MR N ONIGBO v GROUP 4 TOTAL SECURITY LTD [2000] UKEAT 640_00_0111

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 640_00_0111Case No Appeal No. EAT/640/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N ONIGBOAPPELLANTGROUP 4 TOTAL SECURITY LTDRESPONDENT
Before
His Honour Judge H Wilson Ms N Amin Dr D GrievesDate 1 November 2000
[1]APPEARANCES For the Appellant MR N ONIGBO (In Person) JUDGE H WILSON This has been the preliminary hearing of the proposed appeal by Mr Onigbo against the unanimous decision of the Employment Tribunal that he was not discriminated against on racial grounds by the Respondent company. Mr Onigbo has represented himself today, as indeed he did before the Tribunal.[2]The case that he originally brought included a claim pursuant to part 2 of the Employment Rights Act 1996 in respect of alleged unlawful deduction of wages. That claim was withdrawn by the Applicant at the beginning of the proceedings before the Employment Tribunal. He had also claimed victimisation but withdrew that complaint also. The matter before the Employment Tribunal therefore was the Appellant's case that he was paid less favourably than other employees of the Respondent and that the reason he was paid less favourably was racial, because he is a black African.[3]The Appellant before us has referred to the schedule which was attached to the extended reasons for the Employment Tribunal's decision and which had been prepared and submitted on behalf of the Respondent company. Mr Onigbo says that he objected to that schedule before the Tribunal but there is no mention of that in the extended reasons and the Tribunal say in those reasons that they found the schedule very helpful and accurate. Mr Onigbo, however, has claimed before us that it is inaccurate and in his phrase:
"the people just put down what they wanted in that schedule"
. As a result, or in any case, he says that the wage slips were not properly scrutinised and that like was not compared with like.[4]Mr Onigbo has gone in some detail over the ground which was clearly covered before the Employment Tribunal and we have had regard to the complaints that he makes, in particular we have scrutinised the table to which he objects. We compared the table as we read it with what the Tribunal said about it in paragraph 5 of their extended reasons. We find no reason to suspect that the Employment Tribunal got it wrong, having regard to what they set out in paragraph 5, and we find nothing upon which to base disagreement with the final sentence of paragraph 5 which states that:- "Having listened to the evidence and having been provided with various examples where the schedule has been examined and cross-references made to the relevant pay slips we are satisfied that the information contained in the Schedule is accurate."[5]The Tribunal then made a series of findings of fact. In particular, under the sub-paragraphs of paragraph 6 of their reasons, they dealt in considerable detail with the itemised complaints made by Mr Onigbo, concerning the different rates of pay for different employees and for different sites. We find, as indeed the Employment Tribunal found, that the Respondent's wage structure is "rather complicated" to adopt the wording of the Employment Tribunal. It seems to us, having heard Mr Onigbo, that it is very understandable why it is not only complicated, but extremely confusing. Because of things which could be remedied quite simply, the Respondent company brings cases like this upon itself. Having said that, however, we find no reason to think that if this matter proceeded to full argument it would have any chance of success.[6]We have found nothing to undermine the statement in paragraph 7 of the Employment Tribunal's reasons, where they summarise the position as follows:
" …..if a guard goes to a site he receives either his employee rate of pay or the total site rate of pay and whichever is the greatest. In operating this system the respondent has on the face of the schedule been entirely consistent. Moreover it is clear that on some sites the applicant received more than some of his white colleagues, on other sites the applicant received the same as his white colleagues and yet on further sites the applicant received less"
In paragraph 9 of the Decision the Employment Tribunal state that they looked to the Respondent for an explanation for the different rates of pay, and they found that:- "The explanation put forward by the respondent is that different employees were on different rates of pay depending upon when they were employed and whether they were on Guard Defence, Euroguard or Total Security terms and conditions of employment. Further different rates of pay might be payable depending upon the sites at which the guard worked and the contractual arrangements that existed between the respondent and the owners of the site. …..It is clear that every employee, irrespective of race, received whichever is the higher of their employee rate or the site rate…"[7]We have found nothing in what Mr Onigbo has sought to put before us which was not before the Employment Tribunal. It is not for us to differ from their findings of fact and we, as I have said, can see no reasonable prospect of success were this appeal to go to full argument. Accordingly it must be dismissed at this stage.