United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SHAHID AZIZ (Representative)
For the Respondent	MR SIMON DEVONSHIRE (of Counsel) Instructed by: Messrs Field Fisher Waterhouse Solicitors 35 Vine Street London EC3N 2AA

SUMMARY

Practice and Procedure

Sex discrimination. Perversity. Bias at hearing. Problems with interpreter. Application for fresh evidence and/or Chairman's notes.


 


HIS HONOUR JUDGE ANSELL

1. This is an appeal against a Decision of a tribunal hearing, heard at Reading, who, after a hearing that lasted four days at the beginning of February this year, rejected the Appellant's claims of race discrimination. She appeals today against that finding. Although represented below, she has today had the benefit and skill of her husband, Mr Aziz, representing her, and, both in documents and before us today, there really is nothing more that could be said; he has done an extremely careful and thorough task and we praise him for that task.
2. Within today's hearing, there are also applications for leave to call fresh evidence and also to seek a complete set of Chairman's notes. The Respondents are a company based near the airport, and provide in-flight catering services for a number of the leading world airlines, with a total 1,150 staff. The Appellant is Assistant Manager in the equipment department and wash-up facility.
3. Although she gave, and the Tribunal considered, a vast amount of background evidence, said to confirm her complaints of an atmosphere of victimization, bullying and harassment from a number of the managers and senior staff in the respondent factory, the substantive complaints on which the Tribunal were asked to adjudicate were in fact only two.
4. The first one was that on 10 January, she had been asked to attend a disciplinary meeting into an allegation that she had released staff early the previous Christmas day. She had released them, it said, around two hours early, earlier than their shift finished, but still clocked them out at their normal time, with the result that they were paid for those two extra hours that they had not actually worked. It was said that this was in breach of the company's disciplinary procedures within the company policy which is set out in paragraph 37 of the Decision.
5. Mrs Aziz's complaint was that this was discriminatory, because the managers calling her to this meeting well knew that there was practice which had gone on previously involving other managers, that, particularly at holiday time around Christmas, staff would be let off early and presumably, it was suggested by her, would be allowed to claim the extra time that they were in fact not working.
6. The Tribunal rejected that suggestion, and found, particularly in paragraphs 37 to 40 onwards, that when she was called to the meeting certainly, Mr Cooper, who was a senior manager, was not aware of the practice and indeed further investigations carried out around that time, following Mrs Aziz's complaint that it was common practice, did not reveal that situation to be the case.
7. The second substantive complaint of discrimination was that on 28 March 2002, Mr Cooper, the General Manager, called her a "black bitch". That allegation was analyzed in paragraph 41 of the Decision, in detail, with the various witnesses who were called in support and against the suggestion, and again the suggestion was firmly dismissed by the Tribunal.
8. This appeal was listed today, following a sift in chambers carried out by Judge Birtles. The Grounds of Appeal identified really fall into two main categories, although Mr Aziz has suggested they are four. They are perversity and errors of fact, but really perversity, and an allegation of bias and unfairness in the way in which the Chairman in particular, and also lay members, conducted themselves at the hearing.
9. In connection with that latter suggestion, there are affidavits from Mr and Mrs Aziz, and also responses from the Chairman and the two lay members, and we shall refer to them below.
10. The perversity appeal has been set out in a very lengthy document, which we have read carefully, running to 15 or 16 pages, and has been backed up today by helpful submissions from Mr Aziz. He complains about the Tribunal's factual conclusions, their evaluation of the evidence, and points, he says, to examples of clear mistakes made by the Tribunal in their analysis, and suggests that , overall, they have completely ignored a vast bulk of evidence that was presented to them by Mr Aziz. That is why he suggests that we need to see the Chairman's notes of evidence, so that we can actually compare what was said at the hearing with what was in the Decision.
11. As far as the decision itself is concerned, it dealt with a number of the background allegations, it was said, of a discriminatory atmosphere at work, discrimination shown against her by a number of managers, Mr Dhillon, Mr Andrews and Mr Cox in particular. The Tribunal approached the matter on the basis of the decision in Qureshi v Victoria University of Manchester [2001] ICR 863, which suggests that rather than resolving every individual background fact, to look at the bigger picture, the totality of the primary facts, in considering whether or not to draw any inferences from those primary facts that discrimination was identified on the grounds of race.
12. The Tribunal wholly rejected any suggestion of discriminatory behaviour, particularly of harassment from the managers; that particularly was set out in paragraph 12 of the decision.
13. They point out a number of factors that enabled them to come to this conclusion. There was a very clear finding that documentary evidence such as diary entries, had been fabricated by Mrs Aziz, in an attempt to support her case. They also, on occasions, made clear findings taking an adverse view of her credibility, particularly in relation to the fact that she had introduced into her Witness Statement further serious allegations of racial comments, that had not been set out in her IT1. Also the Tribunal went through each witness, making a careful analysis of their evidence, and generally coming to a conclusion favouring the Respondent's witness on the disputed questions.
14. Mr Aziz has very skilfully attempted to dress up his submissions, as it were, with the cloak of perversity. Perversity is, of course, a very high hurdle to overcome, and can only succeed where it can be shown that the Tribunal's decision is irrational, or offends reasons, or makes absolutely no sense, or flies in the face of properly informed logic. Those are the sorts of phrases that have emerged from a number of recent decisions, culminating in the decision of Yeboah v Crofton [2002] IRLR 634. Although he has given us example of where he says the Tribunal went wrong, the fact remains that we are left with the overwhelming impression, on his perversity case, that effectively he is seeking a rehearing on the facts of the Decision, without being able to substantiate the Tribunal's Decision has fallen so deeply into error that is can be regarded as a perverse decision.
15. For example, he commented about a finding in paragraph 11 in relation to whether or not Mrs Aziz was complaining that she had not been given a weekend off in a whole year, and relating that to the other acts of discrimination. The Tribunal, however, made clear findings that it was her choice to work those arrangements. Mr Aziz says there is an inconsistency on the face of, in that one person would not complain if she was willingly doing the work. But the Tribunal went into these matters and formed the conclusion that she had voluntarily taken up that particular work pattern.
16. He complains about inconsistencies concerning Mr Blake's evidence, in relation to the investigations immediately after she was called to the disciplinary meeting, as to whether or not the practice of letting people off early around Christmas was common practice with the managers. The complaint is made first of all in paragraph 24 of the Notice of Appeal, where it is suggested that there is contradiction in Mr Blake's evidence in him suggesting to Mrs Aziz on 30 January that he was not previously aware of the practice being alleged, when he had already on 21 January had a meeting with Mr Kumar and Mr Devaney, managers, about that various allegation. But the answer, in fact, is contained in the Respondent's Notice, where they refer to the evidence that what Mr Blake was in fact referring to was that, prior to in fact being informed by letter by Mrs Aziz, he was not aware that it was being suggested that this was the practice.
17. Another complaint made by Mr Aziz is in relation to 25 staff witness statements, which he says again pointed firmly to there being the practice concerning letting staff off early, but again those issues are dealt with by Mr Blake and in the findings, in particular there was a finding that Mr Blake had in fact checked whether there was evidence that previously staff had received overtime payments for hours they had not worked, and he found no such evidence.
18. So these are simply examples of showing how one side can present one version of the facts, and one another, and it is for the Tribunal to make conclusions as they did. Our firm and overall impression is that this Tribunal went through their tasks, both of investigating the background events and investigating the two main events, and came to permissible conclusions on the facts that were presented to them.
19. As such, therefore, we would not propose to allow any application for Chairman's notes, or indeed for further evidence. We would only comment that Mrs Aziz was represented by Counsel and solicitors at the hearing, and no doubt if the documents, which are set out in the two notices seeking additional evidence, were relevant, they could have been sought during the preparatory stages of the tribunal hearing.
20. As far as the bias is concerned, Mrs Aziz, in her shorter affidavit, sworn on 1 June 2004, suggested "The tribunal seemed to have made up their mind before the hearing started"; she complained that one tribunal was late: "He rushed in and was given two hours to read the material. He did not ask any questions during the hearing, which makes it doubtful if he had read the papers...". She continues "The Chairman of the tribunal appeared hostile to me and did not take into account the fact that I was under psychiatric care…". Just interposing there, it is unfortunate to note that Mrs Aziz has indeed suffered from psychiatric problems over the last couple of years. That was documented, and indeed that was in front of the Tribunal.
21. There were significant problems, she alleges, indeed this is common ground, with the first interpreter which had been brought in to interpret the evidence of Mrs Akhtar, who, it was said, was the one witness who had been a witness to the verbal abuse that this lady had suffered. That interpreter was in fact replaced by a second interpreter, and there were allegations within the affidavit of the Chairman shouting, at some stage, at Mr Aziz, telling him to stop shaking his head or he would be removed from the proceedings.
22. There is a confirmatory affidavit from Mr Aziz, particularly dealing with the problems concerning the interpreter, the Chairman's behaviour generally, and also the problems concerning his wife's psychiatric background.
23. The Chairman dealt with these issues in an affidavit sworn on 13 July. He explained that there was a problem in Mr Welsh, a Lay Member, in attending, not through Mr Welsh's fault, but a problem over his notification to him that he was required. However, when he arrived he was given time to read the papers, and the Chairman notes that he is an experienced Lay Member, and indeed the hearing did not start until Mr Welsh was ready. The Chairman also records that Mr Welsh did in fact ask questions of a number of the witnesses, but no note was made of any questions he may have asked Mrs Aziz, and Mr Welsh, in a letter which he has written, says that he would have asked any questions necessary to clarify points. He deals with Mrs Aziz's depressive disorder, denies that he was hostile to her, (he had knowledge of that from medical reports that were presented), and makes the point that at no stage was criticism raised about his behaviour by the Applicant's Counsel. That lack of hostility is confirmed both by Mr Welsh and also by the other Lay Member, Mr Collier
24. The problems with the first interpreter were set out, although we do not propose to go to them in detail. Clearly the first interpreter was not satisfactory and indeed had to be replaced, and the Tribunal, in their Decision, specifically record that they ignored the portion of the evidence that Mrs Akhtar had given through the first interpreter, only concentrating on the evidence she gave when there was a fresh interpreter.
25. The Chairman does record that he had to reprimand Mr Aziz for his behaviour on a number of occasions in the hearing. It is right to say that the first stage of that was indicating his unhappiness with the first interpreter, and that was dealt with in due course by the Chairman. The Lay Member, Mr Welsh, records that the Applicant's husband was agitated several times during the hearing, and he says it is not surprising that the Chairman had to remonstrate with Mr Aziz on a number of occasions, as he was disturbing the conduct of the Tribunal. During one session he approached the Tribunal at the end of the session and apologized for his behaviour.
26. We always take carefully and seriously any allegations of bias and unfairness, and that is why we have spent some time reviewing the evidence from the documents presented to us. But again we are not satisfied that there was any suggestion of bias on the part of this Tribunal. The test is that of whether a fair-minded observer, looking at what happened, would draw a conclusion at the end of the day that there was unfairness or bias as far as Mrs Aziz was concerned. That is a test which is set down in a number of authorities; Porter v Magill [2002] 2 AC 357; Lawal v Northern Spirit Ltd [2003] IRLR 538.
27. Tribunals are masters of their own procedure, and best placed to make case managements decisions, provided it is done in a fair manner. Equally, tribunal chairmen have to make sure that if there are interruptions from the floor of the Tribunal they are dealt with quickly and firmly. At the end of the day there is no record of this Appellant's Counsel, at any stage during the hearing, making any representations about the unfairness of the proceedings, the bias of the proceedings, and it seems to us that that, whilst not conclusive, is a telling point that supports the Respondent's arguments, that this allegation of bias and/or unfairness is simply not made out.
28. Accordingly, for the reasons that we have indicated, we would dismiss this appeal.

[DISCUSSION]

29. We are not minded to order costs in this case. One, but not the determinate, factor is that in fact leave was given for this hearing for it to proceed to a full hearing by a judge of this court, and we are mindful of that. Although that is not a conclusive factor, there are authorities that suggest even if leave is given unsuccessful parties are at risk as to costs, but our overall conclusion is that this is not an appropriate case for costs. There will be no order as to costs.