United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 936_94_0102

Appeal No. EAT/936/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 February 1995

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR E HAMMOND OBE

MISS A MACKIE OBE

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MR S JOHAL          APPELLANT

WOLVERHAMPTON METROPOLITAN BOROUGH COUNCIL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr S Johal against the decision of the Industrial Tribunal held at Shrewsbury over a period of 19 days in September and December 1993 and April, May and July 1994.

For full reasons set out in a decision 124 pages long, and notified to the parties on 22 August 1994, the Tribunal unanimously decided that the application complaining of racial discrimination should be dismissed.

Mr Johal was disappointed by the decision and appealed by Notice of Appeal dated 30 August 1994. In his Notice of Appeal he complained of various matters. The matter was set down for a preliminary hearing for this Tribunal to decide whether the Notice of Appeal raised a point of law that was arguable. This Tribunal only has jurisdiction to hear appeals from an Industrial Tribunal on a point of law. If no point of law is made out that is reasonably arguable, there is no purpose in having a full hearing.

After the case was set down for a preliminary hearing the Tribunal received from Mr Johal documentation relevant to his arguments. The documentation included a number of affidavits dealing with a point not covered by the Notice of Appeal. The Affidavits sworn by Mr Johal and by half a dozen other persons, who were in attendance at the Tribunal, were to the effect that one of the lay members of the Tribunal dozed off during the hearing and that the decision of the Tribunal may have been affected by the conduct of that member. The Affidavits vary slightly from one to the other. One Affidavit dated 19 January 1995 sworn by 6 people simply says that they were present at the Tribunal on various dates and noticed that one of the Industrial Members of the Tribunal was asleep at various times during the hearing. The Affidavit sworn by Mr Johal states that one of the "jury members" of the Industrial Tribunal dozed off during the hearing and that the decision may have been affected by the actions of that member. That is an additional point to the points raised in the Notice of Appeal.

In order to see whether there is any point of law raised in the appeal it is necessary to examine the issues before the Tribunal and the manner in which they resolved them. Mr Johal was employed as a welfare rights advice worker by the Wolverhampton Metropolitan Borough Council. He started his employment in December 1986. He is still employed in that capacity. In his Originating Application his complaint was that throughout his employment he felt that he had been treated less favourably than comparable white colleagues on numerous occasions. He then, specified the areas in which he alleged that he was receiving less favourable treatment.

His main complaint was that since the commencement of his employment he had not been promoted. He made specific allegations about his line manager, Angela Stanworth. His second complaint was that he was the subject of disciplinary hearings in 1989 and 1991 which arose out of complaints allegedly made from the Social Security Appeal Tribunal. He makes various allegations about procedural irregularities in those hearings. Thirdly, he complains about the matter of sick leave. He said he had difficulties with his employers concerning absences through ill-health. He provided certificates and doctors notes, but they were questioned and investigated; things which he did not believe would have happened had he been white. Fourthly, miscellaneous complaints, to the effect that, throughout the course of his employment, he had difficulties in obtaining signatures for forms needed for various arrangements and time records. He believed that was due to the attitude of his line manager, Angela Stanworth, who persistently queried every aspect of his work without justification. He also felt that during the course of his employment he had been expected to work according to the dictates of a white person who he was working with, even though they may have been on the same level of seniority as himself.

He concluded his complaint by saying:

"For all the above I feel I have been less favourably treated than a comparable white person and this constitutes an offence under the Race Relations Act."

He attempted to use the internal grievance procedure to obtain redress, but that had not been successful.

He referred to the provision in the Race Relations Act. During the hearing he has referred us particularly to section 4(2)(b) which provides:

"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them."

The claim was contested by the Council. They filed a Notice of Appearance on 4 February 1993. They agreed on the date of commencement of Mr Johal's employment and on the capacity in which he was currently working. They accepted that he had not been promoted since his initial appointment and added that, so far as they were aware, he had not actually applied for a higher graded post.

As regards assessments, of which he made complaint, the Council set out the reasons why they submitted there was no irregularity or discrimination in relation to assessments and evaluations for a decision on his progression. The Council denied that Miss Stanworth had committed any racial discrimination. As regards the disciplinary complaint, they accepted that he was the subject of a complaint, but denied the source of the complaints and they denied that there had been any failure to follow requisite procedures. They accepted that he had used the grievance procedure, but alleged that he had failed to supply supporting information. As regards sick leave, they requested Further & Better Particulars of the instances. Overall, the Council denied that Mr Johal had been treated less favourably than a comparable white person and they denied breach of any provisions in the 1976 Act.

The hearing, in the experience of this Tribunal, was very lengthy and the decision was of unprecedented detail and depth. We have a list of all those who were called to give evidence on each side. We note that Counsel represented each side. Mr Johal was represented in the earlier part of the hearing in September 1993 by Mr Gill, instructed by a firm of solicitors J R Jones & Company. It then appears, for a reason we do not understand because we have not been informed of it that Mr Gill was replaced by Mr Coke, instructed by the same solicitors, at the hearing in December 1993, April and May 1994.

In the decision the Tribunal spent many pages, we think more pages than were really necessary, setting out in dense detail the evidence which they had heard. In fact, they spent nearly 100 pages setting out quotations from documents and summarising the evidence of witnesses. It was only on page 96 of the decision that they started to summarise the contentions of the parties.

The Tribunal spent another dozen pages summarising the contentions of the parties, including submissions on the relevant legal principles and the interpretation of the relevant provisions of the 1976 Act. On page 108 the Tribunal embarked on their decision. On page 111 they helpfully summarised what they understood to be the pleaded case. They summarised the complaints of Mr Johal in relation to failure to promote him, failure to review his position in due time, the procedural irregularities of the disciplinary hearings, the complaint about sick leave problems and his miscellaneous complaints.

They dealt with the question as to how many of those complaints were in time, having regard to the provisions of the 1976 Act - that

"an industrial tribunal shall not consider a complaint of racial 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."

They also had in mind the provisions later in the section dealing with continuing acts and the discretion of the Tribunal to consider complaints out of time if it is just and equitable to do so. Finally, the Tribunal stated their conclusions on the merits. The first conclusion was that, in considering the conflict on the evidence, they preferred the evidence given by the Respondents and their witnesses to that of the Applicant, unless they specifically indicated otherwise in the decision.

In the course of their decision they were critical in a number of important respects of the way in which the Council had handled the situation. They described the Council as inept in certain matters. They generally deplored the situation which had got totally out of hand due mainly, in the view of the Tribunal, to the difficulties that both Mr Johal and Miss Stanworth had in their relationship. They clearly came to the conclusion that, unfortunate though these difficulties were, there was no discriminatory treatment of Mr Johal on racial grounds. They went out of their way to make a careful assessment of the personalities of Miss Stanworth and Mr Johal. They said positive things about them both:

"Miss Stanworth seems to us a thoroughly nice, balanced, objective person, who has absolutely no problems with race or colour whatsoever. Mr Johal seemed to us a thoroughly pleasant, hardworking person."

The assessment of the Tribunal was that they just did not get on with each other. The reason they did not get on was nothing to do with racial grounds. The complaints which Mr Johal had of detrimental treatment failed because he was unable to establish that he was less favourably treated on racial grounds. They made a comparison with Helen Winfield who was the white comparator and concluded there was no less favourable treatment of Mr Johal on racial grounds.

During the course of his submissions to us over the last two hours Mr Johal has referred to many passages in the reasons given by the Industrial Tribunal. We have noted his criticisms. We shall not set them all out. It is unnecessary to do so to decide this appeal. We understand his criticisms. In our view, none of his criticisms identifies an error of law in the reasoning of the Tribunal. He is unable to show that in any part of their decision the Tribunal misinterpreted the Race Relations Act or misunderstood the relevant principles, particularly those laid down in the case of King v China Centre which summarises conveniently the leading principles for determination of racial discrimination. He has been unable to direct us to any misapplication of the law to the facts of the case. His complaint on every passage that we have been referred to is that the conclusion of the Tribunal on the facts is wrong. He said to us "This was a perverse decision. It is a decision that no reasonable Tribunal could have reached".

In our view, he has not begun to make out a case of perversity. There was evidence before the Tribunal on which they were entitled to come to the conclusions they did. There was conflicting evidence. The Tribunal had to make a decision, wherever there was a conflict, as to whose evidence it accepted. They generally favoured the evidence that was given by the Council to that given by Mr Johal.

We quite understand that Mr Johal does not accept the conclusions rejecting the matters that he complains of. Tribunals are appointed to make decisions where parties give conflicting accounts of the facts. Although the party who loses finds it difficult to accept the rejection of his complaint, as far as the law is concerned there has to be an end to such disputes. It is not open to this Tribunal to re-open the facts. It is not open to this Tribunal, unless there is an error of law, to remit the matter to another industrial tribunal to conduct a fresh investigation of the facts.

We have come finally to the particular complaint in the Affidavits. It is not in the Notice of Appeal, but, as it is a serious complaint, we have examined it. If we were satisfied that there was substance in it, we would be willing to allow an amendment to the Notice of Appeal for this matter to be investigated at a full hearing. The complaint against the member is that he was asleep at various times. This is a serious allegation. If there was anything in it it would be very serious indeed. When we questioned Mr Johal on this, his position appeared to be as follows; that he observed, as it appeared others did, that the lay member in question had his eyes shut at various times and, when asked questions or for comments by the Chairman of the Tribunal, had not appeared to be fully alert. It appears that, although both sides were represented by Counsel throughout the hearing, Counsel never took up this point with the Tribunal. No Affidavit has been produced from the Counsel who represented Mr Johal or from his solicitors dealing with this matter.

Mr Johal is uncertain as to whether he ever drew this matter to his Counsel's attention. We find this astonishing. If it was observed by Mr Johal that a member of the Tribunal was not attentive, the probabilities are that he would have drawn this matter to the attention of his Counsel, if his Counsel and solicitors had not already observed it for themselves. The proper course, if it appears to litigants and their advisers that members of the Tribunal are not fully attentive for one reason or another, is for the litigant, or his advisers, to draw the Tribunal's attention to that matter. This can be done in a way that does not arouse hostility in the Tribunal. All members of the Tribunal will be fully aware of the importance of attention to the case at all times. In this case nothing was said at the time, even though this case went on over many days. Nothing was said in the Notice of Appeal. All we have before us are a number of affidavits making the most general kind of criticism without providing any details of the dates or times at which this took place and without giving any explanation as to why no objection was made at the time which is when it should have been made.

If we had thought there was anything in this matter we would have asked for further details and affidavits and then submitted the affidavits to the members of the Tribunal for them to comment on. But we are not satisfied there is any substance in this allegation. We therefore do not allow the matter to proceed any further.

In short, there is no arguable point of law on this appeal. It will be dismissed at this stage for the reasons mentioned.