United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SANDERSON (the Appellant in Person)


 


HIS HONOUR JUDGE J McMULLEN QC

1. This is an appeal from a decision of an Employment Tribunal sitting at Southampton, Chairman Mr M P Kolanko, over seven days in 2002, promulgated as a Reserved Decision with Extended Reasons on 7 August 2002. The Applicant represented himself, the Respondent was represented by Counsel. We will continue to refer to the parties as Applicant and Respondent.

The proceedings

2. The Tribunal had before it two Originating Applications claiming race discrimination. In the first the Applicant complained of degrading verbal treatment, marginalisation, continued minimum pay awards, loss of promotion and loss of reputation. The basis of that was that is said to be that he is of foreign national origin and features. In his second Originating Application he complained that the race discrimination endured during the period of his career with the Respondent. The Tribunal at his request heard both applications.
3. It dismissed the complaints which it had refined as unlawful discrimination and victimisation, contrary to the provisions of the Race Relations Act 1976. Against that decision the Applicant appeals.
4. He contends in extraordinarily comprehensive grounds, attached to an affidavit, that the Tribunal erred in law in the decision that it made; put shortly, that it made a perverse decision. He also complains that the Tribunal conducted the proceedings in a way which showed either bias or apparent bias, although the claim is made on the basis of actual bias.
5. Pursuant to Directions the Applicant was required to place his grounds for the latter allegation in a sworn document and thus on 28 October 2002 grounds in an affidavit were put forward. The Chairman was invited to give his comments on the relevant parts of those grounds, which he did on 6 December 2002 and one member of the Tribunal, Ms Hackforth did so shortly thereafter. We will deal with the grounds of substance and then with the grounds of bias.
6. The Applicant described himself as a white British National who was born in London and whose mother is Spanish and father French. He believes himself to be of Spanish origin and makes his complaint against the Respondent on the basis that it discriminated against him because of his Spanish origin.

Facts

7. The Respondent is a scientific research and development agency undertaking work for government agencies and international contracts. The Applicant was employed on 1 October 1990 as a Scientific Officer. In the early days of his employment the Respondent was run on Civil Service lines with annual incremental pay increases. It is now privatised.
8. From 1990-1996 the Applicant received complimentary reports in appraisals, was promoted in 1993 and one of his managers, Mr Kiddle, whom the Applicant respects, put him forward for promotion again in 1995. The Applicant had a good relationship with his managers and customers up to 1996. In addition to Mr Kiddle, Professor Dyer, the Chief Scientist, and Dr Truscott (an officer for whom the Applicant undertook projects) all had good opinions of him; but more importantly for the purposes of the case, the Tribunal had confidence in them and in their judgment having heard their evidence.
9. As is common, appraisals were made of the Applicant over time and the Tribunal noted that the reports given by Mr Kiddle, for example, drew upon reports of others and included both complimentary and not so complimentary aspects of the Applicant's work.
10. By 1999 Dr Truscott wrote that the Applicant "must remember that he should periodically stand back from the problem so that he can identify the priorities, rather than be overwhelmed by the detail." Another manager said that he "gets bogged down in the detail, needs to stand back and see the larger picture." Mr Kiddle reported as much in 1996. In cross-examination the Applicant agreed that a fair summary of reports of Messrs Kiddle, Dyer and Truscott had been given by them before the Tribunal. The Applicant had strengths and weaknesses, therefore.
11. The Applicant made a number of complaints which can be summarised as follows:

(a) Unsatisfactory remarks were made in reports about him.

(b) His grievance was not handled promptly.

(c) He was victimised by reason of his application to the Employment Tribunal.

(d) His pay did not go up in line with his expectations, nor was he promoted appropriately.

All of those matters were grounded upon the Applicant's racial group, save of course for the victimisation, which would be attached to a complaint, in this case, a grievance.

12. The Respondent had moved from a Civil Service to a privatised approach to pay and, although the Applicant received below average pay rises for the years 1998 and 1999, the system of calculation is, as it put it "capable of producing obvious anomalies which have the characteristics more of a lottery than any formal assessment."
13. The Respondent has a detailed grievance procedure, enabling appeals to be made to the Chief Executive. The Applicant lodged a grievance on 30 November 1999, having had sight of his personnel file in which were contained what he believed to be derogatory comments.
14. Suggestions for a resolution of this grievance were put to him. The grievance procedure took some time to work through. A report was produced by a person who the Respondent regarded as independent, Mr Wilkins, into aspects of the Applicant's grievance. Mr Wilkins made concluded that the Respondent had followed correct procedures, that opinions made by managers had been honestly expressed and that there was no evidence to support the allegations made in the Applicant's grievance.
15. The Applicant had been promoted, for on 2 May 2002 he advanced to career level 5 which was equivalent to the previous senior scientific officer grade, which Professor Dyer had earlier assessed to be the Applicant's potential.
16. The Respondent had recruited workers of non-British origin; for example Mr Mandorolo (Italian origin) progressed to Team Leader before he left and Mr Harjinda Sing Jolly (Asian) progressed to Electronics Team Leader.
17. Earlier this week another employee of this organisation, Mr Zaman, complained in an appeal to the Employment Appeal Tribunal of race discrimination by this organisation. It is sufficient to note the Tribunal indicated that other non-white, non-British nationals have advanced within the organisation. Mr Zaman's appeal was dismissed.

The Employment Tribunal's conclusions

18. The Tribunal recorded the submissions made by the Applicant and by the Respondent. The Applicant contended that the criticisms made of him were groundless and that these did not form the basis for justifying low pay rises and promotion, that the Tribunal should regard the unfavourable treatment he had received, in respect of unfavourable reports, poor pay rises, lack of promotion and delay, in processing his grievance, as based upon race.
19. The Tribunal directed itself, in terms, to sections 1, 2 and 4 of the Race Relations Act 1976, dealing with discrimination and victimisation. The conclusion of the Tribunal was this:

12 "The Applicant had sought to adduce detailed and lengthy evidence often of a highly-technical nature in support of his case. He at times appeared to have difficulty in identifying the relevant facts in support of his case. The Tribunal was mindful of the difficulties encountered by a litigant in person who had no supporting witnesses who is addressing the complicated field of discrimination, and extended as a consequence the initial hearing estimate of three days to six days, to ensure the Applicant was afforded every opportunity to explain his case."

20. The Tribunal then went on to make findings on the substantive issues. First, as to the derogatory and unfavourable remarks, it decided that the remarks made by those managers who had the Applicant's confidence contained also remarks that were favourable, as the Tribunal put it "areas of weakness or areas where improvement could be made." Similar comments were made by those in whom the Applicant did not have confidence. The Tribunal noted "I can accept it from people I trust."
21. The Tribunal found nothing in the reporting by these managers which could in any way be said to be an unfair reflection of the Applicant's abilities. The Tribunal also agreed with the independent investigation of Mr Wilkins, who concluded that the reports were honest. Thus the Tribunal was unable to conclude that any of the reports made about the Applicant could be said to be derogatory or unfounded. It said that any employee in a similar position to the Applicant would have received similar comments.
22. As to the grievance, the Tribunal found that the delay of which the Applicant complained was occasioned solely by reason of the Applicant's failure to progress the procedure, despite repeated requests. It held that there was nothing in the progress of this grievance that could be the basis of any legitimate complaint and dismissed the Applicant's complaint upon it.
23. As to his complaint of victimisation, under section 2 of the Act, the Tribunal was invited to consider the treatment the Applicant had experienced by Mr Jolly. The Applicant's attack was focused upon Mr Jolly but the Tribunal noted that in cross-examination the Applicant accepted that he sensed a change on the part of Mr Jolly four months prior to any application to the Tribunal.
24. In those circumstances the Tribunal found that the explanation Mr Jolly gave, as to the reason he failed to give further work to the Applicant, was solely as a result of the Applicant's failure to provide the necessary information by way of various technical reports. It therefore dismissed the claim of victimisation.
25. It then turned to the two substantive issues of pay and promotion. It noted that the Applicant complained that for three consecutive years his pay rises were below the average, but adjudged this to be due to the "dramatic change", as it put it, "from regular annual increments to an assessment based upon individual achievement and worth to the Respondent's organisation."
26. The Tribunal noted its earlier comments, which we have recorded, about the rather unsystematic way in which this was done, but said this:

16 "We are satisfied having heard the evidence in this matter that the process was applied equally to all employees in the division."

27. As to the complaint that he was held back from promotion, the Tribunal decided that the Applicant had not produced evidence to support the contention. It accepted Counsel's submissions that the only occasion when the Applicant challenged his status resulted in a promotion.
28. The Tribunal then stood back from those individual findings to consider, as a whole, whether the Applicant's treatment was less favourable than was or would have been offered to persons of a different racial group. It decided it was not and said this:

19 "In the numerous letters and reports and correspondence that the Applicant initiated he did not raised that his perceived grievances were based upon his racial background. We agree with the independent investigator…where he states "It is not good enough to say "there is no other reason, therefore it must be racial". The Applicant in his evidence before us has based his case upon the belief that he does not have any serious failings, and as a consequence, has seen set backs as unjustified, and by reason of them being unjustified, concludes that it must have been on racial grounds. We reject this quite firmly. We are satisfied that the matters complained of by the Applicant in its various forms have no foundation. There was no unfavourable treatment suffered by the Applicant as compared with treatment meted out to other employees and no basis for the Applicant to contend that he was unlawfully discriminated against."

Having accepted Mr Jolly's explanation, the additional claim of victimisation was dismissed.

The appeal

29. Against those findings the Applicant, in grounds of appeal extending for 13 pages, raised a number of complaints. We hope that we do the Applicant no disservice when we say on the one hand that these grounds are fully comprehensive. Having read them in advance and explained our procedure to the Applicant, he received advice from ELAAS representative, he indicated that he did not wish to add anything further to them. But much of the contents of the complaints, as he puts them in the grounds, are attempts to reargue the issues of fact before the Employment Tribunal.
30. We have no doubt that the Applicant could point to one or two areas where the Tribunal has not made a particular finding. But it is not the function of a Tribunal to make a finding on every single matter put before it, for, as was held in English v Emery Reimbold & Strick Ltd [2002] EWCA CIV 605 [2002] 3 All ER 385, the court is required to make findings on matters which are vital and critical to the decision and it is for the court at first instance to decide which those issues are: see paragraphs 17 and 19 in the judgment of Lord Phillips of Worth Matrvers MR, giving the judgment of the court.
31. Thus we reject the appeal based on perversity. We do so because the Tribunal, in its very careful approach to the detailed facts of this case, has made a decision which was open to it. It cannot be said that no reasonable Tribunal could have come to the conclusions which it did, based upon the evidence which it heard and recorded; indeed, we would say that the reasons which it gave followed clearly from its description of the factual background and its decision is cogent.

Bias

32. We turn then to the allegation of bias. It is always difficult for us to consider such an allegation based solely upon the Applicant's contentions. For that reason we invite the comments of the judicial officers involved. For the most part the Chairman of the Tribunal does not disagree with the factual issues raised by the Applicant. That Chairman was able to refer to his detailed notes.
33. It seems to us that the Applicant is dissatisfied with the result of the decision and of certain case management decisions and directions given by the Chairman on behalf of the Tribunal. We emphasise those last five words because of course an attack of this nature is made upon the Tribunal as a whole - the lay members obviously leaving control of the proceedings to the Chairman, but nevertheless being independent judicial officers required to exercise their own judgment and to discharge the duties for which they were appointed.
34. As it happens in this case the comments made by the Chairman are fully supported by one of the lay members, who saw fit to give a response. She said the Chairman bent over backwards to help the Applicant in clarifying procedures and points. The Applicant's questioning tended to be laboured, over-detailed and repetitive; much in the style portrayed in the affidavit.
35. We therefore regard the comments made by the Applicant as being criticisms of the handling by the Chairman, on behalf of the Tribunal, of the way in which the case would run. It says much for the Tribunal, in our judgment, that it extended by 100% the time taken for this case and we note from the Applicant's chronology that he gave evidence, pursuant to his statement, and was cross-examined over the course of the first two and a half days.
36. We fully understand, from the Chairman's comments and from his reference to notes, what he was doing in order to keep the case on track and he has carefully noted so we can see, precisely, the nature of those interventions. We see nothing wrong with a Chairman, conducting his functions properly, giving the kind of directions which he gave in this case and we reject the complaint made by the Applicant that he had no fair hearing because he did not have an unbiased Tribunal.
37. The appeal is dismissed.