Appeal No. EAT/1269/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 March 2002

Before
HIS HONOUR JUDGE McMULLEN QC
MS S R CORBY
MISS D WHITTINGHAM

MR O OKPONOBI	APPELLANT

1) HOLLAND & BARRETT RETAIL LTD 2) MR M MAYES	RESPONDENTS
3) MRS D SMITH 4) MR M MORAN
______________________________________________________________________________

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondent	RESPONDENT NEITHER NOR REPRESENTED	

JUDGE McMULLEN QC

1.	This is an appeal from the decision of an Employment Tribunal sitting at Stratford under the chairmanship of Mr Purse promulgated on 29 August 2000.  It came before the Employment Appeal Tribunal consisting of Ms Recorder Cox QC, Mr Stringer and Mrs Vickers on 11 May 2001 when a detailed judgment was given with full reasons, and directions were made for the further conduct of what remained of the case.  The gist of what was left was a claim of victimisation on the ground of having brought proceedings, pursued by the Applicant by specific reference to the manager of the 1st Respondent Mrs D Smith who is the 3rd Respondent in the proceedings. 

2.	The outcome of that preliminary Appeal Tribunal hearing was as follows 
“The Appeal be allowed to proceed to a full hearing limited to the issue of victimisation and the role of the 3rd Respondent, Mrs D Smith, in accordance with the Judgment.”

 An application for leave to amend the Notice of Appeal was granted and within 14 days an amended Notice of Appeal should be presented.  It was further ordered that Skeleton Arguments be exchanged not less than 14 days before the date of the full hearing.

3.	There has been a conspicuous breach of that last direction.  No Skeleton Argument has been provided by either side.  On the commencement of the hearing in this case, a letter was presented to us dated 7 March 2002 sent by fax, timed at 10.23 from Solicitors representing the Applicant in which it is pointed out that the representative of the Applicant Mr Olufeko is unable to attend.  He had telephoned the office of the solicitors and informed them that he was suffering from severe migraine and dysentery.  A request was made in the light of his illness for an adjournment.  No person has attended today.
4.	At the Preliminary Hearing the 1st, 2nd and 4th Respondents were dismissed from the proceedings subject of course to their being reinstated should the present Tribunal decide the matter should be remitted to the Employment Tribunal.  We therefore first considered whether to accede to the application for postponement.  We noted that no medical documentation had been provided in respect of this application.  We noted that there had been a breach by Mr Olufeko who represented the Applicant at the Preliminary Hearing of the obligations set out by Ms Cox’s Tribunal to produce a Skeleton Argument.  We considered carefully the interests of justice in this case; on the one hand of acceding to the application fixing another date for a hearing and requiring medical evidence to be produced and, on the other, of considering the appeal in the absence of all of the parties and iof written arguments.
  
5.	We have firmly formed the view that there should be no further delay in this case.  The Originating Application is precisely four years old and we consider the interests of justice are in determining this appeal on the basis of the material available to us today.  The nature of the claim made by the Applicant was extensive but has now been whittled down.  In the amendment of the Notice of Appeal served on 24 May 2001 pursuant to the Appeal Tribunal’s order the claim now is as follows:

“The Appellant having obtained the leave of the Employment Appeal Tribunal amend his grounds of appeal to specifically include Victimisation as one of his grounds of his Appeal.

The ground was especially mentioned and argued before the Employment Tribunal, particularly:-  

a.	The Appellant mentioned in his letter of complaint against the 2nd and 3rd Respondents dated 29 July 1997, which formed part of the First bundle, and vigorously addressed at the Employment Tribunal, that the Third Respondent had formed a victimisation and discriminatory attitude towards him, and “could not fairly protect his interest”.

b.	Similarly, in paragraphs 26, 27, 28, 29 and 30 of the amended IT1 which included the claim of Sex Discrimination, the Appellant mentioned and argued the unlawfulness of the 3rd Respondent’s hearing and deciding on his Appeal against dismissal when she was already a party to an action brought by the Appellant against her employer and herself.

c.	That the decision by the 3rd Respondent to reject the Appellant’s Appeal and uphold his dismissal was made after she became aware of the Appellant’s action against her at the Employment Tribunal consequently she could not give the Appellant similar treatment she gave Ms Michelle Walcott.

d.	The desire to victimise and punish the Appellant, by exerting revenge and seeking her pound of flesh, resulted in the 3rd Respondent’s discriminatory decision, and motive for victimisation and sex discrimination that the Appellant suffered.

3.	The 3rd Respondent as agent and representative of the 1st Respondent (as Personnel Manager) acting with the consent of the 1st Respondent to victimise and unlawfully sexually discriminated against the Appellant.
	
4.	The 1st Respondent, as the employer of the 3rd Respondent, is vicariously liable for the actions and errors of the 3rd Respondent.  The 3rd Respondent acted in breach of natural justice and the Sex Discrimination Act 1975 that a reasonable Tribunal would not have done.”

The basis of the claim thus is against the 3rd Respondent Mrs D Smith that she victimised the Applicant in the way in which she conducted the appeal he had brought and she did so because she was aware that the Applicant had brought the claim against herself.  

6.	As to the other amendments contained in the passage we have cited above there appears to be a claim against the 1st Respondent but as we pointed out the order of the Tribunal under Ms Cox had dismissed the 1st Respondent from the proceedings and confined the attention of our present Tribunal solely to the role of the 3rd Respondent and her responsibility if any for the wrong of victimisation.  Any liability of the 1st Respondent would have to be predicated upon a wrong done by the 3rd Respondent.  So it is to that that we first turn to the history before considering whether the absence of the 1st Respondent to these proceedings is of any significance.  
7.	The tortured history of this litigation has been clearly set out by Ms Recorder Cox and is encapsulated in the facts as found by the Employment Tribunal:

10.	Firstly, it is alleged that there was an error of law in holding that the Appellant was not sexually discriminated against, when his dismissal was similar to that of a woman who was also dismissed for taking unauthorised holiday for two weeks, but who was then allowed to continue her employment by being re-instated on appeal, while conversely the Appellant’s dismissal was upheld on appeal by the same person.

11.	It is alleged that the Tribunal acted contrary to Section 1, Section 4 (c) and (d) and Section 6 (2) of the Sex Discrimination Act 1975 and the person referred to who dealt with the appeals was in fact the third Respondent Mrs Denise Smith.

12)	Secondly, it is alleged that there was a misdirection and an error of law in the Tribunal’s conclusion that the Appellant had not been racially discriminated against.  It is alleged that there were facts and evidence which justified the Tribunal in drawing the conclusion that the second Respondent Mr Mayes treated the Applicant less favourably than he would have treated a white person and, further, that the second Respondent had harassed and victimised the Applicant and used racist abuse in dealing with him.

13.	Thirdly, it is alleged that, in failing to hold that the second Respondent Mr Mayes treated the Appellant less favourably then Mr Jawad, on racial grounds, the Employment Tribunal misdirected themselves and erred in law.

14.	Fourthly, it is alleged that the Tribunal’s decision was perverse because it is said that it was in conflict with the facts and evidence given before the Tribunal.  There are particulars given of the allegations of perversity.

15.	These in essence comprise the failure to refer in their reasons to two witness statements which were of assistance to the Appellant.  There are alleged to be factual inaccuracies in the reasons relating to the Appellant saying that Mr Jawad was present when the second Respondent verbally abused him. In addition, the finding that the Respondent thoroughly investigated the allegation of racial abuse by the Appellant against the second Respondent was contrary to the evidence, it is said, which indicated that the investigation was not thorough, was not in accordance with procedure and was not supported by the evidence.

16.	In relation to the counter-claim the Appellant contends that there was an error of law in failing properly to consider the set off figures and in not putting the Respondents to strict proof in relation to the figures which they claimed.

17.	Those then were the grounds of appeal.  In addition today Mr Olufeko produced a skeleton argument which he conceded was provided late in the day but which we gave him leave to refer to and which we read.  In this skeleton argument he refers specifically to the question of victimisation and submits to us today that the evidence below showed that the Appellant was unlawfully victimised by Mr Mayes after he had made a complaint against him.

18.	It is also said that the evidence showed that he Appellant was victimised by Mrs Smith (the third Respondent) after he had complained about her in July 1997, maintaining that she could not protect his interests and after he had also taken out an action against her at the Employment Tribunal as a co-respondent.

19.	There is also an allegation that Holland & Barrett allowed the Appellant to be victimised and harassed by failing to protect him, knowing that he had already made complaints against these people.

20.	In submissions to us this morning Mr Olufeko sought to develop the arguments about victimisation in particular as they concerned the third Respondent Mrs Denise Smith.

21.	We have considered all these matters extremely carefully this morning.  Our role at this Preliminary Hearing is to see if we are satisfied that there is any reasonably arguable error of law made by the Employment Tribunal in arriving at their decision.

22.	We conclude that we are not persuaded, save in one respect, that the Appellant has demonstrated arguable errors of law in the decision of this Tribunal.  The exception relates to the question of victimisation and the particular role in this case of the third Respondent, Mrs Denise Smith.

23.	It seems clear from the amended Originating Application, on which this Tribunal proceeded, that at paragraph 25, under the heading of sex discrimination, which starts at page 60 of our bundle, there were specific allegations made about the role of Mrs Smith and I read the relevant paragraphs because they are important.

24.	At paragraph 26 it is said that the Applicant’s dismissal for gross misconduct was upheld by Mrs Smith on 3 March 1998 and that:

“In the same vein the same arbiter of the Appeal Hearing, Mrs Denise Smith (female), overruled the dismissal of Mrs Michelle Walcott on 10 December 1997.”

25.	At paragraph 27 the Applicant contends that where an employee and himself were accused of the same or similar offences of unauthorised absence and the female employee is treated differently, this amounts to 

“double standards and sex discrimination.”

Thus it can be seen particularly by reference to paragraph 25 that the Tribunal had considered the role of Mrs Smith in these proceedings in allowing an appeal by Mrs Walcott but not in respect of the Applicant.  Given the narrow remit of the case as it now stands it is necessary to focus on the decision made by the Tribunal on that subject which is found in paragraph 35 as follows:

“The second allegation related to the fact that Mrs Smith allowed Mrs Walcott’s appeal but not his.  The decision of Mrs Smith to dismiss Mr Okponobi’s appeal seemed to us to be both understandable and proper given the circumstances.  Mrs Walcott’s case turned on different considerations and we did not accept that there was any element of sex discrimination in this matter.”

7.	The claim of victimisation was made in the original documentation and its amendments as pointed out in the amended Notice of Appeal. For example at paragraph 28 of the pleaded case it is said on behalf of the Applicant as follows:

“That the female employee who conducted his appeal hearing was biased against him because the Applicant had already lodged an application in the industrial tribunal against her as a Respondent in a racial discrimination case.

That the First Respond, Holland & Barrett knew of his originating application against the Third Respondent, Mrs Denise Smith but failed to protect him, against her sexually discriminating against him.”

8.	So, the Employment Tribunal had before it a claim of victimisation in terms.  The Employment Appeal Tribunal under Ms Recorder Cox had pointed out those specific allegations and indicated that a point of law was arguable in respect of the claim.  We have now had the opportunity to consider the slimmed down Notice of Appeal and to reflect carefully upon the way in which the Tribunal in its decision had framed its answer to the second allegation.  We consider that the Tribunal has dealt with the victimisation claim.
 
9.	First, as a matter of law a claim of sex discrimination includes direct discrimination, indirect discrimination and victimisation.  See Quarcoopome v Sock Shop Holdings Ltd [1995] IRLR  353 EAT  Buckley J.  It thus follows that when the Tribunal in its paragraph 35 which we have cited said that it did not accept there was any element of sex discrimination, it must have included a review of the claim of victimisation.  We do see that that rather scant description may beg a question.  The answer to the question is, we hold, found within the second sentence of paragraph 35.  Since the Tribunal had decided that Mrs Smith’s action was both understandable and proper given the circumstances it must thereby have been rejecting the claim that she had victimised the Applicant on the grounds of his having presented an application in which she was cited as the Respondent.  The Tribunal could not have made that statement it had any doubt about the existence and nature of the claim of victimisation  The Tribunal was well aware of the allegation against Mrs Smith.  Its conclusion in paragraph 35 cannot in our judgment be faulted as an error of law.

10.	We now turn to the concern which appeared initially in this judgment about the absence of the 1st Respondent.  That concern evaporates when we find that no error has occurred in the Tribunal’s decision in relation to Mrs Smith, since the liability of the 1st Respondent would be vicarious.  The absence of liability in Mrs Smith disposes of allegations in relation to the 1st Respondent, her employer.

11.	In those circumstances the appeal is dismissed.