Amin v G E MacPherson Ltd [1998] UKEAT 480_98_0107

EAT

Amin v G E MacPherson Ltd

[1998] UKEAT 480_98_0107 · 1998-07-01

JUDGE J HULL QC :

This is an appeal to us by Mr Fouad Mohammed Amin, an electronics engineer in his middle years. He was first employed, by a firm called Geoffrey Macpherson Ltd in Nottingham, on 25 April 1988 engaged, as we understand, in specialist work in electronics and his employment continued until 26 July 1996, which was his last day at work, and then his employment ended on 16 August 1996. He applied to the Industrial Tribunal which sat to hear the case on 2 April 1997. He complained of race discrimination - that complaint was not persisted in - unfair dismissal and failure to supply written reasons for his dismissal, and he wanted compensation in respect of those matters.

The Tribunal was chaired, in April 1997, by Mr Sneath with two industrial members and it is important to record that Mr Amin was represented by counsel. It appears that in addition to the withdrawal of the complaint of race discrimination counsel said nothing in pursuit of the complaint of failure to give written reasons. We turn now to the Industrial Tribunal's decision, against which the appeal is made. Before doing that I would record that on the hearing of this appeal before us Mr Amin had the great advantage of being represented by Miss Eady who prepared an amended Grounds of Appeal, which she would wish to put forward on behalf of Mr Amin, and addressed us on his behalf, for which we are grateful indeed.

Miss Eady puts forward two grounds. First of all she says, in her draft Amended Grounds of Appeal, that the Industrial Tribunal erred in law in that:

"In respect of the Appellant's claim for compensation for the Respondent's unreasonable failure to provide written reasons... the Industrial Tribunal failed to properly consider the complaint and/or.. give adequate reasons for its failure to uphold [it]."

She complains that the Chairman then, when the Tribunal had not decided anything, said that in his view the proper particulars had been given and she rightly says that the Chairman by himself could not provide grounds for a decision unless of course they were agreed by the members, and the Chairman himself acknowledges that that was not so. She says that he reached a perverse decision in saying that a letter of 16 August set out those reasons when it was apparent that the Respondent itself did not consider this was the case and they should have found, therefore, in favour of the Applicant on this matter and awarded him two weeks pay in accordance with Section 93 of the Employment Rights Act.

We have considered that. What appears to have happened is that the Applicant wrote asking for the reasons and a letter was drafted, drafted , at once, giving comprehensive reasons why the employers said that he had been dismissed. When we heard that it seemed that the suggested ground of appeal could not be supported as a serious ground of appeal: it was manifestly wrong. But then, fortunately, Miss Eady discovered, after looking very carefully at the documents that that letter, though drafted, was not sent until much later and if that is what is relied on then it cannot be said that that was a compliance with the Statute, which requires, under Section 92, the reasons to be given within 14 days of the Application for the Reasons.

With regard to the Chairman's view, that may or may not be supported by the industrial members if they were to consider it.

It appears to us, therefore, that this is a fairly arguable ground. It may well be that the Chairman was entirely right in his view and that the members would have agreed with him but it does appear to us that it is fairly arguable, on this relatively small part of the case, that the Tribunal erred in the way in which they dealt with that matter and therefore we ought to give leave for the appeal to proceed on that basis.

Then Miss Eady says, and this is a much more substantial part of the case:

"6.2 In respect of the Appellant's complaint of unfair dismissal: (a) The Industrial Tribunal erred in law in failing to properly identify the reason for the Appellant's dismissal and/or to do so by reference to the reasons set out at section 98(1) and (2) of the Employment Rights Act 1996. (b) They failed to give adequate reasons in this regard.

and she says that:

(c)...the Industrial Tribunal's decision is unsafe in respect of its conclusions as to the Appellant's unfair dismissal complaint and should be overturned."

So we have to look at this decision, which was reached, as I say, after the Industrial Tribunal had had the advantage of being attended by the Applicant and by his counsel. I am not going to read the whole decision. They record that the allegation of race discrimination has been withdrawn and they record various serious matters; they really fall into two classes. The first is that Mr Amin has suffered quite substantially from ill-health which has necessitated his absence from work, or which, at any rate (I do not think it has been looked into) it is to be assumed is the reason why he has been absent from work for very substantial periods. Secondly they record that, so far as the employers were concerned, they had received repeated and obsessive complaints from Mr Amin to the effect that he was being treated in an unfair way in the matter of his salary. There was another gentleman who was also a professional engineer and he worked for the Respondents and it was said by the Applicant that he had been unfairly treated that he was paid less than that other gentleman who had come to the firm later than he had. The Tribunal deal with these matters at some length.

They refer to earlier proceedings which Mr Amin had brought against the employers in front of the Industrial Tribunal, and they refer to that decision and make it, in effect, part of their account and understanding of the matter. Then they go on to refer to this other gentleman, with whom the Applicant compared himself on the basis that they were both professional men, that he should be paid the same as this other man, but this other man, whose name was Brown, was a supervisor and he was earning, say the Tribunal, £19,500 per year, whereas the Applicant was on £13,560. They record that although, after the first set of proceedings, the Applicant had evidently "shaken hands", as they put it, with these antagonists at the conclusion of those proceedings, he was not reconciled with the Respondents and soon resurrected the complaint relating to difference in treatment between him and Peter Brown.

There was a meeting, they say, on 28 November 1995, and:

"At that meeting the Applicant said that unless the Respondent gave him a 35% pay rise, he would in effect work slowly and just do easy jobs. He was warned of the consequences, if he pursued that course of action."

Then, Mr Amin:

"...accused the Respondent's witnesses of having lied at the earlier hearing. Following that meeting Mr Bowden" the manager "sent a memorandum to the Applicant, in which he made it clear that the [employer] could not answer his salary aspirations. He added that, unless [Mr Amin] could accept that, the parties would continue to have difficulties."

Then Mr Amin retorted that he was never fairly listened to. He made various complaints about the way he was treated. He made allegations of twisting stories around and he went on to say, to his employers:

"I would not trust any of you any more. I do wish you would all stop conning me and undermining my position and intelligence and change your attitude towards me. It would be much appreciated.

I regret to say that I stand by what I say about you people giving false and incorrect information and being personal, and blaspheming under oath. You took full advantage because I was inexperienced and was entirely on my own..."

There he is referring, of course, to the earlier proceedings.

Mr Bowden responded, he said the employers did not have the money for a pay raise. He said that a decision had been reached by the Tribunal and an Application for Review had been turned down and asked Mr Amin, "please to concentrate on his job." He said:

"I cannot think that any good will be achieved by continuing to raise an issue which has already been dealt with at length."

In response, Mr Amin accused his employers of betraying him, giving his hard-earned money to others and accusing them of being "tossers", he said:

"You give my hard-earned money to others, who don't deserve it, who are tossers, and some racialists and begrudgers...it is outrageous."

He contended that the employers owed him thousands of pounds and again threatened, so to speak, only to work to rule; he would work the chargeable hours and no more, and he would only work for two days.

Then ACAS officials were introduced into the dispute and there were more comings and goings, more letters and, unhappily, these matters did not seem to resolve it. According to the Tribunal - and I would just say in parenthesis here, for the benefit of Mr Amin: the Tribunal is the sole judge of fact. They hear the evidence. We ourselves are not allowed to go into the facts unless it is alleged that there is some error of law. - The Tribunal said that Mr Amin, in spite of all this activity, was unable to bury the past. He felt he was being "discriminated against". He told his employers that he was "being treated like a slave", and that he repeated. He said the stress was making him ill and indeed he did, in July, take more time off. The Tribunal record that a meeting was held on 16 July 1996, when there was a meeting with a Mr Crosdale of the Nottingham & District Racial Equality Council. After the discussion, Mr Crosdale asked the employers, would they "be prepared to treat the Applicant as if he was redundant?" He could not work with Mr Brown, whom I have referred to, because of the salary differential between them. So the employers did propose, in response to that, coming from Mr Crosdale who was trying to make peace, a redundancy payment and they proposed to dismiss the Applicant with a payment in lieu of notice. But Mr Crosdale, on instructions of course, had to say that the Applicant was not happy with that offer.

Indeed, two days later Mr Amin himself met Mr Bowden in the workplace and gave the same message. "At the time Applicant appeared to be in good health, but a short while later, left the premises saying that he did not feel well."

At that point Mr Bowden lost his patience with the Applicant and wrote a letter on 26 July saying:

"The situation regarding your working here has become intolerable."

Referring to the meeting with Mr Crosdale and saying, because by now the Applicant was away:

"Unless you return to work within the next seven days and work as the company requires you to do, you will render yourself liable to instant dismissal. You will appreciate the current situation is causing both stress to yourself and continued disruption to the company in view of your frequent absences and cannot be tolerated any further."

Well, Mr Amin wrote to the managing director, and said:

"I have been provoked, pressurised and compelled beyond tolerance to accept Mr Roger Bowden's unequal and unfair pay and treatment, which I cannot and will not accept. I am being forced to leave the company.

. ..The management are constantly threatening me with dismissal and just want to get rid of me...."

And Mr Crosdale wrote on his behalf, rejecting, as I said, the offer of redundancy.

Then a letter was sent on 16 August by Mr Bowden, who had discussed the matter further with Mr Crosdale who, after these ultimata, said he had been unable to get in contact again with Mr Amin. Then there was a letter which was, so to speak, out of place. Sheila Gauld, another of the Respondents' employees, who had been dealing with the paperwork wrote to the Applicant, saying:

"...I hope that you are feeling better and note that you are expecting to return on 19 August."

At that time Mrs Gauld was unaware that Mr Bowden was about to dismiss the Applicant. By then, of course, Mr Bowden had written the letter which I have referred to, dismissing the Applicant.

The Tribunal say:

"Against that factual background, we have to decide first what was the reason for the dismissal. We are satisfied that it related to the Applicant's increasingly obsessive conduct in the period between November 1995 and August 1996. That conduct has a disruptive effect upon the Respondent's undertaking in the period between 17 November and 20 February and again between 20 May and 16 August. Part of the reason for the dismissal was the rejection by the Applicant of what the Respondent conceived as a reasonable solution to the impasse which had arisen between the parties."

They go on to say:

"...it is said that the letter of dismissal came out of blue. It is right that there was no formal Disciplinary Hearing before dismissal."

So they have those matters in mind. They say the circumstances are very unusual and they find that the Respondent, the employers, were entitled to believe in the insolubility of this dispute. They thought that any disciplinary hearing would have been utterly useless and futile and the Tribunal then, therefore, found that the dismissal was fair; that the employer had acted reasonably.

Now what Miss Eady says about that is that here (in paragraph 17) the Industrial Tribunal were failing to make clear what was the reason for the dismissal. She invited our attention to the employers' Notice of Appearance. She says, "this is not sufficiently precise." But in our view, having regard to the thoroughness of the inquiry made by the Industrial Tribunal, it was sufficiently precise and told the parties exactly why the Tribunal were deciding as they were. Miss Eady points to the last sentence (paragraph 17):

"Part of the reason for the dismissal was the rejection by the Applicant of what the Respondent conceived as a reasonable solution to the impasse..."

That, we think, is ordinary layman's language for saying, "if the reasonable solution had been accepted then the dismissal would not have taken place." If you like to use the old, logical Latin, it was a "causa sine qua non" but not the causa causans; not the effective cause. It seems quite clear that the Tribunal are finding not that it was the illness that had caused the dismissal, except in so far as it affected Mr Amin's behaviour, but it was his increasingly obsessive conduct which had had a disruptive effect on the Respondents' undertaking and we think that, in its context and reading it fairly, without being, so to speak, concerned to pick up every tiny inconsistency or matters of that sort, the fair reading of paragraph 17 is that the Tribunal are stating quite clearly what the cause of the dismissal was, and finding thereafter quite clearly that it was justified. We think they were entitled to do so.

Mr Amin himself addressed us, very shortly, after Miss Eady had finished doing so and he invited attention to the letter from Mrs Gauld (which I have already referred to) and he says, quite rightly, that it is inconsistent with the employers' case that they were in fact dismissing him when she was welcoming him and hoping that he would shortly return. But Mrs Gauld was dealing with his sickness absence, she was not dealing with these other matters which had arisen and in particular the obsessive behaviour that the Industrial Tribunal were dealing with, and that we are dealing with.

It appears to us that that contention, although if Mr Amin had been seriously misled and had acted on that letter it might have availed him, in its context it is merely, so to speak, an unhappy event which should not have happened but does not affect the justice and fairness of what has taken place.

Mr Amin has added a great many grounds, really contentions, in support of his case in his long Notice of Appeal and a very long letter which he has written to us with other correspondence from earlier. We have read all the documents in the case and none of us are able to discover in any of these matters, apart from the first ground raised by Miss Eady, anything which can avail the Applicant in the sense that it is a fairly arguable point of law which could properly be argued on appeal. So in those circumstances we give leave for this Appeal to proceed solely on the ground identified in paragraph 6(1) of the Amended Grounds of Appeal. We give leave to amend the Notice of Appeal to aver that Ground and we give leave for the Appeal to proceed on that ground only. For the rest we dismiss the Appeal.

Now, Mr Amin also asks us to consider the earlier Industrial Tribunal Hearing and to give him leave to appeal, very seriously out of time, in respect of that. That was a decision of an Industrial Tribunal under the Chairmanship of Mr Baylis, the Tribunal sat on 17 November 1995 and they sent their decision to the parties on 28 November 1995. Mr Amin had 42 days to appeal to the Employment Appeal Tribunal after that but he did not. He would have therefore have had to appeal by the beginning of 1996; in fact, he sought an extension of time for leave to appeal by a letter dated 6 March 1998, more than two years out of time. That Application, in accordance with our rules, came before our Registrar who is the Officer of this Tribunal who is empowered by our Rules to deal with all these interlocutory matters and she ordered, on 1 April, that it should be refused. If Mr Amin had any grounds for appealing against that refusal then he would be entitled, under our Rules, within five days to appeal. Not to a Tribunal constituted as we are now, of a Chairman and two members, but to one of the Judges of this Tribunal. He did not apply and has not applied to appeal to one of the Judges of this Tribunal and we ourselves have no right to hear such an application. We have heard absolutely nothing make us to think that such an application could possibly be supported or that our Registrar could have made any order other than the one that she did make, but suffice it to say that we are quite satisfied that we cannot do or say anything to help Mr Amin over that matter for the short reason that we have no jurisdiction to do so.

So the Appeal will be allowed to proceed on the very limited basis which we have mentioned. As the sum at stake is at most two weeks pay and as, of course, it may very well be that the Respondents have an excellent answer to that matter, we cannot say, we do not know, what the Respondents are going to say about that matter. We do not know whether even at this late stage the parties could agree to have the matter referred back and ask the Chairman by consent, or the Tribunal by consent, to review their decision. All these are matters for the parties and not for us. All we can say is that in view of the relatively small amount, and the relatively small question of principle which arises here, that it would be very good to hear that the parties had been able to compromise their differences over the failure to give particulars and if they can do so, of course, there will be a great saving in costs, time and trouble for Mr Amin as well as the employers, but that is not for us to say any more about. So we give leave to appeal to the extent which I have indicated.