Appeal No. PA/0583/02/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 May 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

MR P F ANSONG	APPELLANT

TAJ INTERNATIONAL HOTELS 
T/A THE BOMBAY BRASSERIE	RESPONDENT

Transcript of Proceedings

JUDGMENT

(RULE 3(10) APPLICATION)

Revised

	APPEARANCES

For the Appellant	MR P F ANSONG
THE APPELLANT
IN PERSON	

JUDGE J McMULLEN QC:

1	This application arises under Rule 3(10) of the Employment Appeal Tribunal Rules.  It is an application by the Applicant against the decision of the Registrar that his case did not reveal a question of law and, therefore, the EAT had no jurisdiction to hear it pursuant to Employment Tribunals Act 1996 section 21.  

2	In accordance with Practice Direction 2002 the case has now come before me and I have conducted a hearing of the grounds of appeal, heard from the Applicant and his address is supported by a Skeleton Argument.

3	The Applicant appeals against a decision of a London Central Tribunal, Chairman Mr C.B. Robson, sitting with Mrs C Messias and Mr W B Brandt on 4 and 5 February 2002.  It was registered with Extended Reasons on 29 October 2002.  Summary Reasons were registered on 11 March 2002 in almost identical terms.

4	The background for the presentation of the Notice of Appeal has not been fully explained to me for a Notice of Appeal was dated 29 April 2002.  I understand there was some difficulty as the Applicant sought to appeal to the Employment Tribunal.  Whatever may be the background the Applicant’s appeal was accepted by the Registrar for consideration under Rule 3(7).

5	The basis of the Applicant’s appeal in his short Notice is as follows:

“The grounds relating to the interpretation to the legislation and its application concerning the following:

(1)	Unfair dismissal
(2)	Wrongful dismissal
(3)	Racial discrimination
(4)	Breach of Human Rights
(5)	Injury to my feelings”

6	The Employment Tribunal decided that the Applicant’s claims under the headings of Unfair Dismissal, Wrongful Dismissal and Race Discrimination were all dismissed.  It set out the findings of fact upon which it based its decision, having identified the principal actors in this drama as Mr Modi, the General Manager, Mr Sundaram, the Executive Officer and the Applicant himself.  The findings of fact are contained in paragraphs 7.1 to 7.15 of its Decision:

“(1)	The Respondent runs The Bombay Brasserie, a restaurant in the Borough of Kensington and Chelsea with 230 ‘covers’.  It employs about 50 people, including Mr Modi and Mr Sundaram.  The employees come from many parts of the world;  among them are many Africans, Asians and people from other continents.
(2)	The Applicant was born in Ghana, is black and has Ghanaian nationality.  He has been in this country since 1984 and has a fluent command of English.
(3)	The Applicant started working for the Respondent in the kitchen of the brasserie in 1985, working from 10.00 am to 6.00 pm on each working day.
(4)	In 1986 he began working at the restaurant in the evenings as a waiter.  From that time he was doing two different jobs for the Respondent concurrently.
(5)	In 1994 the Applicant was issued with a Revised Contract of Employment, clause 6 of which provided for him to receive a maximum of eight weeks’ sick pay if ever he were off will.  Clause 19 of it provided for him to receive up to a maximum of 12 weeks’ notice if the Respondent terminated his employment.
(6)	In June 2000 he injured his hand while at work and went on sick leave until 22 October of last year.  That was more than eight weeks but the Respondent continued to pay him his full salary until his return.
(7)	Since his return he has worked only as a waiter in the evenings from 6.00 pm until 2.00 am, as he said that he did not feel able to do the kitchen job as well.  He was given further paid annual leave (which he had accrued) from the kitchen job.  This ran until the beginning of March 2001.  He was due to resume his kitchen duties on 4 March 2001.
(8)	A day or two before the date for his return to his kitchen job he was granted further leave from that job until 13 March, the Respondent allowing him to take this leave out of his future annual leave entitlement.  The Applicant has, however, continued to work for the Respondent in the evenings as a waiter right up to the days of hearing.
(9)	The Applicant has contended that on 14 March 2001, he gave Mr Sundaram a medical certificate certifying him fit for work.  The Respondent has denied that he ever gave such a certificate either to Mr Sundaram or anyone else on its behalf.  We prefer the Respondent’s evidence on this point and find that he did not supply such a certificate.  He did not turn up for work on that day and in fact has never worked since in the kitchen, although he has continued to work for the Respondent every evening as a waiter in the restaurant.  His replacement in the kitchen job, Mr Kaddu, was only given a temporary contract of employment.
(10)	Mr Sundaram was concerned about the Applicant’s fitness to return to do the day job in the kitchen as well as his evening job in the restaurant and in March asked him to provide a medical certificate showing that he was fit to do both jobs.
(11)	On 2 April 2001, the Applicant wrote to the Respondent alleging that Mr Sundaram had refused to allow him to work and asked him why his wages had been reduced.  In fact they had been reduced by the Respondent because the Applicant was not attending for work in the kitchen, his period of further annual paid leave having expired a month earlier.
(12)	On 6 April, Mr Harnal, one of the Respondent’s replied, managers replied, explaining the position and telling him that they were waiting for his medical certificate and were willing to increase his restaurant hours if that would suit him. 
(13)	On 19 April the Applicant faxed a copy of a medical certificate back-dated to 14 March to Mr Sundaram and on the following day handed him the original.
(14)	On 23 April Mr Harnal and the Applicant had a discussion which left Mr Harnal with the belief that the Applicant did not wish to go back to work in the kitchen but wanted further day-time hours as a waiter in the restaurant paid for at the same rate as the kitchen work would have been, this being a higher rate than waiters normally received.  Later the Respondent thought that the Applicant had accepted an offer of extra hours as a waiter but the Applicant requested that he be allowed to delay his day-time working until June as he was in the process of selling his house.  The Respondent agreed to that.
(15)	On 6 June 2001, the Applicant presented his Originating Application in these proceedings.”

7	The Tribunal addressed itself correctly to the relevant law, having the relevant sections of the Race Relations Act 1976 which are Section 1(1)(a), 3(1), 4(2)(c), 32 and 68(6).

8	The Tribunal also addressed itself to the law on constructive dismissal, as set out by Lord Denning in Western Excavating (EEC) Ltd v Sharp [1978] ICR 221, at page 226.  It then considered its conclusions and decided that the Applicant was not dismissed, constructively or actually, from his job in the kitchen, rejecting the Applicant’s evidence that, on three or four occasions, Mr Sundaram said he did not want the Applicant in the kitchen any more, and found no express dismissal.  Although a replacement had been found for the Applicant in the kitchen the replacement was on a temporary basis.  The Tribunal found that the Applicant’s job was still open to him and thus the Respondent had been guilty, as it put it, neither of conduct amounting to a significant breach of the contract of employment, nor of doing anything which showed that the Respondent no longer intended to be bound by any of its essential terms.

9	The conclusion was that the Applicant was not dismissed and it therefore dismissed claims of wrongful and unfair dismissal.  It turned then to consider the complaint of race discrimination.

10	The Tribunal noted that the Applicant was out of time for a number of his complaints.  The decision on that matter is not the subject of the appeal.  The Applicant principally contends that he was given no notice of termination.  I find no question arises on appeal relating to the dismissal by the Tribunal of the Applicant’s claim of race discrimination.  

11	Because of the Applicant’s firm belief in his entitlement to a period of notice, it may be helpful if I add one or two words.  Whilst not complaining of the Chairman’s comments, the Applicant does criticise paragraph 7.2 of the Reasons set out above, because no comment was made about the command of English of the other persons in this case.  

12	The Applicant asserts that he is better qualified than other persons working in that establishment, since he has a Master’s degree.  I am sorry to say that I do not understand the Applicant’s criticism of the paragraph and I have no doubt that the Applicant was given full credit for his command of English and for his presentation.  He seems to me to fully bear out the finding by the Tribunal, having listened to him today.  I have had his assistance in drawing my attention to the important matter which he describes as “not a moral, but a legal issue”.  

13	Since the Tribunal found that the Applicant was not dismissed from the kitchen job, notice of dismissal would not arise, but he is presently continuing to work as a waiter, for which he has no apparent contract.  Of course, in lay terms, he does not have a contract because there is nothing in writing but, in legal terms, he does for he has a contract of employment made orally which is enforceable as to the terms which include the right not to be paid below the national minimum wage.  He also has a right under Section 1 of the Employment Rights Act to a statement of particulars of the main terms and, if he has not yet got one of those, he is entitled to ask his employer, immediately, for a statement conforming to Section 1 of the Act and that may resolve one of the outstanding grievances in this case.

14	Thus, I agree with the Registrar that this case raises no question of law and I will uphold her decision.  The matter will be taken no further and the appeal is dismissed.