Curran v London Underground Ltd [1998] UKEAT 19_98_1505

EAT
Curran v London Underground Ltd
[1998] UKEAT 19_98_1505 · 1998-05-15
MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in Mr Curran's Notice of Appeal against a decision of an Industrial Tribunal held on 16th September 1997. The tribunal dismissed his complaints of unfair dismissal, race discrimination and unlawful deduction of wages. The reason for their decision are set out in a written document sent to the parties on 26th September 1997.The facts which the Industrial Tribunal found are these.The applicant, the appellant before us, Mr Curran, had been employed by London Underground Ltd until his employment was terminated. He had previously brought a case against them and the decision in that case had been promulgated by the Industrial Tribunal on 12th March 1996. The Industrial Tribunal said:
"1. ... It covers very much the same facts as are alleged by Mr Curran in this case, save that this case concerns the events after promulgation of that decision."
Following the promulgation of that decision, on 29th March 1996 the tribunal found as a fact that the business manager for London Underground, Mr Paget, wrote to the applicant encouraging him to become a permanent station supervisor. The applicant was of the view, despite the Industrial Tribunal's previous ruling, that he had the right to be treated as though he were already a permanent supervisor and accordingly he took no action on Mr Paget's letter. Despite being asked to apply for permanent established posts he absented himself from duty when the only permanent established post was refilled by the person for whom he had been deputising. He was initially sick but thereafter refused to attend work unless he was given the duties and the pay of a station supervisor as he contended he was. After much toing and froing, eventually he was dismissed.The tribunal said that there was not a word of evidence to support any inference that the treatment meted out to the applicant had anything to do with his race, he being of Irish ethnic origin. The tribunal said:
"7. ... It arose as stated in the previous decision from an earlier refusal by him to nominate for supervisor in the reorganisation.
8. This case was quite simple. The Applicant was found by the last Tribunal to be a station assistant, his acting up status had ceased in October 1996 and he had to return to station assistant. He could by signing a nomination form have been assured of rapid promotion. He did not do so, but instead he went absent. That of itself would have justified his dismissal, but London Underground did not take the steps of dismissing him. We therefore find that:(i) the case of race discrimination must fail, there being no act which persuaded us it was due to a difference in race at all.(ii) that the Applicant having openly refused to come to work made it very plain that he had no intention of doing so, and it was his act that ended the contract of employment and not that of the Respondent. There was therefore no dismissal, and no question of fairness or unfairness that can arise.(iii) Similarly because of that he did not have entitlement to pay which he had not received and we therefore dismiss this application for unlawful discrimination.(iv) We see nothing in his application to refer this matter to the European Court of Justice under Article 177. It is clear that the discrimination complained of is, if he could prove it, illegal under the Race Relations Act 1976, and therefore a question of statutory interpretation does not arise."In a lengthy skeleton argument accompanied by various documents, Mr Curran put forward his contentions to us as to why there was an error of law. Effectively as we understand his submissions, he was saying that there was a breach of Article 6 and 48 of the Treaty of Rome. His argument as we understand it is that because of the policy of London Underground to operate what he called "sitting tenants rights", that is that an employee who was at a particular station was entitled to remain there even if there was somebody more senior who might have taken that position, that he effectively was restricted in his ability as to where he was entitled to work. Freedom of movement for workers under Article 48, he said, had thereby been infringed.We are bound to say that we see no merit in that submission at all. Article 48 grants freedom of movement to workers across the borders of the various Member States. It is not an Article which is designed to provide employees with the opportunity of refusing or demanding mobility within England, or London, as the case might be. There may be circumstances in which a particular rule can be shown to have a discriminatory effect against migrant workers, but that is not the case here, and it seems to us obvious that the facts in this situation are to be distinguished from the facts in the Bosnan C415/93 case to which our attention was drawn.His second line of attack on the Industrial Tribunal's decision was that they had failed to grapple with the essence of his complaint which related to the way in which he was licensed.In our papers there is a licence showing him as 'Station Assistant'. It shows that that licence required to be revalidated at the beginning of 1996.As we understand it, Mr Curran contends that the licence which was produced was a false document because London Underground had failed to produce it on the earlier occasion, and in any event, what the case was about was whether he had been given a proper licence, bearing in mind his contention that he was already in position as a permanent station supervisor. He says that he should have been given a licence in that capacity and he was complaining of London Underground's refusal to give him a licence as a permanent station supervisor wrongly.Again, it seems to us that there is no merit in that submission which is not in any event a point of law.The nub of the issue between the parties is this. Mr Curran is convinced that he was already a permanent station supervisor and refused to apply for such a position since it would compromise the stand which he was taking. Secondly, he refused to have his licence revalidated as a station assistant because it was his view that his position was as station supervisor and it was revalidation on that basis that he was looking for.The third point he makes is that the Commission for Racial Equality having carried out an investigation, London Underground, gave certain assurances that in future they would fully comply with the statutory requirements of the Race Relations Act 1976 and the Code of Practice, but that the promotion of equality of opportunity of employment contained in the Code of Practice was ignored by the tribunal.It seems to us not to be a fair point. As we understand it the Industrial Tribunal regarded the dismissal as inevitable in the light of the obdurate attitude which Mr Curran was taking to his employment relationship. Nothing that was contained in the Race Relations Act or the Code of Practice had any relevance to the way in which he was treated by London Underground.He then makes a complaint about the Industrial Tribunal saying that the tribunal was biased and made a perverse decision.We understand that to be a contention which amounts to no more than a complaint that, because he disagrees with its conclusion, the tribunal must have been biased against him. We reject that complaint, as groundless.He also makes a reference to freemasonry. That seems to us to have no basis for any complaint. We do not understand that this was an issue raised by him before the Industrial Tribunal as to whether any of them were freemasons. We think that this a figment of his fertile imagination and we have to say that there is nothing in this point.In my judgment, having paid careful attention to the material with which we have been provided, this prospective appeal contains no arguable point of law and must therefore be dismissed. This is the view of the whole of the tribunal.