MR N WOLEX v RADIO TAXICABS (LONDON) LTD [2000] UKEAT 416_99_2206

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 416_99_2206Case No Appeal No. EAT/416/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N WOLEXAPPELLANTRADIO TAXICABS (LONDON) LTDRESPONDENT
Before
Mr Justice Maurice Kay Mrs D M Palmer Mr S M SpringerDate 22 June 2000
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED MR JUSTICE MAURICE KAY : This is the preliminary hearing of an appeal by Mr Wolex against the decision of an Employment Tribunal sitting at London (North) on 4th January 1999. On that occasion the Employment Tribunal dismissed Mr Wolex's complaint of race discrimination and adjourned his complaint of unfair dismissal. The proceedings in the Employment Appeal Tribunal have something of a history in that the matter originally came in for a preliminary hearing on 7th June 1999. On that occasion the preliminary hearing was adjourned for the provision of further evidence and documents and to give Mr Wolex the opportunity of amending his grounds of appeal.[2]The grounds of appeal have been amended and the documentation, which has been forthcoming, has been sent to the Employment Tribunal Chairman for comment. Comments have been forthcoming from that source and so the matter is now ready to proceed as a preliminary hearing.[3]Today, Mr Wolex is not present or represented. He wrote to the tribunal yesterday indicating that he would not be represented and inviting the tribunal to deal with the matter on the papers, although he also indicated that he would or might be in attendance today. He is not, but a telephone call by the EAT staff has elicited the response that he wishes the matter to be dealt with on the papers.[4]The background to the case is that the appellant was employed by the respondent in its radio control room in north London. On 17th September 1998 he was dismissed by the control room manager, Ms Gavin. The reason given for his dismissal was "bad timekeeping and absenteeism amounting to gross misconduct". The appellant contended that his dismissal was based on and was the result of race discrimination.[5]The Employment Tribunal examined the evidence in considerable detail but concluded that this was not a case of race discrimination. We do not propose to go into a great deal of detail about their conclusions. It was of some importance that the Employment Tribunal did not find the appellant to be a credible witness and they referred to two of his allegations, which they found to be "patently untrue".[6]The first was an allegation that he was the only black male employee in the control room. The second was that he was forced to work on a shift that nobody else wanted. In fact, the night shift upon which he worked was better paid than the other shifts and the appellant had asked to work on that shift. Moreover, there was evidence before the Employment Tribunal of the racial breakdown of the respondent's employee on both shifts and it was, according the factual finding of the Employment Tribunal, simply not true that he was the only black male employee in the control room.[7]This was, ultimately, a case which turned on the facts and the credibility of the witnesses. The outcome was that on disputed matters of an important kind the Employment Tribunal disbelieved the appellant and believed Ms Gavin.[8]The amended grounds of appeal concentrate on two matters. The first relates to a document described as an attendance record card, which emerged in the course of the hearing. It seems that the respondent prior to the hearing had not produced it but during the hearing it was requested by the Chairman and the respondent then produced it. The grounds of appeal go on to relate events in the following way:
"A copy was obtained during the lunch-break and produced by the Respondent after lunch and handed to the Appellant's representative with a brief explanation as to how the attendance record should be read. The Appellant's representative was given no time to take the Appellant's instructions on the ARC. Had this opportunity been allowed, the Appellant could have shown that he was not 58 minutes late on 12th July 1998 as the Appellant attended work every Sunday at midday, on the authority of his supervisor, Chris Cane. The Appellant can prove that the said Attendance Record Card (ARC) produced by the Respondent was wholly inaccurate. The ARC was completed by hand when it is usually computerised and furthermore, the ARC shows that the Appellant was 9 minutes late on 12th September and 8 minutes late on 13th September 1998. The Appellant was on leave from 2nd – 16th September 1998 inclusive and did not attend work at all on those dates. The Appellant was dismissed on 17th September 1998, however the ARC shows that the Appellant was on holiday on the 18th, 21st and 22nd September 1998, despite the fact that he had already been dismissed. The Appellant was not given a reasonable opportunity to provide evidence in rebuttal or produce his own hand-written time records in order to prove the above matters."
That account has been put to the Chairman of the tribunal following the swearing of the appellant's affidavit. The Chairman of the tribunal deals with it in the following way:
"… After the lunch break, the Respondent's witnesses gave their evidence which lasted from 1.30pm to 3.31pm. My notes of evidence record the fact that in the middle of Ms Gavin's evidence there was a break when the parties left the Tribunal room for 16 minutes (between 1.50pm to 2.06pm) in order to enable the Respondent to show the Appellant and his representative the Appellant's attendance record. On their return, the Appellant's Counsel did not apply to the Tribunal for more time to study those documents or take instructions from the Appellant nor for leave to introduce rebutting documents or oral evidence. It is not true therefore for the Appellant to contend, as he does, that his Counsel's request in this regard were denied. Had Counsel asked for more time, that request, in all probability, would have been granted. No application was made at the end of the Respondent's case for leave to recall the Appellant to give to give rebutting evidence nor for an adjournment in order to enable the Appellant to present what he now calls his own records which would have rebutted the Respondent's records."
To the extent that reference is there made to allegations over and above what we have quoted from the amended grounds of appeal, they are taken from the appellant's affidavit.[9]It is apparent that the appellant was represented by Counsel in the Employment Tribunal. When the attendance record card was made available the appellant's Counsel was given the opportunity to consider it and to take instructions. We also accept that if he had required more time and had made an application to that effect, it is probable that such an application would have been granted. In all the circumstances, it is difficult to see how the way in which the attendance record card was treated can be elevated into a point of law sufficient to merit the consideration of a full hearing in the Employment Appeal Tribunal. There are strict limits to the circumstances in which fresh evidence will be permitted. The attendance record card was available in the Employment Tribunal and there were facilities for its inspection and consideration by and on behalf of the appellant. The points which he seeks to make about it could have been made at the time. If more time had been needed, then we have no reason to suppose it would not have been granted. In all those circumstances, we do not find that there is a point of law in relation to the attendance record card which is suitable for further ventilation in the Employment Appeal Tribunal in the sense that it would have any prospect of success if it were advanced.[10]The second matter upon which the appellant seeks to rely arises in a slightly different way. In September 1998, after his dismissal, the appellant claimed under an insurance policy which covered payments for a home improvement loan. He also claimed under a payment protection policy to cover his mortgage. In his affidavit he states that he was informed by way of a letter dated 3rd December 1998, from CGU Insurance, that they would be making enquiries with the respondent and that they would contact him once their enquiries were complete. A questionnaire was sent to the respondent by CGU Insurance for verification of the circumstances of dismissal. The hearing before the Employment Tribunal took place on 4th January 1999. The appellant states:
"… In April 1999, I was informed that the Respondent had completed the questionnaire and it had been received by the insurance company. I requested a copy of the completed questionnaire and received it with a letter from CGU Insurance dated 7.04.99."
[11]The point which the appellant seeks to make about this documentation is that it only came into his possession after the hearing in the Employment Tribunal but that if he had had it at the time of the hearing it could have been used to cast doubt on the credibility of the respondent's witnesses and therefore might have resulted in a different assessment of the respective credibility of the witnesses for the appellant and for respondent.[12]The document completed on behalf of the respondent and dated 9th December 1998 referred to the circumstances leading up to the termination of the appellant's employment as "unacceptable attendance, unacceptable performance". It indicated that there had been no prior written or verbal notices. In answer to the question "Was the claimant's employment terminated due to misconduct?" the answer was "No". It is said that that is at variance with the evidence placed before the tribunal on behalf of the respondent. There, the case was put forward as one of "gross misconduct" and reference had been made as far back as the respondent's IT3 to the appellant having been "spoken to on many occasions about this and had received several verbal warnings."[13]We have considered this document with great care. The question is whether its presence at the hearing would have been likely to have made any difference to the outcome of that hearing. In the document the respondent's responsible officer did not conceal that the reasons for the dismissal had been "unacceptable attendance and performance". That was substantially consistent with the case that was advanced before the Employment Tribunal. The answer in the negative to the question whether the employment was terminated due to misconduct is difficult to relate to the particularisation of unacceptable attendance and performance, as is the denial of prior verbal warnings which was asserted in the IT3. When the papers were referred back to the Chairman of the Employment Tribunal for his comments he said of this matter:
"In collective experience of the Tribunal members it is a fact that mortgage references are given by employers to help out their employees – that is no indication as to whether they are or are not competent employees."
We return to the question which lies at the heart of this aspect of the case, namely would the presence of the CGU questionnaire as completed on behalf of the respondent have made any difference to the outcome of the hearing in the Employment Tribunal. Having regard to the totality of the decision of the Employment Tribunal, and to the serious and fundamental matters about which it justifiably disbelieved the appellant, we have come to the conclusion that it would not have made any difference at all.[14]Accordingly, we take the view that this appeal does not raise any point of law with any prospect of success. Accordingly, we dismiss it.