Hust v London Borough Of Tower Hamlets [1995] UKEAT 319_95_0811

EAT
Hust v London Borough Of Tower Hamlets
[1995] UKEAT 319_95_0811 · 1995-11-08
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Hartmut Hust in a dispute with the London Borough of Tower Hamlets.The preliminary hearing first came before this Tribunal on 18 July. Mr Hust appeared in person. He was given leave to amend his Notice of Appeal to specify what error of law there was in the Industrial Tribunal decision and what findings were perverse. The case was adjourned on that basis to be relisted.The adjourned hearing took place on 19 September. Mr Hust again appeared in person. On that occasion the preliminary hearing was adjourned on Mr Hust's undertaking to seek legal advice or obtain a representative to speak on his behalf. Mr Hust sought legal advice, but today has again attended in person and has presented his arguments with the help of documents which he has prepared setting out his case.As for legal representation, we are satisfied that Mr Hust observed the undertaking he gave, to seek legal advice and representation. He has shown us three letters which he has had from Mr D.A. Caleb, of a firm of solicitors in Fleet Street, Sheratte, Caleb & Co. The first letter was written on 26 September, in which Mr David Caleb said that he would read the papers that Mr Hust had sent and that an application would be made for legal aid under the Legal Aid Green Form. He was providing information under that scheme. He said he would deal personally with the case for him, although there might be occasions when he would have to delegate parts of the work to other members of staff.Mr Caleb wrote a second letter on 10 October, referring to a meeting that he had had with Mr Hust and confirming certain points. He referred to the discussion they had had about the points raised in the appeal and the various points in the amended Notice of Appeal, which was sent in on 23 July 1995. Mr Caleb said that he had reached the limit of the work he was able to do under the Green Form scheme and would now need to apply to the Legal Aid Board for an extension, and to help him with that, he asked for certain details to be provided.The third letter is dated 26 October. That refers to earlier correspondence and refers to the preliminary hearing to take place today. It was pointed out in Mr Caleb's letter that it was very difficult to work within the constraints of the Legal Aid Green Form scheme, which only allowed him to do a limited amount of work. He had already exceeded by some way the amount of work that he would get paid for. He would now seek an extension. He said he would like to obtain advice from a barrister to see if was possible to argue the appeal properly. He then said this:
"... I believe that from the various points that you have made it may be possible to extract some possibility of an Appeal firstly on the basis that you were not allowed to call the witnesses that you wanted to call. In this respect I must say though that I am not at all clear as to whether you are actually prevented from calling witnesses or whether you were simply refused Witness Orders. I suspect from your letter of the 19th October that it may have been the latter. I will need to confirm this.
I also, however, feel that now that I have seen the actual letter from your employer that it may be arguable that you were not sufficiently consulted before effectively being made redundant. The third point that I would like the barrister to consider would be the way in which the first hearing was conducted insofar as your claim for wrongful dismissal is concerned."He then pointed out that he would not be able to do all of that work before today (8 November). He understood from the EAT that, if he sent a fax, we would consider an application for an adjournment. He asked Mr Hust to get in touch with him. He referred to a number of other points which he thought might not be sustainable on an appeal.We are grateful to Mr Hust for those letters; they show that he has made efforts to obtain legal advice and assistance on his case. We have to decide today whether all the matters that we have heard from Mr Hust and read in his documents, reveal a legal flaw in the decision of the Tribunal.As we have explained to Mr Hust, (and he appreciates this), an appeal can only be brought from the Industrial Tribunal decision to this Appeal Tribunal on a point of law. If there is a reasonably arguable point of law, we direct this case to go to a full hearing. At the full hearing the London Borough of Tower Hamlets would be represented. The Tribunal would hear argument on each side about the legal correctness of the Tribunal's decision.If, on the other hand, there is not an arguable legal point in the appeal, and it is simply a case of Mr Hust disagreeing with the decision (and he may feel very strongly that this is not the right decision) without being able to identify any legal error, then we could not allow this appeal to go on beyond today.What are the facts and reasons of the decision? To understand those we need to return to the origins of this dispute. The case was started on 1 April 1993 when Mr Hust complained to the Industrial Tribunal that he had been unfairly dismissed and racially discriminated against by the Council.He had been employed by the Council as a Relief Premises Manager since 24 July 1990 until he was dismissed on 3 January 1993. He explains that he is of German origin and believes that he is being discriminated against on racial grounds and on grounds of nationality by staff employed by the Borough, contractors working for the Borough and parents of children attending schools in which he worked.He started to work for the Borough two and a half years previously as a Relief Premises Manager. He was dismissed on 3 January 1993 because he refused to sign a new contract. In his view, the new contract was not suitable, because it meant that he would lose about £100 a week and suffer other financial detriments. He referred to specific instances when he was subjected to racial abuse. He returns to the question of the new contract and says he believes that it was designed specifically to put him in a position, in which he had no option but to refuse to sign. That led to the termination of his employment. For those reasons, he claimed that he was unfairly dismissed and was a victim of racial discrimination.The claim was resisted by the Council. They said that the reason for dismissal was termination on contractual notice, followed by refusal by Mr Hust to accept the offer of a new contract. They denied any unlawful racial discrimination. They agreed with the dates given for his employment and confirmed that he held the post of a Relief School-keeper within their Organisational Development Department.The Council said that, as a result of a review of systems and work practices within that service, his contract was terminated by giving contractual notice, which expired on 3 January. He was offered a revised contract to start on 4 January 1993. He refused that offer by reason of which the employment with the Council automatically came to an end. They said that the new contract, which was offered, was reasonably comparable with the old one. He was unreasonable in refusing to accept it. They concluded by denying that there was any unlawful discrimination in terminating the contract or in the offer of a new contract, or in any other way. Those are the issues which the Tribunal had to decide.Before the hearing of the Tribunal, over four days on 14, 15, 16 and 17 November, it seems there had been interlocutory applications before the Tribunal. One of those concerned an application by Mr Hust for witness orders about 20 witnesses. We have seen details in the 150 page document bundle, which Mr Hust has provided, on pages 89, 90 and 91 of a list of 20 witnesses, divided into two groups; character witnesses, who are head teachers of various schools at which Mr Hust worked and the second group; character witnesses and named witnesses in his reports. They consisted of a mixture of employees of the Council and the Legal Services Division and in Personnel and Administration and a head teacher.When the hearing took place in November, the position was that Mr Hust conducted his own case. He called some witnesses. It appears from the Tribunal decision, contained in extended reasons and notified to him on 7 February 1995, that evidence was given by two witnesses called by Mr Hust; Mr Ames, an Administration Coordinator; Mr Watson, Personnel Coordinator.The Chairman recorded in the decision, paragraph 7 that:
"7 ... He [Mr Hust] did not call any of the 20 witnesses in respect of whom witness orders had been refused at the Interlocutory Hearing. Those witnesses were, in general, the Head Teachers of schools where the Applicant [Mr Hust] had worked for the Borough. Their evidence, if they had been called, would have been that the Applicant was a good and conscientious school keeper. The Applicant, himself, gave evidence of his good reputation as a worker. This evidence was not challenged by the Borough. ..."
I have mentioned that matter because a recurrent theme in Mr Hust's submissions is that not only did the witnesses for the Council give untruthful evidence, but also that the Tribunal had decided the case against him without hearing all the evidence given by witnesses he wished to call.In the extended reasons, the Tribunal unanimously decided that there had been no racial discrimination against Mr Hust and that the dismissal of him was not unfair. Mr Hust appealed against that by the Notice of Appeal served on 16 March 1995, later amended with leave on 23 July 1995.The question is whether, when we examine the reasons, we can find any legal point that can be argued. A legal point is one that concerns the correct interpretation of the relevant legislation; in this case the Employment Protection (Consolidation) Act 1978 , which confers the right not to be unfairly dismissed and the Race Discrimination Act , which confers the right not to be treated less favourably than other persons in a similar position on grounds of race.A point of law may also arise from the application of the law to the facts and it may, in exceptional cases, arise from a Tribunal following an incorrect procedure, or arriving at a decision which no reasonable Tribunal could have reached. We would emphasise that it is not a point of law simply to point out that certain facts found by the Tribunal are incorrect and contrary to evidence given by the Applicant.Where there is a conflict of evidence the Tribunal has to make a decision about whose evidence to accept and which facts to find. There is no appeal against that, unless it can be shown that their factual findings are not based on any evidence at all, or were contradictory of uncontradicted evidence.So what did the Tribunal decide? They set out the complaints. They explained why they rejected an application by Mr Hust to add a late claim for unlawful deductions from his wages contrary to the Wages Act . By the time he had made that application the time limit had expired. They refused leave to amend to raise that claim.That left two claims, unfair dismissal and race discrimination. They set out the allegation and referred to a statement that he provided to the Tribunal, about the various places of employment and the occasions on which he claimed he had received less favourable treatment. He referred to complaints of bullying and harassment from Mr Kwai, his line Manager; of abuse from a Security Guard at the Poplar Sixth Form Centre; of abuse to him when he complained of poor workmanship by a contractor employed by South Essex Building Services; of abuse from cleaners and parents and also in respect of a disciplinary hearing, fixed for 15 January without foundation and which, he says, was a device to dismiss him from his job.The Tribunal set out the details of the basis of his complaint of unfair dismissal. There was no dispute that he had been dismissed. The issue was whether his dismissal was unfair. The Council's case was that he was dismissed after refusal to sign a new contract of employment following business reorganisation. Discrimination was denied.On racial discrimination it was denied that he was treated less favourably than others were or would have been treated on racial grounds.The Tribunal set out a detailed history of the facts, which we need not repeat, dating from his birth in Germany in 1944 and to the work he had done in England since his arrival here about 15 years ago, and more particularly, the work he had done while a school keeper with the Council. They dealt with the history of his employment at different schools within the London Borough of Tower Hamlets.The next crucial fact is that there was a reorganisation of the schoolkeeping work in schools. That led to a letter being sent on 16 December 1992, informing school keepers of the proposed changes to their contracts of employment. The letter stated that they were to be given contractual notice to terminate their current contract. A new contract would be offered incorporating new terms to start on the expiry of notice. He was given two weeks' notice and informed that his contract would end on 3 January. He was offered a revised contract to commence on 4 January.The dispute came to a head when Mr Hust would not agree to sign the new contract. His notice period expired. He was then dismissed. He was the only school keeper of 30 who would not agree to the new contract. The other 29 did agree and remained in the employment of the Council. He was given warnings about the consequences of not signing the contract as required. They found that he disobeyed instructions, as he wanted a disciplinary hearing, where he hoped to air all his grievances about the Borough's running of the neighbourhood.The Tribunal had to ask whether, in these circumstances, there was discrimination; whether he had been treated less favourably than others, comparing like with like. The Tribunal found that there had not been any discrimination. They referred to disciplinary proceedings arranged for 15 January 1993. They found that there had been a fair and reasonable investigation carried out before deciding to proceed and that there was evidence to support the allegation that Mr Hust was refusing to obey a reasonable instruction of a supervisor. They found that in comparable circumstances, any employee, whatever his race or nationality, would have been dealt with in the same way. They found he was not less favourably treated in that respect. They did not find that the disciplinary hearing was arranged without foundation, or as a device to dismiss him. They did not find that the investigation of the proceedings amounted to victimisation.They correctly directed themselves as to whether any of the treatment of Mr Hust was on racial grounds. They said that they had to look for an explanation as to why Mr Hust did not get the position of a deputy school keeper at one of the schools, Morpeth School.The Tribunal said that, if no explanation had been put forward, or if an inadequate or unsatisfactory explanation had been put forward, they would be prepared to infer less favourable treatment on racial grounds. It was not necessary for him to show that they were ill-intentioned or prejudiced, but, if there was some evidence of that, they could infer racial grounds for less favourable treatment.They examined the evidence and found that there was a satisfactory explanation as to why a Mr Taylor got the post of deputy school keeper in preference to Mr Hust. That is a finding of fact made by the Tribunal. They were entitled to conclude that there was no discrimination on the grounds of race.They considered the final matter, the refusal to sign the new contract. They dealt with two aspects of that; the unfair dismissal aspect and the discrimination aspect. On the unfair dismissal aspect, they said they were satisfied that the refusal to sign a new contract, on the termination of the previous one, was the reason for dismissal. They found that that was a substantial reason of a kind such as to justify dismissal from his position; that fell within Section 57(1)(b). They correctly moved to consider the position under Section 57(3) of the 1978 Act; that is, they had to look at the size and administrative resources of the Borough and they had to ask themselves whether the actions of the Borough in dismissing him fell within the range of response of a reasonable employer. They concluded that they did.They had consulted him about the changes on an individual basis as soon as an agreement had been reached with the unions. When he refused to sign the new contract, they found that the Borough really had no alternative, but to dismiss him. They referred again to the fact that, of 30 school keepers, he was the only one who had refused to sign. They said that it was not practicable to continue to employ him on different terms from the other school keepers. They said that, even if he had been allowed to consider his position up to the planned disciplinary hearing on 15 January, he still would not have signed. They had not excluded him from a job by appointing someone to the Morpeth School. They were satisfied that, in treating Mr Hust as they did, the Borough treated him in exactly the same way as they would have treated anyone else.In those circumstances, his dismissal was not unfair and, on the racial discrimination aspect, his dismissal was not less favourable treatment. Even if it was, the Borough had satisfied them that he was not dismissed as a result of his race or nationality, or as a result of any complaint he made alleging racial harassment.In that decision the Tribunal referred to the correct legislation, namely Section 57 of the Employment Protection (Consolidation) Act 1978 . They referred to the relevant provisions of the Race Relations Act and to the correct legal principles for determining whether there had been racial discrimination.We have to ask ourselves; is there anything legally wrong with this decision? Mr Hust has taken us helpfully through a paper which he has typed, explaining the grounds of his grievance. He concentrates in that paper on a number of points. One of his main points is that how could the Tribunal make up its mind on these disputes without having seen and listened to all his evidence and his witnesses?He says that his right to call his witnesses was taken away from him. He refers in that to a letter sent by the Tribunal on 13 September 1994, that referred to his application for witness orders, and to a list of 20 witnesses that he had set out in a letter of 17 March.It is pointed out in the letter that the Chairman said it was unnecessary to duplicate evidence and that the request for character witnesses from head teachers at various schools was onerous. She granted a witness order for four people, including Mr Ames and Mr Watson, who did in fact turn up to give evidence at the hearing.The letter also refers to the fact that the question of the termination of his employment and the matter of a new contract, was a matter that would be dealt with by the Tribunal, but that certain other matters, which Mr Hust had raised in his letters, fell outside the jurisdiction of the Tribunal. I refer to that letter because Mr Hust makes the point that the Industrial Tribunal Chairman appears to have made up her mind before the hearing of the case and that was not legally correct.He summarises his main grievance on page 7 of his written submission when he says this:
"How can a Judgment be made without hearing the Witnesses I had asked to be called and heard. This must be wrong in both your finding.
All the witnesses which I have asked the Tribunal to order to my Hearing, would have underlined my saying and the result of my case would have been in my favour and not in Tower Hamlets.By Law, I should have had the Witnesses which I called not witnesses chosen by the Industrial Tribunal. The Tribunal was not there when I was being threatened and Harassed but I was there and so were the witnesses which I asked to call.All my would be witnesses would be like the Witness Mr Burgess (Personal Co-Ordinator) told as in the Witness box, that he had been under strong pressure from Mr Jacotine, the Chief Executive from Bow-Neighbourhood to act against me. This and some more do I missing in the reserved Decision from the Tribunal and underlined that I have been in right and not Tower Hamlets!My witnesses would have been underlining and made it clear, that if I would have acted Racial against the people would have had this done to me, Tower Hamlets would have pursued me to hell and back!"He goes on to a separate point that the witnesses called by Tower Hamlets had been lying under oath.He also makes a complaint in several parts of this submission that he was prevented by developing the whole of his case for the Tribunal when the barrister representing Tower Hamlets stopped him. He said that was legally incorrect.There are a number of other detailed points in the written submission. But that is the main argument. It is the main point which is also made by Mr Hust in other documents, which he has placed before the Tribunal in support of his appeal.We have considered those arguments. We have reached the conclusion that, although, no doubt, Mr Hust feels aggrieved by the fact that his case was unsuccessful, there is no point of law in the appeal. Industrial Tribunal spent four days listening to all the evidence and the argument; they made clear findings of fact and, as far as we can see, they correctly interpreted and applied the law to those findings of fact.The position is that there is no legal error in the conclusion, or in the reasoning in support of it that Mr Hust was fairly dismissed, and that the London Borough of Tower Hamlets had not treated him less favourably on racial grounds.For those reasons, the appeal will be dismissed.