Appeal No. UKEATPA/0378/11/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
On 30 August 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MR
J ITESHI APPELLANT
BRITISH
TELECOMMUNICATIONS PLC RESPONDENT
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
SUMMARY
PRACTICE AND PROCEDURE – Bias, misconduct and procedural
irregularity
RACE DISCRIMINATION – Direct
Application to recuse refused. Neither the Employment Tribunal
nor the EAT gave the appearance of bias. The Claimant, a member of the Bar,
was rejected for interview for reasons given by the Respondent and accepted by
the Employment Tribunal as having nothing to do with race or gender. The
Respondent did not fabricate CVs for those it had interviewed.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about race and sex discrimination in the arrangements made
for the selection of candidates to be interviewed for two positions. I have
pre‑read the papers prepared by the case manager (no bundle being
submitted by the Appellant) and looked also at an additional bundle produced today
by Mr Iteshi, the Claimant, and read the relevant pages that I have been
referred to. I will refer to him as the Claimant and to BT plc as the
Respondent.
The procedural background
2.
It is an appeal by the Claimant in those proceedings against a Reserved
Judgment of an Employment Tribunal sitting at London Central under the
chairmanship of Employment Judge Sarah Goodman, in Reasons sent to
the parties on 3 February 2011 with a full explanation for the
apparent delay between the hearing and the Reasons. The Claimant represented
himself and the Respondent was represented by counsel. The Claimant claimed
race and sex discrimination in the selection procedures adopted by the
Respondent; the Respondent contended that the first job was withdrawn and there
was no appointment, and in relation to the second that the reasons why the
Claimant was not sifted to an interview stage lay in his and the other
candidates’ relative qualifications. The essential issues, therefore, were to
decide the reason why the Claimant was not sifted further following his
applications. The Employment Tribunal rejected the Claimant’s case under both
the anti‑discrimination statutes; the Claimant appeals against that
Judgment.
3.
In Haritaki v South East England Development Agency
[2008] IRLR 945 at paragraphs 1‑13 I set out my approach to rule 3.
It should be read with this Judgment. That approach has been approved by the
Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240.
4.
On the sift of this Notice of Appeal in accordance with the Practice
Direction HHJ Richardson exercised his power under rule 3(7) and
concluded the case had no reasonable prospect of success. He said the
following:
“The Notice of Appeal does not suggest any error of legal
approach on the part of the Tribunal; the Tribunal’s summary of the law in
paragraphs 34 to 38 of its reasons appears to me to be correct.
Rather the Notice of Appeal is an attack on the Tribunal’s
findings of fact. The limits of such a challenge are well known - see Yeboah v Crofton
[2002] IRLR 634 at paragraph 93. The Tribunal heard the witnesses,
considered the Claimant’s attack on their evidence and his suggestions of
fabrication of documents, and accepted the truth of the evidence of the witnesses.
It was entitled to do so, and I see no prospect of a successful attack on
perversity grounds.
Complaint is made of the Tribunal’s decisions about disclosure
and case management, including the limitation of his cross examination time.
These decisions are explained in the Tribunal’s reasons; I can see no error of
law in the Tribunal’s decisions or reasoning in these respects.
I do not think there is any substance in the Claimant’s
criticism of the sufficiency of the Tribunal’s reasons.
His suggestion that the Tribunal was biased is based on no more
than the fact that the Tribunal determined issues against him. This is no
foundation for an allegation of bias.
For these reasons I consider there are no reasonable grounds for
appealing.”
5.
Where no point of law is found section 21 of the Employment Tribunals Act 1996
deprives the EAT of jurisdiction. The Claimant was given the opportunity to
amend the Notice of Appeal or to have the case heard before a Judge, and he has
done the latter. I hear the case on more material than was available to
Judge Richardson and form my own view of the appeal. The question for me
is whether there are any or no reasonable grounds in the appeal.
The recusal application
6.
At the outset of today’s hearing Mr Iteshi made clear and
straightforward allegations against me of fraud, lack of credibility, evasion,
dodging and failing to respond. The same allegations were made against
HHJ Richardson. Mr Iteshi contends that his antecedents describe his
torture in court, during the course of which he has remained cool. All he
seeks to do is to express his displeasure at a fraudulent Judge sitting on his
case, the Judge having lost all moral ground. If I were to recuse myself,
another fraudulent Judge would be appointed. All Judges of the EAT are
discredited, but in particular Judge Richardson and myself. The same
allegation is made against HHJ Peter Clark, both of those Judges
having given full Judgments in respect of appeals made by Mr Iteshi that
failed, as has HHJ Hand QC, and so Mr Iteshi said that in the light of
these accusations I should recuse myself from today’s hearing.
7.
The Claimant misunderstands the distinction between a finding against
him and a finding that his case will not be listened to objectively. I have
heard Mr Iteshi in the past, and I have decided on the sift of his Notices
of Appeal that they have no prospect of success. I have pointed out the very
large number of appeals made by Mr Iteshi to the EAT; at the present time,
some 15 appeals have been disposed of (none in his favour, as I understand it)
and there are some 7 cases still before us, all against different Respondents.
Mr Iteshi is entitled to a fair hearing on each of the cases that he
brings before us, and that is what he will get. He has presented no evidence
sufficient to cause any doubt in the eye of a reasonable, informed observer
that I would not treat his case this morning in the same objective way as I
would others. Applying the test in Porter v Magill
[2002] AC 357 and Ansar v Lloyds [2007] IRLR 211 CA (upholding
the principles I set out UKEAT/0609/05, and Burton P followed [2006] ICR 1566) I
reject the application for recusal.
The legislation
8.
The legislation applied in this case is not in dispute; it is the Race Relations Act 1976
in the form known as direct discrimination, and it might also be said to be
indirect discrimination in applying a condition or criterion to the recruitment
of the Claimant. A similar claim was made under the Sex Discrimination Act 1975.
The Claimant said in his claim form that he was not considered for either of
the two jobs because of his race or ethnicity or gender. The Tribunal set out
the relevant law in paragraphs 34‑36 of its Judgment, and the
relevant principles in paragraph 38, relating to the burden of proof and
the offering of explanations by a Respondent; none of that is disputed before
me today. Mr Iteshi relies upon his Notice of Appeal and his oral
argument addressed to that Notice of Appeal.
The facts
9.
The Claimant is self‑described as a black African UK resident of
Nigerian nationality and Igbo ethnic origin. The Tribunal set out the approach
it was to take to the evidence at the outset:
“4. It is important to note that much of the Claimant’s case
relied on challenging the authenticity of documents. So it is necessary to
make some comment in our findings as to the witnesses’ truthfulness. We
thought that both Mr Keith and Mr Edwards were frank and careful
witnesses, who were honest about the extent of their records, and who would concede
points in evidence. Of the Claimant, we accepted his factual evidence, but as
would become clear, we could not accept the construction he put on some events,
or his interpretation of them.”
10.
The Respondent sought to recruit a paralegal and an employment lawyer,
sometimes described by BT as a contentious lawyer. The Claimant applied
online. He has a number of qualifications, including his call to the Bar in
2007 and undergraduate and postgraduate qualifications. He has not undergone pupillage,
and so cannot practise as a barrister, but of course can offer services of a
legal nature.
11.
The Tribunal found that as to the paralegal post a recruitment freeze
was imposed after the point at which the Claimant had applied, and there was no
recruitment. A person who had been approached as a result of a different
exercise, known as Tom who appears to be white, might have been recruited, but
the freeze was placed upon him too. The decision‑making in this is
through the Head of Legal. The Tribunal accepted evidence of the applications
for the paralegals. It resolved a dispute about how the freeze came to be
imposed and accepted the Respondent’s case upon this. It did so by accepting
explanations that rang true.
12.
The second post was that of the employment lawyer. The requirements for
the post were good advocacy skills. The Claimant could not show that he was
entitled to practise as a barrister for want of the pupillage. He showed that
he had obtained some experience of litigation, but ultimately the sift ruled
him out by way of his shortfall in the requirements for the job.
13.
Three candidates were thought to be suitable for interview, and in fact
two were interviewed. The Tribunal found that they had higher qualifications
than the Claimant and better experience relevant to the job description.
Important to the decision‑making was that both were entitled to practise
as lawyers, both barristers. The Tribunal upheld the Respondent’s case in the
following way:
“31. The Respondents say that the Claimant’s experience came
nowhere near their requirements, either in being qualified to practice as a
barrister, or in having experience of working in a team with a large case
load. Having heard the Claimant’s answers about his CV, and assessed it
ourselves, we thought this was an accurate and reasonable assessment. We also
thought that it was quite clear that candidates 1 and 2 who were
actually interviewed had far more convincing qualifications in terms of
experience of teamwork, managing a case load, and advocacy in the Tribunals.
32. It is a mark of the fact that the Claimant did not really
dispute this that his real case was that these CVs were not genuine. In
opening, he alleged that these CVs had been taken from a pool of CVs, and were
not in fact those of the candidates who had been interviewed. The grounds on
which he asserted this were:
(i) that no emails had been produced
from the candidate when filing their applications.
(ii) that it was well known that
black women did not go to Oxford or Cambridge.
The Respondents made the point that although some of the
personal information has been redacted, it would not have been too difficult
for the Claimant to make enquiries about the background of these candidates had
he wished to. The Tribunal, having heard the evidence, had no reason
whatsoever to doubt that these CVs are genuine, and are in fact the CVs of two
people who applied for the same job as the Claimant and who were interviewed
for that post.”
14.
That indicates the Claimant’s approach to the case, which is the subject
of a further note provided by the Tribunal as part of its Judgment. The
Tribunal noted the following:
“47. On the morning of the hearing the panel were handed copies
of an email the Claimant sent to London Central ET dated
17 November 2010 headed: “another false injustice is set to happen in
the London Central Employment Tribunal (between today and tomorrow).” The
email covers two and a half sides of A4, summarises the points that the
Claimant wishes to make, and expresses concern: “that the Tribunal will ignore”
these points in its decision, and says: “the Tribunal will most likely
promulgate an evasive judgment adopting everything BT is saying despite my
challenges without any justification as to why what I say cannot be believed.
The Tribunal will equally fail to draw any inference from the failure to
disclose relevant documents.”
15.
It then went on to note how it resolved the dispute about disclosure,
and refused to order further disclosure. It also imposed time constraints on
the Claimant’s cross‑examination; that is in accordance, of course, with
the direction of the Lord Chief Justice to all courts to manage their time
carefully, and does not appear to be the subject of any independent ground of
complaint.
16.
The Tribunal then in the substance of its Judgment examined the case the
Claimant had made and held that he had not overcome the requirement that he
produce evidence which could on its own show sex or race discrimination in
accordance with the two‑stage test in Igen v Wong [2005] IRLR 258. It accepted the Respondent’s explanation, which may be given, as it
correctly noted, at the same time (see Network Rail Infrastructure v Griffiths‑Henry
[2006] IRLR 865), that there had been a freeze and that explained why no one’s
application was taken further for the paralegal. As to the employment lawyer,
the Respondent’s case was accepted: that the Claimant did not meet the
qualifications for the job by way of qualifications, experience and so on, and
therefore the Claimant had not proved such facts as would cause the burden of
proof to shift. It did make some criticisms of the way in which the Respondent
dealt with the further stages.
17.
The Tribunal was considering the claim that the Claimant had not been
treated fairly in his application, in that he had not been sifted into an
interview stage. What happened thereafter was that neither of the two women
who had been interviewed and recommended, one of whom was preferred, was in
fact appointed, because a manager decided that the appointee should be a solicitor.
A white woman solicitor was appointed. The Tribunal said this:
“We comment at this point that it is not necessary for the
Respondent’s case to succeed that in fact the interviewed candidates were both
black. Their experience and qualifications fitted the Respondent’s
requirements, which in our view were reasonable and necessary. The Claimant’s
did not. We should also mention the unexplained decision by Mr Jobling
not to accept either of them, because he now said he wanted solicitors. If either
woman had brought a discrimination claim, this would certainly need to be
explained. But it does not suggest that the decision not to shortlist the
Claimant needs to be explained or that race or sex was a reason for the
Claimant not being interviewed. The Respondent’s reasons for not interviewing
have convinced us as genuine, and relevant to the job.”
The Claimant’s case
18.
Naturally the Claimant contends the Tribunal lived up to his pre‑trial
publicity and was biased against him. In strong terms he criticises the
conduct of the Employment Tribunal and its decision as being a classic case of
judicial bias. Any informed observer would see that the Tribunal was
predetermined to find against him. The Tribunal spent more time in
manipulating or embellishing the Respondent’s very bad case than promulgating a
proper Judgment. It refused to accept useful evidence and to order vital
disclosure. No steps had been taken by the Claimant to comply with the
Practice Direction and to give further particulars of that or to provide an
affidavit of evidence; nevertheless, the gist of the complaint is clear.
19.
The Claimant contends that the principal ground of appeal is evasiveness
and perversity, and rightly points out that this Tribunal, although there is a
high hurdle against success in such cases, does allow them from time to time
(see Yeboah [2002] IRLR 634 CA). The Tribunal spent time
patching up the Respondent’s case and deviating into falsehood in its desperate
attempt “to deny me justice” and as a result reached a conclusion that was
perverse. Secondly, as is so often the case in this Tribunal, such a ground is
accompanied by a Reasons challenge. Insufficient reasons were given by the
Tribunal for its decision when, the Claimant contends, every single fact was
disputed.
The legal principles
20.
The legal principles are not in dispute in this case, as I have
indicated above. As to fairness, a proper opportunity must be given for the
case to be presented and for decisions to be made as a result of the evidence
and the submissions.
Conclusions
21.
For essentially the same Reasons as are given by Judge Richardson,
this case has no prospect of success. As to the paralegal position, the
dispute before the Tribunal was as to why the Claimant had got no further in
his application. The Tribunal accepted management’s evidence as to the recruitment
freeze. Tribunals and the EAT see many of them in the present economic
climate. That was the reason why the Respondent took the matter of paralegal
no further. It was irrelevant what the Claimant’s background was, because no
one was appointed of the 40 or so applicants, not even Tom. That is clear and
it shows that race and sex discrimination played no part.
22.
As to the employment lawyer position, the Claimant did himself no good
in his assertion that the Respondent had fabricated the material relating to
the two black women whom it had interviewed and whose CVs it had examined. Objectively,
the CVs placed those two women in a higher category than the Claimant by way of
experience relevant to the job and qualifications. For him to assert that
these must be fabricated because it is well known that black women did not go
to Oxford or Cambridge was an easy assertion for the Tribunal to reject.
Plainly accepting the evidence of the Respondent of the existence of, and
qualifications of, these two women, it is obvious how wrong the Claimant is.
At least two black women have been to Oxford and Cambridge, and there are many more,
as is apparent to anybody with any familiarity with the modern legal professions
and admission of candidates to Oxford and Cambridge. It is an unworthy
assertion. One does not know how that assertion would have been treated by the
two women professionals. The Respondent’s case as to their qualifications was
accepted. They were better qualified; that was a matter for the Respondent to
decide, and the fact is that both of those candidates were black. The Tribunal
noted that it was not necessary for the Respondent’s case to succeed to show
that it in fact interviewed two black candidates. The basis of this case was
that the two candidates had the qualifications that they did, and the Tribunal
came to a permissible conclusion in deciding that this was nothing to do with
the Claimant’s race or gender.
23.
Nor did the Claimant assist his case by making the unwarranted
allegation against the Tribunal in his pre‑trial utterance. It is worth
reminding this legally qualified Claimant that bias means a predetermination
based upon an imperfect approach to the evidence or a stereotypical adverse
opinion. Yet that is exactly what Mr Iteshi had before this Employment
Tribunal descended upon the case. He accused it of being biased before he had
even faced the members of this Tribunal. Fortunately the Tribunal noted this,
and I detect no trace of any bias against the Claimant either in the form of
the pre‑hearing publicity or in what he has told me about the conduct of
the case.
24.
As Mr Iteshi carefully puts it in measured terms, being a member of
the Bar making allegations of fraud by Judges might put him at risk of
sanction. I do not know whether it would or not - I can weather his baseless
assertions. But in this court he already has some 15 or so failed appeals. It
may be that the Attorney General’s office, who has powers under Employment
Tribunals Act 1996 s33 and has raised an enquiry of the Registrar, will
wish to consider the history. Those are matters, however, for the Attorney
General’s office and for the Registrar, and not for me.
25.
I have pointed out Mr Iteshi’s sad record in the EAT. It appears
to me that he joins in a grim carousel. He needs a job, applies and fails to
get interviewed or appointed, he brings proceedings in the Employment Tribunal,
which fail, and then he brings proceedings in the EAT, which fail. The basis
of his approach to all of these cases is that he will not get justice in our
Tribunals. He employs absurd logic, which he expressed to me in graphic terms:
he has never taken drink or unlawful drugs, he is not a madman, and so the
Judges who do not follow his submissions and do not find in his favour must be
wrong and biased. There is no logic in that proposition. This application is
dismissed.
Appeal
26.
The application for permission to appeal is refused. It has no prospect
of success, and there is no compelling reason for Mr Iteshi to be heard by
the Court of Appeal. He again makes the contention that I am a fraudulent
Judge; we differ.
