United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GLYN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MRS S J JARRETT (the Appellant in Person)


 


MR JUSTICE WALL:

1. This is the preliminary hearing of an appeal by Mrs Sandra Jacqueline Jarrett, against the unanimous decision of the Employment Tribunal sitting at Birmingham, dismissing Mrs Jarrett's applications against the Birmingham City Council and five of its employees, against whom she had alleged sex and race discrimination and victimisation. The Tribunal found in terms that Mrs Jarrett was neither discriminated against nor victimised.
2. Mrs Jarrett has appeared this morning in person, although she had the assistance of the ELAAS representative, Mr Glyn, on one of the substantive aspects of her appeal, namely an allegation of bias against the chairman. I shall return to that in due course. We think it important when considering this application to note that the hearing before the Tribunal lasted some 15 days between 18 April and 9 May last year. Mrs Jarrett represented herself at the Tribunal. The Respondents were represented by counsel. There was a very substantial amount of paper. According to one of the Tribunal members, Mrs Jarrett's statement alone ran to some 140 closely typed pages of A4 and the other case documents consisted, it would seem by common consent of some 1600 pages. Mrs Jarrett has today put forward a full and detailed skeleton argument, which itself runs to some 12 pages. The reasons for the Tribunal's decision run to some 39 pages and 63 paragraphs of single spaced typed A4. The Chairman records that apart from Mrs Jarrett herself, the Tribunal heard oral evidence from four witnesses called on her behalf and that it read the statement of another witness who was unable to attend through illness.
3. The Tribunal also heard 8 witnesses on the Respondents' behalf, including 4 of the named Respondents. There were altogether 5 originating applications before the Tribunal, each containing several allegations. In its reasons, the Tribunal deals with each application in turn. In each case it sets out the allegations, examines the evidence in relation to each and makes findings of fact. In each case after a full and careful analysis of the available material, including assessments of the various witnesses called, the Tribunal comes to the conclusion that Mrs Jarrett has not made out her case. In addition to its careful analysis of the evidence, the Tribunal in paragraphs 35 and 36 of the reasons sets out the law in relation to discrimination and victimisation. It does so carefully and in our view accurately. Applying the law to its findings of fact, the Tribunal says this:

"In reaching its conclusion, the tribunal has borne in mind the important stages set out in the decision of the Court of Appeal in King v Great Britain China Centre. We have further benefited from the guidance given in the case of Anya v University of Oxford. As far as possible, we have reached conclusions, on the evidence before us, as to what did or did not take place as it had a bearing on the applicant's complaints of discrimination. Our findings of fact have been set out above. Furthermore, we have attempted to explain how it was that we have chosen between those witnesses who have given conflicting evidence and how our findings of fact have been arrived at. It now falls to us to consider first of all whether our findings of fact, based on our assessment of the evidence, demonstrate that the applicant has discharged the burden of proof to show that she was treated differently from actual comparators or where they do not exist, hypothetical comparators. Of course, unless the applicant can establish different treatment, the question of drawing inferences as to what the reason for that different treatment might be never arises.

By and large, the tribunal have concluded that across the totality of the complaints advanced by Mrs Jarrett, there is no evidence that she was treated differently from actual or hypothetical comparators. We will address the allegations raised by each of the originating applications in turn."

and that is then what they proceed to do. We do not intend to examine each of the cases in detail. That is not our function. The only question for us is this -was the Tribunal entitled to reach the conclusions it did on the material before it? The EAT is a Tribunal of law, not of fact. In order to succeed in this appeal, Mrs Jarrett has to show the Tribunal's findings of fact were perverse.

4. Mrs Jarrett has argued her case clearly and courteously. She has not been discursive or wandered off the point. We have had to focus her mind as we have had to focus our own on the relevant and important aspects of the case. We have no doubt (and Mrs Jarrett's demeanour has from time to time shown it), that this is a highly emotive issue for her. We do understand that. We have no doubt that she has been genuine in putting forward the case she has this afternoon. But we have to deal with it in our limited jurisdiction dispassionately and on the material before us.
5. In her Notice of Appeal, Mrs Jarrett puts forward four broad grounds for showing that the Tribunal was in error. The first is that its overall conclusion was based on the panel's misapplication of the facts. Secondly, the Tribunal omitted to make findings of fact in relation to a number of the Applicant's complaints. Thirdly, the Tribunal misapplied and misdirected itself in law in relation to the facts of the case and fourthly, the Tribunal failed to assess the merits of the Applicant's overall case in a manner which gave due regard to the European Convention of Human Rights as directed by the 1998 Human Rights Act.
6. Mrs Jarrett then amplifies those grounds over some 7 pages. What they amount to however, is an allegation of bias against the Tribunal and in a lengthy statement which she affirmed on 10 October 2001; Mrs Jarrett expands her attack on the integrity and good faith of the Tribunal. This document again lengthy runs for some 50 pages and 75 paragraphs. Answers to it have been obtained from both the chairman of the Tribunal and the two lay members. All three firmly refute Mrs Jarrett's allegations.

"Mr Glyn, basing himself specifically on this material, invited us to say that if the evidence contained in Mrs Jarrett's affirmation was to be accepted, the Chairman had intervened in a manner to prevent her asking questions and that any fair minded person reading the documents would take the view that the Tribunal had been biased. Mr Glyn reminded us that the test for the question of bias was – was there a risk that bias had occurred, was there in his phrase, "a real danger of the possibility of bias?" "

We propose to address this issue at first because plainly it goes to the heart of Mrs Jarrett's submission.

7. The Chairman in his answer to the allegations deals with the matter quite broadly and swiftly. We are, with all respect to the Chairman, more impressed by the responses from the Tribunal members. No lay person sitting with a professional Judge wishes to be associated with poor behaviour, if the judge has behaved in a poor way and therefore we think we are entitled to give weight to the views of the lay members who have read the affidavit of Mrs Jarrett and the Chairman's response to it. Mr Sorrell firstly says this,

"I have many years Employment Tribunal experience and to describe this case as long and complicated is almost an understatement, for example Mrs Jarrett's own statement was in excess of 140 A4 pages of close type and other case documents consisted of over 1600 further pages. The Chairman conducted the difficult proceedings, demonstrating throughout extraordinary patience with the Applicant and her case. It was necessary for the Chairman to interrupt the Applicant both when she was giving evidence and also when she was cross-examining in order to keep her focused on relevant issues. This was however always done in the helpful and supportive manner and was most often to the benefit of the Applicant rather than to her detriment. During the case the Applicant was represented by different times by two different non-legal people and also at times herself. This inevitably caused lack of continuity and disjointed proceedings. Here again however the chairman demonstrated both skill and patience to the extent that from time to time, I believed he was being overzealous in his determination to demonstrate fair play to the Applicant."

8. The second Tribunal member, who was a woman, said that she agreed with all the points that had been made by the Chairman and she goes on;

"My observation of the Applicant during the hearing was that she was very happy with the Chairman's handling of the proceedings, I say this as woman to woman!"

9. Every opportunity was given to the Applicant to get her points across with a great deal of help from the Chairman. We have spent sometime in the hearing today seeking to tease out from Mrs Jarrett and from the documentation particular matters which would support the allegation of bias, but we are wholly unable to do so. In our judgment, it is clear that the length of the hearing and the amount of the documentation that the Tribunal took very great care in its extended reasons to go through, all the material explaining carefully why it preferred witness A to witness B, examining the evidence of each witness and finding good and bad points in it and so on. All that process in our judgment, totally contradicts any possibility of bias and this ground, as it is the main the ground of Mrs Jarrett's application would in our view be bound to fail. We have of course read the Tribunal's reasons, Mrs Jarrett's Notice of Appeal, her affirmation of 10 October 2001 and her latest skeleton argument. We have we hope considered all that material with case and the argument has extended well over the hour normally taken for such application.
10. Despite the voluminous detail, we are in no doubt that we can deal with this case quite shortly. The question before the Tribunal was whether or not the Respondent had been guilty of race or sex discrimination and whether or not Mrs Jarrett had been victimised. The burden was on her to prove that the Respondents had so treated her. These were issues essentially of fact for the Tribunal. The hearing took 15 days; the Tribunal heard the witnesses, saw the witnesses and listened to them being cross-examined. The Tribunal read all the material. It came to the conclusion after what was plainly a very careful hearing that Mrs Jarrett, (who remains as we understand it employed by the local authority) had not been sexually or racially discriminated against and that she had not been victimised. The Tribunal gives very clear reasons for reaching those conclusions. By no stretch of the imagination could they be described as perverse. Furthermore, despite the wealth of detail, provided by Mrs Jarrett, we cannot see that the Tribunal left out of account something so important that it would vitiate its conclusion, or that it took into account something of particular importance which it should not have done.
11. The simple fact of the matter is that the Tribunal rejected Mrs Jarrett's case. That is something it was entitled to do. Provided it stated the law properly and reached its conclusions properly on the evidence that is the end of the matter. Equally, and for the reasons which are essentially the same, there is in our view nothing in this case to indicate that Mrs Jarrett did not have a fair hearing within Article 6 of the European Convention on Human Rights.
12. By a fax which she sent on 7 April, Mrs Jarrett sought to introduce documents into the appeal and indicated an intention to apply for a copy of the Chairman's notes. The purpose of the introduction of these documents, was as we understand it, to demonstrate that 2 documents placed before the Tribunal and described by the Tribunal as faxed messages, were in fact forgeries and that the Tribunal's reliance on them was therefore unwarranted. Furthermore, the fact that they were forgeries cast substantial doubt on the evidence given on the Respondents' behalf.
13. We have looked at those documents and heard the argument about them. We are not satisfied from what we have seen that they are forgeries. But in any event, in the context in which they arose and in relation to the findings which the Tribunal made about the incident it was concerned with, we are quite satisfied that those documents played only one small part and were a very small part of a much wider picture. Had the Tribunal not referred to them at all, the evidence would still have been sufficient in our view to have enabled it to reach the conclusion it did. The reference is at paragraph 47 (iv) of the judgment.
14. In all these circumstances we see no point in allowing this appeal to go forward to a full hearing; it plainly stands no prospect whatsoever of success and accordingly it will be dismissed at this stage. It follows, of course, that we refuse Mrs Jarrett's application to adduce fresh evidence and the application for the disclosure of the chairman's notes, which would only have followed had the matter gone to a full hearing, is also refused.