MRS I UZOECHINA v IMMIGRATION ADVISORY SERVICE [2003] UKEAT 992_02_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 992_02_1601Case No Appeal No. EAT/992/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS I UZOECHINAAPPELLANTIMMIGRATION ADVISORY SERVICERESPONDENT
Before
His Honour Judge Peter Clark Mrs C Baelz Mr P DawsonDate 16 January 2003
[1]APPEARANCES For the Appellant Mr P Uzoechina Husband For the Respondents: HIS HONOUR JUDGE PETER CLARK This appeal, brought by Mrs Uzoechina, the Applicant before an Employment Tribunal sitting at London South, under the chairmanship of Mr A N Snelson on 4 January 2002, against that Tribunal's Decision, promulgated with Extended Reasons on 20 May 2002, dismissing her complaints against the Respondent, her former employer, Immigration Advisory Service, came on for preliminary hearing before us on 4 December 2002. Having heard oral submissions occupying two hours in support of the appeal made by her husband, Mr Patrick Uzoechina, who has represented her throughout, we reserved our judgment in order to consider those submissions in the light of additional documentation produced by Mr Uzoechina at the start of this hearing and against the background of documents originally before us.[2]The Appellant commenced these proceedings by an Originating Application presented to the Employment Tribunal on 8 August 2001. Two heads of complaint were there raised; racial discrimination and breach of contract, namely "breach of disciplinary hearing". The Particulars of complaint focused on the Applicant's alleged dismissal on 11 May 2001 and certain incidents during the employment said to amount to acts of racial discrimination by her line manager, Mrs Helen Robinson. The nature of the Applicant's case was further developed by Mr Uzoechina in a letter to the Tribunal dated 10 October 2001.[3]The substantive hearing of the complaint was fixed for 4 January 2002. It seems that at a late stage Mr Uzoechina applied for a postponement of that hearing; disclosure and for permission to amend the Originating Application to add a complaint of sex discrimination. Each of those applications was dismissed by the Regional Chairman, Mr G H K Meeran, by a letter dated 28 December 2001.[4]On the morning of the hearing held on 4 January Mr Uzoechina applied to add a further claim of unlawful deductions from wages. That application was refused by Mr Snelson's Tribunal.[5]On that day the Tribunal heard oral evidence from the Appellant and received written statements on her behalf from Mr Victor Ogunbusola and Mr Mladen Kesar. For the Respondent, Mrs Robinson and a Mr Seth Owusu-Afriyie, Personnel Officer, were called to give evidence. Each of the "live" witnesses produced witness statements. Bundles of documents were put in by both parties.[6]Following the hearing each representative put in two sets of written submissions. The Tribunal met in private on 21 March 2002 to consider the evidence and submissions. Thereafter the Decision, with Extended Reasons, (EWR), was promulgated.[7]It was clear to the Tribunal, as it is to us from reading the parties' closing submissions, that a number of factual disputes arose, particularly between the Appellant and Mrs Robinson. For the reasons given by the Tribunal at paragraphs 23-26 EWR, they preferred the evidence given by Mrs Robinson and Mr Owusu-Afriyie where it conflicted with that of the Appellant, whom they found to be an unimpressive witness. We remind ourselves that it is not for us, on appeal, to re-try factual issues or to interfere with the Tribunal's reasoned assessment of the credibility of the witnesses appearing before them.[8]As to the complaint of racial discrimination the Tribunal, having reminded themselves of the guidance given by Sedley LJ in Anya -v- University of Oxford [2001] IRLR 377 , approving that given by Mummery P in Qureshi -v- Victoria University of Manchester (now reported at 2001 ICR 863 n) identified, by agreement between the parties' representatives, seven disputed allegations made by the Applicant amounting, individually or cumulatively, to less favourable treatment on racial grounds. They made findings of fact on those allegations as Anya directs them to do. Having done so they concluded, in each instance, that no less favourable treatment was made out, that is, when compared with an appropriate actual or hypothetical comparator. It followed that this part of the claim failed at the first hurdle. It was unnecessary to consider, as a matter of inference, whether the less favourable treatment alleged was on grounds of race, or whether the Appellant had suffered a detriment[9]The breach of contract claim was reduced to two factual questions. Was the meeting held on 11 May 2001 between Mrs Robinson and the Appellant a disciplinary hearing? Did Mrs Robinson describe it as such? Resolving those factual questions in favour of the Respondent, the Tribunal answered both in the negative. Accordingly, this claim also failed.[10]Against this background we turn to the various points raised by Mr Uzoechina in this appeal. Taking them from the Notice of Appeal; Skeleton Argument; oral submissions and a subsequent fax to the EAT received on 6 December 2002 it is convenient to deal with them under the following headings:(1) Errors of Fact The Appellant's grounds of appeal are formulated in part on the basis that the Tribunal "erred in fact". We refer particularly to grounds 2,3 and 6. As we have earlier observed, it is no part of our jurisdiction to re-try the factual issues determined below. Insofar as the appeal consists simply of challenges to the Tribunal's fact-finding it must and does fail.(2) Findings unsupported by evidence/taking into account irrelevant factors. A material finding of fact wholly unsupported by any evidence may give rise to an error of law, see Piggott Bros Ltd -v- Jackson [1992] ICR 85, 92D , per Lord Donaldson MR. Similarly, a decision based on irrelevant factors may be perverse under the Wednesbury principles (1948 1 KB 223. At paragraph 16 EWR, under the heading "Was the decision to dismiss the Applicant an act of racial discrimination?", the Tribunal found that the Appellant did not rely on an actual comparator. Mr Uzoechina submits that in fact the Applicant relied on an actual comparator, Stephanie Marcou, who was white. The Appellant is black and of Nigerian origin. We shall consider this submission under the heading of "Racial Discrimination" (below). Next, at paragraph 12 EWR, the Tribunal found that Ms Marcou obtained permission to come to work later than her contracted hours at a time when a close relative (her father) was in hospital and that the appropriate hours were deducted from her annual leave entitlement. It is submitted that there was no evidence before the Tribunal to support the finding that the missed hours were deduced from Ms Marcou's annual leave entitlement. We are unable to form a view on this part of the appeal without the Chairman's Notes of Evidence, a point to which we shall return later in this judgment. At paragraph 15 EWR, the Tribunal record that there was no evidence that the Respondents 'denied' the Appellant a contract. The point was not pursued in the evidence. As to that, Mr Uzoechina has referred us to his letter of the Tribunal dated 10 October 2001, paragraph 4, where it is contended that:
"another occasion of Mrs Robinson's racial prejudice was her refusal to give the applicant her full written contract of employment, despite persistent request (sic) from the applicant"
The question of a full contract of employment is raised at paragraph 25 of the Appellant's witness statement and pursued at paragraph 2(h) of the Appellant's "Counter submissions", that is the second set of written closing submissions put in by Mr Uzoechina to be found at pages 44-45 of the Appellant's appeal bundle before us. It follows that, at the least, some explanation is required from the Chairman as to the finding that the Respondents' failure to give the Appellant a written contract was not pursued by the Appellant before the Tribunal. (3) Failure to make all necessary findings of fact. It is submitted that the Tribunal failed to make all necessary findings of fact, as required by the Court of Appeal guidance in Anya . That assertion, which appears at the seventh ground of appeal and is repeated at paragraph 2 of the Skeleton Argument is wholly unparticularised and was not developed in oral submissions before us other than as referred to above, that is, the actual comparator point arising from paragraph 16 EWR. (4) Failure to adjudicate on all claims (permission to amend). It is necessary here to consider the following potential courses of action: (a) Sex discrimination. Permission to amend was refused by the Regional Chairman on 28 December 2001. Having read the Appellant's witness statement we are unable to see any basis for a claim of direct sex discrimination. It is simply an "add on" to the claim of racial discrimination. We can see no error in law in that exercise of discretion. (b) Unlawful deduction from wages. No evidential basis for such a claim appears from the Appellant's evidence. Again, we think that the Snelson Tribunal was entitled to refuse permission to amend, at a very late stage, in these circumstances. See Selkent -v- Moore [1996] ICR 836 . (c) Breach of section 57A Employment Rights Act 1996 (ERA) (time off for dependants). We are not persuaded that such a claim was raised in the Originating Application, nor was permission sought to amend to add such claim. The complaint that the Appellant was not given time off work was raised as part of her racial discrimination complaint (EWR para 12, allegation (c). There is no suggestion in Mr Uzoechina's closing written submissions that the Appellant was unreasonably refused time off for the purpose of a complaint under section 57(B) ERA. The Tribunal is only required to determine those complaints which are brought before it. We shall not permit a new point of law to be raised for the first time on appeal, absent exceptional circumstances. Glennie -v- Independent Magazines (UK) Ltd [1999] IRLR 719 . (5) Fresh evidence We have before us an application by Mr Uzoechina to adduce two separate documents which were not in evidence before the Tribunal. In determining that application we shall be guided by the Ladd -v- Marshall principles applied to the practice of the EAT by Popplewell P in Wileman -v- Minilec Engineering Ltd [1988] ICR 318 , namely that the new evidence has become available since the conclusion of the Tribunal hearing and its existence could not have been reasonably known or foreseen; that the evidence is apparently credible and relevant and that it would probably have had an important influence on the result of the case. The new evidence consists of: (a) an exchange of e-mails between the Appellant and Robert Phillips on 3 / 4 April 2001 concerning the Appellant's entitlement to study leave. The document appears at page 56 of the Appellant's additional appeal bundle. It is said that this document was in the Appellant's file at the Respondents' office, but not retrieved until after the Tribunal hearing and that it goes to the credibility of Mrs Robinson's evidence, she having allegedly told the Tribunal that the Appellant was not entitled to study leave. In these circumstances it seems to us that the Appellant fails at the first stage of the Wileman test. She was aware of the exchange of e-mails at the time of the Tribunal hearing. However, she failed to include the document in her application for specific disclosure which was refused by the Regional Chairman on 28 December 2001. The document could, with reasonable diligence, have been obtained for use at trial; her only complaint would be if she had applied for its disclosure and that application had been refused. She did not do so. (b) A letter to Mr Uzoechina from the Legal Services Commission (LSC) dated 1 July 2002. This letter was attached to Mr Uzoechina's fax to the EAT received on 6 December 2002. It is in answer to a letter from Mr Uzoechina to LSC dated 25 June. We have not been provided with a copy of that letter. It goes to the question as to whether one of the Appellant's comparator's, May-Lim (Japanese) position with the Respondent was funded by LSC, thus requiring that she be appraised whilst the Appellant was not (EWR paras 10-11). We are not persuaded that the contents of the LSC letter, if placed before the Tribunal, would have had an important effect on the outcome. The letter is equivocal; whilst a position may not be designated as funded by LSC, in practice an employee's position may be maintained by the provision of LSC funding. That does not seem to us to be inconsistent with evidence said to have been given by Mrs Robinson that it was a requirement for May-Lim, holding a position funded by LSC, to be appraised as a condition of that funding. It follows that we refuse the Appellant's application to adduce each of the above documents in evidence for the purposes of this appeal. (6) Breach of contract Mr Uzoechina attacks the Tribunal's findings, at paragraphs 20-22 EWR, that the Respondents were not in breach of contract in denying or failing to give the Appellant the right to be accompanied at the meeting held on 11 May 2001, Alternatively, that failure was said to contravene the relevant provisions of the Employment Relations Act 1999 (E Rel A) (section 10) . He submits that the Tribunal was wrong to find that the Appellant was still on probation at the date of that meeting. It was common ground that the Appellant's employment commenced on 1 February 2001. Her letter of appointment dated 24 January 2001 referred to three months' probation. It was the Respondents' case, accepted by the Tribunal, that following completion of that three month period the Appellant was seen by Mrs Robinson on 11 May and told that her appointment was not confirmed. In these circumstances, so the Tribunal found, the meeting was not a disciplinary hearing to which the Respondent's contractual Disciplinary Procedure applied (nor, we infer, section 10 E Rel A). She was not entitled to be accompanied. In our judgment that was a permissible finding based on the Tribunal's findings of fact set out in paragraph 21 EWR. In reaching that conclusion we have not overlooked the Court of Appeal decision in Dalgleish -v- Kew House Farm Ltd [1982] IRLR 251 , on which Mr Uzoechina purported to rely, both below and before us. We say "purported" because it emerged during the oral hearing before us that Mr Uzoechina was in fact relying upon a short commentary on that case in a publication said to be Legal Practice Course Guide - Employment Law 2001 by James Hollands and Stuart Burnett - published by Blackstone Press. We take that from Mr Uzoechina's fax to the EAT dated 6 December 2002, which includes the relevant extract. We have also considered the report of the case in the Industrial Relations Law Reports. The facts were that the claimant's letter of appointment stated:
"Your position will be probationary for a period of three months at the end of which time your performance will be reviewed and if satisfactory you will be made permanent"
His employment was terminated within the three month probationary period. The County Court Judge held that such dismissal was not in breach of contract. He was not promised that employment would continue for three months. The Court of Appeal upheld that decision. It follows that that decision does not bear on the question before this Employment Tribunal, namely whether a review meeting following expiry of this Appellant's three month probation period was or was not a disciplinary hearing for the purposes either of her contractual entitlement at a disciplinary hearing or her statutory entitlement to be accompanied at such a hearing under section 10 E Rel A. (7) Racial discrimination We return to the second of our headings above. It is here that, on the basis of hearing only Mr Uzoechina at the preliminary hearing, we think that there are matters which require further investigation at a further hearing at which both sides are present. The specific issues which will be addressed under this head at that hearing are as follows: (i) did the Tribunal fail to consider and determine an allegation by the Appellant that she was less favourably treated than an actual white comparator, Stephanie Marcou, in that the Appellant's employment was not continued following completion of her three month trial period, whereas Ms Marcou, said to be a less capable employee, was continued and that such less favourable treatment was on grounds of her race? (cf EWR paragraph 16). (ii) Was there any evidence to support the Tribunal's finding (EWR paragraph 12) that Ms Marcou's hours of work spent attending to her father in hospital were deducted from her annual leave entitlement? If not, what impact does that particular finding of fact have on their overall findings at paragraph 12 EWR? (iii) Did the Appellant pursue in evidence (and closing argument) a contention that she had been denied a contract by the Respondent? If so, did that invalidate the Tribunal's conclusion at paragraph 15 EWR? (8) Bias In a Declaration made on 1 October 2002 the Appellant contended that the Snelson Tribunal showed bias or the appearance of bias in the following respects: (i) The Tribunal accepted Mr Owusu-Afriyie's evidence that when the Appellant complained to him about her dismissal she told him that her husband was an employment law specialist, something not contained in his witness statement and denied by the Appellant, whereas the Tribunal rejected an allegation made by the Appellant against Mrs Robinson, observing that it did not appear in her Originating Application, only in her witness statement. Taking that complaint as it stands, the Tribunal made no finding as to any comment by the Appellant to Mr Owusu-Afriyie about her husband being an employment law specialist; the relevant finding, at paragraph 26 EWR, was that Mr Owusu-Afriyie did not tell the Appellant that the decision to terminate her employment was unfair and he would make every effort to overturn it. As to the finding in respect of Mrs Robinson, there are two, at paragraphs 23 and 24 EWR. The Tribunal was entitled to take into account the fact that neither allegation appeared in the Originating Application as part of the circumstances bearing on the issue of credibility as between the Appellant and Mrs Robinson. In short, we can see nothing in this allegation of bias or the appearance of bias on the part of the Tribunal. (ii) Next, it is said that the Tribunal was wrong to find Mr Owusu-Afriyie a credible witness. We repeat, questions of credibility are for the fact-finding Employment Tribunal. More to the point, we cannot see any possible question of bias arising from the Tribunal's conclusion as to this witness's credibility. (iii) It is suggested that during Mrs Robinson's cross-examination Mr Owusu-Afriyie, then a spectator, shouted out the nationalities of employees whose appointment was confirmed at the end of their probationary periods, and that the Tribunal accepted evidence given in this way. However, as the Chairman points out in his letter dated 31 October 2002 commenting on the Appellant's Declaration, there are no findings by the Tribunal on this matter. Thus, even if Mr Owusu-Afriyie behaved as alleged (and the Chairman has no note that he did) such remarks had no bearing on the outcome of this case such as to give rise to any appearance of bias on the part of the Tribunal. (iv) The final point made by the Appellant again goes to the Tribunal's findings on the issue of credibility, findings which, in our judgment, they were perfectly entitled to reach having heard all the witnesses. It follows that we reject the Appellant's complaints of bias and each of them. (9) Chairman's Notes Although no formal application for Chairman's Notes of Evidence is before us we consider it essential that the Chairman be asked to produce any Notes of Evidence relevant to the three specific issues identified under (7) above to be determined at the full hearing of this appeal. Copies of those notes will be provided to the parties. Summary[11]Having considered all the points raised in the appeal at this preliminary hearing stage we have concluded that all must be dismissed, save for the three specific issues, identified under paragraph 10(7) above which will proceed to a full hearing. They will be the only issues at that hearing. The full appeal will be listed for half a day, Category C. The usual directions for bundles, Skeleton Arguments, a chronology and lists of authorities will apply.