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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Laher v Wandsworth Borough Council [1995] UKEAT 38_92_0307 (3 July 1995)
URL: http://www.bailii.org/uk/cases/UKEAT/1995/38_92_0307.html
Cite as: [1995] UKEAT 38_92_0307, [1995] UKEAT 38_92_307
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
MRS T MARSLAND
MRS M E SUNDERLAND JP
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the AppellantDR AMIR MAJID
(of Counsel)
Mr M Javaid
Commission for Racial Equality
Elliot House
10/12 Allington Street
LONDON SW1E 5EH
For the Respondents MR NIGEL GIFFIN
(of Counsel)
Martin Walker Esq
Borough Solicitor
London Borough of Wandsworth
Town Hall
Wandsworth High Street
LONDON SW18 2PU
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal held at London (South) on three days in December 1990 and on 5 February and 9 and 10 September 1991.
In the full reasons notified to the parties on 8 November 1991, the Tribunal unanimously decided that Wandsworth Borough Council ("the Council") did not discriminate against Mr M.M. Laher, the Applicant, as alleged by him or in any way contrary to the provisions of the Race Relations Act 1976 ("the 1976 Act") within the period specified in Section 68(1) of the 1976 Act.
The proceedings were started as long ago as 4 May 1990 when Mr Laher presented an Originating Application to the Industrial Tribunal against the Principal and Governing Body of Westminster College alleging contravention of Sections 2 and 4 of the 1976 Act. The complaint was that he had been given less favourable treatment than others in the same circumstances in that he had been denied opportunities to apply for a position of responsibility and that references supplied about him were not based on objective and analytical facts, but rather on personal opinions and unsupported allegations. He complained of unsatisfactory arrangements for a work shadowing programme to overcome lack of management experience, following grievance findings in February 1989.
In particular, he was informed on 8 February 1990 that he had been unsuccessful in his application for a post of responsibility and received no response to a written request as to why he was unsuccessful. Further, he was restricted to teaching the subject for which he was appointed, though qualified to teach other subjects, a criterion not applied to other colleagues.
The claim was contested by the Principal and by the Governing Body of the college in Notices of Appearance dated 23 July and 30 July 1990. The allegations of racial discrimination were denied. It was alleged that Mr Laher's complaint appeared to arise from the final stage of a grievance raised by him and formally investigated by ILEA in November 1988. A work-shadowing programme was agreed to overcome Mr Laher's lack of management experience and to increase his competitiveness in future job applications. In January 1990 Mr Laher indicated an unwillingness to proceed with the programme arranged for him. It was claimed that the arrangements made were reasonable and intended to assist his staff development. It was denied that Mr Laher was not given a response to a request to know why he was unsuccessful for the post of HCIMA Temporary Course Tutor. He was provided with the reasons: "The person appointed showed a greater level of understanding, enthusiasm and commitment to the role of course tutor". Mr Laher was not the best candidate. It was also denied that Mr Laher had been discriminated against in being required to teach the subject for which he was appointed (Financial Management and Accountancy).
The Industrial Tribunal made the following findings of fact after a six-day hearing.
(1) Mr Laher was a senior lecturer at Westminster College, previously part of the ILEA empire, but subsequently administered by the Council who were correct Respondents to the application. The Governing Body of the college were dismissed from the proceedings by an order made on 6 November 1990.
(2) Mr Laher is of Indian origin.
(3) His complaint of direct discrimination, as amplified by further particulars, identified six points to which a further ((vii)) point was added on the fifth day of the hearing.
(i) Alleged inadequacies of the work-shadowing programme;
(ii) Non-appointment for the post of an HCIMA course tutor;
(iii) Alleged refusal to permit Mr Laher to teach subjects, other than accountancy/financial management;
(iv) Comments made about Mr Laher in references by Mr Bradley;
(v) Mr Bradley's decision not to pay Mr Laher the rate to which he felt he was entitled for certain additional work done;
(vi) Notes written about Mr Laher by Mr Hook, the Head of Subjects and Resource Management;
(vii) An alleged continuing failure on the part of the Council to appoint him to the position of Team Leader.
(4) The background to these grievances was that Mr Laher considered that he was victimised following his assistance to a Mr Meredith-Brown in respect of the latter's complaints of racial discrimination against the college and also because of a complaint that he made to the Inspectorate of ILEA in May and June 1988. The complaint was referred to a Mr Nicholson who conducted an investigation between mid-July 1988 and the middle of November 1988. After some correspondence Mr Laher wrote to ILEA on 25 January 1989 seeking to appeal from Mr Nicholson's reports. The papers were then passed to a Mr Silverstone, Assistant Director of Personnel of ILEA, for an independent review. In February 1989 Mr Silverstone gave his findings to the effect that Mr Laher had "a right to direct and personal access to some appropriate redress for the historical denial of two career opportunities" and that "the college should formally examine its recruitment and promotion procedures and undertake a retrospective ethnic break-down of professional appointments over the previous three years to achieve an understanding of the balances or imbalances of its recruitment of black and ethnic minority lecturing staff".
(5) Subsequently Mr Laher had meetings with the ILEA Inspectorate and the Principal of the college (Mrs Burgess) regarding measures to be taken by the college.
(6) Proposals were also made in October 1989 for Mr Laher to undertake a staff development secondment to the South West London College. A further remedial measure was for Mr Laher to attend a departmental management course at Coombe Lodge in April 1990. The ILEA Inspectorate considered that the arrangements were "a very reasonable package".
(7) Mr Laher did not consider the arrangements for work-shadowing to be what he had at first anticipated. In February 1991 HE informed the Head of Continuing Education Department at South West London College that he did not wish to proceed with the arrangements. He did, however, undertake the Management Course at Coombe Lodge.
(8) The Council, in attempting to meet the findings of Mr Silverstone by proposing work-shadowing experience, were not guilty of racial discrimination against Mr Laher or of some form of victimisation. Further, any action by the Council crystallised before 5 February 1990 and Mr Laher did not present his Originating Application to the Tribunal until 4 May 1990.
(9) On 7 or 8 February 1990 Mr Laher was interviewed for the position of HCIMA Course Tutor. A memorandum dated 8 February 1990 informed him that he had been unsuccessful in his application. His complaint in respect of that matter was within the period of three months prior to the presentation of his Originating Application. On that matter the Tribunal heard considerable evidence from two of the three members of the interviewing panel. Their evidence was that Mr Laher was most unimpressive at the interview, while the other applicant (Mr Allen), who was asked the same questions as Mr Laher, was in every way a suitable person for the appointment. Mr Laher's evidence did not challenge the evidence subsequently given by members of the interviewing panel as to his poor showing at the interview. He told another lecturer that he did not want the position. There was no element of racial discrimination on the part of the Council and no evidence of victimisation in their rejection of Mr Laher as the HCIMA Course Tutor.
(10) There was no evidence which showed that any of the other matters of which Mr Laher complained either took place within the period of three months prior to the presentation of the Originating Application or were acts which should be treated as extending over a period which ran on past 5 February 1990. His argument confused the alleged act of discrimination with the consequences of that act.
In those circumstances, Mr Laher's complaint of racial discrimination failed and was dismissed.
On 19 December 1991 Mr Laher served a Notice of Appeal setting out numerous grounds which were alleged to constitute errors of law in the decision i.e. that the Tribunal had construed and applied Section 68 of the 1976 Act too narrowly, that there had been a continuing act leading up to his non-appointment for the post of HCIMA Course Tutor, that no indication had been given by the Tribunal that complaints were out of time, that all acts of discrimination involving detrimental treatment and resulting in consequences were extended acts and that, on the individual complaints, the Tribunal had made errors or reached decisions which were perverse and which no reasonable Tribunal, directing itself properly on the law, could have reached.
The appeal came before the Employment Appeal Tribunal on 8 December 1992 when, on a preliminary hearing, Mr Laher was given leave to amend his Notice of Appeal. An order was made for the production of Chairman's notes and it was directed that the appeal should be allowed to proceed to a full hearing. Substantial amendments were made to the Notice of Appeal, as appears from the fresh notice dated 21 December 1992.
The appeal next came before the Employment Appeal Tribunal on 14 September 1994. At that hearing Mr Laher was represented by Dr Majid of the Commission for Racial Equality. Mr Giffin represented the Council. Dr Majid informed the Appeal Tribunal that, if he was successful in his appeal, he would seek a fresh hearing before a differently constituted Tribunal. Mr Giffin sought directions which, he submitted, were essential to a proper hearing of the appeal. Those directions concerned whether or not certain complaints advanced before the Appeal Tribunal were time-barred by reason of Section 68 of the 1976 Act or had been expressly abandoned or not pursued at the Industrial Tribunal hearing. It appearED that there was a factual dispute between the parties as to what had been said and done on those matters at the Tribunal hearing. Mr Giffin persuaded the Appeal Tribunal that a fair determination of the appeal would depend on those matters and held out a prospect of enabling the Appeal Tribunal to reach a final conclusion on the merits. The Appeal Tribunal therefore made orders for the admission in evidence of an affidavit sworn by Mr Martin Walker, a Solicitor in the employment of the Council. Directions were given for an affidavit in response by Mr Laher, for notes of submissions by the Chairman of the Industrial Tribunal relevant to matters raised in Mr Walker's affidavit to be obtained and for the substitution of Westminster College Corporation for the Council and the deletion of the Council in the title to the proceedings.
In consequence of those directions, an affidavit was sworn by Mr Martin Walker on 7 September 1994. An affidavit in answer to that was sworn by Mr Laher on 13 October 1994. A reply affidavit was sworn by Mr Martin Walker on 21 December 1994.
On 9 January 1995 the Chairman of the Industrial Tribunal provided a transcript of his manuscript notes of Counsel's final submissions.
The position, as we understand it, is that there is an appeal against the decision of the Industrial Tribunal on six of the seven points. There is no appeal against the decision of the Tribunal that the allegation of racial discrimination in relation to the non-appointment of Mr Laher to the HCIMA Course Tutor post was unfounded (Point (ii)). On the other six issues the Tribunal found that all the allegations were time-barred. Further, the complaint about the alleged inadequacies of the work-shadowing programme was unfounded and, even if all the other complaints had been brought within time, they would have been unlikely to succeed in any event.
We agree with Mr Giffin that the issues raised by Mr Laher on his appeal should be dealt with in two stages.
(1) What was the Industrial Tribunal actually required to decide? On this point the Council argue that various points were either conceded or never raised and so cannot be dealt with on this appeal.
(2) As to those points properly available to Mr Laher on this appeal, was there any error of law in the Tribunal's decision?
What was the Tribunal required to decide?
On this issue the Council made three points:
(1) Team Leader Post (Point (vii))
The complaint that Mr Laher was not appointed to the post of a team leader was never raised at all. The Tribunal is only entitled to adjudicate on acts of which complaint is made in the Originating Application or in an amendment to it (Chapman v Simon [1994] IRLR 124). The full reasons of the Tribunal were erroneous in stating that this complaint was added on the last day. The Council have no recollection of an application for an amendment being applied for or allowed. Their notes do not refer to it. The Chairman's notes do not record an amendment on the fifth day or any other day. Mr Laher's evidence does not depose to any amendment having been made. Mr Giffin argued that the Tribunal made a slip in the reasons. No amendment was made. In any case, that complaint was in effect abandoned by Mr Laher's representative in closing submissions, when he accepted that there were only six complaints made to the Tribunal. As a result the Council had no opportunity of making submissions on this point.
(2) Concessions
Mr Giffin argued that the complaints on the refusal to permit teaching of subjects, other than accounting and financial management (Point (iii)), the comments in references by Mr Bradley (Point (iv)) and Mr Bradley's decision as to the rate of payment for additional work done (Point (v), were conceded before the Tribunal to be time-barred. These concessions were made by Mr Laher's then representative in his final submissions. This submission is supported by the Chairman's notes which confirm what is stated in Mr Walker's affidavit. In view of the concessions that were made, Mr Laher is not entitled to resile from them and raise, on an appeal, points expressly conceded before the Industrial Tribunal. The effect of the concession was to influence the Tribunal to deal briefly with the time-bar point in relation to the other complaints and to deprive the Council of the opportunity of hearing precisely why the other complaints were said not to be statute barred.
(3) Extension of Time
No application was ever made by or on behalf of Mr Laher to extend the time under Section 68(6) of the 1976 Act. This is confirmed by the Council's notes and recollection. Neither the reasons of the Tribunal or the Chairman's notes of evidence refer to any such application having been made. If no application was made, the Tribunal was under no obligation to consider Section 68(6) of its own motion (Dimtsu v Westminster City Council [1991] IRLR 450). It is too late to raise this point on an appeal. Whether it is in fact just and equitable to extend time depends on many factors, including the question why the claim was not brought earlier. No evidence was brought before the Tribunal on those matters. It would not be right for the Appeal Tribunal to exercise a discretion which properly belongs to the Industrial Tribunal.
Correctness of the Tribunal's Decision
If the submissions under the first stage are accepted, the only complaints which can be considered on the appeal are those relating to the inadequacies of the work-shadowing programme and the notes written by Mr Hook. The Council's submissions were as follows:-
(1) Work-Shadowing Programme (Point (ii))
This complaint was rejected as time-barred and ill-founded. The decision on the time-bar point is correct. The Tribunal correctly directed itself that Mr Laher could complain of an act extending over a period to within three months of the presentation of his Originating Application. The Tribunal also correctly directed itself that it was necessary to distinguish between an act of discrimination and the continuing consequences of that act. The fact that consequences could continue did not mean that the act itself continued. There was no error in the self-direction of the Tribunal. A correct and adequate explanation was given of the reasons for holding that this complaint was time-barred. The fact was that the relevant arrangements for the work-shadowing programme had been made at the end of October 1989 and Mr Laher did not like the steps which had been taken.
As to the rejection of the allegation of racial discrimination, that was a conclusion which the Tribunal was entitled to reach on the evidence which it heard. The appeal is against a decision of fact and this Tribunal has no jurisdiction to reopen such matters.
(2)Mr Hook's Notes (Point (vi))
On this point the Tribunal simply held that there was no evidential basis for treating that complaint as being within time. The notes were made in September 1988. Mr Laher became aware of them on 14 June 1989. The cut-off date for time purposes was 5 February 1990. The Tribunal's decision was clearly correct.
Finally, Mr Giffin submitted that, even if concessions had not been made in relation to the other complaints, they were clearly out of time. As to the alleged refusal to permit Mr Laher to teach subjects, other than Accounting and Financial Management, timetables were dealt with in the preceding Summer term, so that the 1989/90 teaching was fixed in the Summer of 1989. As to the comments in Mr Bradley's references, those references were given in May 1987 and April 1988. Finally, as to the complaint on Mr Bradley's decision as to the rate of payment for additional work done, that was a decision taken in July 1987. Accordingly, Mr Laher had not been damaged by the concessions. The concessions were correctly made on the time limits.
Submissions of Mr Laher
Dr Majid represented Mr Laher on the appeal. He made two preliminary points:
(1) He accepted that the presentation of Mr Laher's case had been "far from perfect". Mr Laher initially attempted to deal with the case himself, but later felt that counsel and solicitors on the other side were making it difficult for him to do so. He therefore instructed solicitors and counsel. For the first three days of the hearing he was represented by counsel. On the fourth day he represented himself, but felt that he could not continue to do so, as the Tribunal and the Council's lawyers were unwilling to give him the "conventional support" afforded to a litigant in person. For the last three days he was represented by Mr Cadoo, who is neither a solicitor nor a barrister. Mr Cadoo has not provided any evidence to this Tribunal as to what happened at the Industrial Tribunal on the disputed questions of concessions and amendments.
We have sympathy with Mr Laher if he feels that he has not been well served by his representatives in the Industrial Tribunal or that he was not assisted by the Industrial Tribunal and the Council's representative as he feels he should have been. We do not know whether Mr Laher has been let down or not. We had not heard any account by the representatives on the matter.
We add that, even if there had been errors in the conduct of the case by the representatives, such as making concessions without proper authority or failing to take points, those errors do not provide grounds of appeal to this Tribunal. Errors of conduct on the part of representatives are not errors of law in the decision of the Tribunal. This Tribunal only has jurisdiction to hear appeals from Tribunal decisions and that jurisdiction is confined to points of law.
(2) Dr Majid was also critical of the decision which has left Mr Laher with a "grave sense of injustice" because his "complaints were not properly and fairly examined by the Tribunal". He alleges specific legal errors which we shall deal with later, but he makes a general criticism of the failure of the Tribunal to analyse each complaint of discrimination separately and to give sufficient reasons for rejecting them, either on the time limit point or on the substance of the complaints. He claims that the time point on complaints (iii) - (vii) was dealt with in a "perfunctory manner".
We agree with Dr Majid that it is good practice for an Industrial Tribunal in a race discrimination case, first, to identify precisely each alleged act of discrimination; secondly, to make findings of fact separately in relation to each complaint; and thirdly, to give reasons in respect of each act for finding whether or not the complaint is out of time and, if not, whether or not the complaint is well founded in substance.
We agree with Dr Majid that it is not satisfactory to lump together a number of alleged acts of discrimination, even if they are inter-related, and to deal with them by an all embracing assertion, such as they were "not likely to succeed in any event".
It is also important, if concessions are made by one side or the other, to record those clearly in the full reasons for the decision. Similarly, if amendments are allowed it is good practice for an Industrial Tribunal to insist on a formulation of the amendment and for it formally to be incorporated in the appropriate document, such as the originating application or the notice of appearance. Those procedures clarify the procedural position and spare the parties time, trouble and expense incurred in dealing with subsequent disputes, which are difficult to resolve at this remove from the proceedings, about what happened at the Industrial Tribunal.
In this case the general criticisms made by Dr Majid (on lack of reasons) are closely connected to, and may be explained by, what in fact happened at the Industrial Tribunal. Thus, if concessions were in fact made by Mr Laher's representative, it was not necessary for the Industrial Tribunal to give such detailed reasons as if they were asked to decide a contested issue. Similarly, if a new point was raised, but not formally dealt with by amendment, that would explain why it was not fully dealt with in the decision.
Detailed submissions
In additional to those general points Dr Majid, in his clear and helpful argument, made the following specific points.
(1) Although the time bar point was taken by the Council at the outset, the Industrial Tribunal decided to hear evidence on the complaint and to rule upon the time point at the end, thereby merging the question of the merits of the case and the time points. In those circumstances the Tribunal were alerted to the time point and should have dealt with the question of extension of time under S.68(6) if the applications were out of time, even in the absence of a formal application from Mr Laher's representative to extend the time.
(2) In reaching the decision that the acts were time-barred the Tribunal failed to distinguish between a continuing act, which is not time-barred, and the consequences of an act. The Tribunal did not establish when a particular act started and culminated, if at all, in a consequence.
(3) If the Industrial Tribunal had applied the law correctly they would have found that the complaints of individual acts were not time-barred or, if they were, they would have extended the time on the just and equitable ground in S.68(6).
(4) As to the particular complaints, the submissions were these:
(i) Work shadowing programmes
The Industrial Tribunal were wrong in holding that this complaint matured before 5th February 1990. In the Memorandum of 26th January 1990, Mr Laher indicated a willingness to undertake a work-shadowing programme as arranged, if they could allay his fears that it was not a cosmetic exercise. The measures had been recommended by the ILEA enquiry in February 1989 and were not finalised until November/December 1989. Dr Majid made criticisms of the Tribunal's evaluation of the credibility of the Council's witnesses and in making mistakes of fact as to what in fact was arranged. He argued that there was victimisation inherent in the Council's conduct, linked to their resentment about his initial approach to ILEA. There was resistance on their part to the recommendations of an independent enquiry.
(ii) Teaching additional subjects
Mr Laher had been denied an opportunity to teach Information Technology. White members of the staff were favoured. It was argued that there was a continuing act of discrimination.
(iii) Mr Bradley's reference
These comments, which were detrimental to Mr Laher, lacked any factual basis. Their presence on his file was continuing. (This point was not pursued).
(iv) Refusal to pay proper rates for additional work
This decision was racially motivated due to Mr Laher's past complaints about equal opportunities. He had succeeded in his claim in the County Court. No reasons were given as to why this claim was time-barred. If it was, time should have been extended.
(v) Mr Hook's notes
These notes were unjustified and detrimental. Their presence on his file was continuing. That meant that his complaint was not out of time.
(vi) Non-appointment to post of Team Leader
The Tribunal had itself said in the Full Reasons that the Council had failed "and continued to fail to appoint the Applicant to the position of a Team Leader". The Industrial Tribunal should have held that complaint was in time.
In support of these specific points Dr Majid referred to a number of authorities for the following legal propositions:-
(1) If there is a conflict of evidence before a Tribunal on a significant issue of fact it is the duty of the Tribunal to make a plain finding one way or another, either expressly or by reason of a clear implication from the overall language of their decision. It is an error of law to fail to do this: Levy v. Marrable & Co Ltd [1984] ICR 583 at 587 D-G.
(2) One of the aims of the informality of the Industrial Tribunal system is to ensure that parties conducting their own cases are able to face the Industrial Tribunal with the same ease and confidence as those who are professionally represented. See Anandarajah v. Lord Chancellor's Department [1984] IRLR 131.
(3) Although there is no general duty upon the Chairman of an Industrial Tribunal to raise points on behalf of a party, which the representative of that party does not himself raise, nevertheless in the circumstances of a particular case the Chairman may be under a duty to raise a question with the representative as to whether he wished to apply for an extension of time under S.68(6): Dimtsu v. Westminster City Council [1991] IRLR 450 at 451 paragraph 7. (In that case no error of law occurred where the Chairman had failed to raise the point of extension of time)
(4) The Industrial Tribunal should give sufficient reasons to explain to the parties why they have won or lost: see, for example, Hampson v. DES [1989] IRLR 69 at 76 paragraph 44.
(5) On the time-bar point it is incumbent on the Industrial Tribunal to distinguish between, on the one hand, a single act which may have consequences extending over a period of time, and, on the other hand, a continuing act extending over a period of time. It was argued in this case that there was a continuing act in the form of the continuing failure to take agreed remedial measures to deal with the situation capable of involving racial discrimination, that situation was allowed to continue and that amounted to a continuing act: Littlewoods Organisation v. Traynor [1993] IRLR 154 at 155 and 156, paragraph 11.
Conclusions
In our view, the submissions made on behalf of the Council are correct. We accept them. There is no error of law in this decision.
(1) Concessions on the time bar point were made by Mr Cadoo on behalf of Mr Laher and they are binding on him.
(2) Point (vii) was not raised by formal amendment and the Industrial Tribunal were mistaken in saying that it was in the extended reasons.
(3) The combined effect of the concessions and the lack of amendment to raise point (vii) explain the lack of detail in the findings of fact and reasoning in the extended reasons. It was not appropriate for the Industrial Tribunal to give detailed reasons on specific points which were the subject of concession or had not been the subject of complaint originally or by amendment.
(4) There was no misdirection of law in the decision and there was no error of law in failing to extend time when no application was made for such an extension.
For all those reasons the appeal is dismissed.