United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T OKUNOWO (Trainee Solicitor) Messrs Phoenix Nova Solicitors Ranan House 456 Kingsland Road London E8 4AE


 


HIS HONOUR JUDGE WILKIE QC

1. This is an appeal by Mr Mustapha against the decision of the Employment Tribunal sitting at London Central on 25 to 27 April 2001 which unanimously dismissed the Applicant's complaints of race discrimination and victimisation against his employer, Islington Council and one of its employees, Mr Lewis.
2. Mr Mustapha's complaints to the Tribunal centred on three issues. The primary issue concerned the way in which Mr Lewis dealt with, or failed to deal with, a grievance he had raised about an incident on 19 November 1999 involving Mr Mustapha and a Mr Strutton, his line manager. The Tribunal made cogent criticisms of the way in which Mr Lewis had failed satisfactorily to deal with the grievance but came to a very firm view that this failure arose from personal difficulties which Mr Lewis was having at the time and was due therefore to managerial incompetence compounded by those personal problems and that there was no causal link between that failure and any racial discrimination being shown to Mr Mustapha. Mr Okunowo, the solicitor acting for Mr Mustapha, has addressed us this morning. In our judgment there is no arguable case in respect of this grievance issue either revealed by the Notice of Appeal or the argument this morning that this Tribunal did anything other than come to findings of fact to which they were entitled to come having approached the matter broadly in the correct legal manner.
3. There were, in addition, two complaints of victimisation brought by Mr Mustapha. The first concerned his failure to obtain a senior post for which he had applied. The Tribunal had considered this and in particular focused on the interviews conducted by an external agency which had conducted the assessments on behalf of the Council for this post. Their conclusion, having seen all the evidence and heard the evidence and in particular having looked at the documentation produced in the course of that assessment was that he had been properly marked in accordance with established criteria. There was no difference between the way he was marked to the way in which the other applicants of various ethnic origins had been marked. The reality was that the Applicant had performed badly in the test and the interviews. The Tribunal concluded there was no evidence to show that the interviewers knew of the fact that Mr Mustapha had already lodged his Originating Application in respect of the grievance complaint at the time of the interviews and the selection procedure. It therefore followed that there was no evidence to show that he was marked down because of the originating complaint made to the Tribunal.
4. Mr Okunowo has urged upon us the fact that there is an absence of certain markings on the documents attached to Mr Mustapha's interview as opposed to the other candidates. It is equally clear that the mark given to Mr Mustapha is shown on the document which fronts up that part of the file and it is very substantially lower than the other two documents which we have seen. There is nothing in those documents to suggest to us that this Tribunal made its findings of fact in the face of the evidence or perversely, or that the findings of fact were not supported by the evidence. We can see no arguable case for this ground of appeal.
5. The third complaint was also a complaint of victimisation and concerned deductions made by the Council to Mr Mustapha's wages. The Tribunal apparently had before it, amongst other evidence, a note of a telephone discussion between Mr Mustapha and Ms Sheila Vythelingum, the Islington Council payroll officer, dated 15 December 2000, in which she said to Mr Mustapha that she had been instructed to start deducting from his salary from the month of December because he had been overpaid and that the overpayment must be deducted before April 2001. This was an explanation which was in evidence before the Tribunal and which the Tribunal accepted. That was a finding of fact, and again it was not in the face of the evidence as there was that plain evidence before them.
6. Mr Okunowo has produced to us this morning a letter dated 17 January 2002 which refers to an earlier letter of 10 January 2002. That appears to be a document which acknowledges that monies are owed to Mr Mustapha of the order of £4,500 and referring that sum to the amounts due in respect of salary from July 2000 right through to July 2001 and informing him that a cheque for £4,500 would be despatched by the payroll section. We are told by Mr Okunowo, and obviously take from him, that the letter of 10 January recorded that there had been a meeting between Mr Mustapha, his trade union representative and management, the subject of which was the deductions that had been made in Mr Mustapha's pay and that this letter of 17 January was some form of acknowledgement or agreement to make up to him the sums that had been deducted. Plainly this was not before the Tribunal nor could it have been. In the absence of our knowing what lies behind this, whether it was a genuine change of heart, or was on the basis of some pressure being brought to bear by Mr Mustapha's union, or whatever, there is simply no sensible basis upon which we can infer from that exchange of correspondence that the allegation of victimisation may be true or indeed that the Tribunal may have come to a different view if it had had that evidence before it. Therefore in our judgment this is again not a matter which has a reasonable prospect of success on appeal and we are therefore constrained to dismiss this appeal at this stage.