Appeal No.	EAT/1365/97 & EAT/866/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 July 2000
Judgment delivered on 27 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR J C SHRIGLEY
MR H SINGH

MR L MURGAI	APPELLANT

HOME OFFICE IMMIGRATION & NATIONALITY DIRECTORATE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON
	
For the Respondent	MR R LEMON 
(of Counsel)
The Treasury Solicitor
Employment Team
Room 544
Queen Anne’s Chambers
28 The Broadway
London
SW1H 9JS	

	JUDGE PETER CLARK:	We have before us two appeals brought by Mr Murgai, the applicant before the Employment Tribunal sitting at London (South) under the chairmanship of Mr C A Carstairs. The first (EAT/1365/97) is an appeal against that tribunal’s decision promulgated with extended reasons on 21st October 1997 [‘the original decision’]. The second (EAT/866/99) is brought against that same tribunal’s review decision promulgated with extended reasons on 1st June 1999. This has been something of a long-running saga and we should start by setting out its history.

History

1.	The appellant commenced these proceedings by an Originating Application presented to the Employment Tribunal on 15th January 1996. He complained of unlawful racial discrimination by his employer, the Home Office. He had been a civil servant since 28th November 1988. At all relevant times he was employed in the Immigration & Nationality Department in the grade of AO (Administrative Officer). His immediate line manager was Mr Sims, an EO (Executive Officer).

2.	The claim was resisted and came on before the Carstairs tribunal on 29th to 30th September and 1st and 2nd October 1997. The applicant was then represented by the late Mr Rudy Narayan, a former barrister and experienced advocate; the respondent by Mr Roy Lemon of Counsel.

3.	The tribunal members considered the matter in Chambers on 6th October 1997 and by their reserved original decision they dismissed the application.

4.	As appears from their reasons the tribunal identified four separate matters of complaint raised by Mr Murgai. The first is material to these appeals, that is that the annual staff report (ASR) on the appellant for 1993-94, prepared by Mr Sims, was racially discriminatory.

5.	Having set out the facts as they found them and directed themselves as to the law, the tribunal expressed their conclusions on the four matters of complaint at paragraphs 64-70 of their reasons. We should set out their conclusions on the first ground of complaint in full:

“64.	1993-4 ASR. The Tribunal did not accept that this complaint had been made out on the facts. The Tribunal considered Mr Sims to be a truthful witness and accepted that he had set out his views in the report taking into account the information he had received from Mr Laxton. The Tribunal concluded that a white person would not have been treated differently. The Tribunal accepted that the failing identified by Mrs Horton were the result of Mr Sims’ inexperience. It appears that ideally Mr Sims line managers should have realised the extent of the short-comings of his report but the Tribunal noted that they considered the report to be a genuine reflection of his views and that the markings were correct. Indeed, Mrs Horton, while critical of the comments, did not suggest that the markings themselves were incorrect. Furthermore, the Tribunal noted Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, marking him “fitted for promotion” which view was endorsed by a promotion Board which did indeed promote Mr Gor. Accordingly, the Tribunal found that there was no discriminatory treatment in respect of this report on the ground of race.
65.	Even if the Tribunal had believed that there was both discriminatory treatment and a racial difference, the Tribunal believed the explanations given by Mr Sims, Miss Proctor and Mr Atherton set out in the evidence to the effect that Mr Murgai was perceived to have had, at best, what could be characterised as an average year and that this was the genuine belief of Mr Sims; the Tribunal would not have found that explanation to be either inadequate or unsatisfactory in the circumstances of Mr Murgai’s performance to some extent before Mr Sims managed him but more particularly after Mr Sims became Mr Murgai’s manager.”

6.	Against the original decision Mr Murgai launched his first appeal (EAT/1365/97) by a Notice dated 28th November 1997.

7.	That appeal was listed for preliminary hearing before a division on which I sat on 28th January 1998. That hearing was adjourned for the reasons which I gave on that occasion. We were presented, at the last moment, with a skeleton argument and 149 page affidavit with exhibits in support of the appeal. We could not properly deal with the matter in those circumstances.

8.	Before the resumed preliminary hearing a draft re-amended Notice of Appeal dated 28th April 1998 was lodged. At the restored preliminary hearing, on which I again sat, held on 7th May 1998, the appeal was permitted to proceed to a full hearing, limited to grounds 1, 2, 8, 9 and 10 of the re-amended Notice of Appeal. The particular point with which we were then concerned, at the ex parte preliminary hearing stage (the respondent having initially indicated that there were arguable grounds of appeal and then resiled from that position following a direction given at the first preliminary hearing) was the suggestion that at paragraph 64 of the original decision reasons the tribunal had reached a material finding of fact that was incorrect. It related to the tribunal’s finding that “Mr Sims subsequently managed and wrote an ASR for Mr Gor, another Asian, making him “fitted for promotion” which view was endorsed by a promotion Board which did indeed promote Mr Gor.”

9.	In allowing the matter to proceed we gave a direction that the Chairman, Mr Carstairs, be asked to comment, by reference to his notes of evidence taken at the original hearing, on the first and second grounds of appeal in the re-amended Notice, which relate to that finding.

10.	The Chairman provided his comments by letter dated 30th June 1998, drawing extracts from Mr Sims’ evidence.

11.	The first appeal came on for hearing before a division presided over by Morison J on 5th November 1998. It seems that at an early stage in the hearing the former President gave a strong indication, on a preliminary basis, that since it appeared to be common ground that Mr Gor attained promotion (from AA to AO) before Mr Sims prepared his report on Mr Gor, the case ought to go back to the same Employment Tribunal for findings to be made as to the impact of that agreed fact on their original conclusions. The parties consented and the order then made by the EAT read as follows:

“1.	That the matter is remitted back to the same Employment Tribunal with a direction that they review their decision promulgated on the 21st day of October 1997 on the following basis:-
	There being agreed facts as follows:-
	That Mr Gor had been listed for promotion without interview in October 1994 and had transferred on promotion in June 1995 before Mr Sims had written a report on him.
The parties consent to an order that the case be remitted to the same Employment Tribunal for consideration of the impact of the agreed facts on the conclusions noted in the last two sentences of paragraph 64 of the Extended Reasons and whether it would effect the decision
And for this purpose the Employment Tribunal to be at liberty to receive further evidence from the parties and in particular from Mr Sims in respect of Mr Gor, the reports leading to his promotion and the report by Mr Sims in respect of Mr Gor and the Appellant to be at liberty to cross-examine thereon and the Respondents to re-examine thereafter.
The parties also to be at liberty to make submissions to the Employment Tribunal on the impact of the same on the credibility of Mr Sims and on the decision
2.	That the appeal is stayed with liberty to appeal within 42 days of any new decision or order of the Employment Tribunal. If no such application is made within the specified time the appeal will be dismissed without further hearing.”

12.	The review hearing took place before the Carstairs tribunal on 20th April 1999. Mr Sims gave further evidence and was cross-examined by Counsel then appearing for the appellant, Mr Whitmore.

13.	Following that hearing the tribunal promulgated their review decision on 1st June 1999. Essentially they concluded:

(1)	that the evidence given by Mr Sims on the first occasion regarding his report on Mr Gor was accurate, whatever may have been the tribunal’s understanding of the position, in part based on a submission made to them by Mr Lemon in his closing address.

(2)	that Mr Sims had not intentionally sought to mislead the tribunal at the original hearing.

(3)	that the Gor report evidence was of minimal significance.

(4)	that they had no reason to alter the original assessment of Mr Sims’ credibility.

In these circumstances they confirmed their original decision.

14.	As a result of the review decision the appellant (a) activated the first appeal and (b) commenced the second appeal against the review decision.

15.	On 21st September 1999, on Mr Murgai’s application, it having earlier been refused by the Registrar, I directed that the Chairman be asked to provide his Notes of the Evidence given by Mr Sims at the review hearing held on 20th April. That has since been done.

16.	It is in these circumstances that we come to consider both the restored first appeal and the second appeal.

The Appeals

17.	It is convenient to consider the two appeals under the following heads:

(1)	The Gor report. This deals with grounds 1 and 2 of the first appeal and the second appeal against the review decision.
(2)	Mr Sims’ inexperience. First appeal, ground 8.
(3)	Mr Sims’ credibility. First appeal, ground 9.
(4)	Mr Atherton. First appeal, ground 10.

18.	The Gor Report
	As to the first and second grounds of the first appeal it is submitted by the appellant that in reaching the conclusion that Mr Sims had not discriminated against the appellant on grounds of his race in writing the 93/94 ASR on him, the tribunal took into account a material finding of fact which was unsupported by evidence. That is an error of law. See British Telecommunications plc v Sheridan [1990] IRLR 27; East Berkshire Health Authority v Matadeen [1992] ICR 723, 734C.

19.	The material finding, contained in paragraph 64 of the original decision reasons, is set out above. It was incorrect in two respects; (a) Mr Gor was promoted from AA to AO on 18th November 1994 without having gone before a promotion Board and (b) Mr Sims did not report on Mr Gor until after Mr Gor had been promoted. His report did not, therefore, contribute to his promotion.

20.	We accept that those factual errors give rise to a potential ground of appeal. However, the question for us in the first appeal is (a) whether that finding of fact was significant in the tribunal’s overall conclusion and (b) whether, even if an error of law is made out, it is open to us to hold that the original decision was nevertheless ‘plainly and unarguably correct’ so that we should affirm it. Dobie v Burns International [1984] ICR 812.

The consent order

21.	The order made by Morison J’s division  on 5th November 1998 was somewhat unusual. Without hearing and allowing the appeal before exercising their powers under s.35(1) of the Employment Tribunals Act 1996, the EAT simply sent the case back to the same tribunal for review. In a subsequent case, Reuben v London Borough of Brent [2000] IRLR 176, at paragraph 17, Morison J described the practice, first established in Yusuf v Aberplace Ltd [1984] ICR 850, of returning a case to the tribunal for their reasons to be amplified before disposing of an appeal, as being “fundamentally wrong in legal principle”. It is not immediately clear to us under what power, or legal principle, this case was sent back to the tribunal for review. However we think that no real jurisdictional problem arises because (a) the parties consented to that course and (b) the tribunal was content to carry out a review. It is clear that an Employment Tribunal has power, under Rule 11 of the Employment Tribunal Rules of Procedure, to carry out a review of its decision of its own motion or on the application of a party, notwithstanding that the time for applying for a review has expired (Rule 15). Here, the power was exercised by the tribunal either of its own motion or, effectively, on the joint application by the parties under the terms of the EAT consent order

The review decision

22.	In the second appeal against the review decision Mr Murgai takes essentially three points. First, he contends that the tribunal did not answer the question posed by the EAT in the consent order; secondly he submits that his counsel was wrongly prevented from exploring matters in cross-examination of Mr Sims which were relevant to the EAT question and finally he submits that the tribunal’s decision on review was perverse.

23.	As to the first point we are quite satisfied that the tribunal meticulously restricted themselves to the question posed by the EAT. They were asked to say, having heard the case over four days originally, whether the agreed facts affected their original decision.

24.	In answering that question they looked carefully at whether Mr Sims had intentionally misled the tribunal at the first hearing. At that hearing his (uncontested) evidence was that “Mr Gor went to the asylum section, after being with me, on promotion. I marked him as fitted for promotion. This was in late June 1995. I believe he is Kenyan Asian.” (Chairman’s letter to the EAT, 30th June 1998, paragraph 3.)

25.	What appears to have happened is that in his closing address Mr Lemon submitted that Mr Sims “got Mr Gor promotion shortly afterwards.” That submission did not entirely accurately reflect Mr Sims’ evidence. Further, the tribunal, having understood that promotion was only by attending a board, added the finding, by inference, that Mr Gor had attend a board. He had not done so in fact.

26.	Having listened to detailed cross-examination of Mr Sims at the review hearing the tribunal concluded that Mr Sims had given correct evidence at the first hearing. The factual errors arose out of a combination of counsel’s submission and the tribunal’s own erroneous inference. They were entitled to find that Mr Sims had not sought to mislead the tribunal in his evidence at the original hearing.

27.	Dealing with Mr Murgai’s second point, we have read the Chairman’s Notes of Evidence taken at the review hearing. In our view the tribunal was quite entitled to stop Mr Whitmore, following objection by Mr Lemon, from re-opening the issue of the appellant’s ASR.

28.	As to perversity, we reject Mr Murgai’s submission that the erroneous findings were central to the tribunal’s conclusions on the first complaint. There were a number of facts taken into account by the tribunal in declining to draw an inference of unlawful discrimination, not least the explanation given for Mr Sims’ faulty report on the appellant, late voided by the respondent’s management, that it was due to his inexperience, a point to which we shall return later.

29.	Mr Murgai further submitted that in any event the tribunal’s findings as to Mr Sims’ report on Mr Gor, even when corrected, was irrelevant to the question of discrimination. He relied on Robson v CIR [1998] IRLR 168. In that case the EAT (Lindsay J presiding) held that in rejecting the applicant’s evidence that two colleagues described her in derogatory terms by reference to her Irish origins because those respondents were related by marriage to people from the ethnic minorities and would not be expected to make such remarks, the Employment Tribunal had taken into account an irrelevant factor.

30.	That seems to us to be a quite different case. Here, the specific allegation against Mr Sims was that he had written an unfavourable report on Mr Murgai because of his race. In these circumstances it cannot be wholly irrelevant (although not, of course, conclusive) for Mr Sims to give evidence to the effect that he had written a favourable report on another employee of similar racial origins to the appellant.

31.	In short, we can find no error of law in the tribunal’s conclusions in their review decision.

32.	It also follows, we think, that on returning to the questions raised by grounds 1 and 2 of the first appeal, with the benefit of the original Employment Tribunal’s actual views on the impact of the new agreed facts, that the erroneous findings in paragraph 64 were not material to the original decision, or if they were, that the tribunal’s conclusion was nevertheless plainly and unarguably right and we shall not interfere with it on these grounds.

33.	Mr Sims’ inexperience
	Mr Murgai seeks to challenge the tribunal’s finding of fact in paragraph 64 of the original decision reasons that the failing in the 1993-1994 ASR prepared by Mr Sims on the appellant, identified in an internal report prepared by Mrs Horton, were due to Mr Sims’ inexperience. 

34.	Mr Murgai submits that such a finding is untenable in circumstances where Mr Sims had been employed in the civil service for 18 years, for two years of which he had been an EO. He had received training in report writing. He had been assisted in the preparation of the report by his managers Mr Atherton and Miss Proctor, both of whom were very experienced in report writing. 

35.	We return to the cases of Sheridan and Matadeen to which Mr Murgai referred us in connection with the Gor report findings. The question is whether a finding of fact is wholly unsupported by any evidence, not whether it is contrary to the weight of the evidence.

36.	Here, we are quite satisfied that there was ample evidential support for the tribunal’s finding. This was the first report that Mr Sims had written on a junior member of staff. In her report Mrs Horton said in terms:

“It is accepted by all that Mr Sims was an inexperienced officer.”

37.	It is further clear from the evidence that Mr Sims required basic help from his managers in constructing the report linguistically and in physically writing it (it was suggested that he had it typed).

38.	In these circumstances the tribunal’s finding as to Mr Sims’ inexperience is unassailable.

39.	Mr Sims’ credibility
	Mr Murgai’s submits that Mr Sims lied on oath as to the Gor report. For the reasons earlier given we are satisfied that the tribunal was entitled to conclude, both in the original decision and the review decision, that Mr Sims was a truthful witness. Questions of credibility are for the Employment Tribunal, not for us.

40.	Mr Atherton
	Mr Murgai relies upon a point taken on his behalf on this final ground of appeal, prepared by Counsel then representing him, Mr Clive Rawlings. The way the point is put is that because Mr Atherton was one of the two countersigning officers to the ASR prepared by Mr Sims on the appellant and then later acted as an independent observer during the ASR grievance pursued by Mr Murgai, that amounted to unfairness from which the tribunal ought to have inferred racial discrimination.

41.	The short answer to that point, says Mr Lemon, is that it was not taken by or on behalf of the appellant at the original hearing. It cannot be taken for the first time on appeal. We agree. See Jones v Governing Body of Burdett Coutts School [1998] IRLR 521.

Conclusion

42.	It follows, in these circumstances, that both these appeals must be dismissed.