MR F CASTEL v DILLONS THE BOOKSTORE [1999] UKEAT 272_99_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 272_99_1706Case No Appeal No. EAT/272/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F CASTELAPPELLANTDILLONS THE BOOKSTORERESPONDENT
Before
His Honour Judge J Altman Mrs R ChapmanLord Davies of CoityDate 17 June 1999
[1]APPEARANCES For the Appellant MR A TWUMASI (Representative) JUDGE ALTMAN : This is an appeal from the decision of the Employment Tribunal sitting in London (North) over five days between July and 17th December 1998. A very large number of criticisms have been levelled against the decision of the Employment Tribunal in a number of documents that have been submitted to the Employment Appeal Tribunal at various stages. However, we wish to record that at the outset our indebtedness to Mr Twumasi, who has prepared over just one page an analysis of the real issues that the appellant wishes to canvass by way of appeal and has brought his submissions under the umbrella of that document, so that we have, we believe, been able to understand the essence of the complaint.[2]It is important to emphasise at the outset that this matter comes before us by way of preliminary hearing to determine if there is an arguable point of law such as to justify consideration of this appeal in full by the Employment Appeal Tribunal. We underline at the outset the limited nature of our powers in this process because however sympathetic as individuals we may be with the position of an appellant on the facts of his situation, our intervention is limited to seeing if there was some error of law in the tribunal.[3]The way in which the hearing was conducted before the tribunal was a matter that clearly gave rise to a sense of grievance on the part of the appellant because, he says, there were references to his having to pay the costs of the proceedings; because he was, through his representative, cut short in the length of time attributed to cross-examination. He felt that he was not being given a fair hearing and because of the reluctance in some respects, apparently, on the part of the tribunal to go into some aspects of the case, he felt that they were not giving a full hearing or considering the evidence in full.[4]The Rules clearly establish that the Chairman and members of a tribunal are empowered, of course within the limits of justice, to regulate their own procedure. This case lasted over certainly four days in open tribunal and possibly a fifth for consideration in chambers of the decision, and we were told that some three witnesses gave evidence who were no doubt subject to sustained cross-examination.[5]We have looked at the Originating Application in this case and we have read the decision of the tribunal. Whenever an allegation is made that a tribunal has conducted its proceedings unfairly such an allegation must be treated very seriously. One of the aims of all properly conducted hearings in the Employment Tribunal is for the parties to feel that they have had a fair hearing. Sometimes it is necessary to bring matters to a head by limiting the length of cross-examination. Nowadays that is quite a frequent aspect of court hearings, because it is a way of focussing the attention of a party on the real issues, and simply because that happens is not in itself an example of injustice. Furthermore, it does seem to us that on the face of the decision the issues raised in the Originating Application were dealt with. Therefore, it seems to us, that looking at the general way in which this matter was conducted, and whilst we can understand that somebody may feel a sense of grievance because of certain features, we cannot see evidence on the material before us to give rise to any objective conclusion that there is any substance which could found that complaint. The reference to costs was also made. Whilst it may have been felt to be a threat to a party, it may simply have been, equally, a warning. We cannot imagine any way in which an Employment Appeal Tribunal could so reconstruct the atmosphere of a hearing to be able to conclude that those two matters and the way in which the decision is expressed, could lead to the conclusion of unfairness. In those circumstances, whilst we are sure that the appellant has a genuine sense of grievance, we do not find that there is or would be the material upon which such a feeling could be based.[6]We turn now to the specific matters of complaint.[7]The respondents employmed the appellant from 11th November 1990 to 30th March 1998 in the Company's warehouse, assisting in the receipt of goods. He complained of unfair dismissal, which was alleged to be constructive; he also complained of discrimination, which was unlawful because of sex and race; he also complained about matters relating to health and safety.[8]The essential issues that have been argued before us relate to the finding, so far as the allegation of racial discrimination is concerned, that is summarised in the extended reasons of the Employment Tribunal starting in paragraph 6. They identify the allegation beginning in 1993 because of treatment from a colleague, Mr Ian Haggar. They refer then to an item of deduction of money from his pay. He alleged in 1994 an allegation of racial abuse from a fellow employee, Mr Alec Humphreys. It seems that that was the subject of complaint by way of a grievance and he did not take the matter any further. But it seems that there was continuing "unpleasantness", as it is described by the Employment Tribunal, between those two men and the problem continued with a change of premises. The substance, the tribunal found, of the appellant's complaint of racial discrimination was contained in paragraph 2 of his race relations questionnaire. They summarised that as relating to the failure of a Ms Whitehand to supply him with job vacancies in 1997 on the ground that he was a French national and thereby unlawfully discriminated against and also because of a difference in treatment between himself and Mr Humphreys over an incident in February 1997.[9]So far as the supply of job vacancies was concerned, we understand that that was twofold. First of all there was an alleged failure to advise the appellant of management posts for which he might have applied; and secondly, there was an alleged failure to notify him of any vacancies, except at such point when it was really too late for him to apply for them.[10]The tribunal then dealt with the matter of job lists. They said this in paragraph 7:
"In relation to the failure to supply Mr Castel with job lists we have already considered Ms Whitehand's explanation as to why this was not done and for the same reasons we do not consider this allegation to amount to race discrimination."
That was a reference back to their finding earlier in the extended reasons in paragraph 5 in what they described as "generalised complaints of unfair treatment in not being supplied with job vacancies" being while he was off sick, and also relating to the grievance procedure. They say that there was no direct evidence of discrimination from the fact that these lists were not provided, but they gone on to say this:
"… We have considered our responsibility, where there is no direct evidence, to see whether we should draw any inference of discrimination. Has the Respondents now given us any explanation we might have considered whether their actions or lack of them allowed us to draw such an inference that they were discriminating against the Applicant. However we have had an explanation from Ms Whitehand that until she was able to determine which vacancies Mr Castel would be suitable for, taking account of his doctor's advice, she was unable to supply suitable vacancies. Our conclusion is that although it would have been possible to let Mr Castel to have that information her action in not supplying it was not based on sex discrimination nor indeed on race discrimination. …"
I should add that the reference to "doctor's advice" was the reference to sickness absence after the incident, to which I come in due course, in 1997.[11]It seems to us that there is no doubt that the tribunal directed themselves properly to the legal tests to apply. They also, it seems to us, directed themselves to the relevant facts involved.[12]In paragraph 3(c) of his submissions, Mr Twumasi dealt with this aspect of the case and drew attention to a letter, which apparently was sent to the appellant in which it was inferred that there was a deliberate decision not to notify him of management positions. Indeed, evidence from two experts on the grammatical meaning of those sentences has been submitted to us, which we have looked at for the sake of completeness although they are not admissible at this stage, but they simply endorse the common-sense interpretation of the words. The words were these:
"Also most of the vacancies advertised in this way tend to be mainly for management positions."
The implication being that the respondents did not consider the appellant appropriate for management positions. That is obvious from the words themselves. It does not seem to us to need expert evidence. It is pointed out in this way that it is a matter of record, says Mr Twumasi in his submissions, that "employers seldom admit even to themselves that discrimination is taking place. It is therefore the duty of the tribunal to draw inferences from facts before it." That is exactly, it seems us on the fact of it, the task which the tribunal set themselves to do, to see what inferences could properly be drawn. The tribunal made a decision on the facts. It is a decision no doubt with which the appellant disagrees, but we cannot discern an error of law in their approach. Therefore, it is not something with which the Employment Appeal Tribunal can interfere.[13]I turn now to the next aspect which relates to the incident in February 1997 between Mr Castel and Mr Humphreys. I am going to quote, at some length, from the extended reasons of the Employment Tribunal. In paragraph 8 the tribunal said this:
"8 We need to deal with the February 1997 incident from a number of angles, since this is relied upon by the Applicant in respect not only of his allegations of race discrimination but also in respect of his claim of fundamental breach of contract by his employers in not providing him with a safe system of work, and also failing to deal with his appeal against his final written warning."
In paragraph 9 they say:
"9 The evidence about the February 1997 incident is that Mr Castel and Mr Alec Humphreys were observed by colleagues and also on video to be involved in an altercation which resulted in both men facing disciplinary proceedings. Had we been dealing with this incident as a ground for dismissal we would have found that the employers had reasonable grounds for suspecting misconduct to have occurred, that they carried out a proper investigation, proper disciplinary procedures were used and the disciplinary outcome would have been appropriate. The experience of this Tribunal is that where two men are involved in an altercation it is common and regarded as fair for each to be treated identically, and when the incident involves physical contact for that to be regarded as gross misconduct warranting dismissal. In this case the two men were initially treated differently with Mr Castel receiving a final written warning and Mr Humphreys being dismissed. We have indicated throughout this Tribunal hearing that we have no jurisdiction to reopen those disciplinary hearings. However our one observation is that initially Mr Castel was treated more favourably than Mr Humphreys, since the person who conducted the disciplinary hearing believed Mr Castel had not instigated the altercation. When Mr Humphreys appealed his dismissal was reduced to a final written warning since the person hearing the appeal took the view that each man was equally to blame. Mr Castel's final written warning was not appealed and those circumstances we refer to later in this decision."
The tribunal then goes on to deal with the allegation of race discrimination. They accepted that there was animosity between these two men. But the tribunal goes on to say this:
"10 … Not until he gave evidence to the Tribunal did Mr Castel indicate any words of a discriminatory nature used by Mr Humphreys against him, and he agreed that this was the first occasion on which he had chosen to repeat a sensitive word allegedly spoken against him in February 1997. Given the extended nature of meetings and correspondence between the Applicant and the Respondents throughout 1997 and early 1998 we find it unlikely that had those words been used Mr Castel would not have complained earlier. We therefore dismiss his complaint of race discrimination on the ground that he has failed to show us that within the limitation period any act of race discrimination occurred which would allow him to refer back to earlier matters, even if we were to accept his version of events. Our reasoning is the same as the reason we have given in relation to the sex discrimination allegations."
It is clear that the Employment Tribunal, expressing itself, rather delicately, it seems to us, was saying, although in not so many words, that they did not believe the appellant's evidence that those words had been spoken and that was an assessment which they arrived at.[14]How is it proper for us, in those circumstances, to find that they made a mistake about that? It is said that there was late delivery of documents that the appellant could not deal with; it is said that there is a video which had been possibly deliberately lost by the respondents and this was a wrong view by the Employment Tribunal. We, of course, do not know the truth. The only people who know the truth are those two men that were there at the time, and possibly a witness. The tribunal looked at the evidence. They drew an inference, admittedly unfavourable to the appellant, from the fact that it was not until the hearing before the tribunal that he actually said what he alleged was said to him. The inference that the tribunal drew, which in law they were entitled to, was that that had not occurred. In those circumstances, it does not seem to us that there can be any argument thereafter that the tribunal made an error of law in reaching that judgment.[15]The tribunal have also gone on to say that even if they are wrong about that there was no continuing act of discrimination. What appears to have occurred is this: although there was, on the face of the findings of the tribunal, an oral warning given to the appellant, he did not receive an actual letter until August 1997, some six months later at a time when he says he was also receiving notice of last minute vacancies. In those circumstances, it seems to us that the tribunal have made a finding that there was no act of discrimination enabling them to refer back, even if they were wrong about the other matter. Again, it seems to us, that on the facts that was a judgment to which they were entitled to reach.[16]It is alleged, on his behalf by Mr Twumasi, that there were other instances comparable to his relating to other people which the tribunal would not take into account. Complaint is made also that the tribunal referred to reopening disciplinary hearings. But the tribunal were clearly relating that to the limitation period from the wording of their decision. The tribunal could not have a rerun of that incident at the point in time when they were considering it. Furthermore, it seems to us, the Employment Tribunal were entitled to say that they were going to look at the circumstances relating to this appellant and Mr Humphreys in relation to conduct by him.[17]It is said that the allegation of race discrimination related to what happened thereafter. The tribunal then go on to deal with that. But I follow through the way in which this matter was presented to us.[18]The tribunal referred to their original submissions under paragraph 22 in which they quoted from the judgment of Morritt LJ in Mahmud v BCCI [1996] ICR 406 CA :
"… if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise."
[19]This now brings me on to the allegation relating to the work vacancies and the allegation of continuing discrimination which is alleged to have kept alive the original discrimination which the tribunal said did not take place. At paragraph 16 they analysed the position as to why only four or five of 105 vacancies were notified to the appellant. It was said by Ms Whitehand that was due to the bad back that the appellant had and the fact that they were management positions. The tribunal came to a judgment that there was no discrimination and no breach of contract in that comment.[20]The tribunal then deal with the receipt of documents and they deal with the case to which we have referred. What was said by the appellant was that having received his warning he tried to negotiate the position with the employers and, getting nowhere and being completely demoralised by their response, eventually he left and that, because of their conduct, they so undermined the relationship of trust of confidence as to entitle him to leave because of their breach of contract. The tribunal say in paragraph 22 that they accept in that in determining that question it was not what was in the mind of the employer, what the motive of the employer was. Nor is it. The tribunal point to what actually the employee may have felt. It is in that context that the tribunal rely upon the quotation of Morritt LJ. The tribunal say that:
"… We have been guided by these criteria in coming to our conclusions. We have already found that the employers acted in good faith. We have looked at the impact that what they did had on Mr Castel, and his evidence is that the impact of what they did led him to come to the conclusion that they were in breach of the implied obligation of trust and confidence. … Our responsibility is to look at what happened objectively and to see whether or not objectively the employee was entitled to view the employer's conduct as a breach. We have come to the conclusion that the employer's conduct in respect of the arrangements for the proposed meeting, viewed objectively, could not be regarded as a fundamental breach of the implied term of trust and confidence. Mr Castel had put a deadline on arranging that meeting but was within sight of a resolution of the problems which he had had and we do not find that he could use the delay in fixing that meeting as a reason to resign and claim that he was constructively dismissed."
The tribunal go on to say in paragraph 23:
"Mr Bennett has submitted to us that unless the final act which constitutes the last straw is itself a breach of the implied term of trust and confidence that final act cannot be used in order to sustain an argument that matters which preceded it were a fundamental breach. We agree with that proposition. …"
[21]It seems to us that that may well be an incorrect statement of the law. We can well imagine circumstances in which a long-running series of serious breaches of contract may in the end be triggered by an incident which in itself is reasonably innocuous but is sufficient to satisfy a tribunal that it reasonably revived the earlier breaches. After all, the final straw is of no consequence. No straw on its own breaks a camel's back. It is only when it is seen in relation to earlier matters. It seems to us that a correct interpretation of the law is probably that everything has to be looked at together in order to identify whether there has been a breach. However, the tribunal go on to say this:
"Whether or not there were any breaches of the implied term, and we have found that there were not, it would have been for Mr Castel to have resigned at the time when he thought those breaches were occurring. It was part of his evidence that by August 1997 he had lost trust in the company, but he did not resign then and we have had no explanation from him as to why it was he chose then to continue to negotiate with his employers in order to find a resolution to the problem. The facts are however that he chose to continue to negotiate and then withdrew from those negotiations in a way when [ which ] we do not think was justified."
[22]Again, in a perhaps over-careful way, what the tribunal were clearly saying was that because he did not resign and continued to negotiate to find a resolution they did not accept that he had lost trust in the Company as the two were contradictory. The tribunal found that the withdrawal on the facts was not objectively justified.[23]Again we are driven to the conclusion that it is quite clear that from his point of view the appellant was very disappointed with what had happened at work. We have no doubt that the upset had led him to be away from work to some extent for a time, also no doubt with physical problems. We have no doubt that the thought about having to go back with Mr Humphreys still in post may have inhibited his return to work. But on the facts and applying the law, it seems to us that the tribunal were entitled to come to the conclusion they did and that there was no error of law.[24]The final matter that has been addressed to us relates to breach of health and safety rules. What is said before us today is that in the area where this fight occurred there was a wall which prevented the appellant from withdrawing from the fight. It blocked him in. The wall was a safety hazard and it was proved to be a safety hazard because later on the respondents knocked it down and the appellant had some difficulty collecting the evidence to prove it and that is to be deprecated. But in the way in which this case came before the tribunal and was dealt with in the decision, there was not any clear separate health and safety issue raised in relation to that matter at all. It was in the context of saying that he was unfairly treated because he was expected to have run away rather than be slightly aggressive in self-defence. The appellant's answer to that was that he could not do that because of the presence of a wall which was a safety hazard. But the tribunal had already dealt with that aspect of the allegations that were made.[25]There were other issues of health and safety which were dealt with in the context of the decision as a whole in paragraph 12. Indeed, it seems to us that the tribunal came to a clear conclusion about it. As to the assertion that there was some freestanding health and safety issue relating to the presence of a wall, we are satisfied that on the material before us, that was not canvassed before the tribunal and was certainly not dealt with by the tribunal in that way; and it was not canvassed in the Originating Application. It does not seem to us therefore to be right to introduce it as a new matter of law at this stage and we do not believe that we are entitled to do so.[26]We have, and I hope it will be understood, looked very carefully at all the documents in this case. Very serious concerns are felt by the appellant in this case. If I were to say that normally a half an hour is attributed to preliminary hearings in the Employment Appeal Tribunal, and point out that we have spent three quarters of a day on this case in a genuine exercise of seeking to review this decision and take very seriously indeed all the matters of concern which the appellant has, I hope it will be recognised that that is a genuine process upon which we have been engaged. But limited as we are to determining whether there was an error of law on the part of the tribunal in the way I have endeavoured to analyse, we are driven to the conclusion that there is no arguable point of law available to the appellant on this decision. Therefore, there is no basis upon which to permit it to go forward to the Employment Appeal Tribunal.[27]Before leaving this case however, we would wish to mention one matter. After the first decision was promulgated in this case, the tribunal appeared to have discovered some errors and they went through the traditional process of issuing a Certificate of Correction. However, that was simply a standard form and all that happened was that the tribunal sent out a fresh decision containing the corrections. But the actual Certificate of Correction itself gave no hint whatsoever as to what had been corrected. The result is, unfortunately, in practice and it happened in this case, that we found ourselves rummaging through different copies of the same decision, trying to refer to different parts and also totally unaware of what changes had taken place. It seems to us that if a party, not least the Employment Appeal Tribunal, but even a party, is to have it pointed out to him or her that it has been necessary to make corrections, it is desirable, and in our experience the traditional practice of tribunals, to set out in the Certificate of Correction what those corrections are, so that they, if necessary, can be considered and examined, tested and at least understood by the parties. We would commend to the Employment Tribunal in future that a Certificate of Correction should spell out on the face of the Certificate what the correction is. It is normally a very simple exercise and it is normally a very simple correction, but it does avoid confusion thereafter.[28]Accordingly, this appeal is dismissed at this stage.