MR JOHN JOSEPH v ORANGE BUSINESS HOLDINGS UK LTD [2008] UKEAT 0382_07_0807

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0382_07_0807Case No Appeal No. UKEAT/0382/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR JOHN JOSEPHAPPELLANTORANGE BUSINESS HOLDINGS UK LTDRESPONDENT
Before
His Honour Judge McMullenDate 8 July 2008
[1]APPEARANCES For the Appellant MR O A OGUNBIYI (of Counsel) Instructed by: Messrs Owoyele Dada & Co Solicitors Suite 336 99-103 Lomond Grove London SE5 7HN For the Respondent MR M PASCALL (of Counsel) Instructed by: Messrs Howes Percival Solicitors 1 Bede Island Road Bede Island Business Park Leicester LE2 7EA SUMMARY UNFAIR DISMISSAL Reasonableness of dismissal Automatically unfair reasons RACE DISCRIMINATION Direct The Employment Tribunal did not err(a) in upholding the employee's automatically unfair dismissal claim, yet awarding him no compensation as dismissal was inevitable.(b) in dismissing his ordinary unfair dismissal claim.(c) in rejecting his race discrimination claim. HIS HONOUR JUDGE McMULLEN QC This is a confrontation about a Tribunal's judgment usually described as an allegation of perversity; that is, that a decision made by an Employment Tribunal was made without evidence to support the findings. The claims relate to unfair dismissal, race discrimination, victimisation and harassment. The judgment represents the views of all three members. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a reserved judgment of an Employment Tribunal sitting at Reading, chaired by Employment Judge Hardwick. It met for four days, including a day in private discussion and registered its reasons on 6 December 2006. The Claimant and the Respondent were represented respectively by Mr Afolabi Ogunbiyi and Mr Matthew Pascall of counsel.[3]The Claimant made a substantial number of claims under both statutes. The Tribunal decided that the Claimant was dismissed for reasons of redundancy, that it was fair pursuant to s98(4) of the Employment Rights Act 1996 and yet automatically unfair having regard to s98A(1) because of a failure by the Respondent to comply with a dismissal procedure. It made no compensatory award since there was a 100 per cent chance that the Claimant would have been dismissed in any event. Other claims made by the Claimant were dismissed which are not relevant to today's proceedings. The Tribunal dismissed the claims in relation to the Race Relations Act 1976 . Thus on paper, the Claimant succeeded in his challenge to his dismissal and that should be borne in mind throughout the reading of this judgment.[4]The Claimant appealed and in due course the matter came before Mr Recorder Luba QC. In order to understand what he said it is necessary to note the relevant actors in this drama. The Claimant, who is black African of Nigerian origin, was employed as a second level support engineer by the Respondent from 1999 to 2005. Ms N Jagasia, HR executive, Jean Adel Lajri, Head of Messaging and Mr A Martin, Head of Hosting/Messaging gave evidence. Frequently referred to is Candy Goldsmith, but she gave no evidence.[5]The legislation under which this case was tried has not been the subject of any criticism as to the Tribunal failing to cite the correct law nor to apply it and therefore it is unnecessary for us to do any more than to identify that the Claimant made claims under Sections 1(1)(a), 4(2)(c), 2(1), 3(a) and 4(2)(a) of the Race Relations Act and that his dismissal was unfair contrary to s98A of the Employment Rights Act 1996 . It is easy for us to do that because this claim is solely a claim of perversity. The facts[6]The Claimant's unhappy relationship with his employer has, including today, been the subject of examination by 12 judicial officers at three different levels so we hope we will be forgiven if we take advantage of the time put into this case by previous judges.

Mr Recorder Luba said this:

"1. This is an appeal by Mr John Joseph against a decision of the Employment Tribunal sitting at Reading (Mr J R Hardwick Chairman) given on a number of claims made by Mr Joseph against his former employers, Equant Holdings UK Ltd, the Respondent. 2. By their decision, which was given for reasons in a reserved judgement promulgated on the 6 December 2006, the Employment Tribunal dismissed Mr Joseph's claims of race discrimination. They made no award on his successful claim for unfair dismissal and they dismissed claims for non-payment of wages and for an enhanced redundancy package. 3. Against those various decisions, indeed against all of the Tribunal's decisions and the orders that it made, Mr Joseph has presented a notice of appeal to this Appeal Tribunal. That notice of appeal contains some nine grounds with various subsidiary grounds contained within them. That notice of appeal was considered on the papers by HHJ Clark, an experienced single judge of this Employment Appeal Tribunal, and the learned judge concluded that the grounds of appeal gave rise to, or contained, no ground of appeal with any prospect of success. 4. In those circumstances, in exercise of his power under rule 3(7) of the Employment Appeal Tribunal rules, HHJ Clark decided that no further action should be taken on the notice of appeal. In those circumstances Mr Joseph, through his solicitors, has exercised his statutory right to seek a renewal of the matter before a judge of this Tribunal at a hearing in open court and thus it is the matter has come before me for consideration today. 5. The object of today's hearing was to enable Mr Joseph to establish that his grounds of appeal, or at least some of them, contain matters which could properly be said to be errors of law on the part of the Tribunal. Thus giving rise to the prospect of success within an appeal to this Employment Appeal Tribunal, because appeal only lies to this Tribunal on a point of law. 6. The Appellant was represented before me by Mr Ogunbiyi of counsel. Mr Ogunbiyi had furnished in advance of the hearing a document described as a skeleton argument for this hearing. That document is not in fact a skeleton argument properly so understood, that is to say referring to the grounds of appeal and cross-referencing the argument to pages in the paginated bundle (which I should observe extends to some 153 pages before me) rather it simply contained a reproduction of the written argument that he had initially advanced to the Employment Tribunal. However in his courteous argument to me orally this morning, Mr Ogunbiyi has, with my encouragement, gone to the notice of appeal and sought point by point to persuade me that one or more of them contains a ground of appeal with a reasonable prospect of success. 7. Mr Ogunbiyi's task was not assisted by the fact that, as became plain in the course of exchanges, the document provided to me did not contain all of the documents that Mr Ogunbiyi would have wished to place before me at this hearing. Moreover, those parts of his submissions which were based on statutory provisions were not assisted by the fact that he did not have with him the relevant statutory material. In part Mr Ogunbiyi explained that he was not in the best of health and in those circumstances I provided Mr Ogunbiyi with a longer opportunity to address me and to develop his submissions than would otherwise have ordinarily been the case. 8. I should say something of the background before I come to my judgement on the matters before me. Mr Joseph is a black man of African/Nigerian origin. He worked for the Respondent, a large multinational company undertaking international data network and internet hosting services for six years approximately, from 1999 to 2005. He was employed in the capacity of a support engineer. Indeed, in 2005, the last year in which he worked for the company, he was in a position as a support engineer in the level 2 UK support team. The Respondent offered an enhanced termination package to those team members who were prepared to waive any contractual or statutory claims against the company. Mr Joseph did not accept that package and he was dismissed at the end of 2005 purportedly by reason of the redundancy situation and he was paid the requisite statutory minimum payment. 9. Mr Joseph's claim to the Tribunal contained many facets, but in essence it turned on the assertion that the real reason of dismissal had not been the over-arching redundancy situation, but the Respondent's desire to be rid of him following a grievance he had made about his treatment at work in March 2005 and following a Tribunal complaint of race discrimination that he had presented against the Respondent in June 2005. 10. His dismissal, he contended, was not only an unfair dismissal by reason of unfair selection and unreasonable treatment, but it amounted to unlawful victimisation as a result of grievance and/or Tribunal complaint and it was further evidence of the direct racial discrimination against him. In support of the unfair dismissal and discrimination complaints he pointed to the fact that other members of the level 2 support team, who had faced the prospect of redundancy, had in fact continued working in different roles for the Respondent after the end of 2005. Furthermore, out of those who had left he was the only one who had not been paid an enhanced redundancy package. 11. The thrust, as I say, of his unfair dismissal claim was that he had been wrongly or unfairly selected when there were posts available in the company that he could have filled and should have been considered for. 12. The Employment Tribunal heard evidence from Mr Joseph and three senior staff members of the Respondent in a hearing which occupied the best part of three Tribunal days. It also received considerable documentation in evidence. 13. I now turn to the decision of the Tribunal. As I have indicated, the Tribunal essentially rejected all of Mr Joseph's claims. It found that the real reason for dismissal was the redundancy situation caused by the outsourcing of the level 2 support team's work. That, as I understand from Mr Ogunbiyi this morning, is not disputed as the background reason for the redundancy situation. The Tribunal gave detailed consideration to Mr Ogunbiyi's contention that the real reason for dismissal had in fact been race discrimination, either directly or by way of victimisation. It dealt with that matter in paragraph 25 of its judgement and rejected it. 14. The Tribunal also considered, both in relation to race discrimination by reason of victimisation and/or direct discrimination and in reference to unfair dismissal, the question of what had occurred in relation to the re-employment or continued engagement of other members of the level 2 support team. It found therein neither discrimination nor unfair treatment such as to render the dismissal unfair. 15. However, the Tribunal did find that Mr Joseph had been unfairly dismissed for want of compliance with the procedural requirements, pursuant to section 98A of the Employment Rights Act 1996. It therefore went on to consider what compensatory award, if any, should be made in respect of that unfair dismissal. It found, for the reasons it gave at paragraphs 35 and 34 of its judgement, that Mr Joseph's job was inevitably disappearing, so that the fact that he was not able to pursue statutory rights of appeal or the like would not have prevented his dismissal. It is accepted that the Respondent had discharged the burden of proof upon it to show that Mr Joseph had not suffered any loss - in the sense that he would inevitably have been dismissed in any event. 16. As I have explained, on other aspects of his race discrimination claim the Employment Tribunal rejected the proposition that he had been dismissed by reason of his race, and it went on to reject assertions that he had been treated less favourably in respect of his employment rights, again, by reason of race in relation to such matters as: access to the employer's premises for the purpose of seeking other posts, access to other posts and so on. 20. Against that background and against that description of a lengthy decision of the Employment Tribunal, as expressed in its reserved judgement, I come to the grounds of appeal. The first of the nine numbered grounds of appeal, that is to say grounds 1 to 3, attack the Tribunal's decision in respect of the circumstances of the dismissal and in particular the question of whether Mr Joseph was treated unfairly in being made redundant, rather than being given the opportunity or having the opportunity to apply for other posts with the company, not least those posts which were subsequently filled by other members of the team, including in particular two women. That is to say Ms Candy Goldsmith and Ms Sarah Gardner. 21. On my preliminary reading of the grounds of appeal and the Tribunal's decision, taken with the other material made available to me prior to this hearing, I was not of the view that there was any substance in those first three grounds. However, having very carefully listened to Mr Ogunbiyi's submissions, I am satisfied that there may be, and I put it for these purposes no higher than that, may be the prospect of demonstrating that the Tribunal's judgment cannot be sustained in relation to those questions relating to selection for redundancy and opportunity for alternative employment. Those matters go both to the question of unfairness of dismissal and to race discrimination. Having been satisfied in argument that those grounds do contain some prospect of success I shall say nothing more about them, because they will fall for determination on their merits."
[8]That judgment is important and correct. Again, that is easy for us to say because the Claimant was dissatisfied with the approach of HHJ Peter Clark and then of the Recorder for he applied for permission to appeal to the Court of Appeal. That was refused by a single Lord Justice. An oral application was made and heard by Laws LJ on 14 February 2008 (see: [2008] EWCA Civ 253) where the Claimant was represented by Mr Ogunbiyi and no appearance was entered by the Respondent. The rejection by the Recorder of the Claimant's remaining parts of his case, apart from the three which were identified to go forward, was upheld by Laws LJ. A full understanding of the background to this case can be obtained by reading that judgment.[9]Further, these proceedings are based upon the premise that because the Claimant made a complaint prior to these proceedings his fate thereafter has been determined by that complaint which itself was a set of nine allegations made against the Respondent which became the subject of a hearing before a differently constituted Employment Tribunal sitting at Reading over some six days in 2006. That Tribunal rejected all his claims. The Claimant, dissatisfied with that, retained the services for the first time of Mr Ogunbiyi. An appeal was lodged; it was rejected by HHJ Serota QC under Rule 3(7). Again, using the procedure under Rule 3(10) an application was heard by HHJ Peter Clark. All grounds were rejected and so the appeal was in effect dismissed.[10]That judgment was not before Mr Recorder Luba QC. We drew attention to particular criticisms made by HHJ Clark of the way in which the appeal was advanced. Judge Clark's judgment is again required reading for understanding the background to this case. The point we make here is the one made by Judge Clark which is that many of the grounds sought to be advanced were simply criticisms of the fact finding of the Tribunal and thus were not exigible on appeal to the EAT.[11]Dissatisfied with that judgment, an application for permission to appeal was made to the Court of Appeal and rejected by a single Lord Justice. An application was then made for an oral hearing which came on before Mummery LJ on 3 July 2007 (see: [2007] EWCA Civ 755). In the course of a long judgment on a permission application without representation by the Respondent, a hallmark of his Lordship's consideration was criticism of the way in which points had been advanced. He was at pains to remind Mr Ogunbiyi for, as his Lordship pointed out, Mr Ogunbiyi well knows (see paragraph 3) that only points of law are susceptible to an appeal and there is no scope for advancing arguments based upon questions of fact and disagreement on fact. Essentially, Mummery LJ upheld the view of the two EAT judges who had separately turned their attention to it. Mummery LJ remarked upon the forceful advocacy of Mr Ogunbiyi.[12]Indeed, it is something we have noted too, for Mr Ogunbiyi is reluctant to accept rulings and directions from the Bench as to how best to focus our attention on the issues he wishes to raise on behalf of his client. Thus, the hearing before us has been conducted in a rather unusual way. We had to give a reasoned ruling [not transcribed] in relation to the scope of the present appeal. Although Mr Ogunbiyi was dissatisfied with that ruling, he made no application for a review or permission to appeal against it.[13]The essential issue to bear in mind in any complaint to the EAT about perversity is that a very high threshold must be surmounted by a successful appellant (see: Yeboah v Crofton [2002] IRLR 634 per Mummery LJ).[14]The appeal in this case now focuses on probably four essential areas. We will deal with those in sequence. The short chronology is this. The Claimant was engaged by the Respondent on 7 June 1999. He went on sick leave on 11 March 2005 alleging stress at work. He had a grievance in relation to matters which then enured into the first set of Employment Tribunal proceedings and he was placed on garden leave. On 10 May 2005 he was notified of secondment to Nick Keir's team from 16 May 2005. Further details were requested and were given. The Claimant says that he was anxious to return to work but needed to see his doctor and indicated his readiness on 30 May 2005.[15]He issued his first proceedings on 8 June 2005 and as he said, things went downhill from then. On 13 June 2005, secondment to Nick Keir's team was withdrawn but not vouchsafed to the Claimant. He attended a medical assessment recommended by the Respondent and reports were given by the occupational health team. On 14 September 2005 the Respondent decided to notify the Claimant and his team that the work of the team was being, as it is described, off-shored; the work was going to be sent to Cairo, Egypt.[16]Some time after 14 September 2005, the Claimant said that he had lost trust and confidence in the Respondent and that it had an effect on his health. He did not see how he would fare any better regardless of the post he occupied in the organisation until satisfactory resolution of the matters about which he had complained in his first Tribunal proceedings. He said this:
"When my doctor certifies me as fit enough to return to work, I shall be happy to resume in Nick's department where I have been seconded. I assume that regardless of this secondment I will be affected by the matter stated in your letter of 14 th September 2005, but would ask that you confirm this."
[17]That important letter contains two reflections. The first relates to the off-shoring of his work and the second relates to the secondment which on 26 September 2005 the Respondent notified was no longer available. An exchange of text messaging conversation, (which is a more or less instantaneous form of communication) took place with Candy Goldsmith on 6 October 2005 during which time there was no mention, according to the record, that she had applied for a post in the department which she was given shortly thereafter.[18]On 1 December 2005, the Respondent sent the Claimant an individual at-risk letter notifying him of potential termination on 31 December 2005 with a draft compromise agreement giving him until 12 January 2006 to accept. In due course, that position took effect in that the Claimant left his employment on that date and on terms which were not the subject of enhancement through a compromise agreement. On 4 January 2006, Sarah Gardner was offered and/or accepted a permanent position. On 26 January 2006 a redundancy payment was given to him.[19]Arising out of that chronology, the four broad issues concern Candy Goldsmith's appointment, Sarah Gardner's appointment, the offer of secondment to work with Nick Keir and the offer of an alternative post with Jean Adel Lajri. (1) Candy Goldsmith[20]The central proposition advanced by the Claimant here is one of fact. It is contended that Candy Goldsmith, unfairly and/or discriminatorily, had been offered work which the Claimant could have done. The Tribunal made firm findings that the position was advertised internally, that Candy Goldsmith applied for it and that she had been appointed to it. A dispute arose as to what evidence was given but that has been resolved by the employment judge's finding recording in his notes the following:
"Allan Martin was asked if he knew about Candy Goldsmith's new role. He answered, 'Yes. There were vacancies in the data centre in London which were advertised. Candy applied as did others. One of my managers advertised, interviewed and selected her'."
[21]It is contended that the Claimant was treated unfairly. We disagree. Findings were made by the Employment Tribunal as to how Candy Goldsmith came by that job. They are demonstrated by the note and that is conclusive: see Dexine Rubber Co Ltd v Alker [1977] ICR 434 EAT. The finding that she had been offered the position prior to the Claimant being at risk of redundancy is one which was based on evidence and is unassailable. (2) Sarah Gardner[22]Sarah Gardner had been a member of the Claimant's team and in fact became his team manager at some stage during these proceedings. To some extent the Claimant's first ground of appeal is correct in that she was then given a temporary secondment to join a new team. It is contended that she too was treated more favourably but the Tribunal's finding was that after the Claimant was made redundant her new role was made permanent. The finding is based upon evidence. There was no evidence that the Claimant was equally capable of doing her job although he said that he did some training with her. Nevertheless, at the time she was his boss. There is no basis for contending that there was less favourable treatment of the Claimant than of Sarah Gardner. (3) Secondment with Nick Keir[23]The Claimant's concern here is that he was not told about the removal of the secondment. The evidence was that there was no proper acceptance by the Claimant of the offer of secondment. Nor indeed is it entirely relevant, in our judgment, for we accept the submission made by Mr Pascall in writing to the Employment Tribunal as having equal force before us. It is not clear that the Claimant would have been involved willingly in that secondment. (4) Offer of alternative post by Jean Adel Lajri[24]The Respondent accepts that the relationship between the Claimant and Anthony Leung became poor before his absence began in 2005 but Mr Lajri offered to carry out interviews and in due course the Claimant's response to this was as recorded in the letter on page 126. The Claimant was ruling himself out of consideration for any work with the Respondent. It is not the Respondent's duty to try and persuade him, once he has expressed a lack of trust and confidence, to come back into the fold.[25]That disposes of the principal issues advanced by the Claimant but there are subsidiary ones which relate to unfair dismissal. The first concerns consultation about redundancy. The Claimant has not identified to us any failure by the Respondent to consult him. Consultation includes the presentation of information to the potentially redundant employee but there is no evidence here of anything the Respondent failed to do which it ought to have done or to disclose. Secondly, it is contended that the Claimant was not able to attend meetings and therefore was at a disadvantage. But having seen the evidence provided to the Tribunal by the occupational health department, this cannot hold water. Thirdly, it is said that there was no evidence before the Tribunal for it to form its judgment on the unfair dismissal point that the dismissal would have occurred in any event. In our judgment, the Tribunal goes to great length to explain why it was that while finding in favour of the Claimant on automatic unfair dismissal, he would obtain nothing (see: paragraphs 33, 34, and 35 of its reasons).[26]In those circumstances, the grounds which were open to the Claimant to advance before us all fail and the appeal is dismissed.