Appeal No.	EAT/1330/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 June 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR P R A JACQUES CBE
MISS D WHITTINGHAM

MR S J O'SULLIVAN	APPELLANT

LONDON BOROUGH OF EALING	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR B BURGHER
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

JUDGE J ALTMAN:

1.	This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 26 July 1999 when they dismissed the Appellant’s claims for race discrimination.  The matter comes before us by way of preliminary hearing, to determine whether there is point of law which merits argument in full before the Employment Appeal Tribunal.  Mr Burgher has appeared on behalf of the Appellant under the ELAAS scheme and we wish to record our indebtedness to him for giving of his time and considerable expertise, without remuneration in presenting to us all the arguments that could properly be raised on the Appellant’s behalf.  

2.	At the heart of the complaint of race discrimination, as described by the Employment Tribunal, was a conflict of evidence between the Appellant and the Respondent’s witnesses. On a number of grounds, the Appellant argues that the decision of the Tribunal demonstrated an error of approach so as to make the final decision unreliable and arguably wrong in law, it being necessary for him to prove no more at this stage.  He refers to four areas as informing the approach of the Employment Tribunal, but essentially what is said is that the Employment Tribunal’s analysis of the facts was cursory and cavalier and that it is not apparent on the face of the decision as to why the Respondents witnesses were preferred to that of the Appellant. It is said that there are four indicators to that conclusion coming from an examination of the facts:
1)	The law
2)	The way in which one member appears to have fallen asleep
3)	This was followed by the way in which the Employment Tribunal then handled that allegation 
4)	Finally, that the Appellant was appearing in person  

3.	As to the facts, the Employment Tribunal set out the evidence in their decision.  We pause to say that one comment, and as we understand it this is not really a criticism, was as to the brevity of the decision. However, we observe that this was a case that was accomplished within one day and the length of the decision does not appear in itself to be such as to prevent full consideration of all the issues.  The way in which the case unfolded and the Tribunal sought to clarify the issue was described in paragraph 2 of the decision.  They then say at the end of that paragraph:
2. “The Tribunal found it difficult to follow the (Appellant’s) arguments in relation to his having suffered a detriment but decided that it would first determine whether any action had been taken against him on racial grounds and that if it did find that such action had been taken it would consider whether it should adjourn the case in order that the (Appellant) could properly establish if he could (show) that he had suffered a detriment.  It was in respect of these matters that we considered the (Appellant’s) claim.”
It appears that the Employment Tribunal heard the evidence of the Respondents first because they knew what the Appellant’s case was and wanted to hear the Respondent’s answer to it and no doubt, with an un-represented party, it was of assistance to him as well to know in advance what was going to be said.  

4.	The Employment Tribunal then set out what the allegations were.  They related to allegations in statements by Tamina Khan and Ms Pardeep Johal, referring to the racial origins and colour of the skin of the Appellant.  In using the word ‘racial’ we are referring to the statutory way in which that word is interpreted, rather than any other use of the word.  In paragraph 4 the Employment Tribunal then set out the evidence that they had heard.  Before referring to that, we pause to emphasise that of course it is not necessary for a decision of an Employment Tribunal to set out all, or indeed on occasions any, of the evidence that they have heard.  Very often, Employment Tribunals give an indication of the evidence they have heard, so that it can be shown on what material their analysis is being based, and this paragraph was clearly a very brief summary of all the evidence they had heard.  It is helpful to read it all: 
4.“Evidence was given in respect of these remarks by Ms Khan and Ms Johal who were impressive witnesses.  We were quite satisfied from the evidence which they gave that there was no substance whatever in the (Appellant’s) claims.  Ms Khan said that she was fully aware of racial issues and that she had never made any remarks about his colour or about his Irish nationality.  She had once found a large number of books in the porter’s lodge which belonged to the Respondent’s library services, was told that the (Appellant) was responsible for them and then finding that there was no evidence that they were booked out to the (Appellant), had returned them to the shelves and had later asked about the (Appellant’s) interest in Irish cookery.  Similar evidence was given by Ms Johal who said, as did Ms Khan that the (Appellant) could be difficult and argumentative but denied ever having made remarks of any kind which could be construed as being of a racial nature.  As we said we accept the evidence of these witnesses.”

5.	In the next paragraph the Chairman goes on to deal with other evidence that was given and they refer to the evidence Ms Essex and Mr Ludbrook but the only evidence which they actually describe was that of Mr Ludbrook in these terms that: 
5.“Mr Ludbrook said that there had been remarks but these seem to have been generated entirely by the (Appellant) taking exception to the fact that people thought that he was of Spanish, Greek or Italian ancestry.”
The Employment Tribunal then sets out a passage, which is criticised by Mr Burgher, as follows:
5.“We do not propose to repeat the evidence at length except to say that we did hear from the (Appellant) and that we are not convinced from the evidence which the (Appellant) gave and from hearing the Respondents’ witnesses that the (Appellant) was ever subjected to racial discrimination either on the grounds of his ethnic or national origins as Irish or indeed on any other ground and consequently we find that the (Appellant’s) claim is not established. 

6.	The Employment Tribunal deal with matters of illness, consequent upon the discrimination which the Appellant alleged, which are not matters that are raised further before us, and indeed the Employment Tribunal had set themselves the task in any event of dealing with the preliminary question of discriminatory behaviour.  

7.	Essentially, two matters are said: 
1)	First of all, it is suggested that in assessing the evidence of the Respondents’ witnesses, there is no reference within the decision to other evidence, given in different form by the Respondents’ witnesses, and inconsistent with that recorded on the face of the decision, which should have been taken into account as inconsistencies, tending to undermine the veracity of their evidence.  Reference has been made to the grounds of appeal, which on page 5 of the grounds of appeal, it says this:  Tehmina Khan says in paragraph 4 page 2 of her statement line 10: 
4.“That was when I found out about his Irish identity.”  
And the point is then made, under oath she confirmed this was 1997.  
“I queried her, for 5 years 1992 – 1997 she was unaware of my Irish background with a name like Steven James O’Sullivan. This is not consistent with J Smith’s statement regarding Amyn Jumani.  Steve took offence at being called Asian in 1993 or 1994 and still T. Khan who shared the same desk as G. Smith had no idea I had an Irish identity.”

8.	To some extent that passage is rearguing the point and we do not take note of that, but the suggestion is made that there is reference there to the fact that the witness, Temina Khan could not have been telling the truth for she must have known about Irish identity, before the moment when, in her statement, she said she had found about it.  In addition to that on page 7 of the skeleton argument it says this: 
Temina Khan says in paragraph 8 of her statement “his extreme reaction when people mistakenly referred to him as Asian. And the efforts he made….etc.” Does she seriously expect anyone to believe that it was a mistake?”
It is suggested that those demonstrate inconsistencies in the evidence, for in the decision of the Employment Tribunal, they record her evidence as being that she had never made any remarks about colour or Irish nationality.  

9.	About that, it seems to us that what is clearly being referred to by “remarks” are the offensive remarks of which the Appellant complained and which was the central issue of fact which the Employment Tribunal had to determine.  It does not seem to us that there is an available argument that the Employment Tribunal was first of all saying that this witness had never made any reference whatsoever in any context to those matters, but simply that she had not made the offensive remarks referred to.  Even if we are wrong about that and what is being said is that there was an inconsistency in the evidence, which the Employment Tribunal should have taken into account.  We would observe that there must be all sorts of elements in the evidence which an Employment Tribunal takes into account and which informs its evaluation of the witnesses. It would be an impossible task to expect an Employment Tribunal to go through and set out in their decision, all the written and oral evidence that is given and show, on the face of it, a clear analysis of it.  
10.	The approach of the Employment Tribunal is clear.  They heard witnesses who impressed them as witnesses, when subject to cross-examination about inconsistencies and other matters, as well as when giving their evidence in chief.  They believed them.  It is always difficult, when an Employment Tribunal simply says ‘we believed x but we did not believe y’. Where in a case such as this an Employment Tribunal has set out the substance of that evidence, and the clash that exists, it seems to us that they have fulfilled all that in law they are bound to do in enabling the Appellant to know why he has won or lost on the argument as to the facts. They have found that they are persuaded by the evidence of the Respondents’ witnesses on this very central issue of fact. Accordingly, it does not seem to us that it can be argued that they have erred in law in that respect.  They could have given a fuller analysis. It is difficult to draw a line under the amount of detailed analysis there could have been.  But it does not seem to us that there is an arguable error of law, upon the face of that decision.  In that respect, the issue of law which was raised by Mr Burgher, and which he accepted, was that really it would only be if we accepted the substance of his arguments as to the facts that it would ultimately follow that the way in which the Employment Tribunal limited themselves to one aspect of the legal test in race discrimination would arguably have been incorrect.  

11.	The next matter that arises is the assertion that one of the members, a Mr Brandt, appeared to have fallen asleep.  The Appellant had with him a Mr Azariah, sitting with him we understand to assist. In the traditional way, once that allegation was made, affidavits were called for from those concerned and those affidavits were at page 13 of our bundle and they are from two people; Mr Azariah and Mr Davey.  They are in identical terms and I set out the text in full: 
“The Chairman said that Mr. O’Sullivan must stick strictly to what the respondent’s witnesses had said in their statements with regard to his cross-examination questioning and that he would get a chance later on to question them more fully.  He told them this twice.  He wasn’t given that chance.  
The respondent’s solicitor Miss Qaiyoom only gave Mr. O’ Sullivan her skeletal argument and submission twenty minutes approximately before she read it out.
The lay member of the Tribunal, Mr. Brandt had his eyes closed and appeared to be snoozing at various times during the hearing.” 

In another more detailed document, Mr Azariah said that Mr Brandt appeared to be half-asleep. This went before the Chairman, Mr Flint, for him to give his response and in a letter dated 7 January 2000, the response came that in.  In relation to the affidavit of Mr Azariah: 
“The affidavit is so uninformative and lacking in particulars that he (the Chairman) is not prepared to comment on it.
In particular he wishes to know who Mr Azariah is, during what part of the proceedings he was present and what exactly is meant by the statements in paragraph (1).”  

12.	The Appellant furnished a response to that letter, which enabled the matter to be returned for consideration by Mr Flint, (the Chairman). His reply was: 
“The Chairman asked me to say that he does not have the slightest idea what the (Appellant) or the two person who swore affidavits are talking about.
“The Affidavits are in common form, which is why the Chairman did not mention both.  He suggests that if persons making Affidavits stick to a common form instead of commenting fully on their impressions of the hearing little attention should be paid to them.
“The only comment, which he wishes to make, is that the (Appellant) was not warned in the way he suggests.  He was warned, as is the Chairman’s practice that he should not interrupt while the witnesses read their statements but could cross-examine later.  Mr Brandt is being asked for his comments on the allegations that he was asleep.” 
On 1 February the Regional Secretary dealt with the matter further, having said that the Chairman had discussed the allegations with the member: 
“Mr Brandt denies he was asleep.  He was at the time suffering from an inflammation of the eyes which caused him occasionally to close them or to wipe them with a handkerchief.”

13.	The following matters appear from those documents.  First, it is suggested that little attention should be paid to affidavits in common form.  Sadly, that is the ‘counsel of Canute’ for it is the way litigation is conducted nowadays. Witness statements, let alone affidavits, should contain the words of the witness himself or herself, but that rarely happens.  Others draft these documents.  However, when a person swears to the truth of the document, even if that person has not sat down himself or herself to write the document, it seems to us that it would be an affront to that person to reject their words given under oath, simply because of the way in which they had been written down. However that does not go to the essence of the issue, although it deals with a comment of the Chairman.  So far as the warning about evidence is concerned that it not a matter that concerns us today.  Misunderstandings of this kind do arise very often with litigants in person but they do not give rise to the issues that we have to determine.  

14.	So far as the allegation of being asleep is concerned, of course the Appellant and his friends or witnesses can say no more than that the member appeared to be asleep.  Indeed, on that point apart from any other it is quite clear that they had an impression of that and were giving honest evidence in their affidavits about it because on investigation, it appears, that Mr Brandt agrees that he may well have given the appearance of being asleep.  He has given an explanation of it.  In those circumstances, there is really no issue between the Appellant and Mr Brandt about that issue.  There is no issue as to whether or not Mr Brandt appeared to be asleep.  Mr Brandt denies that he was asleep and there, it seems to us, the matter must rest for there is no evidence upon which that can be challenged.  The question of falling asleep, it seems to us therefore, was one which was very properly raised, if we may say so, by the Appellant in the circumstances. It has now been investigated as fully as the Employment Appeal Tribunal has the power or capacity to investigate it.  There is now no basis for concluding that Mr Brandt was asleep.  

15.	However, before departing from that correspondence, we would wish simply to observe that we accept that it seems to us unfortunate first, to refuse in absolute terms to respond to a request from the Employment Appeal Tribunal, by a Chairman saying that he is not prepared to comment on affidavits because of the judgment he himself forms about it, secondly to refer to Mr Azariah without knowing who he is, in circumstances in which it may well be that the reason that the Chairman did not know who he was was that he had not remembered or recorded the explanation of this man’s presence before him, and thirdly, for there to be letters in which phrases such as ‘He does not have the slightest idea’ are used and where suggestions are made that little attention should be paid to affidavits, which people have sworn do contain the truth.  This is a style and tone of correspondence which seems to us inconsistent with the general ideals which Employment Tribunal’s set themselves, of enabling parties, particularly those acting in person, to recognise that their cases and their concerns are being fairly and fully dealt with and that they are not being dealt with, to use a word put forward by Mr Burgher, in a ‘cavalier fashion’.  But that relates only to the style and tone of correspondence and not to its substance.  

16.	Finally, Mr Burgher has referred to the fact that the Appellant was in person and that makes it so important that questions of his knowing why he won or lost, or his right to cross-examination was curtailed or impressions as to whether someone is asleep, should be properly and fully dealt with.  We agree entirely with the principles set out in those submissions but they do not, it seems to us, go to the heart of the issues raised in this appeal.  For all those reasons therefore, we have come to the conclusion that there is no arguable point of law, that could be canvassed in full before the Employment Appeal Tribunal and for those reasons this appeal must be dismissed at this stage.