Appeal No.	 EAT/348/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 October 2001

Before
THE HONOURABLE MR JUSTICE WALL
MR A E R MANNERS
MR P M SMITH

MRS A C P D'CRUZ	APPELLANT

COMMISSIONERS OF INLAND REVENUE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	The Appellant in person	
For the Respondent	MR BRUCE CARR
(of Counsel)
Commissioners of Inland Revenue
Legal Department
Room T117, East Wing
Somerset House
The Strand
London WC2R ILB	

MR JUSTICE WALL

1	The Appellant in this case, Mrs D’Cruz is employed by the Commissioners of Inland Revenue (the Respondent) as a tax inspector.  By an application dated 12 April 1999, she applied to the London (North) Tribunal claiming victimisation and racial discrimination.  Attached to her form ET1 are three typed pages, giving particulars of her complaint.  

2	Under the heading “Victimisation” she describes how, in 1991, she had brought proceedings against the Respondent alleging racial discrimination and victimisation, and how the victimisation case had been settled, whilst the complaint of racial discrimination had been unanimously upheld.  

3	She then relates how, as part of the settlement, she was given the opportunity to undertake an accounts investigation course.  She says that since passing her exam, she has worked hard and given total commitment to her work.  She says, however, that it has been a struggle to secure the markings which she has deserved at the end of each year.  She then sets out year by year her case in this respect, which she alleged amounted to victimisation.  Under the heading “1998/1999” she says this:
“I was moved to a new job where I have to learn new skills and this year it has again affected my performance marking and promotion prospects.  I feel that I was deliberately moved when I was doing so well, enjoying and becoming more skilful in my work.  This is similar to what happened to me before I submitted previous complaints to the Tribunal.
I demonstrated at my Tribunal hearing that the Region had influenced my performance reports.  I strongly feel that the situation is being revisited particularly in the way my 1997/98 appeal has been dealt with by senior regional officers.  The regional and district officers link still appears to have remained after my tribunal hearing to continue influencing my performance reports.
I requested an experienced and highly regarded officer from the Revenue to give me an opinion on my appeal before considering the Tribunal complaint.  The officer has given me a written report with detailed reasons why the appeal should have been upheld for both extra loaded and exceed markings.  The appeals officers totally ignored my appeal for the extra loaded marking.”

4	Under the heading “Racial discrimination (1997/98)” she says:
“I am black and a woman and feel that I have been less favourably treated than my white colleagues for the following reasons”
and she then sets out nine reasons why she alleges that has been the case, which I do not think it necessary to read for the purposes of this judgment.  She said that she had:
“ submitted a fully supported appeal.   The appeal was considered by a senior revenue officer in the region, (Assistant Director Compliance) who did not consider the Equal Opportunities issues I raised in my appeal nor did he provide reasons for not upholding the appeal in compliance with the Revenue procedures.”
Hence, she says, her need to institute proceedings.  

5	The Respondent, in its answer, makes it clear in paragraph 2, that:
“…as far as her complaint relates to victimisation and racial discrimination, an independent investigator will be appointed to investigate the complaint under the Equal Opportunities Policy.  The investigator will establish all the relevant facts and prepare a report expressing his/her opinion in relation to any disputed facts.  The report will then be considered by an independent Equal Opportunities Officer who will decide whether there has been victimisation and/or racial discrimination in the circumstances of the Applicant’s [Appellant’s]case.”

The hearing before the Tribunal lasted four days, with a further day in Chambers for consideration, and it is plain from the Reasons that the Appellant’s complaints were investigated in considerable detail.  The unanimous Decision of the Tribunal was that the complaints of direct racial discrimination and racial discrimination by way of victimisation both failed.  

6	Mrs D’Cruz was unhappy with that Decision and appealed to the Employment Appeal Tribunal.  Her Notice of Appeal is some thirteen pages in length.  It came by way of a preliminary hearing before a division of the Employment Appeal Tribunal, presided over by the President, Mr Justice Lindsay.  Judgment was given on 10 July of last year.  The Tribunal initially could find no arguable point of law.  However, having heard Mrs D’Cruz, the President explained that he thought the case would benefit from a full hearing on one point, and he explained his reasoning in this way:

“5	We do not need to go into any detail through the Extended Reasons because, although we would confess to having approached this matter, after having read the papers, on the basis that there was no error of law visible (and, of course, it is only errors of law with which we can deal) having heard Mrs D’Cruz this morning we do think that this is a case which would benefit from an inter partes hearing and we shall briefly explain why.  

6	One of Mrs D’Cruz’s complaints is that she wished to cross-examine a Mr Barnaby, who had apparently given a Witness Statement for the Inland Revenue.  She says, as a matter of complaint, under the heading “Mr Barnaby”:

“The Chairman denied me the opportunity to cross examine Mr Barnaby.  The Respondents advised that Mr Barnaby, one of their witnesses, was free to give evidence on the 1st December 1999.  I advised that he was one of the crucial witnesses and that I needed to cross examine him.  However the Chairman said she would decide on whether Mr Barnaby was a relevant witness.  She adjourned the hearing for 15 minutes to decide and decided that Mr Barnaby should not be called to give evidence.”

7	So that there, on Mrs D’Cruz’s version, the decision whether or not Mr Barnaby was to be cross examined was that of the Chairman.  In the ordinary course Mrs D’Cruz’s complaints, which were supported by affidavit, were put to the Chairman and the Chairman says, dealing also with a Mrs Phillips:

“Although the Respondent produced witness statements from Mr Barnaby, Ms Hanna and Mr Phillips, Mr Carr [Counsel for the Inland Revenue] did not elect to call them to give evidence.  The Tribunal did not take into account any evidence from Mr Barnaby, Mrs Phillips or, indeed, Ms Hanna.  Mrs D’Cruz did not ask for a witness order to compel these witnesses to give evidence for her.”

8	It is possible that both versions are true, but there is a possibility of confusion in that Mrs D’Cruz was pressing to be able to question Mr Barnaby and, as we have indicated, her version is that it was the Chairman that decided that Barnaby was not to be available, whereas the Chairman’s version is that it was Mr Carr, the Respondent’s Revenue’s Counsel, that in effect made the decision.  Mrs D’Cruz’ collected letters from a number of persons who were present at the hearing on the relevant day and it is Mrs Cruz’ assertion that the decision was not that of Mr Carr but rather of the Chairman.  We have a letter from someone called Gina, who has been identified more fully to us, who says:

“The Chairperson asked you if you wanted to cross-examine him and you confirmed that you had some crucial questions to put to him.  She then wanted time to discuss with her colleagues whether or not they would hear his evidence.  We were asked to leave the room so that this could be done in private.”

Then, a little later:

“After a short period of time …  The chairperson said it was their decision not to call Mr Barnaby to the hearing and so she would be moving on to the closing statements from both sides in the afternoon.”

Premanie Gibbs writes to much the same effect and L.D. Colquhoun writes that:

“The Chairperson asked Mrs D’Cruz if she wished to cross examine Barnaby to which the reply was a resounding ‘Yes’.
As a result the Chairperson dismissed those present to enable her to deliberate with her colleagues as to whether Barnaby should be called as a witness.”

9	It is not at all clear exactly what happened here and, as I mentioned earlier, both versions could, strictly speaking, be the truth.  But it would help us, or would help the Employment Appeal Tribunal, if they had the benefit of the Revenue’s version of events and, no doubt also, Mr Carr’s version of events so that it can be eventually decided in a more informed manner whether Mrs D’Cruz was denied an opportunity she should have been given or whether it was simply that the Revenue elected not to rely on Witness Statements and therefore decided not to call a witness and that therefore there was no question of the witness being cross examined, but rather that Mrs D’Cruz would have had to apply to call such a person as a witness and would then be in the difficulty that she would be unable to cross examine that witness unless and until the witness was held to be a hostile witness.  It is obviously a rather technical area in which lay people can get confused.  It would greatly assist us if we had an inter partes hearing.

10	So, having begun from the position that we saw no error of law in Mrs D’Cruz’s case, we do think, without saying whether or not there was an error of law, that this is a matter which should benefit from an inter partes hearing and accordingly we direct it to go to a full hearing.”

We are quite clear and I think, in fairness, it was accepted by Mrs D’Cruz in argument, that the only point for the Employment Appeal Tribunal today was whether or not Mr Barnaby should have been called as a witness; and whether or not the failure of the Tribunal to ensure that he was called, represented an error of law, depriving her of the opportunity to cross-examine and thus put forward a material part of her case.  

7	It is therefore to that issue which we now turn and upon which we will concentrate.  We have had the benefit of a Skeleton Argument and submissions from both Mrs D’Cruz and from Counsel for the Respondent, and Mrs D’Cruz has produced a bundle of documentation, supplementary to that which we have in our papers, which contains a second and more detailed Skeleton Argument, than that which she submitted for the preliminary hearing, all of which we have read.  

8	As far as Mr Barnaby’s evidence is concerned, this is what is said by Counsel for the Respondent, I take this from the Respondent’s answer, filed on 21 September:
“(2) Mr Barnaby was involved in the Appellant’s complaint to a limited and peripheral extent.  During the course of her employment with the Respondent and in part at least, in connection with those matters about which complaint was made to the Employment Tribunal, the Appellant made complaint about “quality points” which were given to her in relation to work which she had done for the Respondent and which may have had an impact on her performance appraisal;
(3)  In response to her complaints, the Respondent deemed it appropriate to undertake an equal opportunities investigation.  As part of that investigation, Mr Barnaby was commissioned by the Respondent to undertake consideration of a number of files on which the Appellant and others had worked in order to assess whether the quality points given in respect of such work, were appropriate.  His first involvement in the Appellant’s case was on 16th September 1999, long after the Appellant had first submitted her complaint to the Employment Tribunal of race discrimination.
(4)  A proof of evidence was taken from Mr Barnaby in relation to his consideration of the files as referred to above.  The Respondents had considered it possible that Mr Barnaby might be needed to be called by the Respondent to give evidence at the hearing of the Appellant’s complaint before the Employment Tribunal.  In the event, the Respondents came to the conclusion that it was not necessary to call Mr Barnaby to give evidence.  
(5)  Notwithstanding the Respondent’s decision not to call Mr Barnaby, the Appellant had indicated that she might wish to cross-examine him.  The position of the Respondents was that it was not necessary for them to call Mr Barnaby or indeed for the Tribunal to hear any evidence from him.  Nevertheless, in order to assist the Appellant, the position adopted by the Respondent was that it would not stand in the way of cross-examination of Mr Barnaby by the Applicant if the Tribunal felt that it would be appropriate to hear from him in order that it could reach a proper decision on the Appellant’s complaint.  Notwithstanding that stance taken by the Respondent, their primary submission remained that they did not wish to call Mr Barnaby and did not feel that his evidence was particularly relevant or necessary to a fair disposal of the Appellant’s claim.
(6)  In the light of the above, the Tribunal retired for a short period (approximately 5 minutes) in order to consider whether it may assist them to hear from Mr Barnaby.  Prior to such adjournment, the Tribunal had been provided with a copy of Mr Barnaby’s witness statement. 
(7)  Having considered the matter, the Tribunal returned and indicated to the parties that they did not feel that evidence from Mr Barnaby would assist in the consideration of the Appellant’s complaint.  They then handed back to the Respondents, the statement of Mr Barnaby and of 2 other witnesses whom the Respondent had decided would not be needed to give evidence.  The Appellant was then informed that she would be required to make her submissions at 2.30 pm (about 1 hour 45 minutes later).”

There was then discussion about when those submissions should be made.  According to Mr Carr, the Appellant raised no objection to the Tribunal’s conclusion that they would not be helped by hearing from Mr Barnaby.  Furthermore, he says she made no request for a Witness Order to be made against him, in order that she might herself call him to give evidence.  On that basis, Mr Carr submits that the fact that the Appellant did not have an opportunity to cross-examine Mr Barnaby does not give rise to any arguable point of law.  

9	In her most recent Skeleton Argument for this hearing, which is dated 20 September of this year, under the heading “Mr Barnaby” the Appellant says this:
“ I was denied the opportunity to cross-examine Mr Barnaby despite the fact that the Revenue was prepared to call him if I wanted to cross-examine.  Chairman’s comments”
(as recorded in the judgment of Mr Justice Lindsay)
“are untrue.  Witnesses and observers both white and black who attended the hearing have provided written statements”
(those are referred to) 
“and are prepared to swear under oath.  Mr Barnaby’s statement was the subject of evidence by my witnesses, the Revenue witnesses and by me in particular the form which demonstrates how quality points are awarded and how they are reflected in the district statistics and ultimately in the performance assessments.  This was a vital point as the Revenue appointed Mr Barnaby to examine my quality in cases.”

And she refers to Mrs Taylor having given evidence as to that.  She continues:

“The Revenue’s case hinged on the quality of my cases as it was argued that the number of cases that I dealt with was not the only factor and that Quality was important.  I had demonstrated that my quality on cases had exceeded my colleagues who received better performance markings and the cross-examination of Mr Barnaby would have reinforced this.  It is clear that if the Tribunal was being fair and had allowed me to cross-examine Mr Barnaby they would have had further difficulty in not upholding my complaint.
Responses to the EAT  from the Chairman of the Employment Tribunal and the Respondents (Commissioners of Inland Revenue including Mr Carr) conflict so significantly which brings into question the credibility of the Employment Tribunal Chairman.  The Employment Tribunal Chairman has said that it was Mr Carr (Counsel for the Inland Revenue) who did not elect to call Mr Barnaby to give evidence.  However the Respondents including Mr Carr have indicated that they were prepared to call Mr Barnaby to be cross-examined by me and the decision not to call Mr Barnaby was made by the Employment Tribunal.  Mrs Oates, Mrs Gibbs and Mr Colquhoun also confirm this.
If the Chairman of the Tribunal had assisted me as she claimed, which I strongly refute, she should have at least advised me that I could have still requested a tribunal witness order for Mr Barnaby even though she decided that he was not a relevant witness.  Mrs Lateef’s letter on the conduct of proceedings is also relevant.”
(And reference is made to that).
“The E.T. decision quotes King v Great Britain China Centre i.e. The Tribunal must make findings of primary facts.  However the primary facts in my case were the district statistics, which were totally ignored.  The respondents explanation was in Barnaby’s witness statement, which had been challenged during cross-examination of witnesses.  The Tribunal then denies me the opportunity of cross-examine Mr Barnaby.”

10	Where there is an issue as to precisely what happened below, in relation to the calling or not calling of a witness, about which there are differing versions, the Tribunal is, inevitably, placed in a somewhat difficult position.  It seems to us therefore, that the proper way to approach this case is to decide whether or not the Tribunal was entitled to reach the conclusion that Mr Barnaby’s evidence was irrelevant, and if so, whether it was appropriate for the Tribunal to exclude the evidence in the way that it did.  

11	As to relevance, Mr Carr re-emphasised some of the points which I have recorded in reading his initial submission, but he goes slightly further and in his Skeleton Argument, for the purposes of this hearing, helpfully points out what he submits is the legal position in relation to the calling of witnesses.  He says there were three routes by which Mr Barnaby might have been called to give evidence.  

12	The first is by the Respondent itself in the normal way, but as Mr Carr makes clear, he took the view, for reasons which I will amplify in just a moment, that the evidence was not relevant, and that it was not necessary for Mr Barnaby to be called.  Mr Carr asserts that the decision whether or not to call a witness is the prerogative of the party calling or deciding not to call that witness, and that no possible error of law can arise from such a decision not to call a witness. 

13	The second way Mr Barnaby could have been called was by the Appellant.  Mr Carr says, (and this may be in issue) that Mrs D’Cruz said nothing when the Tribunal indicated that it did not wish to hear from him; but she could, he argues, have applied for a Witness Order, as she had done in relation to another witness.  But once again, he submits that Mr Barnaby’s evidence was irrelevant to the Tribunal’s determination, and the Appellant did not seek a Witness Summons.

14	The third way is by the Tribunal.  There is authority for the proposition that the Tribunal, of its own motion, has power to require a witness to attend.  We have been shown three authorities in relation to that issue, and it is reasonably clear from those authorities that the Tribunal should not take that course, unless there was some basis for thinking that the witness had relevant evidence.  It would certainly be an unusual course for the Tribunal to take in the circumstances of a case such as this.  

15	As to relevance, Mr Carr relies quite strongly on the fact that Mr Barnaby would have nothing to say about events prior to his first involvement in the case in September 1999, which was well after the factual issues relating to the Appellant’s claims had occurred. Mr Carr also addressed us on the basis that, in effect, Mr Barnaby’s evidence was to a substantial extent, self-serving as he had been called in to investigate complaints of unfairness and discrimination, and whether there was any element of unfairness, particularly in Mr Dunns’ marking of the Appellant’s work.  His conclusion that there was not, was, Mr Carr argued, “self-serving”.  He [Mr Barnaby] was, however, looking at Mr Dunn’s work.  He was not addressing the essential issue of the case which was the question of racial discrimination against Mrs D’Cruz at the earlier times.  For all these reasons, Mr Carr argued that Mr Barnaby was not a relevant witness.  

16	Mrs D’Cruz has indicated to us that, as I understood it, the principal reason, or one of the reasons why she wanted to cross-examine Mr Barnaby was that he might well have been in a position to support her case, as indicated from the extract I read from her original ET1, that there were, in the higher grades of the Inland Revenue, officials - particularly regional managers - who were putting pressure on officials lower in the chain, such as Mr Dunn, to discriminate against Mrs D’Cruz.  There may have been other bases for cross-examination, but that is not what I understood her primarily to be saying.  

17	It seems to us that on any view, that the answers in cross-examination by Mr Barnaby to such questions can only be a matter of speculation.  Looking at Mr Barnaby’s Witness Statement, we note the complimentary things he says about Mrs D’Cruz.  Although he regards quality points awarded in one of her cases as excessive, nonetheless, he takes the view that in relation to another case, she, with Mrs Taylor, had both produced an extremely good settlement.  

18	We have come to the clear view that it was entirely within the Tribunal’s discretion to take the view that it would not be assisted by Mr Barnaby’s evidence, and therefore that he should not be called.  The Tribunal had, after all, heard four days’ evidence.  They were, if I may say so, on the ground dealing with the case; they were about to hear submissions, and in our judgment, they were in an ideal position to decide what was relevant and what was not.  

19	We are therefore satisfied that the Tribunal was entitled to come to the conclusion that Mr Barnaby’s evidence was irrelevant, and to exclude it.  We see no error of law in their decision to do so.  We do not, we have to say, think that Mrs D’Cruz was in any way disadvantaged by that particular decision, nor in our view, has she suffered any injustice of any kind.  In these circumstances we dismiss her appeal. 

Appeal dismissed.  Permission to appeal to the Court of Appeal refused.