United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


JUDGE C SMITH: This is an application ex parte by Ms Chambers, the Applicant before the Industrial Tribunal, for leave to proceed to a full hearing of an appeal against a decision of an Industrial Tribunal held at London South over a period of 10 days in April and May 1998 of which extended reasons were sent to the parties on 20 May 1998 whereby the Industrial Tribunal dismissed the Applicant's claims for racial discrimination, sex discrimination, unfair dismissal, breach of contract and unlawful deduction of wages. We have reminded ourselves that this is a preliminary hearing and the Applicant only has to satisfy us that there is an arguable ground of appeal to be allowed to proceed to a full hearing of her appeal.

We have to note that neither the Applicant nor her consultant have attended upon us to today. They have not presented any oral argument to us today. But we have, of course, considered carefully all the documents that the Appellant has placed for us including, in particular, the Notice of Appeal, dated 1 July 1998 and the Appellant's affidavit, dated 28 July 1998. We have taken very careful note of everything that is said in those documents, apart, of course, from considering all the other documents that are in the bundle that has been prepared for this preliminary hearing.

In our judgment the Industrial Tribunal's decision is self-explanatory and no purpose would be served by rehearsing in this judgment what is clearly set out in the decision itself. Although this is a case where both parties were represented we have borne in mind - in our overall assessment of the case - the guidance given by the Employment Appeal Tribunal, particularly in a case called Tchoula v Netto Foodstores Ltd, as to the care that has to be taken by the Industrial Tribunal in dealing with difficult and lengthy cases of this kind involving very sensitive allegations relating to sex discrimination and race discrimination and we have of course borne in mind the advice given by the EAT in relation to the conduct of such cases. We consider that on its face this decision, speaking generally, bears all the hallmarks of a carefully thought out, carefully reasoned and very detailed decision in what was plainly, as we have already said, a very sensitive and difficult case. We have taken particular note of paragraphs 48 to 55 of the decision wherein the Industrial Tribunal express their conclusions.

Putting it very shortly, because the conclusions are, again, self-explanatory, it appears to us that the Industrial Tribunal held unanimously:

(1) That because there was no evidence of any discriminatory policy, practice or pattern of incidents prior to 28 June 1996, the complaint based on the allegation of race discrimination in 1993 was out of time and it was not just and equitable to place any burden on the Respondents, Mission Care, to explain that incident.

(2) That the Industrial Tribunal would consider and did consider all allegations between 28 June 1996 and 4 November 1997.

(3) That the Industrial Tribunal were not satisfied that Harvey Stephenson (who was the main protagonist of the Applicant) had committed any act of race or sex discrimination against the Applicant on 2 July 1996.

(4) That the delay, although regrettable, on the part of Ravensbourne - in effect the Respondents' predecessors in title - in investigating the Applicant's allegations of discrimination dated 12 August and 13 September 1996, although regrettable, did not amount to an act of race or sex discrimination for the reasons the Industrial Tribunal set out in paragraph 50.

(5) That in carrying out the investigation leading to the disciplinary action short of dismissal taken against both Mr Harvey Stephenson and the Applicant, Mr Armstrong of the Respondents acted thoroughly, speedily, professionally and even-handedly and there was no evidence that he acted unfavourably towards the Applicant on the grounds of race or sex.

(6) That in the alternative, with regard to any race discrimination on the part of Mr Harvey Stephenson, were there to be any, the Industrial Tribunal was satisfied that the Respondents had established the statutory defence under section 32(3) of the 1976 Act.

(7) That the dismissal of the Applicant with effect from 31 August 1997 was a dismissal for the reason of conduct and was a fair dismissal.

(8) That the Applicant had not been dismissed for asserting a statutory right within section 104 of the 1996 Act nor had she been dismissed in breach of contract nor was there any evidence of any unlawful deduction from her wages.

It is in that context we consider the voluminous grounds of appeal. The general complaint made, in vague terms, is that the Industrial Tribunal misdirected itself in law, misunderstood the evidence, reached perverse findings and was biased. This gives an indication of the wide scope of the points taken on appeal.

We consider the specific grounds of appeal made, paragraph by paragraph:-

Paragraph 7: As a statement of fact this is correct but it ignores the way the Industrial Tribunal properly dealt with this matter in paragraph 52 of the decision.

Paragraph 8: The Industrial Tribunal found that Mr Armstrong instructed Mr Holmes, the retired police officer, to make inquiries of all possible witnesses on the topic of discrimination.

Paragraph 9: If Mr Nathan gave such evidence it was rejected by the Industrial Tribunal in the light of their findings.

Paragraphs 10 and 11: In our judgment the Industrial Tribunal were fully entitled to reach the findings of fact they did in paragraph 50 on the evidence they heard as to the reasons why Ravensbourne delayed in investigating the Applicant's complaints.

Paragraph 12: The Industrial Tribunal specifically found that the delay in investigating the Applicant's complaints was not act of race or sex discrimination. They made no error of law in so finding.

Paragraph 13: This paragraph amounts to no more than a re-statement of the Applicant's case and evidence before the Industrial Tribunal which was largely rejected by the Industrial Tribunal for the reasons they gave.

Paragraphs 14 and 15: We are satisfied, in the light of the Chairman's comments in paragraph 10 of his letter dated August 1998 under the heading 'the guillotine', that Mr Cedenio was able to cross examine Mr De Souza fully and that he declared himself satisfied on this score. We have already considered this particular matter when dismissing the interlocutory appeal earlier today.

Paragraph 16: We are satisfied, on a fair reading of the decision, that the Applicant was given every opportunity to develop her case before the Industrial Tribunal.

Paragraphs 17 to 25: These paragraphs amount to an impermissible attempt to re-open findings of fact made by the Industrial Tribunal. The Industrial Tribunal had to make findings of fact based upon its evaluation of all the evidence it heard, not just the parts cited in these paragraphs by the Applicant.

Paragraphs 26 to 28: Here, again, we must conclude that the Applicant has done no more than present one side of the picture. The Industrial Tribunal made specific findings of fact relating to this incident in paragraph 27 of the decision. They also found as a fact, in paragraph 49, that no allegation of this kind had been made at the time of the incident or to the police by the Applicant. The Industrial Tribunal were amply justified in reaching this finding.

Paragraph 29: We do not accept that the paragraph referred to shows that the Industrial Tribunal misunderstood the Applicant's case in any way.

Paragraphs 30 and 31: We agree that the Industrial Tribunal intended the word 'sex' rather than 'race' be used in the second sentence of the extract quoted. Here, again, the Applicant is repeating her account of what took place whereas the Industrial Tribunal had to make findings on the conflicting evidence which was before them.

Paragraphs 33 to 35: In our judgment on the primary facts found by the Industrial Tribunal in paragraph 50 and in great detail in paragraphs 28 to 32 inclusive of the decision, the Industrial Tribunal were fully justified in drawing the inferences they did, as expressed by them in paragraph 50 of their decision.

Paragraph 36 (bias): We consider this discrete ground of appeal below by reference to this particular ground of appeal and the Applicant's affidavit sworn on 26 July 1998 together with the written response both from the Chairman and from the Respondents' Solicitors.

Paragraph 37: The Industrial Tribunal were entitled to find that the hearing and the appeal which led to the Respondents' decision to transfer the Applicant to Chiselhurst as a deputy manager had been fairly conducted and the reason the Applicant would not attend the work at Chiselhurst, as instructed, was because she would not accept the decision of the appeal panel, rather than as stated by the Applicant in this paragraph.

Paragraph 38: The Industrial Tribunal were entitled to find, on the evidence before it, that the Respondents had made a reasonable investigation of the Applicant's complaints in all the circumstances.

For all those reasons, subject only to the matter of bias, we find that we must take the view here that there is no arguable ground of appeal and that this was a decision where the Industrial Tribunal took the trouble to set out the issues, set out the relevant law, carefully find the facts and reach conclusions which were unexceptionable.

With regards to the allegation of bias; this is based upon the alleged misconduct of the Chairman in the respects set out in paragraph 36 of the Notice of Appeal as supported by the Applicant's affidavit. We have also taken fully into account the Chairman's written response and the letter of September 1998 from the Respondents' Solicitors. We have reminded ourselves of the duty upon members of an Industrial Tribunal to express themselves in moderate and temperate language and not in any way to give the appearance of a closed mind. We have borne in mind the approach of the Employment Appeal Tribunal in such cases as Peter Simper & Co Ltd v Cook [1986] IRLR 19 of the importance of justice being seen to be done and that the legal test is whether the reasonable, impartial observer sitting in the back of the Tribunal would form an impression that there was bias. On the other hand, we have also borne in mind the right and indeed, in our judgment, the duty of the Tribunal, through the Chairman, as masters of their own procedure, to control prolixity and irrelevancies and generally to control the difficult proceedings in front of them. It is through the eyes of the reasonable, disinterested observer that the matter must be judged, not subjectively by looking at the impression actually produced on the participants to the proceedings.

It is those legal principles which we have applied to the complaints made by the Applicant in paragraph 36 of the Notice of Appeal. In our judgment it is clear that it is to those matters alone that we must have regard (see paragraph 19 of the practice direction) together with the Applicant's affidavit used as the evidence as to the facts allegedly forming the basis of the complaint of bias.

Paragraph 36 (i) and (ii): This was a legitimate order by the Chairman to control prolixity.

Paragraph 36 (iii): Whilst no doubt there were frequent and necessary discussions between the Respondents' Counsel and the Chairman we cannot see that such would have given the appearance of bias to a disinterested observer. No doubt there were also numerous discussions between the Chairman and the Applicant's Representative. Assuming that the Chairman and Counsel may, at some point, have had an exchange to the effect that it was difficult to appeal an Industrial Tribunal decision they were doing more than stating what is the general understanding of those who practise before Industrial Tribunals.

Paragraph 36 (iv) to (vii) and (ix): In our judgment all these matters relate to the proper regulation and conduct of the hearing and were matters for the exercise of the discretion of the Industrial Tribunal some of which, no doubt, could have been but were not the subject of interlocutory appeals. We note that the Applicant was not slow to appeal since she did make one interlocutory appeal which we have already dealt with today (EAT/533/98).

Paragraph 36 (viii): In our judgment it is demonstrably the case that a large part of the Industrial Tribunal's careful résumé of the facts found by them was based on an evaluation of the Applicant's evidence which they note that they had heard over no less than three days. Particular examples - and they are only examples - are paragraphs 18, 22, 23, 27, 32 and 33 of the decision.

Paragraph 36 (x): This cannot amount to bias. It is a further attempt to review the Industrial Tribunal's conclusions as to the reliability and competence of Mr De Souza in the light of the evidence which he gave and cannot give rise to an allegation of bias.

We have also given separate and careful consideration to the remark attributed to the Chairman in the Applicant's affidavit at paragraph 9, which we do not find it necessary to quote, which the Chairman has not specifically responded to but, of course, we have taken very much into account the general tone and burden of the Chairman's observations. We find that we cannot regard this observation as anything approaching an arguable indication of some kind of bias on the part of the Chairman. In reaching that conclusion we have not only considered the words themselves, which do not appear to us to be in any way intemperate, inflammatory or anything of that kind, we have also considered the general approach of the whole Tribunal to this matter not least the way they expressed themselves when they were making their decision in relation to the appeal in regards to the "guillotine" in relation to Mr Cedinio's cross examination of Mr De Souza. In our judgment the way the Industrial Tribunal put the matter in that decision is eloquent testimony of the fair way in which the entire Tribunal, including the Chairman, dealt with this protracted and difficult hearing.

Accordingly, for all those reasons, which we considered it necessary to set out in some little detail, we have concluded there is no arguable point or ground of appeal with the result that this application will have to be dismissed.