Appeal No. EAT/810/02/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MR S M SPRINGER MBE
MR R N STRAKER

MR A KHAN	APPELLANT

TRIDENT SAFEGUARDS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A KHAN
THE APPELLANT
IN PERSON	

JUDGE J McMULLEN QC:

1	This case is about victimisation under the Race Relations Act 1976, Section 4, and about Employment Tribunal procedure.  We will continue to refer to the parties as Applicant and Respondent.  It is an appeal by the Applicant in those proceedings against a decision of an Employment Tribunal sitting at London Central, chaired by Mr H.R.L. Purse, promulgated with Extended Reasons on 10 June 2002.  The Applicant was not represented, the Respondent was represented by Counsel.

2	The Applicant claimed victimisation and breach of the Human Rights Act.  The Respondent contended that the Applicant had not been victimised and denied the allegation of a breach of his human rights.  

3	The legal issue, as defined by a previous Employment Tribunal, was whether the Respondent discriminated against the Applicant by way of victimisation contrary to Section 2 of the Race Relations Act 1976.  As the Employment Tribunal treated the facts the issue was to determine why the Respondent treated the Applicant in the way it did.

4	The Applicant withdrew the claim for the violation of his human rights.  The Employment Tribunal dismissed the victimisation complaint.  The Applicant appealed against that finding on grounds set out in a Skeleton Argument today, in oral argument he has developed and in a Notice of Appeal.  These are that he was ambushed and denied a fair hearing;  that the Tribunal gave insufficient reasons;  that the decision of the Tribunal was perverse and that the Tribunal misdirected itself on its approach to King v Great Britain-China Centre [1992] ICR 516 CA.  

5	The Respondent is a company engaged in security.  The Applicant was employed by it as a security officer from June 1999.  At the time of these proceedings he had extant proceedings against the Respondent on another matter which, we understand, were dismissed and are subject to an appeal by the Applicant to the Employment Appeal Tribunal.  Subsequent to the matters relevant to this case, the Applicant volunteered to us today that the company had lost confidence in him, had dismissed him and that too is an issue which is the subject of the Applicant’s proceedings against the Respondent.

6	The Tribunal found that the Applicant was due to be heard in race discrimination proceedings before the London South Employment Tribunal for three days during June and July 2001.  In order that he could deal with his case, the Applicant requested 18 days leave on 21 May 2000, commencing on 16 June, ending on 7 July.  The operations manager, Mr Kerr, granted that request.  A form was produced indicating that approval.  Someone, the Tribunal never found out who, wrote at the top “10x paid, 8x unpaid”.  

7	The Applicant took the leave and was paid for only 10 days.  He was not paid for the balance.  He caused enquiries to be made by directly corresponding with Mr Kerr on a number of occasions.  The Tribunal found that Mr Kerr had indicated that he would look into the matter, but did not in fact do so.  At all times Mr Kerr knew of the proceedings before the Employment Tribunal in London South.

8	The Tribunal found that the practice of the Respondent was that the balance of any holiday pay due was to be paid within three to four weeks of an employee’s return to work.  The Tribunal found in favour of the Applicant that there was considerable confusion as to the Respondent’s policy regarding the payment of holiday pay. It referred directly to the Notice of Appearance and to the evidence of Mr Kerr and a junior manager, Mr Brown, indicating that there was a divergence between them.  On the one hand, it was said, there was a policy that anything over 10 days would be paid to the employee only after their return from holiday, whereas in other circumstances holiday pay might be withheld until the whole of the period had been worked which generated, by virtue of that service, a right to be paid in full.  There was nothing in the contract, the Tribunal found, but went on to say that the precise terms or reasons for the policy were not material in the event, because the Tribunal was satisfied that it was the marking “8x unpaid” on Mr Khan’s holiday request form, which led to his not being paid the balance until October.

9	Thus it is that the Tribunal found that there was a delay in the payment of 8 of the 18 days holiday and was required to determine the reason for that.  It recorded that the Applicant had issued a Race Relations questionnaire.  At a meeting Mr Kerr had agreed that the outstanding money should have been paid and he arranged for the payment to be made which in fact was done on 4 October.  By a letter of 27 September, Mr Kerr apologised for the delay and answered questions in the questionnaire and the questionnaire issue was taken no further.  

10	The Tribunal recorded the submissions made by Counsel and by the Applicant in his written submissions.  The Tribunal recorded the references to what we hold to be the correct authorities:  King v The Great Britain-China Centre, see above, Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 and Nagarajan v London Regional Transport [1999] IRLR 572.  The Applicant told us that in his submissions he had also referred to Zafar v Glasgow City Council [1998] IRLR 36 which, of course, approved King.  

11	The Tribunal correctly directed itself by reference to Section 2 of the Race Relations Act.  It held that there was common ground that there was a protected act within Section 2.  It held also in the Applicant’s favour that he was treated less favourably than other employees in that there was a delay in paying the 8 days holiday to him and thus, he had honed down the issue as being whether there was less favourable treatment by reason of the protected act.

12	The Tribunal set itself that task and answered it as follows.  It considered whether to infer that Mr Kerr’s failure to pursue Mr Khan’s complaint of non-payment in July was by reason of the protected act.  It said this:

“20 ... It noted Mr Kerr’s explanation that he thought payment would be made in due course and that in mid-September, when further prompted by Mr Khan, he apologised and rectified the position without further delay.  On balance the Tribunal did not think it proper to infer that Mr Kerr’s failure to act in July was caused by his knowledge of the protected act.  The Tribunal did not find any other ground on which to hold that Mr Kerr discriminated by reason of victimisation.”

That, therefore, was the basis upon which the Tribunal dismissed the claim.  It however went further and identified what was the reason.  It said this:

“21  The reason for the delay in making the payment to Mr Khan was the insertion on his holiday request form of the words “8x unpaid”.  The Tribunal considered whether it was proper to infer that those words were inserted by reason of the protected act.  It is not known who inserted those words or anything about the state of mind of the person concerned.  It seemed to the Tribunal that an error in administration was the more likely explanation and it was not satisfied that there were any facts from which it could properly be inferred that the Respondent victimised Mr Khan in this respect.”

13	Thus it is that the Tribunal turned its attention both to the principal decision-maker, Mr Kerr, and to the unknown decision-maker who put his or her handwriting on the form.  Competing explanations were forthcoming.  The Applicant before us accepts that, given those findings of primary fact, it was open to the Tribunal to infer the treatment was attributable to a protected act but, since he relies on Zafar, he acknowledges that an alternative course was available.  He, however, says that it was perverse for the Tribunal to take the alternative course.

14	In our judgment the Tribunal has accepted confusion in the policies advanced by the Respondent but has declined to find that, sweeping aside those policies, all that remains is the ineluctable inference that there was victimisation.  Indeed, it went further and found that the reason for the non-payment until a later date was because of the words inserted on the form as being an error in administration.  That was indeed the evidence of Mr Kerr, who was extensively cross-examined by the Applicant.  

15	It was Mr Kerr’s position, as we understand it, that the payment should be made to the Applicant and that when he found out that it was not, he ordered rectification.  That ought to be the end of the matter but the Tribunal is criticised for its conduct of the proceedings and, in order to pursue this point, the Applicant has created an affidavit describing what occurred on the first and second days of this two-day hearing.  That affidavit has been put before the Chairman and only one correction of any significance has been raised which the Applicant in turn now accepts.  

16	The irregularity relates to what the Applicant contends is an ambush.  The circumstances are fully described in the reasons of the Tribunal.  An issue arose in the early stages of the hearing about the documentation and the allegation by the Applicant that a document had been tampered with.  It was accepted that the Respondent should call evidence to deal with this issue.  The witness who would deal with it, Mr Brown, was not there on the day but it was accepted that he could give evidence about the delay in paying Mr Khan.  In other words, although Mr Kerr’s evidence had been exchanged in advance, Mr Brown was also to be called.  The Respondent’s case had not closed. The following morning Mr Brown was produced, together with a manuscript witness statement and a bundle of documents which included some manuscript entries.  

17	Mr Brown does indeed explain the sequence which led to the under-payment of the Applicant for a temporary period.  It is he who says that there was an administrative error and he therefore confirms the position of Mr Khan.  However, the Applicant did not agree.  The Tribunal found that it was in the interests of a fair hearing that it should hear Mr Brown.  It also held that Mr Khan, in the interests of justice, should have time to consider Mr Brown’s evidence.  It did not consider it necessary to adjourn to another day, but a reasonable period was an hour for Mr Khan to think about the evidence and to prepare his cross-examination and any alterations he might wish to make to his final submission.  Mr Khan said that an hour was not enough and he was not prepared to continue with the proceedings.  He was not going to cross-examine Mr Brown and handed in his written submissions which he asked the Tribunal to read.  The Tribunal adopted that course.  

18	In our view the Tribunal acted within its case management responsibilities in seeking to carry out the interests of justice, balancing the matter as between the Applicant and the Respondent.  Mr Brown gave evidence substantially in accordance with Mr Kerr indicating that an error in administration had caused the writing of “8x” which caused the docking of the pay.  It follows that the Applicant was not ambushed or unfairly treated by the Tribunal’s decision and we would be slow to interfere with such case management decisions made by a Tribunal:  see Practice Direction para 11(6)(b) [2003] IRLR 65.  

19	In those circumstances, the Applicant had a fair hearing and the issue was fully ventilated.  The decision is fully explained in the short paragraphs which the Tribunal has given.  No disservice is given by these reasons, since we can fully understand the thinking of the Tribunal and this case passes the Meek v City of Birmingham District Council [1987] IRLR 250, test, as now defined in English v Emery Reimbold [2002] 3 All ER CA.   The decision is one which a reasonable Tribunal properly directing itself on the law could have reached and is not perverse.  The appeal is dismissed.