Appeal No. EAT/1455/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 2001

Before
MRS RECORDER COX QC
MR S M SPRINGER MBE
MRS R A VICKERS

MR C L HAMMOND	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

MRS RECORDER COX QC

1.	This is an appeal from the decision of an Employment Tribunal sitting at Stratford, which was promulgated on 19 October 2000, dismissing the Appellant’s complaints of race discrimination and breach of contract.

2.	The other unanimous finding of the Employment Tribunal was that the Appellant was unfairly dismissed by the Respondent by reason of the manner of the dismissal, but no monetary award or other remedy was given for unfair dismissal by reason of the Appellant’s conduct, which the Tribunal decided had caused the dismissal.

3.	This case has had a somewhat lengthy procedural history and we have considered all the documents in the bundle before us.  Today Mr Hammond, who appears in person, has helpfully indicated to us that the grounds which he originally included in his Notice of Appeal are not all being pursued by him.  He submitted that there were four grounds which he wanted us to consider at this Preliminary Hearing.

4.	In oral argument before us it emerged that there was a fifth point which he wanted us to consider at this Preliminary Hearing, which I shall set out below.  The points which he wanted us to consider were these, and I shall deal with them in the order in which he addressed us upon them.

5.	The first point relates to the note of an incident made by Mrs J Travasso, who was one of the witnesses in the original hearing and in particular to the finding upon that by the Employment Tribunal, which is on page 14 of our bundle, sub-paragraph (u).
6.	In this sub-paragraph the Tribunal are referring to an incident which took place on 1 October 1998 when the Appellant went into Mr Saunders’ office and accused Mr Saunders of having evidence which he was concealing in relation to a particular article in the Gambian Times, which features very large in this Employment Tribunal’s decision.

7.	He insisted, the Tribunal say, in a loud voice and in a threatening manner, that there was evidence which Mr Saunders could make available and suggested that Mr Saunders was being untruthful and refused to leave his office.  At that stage Mr Saunders himself had to leave the room.

8.	The Tribunal record that this incident was witnessed by Mr Saunders’ personal secretary, Mrs Joyce Travasso and the Tribunal then state that she made a note of the incident and they record the contents of that note in quotation marks.

9.	The Appellant before us submits that this was an error by the Tribunal because in fact the extract which is quoted in that sub-paragraph came from Mrs Travasso’s witness statement and was not therefore a note made at the time and could not be said to corroborate Mr Saunders’ account.

10.	He referred us to another document in the separate bundle of documents which the Appellant prepared for this hearing at page 25, which indicated that there was some conflict as to whether or not Mrs Travasso had in fact witnessed this incident and what she remembered about it.

11.	It seems to us that all this shows is that there was before the Employment Tribunal conflicting evidence on this issue and that they accepted that the account that had been given by Mr Saunders and Mrs Travasso in her witness statement was one which they preferred to the Appellant’s own account.

12.	We accept that it may be that the Tribunal incorrectly described what is set out in this sub-paragraph as a note of the incident being made at or about the time but we do not regard that as having any bearing on the conclusions they reach.  The Tribunal were entitled, it seems to us, to weigh up the conflicting accounts and to decide which version they preferred.  We see no arguable error of law in relation to that matter.

13.	The second matter that the Appellant relied upon relates to the finding as to whether or not he was genuinely concerned about the Gambian Times article, which had been found.

14.	He complains that there was an error of law and that it was not open to the Tribunal to find that he was not really concerned about it and was using it as a weapon.  He again referred us to documents in the bundle that he had prepared for this Appeal Tribunal at pages 15, 16 and 18, which he says supported that submission.

15.	It seems to us that the relevant findings of this Tribunal are in paragraph 8 (b) on page 19 of our bundle.  The previous Employment Tribunal hearings having been Interlocutory or Preliminary Hearings, this was the Tribunal hearing to the substantive case and who therefore had heard all the evidence and seen all the witnesses.  It seems to us that they were perfectly entitled to come to the conclusion they did and that their finding cannot reasonably be categorised as perverse simply because they choose to accept one version of it, which was not the.  Once again we see no arguable error of law in relation to that matter.
16.	On the third point, similarly, the Appellant seeks to persuade us that the Tribunal erred in law in making a finding as to the concealment of evidence and it appears that that finding is set out in paragraphs 8(f) and (g) in relation to the accusation which the Appellant made, that Mr Saunders was concealing evidence.

17.	Looking at the way the Tribunal approached that issue in these two sub-paragraphs, they are recognising that there are two conflicting accounts about this matter and they chose not to believe the Appellant’s account.  That again, it seems to us, cannot properly be characterised, either as an error of law or as a perverse finding.

18.	Finally, the fourth ground related to a document which the Appellant referred us to in his bundle at page 4, which is in fact a photocopy of a document entitled ‘A2’.  The Appellant said that this was produced during the proceedings very late in the day and his complaint is that when it was produced he wasn’t allowed to recall Mr Saunders to question him about it.

19.	The document at page 4 is in fact an incomplete version of an allegedly typed version which was at page 3 of the Applicant’s bundle.  In fact it is quite clear from the documents before us that the Tribunal had at all times seen the complete, original document and in fact that document is still retained on file by the Employment Tribunal.

20.	It seems to us therefore that the Tribunal had had a full opportunity to look at the original document and to form a view about it.  The prospect of the Appellant being permitted to recall Mr Saunders in order to deal with it, the Tribunal felt, would not add anything to their material considerations on that issue. Once again, we do not consider that that decision discloses any reasonably arguable error of law and for those reasons we see no merit in that ground.

21.	We take the view however, that the Appellant is on stronger ground in relation to the fifth and final point, which he developed in the course of oral argument, which relates to the question of victimisation.  It is clear from the particulars of the complaint in the Originating Application, on page 58 of our bundle, that the Appellant was arguing that there had been unlawful victimisation, contrary to the Race Relations Act 1976.

22.	The Employment Tribunal in their reasons refer to closing submissions having been submitted by the Appellant at the conclusion of the hearing and it is clear from those closing submissions, at paragraph 6, on page 44 of our bundle, that there was an allegation of victimisation against Mr Saunders because the Appellant was complaining that, during the disciplinary process, Mr Saunders was:

“consciously or sub-consciously influenced by the Applicant’s Originating Application of 9 April 1998, in respect of the Gambian Times article, as detailed in his written statement”.

23.	The Appellant was clearly asking that the Employment Tribunal consider and determine that issue and in particular consider the authority of Nagarajan v LRT [1999] ICR 877, recently decided in the House of Lords.

24.	It seems to us, looking at the decision that the Employment Tribunal simply failed to adjudicate upon that allegation, although in paragraph 3 of their reasons, at sub paragraph (v) they clearly indicated that victimisation was an issue in the case.  Nowhere thereafter is the issue referred to again.

25.	In particular, in the lengthy paragraphs which appear from paragraph 4 onwards, they direct themselves in considerable detail as to the law, both in relation to unfair dismissal and misconduct, and also in relation to direct discrimination, and the case law of King v Great Britain China Centre [1991]IRLR 513 and Zafar v Glasgow City Council [1998] IRLR36 and other cases which deal with that issue.  However, there is no direction, or indeed any reference, made by the Tribunal as to how to proceed when determining whether or not an allegation of victimisation has been made out.

26.	Nowhere, subsequently, in any of the findings of fact or in their assessment and in particular in their conclusion, have the Tribunal referred to or made any findings upon the allegation of victimisation.

27.	We take the view that on that issue there is therefore an arguable error of law and we think on that issue alone this matter should therefore proceed to a Full Hearing.