Obasa v London Borough Of Islington [1996] UKEAT 784_96_0912

EAT
Obasa v London Borough Of Islington
[1996] UKEAT 784_96_0912 · 1996-12-09

JUDGE D M LEVY QC :

Mrs Obasa has sent to this Court a Notice of Appeal dated 27 June 1996, on which she raises a number of points which she wishes to make on an appeal from a decision of an Industrial Tribunal held at London (North) on 21 May 1996. That Industrial Tribunal heard evidence on 8, 9, 10 and 13 May on complaints of Mrs Obasa that the Respondent, the London Borough of Islington, had unlawfully discriminated against her on racial grounds. The Tribunal found that they had not done so and they had not victimised her.The Decision goes to some eight closely worded pages and in one or two places we have had, in the course of hearing the application of Mrs Obasa, gone to the base documents which were considered by the Industrial Tribunal.In every ex-parte hearing, we are always anxious to see whether there is a point of law to go forward. Only if we are satisfied that there is not, is an appeal ever dismissed at this stage. All of us have anxiously scoured the papers provided to us to see whether there is a point to go forward.Before going into the grounds of appeal, we would note that an application was made by Mrs Obasa for the Industrial Tribunal to review its decision. That application is made in a letter of some pages in length dated 4 May 1996. The Industrial Tribunal rejected that decision by letter sent out on 3 July 1996 stating as their reasons:
"1 The letter dated 11 September 1995 and sent by UNISON to the Applicant is not new evidence and was available to the Applicant at the time of the hearing.
2. Notwithstanding that the Respondent has chosen to appeal the decision of the Tribunal which found in favour of the Applicant thus leaving her in dire financial straits, the interests of justice do not in my view demand a review of the Decision [reminding her of her rights to appeal to EAT] made on 13 May 1996."We should say that after we had heard Mrs Obasa's submissions for some 30 minutes that we adjourned the hearing of this appeal, as we were given to understand that the services of ELAAS could be offered to Mrs Obasa, so that we could better follow the case which she wished to make on her application, to assist her. After a consultation with ELAAS, we understand that Mrs Obasa rejected their offer, we have therefore not had the assistance which we are sure that a representative of ELAAS would have given us on the application.We turn to the Notice of Appeal. We have considered both the written documentation and the oral submissions made by Mrs Obasa on each of the grounds.The first ground is:
"A. Whether the finding of the Industrial Tribunal regarding the appellant as perverse and whether a Tribunal could reasonably reach the decision it did."
We have carefully read the grounds of the decision and the supporting documents to which Mrs Obasa has referred us in the course of the hearing. Each of us have come to the conclusion that the decision reached by the Tribunal, on the high test which we have to apply before it can be found to be perverse, was not perverse.The second ground of appeal is:

"B. Whether the finding is inconsistent with the originating application."

In the sense that the originating application asked for a finding that the Appellant wasracially discriminated against and victimised, of course a decision which does not so find is inconsistent, but the job of the Industrial Tribunal was to see if the application was well-founded. They found it was not. Nothing turns on this ground of appeal.Ground C reads as follows::
"C. Whether the findings on the issue of transfer constitute a second decision on matters heard and decision given by another Tribunal panel on the 20th December 1994."
The Tribunal was looking into the matters raised before it on the application of Mrs Obasa before it, as to whether there was any racial discrimination or victimisation of her. We understand she had made earlier application to an Industrial Tribunal and that some of the evidence given before the present one overlapped with some of the evidence heard by other Tribunals. We are satisfied that the decision of the Industrial Tribunal which is the subject of this appeal was determined on the evidence before it at the hearing before it.Ground D reads as follows::
"D. Whether the finding is inconsistent with documentary evidence and evidence heard."
That challenges findings of fact. From the material presented to us, it is clear that there was evidence on which the Industrial Tribunal could reach the decision it did. This ground therefore cannot succeed.Ground E reads:
"E. Whether sufficient finding in respect of the evidence before the Tribunal have been made to support the decision of the Tribunal in respect of the appellant."
It is very difficult for an Industrial Tribunal in Extended Reasons to reach the right balance in setting out all findings of issues raised before it rather than making sufficient findings so an Appeal Tribunal can see why it has reached its decision. Often the loser would wish for the Extended Reasons to be more extended than they are, but we have to bear in mind that the Industrial Tribunal is a hard-working Tribunal and a decision has to set out sufficient facts, but "not cross every t and cross every i ." We, like the Appellant, might have been helped if there had been more reasons here, but there is enough in this decision for us to follow what the sequence of events and complaints are and we therefore are satisfied that sufficient findings are made.Ground F reads as follows:
"F. On point of law, whether the Tribunal erred in their finding that the qualification bar is not unlawful, when according to the Race Relations Act 1976, it is a discriminatory practice under 6.3 Section 28."
That is a reference to section 28 of the Race Relations Act 1976 . We note that proceedings in respect of a contravention of this section can be brought only by the Commission of Racial Equality in accordance with sections 58 to 62 - section 28(3). The matter was not raised by the Commission and it is therefore not open to Mrs Obasa..Whether the Tribunal erred in not finding constructive dismissal is ground G in the Notice of Appeal. On this we have turned to the supplementary bundle at page 94 which contains a long letter sent by Mrs Obasa to the Industrial Tribunal dated 11 May 1994. The final paragraph, starting on page 96 of the bundle, of the letter reads:
"Overall Julia, due to Islington's refusal to sort out my salary and mainly because of my difficulties in arranging for child care for my children, I am writing according to Islington Council's Maternity and Parenthood Scheme policy, to resign from my post until my son Daniel's fifth birthday on 6 October 1995 as is my entitlement.
Please can you process this for me.

Thank you."

With that letter in front of them, in our judgment the Tribunal did not err in refusing to find that there was a constructive dismiss. There was sufficient evidence before it to reach the conclusion which it did.Grounds H and I of the Notice of Appeal read as follows:
"H. Whether the Tribunal erred in refusing appellant witnesses and statements to be heard.

I. Whether the Tribunal erred in refusing time to prepare final submission."

These are grounds which have given us cause to pause, but we observe that one reason for our pausing is that there is no present evidence to suggest to us that the Tribunal did refuse to hear witnesses whom Mrs Obasa wished to call, or refused to admit statements which she wanted to introduce. There is no evidence at all before us that the Tribunal refused her time to prepare her final submission.If allegations of bias or misconduct by an Industrial Tribunal are to be allowed to go forward they have to be supported by evidence in the way of affidavits. We would have paused to wonder whether we should adjourn this application to give Mrs Obasa the opportunity to put before an Employment Appeal Tribunal some evidence which might support these grounds. If that course had been taken, we would have had to take steps for the ex parte application to be re-heard in full or at least on this aspect of the appeal. Of course there could not be a further ex-parte hearing until the evidence on which Mrs Obasa intended to rely was committed to affidavit and submitted through this Tribunal to the Industrial Tribunal for comment by the Chairman, and if necessary those who sat with him. We have decided, however, that Mrs Obasa has had ample opportunity to obtain legal advice and indeed, we see from the papers that she has been obtaining legal advice. We are satisfied that if there was anything of consequence in either of these grounds, affidavit evidence would have been before us today. Without such evidence, an appeal alleging misconduct cannot go forward and cannot succeed. We do not think it appropriate to allow this ground of appeal, unsubstantial as it presently is, to go forward.Finally, paragraph J reads:
"J. Whether the Tribunal erred in finding the appellant action constituted an industrial action."
That refers to a passage in the Extended Reasons of the Industrial Decision at paragraph 7 on page 12. The passage in question reads:
"7 ... We found no discrimination in the Applicant being mentioned in the note about the overspend but even so in respect of that allegation the Applicant is unable to show any detriment. There was no evidence against Ms Lloyd and Ms Utka. The latter gave evidence and we were impressed by what she had to say. On the suspension the Applicant was taking industrial action and raised a serious doubt as to whether she could be relied upon to act in the Respondent's and the patients' interests in a crisis. Mr Huswit thought she was disobeying a lawful request and was not unreasonable in taking that view. The Respondent made a number of offers which were all rejected. The Applicant was not short of advisers. The solicitors acted not only on the negotiations but also in attempting to test the appropriateness of her qualifications with no greater success than the Respondent. ..."
The mention made in this extract of the Applicant taking industrial action we take to refer to the evidence which Ms Utka was giving. We find what this is about by referring to page 41 of the supplementary bundle. There we find a letter from the Council dated 3 March 1994, when Mr Huswit, one of the gentlemen referred to in the passage, writes to Mrs Obasa:
"I refer to our meeting on Wednesday 2nd March ... concerning your duties in the post of Assistant Superintendent. You informed me that you were not willing to undertake all the duties on your job description, and wished to be provided with a statement of the duties the Department considers you are not qualified for.
I am writing to confirm that your action appears to involve serious misconduct and you are being suspended from duty with a full contractual pay pending completion of an investigation. ..."It seems to us that the passage which we have read means that Mr Huswit and Ms Utka considered that Mrs Obasa was taking industrial action by withdrawing her labour and that action raised a serious doubt as to whether she could be relied upon to act in the Council's and patients' interests in a crisis.Thus read, it is not suggested that the Tribunal found that the Applicant was taking industrial action, but her actions in the context were such that an employer was entitled so to regard it.In those circumstances, it seems to us that nothing turns on this ground of appeal.We have listened to all that Mrs Obasa has said to us in her courteous oral arguments. We have found nothing in the further matters which she has said there, and we have found nothing in the Notice of Appeal, or in the voluminous bundles of papers which were put before us, to think that this appeal has any prospect of success.We obviously understand Mrs Obasa's concern that the appeal should be dismissed at this stage, but none of us consider any of the grounds put forward by Mrs Obasa have any chance of success.In the light of our duties not to let hopeless appeals go forward, we must dismiss this appeal at this stage.