United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person


 


MR RECORDER LANGSTAFF QC

1. This case comes before us by way of preliminary hearing from a Decision of the Employment Tribunal sitting at Stratford. In Extended Reasons, which extend indeed to some thirty four pages, given on 11 January 2001, the Tribunal record why it is that they dismiss the Appellant's claims in respect of race and sex discrimination, equal pay and unfair constructive dismissal.
2. The Tribunal sat for a number of days in November and December 2000. The case was detailed and complicated. It is, in one sense, a tribute to the Employment Tribunal that a Decision of such length, dealing with so many issues, is so well expressed as to give rise to no complaints by Ms Patel, the Appellant, that there is a wrong approach in law or that the Tribunal was not entitled to reach the conclusions it did, on the evidence it heard.
3. Her complaint to us is on the ground of bias. It is, however, not bias as most frequently found; it is rather an expression of the fact that she was on her own, unfamiliar with Employment Tribunal proceedings, opposed by the resources of a large publicly quoted undertaking, who had engaged the services of a silk and a number of solicitors from the well known firm of Lovells. In essence, many of Ms Patel's complaints might be summarised, as she herself accepted, by saying that she was complaining that she was not on the same level playing field as her opposition. She complains, for instance, in her Notice of Appeal that before the first witness was ever heard, there had been procedural matters conducted between herself through her then solicitors, and the Respondents. She complains that the Respondents were deliberately prolonging the pre-hearing proceedings with a view to dragging them out to exhausting her resources, to making life difficult for the presentation of her claim, and simply being uncooperative with her and awkward.

Whatever the force in that, it constitutes, indeed, the first several grounds of appeal, as set out at paragraphs 3 (i) - (vii) in her Notice of Appeal; they are echoed by her affidavit.

4. Before us, she accepted that the matters about which she principally complained, in the pre-hearing period, were matters that she had agreed to, albeit through her solicitors, first Irwin Mitchell, and secondly, Paisner & Co. She was making the case that this was under pressure applied by the Employment Tribunal because of the activities of the Respondents and their solicitors. We do not have to investigate the force of this because Ms Patel accepts that her solicitors, and she, chose to do the acts about which she now complains and, indeed, deliberately took a decision not to appeal the rulings of the Employment Tribunal which gave rise to the disadvantage which she felt. There is, from what she has said to us, little doubt that when she came before the Employment Tribunal for the hearing of the case that eventually took place on 27 November 2000, she felt at a disadvantage because of the way in which matters had hitherto happened. She was no longer represented.
5. About the conduct of the hearing, she makes a number of complaints. We have to decide whether, in any of those complaints, there is an arguable point of law. If there is not, we have no alternative but to say why we think that her arguments are ill founded and we have no alternative but to dismiss her appeal at this stage.
6. The first of the points which she makes before us, in respect of the conduct of the hearing, is in relation to the evidence of a Mr Owen. She feels that the Tribunal ignored the evidence which she put forward and took Mr Owen's evidence at face value. She had documents which, she tells us, indicated discrepancies in that which Mr Owen was saying. This is allied to a complaint that she did not have adequate time to cross-examine the Respondents' witnesses and therefore to develop the points that she wished to make. I shall return to that allegation later.
7. This is the one area which we can identify where, indeed, Ms Patel does complain about the conclusion which the Employment Tribunal reaches. If this could go so far as to be a suggestion that the Tribunal had no basis in the evidence for coming to the conclusion that they did, which preferred Mr Owen's evidence to hers on the issue, or if it was manifestly perverse, or if it was a finding which they were not entitled to make because there was a misdirection on the legal principles which applied, then there would be an arguable point of law.
8. We think, however, that this is an argument in relation to fact: that what Ms Patel is arguing to us is that the Tribunal should have preferred her account to that which they accepted. Very often Tribunals come to conclusions of fact which may appear surprising. Undoubtedly, many conclusions of fact reached by a Tribunal will be disappointing to the party against whom they are made. Neither amounts to an error of law unless it comes within one of the three categories which we have identified. We think that this does not go that far and we can see no error of law in this part of the case.
9. The second matter which Ms Patel raises is that she was not allowed, in effect, to advance the witness statement of a Ms Truscott, which she had obtained. She has explained to us why the statement was obtained as late as it was, well into the hearing. She first saw it herself at nine o'clock in the evening of a day on which she had given evidence. She was due to return to give evidence the following day. The statement was a statement of some thirty pages. She has told us, and for the purposes of this ruling we are prepared to accept, that it was relevant in that it highlighted parts of reports, in that it demonstrated that the treatment which Ms Truscott had had from the Respondents was harassment of the same sort that she had suffered, and particularly important because Ms Truscott had been the only other female employee at the same level as the Appellant and was complaining of treatment from the company of the same nature as that which the Appellant herself complained, and indeed, involving some of the same individuals. The statement also, it appears, dealt with the career background and development of Ms Truscott in the company.
10. What happened was that it appears that an objection was taken by the Respondents' Counsel to the introduction of this evidence. At the end of the day, the Chair sitting on her own, because of the nature of the evidence, heard argument as to whether or not it should be admitted. We have been told by the Appellant that she, voluntarily, chose not to proceed to rely upon the statement. "Voluntarily" is a word which she was prepared to adopt. She has used it previously; it is consistent with her affidavit, it echoes what the Chair says. But her real point is that she felt under pressure, so that what she describes as "voluntary" was not, in reality, a true voluntary act. In her response to the affidavit filed by the Appellant, the Chair says that she, the Chair, indicated to the Appellant that she, the Chair, could either rule on the admissibility of the evidence or she, the Appellant, might choose voluntarily to withdraw it, and that she explained the consequences of each. This is disputed by the Appellant but the difficulty that we have in identifying any error of law is that the application by the Appellant to rely upon the evidence was never pushed to a conclusion. If it had been, and if the Chair had ruled as the Appellant thought she would, against the statement, she would have appealed that ruling to this Court, indeed could probably have done so at that stage. But she chose not to do so. The difficulty is, as we see it, it is now too late to complain about this aspect.
11. However, we should also comment that, having looked at the Chair's Reasons which she gives, at least indicating, (which is our word) that the evidence might not be sensibly admitted, we do see a proper basis for at least asking the Appellant to consider whether she really wished to put the evidence before the Tribunal. This is because it had first to be relevant, second, it had to be proportional in terms of its importance, weighed against the time its admission would use up, and thirdly, there was an issue of prejudice. In particular, it would have taken, she said and we think the Appellant would not seriously disagree, a further week or thereabouts, to explore the issues to which that statement would have given rise.
12. One of the difficulties which we know Tribunal Chairmen face is time management; it is the obligation of a Tribunal Chairman to move things along and to ensure that the issues can be dealt within as short a period of time as is reasonably consistent with the importance of the case. It is in no one's interest that justice should be delayed by exploring every issue and every avenue which arises. A balance has to be struck between all those matters.
13. We would, of course, be prepared to interfere with the exercise of the discretion of a Chairman, in respect of time management, if it appeared to have been exercised on some improper basis, or if it was wholly irrational. However, for the reasons that we have given, there must be a very great latitude given to any Chairman as to the length of time that is to be taken over the hearing and, indeed, the evidence of individual witnesses. Frequently, it involves a judgment by the Chairman of the Tribunal which is often liable to be misunderstood or not appreciated by one party or the other which feels disadvantaged by it.
14. We fully understand Ms Patel's discomfort at not being permitted to advance the Truscott statement. We equally understand and appreciate the reasons, as we see it from the material before us, for the Chair indicating that the statement should not be admitted. We do not think that that indication was in any sense improper, given the difficult task that the Chair had in a lengthy and complex case such as this. Accordingly, we do not think that if pressure was indeed applied to the Appellant that there was anything improper about it. For those reasons, therefore, we do not think there is an arguable point of law in respect of the Truscott statement.
15. The next matter upon which the Appellant relied was that there was an imbalance in the way in which the Tribunal treated her, and her evidence, and that of the Respondents. She was cross-examined for three days. The Respondents had ten witnesses, some of whose statements were very lengthy; she was not permitted to cross-examine them for as long as three days each. However, she did have seven days to cross-examine those witnesses. Again, this may demonstrate the difficulty of time management. On one view, the Appellant had two days reading out her statement presenting her case, an opportunity which was denied to any of the Respondents, so that the public might not have known what they had to say if they had been attending and listening at the Tribunal. It might be suggested that the Appellant had more than twice the amount of time to cross-examine the case against her, as the Respondent was permitted to cross-examine her own case against them.
16. I make those points, not by way of conclusion, but to demonstrate that there may be much about the way time management appears to a party which is seen through their own eyes. The balance a Chairman has to make is to ensure that there is justice done to both parties, and that the case may be properly heard and determined. That will almost inevitably, in most cases, cause some element of dissatisfaction, particularly if the case management skills, which are nowadays expected, are exercised. But having looked at the relative balance, we do not think that any imbalance is so great that there is here any irrational exercise of the Chair's discretion. We do not see that it was exercised on any improper basis. Accordingly, we cannot identify any arguable ground here.
17. Next, the Appellant in her affidavit deals, in some two sentences in the last full paragraph, with a complaint that she was pushed away from cross-examining an issue which she might have wished to cross-examine on, and that she was not allowed to utilise transcripts of tape recorded conversations which she had in support of her case. These have been elaborated before us. On occasions, she tells us, the Chairman indicated to her that a particular line of approach was not relevant and she should move on.
18. There were, however, only two occasions on which she tells us she stood her ground and indicated that the Tribunal should indeed hear it. One of those was in respect of the first ground relating to the first hearing with which we have already dealt. The second was in relation to the cross-examination of a Mr Langridge and a Mr Sanderson. The proposed line was to cross-examine them about their relationship with a Mr Melvin. She tells us that the evidence which might have emerged would, or might have been, crucial to her case in this particular part of the claim. She hoped to show that the action taken against her had been pre-planned.
19. One of the difficulties we have with resolving whether there is an arguable point of law here is that there is no detail of any of this particular point in either her Notice of Appeal, or in her affidavit. It is clear within the Practice and Rules of this Tribunal, that where bias is alleged, as it is here, an affidavit needs to be full so that the Chairman, and if necessary the members of the Tribunal concerned, can comment on it. We therefore have no comment in relation to this particular allegation from the Chair for the reason that it was never specifically drawn to her attention.
20. We have done our best to understand and appreciate whether it may give rise to any arguable point of law that there was here such bias as would invalidate, or potentially invalidate, the hearing taken as a whole. We remind ourselves that, in the light of the way in which we have regarded the other complaints made to us by Ms Patel, this matter would stand on its own. We do not see that it would be of such significance to the case that there would be bias in the approach which we are told the Chair took.
21. We are fortified in that by the way in which Ms Patel has, very frankly, dealt with the Chair's handling of the Tribunal. She has never described the Chair as having ordered her to move on, or desist from pursuing a line of cross-examination, but rather that she has pushed her away. She has again, frankly, indicated that whatever degree of upset she felt about this at the time, it did not merit an application to any other Court. We would be concerned that we would be reading too much into one detail of a long and difficult hearing if we were to think that there was here an arguable point of law upon which a bias, infecting the whole proceedings, was to be found. For those reasons, we do not think that there is an arguable point of law here either.
22. The Appellant tells us that she was not allowed to use transcripts of tape recordings which had been made. These tape recordings were made by her towards the end of her employment. They record conversations which she had with a number of those who were called to give evidence by the Respondents. She says that they would have shown, in particular, that she attempted to go through some of the formal procedures, such as grievance procedures, which the Respondents had. She says that they would have shown a harshness towards her in a Mr Codd, one of the witnesses for the Respondents. When she attempted to raise, in cross-examination, the transcript of such a tape recording, a discussion followed in which the Chair invited the Counsel for the Respondents to make an application, if he wished to do so, in respect of the transcript. We understand it to have been along the lines of "Was there any point under the Human Rights Act which arose?" We have no full answer from the Chair in respect of this, except a somewhat surprising comment that she does not remember anything about transcripts, although that may simply be a reflection of the fact that there is nothing specific in the Appellant's affidavit on this point either. But what she may have had in mind was the applicability, or otherwise, of Article 8. Again, what a Chairman does in such circumstances is capable of being misunderstood. There is a difference between inviting submissions and determining them. What happened was that after the Chair had invited submissions, as we think the description is, the Appellant withdrew the line of questioning. Once again it was, perhaps, a reflection of the fact that she was there on her own, feeling out-gunned, out-manoeuvred and out-spent by the Respondents.
23. Finally, she complains that she felt undermined by some comments which had been made by the Chair. She felt, for instance, that in respect of a Mr Setter, that the Chair's intervention had not been as helpful as she would have wished. The Chair offered to put questions to Mr Setter in respect of an allegation by her that he had propositioned her for sexual favours. Understandably, it was delicate, and the Appellant tells us she accepted the offer. Indeed, it may indicate the sensitivity of the Chair to the situation, and the unrepresented nature of the Appellant. The way it went however, she felt, seemed to be assisting the witness rather than cross-examining him in a hostile way. Again, we think that there may here be a difference of perception, the Appellant no doubt wishing Mr Setter to be grilled, but not appreciating that the role of a Chairman has to be not only to ensure that an unrepresented party's case is put adequately, but also to maintain a proper balance between the parties. A Chair cannot be hostile to one party or the other; if she or he is, then an allegation of bias will undoubtedly follow, and if truly hostile, it will succeed. It is sometimes very difficult to draw the line and to know where it is to be drawn, and we do not see anything, therefore, in this allegation other than a matter of perception of what occurred, and we do not think the perception, in our experience of the nature of Tribunal hearings, indicates a bias.
24. Finally, an issue had arisen about the payment of money which was due to the Appellant, which was recognised to be due some months before the hearing began, and which was not paid until November 2000. The Appellant complained that the Chair asked her to delete evidence about the non-payment of money; she felt that it was important, however, to make the point that the Respondents had failed to pay her for several months. This was because it was indicative of the general attitude of the Respondents towards her.
25. We, again, understand the Chair's desire to have evidence that was relevant. On the face of it, pursuing evidence that money had not been paid, when there was an allegation of non-payment but the allegation had been satisfied by payment, albeit late in the day was not an issue a Tribunal would wish to dwell on. Equally, we can understand, yet again, the feeling of Ms Patel that she was not on level terms with her opposition.
26. This, like a number of the other points that we have mentioned, reflects, the nature of this appeal. As we see it, it has no legal force in the sense of raising a point of law. It raises, rather, the difficulty that any person pursuing a long and complex case against well resourced, well equipped and eloquent opponents, must inevitably feel. That gives rise to no proper appeal point. As we have indicated, we have no alternative, whatever our sympathies may be, but to dismiss this appeal here and now, because in each of the matters on which we have been urged to find that there is a point of law which is arguable, we cannot do so.