United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR LIVINSON Appearing under the Employment law Appeal Advice Scheme


 


JUDGE BURKE QC

1. This is the Preliminary Hearing of the Appeal of Mrs Mayo-Deman against the decision of the Employment Tribunal sitting at London South, chaired by Miss Taylor and sent to parties with Extended Reasons on 6 November 2001. By that decision the Tribunal dismissed Mrs Mayo-Deman's claim that the Respondents, the Lewisham College, had discriminated against her on the grounds of race and had unlawfully victimised her.
2. For present purposes the facts need only be very briefly stated. In 1999 Mr Deman, Mrs Mayo-Deman's husband, was employed by Greenwich University. He was charged by the University with a disciplinary offence or disciplinary offences. The University is a separate institution from the College; but the Tribunal found that the two institutions have close formal and informal links. The College's Director of Personnel, Mr Harbhajan Singh Brar, was invited and agreed to act, as the Tribunal found, as a voluntary advisor to the Universities' Disciplinary Panel charged with deciding upon the disciplinary charge or charges brought against Mr Deman; and he attended all of the various disciplinary hearings at the end of which Mr Deman was dismissed.
3. In October 1999 Mrs Mayo-Deman delivered some documents to the offices at which the Disciplinary Panel was located. It was her case that at about the same time she provided a witness statement on behalf of her husband for a case which he had brought against the University in the Employment Tribunal.
4. Some months later, in the summer of 2000, the College advertised the post of New Deal Administrator. Mrs Mayo-Deman decided to apply for the job and sought information about it. She was sent an application pack which had with it a standard covering letter which bore on it the facsimile signature of Mr Brar. Mrs Mayo-Deman submitted her application form to the wrong destination; but it was forwarded to the College. It arrived late but within the margin of error which the College allowed and therefore went forward in the ordinary way.
5. There were over fifty applicants. A short listing process was carried out. Seventeen candidates were selected for short listing. Mrs Mayo-Deman was not among them. Of the seventeen short listed candidates, fifteen were female. Eight identified themselves as black. Mrs Mayo-Deman is a white American. The actual appointee was a black African female. The Tribunal identified that Mrs Mayo-Deman's claim to have been the victim of race discrimination was based on her complaint that she had not been short listed on the grounds that she was a white American. The Tribunal decision records that Mrs Mayo-Deman withdrew a claim of sex discrimination and, although a claim of indirect discrimination was at one stage sought to be put forward, that was withdrawn and did not go forward.
6. The victimisation claim was also based on her not being short listed and therefore not appointed to the post for which she had applied. The protected acts relied upon were, firstly, the delivery by her to the University of the documents to which we have referred and, secondly, the provision of the witness statement to which we have referred. The link between the University and the College which, on Mrs Mayo-Deman's case led to the College allegedly victimising her, was said to be Mr Brar. The Tribunal's decision went through the process of selection in considerable detail. The College disclosed documents, the Tribunal found, relating to the shortlisted candidates. Mrs Mayo-Deman was invited to indicate which of them was the example which best supported her case that she should have been shortlisted. She identified a candidate for that purpose; and the Tribunal looked in great detail at her application form and the details on it as opposed to that of Mrs Mayo-Deman. The Tribunal said, in paragraph 33 of their decision, that there was no evidence that in the marking of the applications for the purpose of the short listing exercise Mr Mayo-Deman had been treated unfavourably. The Tribunal further found, crucially to the victimisation claim which was as we have said based on the link between the University and the College which resided in Mr Brar, firstly that Mr Brar was not involved in the recruitment exercise in which the failure to short list Mrs Mayo-Deman had occurred and secondly that Mr Brar knew nothing about Mrs Mayo-Deman's application for that post until after the short listing had been completed, when he was given a message that she had telephoned the College and had accused Mr Brar of being racist. They further found that the standard letter which was the covering letter to the application pack sent to Mrs Mayo-Deman, and no doubt to all the other candidates, bore his signature as a result of a scanning process i.e. it was a facsimile signature, that the letter had not therefore been signed by him and that he knew nothing of Mrs Mayo-Deman's application.
7. Having directed themselves in a manner which appears to us to be impeccable on the law which applied to the case, the Tribunal concluded that Mrs Mayo-Deman had not met the short listing and selection criteria more closely than the candidate who she had identified as the closest comparator, that she had not shown that her experience and qualifications as set out in the application documents could have been marked as superior to that candidate, that the selection process had been entirely fair and objective and that the difference in treatment between Mrs Mayo-Deman on the one hand and the candidates who had been short listed was not based on any racial factor. Therefore there was no race discrimination. As to victimisation, the Tribunal were not satisfied that the delivery of the documents by Mrs Mayo-Deman to the Disciplinary Panel at the University was a protected act within the relevant words of section 2 of the Race Relations Act; as to the giving of a witness statement the Tribunal concluded, at paragraph 54 of their decision, that Mrs Mayo-Deman had given no evidence of the date or nature of what they described as "the alleged Tribunal proceedings" and had given no evidence that she had given a witness statement during the course of any such proceedings. Similarly Mr Deman's witness statement and oral testimony made reference to Tribunal or other legal proceedings against the University. Accordingly they found that there was not the second protected act on which Mrs Mayo-Deman relied.
8. Mr Deman on Mrs Mayo-Deman's behalf or maybe Mrs Mayo-Deman herself, it matters not which, put forward a lengthy and very detailed notice of appeal which when broken down into its constituent parts, advanced a large number of separate criticisms of the Tribunal's decision on various interlocutory matters which the Tribunal had to decide before they started to hear evidence, of the procedure adopted by the Tribunal during the course of the hearing and of the substance of the Tribunal's decision.
9. Ground 9 in the Notice of Appeal alleges perversity, bias and racial bias on the part of the Chairman and the Tribunal; it says, for example, "the Chairman shamelessly displayed racial hostility towards Mrs Mayo-Deman and towards Mr Deman who was representing her." This allegation sparked the requirement of an Affidavit to support it. Affidavits were put in by Mrs Mayo-Deman, Mr Deman and an observer; and statements were obtained from the Chairman, from the lay members and from the solicitor who had represented the College at the hearing.
10. Today Mrs Mayo-Deman has been represented by Mr Livinson under the ELAAS Scheme, with considerable industry and good sense, and from a standing start because he did not received the complicated and lengthy papers in this case until, at the earliest, Friday evening - today being Monday. He has produced to us a new Notice of Appeal which puts forward only two grounds of appeal which may (or may not, we think perhaps not but we have not checked it) have been put forward in the original Notice of Appeal. He has confirmed that he has instructions to abandon all grounds of appeal set out in the Notice of Appeal except the two set out in paragraphs 2 and 3 of a document entitled Amendment to Grounds of Appeal which has been put before us today; he having confirmed that he has those instructions and we having heard no objection to that from Mr Deman or from Mrs Mayo-Deman (who is not here), we order that all the grounds set out in the Notice of Appeal are dismissed other, if the Notice of Appeal covers them, than the two to which we are now going to refer which are set out in the document to which we have just referred.
11. We turn therefore to the two paragraphs which have been argued before us this morning. The first of those paragraphs takes us to the paragraph of the Tribunal's decision to which we referred only a few moments ago, that is to say paragraph 54 which makes findings as to the second alleged protected act. It is submitted that the Tribunal erred in referring to the Tribunal proceedings brought by Mr Deman against the University as alleged Tribunal proceedings and in seemingly finding that there was no evidence before the Tribunal that such proceedings actually existed because it is said there was evidence in the papers before the Tribunal that there were those proceedings and that a witness statement had been provided by Mrs Mayo-Deman in those proceedings.
12. Mr Livinson has frankly confirmed to us that Mrs Mayo-Deman did not give any evidence of the date or nature of those proceedings or that she had given a statement during the course of such proceedings and it has not been suggested that the Tribunal erred in stating as they did in paragraph 54 that no such evidence was given by Mr Deman anyway. Despite the lack of such evidence, what is now argued is that there was before the Tribunal a document, which is at pages 209-210 of a supplemental bundle prepared for this hearing, which was a witness statement of Mrs Mayo-Deman in those Tribunal proceedings. The first thing to say about that document is that it is not a witness statement. It purports to be a draft witness statement. It is not signed. It does not say in what proceedings it was made or for what proceedings it was drafted and it is in our judgment entirely understandable, if this document was before the Tribunal, that they would not have realised what it was or at least would not have realised that it was as it is now said to have been a witness statement in the Tribunal proceedings brought by Mr Deman against the University.
13. It has not been suggested that any time during the argument or during the evidence the Tribunal's attention was actually drawn to this document. But let us assume the Tribunal either knew of it or ought to have appreciated that it related to the proceedings to which we have referred. Even so in any event the victimisation claim could not have succeeded unless Mrs Mayo-Deman established that Mr Brar knew of the fact that Mrs Mayo-Deman had applied for appointment to the post at his College for which she failed to be short listed before of course that failure actually occurred. The Tribunal plainly and unequivocally found that he did not have that knowledge and that he was in no way involved in that appointment process.
14. Those findings are not challenged. It follows that the victimisation claim on those findings had to fail. Thus any omission to notice or understand the function of the witness statement or draft witness statement at page 209 of the bundle now before us, if that document was before the Tribunal, is of no materiality to the ultimate success or failure of the victimisation claim; and there is in our judgment for those reasons no arguable ground of appeal against the decision on victimisation arising from the points taken in paragraph 2 of the amended Notice of Appeal document put before us today.
15. We turn therefore to paragraph 3 of that document, the second ground argued on behalf of Mrs Mayo-Deman this morning. That paragraph contends that there was a breach of natural justice in the manner in which the proceedings were conducted before the Tribunal in two respects, firstly in that copies of the parties' witness statements were not exchanged and, secondly, in that, when at the end of the proceedings the parties were asked to put in written submissions and did so, those written submissions were not either exchanged between the parties or sent by the Tribunal for comment to the opposite party to that which had drafted each set of submissions.
16. So far as the witness statement point is concerned that has not been developed in argument before us this morning and we have no doubt at all that it gives rise to no arguable ground of appeal. Often witness statements are ordered to be exchanged, or without exchange, lodged in advance of the Tribunal hearing. Sometimes they are not. It is not a want of natural justice or arguably a want of natural justice that in an individual case they are not.
17. As to the failure to procure an exchange of written submissions or to ensure via the Tribunal that each party's written submissions were sent to the opposite party, we take a different view. In London Borough of Barking and Dagenham v Oguoko [2000] IRLR 179 the Employment Appeal Tribunal held that, where what occurred in relation to closing written submissions was what occurred in this case, as is clear from the comment of the Chairman in paragraph 66 of her response to the bias and misconduct allegations, there would be a want of natural justice. Whether everything which is set out in paragraphs 33 and 34 which are the material parts of that judgment, is necessarily wholly correct is a matter which of course we cannot consider on a Preliminary Hearing. It may be at the full hearing of this appeal that the division of the Employment Appeal Tribunal dealing with this appeal will wholly agree with those paragraphs, it may be that they will not; but in any event, in the light of what that decision plainly says, it must at least be arguable that there was a want of natural justice in the accepted failure of the Tribunal in this case to ensure that the submissions of the parties were made available for comment by the opposite parties before the Tribunal made their decision.
18. Accordingly on that ground and on that ground only we allow this appeal through to a full hearing. All other grounds of appeal are dismissed and will not go through to a full hearing. Category C. Time estimate half a day.

FOR FILE ONLY

I am concerned that at the full hearing the Tribunal should know whether the fax or letter to which we drew our attention by which Mr Deman indicated to the Tribunal that he had not had the written submissions and expected to have them to know whether that fax or letter was actually sent and whether it was actually received. That would require some sort of instructions to the Tribunal service to see if they have it on that file, I imagine. Would the best way of handling that be for us to make the enquiry?

I think it would Sir.

I do too. All`right. I am not going to make any direction to this effect but I will see that a letter goes out from the Employment Appeal Tribunal to the Employment Tribunal asking the appropriate question and of course the answer will be sent to the parties.