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
(His Honour Judge McMullen QC)

		Royal Courts of Justice Strand London WC2 Friday, 5th July 2002

Friday, 5th July 2002

1. LORD JUSTICE PETER GIBSON: Abowork Ali applies for permission to appeal from the order made by the EAT on 20th March 2002 at the full hearing of Mr Ali's appeal from a decision of an Employment Tribunal sitting in London Central. By that decision at a remedies hearing the Employment Tribunal had awarded Mr Ali £3,000 compensation within section 56(1)(b) of the Race Relations Act 1976, plus interest, and £8,000 for injury to feelings, plus interest, both awards being in respect of Mr Ali's complaint of unlawful discrimination against the respondent, Glaxo Welcome Plc ("Glaxo"), on racial grounds. That complaint the Employment Tribunal at the earlier liability hearing had found to be well founded. The EAT dismissed Mr Ali's appeal and refused permission to appeal.
2. The background to this dispute is as follows. Mr Ali describes himself in his originating application as a black African. The Tribunal found him to be of Nigerian origin, but in fact he is of Ethiopian origin and has British nationality. The Tribunal's error was repeated by Mr Ali's own counsel who in paragraph 5 of his skeleton for the EAT describes Mr Ali as a black African of Nigerian origin. Unfortunately His Honour Judge McMullen QC giving the judgment of the EAT repeats the description of Mr Ali's counsel. That is an unfortunate error, but nothing turns on it.
3. Mr Ali has an MSc degree in statistics from the LSE and is a professional statistician. He had a short-term contract with Glaxo from March to November 1995. Four months later he wrote to Glaxo complaining of racial discrimination during his employment. The claim was denied by Glaxo and not pursued by Mr Ali. In June 1998 Mr Ali applied to Glaxo for a job as senior statistician, which he had seen advertised. By letter dated 8th July 1998 Mr Ali was informed that he was not among the six candidates short-listed for the post. By an originating application dated 26th September 1998 he presented an originating application to the Employment Tribunal, alleging against Glaxo direct racial discrimination and victimisation. That was denied by Glaxo.
4. Mr Ali represented himself at the Tribunal hearing which lasted no less than four days. At the outset of the hearing on 21st January 1999 one of the Tribunal lay members informed the parties that she had unsuccessfully applied for the post with Glaxo and had to have telephone contact with a Mr Smith, who might have been called by Glaxo as a witness. The Chairman of the Employment Tribunal, Professor Neal, invited the parties to indicate whether the Tribunal as then constituted should proceed with the hearing. Counsel for Glaxo indicated that Glaxo had no objection, nor initially did Mr Ali, and the hearing continued all that day. The next day, however, Mr Ali objected and asked for a differently constituted tribunal. The Chairman, not surprisingly, rejected that late application.
5. In the Extended Reasons sent to the parties on 13th April 2000 the Employment Tribunal held that Mr Ali had been discriminated against on the ground of his race, but dismissed his complaint of victimisation.
6. Mr Ali sought to appeal against the decision on victimisation on a number of grounds including bias and perversity. But on 3rd April 2000 the EAT, His Honour Judge Collins presiding, dismissed the appeal at a preliminary hearing. The EAT also dismissed Glaxo's cross-appeal that the Employment Tribunal had not adequately stated its reasons for finding racial discrimination.
7. The next event was the remedies hearing before the same Employment Tribunal. Mr Ali again represented himself. By section 56(1)(b) of the Race Relations Act 1976 the Employment Tribunal, if it considers it just and equitable, is to make an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages which he could have been awarded by a county court if the complaint had fallen to be dealt with under section 57. By section 57(4) the compensation is to include compensation for injury to feelings.
8. The Employment Tribunal in its Extended Reasons sent to the parties on 22nd November 2000 referred to a number of authorities on compensation. They included Sharifi v Strathclyde Regional Council [1992] IRLR 259.
9. The Tribunal found as a fact that Mr Ali's inability to obtain employment since 9th June 1998 when the act of discrimination was committed was something which flowed from the discrimination by Glaxo. They also found that Mr Ali had made reasonable efforts to mitigate his loss and that he had suffered injury to feelings. It decided that it would be just and equitable to make an order for compensation. It said:

"14.The Tribunal has not received sufficient evidence upon which to undertake a `percentage chance' approach to the economic consequences suffered by the Applicant on account of the act of discrimination. In particular, it has not been possible to undertake with any degree of precision an exercise of the kind put forward by the Employment Appeal Tribunal in Ministry of Defence v Cannock, [1994] IRLR 509, and as indicated by the Court of Appeal as the approach in Ministry of Defence v Wheeler, [1998] IRLR 23. Consequently, taking a `loss of opportunity' approach, the Tribunal has endeavoured, as best it can, to determine what sum of money would place the Applicant in the same position he would have been in but for the unlawful act.

14. The Tribunal has reached the conclusion that compensation in the sum of £3,000 would achieve this end."

10. It then added interest and awarded £8,000 for what it held was a case of serious injury to feelings, to which it added interest. It found no basis for awarding aggravated damages and said it had no power to award punitive damages.
11. Mr Ali appealed. For the appeal counsel appeared for him. Two grounds were put forward. One was that the Employment Tribunal had failed to state reasons and explain itself adequately over the award of £3,000. The other was that there was a conflict of interest on the part of Professor Neal which raised a real danger or possibility of bias. It is unnecessary to go into the second ground, because at the preliminary hearing of the appeal counsel informed the EAT (Mr Justice Charles presiding) that Mr Ali no longer wished to pursue that ground.
12. The EAT allowed the appeal to go to a full hearing on the first ground. The same counsel continued to appear for Mr Ali at the hearing. His Honour Judge McMullen QC giving the judgment of the EAT said that there was some force in the complaint by Mr Ali that the passage which I have cited from the Employment Tribunal's decision was not transparent. But he said that because of the inadequate evidence put before the Employment Tribunal by Mr Ali, it was difficult to see how better it could have assessed that element of damages. The EAT said that the Employment Tribunal, in the light of the authorities, was operating on the basis of what was a fair approach to the assessment of damages in a loss of opportunity case, and that the figure of £3,000 was not so surprising as to be categorised as perverse. The Employment Tribunal had inquired of Glaxo's solicitors what was the salary for the post of senior statistician for which Mr Ali had applied, and was told that the salary was about £29,000. The EAT said that the Employment Tribunal must have had that in mind in awarding £3,000. Counsel suggested that £5,000 should be awarded. The EAT rejected that.
13. Mr Ali now seeks permission to appeal on four grounds on which he has elaborated in a skeleton which he has put before me only this morning, and to which he added some oral submissions as well. He has also put in an affidavit.
14. I will go through the four grounds in turn.
15. First he says that he was "held hostage" by the EAT's late disclosure of a conflict of interest. That is a reference to the fact that at the start of the hearing in the EAT it was revealed that one of the members of the EAT worked as a human resources consultant to Glaxo. It was also disclosed that Professor Neal had lectured to a second member of the EAT. Judge McMullen had added the comment that they had all been lectured by Professor Neal. Mr Ali was given the opportunity to discuss with his counsel what had been disclosed. His counsel advised him not to object to the EAT's constitution, and Mr Ali accepted that advice. The appeal therefore proceeded. Mr Ali now says that he had either to accept "the biased tribunal" to hear the appeal or lose the legal services funding. Mr Ali says that he knew he would not be provided with further funding because the same hearing cannot be funded twice. But he provided no evidence whatsoever as to the foundation of that knowledge. I have never heard of legal services funding provided for an appeal being withdrawn because of an adjournment of the appeal hearing, and I have to say I am far from convinced that that would have been the result. In any event, as Mr Ali fully acknowledges, he accepted his counsel's advice not to object to the EAT's constitution and the appeal was heard on that basis. There can be no possibility of a successful appeal on this ground.
16. Mr Ali refers in his skeleton argument, which he has provided for me, to some human rights cases (Govell v UK and Khan v UK). It is not apparent whether both cases were decisions of the European Commission on Human Rights. But in any event they related to the Police Complaints Authority and apparently held that that body was not sufficiently independent. That does not appear to touch on the question whether a party who has the opportunity to object to the constitution of a tribunal and agrees to that tribunal hearing the case can later complain that the hearing is a violation of his rights under the European Convention on Human Rights. I cannot see how it could possibly be a contravention of any right when the party himself has expressly waived any objection. I would add that the fact that a member of a tribunal at the outset discloses something which might have given the appearance of affecting his impartiality does not mean that he will fail to carry out his quasi-judicial function properly, conscientiously and impartially, free from bias. There is no indication of bias in the decision of the EAT.
17. Second, Mr Ali says that the EAT's decision, as he puts it, contravened the compensatory element of an award for race discrimination. His complaint is that the Employment Tribunal failed to provide a reason for awarding £3,000 for what he calls a £29,000 to £35,000 post. I am not aware of any evidence to support the higher figure as being the appropriate figure for the post for which Mr Ali applied. On the contrary, as I have indicated, the Tribunal accepted evidence that the salary for the post was £29,000. In awarding £3,000 the Tribunal was making an award for the economic loss suffered by Mr Ali. It was for him to show that he did suffer such loss and to produce all the material which was needed to support his case. As the Employment Tribunal explained, Mr Ali failed to put sufficient evidence before it to enable it to adopt a precise approach such as was adopted in, for example, the Wheeler case. In the Wheeler case there was detailed evidence which enabled the court to perform the complicated assessment which was carried out. Contrast the present case, where there was no such evidence. For that reason the Tribunal, as it explained, adopted the loss of opportunity approach. Compensation on that basis is notoriously difficult to assess and that difficulty was compounded in this case through Mr Ali, who was acting on his own, not providing relevant material for the Tribunal. But, as Lord Coulsfield said in Sharifi at page 260, paragraph 7:

"In the end the matter is one for a broad and general assessment on a commonsense basis."

18. Mr Ali's own counsel is recorded by the EAT as having suggested the figure of £5,000, which is not that far from the figure of £3,000 which the Employment Tribunal awarded. Mr Ali has told me that that was not what his counsel had said. I asked him where the evidence was to show that his counsel had not made the suggestion which is recorded by the EAT. He told me that that was in his affidavit, but he was unable to point to any such evidence.
19. Mr Ali has interrupted my judgment to say that in paragraph 20 of his affidavit he deposed to the fact that counsel had said that if one divided £29,000 by six, that being the number of people short-listed, that works out at £5,000. That is not how the EAT put the matter. It is quite clear that the EAT considered that counsel had put forward £5,000 as the compensation figure. I read what it says in paragraph 15:

"We consider that the figure challenged has only today been crystallised so that it is now suggested that the figure which would have been put forward is £5,000."

20. Mr Ali's evidence does not, in my judgment, seriously affect that matter. I conclude that this court would not interfere with the assessment made by the tribunal of fact of an award of £3,000 in all the circumstances of this case.
21. Mr Ali's third ground also goes to the adequacy of the £3,000 award. He says that the Tribunal failed to put him in a position in which he would have been had it not been for the discrimination which he suffered. He points to the findings made by the Tribunal that he went significantly further than the majority of the short-listed candidates towards satisfying the criteria relating to the post. But the Employment Tribunal was well aware of its own findings at the liability hearing. It also found that the eventual appointment was made at a different level from that which had been advertised. The Tribunal must have formed an adverse view of Mr Ali's chances of obtaining that employment. I note that Mr Ali was already in his fifties when he was rejected for short-listing. Again I cannot see that this third ground shows that the award is obviously far too low.
22. Finally, Mr Ali refers to what the EAT said at the end of the judgment. It there said:

"We have pointed out that Mr Ali is a statistician and we have had difficulty, at least during some of the argument today, in distinguishing the different approaches as a matter of arithmetic, such difficulty ought not to have occurred to a person with his professional qualifications. We therefore reject the application for leave to appeal."

23. I confess that it is not entirely clear to me to what point the EAT's comment was directed. That comment was made whilst rejecting the application for permission to appeal. The EAT had dismissed the appeal two paragraphs earlier. I cannot see, therefore, that this comment is of any relevance to showing that the EAT erred in law in dismissing the appeal. As I have tried to explain to Mr Ali, this court has repeatedly said that it is more interested in the question of the correctness of the Tribunal's decision than the reasoning of the EAT.
24. I conclude that there is no real prospect of success on this appeal, nor is there any other compelling reason for letting the appeal go ahead. I say that despite the fact that Mr Ali has insisted that he has been deprived of his right to an effective remedy under Article 13 of the European Convention on Human Rights. That is a new point which was not taken below. I cannot see that his rights have been contravened in that respect. The Employment Tribunal found in his favour on liability. It made an award for economic loss, notwithstanding Mr Ali's failure to provide it with proper material. It made a generous award so far as injury to feelings is concerned. In my judgment therefore this new point does not provide a ground on which he has any prospect of success.
25. Accordingly for these reasons, I would reject this application.
Order: Application refused.