United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR RECORDER BURKE QC

1. This is the preliminary hearing of Mr Osunbayo's appeal against the decision of the Employment Tribunal chaired by Mrs Hill sitting at London (Central) promulgated with Extended Reasons on 30^th April of last year. By that decision Mr Osunbayo's complaints of racial discrimination and breach of contract on the part of his employers, Connex Southeast, were dismissed. Mr Osunbayo has been notified of this hearing. He has not appeared here today. We take the view that we should proceed in his absence on the basis of the papers that he has submitted to us and propose to do so. We understand that he has been informed that that is what this Tribunal intends to do.
2. At the outset of the hearing before the Tribunal, Mr Osunbayo had sought an adjournment. That application was rejected. He now seeks to appeal against the rejection of his application for an adjournment and against the dismissal of his complaints of discrimination and breach of contract.
3. The facts can be summarised shortly. Mr Osunbayo, who is of Black African origin, was first employed by the Respondent in September 2000 as a member of the gateline staff at Charing Cross Station. That meant that he would have to attend barrier gates in a manner familiar to all of those who use railways and the underground in the South-East of England. At that time at Charing Cross Station there were no such gates; so he was put to work on the information desk, or Helpdesk, after his initial training. A white employee, Mr Whalley, was taken on in August in the same way. He was also put to work on the Helpdesk.
4. Plainly things went wrong and by late November the employers had decided that Mr Osunbayo should be transferred to platform duty. That did not work out; and he was summarily dismissed without any disciplinary or other procedure while still a probationary employee on 28^th November 2000. Mr Whalley however remained at work on the Helpdesk and indeed was obtaining higher pay than Mr Osunbayo had been before his employment came to an end. Thus, although Mr Osunbayo could not claim to have been unfairly dismissed because he had not been employed for long enough, he claimed that he had been the victim of racial discrimination, relying on the comparison between himself and Mr Whalley, and that the employers had been in breach of contract in dismissing him without going through the disciplinary procedure which, for present purposes, we will assume to have been a contractual disciplinary procedure.
5. The Tribunal first dealt with Mr Osunbayo's application for an adjournment. He put it on the basis, or so the Tribunal recorded, that he had been absent from his home from 16^th February to 6^th March of last year. Thus he was away for a substantial period between the presentation of his Originating Application on 11^th January of that year and the hearing before the Tribunal which occurred, with praiseworthy rapidity, on 23^rd March of that year. The Tribunal found that he had had ample time to prepare his case and to instruct a solicitor and rejected his application.
6. Later Mr Osunbayo applied for a review on the basis that he had been away from 16^th January, not 16^th February, and that the Tribunal had made some sort of a mistake in that respect. That application for a review was rejected. The Tribunal found that there had been ample time for Mr Osunbayo to prepare his case and to instruct a solicitor. In a case of relative simplicity that was surely right, and right even if he had been away earlier having regard to the fact that he returned on 6^th March, over two weeks before the eventual hearing.
7. The decision of the Tribunal as to whether to grant or refuse an adjournment was an exercise of their discretion which we can only interfere with if that discretion was exercised contrary to law. We see no basis upon which it could be arguably said that they exercised that discretion contrary to law.
8. The Tribunal then turned to the substance of Mr Osunbayo's complaint. There was in almost every part of the brief history of his employment a conflict between Mr Osunbayo's version of events and that of the employers. The Tribunal set out each version in full in its Extended Reasons. They concluded that the employer's evidence was more credible than that of the employee and gave at paragraph 16 of their decision cogent reasons for that conclusion.
9. They found as a fact in paragraph 17 that Mr Osunbayo had been late on duty on a number of occasions, that he did not comply with instructions and that he was not someone likely to meet the standards expected of a member of the gateline staff. In contrast to that the Tribunal found that Mr Whalley was an effective and competent employee. Thus they concluded on the facts that, while there had been differential treatment between the two employees, that difference in treatment was not related to race but to their contrasting competence and capabilities.
10. Mr Osunbayo's Notice of Appeal contains allegations which were properly and understandably taken to raise a case of bias or improper conduct on the part of the Tribunal itself. As is the practice in this Appeal Tribunal he was directed by the Registrar to provide an affidavit in support of those aspects of his case. He did not do so and thus on 20^th August all allegations of bias or improper conduct were struck out and are not open for argument.
11. In a document which is before us on pages 7 and 8 of the bundle, a number of the grounds of his appeal have been crossed out in red, although we do not know by whom that has been done. If that was an attempt by this Appeal Tribunal to cross out those allegations that have been struck out in the manner which we have just described, there may have been an excess of enthusiasm. We have, in considering this appeal today, taken into account all of the grounds of appeal in the original Notice of Appeal save those which expressly and clearly on the face of them raise an argument of bias.
12. Mr Osunbayo firstly challenges the Tribunal's criticism of him in so far as it found that, while he was attached to Charing Cross Station, he went off to London Bridge station without permission. The Tribunal at paragraph 8 found this to be so. Mr Osunbayo submits that his going to London Bridge had been authorised by a manager, Mr Jarvis. Mr Osunbayo says that the employers neither disputed this nor called Mr Jarvis to deny it. It is correct that Mr Jarvis was not called but the Tribunal had evidence from Mrs Taylor, the employer's Station Manager, that he had gone to London Bridge without permission and accepted that evidence. It was open to the Tribunal to accept that evidence even though Mr Jarvis was not called and we can see no error of law so far as that part of the Tribunal's decision was concerned, nor can we see any arguable error of law.
13. Next Mr Osunbayo complains that, despite his request, the employers failed to support their case that he had been late for work on three successive days in November 2000 by producing the staff attendance register. He says that he had written in advance asking them to produce it but they did not do so. It was not necessary for the employers to produce the attendance register. They had not been ordered to do so. The Tribunal were no doubt reminded by Mr Osunbayo of the absence of the register and were entitled to reach a conclusion as to whether or not Mr Osunbayo had been late for work, as alleged, without the register, either against him or in his favour. So far as the allegations of lateness were concerned, they were matters of fact for the Tribunal, and we see no arguable error of law arising out of their conclusion in that part of the decision.
14. Next Mr Osunbayo refers to the Tribunal's finding as to a meeting which occurred on 24^th November between Mrs Taylor and himself regarding his lateness and absence from duty. He says that it was alleged that he refused to sign a letter confirming the meeting until he had spoken to Union representatives. He says that this was a fabrication because he was not a member of the Union at the time and that the Tribunal were informed of this but, implicitly, took no notice of it. There are two potential responses to that point when the point is considered. First of all the fact that he was not a member of a Union does not necessarily mean that he would not be seeking advice from Union representatives. It also does not necessarily mean that the employers were lying in their version of events. Secondly that part of the history does not appear to us to have been regarded by the Tribunal as significant in any way in reaching its conclusion. Thus we do not see there either any arguable ground of appeal.
15. Next Mr Osunbayo says that, while he accepts that a meeting took place on 28^th November between himself and Mrs Taylor, he had written to her a day earlier complaining of differential treatment on racial grounds and that the Tribunal ignored that evidence. It does not seem to us arguable that the writing of such a letter containing an allegation about discrimination by Mr Osunbayo could, or would, have made any difference in this case to the ultimate result. The Tribunal considered his allegation that he had been dismissed on racial grounds and rejected it on facts as the Tribunal are entitled to do.
16. There is a further point made at paragraph 6 of Mr Osunbayo's Notice of Appeal which is not easy to understand; but we think that we have understood it and having considered it, that too does not raise an arguable ground of appeal.
17. In paragraph 7 Mr Osunbayo says that at the hearing he proved that there were disparities within the employer's organisation between blacks and non-blacks in terms of the grades of jobs in which they worked and that these figures showed that black staff were not given opportunities to progress. The fact that a body or institution may be shown by statistics, or may be thought as a result of statistics, to be treating non-whites less favourably than whites does not prove discrimination in any individual case. In each individual case where racial discrimination is alleged by a Applicant, it is necessary for the Tribunal to consider whether in that particular case there was discrimination; and while the Tribunal no doubt considered any statistical evidence which was produced it would not have proved the case that Mr Osunbayo was putting forward which case the Tribunal plainly rejected on the evidence as they were entitled to do.
18. Lastly it is said that in considering the notes of an alleged meeting at the Croydon training centre the Tribunal placed reliance on those notes which were not signed and not cross examined to and not raised during Mr Osunbayo's employment. We have considered these points. Again there we see no arguable ground of appeal.
19. We have been exhaustively through all the grounds of appeal other than those which raise allegations of bias or improper conduct on the part of the Tribunal. We have considered them all and for the reasons which we have set out we see no arguable grounds of appeal in this case; and therefore the appeal will be dismissed.