England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th January 2005

Lord Justice Mummery :

General Introduction

1. This appeal poses a challenging question on the Human Rights Act 1998 (the 1998 Act) and the right to a fair trial under article 6(1) of the European Convention on Human Rights (the Convention): what is their impact on the right of appeal in a case where an employment tribunal failed to promulgate the decision under appeal within a reasonable time of the conclusion of the trial hearing?
2. Under article 6 a litigant has the right to the determination of a tribunal "within a reasonable time": Porter v. Magill [2002] 2 AC 357 per Lord Hope at paragraph 108. This is in addition to the right to a fair trial within a reasonable time. Article 6 does not lay down what is a reasonable time. It does not even attempt to identify any of the factors relevant to determining what is a reasonable time. The question obviously depends on all the circumstances of the particular case: the nature of the tribunal, its jurisdiction, constitution and procedures, the subject matter of the case, its factual and legal complexity and difficulty, the conduct of the tribunal and of the parties and any other special features of the situation in which delay has occurred.
3. The likely effects of delayed decision-making, which can be serious, are relevant in determining what is a reasonable time. A tribunal's delay prolongs legal uncertainty and postpones finality. It increases anxiety in an already stressful situation. It may cause injustice. A claimant in the right is wrongly kept out of his remedy and a defendant in the right has to wait longer than is reasonable for the allegations and claims against him to be rejected.
4. It is self evident that delay may also have a detrimental effect on the quality and soundness of the decision reached. This is more likely to occur where the decision turns less on the interpretation and application of the law than on the resolution of factual disputes, on which the tribunal has heard contradictory oral evidence from witnesses. Excessive delay may seriously diminish the unique advantage enjoyed by the tribunal in having seen and heard the witnesses give evidence and may impair its ability to make an informed and balanced assessment of the witnesses and their evidence.
5. Indeed, this is the very complaint in the race discrimination case under appeal. The hearing before the employment tribunal took place 2½ years ago. Unfortunately, over a year then passed before the tribunal promulgated its decision in favour of the complainant Mr Yaya Bangs against his employer, Connex South Eastern Limited (Connex). Connex then successfully appealed to the employment appeal tribunal on the ground of unreasonable delay, which, it contended, had resulted in a decision against it flawed by errors and omissions attributable to the delay.
6. The novel legal aspect of this appeal is that statute restricts the right of appeal against the decision of an employment tribunal. This is not unusual. A restricted right of appeal is common to most specialist statutory tribunals and inquiries. By s 21(1) of the Employment Tribunals Act 1996 the right of appeal is limited to questions of law arising from any decision of, or arising in any proceedings before, an employment tribunal. A question of law is not confined to misconstruing or misapplying substantive law in the decision itself. It may also arise from a procedural error or irregularity in the conduct of the proceedings before the tribunal, which, depending on the nature and gravity of the error or irregularity, may lead to a successful appeal and even to an order for the case to be re-heard by another tribunal.
7. The tribunal's findings of fact, including findings on the credibility of witnesses, can only be challenged on appeal if it is established that no reasonable tribunal could have made the findings in question. A perverse decision is erroneous in law. It must be shown by the appellant that material findings of fact by the tribunal are perverse because, for instance, they are unsupported by any evidence, or they are contrary to uncontradicted evidence or they are plainly wrong for some other reason.
8. The restricted right of appeal from an employment tribunal is significantly different from the right of appeal in an ordinary civil case, where there is a right of appeal on both fact and law. In ordinary civil appeals the question is not whether the court substantively or procedurally erred in law, but whether the decision of the lower court was "wrong": CPR Part 52.11(3). A decision of the court below is wrong if it erred in law and/or it erred in fact. The court may set the decision aside and order a new trial. An appeal may also succeed where, even though the decision of the lower court was not "wrong", it was unjust because of a serious procedural or other irregularity.
9. In cases where there is a right of appeal on both fact and law it has been held that the appellate approach to cases of excessive delay is to ask whether, as a result of the delay, the decision under appeal is "unsafe" and whether it would be "unfair or unjust to let it stand": see the judgment of the Privy Council delivered by Lord Scott in Cobham v. Frett [2001] 1WLR 1775 at 1783D. Although it was not a case to which article 6 of the Convention applied, the approach is, in my judgment, compatible with the Convention article and the jurisprudence on it.

" In their Lordships' opinion, a legitimate basis on which the Court of Appeal could assert the right to disagree with the judge's evaluation of the evidence and of the witnesses was absent. It can be easily accepted that excessive delay in delivery of a judgment may require a very careful perusal of the judge's findings of fact and of his reasons for his conclusions in order to ensure that the delay has not caused injustice to the losing party. It will be important to consider the quality of the judge's notes, not only of the evidence but also of the parties' submissions. In the present case the judge's notes were comprehensive and of high quality. As to demeanour, two things can be said. First, in their Lordships' collective experience, a judge re-reading his notes of evidence after the elapse of a considerable period of time can expect, if the notes are of the requisite quality, his impressions of the witnesses to be revived by the rereading. Second, every experienced judge, and and Georges J was certainly that, is likely to make notes as the trial progresses recording his impression being made on him by the witnesses. Notes of this character would not, without the judge's permission or special request being made to him, form part of the record of an appeal. They might be couched in language quite unsuitable for public record. In the present case delay, with a consequent dimming of the judge's recollection of the evidence and of the witnesses demeanour, was not a ground of appeal. In these circumstances it is, in their Lordships' opinion, impermissible to conclude from the fact of a 12-month delay that the judge had a difficult task, let alone an "impossible" one as Singh JA suggested in remembering the demeanour of witnesses.

In their Lordships' opinion, if excessive delay, and they agree that 12 months would normally justify that description, is to be relied on in attacking a judgment, a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant."

The Issue

10. The main issue on this appeal is whether, since the 1998 Act came into force, the same or a similar approach is available in appeals from an employment tribunal. Is the fact of unreasonable delay, without more, available as an independent ground of appeal? Is it sufficient, as the employment appeal tribunal held in this case, for the appellant to establish that the decision is "unsafe" because the unreasonable delay has resulted in factual errors in or omissions from the decision, even though, in the absence of perversity, such errors or omissions would not themselves normally raise a question of law? Or is unreasonable delay in giving the decision only another factor, which eases the appellant's Sisyphean task in establishing that the decision was perverse and therefore erroneous in law, as no reasonable tribunal could have reached it?
11. A striking feature of the decision of the employment appeal tribunal, from whose decision Mr Bangs appeals, is that, in reliance on article 6 of the Convention, it allowed the appeal by Connex against the finding of direct race discrimination without expressly identifying an error of law on the part of the employment tribunal. The appeal was allowed on the ground that the delayed decision of the employment tribunal was "unsafe," as the delay had led to errors and omissions in the findings of fact and reasoning of the employment tribunal.
12. Mr Bangs accordingly complains that, on grounds which are not permitted by the restrictive provisions of s21(1) of the 1996 Act, he has been deprived of the benefit of the decision which the employment tribunal reached in his favour. This result can only be justified (a) if the unreasonable delay and/or its consequences raise a question of law within s21(1); or (b) if the 1998 Act and the incorporation of article 6(1) of the Convention require the court to interpret s21(1) of the 1996 Act so that it expands the grounds of appeal beyond questions of law.
13. I should mention that, although forceful submissions about the injustices and dangers of delay have been made by Mr Daniel Matovu, appearing for Connex, the general significance of the delay point should not be overstated. In fact, problems resulting from delayed decisions rarely arise: although overstretched for much of the time, most tribunals deliver their decisions within a reasonable time.
14. Employment tribunals have a good record for the prompt despatch of cases. The decisions are often announced at the end of the trial hearing. In recent years, however, there has been a growing tendency, which I would not discourage (it actually happened in this case), for tribunals to direct the parties to make their final submissions in writing. Tribunal cases have become more complex and difficult, both factually and legally. The practice of receiving written submissions economises on valuable hearing time, but the decision has to be postponed until after the written submissions have been exchanged and considered by the tribunal. Summary reasons are given. If requested, extended reasons for the decision are supplied. In the vast majority of cases the process of determination is completed within a reasonable time of the tribunal hearing the evidence and argument.
15. Those who are responsible for the administration of the employment tribunal system, as well as those who sit in the tribunals, are aware that the cause of justice in employment disputes is not well served by inexcusable tardiness in promulgating decisions, any more than, at the other extreme, it is well served by tribunals succumbing to a rush to judgment in cases that require time to reflect on the evidence, the arguments and any possible disagreements among the members of the tribunal. It takes time to produce a well-drafted decision in a difficult, complex, sensitive or unusual case.

The Appeal and the Cross Appeal

16. Mr Bangs is the appellant. He has permission from Peter Gibson LJ to appeal from the order of the employment appeal tribunal dated 2 March 2004. His complaint of direct race discrimination, which had succeeded in the employment tribunal, was remitted for re-hearing by a different employment tribunal. By the time that a re-hearing of his complaint takes place, more than five years will have passed since the alleged acts of discrimination suffered by him in 1999.
17. The re-hearing was ordered on the ground that more than a year passed from the end of hearing the evidence (12 July 2002) to the date when the employment tribunal promulgated a decision (18 August 2003), which was "unsafe" due to factual errors and omissions resulting from the delay. The decision was certainly not given "within a reasonable time." The time taken far exceeds the normal and reasonable tribunal target period of 3½ months. The appeal tribunal accordingly allowed the appeal by Connex and set aside the decision that Connex had unlawfully discriminated against Mr Bangs on racial grounds by subjecting him to disciplinary, dismissal and demotion procedures in the summer of 1999 before ultimately "re-instating" him in January 2000 following a successful internal appeal against the dismissal decision.
18. The employment tribunal had reached a unanimous decision. It heard 8 days of evidence. The hearing started on 6 March 2002. After 3 days of evidence the hearing was adjourned for a further three days of evidence on 10,11 and 12 July 2002. Written submissions of the parties were, as directed, exchanged. They were considered in chambers by the chairman and the lay members on 22 and 23 August 2002. They did not complete their discussions. According to the chairman, who rightly regretted that the process had taken too long and apologised for the delay, he compiled a draft of the findings of fact, so far as they went at that stage, in preparation for the next day of discussions, which did not take place until 8 April and 25 June 2003 when further meetings were held in chambers. The chairman sent the draft findings to the members for their comments in the further discussions. It is not clear from the chairman's letter explaining the delay exactly when he compiled the draft findings of fact. After the further meetings the extended reasons were finalised. They were sent to the parties just over 12 months after the tribunal had completed the hearing of the oral evidence. It was a detailed decision running to 72 paragraphs, many of which deal with the conflicting evidence given by witnesses to the tribunal, the reasons for the findings on credibility of the witnesses and the tribunal's findings of fact on the relevant issues.
19. Connex has permission from Peter Gibson LJ to cross appeal. It contends that its appeal to the employment appeal tribunal should have been upheld on other grounds: instead of remitting the case for re-hearing the appeal tribunal should have set aside the decision of the employment tribunal and dismissed the complaint, as the findings of direct race discrimination were in respect of the acts complained of and of the inferences made, unsupported by an adequate evidential basis and were perverse.
20. The judgment given on behalf of the employment appeal tribunal by its President, Burton J, was multiple in that it also covered appeals in other cases of delayed decisions heard with this case. It is a valuable judgment on the general problem of how to deal with appeals where there has been excessive delay in the promulgation of a tribunal decision. I agree with the general guidance given in the judgment on the steps which should be taken to avoid delays in employment tribunals before, during and after the substantive hearing: see paragraphs 6-10, 16 and 36 of the appeal tribunal judgment.
21. In this court the arguments focused primarily on the findings of credibility in the decision of the employment tribunal and on the difficult question whether the shortcomings in the decision identified by the employment appeal tribunal were sufficient in law to justify the decision to order a complete re-hearing of the case by a different tribunal. A joint application by the parties for the production of the chairman's notes of evidence was refused by me. I took the view that it was possible for Connex to make its criticisms of the delayed decision in the context of a question of law and for this court to deal with them without requiring production of the notes of evidence. A more limited renewed paper application by Connex was not granted. As will be explained below, the employment appeal tribunal had also declined to order production of the chairman's notes.

Background Facts

22. Mr Bangs is a black African born in Sierra Leone. In 1992 he came to England. In 1994 he obtained employment with British Rail South Western as a depot attendant. From March 1996 he was employed as a ticket examiner, for which he had received some training. In 1997/1998 his employment was transferred to Connex on its obtaining the rail franchise and taking over the undertaking from British Rail.
23. Mr Bangs was based at London Bridge Station, where he was a member of the revenue protection Team B of about 10 Revenue Inspectors supervised by Mr Stephen Laming, who was away sick for about 6 months in the crucial period from mid-July 1999. His tasks involved checking customers' tickets, issuing fares and collecting money from passengers for unpaid and penalty fares. Until he was issued with a machine for swiping cards in July 1999, he performed his duties by filling in slips by hand. This involved recording details of credit cards and of debit cards, which had become an acceptable method of paying fares and penalties.
24. On 28 September 1999 Mr Bangs was dismissed following investigations into the high incidence of "chargebacks" at London Bridge Station, a disciplinary interview and a disciplinary hearing. The dismissal process passed through a number of stages. It is convenient to summarise the essential facts rather than to quote lengthy extracts verbatim from the tribunal decision, which contains much evidential material irrelevant to the limited grounds of appeal.
25. The essential facts are these:

(1) In September 1999 an investigation was ordered by the Commercial Manager, Mr James Adeshiyan (a black African), into the excessive number of credit/debit card "chargebacks" at London Bridge, which was causing concern about the collection of unpaid fares and penalty fares. Connex was alerted to the problem by the SEMA Group, which monitored the financial activities of Connex. "Chargebacks" occur when the number of the credit/debit card written by the ticket examiner on the unpaid/ penalty fare slip turns out to be invalid, because it has been incorrectly recorded or is fictitious and cannot be related to known accounts. The result is that the relevant credit/debit card company refuses to accept liability to pay the charge.

(2) The investigation was to be conducted by the Accounts Centre Manager at Gravesend, Mr Patrick Byrne. He is white. Mr Byrne was told by a Mr Paul Roberts, who was the acting manager of Mr Bangs, that Mr Bangs was responsible for a total of 62 chargebacks. The employment tribunal found that this figure was incorrect. The list of transactions prepared by Mr Paul Rose, a member of the prosecution department's fraud team, identified 40 chargebacks as belonging to Mr Bangs.

(3) The British Transport Police reported on 16 September 1999 that the information collected by them tended "to corroborate that criminal deception is involved" and asked to be provided with details of the "suspect." Mr Bangs was the suspect, as a much higher number of the credit card chargebacks appeared to relate to slips filled in by him, as compared with slips filled in by others. He denied that there was any fraud and maintained that the mistakes were simply errors.

(4) There had been problems with Mr Bangs' chargebacks earlier in the summer. In May 1999 a summary of chargebacks had been produced by the Accounts Centre to Mr Patrick Byrne, who wrote on 12 May 1999 to the Team Train Manager for London Bridge, Mr Daniel Waite, asking him to brief staff on the correct way to complete the manual credit card vouchers or slips. At a meeting in June/July 1999 with Mr Laming and others Mr Bangs himself had identified about 20 of the credit/debit card slips as his. The matter was treated as a training issue. It was decided to provide Mr Bangs with a hand-held swipe machine to issue tickets or penalty fares and to avoid similar mistakes in the future. In July 1999 he was issued with a swipe machine by Mr Laming. The last charge back attributed to Mr Bangs was on 9 July 1999, that is at about time when he was issued with the hand held machine.

(5) On 17 September 1999 Mr Byrne conducted a disciplinary interview of Mr Bangs. Mr Rose, the fraud officer, was present as an observer. The interview was conducted by Mr Byrne, the tribunal found, "in an angry and aggressive manner" and in the erroneous belief that Mr Bangs was responsible for 62 chargeback transactions. He did not check how the transaction slips had come to be identified with Mr Bangs, even though Mr Rose had identified 40 transactions attributable to Mr Bangs (still much higher than the chargebacks attributable to other white and Black African ticket inspectors). It was incorrectly put to Mr Bangs that a detailed check had established 62 transactions as his. Mr Rose, for reasons of his own, took no steps to correct Mr Byrne's error about the number of transactions attributable to Mr Bangs. Mr Byrne failed to pursue enquiries about the possibility that the fresh investigation related to the same chargebacks as had been dealt with earlier in the summer and resolved as a training issue and that no further chargebacks were attributable to Mr Bangs after the issue of the hand-held machine. The employment tribunal accepted the evidence of Mr Bangs, which was disputed by Mr Byrne, that at the beginning of the interview Mr Byrne asked Mr Bangs if he was Nigerian, a question which Mr Bangs refused to answer, as he felt that it was irrelevant. The employment tribunal held that Mr Byrne's question was a remark of a racial nature displaying racially stereotypical assumptions about the likelihood of Mr Bangs, as a black African, having committed dishonest acts involving the company's money (paragraph 65). The tribunal regarded the evidence of Mr Bangs as more consistent, trustworthy and reliable than that of Mr Byrne and Mr Rose, which contained "numerous inconsistencies" and departed from their witness statements. At the end of the interview Mr Bangs was suspended from duty with pay. Mr Byrne handed over the case to Mr Daniel Waite, the Connex Revenue Protection Manager.

(6) By letter of 21 September 1999 Mr Bangs was informed by Mr Waite that he was charged with " the misappropriation of company monies." He was summoned to a disciplinary hearing on 24 September, later re-fixed for 28 September. No further particulars of the charge were provided to him in the letter.

(7) On 28 September 1999 Mr Daniel Waite conducted the disciplinary hearing. He is white. Mr Bangs attended with a representative, Mr Appiah. The employment tribunal accepted the evidence of Mr Bangs that Mr Waite accused him of getting his "brothers" to help him defraud Connex. The employment tribunal held that this was a remark of a racial nature displaying the same assumptions as the Nigerian remark and was intended to be a reference to Black Africans. The tribunal found that the evidence of Mr Waite on various matters was "wholly unreliable and unconvincing." At the end of the disciplinary hearing Mr Bangs was dismissed. Mr Waite rejected the defence of mistake advanced by Mr Bangs to the allegations about the chargebacks. He accepted in his evidence to the tribunal that he did not know how the alleged "misappropriation of company monies "with which Mr Bangs was charged took place or how Mr Bangs gained from what he, Mr Waite, believed to be fraudulent transactions.

(8) By letter dated 29 September the dismissal without notice was confirmed by Mr Waite. The letter did not state any reason for the dismissal of Mr Bangs. It informed him of his right of appeal.

(9) On the same day Mr Bangs both wrote a letter to his MP (Ms Siobhain McDonagh) and lodged an appeal by letter against the decision to dismiss him. In neither letter did he refer to race discrimination in general, nor to the specific "Nigerian" remark by Mr Byrne, or to the "brothers" remark by Mr Waite.

(10) On 1 December 1999 Mr Bangs presented an originating application to the employment tribunal, complaining of unfair dismissal and race discrimination. Although he alleged that "the office is discriminating against black Africans in the office," he made no mention in the application or in his first witness statement of racial remarks by Mr Byrne or Mr Waite. Those matters were mentioned for the first time in the further and better particulars supplied by him a year later on 21 December 2000: see paragraphs 4 and 10.

(11) On 28 January 2000 Mr Bangs was "re-instated" with immediate effect following the adjourned hearing of his internal appeal to Mr Devon Price, the Connex Employee Relations Manager. Mr Price is a black West Indian. Mr Bangs was not in truth re-instated in the sense of being given back his old job. He was appointed to a new position as a station assistant at Cannon Street with a restriction that he should not be permitted to handle the company's money again on the basis that he could not be trusted to work with money again. Although Mr Price said that Mr Bangs had not committed fraud by "misappropriation of company monies", as charged, he concluded that he had been "totally careless and grossly negligent" and had chosen to work outside the rules of the company and had "cost the business a lot of money." The employment tribunal found that Connex had not demonstrated that Mr Bangs had actually benefited from any alleged fraud, or that there was any possible way in which he could have benefited from the alleged fraud, or that Connex had suffered any loss at all as a result of the chargebacks. The tribunal held that Mr Price had acted on the mistaken assumption that Mr Bangs had continued to generate a second tranche of chargebacks after he had been spoken to by management staff in July 1999 about the earlier chargebacks, even though there was no evidence in support of that conclusion. Further he did not interview another more senior Connex employee, Mr Paul Osborne, to check on Mr Bangs' defence that he had copied Mr Osborne's short method of completing debit slips. The tribunal held that Mr Price had made assumptions that Mr Bangs was guilty of fraud. His investigation surrounding the chargebacks was "careless, cursory and slipshod."

26. A year later, on 11 December 2000, Mr Bangs presented a second originating application to the employment tribunal. He expanded his claim for race discrimination to cover the conduct of the internal appeal by Mr Price and his demotion. He alleged that, although other people had been issuing tickets in the same way as him, he was the only one who had been demoted for doing so. He did not mention the racial remarks allegedly made at the interview and the disciplinary hearing. He re-iterated that, in filling out the fare slips, he copied the way in which it was done by Mr Osborne.
27. Mr Bangs later withdrew his unfair dismissal claim, as Connex had re-employed him; see directions order sent to the parties on 12 January 2001. By a further decision sent to the parties on 27 June 2001 the employment tribunal extended the time for the second race discrimination application.

The employment tribunal decision

28. The employment tribunal found that Connex had discriminated against Mr Bangs on racial grounds (a) in subjecting him to a disciplinary process; (b) in the manner in which it conducted the disciplinary investigation and disciplinary procedure; (c) in dismissing him from his job as a ticket examiner; and (d) in demoting him from that post and imposing a restriction on him carrying out any job which involved handling cash.
29. At the employment tribunal hearing evidence was given by Mr Bangs on his own behalf. Evidence for Connex was given, both in witness statements and orally, by Mr Adeshiyan, Mr Byrne, Mr Waite and Mr Price, all of whom, as noted above, were involved at various times in the events giving rise to the complaints of unfair dismissal and race discrimination. Evidence was also given by Mr Paul Osborne, the ticket inspector mentioned earlier, Mr Stephen Laming, a revenue protection supervisor, and Mr Rose, an acting member of Connex's fraud team since 1999.
30. There were stark conflicts of evidence on two important points. Mr Bangs gave evidence alleging that the "Nigerian" racist remark was made by Mr Byrne at the disciplinary interview on 17 September 1999 and the racist "brothers" remark by Mr Waite at the disciplinary hearing on 28 September 1999. The allegations about the remarks and their racial tainting were disputed.
31. As indicated above, the tribunal accepted the evidence of Mr Bangs and found as a fact that the remarks were made. That finding was central to its decision on race discrimination in favour of Mr Bangs. In considering the conflict of evidence the tribunal had to make findings on the credibility of the witnesses. The tribunal's assessment of the witnesses was that Mr Bangs was "consistent, trustworthy and reliable" (paragraph 24) and his evidence was preferred over the evidence relied on by Connex; as for Mr Byrne, he conducted the disciplinary interview in "an angry and aggressive manner" (paragraph 27) and had already formed the view that Mr Bangs was guilty of dishonesty; Mr Waite's evidence concerning the conduct of the disciplinary hearing was "wholly unreliable and unconvincing" (paragraph 32) and he embarked on the hearing "in the firm belief that [Mr Bangs] was guilty of fraud and dishonesty" and trimmed his evidence to accord with that given by Mr Byrne; and Mr Price displayed " a staggering lack of familiarity with the salient facts of the case and the documentation on which he claims to have based his decision" (paragraph 67).
32. On the specific allegations relevant to the allegations of race discrimination the employment tribunal found facts indicating "racially stereotypical assumptions" about the likelihood of Mr Bangs, as a black African, having committed dishonest acts involving the company's money (paragraph 65). The employment tribunal considered the treatment of Mr Bangs by the Connex staff in the application of the disciplinary process to him, as compared to how it would have been applied to a hypothetical employee, who was not black African. It looked for an explanation for unreasonable conduct during the disciplinary process. It concluded that, in the absence of a satisfactory explanation, it would have been prepared to draw an inference that Mr Bangs was treated less favourably on racial grounds in the respects complained of by him.
33. It was, however, unnecessary to rely upon an inference, as the tribunal held that there was credible and the clearest direct evidence of unlawful discrimination in the form of the remarks referred to in the summary in paragraph 25 above. The tribunal concluded (paragraph 69) that it was " a clear case of deliberate racial discrimination." The tribunal summed up its views as follows

"66. …..Mr Byrne and Mr Waite deliberately closed their minds to the existence of any innocent explanation for the chargebacks which had been attributed to the Applicant. They did so having made stereotypical assumptions about the Applicant as a Black African. They revealed that by making racially tainted remarks during the course of the disciplinary process. They had made up their mind from the outset that the Applicant, as a Black African, had embarked upon a scheme (which they did not understand and could not be bothered to investigate properly) in his capacity as a ticket inspector to defraud the company through the use of debit cards. All explanations were swept aside and all plausible lines of enquiry were blocked or ignored. They rode roughshod over normal disciplinary procedures. They would, in our view, not have behaved in that manner had the Applicant not been a Black African. They assumed that the Applicant was guilty of fraud and would accept his fate.

68. ….In our view Mr Price would not have disposed of the appeal in this manner had the Applicant not been a Black African. The inference which we draw is that Mr Price at first adopted Mr Byrne's and Mr Waite's assumption of the Applicant's dishonesty and then further assumed that the Applicant who struck us as a quiet, proud and dignified individual, would simply regard himself as lucky to have at least some form of employment and would acquiesce in the decision to demote him to station assistant with a cash handling restriction. To this extent the Applicant was regarded as expendable in an exercise which enabled Mr Price to avoid confronting the managers with what he must have realised to have been the Applicant's unjust dismissal at their hands. We have concluded that consciously or subconsciously this decision was made on racial grounds and was less favourable treatment of the Applicant than he would have received had he not been a Black African."

Employment appeal tribunal decision

34. After a valuable review of the authorities concerning delay in promulgating judicial decisions and a helpful summary of the legal principles derived from them, the appeal tribunal examined the extended reasons and concluded that there was no independent ground of appeal (e.g. error of approach to the question of a comparator or failure to examine non-discriminatory reasons for his treatment); that the case hung entirely on the credibility of Mr Bangs; and that the decision was "unsafe" as a consequence of the inordinate delay prior to August 2003 (paragraph 44.) It arrived at that decision without seeing the chairman's notes of evidence, having refused an oral application for the production of them in their entirety. There was no appeal against that refusal.
35. The approach of the appeal tribunal was broadly that adopted in the recent authorities on ordinary civil appeals, such as Cobham v. Frett (paragraph 9 above), holding that there is an independent ground of appeal where it is established that "delay made the decision unsafe" (paragraph 12), that "the result was unsafe as a consequence of the delay" (paragraph 13), that a material error or omission or a series of such errors and omissions in the decision show a real risk that the decision is "unsafe by virtue of the delay" (paragraph 15.1 and 15.2); that the errors due to the delay "cast doubt upon the decision or part of the decision"; and (paragraph 44) that there had been a failure of recollection by the tribunal and that "in the light of the errors and omissions…. the decision of the Tribunal is unsafe, as a consequence of the inordinate delay prior to August 2003." The appeal tribunal rightly emphasised that such causation was essential in challenging a decision on the ground of excessive delay.
36. The formulation of the test as to whether a delayed decision was "unsafe" was based on the Privy Council case of Cobham v. Frett cited in paragraph 9 above; and on the decision of the Court of Appeal Goose v. Wilson Sandford & Co (Transcript No 196 of 1998); and the decisions of the employment appeal tribunal in Barker v. The Home Office 7 August 2002 at paragraphs 19 and 30 ( EAT/804/01 and EAT/835/01 ); and Chinyanga v. Buffer Bear Limited at paragraph 39 (8 May 2003: EAT/0300/02 ).
37. The appeal tribunal identified errors in, and the omissions from, the employment tribunal decision. The principal criticism was the omission of the tribunal to consider evidence relating to the inconsistency or credibility of the evidence given by Mr Bangs. It held that the omission was "symptomatic of the inevitable lost recollection of the tribunal, which meant that its assessment of the Applicant and of the evidence was flawed by the delay."
38. The appeal tribunal accepted three specific criticisms of the extended reasons of the employment tribunal made by Mr Matovu. He repeated them in his excellent arguments in this court in support of his case that the employment tribunal forgot or failed to deal with matters leading to material errors and omissions, which rendered the decision unsafe by the passage of time.

(1) The extended reasons did not deal with Mr Bangs' failure to mention the two racist comments (the "Nigerian" and the "brothers" remarks) at an earlier stage when he wrote of his detailed complaints about the two meetings to his MP on 29 September 1999 (the contents of which the tribunal may have forgotten) or in the first originating application or in his first witness statement. This failure was relevant to the consideration of the inconsistency or credibility of Mr Bangs. As already indicated, the appeal tribunal concluded that the employment tribunal's failure to deal with this point was symptomatic of unreasonable delay.

(2) The employment tribunal did not understand or remember that the chargebacks, which were the subject of the charge, formed a subsequent tranche to that considered by Mr Roberts earlier in the summer of 1999. The appeal tribunal considered (paragraph 29) that the findings of the employment tribunal on this point were entirely wrong and that it was the kind of mistake which can arise as the result of the passage of time. This error caused the tribunal to underestimate the involvement of Mr Bangs in the chargebacks and to form a hostile opinion of the Connex personnel investigating the matter.

(3) The tribunal completely failed to refer to the evidence of Mr Osborne, which clashed with that of Mr Bangs on the question of the breakdown of chargebacks. The result was that the tribunal failed to resolve the conflict of evidence. Mr Bangs had given evidence that he used a short cut method for completing debit card details in imitation of what he understood was done by Mr Osborne and that that explained the insufficient record of the debit/credit card numbers. Mr Osborne denied ever completing slips in the short cut way, which Mr Bangs said that he had imitated and there was no evidence of a similar number of chargebacks attributable to Mr Osborne. The appeal tribunal regarded the failure to deal with the conflict of evidence as the most significant omission of the employment tribunal. It was relevant to the issue of the trustworthiness and reliability of Mr Bangs as a witness of truth.

Discussion of proper test

39. The appeal tribunal's criticisms of the employment tribunal decision must be assessed in the light of the correct legal principles governing an appeal from an employment tribunal.
40. In my judgment, there are difficulties in accepting the broad proposition formulated by the employment appeal tribunal at paragraph 15.2, that

"If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal. And the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal's decision."

41. That formulation was derived from the authorities on delayed judgments in ordinary civil cases, such as Cobham and Goose. In those cases the appellate court has wider powers of intervention than in the case of an appeal from an employment tribunal. The right of appeal in ordinary civil cases is not confined to questions of law. The appeal court may conclude that a decision is "wrong" because material factual errors in it or material omissions from it due to delay render it an "unsafe" decision on the facts or even on findings of the credibility of witnesses, and that it would be unjust or unfair to let the decision stand.
42. There are serious objections to transplanting the "wrong/unsafe decision" approach from an ordinary civil appeal to an appeal from the decision of an employment tribunal, where the right to appeal is confined by statute to questions of law. To do so would, in my view, enable appellants to challenge facts found by a tribunal, whose decision on the facts or on the claims could not be characterised as perverse. This would circumvent the policy of s 21(1) of the 1996 Act to confine tribunal appeals to questions of law. As I shall explain, this result is not justified by the 1998 Act or by article 6 of the Convention.
43. In my judgment, an appeal from an employment tribunal on the ground on unreasonable delay in promulgating its decision is governed by the following principles:

(1) It is confined to questions of law. s 21(1) of the 1996 Act says so in the clearest terms. In general, there is no appeal on the independent ground that the tribunal made erroneous findings of fact. The employment tribunal is the final arbiter of facts found by it so long as there was no error of law. It is not the function of the employment appeal tribunal or of this court to interfere with findings of fact by weighing the evidence and assessing its importance with a view to "correcting" erroneous findings of fact by the tribunal or requiring them to be re-litigated before another employment tribunal.

(2) No question of law arises from the decision itself just because it was not promulgated within a reasonable time. Unreasonable delay is a matter of fact, not a question of law. It does not in itself constitute an independent ground of appeal. Unreasonable delay may result in a breach of article 6 and possibly give rise to state liability to pay compensation to the victim of the delay, but it does not in itself give rise to a question of law, which would found an appeal challenging the correctness of the delayed decision and for obtaining an order reversing the delayed decision or for a re-trial. I agree with the appeal tribunal (paragraph 12) that in cases of delayed decisions

"… it cannot be just that there should be an automatic sanction of a re-hearing, because, quite apart from the adventitious loss to one or the other party of a result in his or her favour, that will only compound the problem, in leading to yet further delay and to the risk of yet further dimming of recollections."

(3) No question of law arises and no independent ground of appeal exists simply because, by virtue of material factual errors and omissions resulting from delay, the decision is "unsafe". A challenge to the tribunal's findings of fact is not, in the absence of perversity (see (4) below, a valid ground of appeal and there is no jurisdiction under s21(1) of the 1996 Act to entertain it.

(4) In order to succeed in a challenge to the facts found by the tribunal it is necessary to establish that the decision is, as a result of the unreasonable delay, a perverse one either in its overall conclusion or on specific matters of material fact and credibility. Perversity is a question of law within s21(1) of the 1996 Act. It is extremely difficult to establish in general (see Yeboah v. Crofton [2002] IRLR 634) and particularly where the challenge is to findings on credibility.

(5) It is not incompatible with article 6 of the Convention for domestic legislation to limit the right of appeal from an employment tribunal to questions of law. It was not argued that there was any such incompatibility.

(6) Even if it were incompatible with article 6 to limit appeals to questions of law, it is not possible by use of s 3(1) of the 1998 Act or otherwise to interpret s21(1) of the 1996 Act as expanding a right of appeal expressly limited to questions of law to cover questions of fact. To interpret s21(1) as allowing appeals to be brought because the decision is factually "unsafe" and the findings of fact were "wrong" would be an exercise in amending the Employment Tribunals Act 1996. It would be outside the scope of legitimate judicial interpretation.

(7) There may, however, be exceptional cases in which unreasonable delay by the tribunal in promulgating its decision can properly be treated as a serious procedural error or material irregularity giving rise to a question of law in the "proceedings before the tribunal." That would fall within s 21(1), which is not confined to questions of law to be found in the substantive decision itself. Such a case could occur if the appellant established that the failure to promulgate the decision within a reasonable time gave rise to a real risk that, due to the delayed decision, the party complaining was deprived of the substance of his right to a fair trial under article 6(1). Article 6 (1) guarantees a right to a fair trial. A point on whether or not a person has had a fair trial in the employment tribunal is capable of giving rise to a question of law. s21(1) does not, in my view, expressly or impliedly exclude a right of appeal where, due to excessive delay, there is a real risk that the litigant has been denied or deprived of the benefit of a fair trial of the proceedings and where it would be unfair or unjust to allow the delayed decision to stand. That could give rise to a question of law "in the proceedings before the tribunal," which are still pending while the decision of the tribunal is awaited. Although this interpretation of s21(1) is more restrictive of the right of appeal than in an ordinary civil case, it would be not be incompatible with article 6(1).

Conclusions

A. General

44. So the key question is whether, due to the unreasonable delay, there is a real risk that Connex has in substance been denied or deprived of the article 6 right to a fair trial of the race discrimination claim by Mr Bangs and whether it would be unfair or unjust to allow the delayed decision to stand?
45. This test is, on the one hand, less stringent than the perversity ground of appeal, but it is, on the other hand, more stringent than the "unsafe" decision test formulated and applied by the employment appeal tribunal, as it excludes an appeal on fact and insists on the existence of a question of law in accordance with the requirements of s21(1) of the 1996 Act. I do not agree with the indication given by the appeal tribunal (see paragraph 13 of its judgment) that it is possible to equate unsafeness of the decision and the loss of the right to a fair trial.
46. Mr Matovu submitted that there were three specific aspects of the extended reasons on which the employment tribunal can be justifiably criticised. It is necessary to inquire whether they establish that there is a real risk that, due to the delay, Connex has lost the benefit of its right to a fair trial.

(1) The late invention point

In making its favourable assessment of the credibility of Mr Bangs the employment tribunal omitted to address expressly the fact that he did not complain at the time to his MP or in his first originating application to the tribunal or for over a year afterwards of the two racist remarks, on which the tribunal accepted the evidence of Mr Bangs and placed much reliance in finding that there was a racial reason for the treatment of Mr Bangs in the various stages of the disciplinary and dismissal process. The absence of early complaint or the "late invention" was relevant in assessing the credibility of Mr Bangs. It was submitted that, due to the delay, the tribunal had probably overlooked or forgotten it.

I agree that it would have been better if the tribunal had expressly dealt with this point in its reasons for finding that Mr Bangs was a more credible witness than the witnesses called by Connex. But I do not infer from its absence that the Tribunal probably overlooked or forgot the point due to the passage of time. The letter to the MP was attached to the originating application. It was mentioned in the extended reasons. The "late invention point" was drawn to the tribunal's attention in the written submissions considered at the meetings in chambers to discuss the case and the chairman's draft findings. It is more probable than not that the tribunal had this point, as well as other points, in mind when it made its assessments of credibility and that the delay did not cause the tribunal to overlook or forget it.

(2) The employment tribunal erroneously and perversely, having regard to Mr Bang's own evidence found, and then took account of its finding, that there was no second tranche of chargebacks.

I agree that there is a risk that with the passage of time the tribunal overlooked or forgot the evidence as to which chargebacks were subject to the disciplinary proceedings.

There was, however, a distinct lack of clarity in the case put forward by Connex in its evidence on the whole matter of chargebacks, as to how many were attributable to Mr Bangs, as to how they occurred, as to when they occurred and as to their effect. The lack of clarity arose because the charge against Mr Bangs was never properly formulated in detail, as it should have been, and it was not properly investigated, as it should have been, at the disciplinary interview and the disciplinary hearing. In my judgment, it has not been established that the tribunal's finding on this point was wrong due to the delay in the decision. It could equally well be due to the deficiencies in the disciplinary process and in the evidence of the Connex staff involved in the process.

(3) The tribunal omitted to deal with the evidence of Mr Osborne, which conflicted with the evidence of Mr Bangs and is relevant to the important question of the consistency and credibility of Mr Bangs and whether the tribunal's assessment was flawed by the delay.

I agree that it would have been better if the tribunal had expressly dealt with this point, but I am not satisfied that the delay is the reason for its failure to do so or that it overlooked it in consequence of the delay. The tribunal was aware of the evidence given by Mr Osborne and that it did not support the evidence of Mr Bangs on this point. It also had the benefit of the parties' final written submissions on the point, which were before it when it considered the issues of credibility. I am also rather sceptical of the importance now placed by Connex on the evidence of Mr Osborne to the tribunal in the assessment of the credibility of Mr Bangs, when no effort was made by Connex staff during the disciplinary process to check with Mr Osborne at that time the claims made by Mr Bangs about imitating Mr Osborne's short cut method.

B. Perversity

47. Like the appeal tribunal I am clear that Mr Matovu's three points fall short of establishing that the decision of the employment tribunal was perverse, as contended for by Connex in its cross appeal. They tend, of course, to weaken the finding of credibility in favour of Mr Bangs, but that does not make that finding of credibility, let alone the adverse findings of credibility of the witnesses for Connex, perverse. It was for the employment tribunal, as the only tribunal that saw and heard the witnesses give their evidence, to form an overall view on their credibility, having regard to the totality of the evidence and of the impressions created by the witnesses who gave it. It is apparent from the extended reasons, which contain a number of verbatim extracts from the chairman's notes, that, despite the unreasonable delay in promulgation, the individual assessments of credibility of each witness were considered and explained in detail and supported by reasons. For example, the tribunal found that the evidence given by the witnesses for Connex was contradictory on the matter of chargebacks and the issue of a hand-held machine. It accepted the evidence of Mr Laming, as Mr Bangs' line manager, as more reliable than that of other Connex witnesses, "being frank, consistent and balanced." I would have been more troubled by the assessments of credibility if the decision had adopted a formulaic approach of simply concluding that it preferred the evidence of Mr Bangs to the evidence adduced by Connex.
48. There was, moreover, ample evidence to justify the tribunal's criticism of the evidence given by the witnesses for Connex on various aspects of the disciplinary and dismissal procedure and to support its decision not to accept it as indicating a non-racial reason for the treatment of Mr Bangs. It was not just a matter of the tribunal finding that the witnesses for Connex were hostile to an innocent explanation for the chargebacks attributable to Mr Bangs. The disciplinary and dismissal process was conducted in an unsatisfactory and unreasonable manner. Of course, that fact does not in itself prove that there was racial discrimination in the treatment of Mr Bangs. It is, however, relevant to ascertaining the reason why Mr Bangs was treated in this way and to the assessments made by the tribunal about the credibility of the evidence of the Connex personnel involved in the various stages of the process about their explanations for their treatment of Mr Bangs.
49. Mistakes were made by Connex about the number of transactions attributable to Mr Bangs. He was not given particulars of the charges against him before the hearing. It was wrongly assumed against Mr Bangs, without further investigation, by those principally involved that 62 chargebacks were attributable to Mr Bangs. It was assumed without investigation that Mr Bangs had benefited from the chargebacks and that Connex monies had been misappropriated. The letter of dismissal did not condescend to state the reason for his dismissal. He was not in truth "re-instated" after his successful internal appeal.
50. There was ample material from which the tribunal was entitled to infer that Mr Bangs was treated less favourably than a hypothetical white employee of Connex would have been treated in comparable circumstances and, in the absence of a satisfactory explanation for that conduct, that there was a racial reason for his treatment. The findings of credibility on the issue of the two alleged racial remarks confirmed what the tribunal would in any case have inferred and been entitled to infer against Connex. It is impossible to characterise this decision as unsupported by evidence or as plainly wrong.

C. Unreasonable Delay

51. I have reached a similar conclusion on the unreasonable delay point. Of course, the year's delay ought never to have occurred. Although I express no opinion on it, the breach of article 6 may give rise to state liability for the delay. The delay did not, however, create a real risk that the benefit of the right to a fair trial was nullified and make it unfair or unjust to allow the decision to stand. At the end of the day the tribunal produced a detailed reasoned decision free of any legal error on its face. The members had started to discuss their decision and to prepare a draft set of findings soon after the conclusion of an oral hearing lasting six days in all. They were able to do so on the basis of a considerable quantity of documentary material, including the final written submissions. It is also more likely than not that the chairman had made reasonably good notes of the evidence to enable him to draft the decision, including the findings of fact, and that the members of the tribunal reminded themselves from the material of their impressions of the witnesses when they discussed credibility. It is likely that in a hearing of this length the members of the tribunal would have had an opportunity to exchange views on credibility as the hearing progressed.
52. Apart from the perversity point already discussed, it was not argued that there is any error of law in the decision itself or that the decision was defective for lack of reasons. Connex is left only with the contention that, due to unreasonable delay, this is an "unsafe" decision. I do not doubt that Connex considers that the decision against it is "unsafe" and that there has been a miscarriage of justice. In my judgment, however, the errors and omissions relied on as making the decision "unsafe" do not satisfy the more stringent test for raising a question of law in such circumstances. Reading the decision as a whole in the light of the specific criticisms made of it I am satisfied the delay in promulgating it did not create a real risk that Connex was deprived of the benefit of a full and fair trial. It is fair and just to allow the decision to stand rather than to order a new hearing by a different tribunal.
53. As I indicated earlier, appellate courts should be cautious in concluding that a delayed decision has created a real risk that a party has lost the benefit of a fair trial on the basis of errors and omissions in the decision relevant to findings on the credibility of witnesses. There were moments during the hearing of this appeal when Mr Matovu's impressive advocacy persuaded me that he had made a good point in support of his attack on the tribunal's assessments of credibility. Then I had to remind myself that I was not a member of an employment tribunal listening final submissions after hearing all the witnesses: I was only a member of an appeal court, with a jurisdiction limited to questions of law, listening to a good advocate cherry picking some well chosen factual points with a view to discrediting a witness, of whom the three members of the tribunal had formed a very favourable overall impression.

Result

54. I would allow the appeal by Mr Bangs and dismiss the cross appeal by Connex.

Lord Justice Dyson

55. I agree.

The President

56. I agree and have nothing to add.
ORDER:

1. Appeal allowed

2. Cross Appeal to be dismissed

3. The decision of the Employment Tribunal dated 18^th August 2003 stands and the Employment Tribunal shall proceed to the remedies hearing.

4. The Respondent do pay the Appellants' costs of this appeal and the Appellant's costs of the is cross appeal on a standard basis such costs to be subject to a detailed assessment in default of agreement.

5. There be a detailed assessment of the Appellant's costs of the appeal and the cross appeal to which the Appellant has an entitlement to payment from the Community Legal Services Fund by the Legal Services Commission.

(Order does not form part of approved Judgment)