Chiata v London Borough Of Hackney [1998] UKEAT 249_98_1406

EAT

Chiata v London Borough Of Hackney

[1998] UKEAT 249_98_1406 · 1998-06-14

JUDGE J HULL QC :

This is an appeal to us by Mr Sylvanus Chiata from a decision of the Industrial Tribunal sitting at Stratford on 20 November under the Chairmanship of Mrs Martin. He complained to the Tribunal of breaches of contract and race discrimination by the London Borough of Hackney.

Mr Chiata was employed as an accounts tutor by Hackney. He is an expert, a professional man, he answered an advertisement for that post and he was first employed on or about 27 January 1997 on what was called a Computer Project. The essence, as we gather, although we do not have to go into the facts, was the education of students, who did not know a very great deal about computers, in the proper methods of using them, producing accounts, spreadsheets and matters of that sort.

He was employed, he tells us, upon the terms of a document which he has invited our attention to, at page 22 of our principal EAT bundle. It is a schedule of the sort that employers often keep and it is signed by him. It gives, so to speak, Heads of Agreement, or boxes containing particulars, it says in the middle that his employment is to be fixed term, non resident, part time, he is to be a tutor at a rate of £17,055 a year, there is to be a London weighting, which is stated, he is to work 21 hours, he is to work on Tuesdays, Wednesdays and Fridays and his start date is to be 27 January.

That is signed by Mr Eastop of the employers and dated 28 January 1997. Whether that was all that there was in the contract is not clear, Mr Chiata says that, in addition, he relies upon the terms of the advertisement which he had answered as providing terms of the contract.

That was, at any rate, what he says was the substance of his contract. He points to a document (at page 26) which he at the time never received dated 5 March 1997, which Mr Eastop, the Project Manager, says:

"With reference to the meeting on Wednesday 19 March, I have decided to recommend your summary dismissal of employment with... (Hackney). ..for the following reasons:"

Then various reasons are set out reflecting on his conduct and ability. That is a rather strange document, being dated 5 March and referring to a meeting on 19 March. There is another document in similar terms, if not identical terms, which was dated, I think, 19 March. What Mr Chiata has told us is that he was handed both documents and he invites our attention to that.

Shortly before his dismissal a document was handed to him which he was invited to sign. That is in the bundle which we understand was produced by the Respondents, The London Borough of Hackney, on his complaint. This document is at pages 24 to 38 of that bundle. It purports to be a statement of written particulars of terms of employment for staff employed on fixed term contract. It says:

"This document forms the principal statement of your offer of employment with the London Borough of Hackney. It complies with the new requirements resulting from the implementation of the Trade Union Reform and Employment Rights Act 1993."

Then it goes through various matters, it says:

"This contract is for a fixed term ending on 13 December,"

It goes through other matters, it says:

"Terms and conditions of employment," on page 27, " your terms and conditions of employment will be in accordance with collective agreements, negotiated from time to time..."

Then the names of various bodies are given. It also says:

"...[you are subject to] the rules and procedures and provisions made by the Council directly affecting other terms and conditions of your employment. "

Then, after dealing with a great many other matters, at page 31 it says:

"Notice Periods.

You agree that on the expiry of this fixed term contract any right to notice which may otherwise exist will be waived... as this contract of employment is to last for a specified term then this defined date will stand for notice. However, either side will be entitled to terminate the fixed term contract earlier than the expiry date specified in the contract by giving [........] months notice," that is what is says there.

It says at the end, on page 35:

"Additional conditions of employment are applicable as follows:

This contract is subject to termination by either party at one weeks notice on grounds of gross misconduct or capability.

Please complete and sign the acceptance form attached and return it to me within 5 days."

Turning over three more pages, there is the appointment acceptance slip. It says, after setting out the appointment, information technology tutor, and so on,

"I am pleased to accept the above post on the terms and conditions outlined in the statement of employment particulars received on 14 March 1997. I will be able to commence duty on 27 January 1997."

That is signed by Mr Chiata, he signed it on 17 March 1997.

There are two views about that from a lawyer's point of view. It might be saying that Mr Chiata was accepting, at any rate from that date, 17 March, the terms and conditions set out there as terms of his contract. Or, it might be saying:

"I recognise, by signing in the way that I do and putting in 'duty to commence on 27 January', I recognise that these always have been terms of my contract although I have only now signed the document which makes them terms of my contract."

It could be one or the other and there could certainly be room for argument about that.

Neither argument appears to be right to the point because, in fact, on 19 March the dismissal took place and one can see that at page 74, the second letter with the same terms, to which reference has been made.

Mr Chiata had been taking various steps in preparation for this situation which arose, and when he was dismissed he made the complaints which I have mentioned. The Industrial Tribunal sat, as I say, on 20 November, and on that occasion Mr Chiata had the advantage, as it normally would be, and a very great advantage, of being represented by a Solicitor, who of course had his authority, on the face of it, to conduct the proceedings. If a Solicitor or a Barrister is instructed then he has authority to conduct the proceedings as he thinks right subject, of course, to instructions; in the interests of his client.

The Industrial Tribunal heard the case and in their reasons, which start at page 15, after recording that the Applicant had given evidence and that the Respondents had called evidence they went on:

"2 The Applicant was initially employed on a fixed term contract with the Central Hackney Computer Project from 27 January 1997 to 16 December 1997... The Applicant was offered the post of accounts tutor for a period of 21 hours per week to teach spreadsheets, computerised accounts, and word processing, manual bookkeeping and accounts. The original advertisement also indicated that an understanding of NVQs was essential. There was a provision in the fixed term contract for the employers to be able to terminate it with a week's notice on the grounds of either capability or gross misconduct."

That was their finding as to the terms of the contract.

They then set out that the Applicant was a competent and well qualified teacher, but they say:

"3 ...But the issue was as to whether or not he was prepared to apply his knowledge and skills to respond to the demands of this course, and the management information required by his manager. The problems included an inability or unwillingness to provide a tabulated scheme of work, simulated real tasks within the context of the Practice Company developed by Ms Howell, or a working through of example question papers.

4 Several meetings were held", they say, and then "He was handed a letter on 19 March setting out the grounds for the termination of the contract, which all relate to his capability.

5 We therefore hold that the Respondents were entitled to terminate the contract and there is therefore no breach of contract. The Applicant is not entitled to the payment of any further sum of money.

6 The Applicant, having withdrawn his allegation of race discrimination, the Respondents applied to the Tribunal for their costs of that part of the proceedings..." They proceeded to award a rather small sum for costs in respect of that.

That was plainly a decision against Mr Chiata on the breach of contract point and it was recording that his complaint of racial discrimination had been withdrawn.

Mr Chiata appeals against that and he makes a number of points. First of all he complains that there is no evidence to support the Industrial Tribunal's finding that the fixed term contract commenced on 27 January and ended on 16 December. He makes a rather unimportant point about the actual date, and he says that "the statutory statement of terms does not constitute a written contract between the parties and they are not conclusive as terms of the contract." That is, of course, correct. They are strong evidence of the terms, unless the employee objects to them, but they are not the contract.

Then he says that mere acknowledgement of receipt does not turn the statement into a contract. Then he says, "my contract was contained in the documents," and I have referred to those.

That, if I may say so, is all very well. But it seems, on the face of it, not to be this case; because if one looks at what is written at page 38 of the Respondent's bundle, there, signed by Mr Chiata, is a quite plain contractual statement:

"I am pleased to accept the above post on the terms and conditions outlined in the statement of employment particulars received on 14 March."

He asserted before us that the Tribunal were wrong to treat this document as a contract. He says he never agreed to terms, and he signed it merely to acknowledge the receipt of the statutory terms.

That is manifestly wrong, if I may say so, on the terms of the contract. It is manifestly not a mere acknowledgement. The Tribunal could have been asked by the Solicitor to say that this was signed by mistake, that it ought to be rectified, that there had been trickery, anything of that sort if the Solicitor had felt that there was anything that could support that. One of the great advantages of having a Solicitor is that the Tribunal would have been bound to take notice of any such serious allegation if it were made because they would know that the Solicitor would not make such an allegation unless there was solid material evidence to support it. Nothing of that sort was said to them. They reached the conclusion that the contract was contained in that document and it seem to us, in the circumstances, that they cannot, as a matter of law, be criticised for doing that.

The next point was that Mr Chiata wished to raise before us a large number of matters in which he criticised the factual basis of the decision, namely that he had been dismissed for incapacity, as the Tribunal says, in the terms of the letter which was written to him. "He told us that, among other things, he had taken tape recordings of meetings between himself and representatives of his employers." He had a number of complaints to make.

Some of those matters were explained to the Industrial Tribunal. But so far as the tape recordings were concerned, Mr Chiata's Solicitor chose not to put those in or to ask the Tribunal to receive them or to look at transcripts. Mr Chiata says "that was because the Solicitor was not doing his job." But the fact was that at that time he was representing Mr Chiata and we have not, of course, heard what the Solicitor has to say about this. Mr Stewart might have thought of a number of very good reasons why he should not put those documents in front of the Industrial Tribunal. Every experienced advocate knows that not every piece of the evidence which he is given should be placed in front of a Tribunal. Whatever the reason was, whether it was good or bad, they were not put before the Tribunal and in our view, as an absolute rule of law, if evidence is in the hands of a party before the Tribunal where he is making his case, and he elects not to put it, whether by his Barrister or his Solicitor or by himself, he cannot then appeal to this Tribunal and put the matter before us. So we reject that.

The last complaint is the question of race discrimination. What the Applicant says about that in his Notice of Appeal is as follows:

"I gave evidence and in cross examination reaffirmed my allegation of race discrimination. I was not given a chance to prove my allegations of race discrimination. The Chairman asked my solicitor whether there was any evidence in support of my allegation of race discrimination. My solicitor replied that there was no evidence. The Chairman then adjourned the proceedings briefly telling my solicitor to consider withdrawing the allegation of race discrimination."

Mr Chiata says that is quite improper. We think that is was quite proper. If the Chairman was told by the advocate that there was no evidence to support an allegation then it was quite right for the Chairman, on behalf of the Tribunal, to ask the advocate whether he wished to proceed with that because, of course, if he does and there is no evidence, he is wasting a lot of time and money and everybody's efforts are being wasted.

Mr Chiata goes on:

"...My solicitor subjected me to duress and then claimed that he had my instruction to withdraw my claim. Before the solicitor made his oral withdrawal I attempted to tell him not to withdraw my allegation of race discrimination, but he would not listen to me."

Mr Chiata says that that is true, but he also criticises the Chairman, not his own Solicitor. He says the Chairman showed bias in asking this question. He says he should never have done that and he should not have accepted the Solicitor's saying that the racial discrimination allegation should be withdrawn.

The Industrial Tribunal was asked about this allegation, although, on the face of it, it is a criticism not of the Chairman at all but of the Solicitor, and what the Chairman says, having looking at his note:

"5. The applicant's evidence of race discrimination amounted to the following:-

Q. Why do you think they dismissed you?

A. I didn't see how they could criticise me as they didn't know anything about me."

So at that point, unfortunately for the advocate, Mr Chiata had not said anything about racial discrimination. Mr Chiata was then asked a thoroughly leading and objectionable question:

"Q. Do you think they discriminated against you because of your race? (Objection)"

There was indeed an objection to that, but Mr Chiata answered:

"A. Yes"

When he was cross-examined:

"Q. The complaints of race discrimination - where are they?"

The answer from Mr Chiata, according to the Chairman's note was:

"A. I didn't complain internally. I regarded myself as too good for the work I was doing. I therefore concluded there were ulterior motives."

So that was the situation. Going simply on what the Chairman has told us and what Mr Chiata tells us himself, in his Notice of Appeal, it is perfectly apparent to us that there is nothing in this complaint at all. It was not a case of the Chairman, or the Tribunal, behaving oppressively, and saying:

"you realise you cannot succeed here, we are not going to listen to any more of this," or anything of that sort. It was a case of the Chairman saying to the professionally qualified representative, "where is the evidence? Is there any evidence?" and the representative saying: "no, there is not."

If there was no evidence then the Tribunal was not entitled to go on and was rightly asked not to go on. It is a hundred miles away from those cases where the Industrial Tribunal hears that an employer has treated, say, black people and white people differently, asks for an explanation, gets no explanation or a thoroughly unsatisfactory explanation, and then, of course, has plenty of evidence from which it can infer that there has been discrimination on the grounds of race. It is a hundred miles away from the case where the employer may have said (one hopes that it never is said) "we are treating you like this because you are a Nigerian," or whatever it may be.

There was no evidence. The Solicitor said there was no evidence. It appeared to the Chairman that there was no evidence and to the Tribunal that there was no evidence. It was in those circumstances that it was withdrawn.

We cannot, it seems to us, entertain as a matter of law an appeal against what happened there or say that the Tribunal should have continued. On the contrary, it appears to us the Tribunal was quite right not to continue having heard that there was no evidence and the Chairman was most certainly not guilty of any bias in doing that.

We are not, as I have said, a Tribunal of fact. We cannot enquire into evidence, as I have pointed out to Mr Chiata, we can enquire only into matters of law. It may very well be, from what we have heard, that Mr Chiata has perfectly good complaints which he is entitled to make against his Solicitor. That is not a matter for us at all.

It may very well be that Mr Chiata may not have been treated properly by the London Borough of Hackney. That is entirely a matter between him and the Borough. So far as breaches of contract are concerned, so far as race discrimination is concerned, his case on that turned out not to be maintainable, or at any rate not to be one which the Tribunal felt they could give effect to. He has therefore appealed to us. We have to look and see if there is any point of law. We have tried hard with, of course, Mr Chiata's assistance for which we are grateful, but we cannot find any point of law. We therefore have to say that the appeal must be dismissed at this stage instead of going to a full hearing.