United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS D KELLY (Representative)
For the Respondents	MISS H MOUNTFIELD (of Counsel) The Solicitor Leicester City Council Town Hall New Walk Centre Welford Place Leicester LE1 6ZG


 


JUDGE PETER CLARK: The Appellant, Mr Sandu commenced employment with the Respondent Council on 17 December 1985. He held the post of Planning and Research Officer in the Department of Leisure Services. On 30 June 1992 he gave notice of resignation which expired on 31 August 1992.

During the employment he presented a complaint of unlawful direct racial discrimination to an Industrial Tribunal on 29 January 1992 (the first complaint). He is of Asian ethnic origin. Following termination of the employment he presented a further complaint on 27 November 1992 alleging unfair constructive dismissal (the second complaint). Both complaints were subsequently consolidated by consent.

The hearing of the consolidated complaints had a false start. A hearing commenced before the Leicester Industrial Tribunal on 4 January 1994, scheduled to last for four days. On the third day, 6 January, the Appellant failed to attend. Subsequently, on 9 March, that Industrial Tribunal struck out the proceedings.

The Appellant appealed successfully to the Employment Appeal Tribunal against that order. In a judgment delivered by Judge Levy QC on 21 March 1995, the strike-out order was set aside, and the complaints were reinstated. This Tribunal directed that the matter be reheard by a differently constituted Industrial Tribunal sitting at Leicester.

The further hearing commenced before an Industrial Tribunal sitting at Leicester and chaired by Mr A.C. Tickle on 4 September 1995. It sat for a total of 23 days, terminating on 15 December 1995. Three of those days, 8 - 10 November, were taken up with a contempt hearing in respect of which the Industrial Tribunal issued an interim decision with full reasons dated 11 April 1996. We are not concerned with the contempt proceedings in this appeal.

Following the conclusion of the hearing the Industrial Tribunal spent several days reviewing the evidence, both oral and documentary. The trial bundle extended to over 600 pages.

In Extended Reasons, also dated 11 April 1996, (the reasons) running to some 38 closely typed pages, the Industrial Tribunal carefully set out their findings of fact; the issues and their conclusions on those issues. They dismissed both complaints for the reasons given. As to the first complaint, they made findings as to whether or not there had been less favourable treatment of the Appellant; where they found that there had been, they accepted the Respondent's explanation for such treatment, directing themselves in accordance with the guidance to be found in the judgment of Neill LJ in King v Great Britain China Centre[1992] ICR 516, 528F - 529C. We find those principles accurately set out in paragraph 9 of the reasons.

Secondly, they considered the complaint of unfair constructive dismissal and found that there had been no dismissal. There is no appeal against that finding.

Finally, the Tribunal acceded to an application on the part of the Respondent for costs, and awarded costs in the sum of £275 against the Appellant.

The Appeal

The Appellant appeals against the Industrial Tribunal's findings that he was not discriminated against on the grounds of his race. Secondly, he appeals against the costs order.

Appeals to the Employment Appeal Tribunal

Appeals to this Tribunal from decisions of Industrial Tribunals lie only on a question of law. The Industrial Tribunals Act 1996 Section 21(1).

It follows that it is not our function to retry questions of fact. That is the exclusive province of the Industrial Tribunal which saw and heard the witnesses, in this case over many days.

Perversity

The grounds of appeal, developed by the Appellant's wife, Ms Kelly, who has appeared on his behalf throughout, are based on perversity. We can discern no complaint of self-misdirection in law on the part of the Industrial Tribunal.

In order to succeed on that basis it must be shown that the Tribunal reached a finding wholly unsupported by any evidence - see Piggott Bros v Jackson [1991] IRLR 309, or reached a conclusion which was an impermissible option, plainly wrong, or any of the other epithets helpfully collected by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, 443.

It is said that in a number of respects the Industrial Tribunal misunderstood or misapplied the facts. That formula, to be found in the judgment of Phillips J in Watling v William Bird & Son Contractors Ltd [1976] 1 ITR 70, 71G, has been disapproved by the Court of Appeal in British Telecommunications Plc v Sheridan [1990] IRLR 27. In the latter case McCowan LJ warned against the Employment Appeal Tribunal allowing an appeal because it took a different view of the facts from the Industrial Tribunal.

Chairman's Notes of Evidence

Ms Kelly acknowledges that the bulk of the grounds of appeal in this case cannot properly be advanced without the Chairman's Notes of Evidence relating to those issues there raised. See Piggott Bros and the subsequent case of Ministry of Defence v Hunt [1996] IRLR 139.

The procedure for obtaining Chairman's Notes is set out in paragraph 7 of the Practice Direction issued by Mummery J on 29 March 1996. It reflects the practice which has developed through the earlier cases on this topic.

Paragraph 7 provides, so far as is material;

(1) An Appellant who considers that a point of law raised in the Notice of Appeal cannot be argued without access to copies of the Chairman's notes of evidence should submit with the Notice of Appeal an application for production of the Chairman's Notes or should make an application in writing as soon as possible after service of the Notice of Appeal.

(3) The application must in either case explain why it is considered necessary to refer to the Chairman's notes in order to argue the point of law raised in the Notice of Appeal or Respondent's Answer. The application must identify

(a) the issues in the Notice of Appeal or Respondent's Answer to which the notes of evidence are relevant; and

(b) the names of the witnesses whose evidence is considered relevant; and

(c) the parts of their evidence alleged to be relevant.

(4) The application will be considered in the first instance by the Registrar who may determine the application on written representations.

(5) A party dissatisfied with the Registrar's decision on the application may request that the matter be referred to the President or to a Judge of the EAT who may direct an oral hearing of the application."

In this case the Notice of Appeal was lodged on 21 May 1996. On 26 November 1996 the Respondent's skeleton argument, settled by Miss Mountfield, was sent to the Appellant. It was there argued that certain grounds of appeal were unsustainable in the absence of the Chairman's Notes. Accordingly on 30 November 1996 Ms Kelly wrote to the EAT requesting the Chairman's notes without limitation. That is, notes of 20 days evidence. The following week the Registrar refused the application.

No action was then taken by Ms Kelly until today when she renewed her application for Chairman's notes. The position was reached where no further progress could be made in the appeal shortly before the lunch time adjournment. Faced with the risk of having to pay the Respondent's costs thrown away by an adjournment of this appeal, in order to obtain the Chairman's notes, Ms Kelly decided to withdraw her application for the notes. Accordingly her submissions on the issue of race discrimination are limited to three grounds:

(1) that the Industrial Tribunal failed to determine an issue central to the Appellant's case, namely that he was effectively demoted when the directorate to which he belonged was abolished by Mr Llewellyn, the Director of Leisure Services, and replaced by a Top Management Team and a Senior Management Team. The Appellant was a member of the latter, but not the former. Her case was that the Appellant was not invited to provide input into the Top Management Team meetings, his responsibilities having been in part transferred to Mr Williams, the Deputy Director who was a member of the Top Management Team.

Ms Kelly developed that submission at length. It focuses on paragraphs 19 to 21 of the reasons. Having considered her submission we are quite unable to detect any error of law in the Tribunal's approach. They found that there was no unfavourable treatment of the Appellant in this regard, but even if there was, they accepted the Respondent's explanation for what they did. There was no discrimination on racial grounds.

(2) It is said that there is a conflict between the findings made by the Industrial Tribunal in paragraph 25 of the reasons when compared with those in paragraph 44. Having heard Miss Mountfield on this point we are satisfied that no conflict exists.

(3) There is what amounts to a challenge to findings of fact made by the Industrial Tribunal in relation to conversations between Mr Llewellyn and Mr Powell. It is not necessary to go into detail. As we observed earlier, questions of fact are for the Industrial Tribunal, not for us.

In short, we can see no grounds in law for interfering with the Industrial Tribunal's finding as to race discrimination. Their reasons are unimpeachable. They speak for themselves.

The Costs Appeal

The Tribunal found that the Appellant and Ms Kelly consistently arrived late for Tribunal hearings. There were delays caused by breaks for photocopying. On the last day Ms Kelly left her closing submissions at home and had to go back to get them. The Tribunal estimated that at least one full day's hearing time was lost in this way. They regarded that behaviour as unreasonable conduct in the conduct of the proceedings within the meaning of Rule 12(1) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993. Taking into account the Appellant's earnings of £20,000 per annum in his new employment they ordered costs against him in the modest sum of £275. We note from an affidavit sworn in these proceedings by Mr Cross, the Solicitor for the Respondent, that the total legal costs were estimated at £14,435.

In our judgment the Industrial Tribunal acted within the ambit of their discretion in making the costs order which they did. There are no grounds for interfering with that order.

It follows that this appeal must be dismissed.