Rashid v Islington Council & Anor [1997] UKEAT 45_96_1601

EAT

Rashid v Islington Council & Anor

[1997] UKEAT 45_96_1601 · 1997-01-16

MR JUSTICE MORISON (PRESIDENT) : This is an appeal against a unanimous decision of an Industrial Tribunal held at London (North). The decision was sent to the parties on 30 November 1995. That decision followed a 14-day hearing. Both the employee and the employer were represented by Counsel before the Industrial Tribunal and some 2,390 pages of documentation was before the Tribunal together with oral evidence from a number of witnesses on both sides.

The nature of the complaints which have been made were firstly, race discrimination and secondly, unfair dismissal. It was said that the dismissal was also motivated by racial considerations and the Applicant (the Appellant here) had lodged two separate complaints, one during the course of his employment, and the other following his dismissal.

The appeal has come before us in these circumstances. The appeal was originally listed for a preliminary hearing before a division of the Employment Appeal Tribunal, presided over by His Honour Judge Bernard Hargrove QC. He ordered that the appeal be allowed to proceed to a full hearing and indicated to the Appellant, at that time, that the reason why the matter had been allowed to proceed to a full hearing effectively centred on the Tribunal's alleged failure to deal with an alleged failure of the Respondent Council to follow a competency procedure which it had adopted for its staff.

The matter then was listed for a full hearing. At this stage Mr Rashid, the Appellant, had the advantage of being represented by the North Islington Law Centre and shortly before it was due to be heard, an application was made that the appeal be taken out of the list because Mr Rashid's father was ill and he would have to travel out of the country in order to be with him at that time.

Of course, it should be noted that we are dealing with appeals on points of law and therefore, the personal attendance of an Appellant is never likely to be necessary, where he has the benefit of representation as he did at that time. But bearing in mind that this Tribunal wishes to be as generous as possible to those who participate in its procedures, the President agreed that the appeal should be taken out of the list, despite the fact that that meant considerable administrative inconvenience and, in a sense, expense. But it was made plain that the appeal would be re-listed for an early hearing date and a date was fixed for 16 January at a time which appeared to be convenient to all the parties. Despite that, on 31 December 1996 a letter was sent to the Employment Appeal Tribunal signed by Mr Rashid. That letter was received here on 2 January. In it Mr Rashid said:

"Regrettably, however, I want to inform you that I have to fly out of the U.K. in the next available flight to see my elderly parents who are unwell.

I, therefore, request you to kindly postpone my Appeal Hearing. I am planning to return to the U.K. by the end of January '97. ..."

Bearing in mind the inconvenience to everybody that had been caused by the earlier application, the Registrar indicated that that application for a further postponement would be refused and the matter was then put to me and I also took the view that as Mr Rashid's presence was not required and, as he had a representative, it would not be an application that should be acceded to.

It is to be noted, as will be seen in a moment, that the events to which this appeal relates all took place between 1990 and 1992 and that the dismissal occurred on 18 August 1992. It is obvious therefore, that it is unsatisfactory that an appeal should be launched in relation to matters which are so old and then postponed. For those reasons the Law Centre was told that there would be no adjournment.

On 9 January 1997 the Law Centre informed the Employment Appeal Tribunal that they wished to come off the record. Accordingly, this appeal has taken place in circumstances where the Appellant is neither here nor represented, but we have the benefit of the Notice of Appeal which has been filed in this case, although we do not have the benefit of a chronology or skeleton argument, both of which were required of the Appellant as part of the order made by His Honour Judge Bernard Hargrove QC. There is no explanation from the North Islington Law Centre as to why no skeleton argument had been prepared either before the first hearing or before this hearing today.

It seems to us that as these appeals are only on points of law it would have been perfectly possible for the Law Centre to have complied with the order which was made and a succinct statement of the grounds relied on could have been prepared. Nonetheless, what we have considered in this case, on the hearing of this appeal, is the substantive grounds of appeal raised by the Appellant. We should make it plain that parties are not required to attend here if they do not so wish. Their appeals will be heard by reference to any written material which they wish to provide us with and accordingly, we have set about an adjudication on this appeal with the assistance of the Notice of Appeal and assisted by Mr Cavanagh of Counsel, who has been instructed on behalf of the two Respondents to this appeal.

Against that background I now turn to the appeal itself. The short facts necessary for disposing of this appeal may be taken from the decision of the Industrial Tribunal which runs to some 47 paragraphs. Mr Rashid was appointed as the head of planning and transportation by the first Respondents, the Islington Council, and he started working for the Council on 22 May 1989. The person to whom Mr Rashid reported was a Mr Ian Crawley, who was named as the second Respondent.

Part of the Council's procedures included a competency procedure which has certain stages within it. Prior to the institution of the formal stages it is to be expected that there will be informal meetings between the individual and his manager. There are then formal stages involving the individual and the manager, as the first formal stage, and the second formal stage is to the Councillors of the Council, and the third stage is an appellate process with a differently constituted panel of members.

The dismissal took place on 18 August 1992. It was the Council's case that the reason why he was dismissed was because he was not performing his job in a competent manner and that they had so decided after following the competency procedure. In paragraph 2 of the decision the Industrial Tribunal correctly identified the issues which were then before them.

Paragraph 2 reads:

"It is important that we establish the issues that we have to determine, because Mr Slevin on behalf of the Applicant has presented a somewhat unfocused range of allegations. Mr Cavanagh for the Respondent quite rightly drew our attention to the case of Chapman v Simon (1994) IRLR 124. That is a court of appeal decision which confirms that an Industrial Tribunal is limited to dealing with those claims presented to it. Accordingly there are 3 complaints that we have to determine.

(A) Did either Respondent in the period up to September 1991 treat the Applicant unfairly because of his race or ethnic origin particularly in bringing the competency action.

(B) Was the Applicant dismissed because of his race or ethnic origin.

There are a number of other points which we had to determine in order to decide whether they showed an inference that the actions of either Respondent were based on racial grounds."

Mr Rashid believed that he was being discriminated against on the grounds of his race and his belief stemmed from a meeting which took place on 17 October 1990, as the Tribunal described in paragraph 15 of their decision.

At paragraph 33 the Industrial Tribunal indicated that both Counsel produced written skeleton arguments in their closing submissions and they said this:

"... Mr Slevin [Counsel for Mr Rashid] in his raised a fresh allegation which had not been made either in the applications themselves or in the hearing before us. He suggested that the Applicant's dismissal was victimisation because he had lodged a racial discrimination allegation. Apart from the fact that that was not part of the Applicant's complaints which we have to decide, it is in our view untenable in any event. The Applicant did not submit any grievance of any nature until he knew that the competency proceedings were very serious and were likely to lead to his dismissal. The ultimate dismissal clearly followed upon the competency action brought by Mr Crawley, which as it had started well before the grievance was submitted, could not be as a result of it."

In paragraphs 45 and 46 of their decision the Industrial Tribunal essentially give their conclusions on the applications before them:

"45 Having heard councillor Mann and having looked at the detail of the deliberations of the sub-committee we are in no doubt that this was an independent body, not influenced by Mr Crawley, which properly listened to the arguments both ways over a considerable period of time before deciding that they were satisfied there was evidence to show that Mr Rashid did not have the level of competency required. There was ample evidence on which they could make that decision. Once they had made their decision, in the absence of any alternative post to move Mr Rashid to, dismissal was the only realistic option. To pay him in lieu of notice does not in our view taint the dismissal process, but is simply practical recognition of the impossibility of Mr Rashid working his notice once that decision had been made both in terms of his relation with councillors, who would know the decision, and more particularly with Mr Crawley.

46 It is not up to us to decide whether Mr Rashid was or was not competent at his job. He was appointed from what was considered to be a weak short list and Mr Crawley may or may not be right in thinking that Mr Rashid was appointed above his level of capability. In our view the evidence does not show that the action taken against him was because of his race but was because of Mr Crawley's genuinely held belief of his lack of ability. We equally do not have to decide whether the sub-committee were right or wrong in accepting the view of Mr Crawley backed up by the evidence that he called and rejecting the evidence put forward by Mr Rashid. There was clearly evidence on which they could find as they did, in a procedure which gave Mr Rashid every reasonable opportunity to present his case. We are satisfied therefore that as the action against him was not racially biased and that the dismissal procedure was itself fair that the applications which we have to decide should be dismissed."

Accordingly, the Industrial Tribunal concluded that the Applicant was not unfairly dismissed and was not racially discriminated against as he had alleged in his applications.

In the Notice of Appeal there are essentially three categories of complaint. The first relates to a decision of an interlocutory nature which the Tribunal made in February 1993, that the complaints should be consolidated. It seems to us manifestly correct that the Industrial Tribunal should have taken the course which they did in February 1993 because, as turned out, it was likely that the evidence on the complaints would so overlap and interlink that it would not be sensible to have two separate hearings. Nonetheless, the Industrial Tribunal indicated in the February decision that formally speaking, although consolidated, the Tribunal would hear the first case first, followed by the second case. That was no more than indicating to the parties that both cases would be considered and they making clear the sequence in which that would occur, although it was recognised that the evidence which was called would be relevant to both complaints.

The first ground of appeal is:

"1. The Industrial Tribunal erred in law when it failed to adhere to the decision of the preliminary hearing where it was decided that the cases would be considered separately"

This is, we think, simply unsustainable. It was not decided that the cases would be considered separately. The order which was made on 25 February 1993 is perfectly clear as to what was contemplated and accordingly, the premise on which the point is made in paragraph 1 of the written Notice of Appeal is simply misconceived.

The second complaint relates to the case of victimisation. The Industrial Tribunal, it is said, erred in fact and in law when it found that the issue of victimisation did not have to be decided because that was not part of the Appellant's complaint. As will have been seen from paragraph 33 of the decision, to which I have referred, the case of victimisation was never mentioned by anybody during the course of the proceedings until Counsel's closing skeleton argument. At that stage it was manifestly not sensible for the Industrial Tribunal to allow such a contention to be advanced. It was far too late to make a new complaint. Mr Rashid was represented by Counsel. If Counsel had wished to amend the IT1 to allege victimisation at the outset of the proceedings then the Tribunal would, no doubt, have considered that application but, in our judgment, they were entirely right in the way in which they dealt with the matter in paragraph 33

It will also be noted that, in any event, the complaint of victimisation was inevitably bound to fail. The Industrial Tribunal were concerned to investigate the reasons why the Council invoked the competency procedure and why they concluded that he should be dismissed, and as they indicated in paragraph 2 of the decision, the question was, "Was the Council acting by reason of his race or ethnic origin, or did it genuinely believe that he was incompetent?".

In those circumstances, having concluded that the Council had a good reason to base their decisions on Mr Rashid's competence, it was inevitable that any complaint of victimisation would be bound to fail because the claim for victimisation could only succeed if, it could be established that the reason why the competency procedure was persisted in and he was dismissed, was because he had made a complaint of unlawful race discrimination. Since that was not the motivation of the Council, an allegation of victimisation would therefore have been bound to fail. We cannot improve on what the Industrial Tribunal themselves said in paragraph 33. We regard the second ground of appeal as hopeless in the circumstances.

The third ground of appeal makes a number of complaints which may be taken together. They amount to a general allegation, in effect, of perversity, although in some instances, for example ground 10, the allegation is difficult and goes much wider than to categorise. We should say, by way of general comment, that it seems to us that the decision of the Industrial Tribunal can properly be characterised as a model of its kind. It is clear, thorough and well put together. An allegation of perversity in these circumstances seems to us somewhat surprising.

There is one point which was mentioned by His Honour Judge Hargrove, with which we shall deal in particular. That relates to paragraph 5 of the Notice of Appeal where it is said that:

"5. The Industrial Tribunal erred in law when it found that there was a fair dismissal notwithstanding that the initial consultation provided by the HC Procedures ... had not been carried out by the Respondents. "

There are a number of reasons why we reject the point made in paragraph 5.

In the first place, this seems to us to be an example of a point not being made or emphasised in the Industrial Tribunal but then advanced on appeal. The appellant relies upon the apparent failure of the Industrial Tribunal to deal with the point in their Decision. Whilst some criticism was made of the procedure, the appellant's skeleton argument did not advance the criticism made in paragraph 5 of the Notice of Appeal. Industrial Tribunals will direct their attention in their Decision to the points which were made by the parties. It is unfair to criticise them for not dealing with a point which was not advanced, when the party was represented by counsel.

Second, from the facts found by the Industrial Tribunal in paragraphs 9 to 12 inclusive, it is clear that there were informal meetings between Mr Rashid and his manager before the competency procedure was invoked. On these findings it seems to us that the argument in paragraph 5 is unfounded in fact.

Third, in paragraph 17 of the Decision it is recorded that Mr Clark from NALGO, the Appellant's union representative who was called to give evidence on the Appellant's behalf, confirmed that he saw nothing wrong with the procedure as such. He identified the problem as a fundamental difference of view between the Manager and Mr Rashid as to the latter's competence. The complaint about the procedure would appear to be an afterthought.

Fourth, had there been a breach of procedure, in terms of a failure to have informal meetings prior to the institution of the formal procedure, we consider that such failure could not have had any impact on the result of the case. This is not a disciplinary procedure; and the dismissal occurred many months after the alleged failures to have informal meetings.

We can deal more shortly with the other grounds of appeal falling within the category of perversity. We remind ourselves that perversity appeals effectively require a finding by the Employment Appeal Tribunal that the Industrial Tribunal's decision is irrational. We do not have all the material which was before the Industrial Tribunal who heard 14 days of evidence. We have the notes of evidence of two witnesses, who cannot be described as of prime importance, and we have none of the 2,390 pages of documentation which the Tribunal considered. Mr Cavanagh told us that it was not a question of the documents being produced and then not referred to. Most, if not all the documentation in the files, was referred to during the course of the hearing. We, ourselves, have not been provided with any of that.

It seems to us that it would be a rash or bold Employment Appeal Tribunal which, without access to all the relevant evidence, was prepared to conclude that there was no evidence to justify the Industrial Tribunal's findings on any particular matter. We should also say that all of us have looked at the complaints which have been made, with care, and it seems to us that there is simply no merit whatever in any of them. Mr Cavanagh, in support of the Council's objection to this appeal, has produced a skeleton argument which deals with each of these grounds in turn, and we have to say that we agree with all his comments about each of them in turn.

We can say at ground 6 that it is clear that the Industrial Tribunal gave due consideration to the situation which precipitated the competency procedures. Indeed, the paragraphs to which I have referred plainly make that good.

As to ground 7, the Industrial Tribunal's conclusion was that the competency procedures led the Council genuinely to believe that there were misgivings about his competence. That is a finding of fact which manifestly they were entitled to arrive at on the evidence before them and grounds 8, 9 and 10 really are not grounds of appeal fit for this Employment Appeal Tribunal at all. They are comment and are attempts to re-open the matter, using the Notice of Appeal as some form of closing submission on behalf of the party before the Industrial Tribunal.

Accordingly, we have given careful consideration over a significant period of time to this appeal in the absence of Mr Rashid and we are firmly of the view that there is, and was, no merit in any of the points which are raised in this case.

We ourselves, had we been considering this matter at a preliminary hearing, would have taken the view that there was no arguable point of law raised which was fit for hearing before a full Tribunal. It seems to us that this appeal should be dismissed.