England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(MR RECORDER BURKE QC)

		Royal Courts of Justice Strand London WC2 Tuesday, 31st July 2001

1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of the Employment Appeal Tribunal, Mr Recorder Burke QC presiding on 5th March 2001. They dismissed an appeal against a decision of the Employment Tribunal for London North which rejected the allegation of the present applicant, Mr Goldman, that he had been racially discriminated against. The Employment Tribunal held, one, that the applicant's complaint of direct racial discrimination fails and, two, the applicant is ordered to pay the respondents' costs in these proceedings, such costs to be assessed if not agreed.
2. Mr Goldman was employed by the Enfield and Haringey Health Authority as Director of Human Resources for the North London College of Health Care Studies from 3rd September 1990 until 23rd June 1992, when he was dismissed.
3. In a long judgment given at a preliminary hearing the Appeal Tribunal dismissed Mr Goldman's appeal dealing one by one with the submissions which Mr Goldman had made. Mr Goldman appeared in person before the tribunals, and again he appears in person this morning. He has submitted his case forcefully to me. He also submitted a skeleton argument which runs to 12 pages and he puts his three central submissions at page 1. One, the EAT did not recognise that the applicant did not receive a fair trial at the Employment Tribunal; two, the Employment Appeal Tribunal's decision was perverse; and three, the Employment Appeal Tribunal misdirected itself as to costs.
4. In relation to the complaint about the fairness of the trial before the Employment Tribunal, the applicant submits that he was at a disadvantage because he was in person and that he should have been granted legal representation for his case before the Employment Tribunal. That tribunal relied heavily, he submits, on the written submissions of counsel for his opponents. The applicant further submits that he was not treated fairly in relation to attempts he made to have witnesses before the tribunal. He refers to Mr Blackburn, and he tells me that before the hearing before the Employment Tribunal he appealed decisions taken by the Tribunal to the Appeal Tribunal which dismissed his interlocutory appeals, holding that the Employment Tribunal had a discretion in these matters.
5. The absence of the witnesses, he submits, was material especially when the tribunal referred to the lack of corroboration for his claim. This point was pursued before the Employment Appeal Tribunal certainly in relation to Mr Allert, and in paragraph 19 of their decision the EAT held that "The witness order was refused at the tribunal's discretion and we see no argument or bias on which that exercise or discretion can be attacked". They had not been shown or told any specific evidence that Mr Allert was willing or able to give to give and had seen no statement from him.
6. The second complaint is as to the perversity of the Appeal Tribunal's decision. The basis of the claim that he had been discriminated against on racial grounds was that he was treated less favourably than a fellow employee Mr Lee who was Chinese and had been involved in travel claims which Mr Goldman puts in his skeleton argument this way: "The pivotal issue was the alleged fraudulent travel claims submitted by Mr Lee". The applicant refers to the fact that his boss also called Mr Li (spelt differently) is Chinese and his case was, and is, that his colleague, Mr Lee had been treated more favourably in relation to disciplinary matters than he, the applicant, had been.
7. The applicant refers to the inquiries which had been conducted into Mr Lee's conduct, and unless I say otherwise, I am referring to the colleague Mr Lee rather than "the boss" as Mr Li is described. He submits that the audit reports were internal test procedures. Only the district auditor, who also conducted an investigation, was independent. The applicant submits that the tribunals have not approached these reports and the evidence in a way which was other than perverse, their finding that there was not more favourable treatment to Mr Lee was a perverse finding. He cited as an example of that that Mr Lee claimed that he did not know what the rules about travelling expenses were and yet he was a very experienced officer who was a lead officer in relation to such matters and had been signing other peoples' claim forms in the course of his duty as a lead officer. He could not reasonably or credibly claim that he did not know what the rules were.
8. The applicant says that the tribunal did not have sufficient regard to the fact that Mr Lee had given different explanations and that there were inconsistencies between the accounts which he gave. The applicant describes the Employment Tribunal's approach to the reports which were before them as strange. He says he was dumbstruck by the findings, having regard to the inconsistencies which were present. There had been an assumption that Mr Lee had been exonerated in the reports when in fact there was no finding that he was exonerated. He also refers to the Employment Tribunal's finding as to his, the applicant's, work on the computerisation procedures which were within the applicant's duties: "computerisation of personnel records". They found that the work had not been completed by the applicant which could not be right because he produced to the Employment Tribunal a print-out which was evidence that he had done on the computerisation of personnel records what he was expected to do.
9. I referred him to paragraph 69 of the ET's decision: "The personnel records were not computerised until after Mr Goldman was dismissed when Mrs Fayers finalised the system". I put it to the applicant that I read that as meaning not that no work had been done by the applicant but that it had not been finalised as it was Mrs Fayers who finalised the matter. The applicant said that he had asked what Mrs Fayers had done and had not been given any answer to that.
10. In his written submission and he repeated orally, the application contends that the failure of the respondents to act in Mr Lee's case demonstrates the discriminatory nature of their actions led by Mr Li, the applicant's boss. Mr Lee was clearly given preferential treatment.
11. I have considered the submissionss of the applicant and the reasoned judgments of the Employment Tribunal and of the Employment Appeal Tribunal. The applicant's difficulty is, and I put this to him, that it is the Employment Tribunal which is the judge of the facts, the industrial jury as it is sometimes described. I am sure the applicant understands that, but he obviously feels strongly that they been perverse in their approach to the evidence and that he was treated unfairly during the hearing before them.
12. The tribunal made an express finding in relation to Mr Lee who gave evidence and that was a favourable one in relation to his credibility and reliability. The hearing lasted seven days. The tribunal had every opportunity to assess the evidence of the applicant and of Mr Lee. I am not able to find that the hearing was unfair. There is no rule of law that at an Employment Tribunal hearing an applicant is entitled to legal representation. I am not able to hold that the advent of the Human Rights Act incorporating as it does the European Human Rights jurisprudence entitles any applicant before an Employment Tribunal to legal representation. Moreover, I am not persuaded that it is arguable that the hearing before that tribunal was unfair. I do not have the interlocutory decisions of either the Employment Tribunal or the Employment Appeal Tribunal, but it is clear that Mr Goldman made applications for witnesses. There is a discretion in the tribunal and that discretion was upheld on interlocutory appeals to the Employment Appeal Tribunal.
13. Moreover, I agree with the statements of the Employment Appeal Tribunal which I have cited in relation to the questions Mr Goldman raised before them. I am not able to hold that it was arguable that the decision of the Employment Tribunal was perverse. Plainly, the applicant had a difficult task before him. It is not easy to establish, when responsible positions such as Mr Goldman and Mr Lee held are involved, that their boss is going to treat one of them more favourably than another on racial grounds even when that boss is of the race of the person alleged to have been treated more favourably than the applicant.
14. Mr Goldman obviously made every effort before the Employment Tribunal to establish there was more favourable treatment of Mr Lee and that it was on racial grounds. The Tribunal it considered the evidence and the case was rejected by the Employment Tribunal and I find no perversity in that rejection.
15. The remaining submission of the applicant is that he should have permission to appeal against the costs order against him. He refers to the potentially very high figure which he will have to pay if the order stands. He refers in particular to alleged inconsistencies in the statements of the Employment Tribunal, which are set out at page 25 of the bundle, and incorporated into the judgment of the Employment Appeal Tribunal.
16. The tribunal have power to order costs. It is not generally done, but I have no basis on which I can find it arguable that the Employment Tribunal have not applied the correct test or in the circumstances of this particular case should not have held that an order for costs should follow the rejection of the applicant's claim. While the two sentences set out by the Employment Appeal Tribunal when the point was made to them are not entirely clearly phrased, I agree with the conclusion of the Employment Appeal Tribunal that the two paragraphs are not inconsistent and, read as a whole, the Employment Tribunal understood what test they were to apply and understood the facts to which they had to apply it. They were entitled to reach the conclusion which they did, and it is not arguable that this Court will reverse that order for costs against the applicant.
17. The applicant clearly feels strongly about these matters but for the reasons I have given this application for permission to appeal must be refused.
(Application for permission to appeal refused)