United Kingdom Employment Appeal Tribunal

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Cite as: [1992] UKEAT 305_91_0911, [1992] UKEAT 305_91_911

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BAILII case number: [1992] UKEAT 305_91_0911

Appeal No. EAT/305/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 November 1992

Before

HIS HONOUR JUDGE J HULL QC

Ms S CORBY

MR J A SCOULLER

MR G NAGARAJAN APPELLANT

(1) MR M BELL (2) DOCKLAND LIGHT RAILWAY RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

APPEARANCES

For the Appellant MR G NAGARAJAN

(IN PERSON)

JUDGE J HULL QC: This appeal is brought by Mr Nagarajan against the decision of the Industrial Tribunal sitting at London North on 18 April 1991. It is set down under the special procedure for Mr Nagarajan to show cause as to whether he should be allowed to proceed to a full hearing. To do that he has to show us that there is a point of law in the case. That may be a point of law of the simple sort, for example that there is a statutory provision or a case which is binding on the Tribunal and which has been overlooked or it may mean that there has been a complete misapprehension by the Tribunal. The presence of such a point of law must be shown by Mr Nagarajan before he can go on to a full appeal.

This is a case where Mr Nagarajan complained to the Industrial Tribunal that there had been breaches of the law when he applied for a job either under section 1 of the Race Relations Act 1976 or under section 2 which is headed "Discrimination by way of victimisation". Mr Nagarajan puts it today rather more on Section 2 than on Section 1, to judge from what he has told us.

The decision of the Tribunal was reached after hearing Mr Nagarajan and Mr Bell, who was the employers' representative and who was responsible for the decision of which Mr Nagarajan complained. Mr Nagarajan complains in particular that after setting out the short facts of the application the Tribunal made a general comment which Mr Nagarajan says represents a misapprehension and an assumption which is quite unjustified. The Tribunal say:

"3 We heard two witnesses. Mr Bell gave evidence on his own behalf and on behalf of Docklands Light Railway Ltd. Mr Nagarajan gave evidence on his own behalf. We were satisfied that both witnesses were essentially truthful, and doing their best to assist us. But Mr Bell was deposing to facts, whereas Mr Nagarajan was deposing to inferences."

There is one way of reading that of which Mr Nagarajan is well entitled to complain for he too was speaking of facts - the facts of his application; the facts of the response to that application and the facts about the documents which spoke for themselves.

However, on a vital matter, since Mr Bell strongly denied that there was any question of racial motivation in the refusal of the application by Mr Nagarajan, it was for the Tribunal to infer, bearing in mind the burden of proof, whether or not Mr Bell was sincere and honest in giving that evidence or whether Mr Bell was not being honest and (on a true view of the evidence) there had been discrimination and the refusal of Mr Nagarajan's application was in fact motivated by racial grounds. That was a matter of inference: there was no direct evidence of that and in that sense there is nothing objectionable about the remark although we can see Mr Nagarajan's objection to it.

We think, having read this passage as a whole, in its context, although it could have been put differently, there is here no error of law or, indeed, error at all by the Tribunal because they were directing their attention in this opening passage to the vital issue of whether the rejection of Mr Nagarajan's application for employment was motivated by racial considerations and in the circumstances that had to be a matter of inference. They were wrong to say that Mr Nagarajan was not deposing to facts, if that was what they were saying, although they did not say that in terms. Mr Nagarajan was deposing to facts but in the vital matter it was Mr Bell's word to be weighed against the inferences to be drawn from those facts and as Mr Nagarajan suggests, and as the Tribunal found in his favour, those facts give rise to a good deal of suspicion and justified dissatisfaction on the part of Mr Nagarajan.

What happened was that Mr Nagarajan had been an employee of London Transport from 1969 to 1973 and then for various successor organisations until October 1989. His employment with London Underground Ltd terminated in unhappy circumstances. Apparently there was a complaint of racial discrimination in failing to promote him and that complaint was upheld or at least there was a settlement on the basis that Mr Nagarajan should be given promotion. When he was given a job there was a suggestion of unfair dismissal. All these matters gave rise to a great deal of unhappiness in 1989.

Mr Nagarajan referred us to his own bundle of documents and in particular to page 42 where a note has been made by a representative of his former employers:

"From my involvement whilst GM (Central & Bakerloo Lines), I consider that under no circumstances should Mr Nagarajan be considered for re-engagement. His attitude to his managers was entirely unacceptable. Date: 21st September 1990"

It seems that this might have come into existence as a result of another application which Mr Nagarajan made on the same day as that to which this case relates. However that may be, there was that note which says in terms that Mr Nagarajan is to be excluded on the grounds that his attitude to his managers is entirely unacceptable in the view of the officer of that particular company. Mr Nagarajan naturally suspects that that had something to do with the fact that his application to Docklands Light Railway was unsuccessful, as they are associated companies.

The Tribunal then referred to the answer put in by the respondents, the Docklands Light Railway, saying that the application had been refused because Mr Nagarajan had stated on his application form that he had suffered from a heart attack and rightly or wrongly Mr Bell had drawn up, so he said, guidelines under which anybody who had had a heart attack was to be refused out of hand. Mr Nagarajan says that that relates to the situation at the date of the application. We do not think that that is his best point because a person who was actually suffering a heart attack would not make an application and once a heart attack has happened it may permanently affect health. According to Mr Bell he had issued these guidelines that persons who had suffered from heart attacks were not to be considered for employment.

Again, Mr Nagarajan says that the notes for the guidance of the applicant show that if the application is accepted, the applicant will then be medically examined and therefore he assumed the medical question would arise later. However, quite unknown to him, in these guidelines, which were purely an internal document, there was an indication that anyone suffering from certain medical conditions was not even to be considered. That is a comment which he is entitled to make.

The suggestion was made plainly to the Tribunal that these guidelines were not a genuine document and Mr Nagarajan says that they were brought into existence after his application, by Mr Bell, for the purpose of justifying its dismissal. That is to say, that first of all Mr Bell was thoroughly deceitful and secondly he had forged a document. He had prepared a document to make it look as if it was genuine when it was false. These are very serious allegations and they were laid fairly before the Tribunal.

Going on I come to another passage of which Mr Nagarajan complains:

"5 The only other fact to which we have to refer is that we were told that Docklands Light Railway Ltd and London Underground Ltd are completely separate companies, although they are both wholly-owned subsidiaries of London Regional Transport. But an instruction given by a senior officer of one company would not bind employees of the other company. Nor would such instruction necessarily be known by employees of the other company."

Mr Nagarajan complains of that and says that that is an unsupported statement by the Tribunal. All I can say as a lawyer is that it is a statement which any lawyer would assume to be correct if the facts in the first sentence were mentioned to him but like any other assumption it could be rebutted by evidence. As we read that passage it is merely showing what the normal position would be and if Mr Nagarajan had persuaded the Tribunal that that was not the situation in this case and that in fact there was a basis on which these various companies really operated as one or under which officers of one company were accustomed to act in accordance with the directions of another company, the Tribunal would be forced to pay attention to those facts. However, it does not appear to us that evidence showing that the alleged separateness of these companies was not genuine was adduced at the Tribunal.

The Tribunal then referred to the facts and they find as follows:

"10 Mr Bell told us that the fact that Mr Nagarajan had received an acknowledgement of his application on one day, and a refusal of it on the next, was not something from which adverse inferences could be drawn. The acknowledgement was computer generated and went out automatically. The refusal was in a standard form, which was not tailored to give reasons for refusal.

11. Since Mr Nagarajan had applied for two jobs, Mr Bell was asked about both of them. The first was a job as "traffic assistant" or, as it is known on Docklands Light Railway Ltd, as "train captain". These persons in effect act as guards, but have to be prepared to drive the Docklands Light Railway Ltd's trains manually should the computers, which drive the train automatically, fail. It can be seen that it is vital that people carrying out that function should be in good health. The other job for which Mr Nagarajan applied - his letter of application, dated September 24, 1990, ........... was for an office post. Mr Bell told us that there were no posts available at the time."

Mr Nagarajan informed the Tribunal that he had been informed to the contrary but Mr Bell said that enquiries had been made and Mr Nagarajan's version could not be supported by reference to anybody who could remember such a conversation.

In the next paragraph the Tribunal say:

"12 ......... Mr Bell emphasised that on receiving an application from any person who had said he had had a heart attack, he would have rejected that application our of hand. He had not been racially motivated in doing so ......."

The Tribunal then refer to Mr Nagarajan's evidence and they set out matters which are certainly not matters of inference but are matters of fact of how he had put in his application and received an unreasoned refusal (Mr Nagarajan was not informed that it was because of his heart attack); and that he complained that the replies he received to his questions were not entirely to the point and he also complained that he had not seen the notes for guidance. He invited the Tribunal to infer from all this that the true motive for his rejection was that it was known through the network of companies, because the companies were associated, that there had been a lot of trouble between him and his former employers and that they had formed a very unfair and adverse view of him. He claimed that one of them had recommended that in view of his attitude he should never be employed again, which was quite unacceptable, and that that was all part of his complaints of racial discrimination against him which had led to his unhappy departure from his earlier employers. He felt that the Tribunal should infer from all this and find, as a matter of inference, that this refusal was not honestly motivated in the way which was described by Mr Bell, and suggested by the documents that Mr Bell had produced, but was a sham and the true reason was racial discrimination.

If the Tribunal had found that Mr Bell was guilty of forging this document, as Mr Nagarajan suggests, then it might not be a very long step from that to say that if a man is prepared to lie to this Tribunal and to go as far as forging a document in a deceitful way then there must be something to hide. In view of that the Tribunal might have gone on to say that it was satisfied and inferred from all that it had heard that Mr Nagarajan was right. That was the importance of the Tribunal's approach to that matter.

The Tribunal, however, found against Mr Nagarajan and they said:

"15 ..... We thought Mr Bell was an honest witness and we accept his evidence in its entirety. We find the following facts:-

(i)That the document "Notes for Guidance on the Acceptance of Certain Medical Conditions for Employees of DLR" ...... was in existence as an internal document at Docklands Light Railway Ltd at the time when Mr Nagarajan's application for employment was received.

(ii)That the guidelines in that document were applied to Mr Nagarajan as they would have been applied to anyone else who said on their form of application that they had had a heart attack.

(iii)We are satisfied that Mr Nagarajan's application was refused purely because he said on his application form that he had had a heart attack.

(iv)We find that Mr Bell did not pay attention to any other matter revealed either on Mr Nagarajan's application or on his covering letter.

(v)We find that Mr Bell did not make any enquiries of London Underground Ltd before refusing Mr Nagarajan's application.

(vi)We find that Mr Bell did not see any of Mr Nagarajan's employment records with London Underground Ltd, and in particular he did not see document 42 [which . . . .

In the circumstances, we are satisfied that neither Respondent was guilty either of racial discrimination or of victimisation. The application fails and must be dismissed: that is our unanimous decision.

16 We should like to add three points. Firstly, we respectfully suggest that Docklands Light Railway Ltd should consider the desirability of extending their employment package so as to give guidance to applicants that people suffering from defined medical condition need not apply for employment;..."

That is meeting Mr Nagarajan's very just remark that he had not realised that if he said he had had a heart attack he would be refused out of hand. That had not been indicated anywhere on the application form or in the package which was sent with it.

".... The second point we wish to make is that we think that Mr Nagarajan had genuine grounds for being suspicious, and that we reject his application only because we are entirely satisfied with Mr Bell's explanation. The third point is that Mr Nagarajan, as everyone agrees, is in fact perfectly fit for a traffic assistant's job and has a document saying so. If he had included that with his application for employment, his application would have gone forward for further consideration."

Reading the decision of the Tribunal as a whole, one can say that in addition to the matters to which I have referred, there are a number of unhappy features about the case upon which the Tribunal commented.

The Tribunal heard Mr Bell and they believed him after taking into consideration all that had been said against Dockland Light Railway by Mr Nagarajan, much of it very justified they said. As I have explained, in a sense it was entirely a matter of inference as to what the Tribunal made of the primary facts proved by Mr Nagarajan and to do that they had to decide whether or not they believed Mr Bell. They had the advantage of seeing Mr Bell and seeing him cross-examined very courteously and fairly by Mr Nagarajan and it would have been perfectly open to them to reject Mr Bell's evidence if they had not thought that he was a truthful witness.

However, they thought that Mr Bell was a truthful witness Mr Nagarajan says that that Mr Bell's evidence was entirely unsupported by corroboration but in our Courts a witness does not have to be supported by corroboration, however fortunate it may be if he is. Any Court in this country is entitled to say of a particular witness that it believes that he has been telling the truth and if it does so after hearing that witness give evidence; hearing that witness being cross-examined; and hearing all that is said about that evidence by the opposite party, then that Court or Tribunal is entitled to take that course and that is the course taken by this Tribunal.

That does not finish the complaints by Mr Nagarajan. He complains that he was making other complaints against other branches of London Transport which were sent to the South division rather than the North division of the London Office. There is no absolute right to have other cases tried together or in the same division. The Courts see every day applications to consolidate or to hear different cases together and it is a matter of discretion how those cases are dealt with. There are always things to be said in favour of cases being heard together or filed in the same office and by the same token there are always things to be said against it. We do not think that that ground by itself is a ground of appeal against this decision.

Mr Nagarajan says that the Tribunal proceeded on the assumption that the employers, represented by Mr Bell, were telling the truth. If they did proceed on that assumption then they were behaving wrongly. No Court or Tribunal is entitled to proceed on the assumption that anybody is telling the truth; they have to consider in the case of each witness whether he is or not. We find however that there is no evidence that the Tribunal proceeded on that assumption and a lot of evidence that they looked at Mr Bell's evidence with care and with a good deal of suspicion and scepticism before they accepted it.

Mr Nagarajan then referred to the chart which he had very carefully drawn up showing the various parties, and the relationships so far as the respondents are concerned. Again, we do not think that anything emerges from that which shows that the Tribunal were wrong. He says that if he had not had his application turned down it would have been that what the manager wrote on page 42 (which I have previously read) about him that would have prevented him getting his employment. That may very well be and it may be that what was written would have founded a just complaint of some sort but the fact was that it did not prevent him getting employment. The Tribunal accepted what Mr Bell said that he had not seen it and it had not affected his mind.

Mr Nagarajan also said that the Industrial Tribunal Chairman was not interested in the chart when he had shown it to the Tribunal. What the Tribunal makes of any particular evidence is for the Chairman and members to decide and if it is alleged, and we hope that it is not, that the Chairman behaved unfairly over that or any other matter then we have no evidence to support that. However, there is plenty of evidence in the decision itself to show that the Chairman and other members acted with great scrupulousness and care.

Mr Nagarajan then said that the Tribunal's decision was not based on the evidence but on the assumptions they made. We think we have already dealt with that but would emphasise that it was dealt with on the evidence and when one looks at it, it was based on the evidence in the sense that they accepted Mr Bell's evidence which they were entitled to do.

Finally, Mr Nagarajan made the point that there was no indication on the application form that the applicant might be disqualified on medical grounds even before the stage when he was considered for acceptance. It was for the employers to say when they would medically examine the applicants but they were fairly criticised by the Tribunal for not making it clear that there were certain medical grounds which made it unnecessary to apply, because they were minded to reject all such applications out of hand.

As we have said, the Tribunal in our view made some well justified criticisms of the respondents and, clearly, had a great deal of sympathy with Mr Nagarajan. We feel in exactly the same way as the Tribunal did in that we have sympathy with Mr Nagarajan and we consider some of the criticisms made by him well merited. However, the question for us is whether any error of law is disclosed in the way in which the Tribunal heard and decided this case and having gone through it as carefully as we can with Mr Nagarajan's assistance, we are quite satisfied that we have not been shown any error of law in the way in which this Tribunal approached its task or carried it out, or in the substance of its decision.

We think that, in one way or another, all the criticisms that Mr Nagarajan made are shown on examination not to be criticisms which show errors of law which throw doubt on the decision itself. There are criticisms which he makes of the respondents which he is entitled to make and those have been considered and to a large part upheld; but they do not go to the question that the Tribunal had to consider, which was whether Mr Nagarajan had been discriminated against on racial grounds.

Having considered all those matters it is apparent to us, because Parliament has said that we can only consider appeals on matters of law, that this appeal cannot be allowed to continue because it does not disclose any question of law. Therefore, the appeal must be dismissed at this stage under our Practice Direction and it will proceed no further.