(1) MR R E UMUNNA (2) MR R STEVENSON (3) MR R EBRAHIM (4) MS A OSIBONA v LONDON BOROUGH OF HACKNEY [2002] UKEAT 1283_01_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1283_01_2305Case No Appeal Nos EAT/1283/01, EAT/1284/01, EAT/1285/01 & EAT/1286/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MR R E UMUNNA (2) MR R STEVENSON (3) MR R EBRAHIM (4) MS A OSIBONAAPPELLANTLONDON BOROUGH OF HACKNEYRESPONDENT
Before
Mr Justice Wall Mr J HoughamDate 23 May 2002
[1]APPEARANCES For the Appellant MR ELESINNLA (Of Counsel) Instructed by: Messrs Christian Fisher Solicitors 42 Museum Street Bloomsbury London WC1A 1LY MR JUSTICE WALL This is the Preliminary Hearing of four conjoined appeals arising out of a decision of the Employment Tribunal held at London Central on various days in March and April, September and October 2000 deliberations thereafter taking place in Chambers on 11 and 12 December 2000 and various substantial Extended Reasons being sent to the parties on 5 September 2001.[2]The cases arise out of the reorganisation (using a very neutral term) or restructuring of the Housing Need Service of the London Borough of Hackney. The outcome of the applications before the Tribunal were that all the Appellants before us were found to have been unfairly dismissed but their allegations of race discrimination against the local authority were not upheld. As I indicated the moment ago the reasons given by the Tribunal were very substantial indeed and they ran in total to some 193 paragraphs. Of those the first 184 are taken up with a meticulous examination of the factual substratum, meetings, discussions and decisions which resulted in the conclusion by the Tribunal that the Appellants were unfairly dismissed.[3]They deal with the question of discrimination however, very shortly, in paragraphs 185 - 190 and essentially the way they approached it was to say that the Tribunal had concluded that the real reason for the various dismissals was:
"A combination of looking to get rid of staff not regarded as talented or committed and removing active opponents to change, all under the guise of a redundancy."
They then go on to deal with the question of race discrimination effectively in this one sentence:
"The Tribunal has concluded that, notwithstanding the report of Mr Crawford in respect of earlier years, the dismissals were not discrimatory on the grounds of race or union activities or protected acts under section 2 of the 1976 Act."
It is therefore apparent that the approach of the Tribunal was essentially to find the reason for the dismissals was not on race grounds.[4]It is however reasonably clear that there were (in some cases more than others) detailed complaints put before the Tribunal under the heading of race discrimination and protected acts. The argument put before us this morning by Mr Elesinnla on behalf of all four Appellants is simple and straightforward. It is as I understand is this that the Tribunal should not have dismissed the claims of race discrimination without an examination of the underlying facts alleged by all four Appellants. It should have made findings in relation to those allegations before reaching its conclusion and that accordingly on grounds well established in the case of Meek v City of Birmingham District Council the decision of the Tribunal is deficient on the basis that the Appellants have no real idea why their claims of race discrimination were not upheld.[5]In relation to Mr Ebrahim there is the additional point that he was a Trade Union Representative and in his case there is a specific reference to various people whom he represented in grievance procedures particularly a Ms Nuttall. The outcome of those complaints, in so far as they are material, was that Ms Nuttall should be immediately moved back to her substantive post. Ms Nuttal was the partner of Mr St Louis, Head of Homelessness and Housing Advice and it is said on behalf of Mr Ebrahim that Mr St Louis played an influential role in the restructuring that ultimately led to the dismissal of the Appellants. In Mr Ebrahim's case it is specifically argued that the Tribunal failed to make findings of fact in relation to the particular allegations and that it failed to decide whether or not, as a result of the allegation, the Appellant's representation of various parties including a Mr Cubagee was a protected act; whether the Appellant was less favourably treated and failed to decide whether that less favourable treatment was on the ground that he had done the protected act, bearing in mind the protected act need not be the only reason for the less favourable treatment.[6]I give that as an example and the same principle in relation to race discrimination applies to the other three cases. We take the view that this is an arguable point and accordingly should go forward to a full hearing on the Meek basis. It may well be that after full argument the Respondent to the appeal will be able to persuade the Employment Appeal Tribunal that the Tribunal did, notwithstanding the able arguments put before us this morning, address its mind fully to the question race discrimination but at the very least in our view the point is arguable in relation to all four Appellants. The Notices of Appeal are, if we may say so, like the Skeleton Arguments admirably succinct. As it is a short but narrow point we do not anticipate that it will take more than half a day. We will allow it to go through. In each case Category C – half a day and Skeleton Arguments fourteen days before the date fixed for the hearing.