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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Charlton v The First National Bank Of Chicago [1996] UKEAT 637_95_2703 (27 March 1996)
URL: http://www.bailii.org/uk/cases/UKEAT/1996/637_95_2703.html
Cite as: [1996] UKEAT 637_95_2703
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At the Tribunal
HIS HONOUR JUDGE J HULL Q.C.
MISS C HOLROYD
MRS M T PROSSER
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MEDINA MARKS
(of Counsel)
Messrs Onyems & Partners
Solicitors
3rd Floor
St Mark's Studios
Chillingworth Road
London N7 8QJ
For the Respondents ANDREW HOCHHAUSER
(of Counsel)
Messrs Simmons & Simmons
Solicitors
1 Wilson Street
London EC2M 2TQ
JUDGE HULL Q.C.: This is an appeal to us by Ms Jacqueline Charlton against a decision of the Industrial Tribunal presided over by Mrs Prevezer with two industrial members, who sat at London (North) between 20th and 24th February 1995, to hear complaints made by Ms Charlton of racial discrimination and unfair dismissal. The tribunal had five days set aside.
Under their very experienced Chairman, they proposed to devote the five days to hearing the case, but there were mishaps from the start. Counsel instructed by Ms Charlton had unhappily fallen ill on the Sunday before the Monday when the case was due to be heard. It was rightly felt, I am sure, that she could not take part in the hearing. The tribunal enquired into the matter, and said that if other Counsel should be instructed they would resume on Wednesday; they gave a little time, something of the order of 48 hours, for Counsel to get the case up. That appears to us, on the face of it, to have been an entirely rational and proper decision. There was a whole week of tribunal's time set aside. The respondents whose interest of course had to be considered, just as the applicant's did, were ready to go ahead and wished to go ahead. They had many witnesses to call and did call them in due course. New Counsel did appear and conducted the case on behalf of the applicant. The tribunal, having heard the case, then proceeded to give their decision, which is with our papers. It was entered on the register on 4th April 1995. They gave their decision at length. We do not propose to go into all the reasons which they gave. They investigated the evidence, not at tedious length, but they referred to what appeared to them the important parts of it. They found that all the complaints were unjustified.
It is quite plain to us that they did have, and one would certainly expect them to have, considerable sympathy for the applicant in her misfortunes. We understand, indeed it is quite plainly spelt out, that she had been unwell for a substantial period, from about August 1992 until her eventual dismissal on 9th June 1993, she had been away from work unwell. She had nervous complaints. At the hearing itself, her illness manifested itself, or appeared to do so. We are told that she apparently became unwell, became hysterical at one stage, and that the tribunal felt, in her interest, that they should ask Counsel for the respondent to ask her no further questions.
That is what happened and the decision was that the complaints were not justified. The tribunal set out the evidence which appeared to them to be important. They correctly directed themselves in law. They found, amongst other things, that it had become necessary to the business to ask for all the typists, which was Ms Charlton's original position, all those concerned with operating the machinery, to come up to a standard of speed and efficiency which some of them did not come up to. Certainly, that was the complaint against the applicant. They gave her all reasonable opportunities to improve, and whether because of her illness, or otherwise, she had not been able to improve.
I hope that I have adequately summarised their decision. They found that there was no unfairness in the dismissal. They found that there was no discrimination against her. They pointed out many facts which were material to their decision, they pointed to the lack of corroboration of the applicant's case and they set out evidence which they accepted.
Then there was the appeal. As at first put, the appeal which is at enclosure 2 of our papers, being a home-made document not apparently drafted with the assistance of solicitors and Counsel, was on grounds which, on the face of it, were not grounds of law, and so further and better particulars were put in at enclosure 4. Those are what the appeal has continued on today.
There are various grounds set out there. Those are clearly drafted, if I may say so, artistically, that is to say in accordance with legal skills by a solicitor, or more probably Counsel, and those are the grounds on which she relies today. Not all of them have been proceeded with.
However, before I come to that, this case was put into our list under our practice direction for us to see whether it should proceed to a full hearing, with the respondents being called on. It came before this tribunal which was chaired by me with the two members who are with me today. The appellant was represented on that occasion by Miss Butler, who was not the Counsel who had appeared below. Of course, as is inevitable in the case of ex-parte proceedings, we were not attended by Counsel or solicitor for the respondent, although they had an observer present, as they were fully entitled to do.
Miss Butler made serious allegations which were not envisaged by the Notice of Appeal or the further and better particulars of the Notice of Appeal. She alleged that the tribunal had behaved unfairly. We were obliged to take a serious view of it, because any allegation of bias or unfairness by a tribunal is something which we shall invariably take seriously. We said then that this was not a matter which we could possibly entertain without those who were responsible and who were present on the occasion before the Industrial Tribunal deposing to exactly what happened. We said, after conferring, that it would be better if this matter was investigated at a full hearing in view of what had been said. Simply because of the ground which was urged before us then of unfairness, we said that it should proceed to a full hearing. Any further ground could be put forward then, but this was the ground on which we were giving leave to appeal.
We ordered that the appellant's solicitor should swear an affidavit, as she had done. Both Counsel who had appeared before the Industrial Tribunal should be asked for their recollection of what had happened. That was our order.
It does appear, I must say, first of all that we were seriously misled on that occasion, and secondly, that what we had ordered, that is to say that consultation should take place with all those involved, did not take place. We would have expected Miss Butler immediately to get in touch with both Counsel, Mr Hochhauser who appears in front of us today, and Counsel who had appeared at the tribunal for the appellant, to see whether these allegations could be substantiated. It is not of course for Counsel to give evidence on oath, but we would have expected a clear statement either by those Counsel attending in front of us to say what happened, or by writing to us to say what happened, and of course we expected an affidavit from the solicitor. We expected all that to be dealt with promptly.
There was then a representation to us that the matter should be reviewed on behalf of the respondents. We acceded to that. Mr Hochhauser has appeared before us today. He was prepared to deal with the allegation which appeared to be persisted in, that the tribunal had behaved unfairly towards this not very well lady, who was making serious complaints.
Two days ago, it appeared from the new skeleton argument which was now furnished by the appellant, that the ground on which we had given leave for the matter to proceed, was not to be proceeded with. Counsel had been consulted, albeit at the last moment. It appeared to Counsel who now appears before us, Miss Marks for the appellant that she could not support the allegations of unfairness. It appears that they have never been put to Mrs Prevezer or her members for their comments. In those circumstances, no doubt it is inevitable that the matter cannot be proceeded with. It is not for us to say whether it was not proceeded with promptly and properly because it was seen to be hopeless or whether it was due to a failure to take proper steps. But at any rate, thus very very belatedly, a serious allegation against the tribunal, one which we were prepared to take with all possible seriousness, has simply been abandoned. In that sense Mr Hochhauser's attendance is otiose, because there was nothing for him to say. The ground on which we had given leave to appeal was abandoned, and therefore the review should necessarily, in our discretion of course, go ahead. We decided, having heard Mr Hochhauser briefly, that that is exactly what we should do, that we should review our decision. We should hear what else was to be said in support of this appeal. Taking the view that we did, we had not asked Miss Butler to enlarge on any of the other grounds for appeal. So we asked Miss Marks, as part of our review of our decision, to address us further on the grounds of appeal.
We asked Miss Marks to follow, the further and better particulars of the Notice of Appeal. It then at once appeared that Miss Marks wished to embark on other matters, and asked whether she could have leave to amend the further and better particulars of the Notice of Appeal. It seemed to us, after all that had passed, that that would be a most unjust thing, and that we should ask Miss Marks to stick to what is said in the further and better particulars of the Notice of Appeal, and she therefore did so.
She referred first of all to paragraph 6 of the further and better particulars. She said that no consideration appeared to have been taken of whether the monitoring of the appellant's work performance was fair, or whether the time span within which improvement of the appellant's work performance was expected was reasonable. That is contradicted by the very language of the decision itself. It is quite clear that those matters were considered. The tribunal had them fairly near, if not absolutely at the front of its mind in giving its decision. So there is nothing in that ground.
Then we asked Miss Marks to go on with any further grounds. She said that she fastened upon perversity in paragraph 10 of the further and better particulars; no Industrial Tribunal could conclude on the evidence before it that the respondents had acted reasonably in dismissing the appellant. Under that umbrella heading, Miss Marks made various complaints.
First of all, she said that the first verbal warning was given to the applicant in April 1992 and the final written warning on 18th June 1992. During that time there was incessant monitoring, there was no period without pressure on the applicant, she was not a well woman and in the circumstances, no reasonable Industrial Tribunal could find that she was given a reasonable period to improve. Nor could the Industrial Tribunal conclude that she was given three months. But of course it appears that she stayed at work until July or August. There was three months, and the Industrial Tribunal, this is really clear from every word they say, had it very much in mind whether she was given a fair period and a fair opportunity to improve. Miss Marks makes a purely verbal point, based on a suggestion that the tribunal had first found that the applicant had achieved all the speeds required of her, but had then gone on to find that she had not and that was unfair. It is clear when you look at it, that it is a purely verbal point. One only has to insert one other word in the decision to make it absolutely clear that the tribunal were referring to the demands which were being made on her, shortly before she became unwell; then she was not achieving the speeds required. They go into the history of all that.
The next point which Miss Marks takes is concerned directly with the illness. There was pressure at work and it was perverse of the tribunal not to conclude that dismissal was unfair because she was unwell. The tribunal specifically directed themselves to that point.
Then, say Miss Marks, it was unreasonable for the tribunal to look and find whether there was any corroboration of the complaint regarding racial discrimination by looking at Mr James's evidence. He had been one of the managers against whom a particular complaint was made. On the contrary, it appears to us to be entirely reasonable for the tribunal to look at the evidence of the person against whom the complaint is made, and see if they can find there any indication that the complaint is a true and proper one. Of course they would not restrict their attention to that. Nor did they. They looked at all the circumstances. But it is entirely reasonable for anybody against whom a complaint is made to be allowed to answer, and for a court to listen very carefully to what she or he says, and try to see the truth of the matter. It is surprising how often, as anybody who is regularly in court knows, corroboration does leap from the mouth of the person who is accused. So it was very reasonable for them to look at that.
Miss Marks took a particular point again, now under paragraph 8 of the further and better particulars, that no consideration appears to have been given to various matters, in particular the failure of the respondents to provide the global custody charts and statistics of those relating to Ms Charlton's performance. We are told by Miss Marks that in fact this was a point which was made in front of the tribunal. It is true that the tribunal do not deal at length with this, or indeed refer to global charts, or global systems, under that name at all. But the fact is that a tribunal is not bound to deal with all the points which are made. If, indeed these documents - as we have been told - were asked for without success, then that is one very good point. The point which answers it is that, if you are dissatisfied with the documents that are produced by the respondents, you can ask for an order for discovery. Why was that not done? So that is a point on the other side.
Overriding this, the tribunal were bound to find whether the employers had acted reasonably, not whether they were right or wrong in forming the view which they did, but whether they had acted reasonably in forming that view; and of course whether they were guilty of discriminating on the grounds of race. They were bound to enquire into those matters. They did not have, after a hearing which went on for three days of the five allotted, to set out all the evidence which they found unhelpful; or, indeed, all the evidence on which they acted. That is not part of their duty. What they do have to say is why they reached the conclusion which they did. It appears to us that they have done that. Then we have to look and see whether there are any obvious errors of law in what they say. It has not been suggested to us that there are. We have looked; there are not.
Then we have to ask ourselves, is there shown to us a fairly arguable case, which is what Miss Marks has alleged, a fairly arguable case that there was here perversity; that is to say, no evidence to support an important part of their findings, a material part; no evidence on which they could reach an important conclusion; or that the evidence was all one way and the tribunal simply ignored evidence which was all one way without even saying that they rejected it as untruthful or unreliable, or as the case might be. Was there in that sense an error of law? We are quite unable to find an error of law. Everything that was said to us by Miss Marks indicated to us that a different tribunal might, as a hypothetical matter, have taken a different view of the facts. That can be said about almost any decision of any tribunal of fact. Miss Marks put to us various arguments which might well have appealed to a tribunal of fact as being cogent arguments.
But in the end we are completely dissatisfied with what is put before us as suggesting that there is an arguable point of law. Our jurisdiction is simply to try points of law. We cannot under the statute which creates our jurisdiction entertain appeals on questions of fact. We are all of us entirely satisfied that there has been put forward here no fairly arguable point of law. There have been assertions, the first and most important of which has been withdrawn. There have been assertions that there are points of law, but on examination it is impossible to substantiate them, in a way which would allow us to say that this is fairly arguable. It is easy to make assertions and to say, as this Notice of Appeal does in its further particulars, that there are all sorts of different conclusions which might have been reached. What we have to do is to look and see whether it can be substantiated. That is why we adjourned it in the first place - to see whether it could be substantiated that there was a case of unfairness or bias by the tribunal. We looked for that, and we looked in vain.
We have now heard Miss Marks as we have reviewed our decision. We have heard all that she has had to say in relation to the grounds which are actually put forward in the Notice of Appeal. We are not satisfied that anything is said which enables us to say that there are any fairly arguable grounds of law here in support of this appeal.
In those circumstances, first of all we do review decision for the reasons I have indicated. Secondly, having reviewed our decision, we rescind the decision to allow the appeal to proceed, and say that no grounds are shown to us, and that in particular we were seriously misled on the ground on which we did give leave to proceed, and that therefore the appeal must be dismissed at this stage, instead of incurring all the expense and loss of time which would be involved in a full hearing.
We are grateful to Mr Hochhauser for his attendance and for his observations, but of course we are not relying in any way on what he has told us in reaching our decision because this is, in form and substance, an ex-parte hearing. So that apart from allowing the review of the appeal, we say that the appeal is to proceed no further.