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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Brookner v Cranbrook Training Plc & Anor [1994] UKEAT 753_93_0410 (4 October 1994)
URL: http://www.bailii.org/uk/cases/UKEAT/1994/753_93_0410.html
Cite as: [1994] UKEAT 753_93_0410, [1994] UKEAT 753_93_410
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MISS A MADDOCKS OBE
MR A D SCOTT
(2) JOHN MACKIE
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant APPELLANT IN PERSON
MR JUSTICE MUMMERY (PRESIDENT): There are before the Tribunal two appeals by Miss Brookner. This is a preliminary hearing of both appeals. The purpose of the preliminary hearing is to decide whether either appeal or both appeals raise a question of law for decision by the Tribunal. If no arguable question of law arises then there is no point in the appeals proceeding to a full hearing attended by the Respondents. If an arguable point is disclosed by the appeals then they will proceed to a full hearing.
Both appeals arise out of proceedings brought by Miss Brookner against Cranbrook Training Plc and Mr John Mackie for race discrimination. The complaint was started by Notice of Application presented to the Industrial Tribunal on 12 June 1991. In the application Miss Brookner stated her complaint that she had been discriminated against contrary to the Race Relations Act 1976. She was a student on an Employment Training course run by the First Respondent, Cranbrook Training Plc. It was a secretarial training course which Miss Brookner started on 1 October 1990. Her complaint is set out in the Notice of Application. She says that she is white. Her complaint is, quite simply, that she was subjected to verbal abuse, harassment and physical assault by black women while attempting to pursue the employment training course. She alleges that the incidents began with small pathetic attempts to bully her. When that failed, the campaign against her escalated into bullying and led finally to physical assaults, ranging from kicking and pushing to physical punching. She made complaints to the training manager and to a Mrs Roach in January 1991. The complaints were not dealt with, even though Miss Brookner named the main women involved in the abuse.
In March 1991 Miss Brookner alleged that she noticed that, when she went to collect fares from Mr Mackie, the Sales Centre Manager, there were insulting comments written against her name in the register. She asked for a copy of the offending page. He refused to supply that. She then complained that Mr Mackie was not taking her seriously about the incidents of non-whites harassing whites. She gave further details to Mr Mackie of the women involved in the continuing harassment against her. She believed Mr Mackie was reluctant to take any action because black women were involved. She had the same rights as them and she was being treated less fairly because of her race.
The Notice of Appearance dated 19 July 1991 stated that Cranbrook Plc went into Receivership on 21 June 1991. The assets of that Company were transferred to another Company called Meritpick Ltd. When the matter came before the Industrial Tribunal a question arose as to jurisdiction. That was dealt with at a preliminary hearing on 11 October 1991. On 30 October 1991 Miss Brookner was notified of the unanimous decision of the Tribunal that it had jurisdiction to hear her complaint.
There was a second preliminary hearing before the Industrial Tribunal at London South chaired by Mr Milton on 30 September and 1 October 1992. As at the previous hearing Miss Brookner appeared in person and the Respondents were represented. At the second preliminary hearing the Tribunal ordered that the name of the First Respondent should be amended to Cranbrook Training Plc. It was held that the First and Second Respondents, Cranbrook Training Plc and Mr Mackie, were potentially liable in respect of any discrimination proved. But the Tribunal unanimously decided that it did not have jurisdiction to entertain an application against Meritpick Ltd, the transferee of the business of Cranbrook or its employees.
The reason why the Tribunal held that it did not have jurisdiction is set out in Full Reasons notified to the parties on 23 October 1992. They decided that the complaint against Meritpick was out of time and that the jurisdiction to extend time should not be exercised. The relevant provisions are in Section 68 of the Race Relations Act 1976. Section 68(1) provides that:
"An Industrial Tribunal shall not consider a complaint under section 54 [and section 54 provides for complaints that a person has committed an act of discrimination] unless it is presented to the tribunal before the end of the period of three months beginning when the act complained of was done".
For the purposes of the Section it is provided in Section 68(7)(b) that:
"any act extending over a period shall be treated as done at the end of that period;"
Section 68(6) gives a discretion to extend time in these terms:
"A court or tribunal may nevertheless consider any such complaint, claim or application which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so".
The issue decided by the Industrial Tribunal at the hearing on 30 September and 1 October 1992, related to the complaint against the new Company, Meritpick. The Tribunal said in paragraph 17 of the decision:
"After the hiatus at the end of June when the new company .... took over there appears to have been a number of `incidents' between the Applicant and various members of the staff.... . The Applicant has sought, as the final string to her bow, to argue that there was either `continuing discrimination' and/or further acts of discrimination which she should be granted leave to present against the college as a new legal entity under the management and ownership of Meritpick Ltd".
The Tribunal ruled against Miss Brookner for the reasons stated in paragraph 18:
"So far as continuing discrimination is concerned, we remind ourselves of the leading decision on the question, namely Barclays Bank Plc v Kapur & Others [1989] IRLR and the distinctions discussed in some detail in that decision. We have applied our minds to the distinctions between `an act extending over a period' and an act `with continuing consequences' and the sort of questions raised in that decision and the decisions referred to in it. In our finding, the matters about which the Applicant complains during the period July - September 20, 1991 (when she finally left her college) can properly be described as a series of further individual acts. Her complaints as a matter of fact are about various incidents which occurred between herself and other students and the particular reactions or failures of reaction by particular members of staff to her various complaints about those matters over that period July - September 1991. In our finding, this was not a continuing act of discrimination but, if anything, a series of acts. We therefore find that the Applicant would not be entitled to rely upon those matters in themselves unless it were by virtue of a fresh application".
So the Tribunal found that those claims were out of time. Then they went on to give Reasons as to why it was not just and equitable to allow Miss Brookner to bring her proceedings out of time. Those matters are dealt with in the last few paragraphs of the decision.
I have read those paragraphs in some detail because the first appeal brought by Miss Brookner is against that decision. Her grounds of appeal are, first, that the Tribunal misinterpreted the provisions of Section 68 of the Race Relations Act 1976 in characterising the acts complained of as "a series of acts" rather than as a continuing act extending over a period and treated as done at the end of that period. If Miss Brookner is right on that point, her complaint against Meritpick was not out of time and she should have been allowed to pursue it.
Her second ground of appeal is that, for reasons to be explained in more detail later, the Tribunal was biased against her and adopted an unfair and faulty procedure for dealing with her case. Miss Brookner proceeded with her complaints of race discrimination brought within the time allowed by the Act. A full hearing took place before a Tribunal at London South, which was differently constituted from the Tribunal which had heard the preliminary issue. Again, she appeared in person and counsel appeared for the Respondents.
The hearing took place over many days, 20 and 21 May, 9 to 13 August and 15 to 19 November 1993. The Tribunal notified its Full Reasons, which ran to 25 pages, on 1 December 1993. The Tribunal unanimously decided that Miss Brookner was not unlawfully discriminated against on the ground of her colour, (she is white) or her ethnic origin, (she is Jewish) and that the Second Respondent, Mr Mackie, did not knowingly aid trainees at the college to discriminate against her unlawfully on the grounds of colour or ethnic origin.
The Tribunal took the view that her application was unmeritorious and vexatious and her conduct of the case was unreasonable. They awarded £5,000 costs to Mr Mackie. It is unnecessary to go into all the details of the decision. In summary, the decision was this: the Tribunal referred to the two preliminary hearings. The Tribunal referred to the large amount of oral evidence, some given by Miss Brookner, some called by the Respondents and unusually, by a large number of witnesses called by the Tribunal with the agreement of both parties.
The crucial part of the Tribunal's decision is that, wherever there was a conflict of evidence, it preferred the evidence of witnesses who appeared for the Respondent and those who were called by the Tribunal. They preferred that evidence to that of Miss Brookner. The Tribunal went on to criticise the way in which Miss Brookner had presented the case over the period of 12 days of the hearing. The Tribunal gave details of the various incidents which had occurred during the course of the hearing before setting out the facts proved in relation to Miss Brookner's complaint of incidents during the course of her period as an employment trainee on the Secretarial and Administration course.
The Tribunal set out the evidence in detail and stated in outline the various arguments advanced by Miss Brookner to establish race discrimination. It referred to the provisions of the legislation and to the decision of the House of Lords in James v Eastleigh Borough Council [1990] ICR 554. The Tribunal concluded that Miss Brookner had not been subjected to the abuse she complained of. Its conclusion was that she was the instigator of the abuse and assault, often against the people who commendably chose not to retaliate. The Tribunal rejected her ethnic origins ever being an issue. It accepted the evidence of many of the witnesses that they did not even know that Miss Brookner was Jewish until these proceedings were brought.
The Tribunal found that Miss Brookner was not the subject of racial harassment, but rather that she was motivated in many of her actions by her own racial prejudices. Having made those findings of fact, the Tribunal concluded that Miss Brookner had failed to establish her case of discrimination. It went on to find that Mr Mackie was innocent of the allegations made against him of aiding harassment.
The Tribunal concluded by stating the reasons for making an award of costs. Miss Brookner was dissatisfied with both decisions. She appealed against the decision on the preliminary ruling on time by Notice of Appeal dated 27 November 1992. She appealed against the decision on the merits of her case by a Notice of Appeal dated 10 January 1994.
The complaints set out in the notices run to many pages. Her Notice of Appeal against the decision on the merits is 87 pages long. We have examined the complaints in the Notices of Appeal and we have also read an affidavit, made by Miss Brookner in support of her appeal, sworn on 10 December 1992. In that affidavit she makes complaints about the way in which the hearing was conducted. She makes allegations of bias. On this hearing she has drawn our attention in particular to paragraph 30 of the affidavit which makes the point that the Tribunal was wrong in law in regarding the act she complained of as a series of independent acts. She says that there was continuing discrimination by harassment over a period of time. She complains that the Tribunal ignored the evidence for showing that this was a case of continuing acts.
Those are the background events, and that is a summary, sufficient for the purposes of dealing with this appeal, of the course of the proceedings. We have explained to Miss Brookner a number of times during this preliminary hearing that this Tribunal only has jurisdiction to deal with questions of law. She responded helpfully to this observation by concisely stating her complaints under three heads: bias and faulty procedure as the first complaint; second, misinterpretation of the law, and third, her claim that new evidence is now available, which should be admitted on this appeal.
I deal first with the bias and unfair or faulty procedure claim. Miss Brookner says that the hearing of both Tribunals was infected by continuing bias against her. The bias started when she was asked to satisfy the Tribunal that there was jurisdiction to entertain her complaint as a trainee, not an employee, on the Employment Training course. Although that point was resolved in her favour, Miss Brookner complains that the fact that the point was raised at all is evidence of the bias of the Industrial Tribunal against her.
Secondly, she makes more general complaint, which can be made by many Applicants and Respondents in Industrial Tribunals, that no legal aid was available. This put her at a disadvantage, because the Respondents were represented. She was not represented as she could not afford it and no legal aid was available for her. She complained that the proceedings had been unlawfully interfered with by the Department of Employment, who she claims instructed the Tribunal that her complaint should be dismissed. She complains in detail in her written submissions about the conduct of the Tribunal Chairmen in the hearings. The complaints against the Chairmen were along the lines that she had not been allowed to pursue her case as she wished, that she had not been allowed to raise relevant issues and, in particular, had been stopped from pursuing cross-examination of witnesses on such matters as character of the witnesses. She says that the conduct of each Tribunal took advantage of her lack of legal knowledge and experience. The result is that she has not had a proper hearing. She has been denied justice and, therefore, there has been an error of law. She also alleges, in a number of respects, that relevant information was withheld from her or not provided to her and that, in at least one instance, advice and help was given to the Respondents but was not given to her.
Those are the complaints under bias or faulty procedure. The complaint under the misinterpretation of law, which forms the second head of complaint, narrowed to two points. First, as already mentioned, Section 68 was misinterpreted. The Tribunal wrongly regarded as a series of independent acts, what was in law a continuing act. She should have succeeded on her preliminary point of time. The second point was that there was an error of law in the decision on the merits. In an important part of the decision the Tribunal commented that the ethnic origins of Miss Brookner were not an issue. She argued that this was a misunderstanding of the position. Her case had always been made clear from the beginning, that she was complaining, as a white person, about acts of discrimination by other women who were black.
A third point was raised, but not pursued. Miss Brookner accepted that her third point was based on a misunderstanding of the legal effect of the regulations concerning the Transfer of Undertakings.
The third and final area of criticism was that the decision on the merits was reached without the evidence of Mr Terence Ewing. He is a witness Miss Brookner wished to call. The reasons she could not call him was that details of his whereabouts had been concealed from her. Miss Brookner relies on a letter dated 13 September 1994 sent by Mr Terence Ewing to Miss Brookner c/o the Employment Appeal Tribunal, in which he says that he is writing in connection with her appeal against dismissal of her case. He is writing to this Tribunal, because he does not know her current address. The Tribunal agreed to pass the letter on to her. He says in the second and third paragraph of his letter:
"As you know, you wanted to call me as a witness in this case, but as I had moved from ............by way of mutual exchange in July of last year, you did not know of my current whereabouts. In fact I moved here and by coincidence, Ms Pat Roch [whose name I have already mentioned in connection with these proceedings] occupies the flat underneath".
He says:
"You will recall no doubt her disgraceful behaviour at Cranbrook College when she discriminated against you, and encouraged other students to physically abuse you. I was a witness as you will recall to these events. I did not know of the hearing at Croydon last year until it was over. Ms Roch told me that she had wrongly informed the tribunal that she did not know of my present whereabouts, and deliberately concealed from them the fact that I was then living in the flat above".
The letter then goes on to deal with various matters, which are not relevant to the claim that new evidence was available. On this point Miss Brookner says that she wishes to call Mr Ewing to give evidence in her support and that she was not able to call Mr Ewing at the hearing because his whereabouts were concealed.
Those were the three main areas of criticism of the decisions. A fourth matter was raised by Miss Brookner in her Notice of Appeal and was briefly dealt with by her this afternoon; that is that she wishes to join the Department of Employment as a party to these proceedings.
That is a brief summary of the main points in the lengthy Notice of Appeal and highlighted by Miss Brookner in her oral submissions. Do any of these points raise an arguable point of law? We are not satisfied that they do. The comments on the submissions are these. I will take them in reverse order.
First, as to the joinder of the Department of Employment. This is not related to any question of law arising from the decision of the Tribunal. It is too late for Miss Brookner to add a new party to the appeal. There is no error law on the part of the Tribunal. The reason why the Department was not joined was because Miss Brookner did not join them at the appropriate stage.
Secondly, the new evidence. There are restricted circumstances in which new evidence will be admitted on an appeal. It must first be shown that the evidence could not have been obtained by the use of reasonable efforts for use at the hearing. We shall assume that point in Miss Brookner's favour. That is not enough, however, to make new evidence admissible on an appeal. It must be shown secondly, that the evidence is apparently credible and thirdly, that it would have been likely to have a decisive effect on the result of the decision. We are not satisfied on either of those points. First, the letter does not go into anything like the detail needed to satisfy us that there is evidence that could be usefully given by Mr Ewing. His statement is in the most general terms. The fact that it is in a letter rather than a statement or affidavit is not something that necessarily rules against it. The matter that does rule against it is the lack of any detail of the evidence that he would give as to when and where he saw acts of physical abuse committed by other students against Miss Brookner. He fails to give any of the details of names or dates. He simply says that he was a witness to events described in general terms as discrimination and physical abuse.
It is doubtful, having regard to the detailed terms of the decision and the evidence given to the Tribunal by numerous witnesses and accepted, whether this evidence, even if in more detailed terms, would have a decisive effect on the outcome of the case.
Next, the misinterpretation of the law. We are satisfied that there was no misinterpretation of Section 68 by the Tribunal when it dealt with the preliminary issue on time. It is a matter of fact for the Tribunal whether acts are to be described as extending over a period or not. In our view, the Tribunal was entitled to come to the conclusion that acts of verbal and physical abuse are properly regarded as separate acts, rather than acts extending over a period within the meaning of Section 68(7)(b).
As to the complaint that the second Tribunal misinterpreted the nature of the dispute, we have come to the conclusion that this is a case of Miss Brookner misinterpreting the wording of the decision in paragraph 60 of the Full Reasons. The Tribunal were well aware from the IT1 and the IT3 that, as far as Miss Brookner was concerned, the issue was one of race. She was complaining, as a white person, of acts of discrimination by black women on the Employment Training course. When the Tribunal stated that it rejected that Miss Brookner's ethnic origins were ever an issue, they were dealing with the context in which Miss Brookner was alleging that there were acts of abuse against her motivated by racial grounds. What the Tribunal were saying was that first, they were not satisfied by the evidence that she was subjected to such abuse and secondly, that they were satisfied that, as far as the alleged abusers were concerned, ethnic origins never came into the motives for their attitude towards Miss Brookner. That is clear from reading the paragraph, as a whole, in the context of the whole decision.
That brings us finally to the serious allegations made about bias and faulty procedure. We have considered these with particular care. We have come to the conclusion that there is no evidence sufficient to disclose an error of law in the way in which the hearings were conducted. The fact that legal aid is not available may well put an unrepresented person at a disadvantage. That is not the fault of the Tribunal. It is a fact that legal aid is not available. It does not amount to a defect in the procedure adopted by the Tribunal or to bias of the Tribunal against the unrepresented person. The fact that the Tribunal required to be satisfied that it had jurisdiction to entertain her complaint is no evidence of bias against her.
Every Tribunal asked to hear a complaint must first satisfy itself that it has legal power to decide it. A Tribunal has no legal power to entertain complaints which have not been entrusted to it by the statute. This was a wise precautionary measure adopted by the Tribunal. It is not a fault in its procedure. There is no solid evidence of the alleged unlawful interference by the Department of Employment in the conduct of the proceedings. If there were evidence it would of course be grossly improper, but this Tribunal would need to be satisfied by clear evidence that there was such alleged impropriety. None is available here.
Finally, the complaints in virulent terms against the Chairmen of the two Tribunals which dealt with first, the preliminary issue and then the merits. These complaints must be approached by regard to the rules. The rules provide that the Tribunal is master of the procedure. It is open to the Tribunal to decide that cross-examination of witnesses has proceeded for long enough or to decide that certain areas of cross-examination, such as cross-examination as to character, are not relevant to the issues raised in the proceedings. In our view, the Tribunal acted within the power that it had to control the proceedings. No error of law has been shown in the decisions of the Industrial Tribunal Chairmen about the various disputes which arose in the course of the proceedings or as to how the matter should be conducted.
As to the final complaint that information was withheld from Miss Brookner we find that there is no solid evidence that anything improper was done, or that there was any error of law in the conduct of the proceedings or in the reasoning of the Tribunal.
For those reasons, there is no arguable case of bias or faulty procedure adopted by the Tribunal, or for misinterpretation of the relevant provisions of the Race Relations Act. There is no arguable case for the introduction of new evidence from Mr Ewing on the appeal. There is no point in this appeal proceeding to a full hearing. It has no chance of succeeding. The only certainty that would flow is further costs incurred by the Respondents in addition to the substantial costs already incurred in their successful defence of the charges against them. We dismiss the appeal at this preliminary stage.