United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J MITCHELL (of Counsel) Langleys Newport House Doddington Road Business Park Lincoln LN6 3JY
For the Respondents	MR A KORN (of Counsel) Legal & Secretariat Sessions House County Hall Maidstone Kent ME14 1XQ


 


MR JUSTICE BURTON: This is an appeal against an order made on 10 January 2000 contained in a letter on behalf of the Regional Secretary of Tribunals, which letter made clear that the Order itself had been made by the same Chairman, Mr Mahoney, who had given two earlier decisions interlocutorily in this matter which is an application in respect of alleged racial discrimination by Mr Kufeji against the Chief Constable of Kent County Constabulary.

1. The original decision was promulgated on 9 August 1999 and then there was a subsequent decision on an application for Review by the Respondent on 25 October 1999.
2. The decision in August, which included a conclusion that leave should in part be given to bring certain race discrimination complaints out of time, was set out in a lengthy and comprehensive judgment by Mr Mahoney. He begins by the conclusion that:

"(1) The Tribunal has jurisdiction to hear the Applicant's complaint of race discrimination but only in respect of those incidents that are alleged to have occurred after the beginning of 1997."

He further concluded that:

"(2) At trial, neither party shall be entitled to make reference to any matters alleged to have occurred prior to January 1997 either for the purposes of drawing inferences or for the purposes of testing the credibility of a witness in relation to denials in cross-examination or in respect of any other contentious issues of fact."

3. The Respondent was concerned that that meant that he was not able to make reference to any matters occurring prior to January 1997 for the purpose of supporting a case which he would wish to make, that any criticisms of or conduct towards the Applicant after January 1997 were justifiable on the basis of his conduct and / or capability irrespective of discrimination.
4. An order was made by Mr Mahoney with Members on 8 October 1999, which made it plain that the Tribunal varied the decision, to allow reference to incidents prior to 1997, set out at paragraph 5(k), (l), (m) and (p) of the 9 August 1999 decision, which related to the Applicant's work performance. The Tribunal also considered it fair and just that evidence could be adduced in relation to any other matters relating to the Applicant's work performance from the end of 1995, namely the date of the incident set out at paragraph 5(k) of the decision of 9 August 1999.
5. In the expectation therefore that they would accord with that the Chairman had made clear was to occur, the original grounds for complaint were to be amended. When those grounds of complaint, as amended, were received, however, they included, in paragraphs 5, 6, 8, 10 and 11, matters which, on the face of them, appeared to be foreclosed by the original decision of the Chairman to which I now return.
6. After the statements at the outset of his decision to which I have referred, Mr Mahoney set out in paragraph 5 of his decision of August the following:

"5 The Applicant's complaint involves 26 separate acts of discrimination which allegedly took place over a five-year period. In brief, they are as follows."

He then set them out as 5(a) through to 5(z). In the conclusion of the decision, at paragraph 18 Mr Mahoney says as follows:

"18 The Tribunal has weighed the probative value of the various alleged incidents above about which the Applicant complains and the length of time that such incidents allegedly took place before the Originating Application was lodged and have balanced that against the prejudice to the Respondent in having to deal with matters which have been raised so long after the alleged incidents took place. Having considered all the alleged allegations and the relevant case law, the Tribunal comes to the conclusion that in all the circumstances of the case, it is just and equitable for the Employment Tribunal to consider the Applicant's complaints which occurred from 1997 onwards and which are those set out at paragraph 5(t) onwards in this Decision. …"

7. What was submitted by the Respondent's application to the Tribunal which led to the Tribunal's letter of 10 January 2000, was that those passages of the apparently amended grounds of complaint in the paragraphs to which I have referred, went outside the subparagraphs of paragraph 5(t) to (z) which alone had been permitted to be pursued as substantive grounds by the Applicant.
8. The Applicant has appealed before us today the decision to strike out those passages. It became apparent very early in the appeal hearing that there has been, in the meanwhile, a substantial degree of agreement which Mr Korn, who appeared as Counsel for the Respondent, would submit to be concession by the Applicant, as a result of which only paragraph 8 was sought to be argued by Mr Mitchell, Counsel for the Applicant, as a live appeal before us.
9. The basis of that concession, which I conclude is an inevitable concession, and would certainly have been the subject of the same decision by this Tribunal had it been before us, was that to make allegations in the grounds of complaint in the form that they appeared in those paragraphs did indeed offend against the order of the Chairman in August.
10. It is one thing to rely on matters as founding an originating complaint with, of course, the consequence that if proved they lead to compensation, and another thing to refer, in the course of evidence to those same matters not as founding a complaint but as relevant to some other issue in the hearing. In a situation in which the Respondent is to be free to justify what was done after January 1997 on the grounds of justifiable criticism of the conduct or capability of the Applicant, the Applicant too must be entitled to refer to matters that have occurred before January 1997, to show either that he was not incapable or misconducting himself in the way alleged, but that the earlier criticisms of him were equally unfounded and could be explained as the same discrimination as occurred after January 1997, or, if he was for some reason to be criticised for misconduct or incapability, that that very misconduct or incapability arose out of the discrimination that he was alleging had occurred. All such matters can be relevant by way of evidence without founding a substantive complaint. It was in our judgment a sensible order both by way of case management and, also more importantly because but for his Order most, if not all, of those allegations would have been out of time, and in any event one not appealed against, made by the Chairman limiting the substantive grounds of complaint which were to be pursued in this Tribunal, without in any way intending, as was made clear by the Review Decision, as a matter of fairness to exclude any relevant evidence on any issues arising out of those complaints. Hence, the agreement that has been reached abandoning those passages in any form of complaint, but enabling them to be relied on as evidence if relevant.
11. What therefore survived, therefore, in the appeal before us was paragraph 8. This paragraph referred back to the pre-January 1997 alleged incidents of discrimination, and referred to the fact that a report had been made upon those alleged incidents, or those earlier incidents; the passage that was sought to be included and was crossed out as a result of the successful strike-out application before the Chairman in January, contained the following words:

"I stated that DS Kemp had omitted my complaints about being bullied and about feeling racially harassed."

12. The reason why those words would be important to the Applicant as facts is that it is part of the Respondent's case that the Applicant had never complained until very recently about any of these allegations of racial harassment, and the Applicant denies that and points to that occasion, apparently on 10 January 1997, as an occasion when he did make such a complaint. That is perfectly proper evidence to put in, and will be a matter of considerable contest between the parties at the hearing in relation to the complaints that have been permitted by the Chairman to be run. But Mr Mitchell before me today sought to justify the reinstatement of that passage in order to stand as a substantive matter of complaint.
13. We were entirely satisfied that that should not be so for a number of reasons. First of all, it is quite plain that the Chairman specifically ruled out, in the circumstances to which we have referred, paragraphs 5(n) and 5(o) which are the substantive matters of alleged bullying and such like which were complained of, and there is not (nor could be) an attempt to get that back in again by way of substantive complaint nor indeed, as I understand it, even by way of relevant evidence, although we reach no conclusion in that regard.
14. What appears to be said by Mr Mitchell is that there would have been further discriminatory conduct by way of the omission, when considering that alleged conduct, to refer to any complaints by the Applicant in a report prepared by Mr Kemp. That could perhaps be said to amount to further discriminatory conduct in itself, namely leaving that matter out of the report. Mr Mitchell does not however seek to make that point, because he accepts that that would be too closely connected with the matters about which there has been a specific order by the Chairman, and in any event it would, he says, be difficult to know precisely when that failure took place, dependent on when the report was prepared. But, he says, he should be entitled to allege, by way of a specific complaint of discrimination, that there was a complaint about the omission of such a complaint about the alleged conduct, which itself was discriminatorily not dealt with by the Respondents, and that that fresh discriminatory matter falls within the post-January 1997 area which Mr Mitchell says the Chairman permitted.
15. It seems plain that that is inappropriate to allow this to go ahead in the light of the Chairman's original Order. First, it itself would require a further amendment to the ground of complaint because there is not a specific allegation made in those terms. Secondly, it is wholly derivative, it is not simply secondary, as the complaint about the report would have been, were it made, but tertiary in the circumstances I have indicated, and it is an indirect method of getting round the very sensible and unappealed order which was already made by the Chairman.
16. It seems to us that, consistent with the Order already made, which allowed in certain matters which would otherwise have been out of time, it would be quite inappropriate to allow to stand as a substantive complaint such a matter, albeit that if it is relevant in relation to the complaints which have already been made, as it no doubt will be, then it could have come in as a matter of evidence.
17. That disposes of the appeal, because that was the only paragraph which Mr Mitchell sought to persuade us should be restored after the strike-out order. The Chairman however, in making the order, left in paragraph 11 which reads as follows:

"11. Throughout 1997, I approached DS. Simmonds on numerous occasions and requested that I be allowed to attend a Drugs Awareness Course …. DS Simmonds refused those requests without explanation. …"

When he left in that paragraph the Chairman apparently said, accordingly to the letter from the Regional Secretary of 10 January:

"Paragraph 11 stands if those events are proved and have taken place in 1997 but not otherwise."

18. Paragraph 5(s) of the original decision of August was one of those subparagraphs that was ruled out, and that alleged an express refusal by Detective Sergeant Simmonds of the request to go on a Drugs Awareness Course, which was placed in late 1996. Mr Mitchell has told me that that complaint is additional to those that are referred to in paragraph 11, which is said to relate to complaints throughout 1997, and it is not simply the fact that the date is wrongly stated in paragraph 5(s). He does not seek to reinstate paragraph 5(s), nor could he, but he seeks to rely on the contents of paragraph 11.
19. Mr Korn was permitted by us to put in a cross-appeal in the course of the hearing, not having previously done anything other than indicate an intention to serve a cross-appeal, to seek to say that consistently with the conclusion which we had reached and which, indeed, the Chairman agreed in relation to the other paragraphs, this passage too should go.
20. The argument was slightly different on this point. Paragraph 18 of the original decision, it seems to us, clearly was ruling out any of the identified subparagraphs in paragraph 5, other than those at 5(t) to (z), but the matter that was left uncertain was whether it was also intended to rule out any other allegation which might well have appeared in the pleadings, but which had not been set out by the Chairman in paragraph 5 of his August decision. Mr Korn told us that in fact there had been cross-examination of the Applicant in the course of the August hearing from which the Chairman had been entitled, if that was what he was doing, to reach a conclusion, not, of course, as to whether the allegations were true or not, but as to what the nature and date of the allegations were, and he submitted that what Mr Mahoney had done in paragraph 5 was to set out, exclusively, the only allegations which he was satisfied were in fact being made, and then to order only some of those to go ahead.
21. In the event it was not necessary for us to reach a conclusion on that argument because, during the course of an unfortunate adjournment for a fire alarm, Counsel between them came to an agreement that paragraph 11, or the substance of paragraph 11, could indeed be run and that, if there were alleged requests refused during 1997, that could be pursued by the Applicant.
22. The Tribunal, grateful for that agreement, have reached the conclusion that in order that this can be satisfactorily be dealt with, the right course is in fact to rid ourselves and, more important, rid the Tribunal which is going to hear the matter, entirely of these present grounds for complaint which can no doubt form the basis for some witness statement in the future: and that there should be an entirely fresh ground of complaint, which is simply to contain paragraphs 5(t) to (z) of the Chairman's decision in August 1999, together with the additional allegation which alone is to be added to those, so those eight allegations will be alone the allegations which are to be run before this Tribunal and it thus should be specified as an additional allegation that on numerous occasions, if they can be particularised by dates so much the better, during 1997 there was the alleged request of DS Simmonds and his alleged refusal.
23. On the basis, therefore, that there will be a draft order containing Counsel's agreement lodged and, also, that the amendment for which now we give leave of the grounds for complaint should be not that which in fact has survived the knife of the Chairman, but a short and fresh one limited to those eight allegations, this appeal is dismissed.
24. We are quite satisfied that it was an appeal which was one without merit and rightly dismissed, but not one which we could be satisfied could be castigated as unnecessary and consequently, we did not succumb to Mr Korn's blandishments that we should order costs.