United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS R DOWNING (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR COMMISSIONER HOWELL QC

1. In this appeal which is before us today for a preliminary hearing, Mr Utum Mungur seeks to have set aside as erroneous in law, the decision of the London North Employment Tribunal set out in Extended Reasons sent to the parties on 19 May 2000 after a hearing over three days earlier in that month.
2. The case before the Tribunal was a complaint of unfair dismissal, racial discrimination and victimisation by Mr Mungur against his employers, the London Borough of Harrow, where he worked as a residential social worker in the Social Services Department, and also as a second Respondent against Mr David Burnell who was the Head of Strategy and Commissioning in that department and responsible for some of the disciplinary proceedings which led to Mr Mungur's dismissal.
3. The reason why Mr Mungur was dismissed was his alleged gross misconduct in having worked for another employer while absent from his work with the Council, purportedly because he was unable to work through illness, which claim he supported by submitting sick notes from his General Practitioner, with declarations on them signed by Mr Mungur himself that because of incapacity, he had not worked since the date of his previous claim. That is based on the findings of the Tribunal in paragraph 3 of their Extended Reasons on page 17 where it is also recorded that Mr Mungur was, throughout, in receipt of his full basic pay from the Council. That dismissal was alleged by Mr Mungur to be unfair for procedural reasons and also because he considered that it was discriminatory for him to have been so dismissed. According to him, other employees who had also been working while signing on as sick, and drawing full pay, as he did, in the Council's employment, had not been so disciplined.
4. It was asserted on his behalf on instructions by Miss Downing, who appeared and made a most helpful submission to us on behalf of Mr Mungur at today's hearing under the ELAAS scheme, that he had throughout maintained in the disciplinary proceedings before his dismissal, and also in the Tribunal proceedings, that that dismissal had been unfair as the activities for which he was sacked had been done with the approval and prior knowledge of his immediate line managers, in particular the manageress of the residential home where he was supposed to have been working.
5. We have to say that that submission came as a surprise to us, since there is no hint in the Tribunal's apparently careful findings of fact as to the history of the case, that that had been the way in which the matter was put, either in the disciplinary proceedings conducted by the employer, or to the Tribunal itself at the hearing in May 2000.
6. Be that as it may the Tribunal concluded, on the basis of the view they took that much of Mr Mungur's evidence was untruthful, that he had not been unfairly dismissed; there had been no unlawful discrimination against him, either by way of direct discrimination or by way of victimisation, and finally, the Tribunal recorded that an earlier complaint of sex discrimination was withdrawn by the Applicant and formally dismissed
7. A substantial and wide ranging Notice of Appeal against that decision was lodged on behalf of Mr Mungur on 30 June 2000 and is at pages 1 - 8 of the appeal file before us. The representative then acting for him who continues to do so, and instructed Miss Downing before us, itemised a number of different grounds on which it was sought to contend that the Tribunal's decision had been erroneous in law. Those grounds were, to a substantial extent, reformulated for us by Miss Downing, and not all of them have been pursued.
8. Accordingly, it is most convenient for present purposes to say simply that we have accepted Miss Downing's submissions on behalf of Mr Mungur on two issues in particular, but only two issues, among the various possible arguments on law which were canvassed before us and we are satisfied that it is right for there to be a full hearing before the Employment Appeal Tribunal on those two issues alone, and that full hearing we accordingly will direct.
9. The two issues which we consider do raise arguable points of law in this case are as follows. First in relation to the Tribunal's findings under the heading of "Victimisation" in paragraph 20 of their Extended Reasons on page 21, we accept Miss Downing's submission that arguably there the Tribunal failed adequately to address the material issue, that it had been alleged by Mr Mungur that the managers who he understood to have reported his offence, had instigated a second set of disciplinary proceedings against him, leading to his dismissal, because of previous complaints he had made of racial discrimination on their part.
10. Accordingly we will direct that the issue of whether the Tribunal adequately addressed the relevant issues on discrimination in paragraph 20 of their Extended Reasons, and whether they were correct in basing their conclusion on the assumed answers that Mr Mungur might have been expected to have given to relevant enquiries in the course of earlier disciplinary proceedings, should go before the Appeal Tribunal for full hearing.
11. Secondly, we are satisfied that there is an arguable point that the Tribunal may have erred in dealing with the allegation that Mr Mungur had suffered discrimination by being subjected to disciplinary proceedings and dismissed for working while signed off sick, having regard to evidence relating to alleged comparators put forward by him who were said also to have been committing the same offence. In particular we think the Appeal Tribunal should consider at a full hearing whether the Tribunal erred in not making and recording sufficient or more detailed findings of fact, about the comparative extent to which Mr Mungur and the alleged comparators, identified as employees (A) (B) and (C ), had been doing the same thing, and about what were referred to as the "mitigating circumstances", though without further elaboration, in among other places, paragraph 16 of the Tribunal's Extended Reasons.
12. We have concluded that the remaining grounds of potential appeal, put forward by Miss Downing, should be rejected. These mainly consisted of complaints that the Tribunal had erred in law by allegedly perverse procedural decisions, prior to or in the course of the hearing itself.
13. The first was a suggestion that they had erred in failing to order discovery of documents relating to the persons sought to be relied on as comparators by Mr Mungur in his discrimination claim. We consider that the relevant arguments, if they are good arguments, on the Tribunal's alleged failure to deal properly with a proper basis of comparison of the individuals concerned, will be able to be made under the second main issue on which we have already indicated we will direct a full hearing, so we do not consider any separate issue need be raised in relation to that under the procedural heading of "Discovery".
14. Secondly it was suggested that the Chairman had erred in failing to order disclosure of the names of those who had reported Mr Mungur; this being said to be necessary in order to bolster the factual case that Mr Mungur wished to put forward in relation to his unfair dismissal claim, by lending credence to his suggestion that those who reported him had actually been the same people, as were themselves doing something very similar to what it was he was accused of. We have not been satisfied that an Order for Disclosure of those names would have been properly necessary to enable him to put forward that factual case in any event, but we consider it completely unarguable that, on a matter of discretion, as this was, that the Tribunal Chairman was perverse in coming to a similar conclusion himself.
15. A further complaint under the second main allegation under the procedural head, is that the Tribunal Chairman erred in failing to order the attendance of a Mr Aziz to give evidence, if necessary under compulsion, and/or in failing to allow him to be called as a voluntary witness on behalf of Mr Mungur, in circumstances where he had attended the Tribunal proceedings on the first day under the impression that a Witness Order was going to be made against him, and it was only on that day that he was approached for the first time by Mr Mungur's representative, in order to give a witness statement.
16. The history, as explained to us by Miss Downing, appears to have been that when this matter was raised at the beginning of the hearing, and no Witness Order had been made, it was indicated to Mr Mungur's representative that the only way in which evidence, which he asserted to be relevant from Mr Aziz, would be entertained by the Tribunal would be if a proper witness statement was obtained from him, and he was called as a witness on behalf of Mr Mungur in the normal way. That, of course, meant that since he had not already provided a witness statement, or had been intended to have been produced as a witness for Mr Mungur himself, but was only envisaged as being a person who would attend, in effect, under compulsion, the Respondents had had no opportunity of considering the substance of the evidence that Mr Aziz could be expected to give. In the course of the day, Mr Mungur's representative managed to obtain a short witness statement from him, and in fact, this was submitted to, and accepted by, the Tribunal as evidence in chief, but since Mr Aziz was unable to attend on any later day to give oral evidence, or be cross-examined, that was the sum total of the evidence he gave. He does not appear to have been challenged on the part of the Respondents, so that whatever he did say in his witness statement, could be admitted in evidence, and relied on by the Tribunal for whatever he had said. We have not seen that witness statement, but there is no indication that the Tribunal excluded any part of that evidence for whatever it was worth, on any relevant issue.
17. In the circumstances in which the question of calling evidence from Mr Aziz arose, we have been unable to see that there is any arguable reason for saying that the Chairman erred in law, or was in any way perverse in the procedural decision he made not to allow Mr Mungur's representative to call Mr Aziz immediately, to give oral evidence without having provided a witness statement and without, obviously, being sure of what, if any, relevant answers he would be able to give. That would appear to us to have been quite an improper way of putting evidence in front of a Tribunal, but in any event, again, we consider it quite unarguable that the Chairman acted perversely in declining to allow it to be done.
18. The remaining points in the original Notice of Appeal, in particular, paragraph 1 which sought to bring an appeal on the ground of the Employment Tribunal's refusal to grant the Applicant's request for the Respondents to be barred from presenting a defence, and other complaints, put in various ways, were not pursued on behalf of Mr Mungur before us by Miss Downing (in our view entirely correctly) and we accordingly say no more about them.
19. The upshot is that we direct that this case should go forward for a full hearing before the Employment Appeal Tribunal on the two specific issues we have already identified. We direct that an amended Notice of Appeal specifying those two issues as the grounds of appeal should be lodged by Mr Mungur's representative within 14 days of today. We disallow the appeal on all the other grounds specified in the original Notice of Appeal, for the reasons we have already given. We direct that this should be set down for hearing in listing Category C, estimated length of hearing half a day. Skeleton Arguments should be lodged within 14 days before the date fixed for the full hearing of the appeal and also exchanged between the parties at the same time.
20. We direct that the Chairman be asked to provide his Notes of Evidence relating to:

(1) Mr Mungur's allegation that his managers had reported his offence and been responsible for a second set of disciplinary proceedings against him because of previous complaints of racial discrimination he had made; and

(2) Mr Mungur's allegation that the alleged comparators identified as (A) (B) and (C) had been committing the same offence as he had but had not been dismissed.