Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Rihal v Jade Hydraulics [1996] UKEAT 626_95_0807 (8 July 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/626_95_0807.html
Cite as: [1996] UKEAT 626_95_807, [1996] UKEAT 626_95_0807
[New search] [Help]
At the Tribunal
THE HONOURABLE MR JUSTICE BUCKLEY
MR D J HODGKINS CB
MR P M SMITH
JUDGMENT
Revised
APPEARANCES
For the Appellant MR D McEVOY
Free Representation Unit
49-51 Bedford Row
London
WC1R 4LR
For the Respondents MR S CONSTANZA
(Director)
MR JUSTICE BUCKLEY: This is an appeal by the applicant before an Industrial Tribunal held at London (North) on 16th January and 6th March 1995. Mr Rihal the applicant was employed by Jade Hydraulics and he resigned. The question essentially was whether there was racial discrimination as he alleged. A question of constructive dismissal also arose, but in this particular case, the question was really racial discrimination.
Mr Rihal was represented by Mr McEvoy from the Free Representation Unit, and the respondent both to the appeal and to the tribunal was represented by Mr Constanza, one of their directors. We recognise only too well the difficulty to which Mr Constanza points where a party to litigation of any kind finds themselves up against someone who is or had the benefit of free representation. The question of costs becomes a very significant one. However, notwithstanding that, and our sympathy for Mr Constanza in that respect, we have to decide the matter on the merits.
The point at issue is essentially a very short one. Mr Rihal asserted that he learnt in early January 1994 that a fellow employee, a Mr Hanley was being paid more than he was. He put that down to racial discrimination, and gave notice and left later that month. In his initial originating application he alleged that, and supported it by saying that he had been abused. He said that he worked in a hostile environment, he was shouted at and abused by the manager on a regular basis and so forth.
At the hearing the tribunal rejected the allegations of abuse. What became the central point of the hearing was the question of disparity in pay between Mr Rihal and Mr Hanley. At the end of the day, according to their extended reasons, the tribunal rejected that complaint as well. The claim failed.
Mr McEvoy, who has again appeared before us, really puts forward two main grounds for the appeal, other matters are set out in his amended grounds of appeal.
The first is what we will call a `procedural matter'. It arose in this way. Towards the end of the hearing, when Mr McEvoy was making his final submissions, he was led to understand by the Chairman that he need not carry on because he had, as he recalls and puts it "his persistence had paid off". What was in question at the time was Mr McEvoy's assertions on the pay issue, based on reference to the company's worksheets. Mr McEvoy was seeking to prove that they were not genuine, that they had been manipulated to support the respondent's case.
Mr McEvoy tells us that the Chairman said to him "I think we accept what you say about them" that is the worksheets, that "his persistence had paid off" and consequently Mr McEvoy ceased his submissions and not only that, but did not, since he clearly took the view that this issue was likely to be decisive, he did not deploy certainly one or two further submissions that he had to make, tying in these worksheets with the credibility of some of the respondent's witnesses.
When the parties returned, having been asked to leave so that the tribunal could discuss the matter, according to Mr McEvoy, the Chairman indicated that the tribunal accepted that there had been a "fiddle" on the documents, that is the worksheets. But the tribunal nevertheless did not find that that proved racial discrimination and that the claim failed. That caused Mr McEvoy some surprise and consternation because his view at the time was that if he succeeded in proving the "fiddle" he should inevitably have won the day.
Be that as it may, the position as far as this tribunal is concerned, is that Mr Constanza told us that he does recall the Chairman announcing a decision and it was to the effect that he, Mr Constanza had won. That much therefore, enables this tribunal to conclude that there was an oral decision given then and there. What is more difficult, is what else if anything was said.
We make it absolutely plain that we do not doubt Mr McEvoy's integrity for one moment. He has conducted this hearing in a very fair and proper manner throughout. But he has no notes as he told us, and the quotations I have given are based only on his recollection. The matter has not been sent back to the Chairman for his comments, and Mr Constanza was unable to agree or admit that the comments attributed to the Chairman were made. He does not deny that they were made, he simply says that he has no recollection. He remembers that he won but cannot recall the other matters to which we have referred. That is understandable and we accept that at face value. It does place us in some difficulty. We have here, on the face of it, a very fundamental criticism, namely that Mr McEvoy was effectively curtailed in his submissions and did not deploy to the full his remaining arguments, on the basis that he was led to believe that he had established that which he was seeking to establish.
The problem is that when the extended reasons came, the interpretation that Mr McEvoy suggests we should put on them, is that the tribunal had gone back on that. They stuck to their ultimate decision, namely, that the application failed, but they went back on the factual intimation that they had given at the hearing that Mr McEvoy had established the "fiddle" on the worksheets. The reasons are not entirely clear on that question, but we think that it is fair on balance to accept Mr McEvoy's submission that the tribunal is in effect going back on that factual finding, and seeking to substitute a new finding that Mr McEvoy's arguments on the figures was invalidated.
Mr McEvoy makes two submissions on those facts. Firstly, that the tribunal having made an oral decision and there being an integral part of that decision, that there was a "fiddle" on the worksheets, the tribunal was not entitled as a matter of law to go back on that when they came to give their extended reasons, and he cited Spring Grove Services Group v Higginbotham [1990] ICR 111 in support of that.
Whether that submission is right as a matter of law we do not ultimately have to determine, but we can see strong arguments in support of it. The suggestion that a tribunal having given a decision based on fact should be entitled to go back on that, other than in the context of their powers of review, which it is not suggested that they were exercising here, nor their power of recall, which is more akin to the courts power of amending decisions under the slip rule, is difficult. Clearly it is thoroughly undesirable for a tribunal to change a clear factual finding announced as part of a decision as at the end of hearing when it comes to give its final reasons. That is made more untenable in this case, if it happened, as Mr McEvoy suggested, because, by that announcement, he was effectively curtailed in making his submissions.
The difficulty we have, we have already mentioned. Namely, that whilst not doubting the bona fides of Mr McEvoy's recollections, he is relying on his recollections and we do not know for a fact exactly what was said to him, or what was said in announcing the decision. However, for present purposes and in the circumstances of this case, we do feel that that is one aspect of the matter which is and remains very unsatisfactory. Had it stood alone, we might have felt that even at this stage it was desirable to adjourn to get the Chairman's notes or comments on this, so that there could be established a clear factual basis for our deciding how proceed.
In fact in this case there is a second wholly independent ground of appeal which we now turn to, which leads us to conclude that it is unnecessary to go back to the Chairman to take the first point any further. The first point is one therefore that simply confirms us or supports us in the view that we have come to as to what should now happen.
The second ground of appeal is this. Mr McEvoy sought to substantiate the assertion that Mr Hanley was being paid more than the appellant by reference to the worksheets. There were before the tribunal and before us a considerable number of these worksheets, and Mr McEvoy has done a lot of work on them. The point though is essentially a simple one.
The parties are agreed that Mr Hanley was on a higher rate of pay from the time when Mr Rihal gave in his notice, that much at least common ground between the parties. We can see that reflected in the wages worksheets, and we can see when it appears to have happened.
It is first reflected in the worksheet dated 5th February. The basic pay has gone up from £6.80 per hour to £7.50 and the overtime from £9.07 to £10.00. What was in issue was whether Mr Hanley was being paid at the enhanced rate for the previous three weeks. When one looks at the previous three weeks, what becomes clear is that the worksheets record Mr Hanley being paid, on the face of it, at the lower rate and the rate times the hours worked is calculated and a figure is given, similarly with the overtime. Then there appears an addition for `Saturday pay' which is time and a half and a figure appears for that en route to the total figure for wages for that week.
What Mr McEvoy's calculations show, I shall deal with only briefly because it is all set out in a very helpful Appendix I to his bundle of documents. He first of all points to the fact that the sum which is a relatively simple one for the Saturday, namely £10.20 per hour multiplied by 31/2 hours is incorrect. It happens to be incorrect on each of these three weeks. We believe we have the submission correct in understanding that those are the only three errors this book-keeper has made in all the worksheets, and there are many many sums, some more difficult than that one.
The assertion that Mr Hanley worked on those Saturdays as an explanation for the higher amount that he was paid in total for those days, that sum going through the banking system, is why it is an important sum. The matter does not stop there, because if two further sums are done, the position is even more striking. The first calculation is to work out the total basic and overtime pay on the original rates of pay. The second sum is to work out the basic and overtime pay as if Mr Hanley was being paid at the enhanced rate. If one takes one from the other, the precise difference, coincidentally, is the precise amount which is entered in the worksheet against the `Saturday pay'. So, not only is the `Saturday ' sum mathematically incorrect, but the incorrect answer coincides, to the penny, with the amount that would need to be added to Mr Hanley's pay to bring him up to the enhanced rate of pay, because the worksheets for those weeks show him still being paid at the lower rate. Now Mr McEvoy's point is obvious that Mr Hanley was not in truth being paid at the lower rate, that is the same rate as the appellant, he was being paid at the higher rate and these worksheets are dressed up to disguise that. The extra sum necessary to bring him up to the enhanced rate is explained on the face of the worksheets by putting it down as `Saturday pay'.
We have to say that that having occurred three times, albeit there is some argument on the second week which we will not trouble to go into, but that having happened on three occasions is about as striking an example of this sort as could be encountered. It is not just that the book-keeper has nodded and got three simple sums wrong coincidentally on these three relevant occasions but no others, but that the error in each case coincides exactly with the difference between the enhanced and earlier rate of pay.
The state of the evidence on that, was that the respondents asserted that Mr Hanley had worked on the Saturday, Mr Hanley himself gave evidence and said that he had. The book-keeper was not called to give evidence. There was obtained from her a short statement which is also in the bundle, which does not begin to explain either the errors in the simple Saturday sum, or the other striking features or coincidences of these figures that we have mentioned. So the one person who might have given a real explanation for these figures, did not do so. Nor were the respondents themselves able to explain these, other than Mr Constanza's suggestion that it is a simple error.
The tribunal dealt with this aspect in the following way, and we are referring to their extended reasons. They refer in paragraph 7 to the submission that Mr McEvoy was putting forward, namely a manipulation of the figures. In paragraph 7, the tribunal accepts that the figures can be construed in that way, but they say for them to support the case Mr Hanley must not have worked on these Saturdays that are shown in those timesheets. They refer to Mr Hanley's evidence that he did work on Saturdays, and say in paragraph 8 that if that is accepted then the figures do not support the allegation of falsification.
Later on at paragraph 12 they say that they are not prepared to say that Mr Hanley is a liar. His evidence on Saturday work was clear and unequivocal, and they find as a fact that he did work on Saturdays, and that that invalidates the calculations that Mr McEvoy sought to put before them as evidence of manipulation of the figures.
Mr McEvoy challenges those findings. His submission at its highest is to this effect, that so striking is the argument on the figures on the worksheets, that we have attempted to summarise, that the tribunal's conclusion is perverse. Perverse, because the figures are as striking as you could find. They were not explained, the one person who might have explained them and was clearly available, did not do so; and to reject them on no more than the bare assertion on Mr Hanley that he had worked, was perverse.
We do not accept that submission, albeit we are bound to observe that it does not fail by very much, so striking do we think the figures are. But at the end of the day, it was a matter of fact for the tribunal. We do accept Mr McEvoy's second or alternative submission, which is not that different, when he challenges the tribunal's approach and he says that they have gone wrong in their approach or understanding of his argument, and that invalidates their conclusion.
What he points to is first of all the assertion in paragraph 8, to which we have referred. That if Mr Hanley's evidence that he worked on Saturday is accepted, the figures do not support the allegation of falsification. What Mr McEvoy says is that the figures do support the allegation of falsification, and unexplained, nothing can detract from that. Evidentially the position is, that strong piece of evidence has to be taken into account, or balanced against Mr Hanley's evidence before a conclusion is reached. He reinforces that by reference to paragraph 13, where the tribunal states that because they find Mr Hanley worked on a Saturday, in other words because they accept his evidence on that, that invalidates Mr McEvoy's calculations. Mr McEvoy submits it does nothing of the sort. His calculations are clear. They speak for themselves.
The proper approach for the tribunal would have been to accept the calculations, to accept that the worksheets and the submissions made on them are as striking as they are, and to bear that in mind and the fact that they are unexplained when assessing Mr Hanley's evidence, and to decide whether, notwithstanding the figures, unexplained, Mr Hanley's evidence, impressive as it may have been on the face of it, could possibly be correct.
We think that Mr McEvoy is right in this. There are not many cases, it must be said, where what might be thought to be a somewhat subtle distinction in the approach to the evidence would cut much ice in this tribunal, because it must be remembered that it is only if a tribunal has gone wrong in law that we have any jurisdiction to interfere. However, if a tribunal has adopted a wrong approach to the evidence, and adopted an illogical process in arriving at a conclusion, that is effectively going wrong in law, and is a matter upon which this tribunal can and should intervene. We only intervene here because we are very nearly persuaded, and it may be we are wrong not to be persuaded by Mr McEvoy's perversity argument. In other words having looked at the figures and the worksheets for ourselves, there is no doubt that the proposition that the true explanation is simple error strikes us as extraordinary.
If one adds to that, that effectively no explanation for them is given, and the party directly responsible for them was not asked to give an explanation, we find it very hard indeed to see how they can be overridden by a simple assertion from Mr Hanley that he worked on the Saturday, and we believe that that is a fundamental error.
The question, at the end of the day, is what is best to be done. Mr McEvoy has urged that we should reverse the decision ourselves. That we are not prepared to do for two reasons. The procedural argument, as we have indicated, left us in some difficulty, because we were unable to ascertain what the factual basis for that was, in other words what actually did happen, and we reiterate that we are not in any way impugning Mr McEvoy's integrity. We are inclined to think he is right in his recollection, since he said it was a clear recollection that he had. We are left in the difficulty that we have identified.
As to the second point, it does seem to us that to make our own decision as to the answer would involve us really in reaching a final conclusion on the facts. We are very tempted to do so, because there figures are so striking, and also because in a case of this sort, we are very reluctant to involve the parties in another hearing. But the fact of the matter is that however striking the figures are, they do have to be assessed in the light of the evidence as a whole, and the case as a whole. It is essentially at the end of day, a matter of evidence and fact for the tribunal to draw a conclusion. We do not feel able to make that decision for them and hence substitute our own view of the factual conclusion for theirs.
The other basis for our making the decision which Mr McEvoy put forward, was that the tribunal should not have departed from the original factual decision that they announced at the hearing. But that runs into much the same difficulties as we have already identified. First of all that we do not have an absolute factual basis for what was announced and what was stated at the hearing, and secondly, even if it was as Mr McEvoy has urged, we would have to conclude that there is but one answer in law on those facts, and striking as the figures are, we do not think in view of Mr Hanley's evidence that he did work on the Saturday, it can be said there is only one answer in law.
We conclude that this appeal must be allowed. But it is with some reluctance that we conclude that the matter must go back to a differently constituted tribunal to reconsider the matter in the light of this judgment. Whether, bearing in mind this is a relatively small matter financially, it is possible for the parties to reach some accommodation and thus avoid any further hearing, is a matter, of course, entirely for them. Whether they consider it a worthwhile course to explore, again is a matter for them. It might be thought a sensible course to adopt.