MR O SHITTU v MANCHESTER CITY COUNCIL [1999] UKEAT 593_99_2607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 593_99_2607Case No Appeal No. EAT/593/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O SHITTUAPPELLANTMANCHESTER CITY COUNCILRESPONDENT
Before
His Honour Judge D M LevyDate 26 July 1999
[1]APPEARANCES For the Appellant MRS SHITTU (WIFE) ON BEHALF OF THE APPELLANT WITH ASSISTANCE FROM MR CRAWFORD OF COUNSEL UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME (ELAAS) JUDGE D M LEVY QC : This is an Appeal by Mr Olawale Shittu from a decision following a hearing by an Employment Tribunal sitting in Manchester for 6 days in 1998. The Appellant had made two claims. The first Application No: 2406664/97 claimed unlawful race discrimination arising out of events between the 3 rd September 1997 and 2 nd December 1997. The second alleged direct unlawful discrimination between July and October 1998 and alleged race discrimination on grounds of victimisation pursuant to Section 2(1)(a) of the Race Relations Act 1976 as amended. The Application number was 2405003/98. The decision of the Employment Tribunal was sent to the parties on 12 th March 1998. Both of the applications before the Tribunal were dismissed. From that decision there was an Notice of Appeal dated 19 th April 1999. Mr Shittu, the Appellant, is happily employed in Uganda at the moment and we have had assistance at this preliminary hearing of his Appeal this morning both from Mr Crawford on the ELAAS scheme and by Mrs Shittu, his wife, who has addressed us calmly and in person on the matters which she wished to put forward on the Appeal.[2]We will deal first, if we may, with the grounds of appeal itself and the skeleton argument put forward by Mrs Shittu. What is suggested in essence is that the decision of the Tribunal did not take into account matters which were placed before it. For instance, in paragraph 4 of the skeleton argument, it is suggested that there were many admissions other than those which were found by the Tribunal as admissions in paragraph 10 of the Extended Reasons, which reads:
"There were few agreed facts in the case. However, it was accepted by the parties the Applicant was a black man who was employed by the Respondents from May 1990. He tendered his resignation to the Respondents which was effective from 31 st October 1998."
[3]Mrs Shittu says there were many other facts on which there was no dispute. We suspect that what the Tribunal is saying in the above paragraph is that at the start of the case there were no agreed facts or admissions. Thus, the matters which are helpfully identified by Mrs Shittu on her list as not issue, emerged in the course of the hearing.[4]Mrs Shittu submitted that the Tribunal failed to take account of the evidence of a witness, Mr Lapit, called by the Appellant. In paragraph 5(a) of the Extended Reasons there is set out a list of witnesses called by the Appellant. The list includes Mr Lapit. Paragraph 11 sets out the Tribunal's finding where evidence conflicted. In a long and well reasoned decision where allegations made are set out together with the conclusions on them, we cannot accept that the evidence of Mr Lapite was ignored. Mrs Shittu also submitted that the Tribunal failed to mention documents which the Appellant considered material from the very many hundreds of pages which were placed before the Tribunal. A bundle of 344 pages has been prepared for our perusal for this approval, the contents of which do not persuade us that the Tribunal omitted to consider material documents.[5]In a decision, which in our judgment, is scrupulously fair and scrupulously detailed, not every "t" can be crossed and not every "i" dotted. We are in no doubt that the Tribunal properly addressed itself in considering the questions placed before it and properly set out and answered the various allegations which were made by the Appellant and their conclusions on why they failed. We have carefully considered all the matters raised by Mrs Shittu in her own submissions, in the skeleton arguments and in the Notice of Appeal. We have found nothing there which could lead us to suppose that this matter, if it went to a full hearing, could succeed.[6]On behalf of the Appellant, Mr Crawford who did not address us on the grounds of appeal set out in the Appellant's Notice submitted that it would be appropriate to allow an extra ground of appeal in approximately these terms. The Tribunal failed to take into account the unchallenged evidence of the Applicant's expert witness, Mr Kusimo, whose evidence was that the Applicant's work as a graded quantity surveyor was of "good standard". We pointed out in the course of argument to Mr Crawford that reference was made to Mr Kusimo as a witness in paragraph 5 of the Extended Reasons. His report was included at pages 143 and 144 of the bundle of documents prepared for the hearing of this Appeal. It was apparent that his report was sought after 28 th September 1998 and his evidence was only part of the very large body of evidence which the Tribunal had to consider.[7]The fact that no specific reference was made to his evidence, other than that which we found at paragraph 5, does not mean that it was ignored by the Tribunal. They had a very difficult job to do in weighing all the evidence and in our judgment, their failure further to consider that expert report does not mean that they ignored it or that their decision was wrong. That his expert considered his work was of good standard as a graded quantity surveyor was not sufficient to lead us to conclude that any complaint made by the Appellant was not fully considered by the Respondent.[8]Having considerable sympathy, as we do, for anyone who loses his job, as well as an employer, we do not think that there can be any criticism of the decision made below which can succeed on appeal. In our view the decisions shows that the Respondent has done all and more that it could be expected to do to give the Appellant an opportunity to improve his qualifications and retain his employment. The complaints made by the Appellant were properly dismissed.[9]While thanking Mrs Shittu for her careful submissions, we will therefore dismiss this appeal at this stage.