United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS B ROBERTS (of Counsel) Instructed by: Messrs Douglas & Co Solicitors 348A Camberwell New Road London SE5 ORW


 


JUDGE D SEROTA QC

1. This is an appeal before us as special, to consider by way of a preliminary hearing whether the matter should go further, brought by Ms Irish against ISS UK (Servicelink) Ltd and is an appeal from a Decision of the Employment Tribunal, chaired by Mr D M Milton of London South, on 1 August of last year, the Decision being promulgated on 14 September.
2. Ms Irish was employed by a predecessor of the Respondent as a cleaner, but there was a transfer of undertaking, at some point in time, to the current Respondent. By way of history it would seem that some time in 1999, Ms Irish had made a complaint of race discrimination. We should point out that she is black, but that application was struck out.
3. In January of last year, after what appears to have been a history of disagreements with her immediate supervisor, Mrs Lewis, whom we assume to have been white. She wrote two highly offensive letters; this led to her being suspended. There was a disciplinary hearing that took place in February, and as the Employment Tribunal recount, those who were responsible for investigating the matter on behalf of ISS came to the conclusion that the Applicant was not prepared to apologise. This also seems to have been her stance before the Employment Tribunal; it was impossible to restore peace so she was summarily dismissed.
4. There was a review held in April of the Decision, within the internal disciplinary procedure, and that Decision was upheld. Her Originating Application was on 27 April of last year and the Notice of Appearance of the Respondent was on 25 May, and the hearing, as we have said, took place on 1 August. The Decision of the Employment Tribunal on 13 September was that the decision to dismiss the Respondent was within the reasonable range of responses an employer could take on the facts of the case.
5. On 26 November an affidavit was filed by the Applicant and it made allegations of bias against the Chairman. The allegations of bias that were made really amount to complaints that the Tribunal had decided evidential decisions against her.
6. One of the suggestions that was made by the Applicant was that the question of apology had never been raised at the hearing. The Chairman, in his comments of 7 December, makes clear that it was, and that the Decision that had been made had been made by him and his colleagues, having considered all the facts. The application, therefore, to review was rejected.
7. On 17 January of this year, there was a Notice of Appeal. We are not certain when this Tribunal gave notice to the Applicant that there would be a preliminary hearing. We have heard an application, which we have already disposed of, by her Counsel today, seeking an adjournment, and we came to the conclusion that it was inappropriate for this matter to be adjourned further.
8. It is right to say that the Applicant was not legally represented at the hearing before the Tribunal. The Tribunal, as we have said, essentially decided this matter on the question of facts; it had heard the evidence, weighed it up and came to the conclusions that we have mentioned.
9. Ms Roberts, in her submissions to us, conceded that, in the eighteen pages or so of manuscript that the Applicant has submitted in support of her appeal, there is no arguable point of law. It seems to us that in the absence of an arguable point of law, the appeal is doomed. However, Ms Roberts says that her instructions are that there was procedural impropriety, or bias on the part of the Chairman.
10. The procedural impropriety is an assertion that does appear in those eighteen pages, that a witness was available and to be called by the Applicant to give evidence as to the background to her dispute with Mrs Lewis, a background where the Applicant asserts there was prejudice, on racial grounds, shown by Mrs Lewis. She was told by the Chairman it was not relevant to go into the history of matters. If that is in fact the case, it seems to us it is far too late to raise this matter now and does not appear in any of the documents put forward, and no amended ground of appeal has been put forward.
11. Further, had this specific allegation been raised, it would have been necessary for it to have been supported by an affidavit and the matter would then have gone back to the Chairman for his comments. We note that the Applicant has already sworn an affidavit in these proceedings in which this particular point is absent. There are allegations, it is true, but those allegations of bias simply go to assertions that her evidence should have been accepted, rather than that of the Respondent. It seems to us that that is not a satisfactory basis for asserting that there has been bias. In the circumstances, we are quite unable to see any basis upon which it can be said that there is any arguable ground of appeal.
12. We do not consider that there is any arguable case on the question of bias and the point, that now Ms Roberts seeks to raise, is being raised far too late, and we have grave doubts about it, bearing in mind that it is not referred to in the eighteen page manuscript document in support of the appeal, nor in the affidavit, which has been carefully produced and typed, it would seem to us, with some professional assistance, indeed, it looks as if the affidavit of 26 November was prepared by solicitors, Douglas & Co. In those circumstances, we are not minded to allow this matter to go further, and it must be struck out.