Appeal No. UKEAT/0279/03/ZT
UKEAT/0280/03/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 August 2003
Judgment delivered on 20 November 2003

Before
HIS HONOUR JUDGE D SEROTA QC
MR P DAWSON OBE
MR I EZEKIEL

EAT/0279/03/ZT
MR A ANYANWU	APPELLANT

(1) MR O EBUZOEME (2) LONDON SOUTH BANK STUDENTS UNION 
(3) LONDON SOUTH BANK UNIVERSITY	RESPONDENTS
______________________________________________________________________________
EAT/0280/03/ZT
MR O EBUZOEME	APPELLANT

(1) MR A ANYANWU (2) LONDON SOUTH BANK STUDENTS UNION
(3) LONDON SOUTH BANK UNIVERSITY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

EAT/0279/03/ZT & EAT/0280/03/ZT
For the Appellants

EAT/0279/03/ZT
For the 1st Respondent

EAT/0280/03/ZT
For the 1st Respondent
	MR A ANYANWU
IN PERSON

MR O EBUZOEME
IN PERSON

MR A ANYANWU
IN PERSON

MR O EBUZOEME
IN PERSON

EAT/0279/03/ZT & EAT/0280/03/ZT
For the 2nd Respondents

EAT/0279/03/ZT & EAT/0280/03/ZT
For the 3rd Respondents	MR M AFEEVA
(of Counsel)
Instructed By:
Messrs Farrer & Co
Solicitors
66 Lincoln Inn Field
London WC2A 3LH

MR M AFEEVA
(of Counsel)
Instructed By:
BPE Solicitors
St James House
St James Square
Cheltenham
Glos GL50 3PR

HIS HONOUR JUDGE D SEROTA QC

Introduction including procedural history

1	This is an appeal by the Appellants Mr Anyanwu and Mr Ebuzoeme, from a Decision of the Employment Tribunal at Ashford (Chairman D E de Saxe Esq).  The Decision was promulgated on 17 October 2002.  The Employment Tribunal heard evidence for some 49 days.  It also heard oral submissions and received copious written submissions.  The Employment Tribunal spent six days reading and in consideration of its decision.  The Employment Tribunal had some 2,669 pages of documents and heard over 20 live witnesses, together with the Applicants.  We shall refer to the Respondents respectively as “the Union” and “the University”.  The Applicants had claimed against the Union that they were discriminated against on the grounds of race and had suffered victimisation and that the Union was in breach of contract.  All of these claims were dismissed.  The Applicants claimed that the University had knowingly aided acts of discrimination and victimisation by the Union; these complaints were dismissed.

2	In the proceedings as originally framed two Officers of the University, Professor Bernbaum, the Vice Chancellor and Professor Watkins, who had been responsible for initiating disciplinary proceedings against the Applicants, were joined as Respondents.  They were subsequently dismissed from the proceedings.  

3	The Originating Application was presented on 21 May 1996 and the Union and University entered Notices of Appearance respectively on 24 June 1996 and 30 July 1996.  On 23 March 1997 the Employment Tribunal ordered that the claim against the University should be struck out.  On 19 January 1998 the Employment Appeal Tribunal (Morison P) allowed the Applicant’s appeal and reinstated the University as a Respondent and struck out Professors Bernbaum and Watkins as Respondents.  On 26 October 1999 the Court of Appeal (by a majority) set aside the order of the Employment Appeal Tribunal.  The Applicants appealed to the House of Lords which reversed the decision of the Court of Appeal on 22 March 2001.  The proceedings in the House of Lords were concerned with the University’s attempt to strike out the claim that it had knowingly assisted the Union to discriminate against the Applicants.

4	The hearing before the Employment Tribunal began on 11 January 2002.  The Employment Tribunal had to review matters that occurred in 1995 and 1996.  Its Decision was promulgated on 17 October 2002.

5	It has been quite clear to us throughout this appeal that Mr Ebuzoeme and Mr Anyanwu are quite convinced and sincerely believe that they were victims of racially discriminatory conduct on the part of the Union and the University and that they have been the victims of a miscarriage of justice.  They see all the events and conduct of which they complain through the prism of that belief.  They have sought to fit the facts to this belief rather than construct a theory based upon the facts.  It is only fair to point out at the outset that the Employment Tribunal rejected all claims of discriminatory conduct on the part of the Union, the University, their Officers and employees, in specific terms in its careful and detailed Decision.

The factual background

6	We gratefully adopt the narrative of the Employment Tribunal set out in paragraphs 44 to 137 of its Decision and the findings of fact at paragraph 149.  The Employment Tribunal findings are careful and detailed and we certainly cannot improve upon them.  We only set out such facts as are necessary to enable the parties to understand our decision.  We shall return to consider the factual background after we have said something about the parties.

7	Mr Ebuzoeme completed a three-year BA in Politics in the summer of 1995 and thereafter enrolled as a part-time student on the Common Professional Examination course as a preliminary to becoming a solicitor.  

8	Mr Anyanwu studied Engineering and graduated in 1995.

9	Mr Ebuzoeme was deemed to be a student at the University because of his continued, albeit part-time study and Mr Anyanwu was deemed to be a student by virtue of his sabbatical office having regard to the University’s Articles of Association.

10	The Employment Tribunal’s view of Mr Ebuzoeme is set out at paragraph 146a(g) of the Decision:

“(g)	We think that AE has deeply persuaded himself that everything that happened to him since the date of his election has happened because of his race, and for no other reason.  He was totally unwilling, in his evidence, to consider the possibility that his own conduct might have had anything to do with what happened to him, or that his own conduct was open to criticism in any respect at all, ever.  He did not ever explain his conduct to anyone and has only done so now in the context of formal legal proceedings.  We have to say that we think that his decision not to appear before Professor Watkins on 28 March to defend himself was the result of what seems to us to have been wrong advice given by CAOC.  We think that he has, over the years, so deeply convinced himself of the truth of his version of events that he was quite unable to distinguish when he was giving us an accurate account of events from when he was not.  But we certainly do not think (and it is right that we should say so) that he was telling us deliberate lies.  We do not, however, regard his evidence as entirely reliable, and where it differs from the evidence of the Respondents’ witnesses, we prefer the evidence of the Respondents’ witnesses – e.g. as to the truth of complaints about AE’s conduct at the sports society’s funding meeting, and as to the extensive conflicts of evidence between him and Mr McCormack, where we prefer Mr McCormack’s evidence throughout as giving a more probable version of events.  Part of our view of AE’s evidence is based on the fact that he did not put matters to Mr McCormack which we should have expected him, as a lawyer, to know that he would have had to put, such that Mr McCormack had called him ‘a coon’; nor did he make complaints about being called ‘a coon’, although, in view of the general tenor of his evidence, we regard it as inconceivable that, if Mr McCormack had used that expression to him, he would not have complained about it:  he would have been entirely justified in doing so.  Another matter which seemed to us to reflect poorly on AE’S credit was the weak explanation which he gave of his letter of 15 April (9/1020) to Miss Hammond containing an expression which she took as a death threat.
We have borne in mind that English is not AE’s first language and that he has from time to time had trouble in expressing himself clearly, although that is a problem with which he coped very well in the course of the case.  Although his common professional examination course was interrupted by his expulsion from the university, we are glad to record that he has qualified as a Solicitor, which is greatly to his credit, and reflects his intelligence and capacity for hard work.”

11	The Employment Tribunal’s view of Mr Anyanwu is to be found at paragraph 146a (h):

“(h) AA is manifestly highly intelligent and intellectually agile with an acute analytical mind.  His spoken English is more fluent than that of AE, and his written English more polished.  But in his case also, we think, that at the time of the happening of the events canvassed before us, he, like AE, formed a deep conviction that Change ’95 was not being allowed to fulfil its election mandate because of opposition which he regarded as being based purely on grounds of race.  We think also that he saw it as his duty, as Communications Office r (i.e. secretary) to act as propagandist for the Change ’95 line, without deviation.  This led him to use unreasonable expressions in his letters to the university.  His fertile mind grasps at all points which occur to him, whether those are relevant or not:  this can lead him into pursuing matters which are in fact not to the point.  If we do not accept AA’s evidence, it is not only because it is based on the same assumptions as AE, namely that everything that happened to him has happened because of his race and not otherwise, but also because, in the conduct of the case, he made a number of wild allegations, such as allegations of forgery of documents – including the letter of expulsion – sometimes for no better reason than that the letter had been signed pp the drafter.  Nor were we impressed by his obstructive and evasive replies to our enquiries about the expertise and staffing of CAOC, or by his incorrect assertion that AE had no connection with that organisation, when in fact it was established that AE worked for it, although after the events of the case.”

12	The Employment Tribunal clearly had in mind that the factual issues and conduct with which it was concerned occurred more than six years before the hearing.  It had this to say:

“The Applicants are now mature and professional gentlemen, and conducted themselves as such before us, although perhaps with a somewhat relaxed attitude to procedural norms.  But six or seven years ago, they were acting in the heady and not always realistic atmosphere of student political (not in the sense of party political) activism.  They saw themselves and their colleagues on the Change ’95 platform as having been elected to the Executive Committee of [the Union] with a mandate for change, and as being thwarted in their objects by the “civil service” of the union ... and by financial and other constraints imposed by the university.  This led to them forming the view, which we have found to be mistaken, that the opposition to and constraints placed upon their aims was no placed on racial grounds.”

It is necessary to say something about two of the principal witnesses involved.  Maggie Hammond had worked for the Union as an Advice Worker but was seconded to the University.  She was drafted into the Union to act as a Trustee by the Charity Commissioners and the University after the suspension of the Applicants.  She was found to be an honest and reliable witness.  Mr Martyn McCormack was the General Manager of the Union.  He was of South African origin, an employee of the Union who ran its day-to-day affairs.  He would advise the Executive of the Union and considered it his duty to draw his concerns about the possible misuse of funds to the attention of the University.  The Employment Tribunal considered him to be essentially a truthful witness and extremely experienced and knowledgeable about the affairs of the Union.  The Applicants had alleged he had a background in the South African Army or Police or in the administration of the apartheid system in South Africa.  These allegations were rejected by the Employment Tribunal which found on the contrary that he was firmly anti-apartheid.  The Employment Tribunal considered that he acted throughout “as a good civil servant having to give frequently unwelcome advice to elected officials.  We think that this was particularly true about the advice that he was tendering to the Executive about the photocopying contracts. ... ”.  

13	The University is an inner city University and had at the time, a student body of some 20,000.  It was at all times a registered charity.  The Employment Tribunal recorded that in the academic year 1998 to 1999 6.4 per cent of its professors were non-white and the University came fifth that year in the female/ethnic minority league table published by The Times Higher Educational Supplement as having the fifth highest percentage of non-white professors at British Universities.  

14	In 1995 of the first-year students 32 per cent were white and 34 per cent were classified as non-white.  33 per cent of the students did not respond to questions about their ethnicity.  Throughout the history of the University there has been a white majority on the Board of Governors.  Of 932 lecturers, 505 were white, 130 non-white and 297 did not disclose their ethnicity.

15	We need to say something about the constitutional position of the University and the Union.  

16	The University is a company limited by guarantee.  It is a corporate charity whose Governors are Trustees for the purposes of the Charities Act 1993.  Article 75 of the University’s Articles of Association provide as follows:

“A students’ union shall conduct and manage its own affairs and funds in accordance with a constitution approved by the Board of Governors and shall present audited accounts annually to the Board of Governors.  No amendment to or rescission of that constitution, in part or in whole, shall be valid unless and until approved by the Board of Governors.  The Student Union shall be the students’ union approved by the Board of Governors for the time being.”

The University’s powers in relation to the Union are to be found in section 22 of the Education Act 1994:

“22(1)	The governing body of every establishment to which this Part applies shall take such steps as are reasonably practicable to secure that any students’ union for students at the establishment operates in a fair and democratic manner and is accountable for its finances.  The governing body shall in particular take such steps as are reasonably practicable to secure that the following requirements are observed by or in relation to any students’ union for students at the establishment – 
(a) the union should have a written constitution;
(b) the provisions of the constitution should be –
(i) subject to the approval of the governing body, and 
(ii) review by that body at intervals of not more than five years 
...
(d) appointment to major union offices should be by election by secret ballot in which all members are entitled to vote;
...
(g) the financial affairs of the union should be properly conducted and appropriate arrangements should exist for the approval of the union’s budget and the monitoring of the expenditure by the governing body ...
(3) The governing body of every establishment to which this Part applies shall for the purposes of this section prepare and issue, and where necessary revise, a Code of Practice as to the manner in which the requirements set out are to be carried into effect in relation to any students’ union for students at the establishment, setting out in relation to each of the requirements details of the arrangements made to secure its observance ... .”

17	The University had a financial memorandum which required the Vice Chancellor to satisfy himself that the Union had appropriate arrangements for good financial management.  In particular paragraph 8 required the Union’s Executive Committee to be responsible for all income and expenditure of the Union and for “ensuring the propriety of expenditure of all funds received from the [University] and compliance with conditions attached to the funding”.  Paragraph 23 required “The Union to seek the Vice Chancellor’s approval to any leasing arrangements with an annual rental exceeding £500”.  It was not disputed that the limit of annual rental expenditure for which approval had to be sought, had increased to £1,000 by 1995/96.

18	The Union was an unincorporated body.  Although it was not a registered charity it was treated as a charity by the Charity Commissioners.  The major part of its income came from university funds which were charitable funds.  Members of the Union’s Executive were regarded by the Charity Commissioners as the Charity Trustees of the Union.  The Union was governed by an Executive Committee which included Sabbatical Officers who were deemed to be students of the University under Article 2:1.  

19	Clause 5 of the Constitution provided that only full-time and part-time members of the University were members of the Union.  Clause 6 of the Constitution provided that the supreme governing body of the Union will be a general meeting of members.  It provided that there should be an elected President; he would hold a Sabbatical post.  There should also be an elected Sabbatical Vice President for Societies and Services; there were other Sabbatical positions including a Communications Officer.  Only full-time members of the Union were eligible to stand for election to Sabbatical posts.  Clause 7 of the Constitution deals with finance.  The Vice President of Societies and Services was charged with being responsible for keeping proper accounts and financial records.  Clause 10 deals with constitutional amendments:

“This Constitution and the attached regulations may be amended at a General Meeting of the Union ... .”

Clause 12 provides:

“This Constitution or the attached regulations shall not be amended by any other procedure than those specified above and no amendment shall be valid until ratified by the Board of Governors of the University.”

20	The Constitution contains Regulations which set out the responsibilities of, inter alia, the Vice President Societies and Services and of the Communications Officer.  Sabbatical Officers held their position by virtue of having been elected as such to the Executive.  Section 5 of the Regulations deals with finance.  Paragraph 5(ii) provides that in the case of all orders for goods over £20 and all contracts, the contract is required to be signed by any of the following “General Manager, Treasurer, President, Vice President Societies and Services ...”.  By virtue of paragraph 7(ii) purchases are to be from approved suppliers:

“All items purchased and all services required by the students union shall be ordered from suppliers who offer the cheapest possible purchase price for the required quality of the type of goods or services.  The Executive Committee or, in its absence, the Treasurer or the President will be required to approve all suppliers and all changes of suppliers and thereafter all purchases shall normally only be placed with such approved suppliers.”

21	The financial relations between the Union and the University were governed by a series of documents which we need not set out in detail, including the financial memorandum to which we have referred (which refers specifically to the Attorney General’s guidance on expenditure by Student Unions (referred to in paragraph 20(b) of the Decision)).  Other relevant financial documentation is to be found in the Higher Education Funding Council for England’s Audit Code of Practice and the Statement of Recommended Practice Dealing with Accounting in Higher Education Institutions published by the Committee of Vice Chancellors and Principals of UK Universities.  

22	There was also a staff/student protocol relevant to issues of instructing Union staff, the conduct of Officers and staff, and procedure where staff and Officers disagreed as to whether a payment of funds was ultra vires.  (see paragraphs 39 and 42 of the Decision).  This provided for determination of certain disputes by a nominated independent solicitor.

23	In the spring of 1995 Mr Anyanwu and Mr Ebuzoeme were elected as Sabbatical Officers.  Mr Anyanwu was Communications Officer and Mr Ebuzoeme Vice President (Societies and Services).  They were both issued with contracts of employment, for a fixed term from 1 August 1995 to 31 July 1996.  They were required to perform the duties:

“As outlined in the Regulations of the Student Union governing the Executive Committee and such other duties as may be required by either the Constitution, Rules and Regulations of the Student Union or by the membership through the properly constituted committees and decision-making bodies of the Student Union”.

Clause 14 set out a Disciplinary and Grievance Procedure.  Clause 15 provided for termination:

“The employee shall give the Executive Committee not less than four weeks notice of his or her wish to terminate this contract and the Executive Committee may in exceptional circumstances determine as valid by the Student Representative Council waive the requirement for notice before the employee can terminate this contract.
The Student Union may terminate this contract at any time following a final and binding motion of no confidence as defined and conducted in accordance with the Student Unions Constitution, Rules and Regulations and, in this event, the officer shall be entitled to the equivalent of four weeks pay in lieu of notice.”

24	We now set out in brief a narrative of events.  Details can, of course, be found in the Decision of the Employment Tribunal.

25	In 1995 the Union’s student body appears to have had a majority of ethnic minority students.  The Union Executive for 1994/95 had a white majority, although there was substantial ethnic minority representation.  Mr Anyanwu and Mr Ebuzoeme were members of a slate known as “Change 95”, mainly but not entirely, drawn from ethnic minorities.  In April 1995 the slate was successful in Union elections and Mr Ebuzoeme was elected to the Sabbatical post of Vice President responsible for Services and Societies and Mr Anyanwu to the post of Communications Officer.  

26	The election caused some disquiet among sections of the student body; there was an unsuccessful appeal over the election result and the past Executive showed a marked reluctance to assist the new Executive in the hand-over of responsibilities.  The new Executive almost immediately adopted a confrontational approach in its relationships with the University.  

27	Mr Anyanwu and Mr Ebuzoeme were issued with their written contracts on 1 August 1995.  We have already referred to the relevant provisions of these contracts.  Relations between the Executive and Mr McCormack rapidly deteriorated.  Mr Ebuzoeme subsequently claimed (his evidence being rejected by the Employment Tribunal) that Mr McCormack claimed to have been a former South African police officer working for the apartheid regime.  On other occasions he was accused of having been an army officer or apartheid worker who knew how to deal with “clever coons”.  These allegations were rejected in detail by the Employment Tribunal.  However, it is clear that the Executive, including Mr Anyanwu and Mr Ebuzoeme, soon came to consider that Mr McCormack’s conduct towards the Executive which included the giving of advice not to its liking, was the result of his disapproval of the fact that it had a black majority.

28	In the autumn of 1995 relations between the Executive and the University also deteriorated quickly.  There were concerns expressed by the University over the Union’s financial controls and more significantly, the University decided to reduce its subvention grants because of spending cuts imposed upon the University on all its departments, its own income having been reduced.  This decision was vigorously challenged by the Executive.  The grant was also paid late and in instalments.  The Employment Tribunal find as a fact (paragraph 164 of the Decision) that this action was not carried out on the grounds of the racial composition of the Executive Committee or the race of the Applicants.  The University also determined on the advice of its Auditors to consolidate its accounts with those of the Union.  

29	The Executive appointed “Community Advocacy and Outreach Consultancy” to represent the Executive “in its affairs and matters arising” at its meeting of 26 September 1995.

30	Also in the autumn of 1995 complaints were made about members of the Executive to the President of the Union, Mr Bhunnoo and to the Vice Chancellor.  These complaints included complaints about financial matters.  

31	Relationship with Mr McCormack deteriorated further as can be seen from a letter written by Mr Ebuzoeme on 27 October 1995.  Mr Ebuzoeme said:

“To take this memo further, permit me to state that your actions for the past five to six weeks seem to suggest an overtone of racial superiority in most of my dealings with you and to an extent other Executive Officers.  It is one thing to say I’ve worked, lived and interacted with “people of colour” but it is another, which I have identified as one of a major problem (as I see) to be in a position where you have to take directives from people of colour.”

32	In October 1995 a long-running dispute over photocopying machines began; we will deal with the question of the photocopiers at a later stage in this decision.  

33	In November 1995 the University began a value for money study; the Executive objected and threatened to challenge the University’s actions in the High Court.  When an audit team presented itself at the Union it was turned away, contrary to the advice of Mr McCormack who had enlisted the assistance of the Solicitors to the National Union of Students.  It was only in January after the University had threatened legal action that the Union withdrew its opposition.  The dispute, however, was not in fact resolved.  

34	On 14 December 1995 there was an incident involving Mr McCormack and Mr Ebuzoeme at which Mr McCormack alleged he had been assaulted and he made a formal complaint to the Union President, Mr Bhunnoo, and also to the Police.  (Mr McCormack withdrew his complaint to the Police in case it might damage Mr Ebuzoeme’s legal career).  On 15 December 1995 an incident took place outside the Union.  One student is said to have assaulted another.  A police officer (PC Godward) happened to be passing.  His account (which was vigorously challenged by Mr Ebuzoeme) is that he was prevented from entering the Union building by Mr Ebuzoeme and was abused by Mr Ebuzoeme and other students.  PC Godward considered Mr Ebuzoeme had committed the offence of affray.  The incident was reported to the University.  

35	On 4 January 1996 Professor Watkins suspended Mr Ebuzoeme from the University, having regard to allegations that he had physically threatened a member of staff and a policeman.  Mr Ebuzoeme wrote to deny the allegations and Community Advocacy and Outreach Consultancy wrote on his behalf that he would not attend a disciplinary meeting as Professor Watkins requested, because to do so would amount to acquiescence in his jurisdiction and Mr Ebuzoeme’s waiving his right to insist on correct procedures.  Mr Ebuzoeme was also arrested in relation to the events of 15 December.  The Executive resolved to challenge Mr Ebuzoeme’s suspension and that of another Executive member, to instruct solicitors and seek counsel’s opinion on seeking a judicial review of the University’s decision to cut its funding and to change the manner of payment of the subvention grant.  On 12 January 1996 the Executive contacted the CRE.  So far as one can tell the complaint related only to the conduct of the University, as opposed to the Union.  The CRE became involved to some extent and corresponded with the University and the Executive but ultimately took no action.

36	In January 1996 the University asked the NUS to conduct an enquiry into various complaints that had been received against members of the Union Executive.  A meeting of the Executive took place on 7 February 1996 at the Conway Hall.  Its minutes record that Mr Anyanwu and Mr Ebuzoeme proposed that the Union instruct solicitors “to take out an immediate injunction against the University in respect of the internal audit, the matter of [Mr Ebuzoeme] ... and to seek judicial review ... ”.  The Union then would not permit the audit team to inspect its minutes.  Proceedings were issued in February 1996 by some members of the Executive against the University to restrain the University from auditing or continuing the audit of the Union’s books of account, representing to employees of the Union that the University had any authority or control over them and from altering the payment arrangements of its funding from a termly basis to a monthly basis.  An injunction was refused ex parte by Sachs J and it came before Butterfield J on 12 February inter partes.  He rejected the application saying that the proceedings were wholly misconceived.  He ordered the named plaintiffs (who were described in the writ as “trading as South Bank Students Union”) to pay the costs.  There is some dispute (which is not material for present purposes) as to which members of the Executive did in fact approve the commencement of proceedings.  However, payment of the plaintiffs’ costs gave rise to further dispute.  There was doubt and dispute as to whether the Union could properly make the payment.  In accordance with the financial protocol the question was put to a firm of solicitors, Messrs Kingsford Stacey, for its consideration.

37	A meeting of the Executive took place on 13 February 1996.  The Employment Tribunal concluded that this meeting was not properly convened (see Decision paragraph 150(137)).  This meeting purportedly resolved that the Union should pay the plaintiffs’ costs and that Mr Ebuzoeme should be responsible for authorising the costs.  The motion provided “that this Union refuses to co-operate with the University with regard to changing of the mandate for the authorisation of payment of cheques”.  The motion also purported to express no confidence in the President, Mr Bhunnoo, and “removes all responsibility of authorisation from him and calls upon him to cease office immediately”.  

38	The University’s Solicitors, Messrs Lawford & Co, commenced correspondence with the Charity Commissioners expressing the concern of the University for the Union’s funds and invited the Charity Commissioners to intervene.  The intention of the Executive to ensure the payment of the plaintiffs’ legal fees which the University considered should not be paid by the Union, was also drawn to the attention of the Charity Commissioners. 

39	On 21 February 1996 the Charity Commission made an order freezing the Union’s bank account; it was made clear that it was the issuing of a cheque to Wayne Thompson & Co, the plaintiffs’ solicitors, that had led the Commissioners to take this step.  

40	On 22 February 1996 Professor Watkins suspended Mr Anyanwu and four other members of the Executive on the grounds that there was a prima facie case they had sought to misappropriate union funds in relation to the issuing of a cheque in favour of Wayne Thompson & Co.  Professor Watkins’s view may have been based on the premise that the minutes of the meeting of 6 February were false (as asserted by some members of the Executive).  Professor Watkins also wrote to Mr Ebuzoeme, who was already suspended, to inform him that he was considered to have been involved in the attempted misappropriation of funds.

41	On 23 February 1996 Messrs Deloitte & Touche, which had carried out the investigation into the finances of the University and the Union, presented its report.  None of the Union Sabbatical Officers, apart from Mr Bhunnoo, had met the enquiry team.  The report noted that on one occasion Mr Ebuzoeme had employed his fiancée in a secretarial capacity during September and October 1995 in unsatisfactory circumstances.  It also noted that the photocopier leases (which we shall come to in due course) had not been signed in the approved manner and that there was evidence to suggest they might not represent value for money.

42	On 29 February the Charity Commissioners suspended Mr Ebuzoeme and Mr Anyanwu and four other members of the Executive from the exercise of Trusteeship rights over Union funds and the Charity Commission appointed as additional Trustees Mr Elger (of the NUS) and Maggie Hammond to serve with the remaining members of the Executive.

43	On 5 March 1996 Mr McCormack wrote to the Charity Commission (see page 430) relating to the photocopier contracts suggesting “that at least one of the photocopying contracts has been dealt with fraudulently”.  This letter played a prominent part in the appeal (if not in the hearing before the Employment Tribunal) because the Applicants maintain that it was an act of discrimination or victimisation on the part of the Union against them and it was not considered by the Employment Tribunal.

44	On 12 March 1996 Messrs Kingsford Stacey wrote to the University to advise there was no reason why the fees of Wayne Thompson should not be paid.  This letter was only produced on the third day of the hearing giving rise to allegations that it had been deliberately suppressed; an allegation that the Employment Tribunal specifically rejected.  

45	On 14 March 1996 Professor Watkins wrote to the Applicants to inform them he was initiating disciplinary action against them and invited them to attend an interview on 28 March.  The allegation against Mr Anyanwu was limited to an allegation that he had signed the contract to lease a photocopier which had not been approved in the manner required by the financial regulations.  Allegations against Mr Ebuzoeme were wider and included the employment of his fiancée and involvement in a number of cases of threatening behaviour including behaviour directed to Mr McCormack.

46	On 21 March 1996 the University imposed a new Constitution upon the Union with retrospective effect to 1 March 1996.  The Interim Constitution was to remain in place until a new Constitution was adopted.  An Interim Executive was appointed including five members of the Executive who had not been suspended together with Maggie Hammond and Ben Elger.  The Constitution was in many respects similar to the earlier Constitution.  Thus, by clause 8 it was provided that “only full members of the Union shall be eligible to stand for election to Sabbatical posts on the Executive Committee of the Student Union”.  The Constitution contained a provision that it should be deemed to be amended if such amendment is required by the Board of Governors.  Clause 11.3 of the Interim Constitution identifies the Interim Executive and specifically provides:

“The officers of the student union in post at the beginning of the interim period are hereby removed from office.”

These included both Mr Anyanwu and Mr Ebuzoeme.  The Employment Tribunal found that the Interim Executive did not at any stage take steps to oppose the imposition of the interim constitution as there were no effective steps which could have been taken as the Board of Governors was entitled to impose the Interim Constitution and because they were “deeply conscious of their duties as Trustees (which had been emphasised to them by Mr Ralph [of the Charity Commission] as to the proper expenditure of charitable money, eg to avoid litigation which would have been misconceived)”.  The Employment Tribunal also considered that “the failure of the Interim Executive to object to the imposition of the Interim Constitution arose from their treating it as an accomplished fact.  It was not based on the racial composition of the suspended Trustees ... or on the race of the Applicants”.  The Interim Executive regarded the expulsion of the Applicants from the University as giving them no option but to stop payment of the Applicants’ salaries as Sabbatical Officers of the Union. 

47	We also draw attention to paragraph 164(ii) of the Decision:

“(ii)	In the adoption of the Interim Constitution.  What, we ask, could the interim executive have done once the Interim Constitution had been imposed by the university?  It was by virtue of the Interim Constitution that the interim executive existed as a body.  It was now their task to run the union and to see to the proper use of its charitable funds.  Technically, of course, they could have embarked on litigation with the university, but their prospects of success would have been non-existent.  Their task was to keep the union operational until a new Constitution had been drafted and approved by referendum.  Mr Elger’s particular brief on behalf of the NUS was to see that the very existence of the union was preserved.  It is clear that the interim executive supported the short-term objects of the Interim Constitution, namely, to reconstruct the union as an effective body.  We have heard evidence from five out of the seven members of the interim executive, and we accept their explanations for their support of the Interim Constitution.  We do not draw the inference that they accepted the Interim Constitution because of the Applicants’ race.  We think that they accepted it because it enabled them to reconstruct the union, which the conduct of the Applicants had left effectively non-operational.”

48	On 22 March Professor Bernbaum wrote to the Applicants and other suspended members telling them that they were no longer Officers of the Executive and that they might not use Union notepaper nor represent themselves as members.  This gave rise to fairly heated correspondence, in particular a letter of 24 March from Mr Ebuzoeme to Professor Watkins in which he refers to his “fascist and arrogant” manner and again he used the expressions “evil and corrupt-minded men like yourself”; “in your blind madness”; “in your blind rage and hatred of black people”; and “fascists such as you and the Vice-Chancellor”.  He referred to Mr McCormack as “a former South African apartheid worker” and referred to Mr McCormack’s “Gestapo tactics”.  The letter concluded:

“Isn’t it about time that the university management come clean and formulate a policy which would debar minority students such as myself from encroaching into key management, financial and economic positions and it should be exclusive for white students.  ... .”

On 28 March 1996 the disciplinary hearings took place, neither Applicant attended, the charges against them were proved and they were expelled.

49	The most critical letters in the history of these proceedings were written to the Applicants on 2 April 1996 and those letters are from Maggie Hammond on behalf of the Union to both Mr Anyanwu and Mr Ebuzoeme:

“I have been informed by the University that you have been expelled from the university as from 29 March 1996.
I have instructed the Finance Office to suspend any further payments to you forthwith.  The union will send you any outstanding monies owed to you, together with your P45.
I will take legal advice on whether the union is able to withhold payment in lieu of assets/equipment you have failed to return.  I will contact you directly on this point.
Any enquiries on this matter should be addressed to me in writing.”

50	The Applicants challenged their expulsions in the High Court but they were refused permission for a judicial review.  Mr Ebuzoeme appealed against the decision and his appeal was dismissed.

51	It is noted that Mr Ebuzoeme had been charged with causing an affray in connection with the events of 15 December 1995; the Employment Tribunal noted and had pleasure in doing so, that he was then acquitted of the charge.  We should before concluding the chronology note a letter written by the Secretary to the Board of Governors of the University, of 24 July 1996, to the Metropolitan Police informing the Police that Mr McCormack was prepared to give a statement in relation to the drawing of the cheque for legal fees.  At the time this letter was written Mr McCormack had resigned as General Manager of the Union.  In the course of their submissions the Applicants maintained that this letter was evidence of post employment victimisation.

52	We need to consider the decision of the House of Lords.  The principal issue before the House of Lords related to the question as to whether it was appropriate to strike out the University as a Respondent.  The case against the University was that it had knowingly aided discrimination by the Union for which the University would be liable pursuant to section 33(1) of the Race Relations Act (“the Act”).  The House of Lords gave guidance as to the meaning of the phrase “knowingly aids”.  We need not at this point of our decision refer to its reasoning.  We note at this point in time, as Lord Bingham observed:

“There is an unresolved question whether by these letters [the letters of 2 April 1996] the students’ union dismissed the appellants, or whether the students’ union treated the contract of employment as frustrated by supervening impossibility of performance.  That is not an issue before the House.”

Lord Bingham suggested that three questions needed to be asked:

(a) What was the act of the Union made unlawful by Part II of the Act which it is said that the university knowingly aided the union to do? 

(b) What is it alleged that the University did which knowingly aided the doing of that unlawful act?

(c) Do those allegations bring the Applicants’ complaints against the University within section 33(1)?

It is clear that the answer given by the Applicants to the first question was that the unlawful act was their dismissal by the Union, which was on discriminatory racial grounds.  

53	We note that Lord Steyn described liability under section 33(1) as “a form of derivative liability predicated on the commission of an unlawful act by another person. ... ”.

The Decision of the Employment Tribunal 

54	The Applicants’ case was primarily that all matters of which they complained were the result of discrimination on the grounds of race and the determination by the University, Mr McCormack and some members of the Executive (including Maggie Hammond) to remove the black majority and replace them with a white majority.  We have already observed that the Applicants were free with accusations against Mr McCormack and others of racial bias.  The Union was said to have been guilty of discriminatory conduct:

(a) in dismissing the Applicants on the ground of their race;

(b) in acquiescing in the imposition of the Interim Constitution;

(c) in its failure to investigate disciplinary matters alleged against them rather than simply accepting the results of the University’s investigations, and

(d) by victimising the Applicants because they had complained of race discrimination to the CRE and others.  

The Applicants also asserted that they had been wrongfully dismissed.

55	In relation to the University, the principal complaint of the Applicants was that, by imposing the new Constitution and expelling them, it had assisted the Union in its discriminatory conduct.  It also encouraged discriminatory conduct on the part of the Union by negative and hostile conduct towards the Executive and the encouragement of the former members of the Executive and others to make complaints against them.

56	The case for the Union and the University was that there was no discrimination by the Union and that there could have been none while the Applicants formed part of the governing majority on the Executive.  It was thus only after the imposition of the new Constitution that it was theoretically possible for there to be any discriminatory conduct and there was none.  The University’s case was that it did not aid any discriminatory conduct, as there was none and, even if contrary to its submission that there was such discriminatory conduct, it was not knowingly aided by the University.

57	The Employment Tribunal rejected all allegations of discriminatory behaviour in the case of all of the employees and representatives of both the University and the Union.  It held that the suspensions by Professor Watkins were not racially motivated nor were any acts of the Vice Chancellor.

58	The Employment Tribunal found there was no evidence that any of the actions taken by the University or the Union were taken because the Applicants and others had complained to the CRE of race discrimination and the Employment Tribunal found expressly that they were not taken for that reason.  So far as the imposition of the new Constitution was concerned the Employment Tribunal concluded (see paragraph 181 of the Decision) that the University was concerned that the Executive were so conducting the affairs of the Union as to put the charitable funds of the Union (and therefore also possibly those of the University at risk).  A major part of the University’s fear was based on the way the Executive in general and Mr Ebuzoeme in particular (although aided by Mr Anyanwu and Mr Gillespie (another “slate” member of the Executive)) had insisted on pursuing the photocopier contracts against all professional advice.  The University had also been advised that members of the Executive who had brought injunction proceedings against the University were not entitled to have their costs paid by the Union and the strenuous attempts of Mr Anyanwu to procure payment of those costs was another cause for concern.  The Employment Tribunal accepted that that was what led the University to invoke the help of the Charity Commission through its solicitors and to the suspension of the Applicants and others from the exercise of their Charitable Trusteeship of the Union:

“We accept that these matters led to the imposition of the Interim Constitution.”

The Employment Tribunal was satisfied that the issues relating to the photocopier contracts and in Mr Ebuzoeme’s case other matters, led to Professor Watkins taking disciplinary proceedings against the Applicants (and Mr Gillespie who was white):

“We are satisfied that the expulsions were based on the prima facie evidence provided by the Deloitte & Touche report and the NUS report, and were not because the Applicants were black.  It seems to us that the university has acted properly throughout, and has not discriminated against the Applicants on the grounds of their race.  Nor has it aided the union to discriminate against them.  What the university did was to act in pursuance of its own disciplinary procedures.  Doing so produced results, the effect of which the union realistically recognised.  In our view, that cannot be said to be knowingly aiding discrimination by the union, even if such discrimination had, contrary to our view, taken place.”

The Employment Tribunal had in passages which we cited earlier made clear its finding that in any event there were no effective steps the Interim Executive could have taken to challenge the imposition of the Interim Constitution.  

59	The Employment Tribunal identified a number of matters that required specific consideration at paragraph 163 of its Decision.  These matters were as follows:

(a) the result of the imposition of the Interim Constitution was to replace a black majority Executive by one with a white majority which acquiesced in the imposition of the Interim Constitution (despite the fact that it was backdated) with the result that the Applicants were deprived of their sabbatical posts, and thus treated less favourably than the surviving white members of the Executive;

(b) how the letters of 2 April came to be written;

(c) the fact that the Applicants’ contract of employment came to an end, and

(d) the fact that the Union did not carry out its own investigative procedure before the Applicants’ employment came to an end.

In relation to the first issue, this was addressed at paragraph 164(i).  The Employment Tribunal concluded:

“We see no evidence that they were motivated by considerations of the Applicants’ race in so doing, and, although their actions resulted in there being a white majority of trustees in place of a non-white majority, we are not prepared to draw the inference that they acted on racial grounds.  We are satisfied with the explanation put forward by the Respondents for their appointment.”

At paragraph 164(ii) the Employment Tribunal concluded that:

“... the interim executive supported the short-term objects of the Interim Constitution, namely, to reconstruct the union as an effective body.  We have heard evidence from five out of the seven members of the interim executive, and we accept their explanations for their support of the Interim Constitution.  We do not draw the inference that they accepted the Interim Constitution because of the Applicants’ race.  We think that they accepted it because it enabled them to reconstruct the union, which the conduct of the Applicants had left effectively non-operational.”

The Employment Tribunal considered that it was unrealistic to suggest that the Interim Executive should have investigated the complaints against the Applicants.  Substantial investigations had been carried out by Deloitte & Touche and by the National Union of Students and in the view of the Employment Tribunal it would have been “otiose” for the Union to carry out its own investigations.  It was entitled to rely on the investigations which had been carried out on behalf of the University.  The Employment Tribunal concluded:

“We think that the fact that the interim executive did not investigate the complaints against the Applicants is explained by their reliance on the investigations which had already been carried out and had nothing to do with the racial origins of the Applicants”

60	The Employment Tribunal went on to find that the contracts of employment had been brought to an end by frustration; we will return to this important matter shortly.  So far as the letter from Maggie Hammond of 2 April was concerned, the Employment Tribunal conclude that Miss Hammond was not only a Trustee of the Union, but by virtue of clause 11:3 of the Interim Constitution a member of the interim executive which was specifically described as “the supreme governing body” of the Union.  The Employment Tribunal considered she would necessarily have had the appropriate status to write such a letter and the Employment Tribunal accepted she wrote it after discussion with other members of the Interim Executive and with their agreement.

61	The third matter required to be considered was the fact that the contracts of employment came to an end; we shall return to this issue shortly.  The fourth issue, concerned the fact that the Union did not carry out an investigative disciplinary procedure before the Applicants’ employment came to an end.  We have already drawn attention to the Employment Tribunal’s findings at paragraph 164(iii) of the Decision.

62	The Employment Tribunal directed itself by reference to sections 1, 2, 4 and 33 of the Act as well as the relevant authorities dealing with the drawing of inferences.

63	The Employment Tribunal considered that as Mr Anyanwu and Mr Ebuzoeme had been until March 1996 members of the Executive and thus part of the directing mind of the Union, they could not discriminate against themselves.  We are not happy with this conclusion.  We put the example to Mr Afeeva of a doorman employed by the Union refusing to accept the Applicants into the bar on the grounds of their race.  Mr Afeeva conceded that the Union might be responsible under section 32 of the Act, for his actions.  It seems to us, therefore, that if there were discriminatory acts committed by the employees or officers of the Union, in an appropriate case the Union might find itself vicariously liable under section 32.  However, the Employment Tribunal’s findings were that no such acts had occurred.  We will consider later the issue relating to the letter written by Mr McCormack of 5 March 1996.

64	The most crucial finding made by the Employment Tribunal is that the Applicants’ contracts of employment were frustrated.  The Employment Tribunal in coming to this conclusion were directed to the decision of the House of Lords in Tarnesby v Kensington Area Health Authority [1981] ICR 615.  The plaintiff was a part-time Consultant Psychiatrist at a hospital.  By virtue of section 28(1) of the Medical Act 1956 “no person who was not fully registered should hold any appointment as physician, surgeon or other medical officer ... (c) in any hospital ... ”.  The plaintiff was found guilty by the disciplinary committee of the General Medical Council of infamous conduct and his name was erased from the Medical Register.  He appealed to the Judicial Committee of the Privy Council who reduced the sentence to one of suspension of his registration in the register for 12 months.  He was informed by the defendant Hospital Board that in view of his suspension they regarded his contract of service as frustrated and therefore at an end.  The plaintiff brought an action against the defendant seeking, inter alia, a declaration that his employment should have been or had continued.  He was unsuccessful in both the High Court and the Court of Appeal but appealed to the House of Lords.  The Employment Tribunal quoted from the speech of Lord Lowry at page 619:

“I would finally observe that, in my view, this is not a case of frustration as that term is understood in the law of contract.  The appellant’s suspension from the register was not an unforeseen or unprovided-for event brought about by legislation or otherwise but (as erasure had always been) was a contemplated misfortune the effect of which was clearly preordained.
The mistaken idea or hope that it was or might be a case of frustration and presented as such may have been encouraged by the board’s use of the word ‘frustrated’ in their letter to the appellant ... further nurtured by the employment of similar terms in subsequent correspondence.  It was also in vain to rely on the frustration cases for the interpretation of section 28(1):  the two arguments have no common ground.”

They also cited from the speech at page 620:

“The effect, under section 28(1), of the erasure of a doctor’s name from the register on any contract of employment of the doctor as a medical officer in a hospital of a kind referred to in section 28(1)(c) can never, it seems to me, have been in any doubt whatever.  The contract was terminated by operation of law.”

Lord Lowry continued later:

“It follows, inevitably in my view, that suspension of registration has exactly the same effect as erasure in automatically terminating a relevant contract of employment.”

The Employment Tribunal also cited from the speech of Lord Brandon in Paal Wilson A/S v Hannah Blumenthal [1983] 1 AC 854 at 909:

“... there are two essential factors which must be present in order to frustrate a contract.  The first essential factor is that there must be some outside event or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting, which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it.  The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without either the fault or the default of either party to the contract.”

65	The Employment Tribunal did not consider that this could be a case of what was described as “classical” frustration having regard to what Lord Brandon had said, because members of the Interim Executive had no doubt as to why the Interim Constitution had been imposed, namely because of the perceived misconduct of, among others, the Applicants.  The Applicants submitted to the Tribunal that Tarnesby was a case of impossibility created by statute.  The Employment Tribunal considered that the ratio of the decision did not apply in the present case.  However, it held that there was a variety of frustration that was apposite to the facts of this case, namely frustration by impossibility of performance.  This operated even where one of the subsidiary causes of the impossibility was the default of one of the parties.  The Employment Tribunal considered:

“To that species of frustration, we think Lord Bingham’s phrase ‘frustration by supervening impossibility of performance’ precisely applies.”

The Employment Tribunal then made these crucial findings, at paragraphs 174 and 175:

“174	It does not seem to us to be realistic to ignore the fact that the effect of the imposition of the Interim Constitution was to remove both AA and AE from their sabbatical offices:  in effect, from the duties which they were bound to perform under their contracts of employment.  That in turn had the effect of putting an end to AA’s ‘deemed’ student status.  AE, who was a student by virtue of the fact that he was pursuing the CPE course, had his student status removed when he was expelled from the university on 28 March.  
175	So the realistic position is that, by 2 April 1996, neither Applicant was in a position to perform his duties under the contract.  It seems to us that the contract had become impossible of performance and we gratefully accept Lord Bingham’s expression of ‘frustration by supervening impossibility of performance’.  ... .”

66	The Employment Tribunal considered that Miss Hammond’s letters of 2 April merely recognised that situation.  She did not use the word “frustration” because she told the Tribunal and the Tribunal accepted that it did not occur to her to do so, although she thought that “frustration” was really what had happened.  She did not take any advice on the situation.  She and the other members of the interim executive had simply taken the view that the contracts were now at an end by reason of frustration (using the expression loosely) and that it would be a misuse of charitable funds to go on paying the Applicants.  The intention was to notify the Applicants of the cessation of payments, although Miss Hammond used the word “suspend”.  The intimation that the Applicants would receive their form P45 reflected the Interim Executive’s view that the contracts had come to an end.  At paragraph 176 the Employment Tribunal concluded:

“176	... that the letters of 2 April were, whatever Miss Hammond and the Applicants may have thought at the time or subsequently, not letters of dismissal, but recognitions that the Applicants’ contracts of employment had come to an end by reason of supervening impossibility of performance.  We see this as a termination by operation of law, as much as termination by ‘classical’ frustration or by statutory impossibility,  In our view, the union did not dismiss the Applicants:  it cannot therefore have discriminated against them by dismissing them. ... .”

67	The Employment Tribunal did say that it found the question of frustration or termination by operation of law extremely difficult to resolve and that it would have welcomed professional legal submissions on behalf of the Applicants on the topic.  

68	The Employment Tribunal went on to find that, as there was no claim for discrimination against the University, the claim that the University had knowingly aided the Union in a discriminatory act necessarily failed.  The Employment Tribunal opined that the Applicants’ complaints against the University might have more properly been brought in the County Court, pursuant to section 17 of the Act and had such an application been made the County Court could have considered whether the University’s acts were substantive acts of discrimination.  The Employment Tribunal could only consider whether those actions were acts of “aiding”.  The Employment Tribunal considered that the only acts which could possibly be said to be acts of aiding might have been the imposition of the Interim Constitution and the expulsions:

“We are satisfied with the university’s explanations of why they took the various actions of which the Applicants complain ... .  We should certainly not have regarded any of the earlier matters as aiding acts of discrimination by the union, assuming there had been such acts.”

The Employment Tribunal went on to make the findings which we have already referred to as to the reasons for the imposition of the Constitution and also held that “the University has acted properly throughout, and has not discriminated against the Applicants on the grounds of their race.  Nor has it aided the union to discriminate against them”.  

69	The Employment Tribunal rejected the claim for victimisation which it understood to have been brought only against the University, both on the basis that the University imposed the Interim Constitution on the Union thereby depriving the Applicants of office, and also on the basis that it expelled the Applicants, because they had made complaints of racial discrimination or because they had complained to the CRE.  The Employment Tribunal roundly rejected the suggestion that anything the University did was done because of any complaints made by the Applicants; the disciplinary proceedings against them were put forward on adequate and non-discriminatory grounds and the Interim Constitution was to protect the charitable funds of the Union:

“We are satisfied with the explanations of the university and therefore draw no inferences of victimisation.  We are unanimously of the view that there is no substance at all in the claims of victimisation.  We add that there is, in our view, no basis for a claim of victimisation by the union.  No complaint of race discrimination was made against the union by the Applicants before the Originating Applications, nor did their complaints to the CRE involve the union.”

70	The Employment Tribunal finally dismissed the application against the Union for breaches of contract on the basis that the contracts had been terminated by operation of law or if the Tribunal was wrong about that, because they were terminated by the act of the University in imposing the Interim Constitution.  It accepted a submission by Mr Afeeva to the effect that it was trite law that where a contract of employment was frustrated the termination was by operation of law and could not be the subject of a successful wrongful dismissal claim.  

71	The Employment Tribunal concluded by noting that the allegations of discrimination had been brought against a multi-racial Students Union and a University which was more than most, multi-racial in both the student body and the teaching body.  The multi-racial composition of both bodies was so striking that it must, in the view of the Employment Tribunal, militate very strongly (although not of course conclusively) against drawing inferences against either body that they acted in a way which amounts to race discrimination against either of the Applicants.

The issues on appeal

72	We note that the Grounds of Appeal, Skeleton Arguments and the submissions that we heard do not necessarily follow the same order and are not always consistent.  We have attempted to isolate the principal points.  We did ask the Applicants at the outset to make their submissions by reference to their Skeleton Argument and Notices of Appeal.  They did not do so.  On occasion we found the submissions somewhat confusing.  The submissions by the Applicants and their reply lasted for more than three of the four days allotted for the appeal.  We hope we have done justice to their submissions and that we have isolated the points that require determination.

73	The principal issue raised by the Applicants is that the finding of the Employment Tribunal that they had not been dismissed, and that their contracts of employment had been frustrated was in error.  They raised a number of further points in connection with this issue.

(a) The University had no power to impose the new Constitution and even if it did, it could not have retrospective effect.

(b) The imposition of the new Constitution could not be regarded as a frustrating act.  There were no facts in any event that would justify the conclusion that the contracts of employment were frustrated.

(c) Frustration is not available as a defence to a discrimination claim under the Act.

(d) Fixed term contracts are incapable of being frustrated.

(e) The Employment Tribunal was not entitled to substitute its views for those of the Union and, in particular Maggie Hammond who believed that they were dismissing the Appellants.  

The Appellants then raised further points as follows:

(a) The imposition of the Constitution by the University was a discriminatory act in that it had the collateral purpose of removing the black majority from the Executive so that the Union assisted the University in its discriminatory conduct and the removal of the Applicants was an unlawful act of discrimination.

(b) The Employment Tribunal was wrong in law in failing to find that Mr McCormack’s letter of 5 March 1996 constituted an act of unlawful discrimination against the Applicants which the University knowingly aided.

(c) The Employment Tribunal was wrong in refusing to permit the Applicants to submit that matters arising after their dismissal did not amount to acts of victimisation.

(d) The Employment Tribunal should have found that the Applicants were subject to discrimination in the way they were treated in relation to the photocopier contracts as compared to a white comparator.

(e) The Chairman of the Employment Tribunal interrupted the proceedings by persistent and aggressive interventions on behalf of the Union and University.

(f) There should in any event be a reference of a number of points to the European Court of Justice.

74	We shall consider these points in turn and firstly deal with the issue of frustration.  We drew the attention of the parties to Professor Treitel’s work on frustration and force majeure and, in particular, paragraph 14-014 and the decision of the Court of Appeal in F.C. Shepherd v Jerrom [1987] QB 301 (which was cited by the Applicants).  In F.C. Shepherd v Jerrom [1987] QB 301 the Court of Appeal held that a contract of apprenticeship was frustrated when the employee was sentenced to a term of borstal training.  Although the three Lords Justices (Lawton, Mustill and Balcombe LJJ) gave differing reasons for their decision, the Court of Appeal was clear that a party could not rely upon his own default so as to assert that a contract of employment had not been frustrated.  If, what would otherwise be regarded as a frustrating event had occurred, it was no answer for the employee to say that it had been brought about by his default.  Professor Treitel has this to say of the case:

“The crucial point which emerges from Shepherd v Jerrom is that the rule is not that the fault of one party excludes frustration but is that a party cannot rely on his own fault as excluding frustration.  Where a party is prevented from performing his part of the contract because of his imprisonment for a criminal offence, it follows that that the second party cannot rely on the imprisonment as a ground of frustration, but the other party may be able to do so.”

We would not, therefore, be minded to agree with the Employment Tribunal that the contracts were not determined by “classic frustration” by reason of the Applicants’ default.  In our opinion the fact that the Applicants may have brought the imposition of the new Constitution upon themselves does not prevent the Union from asserting that the contract was frustrated if it had indeed become impossible of performance, without any default on the part of the Union.  The contracts of employment did not contemplate nor make provision for the imposition of a new constitution, the expulsion of the Applicants and their removal from office.  In any event it was the act of the University that brought about the frustration of the contracts.  If the Applicants were at fault, then they are not permitted to rely upon that default to assert that their employment came to an end by reason of dismissal rather than frustration.  If they were not at fault, then the actions of the University over which the Union had no control make this a clear case of frustration by reason of impossibility of performance.  We have to say, however, that we regret that the Applicants did not have legal assistance in arguing this particular point.  The issue of frustration is important and raises issues of concern.  

The University’s power to impose the new Constitution

75	The Employment Tribunal found that the University was empowered to impose a new Constitution by section 22 of the 1994 Education Act.  The Applicants submitted that there was no power to impose the Constitution, let alone a power to impose it retrospectively but no authority was cited.  The Union and University submitted that there was power on the part of the University both to impose the Constitution and to impose it retrospectively.  The authority for the power to impose the Constitution, it was submitted, came from section 22 of the 1994 Education Act but no authority was cited for the power to impose the Constitution with retrospective effect.  

76	We are inclined to doubt whether there was power to impose the Constitution with retrospective effect but it seems to us that it is irrelevant in that the University, we conclude, did in fact have power to impose the Constitution.  Section 22 is quite clear.  We are satisfied that the Employment Tribunal was correct in its decision in this regard and that the powers given to the University by section 22(2)(b) and the general power on the part of the governing body to take such steps as were reasonably practicable to secure that the requirements set out in sub-section (2) are observed, justify the imposition of the Constitution.  We bear in mind that one of the requirements is that the Governing Body shall ensure that “(g) financial affairs of the Union are properly conducted....”.The Applicants argued that the Constitution could only be amended by the method set out in the Constitution itself; that it seems to us ignores the fact that the University had power, as we have found and as the Employment Tribunal held, to impose a new Constitution under section 22.

Was the imposition of the new Constitution a frustrating act and was there a factual basis for finding that the contracts of employment were frustrated?

77	It seems to us that the following facts are relevant.

(a) It was impossible for the Applicants to perform their duties because of the Charity Commission ban on their doing so, their expulsion by the University and the fact that they were banned from campus.

(b) The imposition of the new Constitution removed them as Sabbatical Officers; hence they could not perform their duties under the contracts.  Performance of those duties could only be performed by a Sabbatical Officer.

(c) Mr Anyanwu and Mr Ebuzoeme had ceased to be students.  Mr Ebuzoeme when he was expelled on 28 March and Mr Anyanwu when he was removed as a Sabbatical Officer.  It was only by virtue of his being a Sabbatical Officer that he was deemed to be a student.  Both the old and the new Constitution required Sabbatical Officers to be members of the University.

(d) The Applicants were unable to attend at the Union or its premises.

(e) The Union had been advised it could not pay the salaries of the Applicants after the imposition of the new Constitution.  We asked Mr Afeeva for authority for this proposition but he was unable to do more than show us letters from the Charity Commission asserting that the Trustees could not pay the Applicants after the imposition of the new Constitution and their expulsion.  We are minded to accept the Charity Commission was correct and that it would have been an inappropriate expenditure of Trust monies or charitable funds, although we would have welcomed being shown some authority. 

78	It was submitted that there was nothing in the Education Act 1994 that required Sabbatical Officers to be students.  The statute assumes this to be the case, however, but so far as concerned these Applicants the Constitution required Sabbatical Officers to be student members of the University and members of the Executive.  The Applicants had ceased to be members of the Executive and had ceased to be student members of the University.  The Applicants submitted that the facts of their case could be distinguished from Tarnesby v Kensington AHA (supra) because in that case there was a statutory prohibition whereas in the present case there was none.  Our attention was drawn to the authority of GMC v Goba [1988] ICR 885.  We did not consider this case of assistance. 

79	At one time we were almost persuaded that there was a dismissal in this case but upon reflection and after hearing Mr Afeeva’s submissions, we have come to the conclusion that the Employment Tribunal was correct.  The imposition of the new Constitution together with the removal of the Applicants as Trustees and their expulsion from the University left the Executive with no choice but to recognise that the contracts of employments had become incapable of performance and were in fact frustrated by reason of impossibility of performance.  The facts that we have set out, justify the Employment Tribunal’s conclusion that the contracts of employment were terminated and frustrated by reason of impossibility of performance.  We would adopt the analysis of Professor Treitel and hold that on the basis that if the Applicants were in some way responsible by their actions for the imposition of the new Constitution that would be no bar to an assertion by the Union that the contracts of employment were in fact frustrated.  We agree with the Employment Tribunal that Tarnesby v Kensington AHA does not assist the University or the Union.  It is a case of termination of a contract of employment by operation of law but not a case of frustration.  We do not consider that one can equate a statutory prohibition, as was the case in Tarnesby with the circumstances in this case.

Is frustration available as a defence to a claim for discrimination?

80	The Applicants submitted that in a claim for discrimination on the grounds of race, frustration is not a means of terminating contracts recognised by section 95 of the Employment Rights Act 1996 or by section 4(2)(c) and section 33 of the Race Relations Act 1976.  It was also submitted that frustration is not available as defence to a claim under section 32 of the Race Relations Act.  We are unable to agree that there is anything in the statutory provisions we have mentioned that would exclude from consideration questions of frustration when a court or tribunal may have to determine how a contract of employment has been terminated.  It will determine whether the termination was effected by operation of law or by dismissal.  We would in any event note that the Employment Tribunal found there was no discriminatory conduct on the part of either the University or the Union in relation to the suspension of the Applicants as Trustees of the Union by the Charity Commissioners, the imposition of the new Constitution, or the suspension and expulsion of the Applicants.  We consider that the definition of dismissal in section 95 of the Employment Rights Act is exhaustive as to what constitutes dismissal for the purposes of that Act.

81	The Applicants submitted that Lord Steyn, at paragraph 33 of the decision of the House of Lords, concluded that if the imposition of the new Constitution was a discriminatory act, then the University would be liable under section 33(1) for giving knowing assistance to the Union.  It was submitted that the Employment Tribunal should have considered whether the imposition of the Constitution was a discriminatory act and if so whether the Union, by acquiescing or assisting in the imposition of that Constitution had also made itself liable for the University’s discriminatory conduct.  Mr Anyanwu told us that the error of the Employment Tribunal in finding that the imposition of the new Constitution was not discriminatory was central to the case.  We are bound to say that we cannot see how a finding of the Employment Tribunal that the imposition of the new Constitution by the University was not discriminatory can possible be overturned.  Even though the Applicants vigorously asserted that this was not the case and that it was an act of discrimination, there was a wealth of evidence before the Employment Tribunal which entitled it to conclude, as it did, that the imposition of the new Constitution was not discriminatory.  We have already referred to paragraph 181 of the Decision.

Frustration of fixed-term contracts

82	In paragraph 27 of their Skeleton Argument the Applicants submit:

“As the Applicants’ contract was for a fixed period; the employment could not be lawfully terminated before the end of that period unless of course, the Applicants were in breach of contract or unless the contract provides for prior termination ...  .”

The Applicants went on to submit that the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 which provide that fixed-term workers should not be treated less favourably than other permanent staff, supports their case.  We are unable to understand the relevance of this directive, particularly as it was not in effect at the time of the matters complained of.  Further, no authority was submitted to us that suggests that fixed-term contracts are any more immune from the doctrine of frustration (assuming the appropriate factual situation pertains) than any other contract.  Mr Ebuzoeme submitted that the Applicants wore three hats; they were students, members of the Executive and employees.  The Employment Tribunal held that they were employees of the Union and, it was submitted that that relationship was paramount.  It may be that as between the Union and the Applicants the employment relationship was paramount; we make no finding in this regard, but it seems to us that this is irrelevant to the question of the factual impossibility of the Applicants performing their obligations under the contracts of employment as employees.

Maggie Hammond and the Union believed they were dismissing the Applicants. 

83	It was submitted that Maggie Hammond and the Union believed that in fact they were dismissing the Applicants and it is wrong, and indeed inadmissible, for the Employment Tribunal to have substituted its own views for those of the Union and Maggie Hammond.

84	The Applicants submitted that Maggie Hammond was in no doubt that she had dismissed the Applicants and that they were also in no doubt that the letter of 2 April 1996 was a dismissal.  

85	The Employment Tribunal did not, however, find that Maggie Hammond believed she had dismissed the Applicants; see the findings of the Employment Tribunal at paragraph 175 which we have already referred to.  In any event, as it seems to us, even if the Executive and Maggie Hammond erroneously believed they were dismissing the Applicants, that could not affect the question of whether the contracts had been terminated by frustration.  Frustration would bring the contracts to an end by operation of law; the frustrating events would already have occurred by 2 April.

86	In support of the submission that the Employment Tribunal should not have substituted its views for those of Maggie Hammond and the Executive, our attention was drawn to the case of Marks and Spencer plc v Martins [1998] ICR 1005.  In Marks and Spencer plc v Martins the Employment Appeal Tribunal was concerned, inter alia, with an appeal from an Employment Tribunal in a case where the Applicant had been interviewed for a job and rejected.  The Employment Appeal Tribunal made clear that the Employment Tribunal should not have substituted its views as to the Applicant’s suitability for the job for those of the persons who had interviewed her.  It does not seem to us that this case is of any assistance in the present case.  The case is an example of those cases where, providing an employer acts within a reasonable band of responses, the Employment Tribunal is not permitted to substitute its own views for those of the employer.  In the present case, whatever the views may have been of Maggie Hammond (and the Employment Tribunal did not find they were as the Applicants contended) they would be irrelevant to the question of whether the Applicants’ contracts of employment had been terminated by operation of law.  

87	Before we leave this topic we would note a further submission, namely that the Employment Tribunal was wrong to find that the Applicants may have had a remedy against the University under section 17 of the Race Relations Act.  It seems to us that this was not part of the ratio of the Decision.  The Employment Tribunal was simply pointing out that if the allegations made by the Applicants against the University were correct, they would not be without a remedy.  

The imposition of the Constitution by the University was a discriminatory act

88	It was submitted that the Employment Tribunal should have found that the imposition of the new Constitution by the University was a discriminatory act in that it had the collateral purpose of removing the black majority from the Executive; accordingly the dismissal of the Applicants was a discriminatory act aided by the University.

89	This is really a repetition of other arguments that we have already dealt with and falls away because firstly, there was no dismissal and secondly, because the Employment Tribunal found there was no discrimination on the part of the University or the Union.  There seems little purpose in repeating findings of the Employment Tribunal which are unassailable and can be found, for example, at paragraphs 150(184) and (185), 163, 164 and 181 of the Decision.

90	It is clear, as the House of Lords pointed out, that liability under section 32 is derivative.  If the Union was not liable, the University could not possibly be liable for knowingly assisting a discriminatory act.  It is only fair to point out that at paragraphs 179 to 181 the Employment Tribunal rejected any suggestion that there had been discriminatory conduct on the part of the University.

The letter of 5 March 1996

91	The Applicants submitted that the Employment Tribunal should have found the writing of this letter by Mr McCormack constituted an unlawful act of discrimination on the part of the Union aided by the University and that it also constituted victimisation.  The letter was written at a time when the Applicants were members of the Executive.  We are not able to accept the submission that the Union was incapable of discriminating against the Applicants while they were members of the Executive which controlled the Union.  In our opinion the Union was capable of being liable, pursuant to section 32 of the Act for the acts of its employees.  

92	The Employment Tribunal did not make findings in relation to this letter specifically; however, it is by no means clear that it was ever raised as an issue before the Employment Tribunal.  A statement of issues was agreed by the parties and is set out in the order on directions of 11 January 2002 (page 346); the nearest one gets is 4(a) (an allegation against the University) “Using the General Manager of the first Respondent to (i) Make false allegations against the Applicants” and “(iii) Spread racially prejudiced and motivated false allegations about the Applicant, including, but not limited to, by way of memoranda”.  Mr McCormack was not cross-examined about the letter, although the allegation that the letter was an act of discrimination on the part of the Union does seem to have been made in the final submissions made by the Applicants to the Tribunal.  The Applicants submitted that Mr McCormack was aware of the complaint that had been made by the Applicants in January 1996 to the CRE.  They complain that the letter is one of a number of allegations of fraud that were made against the Applicants.  However, at the hearing before the Tribunal the University and the Union did not seek to prove that the Applicants were guilty of fraud.

93	We have already recorded the Employment Tribunal’s views of Mr McCormack referred to at paragraph 146(h).

94	The Applicants sought to argue that the writing of this letter was in any event a breach of the implied term of trust and confidence between the Union as employer and the Applicants as employees; in the light of the fact that the Applicants were members of the Executive at the time the letter was written, this submission has little force, even assuming that the letter did amount to an act of discrimination or victimisation.  We have already noted that there is no reason why, were the letter an act of victimisation or discrimination the Union might not be liable under section 32; however, such a finding would have been wholly inconsistent with the Employment Tribunal’s views of Mr McCormack; and also the finding at paragraph 150(186):

“We are satisfied that none of the actions taken by the university or the union were so taken because the Applicants and others had accused the university, and the union in the person of Mr McCormack, of race discrimination.”

95	In the circumstances and particularly having regard to the fact that the allegation relating to this memorandum appears (if at all) only obliquely in the memorandum of issues, it does not appear in the Originating Applications and was never put to Mr McCormack, we see no error of law on the part of the Tribunal in failing to make any particular finding in relation to it.  Indeed, it is apparent from its other findings in connection with the photocopier contract, that it did not consider the letter had been written for a discriminatory reason.  

The photocopier contract 

96	We need to set out the relevant facts.  Some time in October 1995 Mr McCleggan, a salesman employed by a company known as Erskine and Co, approached the Union with a view to selling or leasing photocopiers.  Mr McCleggan was black and got on well with Mr Ebuzoeme.  He made certain proposals which Mr Ebuzoeme thought attractive.  Mr McCormack was more doubtful as to the nature of the proposal.  He advised that the contract should be checked by the Union’s solicitors and any arrangements with Mr McCleggan should be in writing and signed by one of Erskine’s directors.  Mrs Bialkowski, the Union’s office manager, wrote to Mr Ebuzoeme confirming that it was necessary for the Union’s solicitors to check any leasing agreements.  She also pointed out that any leasing contract in excess of £1,000 needed to be agreed with the University before being entered into by reason of the financial regulations.

97	The matter had been considered at a meeting of the Executive on 12 December; Mr Anyanwu drafted the minutes which record that Mr Ebuzoeme was to look into the proposals and make a decision.  Mr McCormack’s evidence was that consideration was to be by him, Mrs Bialkowski and Mr Ebuzoeme jointly.  The Employment Tribunal accepted Mr McCormack’s evidence in this regard.  Mr McCormack wrote a long and detailed report for the Executive Committee meeting on 9 January that this does not appear to have been considered.  On 15 January Mr Ebuzoeme urged the Executive Committee to ratify the agreement he had negotiated with Erskines.  

98	On 18 January Mr McCormack wrote another detailed memorandum.  He pointed out that Mr Ebuzoeme’s advice was wrong as it was necessary for a contractual document of the nature of the leasing agreement to be signed by the General Manager, the Treasurer and the President or the Vice President for Societies and Services.  The Vice President, Mr Ebuzoeme, could not sign a document by himself.  He pointed out that under the financial memorandum it was necessary to obtain the prior approval of the Vice Chancellor and he queried the accuracy of certain figures put forward by Mr Ebuzoeme.  He also stated that neither he nor Mrs Bialkowski were satisfied that what was proposed would be a “good deal”.  Mr McCormack drew attention to clause 1(5)(ii) of the financial regulations to the Constitution which provided that no contract should be valid unless signed by any two of the following, General Manager, Treasurer, President, Vice President, Societies and Services.  Mr McCormack informed Erskines, and Miss Gander, the Clerk to the Governors of the University wrote to Erskines to the same effect.

99	On 23 January Mr Ebuzoeme signed a lease for the photocopier.  Erskines did not accept the agreement because it bore only one signature.  Miss Gander had also warned Erskines that the contract required the formal approval of the University which it had not received.  

100	Considerable pressure was then placed on the President, Mr Bhunnoo, to sign the agreement; as a result of the pressure under which he was placed Mr Bhunnoo in the words of the Employment Tribunal “adopted what he hoped would be a helpful way of relieving the situation, namely by signing a photocopy agreement and handing that to Mr McCleggan.  He gave the original agreement to Miss Gander, who made a note that Mr Bhunnoo had not signed that agreement”.

101	Mr McCormack was extremely unhappy at what had occurred.  He could not see any set of circumstances in which this expenditure could be justified, nor any way in which it might be suggested that the contracts represented a good deal for students or the Students Union.  

102	A further lease agreement was signed by Mr Ebuzoeme (who as Vice President, Societies and Services was entitled to sign) and Mr Anyanwu who was not entitled to sign.  The agreement was then countersigned on behalf of Erskines on 29 January.

103	On 13 February the Executive purported to remove Mr Bhunnoo as President and Mr Gillespie then signed a service agreement as “Acting President” and countersigned a letter to Erskines holding himself out to be President.  Mr Gillespie was neither Acting President nor President.

104	The Employment Tribunal were at pains to point out that the University had not always “been meticulous in the past in insisting on two signatures to a contract”.  It referred to a contract in October 1993 in relation to a photocopier simply signed by Mr Talby, who was then the Wandsworth Road site officer.  The contract was signed by Mr Talby alone, although the direct debit instruction properly bore two signatures.  Mr Talby was white.  

105	The Applicants maintained that the University treated the Applicants less favourably than Mr Talby because they were black.  The Employment Tribunal held that “their race had nothing to do with it, and we decline to draw any inference that it did”.  The Employment Tribunal concluded that had Erskines insisted on the performance of the contracts (which in the events that happened, they did not) the union would have been committed to expenditure in the order of £58,000 over five years:

“We find as fact that Mr Anyanwu and Mr Gillespie must have known that they were not entitled to sign the documents above.  Mr Ebuzoeme must have known that neither of them was entitled to sign, but he ostensibly validated their signatures by his own.”

The Employment Tribunal noted that despite being advised to take legal advice neither of the Applicants had done so.  The Employment Tribunal also found that the Applicants did not benefit or intend to benefit from their dealings with Mr McGleggan.  Further, there was no evidence to support the suggestion that Mr McCormack had any financial interest in Interfax Ltd (the Union’s previous photocopier suppliers) although Mr Ebuzoeme groundlessly alleged on several occasions that he did have such an interest. 

106	The manner in which Mr Ebuzoeme and Anyanwu acted in relation to the photocopiers gave cause for concern to Mr McCormack and Mrs Bialkowski and to the University as well as to the Charity Commission.  The matter was also of concern to Deloitte & Touche and to Miss Hunter of the NUS.

107	In the light of the findings of the Employment Tribunal it is impossible, in our opinion, to assert that the Employment Tribunal should have found, as the Applicants maintain, that they received less favourable treatment than Mr Tarby and were the victims of discrimination.  It was pointed out to them at an early stage what their responsibilities were and they deliberately chose to ignore the advice that had been given to them, and went on to sign the contracts in an irregular manner having failed to obtain prior consent of the University.  In our opinion, there is nothing in this ground of appeal.  The Applicants are unwilling to concede that their conduct in relation to these contracts was either irregular or open to criticism.

Victimisation

108	The Applicants maintain that the Employment Tribunal failed to permit them to make submissions in relation to victimisation by the University on the basis of the letter written by Lyn Gander on 24 July 1996 to which we have already referred.  The initial view of the Tribunal was that events that took place subsequent to the determination of the contracts of employment could not found a claim for victimisation; see Adekeye v Post Office (No.2) 1997 IRLR 105.  However, Mr Afeeva persuaded the Employment Tribunal that Adekeye was no longer good law, by reason of the decision of the Court of Appeal in Rhys Harper v Relaxion Group.  Mr Afeeva was correct; see the later decisions of the House of Lords in Rhys Harper and five other cases.  On 24 June 2002, (day 29) after hearing Mr Afeeva’s submissions the Chairman had this to say:

“... in view of Mr Afeeva’s helpful submission I think we probably would be inclined to allow you to adduce evidence of the acts which you rely on as victimisation which took place after the date of dismissal.  I am not quite sure what those acts were.  Perhaps you would like to spell it out to us either today or at the start of proceedings tomorrow morning.  I think if we deal with it first thing tomorrow, that would be sensible.  Will you do a bit of homework tonight please?”

He continued later:

“Gentlemen, do you wish to reply?  I have already indicated what we will do about point 5, the victimisation point.  You will give us particulars tomorrow morning on the matters on which you wish to adduce evidence. ... .”

The Tribunal made it clear that it had already heard evidence in relation to victimisation prior to 1 March.  Mr Ebuzoeme replied:

“Without looking at case law in detail, tomorrow may be fairly unrealistic tomorrow morning.”

The Chairman responded:

“I am not sure that it is a question of case law.  You want us to hear evidence of matters of victimisation.  Presumably you know what are the matters of victimisation arising from the fact that you complained to the CRE which arose [after 2 April].”

At the beginning of the hearing the following day, 25 June (day 30) the Chairman asked Mr Ebuzoeme to identify the matters relied upon subsequent to 2 April 1996 as instances of victimisation.  The Tribunal would hear the evidence at some convenient time between the Respondents’ witnesses.  Mr Ebuzoeme replied:

“Thank you, sir.  We have deliberated on that.  We made the following submissions on the question of victimisation.  We note what you said that we could reinstate our complaint regarding victimisation.  In our view that will necessitate recalling our witnesses.”

The Chairman responded that the Applicants had been in a position to deal with claims of victimisation up to and including 2 April:

“It is only the matters after April 2nd.  It is a matter on which we will hear evidence from yourselves as matters on which you rely of victimisation.”

Mr Ebuzoeme responded:

“Well, we have deliberated on that, and it is our view that that would necessitate time and costs.  Our application was for adjournment to stand down, not to reinstate victimisation.  We therefore ask you, we would ask – we have decided that we should leave the matter as it stands for directions to be given by the EAT in due course.”

The Chairman responded:

“Well, if you choose not to adduce any evidence of victimisation although you were given the opportunity to do so, that is a matter for you.”

It was submitted to us that the Employment Tribunal had ruled on the matter and that the Applicants were prevented from putting forward a case of post-dismissal victimisation.  It was submitted the Employment Tribunal had no power to correct its error of law and that the error could only be corrected by appeal to the Employment Appeal Tribunal.  The Employment Tribunal was functus officio.

109	The Applicants have adduced no authority to support this proposition.  Neither has the Respondent adduced any authority to the contrary.  The Employment Tribunal, as we have noted, had expressly rejected any allegations of victimisation prior to the date of termination by either the Union or the University.  The Employment Tribunal noted at paragraph 150(208) that “The Applicants chose not to adduce evidence of their allegations of post-termination victimisation”.  In our opinion it would be manifestly absurd if an Employment Tribunal having made a decision excluding certain evidence came to the conclusion during the course of the hearing that its decision was or might have been incorrect and was prepared to correct it, yet such correction could not be made.  In the course of a hearing that lasted as long as this one did, it seems to us absurd that the only way in which the decision of the Employment Tribunal could be corrected was by an appeal to the Employment Appeal Tribunal with a subsequent remission to the Employment Tribunal.  If that procedure were adopted, it would of course significantly increase the cost, expense and time of what was already a costly, expensive and time consuming hearing.  We are quite satisfied that the Applicants had an opportunity of putting forward their evidence in relation to post-termination victimisation but chose not to do so.  In those circumstances it seems to us they have no legitimate cause for complaint and this ground of appeal must fail.

Reference to the ECJ

110	In their Notice of Appeal the Applicants sought a preliminary reference to the ECJ on the following:

“(ix)	Whether under Article 6 of the European Convention on Human Rights (ECHR) failure by the employer to investigate serious allegations of fraud made against an employee
(a) amounts to a breach of contract
(b) a violation of Article 6 of the ECHR in relation to a requirement for a fair hearing.
(x)	In relation to victimisation failure by the Employment Tribunal to investigate a complaint whether it amounts to a denial of justice within Article 6 of the ECHR.”

111	The short answer to these points is that there is no point of Community law raised in the Notice of Appeal capable of being the subject matter of a reference to the ECJ.  Matters concerning the European Convention on Human Rights are not the subject-matter of references to the ECJ.

112	The matter is put differently in the Applicants’ Skeleton Arguments at paragraph 58:

“58	The first question for reference under Article 234 of the Treaty to the European Court of Justice is:
(i) Whether in the absence of any existing law, the concept of frustration does or does not extend to a fixed term contract discharged by reason of breach of confidence and trust between the first Respondent as the employer and the Applicants as employees.
(ii) The second question arising from (i) above is:  Whether the employment tribunal in Ashford before reaching its conclusion that the contract of employment had been frustrated through a ‘supervening impossibility of performance’ had
(a) noted the time of the occurrence of the frustrating event
(b) and such time should have been stated in their decision either in terms of when the employer in the person of Maggie Hammond announced by letter of 2nd April 1996, the termination of the contract by dismissal of the Applicants and if so when the contract of employment was cancelled by Maggie Hammond on behalf of the second Respondent from whom she was seconded to the first Respondent.
(iii) For the purposes of fairness of the proceedings conducted in the employment tribunal:  Whether the tribunal did look at the matter of frustration on the basis of the facts known to the parties on 2nd April 1996 given that both Miss Hammond and the Applicants were agreed that the letter of 2nd April 1996 was a dismissal letter and not a frustrating event.
(iv) Whether the probabilities as they appeared given the fixed-term contract hearing – a disciplinary hearing and internal appeal organised by the first Respondent before the letter of 2nd April 1996 would have resulted in no dismissal and perhaps no frustration through change in the Unions constitution by the University.
(v) Whether in the light of later events after the 2nd April 1996 failure to have an internal disciplinary hearing and appeal amounted to a denial of justice contrary to Article 6 of the Human Rights Convention and a breach of the contractual obligations contained in the fixed term contract contrary to the Rome convention on the Law Applicable to contract obligations [Contracts (Applicable Law) Act 1990 s2 sch1.
(vi) Whether the refusal by the Employment Tribunal to hear and determine the Applicants’ complaints of post termination victimisation before reaching its decision amounts to a denial of the Applicants’ Human Rights and a violation of Article 6 of the European Convention on Human Rights.
(vii) Whether the Applicants are entitled to unfair redundancy claims.”

We cannot discern any point of Community law (even assuming it is open to the Applicants to seek a reference).  Furthermore, we would not, in any event in the exercise of our discretion consider it appropriate to make a reference to the ECJ.  It is open to the Applicants to seek permission to appeal against our decision to the Court of Appeal and the Court of Appeal is a more appropriate forum for determining whether or not there should be a reference to the ECJ.  

Misconduct on the part of the Employment Tribunal 

113	The Notice of Appeal and Skeleton Argument complain that the Chairman interrupted the proceedings “to the point where the Applicants felt that the style of interventions bordered between premature judgments, opinion before the evidence is produced or the true facts are established by cross examination”.  The Applicants never served an affidavit as required by paragraph 11 of the Employment Appeal Tribunal, Practice Direction 2002 and the point was not elaborated during the course of submissions.  We see nothing in this point and therefore this particular ground must also be dismissed.

114	In the event all of the grounds raised by the Applicants have failed and the appeal is accordingly dismissed.