APPEARANCES
| For the Appellant |
MR D PANESAR
(of Counsel)
Instructed by:
Messrs B P Collins Solicitors
Collins House
32-38 Station Road
Gerrards Cross
Bucks SL9 8EL |
| For the Respondent |
MR J LIVESEY
(of Counsel)
Instructed by:
Birmingham City Council Legal
Services Department
Ingleby House
11-14 Cannon Street
Birmingham B2 5EN |
SUMMARY
Practice and Procedure:
Case Management
Bias, misconduct and procedural irregularity
Perversity
The Employment Tribunal prevented the Claimant's counsel from asking questions concerning the fairness of the appeal procedure and asking an employee his view of the Respondent's equal opportunities policy. No complaint has been made about the appeal procedures by the Claimant in his witness statement, in the skeleton argument or had been defined as an issue in the case. The EAT dismissed the appeal – the matter was within the discretion of the Employment Tribunal. Further the wider issue as to an individual employee's perception of the equal opportunities would have entitled the Respondent to have adduced wide ranging evidence concerning its general equal opportunities policy which would have raised so many collateral issues that it would have been disproportionate to the issues raised in the particular case.
HIS HONOUR JUDGE PUGSLEY
- This an appeal from a decision of the Birmingham Employment Tribunal in which they decided that they rejected the Applicant's claim that he had been unfairly dismissed and that he had been discriminated on grounds of race. There was a plethora of written grounds of appeal but there are only two issues, which by order of HHJ Serota QC, the Appellant has been given leave to argue.
- We begin by making these observations. This Tribunal carefully considered the issues in the case. The case took several months to be heard. It started on 4 December 2006, and the decision was finally promulgated on 13 February 2007. The case occupied 9 days of the Tribunal's time, and the decision runs to some 50 pages of typescript. The Claimant had worked for the Respondent local authority from May 1990 until he was dismissed in July 2005. His duties included collecting rents from market traders. As the Tribunal noted in paragraph 33 of its decision at the heart of this case is the allegation that the Claimant abused his position by in effect demanding more money from the traders than was due in that he rounded up the rent and declined to give change. The Tribunal considered the Claimant was an unconvincing witness, see paragraph 88 of the decision. At page 38 of the Tribunal decision the Tribunal asked this question:-
"To what extent, if any, did he [the Applicant] cause or contribute to his dismissal by his own conduct?"
Answer
"We conclude that had we been wrong on our primary findings over the dismissal and also wrong on Section 98A ERA then we would have found that the claimant did cause or contribute to his dismissal by his own conduct. We conclude that the extent was 100%."
- The reality is that the Claimant's case was rejected on its merits in clear and comprehensive terms:
- We focus on the first ground of appeal that the Tribunal declined to allow Mr Panesar, who was appearing for the Applicant at first instance, as he does now before us in this appeal, to examine in re-examination his client as to the fairness of the appeal hearing.
- The Tribunal noted and the Respondent's skeleton argument amplifies the fact that neither in the claim, in his long statement, nor in examination in chief, nor in the formulation of the issues in the case which are set out at Paragraph 9 to which both parties agree, nor in the skeleton list of issues which Mr Panesar drew up at C3, nor on the start of the third day in the Skeleton Argument which the Appellant drew up, was there any complaint about the fairness of the appeal. Moreover the Tribunal noted that Mr Panesar, who appeared below as we have already said, had not at any stage indicated that there was any criticism of the appeal. In Paragraph 21 the Tribunal quote Mr Panesar as saying:-
"There is no criticism of the appeal panel" and "No criticism of the appeal process".
The Tribunal noted that when they repeated those comments back to Mr Panesar he denied making them.
- Counsel for the Respondents has said that he has a note in exact terms of those remarks which the Tribunal have reiterated in their decision. Mr Livesey is not attacking the professional integrity of Mr Panesar. Mr Panesar says his notes differ. The notes have not been submitted to the Chairman, and Mr Panesar is happy that we deal with case on the basis that, though he denies making those concessions, he has asked us to deal with it on the basis that if they were made, they were retracted.
- What happened in this case is simply this. Taking this from paragraph 20 of the decision, (Mr Livesey appearing for the Respondent):
"In cross-examination, Mr Livesey asked the claimant to confirm that he had no criticism of the appeal process. The claimant started by saying, "no", but then went on to give a contradictory answer, and eventually settled on "I am criticising it". There followed an objection by Mr Livesey that this had not been pleaded and was not in the witness statement of the claimant or Mr Hanley. Mr Panesar interjected and put forward the proposal that a "tainted" member of the claimant's department, that is, Mr Kelly had presented the respondent's case at the appeal. He conceded that there was no material challenge to the appeal. However, the respondent's notes (taken privately by Miss Lloyd) were only presented on Monday 4 December 2006. In short, therefore, the claimant had not been in a position to prepare himself to challenge the appeal. Mr Panesar then offered to debate the issue in private, with the tribunal only, in the absence of the claimant. By then, the claimant knew the line of argument, and the cat was out of the bag. Mr Livesey submitted that this was a wholly new allegation, and if allowed to proceed, there would be consequences at least in a costs application arising out of any additional time that was caused to be used by any extension to the Hearing. Furthermore, he maintained that his instructing solicitor had written to her opponent (Mr Gardener) to see if the appeal was in issue. There has been no reply and therefore there was an inference that it was not in issue."
- The Tribunal were concerned at the time being taken up with the argument. The Tribunal go on thus at paragraph 21:
"We unanimously, although provisionally, agreed that the appeal issue was not pleaded in the claim form or mentioned in the witness statements. Mr Panesar said "There is no criticism of the appeal panel" and "No criticism of the appeal process". On these concessions we concluded and found that the claimant was not really criticising the panel."
They then pointed out that Mr Panesar denied making those observations.
- The Tribunal noted in paragraph 22 onwards that on re-examining his client, Mr Panesar raised the issue of the appeal and asked the Claimant if it was a re-hearing or a review. There was then objection to this line of questioning and the Tribunal came to the view that the issue had not been a matter which they were prepared to allow to be dealt with by further questions. It was not in the claim form, it was not in the witness statement of either the Claimant or the trade union official, it had not been mentioned in chief; it had never been put by Mr Panesar as an issue when the Tribunal defined the issues at the start of the case, and, as they had already indicated, it had been not put in issue by Mr Panesar in any of the documentation during the course of the trial, including his own Skeleton Argument which had been exchanged on the third day of the hearing.
- Now the Tribunal say at Paragraph 27:-
"We find and conclude that justice lies in the refusal of the claimant's application for leave to re-examine further on the appeal. This is fair and proportionate. We have regard to the timing and the manner of the introduction of the issue. It was very late, in cross examination and re-examination. The respondent was not on notice of this issue being raised. It did not expect it to be raised, and had been misled. It would have expected to have seen it in the witness statement, had it been an issue, and then it could have done something about it, and tried to rebut it. There has been no application to amend the claim form. This is not an arid point; it is a matter of substance. The claimant has failed to plead it, or give evidence in chief upon it, and for that reason alone we have rejected the application. We are not striking out the case; we are rejecting an application in it. This is not a simple minor alteration or amendment to the claimant's case, it is a new issue. There may have been time points on any amendment, which have not been dealt with by Mr Panesar, but having heard the matter so far, and having regard to proportionality we rejected the application, and moved on with the substantive case."
- Mr Panesar is in an invidious position. All advocates must, at some stage in their careers, regret not having taken a point at an early stage, and courts and Tribunals are normally indulgent in allowing new issues to be advanced as long as this can be done in fairness to all the parties. We are not in any way suggesting there has been any breach of professional duty or anything of that nature – we make that quite clear - but we are all of the firm view that this is a matter within the ambit of the Tribunal's discretion as to how to deal with this issue and they exercised that discretion in a wholly proper way. In a judicial way they considered the arguments.
- The days have long since gone when those who discriminate on grounds of gender or race do so, for the most part, at any rate, openly. No sophisticated employer such as a local authority is going to leave a visiting card revealing discrimination on grounds of age, gender, race, disability or sexual orientation or religious belief. Because of that there has been a whole history of cases pointing to the place and significance of inference. Those decisions are, of course, matters that are binding upon us. Anyone who has any experience of tribunals appreciates that it is the covert rather than the overt act which is likely to provide evidence of discrimination. However we have to draw a line which can be recognised, if not always easily defined, between a wide ranging enquiry to ascertain whether a pattern of discrimination emerges and an unstructured and formless enquiry into matters which are irrelevant, or only marginally relevant to that issue. If there is not effective case management of discrimination cases they can sprawl into all sorts of areas which are not likely to be of great assistance. It is not for an advocate in an employment case any more than it is for the advocate in a criminal case to conduct a case as though the advocate has an unchallenged right to determine what issues are of relevance and what weight should be given to the various matters.
- It is not mere pragmatism or experience that requires that there is a residual discretion in the Tribunal at first instance being able to exercise its case management function. I have referred the parties to the decision of the House of Lords in Piglowska v. Piglowski [1999] 1 WLR 1360 in the speech of Hoffman LJ. The particular subject matter of the appeal is irrelevant. What is relevant is that Lord Hoffman quotes his own judgment in an earlier case:-
"The need for appellate caution in reversing the trial judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance. . . of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
- Lord Hoffmann goes on to make the point that all judgments could with hindsight be improved upon and judgments should be read on the assumption that unless he has demonstrated to the contrary the judge knew how he should perform his functions and what matters he should take into account. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by an over elaborate textual analysis when it enables it to claim the trial judge misdirected himself.
- Lord Hoffmann further goes on to point out that "there is the principle of proportionality between the amount at stake and the legal resources of the parties and the community which it is appropriate to spend on resolving the dispute. To allow successive appeals in the hope of producing an answer which accords with perfect justice is to kill the parties with kindness. …"
- At the end of the day this Tribunal gave a reasoned decision as to why they believed it was inappropriate to allow this matter to be raised at a late stage. The issue is not what we would have done. The issue is whether that was a proper exercise of their discretion. We accept, as Mr Panesar has pointed out that the appeal process is part of the decision to dismiss. However if the fairness of the appeal procedure was a vital issue there was abundant opportunity for this to have been raised, and as this was not done the Tribunal were wholly justified in the approach they took. The reality of this case is we cannot see the admission of that evidence could in the light of the findings of fact made by the Tribunal have in reality made any difference to the result in any event. We therefore dismiss the grounds of appeal which relate to preventing Mr Panesar from pursuing questions as to the fairness of the decision and whether or not it constituted a review or a rehearing.
- We have been referred to the case of Digby v. East Cambridgeshire District Council [2007] IRLR 585 presided over by HHJ Peter Clark, who said this:-
"A tribunal has a discretion in accordance with the overriding objective to exclude relevant evidence which is unnecessary repetitive of only marginal relevance in the instance of proper modern day case management. That discretion must be exercised judicially. It may properly be challenged on appeal … . The guided principle is to ensure justice between the parties. We think this Tribunal did just that."
- The decision is in a somewhat unusual format in that there is a meticulous flagging up of a series of questions as to the issues raised. At Page 36 the Tribunal decided that "the appeal was by way of a full rehearing with Mr French and Mr Enoch giving oral evidence. The role of Mr Kelly at the appeal was to present the respondent's case to the appeal panel". And they went on to agree that it was not open to go beyond the earlier ruling that the matter could not be reopened at this stage. At Page 38 they make a finding that any potential defect in having Mr Kelly in the chair at the disciplinary panel was cured by the manner in which the appeal was conducted. We reject this ground of appeal.
- The second ground of appeal is that the Tribunal prevented questioning on occasion during the course of the hearing in relation to matters that should form part of a consideration. Mr Hanley, a trade union official, was prevented from completing an answer to a question from a member of the Tribunal as to whether the Respondent complied with its equal opportunities policy. He began to answer that they gave the appearance of doing so and was going on to describe what he felt in reality to be the true position when the Tribunal upheld an objection from the Respondent to further evidence being given on that point.
- We do not consider that it was wise for a member of the Tribunal to have asked the question as to what the Respondent's general record was and we think that Counsel was quite right to sound a warning shot. Mr Livesey has, in his Skeleton Argument, said this:-
"Mr Hanley's answer was a wholly new collateral attack on the Respondent's race relation act. It was not an allegation that had been made anywhere else or which formed part of the Appellant's case.
It appeared to be an allegation of systematic and institutionalised racism. Having heard the Respondent's objections, the Tribunal carefully tested Mr Hanley's answer further to see if he was, in fact, saying that. They asked him "what do you mean by that?" He replied that "There are 55,000 employees at Birmingham City Council and I can provide evidence …". He was stopped by the Tribunal as it was then clear that that was precisely where the allegation was going;
- It was right for the Tribunal to have restricted his answer/that evidence. If not, the Respondent indicated that it would have to consider whether to call extensive rebuttal evidence, possibly to include;
- HMI reports insofar as they related to Equal Opportunities;
- Results of internal audits into Equal Opportunties;
- Results of external audits into Equal Opportunities."
- There is a place for an overall view, as was made clear in the seminal judgment of Balcombe, LJ in West Midlands Passenger Transport Executive v Singh [1988] IRLR 186 CA, where it was held statistical evidence can give great assistance in showing the presence or the absence of racial discrimination in institutions. Without going into the particular factual background of the case it is pertinent to note that if one has a disproportionately high number of a particular ethnic minority who work and are recruited at a basic level and a much smaller proportion who are promoted to more senior roles then clearly an inference can be drawn of race discrimination. It can be valuable evidence but if one may say so it is a far cry to ask an individual witness an open ended question "Well what do you think of their equal opportunities policy?" Although it is no doubt interesting what a particular witness does think this is no basis to carry out a general audit in that sort of homespun way.
- This Tribunal was concerned with the position of this case on these facts in reference to a particular point of time and particular series of incidents and had the Tribunal allowed that answer to go forward then it would have been inevitable, we think, that the Respondents would have had to produce all the internal audits, external audits, monitoring and the like to deal with the issue. This was a perfectly proper, and if we may say so, sensible way for the Tribunal to contain the issues with which they had to deal.
- Tribunals have a vital role in enabling people of all walks of life, from all ethnic communities, from all groups that may feel themselves disadvantaged, to seek redress for their grievances. But the legal system does not exist in a moral and political vacuum. It competes with public funding with the demands of education, demands of health and the other multifarious demands on the public purse. There is a duty on those who preside over employment tribunals and those who appear before them, to ensure that issues are dealt with as concisely and as expeditiously as possible. Tribunals were brought into being to provide an expeditious and inexpensive way of resolving issues so they did not fester. We doubt if those who envisaged the future of employment tribunals actually thought there would be cases lasting for several days. It may be necessary. No-one is disputing that.
- But if the legal system is to retain the confidence of the public matters must be dealt with expeditiously and there has to be a containment of the issues that are raised to those which have been defined. This is not just as a matter of economics but also to reiterate one of the essential ingredients of justice; namely that a party against whom an allegation is made knows the nature of that allegation, and has the opportunity of dealing with it. To allow a wholesale deviation from what has been defined as an issue is not in accordance with the public perception of justice.
- That does not mean the tribunals are fettered in any shape by the formalism of court procedures and ultimately we accept justice is a far greater virtue than expedition or economy. Courts and tribunals have to deal with many matters the result of which can lead to the loss of a citizen's liberty, of the care of his or her children or the means of pursuing a particular livelihood. In all such cases a court or tribunal has to assume a case management responsibility. This is necessary to define the issues in a particular case and in the public interest of expense to the public purse and to private individuals. At the end of the day we do not see that there was any injustice in the way that this Tribunal behaved in relation to the matters argued on appeal. Therefore we dismiss the Appeal.
