United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	APPELLANT IN PERSON


 


JUDGE PETER CLARK: The Appellant, Mr Addoo, complained of unlawful discrimination on the grounds of his race; he is black; of Ghanaian origin; and his sex against his employer, the Respondent Trust. The complaint was heard on 11 and 12 March 1996 by an Industrial Tribunal at Stratford chaired by Mr A Hossain. Each of the Appellant's specific complaint of discrimination were examined and rejected by the Industrial Tribunal for reasons given in full in a document dated 29 April 1996.

Now he appeals to us and in addition to his notice of appeal, has carefully set out, having the advantage of being a member of the English Bar, his arguments in a skeleton argument. He has taken us through those submissions in oral argument this morning and we shall deal with them in the order which he presented them to us.

First he complains of bias on the part of the Industrial Tribunal and he makes specific allegations against each of the three members who sat to hear his case. First, the Chairman: the complaint is that at the outset the Appellant applied for further discovery and additional further and better particulars of the notice of appearance against the Respondent. It seems that on an earlier occasion those same applications had been dismissed by a different Chairman sitting in Chambers. Mr Addoo says that the Chairman, Mr Hossain, told him that he would not sit on appeal against a decision of his colleague. Of course, that is right, one industrial tribunal chairman cannot sit to hear an appeal against a decision of another chairman. However, Mr Addoo rightly pointed out that he was not asking the Chairman to hear an appeal but to hear a renewed application for interlocutory orders. The Chairman has power to consider those further applications. The Chairman withdrew with his Members and decided that he would hear the applications, duly considered them and dismissed them for the reasons set out in paragraph 7 of the extended reasons. It seems to us that there is no appearance of bias on the part of the Chairman by taking that course. Secondly, the Member, Mrs Smith, whom the Applicant says remarked when shown some statistical material, that she could not properly understand it. We are unable to see how that could be characterized as showing bias on her part. Finally, the third Member, Mr Murphy, apparently told the Appellant during the course of his cross-examination of a witness, that he had to accept the answer given by the witness on more than one occasion. It seems to us that that is not an unusual way of moving the proceedings along and, therefore, we reject the complaints of bias against each of the Members of the Tribunal.

Secondly, Mr Addoo makes complaint about certain findings of fact and the detail of the findings of fact. We have considered each of those complaints and we are quite satisfied that whether his complaints were right or not they make no difference to the overall decision reached by the Industrial Tribunal and we do not consider that that point raises an arguable point of law for the purpose of this case proceeding to a full appeal hearing.

Next, he complains about the lack of statistical information provided by the Respondent and he points out correctly that it is for him, as Applicant, to prove his complaint of discrimination. It seems to us that where Respondents fail to provide sufficient statistical information, it is then open to the Industrial Tribunal to drawn an inference of discrimination against that employer. However, in this case the Industrial Tribunal chose not to draw that inference and that, it seems to us, was a matter for them, they, having heard all the evidence and weighted it in the balance.

Next, he complained that before the transfer of the undertaking in which he was employed to the present Respondent, the Newham Healthcare NHS Trust, the previous employer sought to impose unilaterally new terms and conditions of employment and a new rota on members of the night shift, of whom the Appellant was one. He rightly points out that an employer cannot unilaterally impose new terms and conditions and, indeed, we see that he applied successfully for an injunction to prevent such implementation. However, in the context of this complaint of race discrimination, Mr Addoo very fairly tells us that the members of the night shift were of mixed race and that the attempt to impose the new terms and conditions was applied across the board to each member of the night shift. In these circumstances we cannot see that any challenge can properly be made to the Industrial Tribunal's finding that this allegation of discrimination should be rejected. It is dealt with in paragraph 19 of their reasons.

The next point returns to his application at the outset of this hearing for further and better particulars of the notice of appearance and discovery. The way his puts this point is that the Industrial Tribunal erred in the exercise of their discretion in refusing to order further particulars and discovery. We have considered that submission and the way in which the application is dealt with in paragraph 7 of the Tribunal's reasons. It seems to us that there is a wide discretion given to Industrial Tribunals in relation to such applications. The Tribunal bore in mind that this originating application was filed as long ago as 19 May 1993 and that a good deal of discovery had already been given by the Respondent on application by the Appellant and, indeed, they had provided further and better particulars of their notice of appearance in answer to an earlier request by him. In our view a Tribunal is entitled to say in March 1996, nearly three years on, that enough is enough and to call a halt to these interlocutory applications and, again, we can see no error of law in the Tribunal's approach in relation to this matter.

That leaves two further points, the first is he complains that the Respondent made an application to the Chairman for, in effect, a costs warning, if at the end of the day the Tribunal decide that the Appellant had unnecessarily prolonged the proceedings. He says that that was used as a means of discouraging his cross-examination but it seems to us that that was a perfectly proper application for the Respondent to make and we notice that there is no question here of any order for costs being made against the Appellant.

The final point is a general perversity submission. What happened, we see from the structure of the Tribunal's reasons, is that they took each of the individual complaints made by Mr Addoo, going back as far as 1975, although no objection was taken to going back that far by the Respondent, and in relation to each complaint they have given their reasons, having heard the evidence, for rejecting the suggestion that what happened on each of those occasions was prompted by his race. Overall, they concluded that there was here no unlawful discrimination on the grounds of race or sex and having considered their reasoning, we are unable to say that there is any prospect of the Appellant succeeding in showing at a full hearing before this Appeal Tribunal that that conclusion was perverse in the sense that no reasonable industrial tribunal properly directing itself could come to that conclusion.

Therefore, having considered each of the grounds put forward by the Appellant, we are driven to conclude that none of them raise an arguable point of law and, therefore, at this preliminary hearing the appeal must be dismissed.