United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BEAN QC Instructed by: Lambeth Law Centre 14 Bowden Street Off Cleaver Street Kennington London SE11 4DS


 


MR RECORDER LUBA QC

1. This is the Preliminary Hearing of an appeal brought by Mr Ravinder Singh Johal against a decision of the Birmingham Employment Tribunal. By a reserved decision given on 5 December 2002 that Tribunal dismissed complaints of racial discrimination and victimisation made by Mr Johal against his employers the Crown Prosecution Service.
2. Those complaints were made in three Originating Applications to the Employment Tribunal. The Employment Tribunal also separately considered and dismissed a further complaint made in the third of those Originating Applications which was that Mr Johal had been subjected to a detriment because he had made a protected disclosure.
3. This case required and received very careful consideration from the Employment Tribunal. The Tribunal heard evidence and submissions over the course of some 28 days. It then spent a further 9 days deliberating before producing its reserved decision.
4. The Tribunal heard 4 live witnesses called for the Applicant in addition to his own evidence and 19 witnesses for the Respondent. The Tribunal had before them more than eight bundles of documents comprising in all some 4,000 or so pages. The judgment that they have produced runs to 107 closely typed pages. As we have noted, the Tribunal dismissed all the Applicant's complaints.
5. To ensure that no matter was overlooked, the Tribunal, with the assistance of the parties formulated the list of agreed issues which appears in the body of their Extended Reasons under heading "4". That list of some 19 issues, with a further 20 or so sub-issues, was intended to put into manageable form the different assertions and complaints made in the Originating Applications.
6. The description given by the Employment Tribunal of the background matters, the specific complaints, the evidence heard and their findings of fact extend over the first 88 pages of the judgment. It is a tribute to the Tribunal that their text has attracted up to that point no criticism from the Appellant.
7. By a Notice of Appeal received by this Employment Appeal Tribunal on 16 January 2003 the Appellant sets out six discreet grounds of appeal detailed at some length in subsequent pages. One such ground alleged bias on the part of the Employment Tribunal Chairman. In directions for this Preliminary Hearing, given on 30 January 2003, the President of the Tribunal, Mr Justice Burton, ordered that an affidavit be lodged in support of the allegations of bias and that the allegations of bias be struck out in default of such affidavit. Mr Johal decided not to pursue that aspect of his grounds of appeal and no affidavit was filed. Those grounds have accordingly been struck out.
8. The President also ordered that the lengthy grounds contained in the Notice of Appeal be distilled into a Skeleton Argument for this hearing. Mr Bean, Queen's Counsel, who appears for Mr Johal today invites us not only to treat his Skeleton Argument (which admirably meets the terms of the direction given by the President) as outlining the grounds of appeal but, in effect, to treat it as a substitute Notice of Appeal. We have acceded to that invitation for the purposes of today's proceedings only. If this matter goes further a proper substituted Notice of Appeal will be required.
9. The President further directed that this Preliminary Hearing be on notice to the Respondent to the appeal. The Respondent does not appear before us but has lodged written submissions. We have, of course, had regard to those written submissions but they are addressed to the Notice of Appeal as originally lodged.
10. We turn then to the case as it is now formulated by Mr Bean in his Skeleton Argument. He identifies some eight alleged errors of law on the part of the Tribunal. He contends that each of these is at least arguably sufficient to demonstrate that the Tribunal erred and that this appeal should be accordingly permitted to proceed to a full hearing inter partes before the Employment Appeal Tribunal on all grounds.
11. We will deal therefore with each of the alleged errors in turn. We take first paragraph 2 of the Skeleton Argument which relates to the Tribunal's handling of what was for them issue 1 (b). It is right that we should record that issue 1 (b) was in these terms:

1 "Was Mr Johal treated less favourably by the CPS than others in materially similar circumstances were (or would have been) treated in the following respects:

…

(b) Between 13 and 24 September 1999 Julie Sealeaf was absent on holiday and Mr Johal was not asked to "act up" to cover her absences. Rather Paul Reid (a white man) was asked to do so instead."

12. In relation to that issue, the Tribunal's conclusions are set out at paragraphs 17.2-17.3 of their Extended Reasons. Mr Bean has taken us to those sub-paragraphs and sought to demonstrate that the Tribunal's approach and conclusion on issue 1 (b) cannot be sustained, or at least arguably contains an error of law. What he says is that in paragraph 17.3 the Tribunal have concluded that they find "no probative evidence" in relation to acting-up opportunities for CPS staff. The next sentence reads:

"Thus no clear pattern of less favourable treatment of ethnic minority prosecutors was established which would have placed the denial of the opportunity to the Applicant in keeping with a pattern within the Respondent's organisation."

13. Mr Bean draws attention to the fact that earlier in their recital of the background the Tribunal had (at paragraph 8.6) noted that there had been an earlier Employment Tribunal case involving a CPS employee, a Maria Bamieh. In the course of their summary of the outcome of that Tribunal complaint and decision (at paragraph 8.6) they record that whilst the Tribunal had not in that case found discrimination, it had been critical of the temporary promotion opportunities (i.e. the acting-up opportunities) and that that system had been described by that Tribunal as "haphazard and potentially unfair".
14. Mr Bean, in the light of that earlier reference to that earlier Tribunal says that the Tribunal must have been wrong in concluding that there was no probative evidence before it of a pattern of less favourable treatment of ethnic minority prosecutors in relation to acting-up or, at least, evidence which would suggest such less favourable treatment.
15. With respect to him, we do not believe that this point discloses an arguable error of law or approach by the Tribunal. It is for the Employment Tribunal to say what evidence they found probative on the matters which were before them. The Employment Tribunal were here entitled to deal with the evidence before them as they did and we do not believe that there is any demonstrated error in their not referring at this specific point in their judgment to an earlier finding by a different Employment Tribunal. If error it was, it does not in our view, even arguably, undermine the conclusion reached by the Tribunal on issue 1 (b). Accordingly, the first of Mr Bean's grounds of appeal will not be allowed to proceed further by this Tribunal as we consider that it has no prospect of success.
16. The second ground of appeal as now formulated relates to issue 1(g) of the issues that fell for consideration by the Tribunal. Issue 1(g) is in these terms, again with the preface that opens each reference to the sub-headings of issue 1 (reproduced at paragraph 11 above):

(g) "During a meeting with Julie Sealeaf on 20 October 1999, did she suggest that Mr Johal should consider a transfer to West Bromwich, and that it would assist his career if he did so?"

17. The Tribunal's conclusions on that matter are at paragraph 17.10 of their Extended Reasons. They make, in the course of that paragraph, clear and unequivocal findings as to what happened and why it happened. They accept that the question of a transfer to another office was raised by Ms Sealeaf but, as the Tribunal find, that was in the context of a previous indication by the Appellant, Mr Johal, that he was unhappy with his existing CPS team and interested in a move to another branch or team, particularly one which would offer the opportunity to meet his ambition of promotion.
18. In those circumstances, we can find no misdirection in the findings or conclusions reached by the Tribunal. More particularly, we find nothing that amounts to a misinterpretation by the Tribunal of the important guidance given by the Court of Appeal in the leading case of Anya v University of Oxford [2001] ICR 847.
19. We turn then to the third issue raised by Mr Bean in the modified "Notice of Appeal" and that is in relation to the Tribunal's finding on issue 1 (h). That issue, again quoting only the description contained at (h) itself, is as follows:

(h) "Did Mr Van French behave unprofessionally in a racist manner towards Mr Johal on 11 November and 23 November 1999 and in his telephone call of 18 January 2000?"

20. The Tribunal deal with that matter in the three paragraphs 17.11 to 17.13 of their Extended Reasons. They set out fully the circumstances in which the exchanges occurred between Mr French and Mr Johal. The Tribunal expressly says in paragraph 17.12 that it did not draw the adverse inference of racial discrimination "given Mr French's firm evidence of his sense of frustration at what he saw as the Applicant's lack of professionalism" in not ensuring that a particular file was available.
21. The Tribunal, having found the facts as to the exchanges which occurred between Mr French and Mr Johal, reach a conclusion, which they express in terms, that there was no discrimination nor material from which an adverse inference of discrimination could be drawn.
22. Notwithstanding Mr Bean's criticism of the wording of paragraph 17.12 we are unable to detect anything amounting to an arguable error of law in the Tribunal's conclusion on this issue.
23. The fourth point of appeal relates to issue 1 (i), the question of offensive letters and telephone calls. Again we quote the Tribunal's statement of the particular issue. It reads:

(i) "In October and November 1999, two anonymous letters were sent to David Blundell and one was sent to Mr Johal, complaining about Mr Johal. From November 1999 (and thereafter), did Mr Johal receive silent/harassing telephone calls? Are the CPS responsible for these letters and/or phone calls?"

24. The Tribunal accepted, on the evidence that they heard, that the letters in question had come from either the Crown Prosecution Service or the Police. They were not satisfied that the evidence enabled them to establish from which source the letters had come.
25. Mr Bean urges upon us that there was an indicator to which the Tribunal ought to have had regard, which was the fact that a Mr Prosser of the CPS had refused to have his fingerprints taken in the course of that investigation. But the Tribunal had themselves considered and recorded that fact earlier in their Extended Reasons at paragraph 11.33.
26. We do not accept that the allegation that the Tribunal overlooked this point can be made good. The Tribunal were simply not, on the evidence before them, satisfied that, on the balance of probabilities, the letter had come from the CPS.
27. The same must be said in relation to the Tribunal's treatment of the anonymous telephone calls. Mr Bean rightly places emphasis on the fact that the Tribunal found that the calls had come from CPS headquarters. In those circumstances he asked, rhetorically, how can it not have been held that the CPS were responsible for anonymous and harassing silent phone calls?
28. The answer is given by the Tribunal itself. The Tribunal finds at paragraph 17.14 a perfectly innocent explanation why calls might have been made to Mr Johal's telephone number from the CPS headquarters and, further, finds that it is not satisfied who actually made those calls or that the calls were themselves harassing.
29. Those are, in our view, unassailable findings of the Tribunal and there is, with respect, nothing in the criticism of them.
30. The fifth matter raised by Mr Bean relates to issue 1 (k). That issue, again to quote from the Employment Tribunal's findings, is in these terms:

(k) "Did Mr Cameron display a discriminatory attitude towards Mr Johal in the investigation he conducted into Mr Johal's grievance; did he fail to investigate the complaints properly and/or fail to take the complaints seriously?"

31. This is an issue that the Tribunal dealt with at paragraph 17.16 and 17.17 of its Extended Reasons. Mr Bean for Mr Johal contends that the Tribunal found that the investigation conducted by Mr Cameron was not a sound investigation and indeed was an investigation not properly carried out. The question then is whether the Tribunal was able to draw an adverse inference that the investigation was conducted by Mr Cameron in this way on grounds of race.
32. The Tribunal not only expressly directed themselves to that question but they answer it. They find that the investigation by Mr Cameron was not carried out in bad faith or improperly. They accepted Mr Cameron's explanation of why he was unable to conclude, on the balance of probabilities, that the remark "black bastard" had been made, as alleged by Mr Prosser. We cannot accept that the criticisms put forward by Mr Bean today amount to demonstrating an arguable error of law by the Tribunal in their conclusion upon this issue.
33. The sixth point taken in the course of the hearing today relates to the investigation of the anonymous letters (issue 1 (l)). This matter is dealt with at paragraph 17.18 of the Tribunal's Extended Reasons. The Tribunal, in that paragraph, found:

17.18 "…that the Applicant was less favourably treated amounting to a detriment in that Mr Blundell [the recipient of the first two anonymous letters] failed to notify him of [their receipt]…and to inform the police..."

The Tribunal found Mr Blundell to be a "forthright and genuine witness" and quoted his evidence that he accepted with the benefit of the hindsight that this had been a bad decision.

34. The findings of the Tribunal, following on from their finding of a detriment and the consideration of Mr Blundell's evidence, are that the complaint made by Mr Johal is not made out. Mr Bean complains that their conclusions on this point are not as fully or felicitously expressed as they might have been. That may be the case; but in our view the criticism of the treatment of this matter by the Employment Tribunal does not demonstrate that there is even arguably an error of law in their approach or their conclusion.
35. The seventh issue raised before us relates to issue 4 (c). Issue 4 (c) deals with the fact, to summarise, that in late 1999/early 2000 Mr Johal was not on the weekend overtime rota scheme. That had obvious financial consequences in relation to his income. The question before the Tribunal was whether the employers had failed to address Mr Johal's concerns as to his non-participation in the overtime scheme.
36. The Tribunal expressly rejected the contention that the CPS had failed to address his concerns. At paragraph 17.22 of their Extended Reasons the Tribunal first found that there had been no less favourable treatment. The reason why Mr Johal was not on the rota was because he accepted that he should not be on the rota as a result of two matters. First, because an extant police investigation was underway and, second, that participation in the rota would inevitably bring contact with certain police officers with whom Mr Johal appears to have accepted he ought not to be brought into contact at the relevant time. In those circumstances, we cannot describe the criticism of this finding as demonstrating an arguable error of law.
37. Mr Bean then goes on to criticise the way in which the Employment Tribunal dealt with the important decision of Chief Constable of the West Yorkshire Police v Khan [2001] ICR 1065 in their consideration of the alternative possibility that a detriment might have been found.
38. In view of the fact that we consider that there is no arguable challenge to the Tribunal's finding of no detriment, we cannot accept this criticism of their alternative as amounting to an arguable point of law in respect of which the matter should be allowed to proceed to full hearing.
39. Mr Bean asserts that the same misdirection in relation to Khan infects the Tribunal's primary conclusion that there was no less favourable treatment amounting to a detriment on this issue. For our part we can detect no such misdirection on the part of the Tribunal.
40. That leaves new ground of appeal 8 which relates to the Tribunal's treatment of the quite separate matter raised under issue 14 (a). That issue, one of alleged victimisation, arises on the third Originating Application put forward by Mr Johal and relates to an article which appeared in the Independent newspaper, on 3 June 2000. As a result of the appearance of that article in the Independent newspaper the CPS decided to launch and pursue an investigation into the circumstances of the publication of that article and appointed an investigator.
41. The short point made by Mr Bean is that it is arguable that the giving of the information about racial discrimination in the CPS to the journalist of the Independent newspaper, by Mr Johal, was a "protected act" and that as a result of that protected act Mr Johal suffered a detriment, that is, he was subjected to an investigation.
42. The Tribunal find that there was less favourable treatment amounting to a detriment in the launch of the disciplinary investigation. That finding is at paragraph 19.6. What Mr Bean criticises is the Tribunal's progress from that finding to hold that there had been no victimisation made out. That holding is made by reference to a hypothetical comparator who was another employee who had never done any protected act.
43. Mr Bean urges that, on a proper consideration of the law, once a protected act has been found and a detriment has been experienced by the maker of the protected act then there is no further room for any investigation of comparators or the like. We accept that this criticism of the conclusion of the Employment Tribunal does raise an arguable case that the Tribunal have erred in law.
44. Accordingly, on the eighth point, that is the criticism of the Tribunal's conclusion on issue 14 (a), we are satisfied that there is a matter to go forward to full consideration on an appeal should Mr Johal wish to pursue it.
45. In those circumstances, we direct that all the matters set out in what we shall treat as the substituted Notice of Appeal, i.e. Mr Bean's Skeleton Argument, shall be struck out save the ground we have identified as number 8 which relates to issue 14 (a). We shall accordingly direct that if the matter is to proceed Mr Bean (or those instructing him) will formulate into a further substituted Notice of Appeal a notice setting out that single ground.
46. Before concluding our judgment we should pay tribute to the measured and helpful way in which Mr Bean on behalf of Mr Johal has advanced this appeal before us at the Preliminary Hearing this afternoon.
47. We direct that a transcript be made of the judgment just delivered. We not only give permission for the lodging of an amended Notice of Appeal but we direct that one be lodged in relation to what we have described as issue 8 and that that be lodged within 14 days.

Judgment on Permission to Appeal

48. Mr Bean, the application for permission to appeal to the Court of Appeal is refused in relation to the matters we have described as 1-7. We, as you have heard, have characterised those seven issues as not being issues in relation to which any arguable error of law arises and in those circumstances would not feel it appropriate to give permission to appeal.

Directions

49. We consider that this case can be appropriately dealt with on the point we have identified within half a day. Furthermore, although the point may be an important point in the general run of employment law cases, the way in which the appeal will proceed, which is to identify that the Tribunal applied the wrong test, is, we think, the sort of point which can be dealt with in Category C; so we shall direct a half day in Category C.