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Case No: A2/2010/0030
Neutral Citation Number: [2010] EWCA Civ 646
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE PUGSLEY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 20 May 2010

Before:
LORD JUSTICE SEDLEY

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Between:

**MULUGETA (Appellant)

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XEROX (UK) LTD (Respondent)**

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(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment (As Approved by the Court)

Crown Copyright ©

**Lord Justice Sedley:  
**1.Mr Mulugeta, who has appeared before me in person this morning, renews his application for permission to appeal against the dismissal by the Employment Appeal Tribunal of a similar application in respect of an Employment Tribunal decision promulgated on 21 October 2008.

2.The claim that Mr Mulugeta had made arose out of his resignation from the employment of Xerox (UK) Limited ("the respondents") in circumstances which, he has contended throughout, amounted to unfair dismissal (that is to say constructive dismissal) and racial discrimination, as well as involving a claim for unpaid wages.  Xerox's case was that it had done nothing that amounted to a fundamental breach of contract so as to entitle Mr Mulugeta to treat himself as constructively dismissed.  That defence succeeded and it is against the success of that defence that Mr Mulugeta wishes to appeal.

3.Mr Mulugeta has prepared his case with great care and presented it with great courtesy.  I thank for him both of those things; the court appreciates it.  He puts his grounds of appeal under the following broad heads.  First of all, the failure of the respondent adequately to address concerns that he raised about the health implications of fumes created by Xerox's equipment.  Secondly, the lack of appraisal of Mr Mulugeta as an employee.  Thirdly, the failure to transfer him to another site pursuant to medical advice.  Fourthly, the refusal to investigate the impact on Mr Mulugeta's psychological health of his treatment by Xerox.  Fifthly, the blocking of his application to transfer to another site.  Sixthly, his lack of promotion.  And, finally, what has been described as the "go" issue; that is to say, the concern that arose when Mr Mulugeta found that someone had crossed out his first name on a job ticket and written the letters G-0 ("go") instead.  This, he thought, was a manifestation of racial hostility.  Mr Mulugeta, I should have said, is of Ethiopian black African ethnic origin.

4.He began work with Xerox in February 2001 on a fixed term contract as a finisher (the most junior position in the print room), but he was promoted very rapidly to the role of specialist on a two-year fixed term contract; and then again promoted to high volume specialist in 2003 with a salary increase and a new fixed term contract taking him to the end of June 2004.  It was in this last period I think that his problems began, when he wrote to his line manager and to the official above the line manager about his career and salary prospects.  This was investigated, but not to Mr Mulugeta's satisfaction.  The problem had to do with the fact that, although Mr Mulugeta was a graduate, Xerox took the view that he was not employed in a post requiring a degree.

5.Mr Mulugeta raised a formal grievance and that was processed, but not to his satisfaction.  The grievance raised the impact on his health and the way he had been treated.  This too was not resolved to his satisfaction.  The Employment Tribunal (when the matter came before it) concluded that Mr Mulugeta was concerned to find a cause for work-related depression and stress, from which he was undoubtedly suffering, and to personalise it without naming names.

In November 2006 Mr Mulugeta was moved to Lloyds Register (another Xerox site) in what the tribunal found was a genuine attempt to restore his health by giving him a new environment, but it was not a permanent move because there was no permanent vacancy there.  During this time, however, Xerox received a report from Dr Matthews that Mr Mulugeta was well enough to return to CitiGroup where he had been located.  That was implemented, but Mr Mulugeta was not satisfied with it and in the end felt driven to resign.

6.The Employment Tribunal decision, I have to say - and I hope Mr Mulugeta will accept this from me - is unusually thorough and carefully reasoned and detailed.  Mr Mulugeta does not agree with its conclusions and findings, and he is perfectly entitled to disagree with them, but from the point of view of the law it is the tribunal's findings upon which we have to proceed when we look to see if there is an error of law in what has gone on below.

7.The "go" comment, which had been raised quite late, was not found to connote any particular attack upon Mr Mulugeta; it remained a bizarre and enigmatic thing which could not be interpreted.  As to appraisals, the tribunal found that there had been adequate appraisals and adequate reasons for the points at which appraisals might have been but had not been carried out.  The fumes from the binding machine, which had been a matter of legitimate concern, turned out to be potentially noxious and Xerox acted upon the finding of a health and safety risk assessment and put the machine out of use.

8.It is simply not possible, I am afraid, to rely on the fumes in the interim as a breach of the implied term of confidence between employer and employee.  The implied term undoubtedly requires the employer to look at complaints like this and to take them seriously and to act on them if they turn out to be real.  That is what Xerox on the findings of the tribunal did.  If, nevertheless, Mr Mulugeta had meanwhile been physically harmed by the fumes, he would of course have a personal injury claim against his employers.  This is how the law deals with issues like that.  It does not turn injury into a breach of contract without more.  Injury can be separately compensated.

9.The race discrimination claim was found not to be viable, essentially because there were no actual comparators who could be adduced to show that they had been better treated than Mr Mulugeta in similar circumstances.  The tribunal found that if you took a hypothetical comparator who had the same career trajectory as Mr Mulugeta but was white, then such a person would have been treated no differently from the way Mr Mulugeta was treated.  The tribunal were not satisfied that there had been any irregular treatment of Mr Mulugeta as compared with the rest of the workforce in relation to such things as appraisal, transfer and salary grade.

10.It followed in the judgment of the Employment Tribunal that nothing that Xerox had done, albeit Mr Mulugeta had been distressed by what had happened, amounted to a fundamental breach of the contract of employment itself.  As Mr Mulugeta will appreciate, fundamental breach requires something serious and radical and irremediable to have happened before the employee can take his cards and claim he was constructively dismissed.

11.The Employment Appeal Tribunal on two occasions entertained Mr Mulugeta's application to appeal on grounds of error of law in the Employment Tribunal's decision and on both occasions made clear to him that, although he was quite entitled to disagree with the tribunal, there was no error of law that was discernible in the tribunal's findings.

12.Having heard Mr Mulugeta today with, I hope, proper care, I, like the Employment Appeal Tribunal, am not able to see any point of law upon which an appeal to this court might conceivably succeed.

13.I will say one other thing to Mr Mulugeta before I part with this case.  The reason for this procedure that we have of an application for permission to appeal in which the other party is not yet involved is that, if permission to appeal is given, the other party will turn up in force with its lawyers and barristers and will run up a bill of cost running well into five figures, which the unsuccessful appellant would be expected to pay.  If, therefore, it is a foregone conclusion that an appeal would be unsuccessful, we would be doing you no favours at all, Mr Mulugeta, by allowing the appeal to go ahead.  You would simply be going into the lion's den with the certainty of a ruinous costs order against you.

14.So I hope you will accept that my refusal of permission to appeal, which I have to give for the reasons I have given, is as much a protection of you as a saving of the court's time.  It means that you will not run the risk of incurring a horrendous bill of costs in what would I am afraid be a doomed enterprise.  I thank you again for your helpful and courteous submissions and I apologise to you for not being able to give you more help, but this, I am afraid, will have to be the end of the road for you.  I wish you well with your health; I realise that you have been under a lot of stress.  I hope things get better for you.  Thank you again.

Order:  Application refused