England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		The Royal Courts of Justice The Strand London WC2A Monday 5 March 2001

Monday 5 March 2001

JUDGMENT
1. LORD JUSTICE KEENE: This is an application by Mrs Adegbite for permission to appeal against a decision of the Employment Appeal Tribunal dated 14 November 2000 whereby that tribunal dismissed her appeal against a decision of an Employment Tribunal. The Employment Tribunal had dismissed her claim of race discrimination by the respondents.
2. This application for permission was made out of time but, were I to be persuaded that there was a good case on the merits, I would be prepared to extend time.
3. The right of appeal to this court from the Employment Appeal Tribunal exists only on a point of law: see section 37(1) of the Employment Tribunals Act 1996. The appellant's notice raises three grounds which, on analysis, amount to two points of substance: first, that the Employment Appeal Tribunal's decision was perverse; secondly, that she did not have a fair trial. In fact the matter can be summarised even more succinctly, because the latter of those two amounts to much the same as is being contended under the first ground. That is so because the fairness of the hearing before the Employment Tribunal was one of the matters canvassed before the Employment Appeal Tribunal, whose decision the applicant now attacks as perverse.
4. The background facts to this case are set out in some detail in the Appeal Tribunal's judgment delivered by Bell J, and I therefore give only a brief summary here. The applicant, who is black, began working for the Inland Revenue in 1987. She was employed as a Revenue Officer at the Walthamstow Collection Office. When she returned from a period of maternity leave in November 1995 she found that her line manager was Mrs Demirsoz. In January and February 1997 there were two unfavourable performance assessments of the applicant by Mrs Demirsoz. The applicant complained about this through the internal mechanisms of the Inland Revenue and in due course the Inland Revenue's Personnel Officer ruled that her poor assessments should be corrected. However, her complaint of racial discrimination was not accepted.
5. That led to the applicant bringing this complaint before the Employment Tribunal, where she alleged that her line manager's judgment of her was poor because she was black, with the result that she did not receive a pay increase and her prospects of promotion were diminished. The Employment Tribunal concluded that there had been a falling-off in the applicant's performance in the latter part of 1996 and it did not find Mrs Demirsoz's assessment surprising. It found that the applicant had not been treated less favourably than a white colleague, Mrs Dwyer, and it also concluded that in any event, if there was any difference in treatment between the applicant and Mrs Dwyer, it was not due to the applicant's colour.
6. Before the Employment Appeal Tribunal the applicant was represented by counsel. (She had not been so represented before the Employment Tribunal, and I shall return to that in a moment.) On her behalf, counsel raised a series of points before the Appeal Tribunal. The first group consisted of points dealing with the procedures at the Employment Tribunal hearing. The Appeal Tribunal went through these matters in some detail in its decision, and it rejected the arguments advanced on behalf of Mrs Adegbite.
7. The applicant has appeared in person today and has conducted her case with skill and succinctness. She has made four main points, all of which essentially relate to the alleged perversity of the Employment Appeal Tribunal's decision. She draws attention to the fact that the chairman intervened in the Employment Tribunal proceedings on a number of occasions when her representative, a trade union official, was seeking to cross-examine Mrs Demirsoz. The chairman intervened by saying "Let's move on" a number of times; in fact, I am told, seven times in all. The applicant contends that an impartial observer could detect unfairness in this, particularly when at one stage the chairman cut the time short for cross-examination of this witness and allowed the official only a final 30 minutes to cross-examine.
8. On this point I bear in mind, as did the Employment Appeal Tribunal, that the interventions referred to were made on the penultimate day of a hearing which had by then already lasted four days. It lasted, in fact, in all some five days. A tribunal chairman has to exercise control over the length of time taken by proceedings, including that taken in cross-examination, and no automatic unfairness results from such interventions. The Appeal Tribunal, in dealing with this, said as follows:

"There comes a time when cross-examination about background matters is no longer productive, and an advocate must be directed by the relevant tribunal to concentrate on what really matters. We do not see anything untoward in the interruptions which the Chairman is alleged have made in this case."

9. That seems to me a perfectly reasonable conclusion for the Employment Appeal Tribunal to have come to, given the time which this particular application had taken before the Employment Tribunal.
10. The complaint about the chairman of the Tribunal allowing the applicant's representative only a final 30 minutes has to be seen in the context of a cross-examination of the line manager which lasted in all some six hours. It had lasted, according to the Employment Appeal Tribunal, over five hours when that time constraint was imposed. Moreover, as the Employment Appeal Tribunal pointed out, although the chairman did say that he was allowing the applicant's representative (a Mr Bassett) a final 30 minutes, after Mr Bassett had indicated that he required not just half an hour but an extra quarter of an hour if need be, he did in fact get the additional quarter of an hour, the chairman allowing him three quarters of an hour in all. I cannot myself see that the Employment Appeal Tribunal's conclusions on this aspect of the case can be faulted.
11. Next the applicant deals with the late production by the respondents of their documents (only a few days before the hearing) and a late exchange of witness statements which, she contends, was unfair. She also refers to the late introduction of documents by the respondents. This, of course, was a matter which was canvassed before the Employment Appeal Tribunal. It is right to say that it was critical of the behaviour of the respondents in these respects. However, it focused - in my judgment rightly - on whether or not any prejudice was caused to the applicant by the late production of these documents. The Appeal Tribunal noted that cross-examination of Mrs Demirsoz had started at 1.50 pm on 18 November and was then resumed on the following morning at ten o'clock. The Tribunal said:

"From that chronology it is clear that he must have had time to read the documents and take the appellant's instructions on them well before he completed his cross-examination of Mrs Demirsoz."

12. Moreover, the Appeal Tribunal, in considering prejudice, noted that there was no application by Mr Bassett for more time in respect of the late disclosure of documents and witness statements. It concluded that it could see no prejudice which had occurred as a result of the lateness on the part of the respondents.
13. That seems to me to be a conclusion which was open to the Appeal Tribunal on the evidence and not one which can be categorised as perverse. It must be borne in mind that for a decision to be perverse it has to be one not merely at which this court would not have arrived, but one at which no reasonable Appeal Tribunal could have arrived; and I cannot see any possible basis for appealing on that ground.
14. Thirdly, attention is drawn by the applicant to the imbalance between the representation before the Employment Tribunal. That point is made because the applicant was represented by Mr Bassett, a full-time official of her trade union, whereas the respondents were represented by counsel. This again was a matter which the Employment Appeal Tribunal dealt with. It noted that:

"The Chairman has written that many trade union representatives are conversant with relevant law and procedure. He formed the opinion that Mr Bassett 'knew the ropes'."

15. The Employment Appeal Tribunal noted that procedures before employment tribunals are deliberately intended to enable applications to be dealt with in a practical and straightforward manner without too many legal constraints, and to be understood by those who are not legally qualified. The Employment Appeal Tribunal concluded that:

". . . there is no evidence that Mr Bassett did not present the appellant's case adequately to the Employment Tribunal."

16. That seems to me to be a conclusion which was open to the Employment Appeal Tribunal on the evidence, and I see no prospect of the Court of Appeal interfering with that conclusion.
17. Finally, Mrs Adegbite refers to the substance of her complaint, that her different treatment was for racial reasons. She contends that any fair tribunal would have concluded that the different treatment which she received was something which occurred because of race.
18. This is something which is essentially a question of fact, unless, of course, the Employment Tribunal's decision was one which no reasonable tribunal could have arrived at. That was examined by the Employment Appeal Tribunal, which concluded that the Employment Tribunal's decision was not perverse. I can see no basis on which it could be said that the Appeal Tribunal was required to regard the Employment Tribunal's decision as perverse. Having read the papers with some care, it seems to me that the Employment Appeal Tribunal was fully entitled to come to the conclusions which it reached. There is no prospect of establishing that its decision was perverse - that to say, one to which no reasonable appeal tribunal could come.
19. As for whether the applicant received a fair trial before the Employment Tribunal, the Appeal Tribunal concluded in effect that she did. I can see no footing upon which it can be contended that that was wrong. The representative of the applicant was allowed to cross-examine Mrs Demirsoz at length. The applicant was represented by a full-time trade union official, as are many applicants at employment tribunals.
20. There is no real prospect of success on appeal in this case, and it follows that on its merits this application must be dismissed.
ORDER: Applications refused (Order does not form part of approved Judgment)