MR E H OKO-JAJA v BREAKTHROUGH UK LTD [2000] UKEAT 947_99_1701

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 947_99_1701

Case No Appeal No. EAT/947/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR E H OKO-JAJAAPPELLANT

BREAKTHROUGH UK LTDRESPONDENT

Before

Lord Gladwin of Clee

Date 17 January 2000

[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON MR COMMISSIONER HOWELL QC: In this appeal which comes before us today for a preliminary hearing Mr Eddy-Hillary Oko-Jaja who appears in person seeks to pursue an appeal against the decision of the Manchester Employment Tribunal comprised in extended reasons sent to the parties on 6 th August 1999 after hearings which took place on 17 th , 18 th , 19 th March and 13 th May 1999; and a further decision declining to review that decision, which was sent on 16 th November 1999 after a further hearing which took place on 18 th October 1999. The two sets of extended reasons for those decisions are contained in the appeal file at pages 15-34 and 44-49 respectively, that is a total of some 25 pages of closely typed reasoned decision making on this Appellant's case.

[2]The original grounds on which the Appellant applied to the Tribunal were that he had been discriminated against on the grounds of his race, on the grounds of his disability, and also that his employers had been in breach of contract by dismissing him during a probationary period. I should say that Mr Oko-Jaja is a person from Nigeria who has the misfortune to suffer from a disability and has to use a wheelchair, and the employer against whom these proceedings are brought is a company called Breakthrough UK Ltd which, as he told us, is a company wholly owned by the Manchester City Council and set up by it to provide employment and services to people suffering from disabilities.

[3]At the time of the events giving rise to this appeal there were, he told us, some 24 employees and managers, who had either transferred to the employment of the company from the Manchester Social Services Department or had been specially recruited. Because the transfer from direct control of the social services department had taken place relatively recently, his line manager in particular had only recent experience of the work of this company.

[4]The Tribunal's decision was to reject all the Applicant's complaints; their basic conclusion being that the reason things had not worked out with his employment with the company and that the employment relationship had been brought to an end by the Respondent was that it had turned out, unfortunately, that he was not capable of doing the work he had been employed to do. That conclusion can, for present purposes, be summarised in the words of the Tribunal themselves, in paragraph 22 of their decision at page 34 of appeal bundle in following terms:

"The Tribunal rejected the contention that there was any conspiracy against the Applicant by the four witnesses who gave evidence on behalf of the Respondents. One of those witnesses took the decision to employ the applicant in the first place and she together with the other witnesses endeavoured to encourage the applicant to meet a performance level which was required. He did not reach that required level and he was unresponsive to the encouragement that was given to him by all 4 officers who gave evidence. The respondents' organisation required a basic standard of interpersonal and administrative skills and the applicant was not able to display the required standard. The Tribunal rejected the suggestion that this had been a concerted effort on the part of the four witnesses who gave evidence to remove the applicant from his post by actions, words or conduct. The Tribunal was able to evaluate each witness who was subjected to detailed cross examination by the applicant"

. In those circumstances all the Applicant's claims were dismissed by the Tribunal, which found that the case against the Respondent had not been established on a balance of probabilities.

[5]Before this Tribunal, Mr Oko-Jaja seeks to appeal against that decision on two principal grounds set out in his Notice of Appeal on page 1 of the appeal file. Taking them in the order in which he has argued them before us today, the first is that the Tribunal erred in not holding the Respondent to have been in breach of contract in dismissing him during the running of his probationary employment period. He had been employed on 13 th July 1998, and his dismissal had taken place, following three performance reviews, eventually on 8th September 1998. The first of those performance reviews had taken place on 13 th July 1998, that is after he had been in the Respondent's employment for only two weeks.

[6]The criticism he seeks to raise against the Tribunal's findings and their rejection of his breach of contract claim is that it was wrong in law for the Tribunal to accept that any review of the kind undertaken could be legitimately undertaken consistently with the terms of the contract, in the way and at the time it was; in view of a provision in the contract, expressly allowing for performance reviews to be undertaken by his line manager at 13 and 25 weeks from the date when he was originally employed. The contract also expressly provided that there was to be a probationary period of 26 weeks from the date of his original employment.

[7]We are not satisfied that the argument he seeks to make on that issue provides him with an arguable ground of appeal. It does not seem to us that the fact that the contract contain an express provision allowin g performance reviews to be undertaken by the line manager at 13 and 25 weeks from the original date of employment even arguably implies that an earlier review, or an earlier consideration of the employee's capability to carry out the work, is precluded at any earlier date if circumstances should arise (as the evidence accepted by the Tribunal shows that they did arise in this case) reasonably requiring the question of whether he was suitable for the job and/or the job was suitable for him to be considered at an earlier date.

[8]He further alleges that the reviews that were undertaken were initiated and dominated by the person superior in the organisation to his immediate line manager, and that this embodied a breach of the provision in his contract that reviews in relation to his employment would be undertaken by his line manager. The Tribunal dealt with the facts on this issue in paragraph 11(15) of the recital of the facts and of their findings, at page 26 of the appeal file, in the following terms:- "(15) The applicant's contract of employment provided at paragraph 13 that there was probationary period of 26 weeks at the commencement of his employment. During that period reviews would be undertaken after 13 and 25 weeks by his line manager. Jeanette Buonocore was not the applicant's direct line manager. His line manager was Theresa Cartmill. The performance reviews which were undertaken took place in week 3, week 5 and week 7 of the applicant's employment with the respondents".

[9]The issue of the alleged breach of contract was dealt with by the Tribunal in paragraph 19 of their extended reasons at page 32 of the appeal bundle, where they recited the terms of the contract that were outlined in the paragraph of their decision that I have just read and continued:- "The applicant's complaint was that he had to undergo reviews during weeks 3, 5 and 7. The Tribunal accepted the proposition that this could constitute a breach of contract in the circumstances. Th respondents' officers were entitled, within the boundaries of an employer employee relationship, to respond to problems which arose early in the course of the applicant's employment. A contract of employment cannot conceivably cover every single contingency that arises during the course of an individual's employment. A contract was designed to provide essential elements to establish a basis for work and a basis for remuneration. It would not proscribe all eventualities. The applicant's line manager concluded that the applicant was not meeting a minimum required level of competence within a short time of his appointment. She did not feel able to let the matter proceed for a period of 13 weeks. She did not have the experience to deal with matters alone. Therefore, together with another senior officer, she undertook the performance review strategy. The Tribunal concluded that the respondents were entitled to embark upon this process in the good management of their undertaking". For those reasons, (and for the additional reason that they gave in the following paragraph, that they were satisfied that an implied term existed that if any employee was not performing to an adequate standard, the employer acting reasonably could monitor performance and act) they held that the breach of contract claim was not established and they dismissed it.

[10]In view of the clear findings of the Tribunal embodied in the paragraph I have just quoted that the review in this case was initiated by the line manager herself, we do not feel able to be satisfied that the Appellant's complaints as to a process having taken place without regard to the terms of the contract, show any error in law in the way the Tribunal dealt with this case. It seems to us that the implied term on which the Tribunal reasonably based themselves, as well as that finding, provide clear and adequate reasons for the Tribunal to have rejected the breach of contract claim. For that reason, we do not accept that there is a sufficiently arguable ground on the head of contract to allow that aspect of this appeal to go forward to a full hearing of this Tribunal.

[11]The second main ground on which the Notice of Appeal takes issue with the Tribunal's decision was that set out paragraph (a) on page 1, that the Tribunal had erred in law by deciding on allegations he had made of unlawful sex and race discrimination by considering only the one limb of direct discrimination and leaving out what is described in the Notice of Appeal as "the second limb or indirect discrimination". It is alleged that the Tribunal misdirected itself or misunderstood the Applicant's argument, in error or by design.

[12]The original Notice of Application to the Employment Tribunal had simply alleged three grounds for the complaint, namely "discrimination on race grounds, discrimination on disability and breach of contract"; which were further elaborated, but without any suggestion in the Originating Application itself to warrant indirect discrimination being regarded as a freestanding and separate head of the discrimination claims.

[13]The Tribunal specifically recorded that at the hearing before them, the Applicant had referred to the question of indirect discrimination, but recorded also that it had not been argued as a separate issue by either party during the course of the case: see paragraph 13 of their Extended Reasons, at page 27 of the appeal file where that is expressly recorded.

[14]The Appellant having lodged with his Notice of Appeal an Affidavit asserting that the Tribunal had improperly failed to deal with indirect discrimination as a separate issue in this case, the observations of the Chairman were obtained in the usual way and dealing with this suggestion, they are as follows (set out on page 10 of the appeal documents before us):- "3. The applicant did not argue that he was claiming indirect race or sex discrimination before the Employment Tribunal. There was no evidence called on behalf of either party with regard to this issue. The issue of indirect discrimination, either on grounds of race or sex, was not argued before the Tribunal by the applicant or the respondent in oral evidence. The statutory definition of indirect race discrimination did appear in the respondents' closing submissions by definition only. It was acknowledged during submissions made by the parties that it was not applicable to the case under consideration . The applicant did not refer to indirect discrimination in his submissions to the Tribunal at the conclusion of the case. If the applicant had, as he now suggests, advanced a claim of indirect discrimination based upon grounds of sex or race, then the Tribunal would have wished to have heard arguments from both parties on the topic in order to determine such a claim and the basis for such a claim. The Tribunal made findings of fact in relation to the relevant factual issues and made its determination with regard to the law based upon those findings and inferences". The Chairman adds that he does not understand the assertion of indirect disability discrimination which was now advanced by the Applicant as this does not appear to have a foundation in law within the statutory definition in the Disability Discrimination Act 1995.

[15]On that material, we are not satisfied that the question of indirect race or sex discrimination was raised before the Tribunal in anything like sufficiently clear form to warrant separate consideration as an issue by the Tribunal in their decision or the reasons for it. We are not satisfied that any arguable ground for saying that the Tribunal erred in law in failing to deal more specifically with this issue has been shown by the Appellant.

[16]Those are the only two grounds stated as grounds of appeal in the Appellant's Notice of Appeal at page 1 of the appeal file but it is fair to say that in that and the supporting documents, the Appellant has raised a number of additional matters and has sought to persuade us this morning that this appeal should be allowed to go forward for a full hearing on those further matters which he seeks to raise as issues of law. They can be conveniently considered together. It appears to us that all the points he argued, or seeks to argue, under this head relate to alleged failures by the Tribunal to deal adequately with evidence that he claims to have put before the Tribunal, but the Tribunal has either not accepted or has not referred to specifically in the extended reasons for their decision. It is also right to say that these matters have not been raised specifically in the Appellant's stated grounds of appeal on page 1, so that if we were to allow such issues to go forward for consideration by a full hearing of this Tribunal, the question of leave to amend that part of the Notice of Appeal would have also to be dealt with. The general allegation is made in paragraph 3 of his Notice of Appeal document at page 2 of the file, which states (in his words):

"3) Perverse ET was manifestingly perverse in the approach it has taken to arrive at this decision. Besides being perverse in law, ET also was perverse in the manner it considered evidences"

. And a particular criticism is made in paragraph (a) on the same page:- "a) The ET failed to fully balance all the evidence that I presented with those of the respondent. As a matter of fact, most of the evidence that went to my favour or strengthened my case were either left out of the extended reasons or superficially touched". And in paragraph (d) on the same page:- "d) My evidence to show conspiracy was similarly not considered and not admitted. It is evident that extended reasons did not mention that. The significance of this was to show why and how I was sacked and collaboration in giving evidence against me by other staff".

[17]In the argument before us this morning, the Appellant supplemented that by criticisms that the Tribunal had failed to deal adequately with evidence on two particular complaints that he was seeking to raise: that he had been discriminated against by the Respondents in failing to provide him either with a key to the building in which he worked, or with a telephone extension to make it easier for him to make telephone calls in the course of his work, when other employees had been given these facilities.

[18]A further ground raised in the papers although not specifically touched on in argument before this morning, is that he had sought to adduce evidence to support his case from a gentleman (who I think was a taxi driver) on an issue of fact; and that oral evidence from that witness had not been taken in front of the Tribunal when the Appellant wished that witness to attend and give oral evidence on behalf.

[19]All of the points sought to be raised under these heads appear in our view to represent attempts to reargue the case on the facts. The material issues of fact have already been considered and decided by the Tribunal, which is the body charged by parliament with deciding factual issues on cases of discrimination and employment dismissal. This Tribunal only has jurisdiction to interfere with the decision of any Employment Tribunal when an error of law is shown, and it is well established that it does not amount to an arguable error of law simply that the Appellant is dissatisfied with the findings of the Tribunal of fact when the evidence has been heard and the case has been decided against him. It is also well established that although it is the duty of an Employment Tribunal dealing with issues of fact to give a reasonable explanation of its reasons, sufficient for the parties to understand who has won and who has lost the case and why, it is not the duty of a Tribunal to deal over-elaborately with every single point of fact that is put in issue before them, or to go exhaustively into factual issues provided that the factual findings to support their decision are recorded with reasonable clarity.

[20]On the specific factual issues referred to in argument this morning, it is apparent to us from the extended reasons for the Tribunal's decision given after the main hearing that these are factual issues on which the Tribunal has made and clearly recorded findings of fact; and we can see no ground for allowing the case to go forward on any issue of law in relation to them.

[21]Dealing with the issue of the failure to provide the Appellant with a key, the Tribunal recorded in paragraphs 16(i) and 17(i) of their decision, that they accepted the reasons given by the Respondents for their inability to provide the Appellant with a key. The uncontested evidence as recorded on paragraph 16(i) on page 28, was that approximately 9 employees out of 24 were provided with a key. They made specific findings that no adverse treatment had resulted to this Appellant as a result of his not having not having been provided with a key, and said that they did not draw any adverse inference from the Respondents actions and did not consider there had been any difference of treatment towards him. That paragraph was dealing with alleged race discrimination. Similarly, in paragraph 17(i), dealing with the same issue under the head of Disability Discrimination, they recorded similar findings that the Tribunal did not consider that there had been a duty to provide the Appellant with a key as a reasonable adjustment required in the circumstances, as he had not been substantially disadvantaged by the failure to provide him with it.

[22]The second issue was as to an alleged disadvantaged as a disabled person from not providing him with a telephone extension. Again, this was dealt with on the facts by the Tribunal, at paragraph 17(iv) at the foot of page 31, where they held that he had accessibility to a telephone at his desk. He was rarely required to answer the telephone: he had not been placed at a disadvantage, and had not been proved he was subject to a substantial disadvantage so as to warrant any complaint under this head. Similarly, in dealing with the facilities for him to rest himself, they held that the provision that had been made for him was adequate; and did not consider that he had established that he was at a substantial disadvantage as a disabled person as a result.

[23]The final question to which we wish to refer specifically was the allegation that the Tribunal had refused to entertain evidence from a material witness. This appears to us to be an unarguable ground to warrant pursuing an appeal, in view of what is recorded by the Chairman in his observations at the foot of page 11, paragraph 6, where he refutes the suggestion that the Tribunal was "manifestingly perverse" and records that:- "The Tribunal was provided with a witness statement from Mr Partington, the applicant's second witness. It was an agreed statement. It was supplied to the Tribunal on the 18 th March 1999 and submitted in evidence. It was read by the Tribunal. It formed part of my record of the proceedings which notes that the statement was read by the Tribunal members. The applicant did not require this witness to give oral testimony".

[24]Since the evidence sought to be given by this witness was, as recorded there by Chairman, recorded in writing and uncontested, and accepted by the Tribunal, there would have been no practical purpose in calling him to give the same evidence or be cross-examined on it orally; and we reject the suggestion that the failure to hear that witness's evidence orally amounts to any arguable error in procedure on the part of the Tribunal which could render their decision defective.

[25]There being no other points which appear to us to give rise to an arguable ground for allowing this appeal to go forward to a full hearing of the Tribunal we unanimously now dismiss this appeal for the reasons we have explained.