MRS M MIRIKI v THE GENERAL COUNCIL OF THE BAR [2000] UKEAT 768_99_0412

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 768_99_0412

Case No Appeal No. EAT/768/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS M MIRIKIAPPELLANT

THE GENERAL COUNCIL OF THE BARRESPONDENT

Before

His Honour Judge H Wilson Mr K Edmondson

Date 4 December 2000

[1]APPEARANCES For the Appellant MISS JANE DEIGHTON Solicitor Instructed By: Messrs Deighton Guedella Solicitors 30/31 Islington Green London N1 8DU For the Respondent MS TESS GILL (of Counsel) Instructed By: The General Council of the Bar 2/3 Cursitor Street London EC4A 1NE JUDGE H WILSON : This has been the full hearing of the appeal by the original Applicant against the decision of the Employment Tribunal sitting at London (North) on 1 April 1999 that the Applicant's claims were to be dismissed. The Applicant had appeared in person and the Respondents had been represented by Ms Eady. Today the Applicant has been represented by Miss Deighton and the Respondent has been represented by Ms Gill.

[2]Another division of this Tribunal at the preliminary hearing gave leave for the matter to proceed to full argument on the ground that there was a possible misdirection of law in the failure of the Tribunal to separate the question of fairness or otherwise of the dismissal from any question of compensation that might arise. That is a distinction which should be kept clearly in mind, having regard to the decision in Polkey v Dayton Services Ltd

[1987] IRLR 503

[3]Secondly, the Tribunal hearing the preliminary application considered also that there might be merit in the submission that the parties would not know, in broad terms, what evidence the Tribunal had accepted and what evidence it had rejected and why it chose not to draw any inferences. That complaint was directed principally to the second of the issues, which had been before the Employment Tribunal, namely the question of race discrimination.

[4]Because of the conclusion to which we have come, we do not propose to go too deeply into the facts of the matter. Suffice it to say that the Applicant is 32 years of age and had worked for the Respondent for some seven years. She complained of various matters in her application, the relevant ones being complaints of unfair selection for redundancy and therefore of unfair dismissal and racial discrimination. She had been on maternity leave during 1997 and then, when she returned from that leave, shortly thereafter by agreement with the Respondent, she had taken holiday, some of which was unpaid, in order to return to visit Nigeria. This was in the middle of 1998. During the period she was away she contracted malaria so that she did not return, as expected at the end of the month, and was in fact away for over three months. During that period changes were made in the organisation of the Respondent's affairs so that very rapidly after her return she was dismissed by reason of redundancy.

[5]The Respondent denied unfairness and racial discrimination. It claimed that it had been going through a lengthy and detailed amount of administrative change and restructuring which had led to the virtual disappearance of the Applicant's job. However, they claimed that the full implication had emerged only during her holidays and subsequent illness and that any question of consultation and discussion had not been possible. It does appear however that the changes were at the very least (to use a neutral word) presaged before she went on holiday.

[6]We note that the Extended Reasons do not contain the customary recital of facts found proved by the Tribunal. Neither do they disclose clearly what facts were found proved. In those areas where there was conflict of evidence, the Extended Reasons do not disclose which evidence was accepted and why. Furthermore, the Extended Reasons lack the customary quotations from the relevant parts of the statutes or statute to be applied. Perhaps because of that lack, coupled with the failure to recite the facts found proved, in our judgment the Employment Tribunal has fallen into error over the questions which it should have asked itself with regard to the matters before it.

[7]So far as dismissal is concerned, in our view the Employment Tribunal erred in law in failing to direct itself correctly concerning the definition of fair consultation in the terms set out in paragraph 27 of the judgment in the case of Mugford v Midland Bank

[1997] IRLR 208

, at page 210 and also, in particular, paragraph 36 of that judgment.

[8]So far as racial discrimination is concerned, in our view the Employment Tribunal fell into error in failing to identify the questions it should have asked itself concerning less favourable treatment and, in the event that such was found, the further question whether or not it had been due to racial grounds.

[9]It seems to us, therefore, that the entire decision is flawed and that the matter should be returned to a differently constituted Tribunal for a re-hearing.