MR V T APELOGUN-GABRIELS v 1) LONDON BOROUGH OF LAMBETH 2) MR I BOWRY 3) MR N GOOD [2001] UKEAT 1478_00_2602

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1478_00_2602Case No Appeal No. EAT/1478/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V T APELOGUN-GABRIELSAPPELLANT1) LONDON BOROUGH OF LAMBETH 2) MR I BOWRY 3) MR N GOODRESPONDENT
Before
Mr Justice LindsayDate 26 February 2001
[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, the appeal of Mr T Apelogun-Gabriels in the matter Apelogun-Gabriels, against, first of all, London Borough of Lambeth and secondly, Mr I Bowry and, on the face of things, there is a third Respondent, Mr N Good, but he, as will transpire as we go through the chronology, was struck out from the proceedings at an earlier stage.[2]Mr Gabriels has appeared before us in person. Mr Gabriels does find it difficult to express his arguments shortly, and the Employment Appeal Tribunal's habitual practice of allowing an hour for preliminary hearings did concern him; in fact, we have taken over an hour and a half, and have, I hope, managed to hear him on all the points in his Notice of Appeal, going through it numerically.[3]Something needs to be said of the background to the case; we do not need to go earlier than 16 January 1997 when Mr Gabriels, as an employee of Lambeth, was suspended, we do not need to go into why that was so. On 18 November 1997 there was a disciplinary panel and later, an appeal. The panel initially recommended a final written warning to be given to Mr Gabriels but later that was reduced to a two year written warning and on 3 March 1998, Mr Gabriels returned to work, following the suspension and the disciplinary matters which were, by then, put behind him.[4]After a while, he raised a fresh grievance, containing some twenty complaints going back over four years. By 25 June 1998 there was a formal grievance lodged complaining of racial discrimination. We mention the grievance background because it is reflected in what happens in the future.[5]On 16 November 1998 Mr Gabriels lodged an IT1 for "unlawful racial discrimination, victimisation, harassment, bullying, breach of employment rights". He had been employed since 2 April 1990, latterly as an Accounting Assistant; he continued to be employed by Lambeth. The IT1, it has to be said, is vague, but it makes some rather general allegations: he was overloaded at work, he was put under unfair pressure, he felt bullied by his departmental managers, but very little detail was given. The grievance was continuing. On 19 November 1998 there was a three hours grievance meeting, at which Mr Gabriels was represented by his union representative, and the grievance was entirely, eventually rejected.[6]On 1 March 1999, Lambeth put in an IT3, giving a detailed survey of various shortcomings which they alleged in relation to Mr Gabriels work and noting what had been done in relation to them. They said:
"21 It is averred that the Employment Tribunal does not have jurisdiction to hear the Applicant's complaints which relate to the period before 17 August 1998, on the ground that they have been presented outside the statutory time limit."
[7]On 7 June 1999, Mr Gabriels presented a fresh "Statement of Complaints". On 2 September 1999 there was a Directions and Jurisdiction Hearing at the Employment Tribunal; inter alia , it did permit the addition of some of the new allegations in the Statement of Complaints. It limited the hearing to specific paragraphs of that Statement of Complaints. Mr Good was struck out from the proceedings, so he takes no further part as a party.[8]The Tribunal, on that day, as a unanimous decision of all three, said that the Tribunal had jurisdiction to determine the following of the Applicant's complaints, as set out in his Statement of Complaints dated 7 June 1999, and then they list them - paragraphs 41 - 45, paragraphs 49 and 52, paragraph 53, paragraphs 55, 58, 60, 61 and 62. Those were the only parts that were allowed to go forward to the substantive hearing.[9]On 5 July 1999 Lambeth amended its Notice of Appearance, responding to the new Statement of Complaints, those allowed to go forward. Then came the full hearing and that took place between 17 November 1999 and 30 November 1999; it was spread over some eight days, with another day in Chambers, at London South, under the Chairmanship of Mr D M Booth. On 2 December 1999, the unanimous decision of the Tribunal was sent to the parties and it was that the application was dismissed.[10]On 11 January, a Notice of Appeal was presented by Mr Gabriels. It is a document of considerable length in comparison with Notices of Appeal; it takes almost 12 pages of typing, and we shall need to come back to it, but, before going to the Notice of Appeal, it is worth summarising, as far as possible, the nature of the issues that that were identified in those particular paragraphs at the directions hearing. They can be described in summary, as follows: first of all direct discrimination as to the grievance hearing of 25 May 1998 and as to the Grievance Panel's report on 23 December 1998 and in relation to Lambeth's failing to redress the situation; direct discrimination and victimisation in respect of the grievance panel's report of 23 December 1998, and complaint as to the length of time taken in responding to the grievance, which prolonged Mr Gabriels' suffering, so he claimed. That was dealt with in paragraph 53 of the Tribunal's decision, the decision that is under appeal where they said:
"53 We find the grievance panel dealt with his grievance fairly. The fact that one member went home a few minutes early made no difference to their conclusion, and the fact they took a long time dealing with it, albeit regrettable, was understandable because of the reorganisation and was a mark of the care with which they considered finding an acceptable solution as well as adjudicating upon the complaint. The grievance panel was racially balanced and we consider its decision to be wise. It was not less favourable treatment of the Applicant upon racial grounds."
[11]The second broad heading allowed to go forward by the directions hearing was "Overloading Mr Gabriels with work"; the overloading being done by Mr Bowry. Well, the Tribunal dealt with than in their paragraph 15; they say that Mr Gabriels was achieving only half the required level of output and in their paragraph 27, they say:
"27 We have already covered much of this allegation because it forms part of the grievance, and therefore we add only this. We find as a fact that Mr Gabriels was given a similar amount of work to others, and that the reason he did not complete this work was because he did not agree with his manager's priorities and that he carried this agreement to extreme lengths."
I think it must be "disagreement", not "agreement". They continued:- "The staff with similar jobs and identical job descriptions were able to complete these tasks easily and we could not see any evidence from which we could conclude that race was a factor in this." And then they return to the matter a little later in their paragraph 54 headed "Work Overload":
"54 It follows from the facts we have found that we reject this allegation. The Applicant was given no more work than anybody else and the fact that he could not complete it was because of a difference in attitude based upon his qualifications, and as time went on his attitude to his managers. This is not a difference of treatment on racial grounds and we reject this."
[12]Then the next heading was what one might call "The Olive Johnson incident"; that was dealt with by the Employment Tribunal at their paragraphs 32 and 33, and in paragraph 57 headed "The Olive Johnson incident", the Tribunal says:
"57….. we accept the reasons Mr Bowry gave to us because of the severe problems he had with the Applicant not completing his workload. It is therefore an explanation which we can accept without drawing an inference of less favourable treatment on the grounds of race. We therefore reject it."
They had begun by saying:
"57. We appreciate that Mr Gabriels may have been hurt by this as he may well have been genuinely trying to help Ms Johnson."
But then they give the explanation that we have just mentioned.[13]Then there was the rather unpleasant subject of the "Spitting gesture" on 23 October 1998. This was dealt with by the Tribunal in their paragraphs 28 - 32, and in paragraph 55 they say:
"55 Because no action was taken against the Applicant by the authority it is difficult to see less favourable treatment. He [Mr Gabriels] was disturbed that Mr Bowry had complained about him to Mr Ward. That of course would only be less favourable treatment if it was intended that his complaint should be brought to Mr Gabriels' attention. But even if that be so, having heard both Mr Bowry and Mr Gabriels on the subject as well as Mr Kowalczyk we are satisfied that the complaint was genuine and would have been made in similar circumstances against any employee of whatever race. We therefore reject that complaint."
That was Mr Bowry complaining about Mr Apelogun Gabriels.[14]The next broad heading allowed to go forward at the directions hearing was what one might call the "working hours problem"; that was dealt with by the Tribunal at paragraphs 43 - 44, and it was returned to, in paragraph 56, where the Tribunal said:
"56…………We are satisfied that both Mr Bowry and Mr Kowalczyk acted within their powers, and that they would have dealt with questions by any other employee of whatever race in the same way. We therefore reject that complaint."
[15]The next heading was Mr Bowry overloading Mr Gabriels with work on a particular occasion, on 12 February 1999. Well, we have already read paragraph 54 which deals with the overloading issue.[16]Next, there were complaints that were allowed to go forward in relation to Mr Gabriels' colleague, Mr Kowalczyk. They were dealt with at paragraphs 26 - 36, and also in paragraph 58, where the Tribunal says:
"58 We accept Mr Kowalczyk's explanation in each of these. On the first, over the laser printer, this was no more than part of the wear and tear of daily office life and we cannot conclude that this would not have been said to anybody of whatever race. On the other two they were legitimate and justified exercise of his authority as the Applicant's line manager. We therefore reject these complaints."
[17]Then there were complaints about a Mr Freeman, and the introduction of a new computer system, and the training in relation to it, and the possibilities of things going wrong, and its being deliberately tampered with by Mr Bowry to Mr Gabriels' disadvantage. Well, the Tribunal said:
"59………..Having heard Mr Freeman's explanation of the way the system worked (or on occasions when it did not work) we are quite satisfied that the Applicant's difficulties were not brought about by human intervention."
[18]Then complaints about the Oracle payment code; they were dealt with first in paragraphs 37 to 39, and then, again, in paragraph 59, the Tribunal returned to them, saying:
"59……………The Applicant's line of reasoning was in fact to try to demonstrate that anything which happened to him, if it could physically happen must have happened at the hands of those who wanted to treat him less favourably on racial grounds. This as we have said is fanciful and frivolous and we must reject it."
Now, that is by no means intended to be a full dealing with these complaints; it is just going over the particular areas that the directions hearing allowed to go forward, and showing that they were dealt with in the way that we have cited.[19]Going therefore to the Notice of Appeal, one first needs to have in mind what the Tribunal said about the nature of the case that they heard. In paragraph 11 they said that:
"11 There was no disagreement over the basic facts of the case. Although of course they were viewed from a different perspective by each side and each side drew markedly different conclusions from them. We have not therefore recited them in detail, but only enough to meet the guidelines in Meek v Birmingham City Council , namely, sufficiently to explain our conclusions and to explain to the Applicant why he has lost."
Later, in their paragraph 47, the Tribunal says:
"47. The parties had no disagreement about the law, and agreed that this case turned wholly upon its facts."
And, indeed, that seems to have proved to have been the case.[20]The Notice of Appeal first complains that Mr Apelogun Gabriels' complaints as to the grievance procedure were not sufficiently addressed. But it was not complaints about the whole grievance sequence that had been allowed to go forward, only that part dealt with in Mr Grabriels' original paragraphs 41 - 45, in his Statement of Complaints. That part was, as we see it, dealt with in the way we have indicated already by our citation from the Tribunal's decision. The Tribunal heard the witnesses and saw them, and found no substance in such parts of Mr Gabriels' complaints as had been allowed to go forward in relation to the grievance generally.[21]We should add that Mr Gabriels unsuccessfully appealed the limitations which had been imposed upon him at the directions hearing on 2 September 1999. At a preliminary hearing at the Employment Appeal Tribunal, his appeal against those restrictions was dismissed. We have not been told of any appeal to the Court of Appeal in respect of that dismissal. Therefore, Mr Gabriels is inescapably bound to limit his case to that prescribed at the directions hearing in September 1999.[22]So far as concerns the complaints about the grievances, such as were allowed to go forward by that directions hearing, the Tribunal dealt with the complaints and found them to lack substance. We see no error of law, even an arguable one, as having been identified by Mr Gabriels and so this part of the case is not to go further forward.[23]Secondly, "Work overload"; we have already read the Tribunal's paragraph 54; no arguable error of law seems to emerge in this part, and this part, also, is not to go further forward.[24]The "Spitting gestures" is the third heading, Mr Gabriels says of this:
"1. That the ET did misrepresent my complaint of the 23 rd October 1998 and avoided making a ruling on it."
But, as we have already cited, the Tribunal did make a finding. The complaint was rejected. No arguable error of law emerges here, and this part is not to go further forward.[25]Fourthly, "Working hours and flexi-time"; we have already noted paragraph 56 of the Tribunal's decision. The Tribunal's reaction to Mr Gabriels' complaint was given in their paragraph 45, they say:
"45 One of the security features of the computer system was that a payments processor could not amend credit details, and thereby direct Council's money to somebody who was not a creditor. By mistake Mr Gabriels who, it would be recalled, had the job of inputting data for payments had been granted this facility. When this error was spotted it was withdrawn on 15 June 1998; Mr Gabriels complained that this was an act of race discrimination."
But when the Tribunal returned to the point, they found that it was simply a decision made for sound management reasons. They said in their paragraph 62:
"62 We accept the Respondent's explanation. We appreciate the background for this is Mr Gabriels' belief that as a part qualified accountant he should have those facilities and that his belief that a man of his qualities should be able to do a higher level of work is genuine. His managers frankly acknowledge that the work he did was good, but we can find no evidence that the withdrawal of this facility was for anything other than sound management reasons. We therefore reject that complaint."
We do not see any arguable error of law in that part of Mr Gabriels' Notice of Appeal, and this part is therefore to go no further.[26]Next, its fifth - the "Ms Johnson episode"; we do not need to explain it more fully, but it was entirely a matter of fact, and the Tribunal found the facts against Mr Gabriels' interest and no arguable point of law emerges, and we must emphasise it really does need to be borne in mind that the Employment Appeal Tribunal deals only with errors of law; this issue is not to go further.[27]Sixthly, complaints against Mr Kowalczyk. On that the Tribunal said in their paragraph 36:
"36. From time to time and particularly on the 6 April 1999 Mr Gabriels complained that Mr Kowalczyk was putting him under undue pressure to work. Mr Kowalczyk told us that, in fact he treated Mr Gabriels more favourably. Mr Gabriels was given more assistance from agency workers than anyone else, in order to cut down the constant complaints from users."
We have already quoted paragraph 58 in relation to complaints against Mr Kowalczyk, and it would be remembered that the Tribunal said:
"We accept Mr Kowalczyk's explanation in each of these"
. They are entitled - of course it is the business of the Employment Tribunal, as the industrial jury- to hear the evidence and assess which evidence to believe, and they chose to believe Mr Kowalczyk's explanation; no point of law emerges there, and the issue is not to go further.[28]Seventhly, the Oracle computer and training in relation to it. The case that Mr Gabriels makes in his Notice of Appeal is:
"3. That the ET was unjust in its suggestion that my line of reason was frivolous, and their decision was inconsistent with the fact and evidences."
But he identifies no error of law, and no evidence contrary to the Tribunal's conclusion. But, even if he had, so long as there was some evidence for the Tribunal's conclusion, they would have been entitled to prefer it to his evidence, or to what other evidence Mr Gabriels would have wished them to have preferred; it is the business of a Tribunal to assess which evidence it is to prefer and here they did not prefer Mr Gabriels'. Again, no error of law emerges, and the point is to go no further.[29]Eighthly, there is the heading of the wrongly synchronised personal computer, and its consequences. It is not entirely clear whether this was an issue that had truly been permitted to go forward by the directions hearing; we are content to assume that it was. The question was looked at by the Tribunal in their paragraphs 40 to 42, and 60 to 61, and in their paragraph 60 they say:
"60……We are satisfied that the time differences on the E-mails on 2 nd , 3 rd and 9 th June were due to a failure in the timing system and certainly not by tampering with the system, even if that were possible, by Mr Bowry. We have examined the time differences carefully and cannot see what could be achieved to Mr Gabriels' detriment by anyone doing this. They would merely make themselves look ridiculous."
And they say in relation to Mr Ward, in the same heading, "The Events of 9 June and time differences on the E-mails" that they found that Mr Ward was more than tolerant in taking no more action than a polite enquiry as to where Mr Gabriels was. That cannot be racial discrimination. Again, it is an area where Mr Gabriels has simply lost on the facts. No arguable error of law is visible, and the point really is not to go further forward.[30]Ninethly, "Complaint against Mr Ian Ward" - we have just cited the Tribunal's finding that Mr Ward was tolerant. The Appellant, Mr Gabriels, devotes a page of close typing to this subject. But again, it seems to be a complaint that he lost on the facts. The Tribunal heard Mr Ward giving evidence. We have no reason to suppose that the Tribunal was not entitled to prefer Mr Ward's evidence to that of Mr Gabriels, who, it might be added, was the only person to give evidence on his side. As simply a difference of fact, which was held against Mr Gabriels' interest, the subject gives rise to no error of law, and no arguable question of law arises.[31]Tenthly, "Withdrawal of Amendment Facility". Again, we shall assume in Mr Gabriels' favour that this complaint was within the area properly before the Employment Tribunal. The Tribunal said, as we have already cited:
"45 One of the security features of the computer system was that a payments processor could not amend credit details, and thereby direct Council's money to somebody who was not a creditor."
And we have already mentioned that Mr Gabriels was, by mistake, given this facility and that it was withdrawn, and that Mr Gabriels saw that as a matter of race discrimination, whereas the Tribunal dealing with it found it to be merely a matter, in their paragraph 62 of sound management. They accepted the Respondents' explanation, they said: "62 ….. We appreciate the background for this is Mr Gabriels' belief" and we have already cited that, and the complaint was rejected. Again, it is simply here unfortunate, from his point of view, that Mr Gabriels lost on the facts, and we are given no reason why the Tribunal should not have been able to decide on the facts as they did, so this point is to go no further.[32]Then Mr Gabriels has a heading called "A View Overall". He claims to have new evidence; we have seen none, and we could only receive it, or even remit to the Tribunal to receive it, if the stringent tests of Ladd v Marshall were satisfied, and there is no suggestion whatsoever that any evidence that is new would satisfy that test.

(B) he complains of the EAT that:

"(B) It wrote, in paragraph 34, that it is "
A BATCH OF INVOICES" whereas the facts presented were that they were "BATCHES OF INVOICES"" No error of law, even an arguable one, appears in this part of the case, and that point is to go no further.[33]Mr Gabriels argues that the Tribunal misunderstood him to be complaining of being mistreated in comparison with other African blacks - blacks of different tribal origins. The Tribunal, as it seems to us, made no such mistake. The position seems to be this: the man Mr Gabriels most complained about, Mr Bowry, is a black Caribbean. Mr Bowry had a staff of nine: four white, five black, including Mr Gabriels. Of the five blacks, one was Caribbean, three were African and one was of mixed race.[34]It was obviously put to Mr Gabriels, in the course of the case, that he was being treated the same as all others, the other eight of the nine. It was also put to him that he was therefore being treated the same as were the other four blacks and he obviously responded by drawing a distinction, or purporting to, and making the point that only two of the four blacks were Nigerian, and that he was, in any case, of a different tribal origin than that other Nigerian. This appears and is dealt with in the Tribunal, as follows, they say:
"51………We note that Mr Gabriels was one of two Nigerians and that the only way he could distinguish the race between himself and the other Nigerian was to say that they were of different tribal origins."
[35]That led the Tribunal to comment: why should a Caribbean, Mr Bowry, if minded to treat different people differently on racial grounds, bother to distinguish between Nigerians according to whether they were Yoruba or of another tribe? That, as it seems to us, was a practical comment deriving, no doubt, from their experience at the Employment Tribunal level in London South. The Tribunal continued in their paragraph 52:
"52 Of course, race is far more than a black/white divide, but where racial differences are not as great we have to ask ourselves why a person of Caribbean origin would differentiate between a Yoruba and Ibo in his treatment of them. We have observed these witnesses over 8 days and we have concluded that all members of the department suffered the same pressures and frustrations of a tedious and large workload. Against that background we can shortly deal with the complaints one by one."
Which they then went off to do. There was no misunderstanding by the Tribunal of what Mr Gabriels was arguing. Mr Gabriels in his Notice of Appeal says:
"The ET's report is considered to be stating that if there are black people working and living in the Borough Lambeth, there can be no discrimination, consequently it was perverse in its ruling and decision."
But the Tribunal never said any such thing.[36]Mr Gabriels' complaints in the Notice of Appeal do not clearly include complaints about the conduct of the hearing at the Employment Tribunal in November 1999 or about bias or prejudice in the Chairman or the other members of the Tribunal and he has not addressed us orally on that point as such, but he was directed to swear an affidavit as part of his appeal to the EAT against the result of the directions hearing of September 1999, and that affidavit says inter alia this: (e) During the hearing, the Booth Employment Tribunal" and that is the one in November 1999 "threatened to make an order against me, in the light of a decision by Justice Wolfe, that I was wasting time. Therefore, a hearing that was earmarked for 10 days took under eight (8) days, and during which I was frightened, and depressively rushed through the hearing so that vital witnesses, in Mr Kowalczyk, Ms Joy Harris and Mr Bowry, and especially Mr Ian Ward were not properly interrogated on his (Ian Ward's) suggestions and discussions with me at the time I was to resume work after I was wrongly suspended from work." The Chairman has commented:
"2. I did not threaten Mr Gabriels because he was wasting time. I think he is referring to the occasions when I reminded him of Miss Hyde's earlier decision about the ambit of the case. As will be seen from the fact that we finished in less than the allocated ten days, there was no undue pressure exerted to push this case along."
[37]It is, of course, part of the task of a Chairman to confine the case to issues that are truly relevant, and to avoid repetition, be it repetition by parties, witnesses or advocates. The Tribunal had commented, in their paragraph 10:
"10. The case was extensively documented in a bundle of 500 pages of Rules, contemporaneous notes and E-mails. The Respondents assisted us by witness statements. We should note that Mr Gabriels, despite his obvious and deeply felt resentment at what he saw as poor treatment by his employers conducted himself with exemplary politeness before us, and appreciation of the Tribunal's assistance in confining this case to the issues"
[38]We cannot conclude, from the material before us, that there was any undue pressure upon Mr Gabriels, and indeed, as I have mentioned, the Notice of Appeal does not ventilate that, nor has Mr Gabriels explored it with us, orally. We have now, as we see it, gone through the Grounds sought to be raised as arguable errors of law in Mr Gabriels' very full Notice of Appeal. We have not been able to find any arguable error of law, and accordingly we must dismiss the appeal, even at this preliminary stage. We refuse leave to appeal, you will have to go to the Court of Appeal.