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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Igbinake v Clarkson House Resident Care Home (t/a The Vicarage Residential Care Home) (Practice and Procedure : Appellate jurisdiction or Reasons or Burns-Barke) [2013] UKEAT 0072_12_1704 (17 April 2013) URL: http://www.bailii.org/uk/cases/UKEAT/2013/0072_12_1704.html Cite as: [2013] UKEAT 0072_12_1704, [2013] UKEAT 72_12_1704

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APPEARANCES

 

For the Appellant	MR K IGBINAKE (Representative)
For the Respondent	MR R REES (Consultant) Peninsula Business Services Ltd The Peninsula 2 Cheetham Hill Road Manchester M4 4FB


 


SUMMARY

PRACTICE AND PROCEDURE

Appellate jurisdiction/reasons/Burns-Barke

Costs

RACE DISCRIMINATION – Direct

UNFAIR DISMISSAL – Constructive dismissal

Once full reasons (given orally at Employment Tribunal hearing) had been obtained it was apparent that no error of law is shown in the ET's approach to claims of direct race discrimination and constructive (unfair) dismissal. Limited costs order made.


 


HIS HONOUR JUDGE PETER CLARK

1. This Judgment should be read in conjunction with the interim judgment which we gave at the first hearing of this appeal on 28 June 2012. On that occasion we adjourned the appeal pending promulgation by the Tribunal of their full written reasons for judgment given on the second day of the hearing below, 11 July 2011. Those full reasons (the second reasons) are dated 5 September 2012. The first reasons were dated 13 October 2011.
2. In advancing the appeal Mr Igbinake takes six points; we shall deal with each in turn. First he contends that the second reasons do not accord with what was delivered orally by the Employment Judge on 11 July 2011. Those oral reasons, he contends, are reflected in the first written reasons. Having spoken to the Respondent's representative below, Mr Rees asserts that the second reasons do reflect the oral reasons given on 11 July 2011. We are satisfied that the Respondents are correct in this, first because our direction to the Employment Judge was clear; see the transcript paragraph 14. Secondly, because it is clear on the face of the first reasons that those were shortened reasons directed to the Claimant's solicitors written request for written reasons dated 29 July 2011 as opposed to the full reasons referred to at paragraph 1 of the first reasons.
3. Secondly, he raised an argument of perversity. Having considered it as developed in his supplementary skeleton argument we agree with Mr Rees that the high hurdle presented by the Court of Appeal Judgment in Yeboah v Crofton [2002] IRLR 634 is nowhere near crossed in this case. This, we think, is an attempt impermissibly to seek to re-argue the facts of the case. The Employment Appeal Tribunal's jurisdiction is, of course, limited to correcting errors of law.
4. Thirdly, Mr Igbinake suggests that in the second reasons, paragraph 4, the Tribunal state that they will return to the issue of the Respondent's failure to provide the Claimant with a statement of terms and conditions of employment but they never did so. That is incorrect. It was common ground that no statement of terms was provided to the Claimant. Further, it was common ground that she was an employee and entitled to such a statement. At paragraph 3 of the Tribunal Judgment the Claimant was awarded four weeks pay, £900, under section 38 of the Employment Act 2002 in addition to £1,000 in respect of holiday pay; a scheduled claim under the 2002 Act. The first reasons do not explain how the Tribunal arrived at that award; they do so at paragraph 16 of the second reasons.
5. Fourthly, Mr Igbinake complains, that the Tribunal did not look at the issues raised by the Claimant, particularly in respect of her complaint of direct race discrimination; we disagree. It was common ground that bank staff employees did not receive holiday pay to which as a matter of law they were plainly entitled, but so called permanent employees did receive it. The finding by the Tribunal was that the Claimant was a bank staff employee, as the Respondent contended, contrary to her contention. Accordingly, she was treated in the same way as all bank staff of whatever race; that is less favourably than permanent staff of whatever race. That was the non-discriminatory explanation for the difference in treatment over holiday which the Tribunal was entitled to accept. The other issues to which Mr Igbinake refer simply do not bear on that critical question.
6. Fifthly, Mr Igbinake complains that in the first sentence of paragraph 6 in the second reasons, as part of the finding that the Claimant was a member of the bank staff, the Tribunal observed that there was nothing in her witness statement to say she protested when Mr Amand of the Respondent told her in respect of the Christmas period 2009 that she was bank staff. He submits that this omission ought to have been put to the Claimant during her evidence by the Tribunal if not by the Respondent. We do not regard such omission as amounting to a procedural irregularity, as for example where a Tribunal decides a case on a point not raised by the parties or by the Tribunal itself; see by way of example Laurie v Holloway [1994] ICR 32. It was a proper observation for the Tribunal to make and rely on in consideration of the whole of the evidence which includes omissions from the evidence.
7. Finally, Mr Igbinake submitted that there was an inconsistency between the Tribunal finding the Claimant was an employee and that she was a member of the bank staff. He contended that in the absence of mutuality of obligation bank staff cannot be employees. We know from experience that that is a finding open to an Employment Tribunal; see for example Clark v Oxfordshire Health Authority [1998] IRLR 125. However, in the present case it was common ground that the Claimant was an employee of the Respondent. Were she not so she could not have brought her complaint of constructive unfair dismissal, nor could she have recovered four weeks' pay under section 38 of the Employment Act for failure to provide her with a statement of terms and conditions. Further, the converse is not necessarily true; that if she is an employee she cannot be bank staff.
8. In these circumstances, having considered each of the ways in which the appeal is put, we can find no error of law such as to cause us to interfere with this Tribunal's Judgment. Accordingly this appeal fails and is dismissed.

Costs

9. Following our judgment dismissing this appeal, Mr Rees made an application for costs on behalf of the Respondent. We are satisfied, having considered his submissions, that a costs application is permissible under the EAT Rules in the particular circumstances of this case, the costs having been incurred on behalf of the Respondent by their representative, Peninsula Business Services Ltd. This appeal was allowed through to a full hearing by the President but following the hearing on 28 June last year, written reasons were obtained from the Tribunal which, for the reasons we gave earlier, we are satisfied represented the oral reasons given at the hearing. Mr Igbinake does not accept that but we have made a finding to that effect. We agree with Mr Rees that having received those reasons it must have been plain or ought to have been plain to the Claimant that her appeal had no reasonable prospect of success and the application for costs is limited to costs incurred from and since 5 October 2012, one month after promulgation of those second reasons.
10. In these circumstances, in principle, we accept Mr Rees' submission that costs ought to be awarded in favour of the Respondent. However, we have taken into account the Claimant's means. We are told, and this is not challenged, that she presently works part-time, earning between £500-£550 per month. Mr Igbinake tells us that he is a full-time student and the couple have 4 children to look after. In these circumstances, taking into account the Claimant's limited means, rather than award the full amount of costs claimed in the modest sum of £651.82 we shall now order the Claimant to pay the Respondent's costs in the assessed sum of £150 within 28 days of our order.