United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR T LINDEN (of Counsel) Messrs Capsticks Solicitors 77-83 Upper Richmond Road London SW15 2TT
For the Respondent	THE RESPONDENT IN PERSON


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal from an interlocutory decision of an Industrial Tribunal held at London (North) held on 19th May 1997. The decision of the tribunal was that the case should be adjourned. The applicant, Miss Runganga, was ordered to pay her former employers, the National Blood Authority, costs in the sum of £400 and to repay all the expenses and allowances to the respondent's witnesses for the attendance at the tribunal on 19th May 1997.

The part of the decision against which this appeal has been brought, relates to the admissibility of evidence which is contained in witness statements.

The background to this case is that Miss Runganga presented an IT1 in which she made a large number of discrete allegations of race discrimination against the National Blood Authority. They related to allegations involving her opportunities for moving towards a PhD. degree, as against the opportunities which were accorded to those who were not like her, of African origin.

Amongst those allegations was paragraph 10 of her IT1 which reads:

"10. In December 1995, it was officially announced that a TPH Section head had left. On 28 March 1996, I was to learn that staff who qualified for this vacant position had been asked to compete for the position. I was not given that opportunity even though I was among those who qualified. This position has since been filled."

She alleged that she had been denied opportunities for self-development that had been given to her white and Asian counterparts.

This is a serious complaint of race discrimination, and the employers, as they are entitled to do when confronted by such serious allegations, wish to see if the complaint could be reduced to some kind of manageable proportion, having regard, in particular, to the time limit provisions which apply to complaints of race discrimination. Accordingly, there was a hearing on 19th November 1996 which was a jurisdictional hearing to determine whether any of the applicant's complaints had been presented within time, so that the tribunal had jurisdiction to hear them.

In a decision which was sent to the parties on 5th December 1996, essentially it was concluded by the Industrial Tribunal that only that complaint which was contained in paragraph 10 or the IT1 should proceed for a hearing. The other allegations were out of time and the tribunal were not prepared to extend time by exercising their discretion. Although the allegation in paragraph 10 was also out of time, in relation to that allegation discretion to extend time was exercised.

At the same time as the hearing took place, the Chairman gave certain directions to the parties, and the matter came on for hearing at an Industrial Tribunal at London (North) on 19th May 1997. One of the directions that had been made was that they should exchange witness statements. But that did not take place until very shortly before the hearing was due to take place, namely 15th May 1997, with the consequence that the respondents, understandably protested at being taken by surprise by the contents, in particular, of a three page statement of a one Christine Bennett which had been provided and which the tribunal read.

Christine Bennett had worked in the personnel department of the respondent company, although she had left by March 1995. She, in her statement, refers to a number of matters which Counsel has made submissions about, and in her statement she expresses what she describes as a "professional judgment" based on her personnel experience, that the senior staff at the respondents have serious problems working with people of colour, that is black people of African and Afro-Caribbean origin.

The Industrial Tribunal having regard to that statement and Counsel's submissions to them that that statement took them by surprise as it had been supplied to them so late, ordered that the case should be adjourned. They made this finding in relation to that statement:

"3 ... It raises matters not contained in the Originating Application or the particulars thereof or mentioned in the Race Relations Act Questionnaire served by the Applicant previously. It is all new material and it goes to the issue of whether or not there existed a climate of racial discrimination within this particular workplace. ..."

In addition, the employers complained of part of the applicant's own witness statement which had been served, namely page 3 of it. And in relation to that page the Industrial Tribunal said this:

"3 ... Similarly, the Respondents seeks a ruling as to the admissibility of the third page of the Applicant's prepared statement, which relates to matters either not previously pleaded or particularised or to matters excluded by the decision of the Tribunal on 19 November 1996 as being out of time."

Paragraph 4 of their decision reads as follows:

"4 We have heard argument from both sides and have sympathy for the Respondent's position but essentially in cases like this the Tribunal is bound to be faced with having to draw inferences and those inferences will depend in great part upon what persuasive evidence we receive as to the sort of climate that did exist in the workplace. It would, we believe, risk great injustice to exclude the evidence of Christine Bennett and so we rule that that should be heard. So far as the third page of the Applicant's statement is concerned we see no reason to exclude that because the Applicant is bound to have to tell the Tribunal something of the background and it is for the Tribunal hearing the case to decide what of that is relevant and what weight should be given to it and what is not and should be given no weight. We therefore feel that it is appropriate to receive the evidence of Christine Bennett and the whole of the evidence contained in the written statement of the Applicant."

Mr Linden, on behalf of the respondents appeals that decision of the Industrial Tribunal. He says that the Industrial Tribunal failed to have regard to the dicta of this tribunal in a case called Chattopadhyay v Headmaster of Holloway School [1982] ICR 132. We should say at one that we fully understand what this Court was saying on that occasion, namely that Industrial Tribunals should be astute to make sure that the evidence which they receive on matters such as this, have some probative value. But it is to be noted that in 1982 the system which the Industrial Tribunal now uses to inform itself as to what the issues are, was not in existence. The system which the tribunals now regularly use is to ask the parties to provide them in advance with witness statements, so that they can be appraised before the hearing begins of where the issues are likely to lie and thus enable them to manage the case in a way which will do justice between the parties, but within a reasonable time span.

This appeal is simply a development from that practice. What Mr Linden is seeking to do is to ask a tribunal, in advance of the hearing, to rule out of account certain parts of the witnesses statements, and then when the tribunal make a decision on it to come to the Employment Appeal Tribunal for us to reconsider such decisions.

The purpose of having the witness statements, is, as I have indicated, to enable the Industrial Tribunal to manage the case at the full hearing. Difficult decisions will always confront them and the parties in cases such as these. The Industrial Tribunal will wish to be sure that the evidence which they are going to be receiving has some probative value. They will wish to exclude evidence which is offensive to one party or the other, which does not have a probative value. But it is difficult in advance of the presentation of a case to know precisely which part of which witness statement is going to be of probative value, and which is not. So far as the parties are concerned, when faced with witness statements they must take a sensible view as to the extent to which they need to present evidence to refute anything that is said in the witness statements of the other party. A sensible view will have to be taken as to whether it is worthwhile producing further witness statements to rebut that which is contained in the witness statement served on them, and whether further documentation needs to be produced. Those are difficult judgements for the parties to make.

But it seems to us, that it is not helpful to the running of the Industrial Tribunals that there should be appeals raising, in theory, questions which are much more easily dealt with when the Industrial Tribunal comes to the full hearing. It seems to us that it is not appropriate that a close analysis should be made of the witness statements in this case, picking out bits which might be probative on one view or on another view might not be probative. We prefer to take the view that the Industrial Tribunal's approach to this matter in paragraph 4 of their decision is entirely the correct one. They are not going to decide in advance of the case questions which they may have to resolve at the hearing. They recognise that to exclude the whole of Miss Bennett's evidence would carry a risk of great injustice to the applicant. That was a manifestly sensible decision. Whether Christine Bennett's statement will in fact assist them on the question whether an inference of race discrimination should be drawn, will be a matter for their better judgment having heard all the other evidence. Similarly, in relation to the witness statement of the applicant herself, although she seeks to go back over ground which is no longer directly in issue between the parties as a result of the decision in November 1996, it will be for the Industrial Tribunal to decide the extent to which that is likely to be of assistance them.

In those circumstances we have no hesitation in saying that this appeal must be dismissed. In order to challenge an interlocutory decision of an Industrial Tribunal, the appellant would have to show that the decision effectively was perverse. In our judgment, despite his attractive argument, Mr Linden has failed to persuade us that the Industrial Tribunal have fallen into error. On the contrary, we believe their approach to be sensible and correct, even though that is bound to leave the parties themselves with difficult decisions and judgments to make as to the presentation of their case. Accordingly, the appeal will be dismissed.

[Mr Linden applies for leave to appeal on behalf of the appellants to the Court of Appeal]

Mr Linden has asked for leave to appeal on the ground that it is within his experience that there are case management problems in relation to discrimination cases before Industrial Tribunals of which this Court is aware. He says in those circumstances, that there is room for more than one view as to how this appeal should have been dealt with, and accordingly asked for leave to appeal.

We do not agree with him. We are conscious of the difficulties of dealing efficiently and effectively with discrimination cases. This is a matter largely falling within the prerogative of this Court as the supervisory body over Industrial Tribunals. I can indicate that I am already putting in hand steps to see if the practice and procedure of the Industrial Tribunals may be improved, so as to enable justice to be more fairly and speedily done. We think that the Court of Appeal are not likely to wish to become involved in that process. We do not think that there is any point of law or any principle involved in this appeal. This is a matter of practice and procedure, and we do not grant leave to appeal.