Appeal No.	 EAT/946/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 November 1998

Before
HIS HONOUR JUDGE D PUGSLEY
MR D J HODGKINS CB
MS S R CORBY

MR O O OSINUGA	APPELLANT

K S CONQUEST SECURITY LTD	RESPONDENTS

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR DAVIES
(Of Counsel - ELAAS)	
For the Respondents		

	JUDGE D PUGSLEY:	The purpose of this hearing is to identify any error of law which justifies this matter going to a full Tribunal.   We have carefully considered all the points that have so helpfully and well made by Mr Davies.   

	The Applicant, Mr Osinuga, was employed by the Respondents at their site at DTZ Debenham Thorpe in Walthamstow from 2 May 1995 until 4 December 1997 when his employment came to an end.   He claimed that he was both constructively dismissed and that he was a victim of race discrimination.   

	The Tribunal directed themselves as to the relevant issues of law, on the unfair dismissal by taking note of the decision in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 and, in relation to the complaint of racial discrimination, they properly set out the test of Neill LJ in King v Great Britain-China Centre [1991] IRLR 51, Court of Appeal as approved by the House of Lords in Glasgow City Council v Zafar [1998] ICR 120.   Mr Davies, quite properly, makes no criticism of the directions as to law.   

	We find it difficult to see how the Tribunal’s decision can be criticised for finding there was no race discrimination.   There was no evidence from which an inference to that effect could be drawn.   We do not really think there is any base on which that can be criticised.   They set out the relevant law properly and applied their minds to the facts as they found them to be.

	The essence of the case was that the Respondent employer had failed to provide a safe place of work.   In paragraph 14, the Tribunal set out the various matters, there had been some earlier complaints, in 1996, when Mr Osinuga complained about a chair he had and the Tribunal noted that he had an alternative chair within a very short period of time.   The touchstone of what really, in their view, caused the Appellant to leave is that immediately prior to his resignation the heating in the Portakabin went off.   It seems that outside contractors cut the power and the power failure was reported by Mr Osinuga on 24 November 1997.   A calor gas fire and torch were delivered on the site and arrangements made for an electrician to meet the Respondents Inspector on site the following day.

	The inspector (an employee of the Respondents) was delayed because of traffic and he missed the electrician and so alternative arrangements were made for the electrician to attend on Wednesday, 3 December.   According to the notice of appearance the reason for the inspector being late was traffic problems and the reason for not rearranging the matter until 3 December was the pressure of work on the electrician.   

	The picture is taken up in paragraph 8 where this is said:

“On 3 December 1997 Mr Osinuga was due to start work at 5pm.   In answer to questioning from the Chairman, Mr Osinuga explained that he had booked in to the Wandsworth Control Centre from a touch-tone telephone in Walthamstow.   He was not on the premises or in the Portakabin at the time.   Mr Osinuga held the key to the Portakabin which contains the fuse-box.   Mr Osinuga said that he was not on the site because he was buying food to eat.   When Mr Osinuga finally arrived on site, he told us that the inspector was waiting for him because he could not find the key to the Portakabin.   Mr Osinuga said in his evidence that he told him that he was not prepared to work and was going to leave the site.”

	The position is that the attempt to rectify the heating failed on 3 December due to the non-appearance of Mr Osinuga.    So the electrician was unable to gain access.

	In paragraph 14 (h) of their decision, the Tribunal put it in this way:

“...Mr Osinuga complains that there was an implied term in his contract of employment to provide a safe working environment.   On the evidence before us, this may have been an unpleasant working environment but that does not make it unsafe.   We are not satisfied that there was a breach of the contract of employment.   a calor gas heater and torch were provided for the period when the heating problem existed.”

	The Tribunal made the finding of fact that the matter that prompted the resignation was the heating issue.   They deal with it and point out there was an attempt to immediately rectify it and an attempt to rectify it a week later which failed because of Mr Osinuga not being on site and that thereafter Mr Osinuga resigned.   The Tribunal came to this view at paragraph 15:

“It is the unanimous decision of the Tribunal that there has been no breach of the contract of employment and Mr Osinuga’s complaint of constructive dismissal fails.”

	The issue that has been canvassed before us is simply this:  this was the gap between 24 November and 3 December, a considerable length of time in a matter which can be said to be a fundamental breach of contract which entitles Mr Osinuga to leave and to say that he was constructively dismissed.   

	We have considered those arguments.  It is important to make it clear that is the Tribunal that is the fact-finding body.   We have to consider whether the decision they have reached is a permissible option.   It is not for us to substitute our view and to dress up what is essentially a matter of fact and allow it to masquerade as an issue of the law.   There is no misdirection of law.   The Tribunal had the opportunity of considering all the matters.   We note and bear in mind this was a decision of a full Tribunal (two Members as well as a Chairman) and we have come to the view that we would be trespassing on the function of the Tribunal to identify as an area of law what was essentially a conclusion of fact which the Tribunal were entitled to come to on the evidence before them.   

	As we have already indicated, although Mr Davies has not surrendered on the issue of race discrimination it has not been at the forefront of his argument, as his smiling acknowledgement confirms.   At the end of the day we consider that, having properly directed themselves as to the law and then applied that law to the factual situation as they found it, we do not consider that any identifiable area of law that justifies this matter going to a full Tribunal.   We therefore dismiss the appeal.