MR O OKPONOBI v 1) HOLLAND & BARRETT RETAIL LTD 2) MR M MAYES 3) MRS D SMITH 4) MR M MORAN [2001] UKEAT 1269_00_1105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1269_00_1105Case No Appeal No. EAT/1269/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O OKPONOBIAPPELLANT1) HOLLAND & BARRETT RETAIL LTD 2) MR M MAYES 3) MRS D SMITH 4) MR M MORANRESPONDENT
Before
Ms Recorder CoxDate 11 May 2001
[1]APPEARANCES For the Appellant MR A OLUFEKO (Solicitor) Liberty Solicitors 85 Kingsland Road Shoreditch London E2 8AG MS RECORDER COX QC This is an appeal from the decision of an Employment Tribunal sitting at Stratford which was promulgated on 29 August 2000. It comes before us today by way of a Preliminary Hearing.[2]The Employment Tribunal dismissed the Appellant's complaints of race and sex discrimination, breach of contract and wrongful dismissal. They found against the Appellant on the first Respondent's counter-claim for the return of sums wrongly paid to him and, on that last matter, the Appellant was ordered to pay the sum of £809.93 to the first Respondent. The Tribunal dismissed the Appellant's claim for a set off.[3]The Appellant, who is of African origin, was employed by the first Respondent as Branch Manager at their Dalston Cross branch until his dismissal in November 1997. In addition to the first Respondent employers, there were 3 named Respondents who at the material time were employees of the first Respondent. It is clear from our bundle of documents that this case has had a somewhat protracted procedural history, including a previous appeal to this Appeal Tribunal. The issues in the case were summarised by the Employment Tribunal in paragraph 3 as follows.[4]The first, in respect of discrimination on the ground of race, was whether the Appellant was racially abused by Mr Mayes and whether the course of conduct of the first, second and fourth Respondents amounted to discrimination on the grounds of race.[5]Secondly, in respect of sex discrimination, whether the first and third Respondents discriminated against the Appellant, Mr Okponobi, on the ground of sex, in relation to his appeal against his dismissal; there was also an allegation of discrimination on the ground of sex in relation to the way in which Mr Okponobi's grievances were investigated.[6]Thirdly, in respect of the complaint of breach of contract and wrongful dismissal, whether it was justifiable to dismiss Mr Okponobi summarily; and fourthly, in respect of the counter-claim and set off, whether there was such an overpayment as the first Respondent alleged and whether any money was due to the Applicant on the set off.[7]The hearing took place over the course of 4 days adjourning part heard in the middle. The Appellant was represented by his solicitor Mr Olufeko (who has appeared before us today) and the first Respondent was represented by Counsel. It seems that the second and fourth Respondents appeared in person and the third Respondent, whose name was Mrs D Smith, did not attend.[8]Some confusion arose before us this morning over the Originating Application, which was before the Employment Tribunal. It appears that the Originating Application in our bundle, presently at pages 12-16, was not in fact the Originating Application on which the Employment Tribunal proceeded. In paragraph 1 of their extended reasons on page 6 of that bundle they refer to having an amended Originating Application in front of them and it appears that that document was the one which appears in our bundle at pages 50-61. It is not clear that there was ever an order giving leave to amend the Originating Application but the Tribunal clearly refer to one and have proceeded upon it and that is the basis on which we have approached this matter today.[9]In his Notice of Appeal the Appellant presently contends that this Employment Tribunal made errors of law in the following respects and I am summarising the grounds of appeal.[10]Firstly, it is alleged that there was an error of law in holding that the Appellant was not sexually discriminated against, when his dismissal was similar to that of a woman who was also dismissed for taking unauthorised holiday for two weeks, but who was then allowed to continue her employment by being re-instated on appeal, while conversely the Appellant's dismissal was upheld on appeal by the same person.[11]It is alleged that the Tribunal acted contrary to Section 1, Section 4 (c) and (d) and Section 6 (2) of the Sex Discrimination Act 1975 and the person referred to who dealt with the appeals was in fact the third Respondent Mrs Denise Smith.[12]) Secondly, it is alleged that there was a misdirection and an error of law in the Tribunal's conclusion that the Appellant had not been racially discriminated against. It is alleged that there were facts and evidence which justified the Tribunal in drawing the conclusion that the second Respondent Mr Mayes treated the Applicant less favourably than he would have treated a white person and, further, that the second Respondent had harassed and victimised the Applicant and used racist abuse in dealing with him.[13]Thirdly, it is alleged that, in failing to hold that the second Respondent Mr Mayes treated the Appellant less favourably then Mr Jawad, on racial grounds, the Employment Tribunal misdirected themselves and erred in law.[14]Fourthly, it is alleged that the Tribunal's decision was perverse because it is said that it was in conflict with the facts and evidence given before the Tribunal. There are particulars given of the allegations of perversity.[15]These in essence comprise the failure to refer in their reasons to two witness statements which were of assistance to the Appellant. There are alleged to be factual inaccuracies in the reasons relating to the Appellant saying that Mr Jawad was present when the second Respondent verbally abused him. In addition, the finding that the Respondent thoroughly investigated the allegation of racial abuse by the Appellant against the second Respondent was contrary to the evidence, it is said, which indicated that the investigation was not thorough, was not in accordance with procedure and was not supported by the evidence.[16]In relation to the counter-claim the Appellant contends that there was an error of law in failing properly to consider the set off figures and in not putting the Respondents to strict proof in relation to the figures which they claimed.[17]Those then were the grounds of appeal. In addition today Mr Olufeko produced a skeleton argument which he conceded was provided late in the day but which we gave him leave to refer to and which we read. In this skeleton argument he refers specifically to the question of victimisation and submits to us today that the evidence below showed that the Appellant was unlawfully victimised by Mr Mayes after he had made a complaint against him.[18]It is also said that the evidence showed that he Appellant was victimised by Mrs Smith (the third Respondent) after he had complained about her in July 1997, maintaining that she could not protect his interests and after he had also taken out an action against her at the Employment Tribunal as a co-respondent.[19]There is also an allegation that Holland & Barrett allowed the Appellant to be victimised and harassed by failing to protect him, knowing that he had already made complaints against these people.[20]In submissions to us this morning Mr Olufeko sought to develop the arguments about victimisation in particular as they concerned the third Respondent Mrs Denise Smith.[21]We have considered all these matters extremely carefully this morning. Our role at this Preliminary Hearing is to see if we are satisfied that there is any reasonably arguable error of law made by the Employment Tribunal in arriving at their decision.[22]We conclude that we are not persuaded, save in one respect, that the Appellant has demonstrated arguable errors of law in the decision of this Tribunal. The exception relates to the question of victimisation and the particular role in this case of the third Respondent, Mrs Denise Smith.[23]It seems clear from the amended Originating Application, on which this Tribunal proceeded, that at paragraph 25, under the heading of sex discrimination, which starts at page 60 of our bundle, there were specific allegations made about the role of Mrs Smith and I read the relevant paragraphs because they are important.[24]At paragraph 26 it is said that the Applicant's dismissal for gross misconduct was upheld by Mrs Smith on 3 March 1998 and that:
"In the same vein the same arbiter of the Appeal Hearing, Mrs Denise Smith (female), overruled the dismissal of Mrs Michelle Walcott on 10 December 1997."
[25]At paragraph 27 the Applicant contends that where an employee and himself were accused of the same or similar offences of unauthorised absence and the female employee is treated differently, this amounts to "double standards and sex discrimination." Then, importantly, we see the following two paragraphs.[26]Paragraph 28; that:
"the female employee who conducted his appeal hearing was biased against him because the Applicant had already lodged an application in the Industrial Tribunal against her, as a Respondent in a racial discrimination case."
[27]Paragraph 29: that:
"the first Respondent, Holland & Barrett, knew of his Originating Application against the third Respondent, Mrs Denise Smith, but failed to protect him against her sexually discriminating against him."
[28]Paragraph 30; it is said that the Appeal Hearing was:
"against all the tenets of natural justice"
And it is in relation to Mrs Smith's role and the particular allegations in paragraphs 28 and 29 that there are alleged to have been breaches of natural justice.[29]It is clear when one looks at the Notice of Appearance, which was filed by the Respondents and which we have in relation to the relevant paragraphs 47-49 at page 32 of our bundle, that the employer's case was that Mrs Smith had held a hearing with the Applicant on 3 February 1998, lasting some three and a half hours, to discuss his appeal and grievances.[30]In paragraph 49 it is said that on 2 March 1998 Mrs Smith concluded her investigations and wrote to the Applicant with her findings. She upheld the Applicant's dismissal for unauthorised absence and reported that there were no apparent grounds to substantiate his grievances. Then the specific allegations are denied.[31]In paragraph 24 of their reasons, the Employment Tribunal find that the Appellant's appeal was rejected by Mrs Smith on 3 February 1998. It seems clear that that is an error because it appears from the document I have already referred to that the dismissal of the appeal did not take place until March 1998. That is why the allegation referred to at paragraph 28 of the amended Originating Application was an important one. Although it is not expressly referred to as an allegation of victimisation under the Race Relations Act 1976 that is clearly what it amounts to. This Appellant was clearly alleging that Mrs Smith, who conducted the Appeal Hearing, was biased against him because he had already lodged an application in the Industrial Tribunal naming her as a Respondent in a racial discrimination case.[32]The curious feature of this Employment Tribunal's decision and the reason we conclude that in relation to the complaint of victimisation, concerning Mrs Smith, there is an arguable error of law, is that they do not refer anywhere in their decision to this complaint or to the evidence which, we are assured by Mr Olufeko, was placed before them on the role of Mrs Smith and the extent to which there had been unlawful victimisation.[33]Certainly the matter is not referred to on the first page, in relation to the unanimous decision of the Tribunal; and in their extended reasons the Tribunal nowhere makes any reference to an allegation of victimisation.[34]It seems clearly arguable to us that this was an issue in the case and an allegation which this Employment Tribunal were required to determine and that they failed to make a determination upon it. That in our view amounts to an arguable error of law in relation to the Employment Tribunal's decision and merits being considered at a full hearing.[35]Save in respect of that one matter we are not persuaded that the Employment Tribunal made any error of law or arrived at a perverse decision. I shall, in the remainder of this judgement explain why. After they had identified the issues in the case, the Tribunal then go on to set out the evidence given before them. They set out clearly, at paragraphs 6 onwards, the conflicting accounts as between the parties on particularly significant issues before them and they say clearly which evidence they preferred and why.[36]The fact that they did not refer specifically to two particular witness statements does not mean that they did not consider them. An Employment Tribunal is not under any duty to record in their reasons every piece of evidence which has been put before them, so long as they explain clearly the important conflicts and arrive at reasoned decisions as to which evidence they prefer and why. Nor is the fact that there have on a couple of occasions been factual inaccuracies contained in their reasons indicative in itself of an error of law, particularly when there are many matters on which the Tribunal make findings of fact/arrive at conclusions. It cannot, in our view, be reasonably argued that the factual inaccuracies in this case were central to their decision or mean that the Tribunal arrived at a perverse conclusion.[37]Importantly in this case it seems to us that this Tribunal were clearly not satisfied on all the evidence that they had heard, that this Appellant had been racially abused by the second Respondent. Nor were they satisfied that the second Respondent had taken two weeks leave and been authorised to do so in November 1997. Nor were they satisfied that Mr Jawad had been appointed as Manager in place of the Appellant before the Disciplinary Hearing, which led to the Appellant's dismissal, had taken place.[38]It seems to us that, having set out the facts, they then directed themselves correctly on the relevant statutory provisions of the Race Relations Act 1976 and the Sex Discrimination Act 1975 . They acknowledged at paragraph 32 the difficulty for Applicants in both sex and race discrimination cases to produce direct evidence of discrimination and the legitimacy for a Tribunal to infer in an appropriate case that discrimination had occurred, if the Tribunal considered that that inference was appropriate on the facts as found.[39]We consider that, in paragraphs 33-36, they then correctly applied those legal principles to the facts before them. They concluded, in paragraph 33, that it was not appropriate to draw any inference of racial discrimination in relation to the Respondent's actions, given the facts found relating to the two previous written warnings and the fact that he had taken unauthorised leave.[40]Similarly, in paragraphs 34 & 35 they found that the complaint of sex discrimination had not been made out and made findings of fact which clearly indicated that they thought the circumstances of the dismissal and reinstatement on appeal of the female employee was a decision which was made in entirely different circumstances and did not permit the Appellant to succeed in a claim that that demonstrated less favourable treatment on the ground of his sex.[41]In respect of the counter-claim, as the Tribunal record in paragraph 37 the Appellant did not contest the figures produced by the first Respondent when he gave evidence and alleged that he had not had an opportunity to check his bank statements. It is said in paragraph 37 that no argument was raised as to why the Appellant was not liable to repay the money alleged by the first Respondent to have been paid to him in error after his summary dismissal.[42]In those circumstances the Tribunal accepted the Respondent's evidence that those payments had been made and amounted to the sum claimed. Similarly in relation to the set off the Tribunal referred in paragraph 38 to the Respondent's Staff Rules and Conditions of Employment, under which an employee who is dismissed summarily for gross misconduct forfeits all rights to holiday and concluded that no holiday pay was due.[43]They find that Mr Okponobi was not entitled to overtime and that any days allowed to be taken in lieu of overtime must be holiday. Accordingly, they say "we found he was not entitled to set off any amounts against the sum due on the counter-claim".[44]Once again in respect of those conclusions we can see no reasonably arguable error of law made by this Employment Tribunal.[45]Save therefore in respect of the one matter relating to the allegation of victimisation, in respect of Mrs Smith's role, we take the view that there are no reasonably arguable errors of law on any of the other matters raised and we dismiss the appeals which are presented on those grounds.[46]Obviously in respect of the one matter we have identified that is a matter which should proceed now to a Full Hearing.