Appeal No. EAT/695/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 December 2000

Before
HIS HONOUR JUDGE J ALTMAN
MISS A MACKIE OBE
MR W MORRIS

MR SAMUEL OWOLABI	APPELLANT

TESCO STORES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised 

	APPEARANCES

For the Appellant	The Appellant in person	

JUDGE J ALTMAN

1	This is an appeal from the decision of the Employment Tribunal sitting at London North over a number of days, the decision being given on 28 March 2000 to the effect that the Appellant had not been discriminated against on the ground of race.  

2	The appeal comes before us by way of preliminary hearing to determine if there are points of law to enable this appeal to be argued in full before the Employment Appeal Tribunal.  We are greatly indebted to Mr Owolabi for the way in which he has assembled the appeal documents and his affidavit and his Skeleton Argument, and the careful way he has put the case before us, recognising that he has two points of law that he would wish to argue: first, that the bias of the Chairman, as demonstrated during the proceedings was such as, in the Appellant’s words, to “vitiate” those proceedings, and secondly that the decision of the Tribunal on the facts before it was unreasonable in accordance with the principles he referred us to as the Wednesbury Principle.

3	On a date which the Appellant told us today was 26 January 1999, the Appellant was surprised to find his work colleague at work.  Mr Beaupierre was in practice, although not by way of formal status, regarded by the Appellant as junior to him, in the team of three, of which the Appellant formed one.  It was the Appellant who was responsible for drawing up work rotas and passing other information, and he did not expect Mr Beaupierre to be at work that day.  When he asked him about that, it was revealed to the Appellant that his colleague, Mr Beaupierre, was there to take advantage of the Respondents’ “Options” programme, and had come for the opportunity to join that programme.  What that meant, in effect, was that Mr Beaupierre was being considered for promotion, and it meant for the Appellant that he was being sidelined.  

4	It is the practice, we are told, of the Respondents, that there must be an appraisal meeting at which the desire of the employee to advance his or her career is brought up, so that the Respondents can, at a later stage, respond to it.  Mr Beaupierre had had an appraisal, at which that had been made clear.  The Appellant was to give evidence to the Tribunal that he had had such an appraisal in November 1998, but that he had been transferred to a new store and the evidence before the Tribunal, from Mr Keshishian, who was handling the matter, was that he was unaware of that appraisal.  The Appellant says “How can that be, if when I have raised the complaint in January, on finding out what had happened, it had been said to me ‘Well you have not had an appraisal at which you established your desire for career progression’ what else could one conclude other than I would have mentioned it, and pointed out that I had had such an appraisal, and if it was true that Mr Keshishian did not know then, he would have become aware of it.  “Therefore” says the Appellant “Mr Keshishian cannot have been telling the truth, because if there had been that ignorance, it would have obviously been corrected.”

5	Mr Beaupierre is of Afro-Caribbean origin, the Appellant is of Nigerian origin.  “What other reasonable explanation can there be” says the Appellant “but that I was being discriminated against, someone who was certainly not senior to me, was probably junior to me, being given an opportunity I was being denied, with the reason that was given for it, not standing up to examination.” That, as we understand it, was the case presented to the Tribunal, and the argument, the Appellant says, is unassailable, and the facts cannot seriously be in dispute.  The Respondents failed to provide any real explanation for preferring Mr Beaupierre, and the Appellant argues that the Tribunal should, on the evidence as a matter of law, have inferred it was race discrimination.  

6	The matter however now comes before us, not to decide what view we take of the evidence, but as the Appellant clearly well understands, to decide if the Tribunal made any error of law.  The first matter he raises is his view that from the way in which the case was conducted, both before the hearing by the administrative staff at the Tribunal, and during the hearing by the Chairman, it can be seen that there was clear bias.  

7	Before dealing with the argument of the unreasonableness of the decision on the evidence, I return to the allegation of bias as set out in the affidavit of the Appellant.  The first complaint that the Appellant has is that the Tribunal deliberately delayed in sending him the Notice of Appearance until it had been in the possession of the Employment Tribunal for one month.  Bearing in mind the very tight time limits that are imposed upon parties that appear before the Employment Tribunal, one month is clearly, on the face of it, a curiously long time for the administration to respond.  How can an Employment Tribunal expect parties to be in time when that is the sort of example they receive?  

8	The matter does not end there because in the process of preparing for the hearing, that particular complaint was referred by the Regional Chairman of London North to the Regional Secretary, who has filed a response.  She was not in post at the relevant time, but she confirmed that the Notice of Appearance was received by fax on 29 April and was referred to a Chairman for listing instructions on 28 May, and appears not to have been sent until shortly after that.  She confirms that there is no obvious reason for delay, and she then expresses a view which the Appellant, quite rightly, takes exception to.  She exercises judgment upon the matter and says:
“it is likely to have simply been that pressure of work at this time caused a backlog to develop.  This is a common occurrence at London Central where we deal with a high volume of work in an environment with high staff turnover.”

9	It is helpful for the Employment Appeal Tribunal to know that delays of this kind are not unusual, and that they do happen in a number of cases, for that enables the Employment Appeal Tribunal to assess whether this case was being dealt with in a particular and exceptional way, or whether, sadly, lack of resources and pressures of work do cause delays of this kind, from case to case.  The Appellant rightly says that the Regional Secretary was simply not in a position even to have guessed whether or not that was the reason in this particular case, because she was not there, and in reaching our decision we have, therefore, ignored the Regional Secretary’s assessment as to what the reason may have been.  

10	The Appellant  then points out that, again, because she was not there, she was not in a position to say, as she later said, that the Tribunal administration at the time had no knowledge that the Appellant was delivering a letter claiming dismissal to Tesco.  We infer from what she says that there is no record on the papers of any discussions having taken place: the Regional Secretary then goes on to express an opinion as to whether or not there was bias.  With the utmost respect to the Regional Secretary, that is of course a matter for us on the facts presented to us, as is the assessment as to whether the Appellant has interpreted the delay incorrectly, and perhaps we can understand the Appellant’s taking exception to what appears to be, on the face of it, the Regional Secretary’s arguing the case.  

11	However, we understand the Appellant’s being suspicious of the delay in this case.  We nonetheless take note of the clear facts set out in the Regional Secretary’s response, that there was no reason for the delay shown on the file; that there was no evidence on the file of any communication before the Tribunal and the Respondents, and that there are delays of this kind at London Central.  It is nothing to do with this case, but of course we now live in an era where there is a statutory requirement on all Tribunals and Courts to ensure that a person has not only a fair trial, but a trial within a reasonable time, and all Courts and Tribunals are under enormous pressure, as we are aware, to cope with increasing volume with lessening resources.  But whilst we can understand the Appellant’s suspicion, we cannot see, within the simple fact of delay, any evidence of bias, an intentional desire to harm the Appellant’s case, whether it is viewed in either of the two ways put forward by the Appellant.  Whether it is expressed as a reasonable suspicion of bias, or a real likelihood of bias, there is simply no evidence of it in relation to delay. 

12	Turning now to the main part of the allegation of bias during the proceedings, I depart from the detail of the affidavit, which is of great assistance, to pick up on the matters raised in the Appellant’s Skeleton Argument.  He points to the response of the member, Mr Patel, in page 14 of the bundle where he says:
“The (Appellant) did protest to the Chairman and also made a threat that he had a right to demand for another Tribunal to be set up in his case or complain to EAT.”

The Appellant points out that in that response, Mr Patel was not addressing what had been going on between the Appellant and the Chairman, to give rise to any such protest.  The Appellant tells us that he was cross-examining a witness, the first witness as we recall, for the Respondents, in relation to matters that the Respondents had set out in their Notice of Appearance.  He said that the Chairman cut in and shouted at him, and, he said in parenthesis, that he is mature enough to know the difference between someone saying something and someone shouting, and the Appellant said the Chairman told him to just ask questions from the statement, and that is what he should be asking questions about.  In other words, he should confine his cross-examination to matters arising solely from the statements from the witnesses, which we understand had been actually read out, as well as read, by the people there.  

13	The Appellant said that he pointed out that that was an improper requirement, that he should have a free hand to ask questions, so long as they were relevant.  He goes on to say that it was that that provoked a comment by him; it was not a threat, he points out that even what Mr Patel sets out in his statement cannot be construed as a threat, and we agree with that.  But the Appellant complains that, thereafter, throughout the proceedings, he was kept in his cross-examination to only matters raised in the statements, and he questions why this was not, in fact, referred to at all in the extended reasons.  The Appellant would say that this was not referred to because it was a device employed by the Chairman to prejudice the Appellant’s ability to put his case fully, and its being such a device, the last thing the Chairman would do, in effect, would be to include it in her extended reasons, and, as he might say, “give the game away”.  

14	We have referred to the response of the Chairman.  The members refute the suggestion that there was such a restriction.  Mr Patel himself refers to a conversation between the Chairman and the Appellant in which something very similar, but importantly different, was raised, in which the Chairman did ask the Appellant to cross-examine Mr Keshishian on his written statement, but also included the proposition that he was told that he could put forward other points to the relevant witnesses.  It frequently happens in the course of proceedings that someone may be cross-examining a witness about matters which may be relevant, but which that particular witness is not in a position to answer, or where there may be other witnesses who can better deal with it, and a Chairman will direct questioning to appropriate witnesses.  

15	In the answer of the Chairman, she does not make specific reference to it.  But she does refer to her perspective, as she describes it, of having the need to explain with some care, the cross-examination of witnesses, and to try to keep the Appellant on the track and to relevant issues.  In relation to that, she denies that she suggested to the Appellant that he was calling her “racist” but says that she said that if she sought to intervene much further, she would be accused of being “racist”, as an explanation to the advocate for the Respondents, as to why she did not intervene more.  

16	What was happening in the Tribunal?  It is the duty of a Chairman to assist an unrepresented party, to put his or her case so that the unrepresented party is not at a disadvantage, so that the Tribunal can have the evidence and the case of the Appellant on essential matters, and frequently a Tribunal will try to guide and channel the questioning of a party.  Indeed, sometimes, with advocates, it is necessary to do exactly that.  But did the Chairman in this case go further than that, and so channel and restrict the Appellant as to demonstrate bias, or is there evidence of it?  

17	To succeed in this argument, the Appellant would have to demonstrate affirmatively, it seems to us, that his description of what took place is correct.  And secondly, he would have to be able to demonstrate that that would give a reasonable suspicion of bias, even though it may not, in itself, prove bias, one way or the other.  For one can never know what is in the mind and heart of a Chairman, any more than any other human being.  How can a Tribunal, such as this, assess that?  We have come to the conclusion that the sort of actions and words of which the Appellant has spoken, are essentially consistent with the sort of steps that a Chairman will often take to try to concentrate the mind and assist the presentation of a case by an Appellant.  

18	We are very mindful of the fact that, sometimes, the experience of a Chairman of many cases, is to be contrasted with the unique experience of a litigant - this is his or her only case and it is terribly important to that litigant - and anything that may be said by a Chairman will be taken very seriously.  If a Chairman says, for instance, “Just focus on what is in the statements”, a litigant, doing their very best in a doubly stressful situation, may well think that that is a fetter and a restriction which cannot be departed from.  It is doubly stressful, because not only does the litigant in person, have their own troubled employment history, and their belief that they have been discriminated against to fight with, but also the unfamiliarity of Tribunal proceedings.  However, bearing all the evidence before us in mind, we cannot see any full hearing in an Employment Appeal Tribunal coming to the conclusion, on this evidence, that there is the least evidence which could lead an Employment Appeal Tribunal to conclude that there was a reasonable suspicion, or even an appearance, of bias in relation to that sort of intervention.  

19	There is then a concern of the Appellant as to the way in which the Tribunal handled the question of Witness Orders.  It was his case that he had been assured, before he transferred to the new site, by staff who had authority to do so at his old site, that he would be considered for promotion.  The explanation of the Respondents, that they did not give him an opportunity for promotion because they did not know that he had raised that aspiration before was, of course, central to the question as to whether or not any explanation, other than race discrimination, could be advanced for why the Appellant was being treated less favourably than Mr Beaupierre.  He regarded that evidence, therefore, as crucial.  In the Tribunal’s reasons, the Chairman said in paragraph 3 that at the outset of the hearing they went through the list of proposed witnesses and that the Appellant asked for one in relation to Miss Sharon Bench, who is the person who is said to have carried out the appraisal in November 1998, to which I referred at the outset of this judgment.  She says that she asked if any other Orders were required and refers to that as the only one that was requested.  

20	The Appellant says that the Chairman, in failing to order the others to attend, did not take account of the fact that there was no explanation offered to the Tribunal as to why the record of the November 1998 appraisal was asserted by the Respondents to have been lost, and that this was critical to the case.  Of course, we - and to some extent he - looks back at the evidence with hindsight.  The Chairman was seeking to clarify the need for witnesses at the beginning of the hearing.  The question is not whether that Order was wrong, or whether the failure to make Witness Orders was wrong.  The Chairman has a wide discretion about the attendance of witnesses, and often witnesses will not be called, who may be relevant but whose evidence is uncertain, in order to give expedition to the proceedings.  We are not here to assess whether the failure to make Orders was a wise or unfortunate omission.  We are here to consider whether it was so unreasonable as to amount to an error of law.  We cannot see any argument in that whatsoever.  As to whether it constitutes evidence of an appearance of bias, we cannot see that either because it is wholly consistent with the sort of Orders that Chairmen make, sometimes, perhaps, being over-cautious and unnecessarily inconveniencing witnesses, who come to the Tribunal when their evidence is not needed, or perhaps, when viewed with hindsight, failing to order the attendance of witnesses who may, looking back, have had relevant evidence to give.  There is no evidence of bias.  

21	Then, turning more closely to the questions of the unreasonable approach to the evidence, the Appellant raised his concern that the Employment Tribunal failed in their decision to heed the stark facts which I set out at the outset of this judgment, which gave rise, he would say, to an inference that there was race discrimination in this case.  In the course of the decision, the Chairman drew attention to the fact that Mr Keshishian, in evidence, gave evidence that he was unaware of the November 1998 appraisal, and at the very end of paragraph 18 of their decision the Chairman records this:

“The Respondents have explained the reason for Mr Beaupierre being at the Options briefing meeting as resulting from Mr Beaupierre’s stated interest in his November initial appraisal meeting.  We have accepted that explanation as a legitimate explanation.  We are not required to draw any inferences in the absence of a management explanation.”

We are told that Sharon Bench gave evidence and confirmed the Appellant’s case as to what happened in the November 1998 appraisal, so that it was at the very least unfortunate that Mr Keshishian did not know of the Appellant’s aspirations, and the Appellant says that the suggestion that that document had been lost is a poor excuse; he complains that these matters of evidence are not set out in the extended reasons.  

22	Our conclusions are these.  The extended reasons are intended to give a party an indication as to why he or she has won or lost.  They are not intended to contain recitals of the evidence, but the basic findings that are reached by the Tribunal.  The reasons in this case went into some six pages and the Employment Tribunal had heard a mass of evidence, over many days.  Of course it would be unrealistic to expect any substantial part of it to be repeated in the decision.  The fact that evidence about this particular matter was not specifically referred to is, it seems to us, neither here nor there.  The Tribunal set out the evidence of Mr Keshishian and they set out the fact that they believed him.  The Appellant says that they were wrong to do so; the Appellant says he has telling arguments as to why Mr Keshishian should not have been believed.  That was the issue that the Tribunal had to weigh, they had to consider the arguments and the evidence.  They set out Mr Keshishian’s explanation and they say that they accepted it.  Whilst the Appellant disagrees with that conclusion, and believes, understandably, that the Tribunal were quite wrong to come to that conclusion, we can see no arguable error of law in their reaching that decision.  On the evidence, and on the facts, as a matter of law it was a conclusion to which the Employment Tribunal were clearly entitled to come.  

23	We can therefore find no evidence at all that the Employment Tribunal can be argued to have been in error in law under the Wednesbury Principles in this case.  We would certainly have been disquieted if the Appellant was over-restricted in the questions he could ask, but this was a long case, it went on for many days - some three days - as we understand it, and there was a lot of evidence and the Appellant contributed quite a lot to the proceedings.  We find that there is no evidence of bias.  There may have been scope for misunderstanding by the Appellant as to what was being said, when he was under pressure in these proceedings.  There may have been scope even for someone to say at times that the Chairman, because of the passage of time, and the need to try to confine the questioning of the Appellant, was too restrictive.  We have no idea or judgment on that.  We were not there.  Chairmen have to do their best, from moment to moment in the proceedings, but there is certainly no evidence of any appearance of bias.  

24	In those circumstances we are driven to the conclusion, without in any way detracting from recognising the sincerity of the Appellant’s belief that he was racially discriminated against, that on the only question that arises for us to decide, there is no arguable point of law which can be put before the Employment Appeal Tribunal on appeal.  Therefore this appeal is dismissed.  

25	At the end of the proceedings the Appellant sought leave to appeal on the ground that the essence of his case was the fundamental piece of evidence that if Mr Keshishian had told him that he needed a prior appraisal, where he mentioned his desire for career advancement, before he could go on the Options programme, then obviously the Appellant would already say that he had already done so.  The Appellant’s case is that at the Employment Tribunal that was an unassailable argument which undermined Mr Keshishian, so that the Tribunal were in error in law in failing to make a finding that followed from their unavoidable logic.  He seeks leave to appeal on the grounds that we, in our decision, have failed to address that error of law in considering whether or not there is an arguable case to appeal.  

We believe that we had dealt with that in the course of the judgment (we refer in particular to paragraphs 21 and 22) and that it does not disclose a further point of law, in any event. Accordingly the application must be rejected.  

(It is right that you should know that, although permission for leave to appeal has been refused today, you are still entitled, if you wish to do so, to apply to the Court of Appeal itself for leave to appeal).