United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR K HENRY (the Appellant in Person)


 


HIS HONOUR JUDGE J ALTMAN

1. We propose to give a judgment in this matter, notwithstanding that it is going to proceed to a full hearing because there are two areas that we do not consider contain points of law that can properly be argued in full before the Employment Appeal Tribunal and because whilst the grounds of appeal do not appear to us to require formal amendment it may be of assistance for the Respondents and the panel for the full hearing to know our understanding of the essential points that are being raised in the Notice of Appeal.
2. Ground 1 is, as we understand it, essentially about institutional racism and we put in our own words with Mr Henry's agreement the understanding we have of what he was saying and that is confirmed by the members. The Employment Tribunal having accepted, notwithstanding its absence from the Originating Application, that institutional racism was an issue, Mr Henry complains, first, that the Employment Tribunal refused to admit the first six paragraphs and last three pages of his witness statement in support of that allegation and, secondly, they failed to give reasons as to why the Tribunal found no evidence of institutional racism amongst all the matters that he raised and why, accordingly, they dismissed the allegation.
3. Secondly, and associated with this is the finding of the Tribunal in paragraph 30 that the allegations of discrimination were to be examined individually when there was, on the argument of Mr Henry, evidence of a continuing act.
4. That also raises his complaint that he was not permitted to amend his application to include his application for compassionate leave which he says had begun just before he made his Originating Application, though he did not include it in it. He complains, in relation to that, that the Employment Tribunal did not give reasons for refusing to allow the amendment to include that aspect, nor considered it as part and parcel of the continuing acts, even though the Tribunal expressed the view that they would look upon it to the extent that evidentially it reflected on the earlier matters.
5. The next matter that Mr Henry is concerned about is the finding of the Employment Tribunal in relation to the requirement imposed upon him to attend the Occupational Health Service even though he was not absent from work. This was dealt with in some detail by the Employment Tribunal in paragraphs 15 and 16. The Employment Tribunal having sketched the factual history point out that the Respondents were in error in believing that they had power to discipline for failing to attend an Occupational Health Service appointment at any time, even though not absent from work.
6. Mr Henry complains that he had written to say he could not go because he was working at his job, meaning another job, but that appears not to have been made clear. He also complains that whilst it may be that others were dealt with in the same way he was the first, on any view, and he questions the evidence that others did as well.
7. However, in paragraph 34 the Employment Tribunal set out their conclusions on the facts. They accept that the Respondents had no right to insist on his attendance at the Occupational Health Service but they accepted evidence from the Respondents that other members of staff had been likewise treated but they came to the conclusion that it was not evidence of race discrimination.
8. It may be that there was a factual difference between Mr Henry and others in that he may have been the first but overall the Employment Tribunal has analysed carefully the factual issues on that matter and come to conclusions that they were entitled to come to and we do not discern any error of law in their approach on that matter. The appeal under that heading is therefore dismissed at this stage and will not proceed to the full hearing.
9. The next matter is under the heading of Whistleblowing. Essentially what is said by Mr Henry is that the Tribunal failed to consider the issues of victimisation raised by him in his evidence to the Tribunal covering other matters: the actions of Mr Burbage, the way he was treated and other general patterns. This, no doubt, relates to his complaint about a continuing act.
10. The next matter he raises is under the heading of Lack of Transparency in the Investigation. This really relates to his being monitored. It is Mr Henry's case that there was a period of monitoring that he was told about but that he later found that monitoring had been continued beyond that date without his knowing about it, contrary to procedure and he relied upon it as evidence of discrimination. He says that there was some confusion on the facts as to when monitoring ended and who actually knew about it, on the findings of the Tribunal and the evidence before the Tribunal.
11. It seems to us that Mr Henry has an arguable case that the Employment Tribunal did not address the question as to whether any inference fell to be drawn from the fact that he was monitored without his knowledge in the context of race discrimination. That is essentially all that in the end Mr Henry wished to proceed with under the heading of Lack of Transparency in the Investigation.
12. In his Skeleton Argument Mr Henry raised a number of matters under the heading Criticism of the Chairman and Panel. It appears to us that this was really raising matters of fact before the Tribunal at the time and analysing the Tribunal's approach to those facts, but Mr Henry did not (and we commend him for it) strenuously pursue that ground of appeal and we do not discern within it any real arguable error of law. The Tribunal had to assess the evidence and to accept the evidence it felt it should accept and to reject that which it did not accept. It does not seem to us that any arguable error of law arises on that aspect of the appeal and it is dismissed at this stage.
13. Finally in his Skeleton Argument, now that the appeal is under way, Mr Henry criticised the letter from the Chairman in answer to his affidavit, the letter being 21 October 2002. He quotes guidance he had received from the Commission for Racial Equality (CRE), so he tells us, that the letter from the Chairman demonstrates a reticence to address the comments that had been made and some inference may fall to be drawn from it.
14. The procedure that is adopted by the Employment Appeal Tribunal is not to impose any requirement on a Chairman but simply to invite him to comment on any matter he feels it proper to do so in relation to the allegations of the way in which he conducted the hearing. This particular Chairman was not sitting at the Tribunal at the time and answered the matters, it appears, without sight of his own notes because he would have been in his chambers and not at the Tribunal.
15. We can see no arguable error of law in that. It is a matter for each individual Chairman to decide for himself if and to what extent he is able to assist the Employment Tribunal in relation to the allegations concerning the way in which he is alleged to have conducted a Tribunal on a particular day. There is no arguable error of law in relation to that and we dismiss any proposal to appeal on that ground though of course it was not in the original Notice of Appeal.
16. Accordingly this appeal will proceed on those limited bases referred to in paragraphs 2, 3, 4, 9 and 11 of this judgment. It will be listed for half a day in Category C. Automatic directions will apply and this judgment will be transcribed.