Appeal No.	EAT/1271/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 October 1999

Before
THE HONOURABLE MR JUSTICE HOLLAND
MS S R CORBY
MRS R A VICKERS

MR A MAHAJAN	APPELLANT

HAYS PERSONNEL SERVICES 
T/A ACCOUNTANCY PERSONNEL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MS L McCULLOUGH
(of Counsel)
Instructed by
Messrs Gupta & Partners
Solicitors
5 Masons Avenue
Wealdstone
Harrow 
Middlesex  HA3 5AH

	MR JUSTICE HOLLAND:	Mr Mahajan is an accountant and he is Indian by origin.  In 1993 or 1994, (it matters not which year), he registered with an employment agency, Hays Personnel Services Ltd, with a view to that organisation finding him a post as an accountant.  It is common ground they did find one such post.  On 3 October 1994 they placed him at Biro Bic Ltd.  He remained in that employment until 17 November 1994 when he was replaced by another individual who had used the same agency.  That other individual was a white person.  Despite remaining on the books of this agency -not only at their Wembley office, that is the office that had been successful on his behalf, but also at other offices, for example Golders Green and Harrow - no further placements have come his way.  

1	In the overall result, on 20 March 1997 he made an application to the Industrial Tribunal and the application alleged that he had been discriminated against contrary to the Race Relations Act.  The discrimination was alleged against the agency.  It is material to read the first part of the grounds of his application.  They are as follows:

“The Respondent is an employment agency.  I registered with the agency at its Wembley Office for temporary and permanent employment on or about mid 1993.  Since my registration with the agency it has placed me for just one temporary assignment with Biro Bic Ltd, which was from first week of October 1994 to 4th week of October 1994, for a total period of less than 4 weeks.  I learnt that for that particular assignment the agency had placed various candidates who were not even capable of the job and I was given that job only when a number of candidates placed by the agency had failed to do the job.  I learn that that job was made permanent but despite my having done the work efficiently a white person was placed by the agency for permanent employment.  Not only that, to place the white candidate there permanently my assignment was cut short before the time for which I was told that assignment will last.  
The agency has written to me that it desperately need temporary staff at all levels, however, have not managed to find me even one single placement.  I have asked for reason for the agency’s failure to place me but it has not given me any explanation.  I think that the reason for the Respondent’s failure to find me a placement is motivated by racial discrimination.”

The balance of the grounds makes the point, no doubt well based, that the different offices of the agency share the same records so that discrimination by one office, he would allege, in practice means discrimination by them all.  

2	Before departing from that account, it is worth noting that this was given quite some time after the events in question.  The IT1 is March 1997; the events he is describing are in October 1994.  The further observation we make is that were those the facts then a clear case of racial discrimination would appear to emerge at least sufficient to call for an answer from the agency.  

3	We then turn to subsequent events.  Following two days of hearing in May 1998 followed by some further hearing on 31 July the Employment Tribunal sitting at Stratford adjudicated on this matter by way of a decision and Extended Reasons that were sent to the parties on 7 September 1998.  It is worth noting before continuing with this judgment that there had been an earlier preliminary hearing of the Tribunal, this time on 17 July 1997.  The result of that preliminary hearing be a finding in favour of Mr Mahajan, namely that the Tribunal had jurisdiction to consider his complaint that he had been discriminated against on racial grounds. 

4	Turning back to the decision and Extended Reasons of September 1998, the decision was in terms:

“The unanimous decision of the Tribunal is that the Respondent did not unlawfully discriminate against the Applicant upon the ground of his race.”

Against that decision, Mr Mahajan appealed to this Tribunal.  The initial grounds of appeal were six in number and also 1) related to the material set out in the Extended Reasons.  They alleged that the Extended Reasons disclosed errors of law that vitiated the decision, errors of law that would justify an appeal to this Tribunal.  However, by ground of appeal 5(d) the allegation was made:

“The manor in which the Tribunal dealt with this matter is not satisfactory to wit. 
members of the said Tribunal were in a hurry to go home and hence the quick manner by which this matter was disposed of.”

5	All that led to, as is common place, a preliminary hearing before this Tribunal.  That preliminary hearing took place on 26 January 1999.  The object of that hearing, just as the object of today’s hearing was to decide whether there was a point in law that merited an adjournment so as to provide for an inter partes hearing.  In the event, what this Tribunal ordered was that the matter should be adjourned.  The reason for the adjournment was to give Mr Mahajan opportunity to file fresh grounds of appeal limited to bias and prejudice.  It further gave him leave to file a sworn affidavit to support any allegations of bias and prejudice.  It then ordered that the matter should be relisted for a further preliminary hearing.  

6	Mr Mahajan took advantage of this order as indeed he is entitled to do and that which had been a passing reference in the initial grounds of appeal was expanded into seven further grounds all of which relate to the conduct for the initial hearing by the Tribunal.  It is said by way of those grounds that the conduct of the Tribunal was prejudicial to him, it is said further by way of those grounds that the Tribunal was biased against him and those allegations are developed in the remaining heads of appeal.  Further, again as was allowed by the order of this Tribunal, Mr Mahajan filed an affidavit covering some ten foolscap pages in the course of which he indicates with much detail his impressions of the original hearing and the circumstances in which, as he said, bias against him was evinced, particularly by the Chairman.  He further sets out how it was that the conduct of the hearing prevented him from developing fully the case that he wished to present.  That affidavit having been provided, copies of it were circulated with the result that our response is on the file before us, first from the Chairman and second from each of the two lay members who sat with the Chairman.  

7	With that introduction we turn to today’s hearing.  This is that adjourned ex parte preliminary hearing that was ordered in January and just as with the position then it remains today for us to identify if we can a basis to have this matter proceed as a inter partes hearing, that is with Hays Personnel Services represented.  If we are unable to find a basis for any such hearing, it is our task to dismiss this appeal.

8	Turning then to the way that the matter has been put to us today, we have had the very considerable benefit of submissions by Ms McCullough, on behalf of Mr Mahajan.  We are grateful to her and we are quite sure that Mr Mahajan is similarly grateful.  Her submissions fall into two parts.  By the first head of submission, she approaches the appeal effectively in the light of the original ground of appeal and that is to persuade us that careful examination of the decision and the Extended Reasons serves to show an error of law that would justify an appeal.  By way of her second head she would submit that the nature of the hearing as revealed by the further evidence supplied in accordance with the direction of this Tribunal was such as to thoroughly justify a reference to an inter partes hearing to see whether indeed there has not been a miscarriage of justice, such as would merit a return for rehearing by a fresh Tribunal.  

9	Let us then look at her first point.  By way of preliminary observation, we have to say that the Extended Reasons are on the face of them, quite admirable.  As to their drafting, they aim plainly to be comprehensive and detailed.  They flow in such a fashion as to enable us to follow the reasoning of the Tribunal.  They demonstrate its concern to find facts, to direct itself as to the law, and thereafter to make findings as to the issues that they discerned as arising in this matter.  It is to be noted that they identified the issues for their deliberation as three in number.  They appear at paragraph 5 of the Extended Reasons in these terms:

“Issues
i)	Whether the Respondent sought to frustrate Mr Mahajan’s placement for employment by finding him an unsuitable position?
ii)	Whether, after the termination of that position, the Respondent sought to further frustrate Mr Mahajan’s employment prospects by failing to put him forward for suitable posts?
iii)	Whether, if established, the aforementioned actions were unlawful acts of discrimination based upon Mr Mahajan’s race?”

10	As we understand it there is no dispute that those were the issues in the case.  They then recite in careful detail the history of this matter.  They point out that the Respondent agency would gain nothing financially unless and until it placed Mr Mahajan in a position.  As long as he remained on their books without a position they had no income arising from his registration.  

11	Turning then to the employment with Biro Bic, the facts as they find them to be are in marked contrast to those as they were remembered by Mr Mahajan when he started this matter in March 1997.  They make the findings that he was one of a line of persons who had been placed by the Respondents with this company, Biro Bic, the previous persons placed by them being a Mr Gonsalves, a white European, and a Ms Daywood who was black British.  They noted that Mr Mahajan did commence work by way of a placement with this company on 3 October at £7.00 per hour.  Their findings then read on:

“Mr Mahajan’s reaction to the work on 3 October 1994 was that it was too mundane.  Ms Stacey’s reaction was understandable and reasonable – she told him to “stick with it”.
Because Mr Mahajan was not thorough enough and made too many errors in his work, Biro Bic became dissatisfied with his placement.
Consequently Mr Ballard of Biro Bic (a person who had been placed by the Respondent in that company) informed the Respondent on 18 October that they required Mr Mahajan to be replaced.
The intimation of Mr Ballard was in response to an offer from Ms Stacey which was consistent with the Respondent Company’s policy of offering a placement should any form of dissatisfaction be communicated by the client company.”

Then still later in their findings they note that:

“On 17 November 1994 Mr Mahajan was replaced by Mr Gonsalves who was available again.  Mr Gonsalves had become dissatisfied with his new post and the client company was keen to re-employ him again.  Mr Gonsalves was re-employed by the company at the same rate that the Applicant had enjoyed, namely £7 per hour.
An adverse finishing reference was then supplied by Biro Bic (Mr Ballard was the author) to the Respondent which indicated that the Applicant should address his “lack of diligence” if he was to “sell himself at this level”.”

Finally they concluded in dealing with this particular episode:

“There is no evidence to suggest that Mr Ballard or Biro Bic, in expressing their dissatisfaction with the Applicant and wishing to have him replaced by Mr Gonsalves, did so from a desire to racially discriminate against Mr Mahajan.  The point of the replacement was to ensure that they had a satisfactory and efficient accounts assistant.”

12	By way of these Extended Reasons the Tribunal then reviews subsequent history and it is apparent that the real problem is almost identically opposite to that which was identified by Mr Mahajan in his IT1.  The real problem as it emerged was this, that having not been a success in that particular employment and having acquired this adverse reference from Mr Ballard, thereafter the agency were in some difficulty and kept urging him to obtain, if he could, positive references - that is references which would balance out and hopefully override Mr Ballard’s adverse reference.  There are findings that this was done, indeed in writing, on 15 May 1995 and there are findings that, again, it was indeed a matter of some repetition on the part of the agency as they sought to place him.  Again it is recorded that it was a matter of some urgency because they rightly or wrongly were finding Mr Mahajan a demanding client.  They then also point out that in the course of his dealings with him whether by accident or by design, the persons mainly allotted were persons from ethnic minorities.  Particular reference is made to a Mr Honah who seemingly is Nigerian, and a Mr Seenundun who is Mauritian.  

13	Having then thus reviewed the facts, there is a direction as to the law which properly centres upon the decision of the Court of Appeal in King v Great Britain China Centre [1991] IRLR 513 at 518, and the Tribunal then moved to its conclusions.  They conclude:

“16 a)There was no policy or agenda for denying the Applicant a placement for employment.  
b)	There was no policy or agenda for treating the Applicant as a second class candidate.
c)	None of the Respondent’s witnesses presented as individuals who would be a party to any policy or agenda to discriminate against Mr Mahajan on the grounds of his race.
d)	The Respondent is in business to place people in employment.  If they do not, they do not get paid.  Mr Mahajan’s failure to obtain a satisfactory placement was due to a number of factors, including:
i)	the competitive state of the market;
ii)	the negative reference that he received from Biro Bic;
iii)	his inability to produce positive references to counter-act the negative one;
iv)	periodic lapses in remaining in contact with the Respondent.
e)	No inferences can be drawn in this case which are detrimental to the Respondent’s conduct in the context of race discrimination.  The evidence indicates that the Respondent treated the Applicant in the same way as he would have treated any other individual who had registered with it for employment.”

14	We recited all this at some length in the course of this judgment because we appreciate with the aid of Ms McCullough the strength of Mr Mahajan’s feelings about this particular case.  It is manifest, looking at these reasons, that there is nothing in them that suggests any obvious error of law, certainly nothing that we by way of a judgment could identify for the benefit of the further Tribunal that would hear the inter partes hearing.  There is a particular point that has been made by Ms McCullough, to which we have given careful consideration.  That point ironically arises out of a finding by the Tribunal which was in Mr Mahajan’s favour.  Mr Mahajan told the Tribunal that in or after April 1996 he had a meeting with a Ms Alexia Bradley of the Respondent’s Wembley office.  Ms Bradley for her part told the Tribunal that she could not recall the meeting.  

15	There was therefore an issue for the Tribunal as to whether there had been such a meeting and the Tribunal accepted that Mr Mahajan was right.  One reason for their acceptance was that the Respondent’s records showed information emanating from Mr Mahajan which could only have come after July 1995 so that the there was a clear indication that there must have been an occasion that those details were imparted.  At all events it is urged that the fact that Ms Bradley was wrong is in itself a potential indication of underlying racial discrimination, particularly once one approaches the matter with the guidance that is given by King v Great Britain China Centre.  

16	A complaint is therefore made that nothing more was made of this conflict and of the finding that Ms Bradley was wrong.  We have done our best to give every weight to that point.  We bear in mind that it is recorded simply that Ms Bradley could not recall the meeting.  It would not in our judgment be surprising if a Tribunal found that that failure to record was of itself a basis for upholding Mr Mahajan’s complaint and although we have taken and understood Ms McCullough’s point, we do not regard it as being in any way that would justify sending this matter to an inter partes hearing on the basis that there was an error of law underpinning these conclusions.  Essentially these conclusions are of a nature and content that passes any inspection by any acute lawyer looking for error.  It simply cannot be discerned.  We cannot identify even with the aid of Ms McCullough.  

17	We then turn to the other aspects of the matter which has caused us a little more concern and that is the conduct of the hearing.  By way of preface we point out that first; Mr Mahajan was unrepresented and has no particular experience as an advocate, and second; that for whatever reason, he decided that the case he wanted to present was not just that there were people within this organisation who were racially discriminatory, but that there was some conspiracy afoot to deny him employment - a conspiracy motivated by racial discrimination.  One has only to put forward that proposition to realise that it is indeed a startling one.  Why these various employees of Hays should be mustered together in order to try to deny him employment when the whole function was to obtain him such and therefore to obtain money is not clear.  But in all events, that was the case that he wanted to present.  The problem was that he had absolutely no evidence at all of any such conspiracy and thus, from the start, he was trying to advance a case which was plainly lacking in evidential support.  His aim was to try to establish this by way of cross-examination, that is by trying to elicit admissions which when put together as Ms McCullough phrased it “a mosaic”, would depict a conspiracy.  

18	His particular problem, although he may not have realised it is this, that if he had been a professional advocate, that is either a barrister or a solicitor, the Tribunal would not have allowed him to do this at all.  There are very strict rules about the scope that is given to a professional advocate and no professional advocate would be allowed to advance a conspiracy theory, unsupported by any evidence.  The reason is that it is not in the public interest that very serious allegations should be bandied about unless there is some underlying clear support.  Of course a professional advocate could have suggested to Mr Seenundun that he was mistaken in his recollection.  He might have been allowed to suggest that he was lying, but nobody professional could have suggested to Mr Seenundun that he had been bribed unless there was actual evidence of the passing of money to Mr Seenundun, that is, clear evidence that would substantiate the allegation.  Now this particular point may not have struck Mr Mahajan.  There was no doubt about it that it seems to have struck the Chairman as it should have done.  It was his job to control these particular proceedings.  Whereas it is certainly his task to make sure that the unrepresented Applicant is in no way at a disadvantage, equally it is his task to make sure the unrepresented Applicant is not at an advantage that would not be shared by a professional advocate.  

19	That, in our judgment, seems to be one of the problems that contributed to the difficulties below.  Another one seems to be common ground between Mr Mahajan and the Chairman and that was the question of the Chairman’s notes.  Mr Mahajan complains that the Chairman when reading out the note that he was proposing to make misrepresented the evidence.  There is an indication that the Chairman himself was concerned because in his view Mr Mahajan was misrepresenting the evidence of other witnesses.  At all events there was, we find, this continuing problem of that particular aspect.  Yet further, there were other difficulties.  Mr Mahajan very sensibly had prepared a list of questions that he wished to put.  He provided those to the Chairman and the Chairman thereupon provided them to his opponent.  Mr Mahajan was concerned about this.  Perhaps on reflection he realised that the Chairman essentially had no choice if the Chairman was going to conduct the matter fairly, after all, the Chairman had to be fair not just to Mr Mahajan but also to Hays.  

20	There were other problems that flowed because of the question as to whether Mr Mahajan was allowed sufficient time.  He seemingly felt that two days may not have been enough or may not have been enough given there was a late start on the first day and (we think) at some stage early adjournment.  The Chairman himself raises the point that the room they were in was very hot and that, he thought, contributed to the problems that there were.  It is inevitably difficult for an Appellate Tribunal to form a view about these sort of complaints and the weight to be accorded to them.  We cannot but observe that as complaints they rather developed after the preliminary hearing in January.  As we have pointed out in this judgment, up to that point they did not surface.  It was only after the preliminary hearing in January that in reality they surfaced.  

21	The second observation that we make is that it is inevitably difficult to deal with this in the absence of some independent assessor, that is somebody who quite independently can advise the Appellate Tribunal, as to the weight of the complaint.  As I have pointed out in the course of argument, this problem arises from time to time in criminal appeals and it is often then the practice of the Courts to ask members of the bar who are present to give their assessment, not on the basis of their duty to their client, but on the basis of their duties to the Court.  I pointed out that there was present throughout this hearing a Mr Lewis, of Counsel, who appeared for Hays, and one solution that we have considered is whether to adjourn this matter to allow Mr Lewis to tell this Tribunal, through his duty to the Tribunal, of his impression of the hearing and of its fairness.  This suggestion did not appeal to Mr Mahajan. 

22	This Tribunal was impressed by a letter that was received from one of the lay members of the Tribunal, Mrs Robertson, and that letter merits reading.  It says this:

“I do remember Mr Mahajan’s case, although I don’t remember who gave the oath.  I am not surprised Mr Mahajan has appealed against the Tribunal’s decision as he was an enthusiastic and determined Applicant.  Despite his considerable efforts, which I recall included imaginative interpretations and witnesses’ answers during cross-examination, he completely failed to present any compelling evidence of an alleged conspiracy on the part of the Respondents to discriminate against him on the grounds of his race.  The Tribunal simply could not detect the taint of racism in the Respondent’s dealings with the Applicant.
I regret that this complaint has been made against a Tribunal member.  I recall the proceedings were tense at times and that Mr Mahajan was frequently beside himself at the Chairman’s guidance.  He was intensely frustrated by the expertise of opposing Counsel and the difficulty of the task he had set himself, to prove an elaborate and complex conspiracy theory.
I am always sensitive to the difficulties faced by Applicants, particularly those in person.  As a trade union officer I represent applicants at Employment Tribunals across England and Wales.  As a white person considering a race discrimination case I feel I have a particular responsibility to ensure that I look at the evidence objectively and hope I never give the appearance of doing anything other than that.  Frankly the possibility that either I or Ms Wisher were communicating with the Respondent’s witnesses is absurd.”

We cite this in full because at the end of our deliberations we felt that with that additional assistance we did not need to go further and ask to adjourn this matter so as to have the assistance of Mr Lewis.  

23	Our assessment having taken into account all this further material and giving sympathetic reading to it all is that there was nothing in there that would result in a miscarriage of justice.  We have pointed out that this is a complaint with a late origin.  We have pointed out that the Extended Reasons showed a very thorough understanding of all the facts and must therefore have reflected a hearing, which served effectively to establish evidence.  We also have taken into account the difficulties that would inevitably be encountered by Mr Mahajan in advancing his case - difficulties that are specifically referred to by Mrs Robertson.  And finally, we felt that Mrs Robertson was plainly trying to do her best to assist and therefore, was somebody we could rely upon.  

24	It is not without interest that when asked for Mr Mahajan’s comments upon it he immediately said “she must be lying to support the Chairman”.  Well that instant reaction is one of the problems that may have underlain this whole conduct of the matter, namely the willingness to impute improper motives to people even though they may genuinely be doing their level best.  Very often it is the experience of these Tribunals and of the Courts generally that people very often get things wrong but rarely do so deliberately and in pursuit of any conspiracy or any desire to be malign or unjust.  Thus it is, turning to the second of the heads well advanced by Ms McCullough, we find that we cannot discern the matter that should go forward for consideration by this Tribunal on an inter partes hearing.  Thus it is finally that we have to dismiss this appeal.