Ayodele v Citylink Ltd & Anor, Court of Appeal - Civil Division, November 24, 2017, [2017] EWCA Civ 1913

Resolution Date:November 24, 2017
Issuing Organization:Civil Division
Actores:Ayodele v Citylink Ltd & Anor

Neutral Citation Number: [2017] EWCA Civ 1913

Case No: A2/2014/2795





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 24/11/2017

Before :





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Between :

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Mr Ronnie Dennis (instructed by The Bar Pro Bono Unit with the support of Curling Moore Solicitors) for the Appellant

The Respondents did not appear and were not represented

Hearing date: 25 October 2017

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Lord Justice Singh :


  1. This is an appeal against the order made by the Employment Appeal Tribunal (``EAT'') dated 1 August 2014, by which the Appellant's application for reconsideration under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended) was refused. By that order HHJ Peter Clark directed that no further action should be taken on the appeal and the appeal was thereby dismissed.

  2. The decision of the Employment Tribunal (``ET'') sitting at Cardiff was sent to the parties on 29 October 2013. By that decision, so far as material, the ET had dismissed the Appellant's claim for racial discrimination.

  3. Permission to appeal to this Court was granted by Bean LJ, after a hearing on 15 July 2015, in an order sealed on 23 July 2015. Permission was granted on one ground only, then numbered Ground 6, to which I will refer as the first ground of appeal.

  4. In addition the Appellant seeks to rely on a new point which has arisen as a consequence of the decision of the EAT in another case since the time when permission was granted: Efobi v Royal Mail Group Limited (UKEAT/0203/16, 10 August 2017), a decision by Elisabeth Laing J. This point was raised in a supplementary skeleton argument on the Appellant's behalf and, at the hearing of this appeal, we granted permission for it to be raised. I will refer to this as the Appellant's second ground of appeal.

  5. The First Respondent has gone into administration. Neither Respondent has chosen to take an active part in the present appeal. We have therefore not had the benefit of submissions on their behalf. We have been assisted by the written and oral submissions of Mr Ronnie Dennis, who has appeared pro bono on behalf of the Appellant and to whom we are grateful.

    Factual Background

  6. The factual background can be taken from the summary given by the ET at paras. 4-5 of its judgment.

  7. The Appellant is originally from Nigeria and describes himself as black. The Appellant's employment came to an end in October 2012. The details of the circumstances in which it came to an end are set out in paras. 14-15 of the ET judgment.

  8. The First Respondent is a logistics organisation which delivers letters, packets and parcels. The Appellant was employed to work at the distribution depot in Swansea as a warehouse operative. He commenced his employment initially as an agency worker but became directly employed by the First Respondent during 2007.

  9. The Second Respondent was the Appellant's team manager, although a Mr Birch was his day-to-day supervisor.

  10. In October 2012 the Appellant resigned. He submitted that this was in response to a repudiatory breach of his contract of employment by the First Respondent. He therefore claimed that he had been constructively dismissed.

  11. On 2 November 2012 a Mr Ford wrote to the Appellant on behalf of the First Respondent accepting his resignation and confirming 12 October as his last day of employment.

  12. Before the ET the Appellant raised a number of different types of claim: racial discrimination, racial harassment, victimisation and unfair dismissal.

  13. Because some of the Appellant's complaints went back many years going back to the time when he commenced employment in 2007, the case straddled the date when the Equality Act 2010 came into force (for most purposes 1 October 2010). It was therefore necessary for the ET to consider both that Act and its predecessor for relevant purposes, the Race Relations Act 1976.

    The Judgment of the Employment Tribunal

  14. After setting out its summary of the Appellant's claims and its findings of fact, the ET set out its understanding of the relevant law at paras. 17-39 of its judgment.

  15. In particular it set out material provisions of the Equality Act, including section 136 at para. 23 of its judgment. It also set out material provisions of the Race Relations Act, including section 54A at para. 24 of its judgment.

  16. The ET also set out its understanding of relevant case law.

  17. At para. 27 of its judgment the ET said:

    ``The Tribunal has sought to remind itself of the statutory reversal of the burden of proof in discrimination cases. We consider the reasoning in the cases of Igen Limited v Wong [2005] IRLR 258; Barton v Investec Henderson Crosthwaite Securities Limited [2003] IRLR 332 and Madarassy v Nomura International plc [2007] IRLR 246. Where it was demonstrated that the Employment Tribunal should go through a two-stage process, the first stage of which requires the Claimant to prove facts which could establish that the Respondent has committed an act of discrimination, after which, and only if the Claimant has proved such facts, the Respondent is required to establish on the balance of probabilities that it did not commit the unlawful act of discrimination. The Madarassy case also makes it clear that in coming to the conclusion as to whether the Claimant had established a prima facie case, the Tribunal is to examine all the evidence provided by the Respondent and the Claimant.'' (Emphasis added)

  18. Mr Dennis submits that the ET fell into error in that passage. This is because it directed itself that it had to examine all the evidence, including that provided by the Respondent, even at the first stage of the analysis. I will return to that submission in considering the Appellant's first ground of appeal.

  19. Under its heading ``Analysis'' the ET said, at para. 40 of its judgment:

    ``The Tribunal examined the facts of each of the separate complaint[s] in the Claimant's claim individually. However, we also considered the accumulation of evidence in order to draw conclusions as to whether there was an underlying motivation for actions on the part of the Respondent. We consider that given the significant information about the culture in the organisation, the failure to deal with the Claimant's 2010 complaint, the problems in applying procedure are matters of concern. However because of the overall findings about the universality of this treatment towards staff we have not found that the Claimant has established prima facie evidence of less favourable treatment and therefore do not consider that the burden of proof has shifted to the Respondent.''

  20. Mr Dennis submits that the last sentence in that passage betrays two errors of law by the ET. He submits, under his first ground of appeal, that the ET impermissibly had regard to evidence produced by the Respondent at the first stage of the analysis; and, secondly, that the ET misdirected itself that there was a burden on the Appellant at the first stage to show that there was a prima facie case of discrimination.

  21. The ET then proceeded to consider each of what amounted to eight separate complaints at paras. 41-48 of its judgment. It found none of the claims was well founded and so dismissed the claim.

  22. The Appellant applied for reconsideration of the judgment on 11 November 2013. That application was refused by the ET on 12 January 2014. The ET was of the view that the matters raised by the Claimant should all be dealt with by way of appeal and not reconsideration.

    The Judgment of the Employment Appeal Tribunal

  23. In accordance with normal practice the appeal to the EAT was initially considered on a ``paper sift'' and rejected by Lady Stacey under rule 3(7) of the EAT Rules, for the reasons set out in a letter of 1 May 2014. As was his right the Appellant then applied for reconsideration of that decision at an oral hearing under rule 3(10). That came before HHJ Peter Clark on 1 August 2014 and was refused. Accordingly the appeal stood as being dismissed.

  24. Judge Clark was of the view that this was a case which had been decided on its own facts and the appeal had absolutely no prospect of success whatsoever: see para.10 of his judgment. He also took the view that in essence the appeal was based on the ground of perversity. He was wholly unpersuaded that the perversity threshold had been reached: see para. 8. In the same paragraph Judge Clark said that the Tribunal had dealt with each of the complaints in some detail in their factual findings and in their analysis but they were conscious of the principle in Anya v Oxford University [2001] ICR 847, a decision of the Court of Appeal, and looked at the accumulation of evidence. Having done so, continued Judge Clark, the ET was not persuaded that a prima facie case of discrimination had been made out.

  25. At para. 6 Judge Clark said:

    ``... They [the ET] concluded that the Claimant had failed to make out a prima facie case, shifting the burden of explanation to the Respondents. They found there was no less favourable treatment of the Claimant. In addition, some of his claims were time-barred. Further, the Tribunal found no repudiatory breach by the First Respondent entitling the Claimant to treat himself as constructively dismissed and, if there was, he waived any breach.''

    The Grounds of Appeal

  26. The only ground of appeal on which permission was granted by Bean LJ was set out in what was then numbered Ground 6 but which, as I have said, I will refer as the Appellant's first ground. As that ground was originally formulated, it was submitted that the ET erred in law when, despite making findings of unwanted treatment and conduct against the Respondents, it held, at para. 40 of its judgment, that, because of the overall findings about the universality of this treatment towards staff, the Appellant had not...

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