Nwokedi v United Churches Housing Association (Birmingham) [1998] UKEAT 349_98_0105

EAT

Nwokedi v United Churches Housing Association (Birmingham)

[1998] UKEAT 349_98_0105 · 1998-05-01

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which the applicant/appellant wishes to make against a decision of an Industrial Tribunal held at Birmingham over a ten day period between October 1996 and October 1997. The decision of the Industrial Tribunal runs to some 21 pages and was sent to the parties on 1st December 1997. By the tribunal unanimous decision they dismissed the applicant's complaint of sex discrimination which he had brought against his former employers the United Churches Housing Association (Birmingham) Ltd.

The applicant's allegation against the employers was that the respondent's management committee was controlled by "a cabal of females who had deliberately dismissed him because they wanted to replace him with a female director".

The Industrial Tribunal noted that this was one of the most bitter disputes it had been their misfortune to hear since it has caused considerable disruption and division between both staff and members of the Association.

The applicant had been represented by Counsel and in addition to his own evidence he had called as witnesses a member of the Management Committee and two former colleagues.

The essence of the Industrial Tribunal's decision was that the applicant was appointed as a full-time director subject to a probationary period of six months to be reviewed at the half-way stage at 13 weeks. The probationary review took place a little later than it should have been, namely on 5th April 1995, when, according to the management, various areas of concern were identified. The Industrial Tribunal were satisfied from various minutes of either the management committee or sub-committee, that there were genuine causes for concern which had been noticed early on by the committees and which had been expressed to the applicant from the outset. At the mid-point review meeting, he was offered support in the form of fortnightly meetings. On 23rd May 1995 the Human Resources Committee of the respondents met to consider the applicant's position, it being the expiry of his six month probationary period, and the decision of the committee was to extend the probationary period by three months. There was a programme of activities to be agreed with the applicant during the remainder of the period and he was told that his performance would then be finally assessed at the end of the extended probationary period. There were further meetings which took place on 27th July 1995, 17th August 1995 and 24th August 1995. The conclusion that was arrived at was that he should be dismissed.

By the stage of his dismissal he had not served the requisite period of employment to enable him to make a complaint of unfair dismissal. The way he presented his complaint, therefore, was and had to be on the basis of discrimination under the Sex Discrimination Act 1975 and the decision to dismiss could be reviewed by the Industrial Tribunal in that context.

The grounds of appeal are contained in a lengthy skeleton argument running to some 12 pages, but I can summarise the principal submissions which were made us and deal with them, although I would wish to indicate that the EAT has taken in to account all the material which has been presented to it in arriving at its conclusion.

The first complaint that is made is that effectively at paragraph 1.7 of the decision the Industrial Tribunal have simply dismissed as unreliable the whole of the applicant's evidence preferring to accept the evidence given on behalf of the employers, and that this conflicted with a statement of policy made by the President of the Employment Appeal Tribunal in a judgment in the case of Tchoula v Netto Food Stores (

EAT/1378/96

) .

It seems to us that that contention is simply not capable of being sustained having regard to the terms of the decision of the tribunal itself. In the first place, in paragraph 1.7 the reason why they were indicating in general terms their view about his evidence was stated namely "a tendency to exaggerate". At paragraph 2.21 it is plain that the Industrial Tribunal were rejecting evidence given by the applicant which conflicted with the documents which had been produced, and that was a perfectly legitimate ground on which they could reject his evidence. In paragraph 2.30 the tribunal take great pains to explain why it is that they have preferred the evidence of the respondents to that given by the applicant, as indeed, they did at paragraph 2.33 and 2.46. Their general approach to this case can only be described as balanced, having regard, in particular, to paragraphs 2.38 and 2.40. Therefore, the premise on which the submission was made was wholly unfounded in our judgment, and we reject the complaint that in some way the tribunal have erred in law in the way they have approached the veracity or respective reliability of the evidence.

The second main ground relates to the comparison exercise which was required to be carried out. It was said, firstly, that the Industrial Tribunal had failed properly or at all to take into account the employer's refusal to give details of salary increments which had been made to other members of staff.

Again, this assertion is simply not borne out by the terms of the decision. In paragraph 3.22 of their decision the Industrial Tribunal deal with this matter in particular.

Then it is said that the Industrial Tribunal failed to take into account a useful comparator, namely, a Sonia Golding; and alternatively, they wrongfully distinguished her case from his.

It seems to us that paragraph 3.11 of their decision negatives any suggestion that the Industrial Tribunal have ignored the question or have in any way arrived at a conclusion on that issue which was perverse. It seems to us that paragraph 3.24 of the decision shows a very balanced approach to this issue.

Thirdly on the comparator issue it was said that the tribunal failed properly to have regard to the evidence which was given on the applicant's behalf by his witnesses in the respects identified in the skeleton argument.

Again, we have to say that that is not a submission which we accept, bearing in mind the terms on which the Tribunal have dealt with this between paragraphs 3.27 to 3.31 inclusive.

Then it is said that the Industrial Tribunal failed to take into account what are described as evasive replies to the Sex Discrimination Act questionnaire which had been served. The first matter on which specific reliance is placed is an answer to the question as to whether the applicant's contract specified the period of time during which review meetings should take place, in other words, at what intervals they should take place. The answer that was given was:

"for the avoidance of any doubt, the Respondents do not accept that this 'information' was incorporated in the Applicant's contract of employment."

It seems to us that that answer could not sensibly be described as in any way evasive. Counsel in the skeleton argument says:

"What was the reason for not incorporating that particular information in the Applicant's contract is, it is submitted, an essential question which the Industrial Tribunal ought to have addressed when weighing the evidence for both sides."

We disagree. It seems to us obvious that a contract of employment would be unlikely to contain that sort of information. The fact that it is not specifically referred to in the decision itself, does not mean to say that the tribunal had not considered it in arriving at their overall conclusion.

It is said in the skeleton argument that the failure to deal with the request for details of employees' pay increases was evasive.

That is dealt with by the Industrial Tribunal at paragraph 3.22, as I have already indicated. It seems to us that the Industrial Tribunal were well able to take the view that there was no evasion as revealed by these answers. The employers were challenging the relevance of the question, and no adverse inference could be drawn from the answers.

Then it is said, as a separate head of complaint, that the Industrial Tribunal wrongly accepted that the decision to dismiss the applicant was made in good faith. It is said that on a close examination of the minutes it would appear that the decision to dismiss had been taken prior to the meeting at which it was supposed to have been considered.

It seems to us that that submission runs counter to the facts as they were found to be and as expressed in the tribunal's conclusions in paragraph 6. The fact that the Industrial Tribunal do not deal with this expressly is not, as it seems to us, any ground for suggesting that they have not had regard to that minute.

Under paragraph 5 of the skeleton argument "Errors and Misinterpretation of the Evidence", a number of specific points were made. We will not deal with them all in this judgment, suffice it to say that none of them amounts to any error of law. It contains the fallacy that because the Industrial Tribunal did not mention a vital piece of evidence they had ignored it. We point out that Industrial Tribunals cannot be expected to recite every piece of evidence in their decision. On one view, this decision was too long in any event. It would have become more burdensome for the parties had the Tribunal adopted a policy of referring to everything that might be regarded as relevant. They are criticised for having made light of the applicant's previous experience in the housing business. That seems to us not to be an error an law even if they made an error about it. It is argued that there was substantial evidence that clearly showed a conspiracy between the four female members of the committee, yet, the tribunal rejected that suggestion. It seems to us that that simply demonstrates a failure to understand the appellate process. The Industrial Tribunal were entitled, on the evidence to reject the conspiracy theory and the evidence of anybody who supported it.

Finally, it is said that there is new material which we should take account of. It is said that following the dismissal of the applicant certain other events have occurred which cast a different light on what actually was happening with this Housing Association.

An application was made to the Industrial Tribunal for a review of their decision on the basis of new evidence. That application was rejected by the Industrial Tribunal in a decision sent on 29th January 1998. There has been no appeal against that decision and the time for appealing has expired. In any event, it seems to us that none of the new material would be of assistance.

This case involved, essentially, a question as to why it was that the Housing Association decided that they should terminate the appellant's services. It appears that the reason why they did was not because of his gender, indeed the Committee which took the decision to dismiss had a number of men on it. But rather because of the view taken, rightly or wrongly, that his work was not up to the standard that they had expected, and possibly because of his manner and demeanour as it was perceived to be, by the Committee. That is not the same thing as saying that the applicant/appellant in this case is not capable of working in a competent manner, nor that his manner and demeanour will always put peoples backs up. But the fact is that the Industrial Tribunal had to weigh the respective contentions of the parties as to how his dismissal came about and after a 10 day hearing with all the evidence that they were presented with, it was well within their margin of appreciation to have decided that the complaints failed.

This prospective appeal is no more than a thinly disguised attempt to re-argue a case on the facts. The questions have been dressed up as points of law, but none of them impresses us, and we will dismiss this appeal as it raises no arguable point of law.