Appeal No.	EAT/1374/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 June 2000
Judgment delivered on 13 July 2000

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR R SANDERSON OBE

MR A MAHAJAN	APPELLANT

(1)	PEARLION OVERSEAS TRADING LTD
(2)	MRS V B WALDMAN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE PETER CLARK:

1	The appellant, Ashok Mahajan, who is Asian and of the Hindu religion, took employment with the respondent company Pearlion (now in voluntary liquidation) in October 1996 as an accountant / financial controller.  The company was run by a family of Orthodox Jews, including the second respondent, Mrs Waldman.

2	On 2 March 1998 he presented an Originating Application to the London (North) Employment Tribunal complaining of unfair dismissal, wrongful dismissal and race discrimination.  The claims were resisted.  The matter came on for hearing before an Employment Tribunal chaired by Mr D.H. Roose sitting over four days in August and September 1999.  The tribunal promulgated their reserved decision with extended reasons on 14 October 1999.  The unfair dismissal claim was stayed, the appellant having insufficient service for the purposes of the Employment Rights Act 1996.  In fact the tribunal went on to find, in the context of the complaints of race discrimination and wrongful dismissal, that the appellant was not in fact dismissed.  He resigned in circumstances not amounting to a constructive dismissal.  The race complaint was dismissed.  The tribunal rejected his complaints of less favourable treatment on racial grounds on the facts.  They preferred the evidence called by the respondents.  The appellant’s claim for outstanding holiday pay failed on the grounds that there was no contractual entitlement to pay in lieu of outstanding holiday:  see Morley v Heritage Plc [1993] IRLR 400.  However, there was some outstanding pay due to him, as the respondent conceded.  The sum due had been tendered by cheque prior to the hearing but the cheque was returned by the appellant.  Accordingly he was awarded that outstanding sum, £413.59.

3	At the close of the hearing the respondents applied for costs against the appellant on the ground, under rule 12 of the Employment Tribunal Rules of Procedure, that he had acted abusively, disruptively or otherwise unreasonably during the course of the hearing.  For the particular reasons given by the tribunal they found that the appellant’s conduct did fall within that description.  The respondents estimated their costs at £20,000 and asked for an order for a detailed assessment (formerly taxation).  The tribunal declined to make such an order, taking account of the appellant’s means (although not modest) and ordered the maximum permitted assessed costs of £500 under rule 12.

4	We should also record that the appellant took proceedings in the County Court against these respondents for monies allegedly owed to him for work done over and above his employment duties pursuant to an alleged agreement made with Mrs Waldman.

5	On 8 December 1999 His Honour Judge Ryland, sitting at the Central London County Court, dismissed those claims.  We understand that the appellant seeks to challenge that judgment in the Court of Appeal.  It is worth observing that during the course of those proceedings, at a hearing before the District Judge on 9 March 1999, the appellant removed his shoe and struck counsel for the defence, Mr Russell, over the head and shoulder with it.  That incident is detailed in an affidavit sworn in committal proceedings by Mr Russell and confirmed by an affidavit sworn by the appellant’s own counsel at the District Judge hearing.  The appellant does not deny the incident, but gives a lengthy justification for his action in an affidavit in reply dated 11 October 1999.

6	Against the tribunal’s decision the appellant now appeals.  This is a preliminary hearing held to determine whether the appeal raises any arguable point or points of law.  In addition to his detailed grounds of appeal the appellant has sworn an affidavit, with exhibits dated 7 February 2000, complaining of the conduct of the tribunal proceedings, particularly by the Chairman, to which the Chairman has responded by a letter written in February 2000.  The respondents have also commented on those documents by letter from their solicitors dated 8 March 2000.  The appellant has in turn replied to those comments.  We have also read a skeleton argument prepared by the appellant in advance of this hearing.

7	First, the appellant has made application to us for an order for Chairman’s Notes of Evidence.  We indicated that we should like to hear his oral submissions at this preliminary hearing before ruling on that application.  We did so.  We also received a further written submission from the appellant.  In order to properly consider the matters raised by the appellant we reserved our judgment in this appeal.

8	We shall deal with the appellant’s grounds of appeal under the following headings:

(1)	Conspiracy
(2)	Bias and misconduct by the tribunal
(3)	Findings inconsistent with the evidence
(4)	Misapplication of the law
(5)	Costs

Conspiracy

9	The appellant is convinced that he is the victim of a conspiracy involving members of the Employment Tribunal Service staff at London (North) and the respondents’ solicitor, Rachel Harrop.  Specifically he contends, in his latest written submissions, not dealt with in his earlier affidavit dated 7 February 2000, that he was deprived of representation by his previous solicitors in these proceedings because the original hearing dates of 11 – 12 February 1999 were vacated by the tribunal on the respondents’ solicitors’ application.  He says that on 4 May 1999 he saw a member of the Employment Tribunal staff, Nicola White, and she handed over copies of letters dated 18 December 1998 and 12 January 1999 from the respondents’ solicitors to the tribunal requesting a postponement of the hearing fixed for 11 – 12 February.

9	He now contends that those letters were not faxed to the Employment Tribunal on the dates and at the times shown at the head of those letters.  They were produced subsequently as false evidence of an early application for postponement and “planted” by a member or members of the Employment Tribunal Service staff.

10	We have to say that we find that a fantastic notion and one which appears to have occurred to the appellant very late in the day.  However, it fits with his further allegations of “dirty tricks” by court clerks concerning his applications in the County Court and now by the Civil Appeals clerks, who he claims have sent him unsigned letters in the name of a black clerk in that office who has in fact left the office.

11	We are not persuaded that such a widespread conspiracy exists, other than in the mind of the appellant.

Bias and Misconduct by the Employment Tribunal

12	This complaint is directed principally to the Chairman, Mr Roose.  In his affidavit (paragraph 6.5) the appellant complains that the Chairman was thoroughly hostile and intimidating towards him.  He put his face in his hands, leaned forward and stared at the appellant and spoke to him with utmost contempt and hostility.  That account is flatly rejected by the Chairman, who has referred to the appellant losing control on occasions during the hearing so that short adjournments were taken to allow him to regain his composure.  That account is echoed by the respondents’ solicitors in their comments on the appellant’s affidavit dated 8 March 2000.

13	At the risk of further fuelling the appellant’s sense of grievance we accept the account given by the Chairman and the respondents’ solicitors.  We do not believe that the appellant conducted himself properly during the tribunal hearing, a point to which we shall return when considering the tribunal’s costs order.  In our view this was a difficult case for the Chairman to conduct.  We are not satisfied that he exceeded the boundaries necessary to assert and maintain his authority.

14	Nor are we impressed by the suggestion that the Chairman used racist language in paragraph 2 of the tribunal’s reasons when he referred to the appellant as “the only Gentile employed in the office”.  The word Gentile simply means non-Jew.  It is not a racially offensive term, unlike the word “Kaffir” which the appellant insisted on using during the hearing before us until I asked him to desist.  

15	In short, we are not satisfied that the appellant has advanced an arguable case that the tribunal Chairman so misconducted himself as to vitiate the proceedings.

Findings inconsistent with the evidence

16	The appellant has identified what he claims are 27 examples of findings by the tribunal which are inconsistent with the evidence.  He submits that the tribunal could not accept the evidence of Mrs Waldman in preference to his own when she was so obviously lying.  He cites as an example evidence given by her in her Witness Statement to the tribunal which shows an inconsistency over the date on which the Appellant assisted her in the preparation of an affidavit in civil proceedings.

17	In our judgment this is an attempt by the appellant to re-open questions of fact.  We are not persuaded that the tribunal has made findings unsupported by evidence:  see British Telecommunications Plc v Sheriden [1990] IRLR 27.  The submission here is that the tribunal ought to have rejected the evidence given by the respondents.  Questions of fact are for the Employment Tribunal.  No arguable point of law here arises.  In these circumstances we shall not order the Chairman’s Notes of Evidence simply for the purpose of allowing the appellant to re-argue the facts.

Errors of Law

18	First it is submitted that the tribunal ought not to have adjourned the unfair dismissal complaint and then gone on to find that the appellant was not in fact dismissed.  We can see no error in the tribunal’s approach.  The appellant did not have sufficient service to qualify for unfair dismissal protection under UK legislation, subject to the outcome of the Seymour-Smith case.  The separate question as to whether or not he was dismissed by the respondent arose directly for determination in both the race discrimination and wrongful dismissal complaints.

19	Second he contends that the tribunal failed to follow the guidance given by Neill LJ in King v The Great Britain-China Centre [1992] ICR 516.  We are satisfied that the tribunal had those principles in mind and applied them.  The first question is whether there was a difference in treatment, less favourable to the appellant, between him and the appropriate comparator.  The tribunal considered that question and rejected the appellant’s case on the facts.

20	Third he argues that the tribunal misapplied the principle in the Court of Appeal decision in Morley v Heritage.  We do not think that they did.  Applying the reasoning in that case the tribunal was not prepared to imply a term into the appellant’s contract of employment that he would receive outstanding holiday pay following termination of his employment.

Costs

21	The appellant makes the point that at a pre-hearing review a different Chairman, Mr Flint, was not prepared to say that this claim had no reasonable prospect of success.  We are not surprised.  The case depended on which version of events the eventual tribunal preferred.

22	However, costs were not awarded by the Roose tribunal on the basis that the appellant had acted frivolously or vexatiously in bringing his claim, rather that he had behaved abusively or disruptively in his conduct of the hearing before the Roose tribunal.  That is a wholly different matter.  On those findings we have no doubt that the tribunal was entitled to make an award of costs, limited to £500.  We should add that such an award does not begin to meet the actual costs of the respondents in successfully defending these proceedings.

23	It follows that, having considered the points made by the appellant, not all of which are set out in this judgment, we have reached the conclusion that this appeal discloses no arguable point of law which ought to go forward to a full inter partes hearing.  Consequently, the appeal is dismissed.