MS V OLATOKUN v IKON OFFICE SOLUTIONS [2004] UKEAT 0074_04_1005

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0074_04_1005Case No Appeal No. UKEAT/0074/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS V OLATOKUNAPPELLANTIKON OFFICE SOLUTIONSRESPONDENT
Before
Mr Justice BurtonDate 10 May 2004
[1]APPEARANCES For the Appellant MRS H GOLTSMAN SHEIZON Representative Free Representation Unit 4th Floor, Peer House 8 - 14 Verulam Street London WC1X 8LZ For the Respondent MR D BROOK (of Counsel) Instructed by: Employment Law Consultants Rowan Cottage Highfield Crescent Hindhead Surrey GU26 6TG SUMMARY Race Discrimination Applicant's claim of race discrimination failed, as the Tribunal found that the Respondent was entitled, pursuant to s8 of Asylum and Immigration Act 1996, to ask for her passport, once she answered the question on job application form that she was born in Nigeria, and was hence protected by s 41 of Race Relations Act 1976 1996 ( Hampson applied): appeal in that regard dismissed, but remitted to same Tribunal to deal with whether Applicant's dismissal (and rejected appeal) was similarly protected. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Applicant, Ms Olatokun, against the unanimous Decision of the Employment Tribunal at London South, after a hearing on 16 October 2003 and Reasons handed down on 11 November 2003, that her claim against the Respondent, Ikon Office Solutions Plc, for racial discrimination was dismissed. There was also a claim by the Applicant in her Originating Application for breach of contract, and that had been disposed of by agreement, which agreement was recorded in the Decision of the Employment Tribunal, and for unlawful deduction from wages, which was similarly settled.[2]It has remained unclear until today, but it has now been made utterly clear by Ms Sheizon, on behalf of the Appellant, that the claim has never been put on the basis of indirect discrimination; it has been put, and is pursued by way of appeal against the decision to the contrary by the Tribunal, on the basis of direct race discrimination.[3]The matter arises out of the short employment of the Appellant by the Respondent. She was, initially it seems, an agency worker, and then, after a job application, she was offered permanent employment as an office co-ordinator. Her origin by birth was in Nigeria, and indeed she is a Nigerian national. Her offer of permanent employment came on 6 November 2002. It was found by the Tribunal, in paragraph 4 of its Decision, that a job application form was given to the Appellant in November 2002, together with a medical form, but that neither of those were returned to the Respondent, and that by the time the Human Resources Department of the Respondent appreciated this fact, the Appellant had been employed for approximately four months, a new set of forms was sent to her and after some chasing they were completed and returned. Those forms, which were, as we understand it, standard for the Respondent, required the job applicant, as she originally had been, to answer a question as to her place of birth. Such questions were, as we have indicated, directed to all job applicants to the Respondent.[4]The purpose of such question was by virtue of section 8 of the Asylum and Immigration Act 1996, which was then the governing provision, ("the 1996 Act")and that provides as follows:
"8. (1) Subject to subsection (2) below, if any person ("the employer") employs a person subject to immigration control ("the employee") who has attained the age of 16, the employer shall be guilty of an offence if- (a) the employee has not been granted leave to enter or remain in the United Kingdom; or (b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment, and (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State."
There is a statutory defence provided in appropriate circumstances by subsection 8 (2) of the 1996 Act, which provides as follows:
"(2) Subject to subsection (3) below" which is a provision relating to overriding knowledge on the part of the employer " in proceedings under this section, it shall be a defence to prove that- (a) before the employment began, there was produced to the employer a document which appeared to him to relate to the employee and to be of a description specified in an order made by the Secretary of State; and (b) either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description."
[5]Because of the circumstances of this case, in which, through reasons for which, as has been clear, neither side were blamed by the Tribunal, the answer to the question did not become apparent to the employer at the time of the job application, and thus the course to which that question was intended to lead on, namely that those who answered the question by disclosing that they had been born in a country outside the European Community would be requested to supply a further document, to which we shall refer, did not at that stage occur. In those circumstances, the Respondent was unable to take advantage of the statutory defence under section 8(2), and was consequently at risk under section 8(1), if it employed someone who was subject to immigration control and had not been granted valid or subsisting leave to enter or remain.[6]The Appellant has not represented herself, but has at all times been represented by Ms Sheizon as a FRU representative, and it is seems that Ms Sheizon was, it appears to us, at all material times, primarily concerned in relation to the question of the policy adopted with regard to recruitment; and questions were asked on the Appellant's behalf in a Race Relations Act questionnaire, with regard to how many new employees the Respondent company employed between 1 June 2002 and 31 May 2003, and whether the Respondent asked all of those employees to provide proof of permission to work; and the answer was given, in responses dated 17 September 2003, that the only employees who were asked to provide documents relating to permission to work were those who had so answered the question in the original job application form as to reveal that they were born outside of the European Union; and the countries that were there listed, from which such employees had come, in relation to the 39 of whom such further enquires were consequently made, because they had answered the question that they were born outside the European Union, came from 16 different countries, including Nigeria, but also including Canada, Australia, New Zealand and the United States of America.[7]What occurred thereafter, once the Appellant was, in her particular circumstances after she had already been employed for some time, disclosed to have been born outside the European Union, was that the employer required production by the Appellant of her passport. The facts are recorded as follows by the Tribunal in its Decision:
"4 ……. When the employer appreciated the Applicant's place of birth and nationality, they requested that the Applicant produce her passport to satisfy them of her entitlement to reside in the United Kingdom and to provide evidence that she was not precluded from taking up employment. 5. In this context, the Applicant's passport, which had just expired, included her work permit. The Applicant told the Tribunal that she was not in possession of her passport because she had sent it to the Home Office at Liverpool in support of an application for naturalisation. The Applicant had an acknowledgement letter from the Home Office, which the Tribunal have not seen and she also has a letter ….. which confirms that she is entitled to work subject only to her not having left the country for a period of more than two years. Neither the letter from the Home Office nor the [latter] letter was produced to the employer." we interpose, prior to the dismissal - "6 The Tribunal accepts the evidence of the employer's witnesses that they made time available to the Applicant in order to track down and recover her passport, and that Mr King produced a letter for the Applicant to send to the Home Office, encouraging them to return the passport as soon as possible…This letter" - which we have seen, and was in the bundle before the Tribunal - "was forwarded to the Home Office in Liverpool by Ms Olatokun but not until it had been in her possession for some days. By 9 May 2003, the passport had not been produced and the Respondent, in order to protect itself, terminated the Applicant's employment without notice. The Applicant appealed and an appeal hearing was fixed for 13 June when the Applicant was told to bring her passport. Prior to the appeal hearing, the Applicant had supplied the employer with the letter" - that is the letter indicating the existence of right to remain, to which we shall refer - "but the Respondent took the view that because the letter was conditional upon the Applicant not having left the country for two years, the passport was still required in order to check the Applicant's movements. The Applicant did not attend the appeal hearing because, she told the Tribunal, she did not have her passport, and the dismissal was upheld. 7 Upon the Applicant's evidence, her attempts to recover the passport amounted to a telephone call to the Home Office in Liverpool …. the date of which was extremely uncertain. The Tribunal must deduce from the evidence that the probability is that this letter was not sent until after the termination of the Applicant's employment. The Applicant was able to produce no documentary support for any of her contacts with the Home Office. It is also a matter of note that the Respondent's premises where the Applicant worked were close to the Home Office in London and the Applicant made no attempt to attend at the office in order to make enquiries."
[8]We should at this stage, although it forms a more natural part of the Tribunal's conclusions in paragraphs 11 and 12, read paragraph 11 because it completes the approach of the Tribunal to its findings of fact. "11 The Tribunal finds, as much upon the evidence of the Applicant as upon that of the Respondent, that if the Respondent is to meet the requirements of section 8(1) then the passport is the most reliable document for this purpose. The fact that the Applicant had on all previous job applications been asked for her passport and indeed had been asked for it when opening an account at a bank, was a fact which she did not herself find unusual. The Tribunal are satisfied that this was not an over-zealous act on the part of the Respondent, but was in the spirit of the Code of Practice" [to which we will refer] " and certainly not such a departure from the Code as to draw an inference of racial discrimination ."[9]The submission of the Appellant in this regard had been recorded in the last sentence of paragraph 10, to which this finding was a response, namely in that the insistence by the Respondent in the production of a passport was the particular area in which the Appellant contended that the Respondent's actions were disproportionate. That was the basis of the submission being made, and it appears that the Tribunal quite manifestly did not accept that submission. "12 The Applicant then argues that the position of an existing employee is different [from] that of a prospective employee because a greater responsibility falls upon an employer, particularly when through its own fault it has taken on an employee without first making the appropriate investigations. The difficulty in this regard is that the evidence which the employer requires is within the control of the employee and only with the employee's authority can the employer have access to it. Therefore, inevitably, the burden must lie on the employee to make the evidence available. In this particular case, the evidence supported the Respondent, giving reasonable assistance to the Applicant in providing time off to make enquiries and indeed lending their weight by a letter from Mr King to the Home Office in the hope that the recovery of the passport could be speeded up. Against this, there is the position that the Applicant was somewhat slow in utilising the employer's letter; never made available to the employer documentation that was available until after the decision to dismiss had been taken, and failed to produce to the employer, or indeed the Tribunal, the confirmatory letter from the Home Office saying that the passport was with them. The Tribunal is satisfied that if there was an obligation to an existing employee, then that obligation had been adequately discharged by the Respondent."[10]It is quite plain that the submissions of Ms Sheizon, on behalf of the Appellant, before the Tribunal, concentrated, if not entirely almost entirely, on the question of the requirement for the production of the passport. On analysis, this would appear to be directed towards two matters. First, the original job application questionnaire itself and, secondly, what happened on the facts of this case, given that the Tribunal, for reasons which we have indicated, ascribed no blame to either side, whereby there was no verification of the position, prior to the Respondent effectively continuing the applicant in her engagement with them, i.e. giving her permanent employment, after her allocation to them previously by an agency. The requirement for the passport[11]Ms Sheizon would wish, and, it appears to us, not directly on behalf of this Appellant, but perhaps with an eye to other cases, to have persuaded the Tribunal below that the course taken by this employer of asking the question that it did was in some way discriminatory. The Tribunal, it appears to us, plainly concluded that this was a hypothetical question because it did not apply to the facts of this case, given that, in the event, nothing arose as a result of the kind of question that was asked in the questionnaire, namely relating to questions asked prior to employment, leading to some inhibition on the grant of employment.[12]Ms Sheizon submitted that what an employer ought to do is to require a document from every potential employee, not to ask these questions at all. If, she submits, every employee is asked to produce a P45 then that would mean that there would be no need to ask any subsequent questions. What she has in mind is the Code of Practice which has been issued by the Secretary of State under section 8A of the 1996 Act which reads as follows:
"The Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, with a view to securing that, while avoiding the commission of an offence under section 8 of the 1996 Act, he also avoids unlawful discrimination;"
The passage in the Code of Practice to which Ms Sheizon makes, and no doubt made, specific reference, is paragraph 24 which says that:
" The best way to ensure that you do not discriminate is to treat all applicants in the same way at each stage of the recruitment process. For example, if you provide information to prospective applicants, or if you supply an application form, you could also include a reminder that the successful applicant will be asked to produce one of the specified documents - and attach the list."
[13]The reference to specified documents is to those listed in Appendix 1 to the Code of Practice which includes, among other documents, a P45 which states the National Insurance number of the person named, a passport describing the holder as a British citizen or having the right of abode in, or an entitlement to re-admission to, the United Kingdom, and a passport or other travel document endorsed to show that the person named is exempt from immigration control, has indefinite leave to enter or remain in the United Kingdom, or has no time limit on his or her stay, or a letter issued by the Home Office confirming the person named has such status.[14]There is a number of such documents, and those are described as the specified documents for the purposes of the Code of Practice. Paragraph 25 reads as follows:
"25 You may ask applicants to provide one of the specified documents at any stage before they start work. Depending on your recruitment processes, you may find it most convenient to request a document from all those called to a first interview, or just from those called to a second interview, or only from the person chosen to fill the vacancy. It is perfectly satisfactory to ask for a document only from the person chosen to fill the vacancy if that is most administratively convenient. But if you ask for a document from one applicant make sure you ask for a document from all applicants being considered at that stage. 26 The documents listed in Appendix 1 are of equal status under the 1996 Act …. You only need to see one of the specified documents. Rejecting a candidate who does not have a particular document even though they have one of the others could be unlawful discrimination."
Ms Sheizon's submission before us, and we assume it was made in similar terms before the Tribunal, was that an employer such as the Respondent should limit it self to asking all applicants for, for example, a P45, and that asking any further questions is discriminatory.[15]So far as the particular facts of this case are concerned, as we have indicated, what happened here was that the employee in fact began to work, and there is reference in the Code of Practice to the statutory defence under section 8(2), which we have already indicated, was, on the facts, unavailable to this Respondent, and paragraph 19 reads as follows:
"In order to establish a defence you need to make sure that, before a person starts working for you, you see at least one document which appears to you to be listed in Appendix 1. You should ensure that the document is an original and that it appears to relate to the person that you are intending to employ. You should make either a copy or record of the document or retain it. This last option will normally only be appropriate in the case of Part 2 of a P45. The statutory defence is only established by checking documents before taking on a new employee. There is no requirement to do anything else, even if the person's permission to be in the United Kingdom is not yet permanent. You should not ask existing employees to demonstrate that they have permission to work."
That passage of the Code of Practice was plainly drawn to the attention of the Tribunal. It is quite plain that the Tribunal considered both these aspects very fully in making the findings of fact that it did. Paragraph 8 the Decision reads as follows:
"The first issue before the Tribunal arose in respect of the requirements of the Code of Practice ….. The advice of the Code of Practice at paragraph 24 and 25 is that 'the best way to ensure that you do not discriminate is to treat all applicants in the same way at each stage of the recruitment process'. The Respondent did not do this, but only made further enquiries in respect of applicants who had been born outside the United Kingdom or the European Union. It was argued on the Applicant's behalf that that was of itself discriminatory and a non-compliance with the Code of Practice."
[16]The conclusion of the Tribunal in this regard was set out in paragraph 9 following, and it refers in terms to section 41 of the Race Relations Act 1976, to which we must now turn. Indirect race discrimination can, of course, be justified in certain circumstances; direct race discrimination ordinarily cannot be justified. However, there is a defence to a party which discriminates, made available by section 41 of the Race Relations Act 1976 , the 1976 Act. Insofar as a distinction was drawn between someone born outside the European Community and someone born within the European Community, that is a distinction on the basis of national origins, and that is or can be discrimination, as is made clear by a combination of section 1(1)(a), which is the section relating to direct discrimination and section 3(1) which defines a racial group as meaning "a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls."[17]It is plain that the Tribunal concluded in relation to this case, on the facts, that so far as the Respondent required provision of a passport from those, such as the Appellant, who had answered the questions as to where they were born, it was discriminating between those who had answered the question that they had a national origin outside the European Community, and those who answered the question by answering that they had a national origin within the European Community.[18]The Tribunal did not expressly deal, it appears to us, with the original job application, and it rightly did not do so, in our judgment, for two reasons: first, on the facts of this case, such was entirely hypothetical, because this Applicant was not discriminated against on the basis of any original job application request, but in any event because, in our judgment, by asking every applicant the same question there is no discrimination between one job applicant and another.[19]The discrimination only arises when those who have identified themselves by answering that question differently, are treated differently. The Tribunal addressed that in terms:
"9 The Tribunal determined on this particular issue that the fact that the Respondent applied a different standard to non-UK and EEC citizens as against those from the UK and the EEC may be discrimination but it is sanctioned by section 8 of the Asylum & Immigration Act and protection is accordingly obtained under the provisions of section 41 of the Race Relations Act 1976. 10 The Applicant goes on to argue that while there is statutory protection, that can only be valid as long as the Respondent conforms with the Code of Practice and its actions are proportionate to the objective…"
We have already read the conclusion of the Tribunal in answer to this submission by reference to the facts. We are entirely satisfied that the Tribunal was entitled, in relation to the requirement that the Appellant, once her belated answer to the question in the belated job application form came to the attention of the Respondent, to address the issue of section 41 of the 1976 Act.[20]It is right to say that the Code of Practice states, in paragraph 19, that the employer should not ask existing employees to demonstrate that they have permission to work, but the Code of Practice is only there in order to assist the parties, and to indicate what is best practice, and the Tribunal appreciated, in our judgment, correctly, that on the facts here, where the employer had not, for reasons for which they could not be blamed, taken such steps before employment, it was entitled, if not obliged, to take steps to explore the position in relation to whether it was committing a breach under section 8 of the Act - albeit it would not have the automatic protection under section 8(2) - once it appreciated that this applicant fell within the category of those who, unless some other step had been taken by the British authorities, were subject to immigration control; and, consequently, albeit that the Appellant was an existing employee, the steps taken by the Respondent were, as the Tribunal put it, within the spirit of the Code of Practice, and that it was certainly not, as the Tribunal found in paragraph 11, such a departure from the Code, as they put it, "to draw an inference of racial discrimination", but what they plainly mean is so as to lose the protection of section 41 of the Act.[21]Section 41 of the Act has been subject to consideration by the House of Lords in Hampson -v- Department of Education and Science , [1990] ICR 511 . In the leading speech, Lord Lowry was in agreement with the minority judgment in the Court of Appeal, of Balcombe LJ, that the phrase "in pursuance of" in section 41 should not be broadly construed. Section 41 reads as follows:
"(1) Nothing in Parts II to IV [of the Act] shall render unlawful any act of discrimination done (a) in pursuance of any enactment or Order in Council; or (b) in pursuance of any instrument made under any enactment by a Minister of the Crown; or (c) in order to comply with any condition or requirement imposed by as Minister of the Crown (whether before or after the passing of this Act) by virtue of any enactment."
[22]What was in issue in Hampson was whether acts taken by the Secretary of State for Education and Science were unlawfully discriminatory, and the defence was put on the basis that the Secretary of State's acts had been specifically carried out with the relevant statute in mind, and it was found by the House of Lords that, in order to obtain that protection, a more narrow construction than something simply done under the general rubric of that statute was required.[23]Lord Lowry concluded (at 519F) that the phrase "in pursuance of" was not limited to describing an act which was done "in order to comply" with an enactment, but was not as broad as simply "by virtue" of the Act, and: "The commonly accepted meaning of pursuance … [is] …. the action of following out a process or the action of proceeding in accordance with a plan direction or order. …….. One tends by this route to arrive at such equivalent meanings as "in compliance with", "in the execution of" and "as required by".[24]It is quite plain on the findings of fact by the Tribunal, bearing in mind as it did the Code of Practice, and the submissions that were made to it by Ms Sheizon, that it concluded that when requiring the passport from the Appellant, after the Respondent had discovered that the Appellant fell within that potentially restricted category, it was acting "in pursuance of the enactment", namely Section 8 of the 1996 Act.[25]Section 8 is dedicated towards preventing the unlawful employment of those who are not permitted to work, and, once the Respondent asked the question and obtained an answer, it appears to us that it was indeed a necessary step, and was pursuant to the Act, that it then required proof of the Appellant's position, and the Tribunal addressed, and did not support, the proposition of Ms Sheizon that the Respondent was making more of a requirement than it need to have done in seeking the passport, although, of course, it is worth noticing that no other document was in fact supplied other than the passport prior to the dismissal, in any event.[26]We are entirely satisfied that the Tribunal approached the matter correctly, and came to the correct conclusion, at any rate to a conclusion to which it was entitled to come, that the Respondent, albeit discriminating by making the requirement of the production of a passport, was protected by section 41 of the Act. The dismissal[27]It appeared to us when we read the papers that there was a point which had not, or perhaps had not, been fully covered by the Tribunal and we now turn to that. The Respondent, as is clear from the facts as found by the Tribunal to which we have referred, having made the requirement for production of a passport by the Applicant, then dismissed the Appellant, once she had not produced such document.[28]Mr Brook, of Counsel, who appeared below for the Respondent and has again appeared ably before us today, points out the time which the Appellant was given to comply with the requirement, as indeed the Tribunal found. The Respondent became aware of the risk under Section 8 on 4 April 2003. She was requested to recover her passport, she had not done so by 1 May, she was suspended, given time off work, given the benefit of a draft letter to the Home Office, and on 7 May Mr Glazebrook telephoned her at home to enquire whether she had any news from the Home Office and she had none, and eventually the Appellant was dismissed on 14 May, thus some six weeks or so after the initial requirement was made.[29]What occurred, as is clear from the Tribunal's findings after that, is that the Appellant appealed against the dismissal and at that stage enclosed, for the first time, a copy of a letter dated 16 November 1998, addressed to her by the Home Office Immigration and Nationality Directorate. That copy letter reads in material part as follows:
"You can now remain indefinitely in the United Kingdom. You do not need permission from a Government Department to take or change employment and you may engage in business or a profession as long as you comply with any general regulations for the business or professional activity. … If you leave the United Kingdom, you will normally be readmitted for settlement as a returning resident provided that you did not receive assistance from public funds towards the cost of leaving this country; that you had indefinite leave to enter or remain here when you last left; that you have not been away for longer than 2 years; and that you are returning for the purpose of settlement…. You will not be readmitted as a returning resident if you are resident overseas and only return here for short periods. If your absence from the United Kingdom is for longer than 2 years, but you can still demonstrate that you had indefinite leave to enter or remain here when you last left, and you are returning for the purpose of settlement, you may still qualify for admission as a returning resident if, for example you have maintained strong connections with this country."
[30]As is clear from the Tribunal's findings, the Respondent, and the Tribunal refers to this in paragraph 6 of its Decision, concluded that that was not sufficient, because the letter was conditional upon the Appellant's not having left the country for two years, and her having returned lawfully and received similar sanction on her return to this country, or at any rate, not had it revoked, such that it concluded that the passport was still required, and, as the Appellant did not attend the appeal hearing, and did not produce the passport, the Respondent rejected the appeal.[31]This was, as it seems to us, a further act of unfavourable treatment, over and above the original requirement for the passport. Indeed, it can be said that there are two further acts of unfavourable treatment, the first being the dismissal and the second the rejection of the appeal against dismissal. It may be, insofar as the appeal is separately considered, that that might need specific consideration in the light of the recent House of Lords decision in Rhys-Harper -v- Relaxion Group plc [2003] ICR 867 (which is to be reconsidered in early course by the Employment Appeal Tribunal so far as its effect is concerned) insofar as it may be suggested that there is post-employment discrimination. But, for the purposes of today, we would accept, as indeed Mr Brook has accepted, that there are thus potentially two further acts of unfavourable treatment. Were those two further acts, dismissal and/or the rejection of appeal against dismissal considered by the Tribunal, indeed put before the Tribunal, as acts of discrimination, which also needed to be justified, pursuant to section 41 of the Act? Mr Brook submits that they were not.[32]The Originating Application certainly makes no material reference to the Applicant's dismissal. The IT1 brings a claim for race discrimination, unlawful deductions and breach of contract. In the eleven paragraphs which are annexed to the Originating Application, the story is set out, which, of course, refers to the Appellant receiving a dismissal letter, and to certain matters, which were in fact in the event not pursued, having occurred prior to her dismissal. But the nub of the case appears to us plainly to have been that in paragraph 9, where she submitted that she believed that :
"The Respondent's policy in respect of checking employees' immigration status/permission to work and the way it is implemented is discriminatory. In particular the Respondent insisted that I produce my original passport …. even though it had enough information from my ILR letter ……."
[33]The Notice of Appearance, however, in our judgment, does incorporate as an issue the question of dismissal, and, in our judgment, implicitly the rejection of the appeal. Paragraph 20 of the Notice of Appearance reads as follows:
"Further and in the alternative, the Respondent was complying with a statutory duty in accordance with Section 41 of the Race Relations Act 1996 in dismissing the Applicant and has not committed an act of discrimination."
That document can be looked at in two ways (1) it can support the proposition, which indeed Ms Sheizon puts forward, that, contrary to our judgment, the Originating Application can be seen to include implicitly a claim in respect of the dismissal as well as a claim in respect of the requirement for production of documents, because it appears to have been so understood by the Respondent, or, in the alternative, (2) it can be regarded as a situation in which the Respondent has put an issue before the Tribunal.[34]The Tribunal does not in terms deal with the issue of a suggestion that if the requirement for the documents was not unlawfully discriminatory, the dismissal and/or appeal against the dismissal was. It appears to us that the reason for this is plain, and namely that, rightly or wrongly and we take the view wrongly, Ms Sheizon's concentration at all times was on the alleged discriminatory policy, and the alleged discrimination of the requirement for the passport, without specifically honing in on the consequence of that policy, which of course is what caused particular loss to her client, namely the dismissal.[35]We are conscious of the authority of Kumchyk -v- Derby City Council [1978] ICR 1116 which provides that this Appeal Tribunal cannot deal with a matter on appeal which was not before the Employment Tribunal, and Mr Brook says that there was not before the Employment Tribunal separate consideration of these two subsequent acts of unfavourable treatment, that they were, and were rightly in his submission, regarded by the Tribunal as simply part of the consequences of the unfavourable treatment upon which the Applicant alone relied before the Tribunal. Kumchyk exemplifies a strict policy adopted by this Appeal Tribunal, which is intended to prevent second bites at the cherry.[36]We are, however, not satisfied on the facts of this case that it would be just to apply that strict policy, and we are unsure as to whether the matter was before the Tribunal, and, on balance, we are prepared to give the Appellant the benefit of the doubt in this regard. However, just because of the way in which the Appellant plainly was running the case below, it is not surprising that this issue became relegated to the back, and we in no way blame either the Tribunal or the Respondent in this regard.[37]The basis of the submissions of the Applicant can be seen in terms in paragraphs 9 and 10 of the Decision, to which we have already referred, and which concentrated on the alleged disproportionate nature of the actions by way of insisting on the production of the passport, and do not separately address the question of the dismissal. Once the matter of dismissal and rejection of the appeal against dismissal are before us, we must consider whether the Tribunal made a finding in that regard, even if it did not specifically address them, and possibly did not even fully appreciate that it was supposed to address them, by reference to the findings of fact by the Tribunal.[38]Mr Brook showed us as number of important pointers as to the way in which the Tribunal's mind was working. First, in paragraph 6 of the Decision, the Tribunal specifically finds, in relation to the dismissal on 9 May:
"the Respondent, in order to protect itself, terminated the Applicant's employment without notice."
Secondly, in relation to the appeal, the Tribunal records, without criticism, the fact that the Respondent took the view that, because the letter was conditional upon the Appellant not having left the country for two years, the passport was still required in order to check the Appellant's movements, and the Tribunal points out that the Appellant did not attend the appeal hearing.[39]In paragraphs 9 and 10 the Tribunal addresses, as we have already indicated, the submission by the Appellant that the Respondent's action s were disproportionate and, says Mr Brook, if he is wrong that the Appellant was not addressing anything other than the requirement for the passport, and must be taken to have been addressing also the consequences of that requirement, then "action s " is a relevant plural and it is clear that that submission, namely that the Respondent's action s were disproportionate, was specifically addressed in paragraph 11, when the Tribunal finds that this was not an over-zealous act on the part of the Respondent, and finally in paragraph 12 the Tribunal addresses very sympathetically what it sees as the difficulty in which the Respondent employer was in, where it had given more than sufficient opportunity, on the finding of the Tribunal, to the employee to make available the evidence, and thus resolve the worry that the Respondent had, that it was in continuing breach of Section 8, and the failures by the Appellant in that regard.[40]What Mr Brook submits to us is that we should be satisfied that the Tribunal in fact concluded, by reference to those facts, not only the original requirement for a passport but that the subsequent dismissal and rejection of the appeal were all acts protected by section 41 of the Act, that is that they were all taken pursuant to the Respondent's obligation under Section 8 and the concern that, as each day went past, it was continuing to commit an offence under Section 8, and was avoiding that liability as soon as it could. Alternatively, he submits that if the Tribunal did not address that point, or did not make that conclusion on the face of its Decision, explicitly or implicitly, we should be satisfied that that is the only reasonable conclusion that any Tribunal could come to if this were remitted, and that therefore we should substitute our own view.[41]Ms Sheizon submits that if we were to reach a conclusion in her favour, that the point was before the Tribunal, but that the Tribunal did not address the matter fully, that we should certainly send it back for reconsideration. Her submission is that if we do, it should go to a different Tribunal which should reconsider all the facts. Mr Brook submits that there is no criticism of this Tribunal by way of either bias or the way it handled the matter, and the only allegation against it is that it did not go on to make a specific finding in relation to a matter, which, it may well have been through the Applicant's fault, was not properly put before it.[42]We conclude that we cannot be sure that this Tribunal made the finding in accordance with section 41 that the discriminatory treatment by way of dismissal and rejection of the appeal was also protected by section 41, in the way in which it was satisfied that the requirement of the production of the passport was, and/or that the dismissal and the rejection of the appeal were a necessary consequence of the requirement of the passport, given the subsequent production of the copy conditional letter to which it referred. Equally, we are not satisfied that if the matter were referred to a Tribunal, it would be bound to come to the conclusion that the unlawful discrimination claim must fail.[43]We are, however, not persuaded by Ms Sheizon that it is in any way inappropriate for it to be the same Tribunal, which has considered the facts and made their findings, now to answer the missing question. Indeed, we have concluded that it is wholly appropriate that the Tribunal should do so, and that it should be the same Tribunal. Of course, if the Tribunal concludes that it wishes to hear any further evidence, that will be a matter of directions for the Tribunal to give, which it plainly ought to give in advance of the re-hearing, so that the parties can know how to prepare for it, and the Tribunal will no doubt hear any further submissions as to whether any further evidence, and if so what, is required. We rather suspect that there will be a need for further evidence, but that is a matter for the Tribunal.[44]However it is quite plain that this is not a case in which a fresh Tribunal should start again. This Tribunal, having made its finding, which we are satisfied cannot be challenged, that the requirement for production of the passport was protected by section 41 of the Act, must now go on to decide in terms whether the subsequent dismissal and/or the rejection of the appeal against the dismissal were similarly so protected, that is that the Respondent's acts continued to be pursuant to section 41 of the Act. In those circumstances, and to that limited extent, this appeal is allowed.

Cited in 1 later judgment