Appeal No.	EAT/1407/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR D J HODGKINS CB
MR R SANDERSON OBE

MR H OKPALA	APPELLANT

LONDON BOROUGH OF LAMBETH & STOCKWELL PARK SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	MR JUSTICE MAURICE KAY:   This is the preliminary hearing of an appeal by Mr Okpala from a decision of the Industrial Tribunal at London (South) following a four day hearing which took place in June and September 1996. 

	Mr Okpala had been a teacher at Stockwell Park School and following his ceasing to be a teacher there made an application to the Industrial Tribunal claiming damages for breach of contract and remedies for unfair dismissal. To that he subsequently added a claim of racial discrimination.

	The Industrial Tribunal found a breach of contract but one which did not attract damages and found against Mr Okpala on the issues of unfair dismissal and racial discrimination. The Industrial Tribunal also made an order for costs against him in the sum of £100. He now seeks to appeal to this appeal tribunal.

	By his Notice of Appeal he sought to raise issues in relation to all those matters, but he made it clear at the outset of his submissions this morning, that he was abandoning his appeals against the decisions on racial discrimination and costs. We have therefore had to consider his submissions in relation to breach of contract and unfair dismissal. In addition to his criticisms of the findings of the Industrial Tribunal on those issues, he makes a further submission which is that the decision of the Industrial Tribunal ought to be set aside on the ground that it was biased against him.

	We do not propose to set out the factual background to this dispute in great detail, suffice it to day that Mr Okpala is a highly qualified man in the fields of engineering and information technology, and more recently with a teaching certificate in mathematics. In 1993 he applied for a post at Stockwell Park School. He was interviewed and he was subsequently offered a job. He had hoped to be offered a job of permanence. However, the interviewing panel considered that he did not have enough teaching experience for that, or indeed, for a lengthy period of employment, and so they offered him a temporary contract for two terms to teach information technology and mathematics. What ever had been Mr Okpala’s original hopes or expectations, it is clear that the offer which was made to him in July 1993 was of a temporary contract for two terms; that he understood that; and that he accepted employment on that basis. The matter did not end there because the letter by which he was offered the job included a promise on the part of the school that the job for which he had applied would be re-advertised during the Spring Term of 1994 and that he would be able to apply for it at that stage. The Industrial Tribunal found that it was a term of the contract between Mr Okpala and the school that the job would be so re-advertised and that he would be able to apply for it at that stage.

	He started to work at the school in the Autumn Term of 1993 and the first temporary contract came to an end at Easter 1994. In fact what happened was that it was renewed on a similar basis and continued so to be until the Summer 1995. The Industrial Tribunal were in no doubt that the contract which Mr Okpala accepted was initially for two terms and that subsequent renewals were on the same basis.

	Notwithstanding their earlier indication and the contractual term to which it gave rise, the school decided not to re-advertise in the Spring of 1994. Mr Okpala still only had one full term’s teaching experience, and in all the circumstances, the school decided to postpone re-advertisement until such a time as he might have gained sufficient experience to stand a reasonable chance of succeeding in an application for such a job. The Industrial Tribunal found that this situation was explained to Mr Okpala who raised no objection to the postponement and accepted and continued to work under a further temporary contract. 

	It is not necessary for present purposes to go into to much detail about the course of Mr Okpala’s employment as a teacher at the school thereafter. Before the Industrial Tribunal there was a letter from the headmaster to Mr Okpala dated 11th July 1996 setting out a history of classroom problems and incidents. It seems that Mr Okpala was given a final written warning by the Governors following an incident in which a child was kicked. That is an incident which Mr Okpala did not dispute in evidence before the Industrial Tribunal. In those circumstances, the evidence of the head teacher, which was accepted by the tribunal, was that he then felt unable to re-advertise the post at that time because he considered that the Governors would be unlikely to appoint to such a post a teacher who was under a final written warning for a serious offence.

	Again, without involving ourselves in the rights and wrongs of the relationship between Mr Okpala and the head teacher, it appears to have been common ground that that relationship had deteriorated badly by the summer 1995, and there was a series of acrimonious letters between Mr Okpala, the head teacher and Chairman of the Governors. These are all maters of fact found by the tribunal.

	There were disputes about Mr Okpala’s teaching and other responsibilities, they continued over the Summer 1995. The school decided nevertheless to make a further offer to re-employ Mr Okpala on a further temporary contract for two terms with two responsibility points, but that offer was rejected by Mr Okpala on 28th September 1995. That date is of some significance in these proceedings because it is the date of a letter sent by Mr Okpala to the school, and it is, in form, a letter of resignation as from the following day. The response of the employer was to point out that it was regarded as a resignation but to give Mr Okpala until 9th October 1995 to reconsider the situation or state to the contrary. Mr Okpala never taught at the school again. That is a very brief summary of the history.

	We turn now to the matters raised on appeal. The breach of contract identified by the Industrial Tribunal in its decision was the failure to re-advertise the post in the Spring 1994. In Mr Okpala’s favour the Industrial Tribunal decided, and rightly decided, that that amounted to a breach of a contractual term. They did not find any other breaches of contract. So far as that breach was concerned, the Industrial Tribunal observed and found that Mr Okpala had been informed of the change of mind on the part of the school; but that he had made no complaint and continued to work under further temporary contracts after the breach. The Industrial Tribunal stated:

“7. j) ...the Tribunal finds that the Applicant had waived that breach and thereby lost his right to sue in respect of it.”

A little later on the tribunal observed:

“... The Applicant was still employed by the Respondents in September 1995 and therefore on this basis also cannot show that he suffered any loss by virtue of the Respondents’ breach.”

	Mr Okpala does not accept the correctness of that finding as to the consequence of the breach, and further, he makes submissions about the way in which the tribunal came to that conclusion, it being his case that he had been told by the Chairman that the hearing was concerned with liability alone and questions of remedy would only be considered at a later hearing if liability were established. Be that as it may, it seems to us that the analysis of the tribunal cannot be faulted in the circumstances of this case. Accordingly, in our judgment, to the extent that the appeal in relation to breach of contract relates to the tribunal’s decision as to the failure to re-advertise, we consider that the decision of the tribunal was correct.

	Mr Okpala has made other submissions to the effect that the school was continually in breach of obligations of a contractual nature to him. The Industrial Tribunal did not accept that as a matter of fact, but it is better that we should consider them under heading of ‘unfair dismissal’ where their significance must be considered again. 

	Before we turn to unfair dismissal, there is another area of factual dispute to which brief reference should be made. When he applied for the job originally, Mr Okpala hoped to obtain a permanent position. There was a great deal of factual conflict in the tribunal as to the issue of permanence. The Industrial Tribunal heard the witnesses on the subject and it seems to us that it would not be appropriate or indeed possible for this appeal tribunal to go behind the findings. True it is that there was one document created by the school in which the word ‘permanent’ was used. The Industrial Tribunal found that that was a mistake and also found that Mr Okpala must have realised that at the time. That is a finding of fact, albeit with legal consequences, but a finding of fact which this appeal tribunal is not able to go behind. Moreover, although a great deal of heat was generated on this issue, the analytical reality of the situation is that whatever Mr Okpala originally applied for, there is absolutely no doubt that what he knowingly accepted was a temporary appointment for two terms and what he subsequently accepted was a series of further temporary appointments for two terms.

	So we turn to the question of unfair dismissal. The case for the school on that issue was a simple one. It was that there had been no dismissal at all because on 28th September by his letter, Mr Okpala had simply resigned. He had been given an opportunity to change his mind and a period of some ten days or so in which to do so, but he never had. This being so, the school said quite simply there was no dismissal.

	On the face of it, that was correct and to a degree was accepted by Mr Okpala as being correct. His case was that although he had brought an end to the contract in that way by that letter, the circumstances were ones of constructive dismissal. Constructive dismissal always raises questions of both law and fact. Our first concern has been to examine whether the Industrial Tribunal properly understood the law. In their decision they said this:

“7. p) ... The Applicant, despite the clear wording of the letter of 28 September, maintains in his letter of 6 October 1995 that he has been dismissed and has not resigned. He claims that he is entitled to terminate his contract because of the Respondents’ own breach of contract. The question arises as to what was the breach of contract which entitled the Applicant to resign his post? Such a breach must be fundamental, going to the root of the contract, and either the Applicant must resign immediately as a result of it, or, if it is claimed that the breach consists of a continuing act or policy the Applicant must show that he has ‘reached the end of his tether’ and can no longer tolerate the situation and so resigns.”

It seems to us that that statement of the law is substantially correct and contains no error. 

	The Industrial Tribunal then went on to consider the question of breaches by the employer to see whether any of them might fall into that category. The first thing they considered was the failure to re-advertise; the self-evident breach to which we have referred earlier. We cannot fault their observations earlier related to the effect that that self-evident breach was one in which Mr Okpala acquiesced or waived any rights to compensation.

	The Industrial Tribunal then went on to consider further breaches alleged by Mr Okpala in relation to breaches of the implied term of mutual trust and confidence and an alleged breach of an implied term to provide him with work. The decision of the tribunal on that consideration seems to us to be a conscientious consideration of the relevant evidence. Mr Okpala was bound to face some difficulties in this regard, in view of the fact that the assessment of the Industrial Tribunal was that his evidence was considered to be far less acceptable than the evidence of the employers’ witnesses, and therefore, on factual issues where his evidence stood alone and was contradicted, he was unlikely to succeed. Those are matters of the assessment of evidence to which the Industrial Tribunal is suited, and as Mr Okpala is aware, this appeal tribunal is concerned only with points of law.

	In summary in the decision, the tribunal said:

“9 ... The Tribunal cannot find evidence of any breach by the employer which would entitle the Applicant to treat his contract as terminated. It therefore concludes that the effect of the Applicant’s letter of 28 September 1995 was a resignation and not a dismissal. That being so, the Applicant has no claim for unfair dismissal and his claim fails and is dismissed.”

	We ask ourselves: has Mr Okpala raised any matter of law which would have any prospect of success at a final hearing in relation to that finding? In our unanimous judgment, he has not.

	Finally, the question of bias. Mr Okpala has referred to a number of matters which he suggests indicate that the Industrial Tribunal was biased against him. To a very substantial extent, they are matters of evidence in respect of which his case was not accepted by the Industrial Tribunal. It quite often happens in this appeal tribunal that litigants whose evidence has not been accepted in one or more ways, come here and assert that that must have been because the Industrial Tribunal was biased against them. We have read all that Mr Okpala has to say on the subject. We have also read the reply of the Chairman at London (South) to the allegations which Mr Okpala originally put in writing. We are in no doubt whatsoever that the allegation of bias is totally unfounded. This was a lengthy hearing that proceeded over some four days or so, and resulted in a very careful and detailed decision from the Industrial Tribunal.

	Mr Okpala criticises it, amongst other things, on the grounds that it distorts or suppresses the truth about certain matters. In any case of this kind where a hearing has proceeded for four days, an Industrial Tribunal is not going to refer to every single item of evidence and submission that arose in the course of the hearing, and it may be that an Industrial Tribunal is in error as to a minor factual statement here or there. The task of this appeal tribunal is to take an overall view as to whether, as Mr Okpala submits, the decision is vitiated by manifest bias. We are in no doubt at all that that allegation simply does not get off the ground. At one point Mr Okpala even suggested that some one or more omissions from the factual findings were motivated by a desire to conceal certain facts from this appeal tribunal, it being Mr Okpala’s view, that the Industrial Tribunal knew all along that there would be an appeal. That we judge to be a completely fanciful suggestion.

	Where then does that leave us? It leaves us as having carried out a careful review of what took place in the Industrial Tribunal and of the decision. We have scrutinised it and Mr Okpala’s submissions to see whether, in our judgment, they raise any arguable points of law which might have any prospect of success at a full hearing of this appeal tribunal. We are unanimously convinced that there are no such points of law, and in the circumstances, this appeal is dismissed.