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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Adeagbo v. Deaprtment of Health [2000] EAT 258_99_0404 (4 April 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/258_99_0404.html Cite as: [2000] EAT 258_99_404, [2000] EAT 258_99_0404

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APPEARANCES

 

For the Appellant	MR M PANESAR (of Counsel) Instructed by: Ms L Connerty Principal Litigation Officer Commission for Racial Equality Elliott House 10/12 Allington Street London SW1E 5EH
For the Respondents	MISS R DOWNING (of Counsel) Instructed by: Ms P Vaja Office of the Solicitor Department of Social Security Department of Health New Court 48 Carey Street London WC2A 2LS


 


MR COMMISSIONER HOWELL QC:

1. In this appeal Mr Foluso Adeagbo seeks to have set aside as erroneous in law the decision of the London (North) Employment Tribunal, issued to the parties on 5th January 1999 after a four-day hearing on 14th to 17th December 1998, dismissing as hopeless his complaints of racial discrimination and victimisation against his employers, the Department of Health, at the conclusion of his case and without proceeding to hear oral evidence from the respondents.
2. The background to the proceedings before the tribunal was that Mr Adeagbo had been employed by the respondents since April 1992 as an administrative assistant in the Medicines Control Agency. Although intelligent, it appears that he found it difficult to adjust to accepting instructions or working with other people at this fairly modest level in the public service, and his probationary period was extended no less than three times before his appointment as administrative assistant was confirmed, more than any other employee in the unit.
3. For something over five years, up to 1st October 1997, he worked in a section headed by a Mr Hazell who in turn reported to a Mr Whitbread, the unit manager. From 1st October 1997 the appellant was transferred to another section within the same unit, headed by a Mrs Stronell who also reported to Mr Whitbread. There was some evidence of tension between Mr Hazell, who ran his section in a fairly relaxed way, and Mrs Stronell who had been in the unit longer than any one else and adopted a stricter attitude.
4. The appellant got on reasonably well with Mr Hazell, but even in his time in that section there had been difficulties between him and the respondents about his work and disciplinary matters. His staff appraisal reports, written by Mr Hazell and countersigned by Mr Whitbread, had raised various points about his performance and made recommendations about further training (which he had not taken up). He had been warned and disciplined for making premium rate telephone calls to international numbers for his own purposes from his office telephone in working hours, and had been made to pay back over £260 to the respondents for money wasted in this way. Subsequently he had brought his own mobile phone into the office and caused annoyance to others by the number and length of private telephone calls he was making from it during working hours, and had been told this had to stop and to restrict the use of his mobile phone to his own personal time when he was not in the office at work. That was done by means of a formal disciplinary warning issued to him on 5th December 1997 by a Mr Gosling, the Head of Personnel, which also warned him of the consequences of insubordination: see page 45 of the appeal file.
5. That warning was shortly after the appellant had been transferred to Mrs Stronell's section, and there seems little doubt that it was the clash of attitudes to work and personalities between the appellant and her that brought matters to a head. Another section manager, a Mr Parker, wrote a memorandum to the unit manager Mr Whitbread on 9th December 1997 (pages 46-47) criticising Mr Adeagbo's conduct, saying he had seen him being argumentative towards Mrs Stronell even though approached discreetly, and had himself found him unwilling to accept instruction or criticism. Mr Adeagbo had, in Mr Parker's view, been guilty of conduct towards his previous section manager Mr Hazell that he should not have been allowed to get away with for so long.
6. The clashes culminated in the appellant launching formal complaints of race discrimination against both Mr Whitbread and Mrs Stronell on 6th January 1998. As recorded by the tribunal in paragraph 7 of their statement of reasons at pages 10-15 of the appeal file, these complaints were based on allegations that the two of them had improperly prolonged Mr Adeagbo's probation, that the allocation of work had been deliberately weighted against him, that Mrs Stronell had driven black employees from the section and that white and black employees had been treated unequally with regard to use of the telephone and daily duties.
7. Under the respondents' established equal opportunities procedures known as "Working it Out" a formal investigation, by two investigators from outside the appellant's unit, was thereupon commissioned by a Mrs Kellaway, a senior management employee. She wrote to Mrs Stronell and Mr Whitbread on 26th January 1998, advising them of the complaints and giving them 14 days to respond in writing. On 4th February 1998 she wrote to Mr Adeagbo to inform him that this had been done, and telling him the names of the investigators and the terms of reference for the investigation. All of these letters were headed "Restricted - Staff - Investigation".
8. On 17th February 1998 the senior investigator, a Mr Smith, wrote to the appellant confirming his appointment and the terms of reference, and also confirming arrangements made in a previous phone call between them on 16th February for the appellant to attend before the investigators for interview about his complaints on the following Monday, 23rd February 1998. Mr Smith enclosed copies of the written responses received from Mrs Stronell and Mr Whitbread so that the appellant could raise any comments on these at the interview and stated: "I would like to assure you that the investigation will be conducted fairly and in the strictest confidence."
9. On the following day, 18th February 1998, Mr Parker sent a memorandum to Mr Gosling complaining that he had been approached by the appellant and spoken to that day in a way he, Mr Parker, had understood to be "almost like a warning" and an attempt to influence the evidence he, as a potential witness to the facts under investigation, might give. Mr Gosling passed this to the investigators: see page 49 of the appeal file.
10. On 23rd February 1998 the appellant attended for his interview with the investigators and the agreed note shows that the senior investigator opened the proceedings by emphasising that "All parties to the investigation were bound to treat the proceedings in strict confidence". (See page 49A: we have for convenience added the various supplemental documents produced to us by both sides in the course of the appeal hearing to the existing appeal file chronologically, numbered 47A, 49A etc.)
11. This was followed by a letter dated 25th February 1998 from Mrs Kellaway to the appellant, in consequence of the complaint made by Mr Parker, warning him that:

"As you know, the investigation of your complaint is being carried out in the strictest confidence and it is incumbent on all those concerned to respect this and not to discuss it with colleagues.

I have been advised, however, that you have recently raised the investigation with a colleague. This, if true, must not happen again." (See page 49B.)

12. On 3rd March 1998 Mr Hazell, who was also of course a potential witness to the facts being investigated, sent a three page memorandum to the investigators stating that on Friday 27th February the appellant had given him photocopies of four sets of minutes forming part of the evidence Mr Whitbread and Mrs Stronell had submitted to the investigators. Mr Hazell then volunteered his own comments taking issue with what had there been said both by Mr Whitbread and by Mrs Stronell on various points.
13. It is quite clear, and not in dispute, that the appellant had approached Mr Hazell on 27th February 1998 and had been discussing with him in detail the facts and the evidence under investigation, contrary to what he been expressly told by the senior investigator himself at the outset of his interview on 23rd February that all parties to the investigation were bound to treat the proceedings in strict confidence. If he had received Mrs Kellaway's letter of 25th February by the 27th, these actions on his part were also contrary to what he had been expressly told in that letter.
14. On 9th March 1998 Mr Gosling, the Head of Personnel, recorded in a file note (pages 50-51) that the two investigators had visited him at their own request because of concerns that had arisen in the course of their investigations. The concerns they expressed were that another employee they had interviewed, a Mr Craggs, had given evidence of being bullied by the appellant and they were worried about his safety; and also that Mr Hazell's memorandum which they had by then received showed the appellant to have been discussing the case and the evidence with a potential witness, this being the second time a witness had been approached. Mr Gosling's memorandum recorded his decision, in conjunction with the group manager Dr Nicholson, that the appellant should be suspended from his duties on full pay for failing to observe the confidentiality requirement, in the interests of the ongoing investigation so that he was no longer in day to day contact with other witnesses in the workplace; and also that a separate investigation into the allegations of bullying should commence at once.
15. On the same day, 9th March 1998, Mr Gosling interviewed the appellant and handed him a letter suspending him on full pay until further notice, on the ground that by discussing the case with another member of staff and disclosing papers to him he had failed to treat the matter in the strictest confidence as he had been required to do. This action was stated to be "without prejudice, and in accordance with the staff handbook, in the interests of the ongoing investigation": page 65.
16. That suspension on full pay continued until the investigation into the appellant's complaints of race discrimination concluded with a finding that there was no evidence to support his allegations. That finding was sent to the appellant by letter dated 24th June, as recorded in paragraph 9 of the tribunal's reasons. In the meantime, the separate investigation into the allegations of bullying against the appellant had been launched; and on 24th April 1998 Mr Gosling had written to him again, advising him that while that investigation remained under way he would continue to be suspended from his duties on full pay, regardless of the position concerning the separate race discrimination investigation which he himself instigated: see page 65A.
17. Later, after the appellant had been required to make himself available for interview and failed to do so because he had left the country for Nigeria without telling the respondents, his salary was also suspended. That was at the end of May 1998 and was followed on 8th June 1998 by the appellant lodging his originating application with the tribunal, complaining of "race relations, victimisation, detriment" on the part of Mr Gosling and the MCA, in having suspended him from work on full pay on 9th March 1998. The particular grounds relied on were that he had been suspended for discussing his case when neither Mr Hazell who had been the other party to the same discussion, nor Mrs Stronell who he claimed had "discussed the case with Mr T Kutin" had themselves been suspended or disciplined: both of those employees were superior to him and both were white. In paragraph 1(3) annexed to his originating application at page 19 of the appeal file the appellant specifically acknowledged the statement in the agreed minute of his interview of 23rd February 1998 that all parties were bound to treat the proceedings in strict confidence, but contended "I did treat the contents of the interview in strictest confidence, but I also needed to make enquiries of fact from Mr Hazell, who is a material witness and use his IT skills."
18. It is a feature of this case that the way it has been put by and on behalf of the appellant has developed considerably over time, both before the tribunal and in this appeal. The tribunal's decision records at page 10 that on the first day of the hearing there was a substantial initial delay to enable Mr Panesar, who appeared on his behalf before them as well as before us, to take instructions from his client. The presentation of the appellant's case then spread over four days, during which the appellant himself and four other witnesses gave evidence and were cross-examined. At its conclusion, the tribunal quite fairly invited Mr Panesar to identify the ways in which it was now being said the appellant had been less favourably treated than other employees, it being an essential element of any complaint of direct discrimination or victimisation under sections 1 and 2 of the Race Relations Act 1976 for some such treatment to be established as a matter of fact.
19. Mr Panesar did so, and paragraph 2 of the tribunal's statement of reasons accordingly sets out the factual basis (or bases) relied on for the appellant's case at that stage. To the initial complaint about his suspension following his complaint of race discrimination were now added four other grounds: that the respondents had treated the appellant less favourably in the unequal distribution of work, and also in relation to the curtailment of his use of the telephone; and had also victimised him in his suspension for bullying and in the stoppage of his salary for the period of his absence abroad.
20. At that point Miss Downing, who appeared for the respondents both before the tribunal and before us, made a submission that there was no case for the respondents to answer. She contended that it had not been shown that, in any of the respects now alleged, the appellant had been treated less favourably that any other employee had been or would have been, and on that basis his complaints of discrimination and victimisation could not succeed.
21. The tribunal considered this submission, accepted it and thereupon dismissed the case, without proceeding to hear oral evidence or further argument from the respondents. They summarised their reasons for doing so in paragraph 11 of their decision under the heading "Legal Background" as follows:

"The Applicant has brought his complaint under Section 1(1)(a) and 2(1) of the Race Relations Act 1976. Under the first section two questions arise for decision in this case. First was the Applicant treated less favourably than the Respondent treated or would treat other persons in the same circumstances? If so, was that less favourable treatment on racial grounds? The first question may be termed the treatment issue while the second question the causation issue. Unless the Applicant succeeds in proving that in that treatment he was treated less favourably than the Respondent treated or would treat other persons in the same circumstances no other question arises and the application must fail. In this case the Applicant cannot on the evidence demonstrate that he was treated less favourably than the Respondent treated or would treat other persons in the same circumstances and on that ground alone his claim fails."

22. Despite the tribunal's reference to "under the first section" it is apparent that their comments and findings on whether any less favourable treatment had been shown apply to the complaints under both sections 1(1)(a) and 2(1) of the 1976 Act, a finding in favour of the applicant on what they termed the "treatment issue" being an essential element under both sections. On the ground that this essential element was missing in the present case they dismissed the complaints in their entirety, dealing in greater detail with their specific findings in relation to each of the five identified heads of alleged unequal treatment in the succeeding paragraphs 12-16.
23. Against that decision Mr Adeagbo appeals, on the grounds set out on his behalf in the Notice of Appeal at pages 2-9 inclusive and developed in argument by Mr Panesar with the aid of two separate skeleton arguments before us. The general ground relied on is that the Employment Tribunal erred in law in accepting a "half time submission" by the respondents of no case to answer and in stopping the proceedings from continuing beyond the appellant's case. It was quite wrong, submitted Mr Panesar, to have regarded this appellant's case as so frivolous or hopeless as to fall within the exceptional category of cases where a tribunal may properly consider determining racial discrimination issues against a complainant without hearing what the respondent has to say about them.
24. In particular, it was contended that the tribunal had wrongly ignored the appellant's evidence of Mrs Stronell and Mr Hazell having breached confidentiality without having been suspended or disciplined, evidence from the appellant's witnesses suggesting prejudiced attitudes on the part of Mrs Stronell and Mr Whitbread, and evidence from the appellant that he had been targeted for criticism in respect of his mobile phone use when he had not contravened any "order or directive" about this. It was further contended that the tribunal wrongly ignored allegations by the appellant that the investigation into bullying (and in particular its timing) suggested strongly that it was a trumped-up charge Mr Craggs had been encouraged to make, in order to justify suspending the appellant and sideline his race discrimination complaints.
25. The principles that should govern what a tribunal does in circumstances such as arose here at the conclusion of the appellant's case on the fourth day of the hearing are by now well established, and were not in dispute before us. They apply equally to proceedings under the Sex Discrimination Act 1975 and the Race Relations Act 1976: see Humphreys v St George's School [1978] ICR 546 at 549B-G, Owen & Briggs v James [1981] IRLR 133 at 136 paragraph 22.
26. The starting point is that it is in all cases for the applicant who complains of unlawful discrimination to make out his or her case, which he or she must do to the satisfaction of the tribunal on the balance of probabilities. That will normally involve a combination of the objective facts proved before the tribunal and the proper inferences to be drawn from those facts, in particular as to the reasons or motivation behind the conduct established.
27. That latter aspect is of particular importance in the context of racial discrimination, since direct evidence or admission of discriminatory reasons for acting or not acting in a particular way is of course unusual. Thus the mere fact of some less favourable treatment, such as non-selection of the applicant for a post or promotion, coupled with a difference in race, will often be the main evidence pointing to the possibility of racial discrimination and will be sufficient to require an explanation from an employer. In the absence of a satisfactory explanation an inference of discrimination on racial grounds may legitimately be drawn at the conclusion of all the evidence, which the tribunal must evaluate on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case: see King v Great Britain China Centre [1992] ICR 516, 528F – 529C per Neill LJ.
28. In the great majority of cases, and particularly where the reasons or motivation for the respondent's conduct are the main issue, the right course must be for the tribunal not to carry out the exercise of balancing the evidence and considering what inferences can be drawn from it until after it has heard the evidence of both sides on the issues raised, with proper opportunities for cross-examination. In that sense, and on such sensitive issues, the nature of the hearing must have some element of an inquiry into what has been going on if justice is to be done. That is however not an absolute rule: there remain exceptional cases where a tribunal having heard the applicant may properly decide that they have heard enough, and dismiss the complaint as frivolous or hopeless at the conclusion of the applicant's case if the evidence does not establish a basis for a claim.
29. The approach of the tribunal in the present case, as set out in the passage we have quoted from paragraph 11 of their reasons, appears to us entirely consistent with the principles laid down in the above authorities; and we do not consider they misdirected themselves in the questions to be addressed in deciding whether to conclude the case without hearing oral evidence from the respondents. Mr Panesar rightly conceded before us in argument that if no differential treatment of the complainant was established, the question of whether there had or had not been discrimination or victimisation on racial grounds could never be reached; and it was proper for the tribunal to take the exceptional course of deciding the case at that stage without going on to hear any evidence the respondents chose to give. That must in our judgment be right: if the primary facts from which inferences might be drawn are not established, then it must follow that the case is hopeless and it is pointless to allow it to continue with cross-examination on, for example, questions of motive which on this analysis could not arise.
30. Whether the primary facts to demonstrate less favourable treatment have or have not been shown to exist in a particular case must be a matter for determination on normal principles, by the tribunal itself as the tribunal of fact assessing the evidence on a balance of probabilities. A "case to answer" means a case to answer on the facts, established by credible evidence to the reasonable satisfaction of the tribunal, from which inferences may properly be drawn; not merely that allegations have been made of unlawful conduct unsupported by the essential basis of primary fact on which any complaint of direct discrimination or victimisation must found, namely that the applicant has suffered some less favourable treatment than other individuals have or would have undergone in comparable circumstances.
31. We therefore reject the initial general submission that this tribunal misdirected themselves or misapplied the above authorities by approaching the case in the way they did. The real question, which occupied the main part of the submissions before us, was whether they were actually justified in concluding on the basis of the material before them, namely the witness statements and oral evidence of the appellant and his witnesses and the agreed documents, that it was not established to their satisfaction that the appellant had suffered any less favourable treatment in any of the respects alleged.
32. No separate argument was addressed to us on the specific findings made by the tribunal that the appellant had not, as a matter of fact, been treated less favourably than any other employee in relation to the distribution of work, his unauthorised or excessive use of the telephone, or the stoppage of his salary after he had absented himself. We record simply that the tribunal's findings on those issues of fact are clear, justified by the evidence or undisputed facts before them and adequately explained in their statement of reasons, so that no error of law is shown in relation to them.
33. The appeal thus comes down to whether there was any error of law in the tribunal's decision on the question of the appellant's suspension. Their general conclusion, that no less favourable treatment in either of the two respects alleged under this head had been established, is expressed in their paragraph 11 already quoted. Their more detailed reasons are explained in paragraph 15:

"In normal circumstances it would be considered unusual for a complainant to be suspended. However the confidential nature of the investigation had been impressed upon the Applicant on no less than three occasions and in breach he had approached both Mr Parker and Mr Hazell who were both potential witnesses. Mr Parker had complained about the approach to him. ... The investigation had been instigated by a complaint from the Applicant and it was not unreasonable that the investigation team should see the witnesses without interference from the Applicant. The Applicant complained that Mr Hazell had not been suspended nor had Mrs Stronell for obtaining a reference as to her conduct from Mr Kutin. It is our view that neither of these supervisors were likely to interfere with the investigation.

As soon as the Applicant left the premises Mr Craggs came forward with a complaint of bullying part of which was confirmed by an independent witness. It was not unreasonable that the suspension should be extended on this account. There was no evidence that either of these suspensions were motivated by race discrimination or motivated by the fact that the Applicant had complained of race discrimination. Indeed the Applicant in cross-examination made the following observations in terms of the suspension. In relation to the first he said if true my approaches were good reason for keeping me out of the building. In relation to the second he said bullying and intimidation should be supported by suspension."

34. Mr Panesar submitted that the findings embodied in these paragraphs were inadequate and unjustified as a basis for the tribunal's determination that the appellant had failed to establish a case of less favourable treatment, since the view expressed that "neither of these supervisors were likely to interfere with the investigation" was unjustified speculation, and ignored the objective fact that the appellant himself had been suspended for talking about the case when the other two had not. Nor was any clear conclusion expressed about the alleged victimisation involved in the second suspension, which Mr Panesar submitted was in any case suspicious.
35. Miss Downing submitted on the other hand that the tribunal's decision as to both suspensions was based on conclusions of fact to which they were entitled to come on the material before them, and were apparent from their statement of reasons: any other employee who had done what the appellant, on his own evidence and the undisputed facts, had done would have been suspended in the same circumstances, and the cases of Mr Hazell and Mrs Stronell were not found comparable since they had not approached or sought to influence witnesses as to the facts under investigation after being told not to. Consequently it had been proper for the tribunal to halt the case in the way they did.
36. In his reply Mr Panesar sought to add a new ground, not included in the Notice of Appeal or his earlier submissions, that the tribunal had erred in referring to "three occasions" on which the confidential nature of the investigation had been impressed on the appellant before 27th February when there might actually have been only one or two: he pointed to a manuscript note on Mr Gosling's his file note of 9th March 1998 at page 52 as suggesting that Mrs Kellaway's letter of 25th February 1998 might not have been sent until 2nd March; and thus might not have been received by the appellant until after his approach to and conversations with Mr Hazell on 27th February. Miss Downing's recollection, supported by the notes of her instructing solicitors, was however that this had not been raised as an issue of fact before the tribunal; and certainly it seems inexplicable that if it had been, no mention of the point should appear in the tribunal's summary of the facts and their reasons when this letter was specifically referred to.
37. We think the tribunal may fairly be criticised for failing to state in more detail the reasons which led them to their conclusion that a case of less favourable treatment on the primary facts had not been established to their satisfaction on the crucial issue of the appellant's suspension, which had of course formed the only ground for his initial complaint to the tribunal: in particular the reasons why they found the circumstances of Mr Hazell and Mrs Stronell not comparable with the conduct for which the appellant himself been suspended. We think also that it was foolish of the tribunal to have added observations on the question of motivation, having heard no oral evidence from those alleged to posses such motives and when questions of motivation could, on their own analysis in paragraph 11 of their reasons, not arise in the case at all.
38. But the question for us is not whether the tribunal's reasons could have been better expressed, or contained ill-considered observations better omitted. So long as the tribunal's findings are reasonably clear on a fair reading of what they have said, it is not for us to subject them to an over-refined criticism on the factual issues: those are for the tribunal and not for us to decide: British Gas v Sharma [1991] IRLR 101, at 105 paragraph 30. There is no doubt from the tribunal's findings and the undisputed facts that what this appellant was suspended for on 9th March 1998 was approaching a witness of fact despite having been expressly told that he was required to keep the whole matter confidential. This was moreover his second approach, in circumstances giving rise to a reasonable inference that he was trying to influence what witnesses would say to the investigators about the facts under investigation, thus making it more difficult for the investigators to carry out the inquiry in their own way. Those appear to us on a fair reading of the tribunal's reasons to have been the essential facts which led them to conclude as they did; and they are beyond reasonable dispute. Of the "three occasions" referred to, the most important by far was what the appellant was told by the investigators themselves at the opening of his interview on 23rd February 1998, which as shown in his originating application he clearly understood, but nevertheless still made the approach to Mr Hazell. The letter of 25th February 1998 merely reiterated the obligation of confidentiality and we do not consider its receipt or non-receipt before the 27th makes a material difference.
39. As to the two other cases suggested as comparators, the facts as recorded by the tribunal showed Mr Hazell's discussion of the case to have been in response to the approach by the appellant, rather than the other way round: and what Mrs Stronell had done was merely to seek a character reference from a senior member of staff. According to Miss Downing the evidence was that this had been at an early stage, once Mrs Stronell understood that an accusation had been made against her but before any express warning about confidentiality of the kind given to the appellant on 23rd February. We did not understand Mr Panesar to dispute that but in any case there is an obvious difference between a request for a character reference and an approach to a witness of fact: it was not suggested that Mr Kutin was a witness to the facts under investigation.
40. In our judgment this factual background, coupled with the tribunal's own finding recorded in paragraph 12 after hearing and seeing the appellant that he was:

"uncompromising and defiant in his attitude towards the Respondent … bereft of any sense of awareness that what he was doing at any given time might be wrong"

both explains and justifies the tribunal's substantive finding that any other employee who had behaved as the respondent had done would have been treated similarly, and that neither Mr Hazell nor Mrs Stronell was a comparable case because the determining factor - the likelihood of material interference with the investigation - was not present.

41. By the same token, we consider the tribunal's substantive finding that the appellant had suffered no less favourable treatment than any other employee would have done in having his suspension continued after conclusion of the race discrimination inquiry, in view of the further investigation still on foot into the allegations of bullying against him (by that time corroborated by another witness) was one to which they were entitled to come on the material before them and the primary facts they found, and was sufficiently explained by the facts recorded in their decision.
42. It follows that despite our reservations about the way the tribunal expressed their reasons on the suspension issues, we have on balance not been persuaded that they fell into any error of law to warrant our setting the decision aside. Their conclusions of fact were ones open to them as the tribunal of fact to arrive at, and while we echo the many previous statements of this appeal tribunal that in almost all cases involving such sensitive issues it is wiser to defer a decision until after hearing what both sides have to say and thus lessen the chances of an applicant being left with a sense of injustice, we have not been persuaded that the exceptional course adopted in this case was improper. For those reasons, this appeal is dismissed.