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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Yeboah v Crofton [2002] EWCA Civ 794 (31 May 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/794.html
Cite as: [2005] ICR 1664, [2004] ICR 257, [2002] IRLR 635, [2002] EWCA Civ 794, [2002] IRLR 634
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
APPEAL TRIBUNAL
Strand, London, WC2A 2LL Friday 31st May 2002 |
||
B e f o r e :
LORD JUSTICE MUMMERY
and
SIR CHRISTOPHER SLADE
____________________
| SAMUEL KENNEDY YEBOAH |
Appellant |
|
- and - |
||
BERNARD CROFTON |
Respondent |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bernard Crofton in person
____________________
Crown Copyright ©
- This is an appeal by Mr Samuel Yeboah against the decision of the Employment Appeal Tribunal dated 16 May 2001. It allowed appeals by Mr Bernard Crofton against three related decisions of the Employment Tribunal (at that time still called an Industrial Tribunal) sitting at Stratford that he had committed acts of direct race discrimination against Mr Yeboah contrary to the Race Relations Act 1976 (the 1976 Act). It held that the decisions of the Employment Tribunal were perverse and directed that the applications should be remitted for re-hearing by a differently constituted Employment Tribunal. (This court is not concerned with Mr Crofton's successful appeal from the decision on a fourth application concerning a story published in "Private Eye").
- Mr Yeboah's applications for permission to appeal were the subject of an inter partes oral hearing for directions by the Court of Appeal on 31st July 2001. The court explored the possibility of limiting the scope of the appeal. It decided that this was not possible, as all the appeals raise overlapping points of a substantive and a procedural nature. Permission to appeal generally was granted.
- This unfortunate case is fortunately not typical. The stresses on the lives of both parties over the last five years must have been severe. The burden on the overstretched tribunal system is without precedent. The hearing of seven applications before the Employment Tribunal sitting at London North between 7 April 1997 and 17 March 1998 was the longest ever held: all the applications were heard together lasting a total of 104 days, a record which I truly hope will never be broken. They included six applications by Mr Yeboah (represented by Ms Karon Monaghan and supported by the Commission for Racial Equality) against Mr Crofton (appearing in person) and the London Borough of Hackney (the Council) (represented by Mr Thomas Kibling) and an application by Mr Crofton alleging direct race discrimination against him by the Council, knowingly aided by Mr Yeboah. There was "evidence of complex and contested matters covering a period from mid-1990 to early 1996." Mr Yeboah gave evidence for 25 days, Mr Crofton for 20 days. 14 other witnesses gave evidence.
- On the hearing of the substantive appeals to the Employment Appeal Tribunal neither Mr Yeboah nor Mr Crofton were represented. The Council, which was the former employer of both Mr Yeboah and Mr Crofton as senior Heads of Department, was a respondent to some of the applications in the Employment Tribunal, but it took no part in the appeals to the Employment Appeal Tribunal or to this court, having reached a full and final settlement with Mr Yeboah on 12 October 1998 for the payment to him of £380,000 compensation, mainly for loss of earnings, and also £40,000 general damages, including injury to feelings, in respect of the findings of racial discrimination against it.
- The substantive hearing in the Employment Appeal Tribunal was preceded by numerous directions hearings, which took place both before and after a Preliminary Hearing on 6 March 2000, at which the matters were ordered to proceed to a full hearing. Orders were made granting leave to adduce fresh evidence and for the production of parts of the chairman's notes of evidence.
- The full hearing in the Employment Appeal Tribunal lasted for 12 days between 23 March and 10 April 2001 (excluding days set aside for pre-reading). Hearings of this magnitude are very unusual, given that the right of appeal from the Employment Tribunal is confined to questions of law.
- It also has to be said that the outcome of the appeals was unusual, in that (a) there was a finding that three decisions of the Employment Tribunal were perverse, in the sense that no reasonable tribunal, properly directing itself on the law and on the evidence before it, could have reached the conclusion that Mr Crofton had racially discriminated against Mr Yeboah; and (b) it was ordered that all three applications should be remitted for re-hearing by a fresh tribunal.
- The appeals to this court lasted for four days, during which the court received valuable assistance from Ms Monaghan, appearing for Mr Yeboah. Mr Crofton, who appeared in person, submitted very long skeleton arguments and made detailed oral submissions. The court fully appreciated the special difficulties pointed out by Mr Crofton, as an unrepresented litigant, in having to argue points of law in an unusually heavy case. It attempted to give him every opportunity that could fairly be allowed to develop his points and to respond to Ms Monaghan's submissions.
- It is crucial that the court and the parties should at all times appreciate the proper approach of this court to a decision challenged on a second appeal. Mr Crofton submitted more than once that the role of the Court of Appeal is not to consider the correctness of the decision of the Employment Tribunal, but to consider whether there was an error of law in the decision of the Employment Appeal Tribunal.
- I can well understand why Mr Crofton is of this view: this is an appeal from the Employment Appeal Tribunal and it is, of course, necessary to consider whether it was legally entitled to set aside the order of the Employment Tribunal and to remit the cases for rehearing.
- Mr Crofton's suggested approach is, however, wrong. The function of the Court of Appeal is to review the proceedings in, and the decision of, the Employment Tribunal in order to determine whether a question of law arises from them. If the Employment Tribunal conducted the proceedings and delivered decisions in accordance with the law, no questions of law would arise for correction by this court: neither the Employment Appeal Tribunal nor this court would be entitled to interfere with the original decisions, even if they concluded that they might have conducted and decided the cases differently.
- When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the Employment Tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the Employment Tribunal. Only the Employment Tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an Employment Tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the Employment Tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the Employment Tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the Employment Tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal.
- The Employment Appeal Tribunal correctly reminded itself of its limitations in its judgment (paragraph 7). This was prudent, as the arguments on both sides require detailed references to be made to the evidence. On these appeals the Employment Appeal Tribunal appeared to be in a better position than is usually the case to investigate the evidential basis for the findings of fact, as (a) it was supplied with lengthy transcripts of evidence made by the Council's solicitors; (b) it had extracts from the Chairman's notes relating to grounds of appeal concerning the exclusion of evidence and the order of witnesses; and (c) it allowed in fresh evidence, which was not put before the Employment Tribunal or had been excluded by it, in the form of contemporaneous notes, witness statements and other documents, the relevance and probative value of which have been challenged on this appeal.
- The circumstances giving rise to this dispute date back a decade. They are out of the ordinary. The parties have never been in an actual or prospective employment relationship with one another: they were both senior officials holding positions of considerable public responsibility in the employment of the Council. Each party had a very demanding job, without the added aggravation of stressful internal disputes and strongly contested tribunal proceedings between themselves, as well as with the Council.
- The essence of Mr Yeboah's complaint is that Mr Crofton has repeatedly made demonstrably untrue accusations against him on no basis other than that his ethnic origins are West African. The claim for race discrimination is in the unusual context of serial slanders and libels alleged to have been made by Mr Crofton about Mr Yeboah over a long period.
- Mr Yeboah was employed by the Council from 4 June 1984 until his employment ended on 31 January 1996 in circumstances on which he based a successful claim against the Council for constructive dismissal. On 25 October 1989 he became the acting Head of Personnel Services in Hackney. On 9 November 1993 he was appointed to the new post of Assistant Chief Executive (Human Resources), the most senior personnel post in the Council. He introduced many reforms and improvements in the Council in the human relations field in the course of his career.
- He is of West African origin. He was born in Ghana in 1946 and grew up there. He has lived and worked in the United Kingdom since the late 1970's. He was the Council's highest-ranking African officer. He is a Justice of the Peace.
- Mr Crofton, who was born in the United Kingdom in 1945 and is white, was employed by the Council as Director of Housing, from 9 July 1990 (taking over at a time when the Housing Department had serious management and organisational problems and was in a "sorry state") until he was dismissed by the Council following his suspension in October 1994 and a disciplinary enquiry lasting from 16 December 1994 to 27 February 1995. He was found guilty of gross misconduct. He was, however, reinstated following a successful internal appeal against the dismissal held between August and October 1995.
- Mr Crofton had wide experience of problems of local authority housing in the London Boroughs, having previously been Director of Housing in the Borough of Ealing and having been employed before that by the councils in Lambeth and Camden and by the Greater London Council. He also had experience of dealing with race relations in London Boroughs. The tribunal referred to his "background of anti-discrimination activities."
- There were three relevant applications by Mr Yeboah alleging race discrimination by Mr Crofton and by the Council. There were also claims of victimisation, but they were later dropped.
- Although preceded by earlier incidents, which are described in detail in the decision of the Employment Tribunal, the immediate cause of Mr Yeboah's complaint of direct race discrimination against Mr Crofton and the Council is based on incidents which occurred in the summer of 1992. On 9 June 1992 Mr Crofton wrote a memorandum to the Chief Executive, Mr Jerry White, accusing Mr Yeboah of "covering up fraud" allegedly committed by a black African re-deployee of the Council (Mr Uwa Onuoha). Mr Onuoha worked for the Council in the Chief Executive's Department. He became redundant and was considered for re-deployment in the Housing Department. Mr Crofton asked Mr White to investigate the inaction of Mr Yeboah in the face of the prima facie fraud in recruitment, which had been drawn to his attention. Mr Crofton believed that Mr Onuoha's re-deployment job application was untruthful in respect of his past experience and overstated his qualifications.
- Mr Yeboah's reaction was that he was outraged by an unjustified accusation, which would undermine the Council's trust and confidence in his integrity. In a letter of 12 June 1992 he demanded that Mr Crofton be compelled to provide evidence for disciplinary action against him, and that, if no evidence was provided, Mr Crofton should withdraw the allegation and apologise unconditionally. He asked that disciplinary action should be taken against Mr Crofton for making malicious and slanderous allegations.
- Mr Crofton did not respond to the request of the Chief Executive for evidence in a letter of 30 June 1992 nor did he withdraw his allegations. On 22 July 1992 Mr Yeboah lodged a formal grievance against Mr Crofton, who proceeded in a memorandum of 18 August 1992 to Mr White to make further allegations against Mr Yeboah regarding his inaction about fraudulent job applications involving the provision of false references and the coaching of applicants for jobs with the Council.
- The Director of Finance, Mr Mike Craig, who was also Deputy Chief Executive, was nominated as the Hearing Officer. Terms of Reference were drawn up for an enquiry into the circumstances surrounding Mr Onuoha and his re-deployment. Mr Crofton then withdrew his allegations. Mr Yeboah withdrew his grievance. These steps were taken in order to allow Mr Craig's enquiry to proceed. It took place between October 1992 and August 1994.
- Mr Crofton made further allegations of the inactivity of Mr Yeboah over recruitment fraud to Mr Craig on 26 March 1993, on 1 June 1993 and on 20 July 1993. He alleged, for example, that Mr Yeboah was a close personal friend of the wife of Mr Onuoha, who Mr Crofton believed to be guilty of fraudulently completing his re-deployment form; that he had intervened to support Mr Onuoha's re-deployment in the Housing Department; that he was part of a cover up of fraudulent job applications and references submitted to the Council, as in the case of a fraudulent reference submitted by Dr Onubogu for a Rent Recovery Officer applicant; and that he had falsely written to Mr Onuoha stating that the post, for which he had been considered, had been filled by Mr Crofton with a white woman.
- Mr Yeboah's complaint was that Mr Crofton had subjected him to a persistent campaign of malicious and slanderous vilification, to which he would not have subjected a white Chief Officer, and that he had treated him less favourably on racial grounds and with the object of undermining the Council's confidence in him and securing his dismissal.
- Mr Craig reported on 19 August 1994, finding that the allegations made by Mr Crofton against Mr Yeboah relating to recruitment fraud were unsubstantiated.
- In his Notice of Appearance Mr Crofton stated that he was not Mr Yeboah's employer and could not therefore be liable for discrimination. He denied that Mr Yeboah had suffered any detriment. Mr Crofton denied that he had any discriminatory motive in suggesting that certain allegations against Mr Yeboah be investigated. He invoked the doctrine of qualified privilege in respect of what he had alleged. He disputed the truth of the allegations made by Mr Yeboah against him; he denied that there had been any discrimination or victimisation; and he asserted that Mr Craig's report could not be relied on for want of impartiality and for inadequate investigation of the facts. In particular, he stated that he had good and proper grounds for believing that the allegations which he passed on to Mr Craig were true, the grounds being confirmed by his report. He added that the allegations passed by him to Mr Craig were inaccurately described in the IT1 and stated:
- The Employment Tribunal found as a fact that Mr Crofton had made various accusations to Mr Jerry White and to Mr Craig, including allegations that Mr Yeboah was covering up fraud committed by Mr Onuoha and that he was part of a cover up over fraudulent applications and references submitted to the Council, such as clearing a fraudulent reference submitted by Dr Onubogu for a Rent Recovery Officer applicant.
- The Employment Tribunal then considered Mr Crofton's explanation for making the allegations, namely that they were capable of being substantiated, that they were true and that he believed them to be true on reasonable grounds. The tribunal prefaced its detailed findings with the general finding that Mr Crofton had made many false allegations against Mr Yeboah, which were demonstrably without foundation. It then set out in detail its reasons for reaching the conclusion that the specific allegations made by Mr Crofton and complained of by Mr Yeboah in his Originating Application were not true and that he did not have reasonable grounds to believe in their truth at the time he made them.
- In deciding whether the allegations complained of were made on racial grounds, the Employment Tribunal also considered, as relevant material from which an inference of racial grounds might be drawn, (a) specific background facts; (b) allegations, which were not the subject of the applications, but had been made by Mr Crofton against Mr Yeboah during Mr Crofton's disciplinary hearing, during his internal appeal and during the tribunal hearing itself; and (c) character evidence.
- Among the many background matters, which, contrary to Mr Crofton's submissions, an Employment Tribunal is entitled to consider as evidence relevant to the proof of the allegations of racial discrimination, was the finding of the tribunal that Mr Crofton's perception was that Africans, particularly West Africans, were fraudulent and corrupt. (See paragraphs 53 and 60 of this judgment). Although there was evidence that fraud was committed by all races, Mr Crofton had not identified any non-African staff engaged in fraud.
- As for allegations made by Mr Crofton during the various hearings of internal and tribunal proceedings, which the Employment Tribunal was entitled to consider as evidence relevant to proof of the allegations of racial discrimination, the tribunal concluded that they were untrue and that they were either known by him to be untrue or he had no reasonable ground for making them.
- One allegation, which assumed the greatest significance in the decision of the Employment Appeal Tribunal and in the argument on the appeal to this court, was that Councillor Linda Hibberd, the Chair of Housing, and Mr Crofton had raised concerns with Mr Yeboah at a meeting on 22 October 1990 (which was preceded by the first and only one to one meeting that ever took place between Mr Yeboah and Mr Crofton) about rigged interviews (coaching and provision of references) involving Mr Peter Amadi, a Council employee, and his Housing Association, Petadist, and that, despite assurances by Mr Yeboah that he would look into these matters, he never undertook any investigation, and subsequently denied to Councillor Hibberd that he had said he would respond to her concerns.
- Mr Crofton asserted that this matter was raised at the meeting on 22 October 1990. Mr Yeboah denied that it was raised. Each produced a note of that meeting. Mr Yeboah's was in a bound volume and contained no reference to Peter Amadi. Mr Crofton's undated note was a single loose sheet of paper produced for the first time at the first morning of the tribunal hearing and included references to Peter Amadi and Petadist. It had not been produced at the earlier internal hearings. The tribunal accepted Mr Yeboah's note as a contemporaneous note, but was not satisfied that Mr Crofton's note was a contemporaneous note of what he alleged was said and concluded that it was "a recent fabrication."
- That was, of course, a very serious finding against Mr Crofton. He argues that it was reached in the absence of important oral evidence from Councillor Hibberd, whom he had been prevented from calling as a witness. He described her as his "primary witness on that and her evidence should have been heard." The tribunal held that Mr Crofton's allegation was untrue and that he had no reasonable ground for making it. Mr Crofton submits that he had very good grounds for believing that Mr Yeboah was corrupt, in that his job required him to take action to protect the Council and he refused or failed to do so on no good grounds. Mr Crofton says that he had raised the question of recruitment fraud with Mr Yeboah, but the tribunal had decided at the outset of its conclusions that he (Mr Crofton) was a liar and a falsifier of documents. That conclusion, he says, was against the weight of the evidence and was reached by excluding or ignoring evidence which corroborated his account rather than Mr Yeboah's. It was fundamental to the set of decisions and infected the approach of the tribunal to all of them. Mr Crofton described it in his submissions as "absolutely central to the case as to whether [he] had good reasons (non-racial ones) for making the statements he did."
- As for character evidence, the tribunal made a finding which also figured prominently in the decision of the Employment Appeal Tribunal and in argument, particularly in connection with the findings of the Employment Tribunal about the meeting of 22 October 1990, which Mr Crofton asserts are of crucial importance to the decision of the tribunal, and a meeting a week later on 29 October 1990, referred to in notes made by both Mr Yeboah and Mr White. Mr Crofton complains that not all of Mr White's notes were disclosed prior to the tribunal hearing or admitted in evidence when he applied for them during the hearing. The importance of Mr White's notes about the meeting of 29 October 1990 (as well as of other meetings), taken with the oral evidence which would have been given by Councillor Hibberd about the meeting of 22 October 1990, was to show that organised fraud was, to Mr Crofton's knowledge, drawn to Mr Yeboah's attention in 1990 and that he did nothing about it.
- Mr Crofton also complains that, as a result of the tribunal's decisions about the order for the calling of witnesses, it did not admit evidence from another witness whom he wished to call, Miss Linda Bellos. She would have given evidence about Mr Yeboah's knowledge of recruitment fraud prior to 1995, certainly by February 1992. She was available during the summer months of the tribunal hearing, but he was unable to make contact with her during the autumn.
- In the absence of significant evidence the Employment Tribunal concluded that it was impressed by the evidence of those who knew Mr Yeboah and spoke highly of him and his attitude to tackling fraud, contrasted with Mr Crofton's persistence in allegations that Mr Yeboah did little or nothing to combat recruitment fraud in particular. The tribunal rejected Mr Crofton's allegation and acquitted Mr Yeboah of this charge. It made the following finding, described by Mr Crofton as "an extraordinary conclusion", which was against the weight of the evidence and was fundamental to its "utterly wrong" view of the evidence given by the witnesses-
- The Employment Tribunal concluded that it was entitled to draw the inference from all the facts found by it that Mr Crofton made the allegations complained of on racial grounds. But for Mr Yeboah's race he would never have been subjected by Mr Crofton to such treatment. By making the allegations of corruption, of covering up fraud and of improper conduct, he treated Mr Yeboah less favourably than he treated, or would treat, other persons. He did not subject non-African staff to similar treatment. The making of the allegations was a detriment to Mr Yeboah.
- The Employment Tribunal concluded that, on the balance of probabilities, Mr Crofton had racially discriminated against Mr Yeboah, but that the Council was not vicariously liable for his acts. Mr Crofton's non-statutory pleas of privilege, public interest and public policy were held to be unavailable to the claim of direct race discrimination contrary to the 1976 Act and in any event inapplicable in the light of the facts found by the tribunal as to the falsity of the allegations made by Mr Crofton and the racial grounds on which they were made.
- Mr Yeboah's allegations of race discrimination in this application arose out of a further claim alleged to have been made by Mr Crofton to Mr Jerry White during an interview on 10 October 1994: that Mr Yeboah had, as a reward, arranged sabbatical leave for an employee of the Council, Ms Cathy Warnock, who had signed his naturalisation papers in 1985.
- The conclusion of a formal disciplinary interview of Mr Yeboah held on 12 October 1994 by Mr Jerry White and Ms Angela O'Connor, the Directorate Personnel Officer, was that there was no evidence of impropriety. Mr Yeboah claimed that the allegation against him by Mr Crofton was made without a shred of evidence in an attempt to secure his dismissal. It was directed against him on racial grounds and purely because of his ethnic origin.
- As in his response to the first application, Mr Crofton asserted in his Notice of Appearance that the allegations reported by him for investigation to the Chief Executive of the Council about Mr Yeboah and Ms Warnock were capable of substantiation and he was under a duty to report them. He repeated the allegations that Mr Yeboah was involved in approving sabbatical leave of one year for Ms Cathy Warnock; that in 1985 she had acted as a referee in his naturalisation application; that she was the domestic partner of Mr Craig; and that the relevant matters should have been declared by Mr Yeboah, and also by Mr Craig when he was appointed to arbitrate in the dispute between Mr Yeboah and himself. Mr Crofton repeated his point that he was incapable of discrimination because he was not Mr Yeboah's employer.
- In his evidence to the tribunal Mr Crofton denied saying that the sabbatical had been given to Ms Warnock as a reward for signing Mr Yeboah's naturalisation form. The Employment Tribunal found, however, that on 10 October 1994 Mr Crofton made the allegation that Ms Warnock had signed Mr Yeboah's naturalisation papers for him in 1985, and, as a reward, he had awarded her a sabbatical. It concluded that that was an allegation of corruption. It found as a fact that Mr Yeboah had not granted the sabbatical. The allegation was accordingly untrue. The tribunal found that Mr Crofton did not have reasonable grounds to believe it to be true; that, but for Mr Yeboah's race, Mr Crofton would not have made the allegation, being one that could only have been made against a person of non-British ethnic origins; that the allegation was made on racial grounds; that the making of the allegation amounted to less favourable treatment of Mr Yeboah than he treated, or would treat, other persons and was part of his campaign to undermine belief in Mr Yeboah's integrity; that the making of the allegation caused a detriment to Mr Yeboah; and that there was race discrimination by Mr Crofton, but that the Council was not vicariously liable. Mr Crofton's pleas of privilege, public interest and public policy were rejected.
- Mr Crofton contended that his information that Mr Yeboah and Ms Warnock had engaged together in "something dubious" was not disproved by Mr Yeboah. It was for him to prove that Mr Crofton's allegation was untrue. Mr Yeboah had refused to produce his naturalisation papers "fraudulently validated" by Ms Warnock as referee. In addition there was nothing racial in his statements about Mr Yeboah, as he had also made statements about Mr Craig and Ms Warnock, who were both white.
- In this application Mr Yeboah complained of continuing race discrimination and harassment by Mr Crofton and the Council by subjecting him to unwarranted investigation into his "immigration status" and into his " criminal background."
- He alleged that the Council's Tenancy Audit Team, which had been established to audit the occupancy of the Council's housing stock, sought confirmation of his immigration status, that Mr Crofton was responsible for this and that this was part of Mr Crofton's continuing campaign against him.
- In January 1995 during the course of his disciplinary proceedings, in which Mr Crofton made further allegations against Mr Yeboah, Mr Yeboah discovered that his name was on a list held by the police of persons suspected of criminal offences. (It should be explained that Mr Crofton continued to add to allegations of corruption and of incompetence against Mr Yeboah and referred to "absurd complaints of race discrimination" by Mr Yeboah in the course of the hearing of his disciplinary hearing, his internal appeal hearing and the hearing of the applications in the Employment Tribunal).
- In his Notice of Appearance Mr Crofton repeated his denial of liability for discrimination on the ground that he was not Mr Yeboah's employer. He denied that checking the immigration status and investigating the criminal background of an employee was capable of constituting racial discrimination and, even if it was, it would not have been "unwarranted" in Mr Yeboah's case, relating to a senior employee in a key "gate-keeping" position, in a local authority beset with fraud, and as part of the ongoing investigation of fraud and corruption. He denied any involvement in the request to the Immigration and Nationality Department of the Home Office to clarify Mr Yeboah's immigration status or in the investigation of Mr Yeboah's criminal background, other than that he was interviewed about him by the Fraud Squad of the Metropolitan Police in or about the summer of 1991. He claimed that Mr Yeboah's complaint was vexatious and made with the intention of harassing him.
- In its Extended Reasons the Employment Tribunal found that Mr Crofton had racially discriminated against Mr Yeboah in having caused him to be considered as suspected of fraud and to be included in a police list of suspects, but that the Council was not vicariously liable, as it had taken such steps as were reasonably practicable to prevent Mr Crofton from doing the act complained of.
- It found that, at a meeting with Fraud Squad Officers in the autumn of 1991, Mr Crofton had suggested Mr Yeboah's name as a suspect to be investigated; that he had caused an investigation into Mr Yeboah by the Fraud Squad; and that he had caused his name to be on a list of suspects by the police.
- The tribunal held that Mr Crofton's explanation that he acted in the belief that Mr Yeboah was corrupt had no rational basis. His belief was based on the fact that Mr Yeboah is West African and on Mr Crofton's belief that West Africans have a propensity to commit fraud. The tribunal inferred that Mr Crofton had acted as he did on racial grounds and that he would not have done this, but for Mr Yeboah's race. The tribunal concluded that the treatment of Mr Yeboah by Mr Crofton without reasonable grounds amounted to less favourable treatment of him and caused detriment to him. The Employment Tribunal rejected Mr Crofton's contention that he had a defence of privilege or public policy.
- The Employment Tribunal accepted Mr Crofton's evidence denying that he had made, or caused or instructed to be made, the enquiry of the Immigration and Nationality Department about Mr Yeboah. It found that the enquiry was made in late 1993 by a member of the Council's Tenancy Audit Team (Mr Jackson); that that was an act of racial discrimination; and that the Council was liable for discrimination by subjecting him to an enquiry into his immigration status.
- Mr Crofton contended that the Employment Tribunal had found him guilty of a matter not specified in the Originating Application by making findings of primary fact based on evidence sprung on him at a late stage in the hearing, by making an inference which could not possibly be correct and by ignoring valid comparators. If he knew that Mr Yeboah was failing to deal with fraud which he was well aware of, then he had reasons, other than race, for suggesting that the Fraud Squad look into Mr Yeboah. He submitted that an investigation of Mr Yeboah by the police was fully justified, because he knew all about Petadist and about fraudsters getting jobs in the Council and did nothing
- The Employment Tribunal sent to the parties separate Extended Reasons on the same day (1 September 1998) in respect of all seven applications, including the three applications relevant to this appeal. (There was a separate decision on remedies sent to the parties on 10 November 1998, which resulted in an order that Mr Crofton pay to Mr Yeboah £45,000 compensation for racial discrimination, including £10,000 aggravated damages, plus £14,000 interest on the damages.).
- It was made clear that the Extended Reasons on each application must not be regarded as entirely self-contained and that, to obtain a complete picture, all seven sets of Extended Reasons must be read, because the Employment Tribunal had considered all the evidence in all seven cases before reaching its decision in any one case. Findings of fact in any one decision were findings of fact it had in mind in all the other decisions. They influenced each decision, even though not specifically mentioned in any one particular decision. Having in mind the importance of drawing inferences, the tribunal stated in the preamble to all seven applications:
- The Tribunal directed itself as to the law in all seven applications as set out in Appendix A to the first application No. 56617/94, citing a list of authorities. On the appeal there has been no serious criticism of the accuracy of that summary of the relevant law. Mr Crofton's criticisms have been of the application of the law by the tribunal to the facts. The main areas of law to which reference needs to be made at appropriate points in this judgment are those relating to the application of the law on certain points raised by Mr Crofton in his very full written and oral submissions: (a) the personal liability of an employee for acts of discrimination committed by him in the course of his employment against a fellow employee; (b) the requirement of a comparator in race discrimination cases; (c) the burden of proving the truth (or untruth) of the allegations made by Mr Crofton against Mr Yeboah; (d) the order in which the issues of racial grounds and difference in treatment should be addressed in a race discrimination case;(e) the management of the proceedings and the conduct of the hearing by the Employment Tribunal where a party is unrepresented, including control over the order of witnesses, the requirement of written closing submissions and the exclusion of oral evidence;(f) the availability of "whistle blowing" type defences of public policy, privilege and justification by telling the truth in a case of alleged race discrimination consists of the making of allegedly defamatory accusations; and (g) the circumstances in which it is permissible for an appeal tribunal or an appeal court to set aside the decision of an Employment Tribunal on the grounds of perversity and remit the matter for re-hearing.
- After dealing in detail with numerous disputes of fact about particular incidents involving Mr Crofton's treatment of Mr Yeboah, the Employment Tribunal came to the conclusion in each application that, on the balance of probabilities, Mr Crofton had discriminated against Mr Yeboah, as, on racial grounds, he had treated him less favourably than he treats, or would treat, other persons, and he had caused him detriment.
- In particular, it is necessary, at the risk of repetition, to refer to the following general conclusions of the Employment Tribunal in order to keep in perspective the specific grounds on which the Employment Appeal Tribunal allowed Mr Crofton's appeal and Mr Crofton's detailed criticisms of the findings of fact on particular incidents:
- The Employment Appeal Tribunal reached the following conclusions on the appeals against the decisions on the three relevant applications:
- It held that the decision of the Employment Tribunal was perverse on the recruitment fraud issue, in respect of which the majority of the allegations were made (21 out of 38 identified allegations). The issue was described by the Employment Appeal Tribunal as underlying the other issues. The conclusions of the Employment Tribunal on this issue were held not to be a permissible option and to be certainly wrong. They were based on a central conclusion for which there was no evidence.
- The Employment Appeal Tribunal focused on the findings of fact by the Employment Tribunal about the meeting with Mr Crofton and Mr Yeboah called by Councillor Hibberd on 22 October 1990 and the conclusion that systematic recruitment fraud only began to emerge in early 1995 and the inferences made from those findings as to racial grounds being the effective cause of Mr Crofton's allegations. The findings were made in consequence of exclusion or disregard of evidence relevant to the recruitment fraud issue, in particular the hand-written notes of Mr Jerry White dated October 1990 and the oral evidence of Councillor Hibberd concerning the meeting of 22 October 1990. As already noted, permission had been given for the White notes and Councillor Hibberd's evidence to be admitted as fresh evidence on the appeal. The evidence was relevant, as the Employment Tribunal had found that Mr Crofton's account of the meeting was false and that he had fabricated a note of that meeting. The Extended Reasons also contained an error as to the burden of proof. There was no evidence on which the Employment Tribunal could have concluded, as it did, that "systematic recruitment fraud did not begin to emerge until 1995."
- The conclusions on the issue regarding Mr Onuoha, which was also raised in this application, were intertwined and inseparable from the Employment Tribunal's conclusions on the recruitment fraud issue: they were also perverse and involved an erroneous approach to the onus of proof.
- On the issue of sabbatical leave for Ms Warnock, it concluded that there was no foundation for the Employment Tribunal's finding of primary fact upon which the inference of racial discrimination depended, namely the finding that Mr Crofton had made an allegation that the sabbatical leave had been given to Ms Warnock as a reward for signing his application form for naturalisation. As no such allegation, which would plainly have been groundless, was in fact made, there was no basis for the inference of racial discrimination, which arose only because of the groundlessness of the allegation. (See paragraph 41).
- The only basis upon which the tribunal could have made findings of fact, or drawn the inferences that it did, would be if there were permissible inferences to be drawn hostile to Mr Crofton arising out of its linked conclusions on the recruitment fraud issue in the main application No.55617/94. To that extent this application fell with the first. (See paragraph 50).
- The Employment Appeal Tribunal held that there was no basis for finding the primary facts upon which the inference of racial discrimination depended. The finding of the Employment Tribunal that Mr Crofton had caused Mr Yeboah's name to be placed on the Police List after the meeting in the autumn of 1991 (and later faxed by the Metropolitan Police to a member of the Council's Tenancy Audit Team on 22 July 1993) was unsupported by the evidence. The Employment Appeal Tribunal added the same comments on the perversity of the decision as it had made on application No 69479/94 above. The inferences of the tribunal were based upon, and were inextricably linked to, its conclusions on the recruitment fraud issue on that application. (See paragraphs 46(iii), 47 and 50).
- The logical and normal consequence of the Employment Appeal Tribunal finding that a decision of an Employment Tribunal in favour of an applicant is perverse is that the appeal is allowed and the application is dismissed. That is the course one would naturally expect to be taken if the decision appealed against was not a permissible option on the evidence available to the tribunal. That course was not, however, taken in this case. The Employment Appeal Tribunal explained that the better course was to quash the conclusions of race discrimination in the three applications and to order a re-hearing of them by a different tribunal. Its reasons for taking this course were that some parts of their "conclusions have depended on fresh evidence" and "because of the potential interrelationships of the three applications." As the cases were being sent back, the Employment Appeal Tribunal considered that it need not say anything more about the various other points raised by Mr Crofton, other than some observations on the point of personal liability to a fellow employee for race discrimination in cases in which the Council had not been found liable to Mr Yeboah for race discrimination.
- In my judgment, these appeals should be allowed and the decisions of the Employment Tribunal on these three applications should be restored. As will be explained later in this judgment, there are certainly points on which I share the concerns of the Employment Appeal Tribunal, in particular certain procedural decisions of the Employment Tribunal and findings of fact on the recruitment fraud issue. But I am not satisfied that Mr Crofton has established that the overall decisions of the Employment Tribunal on the three applications were perverse or vitiated by error of law. In my judgment, the conclusions in all three applications that Mr Crofton had discriminated against Mr Yeboah on racial grounds were permissible options for the Employment Tribunal on the evidence before it.
- In these circumstances it will be necessary for this court to deal with all the many points raised by Mr Crofton in his skeleton argument and his oral submissions and not simply with the grounds of perversity and onus of proof on which the Employment Appeal Tribunal allowed his appeals. I propose to deal first with a number of recurrent arguments or themes in Mr Crofton's written and oral submissions, before addressing the detailed arguments on which the crucial perversity point arises.
- On Mr Crofton's point that he could not be held to be personally liable for race discrimination alleged by a fellow employee, the legal position is that Mr Crofton can be held personally liable for race discrimination against Mr Yeboah, as a fellow employee, even though he was not Mr Yeboah's employer and even though the Council, as Mr Crofton's employer, was held not to be vicariously liable for his conduct.
- Mr Yeboah's argument on personal liability proceeds on the basis that acts of race discrimination were committed by Mr Crofton in the course of his employment. The Council would be vicariously liable for Mr Crofton's acts under section 32(1) of the 1976 Act, unless it could show by way of defence under section 32 (3) of the 1976 Act that it took such steps as were reasonably practicable to prevent him, as its employee, from doing the act in question. But even if the Council did show that, as was held by the Employment Tribunal in two of the cases, the Employment Tribunal was entitled to hold that Mr Crofton was personally liable under section 33(1) of the 1976 Act for "knowingly" aiding the unlawful act of discrimination by the Council. Under section 33(2) Mr Crofton, as an employee for whose acts the Council is liable under section 32 or would be so liable but for section 32 (3), is deemed to aid the doing of the act by the Council. If the findings of fact of the Employment Tribunal summarised above are justifiable, it is clear that Mr Crofton did act "knowingly" in relation to the acts of discrimination, even though the tribunal did not expressly address the specific language of section 33(1).
- Mr Crofton submitted that the Employment Tribunal had misapplied the provisions of sections 1(1) (a), 3(4) and 4 (2) of the 1976 Act by ignoring the requirement of a comparator and in failing to identify a valid comparator. Comparisons must be made with other persons in the same circumstances in order to see whether there is different treatment. The tribunal did not properly apply the test of comparability. He sought to demonstrate this point by comparing the Council's different treatment of Mr Yeboah with the Council's treatment of him and by other detailed examples of Mr Crofton's treatment of Council employees, such as Mr Barr and Doja Labinjo, and other chief officers, such as Mr Craig and Mr Sugrue.
- He submitted that he did not treat Mr Yeboah differently from another person, because no one else was standing in the way of tackling fraud in the areas for which they were responsible. There was nothing to suggest that he would have treated another differently.
- The comparator point has not been made out. The Employment Tribunal expressly referred in its Extended Reasons to the fact that Mr Crofton would not make, and did not in fact make, similar allegations against non-African employees of the Council in similar circumstances.
- In my judgment, the Employment Tribunal did not err in law on the burden of proof. It is clear both from the summary of the law in Appendix A and from its application in the reasoning in the body of each of the three sets of Extended Reasons that the Employment Tribunal correctly approached the applications as cases in which the burden of proof was on Mr Yeboah. It was for him to establish his complaints of race discrimination by proving that, on the balance of probabilities, the acts complained of by him in fact happened; that he was treated less favourably by Mr Crofton than Mr Crofton treated, or would treat, persons of a different racial group in the same, or in not materially different, circumstances; and that racial grounds were the effective cause of the difference in treatment.
- In these cases the acts of race discrimination took the unusual form of defamatory accusations, the truth of which was hotly disputed. Mr Yeboah said that they were untrue. Mr Crofton said that his accusations were true, that he believed them to be true and that they could be proved to be true. Mr Crofton contended that, as the burden of proving race discrimination was on Mr Yeboah, it was for Mr Yeboah to prove that Mr Crofton's accusations were untrue, that they were falsely advanced and that their truth was not the real reason for making them; and that the Employment Tribunal had wrongly reversed the burden and placed on him (Mr Crofton) the burden of proving that his accusations against Mr Yeboah were true. In his own words the tribunal erred in placing the burden on him to prove his "allegations of improper collusion, rather than on the applicant to prove they were false."
- In my judgment, Mr Crofton's argument on this point is wrong. In principle the onus of proving a fact is on him who asserts it. Thus, in an action for defamation, if the defendant pleads justification, it is for him to prove that the words used are true. It is not for the claimant to prove that they are untrue. This was not, of course, an action for defamation, though it must sometimes have seemed to be so to the Employment Tribunal.
- The essential point is that, where it was admitted by Mr Crofton that he had made an accusation or where it was proved that he had made it, the questions for the Employment Tribunal were whether Mr Crofton would have made such accusations against a person of a different race in the same circumstances and whether the accusations were made by him on racial grounds. These issues involved an examination of all the circumstances, including, in particular, the explanations given by Mr Crofton for making the accusations against Mr Yeboah. It was for Mr Crofton to decide whether or not to explain his conduct in answer to the allegation of race discrimination. He chose to explain himself. His explanations were that he believed on reasonable grounds that his accusations were true and that they could be proved to be true. In Mr Crofton's own words it was fundamental to his defence that he knew from October 1990 that Mr Yeboah was aware that colleagues were defrauding the people of Hackney and he was doing nothing about it.
- As the Employment Tribunal did not accept Mr Crofton's explanations for making such accusations, it was entitled, though not bound, to infer that there was a different explanation than the one advanced by him and that that true explanation was a racial one. The truth or otherwise of the allegations by Mr Crofton was relevant to Mr Crofton's reason for making them. As Mr Crofton's explanation for the accusations was that he had a genuine and reasonable belief in the truth of them and that they could be proved to be true, it was for him to give evidence on those points.
- If Mr Crofton's evidence as to his beliefs, as to the grounds of his beliefs or as to the actual truth of the accusations had been accepted by the tribunal, it would have been extremely difficult for Mr Yeboah to persuade it to infer that racial grounds were the effective cause of the making of the accusations or that he had suffered any detriment as a result of them being made. But Mr Crofton's evidence was not accepted as the probable explanation of or reason for his actions. There was no error in the Employment Tribunal's approach to the burden of proof or to the statement of their reasons for the primary findings of fact, from which they made inferences on the points relevant to the conclusions of race discrimination.
- On this point I disagree with the Employment Appeal Tribunal's conclusion (in paragraphs 29 (ii) and 50) that the Employment Tribunal made an error of approach by reversing the burden of proof when it said (in paragraph 103 of the Extended Reasons) that
- In my judgment there is no error in that approach to the issues and the evidence. I do not agree with the Employment Appeal Tribunal that the Employment Tribunal should have spelled out that
- Mr Crofton submitted that the Employment Tribunal dealt with the issues in the wrong order. It erred in law in dealing with the issue of racial grounds (paragraphs 120-124) before it dealt with the issue of a difference in treatment (paragraph 125).
- This criticism seems to be based more on the sub-headings used by the tribunal in those parts of the Extended Reasons than on any point of substance. The point is not well founded. It is clear, for example, from paragraph 122 that the Employment Tribunal had well in mind, in dealing with racial grounds, the need to have regard to less favourable treatment, as in the reference to the fact that Mr Crofton had not made similar accusations against any non-African person.
- Mr Crofton submitted that in a number of respects the Employment Tribunal had made errors of law in the conduct of the hearing: it had interfered with his presentation of his case by making him present his case before the Council presented its case; by not allowing him to call his witnesses in the order in which he wanted to call them and by preventing evidence from being presented; by admitting evidence on matters which were not in Mr Yeboah's Originating Applications; by requiring him to make final submissions in writing; and by not allowing him to address the tribunal on allegations made after he had closed his case.
- In my judgment no question of law arises on these points. In relation to the procedure to be followed at the hearing the Employment Tribunal had a broad discretion under Rule 9 of the 1993 Regulations then in force to
- Mr Crofton is accordingly incorrect in his submissions that the tribunal had no discretion to determine the order in which witnesses are called or to exclude oral evidence or to exclude documents. It had a broad discretion and an appellate tribunal or court is only entitled to interfere with it on limited grounds which have not been made out by Mr Crofton, such as that there was an error of principle or that the exercise of the discretion was plainly wrong.
- It is true that the tribunal did not conduct the hearing in the way that Mr Crofton wished, but that does not constitute an error of law in its proceedings or its decision.
- Mr Crofton criticised the Employment Tribunal for not holding that he was entitled rely on defences of privilege, public interest and public policy. He said that from 1990 onwards he had acted for the purpose of exposing and putting an end to organised fraudulent activities by bringing them to the attention of Mr Yeboah, who was responsible for recruitment, in order to get him to protect the Council by investigating prima facie recruitment fraud and taking action. For no good grounds he had failed to do anything about it. He added that, in acting for that purpose, he had not treated Mr Yeboah any differently than he would have treated any other person.
- There is no specific statutory defence of public interest or public policy to a complaint of race discrimination. As already pointed out, this is not an action for defamation in which a defence of qualified privilege might be available. The only possible relevance of these points is in connection with the credibility of, and the weight to be given to, the explanations offered by Mr Crofton for making the accusations against Mr Yeboah in deciding whether or not to infer whether racial grounds were the effective cause of the actions complained of by Mr Yeboah. There was no error of law by the Employment Tribunal in rejecting these points as separate heads of defence to liability.
- A ground of appeal based on perversity should always be fully particularised, so that the respondent can be fully prepared to meet it and in order to deter attempts to pursue hopeless and impermissible appeals on factual points. Paragraph 2(5) of the Employment Appeal Tribunal Practice Direction - Procedure (29 March 1996) provides
- Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34.
- Over the years there have been frequent attempts, consistently resisted by the Employment Appeal Tribunal, to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the Extended Reasons of an Employment Tribunal, selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence, and alleging, without adequate particulars, supporting material or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises for the determination of the Employment Appeal Tribunal.
- Inevitably there will from time to time be cases in which an Employment Tribunal has unfortunately erred by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. In such cases the appeal will usually succeed. But no appeal on a question of law should be allowed to be turned into a rehearing of parts of the evidence by the Employment Appeal Tribunal. I am, of course, well aware that this is easier said than done, especially when, as here, neither side was legally represented on the first level of appeal. As the Employment Appeal Tribunal was well aware, unrepresented litigants have understandable problems in separating questions of law from proof of facts and in distinguishing the making of legal submissions from submissions of fact, even giving evidence in the course of submissions.
- In my judgment, the mass of detail in which the unrepresented parties advanced their written and oral arguments on the appeals over a 12 day hearing led the Employment Appeal Tribunal to reach the unjustified conclusion that specific decisions on fact, and therefore ultimate decisions on liability, were perverse, following a consideration of only part of the vast expanse of evidence available to the Employment Tribunal.
- In my judgment the Employment Appeal Tribunal was wrong in holding that there was no foundation for the finding of fact that Mr Crofton had made an allegation that Mr Yeboah had given sabbatical leave to Ms Warnock as a reward for signing his naturalisation papers.
- The Employment Appeal Tribunal correctly stated that in race discrimination cases there must be primary facts on the basis of which an inference of racial discrimination can be drawn; that there was an issue of fact whether Mr Crofton had made such an allegation against Mr Yeboah; that it was for the Employment Tribunal to resolve the issue of fact; and that the resolution of that issue was important as the tribunal had found that such an allegation was groundless and could only have been made on racial grounds.(As already pointed out Mr Yeboah had not in fact awarded the sabbatical.)
- The Employment Appeal Tribunal focused on the point that the finding was "not made on the basis of any independent evidence by Mr White as to what was said by Mr Crofton on 10 October 1994, but simply by reference to the note of Ms O'Connor", who accompanied him at such meeting with Mr Crofton for the purpose of taking notes. Reference was then made to the notes confirmed by Mr White and to the interpretation put on them when Mr White reported back to Mr Yeboah and subsequently. The Employment Appeal Tribunal concluded that the making of the allegation by Mr Crofton was not established.
- I am unable, however, to agree with the Employment Appeal Tribunal that its conclusions on the interpretation of Ms O'Connor's notes means that there was no basis for the finding of fact that Mr Crofton made an allegation of the giving of a reward to Ms Warnock and that the decision that he did make such an allegation is perverse or could only have been made on the basis of a link to the tribunal's conclusions against Mr Crofton on the recruitment fraud issue in the main application.
- Valuable though such contemporaneous notes are, the fact is that there was other credible evidence from which the Employment Tribunal was entitled to conclude that Mr Crofton made the allegation of the granting of a sabbatical as a reward.
- Mr Jerry White interviewed Mr Crofton on 10 October 1994. On 25 October 1994 a Notice of Complaint was issued against Mr Crofton by Mr Jerry White and signed by him, alleging that he had made a very serious attack on the integrity of Mr Yeboah without reasonable justification by making a number of allegations, including
- On page 70 of its report of 17 March 1995 on the complaint the Disciplinary sub-committee rejected Mr Crofton's denial that he had made a connection between Ms Warnock signing Mr Yeboah's naturalisation papers and him awarding her a sabbatical, which he had mentioned consecutively at the interview on 10 October, and concluded that he did indicate to the Chief Executive that there was a link between the sabbatical leave and the signing of the naturalisation papers; that there was no basis for this allegation; and that he made it without reasonable justification, which amounted to gross misconduct. On 25 October 1995 Mr Crofton's appeal against the decision of the disciplinary sub-committtee was allowed without dealing with the substance of the findings on this allegation.
- Mr White had made notes of the interview of 10 October. Two days later on 12 October 1994 he put the allegations to Mr Yeboah¸ who made a manuscript note of the interview in which he referred to an allegation against him that Ms Warnock signed his naturalisation papers and that as a reward he granted her a sabbatical. Evidence was given to the Employment Tribunal by Mr White, Mr Yeboah and Mr Crofton. The tribunal expressly stated that it preferred the evidence of Mr White to that of Mr Crofton and gave relevant reasons for doing so. In the light of this material this is not a case in which it can be said that the finding of fact by the Employment Tribunal was perverse.
- I am unable to agree with the Employment Appeal Tribunal that it was perverse of the Employment Tribunal to find as a primary fact that Mr Crofton caused Mr Yeboah's name to be put on the Police List. The Employment Appeal Tribunal went on to conclude that there was no basis for the inference of racial discrimination, on which that primary finding of fact depended, and that this application stood or fell with the decision on the recruitment issue.
- In fact there was credible evidence, quite independent of the findings of fact on the recruitment fraud issue, on which the Employment Tribunal was entitled to make the primary finding of fact as to how Mr Yeboah's name came to be in the Police List. In my judgment, the Employment Appeal Tribunal was not entitled to form a different view of the evidence and then hold that the decision of the Employment Tribunal was perverse.
- The autumn 1991 meeting with the police was attended by Mr Bundred, the Chief Council Officer in the investigation of fraud, and by Mr Barr, the Council's Head of Audit and his second in command, as well as by Mr Crofton. Mr Barr gave evidence that he recalled Mr Crofton saying at the 1991 meeting that maybe they should investigate Mr Yeboah. Mr Bundred "pooh-poohed " the suggestion. The tribunal accepted the evidence of Mr Barr. It recorded that Mr Crofton did not dispute that he had suggested an investigation of Mr Yeboah at that meeting. This is consistent with a manuscript note dated 25 October 1991 headed "Fraud (the Met)" and containing references to Mr Yeboah (SY) produced by Mr Crofton of another meeting that he had with the police. The Tribunal concluded, and was entitled to conclude, that the contents of Mr Crofton's note took it for granted that Mr Yeboah was a suspect. Further, in his closing written submissions to the tribunal, Mr Crofton accepted that he did not particularly dispute Mr Barr's evidence of the discussion at the meeting, as he was concerned about Mr Yeboah's approach to matters of fraud when they were raised and that "he probably thought it would have made sense to check him out then", but he went on to assert that it was clear that he " did not pursue this at all."
- In his skeleton argument (paragraph 96) Mr Crofton makes a number of other complaints about the decision of the Employment Tribunal on this application, but he fails to identify the contrary evidence, which he says the tribunal ignored, and he asserts that, if he knew that Mr Yeboah was failing to deal with fraud which he was well aware of, then he had good reasons for suggesting the Fraud Squad look into Mr Yeboah, other than race.
- Although the Employment Tribunal's treatment of this factual issue was at the forefront of the decision of the Employment Appeal Tribunal, I have deliberately left the point until the end of this judgment so that the point can be seen in its proper context and so that the arguments can be considered in the overall context of all the decisions of the Employment Tribunal.
- The Employment Appeal Tribunal treated this issue as underlying all the other issues in the dispute, so that the perceived errors in the Employment Tribunal's treatment of it rendered the overall decisions in all three applications perverse. I think, however, that when the treatment of the recruitment fraud issue is considered in the round, it can be seen that, although the Employment Appeal Tribunal had understandable concerns about the manner in which the Employment Tribunal handled aspects of the case procedurally and how it dealt with the facts in the Extended Reasons, this is not a case in which the Employment Appeal Tribunal was justified in concluding that the decision was perverse. In my judgment the Employment Appeal Tribunal was not entitled to take the drastic step of overturning the overall decisions on the three applications and of ordering a re-hearing of them all.
- As Ms Monaghan pointed out, Mr Crofton's main grounds of appeal to the Employment Appeal Tribunal against this decision related to the exclusion of certain relevant evidence by the Employment Tribunal, principally that of Councillor Hibberd. That evidence was specially relevant to his ground of appeal that the Employment Tribunal had made a number of significant findings of fact which were contrary to the evidence before it, in particular the finding that systematic recruitment fraud was a problem that began to emerge only early in 1995. He contended that this finding was fundamental to all the cases in the light of the tribunal's decision that his criticism of Mr Yeboah's failure to do anything to tackle recruitment fraud was unfair and must have been based on his race.
- The Employment Appeal Tribunal treated the recruitment fraud question as raising wider and more significant issues, which were not specifically raised in Mr Crofton's grounds of appeal, concerning for example the Petadist/ Peter Amadi issue. The Employment Appeal Tribunal criticised the way in which the Employment Tribunal had dealt with evidence on those issues, but without having before it all the evidence which was before the Employment Tribunal.
- I agree with the Employment Appeal Tribunal that there was cause to be concerned about the way in which the Employment Tribunal dealt with two items of evidence relevant to this issue. The Employment Appeal Tribunal was entitled to examine closely the decisions of the Employment Tribunal on two aspects of the hearing: the witness evidence of Councillor Hibberd and the contemporaneous notes of Mr Jerry White.
- I am unable, however, to agree with the Employment Appeal Tribunal that there was an error of law by the Employment Tribunal in its treatment of the evidential position or in its ultimate conclusions on the issues to which the evidence was relevant.
- Councillor Hibberd gave evidence at Mr Crofton's disciplinary hearing on 24 February 1995 about the meeting on 22 October 1990 on which the tribunal had (wrongly, in Mr Crofton's view) accepted Mr Yeboah's evidence. Mr Crofton argued that Councillor Hibberd's evidence showed that the issue of recruitment fraud had been raised at that meeting and brought to Mr Yeboah's notice. She had told Mr Yeboah of the allegations about the activities of Petadist and he had done nothing about it. Mr Crofton argued that if this evidence had been admitted, the picture about recruitment fraud would have looked very different and the tribunal would not have made the damaging finding that he had fabricated his note of that meeting. The evidence on the meeting of 22 October 1990 was at variance with the tribunal's finding that recruitment fraud did not emerge until 1995. It had been brought to Mr Yeboah's notice before then. Nothing was done before 1995.
- Notes of Councillor Hibberd's evidence at the disciplinary hearing were, however, before the Employment Tribunal, though not in the form of a signed witness statement by Councillor Hibberd. The notes referred to the meeting of 22 October 1990 and the fact that issues were raised at it about Mr Amadi and Petadist. It is true that, as pointed out by Mr Crofton, the notes of her evidence to the disciplinary hearing were not expressly referred to in the Extended Reasons. He speculated that perhaps the tribunal had already irrationally made up its mind and decided not to read the notes of her evidence, or that it had forgotten all about them, or that it had only "sampled" them, or that it did not understand their significance and context in the absence of anyone addressing it about them. His case quite simply is that the evidence of Councillor Hibberd and of Mr White make it clear that Mr Yeboah " was just patently lying about whether Petadist was raised with him."
- I am not satisfied that there was any error of law in relation to the evidence of Councillor Hibberd. I appreciate that Mr Crofton had wished to call Councillor Hibberd to give oral evidence, but she failed to attend to give evidence during the course of Mr Crofton's case. On 1 December 1997 an adjournment was granted, as she was not available to give evidence. On 12 December 1997 Mr Crofton had applied to call her as a witness out of order, as she was still not available. The application was refused by the Employment Tribunal, which was left with the distinct impression that it had been misled about her availability.
- That refusal was not legally erroneous. The Employment Tribunal had a very wide discretion under Rule 9 in the conduct of the proceedings. The Employment Tribunal had directed that Mr Yeboah should present his case first, followed by Mr Crofton and that the Council should then respond to the complaints of both of them. There was nothing unusual or unreasonable in such a direction.
- After the opening statement which Mr Crofton was permitted to make, in the absence of the prior provision of a witness statement by him, Mr Crofton informed the Employment Tribunal that Councillor Hibberd was ill and she was planning to be part of a delegation abroad. Despite the grant of an adjournment, Mr Crofton did not call her to give evidence before the Council was required to open its case. Although Mr Crofton was given leave to call Councillor Hibberd after the Council's first witness, she was not in fact called because, according to Mr Crofton, she was ill. Mr Crofton was invited to apply to the tribunal for a witness order, but he declined to do so. Councillor Hibberd never did attend to give oral evidence to the tribunal. The Employment Tribunal refused to allow her to be called as a witness so long after Mr Crofton had closed his case.
- In my judgment, the tribunal's decision relating to Councillor Hibberd's oral evidence does not raise a question of law. It may well be the case that a different tribunal would have allowed her to be called as a witness, even at a very late stage in the hearing, on the ground that her evidence was relevant and that the prejudice likely to be suffered by Mr Crofton by its exclusion would outweigh any prejudice likely to be caused by its late admission. But that is insufficient to establish an error of law in the proceedings. The refusal of the tribunal was well within its broad discretion, having regard to the terms of Rule 9, the earlier opportunities which had been given to Mr Crofton for her to be called as a witness and to the fact that her witness statement indicated that she would endorse evidence already given by her to the disciplinary hearing, the notes of which were available to the tribunal.
- The Employment Tribunal was also criticised by Mr Crofton for refusing to admit all the notes of Mr Jerry White and for failing to address the relevance of them to the points at issue. Some of the notes were contained in the original bundles prepared for the tribunal hearing. Mr Crofton first made an application for the admission of the notes after both Mr Yeboah and Mr Crofton had closed their cases and half way through the Council's case. The tribunal refused the application on the ground of its lateness. It held that the notes were the property of Mr White and not of the Council, when, Mr Crofton argues, the real issue was not their ownership but their accessibility to him and their relevance to the issues. The notes were not included in the bundles. But they were not, as the Appeal Tribunal appear to have thought, excluded from evidence: they were read into the proceedings when Mr Crofton cross examined Mr Jerry White, who was permitted to refresh his memory from them and to read them out.
- Another tribunal might well have taken the more convenient course of allowing the notes to be copied and included in the bundles of documents. It was, however, within the broad procedural discretion of the tribunal to deal with Mr Jerry White's notes as it did.
- I would accordingly allow the appeals, set aside the order of the Employment Appeal Tribunal and restore the decisions of the Employment Tribunal on the Applications Nos. 56617/94, 69479/94, and 23230/95.
- Though we are differing from the decision of the Employment Appeal Tribunal, I do not think I can usefully add to the comprehensive judgments of Brooke LJ and Mummery LJ. For the reasons given by them, I would concur in allowing this appeal, setting aside the order of the employment Appeal Tribunal, and restoring the three relevant decisions of the Employment Tribunal.
- The hearing before the Employment Tribunal lasted more than 100 days. The three members of the tribunal had ample opportunity to appraise the characters of the two men whose conduct is central to this appeal. If the findings of fact of such a tribunal are to be set aside as perverse, fairness demands that the matters to be relied on by an appellant are set out concisely in his notice of appeal to the Employment Appeal Tribunal, so that the respondent can have a full opportunity of adducing to the Employment Appeal Tribunal all the relevant evidence which was before the Employment Tribunal. And even then the Employment Appeal Tribunal will have the distinct disadvantage of not hearing the witnesses give evidence.
- We have been shown the orders made by the Employment Appeal Tribunal directing Mr Crofton to prepare a Notice of Appeal which gave proper particulars of the matters of which he wished to complain. We have also been shown the skeleton argument settled by counsel for Mr Yeboah just before the Employment Appeal Tribunal hearing which made strenuous complaints about the lack of particularisation of the allegations of perversity in the Notice of Appeal. The relevant passage in the skeleton argument began:
- The Employment Appeal Tribunal nevertheless embarked on an inquiry into this largely unparticularised ground of complaint, with the additional disadvantage that in the absence of counsel on either side it did not know exactly what had happened in certain vital respects before the Employment Tribunal. For example, it was under the impression that a number of important contemporary notes by Mr Jerry White, Hackney's Chief Executive, were excluded from evidence by that tribunal. That was not correct. Ms Monaghan has shown us how Mr White's notes dated 23, 24, 25 and 29 October 1990, 16 and 18 January, 8, 17 and 20 May and 20 June 1991 were all either before the Tribunal in documentary form or were read in full to the Tribunal by Mr White when he gave evidence. She has also shown us how patiently the Tribunal responded to the non-appearance of Councillor Hibberd, giving Mr Crofton every opportunity to call her, if necessary with recourse to a witness order, until the time came when they reasonably, and certainly unchallengeably, decided that it would be wrong to wait any longer, since Hackney had by now embarked on calling its own witnesses. They considered, indeed, that Mr Crofton had acted culpably in relation to one day which was wasted while waiting for Councillor Hibberd, and ordered him, to that extent, to pay the costs thrown away.
- It is very striking, in the light of the complaints which Mr Crofton was to make to the Employment Appeal Tribunal, that in his 129 pages of written submissions to the Employment Tribunal at the end of that hearing he did not mention the name "Petadist" once and that his only mention of the name "Peter Amadi" was in the context of a complaint (at p 115) that Mr Yeboah had told a lie to the effect that Joy Adrien (see para 151 below) had been given proper information for her investigation into Peter Amadi. The points which impressed the Employment Appeal Tribunal in relation to the Amadi matter did not feature in those submissions, which made no reference at all to the evidence Councillor Hibberd was to give to Mr Crofton's disciplinary hearing over four years after the events in question had taken place.
- I have no doubt that if the Employment Tribunal had been reminded of the effect of her evidence, even though she failed to attend the tribunal for questioning about it in somewhat obscure circumstances, they would have been slower to find that Mr Crofton had fabricated his note of the meeting with her on 22nd October 1990. On the other hand, I do not see how their failure to take account of this evidence, when neither Mr Crofton nor anybody else drew their attention to any material features of it, can be properly categorised as an error of law.
- Because of the great importance the Employment Appeal Tribunal attached to the Tribunal's willingness to find that Mr Crofton had fabricated this note, and the great importance Mr Crofton attached to the point, I have considered it necessary to review the effect of the Tribunal's findings of fact over the first year of Mr Crofton's employment by Hackney. I have chosen this period because it is the period covered by the Employment Appeal Tribunal's generic description "Recruitment Fraud". Nearly half the judgment of the Employment Appeal Tribunal was devoted to this period. Burton J, giving the judgment of the Employment Appeal Tribunal, said (at para 14) that this issue underlay the other issues. It was the subject-matter of 21 of the 38 identified allegations against Mr Crofton. It was also, in the opinion of the Employment Appeal Tribunal, the issue to which "the missing evidence of Councillor Hibberd and the White notes" were crucially relevant.
- For the reasons given by Mummery LJ, with which I agree, the Employment Tribunal committed no error of law in not permitting Councillor Hibberd to be called. It also committed no error of law in overlooking the evidence Councillor Hibberd gave in 1995 when nobody had placed any material reliance on it in their submissions at the end of the trial. And it committed no error of law, for the reasons given by Mummery LJ, in not allowing Mr White's notes to be copied, although I agree with Mummery LJ that another tribunal might well have handled this matter in a different way. Mr White's notes were in any event not "missing", as the Employment Appeal Tribunal supposed. I have already described how many of them were before the Tribunal, either in their bundles or in Mr White's oral evidence when he read them out in full.
- The Employment Appeal Tribunal placed great emphasis on the meeting on 22nd October 1990, on which all the material evidence was before the Tribunal, even though they did not fully appreciate its effect. I intend in the circumstances to set out all the relevant findings of fact by the Tribunal in relation to the period I have selected, and I will then return to the meeting on 22nd October 1990 and the Amadi-Petadist matter which so impressed the Employment Appeal Tribunal to see if I can detect any error of law lurking there, notwithstanding that Mr Crofton made no mention of this matter in his final submissions to the Tribunal or in his formal complaints about perversity in his Notice of Appeal to the Employment Appeal Tribunal.
- I will begin by saying a little bit more about the two men at the centre of this dispute. Mr Yeboah was born and educated in Ghana, but he came to this country when he was 25, and apart from a few years in the 1970s he has lived here ever since. He has both academic and professional qualifications. His book, The Ideology of Racism, was published in 1988. He obtained his first job with the council as a race relations projects officer, and he then rose rapidly through its ranks until he was appointed Acting Head of Personnel Services in January 1989. In November 1993 he was promoted to a new post of Assistant Chief Executive (Human Resources), the most senior personnel position in the council. He was 50 years old when his employment by the council was terminated.
- The Tribunal (at paras 5 and 6) described his many achievements during his 12 years at Hackney, with particular reference to his time as Head of Personnel Services. He never received a critical report at any time from his line managers, and in his final appraisal his immediate line manager, Mr Sugrue, described him as an enormous asset to Hackney. He also gained external recognition as an expert on managing equality. The Tribunal set out (at para 11.9) the glowing character references he had received from those who had the opportunity to observe his work at Hackney. They were particularly struck by the fact that all the people who knew Mr Yeboah more intimately, and for longer periods, than Mr Crofton, spoke most highly of him and his attitude to tackling fraud.
- His antagonist, Mr Crofton, was about the same age. After obtaining two university degrees he spent all his working life in local government, almost entirely in the field of housing. Before he became Director of Housing at Ealing, he had worked for Lambeth, Camden and the Greater London Council. The Tribunal (at para 7) described his involvement in politics. He was knowledgeable on race relations law, and during his three years at Ealing he was active in confronting racism. He closed down racist drinking clubs on council estates and replaced them with community halls available to everyone. As a reward he was confronted by gangs of National Front thugs and subjected to personal threats by them. In July 1990 he was appointed Hackney's Director of Housing. Mr Ken Livingstone MP paid tribute to Mr Crofton's efforts in the past in stamping out racial violence and tackling discriminatory housing policies. The Tribunal accepted (at para 119) that he had an exemplary anti-racist background.
- The Tribunal described (at paras 8 - 11) the dreadful situation he inherited. His predecessor had been absent from duty for a time, and had then taken early retirement. A reorganisation of the housing directorate had been started the previous year, but there had been a delay in implementing it. This had led to a significant deterioration of morale, with experienced staff taking early retirement or obtaining other jobs away from the council. There was a 70% vacancy rate in the posts of principal officer and above, and over 200 of the 700 posts were vacant, occupied nominally by a subordinate officer on an acting basis. The directorate provided the worst service of all the council's services, but great hope was placed in Mr Crofton's ability to bring about significant improvements.
- Unsurprisingly, the fair distribution of the council's housing stock was out of control. No other British local authority had so many squatters. Tenants indulged in "key-selling", the practice of passing their council flats to unauthorised occupants at large premiums without the council's knowledge. There were up to 2,000 "homeless" households in bed and breakfast accommodation at the council's expense. Repeatedly council staff conducted inadequate inquiries and accepted responsibility for housing people who should not have been the council's responsibility. Soon after his appointment Mr Crofton identified the council's homeless persons unit as a major source of concern. He suspected that members of their housing staff were parties to the fraud that was going on. This view was confirmed by Mr Bundred, who became the council's deputy director of finance in 1990. The many staff vacancies compounded the difficulties. On his appointment Mr Crofton was told by councillors that his top priority was to complete the reorganisation of the directorate. He felt that it was more important to get people into the jobs that were there: reorganisation of the structure could wait.
- The council operated a rake management structure. Mr White, the chief executive, had his own secretariat. Below him there were ten directorates, each headed by a director. The housing directorate (headed by Mr Crofton), the finance directorate (headed by Mr Craig) and the corporate and information services directorate (headed by Mr Sugrue) are the three directorates which feature most prominently in the history. Mr White, Mr Crofton, Mr Craig and Mr Sugrue were all white. Mr Yeboah, as acting head of personnel services, reported to Mr Sugrue. Each directorate had a directorate personnel officer ("DPO") whose line manager was Mr Yeboah. The DPOs were also responsible to the director of the directorate in which they served for performing their personnel function. Miss Labinjo, a West African, was the housing directorate's DPO.
- Tensions arose between Mr Crofton and Miss Labinjo from the time Mr Crofton took up his post. He found that the reorganisation was progressing at a painfully slow pace. Short-staffed managers were too busy with their day to day work. The trades unions would not co-operate. And Mr Crofton felt that housing personnel seemed to have no overall view about what needed to be done. He soon became very dissatisfied with his personnel staff, particularly Miss Labinjo.
- The dissatisfaction was mutual. Miss Labinjo complained to Mr Yeboah in turn about the way Mr Crofton treated her. He did not have one to one meetings with her. He failed to adhere to procedures, and in general she complained about his attitude towards her. The first flashpoint in their relationship occurred at the end of August 1990. Mr Crofton was supplied with the services of a stop-gap temporary secretary, Miss Jegede, whom he found totally unsatisfactory. He came to accuse Miss Labinjo of corruption in connection with this appointment. The Tribunal recorded (at para 14) that this was one of only several important matters which gave rise to investigations between September 1990 and August 1991 in which Mr Crofton accused Africans of fraudulent behaviour.
- The next flashpoint occurred just over a month later. The council had a great problem with rent arrears, and in 1990 and 1991 they recruited 48 new rent recovery officers ("RROs") to help recover arrears. An RRO's job was to visit council estates to chase up arrears, refer cases to the council's legal department, and attend court to give evidence about rent arrears if a possession order was sought. There were several recruitment rounds before all these posts were filled.
- On 4th October 1990 a panel consisting of an African member of staff as chair, a white personnel officer and an Afro-Caribbean race relations officer selected 18 new RROs from the candidates they interviewed. Miss Carr (an Afro-Caribbean), who was a senior housing officer, had the task of deploying the successful candidates to different districts across the borough. She noticed that most of the names on the list were African. She was unhappy about this and went to see Mr Crofton's deputy, Mr Hall, who took her to see Mr Crofton. Mr Crofton gave directions that none of the successful candidates should be sent letters of appointment. On the following day he wrote to Miss Labinjo the first letter in what was to develop into an acrimonious correspondence about the appointment of Miss Jegede.
- At about the same time a different set of problems arose over the appointment of the council's new rent recovery manager. These gave rise to concerns in the mind of Councillor Linda Hibberd, the chair of the housing committee. The members of the interviewing panel had been supplied with model answers to the technical questions they asked the candidates, and Councillor Hibberd was 90% certain that one of the candidates was answering the questions parrot-fashion, as if he had had access to the model answers. This candidate had been supplied with a reference by a housing association called Petadist, which was run by Mr Peter Amadi, a race relations officer employed in the housing department.
- She raised her concerns with Miss Labinjo and Mr Whittingham, the race relations adviser who had taken part in the RRO selection. Miss Labinjo said that Mr Amadi had given references before, and Councillor Hibberd was concerned that he might have a conflict of interest. She therefore asked Miss Labinjo to speak to Mr Yeboah about her concerns.
- It was against this background that two important meetings took place on 22nd October 1990. The first was the only one to one meeting that ever took place between Mr Crofton and Mr Yeboah. Mr Crofton was virulent in his complaints about Miss Labinjo. He said that she operated as if she ran the housing department. Things she was asked to do just didn't happen.
- Relationships had deteriorated so far that he had to ask her in writing when he wanted things done. The Tribunal accepted Mr Crofton's evidence that he did not ask for Miss Labinjo's removal at this meeting. Mr Yeboah said he would arrange a meeting between himself, Mr Crofton and Miss Labinjo to try and improve the position. It was when he spoke to Miss Labinjo afterwards that he learned for the first time the unfolding saga about Mr Crofton's temporary secretary. In due course he was to form the view that a tripartite meeting would be unfruitful.
- Mr Crofton and Mr Yeboah then had their meeting with Councillor Hibberd. The Tribunal found (at para 36) that Mr Crofton said at this meeting that the recent RRO selection round had provided a preponderance of successful African candidates, and that Mr Yeboah obtained the clear impression that both he and Councillor Hibberd suspected that the high success rate of these candidates was due to some improper conduct on the part of the interview panel. The Tribunal also found that neither of the other two said anything to him about any suspicion on their part that some of the applications were fraudulent.
- Mr Yeboah thereupon instructed Miss Labinjo to provide a detailed breakdown of the race and gender of all the applicants for the RRO posts, an analysis by race and gender of all the shortlisted and successful candidates, and of the members of the interviewing panel, and details of the recruitment method used.
- The following day Mr Crofton met Mr White. He told him, falsely, that all the 18 successful candidates were African and that he had frozen the appointments. Mr White said he would call a meeting of senior officers to discuss the situation. The Tribunal recorded (at para 39) how this train of events sent ripples throughout Hackney, as it was assumed that the interviews must have been rigged. They found (at para 109) that Mr Crofton believed that the large number of African appointees must have been attributable to improper practice, and that he exaggerated the figures in order to persuade Mr White about his concerns.
- The meeting of senior officers took place on 29th October. Mr Crofton again asserted that all 18 successful candidates were African, and Mr Yeboah gave the results of the inquiries he had set in motion a week earlier. The Tribunal found (at para 41) that all those present, who included Mr Crofton, were content that no impropriety had occurred. Mr Crofton mentioned the unsatisfactory record and status of some of the appointees who occupied council property. He also spoke of the allegations relating to Mr Amadi. Mr Yeboah said that he was aware of them and that the integrity of the recruitment process was vital.
- Mr White's minute the following day set out the decisions agreed at this meeting. In particular, Mr Yeboah was to arrange for an investigation of Mr Amadi's role by Joy Adrien, a principal officer on his staff, and to arrange a meeting between housing management and housing personnel to discuss what further guidance might usefully be given in relation to recruitment procedure. In the event this meeting never took place, partly because effective remedial steps were already on hand, and partly because of Mr Crofton's hostility towards Miss Labinjo. Mr Crofton never subsequently raised the absence of a meeting as an issue. The Tribunal found (at para 117B(i)) that Mr Crofton's later allegation that Mr Yeboah failed to carry out a task allotted to him which involved investigating the bona fides of the successful RROs was quite untrue, and that he knew it was untrue. They also found (at para 117A(ix)) that Ms Adrien had carried out her investigation of Mr Amadi properly, and that Mr Crofton made no complaint about her report when it was sent to him.
- It was one of Mr Crofton's tasks to identify which of the successful candidates were in arrears with their rent or were occupying council accommodation without authority. The Tribunal found (at para 47) that Mr White's minute contained a clear instruction that all the other candidates should be offered appointment. This never happened, and housing personnel officers told Mr Yeboah that Mr Crofton was going to order a re-run of the entire selection process. On 6th November Mr Yeboah sent Mr Crofton a memorandum in which he said that his allegation that all 18 candidates had been African had done serious damage. He asked Mr Crofton to investigate the conduct and the motives of the officer who started the rumours. Mr Crofton did not reply. Nor did he take any action. The Tribunal found (at para 46) that there was no suggestion at this time that any of the RRO applications (or their references) were fraudulent. They rejected as untrue (at para 117B(ii)) Mr Crofton's explanation of his behaviour at this time, which was not supported by the contemporary documents.
- Mr Crofton continued to take no effective action on the RRO issue throughout November, and at the end of the month Mr Yeboah wrote both to Mr White and Mr Crofton explaining his deep concerns about the continuing impasse. He told Mr Crofton it was highly doubtful that white applicants would have been treated in this way. The Tribunal rejected (at para 117B(iii)) Mr Crofton's complaint that Mr Yeboah was accusing Miss Carr and him of racially discriminating against the RROs. They found that he was giving proper and appropriate advice, as head of personnel services, that the failure to appoint any of the RROs was likely to be seen as racially discriminatory, given that most of them were Africans.
- The impasse continued in December, when Mr Yeboah was on annual leave. Threats were made by successful candidates of Industrial Tribunal proceedings or a CRE inquiry. On 4th January 1991 Mr Sugrue himself intervened in a strongly worded letter to Mr Crofton. The Tribunal found (at para 52) that this letter, which Mr Yeboah saw, contained the first indication to him that Mr Crofton had expressed a belief that there was corruption over any of the RRO references. They also found (at para 117A(vii)) that prior to January 1991 Mr Yeboah knew only that there were concerns about some candidates being in arrears of rent or illegally occupying council property. They rejected as untrue (at para 117B(ii)) an allegation by Mr Crofton that he was sure he had spoken to Mr Yeboah about questionable references in mid-December. Mr Yeboah was in fact abroad at that time.
- On 16th January Mr White became involved again, and Mr Crofton now gave details of his suggestion that five of the candidates might have submitted fraudulent references. The Tribunal described (at paras 54-57) how this saga dragged on till May, when a meeting was fixed to interview four of the candidates in respect of whose references there were still outstanding queries. Mr Crofton had kept dragging his feet, and the matter was largely handled by Mr Sugrue, with Mr Yeboah giving him professional advice on two occasions. The Tribunal found (at para 109) that Mr Crofton's suspicions, which caused the recruitment process to be delayed so long, were founded on the fact that the applicants were African, and that his perception that Africans, and particularly West Africans, were fraudulent, was fuelled by the fact that he was proved correct in relation to some of the candidates. They rejected (at para 117C(ii)) Mr Crofton's suggestion that Mr Yeboah had watered down the letters Mr Sugrue wrote to the RROs in February. They held that this suggestion placed Mr Yeboah in a most unfavourable light, and Mr Crofton had no reasonable grounds for making it.
- The Tribunal also found (at para 18) that Mr White held a series of meetings during this period to try to resolve the problem of the relationship between Miss Labinjo and Mr Crofton, which also occupied a great deal of Mr Yeboah's time. Matters came to a head on 8th May 1991 when Mr Crofton sought the removal of Miss Labinjo from his directorate at a meeting attended not only by his two assistant directors, Mr Yeboah, Mr Sugrue and Mr White, but also by Miss Labinjo herself. He gave each of those present a copy of a grievance document which accused Miss Labinjo of corruptly recruiting Miss Jegede as his temporary secretary the previous August. He sought her removal "so that future corrupt acts can be prevented rather than condoned by the Line Managers of the DPO" (namely Mr Yeboah and Mr Sugrue). The Tribunal (at para 18) endorsed Mr White's view that this was an outrageous document to circulate at a meeting with those people present.
- They went on (at para 118A) to find that Mr Crofton was guilty of victimisation in connection with this incident. He had been told by Mr White that Miss Labinjo was proposing to lodge a grievance against him, and he got his retaliation in first. The Tribunal said that this cast a most unfavourable light on Mr Crofton's attitude, as a director, lodging a grievance against a junior member of staff in response to her threat to make a race related claim. They said (at para 122) that Mr Crofton also lodged a grievance against Mr Sugrue (on the basis that he had abused his position and acted corruptly) on 8th May 1991, but found that this was an isolated instance, and that Mr Crofton never made any other accusation against a non-African person, although white officers of the council did fail in certain respects in the investigations they conducted.
- Nine days later there took place, at long last, a meeting which was convened to clarify issues relating to the application forms and references submitted by the four successful RRO candidates in the October 1990 round over whom doubts still lingered. Mr Yeboah, Miss Labinjo and Mr Kaleem (a race relations officer) attended along with Mr Crofton and Mr Razzaq, who was a new housing officer, but Mr Crofton and Mr Razzaq walked out when it was made clear to them that the meeting had been convened to clear up the outstanding queries. In the event, the three candidates who did attend were subjected to vigorous questioning, and all their applications were rejected as fraudulent. The Tribunal (see paras 117A(iv) – (vi) and 117B(iv)) rejected as untrue allegations made by Mr Crofton about events at that meeting which first surfaced four years later. Mr White read to the Tribunal a contemporary note which recorded a telephone call from Mr Crofton in which he reported that he had walked out because the panel would not ask questions about fraud and that Mr Kaleem had accused him of racism.
- On 28th May Mr Yeboah wrote to Mr Crofton confirming the appointment of ten RROs out of the original 18. For seven there had been no concerns, and suspicions about three others had been dispelled following inquiry. He was instructing Miss Labinjo to pursue the applications of two internal candidates and to make formal offers by 31st May unless justifiable reasons to contrary effect were forthcoming. He received no reply.
- The Tribunal commented (at para 62) that throughout the RRO matter Mr Crofton never once complained to Mr Yeboah that he had failed to carry out any of the tasks assigned to him. Nor did he object to any action Mr Yeboah took or any memorandum he wrote on the issue.
- On 13th June 1991 Miss Labinjo raised her own grievance against Mr Crofton. She accused him, among other things, of being motivated by racist antipathy to Africans in particular. This complaint gave rise to one of three investigations conducted that summer in the context of the ongoing friction between Mr Crofton (and his deputy, Mr Hall) and the personnel officers assigned to his directorate. The Tribunal described these three matters in paragraphs 15-26 (the Jegede matter), paragraphs 26-27 (the Udenweze matter) and paragraphs 28-32 (the Adelana matter).
- In relation to the Jegede matter, which triggered off the grievance and counter-grievance to which I have referred, Mr Yeboah conducted an inquiry with Mr Barr, the assistant chief finance officer (audit). They concluded that there was no evidence of malpractice against Miss Labinjo, but that a junior member of housing personnel staff had made a mistake in increasing Miss Jegede's employment status after she was engaged. The Tribunal found it remarkable that Mr Crofton should have made his serious allegations against Miss Labinjo, in the humiliating circumstances in which they were made, on the basis of flimsy evidence.
- Mr Yeboah conducted an inquiry on his own into the Udenweze matter. This related to a newly appointed Homeless Persons Officer who was dismissed after his unsatisfactory conduct with Camden, his previous employer, had come to light. Mr Yeboah became involved because Mr Crofton's deputy had told him that he suspected Miss Labinjo's deputy, Mr Nduke-Nzekwue (who was another African) of colluding with the applicant to obtain an alternative reference in order to avoid disclosure by Camden of his record with them. Mr Yeboah was convinced that there was no evidence to justify this accusation. He thought it displayed the degree of mistrust with which this African personnel officer was regarded by housing management. The Tribunal rejected (at para 117B(v)) a contention by Mr Crofton that Mr Yeboah's investigation was inadequate. It had been a thorough investigation, and Mr Crofton had no reasonable grounds for believing that it had not been.
- The Adelana matter arose from a grievance produced by Mr Crofton against Mr Sugrue on 8th May. Mr Sugrue had overridden one of Mr Crofton's decisions and Mr Crofton complained that this action was designed to undermine his position, or was made recklessly or corruptly. Underlying this complaint was an allegation that Mr Nduke-Nzekwue had colluded with a fraudulent applicant in recruiting him. After due enquiry Mr Yeboah and Mr Barr concluded that there was no evidence to substantiate this allegation, either. The Tribunal said (at para 110) that they were assisted in reaching the conclusion that Mr Crofton had a mental impression that Africans were corrupt by his treatment of Miss Labinjo and Mr Nduke-Nzekwue, and his attitude towards them. They were, the Tribunal said, persons of good character by all normal standards.
- The outcome of these inquiries, into allegations which he knew to have caused great distress to the officers against whom they were made, led Mr Yeboah to write formally to Mr White on 31st August. He observed that there had now been three investigations arising from serious allegations of recruitment malpractice against two black personnel officers, all of which had been dismissed, and he wrote in very strong terms indeed (see para 24 of the decision) in defence of his staff. He said he hoped this was the final chapter in what he described as a concerted campaign of vilification and harassment against these officers.
- Mr White did not show Mr Crofton this memorandum, but he did send him the report into the Jegede affair. He then discussed it with him at a meeting on 3rd September. He asked Mr Crofton to apologise to Miss Labinjo in the light of the report. He agreed to do so. Mr White said that he was surprised to hear at the Tribunal that there was in fact no apology. The Tribunal found (at para 107a) that Mr Crofton was later to give dishonest evidence at two internal disciplinary hearings in 1995 about his alleged non-receipt of the Jegede report, at a time when he was suggesting that his attempts to uncover corruption in connection with Miss Jegede's recruitment were being thwarted by those, such as Mr Yeboah, who ought to have investigated and reported on the matter. The Tribunal also found (at para 107c) that Mr Crofton meant to mislead them in relation to the evidence he gave about an application form completed by Miss Jegede.
- The Tribunal was very critical, too, of Mr Crofton's conduct in relation to an incident which occurred in June 1991. At his disciplinary hearing in 1995 he was to complain that Mr Yeboah had overturned a decision to dismiss a fraudulent employee although that decision had been agreed with Mr Yeboah's deputy. The Tribunal set out the relevant facts in full (at para 117A(iii)) and found that Mr Crofton's account of the matter was such a distortion of the true facts as to amount to a lie. They described his distortion of the truth as gross.
- I have gone into the story of the Tribunal's findings on the 1990-1 period in some detail because it illustrates the complexity of the factual investigation they had to conduct. Again and again in later years Mr Crofton was to make very serious complaints about Mr Yeboah's failure to tackle fraud seriously. The Tribunal diligently recorded every complaint he made, whether these complaints were made in the 1992-3 period encompassed by Mr Craig's long inquiry or during the 1995 disciplinary and appeal hearings at Hackney, or during the Tribunal proceedings themselves. They made findings of fact on all these matters. They repeatedly found that Mr Crofton had re-invented history, and that he had been making accusations against Mr Yeboah which he knew not to be true, and had no reasonable grounds for believing to be true. Even if the Employment Appeal Tribunal had any function as an appellate tribunal of fact, it was vastly disadvantaged in the task it undertook because it did not hear witnesses or have to concern itself with all the detail which it was the Tribunal's task to unravel during an extremely long hearing.
- I will now turn to the matter of Mr Amadi and his housing association which so greatly influenced the Employment Appeal Tribunal. One of the many charges which Mr Crofton levelled against Mr Yeboah was that he and Councillor Hibberd had raised concerns about rigged interviews with him, but that despite his assurances Mr Yeboah never undertook any investigation, and he subsequently denied to Councillor Hibberd that he had said he would respond to her concerns. Mr Crofton told the Tribunal that Councillor Hibberd had raised this matter at her meeting with him and Mr Yeboah on 22nd October 1990 (see para 147 above). The Tribunal considered (at para 117A(vii)) two notes of this meeting. One of these was Mr Yeboah's own note contained in a bound volume, and the other was Mr Crofton's note, produced on a loose piece of paper, with the date "October 1990" written on it in different ink. Mr Yeboah's note made no mention of Mr Amadi. Mr Crofton's note included a reference to Mr Amadi and Petadist.
- The Tribunal gave their reasons for not accepting Mr Crofton's note as genuine. They reminded themselves that at the meeting on 29th October the only reference to these matters had resulted in the task, allotted to Ms Adrien, of investigating Mr Amadi's conduct. They added that after Mr Crofton had made no complaint about Ms Adrien's report, the matter of Mr Amadi was only raised again when a letter was written to the Secretary of State about him, and that this was referred to internal audit. At that stage Mr Yeboah had attended a meeting with Mr Sugrue and one of the council's audit officers to discuss the matter. They said that an investigation was not then proceeded with because of the inadequate evidence, although the matter was referred to the police. The Tribunal was here referring to a letter written in March 1991 to a Home Office minister in which a number of colourful allegations were made against Mr Amadi.
- When the Employment Appeal Tribunal looked into the matter, they formed the impression that there was evidence which the Employment Tribunal did not properly consider which tended to show that quite serious complaints had come to Mr Yeboah's attention about the activities of Mr Amadi and his housing association and that he did not investigate them properly.
- I have considered carefully all the evidential material on which the Employment Appeal Tribunal placed reliance while they were conducting their own investigation into the facts. For all practical purposes all this evidence was before the Employment Tribunal, although the Employment Appeal Tribunal did not always understand this to be the case. For instance, a record of Councillor Hibberd's oral evidence in 1995 was before the Tribunal. Virtually all Mr White's most important notes were either before the Tribunal or were read to the Tribunal. The letter to the Home Office, with its colourful description of the rumours about Mr Amadi's activities, was before the Tribunal. So were most of the later notes on which the Employment Appeal Tribunal placed reliance.
- Mr Crofton was to a great extent the author of his own misfortune if he feels aggrieved that the Tribunal did not examine all the details of the Amadi/Petadist affair with the same meticulous thoroughness as they examined all the many, many other complaints he made against Mr Yeboah which they found to be groundless. It is possible that the Tribunal might have expressed themselves in some respects somewhat differently if they had considered all the points canvassed by the Employment Appeal Tribunal on this topic. But the fact remained that Ms Adrien carried out the only investigation agreed upon by Hackney's chief officers at their meeting on 29th October 1990. Mr Crofton did not at that stage suggest any wider investigation was required, and he later made no immediate complaint about her report. It was also the case that Mr Yeboah had no direct line management responsibility for Mr Amadi, and he therefore could not initiate any investigations on his own account.
- In my judgment, this case reveals the dangers that lurk in the path of an appeal tribunal which has no jurisdiction to hear appeals on fact and which allows itself to be lured into a factual investigation, founded on wholly unparticularised allegations of perversity, and with no assistance other than that which the embattled lay litigants were able to give the tribunal themselves. In our court we benefited greatly from the help we were afforded by Ms Monaghan. Although she was retained to appear for Mr Yeboah, she gave an enormous amount of help both to the court and to Mr Crofton in enabling us all to find our way round over 20 lever-arch files of papers and to understand what happened and what did not happen before the Tribunal.
- I am satisfied that the matters I have set out in this judgment, coupled with the matters discussed by Mummery LJ in his judgment, which I have read in draft, reveal no error of law on the part of the Tribunal. For the rest, I agree with Mummery LJ's judgment. I, too, would therefore allow this appeal and restore the decisions of the Employment Tribunal.
| Heading | Para No. |
| Lord Justice Mummery | |
| The Appeals: Introduction | 1 |
| The Approach of the Court of Appeal | 9 |
| General Background | 14 |
| A. Application No 56617/94 presented on 6 October 1994 [Recruitment Fraud] | 21 |
| B. Application No 69479/94 presented on 16 December 1994 [Sabbatical leave for Ms Warnock] | 42 |
| C. Application No 23230/95 presented on 21 April 1995 [Investigation into immigration status and into criminal background (The Police List case)] |
47 |
| Employment Tribunal Decisions: General Approach | 56 |
| The Relevant Law | 58 |
| The General Conclusions of the Employment Tribunal | 59 |
| The General Conclusions of the Employment Appeal Tribunal | 61 |
| A. Application No 56617/94 | 62 |
| B. Application No 69479/94 | 65 |
| C. Application No 23230/95 | 67 |
| General Conclusions on this Appeal | 69 |
| Particular Grounds of Appeals Except Perversity | |
| A. Personal and vicarious liability for Race Discrimination in Employment Cases | 71 |
| B. Comparator | 73 |
| C. Burden of Proof | 76 |
| D. Order of issues | 84 |
| E. Conduct of Tribunal Hearing | 86 |
| F. Defences of Public Policy and Privilege | 90 |
| Perversity Ground | |
| A. General | 92 |
| B. The Sabbatical Leave for Ms Warnock Issue | 97 |
| C. The Police List and Criminal Enquiry Issue | 105 |
| D. The Recruitment Fraud Issue | 109 |
| Result | 123 |
| Sir Christopher Slade | 124 |
| Lord Justice Brooke | 125 |
Lord Justice Mummery:
The Appeals: Introduction
The Approach of the Court of Appeal
General Background
The Employment Tribunal Proceedings
A. Application No 56617/94 presented on 6 October 1994 [Recruitment fraud].
" I believe that the allegations which I actually made are all capable of being substantiated."
"…systematic recruitment fraud was a problem that began to emerge only in early 1995. At that stage, in order to deal with it, Mr Yeboah instructed Miss Reynolds to undertake an enquiry and set up a Recruitment Working Party. Prior to early 1995, there was some recruitment fraud, but what became apparent in early 1995 was that organisations which seemed to be bona fide had been established to provide false references."
B. Application No 69479/94 presented on 16 December 1994 [Sabbatical leave for Ms Warnock].
C. Application No 23230/95 presented on 21 April 1995 [Investigation into immigration status and into criminal background (The Police List Case) ].
Employment Tribunal Decisions: General Approach
" We have made findings of primary fact from which we have drawn inferences. We have looked at the totality of the primary facts as found in all of the seven cases in order to see if it is legitimate to infer that the acts of discrimination complained of were on grounds of race or constituted acts of victimisation. We have directed ourselves that a fragmented approach would have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. This has been of particular importance in considering the conduct of Mr Crofton over an extended period of time.
The assessment of the parties and their witnesses, when they give evidence, also forms an important part of the process of inference…..It is rare that a Tribunal has such lengthy opportunity for assessing the parties and witnesses, and that has also assisted us in drawing, or not drawing inferences of racial discrimination."
The Relevant Law
The General Conclusions of the Employment Tribunal
i) Mr Crofton conducted a campaign against Mr Yeboah manifested by, and consisting of, a long series of allegations commencing in June 1992 and continuing in 1993, 1994 and 1995 and, indeed, in the Employment Tribunal.ii) Mr Crofton believes that Africans, particularly West Africans, have a propensity to commit fraud. He exhibited a distrust of Africans in actions described by the tribunal. He made the assumption that, because (as he perceived it) all Africans were fraudulent, Mr Yeboah was also fraudulent.
iii) Mr Crofton's explanation for making the allegations was that he believed that they were true, or that he reasonably believed them to be true.
iv) The tribunal did not believe that the allegations were true or that Mr Crofton reasonably believed them to be true. The tribunal formed the view that Mr Yeboah was a person of integrity and an honest witness. The tribunal did not feel able to place their confidence in Mr Crofton as a witness.
v) In cases where there was evidence of an independent witness or contemporaneous documentation which could be checked, it was transparently clear that Mr Crofton could not have believed the allegation to be true. The "transparent cases" identified by the Employment Tribunal assisted it in coming to the same conclusion in respect of all the allegations.
vi) Mr Crofton had not made similar allegations against any non-African person, apart from an isolated incident involving Mr Sugrue, another employee of the Council.
vii) By making allegations of corruption, of covering up fraud and of improper conduct Mr Crofton treated Mr Yeboah less favourably than he treated or would treat other persons. It was less favourable treatment than his treatment of non-African staff.
viii) The effective cause for the allegations was Mr Yeboah's race. But for his race Mr Yeboah would never have been subjected by Mr Crofton to such treatment.
ix) The making of the allegations caused Mr Yeboah considerable distress over a long period of time. Such allegations against him as Head of Personnel were bound to have an adverse impact on him and an impact on others' perception of him.
The General Conclusions of the Employment Appeal Tribunal
A. Application No 56617/94
B. Application No 69479/94
C. Application No 23230/95
General Conclusions on this Appeal
Particular Grounds of Appeal Except Perversity
A. Personal and Vicarious Liability for Race Discrimination in Employment Cases
B. Comparator
C. Burden of Proof
" In considering this question we have firstly looked to see if Mr Crofton has provided a non-racial explanation for making [the allegations], and this has required us to consider whether the allegations are true, or whether Mr Crofton believed them to be so on reasonable grounds."
"the onus would be on [Mr Yeboah] to disprove the "non-racial" explanations and/or show that [Mr Crofton] did not have a belief on reasonable grounds."
D. Order of Issues
E. Conduct of Tribunal Hearing
" conduct the hearing in such manner as it considered most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
F. Defences of Public Policy and Privilege
Perversity Ground
A. General
"It is not acceptable for an appellant to state as a ground of appeal simply that "the decision was contrary to the evidence" or that " there was no evidence to support the decision"or that "the decision was one that no reasonable tribunal could have reached and was perverse"or similar general grounds, unless the notice of appeal also sets out full and insifficient particulars of the matters relied on in support of those general grounds".
B. The Sabbatical Leave for Ms Warnock Issue
"H) That Sam Yeboah rewarded Cathy Warnock (at that time an employee in the central administration section of the Race Realtions Unit) for signing his naturalisation papers in 1985 by awarding her a sabbatical."
C. The Police List and Criminal Enquiry Issue
D. The Recruitment Fraud Issue
Result
Sir Christopher Slade:
Lord Justice Brooke:
"Ground 13: Perversity
This ground of appeal is largely unparticularised and so cannot be responded to. Counsel for SY has made the observation that the lack of particulars means the ground cannot be responded (and accordingly sustained) at the last interlocutory hearings. The Employment Appeal Tribunal has agreed."