Yeung v Tower Hamlets Association For Racial Equality [1992] UKEAT 277_90_0807

EAT
Yeung v Tower Hamlets Association For Racial Equality
[1992] UKEAT 277_90_0807 · 1992-07-08
MR JUSTICE HUTCHISON: By this appeal Mr Yeung challenges a decision of the London (North) Industrial Tribunal of the 12th April 1990 whereby they found that he had not been victimised, but had on the contrary been fairly dismissed from his employment as redundant. His claim was brought pursuant to the provisions of s.2(1)(a) of the Race Relations Act 1976.In order to understand the material issues in this case it is necessary that we should say something about the history of the matter and give some dates and facts, but before we do so perhaps we might say, as a preface as it were to this judgment, that the case does involve a sad irony, and the irony is this. That Mr Yeung, who as will appear, was responsible for revealing the existence of discrimination on the part of his employers against him, should as a result of that very revelation have ended up himself losing his employment on the basis of redundancy. He disputes that that was the true basis, but that at any rate is what happened, he was dismissed as redundant. That may seem a strange state of affairs but the basis for it will appear from the facts that we are about to relate.In 1984 there was brought into existence in the Borough of Tower Hamlets, the Tower Hamlets' Association for Racial Equality. Mr Yeung, helpfully, told us something about the background to that, and it is quite clear from what he told us, if one did not know it already, that a body of that sort obviously had a useful part to play in Tower Hamlets. He was employed on the 1st September 1986 as an Administrator. He had an assistant and a temporary assistant, working with and subject to him, Miss Banville and Miss Wurie.The funding of the Association, which for convenience I will call by the acronym, THARE, was arranged in this way. The London Borough of Tower Hamlets was responsible for the administration side, including the salaries of Mr Yeung and the other two whom I have mentioned, and the Commission for Racial Equality paid for four officers, who, as it were, worked in the field. There were also two education officers, who, initially at any rate, were funded by ILEA.On the 17th October 1988, Mr Yeung issued an Originating Application in the Industrial Tribunal claiming discrimination against him by his employers. In November 1988 Miss Banville received, and the Applicant, Mr Yeung, did not receive, an increase in salary. On the 23rd November 1988 Mr Yeung applied to the Industrial Tribunal asserting victimisation. He was suspended on full pay.On the 13th March 1989 a new Executive Committee of THARE was elected under the Chairmanship of Mr Miah. It is important to emphasise (because Mr Yeung sets much store by this fact) that a considerable number of those Committee members had been members of the previous Committee. That does not apply to Mr Miah but did apply to many others, so that there were on the new Committee a number of those who had been on the Committee when it took the decision which occasioned Mr Yeung's complaints, what I will call his first Industrial Tribunal complaints.On the 20th April, that is to say just over a month after that Committee was elected, the Industrial Tribunal gave a decision in favour of Mr Yeung. He has, appreciating that the details of it are only marginally relevant, not really referred us to it, though it is before us in the Bundle, and it can be seen from a cursory glance at it that it was a fairly resounding success on the part of Mr Yeung.On the 28th April Mr Yeung, conceiving for reasons which one can quite understand that the Council would wish to know about the decision of the first Tribunal, sent a copy of their decision to the Council in a letter in which he discussed its implications and sought a meeting with Council officers.On the 17th May 1989, an important date, the Council notified THARE that they had taken a decision temporarily to suspend the grant which they made, and it is quite clear from the context in which that information was communicated, that the reason for the suspension was the finding of racial discrimination revealed in the judgment which Mr Yeung had sent to the Council some two weeks previously.On the 25th May 1989, the Applicant was informed that a disciplinary committee which had been formed to investigate the complaints made against him had, it is to be inferred in the light of his successful judgment in the Industrial Tribunal, been disbanded, and he was offered re-instatement and backdated increments. The letter mentioned re-instatement; I put down a marker as it were by reminding myself that ultimately what he was offered was re-engagement without continuity of employment. There was some discussion as to how the mechanics of that offer should work; he apparently wished to have a holiday and the upshot was that it was agreed that following a holiday he should re-start on the 19th June. Hanging over everything, however, was the cloud produced by the Council's decision to withdraw funding.On the 6th June there was a meeting between representatives of THARE and the various funding bodies whom we have mentioned. No promise of funds was forthcoming. I think it is right to say that in fact no funds had been paid since March. The advice of all the funding bodies at that meeting was to the effect that the administrative staff, namely those for whose remuneration THARE depended upon Council funding, should be made redundant. Three days later, on the 9th June, redundancy notices were sent to all three administrators. They specified the ground that the Council's funding had been suspended and they were expressed to terminate the employment of the administrators with effect from Friday, 8th July.On the 17th July, the Applicant issued the Originating Application before the Industrial Tribunal with which we are concerned, alleging that he had been unfairly dismissed and victimised. His case was quite simple, he was saying that because he had been a successful claimant in the first Industrial Tribunal proceedings THARE had punished him by dismissing him from his employment.On the 3rd November 1989, the Council notified THARE of a decision to restore the grant, and apparently did so, although we have learnt today (from Mr Clements, the present Director of THARE, a post which he holds for a relatively short term for reasons which he explained) that the refunding lasted only until the end of the next financial year, at the end of March 1990, and that thereafter despite occasional promises of cheques to be received, there has in fact been no funding by the Council of THARE. Though a fact is not, we think, material to the present case, what is material is that the Council announced and carried out that intention to restore funding for the balance of the financial year.On the 22nd December, THARE's Solicitors sent written offers of re-employment to all three of the administrators that had been dismissed. One finds a reference to that in paragraph 12 of the Tribunal's decision where they quote from the letter to the Applicant's Solicitors, and I quote the relevant passages:
"My clients have decided to offer re-appointment to all staff made redundant when their grant was terminated by the London Borough of Tower Hamlets in view of the fact that they have now recovered that grant . . . . . . This offer is made without any additional condition and it is, of course, a matter for your client as to whether or not he wishes to pursue this action [this action is a reference to the proceedings before the Industrial Tribunal] which we consider to be wholly misconceived. It may be however that your client will now see that his suspicions are without foundation, will rejoin the organisation as a dedicated and responsible employee and will conclude that nothing would be served in continuing his present action against them."
Those are the material facts and dates, neutrally stated as it were, from which it will appear how the irony to which we referred at the beginning of this Judgment comes about.As we have indicated, Mr Yeung's case before the Tribunal was that the Tribunal had acted in that way not because they genuinely thought that they were confronted with a redundancy situation; not because they were, in truth, convinced that they had no means of securing the necessary funding; but because they were content to use the expedient of absence of funds to get back at Mr Yeung. Indeed, in the course of his argument before us, when dealing with the issue of the alleged perversity of the Tribunal's finding, he made it clear that he was contending that the proper construction of the facts which I am about to relate in a little more detail was that THARE had deliberately refrained from doing things that they knew would have led to a restoration or earlier restoration of funding in order to get rid of him.It is necessary to look at some of the findings that the Tribunal made. I do not propose, in this Judgment, to cite long passages from their carefully expressed and reasoned written Reasons. Mr Yeung, himself, paid us the compliment of assuming that we were thoroughly familiar with what they had said, which is indeed the case, and what I propose to do is to summarise some of the passages which it appears to us contain material findings.Plainly an important issue for the Tribunal was the impression made and reliance which they could place upon Mr Miah, the new Chairman of the Committee. I say that, first, because it is obviously the case, and secondly, because part of Mr Yeung's arguments before us have involved inviting us to conclude that the Tribunal were wrong in treating Mr Miah as an honest and reliable witness, and should have reached an opposite conclusion about him. They formed, they said a very favourable impression of Mr Miah. They categorised him as being sincerely anxious to re-employ the Applicant and genuine in his concern to re-establish him. They were satisfied that Mr Miah wished to reform the way the Committee was organised and administered. This is why, they said, he was insisting that all employees when re-employed should have a stipulation in their contracts requiring them to work at the same hours. I pause to emphasise that that is a second matter upon which, before us, Mr Yeung placed some reliance. He suggested, as we understand his contentions, that though the nature of the work is such that regular hours are not practicable, the attempted imposition on his re-employment of such hours is indicative of the fact that the Council were not genuinely concerned to secure his re-engagement but were attempting to set up difficulties which could later be used to assert that he was in breach of his contract, for example, if he came late to work one morning.There is then a finding at paragraph 20 of the Tribunal's Reasons, that on the matter of the restoration of funding Mr Miah, and through Mr Miah, the Committee, made energetic efforts and took sustained steps in an attempt to get funding restored. It is perhaps unnecessary to cite the details of that but it is clear that the Tribunal accepted that they were to enormous pains and devoted many, many hours to trying to persuade the Council to effect a restoration of funding.They find in paragraph 21 that Mr Miah was acting prudently, once he received intimation that funding was to be restored, in taking legal advice before making an offer of re-employment or re-instatement of the Applicant and the other three. The point of that is that Mr Yeung contended, and contends before us, that it is really impossible to understand why if they were genuinely anxious to re-employ him and if their original dismissal of him as redundant was genuine, rather than a sham, they delayed for some month or six weeks between the time when the received the notification of the restoration of funds and the time when they made the offer. The answer is in that passage. The Tribunal having heard Mr Miah and drawing on their own experience in these matters as well, I suppose, took the view that Mr Miah was, in all the circumstances, acting prudently in taking legal advice before acting. It seems to us that that is a view which the Tribunal were perfectly entitled to take.In paragraph 22, they deal with the Applicant's belief that if there had been a wholesale reconstitution of the Committee if all those who had been involved in the regrettable affair which founded his complaint to the first Tribunal had resigned, or had been required resign, that would have simplified the matter of getting the grant restored. The Tribunal expressed their view about that by saying that that suspicion is wholly without foundation. Again, we pause to emphasise that that was one of the matters on which Mr Yeung principally relied before us, inviting us in effect, to take a different view. He said this:
"If they had had a new Executive Committee then the grounds for objection by the Council would not have existed, they could have asked for and would have received, a prompt restoration of the grant."
Later on he referred to what he categorised as his solution for this predicament, namely that the members of the Committee who had been party to the original regrettable decision, should have been asked to resign and that that would have averted the necessity for his dismissal for alleged redundancy. Finally, as I have already stated, he boldly submitted that the truth of the matter was that they deliberately refrained from doing such things as that because so far from wishing to have the grant restored, they wished to have a pretext for dismissing him from the employment upon which they had recently re-engaged him.The Tribunal expressed their view about those submissions in the terms that I have indicated, that there is simply no evidence for them. In so far as there is an invitation to infer, in the absence of direct evidence, that that was their motive, it seems to us, as it apparently seemed to the Industrial Tribunal, that there is no possible basis for such an inference, given the conclusions that the Tribunal reached as to Mr Miah's honesty, sincerity and bona fides. They plainly acquitted him of any such motives.Then in paragraph 23 they dealt with an argument that was advanced before them but which Mr Yeung, we have to say, we think wisely, has refrained from pressing before us: namely, that despite the absence of funding from the Council, THARE his employers should by some juggling of funds or by incurring indebtedness have continued to employ him and his two fellow employees and to pay them by that means. That was a suggestion plainly fairly strongly pressed before the Tribunal and their conclusion about it was that such juggling would have been we quote:

"irresponsible in the extreme"

and that there was a potential liability upon individual members if they were to incur indebtedness which they had not the means to satisfy and that that was a real consideration. There was no indication, whether, and if so when, funding would be restored.As the Tribunal emphasised again in paragraph 27 of their decision, the failure to get funding was in their view not deliberate; on the contrary, THARE tried very hard and they find that Mr Miah was right to accept the advice of Mr Dutta of the Commission for Racial Equality and of the other funding bodies that the only remedy was to dismiss the administrative employees. It would not have been right, they say, to push money around and would have been irresponsible to incur debts and rely on the restoration of funding.In paragraph 28, they find that the Respondent had no alternative, once funding had ceased but to make staff redundant, a brief reiteration of the finding in paragraph 24 on the crucial issue in this case, which was to the effect that the redundancy decision was a sincere decision, taken because of withdrawal of funding, and had nothing to do with the fact that the Applicant had previously taken the Respondents to an Industrial Tribunal. We can see, they said, no evidence whatever, that he was victimised.Now, those in outline are the findings that the Tribunal made, and Mr Yeung, who has presented his case today very articulately and with great skill, has sought to argue along the lines which we have, as it were in parenthesis, already in part indicated. He submits that the Industrial Tribunal should have drawn inferences from the reasons and explanations given by the Respondent as to why the remedy suggested by the Appellant were not acceptable. In effect, that is another way of putting the argument we have already rehearsed, that the Tribunal should have concluded that it must reject the ostensible reasons put forward and accept the ulterior motive attributed by Mr Yeung to his employers. He submits that they should not have followed, as they did, on the issue of redundancy in the decision The Association of University Teachers v. University of Newcastle-upon-Tyne ICR [1987] 317, He made it clear, however, very helpfully, in the course of his arguments before us that he was not suggesting that that was an authority which did not apply to the facts as found by the Tribunal, he was suggesting that the Tribunal should have found the facts differently and should have found that the reason for his dismissal was victimisation and not shortage of funds. He accepts, as we understand it, that if the Tribunal were correct in holding that there were genuinely no funds available to THARE to pay his salary then that case justifies a finding that that was a redundancy situation. He also makes the various other submissions which, I think, we have adequately covered in connection with his "solution" in the dismissal of the Committee.There is a further point which we specifically mention, which is that he asserts, which is apparently the case, that when he was offered his own job back it was without continuity of employment. Why, he asks rhetorically, if the motives of the employers, the present Respondents, were genuine, why did they not offer him continuity of employment with the advantages that that would have given him? That is a pertinent question, we have to say, and the answer is not to be discovered from the Industrial Tribunal's Reasons where they do not address the argument which we must assume was put to them as Mr Yeung says that it was. There may have been reasons, we know not; it has to be remembered that this is a point which, is not a central issue in the case but is simply a factor relied upon as one of many which is suggested go to show an absence of proper motives or the presence of an improper motive. Even making allowance for the fact that there is no explanation as to why the re-employment was offered on that less advantageous basis we cannot for a moment accept that that undermines the very clear conclusion at which the Tribunal arrived on important factual matters and inferences from those facts which were entirely within their own province.Finally we should say a word about the last point that Mr Yeung makes, which is that this decision is self-evidently perverse. He correctly draws our attention to one or two authorities on the issue of perversity and he confidently submits that if anyone taking a "birds eye" view of this case looked at the decision they would say in the words suggested by Lord Justice May as being an appropriate touchstone "My goodness, that must be wrong".I began by indicating a degree of sympathy for Mr Yeung and one can understand, if we may say so, a submission that a member of the public being acquainted with the fact that he had made a justified complaint against his employers of discrimination and had ended up himself losing his job, might have said "My goodness, that seems unfair". However, if one poses the correct question which is, would such a person, knowing of the material facts and the view that the Council took of Mr Miah's honesty and bona fides, and knowing of all the matters which we have related, immediately assert "My goodness, that must be wrong" there can in our judgment be only one answer: plainly he would not. It is ironic but it is not perverse, that the conclusion of the Tribunal should be one which has the unfortunate result that we have outlined. There is in our judgment no possible basis for asserting that they came to a perverse conclusion. On the contrary, we would like to pay tribute to the obvious care with which they considered this difficult case, set out the issues and stated their conclusions in clear and unambiguous terms. In our judgment on the evidence before them there was ample evidence for such findings of fact as they made, there was ample justification for such inferences as they drew and such conclusions as they stated on matters such as the propriety of incurring liabilities without the availability of funds. This is, in truth, a hopeless appeal, an attempt to re-open the facts which were fully considered and carefully pronounced upon by the Tribunal.The appeal must be dismissed.