Appeal No. PA/0823/03 SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 September 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)

MR I O ASHOGBON	APPELLANT

THE FREMANTLE TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3 (10) APPLICATION – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR I O ASHOGBON
(the Appellant in Person)	

HIS HONOUR JUDGE J McMULLEN QC

1	This case is about race discrimination and victimisation.  I carefully pre-read the relevant papers before today’s hearing.  I will refer to the parties as Applicant and Respondent.

Introduction

2	It is an appeal by the Applicant in those proceedings against a reserved decision of an Employment Tribunal sitting at London (Central), over seven and a half days in January and February 2003, registered with Extended Reasons on 1 May 2003.  The Applicant was in person.  The Respondent was represented by Counsel.

3	The Applicant claimed race discrimination and victimisation against his employer.  The Respondent denied those claims.

4	The central issues, as defined by the Employment Tribunal, had been set out for it by an earlier Employment Tribunal and it was to decide the substance of the Applicant’s two Originating Applications.  The Tribunal determined those applications against the Applicant in all respects.

5	The Applicant appealed in a Notice of Appeal which was lodged by fax on 13 June 2003.  At first sight, therefore, this was one day outside the 42-day period.  This has not appeared to have caught the attention of either the office or the judge who has dealt with this hitherto, or the Registrar.  I have asked Mr Ashogbon a little about this.

6	It seems to me that if this matter were to go any further a decision would have to be made by the Registrar pursuant to Rule 21 about whether the Originating Application was received in time and if not whether there were exceptional reasons for it be admitted under the doctrine of Abdelghafar v United Arab Emirates [1995] ICR 65.  I will put that matter to one side for, as I have told Mr Ashogbon, I will dismiss his application on the merits.

7	The basis of the appeal has been extremely difficult to understand, for the Notice of Appeal extends in handwriting to 120 pages, although it is fair to say that since the fax machine seems to have gobbled up some of the pages, not every one is complete with a full page of writing.

8	The case was dealt with by His Honour Judge Peter Clark at the sift and he decided that the papers should be sent to the Registrar with his recommendation that no point of law arose.  That was done.  The Registrar has considered the papers herself and has formed the conclusion that no point of law arises and thus there is no jurisdiction under section 21 of the Employment Tribunals Act 1996 for the case to be heard.

9	In accordance with Rule 3 the Applicant was given the option of submitting a new Notice of Appeal or having the papers put before a judge.  He has done both, for he has sent a Notice of Appeal which in form is a Notice of Appeal against the Registrar’s decision, but also is an addition to the original Notice of Appeal.  I find this much more helpful since this is a mere 22 pages; the essential grounds are set out by and cross-referenced to both the material which follows and to the material which preceded; in other words, there is before me now more material than there was before either Judge Clark or the Registrar.

10	The Tribunal at the outset made a number of what might be described as observations but might also be described as criticisms of the presentation by the Applicant of his case.  This was to deal with a number of disputes which had arisen about the procedure.  It is right to note that the Applicant was allowed to make all points he wished to make but was subject to case management directions, as was the Respondent; and those management decisions had to be reiterated.

11	The Applicant is black Nigerian and began his employment with the predecessor of the Respondent, the London Borough of Barnet.  A number of disputes arose between the Applicant and the Respondent’s relevant officers including allegations against him about incidents with female members of staff over a period of time and cross-allegations by the Applicant that he was being discriminated against on the basis of his race.

12	The sum of his complaints was 38.  The Tribunal examined the material and broadly speaking accepted the evidence of the Respondent’s witnesses where it conflicted with the Applicant’s.  As to that broad observation and finding, the Tribunal has given the evidence upon which it was based.

13	The central finding by the Employment Tribunal is based upon an investigation conducted by the Aylesbury Vale Race Equality Council under the chairmanship of Mr Parmodh Sharma, the terms of membership and the composition of which were initially disputed but then agreed by the Applicant.  That looked into the problems which the Applicant and his employment had brought to light.

14	The Sharma panel dismissed all of the Applicant’s complaints of racism.  The Tribunal having noted that matter made its own conclusions.  It firstly decided that the initial report, which had made criticisms of the Respondent and indicated that the Applicant had been unfairly treated, was not connected to the issues which were ultimately raised.

15	The Tribunal concluded the Applicant behaved in an unacceptable manner towards female colleagues; that there was poor management in the failure by the management to tackle the Applicant’s behaviour; and in that respect he was treated more favourably.

16	The Tribunal acknowledged the thorough treatment given by the Aylesbury Vale panel and noted the comparison with a hypothetical white person in the position of the Applicant.  It concluded that the complaints which he made were not substantiated on the ground of race, but complaints had been made about his behaviour, as to which the hypothetical comparator would have been treated no differently.

17	The Tribunal decided, having laid out the evidence in respect of all of the complaints by way of background matters, that the Applicant was not treated less favourably than others.  It decided that there was no basis to even consider whether it was appropriate to draw an inference on the grounds of race.  It found that the Applicant had greatly exaggerated certain complaints.  It therefore decided that having decided against him on the merits it was unnecessary to consider whether certain claims were within or without time.

18	The Applicant in his Notice of Application from the Registrar raises five points.  First, he contends that the decision was not reasonable, that it was perverse.  The evidence, he contended, established that racial harassment had taken place against him over a period of time including bullying; that that had affected his mental health and that the Tribunal had accepted evidence on how management saw things rather than his.  This is the first of a number of occasions on which the Applicant accepts that evidence was given on behalf of the Respondent and by him and the Tribunal decided in favour of the Respondent.  That of course raises an issue of fact and not a question of law, there being material, as his concession shows, upon which the Tribunal could make its decision.  Naturally he disagrees with it, but that does not raise, in my judgment, a question of law.

19	Secondly, the Applicant contends that an amendment should have been allowed.  Even if it were open to the Applicant to make a complaint about that, because the decision about the Originating Application had already been made by a Tribunal in advance of the instant Tribunal, it seems to me that that is a matter of discretion for the Employment Tribunal.

20	As to the burden of proof, the third contention of the Applicant is that there were contradictory statements between what the Applicant and the management said.  My observation above applies.  I have no doubt that the Tribunal directed itself correctly in relation to the authorities which it set out in its reasons, for the Applicant accepts that that is an impeccable self-direction: see paragraphs 4 and 5 of the reasons.  That self-direction includes a statement of the statute and of the relevant authorities.

21	The issue in this case is whether the Tribunal applied those correct directions.  It is contended that where there is a dispute the procedure set out in Anya v University of Oxford [2001] IRLR 377 should apply; so it should.  People changed their evidence, I am told.  That is a matter that was put before the Tribunal.  Inconsistencies were pointed out, I am told.  Again, that, and balancing those inconsistencies against the documents, are matters for the Employment Tribunal.

22	It is true that the Tribunal should seek to see whether the substantial cause of certain treatment is racial bias.  The Tribunal has looked at that, and cannot be faulted.  It has looked at the whole picture rather than each individual item, or at least it has looked at each individual item and stood back, as enjoined by the judgment of the Court of Appeal in Anya.

23	Fourthly, the Applicant contends that less favourable treatment has been suffered by the Applicant.  The test is set out in the authorities which were cited.  The Applicant contends that he was treated less favourably but the Tribunal has given, on cogent reasoning, its decision about why it did not accept that case.

24	Fifthly, as to detriment, it is correctly submitted that the law is as laid down by the Court of Appeal in Ministry of Defence v Jeremiah [1980] ICR 13.  It is not necessary to suffer physical or economic loss.  This is supported by the judgment of the House of Lords in Shamoom [2003] ICR 337.  Again, the treatment of this issue does not appear to indicate a question of law.

25	Finally, it is contended that there is direct discrimination as exhibited by documentary evidence.  As the Applicant accepts, the documentary evidence was in front of the Employment Tribunal.  He contends that if the principles of the above authorities had been applied there would be a classic example of unfavourable treatment, as to which the burden of proof has been incorrectly allocated by the Employment Tribunal; and yet he maintains again that the differences between his submission and the Respondent’s submission were in front of the Tribunal and his complaint is that the latter was accepted over the former.

26	In my judgment, although the Applicant has argued forcefully in his written case and in his oral presentation, which extended long beyond the normal period, that there is a question of law to be heard in this case, I cannot see it.  It seems to me that my initial account of how the Applicant put his case is conclusive.  There was evidence but the Employment Tribunal preferred that of the Respondent to the Applicant.  No question of law arises about that.

27	As I have said, if this matter is to be taken any further, a decision will be necessary on the time point.  But I have chosen to base my judgment solely upon the merits.