United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R S SYMONDS Thames Welfare Rights Unit 200 Market Street Hyde Cheshire SK14 1HB


 


JUDGE HULL QC: This is an appeal to us by Miss Claudette Maureen Bond. The Respondents are City College Manchester, whose premises are at Wythenshawe. Miss Bond is a lecturer in mathematics. She was first employed on 1 September 1984 in the "Black Access Unit".

As we understand it that is a unit which specialises in the problems, particularly of coloured people, in getting access to higher education and in effect provides them (or anybody else as we understand who attends) with education which will enable them to achieve university entrance standards. These details do not matter very much but that was the nature of her task. There were a number of lecturers. The majority of people there were, as we understand it, black. There were at first problems which we are not concerned with but which led to various disciplinary proceedings. Those were all over in 1989.

There was a transfer in employment in 1993 under the reorganisation arrangements. In February 1995 the Applicant made enquiries about voluntary severance and on 8 June 1995 she applied for a voluntary severance package, under which she could retire early and would be paid a fairly substantial capital sum.

She was successful in that application and on 31 August her employment came to an end under the voluntary severance package. Shortly before that, on 16 August, she presented her application to the Industrial Tribunal at Manchester, complaining of racial discrimination. There was a response on 12 January 1996, in the IT3 Form, and there were further responses because she made Mr Gibson, who is the Principal of the College, one of the Respondents.

I should say that after this there was a preliminary hearing in the Industrial Tribunal for discussion of the case. The allegations of racial discrimination which were made were various ones. They centred on her own application for appointment to a Senior Lectureship, having been a lecturer in the main grade, she had applied unsuccessfully for a senior lectureship and had been unsuccessful even in being shortlisted and some of her complaints arose from that.

These events are helpfully referred to in the chronology which has been put in by Mr Symonds, to whom we are very grateful. There was a pre-hearing discussion on 17 May. The Applicant, who was then in person, simply did not attend (so far as we know without explanation or apology) before the Tribunal. The Tribunal, whose patience seems to be very great, appointed another preliminary hearing and there was a discussion on 12 July. Apparently, amongst the matters which were discussed were the question of representation and the great desirability of the Applicant obtaining legal representation.

Events thereafter are also in the chronology. In August she did indeed go to solicitors and apparently handed a trainee solicitor some papers in the case. She did not, apparently, do anything else about it and then on 4 September the Tribunal listed the case, named hearing dates and also made orders for witness statements to be exchanged twenty-eight days before the hearing, with a bundle and chronology to be agreed fourteen days before the hearing. Fourteen days was given to apply to vacate the hearing on the ground of unavailability of witnesses.

The Applicant is undoubtedly a lady of education and experience. She is not a mere youngster. She did nothing whatever to comply with the Tribunal's orders. Apparently she learned early in November that the solicitors whom she had instructed, who had apparently done nothing either, would want £3,000, on the face of it not an unreasonable or unexpected sum. It was to be a five-day case; whoever the solicitor advocate was to be (if it was to be a solicitor advocate) he would need to spend days preparing the case and engaging in correspondence and so that should not really have been a surprise, bearing in mind the very large overheads which solicitors have; indeed if Counsel were to be instructed, presumably a substantially larger sum would be required, because that would mean two lawyers rather than one. The Applicant was not prepared to retain the solicitors.

On 26 November the Applicant, having learned at the beginning of the month that she was not to be represented, applied for a postponement of the hearing. The Tribunal, which was to sit on 2 December, refused that.

Then we come to what happened at the hearing and the decision of the Tribunal. The Applicant attended before them. The Respondents had, apparently very belatedly, complied to some extent with the Tribunal's orders by putting in their witness statements and bundles. She had done nothing to comply with the orders and she started the proceedings by applying to the Tribunal for an adjournment. She made the following points:

1) She said she had an uncle in Jamaica who was seriously ill and she wished to go and see him. That was a matter, so to speak, of compassionate concern.

2) She had not obtained representation and wished to explore other possibilities as to representation.

3) That her main witness only came out of hospital the previous day.

4) That another witness had been burgled on the previous Saturday.

The Tribunal say that they took evidence from her in support of that application and also from a witness on her behalf. They set out the dates; the Originating Application had been presented more than fifteen months before. They set out the directions which they had given, the hearings which they had held. They say that the hearing date had been fixed on 4 September. They say that they had refused her application for a postponement of the hearing which she had made very shortly before, at the end of November. They reminded her that they had advised her to obtain legal advice right back in July. They say that she was not prepared to, or could not afford to, pay for legal representation. They refer to the injury to one of her witnesses and they say that they had made orders for the witness statements and documents and so on, and the Applicant had failed to comply with them, and they said as follows in paragraph 7:

"(i) It was unfortunate that the applicant's uncle was seriously ill but that was a matter to be considered in weighing the balance of prejudice

(ii) The lack of representation was not a good ground for adjournment, especially as the applicant had exhausted most options."

Paragraph 7(ii) is criticised. Lack of representation by itself cannot ever be a ground for granting an adjournment. Industrial Tribunals every day see people who are not represented. It may in particular circumstances be a ground for adjournment. In the circumstances of this case it was not a good ground for an adjournment. One asks how could they possibly be criticised for saying that.

They continue:

"(iii) The witnesses could attend on a later day in the week.

(iv) The balance of prejudice favoured the respondent."

There they were mentioning for the first time the interests of the Respondent. They were quite right to do so, because the interests of justice require them to be just, so far as they can be, to both sides and not just to the Applicant, and so they decided to refuse the adjournment which was requested. There is an appeal to us against that.

It does appear to us, with great respect, to be a matter entirely of discretion for the Tribunal. Here they were confronted with an Applicant, a lady of education and experience, who had deliberately flouted their orders and failed to take their advice and who was now asking for something which, on any view, would be gravely prejudicial to the Respondents and not just to the Respondents, but to the interests of justice generally, because she was making serious allegations of racial discrimination and it was clearly in the interests of the Respondents and of everybody else, and in the public interest, that those should be cleared up as soon as possible. If they were true, that was a very serious matter. If they were not true, that was a matter of great prejudice.

Then the Tribunal come to the second matter which led to Mr Symonds's criticism of them. They say this:

"9. On the second day of the hearing (Tuesday 3 December 1996) the applicant arrived at 10.20 am. She applied for a further adjournment as she had no witnesses with her and wished to have nine or ten witness summonses issued to arrange for attendance of witnesses. The applicant named the witnesses she wished to call. She had not obtained statements from any of the witnesses despite the order at the pre-hearing discussion for exchange of witness statements not less than 28 days prior to the hearing date. Six of the witnesses the applicant had not contacted and the remainder she had stated she had only asked the week previously to attend the Tribunal hearing and one or two had declined to attend. The applicant was unable to inform the Tribunal what the witnesses were able to say but considered that their evidence would be "significant".

Again, anybody who wishes a Tribunal to make a witness order against a witness must satisfy the Tribunal first and foremost as to what the witness can say, whether with a proof of evidence, an Affidavit, a short informal statement or whatever it may be. That is really a sine qua non, something which is essential. Secondly they must show that it is necessary in the interests of justice that that witness should have an order issued against him. Will the witness come voluntarily? Is it proper to expect the witness to come without an order against him? Those are the most important matters. But those are not the only matters. The Tribunal is entitled to look at the time the application is made. Here they were in the middle of the hearing. What would be the effect on these witnesses, about whose evidence nothing was known to the Tribunal? What would be the effect on them of granting witness orders? What academic would be dragged from his lectures or tutorials? What people would be taken from their families? What appointments would have to be broken? What expense would have to be incurred? The Tribunal had to consider these matters in a general way. They had no information about them, and here were nine or ten witnesses about whose evidence they knew nothing. This intelligent lady had defied the Court's orders about providing witness statements. If she had complied with those there would have been no difficulty about it whatever. The evidence which those witnesses would have been able to give would have been known to her and to the Tribunal and to the other side too, to the Respondents, and if the witnesses had not wished to come they would have said so and said why it was difficult or impossible for them to come.

Having considered those matters, the Tribunal refused the applications. She had had ample time to arrange the witnesses' attendance. There was no indication of the relevance of their evidence. Some of them had not even been asked to attend and the balance of prejudice favoured refusal of the application. They are criticised for saying this would inevitably lead or would probably lead to an adjournment. Why should they not say that! The prejudice which would be occasioned by an adjournment and the likelihood that an adjournment would be necessary if nine, ten or twelve witnesses were to be summoned peremptorily from whatever they were doing to give evidence, some of them not knowing what evidence they were supposed to give or what they could say which might help, was obvious. As we say, the Tribunal are not to be criticised for considering this and all other legitimate matters in exercising their discretion and they are certainly not bound to consider the matter in isolation as Mr Symonds submitted to us that they should.

The rest of the criticisms of their decision are not persisted in. They found that she had made an averment that there was some sort of conspiracy to get rid of her. Her application for voluntary severance she had described as a ploy to deprive her of her employment and then she had not gone on with that allegation. They go into a number of other matters. She was alleging that when she applied for this senior lectureship another lecturer of the same ethnic group was persuaded to apply after the Applicant had put in her application, so as to disguise the reason for the Applicant not being shortlisted, another allegation of very serious bad faith. She made allegations of race prejudice and discrimination of various sorts.

The Tribunal say that they heard the evidence of the Applicant herself and then they heard the evidence of the Respondent's Human Resources Manager; the Principal of the College; the Vice-Principal of the College; the lady who had chaired the recruitment and selection panel for the senior lectureship position. They had heard the Senior Lecturer in Equal Opportunities who had been a member of the panel. They had heard a previous member of the Black Access Unit. They say they looked at various document and they found a number of facts proved, which they set out at considerable length. It is a very long and thorough decision. In particular they deal with the way in which the selection was dealt with. They say as their finding of fact - after all this and after setting out that the Applicant had alleged that she was the victim of a vendetta by Mr Gibson, the Principal - that the Respondent conducted a proper selection and recruitment process and there was no discrimination.

The Tribunal directed themselves at great length about the proper principles which they should apply. They go into the history of it and in particular the Applicant's feelings about the matter and the way in which she was treated. They found Mr Forbes to be a witness who was "transparently honest" and a person of integrity. It is said that that finding is perverse and that they should not have accepted Mr Forbes' evidence. We simply cannot find that that is a submission which can be supported.

The Tribunal was satisfied that the selection procedure was totally objective and there was no scope for any prejudice or considerations such as were alleged. It is an unhappy thing, but this case, like so many others, involved allegations of bad faith made by the Applicant against the Respondents and against the individuals who were employed by the Respondents.

A person who makes such allegations must clearly be expected to take them conscientiously before the Tribunal and this lady did not. She was given a great deal of latitude by the Tribunal, for a person who had deliberately defied their orders and had failed to put her case in order. They heard her case. They were not prepared to defer it for the reasons given. Those were all matters of discretion for them. We think that there is no material here upon which we could possibly interfere with their discretion or say that there is anything wrong with their decision. As it was they found that her evidence was not evidence which they could rely on on the vital matters and that her suspicions and feelings about the matter were not justified; and thus they acquitted the Respondents of racial discrimination. They were certainly, in our view, entitled to take that course and to conduct the hearing as they did. It is a patient, careful and thorough decision and we are not prepared to interfere with it in any way.

In those circumstances this appeal cannot be allowed to go forward to a full hearing and we must dismiss it.