United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN DAVIES QC (Solicitor) Instructed by: Thomas Dunton Solicitors 217-219 High Street Orpington Kent BR6 0NZ


 


MR RECORDER LUBA QC

1. This is the Preliminary Hearing of an appeal brought by Mr Deman against the decision of the Employment Tribunal at London (Central) in respect of which that Tribunal delivered Extended Reasons on 12 November 2002. That Tribunal, Chairman Mr M F Haynes presiding, unanimously decided that the Applicant's complaints which were before that Tribunal were not well-founded and were, accordingly, dismissed. Further, it found unanimously that the Applicant's claim for costs should also be dismissed.
2. The complaints with which the Tribunal were concerned were, firstly, an Originating Application lodged with the Employment Tribunal Service on 10 August 1999 alleging race discrimination and victimisation on the part of the First Respondent, the Association of University Teachers and Mr Triesman, the Second Respondent.
3. The second Originating Application with which the Tribunal were dealing was lodged on 14 November 1999 and that alleged race discrimination, victimisation and sex discrimination against three Respondents, the Respondent Mitchell having been added as the Third Respondent. At a directions hearing on 13 February 2000 it had been ordered that these two complaints be heard together against all three Respondents.
4. The Tribunal heard the complaints over some ten days and considered the matter in chambers for a further three days. They had to determine a number of issues raised by the two Originating Applications. They described the issues before them in a series of numbered headings which they set out in the body of their Extended Reasons. These are to be found in paragraph 6 and there are some 21 separately numbered heads; heads (1) to (16) arising from the first Originating Application; heads (17) to (21) arising from the second Originating Application.
5. Mr Deman, the Applicant, was represented before the Tribunal by a Mr Sharma, a friend, and the Respondents were represented by Mr Sethi of Counsel. Essentially, the thrust of Mr Deman's complaints was that he had been favourably treated in his access, as a member of the trade union, (1) to the various services of the trade union and (2) the opportunities that membership of the trade union would provide, or would perhaps provide, to a member such as himself. In particular, although it is perhaps unfair to give weighting to any particular matter, it does appear that central to the complaints was the refusal of the union to provide legal aid or funding assistance in respect of various complaints that Mr Deman wished to pursue against others in the Employment Tribunals and elsewhere.
6. As we have indicated, the Tribunal gave extensive written reasons dealing, in turn, with their findings of fact in relation to all 21 heads. They set out their directions of law. They then recorded their conclusions on the 21 items by reference to that law and to their earlier findings of fact. At paragraphs 39 to 40 they provide what is essentially an "executive summary" of the approach taken and the conclusions that they reached.
7. The Tribunal were invited, in their consideration of the complaints, to look at what have been described before us today (in other proceedings) as "foreground issues" and "background issues". These were the matters which Mr Deman was urging the Tribunal to consider as part of the relevant background or foreground, in establishing the correctness or otherwise of his contentions that the Respondents had been guilty of the specific acts of discrimination and victimisation that he was alleging in his complaints.
8. Following receipt of the Extended Reasons, Mr Deman lodged a Notice of Appeal with this Employment Appeal Tribunal which contains some seven separate grounds of appeal. The first three of the grounds of appeal, numbered (i) to (iii) of paragraph 6 of the Notice of Appeal concern the Tribunal's consideration of what we have already referred to as the foreground and background matters. The Notice of Appeal asserts that the Employment Tribunal erred in law in its treatment of those matters and in the approach it took to reaching its conclusions upon them.
9. That error of law, if it be one, covers much the same territory as the error of law alleged in relation to a subsequent decision of the Employment Tribunal involving the same parties which this Employment Appeal Tribunal has been considering today on a full hearing under reference EAT/142/03. In that appeal we have taken the view that the proper course, having heard argument, is to reserve our judgment.
10. In those circumstances we have invited Mr Davies QC who appears for the Appellant in this appeal (No. 266/03) to indicate whether he is content that the approach which we apply in the other appeal (142/03) should be determinative of grounds 6 (i) to 6 (iii) of this appeal.
11. Mr Davies has made it clear, on instructions, that he is content that we take that course and that, therefore, our findings on the main appeal (142/03) should also resolve issues (i) to (iii) of the Notice of Appeal in this case, (266/03). In those circumstances we reserve our consideration of those matters to the delivery of our reserved judgment in the other appeal.
12. That leaves the grounds of appeal set out at paragraph 6 (iv) onwards of the Notice of Appeal for our scrutiny at this Preliminary Hearing. As is well appreciated by Mr Davies and by Mr Deman, the function of the Preliminary Hearing is to identify whether the grounds of appeal asserted are reasonably arguable so that they should go forward for consideration at a full inter partes appeal hearing.
13. It is necessary therefore to turn to the grounds of appeal in turn to examine whether that is the case.
14. Dealing first with paragraph 6 (iv). The essential contention in this ground of appeal is that the findings of the Employment Tribunal were perverse insofar as they dealt with the allegations of racial discrimination and victimisation arising from the refusal by the union of "legal aid funding".
15. The first indicia of perversity relied upon at 6 (iv.i) of the Notice of Appeal is that the Tribunal had made the sweeping finding that the conduct of the union, in relation to the "legal aid" funding question, had been reasonable throughout. That, says Mr Davies in well-structured oral argument before us this afternoon, is plainly perverse because there had been an earlier hearing before a different Employment Tribunal (which we shall call the "Menon case") in which certain adverse inferences had been drawn as to the conduct of the trade union in respect of the funding issue. In those circumstances, says Mr Davies, there is a plain, or at least a plainly arguable, matter of perversity on the face of the Tribunal's decision.
16. With the greatest of respect to the forceful way in which that point is put, we wholly disagree. It is plain from the Extended Reasons given by this Employment Tribunal that they had well in mind the findings made by the earlier (Menon) Tribunal. They directed themselves that the remit of the complaints before them did not stretch back over any of the matters considered by the Menon Tribunal and in those circumstances their reference to the reasonableness or otherwise of the Respondents' conduct must be taken to be a reference to their conduct over the period with which this Employment Tribunal was concerned. That, in our view, is the only sensible way in which the relevant paragraphs of the Extended Reasons can be read.
17. Mr Davies, in support of the submissions under this head, took us by way of example to paragraph 20.2.6 of the Extended Reasons and reminded us that at the end of that paragraph the Tribunal in unqualified terms say:

20.2.6 "We find that the Respondents acted reasonably in the whole of their conduct of the legal aid applications. We cannot find that at any stage [our emphasis] they treated the Applicant less favourably than any other member, real or hypothetical."

18. Even that suggested illustration of the alleged error of law must be seen in context. The very paragraph from which those sentences are extracted starts with a reference to "Analysis of these facts show". It is evident that the Tribunal is there concerned with facts arising in the period after the period with which the Menon Tribunal were concerned.
19. Mr Davies urges that if this was really what the Tribunal was meaning they should have added a rider at the end of paragraph 20.2.6 directing themselves that this general remark did not cover the material that the Menon Tribunal had been dealing with. In our view, that was unnecessary and would require the Employment Tribunal to simply repeat, for no reason, a direction that it has already given itself.
20. In our judgment there is nothing in Ground 6 (iv.i) which amounts to an arguable error of law, particularly when the error of law alleged is "perversity", which carries, of course, a high threshold test for any Appellant to meet.
21. We turn then to Notice of Appeal paragraph 6 (iv.ii). Again, this is said by Mr Davies to illustrate a perverse approach by the Tribunal. Here the Appellant criticises the terms in which the Employment Tribunal referred on the one hand to certain legal advice obtained by Mr Deman on his own initiative and on the other hand to legal advice obtained. He says that the former was not treated as impartial or independent advice but the latter was.
22. We take the view that the criticism contained in ground 6 (iv.ii) must be seen in the context of the relevant passage of the Extended Reasons (that is paragraph 20.2.8) as a whole. Taken as a whole, it is quite plain that the Employment Tribunal are not dealing with this matter perversely. They gave attention to the matters in the round. They looked at the process which the Respondents had entered into which had led, ultimately, to the refusal to provide funding assistance.
23. We cannot find, notwithstanding the criticism advanced by the Appellant, any matter in the relevant paragraph which constitutes an arguable error of law on the ground of perversity.
24. The ground of appeal in sub-paragraph 6 (iv.iii) asserts that the Tribunal erred in law in its treatment of the victimisation complaints because it applied precisely the same perverse approach as alleged in the immediately earlier sub-paragraphs of the Notice of Appeal. As indicated, we have rejected those grounds as unarguable and it must follow therefore that Ground 6 (iv.iii) also falls under this heading and cannot be pursued.
25. Notice of Appeal paragraph 6 (v) asserts an error of law of a different nature. Although the term 'perversity' is used in the text, this appears to be a complaint more associated with unfairness on the Tribunal's part.
26. The assertion by the Appellant in the Notice of Appeal is that he had received an indication from the Tribunal that it would only consider "background issues" up to an end date of 7 February 2000. He asserts that, as a result of that alleged indication, no submissions were made in relation to later periods and that therefore the Tribunal was wrong in its Extended Reasons to deal with matters arising in relation to any later period.
27. In the helpful written submissions which we have received from the Respondent this assertion that the Tribunal gave an "indication" is disputed. Mr Davies submits that, in those circumstances, the proper course for this Employment Appeal Tribunal to take is to adjourn this matter with some form of direction to the Tribunal Chairman to produce a note. We have considered that suggestion in this case, notwithstanding the period that has passed since 23 December 2002 when this Notice of Appeal was lodged. We note first that there has been no witness statement or affidavit made by the Appellant going to the issue of the 'indication' allegedat 6 (v). That statement could have made good, or better particularised, this allegation.
28. Secondly, in non-compliance with the directions made by Mr Justice Rimer on 24 March 2003 this point is not covered in any Skeleton Argument of the Appellant; nor indeed has any Skeleton Argument been lodged. In that respect we make no criticism whatever of Mr Davies, who we understand was only instructed as recently as yesterday when legal aid funding was made available by the Legal Services Commission. However, in the absence of such public funding the filing of a Skeleton Argument, dealing with this and the other points, was the responsibility of the Appellant himself.
29. Thirdly, the Appellant has made no application prior to this hearing for the Chairman to be directed to submit any note relating to the alleged "indication".
30. Notwithstanding those matters, we have considered the merits of this complaint. We have given attention, in particular, to the fact that the Tribunal, having made findings in relation to the background beyond 7 February 2000, were themselves acceding to an application made to them by the Appellant to do precisely that. Indeed, the Appellant had made a series of procedural applications, including disclosure of documents which dealt with the period well beyond 7 February 2000. There can be no injustice in the Tribunal having considered that perod. There is nothing to substantiate the allegation that they indicated that they would not consider it.
31. It seems to us in all those circumstances that we should not permit this ground of appeal to be pursued further because there is, on the material available to us, nothing in it.
32. Paragraph 6 (vi) of the Notice of Appeal deals with a different matter again. It sets out an allegation that the decision of the Tribunal was based on the bias of the Tribunal against the Applicant/Appellant. The ground of appeal particularises a large number of paragraphs of the Extended Reasons of the Tribunal which it is said bear out the allegation of bias.
33. Contrary to the requirements of the Practice Direction of this Employment Appeal Tribunal, no affidavit or witness statement of the Applicant bears testimony to the allegation of bias. There is no material to sustain the bald allegation contained in the Notice of Appeal.
34. In those circumstances, and not surprisingly, Mr Davies, with his characteristic candid approach to these matters, recognises that it is difficult to pursue this ground further. We put it more strongly than that. In the circumstances it would be improper to allow the allegation of bias to go forward for consideration at a full hearing.
35. Turning then to the last limb of the Notice of Appeal, paragraph 6 (vii), here the allegation again and it is that the Tribunal misdirected itself in law.
36. The relevant directions that the Employment Tribunal gave itself as to the law are set out at some length in the Extended Reasons. In the usual manner the Tribunal first reproduce the relevant statutory provisions and next direct themselves to the relevant case law.
37. From their summary of the law the Appellant alights upon certain passages in paragraph 14 concerned with the proper direction of a Tribunal as to the law of "victimisation".
38. Two specific complaints are contained in the Notice of Appeal. First it is said that the Tribunal, in setting out the appropriate approach to be taken in a victimisation case misunderstood or mis-summarised the decision in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830; a further copy of which has been helpfully furnished to us today by Mr Davies in support of his submissions. He contends that the Tribunal here misdirected themselves that the protected act had to be the sole reason for the less favourable treatment or disadvantage accorded to the Applicant.
39. In order to test that proposition we have considered the relevant passages in the Khan case to which we have been taken by Mr Davies. We have read the summary directions that the Tribunal gave themselves at paragraph 14 of their Extended Reasons. We are wholly unable to detect the misdirection for which Mr Davies contends.
40. The Tribunal, at paragraph 14, certainly set out a resume of the principles in Chief Constable of West Yorkshire Police v Khan, but Employment Tribunal decisions are not to be picked over in the way that one would pick over the note prepared by a headnote writer in the law reports. We have to ask ourselves whether it is arguable that the Tribunal here have misdirected themselves as to the impact, force or effect of the relevant authority cited. We do not believe it to be arguable that the Tribunal have so misdirected themselves.
41. Likewise, in Notice of Appeal ground 6 (vii.ii), it is contended that the Tribunal in dealing with the Khan case purported to introduce a general exception to protection against victimisation which did not exist or was of no relevance to the instant case. That is said to be capable of being derived from passages at the end of paragraph 14 of the Tribunal's Extended Reasons.
42. Again, we have carefully considered the Khan case, the direction given in paragraph 14 and the way in which (in the remainder of the Extended Reasons) the Tribunal dealt themselves with the victimisation question. We do not take the view that it is arguable that the Tribunal misdirected themselves in this respect.
43. However, we would add that we find compelling the rejoinder given by the Respondents in their written response to this appeal (at paragraph 10). In that written response they refer to various passages of the Extended Reasons of the Tribunal which demonstrate that, in relation to the victimisation question, the reason for the Tribunal's rejection of the Appellant's complaints was because they were not satisfied that there was any less favourable treatment.
44. In those circumstances, it is said that the alleged earlier error of law could not affect the result even if the Tribunal had misapplied the directions of law that Mr Davies draws attention as to deriving from the Khan case. Very fairly the Respondents indicate that that "answer" to the Appellant's contention may not apply appositely to head (4) of the 21 heads of complaint. Nevertheless they have reminded us that at the relevant part of the Extended Reasons dealing with head (4) the Tribunal have found that there was not the slightest evidence from which to infer that, even were there to have been less favourable treatment, that was by reason of any protected act.
45. In those circumstances, and for those reasons, we take the view that the last of the grounds of appeal is likewise not a ground which contains any prospect of success.
46. Accordingly, we will strike out from the Notice of Appeal those grounds 6 (iv) to 6 (vii) inclusive, reserving 6 (i) to 6 (iii) for consideration in our reserved judgment in the other appeal with which we have to deal.
47. We do not wish to leave this appeal, however, without paying tribute to the quality and calibre of the Extended Reasons given by the Tribunal chaired by Mr Haynes. These Extended Reasons are, in our view (subject to the matter we have reserved to ourselves which is a pure matter of law) a model example of a clear, detailed and comprehensive determination of a complex discrimination case.
48. Faced with Extended Reasons of this calibre it was always going to be difficult for the Appellant, even with the assistance of Mr Davies QC, to convince us that there was an arguable error of law in the respects urged and we have unhesitatingly formed the view that there is no such arguable error of law.
49. The only arguable point is the substantive point on which we have reserved our consideration in the linked appeal.
50. The normal order which would emanate from this Tribunal would stipulate that, in relation to this judgment and the order we make striking out various grounds of the Notice of Appeal, the period for any appeal to the Court of Appeal would run from the date of our sealed order.
51. It seems to us that we should hear submissions from Counsel as to whether that is the appropriate course to take, given that we have reserved our judgment in relation to three of the paragraphs of the grounds of appeal.