Appeal No.	 EAT/385/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 1998
Judgment delivered on 2 September 1998

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R JACKSON
MR B M WARMAN

DR A ABEGAZE	APPELLANT

IPR TECHNICAL DEVELOPMENT LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR M SETHI
(of Counsel)
Messrs Gadwah & Co
Solicitors
Second Floor
245-249 Whitechapel Road
London
E1 1DB	

	MR JUSTICE MORISON (PRESIDENT):	The purpose of this hearing was to determine whether or not the Notice of Appeal raises an arguable point of law. The decision under appeal was the unanimous decision of an Industrial Tribunal held at Reading on three days between 10th September and 17th December 1997, following which, they gave extended written reasons for their unanimous conclusion that the applicant, Dr Abegaze, had not been discriminated against on the grounds of his race by his former employers, IPR Technical Developments Ltd. The extended written reasons were sent to the parties on 7th January 1998.

	Dr Abegaze is a highly qualified expert in the field of telecommunications. His academic qualifications can only be described as impressive. He was recruited by the respondent company and joined them on 21st April 1996 and his employment came to an end some six weeks later.

	The nature of his complaints are set out in the Industrial Tribunal’s decision. Firstly, it was said that his manager, Mr Bostock, treated him with a lack of respect by contrast with the proper professional respect and courtesy which was accorded to Dr Abegaze’s white colleagues. Secondly, he said that on many occasions Mr Bostock kept him late at work so that instead of him leaving at 5.30 p.m. he would be engaged in technical discussions which would cause him to leave late for home and thus miss his bus, by contrast with the way that white colleagues were treated. Thirdly, he complained that he had not been provided with a computer which he needed in order to carry out his duties, whereas his white colleagues had been provided with modern computers more or less straight away after joining the company. The computer which he was eventually given was inadequate in that it was not up to the speed of the computers which his white colleagues enjoyed. Fourthly, his specific complaint was that Mr Bostock had subjected his work to closer supervision than was paid to the work done by his white colleagues.

	The company was a small one. Nobody there, apparently, had had any racial awareness training and no steps, apparently, had been taken to implement the Commission for Racial Equality’s guidelines for ensuring that equal opportunities are afforded to employees in the workplace.

	The thrust of the respondent’s case was that Dr Abegaze was effectively dismissed because the company harboured serious and increasing doubts about his technical competence. It was their case that he failed to carry out investigation work that was asked of him into design alternatives for various components for use in, I think, a mobile telephone. 

	Dr Abegaze for his part believed that the respondents were wrong in the view that they had formed about his technical competence, indeed, his academic qualifications and track record in industry and in lecturing would, he say, lead to the conclusion that that cannot have been the genuine reason for the respondent’s concerns. Dr Abegaze said that because he was obviously patently competent and because the employers were relying on his lack of competence in support of their case that he should be summarily dismissed, there was room for the drawing of an inference that the respondents were acting because of his race. He also said that the way he was treated in relation to the dismissal, the summary nature of it, the no specific warnings and so on, justified the drawing of the inference that although not all unreasonable behaviour is to be confined to behaviour towards black people or white people in particular, nonetheless this was material from which the Industrial Tribunal would draw an inference.

	The Industrial Tribunal considered each of these specific complaints. They concluded as a matter of fact that Dr Abegaze was not treated with any less respect or consideration than his colleagues; that he was not kept on late at work; that there was no evidence that there had been a delay in providing him with a computer; and that he had not been supervised more closely than other employees.

	The Industrial Tribunal then turned to the more general allegation that had been made and they said this:

“10 ... The circumstances of his dismissal may be said to demonstrate some unreasonableness or, perhaps, unfairness on the part of the respondents, but as has already been indicated that is not sufficient to enable us to infer racial discrimination. ... We have considered the considerable body of evidence that has been put before us on this issue and have come to the unanimous conclusion that we accept the explanation that has been put before us by the respondents. It may be that on a factual basis the view which they form of Dr Abegaze’s capability was wrong, but we are satisfied that they did form that view. We are satisfied that that was a genuine view and we are satisfied that that is what led them to dismiss Dr Abegaze. In those circumstances and having regard to the other matters already referred to we have concluded that we should not and we do not draw the inference of racial discrimination. For those reasons we have come to the decision that this application fails.”

	In support of the appeal Mr Sethi in an extremely able argument, on behalf of Dr Abegaze, emphasised that the appeal fell under three heads. 

	Firstly, he relied on the failure of the Industrial Tribunal to permit Dr Abegaze to have the witness orders which he was requesting the Industrial Tribunal to make. Ultimately, five of the six witnesses whom Dr Abegaze had initially wanted to give evidence did give evidence as witnesses for the respondents. The sixth, Mr McNulty, did not give evidence but he was a respondents’ employee. 

	It is our experience that Industrial Tribunals frequently are asked for witness orders against the other party’s own witnesses. Sensibly, unless there is some good reason why they should depart from this practice, they take the view that it would not be in the applicant’s interests for such evidence to be called by the applicant but rather for the respondents to put forward their own witnesses so that they may be cross-examined by the applicant, who otherwise would lose the opportunity to ask leading questions during their examination.

	In this case, we are satisfied that the Industrial Tribunal was perfectly entitled in the exercise of its discretion to refuse to make witness orders in the absence of some compelling or good reason. The closest that the applicant came to putting forward reasons why he needed those witnesses was contained in a letter which he sent to the Industrial Tribunal dated 9th December 1997 which was only a matter of days before the final date of the resumed hearing. In those circumstances, the Industrial Tribunal was quite entitled to say, in our judgment, that that was too late for the application for a witness order. We are not in the slightest bit persuaded that any unfairness or injustice has been done to Dr Abegaze as a result of the way the Industrial Tribunal refused his applications for witness orders.

	The second ground of appeal urged upon us is that although the Industrial Tribunal correctly articulated the test which they had to apply in paragraph 3 of their decision, there was no evidence that they had actually applied the guidelines which they had set out in the earlier paragraph. Ideally, it was submitted by Mr Sethi, having set out the guidelines and having found the facts, the Industrial Tribunal should then apply the guidelines to the facts as found. It was the process of ratiocination which was missing from the tribunal’s decision, which he was criticising. He said that there was evidence that the Industrial Tribunal was confusing the test which should be applied. They have referred to the question of motive, “what was the respondents’ motive in dismissing him” (paragraph 8 of the decision). That was not the test that had to be applied. Furthermore, they do not appear to have asked themselves, so he said, the question as to whether race may have been an effective or operative cause rather than confining themselves to the question as to whether it was the effective or the operative cause. Secondly, under the heading of misdirection, Mr Sethi suggested that the Industrial Tribunal had failed to ask itself the question whether, if the comparators were not true comparators, if Dr Abegaze had been white, on a hypothetical basis, one could conclude that the difference in treatment between him as he was and him as he hypothetically might have been was due to his race.

	We have given that submission careful consideration, but it seems to us having regard to the whole of the decision, rather than just looking at a part of it, that we are unable to say that it is reasonably arguable that the Industrial Tribunal have in any way misdirected themselves in law. It would be a surprising conclusion to arrive at, in the light of the fact that they had carefully stated what the law was in paragraph 3 of their decision. They have plainly not just looked at the specific incidents which were relied upon, but sensibly stood back and asked themselves the question whether in all the circumstances this was an appropriate case justifying the drawing of an inference, and it seems to us that that the Industrial Tribunal have well in mind the law which they have set out in paragraph 3 in arriving at their decision, which I have summarised earlier in this judgment. Accordingly, we do not regard this head of appeal as being worthy of a further hearing.

	In relation to the third point, it can be described as an allegation of bias. It takes two forms. Firstly, that in relation to one of the lay member’s interest in the outcome of the case; and secondly, the tribunal’s conduct.

	In relation to the member’s interest, during the course of the hearing one of the lay members became aware that she had had dealings with a company which had previously employed one of the respondents’ principal witnesses. She disclosed that immediately she became aware of it and that she had provided consultancy services to that former employer of the principal witness. The note made by the Chairman at the time was that she indicated that she still did some consultancy work for that former employer. Dr Abegaze felt himself unable to comment on this position, but counsel for the respondents had offered no objection. The next note of the Chairman reads as follows:

“Test is bias R v Gough.
Applicant offered opportunity to contact his solicitors on phone to take advice. JGH [the Chairman] indicate he cannot foresee a problem, but will consider whatever applicant has to say if he wishes to do so and if he wishes to speak to solicitor he can have short adjournment. Applicant unable to say. Doesn’t wish to make accusations of bias without taking legal advice. Will leave matter to Chairman. Will not cause Angela Chris any problems to proceed.
Will proceed.”

	It seems to us that that note evidences an entirely proper approach taken by the Industrial Tribunal to the awkwardness which comes from a revelation such as the lay member quite properly was making in this case. The Industrial Tribunal was well aware of the test of bias in the case of Regina v Gough. The Chairman was entirely right to draw that to his own attention and to the attention of his colleagues and to apply that test. The Chairman was also right to have offered Dr Abegaze an opportunity to contact his solicitors on the telephone to take advice, and the Chairman was quite right to ask, as he apparently must have done, the lay member concerned as to whether she felt in any way embarrassed by continuing to proceed as an adjudicator; hence the note:

“Will not cause Angela Chris any problems to proceed. Will proceed.”

There was some conflict between the recollection of Dr Abegaze himself and the Chairman as to the extent to which Dr Abegaze was given an opportunity to contact his solicitors, but we have no reason to doubt the correctness of the note which says:

“Will leave matter to Chairman.”

That was a very understandable reaction for somebody like Dr Abegaze to have had to the problem which arose. We accept that that truly reflects the position. Accordingly, we not only consider that the tribunal has not arguably behaved improperly in relation to that matter, on the contrary, we are all of the view that the Industrial Tribunal has behaved entirely correctly in dealing with what was potentially an awkward problem.

	The second ground of bias can be put in relation to the conduct of the Industrial Tribunal. It is said that the Industrial Tribunal did not effectively allow Dr Abegaze to pursue his cross-examination without constant interruption. Secondly, that he was not allowed to present documentary material which he wanted to adduce to show that the allegations of incompetence were really just simply not credible.

	As to the interruption of cross-examination, it is, as every Court will know, always difficult to judge when it is appropriate to intervene and when it is unfair to do so. We are not satisfied, having read the papers in this case, that Dr Abegaze has a good complaint of unfairness in this regard. There is no reason to believe that there has been any misconduct by the tribunal in relation to that or any unfairness caused as result of, no doubt, interventions made on several occasions during the course of a process which is always difficult for lay people to go through.

	As to the adducing of documentary material. That is very much a matter for the case management of the Industrial Tribunal. It seems to us that that would not form the subject matter of a proper complaint of misconduct. The admission or otherwise of material is a judgment that has to be taken by the tribunal of fact and we will not intervene lightly with such decisions. There is no reason to believe that there has, as been any improper conduct on the part of the tribunal in either of the respects alleged. 

	Accordingly, despite Mr Sethi’s admirable arguments, we have not been persuaded that this case should be allowed to proceed to a full hearing. The appeal must be dismissed.