COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT
BURTON J (PRESIDENT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE DYSON
| MR YAYA BANGS
|- and -
|CONNEX SOUTH EASTERN LTD
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr Daniel Matovu (instructed by Kennedy's ) for the Respondent
Crown Copyright ©
Lord Justice Mummery :
" 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 Appeal and the Cross Appeal
(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."
The employment tribunal decision
"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
(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
"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."
(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  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).
(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.
C. Unreasonable Delay
Lord Justice Dyson
1. Appeal allowed
2. Cross Appeal to be dismissed
3. The decision of the Employment Tribunal dated 18th 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)