United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M PANESAR (of Counsel) Commission for Racial Equality Elliot House 10-12 Allington Road London SW1E 5EH


 


SIR CHRISTOPHER BELLAMY QC:

1. This is an appeal against the decision of the Employment Tribunal sitting at London (South) of 25 January 2000. By that decision the Tribunal dismissed two Originating Applications presented by the Appellant, Mr Yong, against the First Respondents, the London Borough of Croydon and Mr Charli Coggrave, who is the Second Respondent. Mr Coggrave is the Manager of the Independent Living Unit of the First Respondent's Social Services Department.
2. In his first application to the Tribunal presented on 26 January 1998 Mr Yong, who is employed as an Independent Living Officer in the same unit, complained of six specific acts of race discrimination alleged to have been committed against him by Mr Coggrave between February 1995 and November 1997. In his second application to the Tribunal presented on 2 September 1998 Mr Yong complained of victimisation by the First Respondent consisting of the institution against him in 1998 of disciplinary proceedings for alleged sexual harassment. According to Mr Yong those disciplinary proceedings were instituted because he had made his first application to the Tribunal.
3. The Tribunal heard both applications together sitting on 28 to 30 September and 1 October 1998 and from 19 to 30 April 1999 and in Chambers on 15 October 1999, a total apparently of 14 hearing days. Evidence was heard from eight witnesses, including the Applicant, Mr Coggrave, three others working in the Independent Living Unit and other relevant employees of the First Respondent. The Tribunal comments at paragraph 39 of the Extended Reasons that most of the hearing was taken up by cross-examination of the Respondents' witnesses by Counsel for the Appellant.
4. As regards the first application, founded on race discrimination, the Tribunal first made certain findings about the credibility of the principal witnesses and, in particular, the Appellant and Mr Coggrave. That is at paragraphs 6 to 12 of the Extended Reasons to which we will return in a moment. The Tribunal then dealt in turn with the six specific acts of discrimination alleged by the Applicant which are set out in summary at paragraph 2 of the Extended Reasons. The Tribunal dismissed each of those allegations on the grounds notably that the actions taken by Mr Coggrave or the First Respondent were not motivated by racial considerations – see, for example, paragraphs 16, 18, 22 – 23, 26, 28 and 31 of the Extended Reasons.
5. As regards the second application the Tribunal found that the 1998 disciplinary proceedings were legitimately instituted against Mr Yong for serious misconduct in sending a sexually explicit note to another member of the staff. Although that note had admittedly come to light as a result of the Applicant's first application, the Tribunal found the fact that the Applicant had already brought that application played no part in the First Respondent's decision to institute the 1998 disciplinary proceedings against him, nor was that decision taken on racial grounds – see paragraph 37 of the Extended Reasons.
6. By his Notice of Appeal, as interpreted in the light of the skeleton argument submitted by Mr Panesar on behalf of the Applicant, the Applicant challenges the findings as regards only two of the total of seven allegations that were advanced before the Tribunal. That is to say the Applicant challenges firstly, the finding that he had not been discriminated against on grounds of race in respect of the decision to institute disciplinary proceedings against him in 1996 and, secondly, the finding that he had not been racially discriminated against or victimised in respect of the institution of the disciplinary proceedings in 1998.
7. This appeal now comes before us today by way of an ex parte preliminary hearing in order to determine whether the grounds set out in the Notice of Appeal raise a reasonably arguable point of law. It is, of course, only if the appeal raises a point of law that this Appeal Tribunal has any jurisdiction to determine the matter. At this stage therefore, we must address the question as to whether we are satisfied that there is, in this case, an arguable point of law.
8. In support of his argument relating to the 1996 disciplinary proceedings, the Applicant first attacks the general credibility of the principal witness for the Respondents, Mr Coggrave, and the Tribunal's finding in that regard. The Applicant supports his argument, in particular, by reference to a memo that was produced by Phyllis McLaughlin in the course of the proceedings which tended to show that Mr Coggrave had made remarks to the effect that "he was out to get Len" and other remarks suggestive of hostility on the part of Mr Coggrave towards the Applicant. In paragraph 6(i) of the Notice of Appeal, the Applicant specifically criticises the fact that the Tribunal did not give any reason why they were not persuaded by the truth of any of the other allegations in Phyllis McLaughlin's memo, as appears from paragraph 11 of the Extended Reasons.
9. It appears from paragraphs 9 to 12 of the Extended Reasons that the memo in question, written by Phyllis McLaughlin, who also worked in the Independent Living Unit, purported to record a conversation in a pub, apparently in September 1996, although the memo is dated September 1997, during which Mr Coggrave had allegedly said words to the effect "I am going to get Len" ie the Appellant. In evidence Phyllis McLaughlin denied that that remark had been made and sought to explain her memorandum, according to paragraph 10 of the Extended Reasons, on the grounds that she had been persuaded to write it, she had been suffering from depression at the time and been confused, and did not realise she was being asked to confirm in writing information about which she had no direct recollection. Mr Coggrave had similarly denied making the remark. The Tribunal did not accept Ms McLaughlin's explanation of why she had recorded in her memo Mr Coggrave's remark about being out to get Len. They also rejected Mr Coggrave's evidence on that point, and held at paragraph 11 that in fact the remark had been made.
10. At paragraph 12 however, of the Extended Reasons, the Tribunal found that the remark made by Mr Coggrave was not indicative of racial bias. They said:

"12. … It was made at a time when the Applicant was under suspension as a result of the disciplinary charges arising from the use of his telephone at work and the allegations of absenteeism arising out of the surveillance operation. Mr Coggrave was, in effect, in the position of prosecutor in respect of those matters and the remark was made to two female members of staff on a social occasion after work. We consider it more likely than not that his remark was in the nature of a display of bravado in a social context, rather than a manifestation of racial hostility towards the Applicant."

11. The Applicant's principal point on this part of the case is that the Tribunal gave no reasons, and there was no basis for the Tribunal to say, at the end of paragraph 11 of the Extended Reasons, that they were "not persuaded by the truth of any of the other allegations made in Phyllis McLaughlin's memo" when they had been persuaded of the truth of the fact that the remark about "getting Len" had been made, despite the denials of both Mr Coggrave and Ms McLaughlin on that point. On that basis Mr Panesar on behalf of the Applicant goes on to argue, in paragraph 6 and following of the skeleton argument, that the Tribunal's whole approach to the disciplinary proceedings in 1996 has to be viewed in the light of the fact that that memo undermines substantially the credibility of Mr Coggrave.
12. As regards first the Applicant's general attack on the credibility of Mr Coggrave, it is abundantly plain from the totality of the Tribunal's decision that the Tribunal regarded him as a credible witness, save in one respect; that is the matter of the remark about getting Len. That appears notably from paragraph 8 of the Extended Reasons. The Tribunal says:

"8 Mr Coggrave was a less impressive witness than the Applicant. However, he also appeared to have a clear recollection of events and was able to articulate clear explanations of the actions which he took with regard to the Applicant. We have felt able to accept those explanations for the most part, although we have felt it necessary to reject Mr Coggrave's evidence in one major respect."

That latter respect is the respect I have just mentioned.

13. Faced with that finding, unless the Applicant can produce before us compelling elements to establish that the Tribunal's conclusion on the credibility of Mr Coggrave's evidence was a perverse one that no reasonable Tribunal could have reached, we have to take the facts as found by the Tribunal.
14. The arguments put forward, as regards the reasons for the Tribunal not accepting the rest of Ms McLaughlin's memo, do not reach the standard required to show perversity, in our judgment. There is no inherent reason why the Tribunal, in finding the facts, should not accept one of the allegations in Ms McLaughlin's memo and reject the others. To do so is not in itself, in our view, either perverse or irrational; and the Tribunal's conclusions on that point will depend entirely on the Tribunal's appreciation of the totality of the evidence and of the witnesses. It is apparent, particularly from paragraph 40 of the Extended Reasons, that the Tribunal was aware that there was some direct evidence of hostility on the part of Mr Coggrave towards the Applicant, but they nonetheless clearly found, in a number of instances, in fact in all the instances alleged, that Mr Coggrave was not motivated by racial bias against him.
15. Indeed, no challenge is made to some five of the Tribunal's findings in this respect. The Tribunal, in effect, in examining the specific details of each incident, came to the conclusion in each case that Mr Coggrave was not racially biased and, in our judgment, the Tribunal's treatment of Ms McLaughlin's memo is not such as to undermine, to the level of perversity, the Tribunal's conclusions as regards the general credibility of the evidence of Mr Coggrave. Insofar as the appeal is based on the Tribunal's treatment of Ms McLaughlin's memo, we find there is no arguable error of law on that particular point. We find in particular that the Tribunal was entitled to deal in summary fashion with the other allegations in the memo in the way that it did at the end of paragraph 11 of the Extended Reasons.
16. As regards to the Tribunal's finding at paragraph 12 of the Extended Reasons, to the effect that Mr Coggrave's remark was in the nature of a display of bravado in a social context rather than a manifestation of racial hostility towards the Applicant, it is alleged by the Applicant that there was no evidence to that effect. We would merely observe that the Tribunal hearing the case could hardly have had a direct oral explanation from Mr Coggrave as to the reasons for the remark since he denied having made it in the first place. However, having found that the remark was made, in our view the Tribunal is not precluded from stating what, in its view, was the most plausible explanation for the remark, as an inference from the context in which it was made and the whole surrounding circumstances and the Tribunal's own assessment of the witnesses. We find no error of law or perversity as regards the findings in paragraph 12 of the Extended Reasons.
17. That takes us on to (what can be called in shorthand) the surveillance allegation which is the allegation regarding surveillance and the disciplinary proceedings in 1996 which is, in effect, the only one of the six allegations that were originally made in the first application that is now maintained on appeal.
18. The principal point made in this respect is that the Tribunal did not answer adequately, or at all, the various arguments that are advanced at paragraph 21 of the Extended Reasons and did not properly consider the evidence in support. The argument is that the institution against the Applicant in August 1996 of disciplinary action in respect of allegations of absenteeism from work and excessive use of his office telephone for personal calls was discrimination on the grounds of race. That allegation involves establishing in broad terms two matters: first of all that there was discrimination against the Applicant and, secondly, that that discrimination was on the grounds of race. It is apparent that the Tribunal considered the matter and heard a great deal of evidence on it and they came to the conclusion, notably at paragraph 22 of the Extended Reasons, that the institution of those disciplinary proceedings was not motivated by any racial considerations.
19. It is not appropriate for this Appeal Tribunal at this stage to descend into the minute detail of all the arguments that are put forward, but if we take first the excessive use of the office telephone, it is plain from paragraph 22 of the Extended Reasons that Mr Coggrave was advised by the Personnel Department to obtain records of telephone calls made by the Applicant in view of his repeated calls to numbers that had not been recognised. It appears that at the time the Applicant was making a large number of telephone calls, particularly to his former wife, his marriage being in a state of break-up at that time. In paragraph 22, the Tribunal said:

"22. … The Applicant accepted at the disciplinary hearing which was ultimately held that his use of the telephone had been excessive, and he offered to pay for the personal calls which he had made in the three months from May to July 1996. …"

20. On that basis the Tribunal expressly rejected the submission that the Applicant's personal use of the telephone was no more than that of his colleagues. Although it is true to say that in the event the telephone print-outs that were studied by Mr Coggrave were not produced before the Tribunal, and the Applicant criticises the evidence before the Tribunal in that regard, there is nonetheless a clear finding of fact, in paragraph 22, that Mr Coggrave had stated in his report that the telephone print-out showed a very evident gap; and the Tribunal accepted that Mr Coggrave did consider the use made of the telephone and personal calls by other members of the team.
21. In those circumstances, in our view, the Applicant has not established that it was perverse of the Tribunal to make the findings that it did about the use of the telephone calls. The elements in the decision indicate that there were grounds for considering disciplinary proceedings in that regard and that there is no sufficient material to establish that the institution of those proceedings was motivated by racial considerations. So the alleged perversity of the decision, so far as the telephone calls are concerned, whatever criticisms can be made of the minute detail of the evidence, shows that the Tribunal had come to the overall conclusion, after hearing all the witnesses on this point, that that particular matter did not support a charge of racial discrimination.
22. As regards the surveillance of the Applicant for absenteeism from work, it is clear that on the particular day in question the Applicant had been away from work, although he put forward various explanations about that which were accepted or established, including the dental trouble that he experienced on that particular day. The result of the disciplinary proceedings was that the person who conducted those proceedings did not reach exact conclusions about the times that the Applicant had been working on that relevant day, which was 23 August 1996, but found that he did not comply with the proper procedures in relation to the cancellation of his appointments on that day. That is an important point and legitimate criticism of the Applicant, given the sensitive nature of the work in question dealing with very vulnerable citizens.
23. It is further said by the Tribunal, in paragraph 23 of the Extended Reasons, that the decision to institute surveillance was not in any way influenced by racial considerations. The sole facts set out in paragraph 8 of the skeleton argument, namely that there were some inconsistencies in the evidence in relation to this topic between Mr Coggrave and Mrs Matlock, that the Applicant was the only person who was subjected to surveillance, and that other employees had been surveyed for longer periods of time, do not in our judgment go anywhere near, either separately or together, to support a finding that the Tribunal was perverse in reaching its very detailed conclusions set out in paragraphs 22 to 23 of the Extended Reasons.
24. That takes us finally to the second main ground of the appeal, namely that the institution of disciplinary proceedings in 1998 was motivated by racial reasons. In that respect the Tribunal found, again after hearing the evidence, particularly the evidence of Mrs Matlock, Mr Coggrave's superior, that the disciplinary action was not instituted on racial grounds, although the note that formed the subject of those proceedings had come to light in the context of the first application to the Employment Tribunal. The Applicant's principal argument here is that this note, which we have not ourselves seen, was no more serious than other actions and sexual banter that were common in the department at the time, that no disciplinary proceedings had been instituted against anyone else, that he had therefore been picked on and discriminated against and, therefore, by necessary inference, that that discrimination was on grounds of race. That is the argument that is put.
25. However, those points were all put to the Tribunal who was hearing the issue and the Tribunal, at paragraphs 35 to 37 of the Extended Reasons, deal with their approach to the matter. They set out Mrs Matlock's evidence, which they accept, that the Council, the First Respondent, felt they had no alternative but to institute the proceedings as not to do so would be condoning behaviour which had only just come to light; that there had been previous complaints about the Applicant's behaviour towards women, notably at the time of the Applicant's probationary period; and that Mrs Matlock felt that they would be treating the Applicant differently to other staff if they did not take action. That evidence was effectively accepted and it is right to add that the procedure for serious or gross misconduct, which commences at stage 3 was not in fact invoked by the Council. It was in fact a stage 1 procedure.
26. Further, the Tribunal entirely rejected the evidence of the Applicant as regards the circumstances of the note and his intentions towards Caroline McAlister and they rejected his argument that the note should be seen in the context of sexually explicit behaviour in the department at the time at paragraph 36, which concludes with the words "We wholly reject the Applicant's evidence on this matter". The Tribunal further found, at paragraph 37:

"The Applicant's action in writing the note was clearly serious misconduct, particularly having regard to his responsibility for dealing with vulnerable members of the community. We accept the Respondents' evidence with regard to the reasons for instituting disciplinary proceedings … We take the view that the Respondents would have been liable to serious criticism if they had taken no disciplinary action and, indeed, the action which they did take might be considered lenient. On the basis of the evidence of Mrs Matlock, we are satisfied that the action of the Applicant in instituting the first set of proceedings played no part in the decision to institute disciplinary proceedings against the Applicant in respect of the note, although it was as a result of the first proceedings that the letter came to light. …"

27. In those circumstances the fact that the note had been produced by Caroline McAlister, after the first proceedings had been instituted, and the fact that the Respondents had not previously taken any kind of disciplinary proceedings, are not in our judgment, either separately or together, or taken with the other matters set out in paragraphs 10 to 15 of the skeleton argument, sufficient to establish the standard necessary to establish perversity as regards the Tribunal's findings of fact in this respect. We can therefore at the end of the day detect no reasonably arguable error of law in the decision of the Tribunal, nor any elements sufficient to support perversity or irrationality on their part. It follows that we must accordingly dismiss this appeal.