United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MR S CHOONGHH (of Counsel) Instructed by: J Polychronakis LLB Director of Law and Property Dudley MBC

SUMMARY Practice and Procedure

In this case the Appellant obtained an Order at a preliminary hearing allowing him to proceed on the basis of a substituted Notice of Appeal only in the broadest general terms: "failure to make proper findings" etc. He pursued the appeal to the full hearing without ever defining more specifically identifiable points of law, despite the Respondent pointing out it had little idea what case it had to meet. His argument at the full hearing consisted of a series of detailed points on the facts where he disagreed with the Tribunal's findings. We rejected the appeal and upheld the Tribunal's award of £9000 costs for unreasonable conduct of the proceedings below. We made our own award of a further £1000 towards the costs of the appeal, on the ground that it too had been reasonably pursued, in never identifying any specific error of law under any of the general heads the preliminary hearing Order had allowed him to pursue: paragraphs 15 - 17 Iron and Steel Trades Confederation v ASW Ltd (In Liquidation) cited.


 


MR COMMISSIONER HOWELL QC

1. This appeal has been brought by Mr Ranjit Sahota who seeks to have set aside as erroneous in law the two decisions of the Birmingham Employment Tribunal set out in Extended Reasons issued respectively on 4 August and 18 September 2003, both decisions being unanimous. By the first the Tribunal dismissed, in their entirety, his claims of race and disability discrimination against the Respondent Council in not selecting or shortlisting him for two posts of Audit Manager and Housing "ICT" (Information and Communications Technology) Manager for which he applied in mid-2002. By the second he was ordered to pay an assessed sum of £9000 towards the Council's costs of defending the claims, which the Tribunal found to have been misconceived and unreasonably pursued. Mr Sahota disputes both decisions, on the merits and the costs.
2. In dealing with this case at the full hearing both we and the parties have been without the assistance of any judgment or any indication in the order made at the preliminary hearing on 1 April 2004, presided over by Mr Justice Silber, of what specific errors in the Tribunal's decision were considered at that stage to be arguable and to warrant the appeal proceeding to full inter-partes hearing. The grounds of appeal substituted by the EAT order of that date (the original grounds of appeal and allegations of "bias" on the part of the Tribunal being quite rightly abandoned at the preliminary hearing) are in extremely general terms, consisting merely of the unspecified assertions that the Tribunal erred in law in failing to make proper findings of fact, in failing to consider properly whether any or what adverse inferences should be drawn from the relevant primary facts, and in awarding costs against the appellant. It may we suspect have been envisaged at that stage that these generalised assertions were going to be supplemented with the assistance of the representative then assisting Mr Sahota under the ELAAS scheme, so as to indicate in what respects the Tribunal's decision was argued to have fallen into error of law under one or more of these heads; but for whatever reason that never happened. In the event, the appeal was pursued by Mr Sahota acting in person without ever having identified and defined in a clear way any specific error or errors of law alleged to be contained in either of the Tribunal's decisions: as regards their treatment of the facts and inferences, or the decision to award costs. We were told by Mr Choongh who appeared for the Respondent Council that this had been despite an express request to Mr Sahota to give some particulars of the case relied on under the amended notice of appeal so that the Council could know what it had to meet at the full hearing: a request to which there was no response.
3. In its formal answer to the appeal the respondent was thus necessarily limited to dealing with the assertions in the amended grounds in general terms. It pointed out, justifiably, that no matter had been identified on which a finding of fact was necessary but the Tribunal had wrongly omitted to make one, or on which the Tribunal had made a finding that could be impugned as perverse or otherwise wrong in law; and that contrary to what was asserted in the second ground, the Tribunal's Extended Reasons for its decision on the merits of the case showed careful consideration had been given to whether adverse inferences should be drawn against the Respondent on the relevant discrimination issues. Further, no error of law in the decision on costs had been identified at all. The Tribunal's Extended Reasons on that part of the case showed they had applied the correct legal tests and the award was within their powers to make as they found the Appellant's claims misconceived, and his conduct in pursuing them so unreasonable as to cast doubt on whether they were brought in good faith.
4. At the full appeal hearing Mr Sahota addressed us in person, with the aid of a written statement extending to some 46 pages setting out numerous detailed contentions on factual aspects of the case and inferences he said should have been drawn in his favour, referring also to various general requirements of the codes of practice on race and disability discrimination which he contended must have been ignored by the Council in handling his job applications, or by the Tribunal in rejecting his complaints. In the two hours for which he addressed us Mr Sahota demonstrated himself to be an intelligent and articulate person who conducted his case with courtesy. He had no difficulty in understanding the difference, when put to him, between a factual finding with which he personally disagreed, and the stricter test of one totally unsupported by evidence or so irrational that no reasonable tribunal could make it, so as to give rise to an error of law: though we found him less willing to concede that any particular point he made could fall on the wrong side of this distinction.
5. As he told us himself, he is experienced in bringing discrimination claims before Tribunals against bodies such as the Respondent Council whose equal opportunities policy and practices he considers could be improved, having already been involved in some ten or a dozen sets of proceedings of this kind, albeit mostly unsuccessful. The Tribunal recorded that he "regularly applies to Employment Tribunals". Previous claims by him against the current Respondent alleging disability and race discrimination in relation to another job application had been dismissed or withdrawn, but amounted to "protected acts" for the purposes of the claims made in the present proceedings.
6. Those claims were that he had been victimised and the object of both race and disability discrimination (he is of Indian ethnic origin, and has a corneal condition which affects the quality of his eyesight) in not being selected or shortlisted for either of the posts for which he applied in 2002. The Respondents relied on the facts that the Audit Manager's post required accountancy qualifications he did not have, and he had failed to meet the required objective score criteria for short-listing when his application for the housing ICT manager's post was evaluated along with the others.
7. The Tribunal's statement of reasons on the merits of his various complaints is carefully set out and analysed, and records the Tribunal's clear findings that Mr Sahota had not in fact been adversely treated in the way his applications had been handled. The reason he had not been short-listed was purely and simply because he did not have the necessary professional qualifications, and did not meet the short-listing criteria, which the Tribunal found to have been reasonably required and applied. The Tribunal further considered whether there were any grounds for inferring that the way his applications had been dealt with had been discriminatory by reference either to race or disability and expressly found there were not. They found moreover that the evidence given to them by Mr Sahota on points of fact was "not always credible and honest" and on points of direct conflict they preferred the evidence of the Respondent's witnesses. They unanimously found that he had not established the factual basis for any of his claims, which were therefore all dismissed.
8. Mr Sahota's argument on the appeal consisted of a series of contentions that the Tribunal's treatment of the factual issues or its failure to draw inferences of discrimination in his favour was flawed, and that alternative conclusions could and should have been reached. Some of what he said to us was obviously incorrect factually: for example that there was no evidence to support the Tribunal's finding that the persons shortlisted for the Audit post had the required professional qualification which he and the only other non-shortlisted candidate lacked. When it was pointed out to him that this evidence was in fact in the application documents that happened to be in the appeal bundle, Mr Sahota agreed that this was indeed so but then said the Tribunal should not have accepted it. We do not however find it necessary to deal individually with each of the points on the facts or detailed evidence in the case where Mr Sahota took issue with the Tribunal's findings, or said that inferences leading to a conclusion of discrimination ought to have been drawn in his favour and against the Respondents: there were upwards of twenty such points touched on in his written submissions as supplemented by the further contentions he made in oral argument before us. To each of them the answer has to be the same: that they amount not to points of law, but attempts to re-open and re-argue individual points on the facts of the case that have already been properly considered and determined so far as relevant by the Employment Tribunal which saw and heard the evidence.
9. As has been said many times, it is not the function of this Appeal Tribunal to re-open or interfere with the considered judgment of the Employment Tribunal on factual issues; and despite everything Mr Sahota put before us (and the encouragement we sought to give in the course of the hearing to focus his submissions into identifiable contentions of law) we were left totally unpersuaded that, in any of the respects he contended, he had pointed to even an arguable error of law in terms of either of the assertions made in the first two paragraphs of the amended Notice of Appeal. There was in our judgment no failure to make some necessary finding, no finding that was unjustified on the evidence, and no failure to address some relevant issue of whether an inference of discrimination should be drawn.
10. The Tribunal's award of costs was the only head of the appeal on which we found it necessary to call on Mr Choongh for the Respondents, which we did in view of the size of the award even though neither the amended Notice of Appeal nor Mr Sahota's 46-page written submissions identified any error of law at all. Mr Sahota's oral argument was confined to the points that no order ought to have been made in favour of the Council as they had deferred answering an informal questionnaire he had sent them before the proceedings, and that the order made against him had been punitive rather than compensatory.
11. For reasons they fully explained in their second statement of Extended Reasons sent to the parties on 18 September 2003, the Tribunal found Mr Sahota's complaints in respect of each of the posts for which he applied to have been misconceived from the outset, and without any reasonable prospect of success. They further recorded that:

"7. The applicant, we unanimously find, did behave at least unreasonably (which is the threshold test in this part of the costs proceedings) in his conduct of the case. We reminded ourselves that we had found previously that he had lied to us in his evidence. We also previously noted how he introduced new matters at a whim during the course of the proceedings. He did not observe the directions of the tribunal. He kept his case as general and as vague as possible. He changed his comparator during the course of the hearing when he considered it suited himself. ... The applicant, we find, was never going to be deflected in the course of these proceedings. Had the respondent answered the applicant's questionnaire sooner, it would have made no difference. The applicant, during the course of the hearing itself, when faced with a cause or a point which was lost, would not concede it. This meant that the length of the hearing was prolonged unnecessarily. The applicant was so fixed in his approach to the case and his attitude was so inflexible that when we consider our findings and conclusions as a whole we doubt that the proceedings were brought in good faith. That finding contributes to our conclusion that the applicant behaved at least unreasonably…Thus, the tribunal awards costs to the respondent payable by the applicant because the case was misconceived and the applicant behaved unreasonably in the conduct of it."

12. The Tribunal then considered a schedule produced by the Respondent of the total of their costs and disbursements which came to something over £11,500 without VAT; the Respondents through their counsel limited their application to £10,000 being the maximum the tribunal could assess. Having given Mr Sahota additional time to consider the matter, and taken account of his further arguments, the Tribunal recorded that

"11. ... We found and concluded that the sum of £9,000 would compensate the respondent for the costs attributable to the unreasonable conduct of the applicant and taking into account that the claims were misconceived".

They added that they had had regard to the overriding objective of the proceedings in that they had to deal with the case justly. They had also had regard to proportionality. The sum awarded did not appear to them disproportionate and such costs had been reasonably incurred by the respondent.

13. In our judgment, the submissions made by Mr Choongh for the Respondents are correct and there is no ground in law on which we as the Appeal Tribunal can properly interfere with that exercise of discretionary judgment by the Employment Tribunal. There can in our judgment be no doubt that they were justified in their conclusion that the threshold conditions for an exercise of their power to award costs were met, in their express findings that Mr Sahota's complaints to them had been launched and pursued without any reasonable prospect of success and in an unreasonable manner. Those findings were properly made in the circumstances and it is not open to us to disturb them. The passages we have already quoted demonstrate that the Tribunal correctly directed themselves to the relevant principles for an exercise of their discretion, took account of Mr Sahota's argument about the delayed response to his questionnaire but expressly found as a fact that it made no difference at all, and assessed the sum they awarded merely as a matter of compensation to the Respondent for the costs to which it had been unnecessarily put by the unreasonable and misconceived proceedings pursued against it. It cannot in our judgment be characterised as unreasonable or wrong in principle for a Tribunal in these circumstances to determine that these should be born by the person responsible, rather than the Council's tax payers.
14. For those reasons, we dismiss Mr Sahota's appeal both as regards the Tribunal's decision on the merits of the case and as regards the costs of the Tribunal proceedings.
15. At the conclusion of the hearing Mr Choongh on behalf of the Council made a separate application to us for the Respondent's costs of the appeal, on the ground that it too had been unreasonably pursued. No schedule of the Council's costs and disbursements of the appeal had been prepared but Mr Choongh told us on instructions that these amounted to as much as a further £8,500, contributed to substantially by the failure of the Appellant to identify the nature of the case being relied on and the consequent need to prepare for every eventuality on the Tribunal's entire treatment of the detailed facts and evidence. Mr Sahota maintained that he had not been unreasonable in pursuing this appeal as there had been arguable errors in the decision of the Tribunal and the Appeal Tribunal itself had sanctioned the case going forward in the order made at the preliminary hearing, albeit not on the grounds first put forward by Mr Sahota in his original Notice of Appeal.
16. We would not have entertained this application had the appeal been confined to the costs awarded below: it would have been understandable to have pursued that aspect in view of the relatively substantial amount for a person in Mr Sahota's position even taking into account his history of previous unsuccessful or abandoned discrimination claims. Conversely, the mere fact that an order of the Appeal Tribunal has been obtained at a preliminary ex parte hearing for a case to proceed to full hearing does not of itself determine one way or another whether or how it is reasonable for the appeal to be pursued from then on: cf. Iron and Steel Trades Confederation v ASW Ltd (in liquidation) EAT/0452/04, 20 July 2004. In the present case, the wisdom of that is in our judgment demonstrated by the fact that Mr Sahota, having obtained the sanction of the Appeal Tribunal at the preliminary hearing for his case to proceed on substituted grounds identified only in the broadest possible terms, failed at any point thereafter to identify in any clear way either for the Appeal Tribunal or for the Respondents any specific point or arguable error of law on which he was seeking to rely. Even when it came to the hearing itself he was not able to do so, either in the lengthy written submissions or in the oral argument he presented to us.
17. In those circumstances we are satisfied that the threshold condition for an exercise of our own jurisdiction to make an order for costs against him under Rule 34 of the EAT rules of procedure and paragraph 18(2) of the 2002 Practice Directions is demonstrated by the Respondent, in that the appeal has been unreasonably pursued against it without the Appellant ever having specified identifiable grounds of law to justify it or show the case that had to be met, despite this having been pointed out expressly in the Respondent's formal answer and (we were told) in correspondence. However we think it right in all the circumstances (including the fact that the application was only made orally at the conclusion of the hearing without any schedule or breakdown of the actual costs having been supplied) to make only a limited exercise of our power to order him to pay costs of the appeal, in addition to the £9,000 for which he is already liable for the costs of the proceedings below. We order that he is in addition to pay the Respondent the sum of £1,000 towards its costs of the appeal.