United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR DAVID NYE Instructed By: Sheffield Racial Equality Council Norfolk Chambers 9 - 11 Norfolk Row Sheffield S1 2PA


 


JUDGE J McMULLEN QC

1. This is an appeal by two Applicants against a decision of a Tribunal sitting in Sheffield under the Chairmanship of Mr R Ll. Williams, held over five days and a day in chambers in June and July 2001, sent to parties on 29 August 2001. The applications concern apparent bias, sex and race discrimination and victimisation. The application in Ms Gordon's case was against the Ministry of Defence and in Ms Godbehere's case also against Major Bone as a second Respondent.
2. The Employment Tribunal dealt with consolidated applications, three by Ms Gordon and one by Ms Godbehere. Ms Gordon's first and third applications were dismissed, her second application which alleged victimisation on the grounds of race succeeded. Ms Godbehere's application, similarly alleging victimisation on the grounds of race succeeded in part. A remedy hearing for one day was scheduled. In the meantime, notices of appeal were lodged on behalf of both Applicants on 8 October 2001 at the Employment Tribunal
3. Mr David Nye, Sheffield Race Equality Council, represented both Applicants as he does before us today. Both Respondents were represented by Counsel. The first ground in the Notice of Appeal concerns apparent bias alleged against the Chairman. In accordance with the practice of the EAT, an Affidavit was sworn by each of the Applicants and by Mr Nye in broadly similar form. The allegations concern the conduct of the Chairman in managing the proceedings. Those Affidavits have been subjected to comments by the Chairman, dated 4 December 2001 and by both of the lay members of the Tribunal, dated 20 December 2001 and 13 January 2002, that is Mr Smith and Ms Popplewell.
4. The impact of the Affidavits, which form the subject of the complaint of bias, relates to the hurrying on of Mr Nye by the Chairman in the conduct of his case. The case was originally listed pursuant to a directions hearing conducted by this Chairman to take place over six days. Because of administrative arrangements in the Sheffield office, the case on the first day was known to be shortened by one day. The directions had included the exchange of witness statements and all of the witnesses produced them. Most of these were read in-chief and a number of supplementary questions were asked of each witness in chief. The last witnesses owing to pressures of time and notwithstanding objections by Mr Nye, were taken as read and cross-examinations followed.
5. Before dealing with the detail, the broad complaint about the conduct of the proceedings was that Mr Nye's clients were cross-examined for something over two days. The Respondents' cross-examination lasted about that time. There were more of them. The Respondents' evidence, from their eight witnesses consisted of 68 pages, including 19 pages from the named Respondent, Major Bone. The Applicants by contrast gave their evidence starting on the first day. We are asked to consider whether there were time constraints upon Mr Nye, which were unfair. We do not consider these matters are to be weighed page for page or witness for witness. Broadly speaking the time for dealing with the live evidence in this case was bisected, it will be recalled that there were two Applicants and two Respondents. The six days had been accepted at the Directions Hearing and through no fault of the parties or of the Tribunal that time was cut down to five. It required case management skills by the Chairman to ensure that the proceedings concluded within that shorter time scale.
6. Dealing with the detail, a complaint is made that the Chairman unduly criticised Mr Nye on the grounds of taking too much time. The Chairman did not dispute that he had said to Mr Nye; "Go on lets squeeze the lemon till the pip squeaks." The Chairman also accepted that he made a comment at the outset of the case in which he indicated that he wished to finish the hearing in time so that he could watch a Test cricket match.
7. Would a reasonable observer, provided with relevant information consider that there was a real possibility that the Chairman might not be impartial in the light of those admitted comments? We consider that those comments were ill-judged. We notice that one of the lay members regarded the "cricket" comment as intending to settle the parties, but it obviously caused some mixed message to be sent to the Applicants and their Representative. The image of continuous cross-examination until the pip squeaks obviously created a further message in the mind of the Applicants and their Representative that the conduct of the proceedings by the Representative was being criticised. A number of other comments are said to have been made by the Chairman as to which he makes no specific comment. Broadly speaking these all deal with imprecations to Mr Nye to be more expeditious in his cross-examination. The lay member Mr Smith considers Mr Nye's questions were vague, or closed, too long, and not specific. The lay member Miss Popplewell did not regard the Chairman as imposing unreasonable time restraints on the conduct of the Applicants' cases and indeed she was the one who regarded the cricket comment as breaking the ice.
8. Against the test of apparent bias we have set out above, we consider these remarks do not exhibit apparent or actual bias. The Chairman is under a duty to manage the proceedings fairly and expeditiously in the interests of justice. That requires on-the-hoof decisions and directions about the pace at which the proceedings are being conducted. It is a matter of judgment for each judicial officer to decide the form of words used in order to convey the need to proceed more quickly.
9. For ourselves, the language attributed to the Chairman and not specifically denied by him is robust to say the least. We have given our comments about the two earlier comments as being ill-judged. Those comments and the general constraint on time ultimately have to be viewed as a whole, and doing that we reject the contention that an appearance of bias has been exhibited in this case.
10. We then turn to the substantive grounds of appeal. First, Mr Nye contends that the Tribunal made findings of fact in the absence of appropriate supporting evidence. In a written skeleton argument presented for the first time today, that point was not developed and we therefore reject it.
11. Secondly, it is contended that the Tribunal erred in making findings of fact that were manifestly in conflict with the uncontested evidence. In order to deal with that contention, it is necessary to say something about the facts and what was and was not in contest. Both Applicants claimed the Respondents discriminated against them on the grounds of race. Ms Gordon is black. The claims were denied. Both Applicants were civilian secretary typists working for the Ministry of Defence. Ms Gordon started work on 8 February 1988 and for most of the time worked at Endcliffe Hall in Sheffield. She had a more than satisfactory record. Her first line manager was Mr Linnet and above him was Major Bone, who became her overall boss. Ms Godbehere began working for the Respondent on 26 January 1998 at Endcliffe Hall and worked under the same tiers as Ms Gordon. There were no criticisms of Ms Godbehere's capabilities. The complaints made by Ms Gordon included a complaint that she had been discriminated against on the grounds of race. She complained that she had been victimised, she claimed that after her return to work, after some period of absence, she had then been discriminated against on the grounds of race.
12. Ms Godbehere claimed that she had been victimised in that she had been instructed by Major Bone not to talk to Janet Gordon because she had earlier brought proceedings against the Ministry of Defence. Ms Godbehere also claimed that Major Bone had asked her about information she had disclosed to Janet Gordon on the premise that she had been in breach of the earlier instruction. The Tribunal made the following findings. Its reasons are set out in respect of each Applicant by way of summary of some seven or eight paragraphs and then by way of formal exegesis of the evidence in three or four pages. As for Ms Gordon, the Tribunal found that her request for redundancy was turned down for legitimate reasons, it was dealt with properly and not influenced by factors of race. The request for a career break was properly handled and turned down for legitimate reasons. She was leant all reasonable support over her work and equipment. No unfavourable comparison was made between her work and another colleague, who was called Rosemary.
13. Indeed that Applicant was, as the Tribunal put it, if anything sympathetically treated in relation to her timekeeping and hours of work. That is a finding specifically accepted by  Mr Nye before us today. The Tribunal went on to find that her timekeeping and attendance were monitored but for a good reason. At an interview about her suitability there was no unfavourable treatment on 21 November 2000. The senior welfare officer, Mr Friel was sympathetic and helpful. Major Bone however, did tell Ms Godbehere and others not to talk to Ms Gordon, following the lodging by Ms Gordon of her first application.
14. In due course this instruction was relayed to Ms Gordon. The findings disposed of many complaints which were the substance of Ms Gordon's first and third applications.
15. We have been asked to look at details of two matters falling within the heading of "findings of fact manifestly in conflict with the uncontested evidence before it." In relation to Ms Gordon, two points are made and we consider that these are well made.
16. They are that the Tribunal found that the Applicant had not mentioned problems at home before 11 November 1999. We have not been shown the documents but accept from the extracts presented in Mr Nye's skeleton argument that there was, prior to this date, such mention by the Applicant and we have read those extracts. Secondly, the Tribunal found that at no time did Ms Gordon complain internally of race discrimination, harassment or bullying. Again, that finding was contrary to the uncontested evidence in that there was evidence of such complaints. As to the first, it is plain that the Respondents did become aware of the Applicant's childcare arrangements and her problems. The question is, having identified in the Applicant's favour, those two matters where uncontested evidence appears not to have formed the basis of the finding or part of the finding, is that an error of law so as to propel this case to a full hearing? With respect we do not consider such an error has occurred.
17. These have to be seen in the context of the overall approach of the Tribunal to the large number of complaints presented by Ms Gordon and they do not appear to us to have been regarded as central to the findings by the Tribunal or to Ms Gordon's case under the three applications she made. We therefore reject the submission that those two findings vitiate the Tribunal decision.
18. In similar form, findings were made in respect of Ms Godbehere thus the Tribunal found that Ms Godbehere was told by Major Bone not to speak to Ms Gordon following her application. There were discussions between Major Bone and Mr Herrod but these were nothing to do with the fact that she was supportive of Ms Gordon or that Ms Gordon had brought claims. The conversation was entirely to do with the Respondent's efforts to recover monies in respect of unauthorised private use of the telephone. Similar findings are made about other phone calls. As with Ms Gordon, the Tribunal made detailed findings to support the summary we have given above in relation to Ms Godbehere.
19. Her claim before us is that the second aspect of her complaint of victimisation was not dealt with by the Tribunal. The finding by the Tribunal in relation to what Major Bone told Ms Godbehere and others amounted to a finding that there was discrimination by way of victimisation, upholding therefore, Ms Gordon's claim under that head in full and Ms Godbehere's in part. The part is explained by reference to the fact that she made a complaint about being told by Major Bone not to talk to Ms Gordon. That is the subject of her partly successful claim but her second complaint was that on or after 6 July, Major Bone asked to see her about information she had disclosed to Ms Gordon, that she was told to keep the information confidential and that this made her feel uneasy. Subsequently there was a conversation between Major Bone and Mr Herrod in which "a bit of history" was referred to. Mr Nye's complaint on behalf of Ms Godbehere is that this second aspect of her complaint is the subject of no finding by the Tribunal. We disagree; paragraph 19 of the Tribunal's extended reasons include a reprise of the evidence relating to the second aspect of her complaint and as we have recorded from the summary, that had nothing to do with her complaint of discrimination.
20. The Tribunal upheld her complaint of victimisation in respect of the first conversation but found that the second conversation and subsequent dealings were to do with the telephone and its private use. We would be unable to interfere with that finding of fact made.
21. The third principal substantive ground of complaint made by both Applicants is that the Tribunal concluded that the Respondents' motives were determinative in respect of each Applicant's claim of unlawful discrimination by way of victimisation and so misdirected itself in law as to the proper test. It is true that this decision contains in at least five places references to malice, motives and intention. We accept that that is not the correct test in a claim of sex and race discrimination and victimisation. Nevertheless, those comments have to be seen again in their context and we hold that they do not amount to a misdirection.
22. Mr Nye with his long experience in representing Applicants in discrimination cases accepts that in every case (and indeed it is our experience too of sex, race and disability discrimination), corporate and individual Respondents and witnesses against whom claims are made routinely deny deliberate intentional discrimination and deny having motives based on an impermissible discrimination. That we consider is a necessary form of outlet and is not determinative, when a Tribunal hears it, of the legal approach, which is to judge the matter objectively.
23. In this case, those five examples might lead to a conclusion that the Tribunal had misdirected itself, were it not for a close examination of how it in fact applied the law to the Respondents in this case. Whilst finding that Major Bone, on behalf of whom the Ministry of Defence was vicariously reliable, had no malice or ill motive in his talk to Ms Godbehere. It went on to find that that could amount to less favourable treatment and did do in the case of Ms Godbehere and of course Ms Gordon. In other words, while recognising that evidence had been presented by Major Bone as to his dismissal of racist or sexist intention, the Tribunal was firmly of the view that there could be a finding of unlawful discrimination or victimisation and this is precisely what it found. In those circumstances therefore, what appears to be a legitimate ground of attack by Mr Nye, on proper analysis fails.
24. Fourthly both Applicants complain that the Tribunal failed to give sufficient details to enable them to identify and understand the reasons for the Tribunal's decision. As will be plain from our account of the structure and content of the Tribunal's extended reasons, we reject this complaint. The Tribunal did in our view provide sufficient details to illuminate its decision and to make it clear to us.
25. Ms Gordon makes one further complaint and that is that the Tribunal failed to be bound by the judgment in King v Great Britain China Centre 1992 ICR 516 CA and therefore failed to consider and apply the facts surrounding the Applicant's complaint accordingly. Both parties were represented by experienced Advocates in the field of discrimination. There can be no doubt that the Tribunal was addressed on that authority and of the approach enjoined by the Court of Appeal in that case and endorsed by the House of Lords. The Notice of Appeal indicates that further details of the complaint would be provided in an argument.
26. No written argument has been provided by Ms Gordon to this effect and Mr Nye was unable to take this matter further in his oral argument on her behalf. We detect no error in a failure to apply the jurisprudence set out in King in this case.
27. These two appeals against the two Respondents are dismissed. The case, should now go back to the Employment Tribunal to continue the remedy hearing it had foreshadowed.