Appeal No. EAT/351/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT THE ROYAL COURTS OF JUSTICE,
STRAND, LONDON, WC2A 2LL

	At the Tribunal
	On 10 September 2001

Before
MR RECORDER UNDERHILL QC
PROFESSOR P D WICKENS OBE
MR G H WRIGHT MBE

MR E NEGATU	APPELLANT

WILSON JAMES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	The Appellant in person	

MR RECORDER UNDERHILL QC

1	This is the preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Stratford dismissing the Appellant’s claims for breach of contract and for racial discrimination.

2	The brief facts are as follows: 
(1)  The Appellant, who is of Ethiopian origin, was on 8 June 2000 interviewed for a job by a Mr Williams of the Respondents.  
(2)  On 14 June 2000 the Respondents wrote to the Appellant in the following terms:
“(Mr Negatu Eshetu)
8 Overy House
Webber Row
LONDON SE1 8QX
Dear Mr Eshetu
Wilson James Limited are pleased to offer you employment and ask that you contact Nigel Williams on 07970 631004 to discuss a suitable start date and further details.
Yours sincerely
Elaine Robertshaw
Personnel Department
For and on behalf of Wilson James Limited”

The evidence of the Respondents was that that letter was sent in error because it should have been made clear that any offer was subject to references, which were at that time still being followed up.  

(3)  In the event a faxed reference was received on 15 June 2000 from Pall Mall Services, by whom the Appellant had been employed for two weeks in November 1999.  The reference indicated the Appellant’s reason for leaving as:
“voluntary, refused to work after disciplinary”

and noted that he:
“needs maximum supervision - unable to work by himself”
It was the Respondents’ evidence, and the Tribunal accepted, that on receipt of that fax Mr Williams was told that if the Appellant telephoned he should be told that the offer could not be pursued pending further enquiries because the Respondents had received a bad reference.  

(4)  Later that day the Appellant did telephone, and the Tribunal found that Mr Williams passed on that message; the Appellant was extremely upset.  

(5)  On 22 June 2000 the Respondents received another reference from a Mr Christie of NCP by whom the Appellant had been employed from 1992 to 1997.  The reference was given in a phone conversation of which Ms Robertshaw of the Respondents took the following note:
“Barry Christie from National Car Parks called re reference for Mr Negatu.
He was dismissed for assaulting a colleague and then tried to take them to an Industrial Tribunal. 
He was eventually fined at Bow Magistrates Court £1000 - (to the guy he assaulted).
Mr Christie found him very troublesome and would not recommend anyone taking him on!!”

(6)  The Respondents decided not to proceed with any offer of employment to the Appellant who was accordingly so notified by a letter of the same date.

3	The Appellant then brought the present proceedings.  The Tribunal had some difficulty in analysing his claim, but the Chairman evidently took a great deal of trouble both at a directions hearing and at the substantive hearing, as reflected in the Extended Reasons, to ensure that the substance of his complaint was properly identified and was addressed.  It was treated as being twofold: 

1) Breach of contract:  The Appellant’s claim was, as analysed by the Tribunal, that in the conversation on 15 June 2000 he had accepted the offer of employment contained in the Respondents’ letter of the previous day, and that accordingly, the letter of 22 June 2000 was a breach of a pre-existing contract to employ him.  On that basis the Tribunal accepted that it would have jurisdiction to entertain a claim for damages for breach under the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994:  the claim would be one that arose and was outstanding on the termination of the Appellant’s employment under Article 3(c).

2) Racial discrimination:  The Appellant’s claim was that the failure of the Respondents to employ him, or as the case might be, its termination of his employment, was on racial grounds and was thus unlawful by virtue of Section 4(1)(c) or 2(2)(c) of the Race Relations Act 1976.  

It has not been suggested to us that that legal analysis of how the Appellant’s claim should be framed was wrong.  

4	The Tribunal rejected both claims.  

5	So far as the claim for breach of contract was concerned, it held that there was never a contract between the Appellant and the Respondents because it found as a fact, as we have noted above, that the Respondents had withdrawn or qualified the offer of 14 June 2000 before the Appellant had accepted it (see paragraph 21 of the Extended Reasons).  The Appellant has put forward no basis for contending that that finding was not open to the Tribunal on the evidence and it accordingly cannot be challenged here.  There might, in any event, have been a question whether a contract for an employment which had not in fact started was sufficient to bring Article 3(c) of the 1994 Order into play, but that point need not be considered further.  In the alternative, the Tribunal found that there could not in any event be a contract because the terms had not been agreed.  The wording of paragraph 22 of the Reasons, which addresses this point, is not crystal clear, but we need not spend time in analysing it, since it was in any event not necessary to the Tribunal’s decision which can, and as we hold, must be upheld on the ground set out above.  

6	So far as the claim for racial discrimination is concerned, the Tribunal pointed out that the Appellant’s allegations of racial motivation were primarily directed not at the Respondents but at the two companies which gave the references to which he objected.  His essential criticism of the Respondents was for acting uncritically on the references without attempting to investigate them further; but there is no indication in the Reasons, nor have we heard any suggestion that there was any evidence before the Tribunal, that the Respondents were aware of any racial motivation on the part of the reference-givers, or had any racial motivation themselves.  They had, after all, been prepared in principle to offer him a job in the full knowledge of his racial origin.  The Tribunal said at paragraph 24 of the Reasons:

“The burden of proof (on the balance of probabilities) rests with Mr Negatu to satisfy us that there was less favourable treatment of his application than an actual or hypothetical comparator; He provided no actual comparator.  Simply he said no white man would be treated likewise but he was unable to justify that suggestion in any way.  We are entirely satisfied on the evidence of the Respondent’s witnesses that it had a commercial necessity to act with expedition and that in the face of the written and oral references before it and the apparent conflicts between the Applicant’s own explanation for the end of his relationship with National Car Parks and Pall Mall Support Services it was simply disinterested in pursuing his application further.  As Mr Hales indicated to us and we believe quite honestly, it was not “commercially viable” to do so.  He would regard any similar applicant likewise.  Thus we can find no evidence whatsoever of the Applicant’s less favourable treatment.  In those circumstances it becomes unnecessary for any further examination of the second two questions referred to above following  King.”
(That is of course a reference to King v Great Britain-China Centre [1992] ICR 516.)  

7	That conclusion seems to us unimpeachable in law.  The Tribunal went on to observe that the Respondents had, in any event, good positive grounds for not pursuing any offer to the Appellant in the light of the information from NCP.  The Appellant did not deny that he had been convicted in the manner suggested by that reference, although he asserted that the conviction was unjust.  

8	The Appellant’s formal grounds of appeal are quite succinct.  He says simply:
“The decision is inconsistent with the oral and written evidence forwarded both at the hearing and prior to it.  It doesn’t focus on the issues presented to it. It is totally one-sided and deliberately omitted the crucial part of the evidence on my accepting of offer of employment when clearly told by my witness at the trial and that of the respondent’s witness during cross-examination!
It cited wrong law on its lack of jurisdiction when it is not the case.  At the same time stated contradictory point on my breach of employment contract by the respondent.”

Those grounds are, however, greatly amplified in an affidavit dated 23 May 2001 headed “Bias” and in his Skeleton Argument dated February 6 2001.  We, like the Employment Tribunal, have had to work to separate the wheat from the chaff; we have been through the Skeleton Argument with the Appellant orally, and we are satisfied that we understand the principal points which he wishes to make.  We should say that while we understand some of the difficulties which the Chairman alluded to in getting the Appellant to focus on the essential issues, he has been most courteous and articulate in his submissions to us.  Some of the points which he wishes to raise by way of an appeal we have already dealt with.  However, for completeness we should summarise the essential grounds as we understand them and our decision in relation to them.  

9	First, the Appellant objects to the Tribunal’s finding that the Respondents withdrew or qualified the offer of employment before it was accepted.  He says that the Tribunal gave no weight to the evidence of his witness, a Mr Ajala, who gave evidence of having been present with the Appellant during the conversation on 15 June and of having heard his side of that conversation (but not what was being said to him by Mr Williams).  But what weight to give to the evidence of the Appellant and Mr Ajala on the one hand, and the evidence of Mr Williams on the other hand, was entirely a matter for the Tribunal and we can see no error of law in the way in which they dealt with the matter.  They gave reasons at paragraph 18 for not finding Mr Ajala’s evidence particularly helpful.  

10	Secondly, the Appellant contends that the references given by the two referees were so inadequate - among other things in their failure to comply with the applicable British Standard - that it was wrong of the Respondents to proceed on the basis of them without further investigation; and that the Tribunal should have taken that as a basis for inferring racial discrimination on the part of the Respondents.  But even if it were a fair criticism of the Respondents, as to which we express no view, that they did not do enough to explore the references which they had been given, we can see no error of law in the Tribunal’s finding that any criticism there might be of the Respondents in this respect could not constitute a basis for inferring a racial motivation.  On the contrary, the references are plainly of a kind which would trouble an employer, whatever the racial origin of the prospective employee.  

11	Thirdly, the Appellant alleges that the Chairman was biased against him.  We have the Chairman’s comments on that allegation.  It is impossible to go in detail through the allegations of bias set out at length in the Appellant’s affidavit.  It is sufficient, however, to say that nothing which the Appellant relies on suggests to us even an arguable case that the Chairman handled the hearing unfairly.  Indeed the text of his Extended Reasons suggests that he went out of his way to deal with the case as fairly to the Appellant as possible.  

12	Fourthly, the Appellant complains that the Chairman accepted the truth of the bad references and did not allow him to have a Witness Order compelling the attendance of the authors of the references for cross-examination.  We do not believe it is a fair reading of the decision that the Tribunal expressed any view about whether or not the references were justified though naturally it gave weight to the fact that the Appellant was convicted of the offence mentioned in one of the references.  But in any event the Appellant’s submission in this regard is based on a misunderstanding.  What the Tribunal was concerned with was not whether or not the references were proved but only with the Respondents’ reasons for acting on them.

13	Fifthly, it is argued that the Reasons do not deal in detail with every point of evidence and argument raised by the Appellant at the hearing.  That, of course, is not by itself a ground of appeal.  The Reasons of an Employment Tribunal do not have to deal with every detail of the evidence, but only to set out sufficient material to make it clear the basis on which the decision of Tribunal has been made.  

14	We quite understand the Appellant’s distress that as a result of information from his previous employers he did not get the job with the Respondents which he was initially offered.  But the questions for the Tribunal were whether there had ever been a contract for him to have that job, and whether the Respondents acted on racial grounds in taking the decision which they did, and in neither respect has the Appellant been able to show us there is any arguable error of law in its approach.  We accordingly dismiss this appeal.