MR B AFOLAYAN v (1) STAR TEXACO (2) MISS J KELLY [2001] UKEAT 1088_00_0404

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1088_00_0404Case No Appeal No. EAT/1088/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B AFOLAYANAPPELLANT(1) STAR TEXACO (2) MISS J KELLYRESPONDENT
Before
MISS RECORDER ELIZABETH SLADE QCMR D A C LAMBERTMR P A L PARKER CBEDate 4 April 2001
[1]APPEARANCES For the Appellant MR A OKAI (of Counsel) Instructed By: Messrs Ormerods Solicitors Green Dragon House 64-70 High Street Croydon CRO 9 XN MISS RECORDER SLADE QC : This is the preliminary hearing of an appeal by Mr Afolayan against the dismissal of his claims by an Employment Tribunal. The hearing before the Employment Tribunal occupied nine days. The reserved decision was sent to the parties on 11th August 2000.[2]The Employment Tribunal had before it four Originating Applications from Mr Afolayan, a supervisor formerly employed by Star Texaco Ltd in its garages. In the first Originating Application, on 28th October, 1996, Mr Afolayan made allegations of race discrimination and victimisation under the Race Relations Act 1976 against Star Texaco Ltd and a Miss J Kelly, an area manager. An appeal against the striking out of the 1996 application was allowed on 24th May 1999 on the basis that no sufficient notice had been given by the Tribunal that it was proposing to consider the question of striking out. A second Originating Application, on 17th June 1998 alleged further race discrimination and victimisation by Star Texaco Ltd and Miss Kelly. By a third Originating Application on 10th September 1999 Mr Afolayan alleged race discrimination and victimisation by Star Texaco Ltd and Mr Thirukkumar, a site manager. Finally, by a fourth Originating Application on 25th January 2000 Mr Afolayan alleged victimisation by Mr Doukanaris, an area manager, and race discrimination and victimisation, unfair dismissal and unlawful deductions from wages by Star Texaco Ltd. It is a curious feature of these cases, involving as they do claims of race discrimination, that the only reference to the applicant's race is in Reply 47 to the Request for Further and Better Particulars of the 1998 Originating Application. There is no such reference in the Decision of the Employment Tribunal.[3]The seven page Grounds of Appeal and fifteen page skeleton argument raise the following grounds of appeal: perversity (Grounds of Appeal, paragraph 1); error of law in holding that Star Texaco Ltd is not properly joined as a party to the proceedings (paragraph 3); denial of natural justice in so deciding when the issue as to the appropriate respondents had not been "raised or disputed whether at the interlocutory stage or at the full merits hearing" (paragraph 4); failing to give adequate reasons for favouring the testimony of those who gave evidence on behalf of the respondents over that of Mr Afolayan (paragraph 5); error in concluding that complaints in relation to bonuses and unpaid hours were out of time (paragraph 15); error in concluding that because other employees were subject to the same inadequate consultation before the transfer of the garage on which he was working, Mr Afolayan was not discriminated against and/or error in failing to consider his complaint as one under Regulation 11 of the Transfer of Undertakings Regulations 1981 ['TUPE'] (paragraph 16); error in concluding that Mr Afolayan had not been dismissed on the transfer of the garage on which he worked when he was issued with a P45 (paragraph 16.1, 16.2). In addition, Mr Afolayan raises many issues of fact. He also invites the Employment Appeal Tribunal to admit fresh evidence relating to the transfer of the part of the business in which he worked.[4]The Employment Tribunal held that Star Texaco Ltd was not properly joined as a party to the applications. It held that the company's liabilities in respect of Mr Afolayan's employment had transferred to Pimlico Capital Limited trading as Seletar on the transfer of the part of the undertaking, the garage, in which Mr Afolayan was employed – (see Decision paragraph 21). Although this conclusion was sufficient to dispose of the claim against Star Texaco Ltd, the Employment Tribunal decided that certain complaints were out of time and expressed its conclusion on those that were in time or those that it held were just and equitable to consider. (see Decision paragraphs 26 and 27). As for the complaints against Star Texaco Ltd, it held that Mr Afolayan had failed to prove constructive dismissal, breach of contract, race discrimination and unfair dismissal – (see Decision paragraph 41). So far as the individual respondents are concerned it dealt with the claims against them in the following paragraphs of its Decision: Miss Kelly, paragraphs 30, 43; Mr Thirukkumar, paragraph 38; Mr Doukanaris, paragraphs 20, 21 (lxxiii), 42 and 43.[5]We have considered whether any of the grounds of appeal raise a reasonably arguable point of law.[6]Dismissing Star Texaco Ltd from the proceedings In our view no error of law has been demonstrated in the conclusion of the Employment Tribunal on this issue in paragraph 21 of its Decision. The tribunal correctly referred to TUPE Regulations 5(1), (2), (4A) and (4B) – (see Decision paragraph 14). It was agreed between the parties that there was a transfer of part of the business in which Mr Afolayan was employed and that it was a transfer within TUPE – (see Decision paragraphs 21, 22). The sale agreement which Mr Okai, who appeared for Mr Afolayan, invited us to look at and which we did, de bene esse as it was not available to the Employment Tribunal confirmed that this was the case. Mr Afolayan did not allege that he objected to becoming employed by the transferee (see 2000 IT1 Grounds paragraphs 5-9). The Employment Tribunal did not err in concluding that all outstanding claims before it were liabilities which became the responsibility of the transferee, Pimlico Capital Limited trading as Seletar (see DJM International Ltd v Nicholas [1996] IRLR 76 ). Nor did it err in holding that the correct respondent to the Originating Application which post dated the transfer was again Pimlico Capital Limited – (see Decision paragraph 21). In our view an attack on this conclusion does not reveal a reasonably arguable point of law.[7]However we are troubled by the contention in the Grounds of Appeal that:
"4. The issue as to the appropriate Respondents to the claim was never raised or disputed whether at the interlocutory stage or at the full merits hearing."
In paragraph 2 of the their Notice of Appearance to the 2000 Originating Application:
"The Respondents deny that they are liable for any matters alleged by the Applicant against his employer following the date of the transfer."
The point that liability for race discrimination claim arising from events before the transfer to the transferee was not then being raised. In our view it is arguable that the Tribunal erred if and to the extent that it based its decision to dismiss the claims against Star Texaco Ltd on a point upon which the applicant's representative was not invited to make submissions. We consider the point not to be of academic interest only. The appellant should have the opportunity of making submissions on the consequences of not being invited by the Employment Tribunal to make submissions on the point. For example, application may have been made to amend to add the transferee as a party, albeit that such an application would have faced an uphill struggle in the circumstances.[8]We consider that paragraph 4 of the Grounds of Appeal raises an arguable point of law. If this ground of appeal is pursued, unless the respondents agree that the issue as to the appropriate respondents was not raised at the hearing, the Chairman of the Employment Tribunal should be invited to give his comments on whether it was raised.[9]Inadequate reasons for decision on credibility Parties appearing before an Employment Tribunal are entitled to know from the decision why they have won or why they have lost. It is arguable that this Tribunal erred in failing to give adequate reasons for preferring the evidence of the respondents' witnesses to that of the applicant. For example, as is stated in paragraph 5.1 of the Grounds of Appeal, it failed to indicate, in paragraph 19 of its Decision, which documents or categories of documents on which issues it found persuasive against the credibility of the applicant.[10]Perversity The general allegation in paragraph 1 of the Grounds of Appeal that the Decision was "grossly inconsistent with the evidence advanced at the hearing" appears to be unparticularised and not to comply with the Employment Appeal Tribunal Practice Direction 2(5). However, it may be that paragraphs 8, 10, 11, 12 and 13 of the Grounds of Appeal are intended to contain such particulars. Paragraph 1 of the Grounds of Appeal taken together with paragraph 8 and 12 just reach the threshold of revealing an arguable basis for attacking the conclusion of the Tribunal in relation to its decision on the claims against Miss Kelly. We cannot say that paragraph 1 of the Grounds of Appeal taken together with paragraphs 10, 11 and 13 do not reveal arguable allegations of perversity affecting the conclusions of the tribunal relating to the corporate respondent. Although these grounds of appeal would only affect the outcome of the claims against Star Texaco Ltd if the decision of the Employment Tribunal dismissing the company from the proceedings were overturned or if some other order were made which would leave open the possibility of the transferee being joined to the proceedings, they do relate to an independent basis for the decision of the Employment Tribunal affecting the former employer, and are therefore not merely of academic importance. The remaining grounds of appeal on perversity which raise factual issues do not, in our view, raise reasonably arguable points of law.[11]Complaints held out of time Paragraphs 14 and 15 of the Grounds of Appeal challenge the Decision of the tribunal that the complaints relating to non-payment of bonus and wages were out of time. These were treated by the Employment Tribunal as brought under the Race Relations Act 1976 – (see Decision paragraph 26). Grounds 14 and 15 appear to raise an arguable ground of challenge on the basis of perversity, albeit that this ground would only affect the outcome of the claims if the decision to dismiss Star Texaco Ltd from the proceedings were overturned or if an order were made on the hearing of the appeal which ultimately resulted in the transferee being joined to the proceedings.[12]Transfer of an undertaking: inadequate consultation and failure to hold that there had been a dismissal Paragraph 16 of the Grounds of Appeal does not reveal a reasonably arguable point of law. The Employment Tribunal recorded that no complaint under Regulation 11 TUPE had been made – (Decision paragraph 33). It also considered whether there had been any discrimination in relation to consultation and found that there had been none - (Decision paragraph 42). As for the allegation that there had been a dismissal or difference of treatment by virtue of the issue of a P45 form, the Employment Tribunal did not err in its approach to the issue – (Decision paragraph 42). A transfer of an undertaking affecting Mr Afolayan had taken place. The Employment Tribunal held at page 21 paragraph 20 (lxxiii):
"The Transfer was delayed and took place on 9/11/99. All the staff at the three sites were transferred save for Mr Festus who is black."
The transfer did not operate so as to terminate the contract of employment of Mr Afolayan but his contract of employment was subject to the statutory novation brought about by such a transfer – (TUPE Regulation 5(1) and Secretary of State for Employment v Spence [1986] ICR 651 at p.661F).[13]Fresh Evidence By paragraph 17 of the Grounds of Appeal Mr Afolayan asks the Employment Appeal Tribunal to admit fresh evidence which was not before the Employment Tribunal. We looked at that evidence, de bene esse. It appears to be the fourth Schedule to an agreement between Texaco Limited ('Texaco') and Seletar Limited ('Seletar'). The subject matter of the Schedule appears to be the sale of the business of garages. It is to be noted that the names of the transferor and transferee are slightly different from the first respondents to the claim in the Employment Tribunal and the transferee referred to in its Decision. It appears that the fourth Schedule confirms that Mr Afolayan's contract of employment, along with that of other employees, was transferred to Seletar pursuance to TUPE (see Clause 8.1. and Part 2. The inclusion of the list of employees in Part 2 of the Schedule rather than Part 1 is unexplained). Since it was not in issue that Mr Afolayan was employed in a part of the business of Star Texaco and TUPE applied to the transfer, the fresh evidence would not have affected the Employment Tribunal's decision. Thus the evidence, although it became available since the hearing, could not be said to have an important influence on the result. We are therefore not prepared to order that it should be admitted – see Wileman v Minilec Engineering Ltd [1988] ICR 318.[14]Generally The appeal against the dismissal of the claim for unfair dismissal is dismissed for the reasons set out paragraph 12 above. Paragraphs 4, 5.1 paragraphs 8, 10, 11, 12 and 13 taken together with paragraph 1, and paragraphs 14 and 15 of the Grounds of Appeal contain arguable points of law. Therefore the appeal on these grounds against the dismissal of the claims against all the respondents for race discrimination and victimisation under the Race Relations Act 1976 and for unlawful deduction from wages against Star Texaco Ltd should proceed to a full hearing. By so deciding we do not intend to convey any indication that the appeal has a reasonable prospect of success.