United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR RECORDER UNDERHILL QC:

1. The Appellant Mr Okon was employed by the Respondents from 16 January 1997 until he resigned with effect from 5 November 1999. For part of that period he was a driver. For the remainder he was a traffic controller.
2. In order to understand the nature of his application and the Tribunal's decision it is necessary to set out, in a little detail, the history of the various problems which he has had with his employment but we do so only in the barest outline in order to understand what the legal issues are.

1. On 10 March 1998 he received a final written warning.

2. On 31 March 1998 he received another final written warning.

3. In May and June 1998 he started a trial period as a controller, but he was returned to work as a driver following a complaint on 27 August 1998.

4. On the following day, 28 August 1998, the Appellant presented an Originating Application to the Employment Tribunal claiming a right to a written statement of particulars and a right not to be discriminated against. Although we do not have the details of how that claim was put, this was evidently a response to his treatment in returning him to driving duties on the previous day.

5. Apparently in response to those proceedings the Respondents decided to give the Appellant a second chance as a controller and he was finally promoted after a trial period in January 1999.

6. On 1 February 1999 the Appellant was suspended but the suspension was lifted on the following day. There was a similar incident on 18 March 1999.

7. On 7 April 1999 the Appellant was given a final written warning after an altercation with a junior colleague, Mr Kapoor. Mr Kapoor received only a non-final written warning.

8. In early August 1999 the Appellant applied for promotion to the position of senior controller, but on 12 August the application was refused on the basis that it was company policy not to promote any employee during the currency of a written warning.

9. On 13 August 1999 the Appellant was suspended for allegedly having a company vehicle at his premises. He was dismissed on 24 August 1999 but reinstated on a final written warning on 3 September 1999.

10. On 6 September 1999 the Appellant asked to return to work as a driver, not a controller, apparently on the grounds that this would avoid his having to work directly with Mr Johnson, the manager who had been responsible for some, but by no means all, of the disciplinary incidents referred to above.

11. On 24 September 1997 the Appellant was suspended following a confrontation with Mr Johnson about the calculation of the wages due as a result of his change of status from controller to driver. A disciplinary hearing had to be postponed because the Appellant was sick. On 23 October 1999 he resigned with effect from 5 November 1999.

3. The Appellant has brought two distinct applications. The first, claiming for unfair dismissal, racial discrimination and victimisation, was brought on 27 August 1999 - that is, shortly after the dismissal on 24 August which was subsequently reversed. The second application, brought following his final resignation, claimed unfair constructive dismissal.
4. The Tribunal heard both applications on 26 and 27 April 2000. Both claims for unfair dismissal and the claim for racial discrimination were dismissed unanimously. The claim for victimisation was dismissed by a majority.
5. The Tribunal in their Reasons took the various complaints in turn. They started at paragraphs 22 to 25 with the complaint of race discrimination brought in the first proceedings; and they identified, at paragraph 23, that the less favourable treatment alleged by the Applicant was the disciplinary action which he had encountered up to that date and a failure to appoint him to the post of senior controller. Those complaints are, in fact, rather wider than those appearing in his Originating Application but no doubt he was permitted formally or otherwise to extend the area of complaint at the hearing.
6. The Tribunal made the point that, in relation to most of the disciplinary hearings, there was no, as they put it, "straight comparator". The Appellant complains of this finding in his Notice of Appeal but it seems to us that on the facts found by the Tribunal it was plainly right. What the Tribunal meant was that in the case of the incidents of disciplinary action he was the only person disciplined. However, it was plain that the Appellant took the view that he was disciplined in circumstances where someone of a different racial origin would not have been and invited the Tribunal to infer that that was the reason. The Tribunal pointed out that the employees of the Respondents were extremely racially mixed and were not prepared, on the facts of the case before them, to make any inference of racial grounds for the disciplinary action in question. This was a matter of fact for them and we can find no misdirection of law which would enable this Tribunal to interfere.
7. In one case there was a direct comparator of a different race, that is to say Mr Kapoor, who on 7 April 1999 received a less severe penalty, namely a written warning as opposed to a final written warning, than the Appellant. The Tribunal accepted the Respondents' explanation that the reason for the difference of treatment was that Mr Kapoor was junior to the Appellant. That again is a finding of fact with which this Tribunal could not intervene.
8. In relation to the complaint that the Appellant had not been promoted to the post of senior controller, the Tribunal accepted the Respondents' explanation that he was not eligible for the post because he had a final written warning on the file. That too is a finding of fact with which this Tribunal cannot intervene.
9. The Tribunal then turned at paragraphs 26 to 31 of their Reasons to the complaint of victimisation. They referred to the decision in Aziz v Trinity Street Taxis Ltd [1988] ICR 534 as authority for the proposition that the Applicant had to prove a causal nexus between the fact of his doing a protected act - in this case his presentation of the first of his Originating Applications, that is to say the application on 28 August 1998 - and the various acts of disciplinary action which followed that date. Although the decision in Aziz has been overruled on another point by the House of Lords in British Railways Board v Nagarajan [1999] IRLR 45, the proposition which the Tribunal relied on remains good law. The majority, in paragraph 29 of the Reasons, considered the reasons for the various disciplinary actions which had been taken following the Appellant's Tribunal application and came to the view that he had failed to establish a causal connection between them and the application. That is a factual matter and we can detect no error of law. The Appellant complains, as we understand it, that the incidents are not sufficiently considered one by one. In our view there was no necessity for the Tribunal to undertake that task in their Reasons.
10. In paragraph 32 the Tribunal turned to the first complaint of unfair dismissal, that is to say relating to the dismissal on 24 August 1999 which was reversed a few days later. They pointed out that the reinstatement really disposed of the primary application but went on to consider whether the Appellant was entitled to complain of the fact that, when he was reinstated, it was as a driver rather than as a controller. But they made a factual finding that he did so by his own choice and that, even if this was a matter which would otherwise be capable of being raised under an unfair dismissal application, the claim failed on the facts. We can see no error of law in that approach.
11. Finally, the Tribunal considered the claim for unfair dismissal following the final termination of the Appellant's employment. This was on the basis of a constructive dismissal. The Tribunal considered the five matters alleged by the Appellant which he said entitled him to resign and claim constructive dismissal. All of those matters occurred on 24 September 1999. They pointed out that those breaches had all been rectified by the date of his resignation a month later and that, even if they constituted breaches, they were not breaches in response to which the Appellant can be said to have resigned. Again, we can see no error of law in that approach.
12. The Appellant has put in full grounds of appeal entitled "Further and Better Particulars to the Notice of Appeal". It is unnecessary for us to go through these in detail. We have alluded to some of them already. The broad thrust however of the Notice of Appeal is that the Tribunal did not go into sufficient detail - either in their findings or in the evidence which they heard – and that they came to factual findings which the Appellant believes were wrong. But the various points which the Appellant says the Tribunal should have dealt with are none of them, it seems to us, points which were essential to their reasoning. The Tribunal correctly focused on the essential points raised by the complaints before them and gave clear and reasoned factual findings in relation to those.
13. In the result we cannot see that the grounds of appeal raise any issue of law and we are obliged to dismiss the appeal.