Appeal No. EAT/0155/03 DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 May 2003

Before
THE HONOURABLE MR JUSTICE WALL
MRS R A VICKERS
MR G H WRIGHT MBE

MR E AKO	APPELLANT

COMPASS GROUP t/a SELECT SERVICE PARTNER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR IMHAZ AZIZ
(Consultant)
Crescent & Star Consultancy
386 Hanworth Road
Houslow
Middx TW3 3SN	

THE HONOURABLE MR JUSTICE WALL

1	This is the Preliminary Hearing of Mr Ako’s appeal against the decision of the Employment Tribunal held at London (Central) under the Chairmanship of Mr P R K Menon on what appear to be eight working days between 12 August 2003 and 21 August 2002, the last of which was the Tribunal in chambers considering its decision.

2	The unanimous decision of the Tribunal was that the Appellant’s claims against his former employers, Compass Group t/a Select Service Partner, of race discrimination, unfair dismissal and in the course of argument, although not pursued ultimately, victimisation, failed and were dismissed.

3	The Tribunal also took the unusual course of making an order that the Appellant should pay £500 towards the costs incurred by the Respondent on the grounds that the Appellant had in the proceedings acted unreasonably within the meaning of Rule 14 (1) of Schedule 1 of the relevant 2001 Rules.

4	This is in many ways an unusual case and one which is shot through with the impression (which emerges both from the reasons and from argument) that the Appellant appears to have brought much of what occurred upon his own head.  He had been working for the Respondents for a substantial number of years.  He was clearly, from the documentation, a valued employee.  It is quite clear from the documentation that the Respondents did not wish to part from him or dispense with his services.

5	The principal issue before the Tribunal ultimately became: had he resigned or had he been dismissed?  As is clear, the Tribunal found very clearly that he had resigned.  With that finding went many if not all of the complaints which the Appellant made,  and as I say we are at the end of the day left with an impression that this is all rather a pity.  Nonetheless, we have to look at the matter on a very strict basis and the question we have to ask ourselves is whether or not there is a point of law in the case which is suitable to go forward to a full hearing before this Tribunal. We have come very clearly to the view that there is no such point of law, despite the energetic efforts of Mr Aziz, and that therefore this case must fall at this stage.

6	We are fortified in that conclusion by the very full and very careful reasons which were given by the Tribunal in a reserved judgment which runs to something a little under thirty closely reasoned pages.

7	The Tribunal begins by setting out the allegations in the form IT1 and the responses in the form ET3. It is immediately apparent from these that the Appellant was putting forward a very wide series of complaints.  Those were answered by the Respondent in the form ET3, and it immediately becomes apparent that the issue was as to resignation or dismissal.

8	An important document which is attached to the form ET3 comprises demands presented by the Applicant to the Respondent on 23 July 2001, shortly before his employment was terminated. These make a substantial number of complaints and demands against the Respondent; demands which the Tribunal, in our view with some justification, said were effectively telling the Respondent how it should run its business; demands which made it, in the Tribunal’s view, appropriate for the Respondent to accept the Appellant’s resignation.  We do not, for the purposes of this judgment, propose to read them out.  They are clearly set out by the Tribunal and were taken into account by the Tribunal.
9	The Tribunal then went on, having set out the contents of the form ET1 to deal with the allegations which were being made by the Appellant.  There was an allegation that he had been paid less than white staff and/or a denial of bonus.  There was an allegation that he had been denied promotion opportunities in comparison with white staff.  There was an allegation that he had been subjected to unfair treatment and to a lack of support.  He made a number of allegations of discrimination along these lines.

10	What appears, in factual terms, to have brought the matter to a head was the fact that the Appellant went on an extended holiday, about which no complaint was made by the Respondent; but that during his absence an unusual number of complaints arose about the way in which the particular establishment, over which he was particularly in charge, was operated in his absence.  We should have said perhaps that the business run by the Respondent is the running of a number of coffee shops and other refreshment places on railway stations, in which the Appellant worked and in which he ultimately reached quite a high status in terms of management.

11	The Tribunal goes through his career history in some detail during the course of its reasons and sets out the fact that the Appellant started in October 1986 as a Sales Assistant at the coffee shop Traveller’s Fare in Paddington Station and then progressed quite rapidly up the chain, including taking time, supported by the Respondents, in obtaining firstly a degree and then a second degree (an MSC) in courses funded by the Respondent, certainly the latter.  He was promoted to the post of General Manager at the King’s Cross Ginghams and Le Croissant Shop in August 2000.

12	He went on leave, having made a request, from 17 April to 15 May 2000.  During his absence there were several customer complaints received and when he returned from leave on 22 May he was told that his employers would like to meet him to discuss the customer complaints that had been raised.  This was not initially a disciplinary hearing.  It was an investigatory meeting on 21 May.

13	The Appellant went on sick leave shortly after that on 1 June and remained on sick leave until 17 June.  On 1 June he was served with a notice of disciplinary interview, signed by Mr Holmes, requiring him to attend a disciplinary hearing on 7 June. He was told that:

“In accordance with the Company’s disciplinary procedure, disciplinary action will be considered with regard to:
Failure adequately to prepare for an extended period of leave in respect of effective delegation of responsibilities.  This failure has resulted in unacceptable level of complaints during the leave period.
In circumstances where a Final Written Warning is held on file or in circumstances deemed to be Gross Misconduct, the outcome may be dismissal.”

14	At that stage there was no final written warning held on file, indeed he had an unblemished disciplinary record and there was no suggestion at any point, as I understand it, that the complaint which was being investigated, namely the adequate failure to prepare for an extended period of leave, constituted gross misconduct which was likely to result in dismissal.  So the outcome, as the Tribunal found, was no question of dismissal arose in those circumstances.  That is a finding which they made in terms.

15	A complaint is made by Mr Aziz on the Appellant’s behalf that summoning the Appellant to a disciplinary hearing in these circumstances was unfair and discriminatory, when similar action was not taken against the more lowly person working in the kiosk in question during the course of his absence, although she was interviewed and recognised that there had been deficiencies.
16	We think there is absolutely nothing in this point.  We think it eminently reasonable for the employer, in the circumstances I have described, to call the Appellant in and to ask him about the preparation he had made before going on holiday. We see that action by the employer as neither discriminatory nor in any way unfair.  In fact, as the Tribunal found, no disciplinary hearing in fact took place and Ms Dean, the lower employee to whom I have referred, was talked to and no other further action was taken.

17	On 3 June the Appellant sent a grievance letter to the Respondent and on 22 June sent in what is described as his first resignation letter.  He had his grievance meeting with two of the Respondent’s employees on 28 June and sent in his second resignation letter on 29 June.  On the same day he had a meeting with Mr Holmes and Ms Harman to consider his options.  He did not attend his scheduled second grievance meeting with Mr Darlinson and Ms Fletcher on 5 July.  On 23 July he had his grievance meeting with Mr Keating and Mrs Holdaway.  On 24 July the Respondent accepted his resignation.

18	That broad and very brief summary of the facts was examined in much greater detail by the Tribunal.  But the first point they deal with at paragraph 27, before going on to deal with it, was the clear finding which was self-evident on the face of the documentation, that the Appellant had not been underpaid in comparison with his white comparators, indeed that in some years he had received a higher rate of pay increase than his comparators.  That factor became manifest during the course of the hearing and indeed the course of the hearing Mr Aziz and the Appellant visited the Respondent’s premises and were given access to the original documents. As a consequence, the allegation that he had been discriminated against in terms of pay was withdrawn.

19	We have to say we think it is a great pity that this allegation was not dealt with earlier and resolved as it perhaps could and should have been.  It may be that the reason was that when the Appellant filed a substantial request for further and better particulars shortly before the Preliminary Hearing before the Tribunal Chairman on 16 January 2002, the Chairman did not consider it in detail but simply made directions as to answers and discovery.  It may be that a tighter grip on the case would have ensured that this issue was not before the Tribunal and did not take up its time.  In any event, it plainly had no substance and, given the Appellant’s career history in the Respondent’s employment, it seems to us surprising that it was ever thought it might have done.  In any event, it was disposed of during the course of the hearing.

20	The Tribunal then sets out in some detail the relevant submissions put forward on either side.  It then goes on to deal with the law in relation to race discrimination and the relevant authorities which it cites. It then makes its findings of fact.

21	The critical finding for our purposes, and indeed for the Tribunal’s purposes, was that the Appellant had indeed resigned and not been dismissed.  It deals with the facts in this way, in the course of what is a lengthy paragraph, which is actually paragraph 30 and sub-paragraph 3:

“The real issue is: the Applicant, having resigned on 29 June 2001 without notice, did he at any stage prior to 23 July 2001 withdraw his resignation orally or in writing and did the Respondent accept any purported withdrawal or resignation on his part, or, did the parties by their conduct accept that the Applicant had withdrawn his resignation.  The Tribunal finds that the clear answer, on the evidence before this Tribunal, is that at no point between 29 June and 23 July 2001 did the Applicant withdraw his resignation, orally or in writing, and, there was no acceptance by the Respondent or any “withdrawal” of resignation by the Applicant nor did the Respondent refuse to accept his resignation.  The Applicant has not given any evidence of any oral withdrawal of his resignation.  It is not in dispute that the Applicant never withdrew his resignation in writing.  The parties by their conduct never agreed that the Applicant had withdrawn his resignation.  The factual situation was that, having received the Applicant’s unambiguous resignation letter on 29 June 2001, the Respondent proposed to the Applicant that rather than the resignation taking immediate effect, he put his resignation “on hold” until his meeting with Mr Keating and Mrs Holdaway on 23 July 2001.  The Applicant conditionally accepted that proposal.  As a gesture of goodwill, the Respondent agreed to pay his salary up to 23 July.  Agreement to pay and effectively agreeing to the Applicant remaining an employee of the Respondent until 23 July 2001 did not amount to an agreement by the parties or by their conduct that he had withdrawn his resignation.  All it meant was that the resignation would not have immediate effect, it was analogous to cases of termination with notice.  The Applicant’s resignation letter was still on the table, when, following the grievance meeting on 23 July 2001, the Respondent decided to accept it for reasons stated in Ms Harman’s letter of 24 July 2001…On the evidence, it is the unanimous decision of the Tribunal that he Applicant terminated his employment, by resignation, with immediate effect on 29 June 2001; he was persuaded to delay the termination until the grievance meeting on 23 July; following that meeting, the Respondent on 24 July 2001, accepted his resignation with effect from 23 July 2001.  The Applicant’s employment ended on 23 July 2001 because the Respondent on 24 July accepted his resignation: he was not dismissed by the Respondent within the meaning of section 95 (1) (a) of the 1996 Act.”

22	In our judgment that is not only an accurate summary of what occurred, it also coincides with what is the position in law.  The Respondent did not wish to lose the services of the Appellant.  As the Tribunal puts it, the documentation clearly indicates that it put the resignation on hold whilst the matter was considered and whilst the Applicant was given an opportunity to reconsider whether he wanted to withdraw.  The grievance meeting which led to the series of demands we summarised very briefly at the beginning of this judgment made it clear that the Respondent was determined to resign,  and enabled the Respondent to accept that resignation which it did.  It did not dismiss him.

23	That is very largely, as we say, an issue of fact and even if we had any doubt about it, it would clearly, in our view, be within a range of decisions which the Tribunal was plainly entitled to reach.  But, as we see it, it is a stark and simple and straightforward recitation and acceptance of the facts as they genuinely were and as were found by the Tribunal.  As a consequence the question of unfair dismissal and discrimination in relation to it simply did not get off the ground.

24	The Tribunal is criticised by Mr Aziz because it went on in the alternative to say, well, if we’re wrong about that is there some other substantial reason under section 98 (4)?  In fact, this was raised in the course of argument, as the Tribunal’s reasons demonstrate. The Respondent was, I think having somewhat slightly to grope its way, because there was initially an allegation that the Appellant had been constructively dismissed; an allegation which was abandoned by Mr Aziz during the course of the hearing.  And so the Respondent itself submitted to the Tribunal that if it was wrong in relation to the withdrawal there was nonetheless a fair reason why the Appellant could have been dismissed.

25	The Tribunal goes on to find that there was a potentially fair reason for dismissal, namely the unreasonable and unrealistic demands which the Appellant had made consequent upon the grievance meeting, and so in the alternative would say, well, if we’re wrong about resignation then  there is a basis upon which he was fairly dismissed.

26	We do not think that Mr Aziz is right when he submits that the Tribunal was going on an illegitimate frolic of its own in this respect, and was not entitled to deal with that issue because it had not been raised in the documentation or in the IT3.  It had emerged during the course of argument as a possibility and therefore the Tribunal was entitled to deal with it; but in any event we do not need to consider whether it was right or wrong about it because in our view it was  plainly right on the resignation issue.

27	As this meant that effectively the discrimination/victimisation issues fell to the ground. The only issue which was then left was costs.  Before we reach that we ought perhaps to deal with one point which it made in the Notice of Appeal in relation to fairness by Mr Aziz because he says that the trial was prejudiced by the fact that he was not allowed to call a particular witness before the Tribunal to give oral evidence.  This was one of the Applicant’s witnesses who had herself whilst in the employment of the Respondent taken the Respondent to a Tribunal.  She had put in a statement which the Tribunal had read and having read it the Tribunal took the view that it was irrelevant because it dealt with different circumstances relating to a different case and had no direct relevance to the case of the Appellant.

28	As we understood the argument from Mr Aziz, what should have happened was that the Tribunal should have allowed him to call the witness to give oral evidence because that would have had more effect than the statement by itself.

29	We have not seen the statement of the witness who was a Ms Joyce O’Kello, but we have the Tribunal’s description of it and with great respect to Mr Aziz, we think there is nothing in the point.  If the evidence was irrelevant it was irrelevant and the Tribunal was entitled to take no notice of it.  To have it read out as irrelevant evidence would simply not have advanced the matter any further.

30	There is also the suggestion that there was a refusal by the Tribunal to allow cross-examination by means of hypothetical questions, but that has not been seriously pursued before us this morning, and given the very careful findings by the Tribunal and the abundant material upon which it had to make those findings we once again think there is nothing in that point.

31	The final point then with which we must deal is the question of costs.  The Tribunal ordered the Appellant to pay £500 towards the costs of the Respondent.  It did so in these terms:

31	“Mr Nathan, on the Respondent’s behalf, applied…for an order for costs against the Applicant on the basis that the Applicant had unreasonably pursued issues at this hearing which he withdrew in the course of his closing submissions.  Mr Aziz opposed the costs application.  The Tribunal finds that the Applicant has acted unreasonably in the conduct of the proceedings.  He fought tooth and nail on the major parts of his race discrimination complaints, which took up a lot of the Tribunal’s time, matters which he abandoned during his final submissions, only when, faced with the evidence, it became untenable to pursue them any further.  He pursued other matters which took up the Tribunal’s time and which he likewise abandoned at the eleventh hour – Health and Safety, staffing levels, security guards; He attacked comments made by Mr Holmes in his Appraisals although he had agreed with those comments – alleging, without any foundation, through Mr Aziz “that it was “payback time” – i.e. Mr Holmes had abused the Applicant as an opportunity to victimise him because Ms Cham had complained of race discrimination by Mr Holmes.  He made several other unsubstantiated allegations which had to be explored but which he subsequently abandoned – about career development, Mr Hastings, job vacancies etc.  In all the circumstances, it is the unanimous decision of the Tribunal that it would be appropriate to make a costs order against the Applicant.  The Applicant is ordered to pay the Respondent the sum of £500 in respect of the costs incurred by the Respondent in these proceedings.”

32	Here the Tribunal, in our judgment, bases itself fair and square on the Rule and makes an order.  We fully take into account that the underlying philosophy of the Employment Tribunal structure is that a bona fide litigant should be able to come before the Tribunal with a case, even if it proves to be unsuccessful, without the fear of costs being ordered against him or her.  But we bear in mind here that this case lasted eight working days in all, including deliberation.  A fairly substantial number of issues were raised and litigated, many of which were abandoned or found to be abundantly unsubstantiated.

33	In these circumstances it seems to us that the Tribunal was eminently within the exercise of its discretion to make what is, on the face of it, a very modest order for costs.  We anticipate that the Respondent’s bill would be certainly in four figures and probably in five and in these circumstances for the Appellant to be ordered to pay only £500 is in our view not only a proper exercise of the discretion of the Tribunal, but a very modest one.

34	We think it most unfortunate this case was brought to the Tribunal and pursued, but having examined it and looked carefully at it, we see no point of law which would warrant it going forward to a full hearing of the EAT; indeed, we take the view that it would be bound to be dismissed in any full hearing.  In these circumstances we propose to dismiss it at this stage. 

*****
(After further argument)

35	After we had concluded judgment. The Appellant raises another point to the effect that the Tribunal made an error of law in not specifically dealing with  and making specific findings in relation to an allegation in sub-paragraph 50 of the further and better particulars, that the Appellant had been discriminated against because he had been:
50	“Denied representation at disciplinary meetings
51	The Tribunal has completely failed to address the issue of the Applicant not being given the opportunity to be represented at the disciplinary meetings.
52	The Applicant was asked to provide further particulars these state that his complaint relates to him being denied an opportunity to be represented at the investigation meeting and also denied an opportunity to be represented at the disciplinary hearing on 31 May 2001.  The Tribunal has failed to address this issue and was an error of law.”

36	As Mrs Vickers pointed out, the Appellant’s own evidence was that the normal procedure for an investigatory meeting was to inform the parties concerned about what they were going to be investigated on and to give them the opportunity to be represented, if they so wished.  The finding of the Tribunal is contained at page 57 of our bundle:

2	“On 25 May the Applicant was invited to attend an investigatory meeting with Katie Harman…and Alun Holmes…The main purpose of the meeting was to ascertain the steps that had been taken by the Applicant, as General Manager to ensure that his unit ran smoothly and efficiently during his absence.  The Applicant refused to discuss matters fully and just walked out on the meeting. 
Due to the conduct of the Applicant at the investigatory meeting, the Respondent decided that the Applicant should face a disciplinary hearing and the Applicant was asked to attend such a hearing on 31 May 2001.”

At that point he asked for the matter to be tape recorded.

37	We have the invitational letter from the meeting to the disciplinary hearing which, as we indicated I think in the course of our main judgment, actually made it quite clear that he was entitled to be represented.  So it seems to us the matter was as plain as a pikestaff.  Here was an investigatory meeting at which he could have been represented if he wanted to, as he himself says in his own evidence.  He refused to discuss the matter at the investigatory meeting, stormed out, and thus brought on his own head a disciplinary meeting at which he again was entitled to be represented and indeed was.

38	Really, if we may say so (and we say this more to the Applicant than to Mr Aziz), this demonstrates why this case is so unfortunate.  Here are perceived grievances which are plainly not material and indeed, insofar as it is suggested he was not represented at the disciplinary meeting, is plainly wrong, which are wildly on the periphery of the case. The Tribunal, in our view, having recited the facts as it did, was entitled purely to recite them as facts and do no more. As a point which had no materiality to the ultimate conclusion, it was entirely justified in not making specific findings about it.  It was because, no doubt, it had so much of that to do during the course of the hearing that it reached the conclusion that the Appellant was requiring the case to be conducted inappropriately, and no doubt that is in part why the Tribunal then ordered costs against him.