MR J F NECKLES v LONDON UNITED BUSWAYS LTD [2000] UKEAT 1339_99_1002

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1339_99_1002Case No Appeal No. EAT/1339/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J F NECKLESAPPELLANTLONDON UNITED BUSWAYS LTDRESPONDENT
Before
His Honour Judge C SmithDate 10 February 2000
[1]APPEARANCES For the Appellant MR D IBEKWE (Representative) PTSC 31b Mervan Road Brixton London SW2 1DP JUDGE COLIN SMTIH QC : This is an application by Mr Neckles, who was the applicant before the Employment Tribunal, for leave to proceed to a full hearing of an appeal against the decision of an Employment Tribunal held at London (North) on 20th August and 1st September (in Chambers) 1999, of which extended reasons were sent to the parties on 17th September 1999, whereby the Employment Tribunal held by a majority, Dr Donoghue disagreeing that the appellant's complaint for a declaration that he had been unlawfully refused employment by the respondents, London United Busways Ltd, and for compensation should be dismissed. We have had the benefit of hearing a forceful argument from Mr Ibekwe on behalf of the appellant and we will have to consider his submissions later in this judgment. We have reminded ourselves that the appellant need only show an arguable ground of appeal to be allowed to proceed to a full hearing. However, we have also reminded ourselves that our jurisdiction is limited to consideration of whether the Employment Tribunal have erred in law in some way or reached a perverse finding in some way that is plainly wrong. In particular, we cannot allow a matter to proceed to a full appeal on the basis that there should be rehearing of some kind, that is not part of our jurisdiction, which is expressly limited to considering whether questions of law arise and that is of some importance, in our judgment, when considering this particular application.[2]It is necessary before considering in more detail the grounds of appeal sought to be relied upon, to summarise the decision. For the full effects of the decision it is necessary for reference to be made to the findings of the Employment Tribunal in detail. This is no more than a summary of what the Employment Tribunal found.[3]There was no issue before the Employment Tribunal that the respondents had refused the appellant employment as a bus driver by Miss Phull, a recruitment assistant employed by the respondents, in her letter to the appellant dated 13th April 1999. But the issue for the Employment Tribunal was whether that refusal was unlawful in that the respondents refused the appellant employment because he was a member of a trade union.[4]It was common ground and established certainly before the tribunal that at the material time and indeed since about 1995, (we cannot be precise upon that date it may have been 1994) the appellant had been General Secretary of the Public Transport Staff Consortium (PTSC), a registered trade union. It was the case for the appellant before the Employment Tribunal that it was well known to the senior management of the respondents and, indeed, the whole of the bus transport industry in London that he held that position and that the withdrawal of the offer of employment to him was the last step in some kind of a conspiracy that had been going on to frustrate him and, indeed, PTSC in pursuit of its lawful trade union aims. On the other hand it was the case for the respondents that the respondents' employee, acting on her own responsibility, namely Miss Phull, had never heard of the appellant or the PTSC until these proceedings and that she withdrew the job offer which had been made to the appellant because a previous employer had stated to her in writing that the appellant had been dismissed from his employment by that employer, whereas the appellant had stated in the job application form that he had left that employer's employment in order to take up training as a driving instructor and it was for those legitimate reasons that the job offer had been withdrawn and that he had been refused employment. That was the issue for the Employment Tribunal to decide.[5]At paragraph 4 the tribunal directed themselves, correctly, that the burden of proof was on the appellant. It was for him to make out his case. They also reminded themselves and directed themselves that it would be very unusual to find direct evidence that an employer had refused to employ an employee by reason of his or her membership of a trade union so that they directed themselves that they might need to draw inferences from the primary facts and that if such inferences called for an explanation from the respondents then they would look to the respondents for such an explanation, examine it, and if it was unsatisfactory, decide that the appellant had been refused employment due to trade union membership. Now that is the direction that they gave themselves at paragraph 5 of the decision, and in our judgment it was a correct direction.[6]At paragraph 7 the majority of the tribunal, and it is recorded as it being the majority, made self-explanatory findings of fact which, in our judgment, were careful and relevant findings. They are difficult to summarise and we repeat that for their full effect it is necessary to refer in detail to that paragraph. Putting it shortly, the tribunal found that the respondents were a large bus company operating a fleet of red London buses mainly in northwest London. They found that the recruitment manager was Mr Madge and that in his absence Miss Phull, a recruitment assistant, who had been employed since September 1998, had dealt with the appellant's application for employment. They found that the appellant had been employed by London Transport from 1988 to 24th March 1995 and the majority found at paragraph 7(6) that he had been dismissed for gross misconduct in relation to that employment and that he was currently litigating about his dismissal in the Lambeth County Court.[7]The tribunal further found that in 1994 and 1995 the undertaking running London Buses had been privatised, as is well known, and in consequence the appellant resigned his membership of the T&G and helped set up PTSC of which he became the General Secretary. They found that PTSC had been successful in some substantial proceedings in the Industrial Tribunal (as it then was) and the Employment Tribunal found that such success had brought it into conflict with the T&G. The tribunal found that there had been press publicity about the appellant's dismissal and about his becoming General Secretary of the new union. They found that the appellant had applied for employment with the respondent on 8th April 1999 and had completed an application form. They found that on the form he had stated that he had left London Buses Ltd in March 1995 in order to train as driving instructor. He did not state on the form that he had been dismissed, according to the findings of the tribunal. He gave details of his employment for the last five years and the Employment Tribunal set all those out at paragraph 7(11) of their decision, including an employment with Q Drive Coaches from 10th September 1997 to 24th February 1998. The Employment Tribunal found that when Ms Rowley, a member of the recruiting team, interviewed him, it was recorded at Section F of the recruitment interview report by Ms Rowley that the appellant had outstanding litigation in respect of his employment with London Buses Ltd. On the findings of the Employment Tribunal, despite that, she offered him employment with the respondents subject to two satisfactory references from the last two employers and a satisfactory medical report, as was confirmed in the letter she sent on 8th April 1999.[8]The Employment Tribunal found that what then happened was that in accordance with the respondents' practices references were to be sought from the last two employers and Ms Rowley marked on the appellant's application form that such references should be sought "(1) against Q Drive Coaches name and (2) against that of London Coaches Ltd". The Employment Tribunal found that on 15th April 1999 a favourable written reference was received from Q Drive Coaches Ltd. The Employment Tribunal also found that the employers never approached London Coaches for a reference. The Employment Tribunal went on to deal with the normal practice of the recruitment department with regard to the processing of job applications and they found that when Ms Phull came to check the appellant's file in accordance with that usual practice, she found that there was one reference on the file from one referee not London General. The Employment Tribunal found that she then decided to carry out a check as to whether it was correct that the appellant had left his job with London General in order to take up driving instruction training. The Employment Tribunal found that she was then told over the telephone by a representative of London General that that was not correct but that in fact the appellant had been dismissed and that London General would not re-employ him. She sought and obtained confirmation of that in writing from London General which she received by a letter bearing the date of 13th April 1999. In consequence of what she had discovered she wrote to the appellant her letter of 13th April 1999 in these terms:
"Unfortunately, I am not able to offer you employment with London United Busways Ltd as a driver/operator."
[9]Those were in outline the findings of fact by the majority of the Employment Tribunal. The Employment Tribunal then recorded the submissions that were made to them at paragraphs 8 and 9, which we need not say anymore about. The Tribunal then expressed their conclusions from paragraph 10 onwards. In particular, at paragraph 11, the Employment Tribunal analysed the evidence and the facts that they had found and concluded that it did reveal a number of disquieting matters. They set those matters out in detail in paragraph 11 of their decision under headings numbered (1) to (4). The tribunal then stated in paragraph 12 that they were all agreed that there was enough in the matters that they had enumerated in paragraph 11 to raise a suspicion that all was not as it seemed. They expressed their view that their conclusions about those suspicions had the result that the respondents were, in effect, called upon for an explanation for their acts in withdrawing the appellant's offer of employment.[10]In our judgment, that was a correct approach as a matter of law for the Employment Tribunal to take, in circumstances where the primary facts and the inferences from those primary facts led the Employment Tribunal to conclude that there were matters that required further explanation. In our judgment it was correct for the Employment Tribunal to approach the matter by finding that there was then a responsibility on the employer to put forward an explanation. What then happened was the Employment Tribunal, by a majority, concluded in paragraphs 13 to 16 of their decision for the reasons there set out, that the employer had explained satisfactorily how the offer of employment came to be withdrawn and the majority pronounced themselves satisfied, as they did at paragraph 15, that the offer of employment had not been withdrawn because of any knowledge on the part of the respondents that the appellant was a member of trade union. They entirely rejected, did the majority, any suggestion that there was any kind of conspiracy to thwart the appellant and his trade union and they said:
"It would in their view, be ridiculous to suggest that Miss Phull was party to any such conspiracy."
[11]It is important, in our judgment, to note that particularly in paragraph 14 of the majority's decision which is of course the decision of the Employment Tribunal, that the majority dealt specifically with the problem that arose over the evidence of Ms Phull in relation to the circumstances in which she had dealt with the appellant's file. In particular, the discrepancy arising from the fact that if the reference from Q Drive Coaches had not been received until 15th April 1999, then how was it that Ms Phull had reviewed the file apparently earlier than that and written her letter of 13th April 1999. It is quite clear to us that the majority of the Employment Tribunal must have carefully considered that matter. It is one of the specific matters that had concerned the Employment Tribunal as recorded by them at paragraph 11(2) of the decision, where the Employment Tribunal state:
"Ms Phull's memory of the Applicant's file and how she dealt with it out of the many such files that she saw every day is poor but she believes that his file did contain one written reference. If that reference were the one from Q Drive, then she could not have been checking the file before 15 April, yet her letter of withdrawal was dated 13 April."
That was one of the matters which specifically concerned the Employment Tribunal. That is a matter which the majority of the Employment Tribunal had weighed, up and reached a conclusion about at paragraph 14 of the decision where the Employment Tribunal state:
"14 The majority's view is that the recollection of the Applicant's file and how she dealt with it is sufficiently accurate for us to take the view that her reason for sending him the letter withdrawing his offer of employment was based upon the previous employer's statements that he had been dismissed for a reason other than the one which he had given on his form of application for employment to the Respondent and that they would not re-employ him. It is clear that Ms Phull, acting on behalf f the Respondent, withdrew the offer of employment to the Applicant for those reasons and that no question of his membership of a trade union entered her mind while she was doing so."
In our judgment that was a conclusion, having weighed the matter up, that the majority of the Employment Tribunal were fully entitled to reach.[12]In our judgment, it was a matter for the Employment Tribunal, following by analogy the well known principles set out in relation to race discrimination cases in the case of King v Great Britain China Centre [1991] IRLR 513 CA to evaluate the explanation given by the respondents and to decide as an industrial jury whether or not they found it satisfactory. That is in accordance with the guidelines laid down by the Court of Appeal in King . The burden of proof does not shift to the employer, but the Employment Tribunal had to decide whether the employer's explanation was adequate and satisfactory, looking at the primary facts they found, weighing up the inconsistencies (which they thought called for an explanation) and finally deciding whether they accepted the employer's explanation. If they did not, then they should infer that the refusal of a job was on trade union grounds, but if they did, the applicant will not have made out his case.[13]In our judgment, that is exactly how the majority proceeded here and we accordingly can see no arguable point of law that arises on this application. It was a decision of the majority of the Employment Tribunal that they were entitled to make and which depended essentially on their assessment of Ms Phull as a witness of truth. In our judgment there is no ground of appeal on that basis.[14]It was suggested to us that there was a ground of appeal based on subsequent correspondence which we have not seen and in respect of which the Employment Tribunal made no findings arising after the withdrawal of the job offer which apparently took place between Mr Madge and the appellant. In our judgment such correspondence could not have altered the position in any event since the refusal of employment had taken place once Ms Phull had written her letter to the appellant withdrawing the offer of employment on 13th April 1999. So there can be no ground of appeal relating to such correspondence.[15]Finally, there was a suggestion that the Employment Tribunal had erred in some way in not allowing disclosure of documents, which had been sought from the Tribunal. In our judgment that matter cannot be raised by way of appeal at this stage. If there had been some kind of a refusal to grant discovery that was an interlocutory decision against which an appeal could have been made at the time but was not.[16]For all those reasons, despite the tenacious advocacy of Mr Ibekwe on behalf of the appellant, we have concluded that we must dismiss this application.