Ogedegbe v Stag Security Serrvice Ltd (Unfair Dismissal) [2012] UKEAT 0001_12_1405

EAT
Ogedegbe v Stag Security Serrvice Ltd (Unfair Dismissal)
[2012] UKEAT 0001_12_1405 · 2011-11-02
[1]This is an appeal by Mr Obhiose Benjamin Ogedegbe (“the Claimant”) against a decision of Employment Judge Prichard sitting at the London East Employment Tribunal dated 2 November 2011.[2]The Claimant had brought proceedings against Stag Security Services Limited (“the Respondent”) alleging automatic unfair dismissal contrary to section 100 of the Employment Rights Act 1996 and race discrimination. By judgment dated 6 June 2011 the Tribunal dismissed those claims; and a subsequent appeal by the Claimant has been dismissed under rule 3(7) of the Employment Appeal Tribunal Rules 1993 .[3]By letter dated 4 August 2011 the Claimant applied for a review of the judgment, seeking to adduce fresh evidence. It was this application which the Employment Judge refused, saying(1) that it was refused under rule 35(3) of the Employment Tribunal Rules of Procedure 2004 and(2) in any event, under “rule 33(1)”, it was not just and equitable to extend time for consideration of the application. The reference to rule 33(1) is, I have no doubt, a slip – the applicable rule being rule 35(1). Legal background[4]The Employment Tribunal has a power to review a judgment such as the one it made on 6 June 2011. The grounds are set out in rule 34(3). They include:
“34(3) Subject to paragraph (4), decisions may be reviewed on the following grounds only – (d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of our foreseen at that time; or (e) the interests of justice require such a review.”
[5]The procedure for dealing with such an application, so far as it is material to this appeal, is set out in rule 35(1) and (3). “35 Preliminary consideration of application for review (1) An application under rule 34 to have a decision reviewed must be made to the Employment Tribunal Office within 14 days of the date on which the decision was sent to the parties. The 14 day time limit may be extended by an Employment Judge if he considers that it is just and equitable to do so. (3) The application to have a decision reviewed shall be considered (without the need to hold a hearing) by the Employment Judge of the tribunal which made the decision or, if this is not practicable, by – (a) a Regional Employment Judge or the Vice President; (b) any chairman nominated by a Regional Employment Judge or the Vice President; or (c) the President; and that person shall refuse the application if he considers that there are no grounds for the decision to be reviewed under rule 34(3) or there is no reasonable prospect of the decision being varied or revoked.”[6]As a general rule an application to adduce fresh evidence, if it is to be successful, will need to satisfy the following criteria: firstly, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the hearing; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case; thirdly, the evidence must be apparently credible, though it need not be incontrovertible. These are the tests laid down in Ladd v Marshall [1954] 1 WLR 1489 . The formulation in rule 34(3)(d) represents in effect the first of these criteria; but all are relevant to the question whether there should be a review.[7]The Appeal Tribunal hears appeals only on points of law: see section 21(1) of the Employment Tribunals Act 1996 . All questions of fact and evaluation are for the Tribunal; and if it applies the law correctly there is no right of appeal. The Appeal Tribunal is concerned to see whether the Tribunal has applied correct legal principles and reached findings and conclusions which are supportable, that is to say not perverse, if the correct legal principles are applied. A finding or conclusion is perverse if and only if it is one which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Factual background[8]The Respondent is a large security company employing some 480 people working over many sites. Its main control room is in Harrogate. There were two controllers at the relevant time – Mr Smith and Mr Hill. There was a London manager, Mr Hughes.[9]The Claimant was employed by the Respondent with effect from 5 May 2009. By September 2009 he was employed as a mobile patrol driver at the Costain Construction site at the Olympic development in East London. He worked 12 hour shifts, generally on nights taking over from Mr Mohammed Ahmed. They drove a Fiat van which had wing mirrors but no internal rear view mirror.[10]There is no doubt that, over the night shift from 6pm on Thursday 10 September to 6am on Friday 11 September, a dispute arose involving the Fiat van.[11]On Monday 14 September, just 3 days later, the Claimant wrote a letter to the Employment Tribunal under the title “£50,000 compensation claim”. He set out his complaint in some detail. He said that on Monday 7 September Mr Ahmed had telephoned him to tell him that the side mirror of the van had been damaged and that he had reported the matter to the control room. The Claimant said:
“When I went to work on Thursday 10 th September 2009 at 5:35pm to start my shift at 5;45pm, I discovered that the mirror on the driver’s side of the patrol van had been destroyed and had come off the patrol van. Photos of the patrol van showing the missing side mirror are attached. I reported the matter to the control room of Stag Security Services Ltd and told them that it was unsafe and dangerous for me to drive the patrol van without the mirror being repaired or replaced because I could get injured, killed, kill some one else or cause more damage to the patrol van through accident. But one of the control room officers, Jason or Mills, told me that I must drive the patrol van without the mirror being repaired or replaced and when I refused, he told me to go back home without working for that night and I went back to my home. When I got back home on the same day, the operations manager, Mr Eddy Hughes phoned me and told me to go back to work and drive the patrol van without the side mirror being repaired or replaced and I told him that I couldn’t for health and safety reasons. I told him I was prepared to drive the patrol van after the side mirror had been replaced or repaired. On Friday the 11 th September 2009, Mr Mike Buck, from the control room phone me and told me to go to work and drive the patrol van without the side mirror being repaired or replaced and I told him that I couldn’t for health and safety reasons. Mr Mike Buck then told me that they intended to repair or replace the side mirror in the year 2012 and that I would be sacked and be offered no more work again if I did not drive the damaged patrol van. I told him I was not going to risk my life and drive the damaged patrol van and he told me that I will not work for the company again and that he will remove my name from the rota list which he did. The company has refused to offer me any work since then but instead has employed another person to do my shift after the side mirror was replaced. Employers who put the lives of their employees at risk should be punished and fined for breaking the law relating to the Health and Safety Act of 1974.”
[12]The reference to Mr Burke was a mistake. By the time of the Tribunal hearing it was accepted that the person who spoke to him from the control room was Mr Smith.[13]After giving this account the Claimant set out his claim for £50,000 compensation. He said he suffered from “depression, trauma, nightmares, loss of earnings and sleepless nights”; that the Respondent would not have treated a white man similarly; and that it was wrong to stop him working because he adhered to health and safety rules.[14]Within a month the Claimant lodged a formal claim with the Employment Tribunal. His claim form was consistent with (though less detailed than) his earlier letter.[15]On 2 November 2009 the Respondent lodged its response. It did not accept that the Claimant was dismissed; it said that he refused to continue working. Printed in the “additional space for notes” was an account headed by the words “Statement from Edward Hughes 12/09/2009”. This reads as follows:
“I Edward Hughes was informed during the morning of 10/09/2009 that the wing mirror was damaged so purchased a replacement on the 10/09/2009 so I bought a replacement glass mirror and drove to Tl site were 1 asked them to park the van. On my arrival which was about 6pm I then found out it was not the glass that was broke but the plastic housing, the glass was intact and the mirror was just hanging with the housing unit loose I was unable to fix so contacted Stag Control to ascertain if there was any fiat garages in the area open late to enable the vehicle to be fixed. I called the driver who was Benjamin and asked him were he was he told me he was home, I said but you are Rota to work so please came back to TI, he said immediately he is not driving the vehicle, I said ok but come back to T1 so we can have a talk. He then informed me he had been there and was now home so had no intention of going back to TI, I informed him he is to work his shift even if he does not drive he should be on site as we never said to him to go home, he then asked what did I intend to do with the mobile vehicle, again I informed him that he should come to Tl so we can have a proper discussion as I did have a plan. He said is the mirror fixed, I said no I will have to order a new housing on Monday - he said I am not coming I have been there already, I said please attend Tl, you have to do a mobile patrol and I have a van that I normally use and you can use that until the mirror on the other vehicle is fixed and I will drive the fiat. Again he refused and said he did not want to do the mobile and again insisted on Chatham, or the job as a Guard support Manager. Benjamin was interviewed a week before for the job of Guard support manager. As for Chatham he heard we were paying £8.50ph and had already called me for that job a few days before to which I replied that the pay rate he was given is not true and someone was winding him up. But he insisted he had good info and that was the pay rate and he wanted that job. I informed him it was not the correct rate and the site was fully manned, he then asked who I had appointed as the new Guard support Manager, I said no one as it was now on hold until further notice, I also said if he was a guard support manager his attitude was not good and what would he do if he had to face this situation with the broken mirror, he said he would drive the van, so I asked so what was the difference if he had a title as guard support manager or just a guard he said the difference is in the money he would have a lot more as a GSM, I said anyway I don’t agree and that’s not the attitude we want from our managers, came back to Tl and take van, he said no he may attend tomorrow, he will call control and let them know his discussion tomorrow. I told him that was unacceptable as this is his shift, he then asked again who got the GSM position, again I informed him that no one got the position he said the other interviews were white and I was discriminating on him, I told him don’t talk rubbish, as I only have one white GSM and the rest of my GSM are Black and he new that. He said he is not doing the mobile patrol any more, I told him I don’t have any more positions available he then said well consider this my resignation.”
[16]In this way the factual case for both parties was set out at an early stage in the proceedings. The Claimant was saying he was dismissed on health and safety grounds; the Respondent was saying he resigned. The Tribunal hearing and reasons[17]During the hearing the Tribunal took evidence from the Claimant and from a number of witnesses for the Respondent, including Mr Ahmed (described by the Tribunal as Asian) and Mr Smith.[18]The Tribunal did not, however, hear from Mr Hughes, who had left the Respondent by this time. The Respondent did, however, adduce what appeared to be a copy of a signed witness statement from Mr Hughes which accorded with the version in the ET3. It also produced what appeared to be a copy of an email from Mr Hughes dated 30 October; this email is for the most part in the same terms as the statement, but there are some differences and what would seem to be at least one deliberate change.[19]The copy signed witness statement from Mr Hughes was dated 12 September, very shortly after the events in question. Oddly, it bears the case number of the tribunal proceedings, even though they were not commenced until some time later.[20]The Tribunal was critical of the Claimant’s claim. It said that it had “all the appearance of the claimant contriving a health and safety claim and a race discrimination claim in support of an incredibly large claim for compensation.”[21]In support of this the Tribunal said:
“35. It is nonsensical that in a letter to the tribunal written only three or four days after these incidents the claimant can describe a history of mental disturbance and ill health and nightmares, as a result of something which had only just occurred at his employment. There is a medical report which he has put before the Tribunal which actually contradicts his claim for personal injury compensation from the respondent.”
[22]The Claimant had lodged a medical report dated 25 March 2010. This said:
“He was seen in the surgery on 15 March 2010 complaining of low mood, poor appetite and difficulty sleeping. He describes experiencing these symptoms since the start of the recession when his mortgage business started to have difficulties. The situation has failed to improve and is now causing a lot of financial difficulties. He feels that his symptoms are getting worse as a result and he is now finding it difficult to cope. On examination he showed significant psychomotor retardation and was low in his mood. His presentation is consistent with reactive depression. He was started on anti-depressants and to be reviewed in two weeks.”
[23]The Tribunal commented that this report “signally fails to mention” the incident involving the Respondent in any way, even though it was the subject of what the Tribunal described as “this extraordinarily large tribunal claim”.[24]In its findings of fact the Tribunal placed significant reliance on the statement of Mr Hughes; his statement was the only evidence, apart from that of the Claimant, to a key conversation which took place between them. The Tribunal’s reliance on his statement is apparent, for example, from the last sentence of paragraph 14 of its reasons; from paragraph 15; from paragraph 17; from paragraph 20; and from paragraphs 23 and 24. In particular it accepted that he resigned on the night of 10 September “because he stated so to Mr Hughes”; and that the Respondent did not insist on his driving the vehicle.[25]It is right to observe that the Tribunal did not always reject the Claimant’s evidence: in particular, it preferred his evidence to that of Mr Ahmed concerning the date when the wing mirror of the Fiat van was damaged: see paragraph 10 of its reasons.[26]Its finding that he resigned even though the Respondent did not insist that he drove the vehicle was sufficient to dispose of the unfair dismissal claim. The Tribunal turned to consider the discrimination claim. It found that the Respondent had a high proportion of black and African, Asian and ethnic minority staff. It considered each of the Claimant’s complaints (which related to the failure to recruit him for a particular job as well as aspects of the incident in question) and rejected them. The application for review[27]Following the Tribunal’s judgment the Claimant promptly appealed, lodging his Notice on 10 June. The Notice of Appeal included grounds relating to fresh evidence. In accordance with its usual practice the Appeal Tribunal by order dated 28 July stayed consideration of the appeal to give the Claimant an opportunity to apply for a review on those grounds. The Claimant made his application by letter dated 4 August.[28]It is convenient to take the categories of fresh evidence upon which the Claimant relied separately for the purposes of considering the Claimant’s appeal. GP Medical report[29]The Claimant enclosed a further report from his GP dated 2 August 2011. This report, unlike the report dated 25 March 2010, mentions that his symptoms were “exacerbated by his dismissal from his security job at Stag Security Services Limited”. The Claimant submits that this is fresh evidence which would have made a significant difference to the outcome of his claim. He specifically told me, in the course of submissions, that he did not tell the doctor in March 2010 that his condition was made worse by his dismissal.[30]In my judgment the Employment Judge was plainly right to reject this category of further evidence. The point which the Tribunal drew from the report in March 2010 was that when the doctor saw the Claimant he did not attribute his symptoms to what had happened with the Respondent. This point is not undermined by a further report 15 months later. The point which the Tribunal drew from the report was, on the submission of the Claimant to me today, in fact correct. But if it had not been, and the report dated 25 March 2010 had required correction, the Claimant had ample time to produce an accurate report prior to the hearing, which did not start until December 2010. Mr Cole[31]The Claimant enclosed a witness statement from Mr Abu Cole dated 3 August 2011. The Claimant submits that the witness statement of Mr Cole would have an important influence on the case because(1) he confirmed the date of the damaged mirror and(2) he confirmed that Mr Mohamed Ahmed is black African. He also says that, contrary to the Employment Judge’s belief, Mr Cole was not his friend; he was an employee of the Respondent at the relevant time.[32]The Employment

Judge said the following:

“7. In the same category, having no influence on the outcome of the case, is the new witness statement from Mr Abu Cole. In any event it is also hard to see why that statement could not have been obtained before. 9. The respondent confirmed that Mr Cole was a friend of the claimant further emphasising the possibility of having got a statement from him before the Hearing, rather than the extraordinary procedure of playing the recording of a telephone message from him from the night before on speaker phone from the claimant’s mobile phone at the Hearing. The voicemail was full of background noise and barely comprehensible, in any event. The fact Mr Cole attests as to the date on which the mirror was broken is not, as explained in the judgment, the material issue in the case. It was the claimant’s conduct when he effectively resigned, as we find.”
[33]In my judgment the Employment Judge was plainly entitled to reach the conclusions he reached. On the question whether the Fiat van had been damaged earlier in the week Mr Cole’s evidence was supportive of the Claimant’s case – but the Claimant’s evidence in this respect had been preferred to that of Mr Ahmed in any event (paragraph 10 of the earlier reasons).[34]The Claimant did not emphasise the evidence about Mr Ahmed being a black African in his application for a review, and the Employment Judge did not deal with it. In truth, however, this would have made no difference to the outcome of the case. Indeed, Mr Coles’ evidence was inimical to the Claimant’s case that the Respondent did not repair the car quickly because it was being driven by black drivers; Mr Coles’ evidence is that substantial efforts were made to get the van repaired. There was no basis for finding that the Respondent’s approach to the question whether the van should be driven without a wing mirror had anything to do with race.[35]Moreover it was for the Claimant to satisfy the Employment Judge that the evidence could not have been obtained with reasonable diligence for use at the hearing. If the Claimant thought that Mr Cole’s evidence would favour him, it was open to him to contact Mr Cole and obtain a statement from him; or apply for a witness order in respect of him. Mr Hughes[36]The Claimant’s case is that when he received the Tribunal’s judgment he contacted Mr Hughes; Mr Hughes confirmed that, contrary to the Respondent’s contention, he had not signed the witness statement which apparently bore his signature; and emailed to the same effect. There is indeed in my bundle a paper copy of a chain of emails in which Mr Hughes (whose email address has been confirmed by the Respondent) appears to say that he has not signed any witness statement and that any email which he wrote was much earlier than 30 October.[37]The Employment Judge, on receiving the application for a review, wisely wrote to the Respondent. He asked for “any factual observations from the Respondent as to Eddie Hughes’ statement, its authorship, when it was signed and a verification of Mr Hughes’ email address”. Unfortunately the Respondent’s reply was less than helpful.[38]While confirming Mr Hughes’ email address, the Respondent provided very limited information as to how the statement came to be written and signed. It stated simply that: – “The statement by Eddie Hughes dated 29/9/09 was signed by Eddie Hughes. Stuart Watson was present when this statement was signed. Cross examination has already taken place on this issue and was resolved in favour of the Respondent.”[39]The statement before the Tribunal was not dated 29 September, as I confirmed with both parties during today’s hearing: it was dated 12 September. I asked the Claimant how the matter arose at the Tribunal. He said that he has spoken to Mr Hughes on the telephone by the time of the hearing in December. He made the point that Mr Hughes was saying he had not provided a statement and (he told me) gave the telephone number of Mr Hughes to the Tribunal. He says the Employment Judge noted that the statement could hardly have been correctly dated 12 September. The Employment Judge asked for an explanation, but this was never provided. He said that neither side took the matter any further; but when the judgment was given he telephoned Mr Murphy, the telephone call leading to the chain of emails which the Employment Judge had before him. In essence the Claimant was saying that he did not appreciate the importance of this matter until the judgment was given; and that prior to judgment it had been left that it was for the Respondent to establish the validity of the documents which were put forward from Mr Hughes.[40]The Respondent’s response also said that the chain of copy emails “appears to have been cut and pasted” without drawing any conclusion from that assertion. The Claimant, in a letter in reply, stated that the emails were genuine.[41]The Employment Judge’s reasoning on this part of the application is as follows: – “10. Mr Hughes' written evidence, by contrast, did have some influence at the Hearing, at least as valuable corroboration. If it were wholly false that might have affected the outcome. Of the Hughes chain of emails the respondent says they ‘appear to be cut and pasted’.11. The Judge has examined this hard copy print out of an alleged email exchange. It strikes the Judge forcibly that it is not genuine. It is not like any other email chain. There is no record in the chain of emails being received from the email address - bandayho@aol.com. There are only records of email transmissions from the claimant to that address. It is unsure whether that address is still current for Mr Hughes and the respondent has not confirmed this one way or the other, which is singularly unhelpful. Obviously it was not appropriate for the Judge himself to seek evidence or to try to contact Mr Hughes.12. The remarks attributed to Mr Hughes have all the hallmarks of having been drafted by the claimant himself. Examining the wording and style of the passages attributed to Mr Hughes, they appear to have been written by the claimant. The entire chain appears to be bogus and a forgery. Far from being ‘not necessarily incontrovertible’ this chain of email correspondence is forged. It is disappointing that the respondent has not done more investigation into the matter having been invited to do so by the Employment Judge. It is highly doubtful if the claimant would be able to forward a genuine email chain of correspondence between himself and Mr Eddie Hughes to any third party who could verify the genuineness of these emails by clicking on ‘Properties’, and the email addresses within Outlook. As stated, it seems to be a forgery, and not very sophisticated.13. In all the circumstances, it could hardly be just and equitable to extend time for this review application in any event. Nonetheless as the EAT has expressly stayed their proceedings to allow the claimant to apply for a review out of time, it is only right that the review should be given a preliminary consideration on its merits as well, as I have done.”[42]The Claimant says that the emails which he sent to the Tribunal were indeed genuine; this is how they appear on the web site where he keeps his email; and it is how they printed out as a chain. He says that the three tests are satisfied in respect of these emails and that the Employment Judge has not properly addressed them because he has reached a conclusion, to the effect that the emails are forged, which is unwarranted and to which he had no opportunity to respond.[43]It is plain that the Employment Judge’s findings in paragraphs 10-13 are based upon his conclusion that the copy chain of emails which the Claimant produced was forged.[44]On behalf of the Respondent Mr Steven White submits that the Employment Judge was entitled to reach this conclusion. He submits that it was a robust finding of fact which, building on the conclusions of the Tribunal as to the Claimant’s credibility, was within his province. He drew my attention to familiar authorities on the question of perversity: British Telecommunications v Sheridan [1990] IRLR 27 and Yeboah v Crofton [2002] IRLR 634 .[45]I have some sympathy for the Employment Judge, who had received no adequate reply from the Respondent and felt constrained to make his preliminary assessment on the basis of the limited material before him. However, in my judgment the Employment Judge was not entitled, upon that material, to come to the conclusion that the chain of emails was forged. His own view of the way in which chains of emails ought to appear on a computer was an insufficient basis for such a serious conclusion; and an allegation of this seriousness ought to have been put specifically to the Claimant before it was upheld. The Claimant would have been able to point to a specific email from Mr Hughes which, unlike the chain, did have his email address its head.[46]The questions for an Employment Judge conducting a preliminary assessment under rule 35(3) are firstly whether there are grounds for the decision to be reviewed (ie whether the application potentially comes within rule 35(3)); and then whether there is any reasonable prospect of the decision being varied or revoked; and he must, in a case such as this, also consider whether to extend time for the application. To my mind the Employment Judge was diverted from these questions by deciding first, and impermissibly, that the chain of emails was forged. In my judgment the whole of the Employment Judge’s reasoning on this part of the case is vitiated by his conclusion that the chain of emails was forged.[47]Mr White submits, in the alternative, that on any view the three tests which the Claimant was required to meet were not established by him in this case. As to (1), the Claimant knew at the time of the December hearing that Mr Hughes was saying the statement was not his – it was for him to adduce that evidence before the conclusion of the hearing. As to (2), it would not have had an important influence on the outcome of the case, since Mr Hughes’ evidence was only corroborative. He also submitted that in the absence of a witness statement from Mr Hughes it was impossible to say whether his evidence would have an important influence on the outcome of the case, or would be credible.[48]At this point it is important to bear in mind the limited role of the Appeal Tribunal, which is to correct errors of law. The Appeal Tribunal is entitled to substitute its own conclusions on the questions posed by rules 35(1) and (3) only if, once the correct legal approach is applied, the answer is plain.[49]As to the first requirement, it will clearly be an important factor for the Employment Judge, or upon review the Employment Tribunal, to take into account that the Claimant knew Mr Hughes was saying the statement was not his. But I do not think it is an end of the matter in itself. Much may depend on whether, as the Claimant says, the matter was left on the basis that the Respondent would justify the statement – the dating of which is, on any basis, odd.[50]In this case also rule 34(3)(e) may be in play. There is a strong public interest in ensuring that tribunals are decided on the basis of true witness statements, properly signed by the witnesses: rule 34(3)(e). A tribunal which finds that evidence of real importance from a witness has been tendered in the form of a signed witness statement when the statement was not in fact signed by the witness might consider it just and equitable to review the matter carefully to see whether its decision should stand.[51]As to the second requirement, although the Employment Judge stated that the evidence of Mr Hughes was “corroborative”, it is difficult to read the reasons of the Tribunal in this way. On the question of resignation the evidence of Mr Hughes appears to be more than merely corroborative.[52]I turn to the argument that the Claimant should have provided a witness statement from Mr Hughes. Again I do not think this is a decisive point on its own. If the witness statement provided by Mr Hughes and the email dated 30 October were not really his documents then the Tribunal had no evidence from him upon which to base conclusions. If the Claimant had been represented, he would have been well advised to check what the evidence of Mr Hughes would be on the substantive issues; but at this stage I do not think the absence of a statement is conclusive.[53]In the circumstances, the decision dated 2 November 2011 will be set aside. The matter will be remitted to the Employment Tribunal so that the application for a review can be considered afresh. I will give directions so that some progress can be made, and so that the Employment Judge who considers the matter will have more material available (as the Employment Judge in this case had hoped he would have). Given the strength of the adverse finding made by the Employment Judge, the matter will be remitted for consideration by a Regional Employment Judge in accordance with rule 35(3).