United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE PUBLIC TRANSPORT (STAFF) CONSORTIUM 31B MERVAN ROAD BRIXTON LONDON SW2 1DP


 


JUDGE SMITH:-

1. We will give a judgment in this matter. We are going to allow the matter to proceed to a full hearing on the question of whether the Tribunal may have erred in law in their approach to the order for costs. We have concluded that is the only ground upon which we are allowing the matter to proceed to a full hearing and for that reason, we are going to give this judgment.
2. This is an application by Mr Roberts, the Applicant before the Employment Tribunal, for leave to proceed to a full hearing of an Appeal against the decision of an Employment Tribunal held at Liverpool on 16^th April 1999, of which Extended Reasons were sent to the parties on 14^th May 1999, whereby the Employment Tribunal, a full tribunal, unanimously held that Mr Roberts' complaint that he had been refused employment by the Respondent's, Vauxhall Motors, because he was an active trade union member, should be dismissed, and in addition, ordered him to pay £250.00 towards the costs of the Respondents.
3. We have had the benefit of hearing from Mr Edwards', counsel under the ELAAS Scheme, and also we have heard from Mr Roberts himself. Mr Edwards addressed us on behalf of the Applicant in relation to submission that there is an arguable ground of appeal relating to costs and also relating to the refusal of the Tribunal to allow the case to be adjourned on a particular basis which we will have to deal with. Mr Roberts himself addressed us generally on the matter but specifically with regard to an allegation that the Chairman who conducted the Tribunal hearing exhibited bias against him to the extent that there should be an appeal on that basis. We have reminded ourselves that the Applicant only has to show an arguable ground of appeal to be allowed to proceed to a full hearing. Mr Roberts has made very strong criticisms of the conduct of the Employment Tribunal, and particularly the Chairman, in their handling of his complaints. The way he puts the matter in the papers is to the effect that their was a conspiracy against him to pervert the course of justice. The Chairman, so he claims, exhibited gross and blatant bias against him and he asserts that the extended reasons contain a number of false hoods and anomalies entitling him to an order that the decision should be set aside and a rehearing granted. That gives the flavour of the kind of allegations that Mr Roberts has made in relation to this particular tribunal hearing.
4. We have carefully considered all that he has submitted to us and in particular his handwritten Notice of Appeal and the Affidavit that he has sworn in support of his arguments, particularly in regard to the allegation of bias against the Chairman and we have also considered the Chairman's careful response to the strongly worded criticisms levelled against him.
5. To understand the grounds of appeal put forward and to make our assessment of whether they show sufficient merit to be allowed to proceed to a full hearing, it is necessary briefly to summarise the decision. In June 1998 Vauxhall needed to recruit 850 operatives to work a new shift. They received no less than 10,000 applications. One of these was from the Applicant. The selection process was devised and consultants employed to handle it. The Applicant applied. He was very highly qualified from the educational standpoint. The Employment Tribunal concluded that he must have been the most impressive applicant in this regard. He passed the psychometric test and proceeded on to the interview stage. Before that, on the findings of the Employment Tribunal they found that he had become very suspicious when those with the name "Roberts" were asked to put their hands up. He got very upset when the supervisor physically lifted his arm to check his name on his test paper. He did not think much of Ms Hani the young lady who conducted his interview, not believing she was up to the task. He thought she underrated his performance. However, she decided he should go on to the next stage. After somewhat of a delay, which he thought very suspicious, he proceeded to the dexterity test. This he failed. According to the findings of the Tribunal he was required to comply precisely with instructions for assembling a vacuum pump. He did not so comply, but assembled the pump using his own method which he thought quicker and better. This attracted a zero score and caused him to fail. Thus he did not get one of the jobs.
6. During the dexterity test he complained that the supervisors, on the findings of the Tribunal, a number of supervisors, although he maintains that it was only one of the supervisors, not more than one, stood very close to him which he believed was all part of the Respondents' secret agenda and strategy to make sure that he did not get the job. His complaint was that all along the Respondents must have known that he was Trade Union activist with the National Union of Journalists and they were determined to fail him, however well he did because of his Trade Union links.
7. The Tribunal rejected that case. In our judgment they dealt with the matter with care, particularly at paragraph 6, (a) and (b) of their decision. Paragraph 6(a) is an important paragraph and we have very carefully borne in mind everything in the Tribunal there say. In 6(b) they continue as follows:-

"It is true that we must not in a case like this expect direct evidence of unlawful grounds for refusing an appointment. We must scrutinise all the circumstances and ask if the evidence justifies our making inferences as to the true reason for the respondent's action. The evidence here did not justify such an inference."

8. They then go on to direct themselves to the effect that Vauxhall were not looking for creative people but were looking for people who would reliably carry out set procedures because their experience was that in that way products of high quality were produced and they made findings relating to Ms Hani and they conclude at 6(c):-

"Nothing that we heard came near to suggesting that the respondents knew of the applicant's trade union background, much less carried out a plan to exclude him because of it. The dexterity test was carried out as it always is and the applicant's failure did not represent its misapplication. The only reason why the applicant was not offered the job that he applied for was that he failed the test."

9. So it was in those circumstances that the Employment Tribunal dismissed the claim. They dismissed as trivial the Applicant's complaint of his arm being lifted and accepted as genuine the Respondents' reasons for failing him, as we have stated by reference to the Employment Tribunal's decision.
10. They went on to deal with the matter of costs and dealt with that in paragraph 7 of their decision. They said there was an application for costs and it was obviously not appropriate that the Applicant should pay the full economic costs, but they concluded that he should make a contribution because:-

"Nothing that he raised by way of evidence might reasonably be regarded individually or cumulatively, as giving any colour to his accusations. He sought to attach to relatively trivial incidents far greater weight than they might reasonably bear."

In all those circumstances they found that his conduct was unreasonable and ordered him to pay £250 by way of contribution to the Respondents' costs.

11. It is against that context that we come to consider the grounds of appeal. With regard to the ground of appeal based on the argument that the Tribunal erred in law in their approach to costs, we note that there is a procedure on a pre-hearing review which is covered by Rule 7, sub-rule 4, whereby if a Tribunal considers on a pre-hearing review that the contentions put forward by a party have no prospect of success, they may order that a deposit should be paid of an amount not exceeding £150 as condition of being permitted to continue to take part in the proceedings. Now it is clear that, in this particular case, there was such a pre-hearing review and the Chairman who conducted the pre-hearing review had to consider whether he should conclude, at that stage, that the Applicant's case had no reasonable prospect of success and order a deposit accordingly. That did not occur, although apparently both sides were represented at that hearing, and so we are entitled to assume that that Chairman did give careful consideration as to whether such an order should be made and decided that it was not appropriate to order a deposit.
12. Now the argument is this, namely that a full Tribunal, when considering whether to make an order for costs, which is an unusual order to make under Rule 12 or of the 1993 Rules, should in exercising their unfettered discretion, because there is recent authority making it clear that that is an unfettered and wide discretion, as is clear from the President's decision in Beynon & Others v Scadden (1999) IRLR 700, should take into account the fact that there has been a pre-hearing review and no order for a deposit has been made. In our judgment, that by failing to refer to that matter when exercising their discretion that the Employment Tribunal failed to take into account a relevant matter in the exercise of their admittedly very wide discretion and on that basis we allow the matter to proceed to a full hearing on that issue.
13. We deal next with the second ground of appeal that is was put forward helpfully and tenaciously by Mr Edwards on behalf of Mr Roberts and that relates to the ground based on the proposition that the Tribunal erred in law in the way they exercised their discretion in refusing an adjournment to the Applicant. It is said, and we are prepared to accept, that there was an application made for an adjournment of the hearing, not only based upon the fact that the Applicant was seeking further discovery with which application the Employment Tribunal dealt in detail at paragraph 4 of the decision, but also on the grounds that the Respondents had given an undertaking in the form of a letter that they were going to call a particular witness, namely a Ms Hani, who had played a part in the selection process relating to this Applicant and that, by reason of their failure to call that witness, they had placed the Applicant at a disadvantage since he would not be able to cross-examine that witness.
14. Now it was not perhaps quite clear whether Mr Edwards was putting his argument on the basis that the Tribunal erred in relation to both grounds, the way in which they dealt with both applications for an adjournment and accordingly we look at the way in which they dealt with both grounds. With regard to the documentation and the application based on the fact that the Applicant was seeking 10 randomly selected application forms from other candidates so that he could compare his qualifications with the qualifications experience and personal profile of those 10 persons who had been selected for the job, in our judgment, the Employment Tribunal dealt with that application perfectly properly at paragraph 4 of their decision. It is clear, in our judgment, from that paragraph that they took into account all relevant matters and, in particular, they dealt with the application for an adjournment based on the lack of that documentation as follows:-

"4(c) The documents the applicant was asking for were 10 randomly selected application forms from other candidates to show how his qualifications, experience and personal profile was superior to others. He was refused on the sufficient ground that they were irrelevant: his application to the respondents was rejected because he failed dexterity test; that was the decision in issue. In any event, he did not need other forms to establish the strength of the educational qualifications nor the particular character of his working experience."

In our judgment, looking at paragraph 4, it is clear that the Employment Tribunal properly took into account all relevant matters in refusing an application for an adjournment on that ground.

15. Further, with regards to the application based upon the failure of the Respondents to produce Ms Hani for the hearing, in our judgment, again this was a matter which was plainly within the Employment Tribunal's discretion to decide one way or the other as to whether they would grant an adjournment. The way the matter seems to have been dealt with is that it was pointed out to the Applicant that he would be able to invite the Tribunal to draw an adverse inference against the Respondents from their failure to call Ms Hani. In our judgment, that was a proper way of dealing with that application and it is clear from the decision of the Employment Tribunal that they took proper approach towards deciding this matter by reference to whether it was a case where they should draw adverse inferences as to the Respondents' actions. The concluded that the evidence did not justify such an inference and in all the circumstances we consider that there is no arguable ground of appeal based on that ground.
16. Now we turn finally to consider what is always a very difficult matter in our experience and that is the allegation that the Chairman misconducted the proceedings and exhibited bias against the Applicants. This always give rises to difficulty as far as the Employment Appeal Tribunal is concerned because, as the Applicant pointed out, we do not have the benefit of a tape of the proceedings or anything of that kind, we simply have to make a judgment as to whether there really are grounds here for concluding that there is an arguable ground of appeal based on bias. We have in mind the decision of Gough and we have in mind the test whether or not there has been bias is the test of whether a disinterested observer not connected with either parties, sitting at the back of the Tribunal, would or might have concluded that the behaviour of the Chairman indicated that he had in some way a closed mind in relation to the matter. Now it is with those principles in mind and also bearing in mind that the Applicant only has to show an arguable case that we have considered the nature of the complaint made.
17. A complaint is made to the effect that the Chairman showed favouritism to the Respondents by requiring them to call their evidence first. In our judgment, it was perfectly proper for the Tribunal to decide to hear the Respondents' case first. It was obviously a sensible and efficient way to conduct the proceedings. In our judgment, that does not give rise to any arguable ground of favouritism or bias on the part of the Chairman, then, criticisms are made in the Notice of Appeal and in the Affidavit that the Chairman refused to answer questions directed to him by the Applicant and repeatedly interrupted the Applicant who was conducting his own case during the cross-examination of the Respondents' witnesses. In our judgment, it is proper and necessary for the Chairman of an Employment Tribunal to take such steps as are reasonably necessary to control the conduct of the proceedings and we accept that that is all the Chairman was doing in this case.
18. It is often necessary for litigants in person, who are by nature inexperienced with regard to the ways in which Employment Tribunal proceedings are conducted, to be subjected to a degree of control from the Chairman to ensure that proceedings are conducted in a regular manner. We find that we must also reject as groundless the implication that one of the lay members did not listen carefully to his case. We find there is no foundation for that suggestion and it does not give rise to any arguable case of actual or apparent bias.
19. We have no doubt that the Applicant feels very strongly that the decision against him was disgraceful and outrageous but in our judgment the Employment Tribunal were entitled to reach the conclusions and the findings of fact that they did. We have carefully looked at all the allegations that are made by the Applicant and we conclude here that there is no arguable ground on the basis of bias. The Chairman was doing no more than making sure that the proceedings were properly conducted. The Chairman has a difficult role to perform because he has to strike a balance between both sides and deal with all matters of procedure as and when they arise. In all the circumstances we dismiss the ground of appeal based on bias. Accordingly, our conclusion is that the only ground of appeal which is entitled to go forward to a full hearing is the ground relating to costs.