MR W M JACK v PINKERTON SECURITY SERVICES LIMITED [2002] UKEAT 1142_01_1604

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1142_01_1604Case No Appeal No. EAT/1142/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W M JACKAPPELLANTPINKERTON SECURITY SERVICES LIMITEDRESPONDENT
Before
His Honour Judge J R ReidDate 16 April 2002
[1]APPEARANCES For the Appellant MR T OKUNOWO (Trainee Solicitor) Instructed by: Messrs Phoenix Nova Solicitors Ranan House 456 Kingsland Road London E8 4AE JUDGE J R REID QC: This is an appeal from a decision by Mr Menon, Chairman at London (North), on an application which he treated as an application for review of a decision which had been made as long ago as 22 January 1999 and was then promulgated on 26 February.[2]That decision itself was subject to an appeal to the Employment Appeal Tribunal and was dismissed. The reasons for the application for review were that Mr Jack, the original Applicant and Appellant here says that the Employment Tribunal first time round, if I can use that expression, were led into making findings of fact which were incorrect because they didn't have before them certain evidence.[3]The suggestion that Mr Jack made in his originating application was that he had been the subject of racial discrimination and in essence he said that he was moved from a fairly comfortable site in Kensington to make way for a white security officer, then elsewhere he and his black colleague were treated less favourably than other white security officers in terms of hours they worked and where they worked on the particular sites. Those allegations were held to be unfounded by the Employment Tribunal. The material that Mr Jack now wishes to introduce falls into essentially three areas.[4]The first area relates to his first posting which was the subject of dispute with Visa International in Kensington High Street. What the Tribunal held was that there had been a request from the client to move Mr Jack from the post which he was occupying there because of his inadequacy in dealing with, in particular, telephone calls. The employer felt that it had no option but to comply (according to the finding of the Employment Tribunal). What is now being suggested is that there never was any such request and his removal from that site was simply at the instance of his white superior to make way for another white officer to take over what was, comparatively speaking, a comfortable job. No claim of that sort was made before the Employment Tribunal and no evidence was adduced from Visa before the Tribunal, nor was any effort made or any evidence sought to be adduced from Visa when the matter came before the Employment Appeal Tribunal on the first occasion. However, at the end of March of last year Collinson's & Co, solicitors acting for Mr Jack in place of the Commission for Racial Equality who previously represented him, wrote to the Visa saying that Mr Jack had been a security officer and raising points about whether he ever had to make any use of tape of any local or international calls.[5]It is said that a response was received from over the telephone on 20 April from Miss Christine Royce-Lewis to the effect that they could not find, "any truth regarding notice of complaint from Pinkerton Security's. Also Mr Jack would not be required to answer telephone calls whilst being a security officer at Visa International. Please note Pinkerton Security's is no longer contracted by Visa International."[6]That was followed up by an e-mail response which was set out in Mr Menon's decision in these terms:
"We have made exhaustive searches of our records of the time and can find no record of any kind relating to Mr William Jack. In addition, have spoken to staff employed here at the time who have no recollection of him. Pinkerton Security provided us with reception and security staff but are no longer engaged by us to provide such services therefore we are unable to check any of this with them."
[7]It will be observed that the e-mailed response refers to Pinkerton's being engaged with both reception and security and furthermore it does not include what is recorded by the telephonist: the passage that Mr Jack would not be required to answer telephone calls whilst being a security officer. No doubt that is in part because the e-mail refers also to reception duties. The difficulty that Mr Jack faces in relation to this particular part of his claim to adduce fresh evidence is that there was nothing to stop him approaching these witnesses before the initial Employment Tribunal hearing to discover whether or not any complaint had been made, and if so the nature of that complaint. It is clear that he was aware that it was being suggested that he was being moved because Visa didn't like him and that he was saying that he couldn't understand about this long before the hearing before the Employment Tribunal because it is specifically mentioned in his application of 19 May 1998. In our judgment it is extremely doubtful whether the evidence now sought to be adduced would have assisted him and in any event it is clear that this was evidence which could have been made available at the earlier hearing. There is therefore no basis on which this matter can now, more than 3 years after the initial hearing, be re-opened on the basis in order that this evidence can be adduced.[8]The second element of the complaint that he should be allowed to adduce further evidence relates to a passage in the evidence in which one of the witnesses for Pinkerton referred to both white and black security guards being required to participate in work at less favoured sites, citing as an example of that, Sandown Park Industrial Estate. We are told that Mr Jack has now made enquiries and has been unable to find any Sandown Park Industrial Estate. He has also been in correspondence with Sandown Park Race Course, who have responded to the effect that Pinkerton's have never been contracted at Sandown Park at least within the last 5 years, that United Race Courses who are the proprietors of Sandown have their own in-house security and use a variety of contract companies and that it doesn't have an Industrial Estate.[9]That does not seem to us to assist matters very much, there may or may not be an industrial estate properly titled Sandown Park, or it may be some other industrial estate colloquially known as Sandown Park in that sort of area, but in any event it doesn't seem to us that that evidence, which could at the latest have been adduced by the time the matter came to the Employment Appeal Tribunal first time round, is such that it would at any time been sufficient for the case to be reopened. In any event it should have been adduced far earlier. In those circumstances that second area of evidence is of no assistance.[10]So far as the third element is concerned, that is concerned with the Hammersmith and Acton sites and is intended to suggest that the way in which Mr Jack was deployed there was not as result of any request from the client but was simply at the instance of Pinkerton's with a view to ensuring that their white employees had the better hours and indeed better location and timing for their work. Again what has been produced does not seem to us to be likely to have made any substantive impact on the decision which was reached and furthermore it is material, which at the very latest, could have been sought to be introduced by the time the matter reached the Employment Appeal Tribunal on the previous occasion. When the matter came before the Employment Tribunal on this application for review, the Chairman, Mr Menon, carefully considered the issue. There is nothing in his decision which appears to us to be capable of being said to amount to an error in law and indeed we take the view that the decision which he came to was the correct decision.[11]There remains only a further point that was made on behalf of Mr Jack which suggested that the refusal to conduct a review and allow him to adduce the extra evidence deprived him of a fair hearing and was therefore in breach of his human rights. We are wholly unpersuaded as to that. It is in the public interest that matters should be litigated once and once only. Mr Jack had his day in court. He could, long before this application for review, have sought to adduce the various matters which he now wishes to adduce and in our judgment, nothing can be said to be breaching his human rights in refusing to allow Pinkerton's to be troubled again with this hearing or in leaving Mr Jack to the hearings that he has already had.[12]In those circumstances our judgment is that this appeal is without substance and should be dismissed.