Appeal No.	 EAT/771/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 31 October 1997

Before
THE HONOURABLE MR JUSTICE MAURICE KAY
MR K M HACK JP
MRS T A MARSLAND

MR A ADEBOWALE	APPELLANT

THE POST OFFICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

	MR JUSTICE MAURICE KAY:     This is a preliminary hearing of an appeal by Mr Adebowale against a decision of the Industrial Tribunal sitting at Leeds.  The hearing in Leeds took place over four days earlier this year.  The Appellant was seeking to pursue a claim under the provisions of the Race Relations Act 1976 and also a claim for breach of contract in the form of wrongful dismissal.

	The Appellant is black and of Nigerian national origin.  He is an articulate and intelligent man with high academic and professional qualifications in the field of law.  In July 1996 he took employment in Huddersfield as a postman and he worked for the Royal Mail from 8 July 1996 until 2 August 1996.  He was given the usual training that was given to newly recruited postmen and then he set about working as a postman.  It is apparent from what we have already said that that employment was only to last for about 3½ weeks.  

	The Royal Mail ultimately dismissed him because of concern about a number of incidents.  It is recorded in the decision of the Industrial Tribunal that in a short period there were a number of complaints which the Royal Mail treated as minor, but there were in fact six items of complaint which they viewed seriously.  These were as follows:

“(i)  That the applicant [as he then was] was alleged to have crossed a customer’s lawn and at the same time the same customer found a letter in her garden.
(ii)  That he had left mail in his sorting frame (as supported by the evidence of his Supervisor) which the respondents [the Royal Mail] maintained constituted wilful delay under the terms of this disciplinary procedure.
(iii)  That there had been mis-delivery of mail by the applicant.
(iv)  That there had been complaints from a customer whose mail had been found by another customer.
(v)  That mail had been strewn over a customer’s garden, allegedly by way of putting it over a garden fence.
(vi)  That a parcel had been forced through a letterbox which had resulted in that letterbox being damaged.”

	As a result of these complaints the Appellant was interviewed by Mr Casper on 2 August 1996.  He had, in fact, previously been interviewed in respect of one or two of the incidents by Ms Pogodzoski .

	At the end of Mr Casper’s interview on 2 August, which interview took place with a view to disciplinary action, Mr Casper allowed the Appellant to complete his deliveries that day and then further interviewed him at the end of those deliveries.  The Appellant was dismissed.  He lodged an appeal which was heard by Mr McIntosh on 5 August.  That appeal was unsuccessful.

	Subsequently the Appellant wrote to Mr McIntosh on 19 September 1996 asking for the reasons for his summary dismissal and drawing attention to the provisions of Section 65 of the Race Relations Act 1976.  Mr McIntosh replied by a letter dated 8 October stating that the reason for the termination of employment was “your inability to reach the standards required by Royal Mail to deliver and safeguard letters and packets”.  In due course the Industrial Tribunal was to find as a fact that that was the reason for the termination of the Appellant’s employment.

	Clearly, the Appellant was not in a position to claim unfair dismissal since he did not have the necessary two year qualification.  One of the matters which caused him concern was that he claimed to have been deprived of the contractual disciplinary procedure referable to himself and everybody else.  As it turned out there was no dispute about this.  It is recorded in the decision of the Industrial Tribunal:

“It was common ground that the disciplinary procedure itself was not followed in its entirety by the respondents in that they did not follow the full procedure in terms of the methods of investigating, interviewing and holding disciplinary meetings that was contractually applicable to a full-time permanent employee of the Post Office.  Explanation was given by the respondents and accepted by the Tribunal and the Tribunal therefore find as a fact that in the case of employees who have been recently recruited and are therefore on a probationary period, such as the applicant, do not have the full disciplinary procedure applied to them”.

	The question in the context of the Appellant’s claim to have been the victim of unlawful discrimination was whether that omission to apply the full disciplinary procedure was, or was capable of being a matter of discrimination.  The Industrial Tribunal adverted to that and said:

“The Tribunal further finds as a fact that this approach is generally applied by the respondents to all such probationary employees and there is no discimination in its application to the applicant in this particular case.”

	In other words, whilst it is common ground that the full procedure was not followed, it was found by the Tribunal that the reason for that was not connected with race, but was a policy applied across the board to probationary employees.

	So far as that finding is concerned, it is clear that it was based on evidence before the Tribunal.  We make no comment as to the policy of applying a different procedure to probationary as opposed to permanent employees.  It is not a matter that was before the Industrial Tribunal.  What was before the Industrial Tribunal was whether the reason for denying the Appellant the full procedure was connected with race.  There is a clear finding that it was not and we cannot see any point of law that would enable the Appellant to overcome this finding in this Appeal Tribunal.

	In the course of what has been a lengthy preliminary hearing, it has become apparent to us that the Appellant feels a sense of grievance about the implications for him of his summary dismissal by Royal Mail.  He has at times (and we make no criticism whatsoever for this) exhibited an emotional reaction to these events and to his present plight.

	It is quite clear to us that at no stage did the Royal Mail or the Industrial Tribunal categorise the Appellant as having acted dishonestly, or with the kind of moral obloquy which he seems to sense.  Equally, it is clear to us that the Appellant simply fails to appreciate the seriousness with which the Royal Mail viewed his performance and was entitled to view his performance.  The delivery of mail is an extremely important function.  People, be they personal or commercial, place great store in the correct delivery of their mail and the Royal Mail is criticised, and rightly criticised, if very high standards are not achieved, particularly so if what takes place includes non-delivery or mis-delivery or late delivery which could have been avoided, or a failure to safeguard mail.

	We take the view that the conclusion which the employer reached and indeed, which the Industrial Tribunal accepted and shared, was that for some reason the Appellant had fallen substantially below the standards of performance that were reasonably and contractually required of him.  Neither the employer nor the Industrial Tribunal came to any conclusion as to why that had taken place.  In the course of the hearing before us, the Appellant has sought to re-open some evidential matters about the six specific incidents that formed the basis of the employer’s and the Industrial Tribunal’s decision.  Having listed them, the Industrial Tribunal went on to say:

“The Tribunal find that those complaints were in fact proved.  Effectively the applicant never challenged these particular incidents during the course of the Tribunal proceedings although explanations were given as to what might have happened in certain situations but these were not explanations that could be viewed by the Tribunal as contradicting the actual facts before them.”

	It is abundantly clear that, over the four days of the hearing, the Tribunal heard a great deal of evidence from both sides and a great deal of cross-examination.  The decision of the Tribunal was that the employer found the complaints proved and the Tribunal confirmed that finding.  We do not think that there is any legal basis for seeking to challenge that finding.

	We, of course, accept that if a Tribunal misunderstands the evidence or can be shown to have ignored evidence, or to have mishandled it in some way, then this Appeal Tribunal can, in very occasional circumstances, proceed on the basis of a point of law in respect of a defect in an evidential finding of fact.  Those circumstances are exceedingly rare and circumscribed and, in our judgment, they do not arise here.

	The question before the Industrial Tribunal on this issue was whether the summary dismissal of the Appellant was connected with race discrimination.  In the course of the hearing the Appellant had referred to other employees claiming that they had been treated differently in different circumstances.  The conclusion of the Industrial Tribunal was that the circumstances were wholly different and they were not comparators of any assistance to the investigation that was being carried out.

	This Appeal Tribunal is very conscious of the fact that race discrimination can be exceedingly hard to prove.  That is the very reason why the Court of Appeal in the case of King v Great Britain-China Centre [1991] IRLR 513, laid down an approach which, in an appropriate case, will result in the drawing of inferences of discrimination from primary facts.  The Industrial Tribunal in the present case had King cited to it and came to this conclusion:
	
“In particular, as stated in King v Great Britain-China Centre .. it is open to the Tribunal to draw inference from the primary facts in cases where discrimination is alleged.  In this case there was, on the primary facts, no facts that could give rise to an allegation of racial discrimination against the applicant by Mr Casper, on behalf of the respondents, or any other management employee of the respondents and therefore of the respondents themselves.  Further, the Tribunal cannot find, on the primary facts, that any inference of such discrimination was raised.”

	That may involve something of a paraphrase of the approach set out in detail by Neill LJ in the case of King, but it is nevertheless entirely consistent with that approach.

	The Industrial Tribunal was at pains to consider whether the Appellant had been treated less favourably than others, whether there was a difference in race and if so, whether it was appropriate to draw an inference of race discrimination.

	We cannot discern any error of law in their approach.  It seems to us that, on the evidence, the Industrial Tribunal was entitled to conclude that they could find no less favourable treatment in relation to the Appellant and that there was no fact or matter such as to justify an inference that his summary dismissal or anything else, was the result of race discrimination.

	It follows from that and, we say this with respect to all the points raised by the Appellant in connection with the claim for race discrimination, that in our unanimous judgment there is no point of law which, if taken further, could be successfully argued before this Appeal Tribunal in a final hearing.  We turn next to the question of breach of contract and wrongful dismissal.

	The Appellant’s case was that the Royal Mail broke the contract by dismissing him summarily in circumstances when they were not lawfully entitled so to do.  Although the words “gross misconduct” have been used in the course of this hearing and were used before and by the Industrial Tribunal, the ultimate test of the right summarily to dismiss someone is a common law test based on breach of contract.  The question that had to be considered is, whether the Appellant had committed so serious a breach of contract by his performance of his duties as to permit an employer to dismiss him without notice.  Given the job that he was doing and given the number and frequency of complaints within a very short period of time, it seems to us that the Industrial Tribunal was entirely right to conclude that the facts justified summary dismissal.  Accordingly, we do not find any arguable point of law under that heading either.

	The outcome therefore is this, that in our judgment, if this matter were to proceed to a further hearing the appeal would fail in its entirety.  In those circumstances, it is our duty not to permit the case to proceed to a further hearing and it is hereby dismissed.

	We would wish to say before leaving the case that Mr Adebowale has made numerous submissions ranging over a wide area with conspicuous intelligence and, as a result of considerable industry.  We have not referred to the many authorities which he has mentioned to us.  We do not, by that failure to refer to them, intend any discourtesy to him.  It is quite common for this Appeal Tribunal not to allow the citation of authorities at all in preliminary hearings and it is very unusual for a preliminary hearing to be allowed to proceed to the length that this one has achieved.  We would say, as a general comment however, that a number of the authorities which were cited to us have, with great respect to the Appellant, nothing to do with the specific issues that were before the Industrial Tribunal and are before us.  The outcome, we repeat, is that the appeal is dismissed.