MR B AFOLAYAN v 1) STAR TEXACO LIMITED 2) MISS J KELLY [2002] UKEAT 1088_00_1401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1088_00_1401Case No Appeal No. EAT/1088/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B AFOLAYANAPPELLANT1) STAR TEXACO LIMITED 2) MISS J KELLYRESPONDENT
Before
His Honour Judge Peter ClarkLord Davies of CoityDate 14 January 2002
[1]APPEARANCES For the Appellant MR ANTHONY OKAI (Of Counsel) Messrs Ormerods Solicitors Green Dragon House 64-70 High Street Croydon CRO 9XN For the Respondent MR SMAIR SOOR (Of Counsel) Instructed by: Messrs Cooper Whiteman Solicitors 54 Bloomsbury Way London WC1A 2SA JUDGE PETER CLARK This is an appeal by Mr Afolayan, the Applicant before an Employment Tribunal sitting at Stratford over 9 days in June 2000, chaired by Mr I F Pritchard-Witts, dismissing his complaints of unlawful race discrimination and victimisation, breach of contract and unfair dismissal by a decision with Extended Reasons promulgated on 11 August 2000. Background[2]The facts and findings of the Employment Tribunal are set out in some detail in their reasons, running to 28 pages. For the purposes of determining this appeal the position may be summarized as follows.[3]The Appellant, who is of Nigerian racial origin, was employed by the 1 st Respondent, Star Texaco Ltd, with breaks in service, between October 1993 and 9 November 1999, at various sites.[4]He made 4 separate complaints to the Employment Tribunal;(1) on 28 October 1996 he presented a complaint of race discrimination and victimisation against the 1 st Respondent and 2 nd Respondent, his then area manager, Miss Kelly,(2) on 17 June 1998, further allegations of race discrimination and victimisation were made against the 1 st and 2 nd Respondents,(3) on 10 September 1999 a complaint of race discrimination and victimisation was made against the 1 st Respondent and 3 rd Respondent, Mr Thirukkumar, a site manager and(4) on 25 January 2000 he complained of race discrimination, victimisation, unfair dismissal and unlawful deduction from wages by the 1 st Respondent and victimisation by the 4 th Respondent, Mr Doukanaris his last area manager. The first complaint was originally struck out, but reinstated following the Appellant's successful appeal to the Employment Appeal Tribunal on 24 May 1999. Accordingly all 4 complaints were combined and came on for hearing before the Employment Tribunal in June 2000. The Appeal[5]The original Notice of Appeal dated 29 August 2000, consisting of grounds of appeal running to 19 paragraphs, originally came on for Ex Parte Preliminary Hearing before a division presided over by Miss Recorder Elizabeth Slade QC on 9 February 2001. By a careful reserved judgment, delivered on 4 April 2001, Miss Recorder Slade analyzed the grounds of appeal, rejecting some and allowing others to proceed to this full hearing.[6]At the outset Mr Okai helpfully identified the outstanding issues in the appeal, without dissent from Mr Soor, as follows:(1) Did the Employment Tribunal reach its conclusion that the 1 st Respondent was improperly joined as a party to the proceedings without giving the Appellant a proper opportunity to deal with the point in evidence and argument?(2) Did the Employment Tribunal give inadequate reasons for its conclusion as to the credibility of the witnesses, particularly the Appellant, in the case?(3) Did the Employment Tribunal make perverse findings in relation to the claims brought against the 2 nd Respondent?(4) Did the Employment Tribunal err in law in concluding that certain of the Appellant's claims were time-barred?(5) Did the Employment Tribunal err in the respect alleged in ground 10 of the Appellant's grounds of appeal? We shall deal with each of those questions in turn. The First Issue[7]The Employment Tribunal found that on 9 November 1999 the part of the 1 st Respondent's business in which the Appellant was then working was transferred to Pimlico Capital Ltd trading as Seletar, and that upon transfer the liabilities of the 1 st Respondent owed to the Appellant then transferred to Seletar. On that basis the claims against the 1 st Respondent failed (reasons, paragraphs 21-24).[8]Mr Okai submits that he was not given an opportunity to consider that point, in breach of the principles of natural justice, or to make application for an amendment to joint Seletar as a Respondent.[9]Mr Soor contests that claim. However, Mr Okai accepts that since the Employment Tribunal went on to consider the Appellant's claims against his employer, at the relevant time the 1 st Respondent, unless he can disturb those findings on appeal there is no liability transferring to Seletar in fact and the point becomes moot. For the reasons which follow we do uphold the Employment Tribunal's substantive decision and in these circumstances it is unnecessary for us to determine this point. The Second Issue[10]Based on the well-known principles set out by Bingham LJ in Meek v City of Birmingham District Council [1987] IRLR 250 Mr Okai submits that the Employment Tribunal's findings at paragraph 29, where they accepted certain specified criticisms made by the Respondents as to the Appellant's credibility, and elsewhere that the documentary evidence tended to support testimony given by the Respondent's witnesses, were defective in that insufficient reasons for those conclusions appear in their reasons. In particular, the relevant documents are not identified.[11]As to the Appellant's credibility, we have been taken by Mr Soor to a document which he placed before the Employment Tribunal headed Respondent's submissions on credibility. The detail in support of the criticisms of the Appellant is there set out.[12]As to the Employment Tribunal's findings in relation to supporting documentary evidence, for example at paragraph 35, their finding that, contrary to the Appellant's case no document had been altered or forged by the Respondents, can be seen in the context of those documents which he alleged had been forged at A128, 301 of the trial bundle.[13]We bear in mind that Employment Tribunal reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or law. UCATT v Brain [1981] ICR 542, per Donaldson LJ. In our view it is abundantly clear to the Appellant from the Employment Tribunal's detailed reasons why the evidence of the Respondents' witnesses was preferred to that which he gave. Adequate reasons for that conclusion were provided. The Third Issue[14]An Employment Tribunal will reach a perverse conclusion where there is no evidence to support material findings of fact. Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309, per Lord Donaldson MR. It is not enough to suggest that the Employment Tribunal misunderstood or misapplied the facts. British Telecommunications Plc v Sheridan [1990] IRLR 27 , per McCowan LJ.[15]In this part of the appeal it seems to us that Mr Okai is inviting us to retry the factual issues raised between the Appellant and Ms Kelly, who gave evidence before the Employment Tribunal, in order to reach a different conclusion. That dispute was, as Mr Soor submits, a matter for the Employment Tribunal. We shall not accept Mr Okai's invitation. The Fourth Issue[16]At paragraph 26 of their reasons the Employment Tribunal identified 10 specific complaints brought under the Race Relation Act 1976 which they considered to be out of time and in respect of which they declined to exercise their discretion under s68(6) of the Act to extend time. In respect of 2 further complaints out of time they did exercise their discretion in favour of the Appellant.[17]By his grounds of appeal (paragraphs 14 and 15), the Appellant challenges those findings adverse to him in 2 respects only; Items 1 and 3 in paragraph 26 of the reasons. Item 1 was an allegation raised in his second complaint to the Employment Tribunal presented on 17 June 1998 that the 1 st Respondent paid less bonus to the Appellant than his juniors and fellow supervisor in February 1997; Item 3, that the 1 st Respondent did not pay the Appellant for certain hours worked up to February 1997, again set out in his 1998 complaint.[18]Mr Okai submits that in relation to the bonus question the Appellant raised a grievance against the relevant manager, Theva, who did not pay the Appellant a bonus at the Star Hounslow site. The grievance is dated 18 September 1997 and, it is said, was never resolved before the termination of the Appellant's employment on 9 November 1999. As to the additional hours claim, that too was the subject of continuing correspondence until the end of his employment. Accordingly these claims raised allegations of continuing acts which were within time.[19]It is necessary to look at how these claims were put in the 1998 complaint. At paragraphs 2-3 of the particulars the complaint of discrimination and victimisation was that the 1 st Respondent paid less bonus to the Appellant compared with his juniors and fellow supervisor, not the failure to deal with his grievance about bonus payments. The bonus payments were made on 14 February 1997. Thus there was here no continuing act, but a one-off act more than 3 months before presentation of that complaint.[20]As to the claim for extra hours worked, that too ran to February 1997. It was also out of time. The fact that there was continuing correspondence about this claim did not translate the alleged failure to make payments up to February 1997 into a continuing act thereafter. The Fifth Issue[21]The Appellant's contention at Ground 10 of the Grounds of Appeal is set out as follows:
"10. The discrimination and victimisation became even most prominent when the appellant applied for the position of site manager backed by a very strong appraisal and very high recommendation in 1999 by his site manager at Chelsea. the appellant never received an acknowledgement to his application. This evidence was not even mentioned by the Tribunal in their decision."
[22]Mr Okai, submits, by reference to a favourable appraisal of the Appellant's performance made on 12 March 1999 (A149-151) that it was relevant to his claim that his failure to obtain promotion thereafter was discriminatory and an act of victimisation, but it is barely mentioned at paragraph 33 of the Employment Tribunal's reasons, where they deal with this complaint. That really will not do. At paragraph 33 the Employment Tribunal acknowledge the assessment by Mr Siva in March 1999 but go on to find an overall picture of under-achievement by the Appellant as a supervisor and in particular an audit at the Chelsea site after March 1999 which revealed further inadequacies in his performance. We regard this final point as a straightforward attempt to seek to reargue the facts. That will not be permitted on appeal. Conclusion[23]Having considered all that has been said by Mr Okai in support of the remaining substantive grounds of appeal we can discern no error of law in the Employment Tribunal's approach. On the contrary, their decision and reasons demonstrate careful attention to their fact finding role and a proper application of the law to the facts. The procedural point as to who is the proper corporate Respondent is therefore academic. This appeal must be dismissed.