United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A KHAN (the Appellant in person)
For the First Respondent	MR DAVID PRESTON (of Counsel) Instructed by: Messrs Brooke North Solicitors Crown House Great George Street Leeds LS1 3BR


 


THE HONOURABLE MRS JUSTICE COX

1. There are before us three separate appeals by the Appellant, Arfan Khan, from two Decisions of the London South Employment Tribunal and from one Decision of the London Central Employment Tribunal, promulgated in October 2001 and then in March and
   December 2002. The full hearings of these three appeals have been consolidated and the issues raised are large in number and wide ranging. The proceedings have what Buxton LJ accurately described in the Court of Appeal in 2004, as a lengthy and tangled history. Throughout
   Mr Khan, who is obviously an intelligent and able man, has been representing himself; and he appeared in person for the hearing before us, which lasted two days. Whilst his written submissions and the relevant appeal documentation were substantial and we have had to consider them all in some detail, his oral submissions were succinct and well structured, enabling us to complete the appeal hearing within the allotted time. We are grateful both to
   Mr Khan and to Mr Preston, counsel appearing on behalf of the various Respondents, for their assistance in proceedings of considerable complexity.
2. The Background

Before dealing with each appeal it is necessary to set out some of the relevant background to the issues raised. Mr Khan is of Asian ethnic origin and of Pakistani national origin. All the appeals arise from his employment by Trident Safeguards Limited, a company which provides security guards to work for various organisations, including art galleries, banks and universities. Trident employed approximately 1,200 staff at the relevant time, both male and female and of diverse ethnic origins and age. They were deployed at some 70 different sites. Mr Khan commenced his employment with Trident in June 1999. After September 1999 he worked almost exclusively at the premises at 159 Great Dover Street, a students' hall of residence in London.

3. Between February and August 2000, Mr Khan issued a total of six Originating Applications in the Employment Tribunal, complaining of direct race discrimination and victimisation contrary to the Race Relations Act 1976. He named, as Respondents, Trident and four of its senior employees, Messrs. Shaw, King, Wright and Harman. The applications were consolidated and Directions hearings were conducted by the Chairman, Mr Peters, on
   1 June and 15 November 2000. It is clear from the Orders sent to the parties after these hearings that the Chairman helpfully and carefully defined the issues in the case. The claims were subsequently heard by the Tribunal over six days (27 to 30 November 2000, the
   27 to 28 June 2001) with a seventh day (29 June 2001) in chambers. In a unanimous Decision promulgated on 1 October 2001 all Mr Khan's complaints were dismissed.
4. Mr Khan filed a lengthy Notice of Appeal against this Decision, running to some
   38 pages (EAT/1413/01). It included a number of complaints about the conduct of the Tribunal Chairman, Ms Hyde. In accordance with the relevant EAT Rules and Practice Direction, the Chairman and lay members were invited to respond to the complaints and all three of them did so. A preliminary hearing listed before the EAT in June 2002 had to be adjourned and a dispute subsequently arose as to the necessity of the Chairman's notes for the preliminary hearing, which persisted until the matter came before the EAT again on 25 February 2003. On that day it was decided to treat the matter as an inter-parties preliminary hearing and the appeal was dismissed for reasons which will become apparent from the following paragraphs.
5. Meanwhile Mr Khan had issued another Originating Application on 1 March 2001 complaining of direct race discrimination and victimisation. In addition to Trident, three other Respondents were named. These were North British Housing, the Housing Association which operated the premises at 159 Great Dover Street where Mr Khan was employed; and Paul Noke and Juliet Rodgers, who were employees of North British Housing. All three Respondents were alleged to have aided Trident to commit the acts of unlawful discrimination alleged. At an interlocutory hearing before Mr Peters on 11 July 2001, the issues were once again identified. The substantive hearing before the Tribunal, with Mr Peters as Chairman, took place over five days, (6, 7, 8, 12 and 13 February 2002) and the Decision was promulgated on 13 March 2002. All Mr Khan's complaints were dismissed. The Tribunal also ordered Mr Khan to pay costs of £10,000 to Trident and the whole of the costs of the other three Respondents, such costs to be assessed if not agreed. It appears that Mr Khan was not present when the application for costs was made and implementation of the Order was therefore deferred to enable him to make a written application with reasons as to why such awards of costs should not be made. He did not do so.
6. Mr Khan did, however, file a detailed Notice of Appeal against this Decision (EAT/0458/02), which included allegations of bias and misconduct against the Chairman,
   Mr Peters. These allegations were struck out by the EAT after Mr Khan failed to provide an affidavit supporting them, in accordance with EAT procedure. The remaining Grounds of Appeal came before the EAT for a preliminary hearing on 25 September 2002. On that occasion all the Grounds of Appeal save one were dismissed because they were held not to raise any arguable point of law. The one issue on which the EAT discerned an arguable error of law was Mr Khan's proposition that the hearing on 11 July 2001 was not a case management hearing pursuant to Rule 4 of schedule 1 to the Employment Tribunal (Constitution and Procedure) Regulations, but was, rather, a Pre-Hearing Review held pursuant to Rule 7. If that was correct the consequence was that Mr Peters should not have presided over the substantive hearing in February 2002. This ground alone was therefore permitted to proceed to a full hearing and it too came before the EAT on 25 February 2003.
7. By now, Mr Khan's employment had been terminated by Trident on 23 March 2002, on the ground that there had been a complete breakdown in the relationship between Mr Khan and his employers and therefore a breach of the implied term of mutual trust and confidence in the contract of employment. An internal appeal by Mr Khan confirmed the Decision to dismiss him. Mr Khan then issued a further Originating Application on 19 June 2002 complaining of unfair dismissal and unlawful victimisation, contrary to the 1976 Act, and seeking reinstatement or reengagement. This complaint was heard by the Tribunal at London Central, in the absence of Mr Khan, on 9 October 2002 in a constitution chaired by Mrs Prevezer. The Decision was promulgated on 3 December 2002 and Mr Khan's complaint was dismissed. He was also ordered to pay Trident's costs in the sum of £7,800. Once again a lengthy Notice of Appeal was lodged against this Decision by Mr Khan (EAT/0621/04), which came before the EAT on 25 February 2003.
8. Meanwhile, on 12 August 2002 Trident had served a statutory demand on Mr Khan, having obtained a judgment in Lambeth County Court for its costs in the proceedings chaired by Mr Peters. It appears that, as a result of this, Mr Khan himself filed a bankruptcy petition and he was adjudged bankrupt by order of Mr Registrar Baister sitting in Bankruptcy in the High Court on 16 December 2002. A question then arose as to whether Mr Khan had the status, after that date, to prosecute appeals to the EAT from Decisions of the Employment Tribunal that his former employers had not racially discriminated against him, victimised him and/or unfairly dismissed him. At the hearing on 25 February 2003 the EAT held that, because he had been adjudged bankrupt, Mr Khan's causes of action vested in the Trustee in Bankruptcy on the making of the Bankruptcy Order. He therefore did not have the status to prosecute any of the three appeals referred to above. The appeals were therefore dismissed but, because of the importance of the point, the EAT gave him permission to appeal.
9. By the time the three appeals reached the Court of Appeal on this jurisdictional issue, that Court had already decided the case of Grady v HM Prison Service [2003] EWCA CIV 527. Mr Preston accepted that the effect of that Decision was that the EAT did have jurisdiction to entertain Mr Khan's appeal against the Tribunal's Decision that he had not been unfairly dismissed by Trident and that that appeal should be allowed. After hearing argument in relation to the complaints of racial discrimination and victimisation the Court of Appeal held, by a majority, on 19 May 2004, that Mr Khan did have standing to prosecute his appeals against the Decisions on those matters. All three appeals were therefore allowed and remitted to this Appeal Tribunal for any errors of law alleged to be determined. It was a condition of the Order remitting those matters that Mr Khan complied with any outstanding Orders of the EAT with respect to documents within 21 days of the Court's Order; and that he filed with the EAT and served on the Respondents the Originating Applications, duly amended, to show that the relief he claimed was limited to a declaration and compensation for his injured feelings. Mr Khan complied with those directions.
10. The appeals then returned to the EAT and on 5 August 2004 Directions were given as to their future conduct. The earlier Direction for Ms Hyde, Chairman, to produce her notes of the first hearing (case number 1413/01) was rescinded and all three appeals were listed to be heard together as Full Hearings. On that basis they therefore came to be heard before us and we shall deal with each appeal in the order in which they were listed and argued before us.
11. Appeal No. UKEAT/0458/02/SM

Mr A Khan v (1) Trident Safeguards Limited (2) North British Housing (3) Mr P Noke
(4) Ms J Rodgers

Since only one Ground of Appeal was permitted to proceed to a full hearing we can deal with the background facts of this matter more shortly than would otherwise be the case. The thrust of Mr Khan's complaint was that he was required to work as a security guard at
159 Great Dover Street, 16 hours per day, alternating between five and four days per week, whereas his comparators who were black Africans were required to work 14 hours, three days on, three days off. He also complained that he was victimised as a result of his having presented the six separate Originating Applications in the Tribunal in 2000 against Trident and members of its management alleging race discrimination. These were said to be the protected acts. The victimisation of which he complained was that he was required to work 16 hours per day as opposed to the 12 he had been working. The dispute appeared to have resulted from the termination of Trident's contract at Great Dover Street and the award of a new contract after tender in October and November 2000, which entailed a change in working patterns. A letter sent to the Applicant dated the 28 November, set out at page 15 of the Decision of the Employment Tribunal at paragraph 41(xxxiv), referred to the hours of the shift as being from being 1600 to 0800 hours. Mr Khan alleged that the difference in hours was part of a combined effort by all of the Respondents to remove him from that contract due to his race and/or his perceived litigious nature. However, the Tribunal were satisfied on the evidence that there was merely a typographical error in the letter and that it should have said from 1800 to 0800 hours (see paragraph 85). They found the explanation of Mr Coombs that the letter contained a typographical error to be adequate and satisfactory. At the time the letter was written Mr Khan and Mr Coombs had not met and there was no evidence of any animosity between them. The Tribunal were satisfied that Trident had no motive to deliberately mis-state the hours and the suggestion by Mr Khan that it was done to get rid of him was not supported by any evidence. All the allegations were rejected on the merits and at paragraphs 92 and 93 the Tribunal stated:

"92 The Tribunal also considered that it was important to make some mention as to the Second, Third and Fourth Respondents. At one stage the Applicant asserted that Ms Rodgers may have prepared or assisted in the preparation of the letter of 28 November 2000. That assertion is unsupported by any evidence.

93 There was no aiding of the First Respondent to do anything. The Second Respondent went to a genuine re-tendering process for a genuine reason. The hours of guarding were set out in the tender documents and the contract. It was then for the First Respondent to put that into practice by determining the length of shifts of the individual guards and the rota pattern. That decision was not the decision of the Second, Third or Fourth Respondents, nor influenced by them."

12. The Tribunal held that the Respondents did not unlawfully discriminate against Mr Khan on the grounds of his race and they were satisfied that the victimisation complaint should also fail. The reasons for the mis-stated hours and the reason why the mis-information was communicated by letter had nothing whatsoever to do with Mr Khan's ongoing Tribunal proceedings. The Tribunal went on to consider costs and came to the conclusion that Mr Khan had acted unreasonably in commencing proceedings against Trident, on a matter which could easily have been resolved, if the error in the letter of 28 November had been raised internally, either formally or informally. In respect of the Second, Third and Fourth Respondents the Tribunal considered that the claim against them was non-existent from the outset. Mr Khan had no idea whether a claim existed against those Respondents. The documents disclosed no credible case against the Second, Third and Fourth Respondents and the Tribunal concluded that the case had been run against those Respondents on the basis of assertions without any evidence to support them. Accordingly, Orders for costs were made in their favour.
13. The Hearing of 11 July 2001

At paragraphs 17 to 18 of their Notice of Appearance, North British Housing said as follows:

"17. It is the Applicant's case that he was employed by Trident Safeguarding Limited at all times and accordingly, North British Housing and Mr Noke and Ms Rodgers should be withdrawn from these proceedings. North British Housing had no involvement in the selection of Trident Safeguarding Limited employees. North British Housing had no input into the Applicant's hours of work, place of work, pay, nor any of his Terms and Conditions of Employment. There was no obligation of mutuality between the Applicant and North British Housing.

18. The Applicant therefore has no cause of action against North British Housing, Mr Noke and Ms Rodgers and his claim in this respect should be struck out."

By letter dated 24 April 2001 the Tribunal wrote to Corbetts, solicitors acting for North British Housing, stating:

"It seems to the Chairman (Mr Booth) who has considered the case that your clients are joined as aiders and abettors of Trident Limited. He does not therefore propose to strike out at this stage.

If the exchange of witness statements records a different position he may reconsider."

14. Mr Khan was asked to provide further particulars of his case and he requested disclosure of documents from the Respondents by letter dated 3 May 2001. An interlocutory hearing was then listed to take place on 11 July 2001, the Tribunal stating in their notice to the parties dated 31 May the following:

"1 A Chairman of the Tribunals considers that an interlocutory hearing is desirable in this case. The hearing will take place on Wednesday, 11 July 2001 at 12:00 pm before a Chairman sitting alone to:

(a) Clarify the issues in the case and give any necessary Orders for further particulars;

(b) consider what, if any, Orders are required for disclosure of documents and the attendance of witnesses;

(c) arrange if possible, for agreement as to documents;

(d) consider how long the case is likely to last and give directions as to the date and length of the hearing; and

(e) give any other directions, which may be necessary for the fair and expeditious disposal of the case.

2 The parties (other than a Respondent who has not entered an appearance) are entitled to attend either in person or by a representative. Please note that representatives who receive this notice must inform the party they represent of the date, time and place of the interlocutory hearing. A party who is represented will not be personally notified.

3 A party who attends the hearing must come prepared to tell the Chairman how long he/she thinks that the case is likely to last with reasons for the estimate and be prepared to agree dates for the hearing."

15. On 6 June 2001 the solicitors for North British Housing wrote to the Tribunal as follows:

"We are in receipt of your notice indicating that an interlocutory hearing is to take place on Wednesday July 2001 at 12 noon.

We put you on notice that it is our intention to attend the forthcoming hearing and make an application to the Tribunal that the proceedings against North British Housing Association do be withdrawn. The correctly named parties are Trident Securities Limited. The grounds for the strike-out are on the basis that the Applicant has no cause of action against North British Housing Association for the reasons set out in the grounds of resistance, ie the Applicant was employed by Trident Securities Limited.

Please confirm by return that you are minded to deal with this Application at the forthcoming hearing."

By letter to Mr Khan dated 13^th June 2001, the Tribunal enclosed a copy of that letter and confirmed "that a Chairman will consider their application to be discharged from the proceedings at the hearing on 11 July 2001."

16. Following the hearing on 11 July conducted by the Chairman, Mr Peters, an Order was drawn up dated 18 July 2001 and said to be in part issued pursuant to Rule 4 of the Employment Tribunal Rules of Procedure. Headed "Order following a pre-hearing discussion" it stated as follows:

"Having

(i) heard the Applicant in person and Miss S Morgan, Solicitor on behalf of the First Respondent and Miss C Weir, Counsel on behalf of the other Respondents,

(ii) dismissed an application on behalf of the Second, Third and Fourth Respondents to be dismissed from the proceedings after having heard the Applicant's basis for the claims against such Respondents,

(iii) considered in detail the Applicant's letter of 3 May 2001 for specific disclosure,

(iv) discharged the Order dated 6 April 2001,

(v) established that there is no separate complaint under the Human Rights Act 1998,

(vi) identified that the issues arising in this case are as set out in the First Schedule to this order and

(vii) having discussed the matters necessary to ensure an expeditious and fair hearing of those issues

I make the orders and directions as set out in the Second Schedule."

The first schedule referred to identified the issues in the case. The second schedule containing various orders and directions included the following at paragraph 4:

"Notice by Applicant to Continue Proceedings against certain Respondents

4. No later than 3 October 2001 the Applicant shall notify in writing to the Tribunal and all Respondents whether he intends to continue the proceedings against the Second, Third and Fourth Respondents. In the event of failure to comply with this part of the order such Respondents shall be discharged from the proceedings."

A letter accompanying the Tribunal's Order dated 24 July 2001 contained the relevant following information:

"1. With this letter you will find the Tribunal's order made following the Interlocutory hearing before Mr Peters on 11 July 2001.

2. Mr Peters has asked me to write to record certain other matters which are not set out in the Order.

3. First Mr Peters wishes me to make it clear that the issues as identified in the Schedule effectively now replace the pleadings as the issues are exhaustively recorded in the Schedule and those are matters to be decided by the Tribunal at the hearing.

4. At the hearing an application was made to discharge the Second, Third and Fourth Respondents. That application was essentially on the basis that the only involvement of those parties was in deciding to put the security contract out for re-tendering, and there was no collusion between the First and other Respondents and no requirement by the Second, Third and Fourth Respondents for any particular guard to work particular hours. The. Applicant objected to that application as he believed that the disclosure of documents would produce a different picture.

5. In those circumstances the Chairman refused to dismiss the Second, Third and Fourth Respondent from the proceedings at this stage, but made an order that the Applicant should notify the parties and the Tribunal within 21 days of the inspection of documents whether or not he wished to continue with the proceedings against those Respondents. The purpose of this order was to allow the Applicant to inspect the documents prior to deciding whether there was a sufficient case against those Respondents.

6. The Chairman has not recorded the matter in the order as he considers it is not a matter which should be before the Tribunal at the hearing, but the Tribunal Chairman did state that should the Applicant proceed against the Second, Third and Fourth Respondent and at the hearing the claim against those Respondents failed due to the situation being as claimed by those Respondents, then the Tribunal may well make an order for costs against the Applicant in favour of those Respondents."

17. In respect of what took place at the hearing itself we have been assisted in this appeal by three separate sets of hand-written or typed notes from the solicitors and counsel attending, two of which were in our bundle at pages 147 to 170 and the third (the notes of counsel Ms Weir) was available to us separately. These notes show that the hearing lasted for almost two hours. It began with the Chairman informing Mr Khan that he did not understand the Originating Application and that he intended to clarify it. There was discussion concerning the law relating to direct race discrimination and the Chairman asked how the Second, Third and Fourth Respondents came into the picture. Mr Khan stated that they were aiding discrimination under section 33. There was further discussion concerning the allegation of victimisation. The Chairman had regard not only to the pleadings, but to some of the evidence, including written evidence of the Third Respondent and a number of relevant contemporaneous documents. No oral evidence was given. Counsel for North British Housing, Ms Weir, then indicated that she was making an application for the proceedings against her clients to be discontinued. Mr Khan referred to the Tribunal's letter of 24 April (see above) and said that this prevented the Chairman considering the matter again. The Chairman said that the letter had left it open for the proceedings to be struck out at a later stage and that this was now a later stage. Ms Weir therefore presented her application on the basis that "matters could either be struck-out under Rule 13(2)(d) or Rule 17(2). Mr Khan made representations in reply and the Chairman "decided that he was not going to strike-out the proceedings against North British Housing
    Ms Rodgers and Mr Noke at this stage."
18. The hand-written notes at page 157 of our bundle reveal that the Chairman stated that Mr Khan was to inform the Tribunal within a specified time after disclosure if he was proceeding against the Second, Third and Fourth Respondents; and that if he proceeded beyond that point without any evidence of collaboration between Trident and the other Respondents, he could expect a "Costs Order at full hearing". He was told to inform the Tribunal whether or not he wished to proceed within 21 days of inspection; and at page 158 the notes state at this point "costs warning issued". Mr Khan's objection to this requirement as a "sword hanging over me" is recorded as is the Chairman's explanation to him that he was giving Mr Khan an opportunity to inspect the documentation which he says supports his case.
19. It is common ground that the relevant Regulations which were in force at the time were the Employment Tribunal (Constitution and Rules of Procedure) Regulations 1993. Rule 7 of schedule 1 headed "Pre-hearing review" provides so far as is relevant as follows:

"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of-

(a) the contents of the originating application and notice of appearance;

(b) any representations in writing; and

(c) any oral argument advanced by or on behalf of a party.

(2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party.

(3) A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish.

(4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £150 as a condition of being permitted to continue to take part in the proceedings relating to that matter.

(5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit.

(6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit.

(7) If a party against whom an order has been made does not [pay] the amount specified in the order to the Secretary either-

(a) within the period of 21 days beginning with the day on which the document recording the making of the order is sent to him, or

(b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days,

the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates.

(8) The deposit paid by a party under an order made under this rule shall be refunded to him in full except where rule 12(8) applies.

(9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application."

20. Mr Khan argues that the hearing which took place on 11 July was in substance, if not in name, a pre-hearing review within Rule 7(4); and therefore that the subsequent substantive hearing of his complaint was conducted in breach of Rule 7(9), Mr Peters having also presided on 11 July. Whilst accepting that some general case management was carried out, Mr Khan contends that the hearing developed in reality into a pre-hearing review within Rule 7, no live evidence being permitted and the Chairman hearing an application to strike out his claim against three of the Respondents. As a result he was issued with a formal costs warning.
    Mr Khan referred us to a Decision of this Appeal Tribunal (Her Honour Judge Wakefield presiding) in Lewis v Royal Borough of Kingston (EAT/0221/00 3 May 2001). In that case, at the commencement of a substantive hearing, the Applicant through his representative was informed that in the Tribunal's opinion his complaint did not have any reasonable prospect of success. He was therefore warned that if at the conclusion of the case the Tribunal considered that he had in bringing these proceedings acted frivolously or unreasonably they would consider making an award of costs. Thereafter the Applicant withdrew his complaint, which was then dismissed upon a withdrawal. At paragraph 13 of their Decision the EAT held, not surprisingly in the circumstances, that the Tribunal in the language which it used demonstrated a concluded view hostile to the Applicant which caused him to abandon his claim. They expressed themselves satisfied that he had been denied a fair hearing in the circumstances. Mr Khan submits that this case shows that a Chairman can only raise a costs warning at a pre-hearing review. He refers to the fact that there was such a pre-hearing review in the case of
    Maurice v Betterware UK Limited (EAT/1030/99 Keene J. presiding) and he also draws our attention in addition to some highlighted passages from the text book: Employment Tribunal Procedure (by His Honour Judge McMullen QC and others) dealing with the nature and purpose of pre-hearing reviews. He contends that North British Housing deliberately did not formally apply for a pre-hearing review, that is they cynically avoided this route in order to avoid being stuck with the decision not to strike-out and no opportunity to raise it again with a second bite of the cherry at a later stage. The whole decision he therefore contends is vitiated by the breach of Rule 7(9).
21. We have considered these submissions carefully, but we find ourselves unable to accept them. We accept Mr Preston's submission that, in order for a Pre-Hearing Review under Rule 7 to occur, the following elements must be present:

i. An application by a party or of the Tribunal's own motion;

ii. Consideration of the Originating Application and Notice of Appearance and, as appropriate, written representations and oral argument;

iii. Prior notice to the parties;

iv. A determination by the Tribunal as to the prospects of success of any contention to be decided and, if considered to have no such reasonable prospects, then consideration of the ordering of a deposit to be paid by the relevant party; and

v. Summary reasons for so ordering and a costs warning in writing.

22. The wording of Rule 7(1) indicates that a pre-hearing review is essentially a sifting exercise based on a consideration of the pleadings in the case. There is a mandatory requirement for notice of such a review to be sent to the parties in advance, failing which a pre-hearing review "shall not take place". The parties were not given such notice in this case; and nor can it be said that it was clear from the contemporaneous correspondence that the hearing on 11 July was to be a pre-hearing review. Whilst we accept that we must look at the substance of what took place, rather than the form, it is relevant in our judgment to have regard to what the Tribunal and indeed the parties themselves thought was happening on 11 July. We note in that regard that Mr Khan did not contend on the opening day of the substantive hearing that
    Mr Peters should not preside, having already presided over a pre-hearing review on
    11 July 2001.
23. Further, no enquiry was made of Mr Khan as to his ability to pay a deposit in accordance with Rule 7(4 and 5); and no reasons were recorded in summary form and sent to the parties informing them why any contentions had "no reasonable prospects of success" in accordance with Rule 7(6). The document issued in consequence of this hearing, to which we have already referred, in no sense came within this Rule.
24. The contemporaneous documentation shows that this hearing was fixed initially as a routine interlocutory hearing to clarify the issues and to deal with any consequential directions. It became clear that the Second Respondents were going to apply to strike out the claim as against them, relying on Rule 13(2)(d), on the basis that the claim was said to be frivolous or vexatious, or on the basis that the Second, Third and Fourth Respondents were not "directly interested" in the proceedings within Rule 17(2). The Chairman decided, entirely properly, to determine that application. There was no overall assessment by him of the substantive merits of Mr Khan's claim or of his prospects of success. Rather he refused to grant the Second Respondent's application, not because there was then evidence to support the case, but because he considered that there was further enquiry to be made and potentially further evidence available to be disclosed. He went on to inform Mr Khan as to the likely costs consequences to him should such evidence not be available and yet he decided to continue with his claim against the Second, Third and Fourth Respondents.
25. In his own comments on this matter, provided to the Appeal Tribunal by letter dated
    20 December 2002, the Chairman observed as follows:

"Having considered the matter carefully I decided that l should not strike out the proceedings against the Second, Third and Fourth Respondents but allow the Applicant time within which to review the documentary evidence and order him to inform the Tribunal within 21 days of inspection of documents whether or not he wished to continue with proceedings against those Respondents. The Applicant was warned that if he continued with proceedings against those Respondents and the claim against those Respondents failed because there was no evidence of collusion by those Respondents with the First Respondent then the Applicant was at risk as to costs.

…

I did not wish it to come as a surprise to the Applicant if he proceeded against those Respondents despite there being no evidence against them and then he was faced with an application for costs."

26. That however, in our judgment, is far from the exercise of costs powers under Rule 7 after a full consideration of the merits of the claim and a finding that there was no reasonable prospect of success. In effect the Chairman was adjourning generally any enquiry into the merits of the claim against the Second, Third and Fourth Respondents, leaving it to Mr Khan to decide whether or not to proceed after he had examined such evidence as might become available to him. The Rules clearly anticipate different modes of attack upon a party's case, in this instance via Rules 13(2)(d) and 17(2), without that attack necessarily falling to be assessed under the provisions of Rule 7. As the Chairman himself stated in his letter of
    20 December 2002:

"At a case management hearing it is quite a common practice for a Chairman to comment to such a party as to the perceived merits of their case; give indications of what evidence they might need to present; make it clear what matters they have to prove i.e. where the burden of proof is upon them; highlight weaknesses in their case which they need to address etc. Such comments help the parties to focus on the issues and present their cases in the best light. Such comments also assist the parties to decide whether particular parts of their case should be abandoned and to assess carefully what evidence they need to bring to the full merits hearing. Such comments do not preclude the Chairman sitting at the full hearing."

We agree. In our judgment there was no breach of Rule 7(9) and this appeal must therefore be dismissed. We add for completeness that the cause of any enquiry into the position of Mr Khan as against the Second, Third and Fourth Respondents was entirely distinct from the position as against the First Respondent. As far as Trident was concerned the hearing of 11 July dealt with a normal range of interlocutory matters. The standing of Mr Peters as Chairman of the substantive hearing as against Trident was therefore in no way impugned by his hearing the interlocutory issues in July 2001. The Decision in respect of the First Respondent should therefore stand in any event.

Appeal No. UKEAT/1413/01/SM

Mr A Khan v (1) Trident Safeguards Limited (2) Mr Robert Shaw (3) Mr A King
(4) Mr J Wright (5) Mr M Harman

27. The Tribunal's Decision in these six consolidated Originating Applications was lengthy and detailed, with the relevant findings of fact being comprehensively set out at
    paragraphs 34-99. We summarise here Mr Khan's contentions and the Tribunal's conclusions in each case.
28. In Application 2301012 Mr Khan's complaint was that Trident had racially discriminated against him by paying him less than three colleagues who did the same job as him, but who were of a different ethnic origin. Two of his comparators were white and one was black. He also alleged that he had been victimised by Trident since raising his allegation about pay with its Managing Director, namely that he alleged he was assaulted at work by another guard on New Year's Eve 1999/2000 and that Trident took no adequate action to deal with this complaint, as compared with their more favourable treatment of his named comparator. This appeared to centre around an incident in the early hours of 1 January 2000 in which Mr Khan was assaulted by a fellow employee. He complained that his assailant was taken home immediately in a company car, whereas he was left injured at the site of the assault. He also complained that no disciplinary action was taken against his assailant. Trident's defence to the race discrimination complaint, which was accepted by the Tribunal, was that two of the three employees in question were being paid at an incorrect rate due simply to an administrative error, which had since been corrected. They had previously worked on sites which attracted a higher global hourly payment and this had not been corrected when they moved sites. Trident denied that the third named employee was being paid at a different rate and the Tribunal found as a fact that that was correct.
29. In relation to the victimisation complaint the Tribunal found as follows at paragraphs 104 and 105 of their Decision:

"The Applicant had accepted that he was taken to hospital by the First Respondent's duty executive when no ambulance attended. Miss Warman was also with the Applicant while he waited. We did not consider that the First Respondent treated Miss Rackal more favourably. Her circumstances were different. She did not need hospital treatment and an ambulance was called promptly for the Applicant. The ambulance did not attend for a number of hours because of the circumstances on that evening.

105. Mr Khan complained about Mr Harman's lack of investigation of the incident. We considered that Mr Harman did not treat any single member of staff more or less favourably than the others. He took a common sense view of the events of the Millennium Eve but left the door open to either the Applicant or Miss Rackal to take more formal action if they wished to. We noted that the Applicant did not set out in writing his account of the events even when invited to do so by Mr Harman in March 2000."

30. In Applications 2302339 and 2302340, the Respondents to which were Trident and
    Mr Shaw, Mr Khan made two complaints of unlawful direct race discrimination and victimisation. In relation to the victimisation complaint the protected act alleged was that he had claimed race discrimination in respect of unequal pay. The act of discrimination alleged was being telephoned by Mr Shaw, who required him to attend work after he had previously telephoned in to say that he would be unable to attend because he was unwell. Mr Khan's comparator was Mr Robertson who is white and Scottish. The case was resisted by the Respondents on its facts. In particular they contended that there was no record of any telephone call from Mr Khan saying that he was unable to attend work because he was unwell.
31. In relation to these complaints the Tribunal found as follows at paragraphs 106 to 108 of their Decision:

"106. We next considered the complaint against Mr Shaw and the First Respondent in relation to the telephone call on 24 January 2000. The Applicant's victimisation complaint could not succeed on the facts that we found because we found that Mr Shaw had no knowledge of the Applicant having done a protected act.

107. We considered the treatment complained of as constituting less favourable treatment namely the telephone call from Mr Shaw. We considered that Mr Shaw was doing no more than his duty and that he behaved appropriately towards the Applicant on 24 January. Mr Shaw's account of his actions on 24 January was also consistent with the requirements of the proforma documents in use in the First Respondent at the time.

108. In the circumstances we dismissed the Applicant's complaint of direct race discrimination in this respect."

32. In Applications 2302341 and 2302344, the Respondents to which were Trident and
    Mr King, Mr Khan made complaints of unlawful race discrimination and victimisation. The protected act was again because he had raised an issue of unequal pay. The act of discrimination alleged was that on 28 January 2000 allegations were made against him of theft by Mr King during a telephone conversation. Mr Khan named four comparators who were also employed by Trident at the same workplace, whom he said were not accused of theft, namely Messrs. Bligh, Robertson and Morton and Ms Warman. The Respondents resisted the complaint on the facts, denying in particular that Mr Khan was ever accused of theft.
33. In relation to these complaints the Tribunal concluded as follows at paragraphs 109 and 110:

"109. The Applicant next complained about the actions of Mr King during the telephone conversation on 28 January 2000. We were not satisfied, on the Applicant's own evidence that Mr King had accused of him of theft during the telephone conversation.

110. Insofar as the Applicant was asked what he knew about the various matters that the client had raised with Mr King, our findings of fact indicated that Mr King made similar enquiries of two of the other regular security guards Miss Warman and Mr Bligh both of whom were white. We noted also in this context that no disciplinary action of any sort was taken by Mr King against the Applicant in relation to these matters. It was not in dispute that the client had raised concerns about items going missing. If, as the Applicant believed, Mr King was inclined to make false allegations against him, because of his complaint of unequal pay discrimination, one would have expected some more formal action to have ensued, not just a telephone conversation. Our findings also indicated that the four comparators named by the Applicant did not assist his case. Miss Warman and Mr Bligh were questioned and they were White. Mr Robertson was not questioned and he was White but had only recently started working at 159 Great Dover Street. Mr Morton was Black and was not questioned."

34. Finally, in Application 2302346, the Respondents to which were Trident, John Wright and Mark Harman, Mr Khan's complaint was set out at paragraph 24 of the Tribunal's Decision, namely:

"(1) Mr John Wright failed to respond to the Applicant's letter of 14 May 2000.

(2) Mr Mark Harman

(a) Wrote a letter dated 1 June 2000 (received by the Applicant on 2 June 2000) which was false and/or designed to stall the Tribunal's proceedings.

(b) Failed to arrange approved assignment instructions."

35. The Tribunal's conclusions, set out at paragraphs 112-114 were as follows:

"112. We next considered the complaint in relation to the assignment instructions. Mr Wright, it is correct, did not respond to the Applicant's letter of 14 May 2000. A response came instead from Mr Harman. We were not satisfied that this necessarily constituted a detriment. A detriment requires that an employee is placed at a disadvantage in some respect relevant to his employment. This was in our opinion not the case. In any event, we were satisfied that the reason why Mr Wright did not respond to the Applicant's letter of 14 May was because Mr Harman dealt with it in Mr Wright's absence. Mr Wright was not aware of the correspondence. This was a satisfactory explanation and was unrelated to the Applicant's race.

113. We accepted that the content of Mr Harman's letter in relation to the imminent completion of the assignment instructions dated 1 June 2000 was at the very least misleading. We were at a loss having considered the contents of the letter and Mr Harman's evidence to decide what the reason was for Mr Harman writing in those terms. It was characterised by his Counsel as being over optimistic. We were satisfied however that it was not designed to stall Tribunal proceedings. Even if Mr Harman hoped to have completed the assignment instructions shortly he would known(sic) that the Applicant would know exactly when they were posted. If any relevant time limits were due to expire which we doubt, the Applicant would be in a position to know that the First Respondent had not yet complied with the requirement to provide assignment instructions. As there was no set date for them to be provided, the Applicant would not be time-barred.

114. Finally Mr Khan complained that Mr Harman failed to arrange approved assignment instructions as an act of discrimination by way of victimisation. This complaint could not succeed in our view. All staff were equally disadvantaged by the failure to provide assignment instructions. It was also a situation which was ongoing from a period before the Applicant raised anything that could be considered to be a protected act. The premises had been taken over by Trident in September 1999 and Mr Khan's letter to Mr Wright was not written until some three months later. There was in short no change in relation to the position in respect of assignment instructions. It was therefore not a proper conclusion to draw from their absence after the letter in December 1999 that they were an act of victimisation against Mr Khan. In all the circumstances therefore we rejected this complaint also."

36. At the outset of his submissions in relation to this appeal Mr Khan raised once again the difficulties with which he was presented in pursuing the appeal without sight of the Chairman's notes. He accepted, however, that he had not appealed against this Appeal Tribunal's Order of 5 August 2004 rescinding the Order for production of the Chairman's notes, and that the appeal therefore had to proceed on the basis of the material before us. Sensibly he did not object to that course.
37. Mr Khan's Notice of Appeal was extensive and prolix, running to some 38 pages and raising numerous issues. To assist us and to assist Mr Preston in responding to his appeal, we asked Mr Khan to indicate whether he wished to pursue every ground or whether he was able to identify and list for us from his grounds of appeal those errors of law which he wished to pursue. Mr Khan, helpfully, produced at this stage a handwritten document headed "Hyde Appeal", in which he listed a total of seven points, which he indicated were taken from his grounds of appeal and which he confirmed covered all the matters he wished us to determine in relation to this appeal. We shall therefore deal with them in turn.
38. "(1) Errors on the Face of the Record"

Mr Khan contended that there were three errors.

(a) Firstly, in relation to his sixth and final Application (2302346) he points out that his complaint was one of victimisation only, not direct racial discrimination. He contends, however, that in their final sentence of paragraph 112, when expressing their conclusion, the Tribunal stated that the Respondents had provided a satisfactory explanation which was "unrelated to the Applicant's race". The Tribunal therefore erred, he contends, and asked themselves the wrong statutory question, namely whether there was direct race discrimination rather than whether Mr Khan had suffered victimisation.

(b) Secondly, in relation to Applications 2302341 and 2302344, although the Tribunal correctly identified at paragraph 14 of their Reasons that he was complaining of both race discrimination and victimisation, the Tribunal dealt in their conclusions at paragraphs 109 and 110 only with race discrimination and not with victimisation. Mr Khan contended that the reason that the Tribunal did not decide the victimisation complaint was that they did not want either to find in his favour or to give a "silly explanation", so they must have agreed simply not to decide the matter.

(c) Thirdly, in relation to 2301012, Mr Khan submits that the Tribunal erred in concluding as they did at paragraph 103 that he had not raised as a substantive complaint the way in which Mr Wright had conducted an investigation into his complaint of unequal pay. He contended that it was clear from relevant documents in the case, including a judgment of the EAT at a preliminary hearing, in existence long before the hearing, that he was complaining of this matter.

39. It is clear from the Tribunal's Decision that the general approach adopted by them in assessing Mr Khan's complaint was to establish first of all whether the necessary primary facts had been established from which, if they considered it appropriate, inferences of discrimination or victimisation could properly be drawn. Clearly, if the primary facts found by a Tribunal are not in accordance with those asserted by the Complainant then there is no necessity for the Tribunal to go on to consider whether inferences of discrimination or victimisation are appropriate. At paragraphs 112-114 of their Decision the Tribunal were clearly addressing the complaint of Mr Khan as summarised at paragraph 24 of their Reasons.
40. In paragraph 112 the Tribunal were clearly rejecting the suggestion that there was any element of racism whatsoever to the treatment of Mr Khan's letter of 14 May 2000. They found that Mr Wright did not know of the correspondence as he was away on holiday and the Tribunal did not find that there was any less favourable treatment. They went on at
    paragraph 113 to deal with part 2(b) of Mr Khan's complaint and to reject that in addition. At paragraph 114, considering part 2(b) the Tribunal found that the primary fact alleged, namely the failure to arrange instructions, had been established. However, they then declined to draw any inference of victimisation and explained why that was their conclusion. We agree with
    Mr Preston that there is no set rule or pro forma for the manner of presentation of a Tribunal's Decision. In our judgment there is no proper basis on which it can be said that the Decision is fatally flawed in the sense of ignoring the victimisation complaint under part (1). It seems to us that the last sentence in paragraph 112 was a shorthand expression for the Tribunal's rejection that there was any unlawful treatment of Mr Khan under the Race Relations Act 1976. The Reasons seem to us to have analysed entirely adequately Mr Khan's complaints and to have made findings upon them. In any event the Tribunal found that Mr Khan had suffered no detriment within the meaning of the legislation.
41. In relation to his second alleged error on the face of the record it seems to us that the same situation prevails. It is clear from paragraphs 14, 109 and 110 of their Decision that the necessary finding of fact as to theft was rejected by the Tribunal, further the reasons for that rejection was clearly set out. We do not accept that in those circumstances a failure to go on to say expressly that the Tribunal therefore rejects both the complaints of discrimination and victimisation means that the Decision is irrevocably flawed. All that has happened is that the Tribunal has failed to add an appropriate label to their substantive finding, which in our judgment was clear.
42. In relation to the third alleged error the Tribunal reviewed Mr Khan's Originating Application and his witness statement (see paragraph 103). The duration of Mr Khan's alleged intention to challenge Mr Wright and when it was first brought to the Tribunal's notice with respect seems to us to be irrelevant. We note that Mr Khan does not say that the Tribunal failed to address the issue. It was for Mr Khan to seek to amend his complaint if he were truly concerned as to the nature of the investigation and wished it to be addressed as a substantive complaint. In any event it is clear from paragraphs 102-103 that the Tribunal did address the substance of that complaint and made no findings of racial discrimination.
43. "(2) Flawed Definition of Detriment"

Mr Khan drew our attention to the broad definition of "detriment" endorsed by the House of Lords in Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065. He contended essentially that the definition adopted by the Tribunal in paragraph 112, namely "a detriment requires that an employee is placed at a disadvantage in some respect relevant to his employment" implied that it had to be something that can be measured. This he contended was a mis-direction because a detriment need not be something physical or financial, but is much wider than that in scope.

44. We are unable, however, to agree with Mr Khan's criticism of the Tribunal's direction to themselves on the meaning of detriment, which seems to us to be entirely in line with authority and therefore correct.
45. "(3) Anya/Meek Failures

(4) Perversity"

We shall deal with these matters together because a number of the complaints Mr Khan expressed are overlapping and the matters seem to us to run together.

46. Mr Khan addressed first what he described as "Anya/Meek compliance failures". This was a reference to the need for Tribunals adequately to explain their reasoning process in arriving at their conclusions, so that the parties can understand why they have won or lost, as established in the well known case of Meek v City of Birmingham District Council [1987] IRLR 250; and applied particularly in the context of drawing inferences in discrimination cases in Anya v University of Oxford [2001] ICR 847. He alleges, in the alternative, that the Tribunal's findings were perverse. We have read carefully Mr Khan's written submissions in their entirety and in particular in this context paragraphs 17 to 26 to which he drew our attention.
47. His particular complaint in oral submissions related first to the Tribunal's reasoning in connection with Application 2304346 and their conclusions at paragraphs 112-114 to which we have already referred, dealing with the assignment instructions. He submitted that the Tribunal failed to find as a fact that he was the most disadvantaged person at the site (he was the only one left); and that their finding of fact at paragraph 98 that everyone at 159 Great Dover Street was equally effected by the absence of signed and written assignment instructions was wholly unexplained or perverse. We have also read paragraphs 83-111 of his written submissions, to which he referred us at this point, in which he makes detailed criticisms of further "perverse findings" and alleged "Anya/Meek failures" in connection with his other Applications, including the alleged racial discrimination by Mr Wright and his victimisation complaint in Application 2301012.
48. In relation to the alleged perverse findings by the Tribunal, we can well understand
    Mr Khan's concerns that the Tribunal made findings of fact which were contrary to those which he asserted and that they found in favour of the Respondents on these matters. However, as the Court of Appeal in Yeboah v Crofton [2002] IRLR 634 emphasised, perversity challenges to a Tribunal's findings of fact, in circumstances where they have heard all the evidence and assessed the witnesses, should only succeed when an "overwhelming case" is made out. In our judgment none of the extensive factual criticisms made by Mr Khan come near to crossing this high threshold. At paragraph 94 of the judgment in Yeboah, Mummery LJ said as follows:

"Over the years there have been frequent attempts … to present appeals on fact as questions of law. The technique sometimes employed is to trawl through the extended reasons … selecting adverse findings of fact on specific issues on which there was a conflict of oral evidence and alleging without adequate particulars, supporting material, or even proper grounds, that these particular findings of fact are perverse and that therefore the overall decision is perverse. An application is often made to obtain the notes of evidence made by the Chairman in the hope of demonstrating that the notes are silent or incomplete on factual points, that the findings of fact were not therefore supported by the evidence and that a question of law accordingly arises … But no appeal should be allowed to be turned into a rehearing of parts of the evidence …"

The current President of this Appeal Tribunal recently endorsed the "very limited" basis upon which an allegedly perverse finding can justify Appellate interference in Burns v Consignia plc (2) [2004] IRLR 425. No appeal, as has been made clear, can therefore be allowed to be turned into a rehearing of parts of the evidence; and, in our view, Mr Khan's attempts to persuade us to overturn the Tribunal's findings in various respects has fallen into the trap which the authorities point out is to be avoided. His approach essentially has been to set out those aspects of the evidence and findings with which he does not agree and ask us to reach different conclusions upon them. We have been unable to detect from Mr Khan's oral or written submissions any finding of this Tribunal which would justify interference by us on the grounds of perversity.

49. In relation to the alleged inadequacy of reasoning on the part of the Tribunal the Decision seems to us to provide a clear explanation for the conclusions reached and the route followed by the Tribunal in arriving at them. There is no necessity for the Tribunal to deal with every argument presented to them so long as they have clearly identified those issues which were central to their conclusions and the manner in which they resolved them has been explained. We regard these Reasons as showing the Tribunal's thought processes in sufficient detail as to enable the requisite appellate analysis of the essential reasoning for the Decisions reached. We are therefore all of the view that these grounds of appeal must fail.
50. "(5) Apparent Bias

(6) Tribunal Hostility and Chairman's Misconduct Leading to Unfair Hearing

(7) Procedural mishap"

Under these linked headings Mr Khan's contentions were these. In relation to apparent bias, Mr Khan raised two areas of complaint, namely (1) the presence during the Tribunal hearing of what he describes as a "friend of the Tribunal"; and (2) the effect on the decision of the "9/11" terrorist attacks on the World Trade Center in New York. He confined his oral submissions to directing us to the authorities dealing with apparent bias, the legal principles being a matter of common ground between the parties, and their application in this case. He then referred us to his grounds of appeal, his affidavit and the comments obtained in response to his allegations from the Chairman and the lay members. He emphasised orally that he could add nothing more to these written documents and asked us to consider them. The same situation prevails in respect of his allegations of hostility towards him by the Tribunal.

51. Mr Khan's written allegations of bias are contained in paragraphs 21 to 38 of his Notice of Appeal and we have considered them carefully. They are, in fact, predominantly allegations of actual bias, whereas Mr Khan in oral submissions did not pursue such an allegation, contenting himself with alleging apparent bias. We will in the circumstances consider his complaints on that basis. It is common ground that the test in such cases is whether the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the Tribunal was biased.
52. Mr Khan's first complaint relates to the attendance at the Tribunal on third day of the hearing of a person known to one of the members of the Tribunal. The Chairman's comments supported by the lay member, Mr Rao, show that an observer who was known to one of the members of the Tribunal attended the proceedings on the third day of the hearing, 29 November 2000. She states:

"In accordance with my usual practice when there is an observer in the Tribunal who has made their presence known to the Tribunal or who is known to a member of the Tribunal I told the parties that there was such an observer. She was a Japanese lady who I believed to be a student. I told the parties she was known to one of the members of the Tribunal, in the presence of the Tribunal clerk shortly after the parties were brought in at the commencement of the proceedings."

The Chairman points out that students and other members of the public often attend the Tribunal to observe the proceedings and make their presence known to the Tribunal. In such cases it is her practice to discuss with such observers general matters relating to procedure and such discussions take place with the knowledge of the parties either during a break or at the end of the proceedings. On this occasion she recalls that she told the parties that the observer was present and that she would have made it clear to the parties that she would take no part whatsoever in the Tribunal's Decision. She states that Mr Khan raised no concern at all about this issue at the time either during the November 2000 or June 2001 sittings or in between. She emphasises that the observer played absolutely no part in the proceedings or in the Tribunal's decision-making. Mr Khan complains that the lay member should himself have shed light on the purpose of the attendance of this "friend" and that a reasonable and fair-minded person would infer that there was some improper contact between the Tribunal and this person, which the members of the Tribunal do not wish to reveal so as to undermine their case. In relation to the "9/11" attacks Mr Khan's contention is an extremely serious one, namely that the Chairman, effectively, rewrote the Tribunal's Decision after this date in order to find against Mr Khan whom, as a Muslim of Pakistani origin, they saw as a member of the group responsible for the terrible events of that day.

53. We can see nothing of substance in relation to Mr Khan's complaint about the visiting friend of the lay member. Whatever concerns he might legitimately have held at the time about her role and contact with the Tribunal, they have been dispelled by the clear explanation provided by the Chairman and the members. In relation to the "9/11" allegation we find ourselves both surprised and disappointed that Mr Khan could genuinely believe that such was the case; or that the circumstances were such that a reasonable observer could conclude that this had occurred. The Chairman points out that the members of the Tribunal all reached their Decision in chambers immediately after the conclusion of the hearing on 28 June 2001 and that they did not reconvene thereafter; and that the Decision reached is that recorded in the document sent to the parties on 1 October 2001. We accept unhesitatingly her categorical assurance that the events of 9/11 had no effect whatsoever on the Tribunal's Decision.
54. In relation to the allegations of Tribunal hostility, Mr Khan asserts that the Chairman demonstrated her hostility towards him in "confrontations" with him during the hearing on various issues. He alleges that he was disadvantaged as a litigant in person, that the Chairman never tried to understand what he was saying, hurried him on and restricted his cross-examination of witnesses, interrupting him on many occasions and accusing him of surreptitiously tape recording the proceedings. He alleges that in these respects the Chairman's conduct was such that she was discriminating against him on racial grounds.
55. In relation to the tape recordings the Chairman accepts that during the hearing in November 2000 there had been a discussion between the parties and the Tribunal about tape recordings made by Mr Khan. He did not dispute that he had made surreptitious tape recordings of conversations at work and he sought to rely in his case on a "transcript" of part of these recordings. He had not, however, produced the original tape for the Respondents or the Tribunal. The Tribunal therefore ordered him at the end of the proceedings in November 2000 to deliver the original tape on which the conversation in his witness statement was recorded to the Respondent's premises. The making of this Order is recorded at paragraph 1 of the Reasons. When the hearing resumed in June 2001 Mr Khan indicated that he had not produced the tape; and that he had simply decided to leave out the evidence that he had previously relied on which was based on the tape. The matter therefore rested there. However, when
    Mr Harman was giving his evidence, the nature of Mr Khan's cross-examination led the Chairman to ask him whether he had tape recorded the previous Tribunal proceedings. He denied that he had. The Chairman does not accept that she accused Mr Khan of tape recording the proceedings in a "bitter and harsh tone". Whilst we consider it likely that the Chairman was irritated by the turn of events at this point, we are not persuaded on the material before us that she used intemperate language in this respect or that she raised with Mr Khan anything other than legitimate concerns about something untoward that she considered might have occurred during Tribunal proceedings over which she was presiding.
56. Nor are we persuaded that interjections by the Chairman and any restrictions imposed by her on the length of Mr Khan's cross-examination went beyond a proper exercise by her of case management powers during a hearing, with a view to ensuring the smooth progress of the case, to affording a fair opportunity to both sides to put their respective cases and avoiding unnecessary delays in concluding the hearing. We recognise that on occasions, in particular where parties are representing themselves, legitimate interventions by a Chairman to ensure the relevance of questions they wished to ask and to assist them to focus on the relevant issues can sometimes mistakenly be interpreted as unfair criticism of them and occasionally as an indication of bias against them by the Chairman. We are not persuaded in this case that the Chairman's conduct amounted to any more than a proper exercise by her of the powers she has, as Chairman, to regulate the proceedings. Mr Khan's particular complaint about the restriction of his cross-examination of Mr Harman must be seen in this light, given that the timetable previously discussed with the parties provided for one day in June 2001 for all the evidence of Mr Harman to be taken; and that, as the Chairman observed, it was in everyone's interests that the case should be concluded without the need for any further adjournment. Similarly, the Chairman was entitled to take the view that Mr Khan's cross-examination of Mr Wright, lasting for over the better part of a day on 30 November 2000, had afforded ample time for all the issues to which Mr Wright's evidence was relevant to be canvassed by Mr Khan. We are, finally, satisfied that there is no evidence whatsoever to support Mr Khan's allegation that the Chairman's conduct demonstrated that she was discriminating against him on grounds of race.
57. In relation to "procedural mishap" Mr Khan complains first, that the Tribunal erred in ordering him at the end of the proceedings in November 2000 to deliver the original, unedited tapes on which a transcribed conversation with Mr King appearing in his witness statement had been recorded. As we have stated above, Mr Khan did not dispute that he had surreptitiously recorded conversations at work and he sought to rely upon a transcript of part of them. This was dealt with at paragraph 1 of the Reasons. Mr Khan did not dispute that subsequently he had decided not to rely on the transcript or that he told the Tribunal that he had so decided. We can identify no error in the Tribunal's Order for production of this tape in the circumstances. Mr Khan next contended that we should now allow him to produce this tape and consider it ourselves because, in the event, Mr King did not attend the hearing and the Tribunal proceeded in his absence, giving such weight to his witness statement as they considered appropriate.
    Mr Khan accepts, however, that when it became clear that Mr King was not going to attend and that the case would proceed in his absence, he omitted to ask the Tribunal at the time to permit him to produce and rely upon the tape recording of the conversation he had had with Mr King. Further, Mr Khan accepts that he did not object to the hearing proceeding in Mr King's absence and indeed he opposed the Respondent's application for a postponement to allow him to attend, as is clear from paragraphs 18 to 23 of the Reasons. We are not persuaded, therefore, that there was in the circumstances any error by the Tribunal or any procedural irregularity such as to render the hearing unfair or to put Mr Khan at a disadvantage. It is, of course too late now for us to consider tape recorded evidence which was available to be placed before the Tribunal below at the time and which Mr Khan simply omitted to ask them to consider.
58. Mr Khan's final complaint under this heading is that the Tribunal erroneously permitted the respondents to call a witness, Leon Thomas, to rebut an assertion made by Mr Khan in his evidence. The Tribunal refer to this at paragraph 28 as follows:

"During the course of the Applicant's evidence-in-chief he referred to the appointment of a new White recruit as a supervisor (A1, para 52). As this point had not been made before the Respondent put to the Applicant that the supervisor referred to by the Applicant was Black and named Leon Thomas. They also sought leave to adduce evidence from Mr Thomas.
Mr Thomas gave evidence on 29 November 2000 [witness statement P692]."

Mr Khan contends that the Respondents were bound by the answers he gave in evidence and were not entitled to call further evidence from this witness in an attempt to undermine his credibility. It seems to us, however, that, given their wide powers to ensure that the proceedings before them are conducted fairly and to permit evidence relevant to the issues to be called by either party, the Tribunal were perfectly entitled in the circumstances to permit
Mr Thomas to be called by the Respondents to give evidence.

59. For all these reasons, therefore, these grounds of appeal fail in addition. We therefore dismiss Mr Khan's appeal in case number EAT/1413/01.

Appeal No. UKEAT/0621/04/SM

Mr A Khan v Trident Safeguards Limited

60. Trident terminated Mr Khan's employment on 23 March 2002 on the grounds of a breach of the implied term of trust and confidence and a complete breakdown in their relationship. This followed a request by the Head of Operations to Mr Khan for him to attend a meeting on
    7 March 2002 to discuss the difficulties, listing in the letter containing this request all the relevant matters of concern. Mr Khan was invited to make written representations and told that he could be accompanied by a friend or someone else. He was offered legal advice which Trident said they would be prepared to pay for. This letter was delivered by hand to Mr Khan who did not attend the meeting. He was given a further opportunity to attend the meeting on
    14 March, a letter requesting his attendance being sent to him by hand. He was asked to contact the Head of Operations by telephone if there was any difficulty. Mr Khan did not attend that meeting nor did he contact anyone to explain his non-attendance or to ask for a rearrangement of dates and times. He was given yet another opportunity to attend a meeting arranged for
    21 March, again in a letter delivered by hand. He was warned this time that if he did not attend it would be assumed that he did not wish to discuss the issues and had no representations to make. Mr Khan did not attend this meeting on 21 March and in the circumstances Trident decided that his employment should be terminated. A letter dated 22 March 2002 was sent to him explaining all the circumstances that led to Trident's belief that the relationship between them had broken down. The letter explained the procedures for making an appeal. Mr Khan did appeal and the appeal took place on 8 April 2002 at a meeting which Mr Khan did, in fact, attend. Everything was explained to him, as the Tribunal found, and the decision to dismiss
    Mr Khan was upheld. A letter to Mr Khan date 17 April 2002 set out the reasons for the dismissal of his appeal. Mr Khan then submitted an Originating Application dated
    21 June 2002, complaining both of unfair dismissal and of victimisation under the Race Relations Act 1976. He alleged that the reasons given for his dismissal were the protected acts. Trident filed a Notice of Appearance on 18 July, setting out the details of their defence which was sent to Mr Khan. In their Decision promulgated on 3 December 2002, the Tribunal set out at paragraphs 15 to 21 the procedural history of the matter, as follows:

"15 On 2 August 2002, Directions were sent to the parties. Each party was directed that they must, within 14 days, let the other know what documents it would rely on at the hearing. The Respondents responded to that, notifying the Tribunal of dates when their witnesses would not be available.

16 On 14 August 2002 a Notice of Hearing was sent to the parties listing the hearing for 9 and 10 October 2002, to which the Applicant immediately responded, stating he thought that two days was not sufficient and that five days should be allocated to the hearing. He asked for the dates to be vacated.

17 On 23 August 2002 the Respondents' solicitors wrote to Mr Khan stating that they had not received the documents on which he would rely, and the Respondents pointed out to the Tribunal on 4 September 2002 that the Applicant had not complied with the Order.

18 The request for a postponement by the Applicant was dealt with by a Tribunal Chairman, and the Respondents were asked to comment on a time estimate of five days for the hearing. At the same time, Mr Khan was asked to comply with the Directions given to him of 2 August 2002.

19 On 19 September 2002 the Respondents responded, stating that they thought two days was sufficient. The Applicant did not respond. On 26 September 2002 Mr Khan was informed by a letter from the Tribunal that the hearing remained listed for two days. He was also warned that the Chairman was considering striking out his claim if he did not provide the documents as directed.

20 On 2 October 2002 Mr Khan wrote to the Tribunal, purporting to say that his request for an adjournment had not been dealt with. He then informed the Tribunal that he would not be attending on 9 and 10 October 2002, but he did not give any reason for not being able to attend. It is noted that in that letter he suggests any date after 15 November 2002.

21 When the case was called at 10.00 am on 9 October 2002, the Applicant had not attended. The case proceeded at 10.40 am when Mr Preston, on behalf of the Respondents, applied for a Striking-Out Order for want of prosecution. Mr Preston pointed out that all the previous cases (seven in all) had been unsuccessful and that the Respondents had been awarded costs against the Applicant."

61. The Tribunal decided to proceed with the hearing for unfair dismissal and heard from the witnesses called by Trident who contended that the dismissal was, in all the circumstances, fair. The Head of Operations, Mrs Smead, and Mr O'Hara, who decided the appeal, gave evidence and submissions were made by counsel on Trident's behalf relating to the reason for the dismissal. The Tribunal directed themselves correctly as to the relevant law and in particular set out sections 98 and 104 of the Employment Rights Act 1996 and section 2 of the
    Race Relations Act 1976, dealing with victimisation. They correctly noted that it was for
    Mr Khan to show that the protected act was the reason for the treatment, that is his dismissal.
62. The Tribunal's conclusions were set out at paragraphs 26 to 28 as follows:

"26 We find that the principal reason for the Applicant's dismissal was that trust and confidence had disappeared between the employer and the employee. The Applicant had constantly made allegations which had not been substantiated in litigation and failed to attend meetings to discuss the situation. He gave no proper reason for failing to attend the meetings which were later adjourned to enable the Applicant to come to further meetings at convenient dates. On all occasions the Applicant ignored these requests for meetings, although it was quite clear that he had received the letters and notice of the meetings, and had been given the opportunity to attend with a witness and even have a contribution towards any legal costs he might have incurred in obtaining advice.

27 We find that this was a reason to justify the Respondents acting in this way and dismissing the Applicant and that they had acted fairly within Section 98(4) of the Employment Rights Act 1996. It was fair and reasonable, in all the circumstances, for the Respondents to call a meeting and to try to resolve the problems that had occurred between them and the Applicant. The Applicant failed to respond; he ignored their requests, even though he was warned that dismissal might follow if he continued to ignore their requests. In those circumstances, this was a fair dismissal and his claim for unfair dismissal is dismissed.

28 The Applicant's claims for victimisation also cannot succeed as we find that the reason for his dismissal was the loss of trust and confidence in him by the Respondents and not because he had brought proceedings against these Respondents under the Race Relations Act 1976 or the Employment Rights Act 1996. The Respondents had successfully defended previous cases over a long period of time and had not taken any disciplinary action or reacted against him because of that. In fact, one of the cases is still before the Employment Appeal Tribunal. The award of costs against the Applicant, in addition to losing the cases, had not deterred him from pursuing litigation."

63. Finally, the Tribunal dealt with the Application made by Trident for the costs of the matter and found as follows at paragraph 29:

"29 The Respondents then made an application for costs under Rule 14 of the Employment Tribunals Rules of Procedure 2001. Mr Preston argued that the Applicant had acted vexatiously and unreasonably in bringing these proceedings, bearing in mind that he had failed to respond to requests by the Respondents to discuss the outstanding matters and had failed to comply with the Directions of the Employment Tribunal and had failed to attend the hearing before the Tribunal today. A schedule of costs was produced by the Respondents, and we award costs in the sum of £7,800."

64. In his Notice of Appeal Mr Khan makes, one again, extensive criticisms of the Tribunal's substantive Decision. His written submissions in support are also lengthy and detailed. We have considered them all but once again, for our assistance, he has helpfully provided at the hearing before us a hand-written document headed "Appellant's Roadmap for Submissions" in which his grounds have been grouped under five headings. At the hearing before us Mr Khan applied for leave to add, as a ground of appeal, that "the Tribunal's decision to order the Applicant to pay costs in the sum awarded was perverse". We gave leave, notwithstanding
    Mr Preston's objection to such a late application, due to the fact, (a) that Mr Khan's submissions in relation to costs had been in his written submissions which Mr Preston had had for some two weeks prior to the hearing; (b) there had been no preliminary hearing of this appeal when the omission as the result of an oversight on Mr Khan's part could have been identified and corrected; and (c) Mr Preston was not unable to deal with the submissions as to costs as before us. The first heading in the roadmap relates to costs and we shall consider that matter at the end of the substantive issues. Headings (2) and (3) allege perversity in respect of the Tribunal's Decision and a lack of sufficient reasons and "Meek-Anya failures". Heading (4) alleges that there was an "unfair hearing" and paragraph (5) is headed "no hearing from the Appellant". We shall deal first with the grounds of appeal under headings (2) and (3).
65. Perversity and Lack of Sufficient Reasons

In relation to perversity Mr Khan refers us to passages in the letters from Mrs Smead and
Mr O'Hara in which they explain their reasons for his dismissal. He contends that it was not open to the Tribunal to accept as justification for his dismissal that he had constantly made allegations which had not been substantiated in litigation and had failed to attend meetings to discuss the situation. He states that Trident did not dismiss him for failing to attend the meetings and that Mr O'Hara had abandoned this justification at the appeal. It is clear, however, from Mr O'Hara's careful letter of 17 April 2002 that he made a specific finding that Mr Khan had failed to attend meetings on any of the three occasions when he had been allowed an opportunity to attend and that on his own admission he had made no effort to contact
Ms Smead. It is clear from the whole of the letter that Mr O'Hara was dealing with both the substantive and procedural matters relating to Mr Khan's dismissal.

66. Mr Khan next points out that Trident misled the Tribunal into believing that all litigation had come to an end and that this was not the case when the Tribunal met on 9 October 2002. Even if it had he contends that that still does not justify what he asserts to be victimisation. He complains, in addition, that the Tribunal took into account irrelevant factors, namely that the award of costs made against the Applicant previously, in addition to losing the cases, had not deterred him from pursuing litigation. Mr Khan then referred us to passages from the speeches of Lord Steyn and Lord Nichols in the case of Nagarajan v London Regional Transport [1999] IRLR 572. He contends that the two grounds on which his dismissal was upheld by
    Mr O'Hara were (a) that he had lost his case previously brought under the Race Relations Act 1976; and (b) the evidence he had given in the course of those proceedings. This, he submits, can only have resulted in a finding by the Tribunal that he was dismissed because of the protected acts and that he was therefore victimised contrary to the provisions of the 1976 Act. Mr Khan finally under this heading raises a discrete point relating to breach of his immunity. He contends that he had immunity against action for statements made in legal proceedings and that there was here an indirect breach or a collateral attack upon his immunity in which he was caused detriment in the form of his dismissal as a result of evidence given by him in Tribunal proceedings.
67. We are not persuaded that Trident ever misled the Tribunal, as alleged, or that the Tribunal's conclusion on the evidence which was before them can properly be categorised as perverse. It seems to us that Mr Khan's main criticism under this head is that Trident should not be allowed to rely on matters initially raised in evidence in Tribunal proceedings to which they and Mr Khan were parties; and that to allow them to do so breaches Mr Khan's rights under section 104 of the Employment Rights Act 1996 and section 2 of the Race Relations Act 1976. However, in our judgment a clear distinction is to be drawn between the position of a litigant or witness in proceedings and their immunity from suit as a matter of public policy; and the ability of employers to seek legitimately to enquire of an employee as to his behaviour in circumstances first intimated in Tribunal proceedings. If the position were otherwise it would not be open to employers to take disciplinary proceedings in respect of the same facts against an employee in circumstances where the latter had been acquitted of a criminal offence. Similarly employers cannot legitimately be subjected to criticism because they take the view that serious allegations made against them by an employee are demonstrative of an attitude such that the continued employment relationship between them is impossible. We accept Mr Preston's submission that the protections contained in section 104 of the Employment Rights Act and section 2 of the Race Relations Act are intended to shield an employee from unreasonable behaviour by the employer as a consequence of the employee acting reasonably in accordance with his or her statutory rights. They are not there to enable an employee to act as they see fit without fear of any possible consequences to continued employment. It is to be noted in this respect in particular that Mr Khan had referred at the hearing to Mr Wright being guilty of blackmail and perjury and he had put those assertions to him in the witness box. The mere fact that Mr Khan had submitted a Notice of Appeal does not in our judgment prevent an employer from standing back and considering the position overall in the context of a continuing employment relationship. There was no threat to Mr Khan that if he persisted with litigation he would be sacked or anything of that nature. As an employee he had been asked reasonably to attend meetings for the matter to be discussed and we do not agree with Mr Khan's criticisms of the actions taken by Trident in the circumstances.
68. The Tribunal accepted on the evidence available to them that the reason for dismissal was the breach of the implied term of trust and confidence and the breakdown of the employment relationship and was not because of any protected act. On the evidence we consider that such a conclusion was clearly open to them. In any event there was no evidence before them that
    Mr Khan had been treated any less favourably than any other employee by reason of his actions, and there is no basis for suggesting that they should have inferred such to be the case. This ground of appeal therefore fails.
69. In relation to inadequacy of reasoning Mr Khan points out that the Tribunal's Decision on his complaints was set out in only three paragraphs. The Tribunal, he complained, made no reference to the three reasons for loss of confidence given by Ms Smead; no reference to the internal appeal and no reference to the fairness of the procedure adopted internally. Mr Khan contended that his employers should have warned him that if he brought any more complaints against them they would dismiss him. We drew to his attention during this submission that that would properly be regarded as unlawful victimisation, contrary to the 1976 Act which Mr Khan conceded, but he nevertheless maintained that what his employers did was indefensible.
70. It seems to us, however, that Mr Khan's main difficulty in these submissions is that he failed to attend the hearing in order to lay further material before the Tribunal for their consideration. In the circumstances the Tribunal had to decide the matter on the basis of the evidence available to them. They reviewed the whole process as they were required to and made findings as to the events which had led up to Mr Khan's dismissal and the process adopted in order to lead to that result. They also dealt in detail with the appeal hearing. It is correct that the conclusions were shortly expressed, but we consider that they were adequately reasoned. Whilst Mr Khan is clearly not satisfied that all the issues he sought to be addressed were dealt with to his satisfaction, in circumstances where he decided not to attend the hearing such criticisms are difficult to sustain. We consider that the essential reasoning leading to their Decision is capable of analysis and that there is no basis upon which this Appeal Tribunal can properly interfere.
71. "Unfair Hearing" and "No Hearing from the Appellant"

1. In relation first to procedural unfairness, Mr Khan seeks to make before us a number of criticisms about Trident's dismissal process and about the selection of the decision-makers, both at the initial stage and at the appeal hearing. He complains that in their conclusions the Tribunal make no reference to whether or not Ms Smead was a proper person to be conducting the meetings. She was clearly aware of the protected acts and may have been subconsciously affected by them. The Tribunal should have considered that matter and dealt with it in their Decision. He makes further criticisms of the involvement of Mr O'Hara and complains that the Tribunal Decision is flawed because they do not canvass these issues in their Decision.

2. The problem for Mr Khan in making good this submission is that the extensive criticisms he makes in this respect in his written submissions and again, orally, before us were not made by him before the Tribunal when this matter was heard. It is clear that he took no steps to contact the Tribunal, although he knew that the hearing was to proceed on 9 October. He made no application for an adjournment. In the circumstances the Tribunal's decision to proceed with the hearing and to determine the matter on the evidence placed before them is entirely understandable and cannot be impugned on appeal. It falls within the wide discretion available to a Tribunal pursuant to Rule 11 to schedule 1 of the Employment Tribunal's (Constitution and Rules of Procedure) Regulations, in force at the relevant time. The only reference to the matter now extensively criticised by Mr Khan, which the Tribunal had before them, was the allegation in paragraph 15 of his Originating Application that "protected acts other than the three given as reasons for my dismissal also influenced my dismissal". Ms Smead may not have met the Applicant, but she has dealt with the Applicant by proxy i.e. through the operations managers (she is boss to all the operations managers, eight or so in number) most significantly Mr Mark Harman and then his successor Mr John Kerr." In our judgment the Tribunal cannot legitimately be criticised for failing to understand that there was the possibility of subconscious bias being alleged by Mr Khan.

3. Under this heading of general unfairness in the hearing Mr Khan also complains of apparent bias and prejudice on the part of the Tribunal. We have considered in detail paragraphs 58 to 66 of his written submissions to which he drew our attention at this point.
Mr Khan complains that Trident were engaged in a pre-meditated and well planned course of action to mislead the Tribunal with falsehoods and distorted evidence. After having regard to these false representations and distortions of the facts he submits that this Tribunal was disqualified from sitting on the substantive hearing from that point onwards on the basis that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased.

4. We can see nothing of substance in this criticism however. Further we note the Chairman's comment at paragraph 4 of her response that the Tribunal could have dismissed
Mr Khan's application pursuant to Rule 11(3) of the 2001 Regulations. They chose not to do so however and required Trident to justify their decision to dismiss him. It seems to us that such a course is entirely inconsistent with the allegations of bias alleged by Mr Khan. None of the material before us leads us to the view that a reasonable, fair-minded observer could have formed the view that this Tribunal was biased against this Appellant.

5. It is correct, of course, that the Tribunal proceeded to deal with the matter in Mr Khan's absence and did not hear from him on any of the issues before them. He complains in his affidavit (page 44 of our bundle, paragraphs 38 onwards) that the Tribunal failed to respond to faxes and telephone messages from Mr Khan about the proceedings and that he had all along expected the date of the hearing to be reallocated. However, the Chairman's response to
Mr Khan's allegations include, at paragraph 6, her statement that Mr Khan's request for a postponement was received on 3 October, stating that he could not attend on the 9^th. A Chairman refused this request on 8 October because he gave no reason for his inability to attend. She points out that Mr Khan did not apply for a review of their Decision following the hearing on 9 October, relying on the reason for his non-attendance. We see no basis for interfering with the Tribunal's decision in the circumstances to decide to determine the matter in the absence of Mr Khan.

6. Costs

We turn then to the final ground of appeal in relation to this Decision. Mr Khan complains that the Order for costs was made in order to punish him; that the decision to order him to pay the costs was perverse; and that the Tribunal failed to give any or adequate reasons for making the decision to order him to pay costs. Mr Preston submits that it is clear from paragraph 29 that they accepted his submissions. Further, there is nothing to support Mr Khan's assertion that the Order for costs was made in order to punish him.

7. In relation to that last sentence we agree with Mr Preston. However, we do accept
Mr Khan's submissions that at paragraph 29 the Tribunal merely summarise Mr Preston's submissions and give no reasons for their decision to order Mr Khan to pay the costs in this case. We agree that their decision on that matter cannot stand. An Order for the payment of costs is unusual in Tribunal proceedings and subject to restrictions in the Rules, including those to which Mr Preston referred in the course of his submissions, namely whether there has been vexatious or unreasonable conduct in the proceedings by a party. An absent party, against whom a costs Order is to be made, is entitled in our judgment to know the basis for the decision and the reasons for it. The Tribunal in summarising Mr Preston's submissions, make no findings as to the conduct of Mr Khan which they find to be vexatious or unreasonable in relation to the proceedings, if indeed that was their decision. We therefore allow his appeal under this one ground and direct that the matter should be remitted to the Tribunal to be redetermined.

8. For these reasons Mr Khan's appeal against the Decision in this case is also dismissed save in respect of the Order for costs. There are two final matters to which we wish to refer. Firstly, Mr Khan asked if he was unsuccessful before us that we consider an application for permission to appeal to the Court of Appeal in respect of each of those appeals in which he was unsuccessful. We have done so, but we refuse his application on the basis that, after careful consideration of all the points he has made before us, we consider that none of his appeals would have any real prospect of success in relation to any of the grounds pursued.

9. Finally, we noted the observations of Mr O'Hara in his letter of 17 April 2002 that he genuinely regretted the situation in which everyone had found themselves and that he regarded Mr Khan as clearly "an intelligent man" who had during his period of employment performed his duties in a satisfactory manner. On the basis of all the material we have considered in relation to these appeals we endorse that observation; and we express the hope that Mr Khan will now be able to find new employment, if he has not already done so, where his obvious abilities can be deployed to everyone's satisfaction.