England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Douglas Brown)

		Royal Courts of Justice Strand London WC2 Thursday, 29th November 2001

Thursday, 29th November 2001

1. LORD JUSTICE PETER GIBSON: Mr Thomas applies for permission to appeal out of time from the order made by the EAT on 30th July 2001 at a preliminary hearing of his appeal from the decision promulgated on 18th January 2001 of an Employment Tribunal sitting London Central. I will call that Tribunal "the Roose Tribunal" by reference to the name of the Tribunal Chairman Mr Roose, to distinguish it from an earlier Tribunal involved in this case and which I will call "the Lewzey Tribunal" by reference to the name of its the Chairman Mr Lewzey. The Roose Tribunal held that Mr Thomas's employer, Tiny Opus Computers Ltd ("the Employer"), did not unlawfully discriminate against Mr Thomas on racial grounds. He applied on 10th August 2001 for a review of the Roose Tribunal's decision. The EAT on 18th September 2001 refused that application on the grounds that it had no reasonable prospect of success. Mr Thomas seeks permission to appeal from that refusal as well. His Appellant's Notice filed on 2nd October 2001 was in time for an application to appeal that order, but it was out of time for an application to appeal the order of 30th July 2001. I have not been supplied with a copy of that earlier order, but I shall assume that the EAT gave Mr Thomas 14 days from the day when the judgment was sent to the parties. That was on 20th August. Therefore, he will have been out of time by a few weeks. His fiancée, Sonia Shawkat, has filled in the statement of truth in section 10 of the Appellant's Notice. I think that that is incorrect procedure. It should have been filled in by the appellant or his solicitor. But if I take account of what is said by her she claims that her mother's serious medical condition has caused Mr Thomas as well as Miss Shawkat to spend a considerable amount of time over the mother. I confess that I am somewhat dubious whether this can really excuse Mr Thomas's delay in putting in an Appellant's Notice in time. But in any event the factor to which this Court always pays most regard on these applications is whether there would be substance in the proposed appeal if it were allowed to go ahead.
2. Mr Thomas is black and of African origin. He was employed by the employer from 28th April 1997 until 17th December 1998 as a salesman at the employer's Ealing premises.
3. Between May and August 1998 two salesmen worked at Ealing: Mr Thomas and Gavin Evans, who is white. There was no permanent manager, though some locum managers from time to time managed them. When a full-time manager was appointed he was very critical of the manner in which the business had been run. He was also critical of Mr Thomas's and Mr Evans' failure to adhere to the employer's procedures. Both Mr Thomas and Mr Evans were disappointed by this response. They thought they were entitled to take credit for doing well in what were plainly difficult circumstances.
4. Between 15th September and 17th December 1998 there were serious differences between Mr Thomas and his managers. A troubleshooter, Mr Richards, was commissioned to try to rectify the situation in Ealing. On 28th September he first attended the Ealing premises. That month the employer had advertised the post of senior salesman at Ealing. Between 30th September and 12th October Mr Thomas was absent on sick leave. On 16th October Mr Richards interviewed Mr Thomas and discussed the employer's concerns over him. On 21st October Mr Richards, who had worked with Mr Evans for nearly a month, suggested to Mr Evans that he should apply for the senior salesman post, saying that he would recommend him for the post. Mr Richards, on leaving Ealing, reported favourably on Mr Thomas, but said that Mr Evans should be made senior salesman. Mr Evans thought he was being offered the job of senior salesman. The area manager, Mr Baigrie, wrongly assumed that Mr Evans was senior salesman, and Mr Evans was eventually paid a bonus to compensate him for the confusion surrounding the senior salesman position. Mr Thomas appears to have been confused too, because he assumed that Mr Evans had been given the job. The Lewzey Tribunal was to find that he had not.
5. Mr Evans resigned on 13th November. Mr Thomas resigned on 17th November, giving one month's notice. On 20th November Mr Baigrie telephoned him to ask whether he, Mr Thomas, knew that he was the top salesman, and he asked why Mr Thomas wanted to leave. Mr Thomas simply replied that he did not know that he was the top salesman. But Mr Thomas applied to a tribunal on 30th November 1998, complaining of unlawful racial discrimination and constructive dismissal. In his IT1 he said that he had found out on 1st November 1998 that Mr Evans had been offered the position of senior salesman and had accepted it. Mr Thomas believed that thereby he had been discriminated against on racial grounds. The complaint of constructive dismissal was stayed by the Tribunal pending the outcome of the Seymour-Smith case. His other complaints were heard by the Lewzey Tribunal in May 2000. Mr Thomas was then represented by counsel. The complaint of direct racial discrimination and harassment at the hands of the employer's managers from 15th September 1998 onwards was dismissed by the Lewzey Tribunal. But it held that the employer had racially discriminated against Mr Thomas in failing to offer him the opportunity to apply for the post of senior salesman and to offer him career counselling after his resignation.
6. The employer appealed against that adverse finding and the EAT (His Honour Judge Peter Clark presiding) on 15th June 2000 allowed the appeal and remitted the case to a differently constituted tribunal. I have not been supplied with Judge Peter Clark's judgment. I must, therefore, assume that the Roose Tribunal correctly stated the issues which were remitted to it. They were whether the failure to offer Mr Thomas the opportunity to apply for the post of senior salesman and the failure to offer him career counselling after his resignation amounted to unlawful direct discrimination on grounds of his race. Those, and those alone, were the issues before the Roose Tribunal, which had no jurisdiction to look at any other matters.
7. Before the Roose Tribunal Mr Thomas appeared in person. In its Extended Reasons it set out the facts which it found and said that it drew no inference that the employer unlawfully discriminated against Mr Thomas on racial grounds. It considered whether Mr Thomas was treated less favourably than the employer treated, or would treat, other persons in the same circumstances and, if so, whether that less favourable treatment was on racial grounds. Mr Evans was the white comparator named by Mr Thomas. It considered Mr Thomas's case and the employer's explanation of why Mr Thomas was not treated in the same way as Mr Evans by both Mr Richards and Mr Baigrie. The Tribunal referred to the evidence, and it said that Mr Baigrie had a higher opinion of Mr Evans' suitability than Mr Thomas and that there were objective grounds for this, which it stated. It said of Mr Richards that it formed a favourable impression of him and that there were good reasons, irrespective of race, why he should recommend Mr Evans as he did. The Tribunal found that Mr Thomas had failed to prove that he was less favourably treated by the employer on racial grounds. It said that whilst there was a difference of race between Mr Thomas and Mr Evans and a slight variance in treatment, there were good reasons for it, and it accepted the explanation given by the employer.
8. Before the EAT two points were taken by counsel appearing for Mr Thomas. One related to the exercise by the Tribunal Chairman of case management powers not to permit Mr Thomas to refer to certain evidence or to cross-examine a witness for the employer on its equal opportunities policy. The Roose Tribunal reached a finding, contrary to that reached by the Lewzey Tribunal, that the policy existed and was ready for use. But the EAT rejected those points, saying that it was not obvious that the Chairman had exercised his case management powers in an unfair way. No error of law was identified by the EAT, which dismissed the appeal.
9. Before me Mr Thomas appears in person. He has addressed me with courtesy and clarity and has made, if I might say so, an extremely favourable impression on me. But I must consider whether his grounds for appeal would have a real prospect of success. In his Appellant's Notice those grounds are said to be:

"Too much emphasis was placed upon the Respondent's hearsay, and evidence presented was not looked at in reaching the decision reached."

10. That gives no clear indication of the grounds on which Mr Thomas is appealing. He has put in a brief skeleton argument and a letter dated 2nd September 2001 in which he says that the employer lied and that its case was riddled with inconsistencies. He makes comparisons between what the Lewzey Tribunal found and what the Roose Tribunal found. He has told me that he wanted the Roose Tribunal to look at all the surrounding circumstances. He has said that there were various things going on; that there were allegations being made again him; that there was some investigation. He wanted evidence relating to that to be heard. He says that he did not do anything wrong and that he had been wrongly accused by the employer. He describes, possibly with justification, what was going on in Ealing as a shambles. He complains that his case has never been looked at in the round.
11. The difficulty with the submissions made by Mr Thomas is that the only permissible grounds of appeal are errors of law made by the Tribunal. Alleged errors of fact can only amount to errors of law if the Tribunal had no evidence on which to reach its findings of fact or if it can be said that no reasonable tribunal, properly instructed, could make the factual findings which it did. That is a very high hurdle to overcome, and it is made more difficult by the absence of any notes of evidence, which do not appear to have been sought from the Roose Tribunal. Whether or not a witness tells the truth or lies is for the Tribunal, as the sole tribunal of fact, to determine. The Tribunal is entitled to admit hearsay evidence, though, in fact, the one example of hearsay evidence which Mr Thomas drew to my attention was not in fact hearsay. If the Roose Tribunal did admit hearsay evidence, it was for the Tribunal to decide what weight it should attach to that evidence.
12. Further, Mr Thomas, I think, misunderstands the status of the Lewzey Tribunal's findings. They are of no importance so far as they relate to the remitted issues, because the employer's appeal from its decision was allowed and it was left to the Roose Tribunal to determine the facts relating to those issues on the evidence put before the Roose Tribunal. The fact that the Lewzey Tribunal formed the impression, on the evidence before it, that the employer's equal opportunities policy was merely paid lip service to and that the employer did not take the issue of equal opportunities seriously, cannot and did not mean that the Roose Tribunal was bound to form the same view on the evidence which it received and which may not have been identical to that put before the Lewzey Tribunal.
13. Further, Mr Thomas has not, I think, understood the case management role which every tribunal must perform if it is to ensure that the cases before it are dealt with expeditiously, but fairly. That role is often the more difficult when parties who are not lawyers appear in person. A litigant may genuinely believe that particular evidence, or a particular line of questioning, is relevant to his case, when to the Tribunal it is plain that it is not and that that evidence or that line of questioning must be excluded. An appellate body will rarely interfere with such case management decisions, which are best left to the judgment and good sense of the Tribunal and will very rarely be seen to be errors of law.
14. A difficulty which the Roose Tribunal experienced is explained in its decision when it said:

"The Applicant seemed unaware that his complaint, insofar as it related to his treatment at the hands of his managers between 15 September and 17 December, had been dismissed. He was still emotionally involved and in his evidence-in-chief made little or no reference to the issue which this Tribunal was asked to consider."

15. Further, Mr Roose was asked to comment on an affidavit put in by Mr Thomas on 27th March 2001 in which he accused the Roose Tribunal of prejudice and bias. Mr Roose said this:

"At the outset of this hearing I outlined the issues to the parties and indeed on several occasions thereafter. The Appellant refused to accept the reasons why the case had been remitted for a rehearing and that is why this had to be done.

I have looked at my notes and it is significant that in his final submissions the Applicant made no reference to any of the points upon which he now relies. If indeed he had highlighted points of dissatisfaction during the course of the hearing I would have made a note of them.

The only note that I can find is in relation to his cross-examination of Ms Gravenor and my note reads:

`Applicant trying to reopen issues from last Tribunal. Advised dealing with limited issues for umpteenth time.'

My memory is that this hearing was conducted in a low key manner but that the Appellant was clearly disappointed with the decision. I have no memory or note of the Applicant being otherwise deterred from cross-examining witnesses or indeed raising problems about documents."

16. I have considered the voluminous bundle of papers which has been put before me as well as what Mr Thomas has said orally in supplementing what he had put in writing. I regret that I do not see any ground on which Mr Thomas has a real prospect of persuading this court that the Tribunal erred. It was for the Tribunal to consider whether or not the surrounding circumstances about which Mr Thomas wished evidence to be given could relevantly assist in the determination of the issues which have been remitted to it. I cannot see how this Court could interfere with the decision that that evidence was too peripheral, bearing in mind the particular reasons for which the Roose Tribunal reached its conclusion that Mr Thomas had not been racially discriminated against. Those reasons related to the evidence that was given by the two key witnesses, Mr Richards and Mr Baigrie. In my judgment, therefore, on the substance of the matter, an appeal would inevitably fail.
17. Further, in relation to Mr Thomas's application for permission to appeal from the refusal of a review, he has not supplied me with the letter by which he sought such a review. But from what he has told me, it is plain that he was not bringing himself within any of the limited grounds on which, under rule 33(1) of the Employment Appeal Tribunal Rules 1993, a review is permissible. What he was really seeking to do by way of review was to appeal; and it has been repeatedly held that is not a proper function of a review. In my judgment, there is no real prospect of succeeding on an appeal from the order refusing a review.
18. No other compelling reason has been advanced for allowing the appeal to go ahead. I must therefore, I am afraid, refuse this application.
Order: Application refused.