England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London WC2 Wednesday, 10th April 2002

1. LORD JUSTICE SEDLEY:Ms Smita Patel has appeared before me this morning to present her own application for permission to appeal. She has done it, if I may say so, with moderation and with a confidence of presentation which do her nothing but credit. I say that for a reason. The reason is that at the heart of the appeal she wants to bring is her sense that she was gravely disadvantaged in the Employment Tribunal, against whose decision, in effect, the intended appeal is directed. The Employment Tribunal, chaired by Ms Gay, sat for 13 days in the final two months of 2000 in order to adjudicate on a series of claims brought by Ms Patel. She had initiated the proceedings represented by experienced solicitors, but by the time of the full tribunal hearing, for reasons which were not of her making, Ms Patel was representing herself. The respondent, Texaco Limited, was a company which had employed her since 1990, although not in the post for which she had initially applied.
2. The tribunal, in a very full and well reasoned decision, tabulated her claims under the following heads:

(a) Unfair dismissal

This issue turned upon whether her final parting from Texaco had simply amounted to resignation or whether she had been driven out in circumstances amounting to constructive dismissal. If it were the latter, Texaco did not claim justification.

(b) Race/sex discrimination and victimisation

Ms Patel contended that she had been less favourably treated than comparable employees in circumstances such as to justify the inference that it was because of her race, her sex or both that it had happened. She contended further that she had been victimised for protesting about it.

(c) Equal pay

Ms Patel also contended that she was being underpaid by comparison with legitimate comparators whom she advanced.

3. As I have said, the Employment Tribunal's decision was a full one. Indeed, I think it is fair to say that, in this extremely difficult area of law and practice, it is a model of its kind. I can say that without offending Ms Patel because she has not contended, either before the Employment Appeal Tribunal or before this court, that there is intrinsically any error of law in the Employment Tribunal's decision. What she complained of to the Employment Appeal Tribunal was that, in spite of this, she had not had a fair hearing before the Employment Tribunal.
4. I will not go through the detail of the assertions that she made because they can be found spelt out one by one (I think they amount to seven in all) in the carefully reasoned judgment of Mr Recorder Langstaff QC, given at the Employment Appeal Tribunal on 18th January 2002. The decision was given at a "without notice" hearing pursuant to the preliminary consideration procedure of the Employment Appeal Tribunal. In other words, the case had been listed for consideration as to whether the appeal could stand up, and the Employment Appeal Tribunal concluded that it could not.
5. Before me Ms Patel contends that the Employment Appeal Tribunal was wrong in its answers to her complaints and that, properly viewed, she was indeed denied a fair hearing. She specifies in particular today her complaint that, having been presented with a considerable weight of witness statements by Texaco one clear working day before the hearing started, she was then at the hearing steered off the issues that she wanted to pursue in cross-examination by the chair of the Employment Tribunal, with the result that her case never got off the ground or, if it did, was not given the same fair opportunity as the respondent's case. The respondent was represented by leading counsel as well as by solicitors.
6. I can entirely understand the sense that Ms Patel will have had of being, potentially at least, out-manoeuvred and out-gunned by an opponent with infinitely more resources than she had. It is of course absolutely right that, never mind the European Convention on Human Rights, the English common law has always set its face against tolerating any inequality of treatment before courts and tribunals. But equality of treatment is not the same thing as equality of arms. There are many cases in which David fells Goliath in our courts and tribunals. Where that happens, it is apparent that being the weaker in terms of arms in no way means that one is disadvantaged in terms of having the ear of the tribunal and being able to strike a potentially deadly blow.
7. What a tribunal does have to do, however, is to keep the ambit of evidence within the bounds dictated by the strict legal issues and to ensure that both parties direct their evidence, their cross-examination and their argument to those issues and do not stray. That is just as true of a party who is legally represented as of a party who is not. Ms Patel may not find it easy to believe, but many is the time that lawyers get a very heavy dressing down from the court for departing from the point and for wasting the court's time. Litigants in person, with far more excuse, can also stray from the point and need commonly to be brought back to it. If they win, they will have no complaint; they will appreciate that it was all for the good. If they lose, they are almost bound to feel that they have not had a fair crack of the whip.
8. In order for such arguments to stand up on appeal, however, there has got to be hard evidence of something done procedurally which ought not to have been done and which had a clearly adverse impact on the conduct of the case, or of something not done which, had it been done, would in all probability have led to a different outcome. Without going through them, because it would take an inordinate amount of time and because they are already very clearly spelt out in the judgment, none of the matters advanced to the Employment Appeal Tribunal reached that level. To say that is not for a moment to undervalue the sense of injustice that Ms Patel may well have. But it is one thing to feel that one has lost when one should have won; it is another thing to be able to persuade an appellate court that there has been an error of procedure amounting to a fundamental denial of justice, such as Ms Patel must show if she is to succeed in the present case.
9. Two particulars points, however, do require my attention now. First, Ms Patel submits that in the Employment Appeal Tribunal she was allocated only an hour and, while she stayed within that hour, it was not nearly enough for her to do what she wanted to do, which was to go through the evidence that had been before the Employment Tribunal in order to demonstrate the errors that had occurred. This too, I think, demonstrates a misunderstanding - a perfectly understandable one - of what the Employment Appeal Tribunal's function is. It has jurisdiction, just like this court, only on a question of law. It is therefore off-limits to seek to persuade it that, if it had been sitting as the Employment Tribunal, it might well have come to a different evaluation of the evidence and a different conclusion on the facts. That is not the appellate function. The Employment Tribunal is the sole finder of facts.
10. Secondly, Ms Patel mentions to this court something which she could have complained of to the Employment Appeal Tribunal but which she did not: namely, a remark that she says was made by the chair of the Employment Tribunal to the effect that there was an Asian community in Brick Lane. So far as I can understand it, the remark was made in connection with testimony concerning an inappropriate sexual advance which Ms Patel said had been made to her by a fellow employee at an event run by the respondent. Ms Patel has explained to me, as she sought also to explain to the tribunal, that this was something about which, culturally, she was extremely reticent because it was not the sort of thing which one would readily speak about. So far as I can understand the situation and the context in which the remark was made, it was precisely in order to demonstrate the Employment Tribunal's understanding of the fact that within our multi-cultural society there are cultural communities (of which the Asian community in Brick Lane, albeit a Bangladeshi community, would be an example) in which personal standards might very well not chime with those of the wider community, particularly where matters of sexual conduct were concerned. I may have misunderstood, and indeed Ms Patel may well have misunderstood what was going on, but at the highest it seems to me that the remark was innocuous. Much more probably, it appears to me to have been a remark which, if made, was made in order to demonstrate understanding of what it was Ms Patel was saying to the tribunal. On no view was it demonstrative of bias against Ms Patel.
11. Ms Patel has made some further points to this court which she did not make to the Employment Appeal Tribunal. I will not go through them because they again concern the evaluation of evidence. They are open not only to the objection which I have already described (namely, that it is not for the appellate court to re-evaluate evidence), but to the further objection that they were not taken before the Employment Appeal Tribunal and that it is therefore, generally speaking, too late to take them now. None of them are points of law.
12. The upshot is that, against a decision which is intrinsically legally sound, Ms Patel seeks to say that it was arrived at by a process that was weighted, and weighted significantly, against her. For reasons which the Employment Appeal Tribunal has given in careful detail, those assertions are not made out in point of substance; and, for reasons which I have attempted to give in addition, I hope Ms Patel will understand that the sense of unfairness that she has, having lost against a better armed and better equipped opponent, does not necessarily reflect any failure in the Employment Tribunal to give an equal ear to both sides and to keep both sides equally to the point. I cannot, any more than the Employment Appeal Tribunal could, find any evidence that the Employment Tribunal failed in that fundamental task. While, therefore, I understand Ms Patel's sense of grievance at having lost, I do not think there is any reasonable prospect that this court would find that it was because the Employment Tribunal behaved unfairly as between the parties. For those reasons I am afraid it is not an appropriate case for granting permission to appeal.
13. It may be some consolation to Ms Patel to reflect upon this. If I were to give permission to appeal, Texaco would again appear armed with extremely expensive lawyers. If (as, in my judgment, is inevitable) the appeal were lost, Ms Patel would be faced with a bill of costs, because in this jurisdiction costs are paid by the losing party, unlike in the jurisdictions below - a bill of costs which I am afraid would dwarf almost anything she has so far encountered. I hope she will appreciate therefore that she may have been spared a worse fate by my decision.
Order: application for permission to appeal dismissed.