MR D S PAPHITIS v BRITISH TELECOMMUNICATIONS PLC [2001] UKEAT 1133_00_2302

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1133_00_2302Case No Appeal No. EAT/1133/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D S PAPHITISAPPELLANTBRITISH TELECOMMUNICATIONS PLCRESPONDENT
Before
Mr Justice LindsayDate 23 February 2001
[1]APPEARANCES For the Appellant THE APPELLANT BEING NEITHER PRESENT NOR REPRESENTED MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr D S Paphitis in Paphitis v British Telecommunications plc . Mr Paphitis does not appear. There has been some contact with him this morning. He indicated that because of difficulties at his work it would be very difficult for him to attend. Indeed, it was learned that he was not going to attend and, when invited by the Associate to say whether he would be content that we dealt with the matter on the paper that we have in front of us, he indicated that he would be satisfied with that and so that is what we do. On 3rd February 2000 he presented an IT1 for unfair dismissal and victimisation. He said:
"I don't believe I was treated fairly by BT management at any point as I was subjected to harsh and extreme decisions by BT management, that are very rare and the combination of these decisions unique to any employee in BT. …"
[2]On 6th March 2000 BT lodged an IT3 that gave a very detailed refutation of Mr Paphitis' claims.[3]On 1st August 2000 there was a hearing at London (Central) under the chairmanship of Mrs R S Martin. On 17th August 2000 the decision was sent to the parties and it was:
"The unanimous decision of the Tribunal is that the Applicant was fairly dismissed by the Respondents under the provisions of the Employment Rights Act 1996. His complaint of victimisation under the provisions of the Race Relations Act 1976 is also dismissed."
Mr Paphitis had been there in person.[4]On 7th September 2000 the EAT received a homemade Notice of Appeal. He has supplemented it with a skeleton argument. The gist of his complaint is, as we understand it as follows: firstly, that in March 1997 he had been offered redundancy only to have the offer rescinded very shortly before he was about to leave. He brought proceedings in 1997 against BT complaining of race discrimination, but his claims all failed. He was held not to have been discriminated against or dismissed. He was therefore advised to carry on working for BT. But he revived his request to be made redundant. He therefore had to continue to work for BT but stress, caused, he said, by an allegation of a misdemeanour at work, drove him to leave work for sickness reasons. He went off sick in February 1998 and he remained off sick. Eventually, as he puts it, BT found a way of dismissing him on 11th November 1999 on the ground of his refusal to return to work. Accordingly, he lodged his IT1 of 3rd February 2000. He continued by saying that the tribunal failed to take into account the events and circumstances surrounding his 1997 Employment Tribunal proceedings. Had the Tribunal done so, he says, it would have seen that the machinations of BT were intended to procure that he was not redundant, nor was dismissed by way of redundancy, and that, in that way, he would be denied a redundancy payment. He also claimed that he was victimised by reason of his earlier proceedings for race discrimination and that he had been unfairly dismissed.[5]We are bound to say that the full and careful extended reasons of the Employment Tribunal paint a very different picture. As to the tribunal's failure to take account of the 1997 proceedings, the Employment Tribunal, of course, had them drawn to its attention. They said:
"3 It was disclosed to this Tribunal that Mr Paphitis had brought earlier proceedings against his employers complaining of race discrimination. This complaint was heard at Stratford from 26 to 30 October 1998, and deals with a number of allegations of race discrimination up to and including January 1998. All the complaints brought by Mr Paphitis were dismissed by that Tribunal. It was explained to Mr Paphitis at the outset to this hearing that matters of fact on which the 1998 Tribunal had made findings could not be re-opened."
The tribunal's observation that the facts then found could not be reopened was entirely proper. Mr Paphitis was entitled to urge that it was by reason of the 1997 proceedings that he was, in 1999, treated as he was, but that argument failed on the facts found. The tribunal held:
"9 Mr Paphitis was asked by the Tribunal to identify the nature of the victimisation about which he was complaining. He stated: (a) that he was not given an opportunity to apply for voluntary redundancy, (b) that no one rang him at home when he was away and (c) that he had been dismissed. He was unable to provide any evidence that he had been treated differently from any other employee, or that if there had been any difference it was on account of his race. Given that the 1998 Tribunal had already made a decision there was no race discrimination we believe that the allegations now being made are false and not made in good faith."
[6]It is not as if there were no other reasons available for Mr Paphitis's dismissal. The tribunal found the following facts: he went off sick in February 1998. By June 1998 he was declared fit to return to work. However, he claimed that he was not fit. BT, at the time, thought it best to await until after 1997 proceedings were over (and there was a hearing of them, as we have seen, in October 1998). BT recognised that there was a difficulty inherent in requiring him to work where he had previously worked, given the breakdown in mutual trust engendered by his 1997 proceedings. Accordingly, they sought alternative employment for him and offers were made to him. He did not return to work. He was medically examined in March 1999. He was found fit to return to work. BT tried to find a position that could be thought to represent a clean break with his past at the company. By July 1999 his new line manager was writing as follows, after another offer had been declined. She was a Miss Close, and the tribunal said:
"On 15 July Miss Close replied stating that she was now seriously considering terminating Mr Paphitis's employment and in writing invited him to discuss the matter. In that letter she accepted that the 1998 Tribunal had irretrievably affected his relationship with his previous managers, but assuring him that the job on offer would be under managers not in any way connected with his previous job. Mr Paphitis declined the offer of a meeting."
The tribunal continued:
"6 On 26 August 1999 Miss Close wrote to Mr Paphitis informing him of the decision to dismiss him, on the grounds of his refusal to return to work. She gave her reasons in detail and attached a rationale for her decision. She refers at the end of that rationale to Mr Paphitis's inflexibility and refusal to comply with a reasonable request. Mr Paphitis was informed that he had two routes of appeal. (a) against the decision to dismiss him and (b) to appeal for retirement on medical grounds. Mr Paphitis chose (b) and this appeal was heard by Mr Abbott and was dismissed, after further reference back to Dr MacCauley. 7. Mr Paphitis's case throughout has been that his refusal to return to work was because he feared further victimisation and discrimination from BT managers who knew of his previous history and Tribunal complaints. He named those managers and agreed that he was not being asked to return to work for any of them …"
The tribunal directed themselves by reference to section 98 of the Employment Rights Act 1996 and to the Race Relations Act 1976 , section 4. They incorporate parts of the language of section 98 into their concluding paragraph 12. The tribunal found that the truth was that Mr Paphitis had been anxious to terminate his employment, hoping that he could leave by way of a voluntary redundancy or on medical grounds. But there was no redundancy. The company was, in fact, recruiting. The medical grounds did not stand up. As for his complaint that he could not return to work for the same management, the tribunal indicated, as we have mentioned, that he was being asked to return to people whom he had not worked for previously. It will be noted also that the tribunal, who had the benefit of hearing Mr Paphitis in person, held that some of his allegations had not been made in good faith and that some of his objections had been spurious. The tribunal is the master of fact. We can only deal with error of law. At this stage we can detect not even an arguable error of law. Accordingly we must dismiss the appeal even at this preliminary stage.