London Borough Of Southwark v Oyebanjo [1999] UKEAT 605_98_1703

EAT
London Borough Of Southwark v Oyebanjo
[1999] UKEAT 605_98_1703 · 1999-02-24
BAILII case number: [1999] UKEAT 605_98_1703 Appeal No. EAT/605/98 EAT/924/98 EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS              At the Tribunal              On 24 February 1999              Judgment delivered on 17 March 1999 Before THE HONOURABLE MR JUSTICE HOLLAND MS B SWITZER MR P A L PARKER CBE THE LONDON BOROUGH OF SOUTHWARK APPELLANT MR S OYEBANJO RESPONDENT Transcript of Proceedings JUDGMENT Revised © Copyright 1999 APPEARANCES   For the Appellants MS G BANKOLE-JONES (of Counsel) Head of Legal (Contract) Services London Borough of Southwark South House 30-32 Peckham Road London SE5 8UB For the Respondent MR J GALBRAITH-MARTEN (of Counsel) Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ   MR JUSTICE HOLLAND: These proceedings: By an application dated the 29th January 1997 Mr Samuel Oyebanjo ("the Applicant") made a complaint against his employers, Southwark Borough Council ("the Respondent") alleging discrimination and victimisation. Given a paucity of grounds he was subsequently required to provide particulars and did so, identifying three grounds of complaint, two alleging victimisation and one alleging discrimination. Unfortunately (as we think) it was felt appropriate to address a limitation issue by way of a preliminary ruling from a Chairman of an Industrial Tribunal, Mr A. Druce, which ruling was based upon evidence from the Applicant and perusal of documents. In the event, Mr Druce gave leave for one only of the complaints (that alleging victimisation) to proceed to a hearing, holding that the other two complaints were out of time. On various dates concluding on the 30th January 1998 an Industrial Tribunal sitting in London South held by a majority that the remaining complaint was made out. The Tribunal had further permitted hearing of complaints alleging respectively, discrimination on grounds of Trade Union activity and racial discrimination - the origin of such complaints is presently obscure - but in the event dismissed both such. On the 1st May 1998 the same Tribunal awarded the Applicant a total sum of £11,231 being as to £5,000 compensation for hurt feelings, and as to the balance, compensation for actual and prospective financial loss. The Respondents thereafter initiated this appeal against both such findings. The Applicant The Applicant is now aged 43, he is black and he is a Building Control Officer by occupation. It is material that he has acquired an M. Sc degree but he has not acquired any professional qualifications. He has been employed by the Respondent for over 10 years and he is a shop steward. As such, he has supported complaints of racial discrimination made by fellow employees. There are no findings as to when he became a shop steward nor as to what complaints he was associated with nor as to the dates thereof. His grading within the Respondents' organisation was and is SO3 and he is in Band 2 of their Career Development Scheme. In 1993 a post with the higher grading PO4 was advertised. The Applicant applied. In the event he failed to get short listed, the successful applicant being Mr Simon Hibberd, who is white. It was then discovered that Mr Hibberd did not have a professional qualification, notwithstanding a representation to the contrary. The Respondents annulled the appointment and relegated him to SO3 grading. The Applicant thereupon complained unsuccessfully and this complaint, having been reiterated by way of the IT1, was the second of the two complaints ruled by Mr Druce to be outwith the Tribunal's jurisdiction. This then leads on to events in late 1995 and early 1996. By late 1995 the Respondents were in the process of integrating Building Control into a newly formed Planning and Regeneration Department. To that end, they had to appoint three Principal Surveyors on grade PO4. Two of the positions were readily filled by two Senior District Surveyors (both, incidentally black) who were already graded PO4. This left one position to be filled by an applicant from the SO3 grade. The ensuing chronology is as follows: 2nd October 1995 - Mrs Linacre, the relevant Business Unit Manager sent a memorandum to the Applicant advising him to take such further steps as were necessary to acquire membership of the Institute of Building, that is, to acquire a professional qualification. By way of this memorandum he was warned that without that qualification he would be at a career disadvantage. 5th October - Mr Hibberd became a member of the Institute of Structural Engineers, that is, he acquired a professional qualification. Late October - Mrs Linacre drew up the job specification for the post of Principal Surveyor, such including a provision that membership of a relevant Institute was a minimum requirement. In the event Mr Hibberd was the only applicant able to satisfy that requirement and he was appointed without an interview. 8th February 1996 The Applicant having initiated the Respondents Grievance Procedure on a date that we cannot discern from the papers, there was a Grievance Hearing which concluded with a recommendation that there be a full audit of his personal history, especially with regard to his qualifications. The handling of this Grievance was identified by Mr Druce as providing the basis for the first of the three complaints made to the Industrial Tribunal, - in the event he struck it out as time barred. 12th June 1996 - The Applicant sent a memorandum to Mrs Linacre raising as a further Grievance the procedure adopted with respect to the Principal Surveyor post. 2nd July 1996 - By way of a memorandum of this date, Mrs Linacre rejected this Grievance. 9th July 1996 - The Applicant initiates the Respondents' formal Grievance procedure, this time invoking Mrs Linacre's memorandum and alleging discrimination and victimisation. 26th July 1996 - By way of Stage 1 of this procedure, Mr Paul Watling notifies the Applicant that his Grievance is rejected. 2nd August 1996 - The Applicant invokes Stage 2 of the procedure on the basis of dissatisfaction with the Stage 1 result. After some delay - and, apparently, with procedural irregularities - the further enquiry gets under way in November, being conducted by Miss Eve Fawcett. 28th November 1996 - The Stage 2 Grievance Hearing. 10th January 1997 - By a letter of this date the Applicant was notified that his Stage 2 Grievance was rejected. It is germane that it includes the following:
"To have challenged the requirement to have this qualification you should have lodged your grievance when the assimilation list was first issued. This would have frozen the assimilation to the band 3 posts until your grievance had been heard. This panel is not able to challenge the need to have this qualification retrospectively." 29th January 1997 - As already noted the Applicant completes the IT1. 26th February 1997 - The IT1 is presented to the Tribunal Office. The Preliminary Hearing Before grappling with the issues raised by the particulars as served by the Applicant, Mr Druce directed himself as to the relevant terms of Section 68 Race Relation Act 1976: "(1) An industrial tribunal shall not consider a complaint under section 54 unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done ..... (6) A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time, if in all the circumstances of the case it considers that it is just and equitable to do so ..... (7) For the purposes of this section - b. any act extending over a period shall be treated as done at the end of that period."
By reference to those provisions and his analysis of the material before him, Mr Druce ruled that three categories of complaint were raised by the Applicant and that two of these (as already identified) had been presented to the Tribunal out of time. He further found that there was no basis to extend time by reference to Section 68(6). What then of the third complaint? As drafted by the Applicant, it referred to the Stage 2 Grievance Procedure and continued:
"3.1.1. That the stage 2 panel chaired by Ms Eve Fawcett no proper decision was reached nor was there a proper decision given to the Respondent - The Director. 3.1.2. That there is no proper decision given or conveyed to the Respondent on which to base his conclusions as stated in his memorandum to me dated 10/01/97 (Fred Manson). 3.1.3. That I have being subject to less favourable treatment than other staff, resulting in discrimination by victimisation due to the alleged occurrence of discrimination 3.1.4. That the respondent cannot justified his decision, and as such, it is of a detrimental effect to me and constitute an indirect discrimination."
Mr Druce's decision appears at paragraph 16:
"16. The third complaint, Grievance B, had been answered by 2 May 1996 but was re-opened by the Respondents by a further Stage 1 and Stage 2 investigation. Those investigations were not answered until 10 January 1997. That specific issue was a continuing act and the cause of action did not accrue until 10 January 1997. It therefore follows that the Applicant is within time in respect of that particular allegation. The conduct of the Appeal was part of the act complaint of within the terms of Section 68(1) of the Race Relations Act, 1976 and the following authority of Adiki -v- The Post Office ICR 1993 464, the three month time limit did not start until 10 January 1997."
He indicated that if necessary he would have allowed the Applicant to rely on Section 68(6) with respect to this third complaint. The Tribunal Hearing The Extended Reasons open with two paragraphs detailing the Tribunal's view as to its jurisdiction following upon the Preliminary Hearing. By way of preface it is to be remembered that there was now a further complaint before it, additional to those considered by Mr Druce, namely that the Applicant was the victim of action short of dismissal on grounds relating to his union membership or activities so as to be able to make a complaint pursuant to Section 146 Trade Union and Labour Relations (Consolidation) Act 1992. By Section 147 it is provided:
"An industrial tribunal shall not consider a complaint under section 146 unless it is presented - a. before the end of the period of three months beginning with the date of the action to which the complaint relates or, where that action is part of a series of similar actions, the last of those actions, or b. where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period, within such further period as it considers reasonable."
We now turn to those two opening paragraphs: "1. At a preliminary hearing on 12 August 1997 it was held that there were no continuous acts of discrimination and that, accordingly, the only act of alleged racial discrimination upon which the Applicant could rely was that arising from the alleged misconduct of the Respondent's grievance procedure (second stage) which followed his complaint of failure to appoint him in February 1996 to a particular post in the Respondent's employment. The same restriction applies to the Applicant's claim of victimisation contrary to the Race Relations Act 1976. That preliminary hearing made no finding as to the jurisdiction of the Tribunal to entertain a complaint of discrimination on grounds of trade union activity. It appears that the Respondent did not raise an objection to jurisdiction at that hearing. The Respondent has not done so in the hearing before us. We are, however, bound to take a point of jurisdiction and are grateful to the representative of the Applicant for making submissions on this issue. The second stage of the grievance procedure pursued by the Applicant concluded in November 1996. The Applicant submitted his Originating Application in January 1997. The Tribunal has taken account of the fact that a local trade union official pursuing a grievance based on discrimination on grounds of his trade union activity might reasonably feel that he should be sure of the facts established by an internal grievance enquiry before transferring that claim to an Industrial Tribunal. We are aware that a number of earlier decisions have pointed out that there is no reason why an application should not be made to an Industrial Tribunal and postponed until internal procedures have been completed. There is, however, no binding rule that this should be done and in the present case we consider it right to decide that it was not reasonably practicable for the Applicant to present the claim in respect of his trade union activities until the conclusion of the internal grievance procedure. The Tribunal considers that that concession should permit the Applicant to submit a claim in respect of events arising from the reorganisation of his department and dating from decisions made in February 1996 when he was not appointed to a post in band 3 of the career development scheme operated by the Respondent.[2]The effect of the preliminary hearing was to prevent the Applicant pursing claims of racial discrimination or victimisation in respect of a number of events occurring before 1996. The same prohibition applies to any claim under section 146 of the Trade Union and Labour Relations Act in respect of his trade union activities. Quite rightly the Respondent objected to detailed evidence being produced of these events but we noted during the hearing that the Tribunal was entitled to take account of the fact that they had occurred in reaching its conclusions on the existence of discrimination in relation to those acts over which it had jurisdiction. In summarising the primary facts on which we rely, therefore, we shall include the basic facts relating to some of these incidents." In the event the Tribunal seemingly did consider events occurring before 1996. By paragraph 17 it records:
"17. This hearing has taken evidence of four primary incidents upon which the Applicant relies to establish that discrimination which falls within our jurisdiction. Those incidents are, (1) the failure to consider him for promotion to the post to which Mr Hibberd was initially appointed; (2) the memorandum written by Mrs Linacre on 2 October 1995 which the Applicant claims indicates a decision that he suffers from an absence of appropriate qualifications; (3) the failure seriously to consider him for assimilation into the band 3 post available from March 1996 and the appointment to that post of Mr Hibberd; (4) the mis-handling of his subsequent grievance procedure which he alleges contains serious procedural defects and, in his view, a lack of serious application by either Mr Watling or the second stage panel."
Turning to their conclusions, we cannot do justice to such without citing in full the last paragraphs of the Extended Reasons: "21. Although there are no similar precise indications to the contrary, in the case of the possibility of discrimination on the grounds of trade union activity there is, again, no evidence from which we feel we can raise any inference of such discrimination. It may well be, although we have had no precise evidence to that effect, that the Applicant pursued the cause of individual union members he was representing with some force but the Respondent has a long history of recognition of, and negotiation with, trade unions. It is unlikely that in that history it has not come across a number of situations where trade union representative might appear to it to be behaving with excessive zeal. Again, therefore, we have no hesitation in dismissing, as a cause of the Applicant's disadvantage from action short of dismissal, his trade union activities on behalf of others.[22]A majority of the Tribunal consider that the Applicant's disadvantage does derive from the fact that he had presented on his own behalf not only the claim of racial discrimination in respect of the job assimilation but also earlier claims. We have not mentioned these earlier claims in evidence because we have no sufficient detail of them, but there is no doubt that such claims were made. In the view of the majority there is sufficient ground of inference that such claims on his own behalf did provoke the attitude which we think caused the disadvantage to him. The majority take the view that they are entitled, within the guidelines laid down in the King v The Great Britain China Centre (1992) ICR 516 to make such an inference from the facts that we have reviewed. They consider, as we have said, that there was no necessity to impose the Institute qualification in respect of the assimilated band 3 job. They consider that it was imposed with clear knowledge of the effect it would have. They consider it unreasonable, particularly in view of the stage which the Applicant was known to have reached in securing such a qualification, to discount his other qualifications. In their view there must be a reason for such conduct and that reason must involve an adverse attitude towards the Applicant. In their view that adverse attitude can be traced back beyond the matter which are within the jurisdiction of this Tribunal. If that attitude did not arise wholly from the Applicant's assertion of racial discrimination against himself the majority take the view that it is right to infer that it is significantly affected by those claims.[23]The minority member of the Tribunal purely as a matter of fact, does not feel entitled to draw this inference. In the view of that member no evidence has been presented to this Tribunal to support any of the three heads of complaint. In the view of that member the Applicant himself has no clear idea what inference he would draw. That member does not doubt that the Applicant has a justified grievance over a number of years relating to several separate incidents. But the Applicant has made no effort before the Tribunal to support any inference and the majority member does not think, in those circumstances, despite agreeing that there is a clear pattern of adverse treatment, that it is possible to infer one reason rather than another. It may well be that if the Tribunal is correct in identifying a feeling that the Applicant was not suitable for a supervisory position that there are perfectly innocent assessments supporting that view. We have heard no evidence of them, but equally we have heard no evidence to support any other cause.[24]In the view of the majority of the Tribunal the Applicant has suffered disadvantage arising from victimisation contrary to Section 2 of the Race Relations Act 1976 arising from the failure properly to process the grievance he presented relating to his non-assimilation into the band 3 job in February 1996. So far as discrimination arising from that act is concerned that is the only complaint over which this Tribunal has jurisdiction. The hearing will be adjourned until 1 May 1998 for consideration of a remedy." The Remedies Hearing The Extended Reasons open with an observation relating to the earlier hearing:
"..... but it is important to note that the Tribunal held that it had jurisdiction to consider a complaint of victimisation both in respect of the failure to appoint the Applicant and the failure adequately to consider his grievance arising therefrom."
Turning to the submissions the Tribunal noted a submission made on behalf of the Respondent's "that unsatisfactory handling of the grievance procedure does not preserve the complaint in respect of damage from the failure to assimilate the Applicant upon re-organisation of his department" but rejected it, saying "In the view of the Tribunal it is clear that the direct causative effect of the failure adequately to consider the Applicant's grievance is that the damage caused by the failure to assimilate the Applicant to the band 3 post is unchecked." In the result the award extended to the perceived financial consequences of the Applicant's failure to obtain the PO4 post. The Appeal On behalf of the Respondents, Miss Bankole-Jones essentially took two points: first, that the Tribunal effectively failed to heed its own view as to its jurisdiction so as to take into account extraneous matters and considerations, when deciding liability; and so as to misdirect itself for the Remedies Hearing. Second, that in any event the finding of the majority as deployed in paragraph 22 was perverse. On behalf of the Applicant, Mr Galbraith-Marten submits that in essence the Tribunal's view as to its jurisdiction was correct and that in any event the finding of the majority was not perverse. For this Appeal Tribunal, jurisdiction presently poses an impenetrable problem. As to why this is so, we point to the following:[1]There is no issue but that a complaint based upon the conduct of the grievance procedure initiated by complaint form of the 9th July 1996 was within the period specified by Section 68(1). There is however plainly an issue as to the consequent impact upon the foregoing of Section 68(7): was the grievance under investigation part of the 'act' so as to be done on the 10th January 1997? or did the act start with the initiation of the grievance procedure itself, that is, presumably, the complaint of the 9th July?[2]Neither Mr Druce nor the Industrial Tribunal sought specifically to resolve this crucial issue - or, if either did, the consequent finding is obscure. Miss Bankole-Jones submits that Mr Druce identified only the conduct of the grievance procedure as within the jurisdiction and she submits that that was the view of the Industrial Tribunal, see the opening words of paragraph 1 of their Extended Reasons and the whole of paragraph 24. By the time of the Remedies Hearing, the Tribunal had (she submits) lost its way. Mr Galbraith-Marten submits that Mr Druce in the passage cited had identified the wider ambit and whatever it may have seemed to say, the Industrial Tribunal correctly concerned itself with such, both at the Liability and the Remedies Hearings. For our part, viewed as a matter of linguistic analysis, both contentions can be supported from the contradictory passages cited above - which inevitably indicates a failure on the part of Mr Druce and the Industrial Tribunal to grapple with the point.[3]This problem in part stems from the unhappy fact of an attempt at resolution by way of a preliminary hearing. In the result, instead of the Industrial Tribunal hearing the relevant evidence, making the Section 68 findings and thereafter proceeding on the basis of such, it is reduced to construing the findings recorded by Mr Druce as reflecting the evidence and submissions as put before him (but not necessarily before the Industrial Tribunal). This was the more regrettable because Mr Druce had to make decisions about three complaints and thus had to confront the potential overlap between such. It would have been so much better had the Industrial Tribunal had the same opportunity: if it had ruled the first and second complaints out of time, would it have considered all four of the primary incidents set out in paragraph 17 as being in time?[4]The problem further stems from the failure of, respectively, Mr Druce and the Industrial Tribunal to explore the ambit and potential of the 'in time' grievance procedure. By its inception, what did it re-open? what were its powers? If as was contended in the letter of the 10th January 1997, there was no retrospective power by way of the procedure to re-open the PO4 appointment, then how could Section 68(7) allow consideration of such?[5]Finally, there is no present opportunity for this Tribunal to uphold or dismiss the appeal, whatever the ambit of jurisdiction. If the Industrial Tribunal correctly identified the latter at the opening and the conclusion of its Extended Reasons as to liability, then what lies between cannot readily be justified, nor can its approach at the Remedies Hearing. If, on the other hand the wider ambit can be justified then it is the restrictive definition that is in error, potentially without damaging the overall findings - although we would need argument before upholding the majority decision as to liability: for example could it lawfully find discrimination arising out of earlier 'claims' without any evidence as to the number, dates and nature of such? It follows that we cannot discern an adequate finding as to jurisdiction sufficient for the purposes of the Industrial Tribunal: the whole proceedings at both liability and remedies hearings were irredeemably flawed as to ambit and thus as to law. We have therefore to allow the appeal with respect to both liability and remedy; and reluctantly, we have to direct a rehearing before a differently constituted tribunal. To enable the latter to give effect to our concerns, we give leave to both parties to appeal out of time all the decisions of the Preliminary Hearing and we allow those appeals. The end result will be a further hearing at which all issues relating to jurisdiction and the impact of Section 68 can be approached afresh and on their own merits. We thank both counsel for their well-researched assistance.