LONDON BOROUGH OF BARKING & DAGENHAM v MR O OGUOKO [1999] UKEAT 819_98_2709

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 819_98_2709Case No Appeal No. EAT/819/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF BARKING & DAGENHAMAPPELLANTMR O OGUOKORESPONDENT
Before
His Honour Judge H J ByrtDate 27 September 1999
[1]APPEARANCES For the Appellants MR P J M HAWTHORNE (Solicitor) Messrs Witham Weld Solicitors 70 St George's Square London SW1V 3RD For the Respondent MR M SETHI (of Counsel) Messrs Johns & Saggar Solicitors 193-195 Kentish Town Road London NW5 2JU JUDGE BYRT: This is an appeal against a decision, promulgated on 28 April 1998 of the Employment Tribunal sitting at Stratford. By their decision they held(1) that the employers had racially discriminated against their employee, Mr Oguoko and(2) Mr Oguoko's claim that his employers had victimised and harassed him should be dismissed. The employers now appeal the decision of racial discrimination. There is no cross appeal by Mr Oguoko. The facts are as follows: Mr Oguoko was employed by the Appellants as a supervisor first, at their Abbey Road Depot and then at their Frizland Depot over a 14½ month period between August 1996 and 17 November 1997. He started work in that position after two weeks of training. His job entailed the administration of certain contractors working on the Appellants' properties.[2]On 27 September, after he had been in post for only two weeks, he was the subject of a damning probationary assessment by Mr Garrard, his line manager. The assessment complained about his laid-back attitude, his lack of motivation and the fact that he seemed unable to achieve deadlines, that he did not see jobs through to the end, and did not converse with other Depot supervisors. This was shown to Mr Oguoko for the first time at a meeting on 30 September. He was very upset by what he thought was an unjust report, prepared after he had been in the job for only two weeks and had had little training or practical experience in his job.[3]Another formal assessment followed on 15 October which recorded a slight improvement. Mr Oguoko felt he had been given insufficient time since his last assessment to show any real improvement. This was more especially pertinent since he had in the meantime been given very little guidance or support to encourage him to improve.[4]Mr Oguoko felt he was disadvantaged by the workstation which he had been allocated. He was alone amongst all his other supervisors who were white, not to be provided with a computer terminal. He, as did the other supervisors, needed one near the telephone to enable him to deal expeditiously with queries. At his own expense he bought himself a telephone extension line so as to enable him to have access to the only computer he was able to use. He had complained but nothing had been done to help him with his problem.[5]In October 1996, he had asked for more men in his unit to enable him to cope with an increased workload. He was constantly short of plasterers but little was done in answer to his requests or to help him.[6]Default notices were sent him to implement action. Usually 14 days was allowed for compliance. Mr Oguoko was given only four days without being offered any real explanation for the apparent difference in treatment. He prepared a work programme for his operatives to be effective from 15 November. This was cancelled by a Mr Saunders, Head of Construction, after the programmes implementation had already been started, allegedly following trade union intervention. On 3 December 1996, he was summoned to a disciplinary hearing, charged with neglect of duties. He was not told in advance what neglect was alleged. The outcome, notified to him on 6 December was a first and final disciplinary warning. Another employee, a Mr Ardley, in similar circumstances received only a first written warning. He appealed but his appeal was dismissed on 20 January 1997. At that hearing, he intimated that he had taken the advice of the Commission for Racial Equality on account of the disparity of treatment meted out to Mr Ardley and himself.[7]On 4 February 1997, his progress was reviewed by Mr Garrard and Mr Sewell, the Construction Manager. Their finding was that no progress had been made. Mr Oguoko felt this was a harsh assessment since no encouragement or support had been given to him at any time.[8]On 26 February, he was summoned to a further disciplinary meeting. He was advised by Mr Sanders that he was going to start the preparation of a disciplinary case against him, based on the information he had at present. His recommendation would be his dismissal from the Council's employment. On 14 April, Mr Oguoko attended before a disciplinary committee of the Council, empanelled to hear Mr Sander's complaint. The complaint was dismissed and Mr Oguoko was authorised to return to work the next day.[9]Following his return to work, he was transferred to the Appellant's Frizland Depot where he remained until he resigned on 17 November 1997.[10]By that date, Mr Oguoko had already lodged with the Tribunal two Originating Applications. The first, dated 7 March 1997, alleged racial discrimination, harassment and victimisation. The second, dated 11 July, alleged racial discrimination only. The Tribunal Chairman held a Preliminary Hearing on 24 September 1997 to consider whether the first of those Originating Applications was lodged within the three monthly time limit of those events upon which the allegation of discrimination relied, and to give further directions for the progress of the case if it was. Mr Oguoko's legal representative would appear to have submitted that his client's case of racial discrimination started with the events of 6 December 1996 when he received the first and final written warning and continued thereafter with a course of conduct all of which fell within the three month limitation period. The Tribunal therefore had jurisdiction to hear the claim, including that part of it which was based upon the events of 6 December, notwithstanding that that date was one day outside the three-month period. The Chairman accepted that submission, and thereafter gave directions which included an order that Mr Oguoko's two Originating Applications be consolidated and listed for hearing in February 1998 with a time estimate of two days.[11]The substantive hearing took place on 2 and 3 February and by their decision promulgated on 28 April the Tribunal found that Mr Oguoko had been shabbily treated as was evidenced by a series of events going back to the commencement of his employment by the Council. The latter had offered the Tribunal no explanation why he had been treated this way and accordingly the Tribunal inferred that it was on account of his racial origin. They held that this treatment amounted to racial discrimination throughout the entire period to which they had been taken by the evidence.[12]At a Preliminary Hearing of the Employment Appeal Tribunal, the Appellants were given leave to proceed to a full hearing on three grounds which were set out in an amended Notice of Appeal. We will deal with them in turn.[13]The first ground relied upon is that the Tribunal's decision was reached in circumstances which amounted to a breach of the rules of natural justice. What happened was this: Mr Oguoko gave evidence for virtually the whole of the first day. On the second day, Mr Garrard gave evidence until 3.50 pm. At the conclusion of his evidence, someone (probably the Chairman because he was responsible for the conduct of proceedings) suggested that the parties might be willing to put their closing submissions in writing so as to enable the proceedings to be concluded that day. It was agreed that that course should be adopted, and subject to one other matter which is the basis of the second ground of appeal, the proceedings were concluded that day.[14]On 5 February the Tribunal's Regional Secretary wrote a letter recording the Chairman's direction as follows:
"Written submissions to be presented within 14 days. The Tribunal will then meet to make its decision in the absence of the parties on their representatives."
No direction was given at the hearing or in the letter that the submissions should be mutually exchanged or, when received by the Tribunal, should be sent to the opposite parties by the Tribunal.[15]On 9 February, Mr Hawthorne, for the employers, sent in his submission to the Tribunal under cover of a letter of the same date in which he wrote:
"We look forward to receiving the decision of the Industrial Tribunal in due course. Meanwhile a copy of the applicant's written submission when received by you would be appreciated please."
On 16 February, Ms Marshall, for Mr Oguoko, sent in her submission.[16]On 3 March, the Tribunal Regional Secretary acknowledged receipt of both sets of submissions and said they would now be passed to the Chairman. The letter concluded:
"He will now arrange for the Tribunal to meet in Chambers to make its decision. The attendance of the parties nor their representatives is neither requested nor expected. I shall [hope] to promulgate the Tribunal decision as soon as possible."
The Tribunal did meet in Chambers on 20 April and reached the decision which was promulgated on 28 April.[17]Following his receipt of that decision, Mr Hawthorne (employers) wrote to the Tribunal on 1 May, expressing concern that the decision had been made without his having had prior sight of the written submissions. The Tribunals replied by a letter of 7 May, stating that the Chairman accepted the submissions ought to have been copied and sent to the parties. The letter proceeded to apportion some of the blame for the fact that they were not so sent, to the parties themselves for not requesting copies if they had not received them.[18]Mr Hawthorne sought a review. The Tribunal wrote back to both parties enquiring "In the event that the submissions were not exchanged please explain how their representations would have been changed or extended". Mr Hawthorne wrote back a substantial criticism of Mr Marshall's written submissions. This was passed on to the Chairman and members of the Tribunal with a request that they make known if they wished to change their findings in any respect as a result of the further submissions.[19]On 17 June, the Tribunal Secretary wrote:
"The Chairman has also received written comments therein from each of the lay members. The Tribunal is unanimous in its view that the detailed written submissions and comments from both parties do not affect nor would be likely to affect the Tribunal's decision in any way. For these reasons the Chairman has refused your application for review …. on the grounds that he does not consider it to have a reasonable prospect of success."
In a letter dated 31 July 1998, addressed to the EAT, the Regional Secretary, relaying the Chairman's comments on the grounds of appeal, discounted any suggestion that the parties were subjected to any pressures from the Chairman to adopt any particular course because of shortage of time. The parties agreed of their own volition to deal with submissions in writing. He expressed surprise that Mr Hawthorne had not contacted the Tribunals to say he had not received a copy of the other side's submissions.[20]Mr Hawthorne submits that the responsibility for ensuring that each party is sent a copy of the other side's written submissions must rest with the Tribunal. They failed to discharge that responsibility by failing to make the matter the subject of a direction at the hearing or to ensure that the administration had followed their usual procedures thereafter of copying all communications from one side to send it to the other. They failed again when the administration omitted to comply with his request contained in his letter dated 9 February that they should send him a copy of Ms Marshall's submissions. The fact that he did not thereafter send a chasing letter did not shift the responsibility which had always remained with the Tribunal ensuring that out-of-the-ordinary procedures adopted for the convenience of all did not result in a procedural irregularity.[21]In this case, Mr Hawthorne says, the failure to serve copies of the submissions on the respective parties and afford them the opportunity to comment before the Tribunal met to consider their decision, was a serious procedural irregularity, equivalent to the hearing of one party's oral submission in the absence of the other. It was important that not only should justice be done but should be seen to be done too. In this instance, neither was the case. The irregularity was not corrected by the application for a review which was refused.[22]Mr Hawthorne's second point arises in this way. At the end of Mr Garrard's evidence, that is to say close on 4.00 pm on the second day, the Chairman addressed the parties on the shortage of time for doing more that day, and in particular that though Mr Hawthorne had a second witness to call, named a Mr Sewell, he did wish to finish the hearing that day if it was at all possible. He did however emphasise that Mr Hawthorne should feel free to call him if he so wished. Mr Hawthorne says he took his client's instructions and it was decided not to call him. He so informed the Tribunal. Mr Hawthorne verified on affidavit that that decision was made partly because of the unspoken pressure of the Tribunal to finish the substantive part of the hearing that day and partly because he was aware that Ms Marshall was feeling unwell with flu-like symptoms. Mr Sewell's written statement had been served on Mr Oguoko as part of the mutual exchange of witness statements; it had also been served on the Tribunal and was with their papers when the case was adjourned that day.[23]When the Tribunal gave their decision, their reasons contained this passage:
"The Respondent also brought Mr Mick Sewell to this Tribunal and submitted a written statement on his behalf but to which we have given no consideration because Mr Hawthorne chose not to call him to give evidence."
Mr Hawthorne submits that the decision to give it no consideration and the procedure which led to that being so are unjust. If the Tribunal were minded to disregard this statement, the Chairman should have intimated as much before rising.[24]The Appellant's third point is that the Tribunal erred in failing to distinguish between the allegations of discriminatory conduct before 6 December 1996 and after. Their reasons contained a finding that Mr Oguoko was subjected to a course of discriminatory treatment throughout the time he was employed by the Council.[25]In response, the case for Mr Oguoko was argued by Mr Sethi. He submitted that there had been no breach of the rules of natural justice as a result of the parties being deprived of the opportunity to comment on each others written submissions. The Industrial Tribunals (Constitution etc.) Regulations 1993, Schedule I Rule 9(1) requires the Tribunal to "conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings". Save for this rule, there is no regulation which prescribes how or in what manner the parties' submissions are to be made. The Tribunal was under a duty to act fairly and this entailed giving each party the opportunity to be heard. The Tribunal satisfied those requirements. They did not feel it necessary to call upon either party to supplement their written submissions. This decision was vindicated by what happened on the application for review. When the parties had the opportunity to make their comments on their opponents' submissions, the three Tribunal members had no reason to change their decision.[26]As for the second ground: the Tribunal were right not to take into account Mr Sewell's written statement. He was the Appellants' witness and if Mr Hawthorne wanted the Tribunal to receive his statement into evidence, it was up to the Appellants to say in what way that should be done, unswayed by considerations of time, and least of all, by Ms Marshall's health considerations.[27]Mr Sethi disputes that there is anything in the Appellants' third point. The Tribunal have quite simply stated in their reasons that part of the Appellants' conduct they found discriminatory. Those findings in no way override the decision of the Tribunal Chairman at the Preliminary Hearing. He submits that the only point arising of any significance is that compensation is due only in respect of those acts occurring on and after 6 December 1996.[28]How does this Tribunal find? We will take the Appellants' points in reverse order.[29]We accept Mr Sethi's submission in respect of the last ground of appeal and there is little more that needs to be said. Mr Oguoko's case at the Preliminary Hearing projected the commencement date of the discriminatory conduct he relied on as 6 December 1996. That determined the date from which compensation might be claimed. The Tribunal found a course of discriminatory conduct extending back to the commencement of employment. A fortiori, it found that the discriminatory conduct was happening as at 6 December and after. In our judgment, little purpose would be served by requiring the Tribunal to be more specific about their findings as to the nature of the Appellants' conduct prior to that date. Nor do we consider it desirable to use this case as an opportunity to prescribe principles as to how a Tribunal on another occasion should set out their findings in a comparable but different situation. The requirements a Tribunal has to satisfy in drafting their reasons are complex enough without the introduction of further prescription.[30]With regard to the Appellants' second ground of appeal; in our judgment it is the responsibility of the advocate to decide which witness is to be called in support of his client's case. The only occasion on which a Tribunal will have a say is where there is a question as to the relevance of a witness's evidence. This was not a consideration in this case. In exercising his discretion, the advocate should have had only one overriding consideration, namely the interest of his client. It cannot therefore be a legitimate excuse for exercising that discretion differently that pressure of time, the Tribunal's reluctance to hear the witness, or the fact that the opposing advocate felt unwell, intervened.[31]Since the advocate has elected not to call a witness, what should the Tribunal do with the witness's written statement of evidence they have in their possession? The only circumstance where a witness statement may be admitted into evidence so that the Tribunal might consider it before reaching their decision is where it has been so admitted either with the consent of the opposing party or by an express order of the Tribunal, made after affording both parties the opportunity to make submissions. In this case, no one could have supposed that Ms Marshall would have consented, if asked, to the introduction of Mr Sewell's statement into evidence. Its significance was that its terms sought to corroborate the evidence of Mr Garrard whose evidence was the subject of substantial challenge. For those same reasons, it would have been most improper for the Tribunal to have had regard to any part of that statement without first having heard submissions from Ms Marshall.[32]For those reasons, we consider that the Tribunal took the right course in disregarding the contents of Mr Sewell's statement, and in telling the parties they had done so. We reject this ground of appeal.[33]There remains the Appellant's last ground of appeal. There will be occasions when it will be greatly to the convenience of the parties and of the Tribunal that the parties closing submissions should be made in writing after the hearing and lodged with the Tribunal. If this procedure is to be adopted, it should be implemented only with the consent of the parties. Once such consent has been secured, then in our judgment the Tribunal Chairman must take responsibility of ensuring that the procedure is implemented in accordance with the rules of natural justice. This will require that, upon receipt of both sets of submissions, the Tribunal will serve each party with the written submission of the other. Each party should be informed that if they have any appropriate comment to make on the submission of their opponent, they should send those comments to the Tribunal within, say, a further 14 days. They should be warned that if, within that time, no comment is received back by the Tribunal, it will be assumed they have no comment to make and the Tribunal will proceed to make their decision on the basis of the submissions already tendered. Appropriate comments in reply should be limited, as would be the case had oral submissions been made, namely to correction of factual errors and legal submission on a new point of law not previously raised. The Tribunal should not proceed to the decision making stage till the Chairman is satisfied that each of the above steps has been taken.[34]In this case, we think the probability is that the Tribunal failed to cross-serve the written submissions, and so neither party had the opportunity to comment before the meeting of the Tribunal members on 20 April. In our judgment, this amounted to a breach of the rules of natural justice. Whilst Mr Hawthorne clearly had in mind the need to see the other side's submission when he wrote his letter dated 9 February 1998, we do not think the ultimate responsibility for ensuring he had the opportunity to comment rested with him. The Chairman should have checked before he and his members proceeded to making their decision. The fact that, in this instance, the Tribunal administration had omitted to send the written submissions to each side serves to underline the importance of the Chairman's verification at this stage that all which has to be done, has been done.[35]However, it is our view that any breach of the rules of natural justice was remedied when the Tribunal solicited the comments of each party at the stage when Mr Hawthorne sought a review. The latter does not challenge the bona fides of the process in which the Tribunal engaged upon his application. Indeed, there is no appeal from the refusal of the application. We are concerned with a scrutiny of the procedures adopted, and are satisfied that the opportunity to comment afforded the parties at that late stage, and the reconsideration of the decision undertaken by the Tribunal in view of those comments, rectified the earlier procedural deficiencies. At the end of the day, we have to be satisfied that the Tribunal conducted their procedures overall in a fair way and we are satisfied that they did. In those circumstances, we reject this ground of appeal also.[36]Having found against the Appellants on each point of appeal, we must dismiss the appeal, and accordingly do so.