Appeal No.	 EAT/450/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 March 1999
Judgment delivered on 28 April 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MRS D M PALMER
MS B SWITZER

BRITISH TELECOMMUNICATIONS PLC	APPELLANTS

(1) MR J ODUSINA (2) MR C SIMPSON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J BURKE QC
and
MS RUTH DOWNING
BT Group Legal Services
BT Centre
81 Newgate Street
London EC1A 7AJ	
For the Respondents	MR N UNDERHILL QC
and
MR R THACKER
Messrs Lawford & Co
Solicitors
102-104 Sheen Road
Richmond
Surrey TW9 1UF	

	MR JUSTICE HOLLAND:     

Introduction
	Mr Jaiyeola Odusina is black.  He was employed by British Telecommunications P.L.C.  (“BT) from March 1988 to the 15th September 1995.  Mr Calbert Simpson is black.  He was similarly employed from December 1987 to September 1995.  By way of Extended Reasons of the 14th February 1997 an Industrial Tribunal sitting for London South adjudicated upon their respective complaints as follows:

“The unanimous decision of the Tribunal is that:
a.	the Applicants were constructively dismissed, the dismissal was unfair and the Applicants did not contribute to their dismissal;
b.	the Applicants were unlawfully discriminated against on racial grounds contrary to section 4(2)(b) read with section 1(1)(a) of the Race Relations Act 1976 (the 1976 Act) in the way access was afforded to opportunities for promotion.
c.	the Applicants were unlawfully discriminated against on racial grounds contrary to section 4(2)(b) read with section 1(1)(a) of the 1976 Act by the refusal of promotion; and
d.	the Applicants were unlawfully discriminated against contrary to section 4(2)(c) read with section 1(1)(a) of the 1976 Act in that they were subjected to the detriment of not having their grievance dealt with within the timescale provided for by the Respondent’s procedures.”

	Against that decision the Respondents appeal, alleging that such was legally flawed.  It is to be noted that there was a subsequent remedies hearing itself giving rise to a further appeal by the Respondents.  This awaits resolution of the first appeal and we are not concerned with it.

The Facts

	By 1994 both Applicants were technicians, graded T2 A.  The next steps up the grading ladder were to T.O. (technical officer) and then L1 (manager).  For a period of time terminating in early 1995 the BT ceased making promotions to T.O..  During the latter part of this period the Applicants had like jobs that were concerned with ‘development’ - in this context that relates to an early stage in establishing private international telephone lines.  The next stage in this activity is called ‘provisioning’.  Both developing jobs and provisioning jobs were encompassed in one ‘job file’, some twenty pages in length.  Both Applicants had annual performance reviews for 1994 which were notably good.  It is material to note that so much of the respective reviews that related to technical competence secured the commendation ‘very good’.  It is further material to note that each occupied a position that, but for the promotion freeze, would have been appropriate for a technical officer if not an L1 manager and they accordingly shared a technical officer allowance.  As and when in early 1995 the freeze on promotion to technical officer was lifted, the Applicants’ respective jobs were made the subject of fresh appointments - an exercise that reflected a desire to have them held by technical officers, along with several other similarly graded jobs.  An internal markedly non-specific advertisement of April 1995 offered these two jobs along with eight others, each to have the grade, technical officer.  The total of ten jobs were to be found in various parts of London;  the Applicants’ jobs being identified as being in ‘international provisioning and development’:  seemingly, no more specific written job description was prepared for the appointment exercise.  In the event, each applicant applied for re-appointment to their respective job so as to seek technical officer grading.  They were short-listed for interview along with another five candidates, one black and four white.  The interviewing was conducted by reference to a marking system that respectively allotted marks under various heads and produced as respective totals, 58, 53, 50, 49, 48, 47 and 47.  The latter two figures were those allotted to the Applicants;  the former two figures were those allotted to the successful white candidates.  How did it come about that neither Applicant secured sufficient marks to retain his respective job?  Examination of the component marks show that each man was marked down on technical application, notwithstanding their respective 1994 assessments.  How did that come about?  The answer, as found by the Industrial Tribunal, is that for the purposes of this appointment exercise the scope of the job had been widened to include provisioning as well as development.  Whilst both Applicants were demonstrably equal to the technical demands of development, neither had experience in provisioning.  Further, neither man foresaw (whether through specific warning or otherwise) that the job that he knew to be about development would be deemed to include provisioning.  The resultant sense of grievance was no doubt enhanced when it became apparent that one of the successful candidates was a technician in provisioning covered by the same job file.  The range of the latter was then reflected in the content of an internal memorandum of the 22nd June 1995:

“TRAINING OF NEW PROMOTEES
As I have explained previously, the following is the course of action I expect to be taken with regard to the 2 TO positions on IPC Development.
1.	Week beginning 10/7/95, Mr Hewson and Mr Hobson are to move to IPC Development to take up their permanent TO positions.  I will require that Calbert and Yinka will give Nigel and Paul help and assistance, with suitable training, on what the work involves, the filing system in use and any local procedures involved in this work.  I estimate this will take approximately 1 week, but will need to be flexible to account for any unforeseen circumstances.
2.	After this period of tuition is complete, Yinka will move to the 6th floor development group, where he will be trained on all aspects of work within the section, including ERS and NEAS as it becomes available.
3.	Calbert will move out to the 3rd floor to take up Nigel’s old position on provision work, and will receive training as appropriate, from either George Botsio or other TO’s as required.”

	Turning to subsequent events, both men asked for explanations, and made complaints to the Tribunal.  The respective ITI’s are dated 14th and 19th July respectively;  each complains of racial discrimination and constructive dismissal.  It is at this stage that the chronology becomes important:

13th July 1995 - Mr Simpson writes to his line manager, Mr Lovell, initiating “the formal grievance procedure in relation to my unsuccessful application ..... on the grounds of racial discrimination.”  The letter concludes:  “It is as a direct consequence of this discriminatory treatment that I have reluctantly decided to leave the company, however I still wish to pursue my rights under the grievance procedure.”

2nd August - Mr Odusina writes a letter to like effect.  He concludes:  “As a result of my treatment, I have concluded that there is no future for me within this company and so I have no alternative but to reluctantly opt for voluntary redundancy in order to realise my potential that BT obviously does not recognise.  Nevertheless I still wish to exercise my rights under the company grievance procedure.”

21st August  - The union pointed out that neither man had had a response notwithstanding that one such should have been forthcoming within 10 days.

30th August  - The Applicants are informed that the complaints are being referred to the company’s Equal Opportunities Advisor.

September  - Both Applicants leave their employment on a voluntary redundancy basis.

3rd October - Both are informed that because their respective employments had terminated so had their respective grievances.

25th October - Both Applicants initiate additional complaints, this time relating to the BT’s failure to investigate their respective grievances before their employments ended, or at all.

The Industrial Tribunal

	After hearing evidence for some seven days, the Industrial Tribunal sought to resolve the central issue of fact namely as to what lay behind the Applicants’ failure through the selection process to retain their jobs.  Their finding as to such and as to what flowed there from can be traced as follows:

Paragraph 33.  “the Tribunal found this case deeply concerning.  The main question it asked itself throughout the hearing of the evidence was why the job description was expanded to include provisioning.  The answer it generally received from the Respondent’s witnesses was that the job always included the provisioning aspect as well as the development aspect.  The Tribunal does not agree.”  In the balance of the paragraph this stance is explained, concluding “The Tribunal therefore finds that the two promotion posts were indeed tied to the development job which the Applicants had been doing so well.”

Paragraph 34.  “The Tribunal asks itself again why the job specification was expanded to include duties which were not part of the development post and can find no satisfactory explanation.”  Referring to the highest scorer, the white Candidate E, “..... it notes that by widening the job specification to include the provisioning area, the Applicants were immediately disadvantaged and candidates like Candidate E were conversely advantaged .....The Tribunal can find no reasonable explanation for the expansion of the job specification and in the absence of such an explanation infers that it was expanded to disadvantage the Applicants, who in view of the fact that they were doing the job, could reasonably have been expected to gain the promotion.  Section 4(2)(b) is written in terms of the way in which access is afforded for promotion.  The Applicants are black and the successful candidates were white.  The Tribunal therefore finds that the Applicants were unlawfully discriminated against on racial grounds in the way access was afforded to promotion .....”

Paragraph 35.  “..... Having found that the expansion of the job specification was unlawful discrimination on racial grounds, it therefore follows that the refusal to promote because the Applicants failed to meet the technical criteria was also unlawful discrimination on racial grounds contrary to Section 1(1)(a) of the 1976 Act.”

Paragraphs 36, 37 and 38.  The Tribunal found that the delay in dealing with the grievances of the Applicants was discriminatory contrary to Section 4(2)(c) read in conjunction with section 1(1)(a) - the delay being until they were referred to the Equal Opportunities Unit.

Paragraph 39.  “Finally, the Tribunal finds that the Applicants were constructively dismissed.  The failure to promote them, coupled with the failure to deal with their grievance and possible race discrimination was conduct on the part of the Respondent with which no reasonable employee could be expected to put up.  Both Applicants resigned by applying for voluntary severance and the Tribunal is satisfied that this was a direct result of the belief that they had been discriminated against in the failure to promote them.  The Tribunal has found unlawful discrimination in that failure to promote and therefore that dismissal was unfair and the Applicants did not contribute to it.”

The Appeal

	On behalf of BT, Mr Burke QC took essentially the following points:

1.	In paragraphs 33, 34, 35, references to “the job description” and “the job specification” are references to the same thing.

2.	What is referred to is that which we have referred to as “the job file””:  Why so?  First, the only earlier reference to “the job specification” to be found in the Extended Reasons  is in paragraph 16 in terms, “The job specification too (documents R2/48 and 49) for the promotions was also generic covering provisioning as well as development.  The Applicant, Mr Odusina, had not seen this job specification before it was issued and had not been consulted about its contents.  When he saw it, he protested that this was not his job description.”  The two pages referred to are two of the 20 pages constituting the job file.  Second, he pointed out that the final written submission of Mrs Ainsley, the trade union representative acting for the Applicants before the Tribunal, included in terms:  “We invite the Tribunal to consider whether the drafting of a job description dated 19th December 1994 .... might not be seen as a deliberate attempt to open up Mr Odusina and Mr Simpson’s posts to the widest possible number of applicants.”  Third and finally, if the Tribunal were referring in paragraphs 33, 34, and 35 to a document then there was none other than this job file.

3.	On this premise, the finding of the Tribunal was hopelessly flawed.  Perusal of the job file shows no evidence of interference so as artificially to expand it.  Further, it is plain that as at the 19th December 1994 it served to provide a fresh addition  of a job file of similar scope dated 17th October 1994 - which latter job file plainly pre-dated this job selection process.  Yet further, no point had been raised during the hearing before the Tribunal as to the drafting of the job file - and hence no evidence adduced as to such.  The first reference to its drafting came by way of Mrs Ainsley’s submissions and simply reflected her misunderstanding of the evidence.  In the overall result unknown employees were being condemned unheard as being racially discriminatory inasmuch as in wholly speculative circumstances they ‘expanded’ the job file in a manner that was equally a matter of speculation.  The crucial finding was simply not open to the Tribunal.

	Mr Burke QC took two other quite separate points:  to these we will turn in due course.

	On behalf of the Applicants, Mr Underhill QC accepted that references to “the job description” and “the job specification” were references to the same concept, but submitted that such could not be the job file.  As to this, he accepted that the latter had origins that pre-dated the selection process;  he accepted further that there was no evidence that that document had been expanded, whether to discriminate racially or for any other reason.  His submission was that the Tribunal was identifying the description applied to the Applicants’ jobs purely for the purpose of the selection process.  At some stage a decision had been made, he argued, so to describe the jobs that were to be filled as to deem that such embraced not just the development work that constituted the reality of such but also the provisioning work that was undertaken by others (including one of the successful candidates) under the wide umbrella of the job file.  That ‘description’ (seemingly, if surprisingly, oral) did arguably represent an  ‘expansion’ - and the Tribunal’s concern with such as revealed in paragraph 33, 34 and 35 was wholly justifiable as being plainly material and in no way unfair.

	For our part, if the proposition underpinning this crucial decision is that the written job file was ‘expanded’, then Mr Burke’s submissions are plainly well founded.  Further, it is unfortunate that the Tribunal is not more specific when identifying what it means by ‘job description’ and ‘job specification’ - more so, when there is the earlier reference to two of the twenty pages of the job file.  That said, we are entirely satisfied that the concept is as envisaged by Mr Underhill so that the reasoning in the key paragraphs can be readily upheld.  As to this, first, we remind ourselves that the source and the terms of the description of the job for the purposes of the selection process remained throughout obscure and it is this obscurity that is rightly pinpointed by the Tribunal at the opening of paragraph 33 as a prelude to explaining their efforts to elucidate such, seemingly by questioning the witnesses for BT.  This leads on, second, to the proposition that if in truth the Tribunal had in mind the identifiable job file, this whole approach and the resultant analysis of the witnesses’ responses makes no sense at all.  It is in part because on Mr Burke’s premise, their whole approach makes no sense that we come to question his premise and find it unsustainable.  In the overall result, third, we cannot fault the focus of the Tribunal in terms of materiality and fairness and we see no basis for allowing any appeal based on this part of the Extended Reasons.  From the outset the crucial issue was as to how and in what circumstances the Applicants’ demonstrable technical competence for the purposes of their own jobs came to be assessed as inadequate.  The answer lay in the jobs as they were deemed to be by way of the apparently oral specification postulated for the selection process - and the key to the case lay in the source and explanation for such, as the Tribunal correctly pointed out.  One we are satisfied that the Tribunal correctly directed itself, we are in this regard functus officio:  thereafter it is a jury assessment of the evidence by the Tribunal.  We add:  Mrs Ainsley’s submission was as quoted plainly wrong but it was not adopted by the Tribunal.

The Grievance Procedure

	Mr Burke QC again drew attention to the written final submission of Mrs Ainsley, this time to point out that it was her submission that the delay in implementing the grievance procedure had been deliberate and aimed at preventing its fulfilment before the Applicants took voluntary redundancy, knowing that it would then terminate forthwith.  He points out that this case was not even referred to in the Extended Reasons, let alone sustained.  The Tribunal identified a delay of a fortnight or so that terminated on the 29th August with the reference to the Equal Opportunities Unit, the Applicants then still being in BT’s employment.  The Tribunal was critical of the delay, but identified a lack of urgency coupled with absence on holiday.  Mr Burke accepts that criticism of the delay was justified but submits that these findings of fact do not begin to disclose racial discrimination by way of victimisation as defined by Section Race Relations Act 1976.  Mr Underhill understandably could not discern a cogent response and we have no hesitation in allowing the appeal against the finding based on conduct of the grievance procedure.  Absent the facts as contended for by Mrs Ainsley, there was simply no basis in law for a finding by reference to Section 2.

Constructive Dismissal

	It is helpful to remind ourselves of the oft-repeated exposition of the concept of constructive dismissal expounded by Lord Denning M.R. in Western Excavating (E.C.C.) Ltd v Sharp (1978) 1.C.R. 221:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  He is constructively dismissed.  The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice.  But the conduct must in either case be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains:  for, if he continues or any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

	Although Mr Burke QC is critical (rightly in our view) of the Tribunal’s analysis of that which constituted BT’s breach, he accepts that if he fails on the main thrust of his appeal then, even if he succeeds with respect to the grievance procedure issue, there remains a sufficient basis for an election by the Applicants as to whether to be bound by their respective contracts of employment or not.  His particular point emerges succinctly from his skeleton argument:  “Further and in any event (the Applicants) did not terminate their contract of employment by reason of BT’s conduct;  they applied for voluntary release or redundancy under BT’s release scheme and were accepted and paid in each case a substantial sum pursuant to the release scheme.  This was not a case of dismissal but of consensual termination.  The Tribunal failed to consider whether this was a case of consensual termination and not constructive dismissal.”  In response, Mr Underhill QC effectively repeats and adopts the latter sentence:  the Tribunal did not consider the point because it was not clearly taken before it - and it is now, he submits, too late to raise the issue.  We agree and on that basis reject this further head of appeal.  Plainly, if the point was to be taken it called for consideration in terms of evidence and resultant findings of fact and there was none such.  That said, we are not  instinctively sympathetic to the point.  One option contemplated by Lord Denning M.R. is the giving of notice, a process which necessarily involves a degree of affirmation of contract, albeit not such as to run counter to the essential stance that there has been repudiation and it is accepted.  Given that the Applicants made it abundantly clear that it was the conduct of BT that was forcing them to opt for voluntary redundancy, does their conduct in that regard betray affirmation as distinct from mitigation of loss?  It is to be noted  that for the purposes of computing compensation, credit has been given (so we are told) for the money received by way of the voluntary release scheme.

Conclusion

	Averting to the findings of the Tribunal as set out at the beginning of this judgment, we dismiss the appeal with respect to decision (a), (b) and (c);  we allow the appeal with respect to decision (d) so as to dismiss so much of the respective complaints as relate to such.  We are grateful to the parties for the high standard of helpful advocacy.