Appeal No.	 EAT/929/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 July 2000

Before
MR RECORDER BURKE QC
MRS D M PALMER
MS B SWITZER

MR O J ANIAGWU	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D O'DEMPSEY
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

MR RECORDER BURKE QC:	

1.	This is the Preliminary Hearing of Mr Aniagwu’s appeal against a decision of the Employment Tribunal at London (North) chaired by Mrs Prevezer promulgated on the 25th June 1999 and supported by extended reasons. 

 2.	The Tribunal decided unanimously that the Appellant had been unfairly selected for redundancy but that his claims of racial discrimination and of victimisation were not made out.  It awarded him compensation for unfair dismissal amounting to £4,147.07p.

3.	It is necessary to note in passing that, at paragraphs 31 and 68 of its decision the Tribunal appears to have found that the Appellant was not dismissed in conflict with the finding that it also clearly made, that he had been unfairly dismissed consequent upon his selection for redundancy. 

4.	No issue of either redundancy payment or of unfair dismissal can arise unless there has been a dismissal.

5.	However that is not a matter which is for our consideration today. The employers had given notice to dismiss. What seems to us to have happened on a not wholly superficial examination of the facts,  but an examination of the facts which is not entirely full, this being a Preliminary Hearing, is that during the currency of the Notice of Dismissal the Appellant decided to take the voluntary payment offered to him under the voluntary severance scheme.

6.	It may well be, if this matter ever comes to be investigated hereafter, that the correct analysis in law is that what happened was that there was a Notice of Dismissal; which would have expired at a later date but that the parties agreed to bring forward the effective date of termination of the contract pursuant to that Notice of Dismissal; and if that is so then there was a dismissal; but that is only a piece of tentative thinking on our part and is not material to what we have to consider, we mention it only lest it becomes material hereafter. 

7.	The Appellant was employed by the Respondents, the London Borough of Hackney, from 1990 as a Senior Accountant.  He is black; he was an active union shop steward who acted vigorously on behalf of his members, particularly in relation to matters in which there were allegations which had racial overtones.  In saying that we are certainly not expressing the slightest criticism of him; no doubt he was an excellent union official and took up the cudgels on behalf of his members as was his duty.

8.	In June 1997 he claimed that he had been discriminated against on the grounds of race and victimised either on racial grounds or for his trade union activities in respect of the handling of a grievance and in respect of the handling of a loan application.  

9.	By the time of the Tribunal’s decision, so far as this first claim is concerned, only the claim in respect of the grievance was live.  

10.	It was not in dispute that, to put it neutrally, the employment had terminated on the 31stJanuary 1998.  

11.	Consequent upon that termination the Appellant claimed that he had been unfairly dismissed, that there had been racial discrimination, that he had been victimised and that he had been dismissed for trade union activities.  There was also a claim of racial discrimination in relation to the size of the redundancy payment made to him at the time of the termination. 
12.	All these various claims were heard together; but before they were heard there had been a Hearing for Directions at the Tribunal on the 29th April 1998 when the issues were clarified and fined down to the six issues which are set out in paragraph 8 of the Tribunal’s decision. We shall return to this paragraph shortly. 

13.	The termination of the Appellant’s employment occurred in the context of a large scale redundancy in the Respondent’s financial department.  Seventy jobs had to go, there were established selection and redeployment procedures.  

14.	After those procedures had run their course the Appellant had been selected for redundancy and had been unsuccessful in the struggle for redeployment.  As we have said, he was offered enhanced redundancy terms and took them.  

15.	This preliminary hearing came before the Employment Appeal Tribunal for the first time on the 5th April of this year and was adjourned.  

16.	By that time the original Notice of Appeal had been amended so as to contain only the four grounds which are not struck out in the amended Notice which is in our papers, the amendments having been made by order of the Registrar. 

17.	Why the matter was adjourned in April we do not know and it does not matter. We are going to deal with the arguments as to what we will broadly call liability before we come on to the arguments which go to remedies.  

18.	In ground 1 of the Notice of Appeal the Appellant argues and today Mr O’Dempsey has argued on his behalf that the Tribunal, in rejecting his claim that his selection for redundancy was racially discriminatory and victimisation, failed to establish the causal links between his trade union activities and his activities which were protected for the purposes of Section 2 of the Race Relations Act 1976 i.e. his acting on behalf of his members in taking up matters where there were allegations of racial discrimination on those members’ parts.  

19.	The Tribunal considered the facts relating to discrimination and victimisation at length,  in paragraphs 23 to 33 of its decision.  It directed itself correctly on the law of discrimination at paragraph 61; and it found as a fact at the end of that section of its decision headed ‘The Second Claim of Unfair Dismissal Race Discrimination and Victimisation’ that there was no racial discrimination , (paragraph 32)  and no victimisation  (paragraph 33). 

20.	Mr O’Dempsey, who it has to be said has ably said everything that could be said in support of this Appeal, points out to us that, in paragraph 33, the Tribunal do not refer at all to the allegation made by the Appellant that he was victimised for being concerned in or carrying out the protected acts to which I have already referred; and it appears to be correct that they do not; but there is a very clear reason why they do not. 

21.	If one goes back to paragraph 8 of the decision, where the issues that were before the Tribunal were defined, it is clear, as one can see from sub paragraph 5 of paragraph 8, that the only victimisation issue before the Tribunal was that to which the Tribunal expressly refers and that with which the Tribunal expressly deals at paragraph 33.  

22.	It does appear that there is something, although not very much by way of material in the Appellant’s witness statement which might be thought to substantiate the complaint of victimisation in relation to protected acts.  It may be the case that there was some material there to substantiate it; but whatever was in the Appellant’s witness statement the fact is that there was no issue before this Tribunal of victimisation in respect of those protected Acts and only victimisation as set out in paragraph 8, sub paragraph 5 was a live issue..  

23.	Accordingly it seems to us, despite the illuminating argument of Mr O’Dempsey, that this Ground 1 of the Notice of Appeal cannot succeed and is unarguable.  

24.	Next on liability there are two points made in paragraphs 3 and 4 of the Notice of Appeal about indirect discrimination.  Paragraph 4 asserts that the Tribunal failed to test the uncontested evidence given by the Applicant that the treatment of himself as well as other black trade unionists in his trade union capacity is different from that given to his white counterparts. 

25.	It has to be said that Mr O’Dempsey has not addressed us any arguments on that particular part of the Notice of Appeal although we certainly do not take him to have abandoned or not supported anything that is in this Notice of Appeal. 

26.	The point to which sub paragraph 4 of paragraph 6 of the Notice of Appeal is directed is raised for the first time in the originating application in the third paragraph of the second page and it is raised in the witness statement.  The tribunal dealt with it at paragraph 54, page 9 of its decision.  

27.	It records the Applicant as submitting that there was indirect discrimination because white trade unionists received different treatment from black African trade unionists. 

28.	They go on to say that there was no evidence, however, to support that submission.  It has not been suggested to us that there was any evidence to support that submission and in the absence of any such suggestion, we cannot see how there can be, without going in to detailed analysis of how indirect discrimination works, any arguable claim that the Tribunal were in error in this area.  

29..	In sub paragraph 3 of paragraph 6 of the Notice of Appeal, a second point about indirect discrimination is taken.  

30.	One of the Appellant’s complaints was that he had been the subject of direct discrimination in that he had been paid a lower redundancy payment than a white employee on the same grade (that grade being PO1), a Mr Bill Burke.  I should say that Mr Bill Burke is unknown to me and is no relation. 

31.	The Tribunal examined that at paragraph 29; it accepted the explanation of the employers that the discrepancy was the result of an innocent mistake based on the fact that Mr Burke was at the relevant time being paid at the grade PO4 rate, presumably because he was acting up (although that is an inference that we draw rather than something directly supported by evidence) and had been given a redundancy payment calculated on the basis that he was actually in the PO4 grade and not merely being paid in that grade.  

32.	The calculation of the redundancy payment was apparently based on something called a marketability factor which was itself based on the grade or the salary that went with the grade on which the redundant employees were at the material time.  See paragraphs 28 and 29 of the decision.  The Tribunal, having accepted the explanation, found that this differential did not constitute a direct discrimination.  

33.	The Appellant now seeks to argue that there was indirect discrimination in the same area, by “now” I do not suggest that this was not argued below, because it is clear from paragraph 54 that it was, in the sense that there were fewer black employees who could benefit from the higher marketability factor which went with Grade O4 than white employees..

34.	It is argued that, because there were more white employees in Grade PO4 than there were black employees, the Tribunal failed in looking at this part of the case to identify the application of a condition of entry into the category of those who could receive a higher redundancy payment, which application of condition constituted indirect discrimination by reason of the ethnic difference in the make up of Grade O4 to which I have referred.  

35.	In paragraph 54 the Tribunal rejects this argument, too, on the basis that it was unsupported by evidence; and again no specific evidence has been drawn to our attention.  It may be that no evidence beyond the facts which I have set out was actually necessary; but even if there was evidence it would not in our judgment have been possible for this claim on the basis of indirect discrimination to have been successfully made out. 

36.	Where redundancy payments are calculated according to a factor dependent on the salaries which go with grades, it is not, we would respectfully suggest, looking at the matter with common sense, imposing a condition on someone in one grade which is a condition based on ethnic difference, just because in another grade there happen to be more whites than blacks.  If that were not so then no redundancy payment scheme other than that provided for by statute could ever contain a differential based on the salaries which the different persons who were being made redundant received; and quite apart from redundancy payments, (and this is perhaps a bit of a flight of fancy), it might even be argued that differential salaries in themselves constituted indirect discrimination.  

37.	Whether in truth there is no application of a condition, or if there is an application of a condition, it is justifiable really does not matter; we have no doubt at all that this does not give rise to an arguable point of appeal. That deals with the “liability” aspects of this appeal. 

38.	Now I come to remedies and what we have to say on remedies will be of slightly more comfort to this Appellant.  

39.	Firstly, there is the issue of reinstatement and re-engagement.  In his Originating Application, the Appellant did not tick the reinstatement or re-engagement boxes but ticked the compensation box. 

40.	It is of course well known that such an apparent election as to available remedy is not final and binding.  Section 112 of the Employment Rights Act 1996 provides that, where a Tribunal finds that the grounds of an unfair dismissal complaint are well founded, it shall explain to the Complainant what orders may be made under Section 113 and in what circumstances they may be made and ask him whether he wishes the Tribunal to make such an order.  

41.	The orders which may be made under Section 113 are Orders for Reinstatement or Orders for Re-engagement as the Tribunal may decide. Now Mr O’Dempsey tells us on instructions from the Appellant that the requirements of Section 112 were not carried out in this case. 

42.	If one looks at Paragraph 71 of the decision, one sees the Tribunal making the point that the Appellant had not made a request for reinstatement or re-engagement in his originating application. 

43.	It was relevant that they should consider whether he was applying for reinstatement or re-engagement because as a result of their finding that the dismissal was not only unfair but was a dismissal either for trade union reasons or because the Appellant was a trade union official, it was necessary to look at what were under sections 157 and 158 of the Trade Union Labour Relations Consolidation Act 1992 with a view to considering whether the Appellant was entitled to an enhanced payment; these sections have since been repealed by The Employment Relations Act 1999.

44.	In order to see whether a special award of compensation could be made, the Tribunal had to consider whether the Applicant had requested that Tribunal to make an order for reinstatement or re-engagement, or at least whether “the complaint” requested the Tribunal to make an order for reinstatement or re-engagement. 

45.	In order to consider that fully it seems to us at least arguable that the Tribunal would have had to have given the explanation and asked the question required by Section 112 of the 1996 Act; and if they had carried out the Section 112 process, it is likely that they would have mentioned it in paragraph 71.  

46.	They do not mention it. It thus seems to us at least on the information before us, (and it may or may not become very different information when the matter is fully argued), that the Tribunal may well not have gone through the Section 112 exercise.

47.	In  Cowley  -v-  Manson Timber [1995] IRLR 153, the Court of Appeal said that failure to carry out the Section 112  process did not render what followed a nullity but that if there was a possibility of some injustice or prejudice arising from the failure to carry out that process then what was followed was voidable and could be set aside and that the Appeal Tribunal should not be slow in such circumstances to send the matter back to the Employment Tribunal for re-hearing.

48.	In the subsequent case of McGregor Cory Ltd -v-Constantine  in this Appeal Tribunal, (judgment delivered by the President on the 3rd February 2000) this Tribunal indicated that injustice may well be caused if the Section 112 process is not complied with.  

49.	Our conclusion, tentative at this stage of course, is that it is properly arguable that the decision of the Tribunal as to remedies which excluded reinstatement or re-engagement it did should be set aside; and we propose, so far as this part of the Appeal is concerned, that it should go forward for a full hearing.  

50.	Secondly, the Tribunal decided that the compensation for loss of future earnings should be restricted to a period of one month from the date of the hearing. It is submitted by Mr O’Dempsey that there is no reasoning to explain how or why the Tribunal came to this conclusion. 

51.	It is submitted as well that the Tribunal, although as it sets out in paragraph 76 it had adjourned the case on Tuesday 11th May to enable the Applicant to attend on the 14th May with full submissions and full evidence of his earnings and any efforts he had made to obtain further employment, wrongly held that he had failed to bring any such evidence and thus they made the award that they did on information that they had culled from the Respondents and from the documents before them.

52.	Mr O’Dempsey tells us that throughout the hearing the Tribunal had hushed and interrupted the Applicant and had reduced him to a situation in which, although he had brought documents showing that he had made efforts to get work along to the Tribunal, after the adjournment, because they were not expressly asked for, he did not actually put them forward. 

53.	We have to say that we do not find that particular argument attractive or even arguable at all.  Here was a trade union official who had vigorously represented his members for some years; he had represented himself in this Tribunal hearing; the matter had been specifically adjourned so that he could bring the evidence along and we find it difficult to accept that he would have been so intimidated as to find himself unable to put before the Tribunal evidence which he had taken to it.  We have not been shown any documents that he actually had to put before the Tribunal on that occasion but was dissuaded by the intimidatory circumstances from doing so.

54.	However we should say that we have taken into account in reaching this conclusion the guidelines laid down by this Court in the case of Judah to which we were referred by Mr O’Dempsey.

55.	However, while we are not impressed by that argument and if that stood alone, would not give leave for this part of the Tribunal’s decision to be effectively appealed, and we certainly are not going to give leave for sub paragraph 6 of paragraph 6 of the Notice of Appeal, which sub paragraph was removed when the Notice of Appeal was amended after advice, to be resurrected. We do feel that it is arguable that the Tribunal has not properly considered firstly, and if it has its reasoning certainly is not apparent, when if the Applicant had properly tried to get work he would have got it, what work he would have got and how much he would have earned had he got it.  Furthermore it appears to have approached the matter on a wholly black and white basis and not by considering the chances that such work might or might not have been obtained.

56.	If those criticisms were to be established as correct, they would or might render this part of the Tribunal’s decision one which would have to be set aside and therefore in that respect we consider there to be in this respect too an arguable ground of  appeal.

57.	Accordingly the Appeal will go forward only on the two grounds which go to remedies which we have outlined.