Appeal No. UKEAT/0087/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 April 2010

Before
HIS HONOUR JUDGE McMULLEN QC
PROFESSOR S R CORBY
MR B M WARMAN

MR A POWER	APPELLANT

GREATER MANCHESTER POLICE AUTHORITY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - APPELLANT ONLY

	APPEARANCES

For the Appellant	MR ALAN POWER
(The Appellant in Person)	
For the Respondent	Written submissions on behalf of the Respondent.	

SUMMARY
HUMAN RIGHTS
RELIGION OR BELIEF DISCRIMINATION

There is no breach of ECHR Art 6 when a corporate employer accused of discrimination fails to produce the decision maker at trial to face cross-examination. Art 6.3(d) applies to criminal proceedings. It was reasonably arguable from the construction of the dismissal letter that the Claimant’s belief in spirituality, correctly protected by the 2003 Regulations, contributed to the decision to dismiss him.

HIS HONOUR JUDGE McMULLEN QC

1.	This case follows the Judgment of HHJ Peter Clark in UKEAT/0434/09 to the effect that the Claimant, Mr Power, is entitled to weigh a claim based on the Religion and Belief Regulations 2003 against the Respondent, the GMPA, on the grounds that he has a belief in the psychic field.  He describes his religion as love and his beliefs as spirituality, i.e. the spirit or motivating energy that animates living things and survives physical death.  He succeeded before a single Employment Judge and before the EAT and so the matter went back to be tried.

2.	At trial, the material available to the GMPA, when it decided to dismiss him, included a letter written by its officer, Ms Christine Joyce.  In it was this
“… information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police.  I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”

3.	The Claimant contended that as Ms Joyce had not been called, for she had been dismissed by the Respondent, he had not had a fair trial and seeks to raise that issue before us.  He lost his case.  Following the Tribunal’s division on the existence of a prima facie case, the unanimous Tribunal said this: 

“All the Members of the Tribunal were unanimous in their view that the Respondent genuinely believed that based on information provided to the Respondent it would be wholly inappropriate to allow the Claimant to continue his employment with the Respondent.  This view was based mainly on certain alleged conduct unconnected to the Claimant’s “beliefs”, eg. the Claimant’s alleged disruptive attitude in the course of role plays.  Although other concerns (eg. the delivery of a CD-Rom and various posters) were related to the Claimant’s beliefs it was not because the Claimant held those beliefs but because of the unacceptable way in which he was perceived of expressing those beliefs that the Respondent decided to dispense with the Claimant’s services.  Based on the Judgment in Chondol such a conclusion does not constitute unlawful discrimination contrary to the Regulations.”

4.	It seems to us that the answer to the fairness point argued on appeal is that the Claimant does, of course, have an Article 6 Convention Right to a fair trial and in criminal proceedings to be able to cross-examine those who accuse him.  However, in civil proceedings, that is an Employment Tribunal determining his rights, when he brings a claim of discrimination the proper approach is decide if it passes the prima facie test in Igen Ltd v Wong [2005] IRLR 258. Then the Respondent is called upon to provide an explanation. The explanation will be the less credible if relevant witnesses are not produced by the Respondent and are not there to support its case and, of course, cannot be cross-examined.  That is not, it seems to us, a breach of a convention right nor is there a right to confront any particular witness when he accuses a corporate respondent of discrimination. The Art 6.3(d) right applies to the confrontation of accusers in a criminal process, not as a Claimant in a discrimination case. This point will go no further.

5.	The second issue relates to the point of law which at the centre of the case which is the passage we have cited above.  It seems to us reasonably arguable that the Tribunal has decided that at least in part the decision to dismiss the Claimant invoked the Claimant’s belief, for that is how we construe the words “this view was based mainly on …”.  If the Claimant’s belief did contribute to his dismissal then it would likely be unlawful discrimination.  That issue, therefore, will go to a full hearing.  

6.	Three subsidiary matters arise in an application to introduce new evidence.  The first is to do with Hansard reports, and documents which Mr Power accepts predate the Tribunal hearing, and so in accordance with the Practice Direction would not be available to be adduced here.  The second relates to a redacted email of 10 March 2009 which was before the Employment Tribunal.  We understand from Mr Power that that has been the subject of some legal proceedings. Correspondence between solicitors, which we have not looked at at all, relates to that matter and includes a CPR Part 36 offer. It would not be right for us to examine this without the Respondent being here and so we say no more about it.  

7.	The third is correspondence with the Merseyside Police in which it is made clear that one of the sources relied on by Ms Joyce emanated from Constable Mitchell in the Merseyside Police, as a result of a complaint made by the Claimant. He accepts that he was mistaken in his presumption which was damaging to the Claimant.  A similar complaint has been made in respect of the other informant who is Police Sergeant Tinn.  That has not got as far as the Mitchell complaint. The gist is that Ms Joyce relied upon, at least in respect of Mr Mitchell’s material, an opinion which was not correct and this material ought to be adduced at the appeal.  In our judgment it would be wrong to introduce this because, in accordance with the Practice Direction, it does not meet the requirement that it would have a significant effect on the Judgment of the Employment Tribunal.  As a matter of law, so long as Ms Joyce did not invoke consciously or subconsciously the Claimant’s belief it does not matter what she relied upon. Even if she relied on demonstrably untrue statements from another Force, that would not mean that she discriminated against the Claimant on the ground of his belief.  We refuse to allow the adduction of any of this new material at the full hearing.