LONDON BOROUGH OF ISLINGTON v MR. A BAMIGBADE [2003] UKEAT 0618_02_0407

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0618_02_0407Case No Appeal No. EAT/0618/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
LONDON BOROUGH OF ISLINGTONAPPELLANTMR. A BAMIGBADERESPONDENT
Before
Mr Recorder LubaDate 4 July 2003
[1]APPEARANCES For the Appellant MR A LYNCH QC AND MS H IYENGAR (of Counsel) Instructed by: London Borough of Islington Law & Public Service Department, Town Hall, Upper Street London N1 2UD For the Respondent The Respondent was Debarred from defending the appeal MR RECORDER LUBA QC Introduction In a Hearing which commenced on 4 March 2002 the London Central Employment Tribunal (Chairman Mr T P Ryan) considered a complaint of racial discrimination and unfair dismissal brought by Mr Bamigbade against his former employers, The London Borough of Islington. Mr Bamigbade's complaint in his originating application was that he had been the victim of racially motivated discrimination by his employers. He expressed it in this way:
"I was subjected to race discrimination and racial harassment throughout the course of my employment with the Respondent"
[2]He had in fact been employed from 14 February 2000 until 11 May 2001. He served as a member of a 4-person pest control team maintained by the Council. He was the most recent recruit to that team and he was the only one of the four members who was black. Mr Bamigbade is of black African origin. The other members of the team were white. As we have noted, his complaint was that he had been subject to racial discrimination and racial harassment through the course of the employment culminating in the dismissal on 11 May 2001. Although he recognised that the "official" reason for his dismissal was redundancy, his complaint asserted that he had been unfairly selected for that redundancy by the Council, his employers.[3]The complainant asserted that the reason for the unfair selection and the reason for his earlier mistreatment at the hands of the Council was racial discrimination. By their Notice of Appearance the employers had denied the assertions of racial discrimination and asserted that the Applicant had been properly and fairly dismissed by reason of redundancy. The Proceedings Below[4]The Employment Tribunal conducted an oral Hearing and heard evidence called before them by both the Applicant employee and the Respondent employer. There is no dispute that in the event, the Employment Tribunal dealt correctly with that aspect of the originating application which contained a complaint of Unfair Dismissal. The Tribunal found that Mr Bamigbade had been dismissed and that the reason for his dismissal was redundancy. They found however that the selection process for redundancy had been tainted by procedural unfairness and had produced ultimately a dismissal which was "unfair".[5]We need only identify in very summary form the reason for that. It was because in the employer's review of the four member team, to determine which member should be dismissed (only one dismissal seemingly being necessary for redundancy purposes) they had failed to apply strictly to all members of the team the content of a detailed scheme of "pointing" relevant to past employee misconduct. The failure to apply that scheme strictly to the full team of four was to the disadvantage of Mr Bamigbade.[6]On the evidence the Tribunal heard, it seemed that if that Scheme had been properly applied, another employee would have been the employee properly to be selected for redundancy or, at least, that was a probable or possible outcome. The Tribunal accordingly found unfair dismissal by reason of unfair selection or unfair procedural treatment in selection for redundancy. The Tribunal, however, in dealing with the unfair dismissal complaint rejected, in terms, Mr Bamigbade's complaint that the dismissal was an instance of racial discrimination against him by his employers.[7]No appeal is brought by the Council against the finding of unfair dismissal. Likewise there is no cross appeal from Mr Bamigbade seeking to overturn the Tribunal's finding that his dismissal was not an instance of racial discrimination. In those circumstances the remaining matter for the Tribunal to determine, was the balance of the complaint of racial discrimination and harassment which was originally put on the basis that it had occurred throughout the course of the employment.[8]In the event, as foreshadowed by the answers to a request for further and better particulars of the originating application, the complaint of racial discrimination and racial harassment boiled down to a single instance. Mr Bamigbade complained that when an internal phone directory had been prepared by the Council his name had been incorrectly or improperly set out in it.[9]In short, he asserted that in the telephone directory, the employees were identified by the giving of their full forename and surname. He made no objection to the fact that in relation to forename, his first name had been reduced to "Ade". However in relation to his surname "Bamigbade", the entry in the telephone directory simply recorded his surname as "B"..[10]He contended, and indeed complained, that no other employee was included in the directory in that manner and that this manner of inclusion in the directory amounted to less favourable treatment of him which could only be explained by a difference in race. From what had been a very general assertion of a pattern of racial harassment and discrimination throughout the employment, what survived for consideration by the Tribunal was one short single allegation of racial discrimination. The Tribunal's Decision[11]At the conclusion of the Hearing, on 6 March 2002, it appears that the Employment Tribunal announced its Decision, communicated to the Parties there and then, as being that the Applicant had been unfairly dismissed and that he had been racially discriminated against in regard to the misspelling of his name in the internal staff directory but that he had not been racially discriminated against in regard to his dismissal.[12]The question of remedy following those findings, was stood over to be considered further in the following week and was so considered at a Remedies Hearing on 11 March 2002. What it seems occurred on that occasion was that the Employment Tribunal gave oral reasons, in summary, for the Decision it had pronounced on 6 March 2002. Those oral reasons were to the like effect of the orally expressed conclusion we have just summarised.[13]Accordingly, on 11 March 2002, the Tribunal considered itself seized of the question of compensation for both Unfair Dismissal and one incident of racial discrimination i.e. the internal staff directory point. The Parties had, however, agreed the appropriate figure at £2,500 and that is the figure that the Tribunal awarded.[14]The Tribunal subsequently gave its Extended Reasons, these were entered into the Register on 25 April 2002. The Decision recorded under the heading Decision in that document is in the following terms:
"The unanimous Decision of the Tribunal is that:- (1) The Respondent did not discriminate against the Applicant on the grounds of race (2) The Applicant was unfairly dismissed (3) By consent the Respondent is ordered to pay the Applicant the sum of £2,500 in respect of his claim for unfair dismissal."
[15]The Extended Reasons which then followed, set out the conclusions and findings of the Tribunal in relation to, amongst other matters, the telephone directory point. However, nothing in the Extended Reasons as delivered on 25 April 2002 culminated in a finding of racial discrimination in relation to that particular complaint. Indeed, to return to the way in which the Extended Reasons of 25 April 2002 express the Decision, it is plain on its face that the Decision as written on the front of the Extended Reasons document is not the same as the Decision which had been communicated to the Parties immediately following the Hearing and which had formed the basis of the Remedies Hearing.[16]In particular, the Decision was expressed entirely to the reverse on the question of the success or otherwise of the complaint of racial discrimination. Solicitors for the Applicant, Mr. Bamigbade, promptly raised with the Tribunal Chairman the evident inconsistency between the terms of the Decision announced to the Parties on 6 March 2002 (to which we must also add the affirmation and short oral reasons given on 11 March 2002) with the document issued on 25 April 2002 that appeared to give, in formal terms, the Tribunal's Decision and Extended Reasons for it.[17]The Tribunal Chairman, in response to that observation, caused a letter to be written to the representatives of Mr. Bamigbade (which was of course copied to the Council). In that letter he acknowledged that "the Decision is incorrectly recorded" and intimated that he proposed to rectify the Decision by amending paragraphs 1 and 3 to read as follows: "the Respondent discriminated against the Applicant on the ground of his race in that it caused or permitted his name to be spelled incorrectly in its internal book. The Respondent did not discriminate against the Applicant by dismissing him. By consent the Respondent is ordered to pay the Applicant the sum of £2,500 in respect of his claims for unfair dismissal and race discrimination".[18]That letter invited either Party to "comment" on this proposed amendment. That invitation prompted representations from Solicitors for the Council. They contended that it was not open to the Chairman to go behind the formal Decision and Reasons promulgated in the document entitled "Extended Reasons" which had been sent to the Parties on 25 April 2002. Faced with that "comment", the Tribunal Chairman directed a review hearing before a re-assembled Employment Tribunal. As we shall mention in a moment, the re-assembled Tribunal eventually itself promulgated further Extended Reasons.[19]However, as though there had not already been sufficient difficulties in this case, the top sheet of the Extended Reasons given, following the Hearing on 27 November 2002, records at least one lay member of the original Tribunal was not a member of the Review Tribunal. The Chairman, Mr Ryan remained the same, lay member Mr Dickinson appeared to have participated in both Tribunals, but the second wing member's name is differently recorded in the two documents. Junior Counsel, Ms Iyengar, who appears before us today for the Appellant Council (with Mr Lynch QC) believes that this may be a simple slip because as far as she can recall, the Tribunal was similarly constituted on each occasion on which it met. We accept, of course, the assistance that she has given us in that regard. However, this is yet another aspect of the Decision making by the Employment Tribunal in this case, which gives us cause for concern.[20]The result of the Hearing on 27 November 2002 was that the Employment Tribunal did indeed review or purport to review its Decision. Its Review Decision and the Extended Reasons for that, are recorded in Extended Reasons sent to the Parties on 13 December 2002. By that document the Tribunal record that they had decided to vary the original decision to make it plain that they had upheld the complaint of racial discrimination in relation to the telephone directory point, and accordingly further altered the Decision contained in the Extended Reasons given on 25 April 2002.[21]Beyond the comparatively minor amendments necessary to give effect to and truly state the conclusions reached by the Tribunal on the upholding or dismissal of the original complaint, the review decision in fact goes further. So far, indeed, as to insert a proposed new paragraph 17A in the original Extended Reasons and that paragraph 17A purports to introduce the Tribunal's conclusions on the telephone directory point. The Appeal[22]By Notice of Appeal given in the proper form, the Council appeals from first of the Tribunal's Decisions (as varied) that is the Decision to uphold the complaint of racial discrimination in relation to the internal telephone directory. The thrust of the Notice of Appeal is that the Tribunal erred in reaching the conclusions that they purportedly did, on the findings of fact that they considered that they had made. Having received the Review Decision, the Appellant Council amended the Notice of Appeal to attack the Review Decision also, on the grounds that whatever power the Tribunal had under the procedural rules relating to review, this Employment Tribunal had exceeded those powers and, indeed, its jurisdiction.[23]For his part, Mr Bamigbade, having been served with the relevant Notice of Appeal and we assume, the amended Notice of Appeal, has played no part in the Appeal process. He has not responded to correspondence from, or directions made, by this Tribunal and accordingly on 1 July 2003 he was debarred by Order of the Registrar from taking part in the Appeal. He has not appeared before us today.[24]It will be evident already from this judgment that there has been something of a sorry history in relation to the handling of the racial discrimination point (arising from the telephone directory) in this particular Employment Tribunal. The substantial amended grounds of appeal before us are supplemented by a formidable skeleton argument assembled by Mr Adrian Lynch QC (with Junior Counsel). They have appeared for the Appellant Council before us today and Mr Lynch has augmented the written submissions with such further oral submissions as we have invited.[25]Mr Lynch sets out, both in the Notice of Appeal as amended and in the skeleton argument, an array of grounds which he says shake to the foundations the Tribunal's handling of the telephone directory point. It is not necessary for us to labour this Judgment in this unhappy matter by setting out each of those points and our conclusions upon them in turn. It is, in our view (as we indicated to Mr Lynch at the outset of this Appeal) plain as a pikestaff that there is at least one error of law which undermines wholly the Tribunal's decision on the telephone directory point. That is an error of law which, in itself, would require the decision to be set aside. That error is that the Tribunal wholly failed to grasp the point that the telephone directory issue had arisen upon its publication in August or September of the year 2000. Indeed, Mr Bambigbade in his further and better particulars of his originating application, makes it plain that he noticed his entry in the telephone directory, in or about the end of August/September 2000. Complaint as to racial discrimination in relation to that matter was only made following the termination of Mr Bamigbade's employment (by his originating application dated June 2001). It was, on its face, out of time.[26]Live issues before the Tribunal, therefore, were: whether the complaint in relation to the telephone directory was out of time, whether an extension of time should be granted, or whether this was (as had originally been put) a case of a continuing act throughout the employment in which case the complaint might have been brought in time in the originating application of June 2001.[27]These matters are not addressed at all in the original Extended Reasons given by the Tribunal in April 2002 nor in the review decision of December 2002. That omission, or irregularity, is of itself sufficient to require that this Appeal be allowed. However, we invited the attention of Mr Lynch to the possibility that we might remit to the Tribunal the single question for determination as to whether the discrimination complaint in relation to the telephone directory was in or out of time.[28]We therefore gave Mr Lynch the opportunity to satisfy us that there was substance in the other grounds of Appeal (by which he seeks to undermine the finding that the non inclusion of Mr Bamigbade's name in the telephone directory in full form, was an instance of racial discrimination). Having had the opportunity to hear his submissions in outline as to that matter, and having very carefully examined the original Extended Reasons and the December 2002 Extended Reasons, we are wholly satisfied that the Appeal must succeed on this broader basis also.[29]The original Extended Reasons are most unhappily expressed, quite apart from the fact that they are most unhappily laid out with the unfortunate repetition of numbering of paragraphs 7 onwards. On a first reading of those Extended Reasons it appeared to all members of this Employment Appeal Tribunal, that the Tribunal was really finding that there was no racial discrimination in the circumstances of the omission of the full spelling of Mr Bamigbade's name from the telephone directory.[30]If the Tribunal's finding of racial discrimination can be upheld at all, it can only be so if we read together with the original Extended Reasons, the new paragraph 17A inserted by the Review Tribunal in December 2002. We are satisfied, quite apart from the question of whether it was regular or irregular for the Review Tribunal to proceed in this way (i.e. by the insertion of a new paragraph) that this new paragraph does not in any event meet the deficiency in the reasoning and conclusions of the original Extended Reasons. We can deal with this matter quite shortly.[31]Mr Bamigbade's complaint, as we have indicated, was that his name alone was expressed in the phone directory in truncated form. Every other employee's name was set out in full form. If the other employees had been exclusively non black employees, Mr Bamigbade would have made out an evident case calling for explanation by the employers in order to defeat the inference that might otherwise be properly drawn, that the truncation of his surname was less favourable treatment by reason of his race. However, the telephone directory contained names of staff of a variety of ethnic backgrounds. Other black employees, white employees and employees from other ethnic minorities.[32]The evidence before the Tribunal was that the person most directly responsible for the assembly and dissemination of the telephone directory, had simply and perhaps both unfortunately and improperly, not bothered to make the effort to get the full name of the employee and include it in the directory. The Tribunal, at paragraph 17A of their Extended Reasons, make a leap which is not even foreshadowed by the original Extended Reasons, to a finding that lack of 'bother' on the part of the employee responsible for the directory entitled them to draw the inference that Mr Bamigbade's name had not been spelled out in full by reason of race.[33]That in our judgment, largely for the reasons Mr Lynch has articulated and indeed foreshadowed in his Notice of Appeal, was not permissible. The Tribunal's assessment and conclusions on the evidence cannot in our view be sustained.[34]In the light of our findings in relation to the matters with which the original Tribunal was concerned, we need not develop at great length our consideration of the manner in which the matter came before the Review Tribunal in November 2002 and led to the Extended Reasons that they gave in December 2002. This plainly, was not a case in which there had been a simple typographical error, or other error of that nature, in the written communication of the original Tribunal's decision. We are satisfied that, even if the Tribunal considering the matter on review had jurisdiction to "repair its Extended Reasons" the repair which it made, was insufficient to cure the deficiency in the earlier Decision.[35]In particular, for the reasons we have given, that it is true of paragraph 17A even if a Review Tribunal had, which we doubt, power to insert retrospectively a completely new passage in its original Extended Reasons. This Appeal will be allowed. The question then arises as to the proper course to take in relation to the complainant's complaint of racial discrimination and, in particular, whether we ought to remit that matter to a newly constituted Tribunal.[36]We have invited Mr Lynch to assist us on the question of relief but we have received no such assistance from Mr Bamigbade, or any representative on his behalf, for the reasons we have earlier identified. In deciding this question, we have borne in mind that Mr Bamigbade succeeded on his complaint of unfair selection for redundancy i.e. unfair dismissal. He is plainly entitled to sustain that decision and to have his compensation in regard to it. My Lynch indicates for the Appellant Council, that it does not seek to recover any part of the £2,500 compensation which it has paid to Mr Bamigbade and it is content to see that amount stand as compensation for unfair dismissal. However, that concession alone cannot determine the proper course in the disposal of this case. We do have to decide whether it is right to remit the the telephone directory 'racial discrimination' point back to a fresh Tribunal for consideration or whether it is possible for us to reach a conclusion and determine that matter ourselves.[37]Two factors have weighed with us heavily in that exercise. The first is that there is no material before us, and no finding made by the Tribunal, which could possibly sustain a successful application by Mr Bamigbade to extend time for consideration of his complaint of racial discrimination in relation to the phone directory matter. The complaint was made in June 2001, the alleged discriminatory act occurred in August 2000. The Tribunal expressly rejected the contention of racial discrimination throughout Mr Bamigbade's employment continuing up to and including the point of his dismissal. As we have already indicated, the only complaint actually pursued of racial discrimination, was the matter in relation to the telephone directory.[38]We are confident, therefore, in concluding, that there would be no outcome, available to an Employment Tribunal to whom this matter were remitted, other than to find that the Employee's complaint of racial discrimination was out of time.[39]The second matter that has weighed with us is the question of whether it would be open to any reasonable Tribunal, properly directing itself to conclude that there had been less favourable treatment on the grounds of race arising from the way in which Mr Bamigbade's name was, or more accurately was not, included in the telephone directory. We are satisfied that, even if an Employment Tribunal properly directed itself and made proper findings of fact, it could not, as a matter of law, reasonably or rationally conclude that there was racial discrimination in this case. In those unusual circumstances, and in particular having regard to the most unhappy history of this litigation, we have decided to exercise our powers to dispose of this Appeal in such a manner as will bring this unhappy litigation to an end. We will do this in the following way.[40]We will allow this Appeal, but we will make a Decision in the identical terms in which it is recorded in the Extended Reasons document delivered by the Tribunal on 25 April 2002 and that is as follows. The unanimous decision of this Tribunal is that:
"(1) The Respondent did not discriminate against the Applicant on the ground of race (2) The Applicant was unfairly dismissed (3) By consent, the Respondent is ordered to pay the Applicant the sum of £2,500 in respect of his claim for unfair dismissal"
[41]In the more familiar language used by this Employment Appeal Tribunal, we unanimously allow this Appeal and make the order just set out in respect of the originating application made by Mr Bamigbade.