Appeal No.	 EAT/1135/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 January 2003

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR C EDWARDS
MR B V FITZGERALD MBE

A ADEBOWALE	APPELLANT

PENINSULA BUSINESS SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 5/03/2003

	APPEARANCES

For the Appellant	The Appellant in person	

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1	This is the preliminary hearing of an appeal by Mr Adebowale against the Decision of the Employment Tribunal sitting in Manchester, over a period of seven days in July 2002, when his application against his previous employers, Peninsula Business Services Ltd, for unfair constructive dismissal and race discrimination was dismissed.  He had been permitted, I think out of time, to amend proceedings to bring a claim of breach of contract, and in that regard he was successful, to the tune of £1,285.41.

2	The crucial findings of fact by the Tribunal are set out in paragraphs 25 - 30 of the Decision, and they revolve around what occurred at a meeting in December 2000, and subsequent thereto.  The findings of the Tribunal were, contrary to the submissions and evidence of the Appellant, that the meeting of 21 December did not relate to, and did not include discussion of, the matters which had already been raised by the Respondents with relation to the Appellant’s conduct, but was limited to a discussion of the consequence of the fact that he had, a few days before, been stopped by police on the exit of the M1, which had resulted in the police concluding that he had been driving without a valid driving licence, his international driving licence having expired, as he had been resident in the United Kingdom for more than twelve months.  

3	The finding by the Employment Tribunal was that this created a serious problem for the Applicant and the Respondents, so far as the Applicant was carrying out his duties was concerned, for reasons which they give in paragraph 23 of their Decision; and it was this matter which, on the Tribunal’s findings, constituted the subject matter of the meeting on 21 December 2000.  At that meeting, the Appellant said that an ultimatum was given to him in relation to his driving; the Tribunal concluded that there was no such ultimatum given, but that the outcome was that Mr West told him that if he did not get a UK licence within a reasonably short period, then he would probably not be able to continue in employment, and a period of two months or thereabouts was mentioned.  

4	The Tribunal concluded in terms as follows:

(1)  that this was not a disciplinary meeting;
(2) that it did not discuss the complaints against the Appellant;
(3) that the stance of Mr West was not unreasonable;
(4) that the meeting concluded with the Applicant being told to make urgent enquiries regarding how soon a driving test could be arranged, and various other matters, and the Tribunal considered that was a perfectly proper course of action for Mr West to adopt;  
(5) that the resignation by the Appellant thereafter was unjustified, and certainly did not amount to constructive dismissal, because there was no breach of contract, and certainly no repudiatory breach, by the employers, and, in paragraph 30, the Tribunal was unanimously satisfied that the actions by management, and Mr West in particular, were perfectly justified and did not amount to conduct justifying the Applicant terminating his employment.  

5	Further, in paragraph 31, the Tribunal said that, having considered all the evidence, they did not consider there was any justification from the primary facts as found by it for the Tribunal to have inferred that:
“ any of the actions on the part of the Respondents, its management or other members of staff, amounted to discrimination against the Appellant on the ground of his race or nationality.”

6	The grounds of challenge by the Appellant who, of course, having been employed by the Respondent Company has some knowledge of Employment Tribunal procedures, have been very diverse.  They were contained in a lengthy Notice of Appeal, which has not been supplemented, as it plainly should have been, by any Skeleton Argument, but he has argued the matter before us today courteously and fully.  

7	The conclusion by the Tribunal that they preferred the evidence of Mr West and Mr Sutcliffe to the Appellant, is challenged by the Appellant effectively on perversity grounds.  He described his case as based on Wednesbury principles, but that is not relevant in the Employment Tribunals, only in the Administrative Court; and he must satisfy this Tribunal on appeal that there is at least an arguable case of perversity, namely something rather higher than a case that the Employment Tribunal came to a conclusion which no reasonable Tribunal could have done.  We are entirely satisfied that he does not begin to reach that high hurdle.  He has asked us to order that in respect of three witnesses there be Notes of Evidence ordered from the Chairman.  It is, of course, well established that Notes of Evidence are not intended to enable a fishing expedition to see whether a point of law might arise, but only to be in support of a ground of appeal which is otherwise shown to be arguable.  

8	Apart from that very general case, he makes effectively four points, and I shall deal with them not in the order with which he dealt with them.  The first can be dealt with very shortly.  In the course of reciting the employment history, and the background both to the events and to the evidence before them, the Chairman referred, in paragraph 20 of the Decision, to the fact that the Tribunal had been provided with evidence of three cases before Employment Tribunals where the appellant had been the subject of severe criticism by the Chairman.  Those were matters which had featured in the employment history between the parties although, as we have indicated, in the event the Tribunal was satisfied that the crucial meeting on 21 December 2000 did not relate to an analysis of his previous conduct or misconduct.  

9	In these circumstances, this therefore did not relate to a central aspect of the case, so far as the eventual Decision of the Tribunal was concerned, but the Appellant is clearly disturbed that there should be a reference in this Decision to the severe criticism of him, apparently made by three other Chairmen, at least one of which resulted, according to paragraph 20 of the Decision, in an order that the Respondents should pay costs because of his alleged failures.  He has addressed us today on the basis of an assertion that the Tribunal should not have recorded that without also recording his denials, or indeed making findings, in relation to such denials, that that criticism had been unjustified, and he referred to Article 8 the European Convention on Human Rights.  Quite apart from the fact that Article 8 is not a jurisdiction which is relevant to ours, save obviously by analogy or by cross-reference, because we are sitting in relation to an appeal with respect to substantive findings, it appears to us that he has based this ground on a misconception.  The Tribunal was simply referring to the fact that there had been those criticisms.  It would have been wholly inapt to have had a trial within a trial, in order to see whether those criticisms were justified, quite apart from the fact that in fact the Decision of this Tribunal did not rest in any way upon whether those criticisms were justified or not, but, as we have indicated, rested solely on a finding that he resigned after the meeting of 21 December 2000, which was a meeting which did not relate to an analysis of his alleged misconduct, whether including those occasions or not.  

10	The second matter that he raised related to the case, as he submits, that, notwithstanding the finding that the meeting of 21 December 2000 was not a disciplinary hearing, nevertheless, the lawyers should have had regard to the Code of Practice, and failed to do so, and that the Tribunal ought to have taken that into account.  He referred us to a dictum of Morison P in Lock -v- Cardiff Railway Company Limited [1998] IRLR 358 at paragraph 12, as to the fact that the Industrial Tribunals should always have the Code of Practice to hand as a guide for themselves as to what is good, sound industrial relations.  

11	Once again, it appears to us that the case that is put forward by the Appellant is misconceived.  The Tribunal found that this was not a disciplinary hearing, but they did more than that; they also found that there was no discussion of his alleged wrongdoing at that meeting, that the meeting related only to what should be done in order to resolve the problem that the Appellant was now not going to be able to drive, having been stopped by the police on the basis that he did not have a valid licence, and how soon that problem should be resolved, and that nothing at the meeting could justify the conclusion by the Appellant that he felt it necessary to resign.  Whether or not there might have been a mention made of the Code of Practice (and we do not even know if it was referred to by the Appellant himself below, but assume for these purposes that it was) it appears to us to be a completely collateral point, and that it does not arise at all in relation to the consideration of the relevant issues before this Tribunal.  

12	The third and last point that was raised by the Appellant, however, falls into a different category.  He points out that there was reference made before the Employment Tribunal to a Mr  McGlashan, and a Mrs Rachel Evans.  They did feature in the Notice of Appearance served by the Respondents which was clearly before the Employment Tribunal, as follows: in 3.21, there was a reference to the fact that the Appellant, when appointed, asserted that he had a full driving licence.  In 3.22, the Respondents’ case was set out in relation to Mr Ian McGlashan; who:
“ used his mother’s home in London as a base and …..sent ….bundles, in advance, either to that address or to the Employment Tribunal.  He uses public transport in London and the South East, which is generally good, in order to get to hearings and carry out the client visits.  By carefully tailoring his caseload and avoiding giving him cases away from the South East whenever possible …….. his work had been manageable, although there was still a requirement for him to pass his driving test.  
3.3.3  Mr McGlashan’s appointment as Trainee Advocate was at a time when it was known that he had no Driving Licence.  There then subsequently became a requirement for him to taken on a caseload before he had an opportunity to pass his Driving Test and therefore the decision was taken to tailor the caseload to him.”

It was further stated that:
” Another Trainee Advocate, Mrs Rachel Evans, was in a similar position and although she built up a caseload, it became impracticable for her to continue to carry a substantial caseload and also be dependent upon public transport.  Mrs Evans had left the company as without the facility to drive, she found it (together with her personal circumstances), impracticable to carry out the job.”

13	The Appellant has told us that there was in fact a statement by Mr McGlashan which was put in in writing at the Tribunal, and there is reference to that statement in the Decision at paragraph 2.  He says that that statement confirmed that still, as at October 2001, which of course was ten months after his own resignation, Mr McGlashan had no licence.  He tells us that in the course of the hearing, he put questions to the Respondents on the basis that there was differential treatment as between him and the way that the Respondents treated Mr McGlashan and/or Mrs Evans, although he accepted in argument before us that it would not appear that the position of Mrs Evans, if indeed she left the company, would have been helpful to him.  He tells us that Mrs Evans was white and that Mr McGlashan, although black, had a different racial origin to him, being an English Nigerian, and Mr McGlashan being an Englishman of West Indian origin.  He asserts that he made a case that the treatment of Mr McGlashan was different from him, and consequently, discriminatory on grounds of race.  

14	The Tribunal’s Decision, in paragraph 16, listed the matters which it was asserting that the Appellant had put forward, from which he invited them to draw inferences of discrimination.  All three of those relate to matters which have nothing whatever to do with driving licences, and do not relate to Mr McGlashan.  There is the general finding, to which we have referred, in paragraph 31, that the Tribunal did not consider that there was any justification to infer that any of the actions on the part of the Respondents amounted to discrimination against the Appellant on the grounds of his race or nationality, but there is no specific express finding recorded in the Decision in relation to Mr McGlashan or, insofar as relevant, Mrs Evans.  

15	The Appellant submits that, at any rate on the basis of how he tells us the case was run below before the Employment Tribunal, there is thus an absence of a finding of primary fact, which might have led to a conclusion of discrimination in his favour.  At the moment, certainly, this is our conclusion; we can see no basis on which this would have any relevance to the issue of constructive dismissal, or unfair constructive dismissal, but it appears possible that this would have a relevance to the issue of race discrimination.

16	In those circumstances, the Appellant asks us to grant him the right to pursue this as a full appeal.  We are very uncomfortable about this, for the following reasons.

(1)  This has been put forward orally today to us by the Appellant without an earlier Skeleton Argument.
(2)  It is certainly right that there was reference to Mr McGlashan and Ms Parry (being Mrs Evans), in paragraph 6(e) of his Notice of Appeal, but for reasons that we have indicated, all the other grounds appear to us to be wholly unarguable, and this is the only matter that now remains alive before us today, and consequently, specific attention has been concentrated upon it;  
(3)  The Respondents have not appeared, as they would in any event not be entitled to do on the ordinary ex-parte preliminary hearing, but specifically they have been given no real notice of what effectively is, in our judgment, the only ground which could be pursued, if at all, on this appeal.
(4)  The ground may be entirely misconceived, because we are only acting on the basis of what we have been told.  

17	Either there may have been no running of any point in relation to Mr McGlashan or Mrs Evans below, or alternatively, it may have been so dealt with that in fact the way that the Employment Tribunal has given its Decision is entirely sufficient.  Subject to all that, there does appear, at any rate at the moment to us, to be an arguable case that there has been a failure to make a finding in relation to a material primary fact, and what we are minded to do is to remit this appeal, while dismissing all the other grounds, back to the Employment Tribunal in relation to ground 6(e) of the Notice of Appeal.  

18	There is the recent decision in the Court of Appeal, delivered on 23 April 2002, of Tran -v- Greenwich Vietnam Community [2002] IRLR 738, in which the Court of Appeal, by a majority, concluded that remission was not a course which was ordinarily open to the Employment Tribunal, if it was not for the purpose of disposing of the appeal.  It appears to us clear that, whatever may have been the case on the facts in that case, what we are doing is for the purpose of disposing of the appeal, because, but for the point that has been raised by the Appellant today before us, which might well in fact for the reasons we have given be misconceived, we would have determined the appeal against him today.  But, in any event, the subsequent decision in the Court of Appeal, delivered by Lord Phillips M.R. on behalf of the Court of Appeal in English -v- Emery Reimbold [2002] 1 WLR 2409, delivered seven days later and not considered in Tran, just as Tran was not considered in English -v- Emery Reimbold, expressly encouraged Courts considering whether an appeal should proceed on grounds of alleged failure to make findings, or alleged absence of reasons, to consider referring the case back to the lower Court for clarification, and we propose to follow English -v Emery Reimbold accordingly.  That has already been done in a recent decision of Judge McMullen QC in Prebon Marshall Yamane (UK) Ltd -v- Rose (unreported 3 December 2002).

19	In those circumstances, we shall refer ground 6(e) back to the Employment Tribunal for them to indicate whether, either expressly or impliedly, they made findings, and if so what, as to Mr McGlashan and/or Mrs Evans, and as to whether the evidence in relation to them reflected on any alleged discrimination by the Respondents towards the Appellant, and we will, in those circumstances, await the outcome of the Employment Tribunal’s response before restoring this preliminary hearing, which is adjourned for that purpose.  

20	We give liberty to the Respondents to apply on notice to discharge or vary this Order; that is an opportunity we give, although we do not encourage them to take it up because it may, in the end, only lead to delays or costs; but in any event, we further give the Respondents liberty, as indeed we give the Appellant liberty, to make submissions in writing to the Employment Tribunal, if they so wish, for the purpose of facilitating the decision on this point by the Employment Tribunal.  Clearly any such submissions by either the Respondents or the Appellant should be done speedily, and we impose a deadline of fourteen days from this sealed Order for either or both of them to make any such further submissions to the Employment Tribunal.

21	In those circumstances, we dismiss all grounds, save 6(e), and so far as 6(e) is concerned, we adjourn the preliminary hearing, pending referral to the Employment Tribunal and its response, to which we have referred.