Otobor v Croydon College & Ors

LORD JUSTICE LLOYD JONES: This is an application by Mr Toby Otobor seeking permission to appeal against the order of His Honour Judge Serota QC in the Employment Appeal Tribunal dated 28 November 2014 dismissing his appeal as totally without merit.

Mr Otobor is a qualified teacher of business and economics. Through an employment agency he obtained a placement at Croydon College commencing on 18 January 2011 and concluding on 24 June 2011. He obtained a further placement at the college from 27 June to 10 July 2011 through another agency. On 10 May 2012, he issued a claim form alleging unlawful discrimination on the grounds of age and race. The respondents were Croydon College and certain employees of the college: Julie Percival, Andrew Roberts and Frances Wadsworth. He alleged that he had been treated less favourably on account of his age and race, as on 20 February 2012 he was not appointed to a full-time lecturing post and also he alleged that on various dates in February, March and April 2012, Julie Percival, Andrew Roberts and Frances Wadsworth had declined to provide him with a reference.

On 8 August 2012, Employment Judge Baron gave judgment on an application made by the respondents to strike out the claim. The claim was struck out. The appellant appealed to the Employment Appeal Tribunal. His appeal was initially refused but on reconsideration he was permitted to proceed to a full hearing. On 6 September 2013, His Honour Judge McMullen QC allowed the appeal in part and directed that the claim proceed at the Employment Tribunal in respect of the allegations of race discrimination only. Accordingly, the Employment Tribunal, chaired by Employment Judge Hall-Smith, heard the matter on 4 and 5 March and 23 April 2014.

The Employment Tribunal dismissed the claim on 16 July 2014. Its reasons were that they were unable to accept the appellant's account of a conversation he had had with Julie Percival about the potential for him to be appointed to a position covering sickness absence (and here I note that the Tribunal did not find Mr Otobor a credible witness). Yvonne Gallagher, who was appointed instead of him to provide sickness cover, was, the Tribunal found, an existing employee under a notice of redundancy from the college and there was no racial element involved in the respondent's decision to use an existing worker rather than an agency worker to provide sickness cover.

So far as the failure to provide a reference was concerned, the Tribunal observed that it "unfortunate and a matter of justifiable concern that he had not been provided with a reference when requested". However, the Tribunal concluded that there was no basis for a conclusion that this was on the basis of his race. Julie Percival did not know the appellant. Andrew Roberts had refused to provide him with a reference because of observations made by the appellant about Mr Roberts in an email to Julie Percival. Frances Wadsworth did not know the appellant and had not refused to provide a reference but had passed the request to another person to deal with.

Croydon College had in any event a policy of not providing references for agency workers, although a line manager, June During, had in fact given a reference. The suggestion that Frances Wadsworth and Julie Percival were involved in a conspiracy to get rid of black members of staff was, the Tribunal found, fanciful and without foundation. There was no material before the Employment Tribunal to suggest that a white agency worker would have been treated differently by the respondent.

On 25 July 2014, the appellant applied to the Employment Tribunal that they reconsider their judgment. The application was based on the argument that the judgment was perverse, unfair, biased and not in the interests of justice and he challenged the conclusions reached by the Tribunal on factual issues and assessments of credibility. Judge Hall-Smith, in a ruling dated 22 September 2014, dismissed the application for reconsideration. In particular, he said that the allegations of bias by the Tribunal were outside the reconsideration process.

The appellant then appealed to the Employment Appeal Tribunal on 1 August 2014. His grounds of appeal are based on the Tribunal's findings about factual issues rather than any error of law. That application was dismissed by His Honour Judge Serota QC on 28 November 2014 as the appellant's submissions disclosed no error of law on the part of the Employment Tribunal and there was no evidence of bias on the part of the Tribunal. Judge Serota also recorded that the appeal before him was totally devoid of merit.

The position now is that Mr Otobor seeks permission to appeal to the Court of Appeal. He has lodged grounds of appeal. The grounds of appeal may be summarised as follows. First, that Judge Serota was wrong as he failed to address cogent reasons with irrefutable evidence supporting the appeal and did not address misrepresentations made by the respondent before the Employment Tribunal and the fact that the witnesses had committed perjury. Secondly, that Judge Serota failed to consider that the respondents had already conceded to the EAT that they had discriminated against him. Thirdly, the judge failed to read the notice of appeal, accompanying documents or the Employment Tribunal judgment review reasons. Fourthly, that the appellant had been advised in the judgment of the Employment Tribunal on review that the serious issues raised were matters for an appeal process rather than through reconsideration but that Judge Serota did not address those issues.

That application to the Court of Appeal was considered on the papers by Dame Janet Smith. That application is now renewed and in a further written submission in support of the application Mr Otobor further submits that the findings of fact were based on perjured evidence by all of the respondents at the hearing and that Judge Serota and Dame Janet Smith were determined to suppress the truth and had pre-determined issues against him.

I find it impossible to identify an error of law on the part of the Employment Tribunal on the basis of the submissions made by the applicant. The applicant did not point to anything in particular which would suggest bias on the part of the Employment Tribunal. His appeal is essentially a challenge to factual findings made by the Tribunal which gave rise to the dismissal of his race discrimination claim. This is no more than an attempt to re-argue the entire case.

The Employment Appeal Tribunal was clearly correct in dismissing the appeal. The Employment Appeal Tribunal only has jurisdiction to hear appeals from the Employment Tribunal on questions of law. It is not its function to re-hear the facts. Mr Otobor has not been able to identify an error of law as the basis of a ground which would have a reasonable prospect of success on appeal. I should refer to two matter in particular. First, while the Employment Tribunal Judge, Judge Hall-Smith, was correct to say that the complaints Mr Otobor made about the original decision of the Employment Tribunal were matters for an appeal as opposed to consideration, the grounds which were subsequently advanced did not particularise the complaints and did not disclose any arguable grounds of appeal. Secondly, the respondents had not conceded that they had discriminated against the applicant; they had conceded no more than that there were issues to be tried by the Employment Tribunal.

Notwithstanding the submissions which Mr Otobor has made very economically before me this afternoon, the appeal would have no real prospect of success and I refuse leave to appeal.