decision the Employment Tribunal concluded as follows:

"Unfair Dismissal

8. Our finding is that the Applicant did not terminate her contract of employment but merely sought to withdraw herself from the work place by applying to take advantage of the Respondent's long term maternity policy which would have kept her away until her youngest child was of an age to be left while the Applicant attended work. She has stressed to us that she could not afford to terminate her employment. In the course of his submissions Mr Burns referred to Western Excavating Ltd v Sharp 1978 ICR 221 and Bashir v Brillo Manufacturing Co 1979 IRLR 295 which we found to be helpful. We find that this application too must fail."

At paragraph 2(j) of the Extended Reasons for the Roose Decision that Employment Tribunal also said this:

By letters of 11 May and 5 June the Applicant indicated that she was at her wits end for a number of reasons including her health and the actions of the Respondent which she saw as acts of victimisation. Instead of terminating her contract she applied for leave of absence under the Respondent's long term maternity absence scheme from which she believed she was entitled to benefit.

This paragraph is in the recitation of the facts found leading to the conclusion in paragraph 2(l) that the Employment Tribunal drew no inferences of racial discrimination or victimisation.

(G) A decision of the Employment Appeal Tribunal on appeal from the Roose Decision which was heard by the Employment Appeal Tribunal (Chairman His Honour Judge Levy QC) by way of Preliminary Hearing on 9 December 1996 (the "Roose EAT Judgment"). The Employment Appeal Tribunal dismissed Mrs Obasa's appeal against the Roose Decision on the basis that it raised no reasonably arguable points of law. The Roose EAT Judgment contains the following passage:

"Whether the Tribunal erred in not finding constructive dismissal is ground G in the Notice of Appeal. On this we have turned to the supplementary bundle at page 94 which contains a long letter sent by Mrs Obasa to the Industrial Tribunal dated 11 May 1994. (sic) The final paragraph, starting on page 96 of the bundle, of the letter reads:

'Overall Julia, due to Islington's refusal to sort out my salary and mainly because of my difficulties in arranging for child care for my children, I am writing according to Islington Council's Maternity and Parenthood Scheme policy, to resign from my post until my son Daniel's fifth birthday on 6 October 1995 as is my entitlement.

Please can you process this for me.

Thank you.'

With that letter in front of them, in our judgment the Tribunal did not err in refusing to find that there was a constructive dismissal. There was sufficient evidence before it to reach the conclusion which it did."

(H) An application to commit Mrs Obasa for contempt of Court based on her reaction at the Employment Appeal Tribunal to the Roose EAT Judgment was made and this was dealt with by the President of the Employment Appeal Tribunal (Morison J) on 8 April 1997.

(I) The Williams Decision. This was that:

"The unanimous decision of the Tribunal is that we have jurisdiction to hear the Applicant's claim based on alleged race discrimination and victimisation but only with regard to any events that took place after 13 May 1996. However the Applicant's claims fail and are dismissed accordingly."

(J) The Flint Decision. This was that:

"The unanimous decision of the Tribunal is that it has no jurisdiction to entertain the Applicant's claim of unfair dismissal but that it does have jurisdiction to entertain the Applicant's complaints of race, sex and disability discrimination and directions are given at the end of this decision as to the future conduct of the case."

(K) For completeness we mention that a complaint made by Mrs Obasa against UNISON was dismissed by an Employment Tribunal sitting at London (North) case No. 55991/95 (the "UNISON Decision"). We heard Mrs Obasa's appeal against the UNISON Decision the day before we heard her appeals against the Williams Decision and the Roose Decision. The reason we did this was that the date upon which Mrs Obasa ceased to be an employee of the London Borough of Islington is relevant to the appeal against the UNISON Decision.

Further Background

9. We make the following additional points by way of a description of relevant further background:

(1) The Calvert Liability Decision and therefore the Calvert EAT Judgment related to three issues described in the Calvert EAT Judgment as the interview issue, the transfer issue and the qualification issue. A helpful description of those issues is contained in the Calvert EAT Judgment (given by Holland J). For present purposes the most relevant issue is the qualification issue which he describes in the following way:

"The Qualification Issue. This was similarly raised by Mrs Obasa in the letter of the 23^rd March 1991. It arises as follows. Prior to entering employment with the Borough she had acquired a number of qualifications and on the strength of such she was allocated spinal column point 25 in Grade 4. Within the latter there is potential for a higher allocation, that is to points 26 or 27 but only if the employee has certain specific qualifications or qualifications equivalent thereto. Mrs Obasa's qualifications are not as specified; she contends that they are equivalent to such. The relevant scheme of Conditions of Service for Residential and Allied Staffs has a provision apparently relevant to this issue: 'If an employee holds a qualification not listed above advice as to its acceptability should be sought from the Joint Secretaries of the Provincial Council'. In the event, first, Miss Utka in the letter of the 3rd February 1992 rejected Mrs Obasa's contentions as to the weight of her qualifications; and second, the evidence of Miss Utka to the Tribunal was to the effect that there had been no reference to the Joint Secretaries before making this ruling, albeit that there had been some enquiry with the Royal College of Nursing with results unfavourable to Mrs Obasa. She added that in the event they never sought rulings from the Joint Secretaries. By way of response, the Tribunal's Reasons on this issue are as follows:

'We were told and we accept that never has the advice relating to the acceptability of the qualifications been sought from the Joint Secretaries of the Provincial Council. In other words that part of the agreement with the Union has been completely ignored. It was submitted that as that applies to everybody there cannot be any discrimination because it was the policy of the department not to apply that term. It is correct that it does apply to everybody but we find that inevitably people of ethnic minority may not have the qualifications that are set out ... and then it would be in many cases and in this particular case discriminatory not to ... seek the advice of the Joint Secretaries ... (The Borough) have now agreed to do that somewhat late in the day'.

Having set out the foregoing, there is then a consequent finding of racial discrimination,

'a breach of sections 1(1)(a) and 4(2)(b) of the Act'."

Mr Burns submits, first, that a finding invoking Section 1(1)(a) plainly cannot be sustained on the Reasons as set out above: if they sustain any finding it is by reference to Section 1(1)(b). To us, this submission seemed incontestable. His second submission was that there was no evidence that the policy as set out in the Reasons had in the particular case been discriminatory against Mrs Obasa. We have to hold, despite the best efforts of Mr Ford, that there is no answer to this. We would agree with the Tribunal that a blanket refusal to check the weight of qualifications that are not those that are specified could by reference to Section 1(1)(b) be discriminatory: members of ethnic minorities who have acquired their qualification abroad would be particularly disadvantaged. However Mrs Obasa obtained her qualifications in this country and there is simply no evidence to support the notion that the Borough's policy discriminated against her on racial grounds.

(2) The three issues that were the subject matter of the Calvert Liability Decision and therefore of the Calvert EAT Judgment all arose during the period as to which it is common ground that Mrs Obasa was an employee of the London Borough of Islington.

(3) The Qualification Issue is relevant to the Williams Decision and to the complaint that the Roose Decision allowed to go forward to a full hearing. We have seen the clause in the Conditions of Service referred to by Holland J in the above citation, it is that:

"If an employee holds a qualification not listed above advice as to its acceptability should be sought from the Joint Secretaries of the Provincial Council."

We have also seen a letter dated 5 April 1995 written by the London Borough of Islington to Mrs Obasa which is in the following terms:

"Dear Mrs Obasa,

I am writing further to the letter from the Head of Law of 3.4.95, and with regard to the arrangements for your return to work which will take place on 10^th April 1995.

You will be required to take up the post of Assistant Superintendent at 3 Wray Court under the provisions of your agreed transfer. I understand that return to the post of Assistant Superintendent at 53 Leigh Road is not acceptable to you. The terms and conditions of your employment will remain unchanged. The job description is attached for your information. Please note that you will be required to carry out your full normal duties, immediately when you take up this post.

Your suspension from duty has been lifted with effect from the date of this letter and I confirm that no disciplinary action will be taken against you, in relation to any alleged incidents, prior to your return to work.

Your qualifications, and the question of whether or not they entitle you to a rate of payment above the qualification bar have been referred to the Greater London Employers' Association and thus to the Joint Secretaries of the Provincial Council. Although the initial response indicates that they are not the equivalent of those specified under National Conditions of Service, GLEA has requested further information. Every effort will be made to resolve this matter as quickly as possible.

In order to discuss your return to work, you are required to attend a meeting, which will take place on Monday 10^th April 1995. Please report to reception at Highbury House, 5/6 Highbury Crescent, N5 at 10.30 a.m.

Ms Jean Dolphin, the Director of Neighbourhood Services, representative from Personnel and line management of your post at Wray Court will be present. Although there is no formal entitlement to representation you may, if you wish, be accompanied by a representative of your choice.

You will be required to report to 3 Wray Court immediately afterwards."

(4) As appears from the letter dated 5 April 1995 prior to April 1995 Mrs Obasa had been suspended. This also appears from the history set out in paragraph 2 of the Extended Reasons for the Roose Decision which also shows that after the commencement of her employment on 4 September 1989 Mrs Obasa had been absent on maternity leave and then later on sick leave (the dates of these absences are not relevant for present purposes) her absence prior to April 1995 had been due to her suspension.

(5) Paragraph 2(j) of the Extended Reasons for the Roose Decision refers to two further letters dated 11 May 1995 and 5 June 1995. The first letter dated 11 May 1995 is from Mrs Obasa to the London Borough of Islington. It is a long letter in which Mrs Obasa sets out difficulties and problems as she sees them relating to her return to work. An important part of these relates to her view as to her ability to pay for child care. Mrs Obasa links this to her long-standing view, argument and grievance relating to the Qualification Issue and thus to her case that she should be (and should have been) allocated to a higher spinal column and therefore that she should be (and should have been) paid a higher salary. As we understand it Mrs Obasa's point was that with the payment of a higher salary (and of arrears) she could have afforded to pay for child care and would therefore have had the ability to return to work.

(6) As to the points raised by Mrs Obasa relating to the Qualification Issue, it is to be noted that in its letter dated 5 April 1995 the London Borough of Islington state that the matter has been referred to the Joint Secretaries of the Provincial Council and that every effort would be made to resolve the matter as quickly as possible.

(7) As appears above the last three paragraphs of the letter dated 11 May 1995 from Mrs Obasa to the London Borough of Islington are set out in the Roose EAT Judgment. They are important and we repeat them. They are as follows:

"Overall Julia, due to Islington's refusal to sort out my salary and mainly because of my difficulties in arranging for child care for my children, I am writing according to Islington Council's Maternity and Parenthood Scheme policy, to resign from my post until my son Daniel's fifth birthday on 6 October 1995 as is my entitlement.

Please can you process this for me.

Thank you."

(8) The reply to the letter dated 11 May is dated 9 June 1995 and it does not refer to a letter dated 5 June 1995 referred to in paragraph 2(j) of the Extended Reasons for the Roose Decision (and no letter of that date is included in our bundles) is in the following terms:

"Dear Mrs Obasa

I am writing in response to your letter of 11.5.95, to confirm that your resignation is accepted in accordance with the conditions detailed in subsection Dab of the Staff Code (copy attached). I would be grateful if you could submit a copy of the Birth Certificate of your son, Daniel, within the next fourteen days of the date of this letter.

Please note, that in accordance with Sub-Section Dab there is no entitlement for you to return to your substantive post.

The Council is prepared to waive the requirement for you to report for duty during your contractual notice period. You will be paid for your notice period, i.e. for one month from 15.5.95 (the date your letter of 11.5.95 was received by the Department) to 15.6.95. The necessary adjustment will be made as soon as possible."

(9) The Return to Work up to Five Years After Confinement Scheme in sub-section Dab of the Staff code ("the Dab Return to Work Scheme") is in the following terms:

"Scope

1. This scheme shall apply to all employees on the Council's permanent establishment who qualify for maternity leave, or their partners, where both partners are permanent employees of the Council.

Return to Work

2 Where a former employee qualified under paragraph 1 above wishes to return at any time up to five years after the date of confinement, efforts will be made to return them to a job on the same grade as their previous job. This period may be extended where the former employees' child starts attending school. The return will be to a job in the former employees original department in the first instance; however, if this proves impracticable, the return will be to a job in another department of the Council. All former employees can request that job share arrangements be applied to their jobs in accordance with the job share policy (see section Bm of the Staff Code). Former employees may also request a change in working arrangements to part time. Any request will be considered in the light of operational and personal requirements.

Period of Notice of Intention to Return

3. The former employee should give a minimum of 12 weeks notice in writing of their intention to return to work. Where a longer period of notice is given the search for a job will commence from that date.

Arrangements for the Former Employees Return to Work

4. It is the intention of this scheme that the former employee should, wherever possible, return to a job in their original department on the date on which their notice of intention to return expires. If no job can be found in the original department attempts will be made to find a job in another department. However, it is acknowledged that this may not always be possible. Therefore, it is important that the employee is made aware that if no job can be found within the 12 weeks notice (or longer period if additional notice is given) the search for work will cease. Departments should ensure that the operation of this scheme does not interfere with the Council's Staffing Arrangements.

5. If a job is found within the notice period, appointment to the post will be in accordance with normal recruitment procedures for external applicants. At the end of the notice period, if no job has been found, the former employee will be informed and told that the Council has made all reasonable efforts to find work, that no further efforts will be made and that the former employee can apply for other Council jobs in the normal way.

6. The rights of a former employee under this agreement are offered on the condition that they are not employed by another employer during the period from when they leave the Council's service until the time when they are due to return to the Council's service under the terms of this scheme. However, former employees who return to work as a qualifying condition for paid maternity leave and subsequently resign will retain an entitlement to the provisions of this scheme.

Continuous Service

7. The scheme does not preserve continuity of employment for employment legislation purposes (e.g. for redundancy and unfair dismissal purposes), but the previous service will count for the purposes of entitlement to annual leave, sick pay, maternity leave and notice periods (providing the qualifying conditions outlined under paragraph 6 above are met)."

(10) Paragraph 1 of the Extended Reasons for the Williams Decision contains the following:

"1. The Applicant who, it is conceded, is still employed by the Respondent Council, has been employed as an Assistant Superintendent from 4 September 1989 (notwithstanding the Applicant's contention in the Originating Application that her employment ended on 15 June 1995."

Mrs Obasa's Claims for Unfair Dismissal

10. Mrs Obasa's first claim for unfair dismissal was included in her Originating Application which was received by the Employment Tribunal on 13 July 1995. In box 1 of that application she described her claim as being one for constructive unfair dismissal and in box 4 gave the dates of her employment as being from 4 September 1989 to 15 June 1995. In the particulars of her claim Mrs Obasa stated (amongst other things) as follows:

"Event has progress to the point that I found it impossible to continued working for the Respondent. In my letter of the 11^th May 95, and 5^th June 95 to the Respondent, I made it plain that the situation has became impossible for me. I resigned from the Respondent's employment. I was forced to.

Respondent's letter 9^th June 95 accepting my resignation with condition attached that will leave me with no post to return to and at the very least demotion.

The Respondent has put me in a situation that had forced me to resign and has accepted my resignation with condition that left me with no post to return to and at the very least demotion which is contrary to the Respondent's policy sub-section Dab of the Staff Code and in doing so has constructed my dismissal."

11. In their grounds of resistance the London Borough of Islington made (amongst others) the following points:

"The Applicant was employed by the Respondent as an Assistant Superintendent within its Neighbourhood Services Department between the dates of 4 September 1989 and 15 June 1995. From 2 March 1994 until 11 April 1995 the Applicant had been suspended on full pay pending a disciplinary hearing concerning her failure to carry out important duties contained in her job description.

On 11 April 1995 the Applicant returned to work to commence employment as an Assistant Superintendent at the Respondent's residential establishment at 3 Wray Court following a transfer from her previous place of employment. The Respondent had determined that no disciplinary would be taken regarding the Applicant's refusal to carry out certain duties of her job description.

On her return to work the Applicant requested leave immediately and stated that she required the leave for reasons of child care. The Superintendent, Ms J Ingram agreed to 3 weeks annual leave commencing on 23 April 1995.

The Applicant was absent from work due to illness from 16 April 1995 and provided sickness certificates which showed that she would be unable to return to work before 5 May 1995.

The Applicant was informed in writing by the Superintendent, Ms Ingram on or after 20 April 1995 that her next day on the rota would be 15 May 1995, the first day after her previously agreed 3 weeks' leave.

On 5 May 1995 the Applicant telephoned Ms Ingram to request 3 weeks leave beginning on that day. The position was reiterated by Ms Ingram that the Applicant was expected back to work on 15 May 1995. All rotas had been planned on this basis, the 2 other managers had arranged leave for dates soon after 15 May and it was therefore essential for the Applicant to return on that day.

On 9 May 1995 the Applicant telephoned Ms Ingram and again requested leave, stating that she would not be coming to work on 15 May 1995 as she had no child care provision. Ms Ingram did not agree to leave since she considered that the Applicant had had ample time to arrange for child care and informed the Applicant that if she were not at work on 15 May 1995 her absence would be treated as unauthorised absence.

On 11 May 1995 the Applicant wrote to the Respondent stating that she wished to resign from its employment. The Applicant's letter also stated that she wished to take advantage of the Respondent's arrangements where up to 5 years after the birth of a child the Applicant can apply to the Respondent for efforts to be made for her to return to a job on the same grade as her previous job. These arrangements provide for a search for a job for a period of 12 weeks on the part of the Respondent both within the former employer's Department and within other Departments of the Council. Consequently the Applicant has signified her intention of requesting further employment with the Respondent under conditions which entail either at a job at her previous grade or in another job within the Council structure.

Consequently the Respondent contends that there has been no dismissal at all in respect of the Applicant. The Applicant resigned from her employment."

12. Looking at these pleadings (and therefore without finding any facts) it appears that perhaps Mrs Obasa's claim was prompted by her reading of the letter from the Council dated 9 June 1995 and a realisation therefrom (or otherwise) that the Dab Return to Work Scheme did not give her an entitlement to return to work. In any event the pleadings show that the London Borough of Islington maintained that Mrs Obasa had resigned and taken advantage of the Dab Return to Work Scheme whereas Mrs Obasa maintained that she had been constructively dismissed. These are the rival contentions which form the background to the Roose Decision on "unfair dismissal" and it appears from them that neither side was asserting that Mrs Obasa's contract of employment had not been terminated.
13. Mrs Obasa's second claim for unfair dismissal is contained in an Originating Application received by the Employment Tribunal on 15 June 1998. This Originating Application is the subject of the Flint Decision. In box 1 of that Originating Application Mrs Obasa describes her claim as follows:

"Unfair dismissal

Employment Rights Act 1996

Race Relations Act 1976

Disability Discrimination Act 1995

Industrial Tribunal Act 1996

Sex Discrimination Act 1975."

In box 4 she gives her dates of employment as being 4 September 1989 to 15 June 1995. We pause to comment that in this box Mrs Obasa (in reliance upon the Roose Decision or otherwise) does not assert that her employment continued after 15 June 1995.

14. The particulars given under paragraph 11 of the Originating Application received by the Employment Tribunal on 15 June 1998 indicate (and this was confirmed (1) by Mrs Obasa orally before us and (2) by paragraph 6 of the Extended Reasons in respect of the Flint Decision) that this Originating Application was triggered by events which followed the giving on 5 June 1997 by Mrs Obasa of formal notice of her intention to return to work in accordance with the Dab Return to Work Scheme. It is these events which also found her complaints of race, sex and disability discrimination contained in this Origination Application and which the Flint Decision directs should go to a full hearing.

The Preliminary Hearing at this Tribunal in respect of Mrs Obasa's appeal against the Flint Decision

15. On that occasion this Tribunal did not have nearly as complete an account of the history as it now has. However, as the judgment given in respect of that Preliminary Hearing demonstrates we had seen the Extended Reasons in respect of the Roose Decision and the Williams Decision. Paragraphs 9 to 11 of the Judgment of this Tribunal on the Preliminary Hearing (which I delivered) are in the following terms:

"9 It follows, in our view, that reasonably arguable points of law arise on this appeal.

10 Firstly, on the basis that it is reasonably arguable that there was not a concession but a finding of an earlier Industrial Tribunal that the employment continued and thus, on one view Mrs Obasa is placed in a catch 22 situation in that she lost on the first occasion on the basis that her employment was still continuing, and lost on this occasion on the basis that it terminated. It is reasonably arguable that that cannot be right.

11 Even if that is wrong and thus not a reasonably arguable point, the other point that we consider to be reasonably arguable is that either the Employment Tribunal did not apply the statutory test or did not adequately explain why and how they were applying the statutory test, in respect of the issue of reasonable practicability. As to this if it had been common ground between employee and employer that the contract of employment was continuing and in another field of law that might well give rise to an allegation of estoppel by conduct. It seems to us that as a minimum the reason why that common ground expressed in the concession referred to in paragraph 2 did not support and found an argument that it was not reasonable (sic) practicable to present the complaint earlier should be considered and explained by an Employment Tribunal."

16. Naturally those views were expressed without the benefit of hearing argument from the London Borough of Islington and without the benefit of reading some of the documents that are now before us and, in particular, the terms of the Dab Return to Work Scheme and the letters referred to above dated 5 April 1995, 11 May 1995 and 9 June 1995.

The Flint Decision

17. The Extended Reasons for the Flint Decision contains the following paragraphs:

"1. This is a preliminary hearing to decide whether having regard to the effective date of termination of the Applicant's employment and the time limit contained in section 111(2) of the Employment Rights Act 1996 (three months) a Tribunal has jurisdiction to consider the Applicant's complaint of unfair dismissal …"

2 We deal first with the question of the dismissal of the Applicant as this is really a question which is separate from the question of the claims for discrimination. The Applicant gives as the ending of her employment 15 June 1995 and the application was presented to the Employment Tribunals on 15 June 1998. The argument is that the Applicant's employment did not end on 15 June 1995 but owing to the effect of the Respondent's policy had somehow continued until the failure of the Respondents to implement their policy. Consequently since this failure to implement was some time in March or April 1998 the application in respect of unfair dismissal was in time.

3 We have to consider in respect of this two matters. The first of these is what is known as the DAB which is a policy devised by the Respondents to deal with all employees who qualify for maternity leave. The policy allows a former employee to return to work at any time up to five years after the date of confinement. It is to the effect that it they do so apply efforts will be made to return them to a job on the same grade as their previous job or if this proves impracticable to return to a job in another department of the Council. The employee is required to give a minimum of 12 weeks' notice in writing of their intention to return to work. The argument of the Applicant is that the apparent ending of employment where the employee intends in the future to exercise rights under the DAB scheme is not in fact an ending of the employment. Therefore in her case her employment did not end on 15 June 1995 but that in some fashion the contract of employment went into suspense and was revived by her indicating that she intended to exercise her rights under the Policy. The Respondents deny this. They say that the terms of the scheme referring to former employees and the specific provision that continuity of employment is not preserved except for certain circumstances indicates that the employment is regarded as at an end but that the employee has a contractual right to give notice of an intention to return to work and that there is a contractual obligation on the part of the Respondents to attempt to find the former employee work in accordance with the Policy.

4 Our view on this is that the Respondents' contention on this is to be accepted. The scheme is separate from the maternity rights of the employees although perhaps it could be said that it is supplemental to them. A pre-requisite for the scheme is the qualification for maternity leave which the Applicant had. In all documents which we saw including the Guide to Maternity and Parenthood Scheme there is clear indication that employment has ceased and that a fresh period of employment will start if the employee is successful in being given a job by the Respondents. The fact that continuity of employment will be preserved for entitlement to annual leave, sick pay, maternity leave and notice periods seems to us to be immaterial. The point is has the earlier employment ceased either by a dismissal or by resignation and we find that it has. Consequently although it is not clear whether the Applicant was dismissed or resigned with effect from 15 June 1995 we find that one of these two things happened and if what happened is to be construed as a dismissal then the effective date of termination of the Applicant's employment is 15 June 1995.

5 We then have to turn to what happened and what was the decision of an earlier Tribunal which heard the Applicant's claim of race discrimination that there was a concession by the Respondents recorded in a finding by the Tribunal that the Applicant's contract of employment had not terminated. The actual wording of the decision is 'The Applicant who it is conceded is still employed by the Council'. We understood from Mr Brennan that when the matter had recently been before the Employment Appeal Tribunal Morison J. said that the concession ought not to have been made because the matters went to the jurisdiction of the Tribunal which had to find whether there had been a dismissal and if so on what date so as to find the effective date of termination and to deal with other matters relating to the ending of the relationship between the parties. These could not be the subject of a concession since it was for the Tribunal to decide whether it had jurisdiction or not and whether and during what period the relationship of employer and employee subsisted. The parties could not impose upon the Tribunal jurisdiction by concessions or waivers. We agree with this. We think that the question of whether the Applicant resigned and on what date or whether she was dismissed and on what date are matters of fact which the Tribunal has to determine. The parties cannot concede or waive such matters and we are not bound to accept the concession made by the Respondents at the earlier hearing, as the matter is one which goes to the jurisdiction of the Tribunal. Having regard to this we find that if there was a dismissal and not a resignation in this case then the effective date of termination was 15 June 1995. The application was presented on 15 June 1998. The Applicant was well aware of the existence of the Employment Tribunals since she has been engaged in a course of litigation against the Respondents since 1991 and we can find no room for the non-implementation of the strict terms of Section 111 of the Employment Rights Act 1996. Consequently we find that we have no jurisdiction to hear the claim of unfair dismissal as it has been presented out of time nor do we have jurisdiction to hear the Applicant's claim in breach of contract insofar as this might come under the jurisdiction of the Tribunals as a matter arising or outstanding on the termination of the contract of employment because of the wording of Article 7 of the Regulations and the fact that the contract terminated on 15 June 1995."

18. Prior to the hearing before the Employment Tribunal chaired by Mr Flint the Employment Tribunal wrote to Mrs Obasa on 1 October 1998 in (amongst others) the following terms:

"3 It appears however from your IT1 that you are claiming unfair dismissal and the Respondents maintain that your employment terminated in 1995 by consent when you resigned. It appears from the documents that you submitted to the Tribunal that you are claiming unfair dismissal under the right to return to work up to five years after confinement regulations which perhaps were part of your contract.

4 The claim for unfair dismissal has to be submitted within 3 months of termination of employment and the Respondents submit that your employment actually terminated in 1995. It appears therefore that your unfair dismissal claim is outside the time limit.

5 If you are claiming that they had a duty to seek other employment for you when you indicated you wished to return to work under the return to work scheme then this may be a contractual claim and you are advised to seek advice from the Citizens Advice Bureau, Law Centre or Solicitor to advise you on this claim and please indicate to us whether you wish to proceed with your unfair dismissal claim. It may be that if this is a breach of contract claim that we have no jurisdiction to hear such a claim as our jurisdiction only extends to those who were employees and are dismissed from their employment."

19. In reply by a letter dated 15 October 1998 Mrs Obasa (amongst other things) refers to the Roose Decision and the Williams Decision in the following terms:

"2. IT Decision of 21^st May 96 Case No. 20256/95 – 41747/95 page 8 deal with unfair dismissal.

3. IT Decision of 7^th July 97 Case No. 2201426/96, page 1 'It is conceded, is still employed by the Respondent'."

It follows that prior to the hearing the Employment Tribunal chaired by Mr Flint were made aware of both the Roose Decision and the Williams Decision, but it is only the Williams Decision that is referred to in the Extended Reasons.

The Williams Decision

20. The Extended Reasons for the Williams Decision are in the following terms:

"1. The Applicant who, it is conceded, is still employed by the Respondent Council, has been employed as an Assistant Superintendent from 4 September 1989 (notwithstanding the Applicant's contention in the Originating Application that her employment ended on 15 June 1995). The present claim has been dealt with at least in part in previous applications to the Tribunal. At the outset Mr Burn urged us to deal with two preliminary points: (i) that the matters, or most of them, were resjudicata and (ii) in any event some of them were out of time. The Applicant had requested a two day hearing and persisted in that request before us but we felt that it was only right that we should deal at least with the preliminary issues and, if those could be resolved within the day, we would go on to hear the whole of the case and reach a decision, if possible within the day. The Applicant put additional documents into the bundle and we proceeded to hear the evidence. The Respondents put in written submissions which the Applicant (and the Tribunal) had not seen. We decided to allow the Applicant over half an hour to give her an opportunity of reading and absorbing them for the purpose of presenting her case. On her return, when she complained again about the late delivery of the documents, I asked her if she needed more time but she said that she did not and proceeded to present her case. She assured the Tribunal that she did not wish to repeat any matters on which there had been any previous decisions, or which had been dealt with at previous hearings. In the circumstances, having perused the decisions in the other cases (set out in the bundles of documents) i.e. Cases No. 51830/91, 20256/95 and 41747/95, we came to the conclusion that the Respondents' submission on the preliminary issues were correct (as set out in the document which is on the Tribunal file headed 'Preliminary Issues: Respondents' Submission'). In view of the Respondents concession that of the events arising after 13 May 1996, they had identified two such items, we reached the conclusion that all events occurring before the Industrial Tribunal hearing on 13 May 1996 were resjudicata and that the Applicant is estopped from raising them again before this Tribunal. It should be recognised that the object of litigation is to bring disputes to an end and not to prolong them. The only jurisdiction we have, therefore, arises out of events occurring after 13 May 1996, and only insofar as they are claimed in the Originating Application in this case.

2. We then adjourned again to enable the Applicant to collect her thoughts and present the case after the luncheon break. Some evidence unfortunately appeared to duplicate that given at the previous hearing before differently constituted Tribunals. Other evidence was introduced at a late stage regarding comparators which boiled down to one comparator whom we will not identify but refer to her only as 'M'. She, accordingly to the Applicant, was given increments based on work experience. However, on cross-examination, it seems that this lady is a superintendent on residential grade 6 on which there is no qualification bar. The fact that the proposed comparator was only brought to the attention of the Respondents at the hearing placed them in a difficult position. However, they dealt with this aspect as best they could. In our view, the comparator is not a true one as the grades and appointments are quite different. In any event, the introduction of the comparator at this late stage was not the way in which matters would normally be dealt with. The Applicant has had sufficient time since her Originating Application was presented, at the end of October 1996, to deal with this aspect of this case, and to afford an opportunity for the Respondents and the Tribunal of considering the matter.

3. Having heard the Applicant's evidence, we went on to hear that of Ms J Dolphin and Ms D Hooker. We were also assisted by the documents put in and the submissions made by Mr Burn and the Applicant. At the close of the evidence, the Respondents handed in typed closing submissions. We felt that justice would be done if these were read by Mr Burn to enable the Applicant to meet the points as they were made.

4. What were the facts here? The Applicant's claim relates to the Respondents' alleged refusal to make a decision on whether her qualifications were appropriate for progression through the qualification bar, failing to seek the view of, and providing insufficient non inaccurate qualification details, to the joint secretaries, as well as breaching her contract of employment by lack of action and maintaining the level of distress caused to her as an employee. The only events that occurred have occurred after 13 May 1996 are to be found on p23 of the Applicant's bundle (A1), a letter from Islington Council to the Applicant's erstwhile Solicitors dated 26 September 1996 which sets out what efforts the Respondents had made in an endeavour to meet the Applicant's complaint. That letter says in terms that there had been considerable delay in obtaining any view from the joint secretaries with regard to the Applicant's qualifications and whether they were appropriate (a term which all except the Applicant have accepted to be more or less the same as 'equivalent') for progression through the qualification bar. They had been a letter from the employers' secretary of GLEA dated 16 September 1996 which confirmed that, notwithstanding efforts by that secretary, it had not been possible to secure a joint view on the matter. The certificates of attendance only on courses were inappropriate for consideration and the others were considered not of sufficient academic level, content or linked to any progression or sequence of study, to warrant equivalent status from the employers side. We accept, on the balance of probabilities, that the Respondents and the employers' secretary did their best to obtain agreement of the joint secretaries. Having made enquiries of the various people issuing the certificates, they had considerable difficulty with Waltham Forest which had discontinued the course the Applicant had attended and no details could be obtained. In those circumstances, the Respondents wrote to the Applicant (at p25 A1) on 5 November 1996 setting out briefly what had been confirmed to the Applicant's solicitors in the letter p23 and based on what had been said by the employers secretary at p24. We also accepted as true on the balance of probabilities evidence before us that there had been a certain amount of pressure put on the employees' secretary side by the employers' secretary with regard to some form of assistance or confirmation of an agreement to disagree or a 'failure to agree' but no response had been obtained other than a phone message to the effect that the employees' side did not wish to put it in writing but they did not think the qualifications were equivalent. It is their reluctance to co-operate that seems to have been the main or sole cause for the fact that the Applicant had not succeeded in persuading the Respondents to comply with her requests.

5. Having heard the evidence, and having considered the submissions, we take the view that the events after 13 May 1996 did not constitute any less favourable treatment on racial grounds nor were they steps taken by the Respondents by way of victimisation of the Applicant for having brought other Industrial Tribunal claims. What appears to have occurred, in the words of at least one of the members, is that the Applicant had embarked on a crusade against the Respondents in order to voice and pursue her dissatisfaction at not receiving more remuneration for the job which she did, presumably without complaint from the Respondents. In all the circumstances, although we feel some sympathy for the Applicant, she should seek advice as to the appropriate steps she might take to pursue her rights. At the moment she seems to be pursuing them in all directions other than the right one. She has, in the course of the correspondence produced to us, made complaints about the Commission for Racial Equality and why they are not supporting her in her claims. She has even gone to the extent of attempting to obtain a witness order against the Chairman of the Commission for Racial Equality to attend at the Tribunal. In many of her efforts she has been misguided. A little guidance might go a long way, particularly as she is due to notify the Respondents that she intends to return to work after extended maternity leave in October. If she adopts a more conciliatory approach perhaps assisted by her union, if she is a member, or some experienced independent adviser, she may find that her problems are not only capable of resolution but will be resolved."

The approach of this Tribunal to the consideration of Extended Reasons and the question whether, having regard to them an Employment Tribunal has erred in law.

21. In this context reference is often made to the decision in Meek v City of Birmingham District Council [1987] IRLR 250, and in particular to the following passage, at p.251, from the leading judgment of Bingham LJ with which Sir John Donaldson MR and Ralph Gibson LJ agreed, namely:

'It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the Employment Appeal Tribunal or, on further appeal, this court to see whether any question of law arises; …'."

This means that we should read Extended Reasons generously, and with the background knowledge of the parties. This Tribunal have also been directed not to use a fine toothcomb in considering Extended Reasons (see for example Hollister v National Farmers' Union [1979] ICR 542 at 552H to 553D) from which it follows that we should not isolate individual phrases or paragraphs but should read Extended Reasons as a whole. It is also important that in considering Extended Reasons we should have regard to and remember the issues that were put before the Employment Tribunal. This is shown for example by High Table v Horst [1998] ICR 409 at page 420 E to F, where after citing from the Meek case, Peter Gibson LJ says this:

"However, in considering whether the reasons given by an industrial tribunal comply with its statutory obligation, it is very important to keep in mind the issues which the industrial tribunal was dealing with. It has, of course, to reach conclusions on the issues which the statute raises, viz. in the present case, have the employers established that the reason for the dismissals was redundancy and, if so, did they act reasonably in treating the redundancy as a sufficient reason for dismissing the employees? But, whilst it must consider all that is relevant, it need only deal with the points which were seen to be in controversy relating to those issues, and then only with the principal important controversial points … ."

22. We have adopted this approach to the consideration of the Extended Reasons that we have to consider in respect of these appeals.

The Appeal against the Flint Decision

23. Although this is the later of the two decisions under appeal we shall deal with it first. In doing so we will start by considering the Roose Decision and then the concession recorded in the Williams decision and thus (i) the confusion referred to in paragraph 4 of this judgment, and (ii) the ingredients of the "Catch 22" situation referred to in the judgment of this Tribunal on the preliminary hearing (see paragraph 15 hereof).

The Roose Decision

24. We accept that paragraph 8 of the Extended Reasons (read alone or together with paragraph 2(j) thereof):

(a) could have been better phrased particularly by its use of the comments: "the Applicant did not terminate her contract of employment" (see also the equivalent language in paragraph 2(j)) and "she has stressed to us that she could not afford to terminate her employment", and

(b) can in isolation be read as a finding that Mrs Obasa's employment was not terminated and therefore that it continued.

25. But in our judgment on the approach that this Tribunal takes when considering Extended Reasons (which we have referred to above) the meaning and effect of the Roose Decision in respect of Mrs Obasa's claim for unfair dismissal is that Mrs Obasa elected to take advantage of the Dab Return to Work Scheme and therefore that (i) she resigned thereby bringing her contract of employment to an end, (ii) she did not terminate her employment in reliance upon a breach, or alleged breach, of contract by her employer (the London Borough of Islington), (iii) she was not dismissed and (iv) her claim for unfair dismissal must fail. In reaching this conclusion we have had particular regard to the following points, namely:

(1) The reference in paragraph 8 of the Extended Reasons to the Dab Return to Work Scheme by the phrase "but merely sought to withdraw herself from the work place by applying to take advantage of the Respondent's long term maternity policy" (and the equivalent reference to the scheme in paragraph 2(j) of the Extended Reasons) which shows that the Employment Tribunal had in mind that Mrs Obasa had applied to take advantage of that scheme and that the London Borough of Islington had accepted that she could do so.

(2) The reference in paragraph 8 of the Extended Reasons to Western Excavating v Sharp [1978] ICR 221 and Bashir v Brillo Manufacturing Co [1979] IRLR 295. They are cases concerned with constructive dismissal and the reference to them therefore demonstrates that the Employment Tribunal had this issue in mind.

(3) The background known to the parties and in particular:

(a) the issue relating to unfair dismissal between the parties as shown by the statements of their respective cases (see paragraph 10 and 11 above) which show that the issue before the Employment Tribunal chaired by Mr Roose was whether Mrs Obasa had been forced to resign and was therefore dismissed (as she contended) or whether she had resigned by electing to take advantage of the Dab Return to Work Scheme,

(b) the fact that the assertions relating to unfair dismissal did not include an assertion by either party that Mrs Obasa's employment continued and the issue between the parties was a reasonably common one, namely whether the employee (Mrs Obasa) had resigned or had been forced out and therefore dismissed,

(c) the letters dated 5 April, 11 May and 9 June 1995 referred to in paragraphs 9 (3), (7) and (8) above,

(d) the terms of the Dab Return to Work Scheme set out in paragraph 9(9) above, and

(e) the fact that Mrs Obasa was not paid as an employee for any period after 15 June 1995.

(4) In our judgment the terms of the Dab Return to Work Scheme are incompatible and inconsistent with conclusions that (i) Mrs Obasa was constructively dismissed but nonetheless was able to take advantage of the scheme with the result that she could call on the London Borough of Islington to perform its obligations under the scheme, and (ii) Mrs Obasa remaining an employee of the London Borough of Islington.

26. In our judgment the EAT Roose Judgment by its references to the letter dated 11 May 1995 and the fact that Mrs Obasa's claim was for constructive dismissal (see paragraph 8(G) hereof) supports and confirms this conclusion as to the meaning and effect of the Roose Decision. Further or alternatively, in our judgment because of those references the meaning and effect of the EAT Roose Judgment is that Mrs Obasa did not have a reasonably arguable point of law in respect of her claim for unfair dismissal because she had resigned to take advantage of the Dab Return to Work Scheme and therefore that she had not been constructively dismissed.
27. Additionally we note that in the judgment given by this Tribunal on 19 February 1998 in the UNISON appeal (see paragraph 8(K) above) it was held that it was not reasonably arguable that the Roose Decision was a finding of fact that Mrs Obasa's employment had not terminated as at 15 June 1995 that was binding in the UNISON case. On this point this Tribunal (chaired by the President (Morison J)) said this:

It is clear it seems to us from the context in which the previous Industrial Tribunal had made their findings, that it was indicating to the Applicant that even if there had been repudiatory breaches of contract, it was not because of them that she withdrew from her employment. In other words, the Industrial Tribunal was saying that a necessary ingredient of a constructive dismissal case had not been made out.

This view also supports the conclusion we have reached independently of it as to the meaning and effect of the Roose Decision.

The result and effect of our conclusions on the meaning and effect of the Roose Decision and the Roose EAT Judgment

28. This is that Mrs Obasa's claim that she was constructively and unfairly dismissed in 1995 has been dealt with and finally decided against Mrs Obasa on the basis that she resigned and was not constructively dismissed. It follows that the reason why Mrs Obasa lost her claim for unfair dismissal was not that her contract of employment was not terminated and therefore that it continued. Rather the reasons behind the decision was that her contract of employment was terminated by resignation rather than constructive dismissal.

The Concession recorded in the Williams Decision

29. There was no claim for unfair dismissal before the Employment Tribunal chaired by Mr Williams. The claims included in the IT1 were for racial discrimination and victimisation under sections 1(1)(a), 1(1)(b), 4(2) and 2(1) Race Relations Act 1976 In her IT1 Mrs Obasa asserted that her employment had ended on 15 June 1995. We have heard no evidence as to why the concession recorded in the Williams Decision was made. It may have been to avoid argument as to the point raised in paragraph 16 of the Amendment to the Respondents' Notice of Appearance that Mrs Obasa was not entitled to submit a claim because she was not an employee at the relevant time and it may have been based on what in our judgment would have been a misreading of the Roose Decision.
30. Whatever the reasons for the concession in our judgment:

(a) it was a concession limited to the claims under the Race Relations Act that were before the Employment Tribunal chaired by Mr Williams,

(b) it was therefore not a concession directed to a claim for unfair dismissal and the limit of its effect was to render it unnecessary for the Employment Tribunal to determine whether s. 4(2) Race Relations Act applied,

(c) it cannot have created a new contract of employment, and

(d) it did not alter the effect of the Roose Decision or create an estoppel in respect thereof or as to the issue whether Mrs Obasa was constructively dismissed or resigned in 1995.

31. In our judgment it follows that although this concession is an ingredient of the confusion referred to in paragraph 4 of this judgment it does not found an argument that for the purposes of the Flint Decision or any claim for unfair dismissal Mrs Obasa remained an employee of the London Borough of Islington after 15 June 1995.

The Flint Decision itself

32. As mentioned above (see paragraphs 18 and 19) the issue whether the claim for unfair dismissal was out of time was raised by the Employment Tribunal before they were informed by Mrs Obasa of the Roose Decision and the Williams Decision. The Extended Reasons for the Flint Decision do not refer to the Roose Decision and continue to deal with the point whether the claim for unfair dismissal raised by the Employment Tribunal is out of time.
33. It was in the context of that "time issue" that on the preliminary hearing of the appeal against the Flint Decision this Tribunal made the comments referred to in paragraph 15 hereof as to it being arguable that Mrs Obasa was placed in a "Catch 22" situation and that the Employment Tribunal had failed to properly apply the statutory test of reasonable practicability contained in s. 111 Employment Rights Act or to explain its reasoning in respect thereof.
34. However in our judgment a full and proper consideration of the Roose and Williams Decisions (and in particular of the Roose Decision) gives rise to a different reason why the Flint Tribunal could not hear the claim then made for unfair dismissal which was that such claim had been dealt with and decided by the Roose Decision and the Roose EAT Judgment.
35. As appears above in our judgment the effect of the Roose Decision and the Roose EAT Judgment is that it was thereby decided that (i) Mrs Obasa resigned and was not constructively dismissed in 1995, and (ii) Mrs Obasa's contract of employment terminated on 15 June 1995. These decisions are binding upon Mrs Obasa and the London Borough of Islington. If follows that:

(a) the "Catch 22" situation referred to on the preliminary hearing does not arise because Mrs Obasa was not (and is not) faced with a situation under which she lost before an Employment Tribunal on an earlier occasion on the basis that her employment was not terminated in 1995 and on a later occasion on the basis that it was,

(b) the issue of whether the claim for unfair dismissal in 1995 was out of time did not arise because the claim had already been dealt with, and

(c) no issue of unfair dismissal arose after 1995 because thereafter Mrs Obasa had not been employed.

36. In our judgment it follows that for different reasons based on a fuller study and analysis of the earlier decisions the Flint Decision which was that the Employment Tribunal had no jurisdiction to entertain Mrs Obasa's claim for unfair dismissal was right for the wrong reason.
37. Further in our view notwithstanding that the Employment Tribunal in reaching the Flint Decision did not expressly consider the effect of the Roose Decision and therefore in our view erred in law this is a case in which we should not remit the issue of unfair dismissal to the Employment Tribunal but should decide the issue ourselves and dismiss the appeal against the Flint Decision. This is because in our judgment any Employment Tribunal would be bound to conclude that it should not entertain Mrs Obasa's claim for unfair dismissal contained in her Originating Application received by the Employment Tribunal on 15 June 1998 (and which was before the Employment Tribunal chaired by Mr Flint) and therefore the Flint Decision was plainly and unarguably right (as to this approach see Dobie v Burns International Security [1984] ICR 812).
38. For completeness we add that we can well understand why the Employment Tribunal raised the question whether Mrs Obasa's claim for unfair dismissal made in 1998 was out of time and if (i) Mrs Obasa had not brought a claim for unfair dismissal in 1995, and (ii) the Roose Decision had not dealt with that claim, in our judgment:

(a) for the reasons we have given above in respect of the Roose Decision (see paragraph 25 above) the conclusions contained in paragraphs 3 to 4 of the Extended Reasons for the Flint Decision as to the effect of the Dab Return to Work Scheme and the termination of Mrs Obasa's employment were correct,

(b) their conclusion as to the effect of the Williams Decision was also correct, and

(c) they would have adequately explained why time for bringing the claim for unfair dismissal should not be extended pursuant to s. 111 Employment Rights Act 1996.

Overall Conclusion on the Appeal against the Flint Decision

39. This appeal is dismissed.
40. The essential reasons for this is that Mrs Obasa's claim for unfair dismissal has already been dealt with and decided in earlier proceedings.

The Appeal against the Williams Decision

41. As mentioned above the claims included in the IT1 were for racial discrimination and victimisation under sections 1(1)(a), 1(1)(b), 4(2) and 2(1) Race Relations Act 1976. They related to, or primarily to, the Qualification Issue.
42. On the preliminary points taken the Employment Tribunal decided that they should only entertain the claims in respect of events occurring after 13 May 1996. This was the last day of the hearing before the Employment Tribunal chaired by Mr Roose which dealt with claims of racial discrimination and victimisation as well as the claim for unfair dismissal. Given the overlap with the earlier claims heard by the Employment Tribunals chaired by Mrs Calvert and Mr Roose, in our judgment the Employment Tribunal did not err in law in reaching this decision. We go further and record that in our judgment this decision was right.
43. Further we add that in our judgment the decision of the Employment Tribunal to only entertain claims contained in the Originating Application was also right (see by analogy Mensah v East Hertfordshire NHS Trust [1998] IRLR 531 in particular paragraphs 14 to 17 and paragraph 20 of the judgment and Chapman v Simon [1994] IRLR 124).
44. Mrs Obasa asserted in her notice of appeal and in her argument before us that (i) her claim for indirect discrimination under s. 1(1)(b) Race Relations Act 1976 was not res judicata, that the Employment Tribunal erred in failing to deal with or alternatively that they failed to deal with it properly by not making any findings in relation to it, and (ii) the Employment Tribunal erred in law in their consideration of the comparator.
45. In respect of the arguments relating to the claim based on indirect discrimination there is a linkage with the Calvert Decision and the Calvert EAT Judgment and in particular with the following passages in the Calvert EAT Judgment, namely:

Mr Burns submits, first, that a finding invoking Section 1(1)(a) plainly cannot be sustained on the Reasons set out above: if they sustain any finding it is by reference to Section 1(1)(b). To us this submission seems incontestable.

We pause to comment that the claim before the Employment Tribunal chaired by Mrs Calvert asserted discrimination on racial grounds but that claim did not refer to the sections and did not differentiate between direct and indirect discrimination. In our judgment the Employment Tribunal chaired by Mrs Calvert could have made a finding of indirect discrimination. The passage in the Calvert EAT Judgment continues:

His second submission was that there was no evidence that the policy as set out in the Reasons had in the particular case been discriminatory against Mrs Obasa. We have to hold, despite the best efforts of Mr Ford, that there is no answer to this. We would agree with the Tribunal that a blanket refusal to check the weight of the qualifications that are not those that are specified could by reference to Section 1(1)(b) be discriminatory: members of ethnic minorities who have acquired their qualification abroad would be particularly disadvantaged. However Mrs Obasa obtained her qualifications in this country and there is simply no evidence to support the notion that the Borough's policy discriminated against her on racial grounds.

In our judgment this passage shows that this Tribunal in the Calvert EAT Judgment was treating the finding in the Calvert Decision as one of indirect discrimination under s. 1(1)(b) (albeit that the Calvert Decision refers to s. 1 (1)(a)) and was allowing the appeal against such a finding of indirect discrimination.

46. In our judgment, it follows that the Calvert Decision and the Calvert EAT Judgment cover Mrs Obasa's claim for indirect discrimination under s. 1(1)(b) before the Employment Tribunal chaired by Mr Williams and the Williams Decision not to entertain it was correct. This is because the issue of indirect discrimination was res judicata, or the principle of issue estoppel in the wider sense prevented Mrs Obasa from pursuing that claim before the Employment Tribunal chaired by Mr Williams (see Staffordshire CC v Barber [1996] ICR 379 in particular at 397B to 398G).
47. Alternatively, if (i) our conclusion in paragraph 46 is wrong, or (ii) the claim for indirect discrimination should have been considered by the Employment Tribunal chaired by Mr Williams during the period after 13 May 1996 on the basis that it was continuing and affected Mrs Obasa again, or (iii) the effect of the Williams Decision was that they should entertain the claim on the basis that Mrs Obasa could only rely on acts or omissions after 13 May 1996, in our judgment this ground of appeal also fails. We are of this view because in our judgment the following matters, namely:

(a) as the Notice of Appeal makes clear Mrs Obasa was not able to produce any statistical evidence in support of her argument, and therefore no findings could have been made by reference to that evidence in the Extended Reasons and the Extended Reasons should be read in the light of that background knowledge of the parties,

(b) as is pointed out in the Calvert EAT Judgment Mrs Obasa's qualifications were obtained in this country, and

(c) the Extended Reasons contain findings of fact that the London Borough of Islington and the Employers Secretary did their best to obtain the agreement of the Joint Secretaries and this is (i) a finding using the phraseology of the Calvert EAT Judgment that there was not a blanket refusal to check the weight of the qualifications that are not those that are specified, and therefore (ii) a finding of fact which dealt with the way in which the claim was expressed to be a possibility in the Calvert EAT Judgment, and

have the consequence that on a fair reading the Extended Reasons for the Williams Decision include findings and demonstrate why on the basis of events since 13 May 1996 the "Respondent's alleged refusal to make a decision on whether her qualifications were appropriate for progression through the qualification bar, failing to seek the view of, and providing insufficient non accurate qualification details ----" (see the description of her claims at the beginning of paragraph 4 of the Extended Reasons) did not found Mrs Obasa's claim for indirect discrimination as well as her claims for direct discrimination and victimisation.

48. In our judgment the ground of appeal based on the arguments advanced relating to the comparator fail. This is because the issues to be decided were ones of fact for the Employment Tribunal who had evidence before them upon which they could reach the conclusions they did. Further, in our judgment, in reaching their findings and conclusions the Employment Tribunal did not (i) ask themselves incorrect questions, or (ii) take an approach that was procedurally unfair, or (iii) otherwise err in law.

Bias / procedural unfairness

49. On this appeal Mrs Obasa also raised allegations of bias and procedural unfairness. She supported these allegations by her affidavit sworn on 3 September 1997. The detail of the allegations upon which she makes these assertions appear from that affidavit, her notice of appeal and her skeleton argument. An overview, or summary, of them is that she relies on (i) the comments contained in paragraph 5 of the Extended Reasons, (ii) the criticism of her in bringing forward information late, (iii) the lack of criticism of the Respondents for late production of information and evidence, (iv) the short period of time given to her to read and deal with additional documents provided by the Respondents, (v) the way in which final submissions were dealt with, (vi) the refusal of the application for a witness order against the Chairman of the CRE and (vii) the findings of fact.
50. The relevant test in respect of apparent bias is that set out in Peter Simper & Co Ltd v Cooke [1986] IRLR 19, where at paragraph 10 of his judgment Peter Gibson J says this:

"Not only must there be no bias on the part of the tribunal but also the tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which calls for decision by the tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the tribunal on that evidence."

That case is directed specifically to this jurisdiction. In our judgment the objective approach set out in the Peter Simper case accords with the more recent authority in the House of Lords regarding issues concerning bias contained in R v Gough [1993] AC 646 at page 647, where the headnote states that:

"... the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand."

This is taken from the speech of Lord Goff who explained that he preferred to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias.

51. In the Pinochet case at [1999] 2 WLR 284 E/G Lord Browne-Wilkinson raises, but leaves open, the point whether the real danger or possibility test may need to be reviewed in the light of subsequent decisions. The possible review is to determine whether the real danger or possibility test should be modified to make the relevant test whether the events in question give rise to a reasonable apprehension, or suspicion, on the part of a fair minded and informed member of the public that the judge was not impartial.
52. In Locabail UK Ltd v Bayfield Properties Ltd [2000] 1 AER 65 the Court of Appeal has recently confirmed that the correct test is the real danger or possibility test. At pages 73g to 74e of the judgment in the Locabail case passages from the speech of Lord Goff in the Gough case are set out and at 74 g/h the Court of Appeal say this:

"---- For whatever the merit of the reasonable suspicion or apprehension test, the test of real danger or possibility has been laid down by the House of Lords and is binding on every subordinate court in England and Wales".

(We pause to comment that this report of the Locabail was not before us when we heard this case.)

53. Applying the real danger or possibility test (or indeed the test suggested by Lord Browne-Wilkinson in the Pinochet case) on the basis that the assertions of fact relied on by Mrs Obasa to support her claims of bias and procedural unfairness are true and have caused her to feel aggrieved we have concluded that her allegations of bias and procedural unfairness fail.
54. In our judgment when assessed objectively and whether they are assessed alone, or together, the matters Mrs Obasa relies on to establish bias and procedural unfairness are examples of what can regularly happen in litigation that is fairly conducted and they do not indicate bias or procedural unfairness. Further in our judgment in the circumstances of this case the Employment Tribunal did not err in law or act in way unfairly (i) in reaching the decisions they did as to the conduct of the proceedings and the refusal of the witness order, and (ii) in making the comments that they did in paragraph 5 of the Extended Reasons.

Perversity

55. Mrs Obasa also asserts that the decision was perverse. In our judgment this ground also fails because the Employment Tribunal had evidence upon which they could reach their conclusions, and those conclusions are well within the range of decisions open to an Employment Tribunal.

Miscellaneous

56. The London Borough of Islington also argued that on this appeal it was open to them to argue that the concession made that Mrs Obasa was still employed was wrong and on that basis that the Employment Tribunal had no jurisdiction to hear the claims that were before the Employment Tribunal chaired by Mr Williams. The London Borough of Islington argued that they should be allowed to advance this argument notwithstanding the approach to allowing parties to raise points not argued, or conceded, before an Employment Tribunal set out by the Court of Appeal in Jones v Burdett Coutts School [1999] ICR 38 because the point went to jurisdiction and did not require any further evidence.
57. We have not taken this "short route" to deciding this appeal, because in our judgment:

(a) although the concession can be said to go to jurisdiction it does not go directly to the jurisdiction of the Employment Tribunal, rather it goes to an element of a claim for racial discrimination and discrimination by way of victimisation that relies (as this one did) on s. 4(2) Race Relations Act 1976,

(b) a concession as to, or a decision not to argue, such a point is generally within the strict approach in the Jones case,

(c) if we allowed the Respondents to argue this point it would not deal with an alternative basis for the claims based on s. 4(1)(a) which may become an issue in respect of the claims under the Race Relations Act 1976 that the Flint Decision allowed to go to a full hearing before an Employment Tribunal (and we add that these claims include claims under other legislation as well), and

(d) in all the circumstances of this case (and notwithstanding our view that if we had been persuaded by any of the grounds advanced by Mrs Obasa to allow the appeal and remit we are of the view that the Respondents could then have taken the point before the Employment Tribunal that Mrs Obasa ceased to be employed on 15 June 1995) we should not allow the Respondents to argue on this appeal that the concession was wrongly made.

Overall Conclusion of the Appeal against the Williams Decision

58. For the reasons we have given this appeal is dismissed.