MR E UZOWURU v LONDON BOROUGH OF TOWER HAMLETS [2005] UKEAT 0869_04_0203

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2005] UKEAT 0869_04_0203Case No Appeal No. UKEAT/0869/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR E UZOWURUAPPELLANTLONDON BOROUGH OF TOWER HAMLETSRESPONDENT
Before
His Honour Judge Prophet Mr D ChadwickLord Davies of CoityDate 2 March 2005
[1]APPEARANCES For the Appellant MR AYOADE ELESINNLA (Of Counsel) Instructed by: Tower Hamlets (East) Citizens Advice Bureau 86 Bow Road London E3 4DL For the Respondent MR STEVEN LANGTON (Of Counsel) Instructed by: London Borough of Tower Hamlets Chief Executive's Directorate - Legal Services Mulberry Place 5 Clove Crescent London E14 2BG SUMMARY Appeal in respect of victimisation based on incorrect application of Barton ; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 – we found Employment Tribunal had applied itself correctly on all matters and appeal dismissed. HIS HONOUR JUDGE PROPHET Following a hearing over three days on 14, 15 and 16 June 2004 followed by a Chambers meeting on 17 June 2004 an Employment Tribunal at Stratford with Mr Haynes as the Chairman and Mr Burrows and Mr Wallis as the lay members, sent to the parties on 15 July 2004 their unanimous decision in respects of complaints brought by Mr Uzowuru against his former employer the London Borough of Tower Hamlets. At the Employment Tribunal hearing Mr Uzowuru was represented by Mr Ibeikwe, an Employment Consultant and the London Borough by Mr Langton of Counsel. The outcome was that apart from one matter which was stayed all Mr Uzowuru's complaints were dismissed and Extended Reasons covering twenty six pages were sent to the parties. The full decision reads as follows:
"(i) the Applicant's complaints of unfair dismissal are not well founded and are dismissed; (ii) the Applicant's complaint of victimisation contrary to the Race Relations Act 1976 is not well founded and is dismissed; (iii) the Applicant's complaint of unauthorised deduction from his wages is dismissed in part and the remaining issue is stayed generally."
[2]The Notice of Appeal received on 25 August 2004 from Mr Uzowuru contained five grounds of appeal and by an Order sealed on 2 December 2004 Judge McMullen QC set grounds 2-4 down for a full hearing. We are constituted today to conduct that full hearing. Mr Elessinla of Counsel represents Mr Uzowuru, and Mr Langton of Counsel once again represents the London Borough.[3]A general point put to us by Mr Langton is that in respect of credibility generally the Employment Tribunal favoured the employer as compared with the Appellant. A brief resumé of the events leading up to the dismissal of Mr Uzowuru from his employment is necessary and we take that as extracted from the findings of fact by the Employment Tribunal.[4]Mr Uzowuru started working for the London Borough in July 1989. He brought a grievance to his employer and subsequently proceedings to the Employment Tribunal alleging race discrimination in August 2000. However he then withdrew those proceedings. It is common ground that consequently there existed either a protected act, or protected acts if the two are taken separately.[5]In August 2002 Mr Uzowuru sought leave from his employer beginning on 2 September 2002 to go to Nigeria due to matters consequent upon his mother's deterioration in health. Leave was granted until 23 September 2002. The employer, after being contacted by Mr Uzowuru then extended leave until 7 October 2002. Contacts thereafter continued intermittently but Mr Uzowuru did not return and the employer duly indicated that a disciplinary process would be activated on the basis of misconduct arising from Mr Uzowuru's prolonged absence without further authorisation.[6]The disciplinary hearing duly took place on 28 July 2003 which was not attended by Mr Uzowuru because he was still in Nigeria although his wife unsuccessfully sought to persuade the London Borough not to dismiss him. He returned to the United Kingdom on 31 July 2003 and sought an appeal against the decision to dismiss him. He attended the appeal hearing before a panel of four Councillors but they dismissed his appeal.[7]There were two strings to Mr Uzowuru's bow in his application to the Employment Tribunal so far as unfair dismissal was concerned. The first was that his dismissal was automatically unfair because the reason for it was that he had taken time off to take action necessary when a dependent falls ill - (see Section 99 of the Employment Rights Act 1996.) In the Grounds of Appeal relating to that matter Mr Elesinnla submits that notwithstanding the Employment Tribunal's specific reference to Qua v John Ford Morrison Solicitors [2003] IRLR 184 the Tribunal did not follow the steps indicated therein. However as Mr Langton says, the parties are not in dispute on most of the questions set out in Qua and we can find no substance in the submission that the Employment Tribunal failed properly to apply that case to the matters before them.[8]It is apparent from the terms of Section 57A of the Employment Rights Act 1996, which is the section authorising time off, that the provisions are to deal with emergency situations which require relatively short period of absence for the employee to attend to that emergency. It is specifically stated that the time taken should be reasonable in the particular circumstances. It is apparent that in the submissions to the Employment Tribunal it was being argued that the whole period of absence should have been found to have fallen within Section 57A, but the Employment Tribunal clearly found that the time taken off was not reasonable for the particular situation. At paragraph 6.33 the Employment Tribunal says:
"…The Tribunal does not accept as a matter of fact that it was necessary for the Applicant to remain in Nigeria until 31 July purely to arrange the necessary care for his mother."
[9]Even if there was a period after 7 October 2002, as Mr Elessinla submits, which could fall within the terms of Section 57A that would still only be a small part of the total absence. The plain fact was that the Applicant never received any authorisation to be absent from his work other than the granting of leave up to 7 October 2002 and he was then absent up to 31 July 2003. The Employment Tribunal was in our view quite entitled to reject that Section 75A could be applied so as to constitute the reason for Mr Uzowuru's dismissal. That ground of appeal therefore fails.[10]Mr Uzowuru also complained to the Employment Tribunal of what might be termed ordinary unfair dismissal under Section 98 of the Employment Rights Act 1996. In that respect the Employment Tribunal's finding was that the reason for his dismissal was misconduct in the form that he had taken prolonged unauthorised leave. The Employment Tribunal then found that under Section 98(4) and in the particular circumstances the employer acted reasonably in treating that reason as a sufficient reason to dismiss him.[11]On that matter Mr Elessinla submits that the Employment Tribunal wrongly interpreted the term of the contract related to unauthorised absence from work. Mr Langton says it was plain that there was disagreement as to the proper interpretation of that clause in the disciplinary code but the Employment Tribunal was perfectly entitled to find that there was no evidence that there was any deliberate engineering of the disagreement. Submissions put to the Tribunal which bore on Section 98(4) in respect of such matters as special leave were, we are satisfied and despite Mr Elessinla's submissions to the contrary, fully taken into account by the Employment Tribunal.[12]At paragraph 23 in respect of ordinary unfair dismissal the Tribunal said this:
"23 Our conclusion therefore is that the Applicant was not unfairly dismissed. He had been granted three weeks' leave subsequently extended to five. He had failed to make energetic efforts to resolve his difficulties and had failed to communicate regularly and in detail with his employers. He had been regularly warned of the situation into which he was placing himself and the likelihood of disciplinary proceedings. Nothing at all was heard from him after his letter of 28 December. Even on 13 July he was not able to indicate when he would be returning. In the circumstances the Tribunal has no hesitation in finding that a reasonable employer would have considered that dismissal was an appropriate sanction in all the circumstances."
We can see no justification on those facts and conclusions for there to be any effective challenge to the Employment Tribunal's decision that the Applicant was not unfairly dismissed under Section 98 of the Employment Rights Act 1996. That ground of appeal is also dismissed.[13]Finally then, we turn to the appeal in respect of the finding that his dismissal did not constitute victimisation under the Race Relations Act 1996. What the Employment Tribunal had to examine was whether there was any causal link between the protected act or acts and the treatment leading up to and the fact of Mr Uzowuru's dismissal. They took into account the evidence presented to them and could find no such link. Mr Elesinnla submits that the findings of fact made by the Employment Tribunal should have caused them to decide that the threshold had been reached by which it would have been appropriate for the Employment Tribunal to engage Section 54A of the Race Relations Act 1976 on the reversal of the burden of proof. We are not able to accept that.[14]The Employment Tribunal set out their findings at paragraph 26:
" However carefully we consider the evidence, we cannot find that the Applicant has shown facts from which we could conclude that there has been victimisation. There was no overt evidence that his dismissal was in any way connected with the protected acts. There are no inferences we can draw from the established facts which will assist the Applicant. His complaints were against specific officers who had subsequently left the Council's employment. At a late stage in his case he suggested that Ms Islam may have influenced other managers. Even if true, which we do not find, he does not suggest how this is connected with the protected acts rather than just a bad relationship between them. There is a total lack of both evidence and/or inference from which the Tribunal could draw a conclusion that the protected acts had any relevance to these events. We further find that the Respondent has proved that the dismissal was entirely due to the Applicant's prolonged absence. The decision to dismiss was not in any way connected with the commission of the protected acts. For these reasons therefore we find that the Applicant's complaint of victimisation is not well founded and it is accordingly dismissed."
[15]Mr Elesinnla has submitted that there is insufficient consideration there in respect of the possible relationship between Mr Goldup's awareness with regard to the protected acts and the matters leading up to and the dismissal itself. As Mr Langton has pointed out, in an earlier stage in their reasons the Tribunal indicate at paragraph 6.2 their view of the extent to which they considered that Mr Goldup had any knowledge of the protected acts and it therefore follows that the Employment Tribunal presumably had well in mind the submissions which had been advanced to them at the Employment Tribunal hearing in respect of whether there could be established a causal link. Their findings in that respect involve in our view no error of law. Accordingly the appeal in that respect does not succeed.[16]Overall therefore the appeal by Mr Uzowuru to this Tribunal is unanimously dismissed.