Appeal No.	 EAT/55/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 June 1997

Before
HIS HONOUR JUDGE J HULL QC
MRS M T PROSSER
MR J A SCOULLER

MR B NOORANI	APPELLANT

MERSEYSIDE TEC LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J TAYLER
(of Counsel)
Messrs Thompsons
Solicitors
Richmond House
Rumford Place
Liverpool L3 9SW	
For the Respondents	MR S JONES
(of Counsel)
Messrs Mace & Jones Grundy Kershaw
Solicitors
Drury House
19 Water Street
Liverpool L2 ORP	

	JUDGE J HULL QC:     This is an appeal to us by Mr Bahram Noorani, represented by Mr Tayler of Counsel, against a decision of the Industrial Tribunal sitting at Liverpool under the chairmanship of Mr Reed with two industrial members, who sat to hear his complaint of racial discrimination on 13, 14, 15 and 16 November 1995.  They made their decision on 12 December 1995 and sent it to the parties.  It was that there had been no racial discrimination.  They had heard a good deal of evidence.  I will just go through the most important dates.

	Mr Noorani began his employment with the Respondents, the Merseyside Tec Ltd (I understand TEC to mean the Training and Enterprise Council, those are what the initials relate to) in Liverpool, on 6 December 1993.  There were various troubles from an early stage in his employment:  complaints of inefficiency; inappropriate behaviour; and various matters which we do not need to go into, I think, in detail.  He was given a final written warning on 6 December 1994, the anniversary of his first employment and then there was a social party on 16 December 1994, when it was alleged that he had behaved very badly indeed, and been guilty of very unpleasant things.  There was a disciplinary enquiry and he was dismissed on the ground of misconduct on 23 December 1994.  He appealed and on 12 January 1995 his appeal was dismissed.  Then on 10 February he made his complaint of race discrimination.  His appeal is on two grounds.  Before I deal with that I must go very shortly to the decision.

	At the hearing the Tribunal went through the history of the matter and they found that there were four matters which gave them concern and they list them in their decision.  They say that a witness, a Mr Yates, who was called by Mr Noorani, was a witness whom they believed and they said that accepting his evidence it undoubtedly meant that evidence which was relied upon by the Respondents, that Mr Noorani had been guilty of flouting instructions which he had been given, was wrong.  It was either untruthful, or it might be mistaken.  They said that they were not prepared, without hearing the source of the evidence (Ms Dickinson) to say that she was lying, but they were prepared to assume, for the purposes of their decision, that she was being untruthful.  They said, “We shall assume, however, on a hypothetical basis, that she was not telling the truth”.

	They then went on to discover that there were irregularities in the way in which the Respondents had dealt with the Applicant.  They said that one gentleman, a Mr Newey, had taken an appeal against the final written warning at a time when he, Mr Newey, had made a most serious allegation against Mr Noorani.

	They said that:

“Secondly, Miss Carr [another person in a managerial position] took the decision to dismiss in connection with the events of 16 December when she had actually been involved, in that she had an allegation herself against Mr Noorani of improper behaviour at that function.”

	They go on to say:

“Thirdly, Mrs Wheeler [a Personnel Manager] and Mr Clayton jointly decided to dismiss the appeal against dismissal whereas the TEC’s Human Resources Manual states ... that the appeal should be heard by ‘the appropriate senior manager’ ... [which would be a person other than Mrs Wheeler].”

	And they say, on these three grounds, they believe the TEC’s actions are open to criticism.  Finally, the Tribunal said:

“However, we are still not satisfied that these actions amounted to race discrimination.  We take particular note of the counselling and advice given to Mr Noorani throughout 1994 and the genuine and serious efforts made by the TEC to assist him through that period.  We do not believe that any shortcomings in the procedures were a consequence of Mr Noorani’s race or colour, we believe the TEC would have treated any employee in Mr Noorani’s position in precisely the same way as they treated him.”

	As Mr Tayler puts it in, I think, a perfectly proper way, these were serious matters but they would have treated anybody, regardless of his race, just as badly.

	On the basis of that decision (which I certainly have not done full justice to by reading all the most important parts of it) Mr Tayler mounted to us a very interesting and important argument.  He told us that it did, to some extent, break new ground.  It rested on important decisions in the Court of Appeal and in the Court of Session, to which we were referred, and he suggested that the approach of the Industrial Tribunal was entirely inadequate.  They had not gone far enough, in dealing with the matter, in saying what inferences they should draw and finding facts upon which they could draw those inferences.

	We have not heard from Mr Jones on those topics.  Mr Jones said that, in part at any rate, the argument was quite simply inadmissible because it involved referring to evidence and no order had been made for evidence, but apart from that we have not heard Mr Jones on that interesting and important topic.  We therefore, for the moment at any rate, say no more about that.

	There were two grounds.  That was the second ground.  The first ground of appeal relates to the question of witnesses.  Mr Noorani, although he had the benefit of advice at certain stages apparently, did not at the material time when he was pursuing his application and appearing in front of the Industrial Tribunal have, so far as we know, any advice and he was acting in person before the Tribunal and in the preliminaries.

	What is said on his behalf now by Mr Tayler is this, that he made perfectly proper, though perhaps unskilful, applications to the Industrial Tribunal before the hearing for witness orders, in respect of certain witnesses, and that when those were refused in the first instance he renewed them in respect of fewer witnesses.  And, says Mr Tayler, the reasons given in respect of those witnesses were inadequate to support the refusal of the learned Chairman concerned to give witness orders in respect of those witnesses.  He referred us to the case of Dada v Metal Box Co Ltd [1974] ICR 559, a decision of the National Industrial Relations Court chaired by Sir John Donaldson.  The Industrial Relations Court said, at page 563 D:

“We are quite clear that tribunals have a discretion in deciding whether or not to issue witness orders.  There is no automatic right to witness orders.  But that discretion must be exercised judicially and it must be exercised with due regard to the fact that a tribunal is dealing with litigants in person who may not have the benefit of any advice.”

	The word “judicially” used there caused me, at any rate, a little difficulty.  It certainly is not a matter of deciding inter partes, but in a general way it must mean that the Chairman, if it is the Chairman at the Industrial Tribunal who is asked to deal with the matter, must deal with it by directing himself properly on matters of law and consider the matter, so far as he can, impartially and objectively.

	The Industrial Relations Court went on:

“It seems to the court that there are only two matters of which tribunals should be satisfied before they issue a witness order.  The first is that the witness prima facie can give evidence which is relevant to issues in dispute.  For that purpose they will no doubt wish to ask the applicant what evidence can be given by the person who is the proposed subject of the witness order.  We do not suggest that the tribunal should ask the applicant to give a full proof of that evidence, but applicants should indicate the subject matter of the evidence and show the extent to which it is relevant.  The second matter of which the tribunal should be satisfied is that it is necessary to issue a witness order.  In the present case the tribunal seem to have taken the view that it would be wrong, indeed, in their letter of March 11, 1974, they say that it would not be possible, to issue a witness order, unless they could be satisfied that the person concerned was unwilling to attend voluntarily.  We think that this policy is erroneous to the point of amounting to an error of law.

	They go on to say:

“We do not seek in any way to fetter the discretion of tribunals.  What we are saying is that tribunals should be satisfied that the witness can give relevant evidence and that it is necessary to issue a witness order.  But if they are satisfied on both those matters they ought to issue such an order.”

	And they then envisage the types of case, or some types of case, in which it might be necessary or useful or proper to issue such an order, for example, a witness who is employed and whose employer will not be prepared to let him go to court unless he is compelled by an order, something of that sort.  Now we must look to see what happened here.

	On 21 October Mr Noorani wrote to the Tribunal sending a list of no fewer than 36 witnesses.  He calls it 37, that may because he is counting himself among the witnesses, although only 32 witness orders are required, he said, and he sends the list.  He then does something which Mr Tayler says most litigants in person would not do, he sets out matters in respect of which he says they can give material evidence.  Taking one witness as an example, a Mr Bryan Adekoya, there says the Applicant:

“This witness has been working for M/Tec [the Respondents] in excess of 3 years.  He is a black Nigerian who has also experienced unfair behaviour and he has sought alternative employment but with no success.  “

	He goes on to give considerable detail.  He says:

“... following my dismissal, I have found that M/Tec suddenly decided to offer Mr Adekoya a £3,000 pay rise immediately upon them becoming aware that I intended to take my dismissal to an Industrial Tribunal.”

	Mr Noorani said that Mr Adekoya had never been offered a pay rise or promotion before and he said that Mr Adekoya was reluctant to be a witness and he said:

“Mr Adekoya is a very important witness and will be able to express his treatment at M/Tec and is, I understand, already complaining about racial discrimination himself against M/Tec through the Law Centre (Liverpool) resulting in the conflict of interest, as detailed.”

	There was another witness, a Mr Tonye Iniabere, number 15 on his list; concerning him, he said:
“This witness is also a black Nigerian who has experienced bad treatment by M/Tec.  Mr Iniabere sits next to witness No.1, [that is, of course, Mr Adekoya] and is well aware of what is going on within the TEC and will therefore be in a position to express his opinions in support of my claims.  Mr Iniabere is a family man ...”

	And he says that he is a member of an ethnic minority, so that was another witness.  Nor are these the only witnesses who evidently were members of racial or ethnic minorities, referred to in this list.

	Now one can say about that, that as the Industrial Tribunal Chairman at once saw, if anything like this number of witnesses was going to be called the estimate of five days for the hearing of the case would be grossly exceeded and, indeed, it would be perfectly fair to say that it was hard to see how some of them could be useful witnesses, or anything more than witnesses who would simply repeat something that perhaps had been said before.  An added note of caution might well suggest itself when one sees that one of the witnesses, who is to be the subject apparently of a witness order, is the Applicant’s wife, although we were told that they were, in fact, living apart at the material time.

	So having been given their addresses and other particulars the Chairman of Tribunals caused a letter to be written as follows at page 52, noting that Solicitors were no longer acting.  The letter said:

“A Chairman of the Tribunals, to whom your letter was referred, has instructed me to write and say that the vast majority of the people in respect of whom you seek witness orders for, do not appear to be able to give evidence that is necessary for the fair disposal of this matter.  Furthermore, this matter has been listed for 5 days on the basis of an express request from your former representative ...  It clearly will not finish in that period if such a large number of witnesses are to be called.
In the light of the above the Chairman would like you to re-consider your request.”

	There was not much time left but the Applicant did re-consider his request.  He said that the majority of the witnesses were, in fact, willing to attend.  That was what he said at page 54 in a letter which he wrote on 1 November 1995.

“[They] are, in fact, willing to attend my industrial tribunal but due to a number of reasons, such as; time off work, cost, obligations to their own employer, etc., they would find it very difficult to attend unless an actual witness court order is issued making it appear obligatory for them to be present and thus safeguarding their own careers.”

	Then the Chairman said, in a letter of 7 November 1995, as follows:

“A Chairman of the Tribunals, to whom it was referred, has instructed me to write and say that the witness orders sought will not be granted.  Quite apart from the fact that (contrary to your assertions) there is no possibility of the case finishing in 5 days if they are, it is important that you understand the nature of the hearing and the requirement of relevance in respect of any evidence given.
The major (although clearly not the only) allegations of discriminatory behaviour relate to the warning and the dismissal.  Referring to the annexe to the Notice of Appearance, the relevant allegations against yourself are at paragraphs 13 and 17.  Evidence relevant to this issue would include a statement from someone who witnessed the alleged acts of misconduct to the effect that they did not occur.  From the list forwarded by yourself, there does not appear to be anyone falling into that category.
The same applies to the other allegations of discrimination.  Is there anyone who you wish to call who will actually contradict anything in the Notice of Appearance?  If so, in what respect?  You should immediately inform us if there is such a witness, in order that further consideration can be given to a witness order.”

	The Chairman urged Mr Noorani to consider carefully whether he should not be represented if he possibly could be.

	Mr Noorani wrote on 7 November and said that he wished the decision to be reconsidered and he suggested that 9 witnesses should be called.  He added one more later on 8 November.  To that there was a detailed reply by the Industrial Tribunal.  I am not going to go right through it, but it said that a witness order had been granted in respect of Mr Yates.  That witness, as it happened, was one who, in the view of the Chairman, did, indeed, give direct evidence going to the issues in the case.  His evidence was accepted and clearly disproved part of the Respondent’s case in the view of the Industrial Tribunal.  We were asked to pay attention to that as some evidence that there was nothing vexatious or irresponsible about this request.

	Then the Tribunal Chairman went on to deal with the individual witnesses.  He said:

“Mr Adekoya:
You believe he will give evidence that he (Mr Adekoya) was discriminated against in that he did not get a promotion.  If we were to hear such evidence it could only be on the basis that it tended to suggest that the respondents were ‘generally’ motivated by racial considerations - it would have no direct relevance to the claim brought by yourself.
Furthermore, to determine whether any relevant evidence could be given would involve the tribunal in effect determining a claim of race discrimination on Mr Adekoya’s behalf (which he has not even made).  This would be a ‘trial within a trial’ on a matter which does not relate to the main issues and we cannot countenance it.
The suggestion that this witness has been made a pay rise in order to discourage him from testifying for you is pure speculation and again is not relevant to the primary issues.”

	With regard to Mr Iniabere the Chairman caused the clerk to write:

“For the same reasons as in Mr Adekoya’s case, his evidence cannot be relevant.”

	So this was, it appears to us, not exercising a discretion, but saying to this litigant in person, “This evidence is irrelevant”.  The same applied to other witnesses in the case, for example of Mr Ahmed.

	Now what is said by Mr Tayler is this, that this ruling is quite plainly wrong as a matter of law.  It cannot be said that the evidence of these witnesses is irrelevant.  It might, if properly adduced and attended to by the Tribunal, still amount to absolutely nothing.  It might not go to any of the issues in the case.  But if, as the Applicant is saying, these are other fellow employees who have been ill-treated on the ground of race; discriminated against on the ground of race, by these same employers, during the time that Mr Noorani was employed by them, then it might very well be that if that evidence was properly substantiated and considered it would go a very long way to proving the Applicant’s case that he had been discriminated against; that there was, as Mr Tayler put it, “a culture of discrimination” or practice of discrimination.  Of course, anybody with any experience of court or tribunal work would say, “Well this is going very wide, it is going greatly to lengthen the proceedings.  It is a source of regret if this has to be gone into”.

	All those might very well be considerations in so far as discretion came into this matter and, of course, the Chairman did have a discretion.  He was not purporting to exercise his discretion.  It seems to us that here he was saying, “This evidence is not relevant”.  He had said in his previous letter, “It is important that you should realise the importance of evidence being relevant”, and it seems to us therefore that here was a litigant in person, not only being refused his request, but refused his request on grounds which were manifestly wrong in law.  It is perfectly true that the Chairman might have written, “This is presumably the position and in those circumstances I am not going to exercise my discretion to issue witness orders now.  At the proper stage in the hearing, having heard your evidence and perhaps evidence of others, we will ask you to raise this matter again.  Please bring the witnesses if you can persuade them to come voluntarily.  If you cannot then we shall have to decide whether we are prepared to issue witness orders and whether the evidence, when we have been told as much about it as can be, is relevant.  You must please bring, if you can possibly obtain it, a signed statement or preferably an affidavit from each of these witnesses and the matter will then be gone into at the hearing”.

	Although that may not be the common course, there are cases (and this may well be one) in which that would be the only sensible way to proceed, because otherwise a large number of witness orders might be issued; it might emerge when the matter was looked into that, in fact, there was no useful purpose in calling those witnesses and, indeed, as happens so often in everyday life in courts, when one or two of them have been called, the result might be so disastrous to the Applicant that even he would see that he would be well advised to call no more such evidence, but that is all speculation.

	The fact is that here was, in our view, a plain error of law in the reasons for refusal of, at any rate, some of the witness orders and probably the most important witness orders which were being sought.  We are told that the matter was, indeed, raised again at the hearing.  We are not told whether it was re-opened again; whether the Chairman and his Members said, “Well this was only a preliminary ruling, we must look into it again.  If we reach a different conclusion we must consider afresh whether orders should be issued”.  We know nothing of those matters and it does appear to be a matter which was so briefly dealt with that the learned Chairman, who presided, has nothing to tell us about that matter.  Whatever happened, it was not a case of re-opening the matter anew.

	So what are we do?  It may very well be, as we say, that in the cases of Mr Adekoya, Mr Iniabere, Mr Ahmed and others it might turn out that their evidence amounts to nothing, or that they are not prepared or not able to give the evidence which the Applicant thinks they can.  There may be all sorts of reasons why it might or might not be relevant.  There is a three months limitation period for complaints of racial discrimination and it might be held that this behaviour, even if it were evidence of racial discrimination, was so unrelated, both as to the people guilty of it and as to the connection with the Applicant himself, that it was of no assistance to the Tribunal at all in the issues which they had to decide.

	But we do find a plain error of law on which we have been, quite properly, addressed by Mr Tayler.  We are satisfied by the arguments which he puts forward that it is such an error.  What are we do?  We cannot say that this was a merely marginal matter and would, in our view, for what it is worth (and it would be worth perhaps not very much) not have affected the outcome.  We cannot say that and there is therefore an irregularity which may or may not be important.

	We think, in the circumstances, that this hearing and its result cannot stand.  Concerning witnesses whom Mr Noorani wished to call, he was told “their evidence is irrelevant and inadmissible and on that ground no witness order will be granted”.

	We think that the Tribunal could have approached the matter in the way which I tried to outline without making perhaps any rulings of law, but saying, “In our discretion we will postpone this request and we will consider it again at the hearing”.  If more time had been available, they might have said, “We will hold a Directions Hearing and the Chairman will sit on that day and will hear all that you wish to say about the evidence in this case, the evidence you wish to call.  We will look at any witness statements or affidavits you wish to lay before him”.  He might have done those things.  Those things were not done and, in so far as there was an enquiry at the hearing, we are not, in any way, satisfied, and we cannot be on the present basis, that it put any matters right which were wrong.  There was a suggestion that we, ourselves, should say that witness orders should have been issued.  That is going, with respect, much too far.  We are not in a position to substitute our discretion for that of the Industrial Tribunal.

	We think that the proper course to take is to say that we allow the appeal to this extent.  The matter will be remitted for a hearing in front of a differently constituted Tribunal and Mr Noorani must renew any applications which he wishes to make for witness orders and the Industrial Tribunal Chairman will deal with them in the way which he, in his discretion, thinks right.  He may think it right to refer to what we have said as a possible method of proceeding, but at any rate we have no doubt that he will not repeat the errors of law which we have referred to.

	A new hearing will take place.  It may, or may not be that it will emerge that one or more of those witnesses referred to in Mr Noorani’s letters will be called to give evidence, which is admissible and which will perhaps be of decisive effect.  We cannot say anything about those matters.  What we can say is that we have been satisfied that there have been these errors of law.

	We cannot allow the decision to stand and that is the decision of us all.  We strongly urge, if it can possibly be arranged, that Mr Noorani should be represented and if not represented, then at any rate advised.  To put forward a case of the sort that he is putting forward involves matters of complexity and difficulty in law.  What has happened in this case would, we think, probably not have happened had he been represented by Solicitors throughout.