United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHEL KALLIPETIS QC (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


RECORDER LANGSTAFF QC:

1. On 28 June 1999 the Birmingham Employment Tribunal under the Chairmanship of Mr Edwards dismissed the application of the Appellant. He had claimed that he had been unfairly dismissed or discriminated against on the grounds of race, in circumstances which led to his accepting a sum of £17,750 by way of what was called redundancy payment from the Respondent on or about 7 August 1998. Mr D'Ambrosio has represented himself throughout most of the proceedings, although at one stage he had the services of solicitors, Pinsent Curtis, about whom I shall say more later.
2. He complains about the decision which the Employment Tribunal made, on a number of grounds in extensive written submissions, which we have read with, we hope care. They raise procedural points, they raise legal points and they raise an argument of fact. Mr D'Ambrosio, having been very much aggrieved that the Employment Tribunal came to the conclusion that he had been willing to accept redundancy rather than having it forced upon him in circumstances of unfairness, is upset that they should have accepted the evidence given on behalf of the Respondent in preference to what he believes to be the case. Before us today, he has the considerable assistance of Mr Kallipetis QC, to whom we are particularly grateful. He has refined the various grounds, which Mr D' Ambrosio seeks to appeal on, to three.
3. The first is that the Tribunal found that he was dismissed in circumstances which might have given rise to unfairness. In essence, they were circumstances in which the employer said to Mr D'Ambrosio:

'Either we make you redundant and you have your statutory entitlement, or if you agree we shall make you redundant we shall pay you the ordinary scheme offered to employees of the company which is slightly greater than the statutory entitlement will otherwise be.'

4. In those circumstances, not at all without good reason, he says he chose the greater sum rather than the lesser and was forced to do so. He accepts through Mr Kallipetis however that the evidence was such that the Employment Tribunal found (and those findings of fact are binding upon us) that he suffered no detriment by reason of this process. It was a question of selection for redundancy. There was a genuine redundancy. The Tribunal were not, as a matter of law, dis-entitled to reach that conclusion, however much Mr D' Ambrosio might have hoped that they would have found the facts differently.
5. He told us that a second aspect of the complaints, which Mr D'Ambrosio seeks to make, was in respect of a contractual dispute that he wished to raise. This is dealt with by the Tribunal when they say that the Applicant harboured a number of unresolved grievances, which he believed had never been properly addressed. They acknowledge in paragraph 6.1 of their decision that an application to amend the originating application had been made, so as to include claims for breach of contract. But they refused leave to amend. This is challenged by Mr D' Ambrosio. But they go further in paragraph 6.2 and say that even if they had found in favour of granting the request to amend, the claims that he made would have been dismissed because of findings of fact, to which they refer in that paragraph (6.2). Mr Kallipetis realistically accepts on behalf of Mr D' Ambrosio that, given those findings of fact, to pursue an appeal would be difficult, even if he could get over the hurdle of showing that there was a point of law, in respect of which it could be said that the Tribunal's discretion to refuse leave to amend had been improperly exercised. In general, where a Chairman of a tribunal has a discretion, he is free to exercise that as he will. It requires, quite extreme circumstances for this Tribunal to interfere with what is the exercise of a discretion.
6. The third point that he makes however is one of greater substance and it has given us greater concern. It is this: He wished to call witnesses before the Tribunal to give evidence that he, Mr D'Ambrosio, had been racially discriminated against by his employers. He had written (or those instructed by him had written) on his behalf, prior to the hearing, asking that witness orders should be made. Mr D' Ambrosio had, as we understand it, hoped that if those witnesses attended at the Tribunal he would be able by questioning them to secure evidence that would demonstrate to the Tribunal that he had indeed been discriminated against because he was Italian. As it happens, no clear reason for the witnesses attendance was given in the letter seeking those orders: and the Tribunal did not make them: When Mr D'Ambrosio came to the Tribunal, he did not ask for an adjournment, so that those witnesses might be secured but we have some sympathy with his position bearing in mind that he was representing himself. In order to decide whether we should accede to Mr Kallipetis' urgings that there is here an arguable point of law, which a full Tribunal should consider, we have to have regard both to the way in which the race issue was raised, its significance, and to whether or not we can satisfy ourselves that there may be some argument that the discretion which resides in the Tribunal to make or refuse witness orders had been improperly exercised.
7. At paragraph 12.7 of Mr D'Ambrosio's originating application, he puts the race claim in this way: -

12.7 "Further, the Applicant will contend that, as there was no reason or no sufficient reason to justify his dismissal, it is reasonable to infer that the reason for his dismissal is based upon the grounds of his race, namely that he is Italian. It is submitted therefore that the dismissal of the Applicant amounts to unlawful direct race discrimination. As further evidence of this, the Applicant will refer to the unreasonable and arbitrary treatment that he received while employed by the Respondent."

8. We have three comments about this: -

First it is a claim which is made to support the claim that he was unfairly dismissed, rather than having a substance and life of its own. So it does not appear as a separate and freestanding claim and we must bear in mind that at this stage at any rate, solicitors upon the instructions of Mr D'Ambrosio drafted this.

Secondly, the only reason that Mr D'Ambrosio felt that he had been unlawfully discriminated against was that he could not understand why this is the way which the letter translates itself to us he could not understand why he should be dismissed. The unreasonable and arbitrary treatment that he had received is said to be "further evidence", in other words to support the inference which he would seek to draw from the fact of his dismissal. There is nothing in that paragraph that shows that he had, at the time of the unreasonable or arbitrary treatment that he had had previously, regarded that as having been on the grounds of race.

Next we look at the correspondance which there was immediately prior to the Tribunal. There was a letter, which was sent by Mr D' Ambrosio, which is at page 54 of our bundle, which has at the top of it 'faxed 10 March 1997'. Paragraph 2 of that asks for a witness order for Elaine Neale, the Human Resources manager, to give details of redundancy packages and contracts. So far as race is concerned, he asks that the record of the Respondents on implementing race and sex discrimination act and any claims of both sides should be provided. There was a response to that dated 15 March from the Tribunal which records that item 3 (seeking the disclosure of the record on implementing race and sex discrimination acts) would give rise to a direction that the Respondents bring with them to the Tribunal any documents relating to that.

9. There is no clear expression there of the importance or significance of the need to have further witnesses, for whom Mr D'Ambrosio had asked at the Tribunal. In the light of the way in which the matter had been put to the Employment Tribunal and in the light of the correspondence immediately prior to the Tribunal, the principal issue before the Employment Tribunal was why it was that Mr D' Ambrosio was dismissed. Was it because of a genuine redundancy or was it for some other reason, principal among which might be the question of race? The only evidence supporting a conclusion of race was any inference that might properly be drawn from the fact of dismissal itself; the need for which Mr D' Ambrosio did not find it easy to understand. Given that the Tribunal found, having heard evidence that the reason for dismissal was a genuine redundancy, the basis for the inference falls away. We cannot say nor do we think that any Employment Appeal Tribunal at a full hearing could properly say that that was an inpermissable finding. What is left of any race complaint is the fact that Mr D' Ambrosio felt that he had been subject to arbitrary and unreasonable conduct on the part of his employers.
10. We are all too familiar with situations in which either allegations are made of such conduct or indeed such conduct is shown to take place in situations which have nothing to do with race. It is too difficult a step to move from the well established principle that a Tribunal should be ready to draw inferences from conduct that there has been race discrimination to one that they must necessarily do so.
11. Against that background we ask ourselves did the Chairman of the Tribunal, or the Tribunal itself, rightly or wrongly exercise any discretion they had to call witnesses? We bear in mind that the proceedings at the Tribunal are, within the rules, for them alone and we ask whether it is arguable that there was any error of law in the way in which they approached that matter. For the reasons which I have given (at some length in deference to Mr D' Ambrosio's obvious upset at the way in which he was treated and that his request was not acceded to) we think that there was no arguable point upon which it could be said that the Tribunal wrongly exercised its discretion. We appreciate that that may leave Mr D'Ambrosio with a sense of having been less than justly treated by the Birmingham Employment Tribunal. We merely express the hope that Mr Kallipetis QC, who has given us considerable pause for thought with the submissions that he made, will be able to explain to him the basis upon which we feel that we should deny permission for this appeal to go to a full Tribunal, and accordingly have no option but to dismiss this appeal.