Appeal No. EAT/1461/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 May 2002

Before
HIS HONOUR JUDGE D M LEVY QC
MR J R CROSBY
MR P M SMITH

MR TUNDE APELOGUN-GABRIELS	APPELLANT

1) LONDON BOROUGH OF LAMBETH 2) MR DAVID COWAN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	

JUDGE LEVY QC

1.	Mr Tunde Apelogun-Gabriels, (“the Appellant”) was at the time he made a complaint to an Employment Tribunal an employee of the Lambeth Borough Council (“the Council”).  On 27 April 2001 he sent to the Tribunal an IT1, received by the Employment Tribunal on 30 April claiming that he was subject to discrimination, victimisation and harassment.  The particulars in this complaint have three headings.  (1) the telephone incident.  (2) the internet incident and (3) reasons/notes.  The complaint was made against the Council and one of its other employees, Mr David Cowan (“Mr Cowan”).  we will refer to the Council and Mr Cowan together as the Respondents.

2.	In due course the Appellant’s complaint was heard by an Employment Tribunal sitting at London South on 17 and 18 September 2001.  The Appellant, as he has today, represented himself and Counsel appeared for the Respondent.  The unanimous decision of the Tribunal was that the Respondents did not unlawfully victimise the Applicant on racial grounds.  His complaint about unlawful victimisation therefore failed.  The Respondents did not unlawfully discriminate against the Applicant on racial grounds.  His complaint of unlawful race discrimination therefore failed.  From that decision he appealed by notice dated 27 November 2001.  Prior to that he had, on 29 October 2001, applied for a review of the decision.  The Employment Tribunal’s review decision was promulgated on 3 December 2001.  That application was dismissed.

3.	There was an amended Notice of Appeal with an application for directions on 8 January 2002.  When this preliminary hearing ex parte of the Appellant’s appeal was called on this morning, we suggested to the Appellant that it would be sensible for him to seek advice from the ELAAS Respondent who was present today, in the hope that that might assist him in presenting his appeal.  He took the opportunity offered to him but ultimately he presented his appeal himself.  He told us that he and the Counsel to whom he spoke both believed that he would have a better grasp of the facts than Counsel would have done.
 
4.	The appeal in fact turns on 2 discrete incidents referred to in the Appellant’s Amended Notice of Appeal as “the telephone incident” and “the internet incident”.  In its Extended Reasons promulgated after the 2 days hearing the Tribunal set out the case of both the Applicant and the Respondents.  It made findings of fact.  The findings of fact commenced at paragraph 9.  Paragraphs 9 and 10 read:

“9.	The Applicant is a black African and compares himself with a white hypothetical employee for the purpose of these proceedings.

10.	The First Respondent is a Local Authority, the Second Respondent , Mr David Cowan, works for the Respondent as a Management Accountant in the Social Services Finance Section.  The Applicant began working for the First Respondent in April 1990 and was transferred to the Accountancy Section in 1999.  He was employed as an Accounts Assistant.

5.	The Reason then set out other findings before dealing with the telephone incident.  They took place on 1 February 2001.  Simply summarised the Appellant was standing by his desk possibly in his lunch hour, it matters not, when the telephone rang.  Mr Cowan wanted the telephone to be answered by employees so that the public would have a good service from the Council.  The Appellant did not answer the telephone.  Mr Cowan asked the Appellant according to the Tribunal “would you answer the phone please Tunde?”, the Appellant replied to the effect “you’re not my boss, don’t tell me what to do.”  He added that he was having lunch.

Paragraph 16 reads:

“Mr Cowan, in asking the Applicant to answer the phone, was a little annoyed because this was a third occasion on which he had had to ask the Applicant to answer the office telephone.  When Mr Cowan left the printer he checked the office ‘signing-in diary’ and noted that the Applicant had signed back on for work, that office diary entry is at page 30.”

Though other facts were found regarding the incident, this summarised the essential findings.

“The Applicant did not make a complaint to Mr Harding and he did not raise with Mr Harding an official grievant or query concerning Mr Cowan’s managerial authority.”

6.	The internet incident happened sometime later, on 28 March 2001.  Then Mr Cowan passed by the Appellant in the open plan office.  He noticed the banner headline ‘Employment Tribunal’ on the internet opened on the computer of the Appellant.  The Tribunal found that since been given access to the internet Mr Cowan had observed the Appellant accessing non work related websites.  He brought this to the attention of Mr Harding.  Mr Harding dealt with the matter, not by approaching the Appellant personally or singling out “offences” by repeating during a staff meeting on 6 March that access on the internet was a privilege which could be withdrawn if abused.

7.	The Tribunal found, after noticing the headline on the screen Mr Cowan asked the Appellant why he was on the internet and whether it was work related.  The Appellant was annoyed at this question replied something to the effect “why are you asking me that?  Mind your own business, you’re harassing me and I’m going to report you”.

8.	The case of the Appellant was thus summarised:

“Central to the Applicant’s complaint is the issue as to whether Mr Cowan had a right to ask him to pick up the telephone or to query what use he was making of the internet.  He believed that these actions concerned supervisory authority.  It was the Applicant’s case that Mr Cowan had no supervisory authority over him, the only person who had that authority was Mr Harding.  It was the Applicant’s view that Mr Cowan had wrongly assumed the capacity of supervisor and therefore the only explanation for his questions was to bully him and harass him because of his race.”

The case of the Respondent is that it was a complaint which should not have been brought.  The Applicant had suffered no detriment and had not been victimised or discriminated against.

9.	The conclusions of fact made by the Tribunal were wholly against the Appellant.  On each incident there was a finding that the treatment that he got was no more than would be expected as part of office routine.  The Appellant had submitted the treatment constituted a detriment because Mr Cowan did not have the authority to approach him.  The Tribunal found that argument to have no substance at all and set out reasons why.  It also noted the proceedings were commenced before the Appellant has raised his concerns with Mr Harding.

9.	The Appellant has addressed us at some length orally.  His Notice of Appeal in some length goes into the hardship which he feels he has suffered.  We explained to him at the commencement of the hearing of the appeal this morning, we have to find an error of law in a Tribunal’s findings before permitting an appeal to a full hearing.  He has taken us to the terms of his employment, as he had to members of the Tribunal hearing his complaint there.  In our judgment, there was nothing in such the terms as we were shown which would in way assist him.  He has taken to us a document produced by him in what we are told was the bundle used at the Tribunal hearing which refers to a statement by one of the Council’s staff which reads:

“Subsequent to that meeting, the complainant continued to access non-work related sites and on the day in question, in observing the complainant accessing an Employment Tribunal site, I asked whether it was for work or private reasons.”

He has suggested there was no such thing as an Employment Tribunal site.  That is as may be. The fact that somebody uses the word ‘Employment Tribunal site’ in a statement does not, in our judgment, vitiate the complaint which was made against him that he was on the internet looking at an inappropriate site during office hours.  In our judgment the Tribunal was entitled to find the facts found and on those facts to reach the decision it made.  We are fortified in our decision by looking at extended reasons of the review decision of the Employment Tribunal. There the learned Chairman said this in giving his reasons for refusing a review:

“This was a case in which the Applicant on two separate occasions ignored the simple supervisory instructions of a manager.  He cited this manager, Mr Cowan, as a Second Respondent in this case.  In his evidence he explained that he did not accept the authority of this manager and made, what the Tribunal considered were, wholly spurious and unfounded accusations of racial discrimination against him.

All of the relevant evidence and matters concerning this case were fully canvassed at the hearing, which took place over a period of two days.  The Applicant seeks to overturn that decision by contending that the Tribunal did not have adequate regard to the evidence.”

10.	The Tribunal dismissed the application for Review.  In our judgment the Tribunal came to the only decision it could have reached in the circumstances of the Appellant’s complaint.  We know that the Appellant is disappointed by the decision of the Tribunal but he has had his day in Court.  He is not entitled to have a re-run in an attempt to challenge findings of fact before an Appeal Tribunal.  The facts as found were both proper and sufficient in our judgment. The Tribunal, having regard to such findings of facts, was entitled to dismiss his application.  The Appellant has made submission to us for almost an hour.  We have taken account of all that being put before us both his oral submissions and in the written documents.  We are satisfied there is no arguable case to forward to a full appeal.  We therefore dismiss this appeal at this stage.