United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR E BROWN (Representative)


 


MR JUSTICE LINDSAY (PRESIDENT)

1. We have before us by way of a Preliminary Hearing the appeal of Mr K Odoemelam in the matter Odoemelam v Carr-Gomm Society Limited. This morning Mr Eric Brown, representative, has appeared for Mr Odoemelam. On 28 June 1999 Mr Odoemelam presented an IT1 for racial discrimination, sex discrimination and victimisation. He was then employed by the Respondent society as their finance officer and, indeed, he is still employed by them today. A long IT1 was presented which I will not attempt to summarise.
2. On 19 July 1999 there was an IT3 put in by the Respondent society. It said, amongst other things:

"The grounds on which we intend to resist the application are as follows:-

The Applicant did not suffer discrimination/victimisation on grounds of race or sex as alleged or at all.

The Applicant was at all times treated according to the Respondent's procedures and as any other employee is and/or would be treated in like circumstances.

The Applicant has no basis for his complaint and his conduct in bringing this claim is unreasonable."

Our papers make mention of a document that is not amongst them, that of some further originating application on 4 February 2000; I mention just as a possible part of the chronology.

3. There was then a hearing spread over five days and one day in Chambers, spread between 23 February 2000 and 14 April 2000. There was then a very long interval - a regrettably long interval - until the decision was sent to the parties. It was sent out on 6 December 2000. The decision, which was unanimous, was that the complaints set out in the originating applications were not well founded.
4. On 5 January 2001 a Notice of Appeal was lodged by Mr Odoemelam. He suffers, as an Appellant, from the fact that at several points his version of events was disbelieved – see paragraphs 11, 13, 14 and 20 of the Employment Tribunal's decision. Indeed, at one point, in paragraph 14, his evidence was described as untruthful, but, of course, he is entitled to appeal and does and raises in his Notice of Appeal a number of points. The first seems to depend upon an allegation that the Tribunal's findings at paragraph 15 conflict with their findings at paragraph 23(ii). But they do not conflict. Paragraph 15, speaking of 1998 said:

"Whilst in the office, he [that is Mr Odoemelam] spent an undue amount of time on personal matters, including the making of personal phone calls."

Note – it is personal matters including personal phone calls and that is a finding of the Employment Tribunal. Paragraph 24(ii) instead describes the result of a disciplinary hearing. It is a finding of that disciplinary hearing, not of the Employment Tribunal. Moreover, it says:

"The allegation of carrying out personal work during office hours was found to be not proven, but there was concern that the Applicant had appeared to be less than open when asked about the matter."

That is talking about personal work, not necessarily the same as personal matters; personal work rather suggests that he is working for himself and not for the employer. There is no inconsistency between the two paragraphs and hence no error of law emerges out of that point.

5. The second ground is this:

"The Employment Tribunal erred in law when it rejected 'the contention that the Applicant was in any way treated less favourably by the Respondents by reason of those protected acts."

That seems to be a reference to the Employment Tribunal's final paragraph, paragraph 56 which says:

"In respect of the victimisation complaint, we accept that there were protected acts. It was made clear by the discussion at the beginning of the grievance hearing on 24 June that the allegations included complaints of discrimination on the grounds of race. We reject the contention that the Applicant was in any way treated less favourably by the Respondents by reason of those protected acts."

Mr Odoemelam then refers to some events of 11 May. Those events were investigated by
Mr Wilson, the Respondent's Chief Executive, in some detail, and as to that the Tribunal said this:

"40 Mr Wilson carried out a very full enquiry, interviewing people and examining documents. He decided that there was no evidence to support the allegations made by the Applicant and indeed, he concluded that the Applicant had misrepresented events and had raised a case of victimisation rather than face up to questions about his performance and about his relations with colleagues. Under cover of a letter of 7 July 1999, Mr Wilson set out his reasoned decision in a document some 10 pages long."

6. The sequence of events seems to be as follows, as found by the Employment Tribunal. There was some incident between Mr Odoemelam and Ms Sharman, his line manager. He refused to speak to her, claiming that she was not his line manager. She persisted but he dismissed her with a violent gesture. She was then upset and went to see Ms Howard. She gave a complaint to Ms Howard and in the nature of things, Ms Howard must have received what was the 'Sharman version' of events. Ms Howard then goes to Mr Mitchell and Mr Wilson, one of the more senior people in the society, and again, Ms Howard can only pass on Ms Sharman's version of events, or, certainly, not any grander version than Ms Sharman's version of events. Mr Wilson and Mr Mitchell then called for Mr Odoemelam. The Tribunal says this:

"They then asked him what had occurred that morning. He stated that he had not refused to speak to Ms Sharman and he had simply asked for her request to be put in writing and he did not refuse to be line managed by her."

That was obviously very different from the version which Mr Wilson and Mr Mitchell must have heard from Ms Howard. Mr Wilson and Mr Mitchell then tell Ms Howard that there had just been a misunderstanding. By now Ms Howard had third party confirmation of the 'Sharman version' from Ms Nugent. The Tribunal went on:

"Mr Wilson then asked Ms Sharman and Ms Nugent into the room, and they gave their versions of events. The Applicant was then called back into Mr Wilson's room and was told that the matter required further investigation, it was a potential case of gross misconduct, and it was decided to suspend him whilst the investigation took place."

and, as we have seen from that quotation that I made earlier from paragraph 40, Mr Odoemelam's version was discredited.

7. Mr Odoemelam wishes to focus on the words that we have cited "they then asked him what had occurred that morning". We fail to see how that focus assists him. The 'Odoemelam version' emerged when he was first called in to Mr Wilson and Mr Mitchell. It matters not that it emerged with or without a close examination of Mr Odoemelam. The significant features were that his version differed from the 'Sharman version', that it was tested by a long enquiry by the employer, that the employer believed that there had been a misrepresentation of events by Mr Odoemelam, that the employer believed that it was so serious an incident as to have represented gross misconduct and that the employer believed that victimisation, as an allegation, was simply being used as a shield to hide questions about Mr Odoemelam's performance and his relation with his colleagues. It was very much for the Employment Tribunal to hear the evidence and to assess credibility and we are quite unable to detect any error of law, and, of course, it is only errors of law that the Employment Appeal Tribunal can be concerned with in this part of the case.
8. The third ground that Mr Brown raises on behalf of Mr Odoemelam is dependent on a paragraph in the Notice of Appeal that says this:

"However, at the Tribunal hearing Mr Mitchell admitted that he had lied to the Applicant, he lied to the full time Trade Union official and had lied to the members of the grievance panel. Mr Mitchell confirmed that the said allegation was not put to the Applicant at the time of the suspension. Mr Wilson had equally supported Mr Mitchell in his deception."

It is the case that Mr Mitchell's version of one incident was regarded by the Employment Tribunal as unsupported and, implicitly, that it was not correct. They say at their paragraph 27:

"When Mr Mitchell testified before the Tribunal (see his witness statement paragraph 17) he alleged that the Applicant was aggressive, constantly interrupting other participants to contradict or correct them and his behaviour was a significant obstacle to the good management of the hearings. [That is a reference to the disciplinary hearings] On this point also the Tribunal listened to the tape recordings, and formed its own judgment that no one participant was worse than others. There are occasions when they talk over each other. The tape recording does not support Mr Mitchell's evidence on this point."

It is however, in our view, unthinkable that if the Employment Tribunal had heard Mr Mitchell admitting to lying to them that it would not have been mentioned at all by the Employment Tribunal. Indeed, there is one point at paragraph 13 where Mr Mitchell's evidence is preferred and it seem to us unthinkable, again, that the Tribunal, if choosing to prefer Mr Mitchell's evidence on a point, would not have expressly said that they did so notwithstanding that he had lied and had admitted lying on some other part without mentioning that that was the case. We do not see any arguable error of law here, finding this particular allegation, as we say, unthinkable.

9. The fourth ground is as to sex discrimination. It is this:

"It was the Applicant's case that Carr-Gomm's redeployment policy was not being adhered to, because it was the Applicant's contention that only female staff were given the opportunity to act up. Thus giving the female staff an unfair advantage in the redeployment procedure. This appears not to have been addressed by the Tribunal."

Even were it supposed that the employer did have such a discriminatory policy it would not ground a complaint under the sex discrimination act unless Mr Odoemelam could relate it to himself within Section 1(1) of the Act or Section 4 or Section 6 of the Act. There was nothing to indicate that Mr Odoemelam managed to link such a policy, even if it existed, with himself, on the facts. Thus the Tribunal had no need to address the question of any redeployment policy. Again, as it seems to us, no error of law appears.

10. Ground five is very simple. It says:

"The time taken for the written decision."

As we have mentioned, there was indeed a considerable gap. On 6 December 2000 the Chairman, when the decision was sent out to the parties, said – or it was said on his behalf:

"The Chairman, Mr Lamb, has asked me to send his apologies for the delay in sending you the Decision."

The reason for the delay in unexplained. Whether there was a good reason, for example, the illness or absence for some other reason of the Chairman or a Lay Member, is not explained. We do not know what the reason was. Mere delay does not afford an error of law to Mr Odoemelam, however unfortunate or substantial it might be, without some indication of the error of law which the delay has led to. As to that, Mr Brown says today that insufficient weight was placed on the evidence. We have no ground explained to us that there was any oral evidence which was not given due weight. Strangely, Mr Brown's argument was that, in a sense, too little weight was placed on documents, whereas normally the complaint, when there has been a long passage of time, is that too much weight is given on documents because the documents, of course, continue to be in the Tribunal's hands whereas memory of oral evidence might fade. We have not been able to discern any disadvantage, apart from the sheer passage of time, that was suffered by reason of the long interval between the last day of the hearing and the first handing out of the decision.

11. Mr Brown complains about the treatment of a diary. The Tribunal says in its paragraph 29:

"One of the allegations made about the Applicant was that he was concerned with keeping a diary of events. It was produced to the Tribunal. We consider it to be significant evidence, because perusal of the entries does not provide any support for his contention that he was being harassed, and indeed, the opposite is established."

Why did the Tribunal prefer oral evidence, asked Mr Brown. He says that the diary entries and indeed the evidence of the Respondents themselves in written minutes assists Mr Odoemelam and yet was not given weight. No particular inconsistency has been illustrated to us between the findings of the Tribunal and whatever is recorded either in Mr Odoemelam's diary or in the writings of the Respondents themselves, but, even if there were some inconsistency, the Tribunal, we have to remember, had the documents before them, had the parties before them and over the five and more days with which they were concerned with the case, would have, no doubt, heard evidence by way of one or other party explaining what was meant by the written entries. It does not follow that simply because a thing is written that it necessarily has to carry the day. The Tribunal heard evidence over a long period; it is for them to decide what evidence to believe, what evidence to accept and we have been unable to spot any error of law, even an arguable one, in that particular allegation.

12. Standing back and looking at the Notice of Appeal as a whole and paying the best attention we can to the skeleton argument, we have been able to find no arguable error of law and so we dismiss the appeal even at this preliminary stage.