United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR STUART BARBER (Representative) UNISON 17 Highfield Road Golders Green London NW11 9PF
For the Respondents	MR S DEVONSHIRE (of Counsel) Instructed by: The Solicitor London Borough of Brent Chesterfield House 9 Park Lane Wembley HA9 7RW


 


MR JUSTICE MORISON (PRESIDENT): Following nine days of evidence, an Industrial Tribunal held at London (North) and presided over by Mr P R K Menon, dismissed Miss Marina Raveneau's complaints of unlawful race discrimination and awarded her employers, the London Borough of Brent ["Brent"], who were the respondents to her complaints, the sum of £500 towards their costs. The tribunal said that the case should have taken no more than three to four days to hear. They concluded that she had acted unreasonably in the conduct of the proceedings. The Applicant was represented by Mr Barber, a regional official employed by the trade union UNISON who has represented her on this appeal. The respondents were represented by Mr Devonshire of Counsel both in the Industrial Tribunal and before us.

The underlying facts:

The Applicant is of mixed racial origin. She is and was at the relevant time employed by Brent in its social services department as a mental health social worker. She started with them in January 1984.

On 18th February 1994 she presented an Originating Application to the Industrial Tribunal contending that she "was discriminated against on the grounds of race by virtue of the decision to refuse me paid release to attend the advanced social worker course in mental health at London University". After that passage a handwritten note had been added which read: "(This was what I believe to be the latest act of discrimination linked to past episodes.)" The following month she served a Race Relations Questionnaire. There was a hearing for directions on 9 June 1995 and the directions given were recorded in a letter dated 20 June 1995 in the following terms:

"2 Mr Barber confirmed that the Applicant was alleging further acts of discrimination in addition to that claimed in the Originating Application i.e. the refusal to allow her to attend the advanced social work course in mental health. He said that the Applicant would be alleging other acts of race discrimination culminating in that final act. As this amounts to a significantly greater case than was originally envisaged with a number of additional witnesses who will be necessary, it was agreed that the case would be adjourned and re-listed for a ten day hearing.

3 It was ordered that the Applicant should provide a list of the allegations of race discrimination which she alleges and to say how she says that they continued up to the final act of discrimination being the failure to send her on the mental health course."

In accordance with the tribunal's directions she presented an amended IT1 on 23rd June 1995 setting out five further complaints culminating in the sixth complaint, which was her original complaint.

Complaint one was that during the period from 10th November 1988 and continuing up to this time, Brent failed to investigate her complaint that she had been racially abused by another Brent social worker who had called her "half-breed" and had threatened her with violence.

Complaint two was of her employer's alleged obstruction, harassment, victimisation and discrimination during September 1988 to March 1992 in relation to her application to foster a child who was in Brent's care.

Complaint three related to her employer's alleged obstruction of her return to work after she had successfully completed the CQSW course in July 1989. The 'obstruction' upon which she relied is fully summarised in paragraph 6 of the Industrial Tribunal's decision.

Complaint four related to the period from 21st February to 20th December 1990 and the employer's failure to approve her as an ASW following a successful completion of a course which ran from January to April 1991.

Complaint five was that she had been denied in-house training between February 1992 and July 1993 and a specific denial on 23rd December 1993.

Complaint six was in relation to the refusal in November 1993 to permit her paid release to attend the advanced course in mental health.

At the end of her amended claim the Applicant stated:

"I firmly believe that all the above complaints are linked and that the 'final act' [complaint six] was for me, the last straw."

Brent presented an amended Notice of Appearance dated 2 November 1995 which denied the individual allegations made and set out the following contention:

"8.14 It is denied that the allegations made in Complaints numbered 1 to 5 are in any way linked to each other or to the claim made in Complaint No.6. It is further denied, insofar as it is alleged, that the matters complained of constitute continuing acts of race discrimination."

When the matter came on for hearing on 4 July 1996 Brent invited the tribunal to rule on the Applicant's contention that the complaints were inter-linked so that complaints 1 to 5 which appeared to be out of time could be linked with complaint 6 which was within time so as to form a continuing act of discrimination, or whether they were all free-standing acts in which case complaint 6 would be the only one which had been presented within the three month time limit period. The Industrial Tribunal's conclusion on this preliminary issue is set out at paragraph 10(5) of the decision:

"Having given careful consideration to the submissions made by both parties, the Tribunal unanimously decided that the complaints were all free-standing acts which occurred on different dates between 10 November 1998 and 23 December 1993 and that they could not be collectively described as one "continuing act" of discrimination stretching over that period. It followed, therefore, that the alleged acts of discrimination set out in complaints 1 to 5 occurred outside the three month limitation period in section 68(1). Complaint 6 was presented within the statutory limitation period. The Tribunal unanimously decided that it would not be "just and equitable" to allow the Applicant to present complaints 1 to 5 for the Tribunal's consideration as alleged acts of discrimination. Those complaints go as far back as 1988. The Applicant had received advice from the union throughout the period. Complaints 4 and 5 are clearly relevant as background evidence to complaint 6. The tribunal was not so sure, not having heard all the evidence at that stage, as to the relevance of complaints 1 to 3 to complaint 6. However, the tribunal ruled that the Applicant could adduce evidence in relation to complaints 1 to 5 as background evidence to complaint 6 on the authority of Commissioners of Customs & Excise v Eke [1981] IRLR 234."

The case proceeded on the basis that complaints one to five were dismissed but could be relied on as background evidence in support of the complaint 6. The Applicant called ten witnesses including herself and Brent called three. There were in addition a large number of documents before the tribunal.

The tribunal's findings:

Having referred to the relevant statutory provisions and to the leading authorities on discrimination and victimisation, the Industrial Tribunal proceeded to make findings of fact in relation to each of the six complaints from paragraph 14 onwards in their decision.

In relation to complaint one they accepted that whilst the Applicant was on the picket line a social worker, Ms Hinds, who was not a picket had an altercation with another picket. The social worker had used what appeared to be unacceptable language; the Applicant was upset by this and remonstrated with her, whereupon the social worker turned on the Applicant and threatened her with what the Applicant perceived to be physical violence and said, referring to her "I don't know who she is, fucking half-breed". Following that incident the Applicant wrote a letter of complaint to her employers and there was a series of correspondence thereafter between her trade union and management. The Race Relations Adviser apparently advised management that her complaint should not be resolved through the racial harassment guidelines and he advised management to interview the social worker concerned but she refused to be interviewed. Based on this advice, Mr Bibby, the Deputy Social Service Director, decided that no action would be taken against the offending social worker. The Applicant alleged that the failure to investigate her complaint was a continuing act up to the date of the tribunal hearing.

The tribunal concluded that Mr Bibby's decision to take no action was based on advice from the race relations advisor and the controller of personnel, and there was no evidence presented by the Applicant to suggest that their advice was based on racial grounds.

In relation to complaint two the tribunal found that the Applicant's application to become a foster parent raised the possibility of a conflict of interest if she was to be posted in a department dealing with fostering. The tribunal stated that they were unable to find any evidence of discrimination or victimisation in Brent's handling of her application and no link between this complaint and complaints 4, 5 and 6.

In relation to complaint three the tribunal found that the Applicant was not placed in a social work post on her return from her CQSW course in July 1989 because her application to be a foster parent and the resulting conflict of interest made her a special case. The tribunal also found that the Applicant had narrowed her options by specifying a desire to work in the Children and Families department and that there had been a lack of communication between the Applicant and her link worker during this period.

The tribunal found that Mr Bibby wrote to the Applicant on 24 August 1989 stating that she could return to work as a family aide but if she wanted a social worker post she would have to apply for it. There was then a meeting on 31 October 1989 between them where Brent's perception of 'conflict of interest' was spelt out. Subsequently the Applicant was informed through her solicitors that unless a social worker vacancy arose she would have to take a substantive family aide post.

On 12 February 1990 the Applicant reported to work as a family aide accompanied by a union representative. The Applicant and the representative raised her unhappiness at being given a family aide rather than a social worker post and at being posted in Kassinga House where Ms Hinds worked. Then, contrary to instructions to stay and familiarise herself with her place of work, the Applicant left to complain about her situation to personnel. She alleged that, on leaving, the Children and Families Team Leader, who was black, said to her "Your little fight is over". The tribunal, whilst accepting that this was said, interpreted this comment to be good advice that the Applicant should put the past behind her, and did not contain racial overtones. It found that there was no evidence of race discrimination or victimisation, and concluded that in fact the Applicant had been treated leniently considering that she had left work contrary to instructions.

In relation to complaint four the tribunal found that the reason for the Applicant not being selected to the Advanced Social Worker [ASW] course was due to the adverse reports of some of her facilitators. One of the reports was from a black woman who was an external facilitator, and one was from Ms Goddard the course organiser, who was also black. The panel which decided not to approve the Applicant included 2 black females, one of whom was Ms Goddard. Of the 5 appointed trainees, 3 were black women.

On 3 July 1991 the Applicant was informed that she would not be approved as an ASW and she was invited to attend a meeting to discuss her future. On 8 July 1991 the Applicant was informed that one of the areas for discussion was "displaced anger and rage" and its effect on the workplace. A meeting was held with the Applicant on 12 July 1991 at which the substance of the adverse reports was conveyed to the Applicant "word for word" although the identity of the authors was not revealed. The tribunal rejected the Applicant's contention that the adverse reports were "sham" reports prepared by the facilitators who were encouraged to do so by Ms Goddard. Instead they found the reports to be genuine and honest assessments of the Applicant's behaviour in the training sessions. The tribunal accepted that the Applicant had been given glowing reports from other supervisors, but their evidence did not invalidate the criticisms of the other facilitators.

The tribunal went on to state the following:

"The tribunal finds that the Applicant is of the firm belief that those who disagree with her or stand in her way are either racists (if they are white) or if they are black (e.g. Mr Goppy, Mr Robinson and Ms Goddard) they are themselves the unfortunate victims of racism and have inadequate perception of institutional racism (unlike the Applicant who has a very good understanding of it) and that they are used as "stooges" by their white managers in their campaign against the Applicant because she is an assertive black female standing up for her rights."

In relation to complaint five, the tribunal found that the Applicant was denied access to training on the ASW course in January - April 1991 because of genuine fears that she would repeat the behaviour displayed at the previous ASW course training sessions. The tribunal considered that Ms Goddard acted reasonably in taking the view that no reassurance could be given to the Applicant regarding access to future training courses.

Messrs Ludgate and Scammell gave evidence before the tribunal on behalf of Brent. The tribunal accepted their evidence that they did their best to place the Applicant on external training places with a view to her obtaining ASW status, but their efforts were hampered by the Applicant's uncooperative attitude and her union advisers view that they would not co-operate until they had been provided with copies of the adverse facilitator reports.

In relation to complaint six, the only complaint which the tribunal found to be submitted in time, the tribunal found that Brent had previously only sent ASWs on the Advanced Mental Health Training Course and at that time the Applicant had not attained ASW status. The decision not to allow the Applicant to take the course was taken by Mr Scammell. On hearing his evidence the tribunal found that he had not treated black and white applicants for training any differently from each other and that he had no knowledge of the Applicant's first complaint of discrimination. The tribunal accepted that Mr Scammell acted reasonably in refusing to send the Applicant on the advanced training course as it may have actually impeded her chances of obtaining ASW status, which Mr Scammell considered to be the most important issue to resolve in the Applicant's favour.

Accordingly the tribunal came to the following conclusion:

"20. In the light of the Tribunal's findings of fact, the unanimous decision of the Tribunal is that the Respondent [Brent] did not discriminate against the Applicant contrary to sections 1(1)(a), 2 and 4(2)(b) or (c) of the 1976 Act in relation to Complaint 6 which is the only 'within time' complaint."

At the conclusion of the hearing Counsel on behalf of Brent made an application that the Applicant pay a sum towards the costs of defending the claim on the basis that she had not made a rational attempt at the outset of the case to define the relevant issues leading to time being wasted on irrelevancies.

The tribunal found that much of the evidence in the Applicant's case had been irrelevant as the only evidence relevant to complaint six was that relating to complaints 4 and 5. The tribunal had heard evidence over 9 days; they considered that the hearing would have taken no more than 3 or 4 days but for the Applicant wishing to conduct a wide-ranging investigation into her employment from the date of the first complaint in November 1988. They also criticised the union for supporting her "vendetta" against Brent and the facilitators who gave her the adverse reports. Accordingly the tribunal awarded costs of £500 against the Applicant.

During the course of the hearing Mr Barber, the Applicant's representative, requested that the tribunal review its decision in relation to its finding that the first five complaints were submitted out of time. Mr Barber's ground for a review was that the directions hearing tribunal had found that there had been a continuing act of discrimination, hence the decision to list the matter for a 10 day hearing. Therefore the tribunal did not have jurisdiction to decide that there was no continuing act and ruled that complaints 1 to 5 were dismissed.

By a letter dated 23 September 1996 Mr Barber again requested a review of the tribunal's decisions in relation to the case as a whole. It was contended that had a different tribunal Chairman considered the application for review made on 13 July 1996 all six of the Applicant's complaints would have been allowed to proceed to a full hearing and the final judgment would have been different. The letter alleged that the Chairman revealed a "hostile approach" to both the Applicant and Mr Barber and the Chairman's comment "don't bother to ask for a review as we will only turn it down" was evidence of his hostile attitude.

The tribunal's decision on the application for review was promulgated on 8 November 1996. The tribunal explained that they had not dealt with the Applicant's first application for review because it was made prematurely during the hearing of the matter when a written judgment had not been given. The Chairman dismissed the request that the application be heard by a different Chairman on the ground that there was no provision for such a request other than in the exceptional circumstances of a Chairman being unavailable to hear a review.

The other matters raised in the applications for review were dismissed on the grounds that they did not come within the criteria of rule 1(a) to (e) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993, as they raised no new grounds of evidence or alternatively raised matters which were dealt with in the tribunal's written judgment. In relation to the Applicant's claim that the Chairman said "don't bother to ask for a review as we will only turn it down", he stated that he would not have expressed himself in such a way. It was accepted by the Chairman that he indicated to Mr Barber that applying for a review of the decision at the end of the case was pointless as the tribunal had heard full argument on all the matters and the more appropriate course was an appeal to the EAT.

The parties' submissions:

In summary, the Applicant's appeal was argued on six main grounds:

(1) that the tribunal erred in excluding the Applicant's first 5 complaints of discrimination from the application on the grounds that they were out of time, despite the complaints having been accepted at a previous interlocutory hearing and a direction made that all 6 complaints were to be heard;

(2) that the tribunal wrongly excluded relevant evidence concerning a white comparator with regard to the fourth complaint and not only was that a procedural error but it was also evidence of the perversity which it was contended was prevalent in the tribunal's decision;

(3) that the tribunal made perverse findings in relation to the sixth complaint and the alleged supporting evidence set out in complaints 4 and 5;

(4) that the tribunal, moreover the Chairman, was biased both against the Applicant on the basis of her race and against Mr Barber for representing her;

(5) that bias was evident in the awarding of costs against the Applicant when there was no evidence to support the finding that the bringing and conduct of the case was unreasonable and where no costs warning had been given when it would have been appropriate to give one;

(6) the final ground of appeal was an allegation that the tribunal failed to deal with the Applicant's request for a review of the tribunal's preliminary decision to exclude the first and fifth complaints and failed to consider the decision made in the earlier interlocutory hearing.

The principal submission made on behalf of Brent was that the tribunal's decision was not perverse but based on reasonable findings of fact which could not be interfered with, and that the decision was not tainted with bias as was reflected in the unanimous findings made.

Limitation period appeal:

It was Mr Barber's submission that the tribunal at the directions hearing on 9 June 1995 indicated they accepted that the Applicant had an arguable case in respect of the six complaints. By holding another preliminary hearing on the same subject the tribunal were seeking to re-open a point which was already the subject of a judicial decision and that this was a breach of natural justice. Alternatively, if the five additional claims were out of time, as Brent had been fully aware of all the Applicant's claims a year before the substantive hearing, there was no prejudice to Brent in allowing the claims to proceed, so the tribunal should have exercised their discretion in the Applicant's favour and allowed all her complaints to be heard.

It seems to us that at the directions hearing on 9 June 1995 the Applicant confirmed that she would be alleging a number of acts of discrimination in addition to, and culminating in, what would become known as the sixth complaint. As that amounted to a significantly greater case than the one originally pleaded the tribunal adjourned the case and ordered that it be re-listed for a 10 day hearing. However, at that time the detail with regard to those allegations was not known so the tribunal ordered the Applicant to provide details of the additional allegations and to say how they were part of a continuing act of discrimination up to the date of the failure to send her on the mental health course. The Applicant then submitted an amended IT1 setting out the five further complaints. It was only when the Applicant had submitted the amended claim and Brent had amended their IT3 that the full details with regard to complaints 1 to 5 became known and only then that a tribunal, fully appraised of the facts and having heard argument from both counsel, could determine whether the complaints were in time or not. We do not consider that the guidance given at the directions hearing made the question of whether the claims were 'continuing acts', or whether they were out of time, res judicata. It was open to the tribunal hearing the substantive claims to rule on whether the amended originating application contained claims which were 'continuing acts' or were out of time. Accordingly we do not consider that the tribunal erred in relation to this matter.

Procedural appeal:

The procedural ground of appeal was an allegation that the tribunal prevented the Applicant from adducing evidence in relation to an adverse facilitator report about a white colleague, Ms Sandilands, which was central to her claim of less favourable treatment. The Applicant had sought to argue the following. The identity of the person making the adverse report on Ms Sandilands was disclosed to her and she had successfully appealed against it report and had been approved as an ASW in May 1995; whereas the identities of the adverse comparators had been kept from the Applicant so she could not appeal. The Applicant also alleged that the tribunal's findings in relation to her own facilitator reports and those of Ms Sandilands were perverse.

The tribunal found that Ms Sandilands was not an appropriate comparator as her circumstances were entirely different to that of the Applicant. They found that the identity of the facilitators in the Applicant's case had insisted on anonymity, but had not done so with Ms Sandilands. There was no evidence that the decision not to disclose identities was based on race and there was overwhelming evidence that the Applicant was not approved as an ASW on grounds other than her race.

Having heard argument from both parties and having looked at the evidence before the tribunal we conclude that the tribunal properly dealt with the evidence relating to the facilitator reports. The only difference in treatment was that Ms Sandilands was informed of the identity of the adverse facilitator and allowed to see the report in question. Although the Applicant was not provided with copies of the adverse reports we note that they were read out in full to her at the meeting on 12 July 1991. The tribunal were entitled to conclude that that difference in treatment was not as a result of racial differences, but due to the request of the facilitators themselves.

Perversity appeal:

Further allegations of perversity were made in relation to the tribunal's finding in relation to complaint 5, that Ms Goddard had reservations about allowing the Applicant to attend the ASW course due to fears about her behaviour as exhibited during the facilitator meetings. Mr Barber submitted that it was perverse of the tribunal to accept Ms Goddard's reasons when there had been no evidence of a 'pattern of behaviour' and the allegations made against the Applicant were anonymous. We do not accept that submission. The tribunal found that Mr Ludgate, whilst not disclosing the authors, had conveyed the contents of the adverse reports to the Applicant word-for-word. She was therefore aware of the nature of the allegations made against her and had an opportunity to either raise a defence to the claims, pursue an appeal, or assure Ms Goddard that there would be no cause for concern in the future.

Ms Goddard was entitled to form an opinion based on those reports, as to whether it was appropriate for the Applicant to attend the ASW course. On the evidence before them, the tribunal were entitled to consider that Ms Goddard's decision was taken for management and not racial reasons.

Bias appeal:

The next element of the appeal, and one that gave us cause for concern, were the allegations that the tribunal, moreover the Chairman, was biased against the Applicant and/or against Mr Barber.

Mr Barber alleged that the tribunal acted in an unreasonable and unacceptable way in its conduct of the case and cited instances of the Chairman's excessive and hostile interruptions of the Applicant's evidence as examples of bias. Further examples included shouting at the Applicant and Mr Barber, 'playing up' to people in the public gallery, treating Brent's Counsel with undue deference, refusing to allow the Applicant to refer to all her evidence and continually trying to hurry the Applicant through her evidence.

In support of the claim of bias the Applicant submitted affidavits from Frances Dix, Mary Manion and Ruth Dowden. All three criticised the Chairman's handling of the case and in particular accused him of raising his voice, acting in an intimidating manner and of having a "dictatorial", "outrageous", "aggressive" and "dismissive" attitude towards the Applicant and Mr Barber.

In reply to the allegations made in the Notice of Appeal and the 3 affidavits, Mr Menon submitted a joint tribunal response on 21 July 1997. The Chairman denied the allegations made against him and contended that Mr Barber had acted in an unprofessional manner during the tribunal, which meant the Chairman had to take firm action on a number of occasions to maintain control over the proceedings. Any allegation of racial prejudice against the Applicant was expressly denied and the Chairman pointed to his experience when a practising barrister to indicate his positive stance on discrimination issues. In relation to the affidavits, the allegations that a tribunal member fell asleep, that a member of the tribunal gave indications that they were embarrassed by the Chairman's approach to the hearing, and that the tribunal treated Brent with deference and whispered to them during the proceedings, were all denied. It was averred that the affidavits were submitted by supporters of the Applicant who had in any event only witnessed a small part of the proceedings.

The alleged bias in this case was based on the conduct of the tribunal Chairman. As both parties accepted, the test of bias was objective: "Would the reasonable observer present at the hearing, not being a party, or associated party, gain the impression of bias?" (Peter Simper & Co Ltd v Cooke [1986] IRLR 19). It was not sufficient for the Applicant to show that she or her representative or witnesses considered that there was an appearance of bias; it must be shown that an independent observer would have done so. Our attention was directed to a number of helpful authorities on that point. In Docherty v Strathkelvin District Council (1994) SLT 1064, the Scottish Court of Session held that although a tribunal showed "excessive aggression" and a "bullying attitude", objectively there was no evidence to show bias. In Kennedy v Metropolitan Police Commissioner (1990) Times, 8 November 1990, it was held that, whilst tribunal members should confine themselves to "moderate and temperate" language, intemperate remarks made in exasperation and irritation at the unusual course of events would not indicate bias.

We considered that Kennedy was relevant to the present case. The Chairman in his letter of 21 July 1997 did not deny that he had occasion to raise his voice when talking to Mr Barber and he admitted that he had to interrupt both the Applicant and Mr Barber in order to retain control over the proceedings. We accept the Chairman's statement that Mr Barber continually tried to 'lead' his witnesses through their evidence in chief, often on irrelevant matters, and that the Chairman became exasperated in his attempts to prevent such a course of events. It would not be surprising if in those circumstances an independent witness, ignorant of the rules of evidence would deem the Chairman to be interventionist and perhaps hostile. It would also explain the allegation that the Chairman nodded at, or deferred to, Brent's Counsel. We are in no doubt that the Chairman was merely indicating that he had taken onboard Brent's objections to the manner in which the evidence was being given.

We found that Mr Barber can be somewhat 'over enthusiastic', to put it politely and without intending criticism, in his promotion of his client's case. We consider that his presentation of the case caused understandable impatience amongst the tribunal as irrelevant matters were dealt with in detail over a 2-week period. As the master of its own procedure a tribunal is entitled in the interests of justice to manage a case during the hearing so as to curtail what it considers to be irrelevant and prolix evidence and submissions. We are not prepared to say that the tribunal, in this case, overstepped the boundaries of propriety in its attempts to control the proceedings and the length of time the case was taking to be heard.

We also consider that the allegations raised by the Applicant have been exaggerated and/or taken out of their context. In relation to the complaint that the Chairman laughed at Mr Barber's request for a review, we have no hesitation in accepting the Chairman's version of events, set out in the review decision of 8 November 1996, that he would not have expressed himself in such a way, but may have stated that a review would be pointless and the Applicant would be better served by lodging an appeal. We accept that the tribunal's reference to the Applicant as being of Irish/Guyanese origin can only have come from evidence given by the parties and the tribunal cannot be accused of bias by making that finding, even if erroneous. Mr Barber criticises the Chairman for interrupting during his closing argument, but we again consider the tribunal's version more probable; that the Chairman was directing Mr Barber as to the topics on which the tribunal wanted to hear submissions. Finally we would add that any reference to "she" and "her" made by the tribunal in relation to the Applicant would be not be inappropriate and is not evidence of bias.

That said, this was a sensitive case. People of mixed racial origin are or may be especially vulnerable in the workplace. An environment in which the word 'half-breed' is used is quite unacceptable. It would appear that the learned Chairman may have been less sensitive to the issues than was appropriate. We do not criticise him for his conduct; but expressions of impatience on the bench should be regarded as a weakness, however provocative the behaviour of a party, witness or advocate. We would add that we consider the word "vendetta" used by the Chairman in the Decision as too strong. He will know that litigation is a fraught affair and things are said and done in the heat of the case which, perhaps, were best not said or done.

Costs appeal:

The main ground of appeal in relation to the award of costs was that as the tribunal had directed that complaints 1 to 5 could be referred to in support of complaint 6, it was perverse for them to subsequently punish the Applicant for adducing such evidence. The Applicant's submission before us was that no reasonable tribunal would have made a costs award in the circumstances of the case and the award was further evidence of the tribunal's hostile approach to the Applicant and her case. The Applicant raised the tribunal's reference to the trade union's "vendetta" against Brent as evidence that the tribunal had been influenced by their dislike of Mr Barber and his support for the Applicant's case in their decision to award costs. It was submitted that had the tribunal considered that the case should not have taken more than 3 or 4 days to complete the tribunal should have directed that cross-examination of the Applicant and the evidence given by Brent's witnesses be restricted to those matters deemed relevant.

In reply, Mr Devonshire argued that the Applicant was under a responsibility to adduce background evidence to support her claim with regard to complaint 6. The fact that she failed to limit herself to relevant evidence was properly reflected in the costs award.

We dismiss the Applicant's ground of appeal that as no costs warning had been given, the tribunal could not then order costs against the Applicant. A costs warning is not a pre-condition to the making of an order for costs.

However, we see force in the other points made by Mr Barber. The hearing lasted for 9 days; 10 had been set aside by the first tribunal. Thus the case had been completed within the allotted time span. Claims of unlawful discrimination require full and proper consideration. We are of the view that the costs order was unfair, in the circumstances.

Review decision appeal:

For the reasons already given in this judgment, we consider that the tribunal were entitled to hold a preliminary hearing in respect of the amended application and decide that claims 1 to 5 were out of time. For that reason we do not accept that the tribunal erred in not considering the notes of evidence from the earlier directions hearing in June 1995. We also consider that the tribunal acted reasonably in not reviewing their decision to exclude complaints 1 to 5 until after the hearing had finished and the extended reasons for the preliminary decision and decision to dismiss the Applicant's claim were promulgated. The tribunal approached the review with the correct legal principles in mind and dismissed it as having no legal merit. We cannot find any error in that finding.

For the reasons given in this judgment, the appeal on liability is dismissed; the appeal on costs succeeds and we reverse the tribunal's findings on that issue. There will be no order for costs before the Employment Tribunal.