MR K S KHELLA v NILA FOOD DISTRIBUTION LTD [2003] UKEAT 1063_02_0303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1063_02_0303Case No Appeal No. EAT/1063/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K S KHELLAAPPELLANTNILA FOOD DISTRIBUTION LTDRESPONDENT
Before
Mr Recorder HandDate 3 March 2003
[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT MR RECORDER HAND QC This is an appeal from the decision of an Employment Tribunal sitting at Watford on 24 and 25 April 2002, the written decision by way of Extended Reasons having been sent to the parties on 10 June 2002.[2]Mr Khella (the Appellant) was written to by the Registrar on 7 February 2003 and reminded that in accordance with paragraph 6 of the Practice Direction a bundle of documents should have been lodged with the court no later than close of business on Monday 17 February 2003 and a Skeleton Argument or arguments no later than the same time on the following Friday, 21 February 2003. At 2.45 p.m. on 3 March 2003 no such documents had been lodged with this Tribunal.[3]Mr Khella wrote to the Tribunal on 24 February 2003, and it may be that this was faxed to the Tribunal, because it is date-stamped as received on the same day and indeed the letter says that it is by fax. His letter reads as follows (it is addressed to Ms D Armstrong who had signed the other letter that we have referred to on behalf of the Registrar):
"Dear Ms Armstrong, MR K S KHELLA V NILA FOOD DISTRIBUTION LTD I should be most grateful if I could be allowed a postponement of my hearing pending a police investigation of the facts. I very much apologise for the inconvenience this delay may cause. I thank you for your kind understanding of this matter. Yours sincerely Kalvinder Singh Khella"
[4]On 26 February 2003 the listing officer of the Employment Tribunal replied to Mr Khella in the following terms: "I refer to the above matter and your letter of 24 February 2003. Your application was referred to the Deputy Registrar who has directed that the matter remain in the list for hearing on 3 March 2003. You may of course wish to renew these submissions by way of preliminary point on this date. Yours faithfully" and it is signed by the Registrar.[5]Again, as at now, nearly 3.50 p.m. on 3 March Mr Khella has not appeared and it seems from the correspondence most likely that he does not intend to do so. Accordingly, we have decided to consider his case on this Preliminary Hearing in his absence.[6]Mr Kalvinder Singh Khella (the Appellant) had been employed as a driver by the Respondent, which is entitled Nila Food Distribution Ltd, although it seems possible that it is not a limited liability company. He had been so employed until 3 March 2000 when he received a letter dated 28 February 2000 dismissing him with immediate effect.[7]His dismissal arose out of his absence from work. He had been on holiday to India with his family and was to return to work on 19 February 2000. On 17 February 2000 he had an accident whilst in India and his return was delayed until 26 February 2000. When he did return, despite having explained the reason for his absence and whilst he was in the course of furnishing documentary proof of his explanation, he was dismissed by the letter we have already referred to.[8]He complained to an Employment Tribunal of a breach of contract, unfair dismissal and race discrimination. By its decision of 10 June 2002 the Employment Tribunal dismissed the complaint of race discrimination but upheld the other complaints. The Employment Tribunal went on to consider remedy. It held that reinstatement/re-engagement was not practicable and awarded compensation.[9]The Appellant's personal and domestic situation was complicated by the ill-health of his wife. The hours of 3.30 a.m. to 12.00 noon which he had worked with the Respondent suited him because it left him free in the afternoon to care for his wife and children who were in their mid to late teens. Consequently he had restricted his search for work, although he had made a number of applications, unsuccessfully, attended a number of interviews, unsuccessfully, and registered with the Employment Agency.[10]The Employment Tribunal plainly took the view that he ought to have found himself alternative employment long before the hearing of the case in 2002. The Tribunal say this at paragraph 32: 32 "The period for which we would make this compensatory award is for the months of April to June 2001 in their entirety. We do so having considered the Applicant's skills, his domestic situation, his former physical injuries, i.e. his broken finger, and his attempts to mitigate his loss."[11]Thus, albeit briefly, the Employment Tribunal appear to have taken the view that the Appellant had failed to mitigate his loss by obtaining alternative employment thereafter and they restricted the award accordingly. The net result was that he was awarded a total net amount, in respect of breach of contract, of £1,006.76 and the total amount of compensation, in respect of unfair dismissal, of £3,368.87. The Tribunal went on to identify the prescribed element because the recoupment regulations applied and also went on to award interest.[12]Mr Khella's appeal raises a large number of matters, some of them procedural and some of them substantive. His Notice of Appeal is to be found at pages 14 to 15 of the bundle and in paragraph 6 a number of grounds are set out under four headings and these are then reiterated at page 15 in a series of points numbered 1 to 9 which were attached.[13]We will deal with each in turn. The first point refers to the identity of the Respondent. It raises the question of the Respondents having traded as a private limited company when, as it emerged from the evidence of the Tribunal, the Respondent was a partnership. It seems to us this is not a matter that could give rise to a successful appeal. The Respondent, whether it is a partnership or a limited liability company, is plainly the employer and, although the mis-description might have certain consequences, it seems to us that it was something that the Tribunal had identified and, having identified it, they deal with it at paragraph 14 of their decision factually and they deal with matters generally at paragraph 19.[14]The Tribunal, in general terms, dealt with these deficits that occurred as they found in both sides of the case in paragraph 4 where they say: 4 "We found there was a substantial conflict of evidence between the parties. We did not find the evidence from either side wholly convincing. We arrived at our decision having regard to the oral evidence together with the documents to which we were referred."[15]The Tribunal, in respect of this question of the nature of the legal personality of the Respondent, made no further comment than that at paragraph 14 of the decision. In our judgment, they were quite right not to do so. It was not a matter that affected the substance of the application before them. The questions were whether there had been breach of contract, whether there had been unfair dismissal and whether there had been race discrimination. None of that was affected, in our judgement, by the legal personality or identity of the Respondent and the Tribunal were quite right to, in effect, ignore that aspect of the case.[16]The second ground is that witness statements from the Respondents were not exchanged until 20 April, 4 days before the hearing. That is apparently accepted. There is a letter from the employment consultancy that represented the Respondent, Legal Personnel and Management Services. It is dated 15 January 2003 and is to be found at pages 33 to 35 of the bundle.[17]The question of the late delivery of witness statements is dealt with in that letter and it is a procedural matter that would not have prejudiced the Applicant. The comment made in the letter is "nothing turned on this as both sides' statements followed the pleadings and neither side have cause to raise this as a point of concern". It is a matter that the Tribunal dealt with in its decision in part at paragraph 3. There was plainly a great deal of difficulty in relation to witness statements on both sides and we think that the question of whether or not the Appellant had been prejudiced was plainly dealt with by the Tribunal. We can see no basis upon which there was any prejudice arising out of this second point in the grounds of appeal. Accordingly, we do not think that it has any reasonable prospect of success.[18]The third ground of appeal is in relation to the question of witness orders which is also dealt with in paragraph 3 of the Employment Tribunal's decision. We can detect no error in their approach to what was obviously the vexed question of witness statements.[19]The fourth and fifth matters relate to the character of some of the witnesses called on behalf of the Respondent. We understand the Appellant's point to be that those witnesses were, to some extent, represented as, or proclaiming themselves to be, practicing Sikhs. This was a matter that we think was ventilated in the course of the Tribunal hearing and we do not understand why the Applicant regards it as a matter of significance except to say that he believes that those witnesses who made those protestations of religious faith, as he would have it, falsely, were reliable witnesses.[20]This was plainly a matter that was ventilated before the Tribunal. The Tribunal dealt with this at paragraphs 15 and 16 of its decision and also in further detail at paragraph 24 of its decision. Paragraph 24 reads: 24 "In respect of the Applicant's complaint of unlawful race discrimination we find that this complaint was not made out. No primary facts were found from which the Tribunal could draw inferences. The Applicant is a Sikh who does not fully practice the Sikh religion. He had not referred the remarks he alleged Mr McKenzie[to have made] to anybody nor did he raise [them] when he first presented his complaint to this Tribunal but did so only many months later. The Respondent has a multi-racial workforce including a number of Sikh employees. While the Respondent did not carry out any monitoring of its Equal Opportunities Policies, we did not find any evidence of any discrimination against Sikhs or any other group. During the course of the hearing, the Applicant, without warning to the Respondent, alleged that the Respondent forced its Sikh employees to taste Halal chicken. This was denied by the Respondent and we did not find anything to support the allegation. In the Applicant's closing submissions, he alleged that the Respondents sought to employ people with English or Muslim names or names that sounded as such. No evidence had been produced to that effect (a list of the Respondent's workforce had been produced but no evidence on the origins of the names) and we disregarded that submission. We do not consider this complaint well founded."[21]Paragraphs 4 and 5 of the schedule or addendum to the Notice of Appeal plainly relate to the issues of race discrimination and of credibility. These are matters which we think the Tribunal had ventilated before it and dealt with. They are plainly matters of credibility, matters of evidence and matters of fact. This is uniquely the province of the Employment Tribunal and this Tribunal has no jurisdiction over questions of fact which we think are being raised by paragraphs 4 and 5.[22]We think a similar point can be made in relation to paragraphs 6 and 7 of the addendum. Reference is there made to Mr Mohammed Nilforoushan, who it is said perverts the course of justice and claims he is a Managing Director. Other allegations are made. Paragraph 7 relates to the Office Manager who is said to have altered his written statement and to have distorted the truth.[23]It seems to us that this case was very much a matter of credibility and that the Tribunal had all these points in play, as appears from paragraph 4 of the Tribunal's decision, which we have already referred to, and paragraph 24, which we have just quoted. These are all questions of fact that give rise to no issue of law and this Tribunal has no jurisdiction to hear the matter. Alternatively, this appeal has no reasonable prospect of succeeding in relation to these matters.[24]Paragraph 8 of the addendum to the Notice of Appeal alleges that important facts had been disallowed. It is clear from the Employment Tribunal's decision that it was not prepared to admit certain evidential matters. This it deals with extensively at paragraph 3 of its decision. We can find no error in the procedural conduct of the Tribunal and accordingly we think this is a matter that has no reasonable prospect of succeeding.[25]The last paragraph of the addendum to the Notice of Appeal, paragraph 9, is that the remedy was not fair and that Mr Khella is still unemployed. This matter, we think, was dealt with, albeit briefly, by the Tribunal in the passage that we quoted from paragraph 32. The Tribunal took the view, having heard the evidence, that the Appellant had not taken all such steps as were reasonable in mitigation of his loss. There is nothing in paragraph 32 which we can regard as a misdirection or error of law. Accordingly we do not think this aspect of the appeal has any prospect of success.[26]In all those circumstances this appeal will be dismissed.