Appeal No. EAT/1447/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 April 2000

Before
HIS HONOUR JUDGE PETER CLARK
MR P DAWSON OBE
MR I EZEKIEL

MR AJAY VADEHRA	APPELLANT

1)	LINKLAITERS & PAINES 
2)	JOHN CAHILL 
3)	NIA REEVE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	MR A VADEHRA
In Person	

JUDGE CLARK

1	This is an appeal by Mr Vadehra against a decision of an Employment Tribunal sitting at London (South) (Chairman: Mr M S Rabin) following a 5 day hearing, dismissing his complaints of race discrimination and victimisation against the Respondents  (1) Linklaiters & Paines and their employees, (2) John Cahill and  (3) Nia Reeve.  That decision was promulgated with extended reasons on 22 October 1999.

Background
2	The Appellant, who is of Asian ethnic origin, is a law graduate.  He commenced work with the first Respondent on 12 October 1995 in their Computerised Legal Support (CLS) department.  He was formally employed by an agency (UKPS) and his services as a contract worker were provided by UKPS to the first Respondent.

3	At the relevant time the Appellant’s line manager in the CLS department was Mr Cahill; his manager in turn was Ms Reeve.  The Head of CLS was Mr Michael Brock.

4	On 17 February 1997 Mr Cahill terminated the Appellant’s services.  That decision was affirmed by Mr Brock.  Having no other work for him, UKPS then terminated his employment.

5	In mid-May 1997 the Appellant commenced 2 separate sets of proceedings in the Employment Tribunal.  (1) against UKPS, alleging unfair dismissal and race discrimination, (2) against these 3 Respondents alleging racial discrimination and victimisation.

6	The proceedings against UKPS were struck out by the Employment Tribunal.  An appeal by Mr Vadehra against that order (EAT/603/99) was dismissed by a division presided over by Morison J, on 13 May 1999, when Mr Vadehra failed to attend the appeal hearing.  An application for a review of that decision was refused by me on 23 July 1999.

7	The proceedings against these Respondents were also struck out.  However, Mr Vadehra’s appeal against that decision (EAT/291/98) was permitted to proceed to a full hearing at a preliminary hearing on which I sat held on 5 October 1998.  At the full hearing before a division presided over by Judge Levy QC on 8 March 1999 the appeal was allowed, the Respondent’s solicitors having indicated on 26 November 1998 that they did not oppose it, and the complaint was reinstated.  It was then heard substantively by the Rabin Employment Tribunal between 27 September-1 October 1999.

Employment Tribunal Decision
8	Having heard a good deal of oral evidence and considered the documents put before them the Employment Tribunal’s written decision and reasons is on our view ideal for its purpose.  It begins with the issues which the Employment Tribunal is asked to determine; it sets out the Employment Tribunal’s findings of fact in a logical and coherent sequence, identifying the disputed questions of fact and resolving them (in each case in favour of the Respondents, for the reasons given); It sets out, correctly, the law to be applied to the facts as found; records the parties’ oral submissions by Counsel for Respondent’s, Ms Ivimy, and by the Appellant who appeared in person and finally states its conclusions.

9	In summary, it rejected the Appellant’s evidence that he had on two occasions, in March and December 1996, made complaints of racial discrimination which amounted to protected acts for the purposes of Section 2 of the Race Relations Act 1976.  Accordingly the complaint of victimisation failed.  It considered and rejected each individual act of direct race discrimination alleged by the Appellant against the Respondents for clear and permissible reasons.  Accordingly the application failed.

The Appeal
10	In this appeal Mr Vadehra takes 3 points, all or any of which he invites us to allow to proceed to a full inter partes hearing.

1)	He complains that the witness statements prepared by witnesses called on behalf of the Respondents were not signed before those witnesses gave oral evidence.  He accepts that there are no formal requirements for witness statements to be signed but asserts that the witnesses gave evidence orally which conflicted with that contained in their witness statements.  He tells us that he pointed that out both in cross-examination and in final submissions to the Employment Tribunal.  The error of law he invites us to conclude is arguable on this ground of appeal, is that it is not acceptable to permit unsigned witness statements to be placed in a bundle before the Employment Tribunal.

For the purpose of this preliminary hearing, Counsel Ms Ivimy prepared a note in relation to the question of the signing of witness statements, although the Respondents have no standing at this preliminary hearing Mr Vadehra has seen the note and does not disagree with its content.  What Counsel says in the note is this:-

Prior to the hearing the Respondents voluntarily exchanged witness statements with the Applicant.  The Respondents’ statements were not signed.  

At the hearing the named Respondents and other witnesses for the Respondents gave evidence in chief orally on oath by reading their statements out loud and by answering supplementary questions.  They were then cross-examined and asked further questions by the Employment Tribunal members.

After the witnesses had concluded their evidence the Appellant complained that their statements were not signed and asked the chairman to direct that they be signed.  He was unable to explain why he required the statements to be signed at this late stage in the proceedings.  Having heard argument on this issue the Employment Tribunal refused to give a direction that the statements should be signed.

	The Chairman stated orally that the evidence in question had been given orally on oath.  He also commented that the witnesses had in the usual way expanded on and modified the evidence contained in their witness statements during the course of giving evidence orally.  He concluded that it would be inappropriate for the witness statements to be signed at that stage of the proceedings.

We bear in mind that Rule 13(1) of the Employment Tribunal Rules and Procedure allows Employment Tribunal’s to regulate their own procedures subject to the express provisions of the Rules.  It seems to us that the course that the Chairman took on the basis of the agreed note that is before us was perfectly permissible and no error of law is here made out.

2)	There was evidence before the Employment Tribunal which is dealt with in paragraph 7 of their extended reasons that in mid - 1996 Mr Cahill received an e-mail message from a friend which comprised a list of so called jokes; some contained racist or sexist elements, Mr Cahill circulated that list around the office by the e-mail system.  It appears he was then upbraided by Ms Reeve and steps were taken by the first Respondent to prevent that sort of activity occurring again.

In relation to that head of complaint the Employment Tribunal, at paragraph 35 of their reasons, found that the first Respondent’s had satisfied the requirements of section 32(3) of the Race Relations Act 1976, in that they had taken all reasonable steps to prevent the relevant discrimination act; that so far as Mr Cahill personally was concerned the Employment Tribunal found that in view of his contrition they did not think it would be just and equitable to extend time for that complaint to be made, it having occurred more than 3 months before the presentation of the Originating Application in May 1997.  As to that, Mr Vadehra submits that the Employment Tribunal have failed to give sufficient reasons for their conclusion that it would be just and equitable not to extend time on this case.  We bear in mind that Employment Tribunal’s have a wide discretion under this escape clause.  We are unable to conclude that they have failed to take into account all relevant matters and it seemed to us that that was a permissible exercise of their discretion.

3)	One of the factual issues between the parties was whether or not a warning issued to the Appellant by e-mail on 14 February 1997 was administered in the form which Mr Cahill said that it was or whether the e-mail produced by the Respondents was fabricated as Mr Vadehra would have it.  On that factual issue the Employment Tribunal made a clear finding at paragraph 41 that they do not accept that Mr Cahill fabricated his e-mail of 14 February which contained a final warning.  Questions of fact are for the Employment Tribunal and not for us.  Mr Vadehra has referred to a passage in paragraph 19 of the Employment Tribunal reasons which deals with the date of a file note which Mr Cahill said he made on the afternoon of 17 February but which at its foot bears the date 28 February.  In these circumstances Mr Vadehra submits that the Employment Tribunal ought not to have preferred Mr Cahill’s evidence as to the genuineness of the e-mail of the 14 February.  We are unable to accept that submission.  It seems to us this Employment Tribunal looked carefully at all the factual issues that arose.  They resolved them in a way that they were entitled to do.  

11	In these circumstances it seems to us, having considered each of the 3 grounds of appeal advanced, that none disclose any arguable error of law on the part of the Employment Tribunal.  Accordingly this appeal must be dismissed.