Appeal No. UKEAT/0533/10/DA
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
14 October 2011
Before
HIS HONOUR JUDGE McMULLEN QC
MR
A HARRIS
MRS
D M PALMER
MR G F LEWIS APPELLANT
NEW COLLEGE OXFORD RESPONDENT
Transcript of
Proceedings
JUDGMENT
SUMMARY
PRACTICE AND PROCEDURE – Bias,
misconduct and procedural irregularity
The Employment Tribunal did not allow
the Claimant’s representative to develop her case and at least one member had a
fundamental misunderstanding, considering the case was unfair dismissal and it
was hardly important to consider the Claimant’s case that the dismissal was an
act of race discrimination and victimisation. Remitted to a fresh Employment
Tribunal.
HIS HONOUR JUDGE McMULLEN
QC
1.
This case is ultimately about race discrimination in the context of a
dismissal, said to be unfair in the ordinary sense and discriminatory by way of
direct race discrimination; and victimisation for having done a protected act. On
appeal it is about Employment Tribunal procedure. This is the Judgment of the
court to which all members, appointed by statute for their diverse specialist
experience, have contributed. We will refer to the parties as the Claimant and
the Respondent.
Introduction
2.
It is an appeal by the Claimant in those proceedings against a Judgment
of an Employment Tribunal sent to the parties on 19 August 2010,
following their delivery orally at the end of a three day hearing under the
chairmanship of Employment Judge Coles, sitting with Mr J Cameron
and Mrs E Grugeon.
3.
The Claimant was represented by his partner, Ms Ruskin, who is a
youth worker and the Respondent was represented by a consultant. Today, both
parties have the services of counsel, Ms Robinson, appearing for the Pro
Bono Unit, for the Claimant, and Mr Samson for the Respondent.
4.
The Claimant essentially made the claim which we have described above.
It was disputed by the Respondent. The essential issues had been mapped out
for this Tribunal following the most protracted pre-trial directions and are
encapsulated in the Tribunal’s Judgment in the following way:
“7. The only outstanding claim therefore, relates to case number
2703399/2009 which was presented to the Tribunal on 1 September 2009
and was initially a complaint of unfair dismissal but by leave granted on
11 December 2009, the Claimant was permitted to amend that claim to
include claims of direct race discrimination and victimisation in relation to
his dismissal. The Claimant was dismissed with notice on
14 August 2009 on capability grounds.
8. Accordingly, any complaint of race discrimination in
relation to matters other than those immediately leading up to and including
the Claimant’s dismissal are not the subject of consideration by this Tribunal
as causes of action in themselves. The Tribunal is, however, of course,
entitled to consider them as matters by way of background only, in order to
assist it in determining the specific issues before it for adjudication and
determination.”
5.
The Tribunal dismissed the claims.
Procedure on appeal
6.
The matter came before Cox J on his appeal who sent the matter to a
preliminary hearing. The Claimant had raised substantive issues and issues
relating to procedure, principally material irregularity and apparent bias.
What troubled Cox J was that complaints had been made that the Claimant
and his representative were prevented from asking questions and further
material would be required because it was contended that there was a perception
of bias.
7.
The appeal was sent to a preliminary hearing. That was conducted by
HHJ Hand QC on 18 May 2011, sitting with Mrs Chapman
and Baroness Drake of Shene. The Claimant was there represented
by different counsel giving his services under the ELAA Scheme. It is plain
that the three person EAT was very concerned about the allegations of material
irregularity and allegations that there were stereotypical views taken of the
Claimant, who is Black, of Afro-Caribbean descent, born in the UK. For that
reason, further directions were given to the parties as to the way in which the
matter should progress.
8.
Cox J had already set en train the paragraph 11 Practice Direction
procedure, affidavit evidence was adduced by the Claimant and Ms Ruskin.
That, together with the Notice of Appeal, was sent to the judge and members. A
summary response was provided by the judge and detailed response by the
members. When the matter came before Judge Hand’s division of this
Tribunal, further directions were given for the judge to respond to the
material, for an amended Notice of Appeal to be approved by the EAT, which it
was in due course, and for an opportunity to be given to the Respondent to
produce affidavit evidence and object to the Notice of Appeal, and to indicate
if it wished to cross-examine the Claimant and Ms Ruskin. The Respondent
did none of the above, and as we ruled in an interim ruling at the outset of
this case, Judge Hand’s order directs this case: there is before us
affidavit evidence from the Claimant and Ms Ruskin which stands, with the
statements of the judge and the two members.
9.
That material has been subject to rigorous analysis and submission by
both counsel and so, although this was available as a live hearing, the formal
position is in accordance with Facey v Midas Retail Security & Anor
[2001] ICR 287 EAT as
I explained in Abegaze v Shrewsbury College of Arts & Technology
[2000] UKEAT 0176/07, not disturbed by the Court of Appeal on this point [2009] EWCA Civ 96. We decide what the facts are, in the light of all the material
and submissions, and decide from the perspective of an informed observer,
whether an appearance of bias is given by the judge, or the members, or all of
them.
10.
Since we announced to the parties, at the conclusion of the argument,
that this appeal will be allowed and the case remitted, the less we say about
the substantive facts the better. We will provide sufficient to illuminate our
thinking on what we hold to be the principal point which is apparent bias and
material irregularity. It is common ground between counsel that if this point
succeeds, the Judgment has to be set aside and so, although weighty arguments
were presented by Mr Samson in his commendable and fair skeleton argument
on the substantive points, as will be apparent, it is not necessary to deal
with those head on.
The legislation
11.
To that extent, therefore, the legislation relevant to this appeal is
not necessary to expand upon. Unfair dismissal, in its ordinary sense, is set
out in section 98(1) of the Employment Rights Act, and
fairness, by 98(4). Race Relations Act 1976 section 1 outlaws
discrimination. The burden of proof is dealt with in section 54A(2). The
Tribunal directed itself correctly in respect of those provisions and their
application to direct discrimination and dismissal in the form of victimisation.
The Tribunal does not expressly refer to the drawing of inferences from evasive
answers or failures to answer questionnaires, a matter which will become
important in this case. Indeed the Tribunal does not refer at all to the
questionnaires which were issued against the Respondent under s 65(2)(b).
Facts
12.
The Claimant was employed by New College Oxford as a Deputy Head Chef.
He had been a qualified chef for 20 years, having previously given his time to
another of the learned institutions, Keble College. The Head Chef at the time
he joined was French Algerian. A forthcoming vacancy was announced in
November 2007. There were 60 applications. Four candidates, including
the Claimant, were short-listed. The other three were white.
13.
A qualification in food hygiene was required examination which the
Claimant did not yet have. He was still interviewed for it. He was not
successful. One of the interviewers was Dr Parrott, who is a history don.
He wrote in elliptical terms on his notes of the interview, describing the
Claimant as “Mr Pangloss himself”. The Claimant discovered later this is
a reference to Doctor (or Maitre) Pangloss, a fictional follower of the
philosopher Leibniz, satirised by Voltaire in his work Candide, 1759;
the full title of which, in various languages, Candide or Optimism, or Candide:
The Optimist.
14.
The gist of Dr Parrott’s depiction is that in the light of what he heard
from the Claimant at his interview, he appeared to accept matters as they are,
rather than striving for change, viewing life as all is for the best in the
best of all possible worlds, the words attributed to Leibniz, and recounted by
Candide.
15.
It is extraordinary in this case what a large role this epigrammatic
comment by an interviewer has had. It has been an interesting excursion and it
does invoke some straining of a connection between an Age of Enlightenment,
pre-revolutionary philosopher, fictionalised by a satirist in 1759, and a Black
Afro-Caribbean chef in 2007 Oxford. But, the sense in which, the Claimant
contended it was used by Dr Parrott was that he, the Claimant, had not
produced sufficient original work for his interview and that it demonstrated
that he was lazy. The judge recorded the Claimant’s approach as being this:
“15. He also felt that the comment was indicative of a
“stereotypical” view of men of Caribbean origin being “laid back” to the
extreme.”
16.
The Claimant knew that he was raising race discrimination claims only in
respect of the dismissal but, as we have pointed out, the Tribunal was
alert to the fact that it was entitled to use as background the per-employment
matters including the Pangloss comment. Actually, the Claimant had put forward
in his sole surviving amended claim form the following:
“The background to my unfair dismissal due to racial
discrimination includes incidents that have occurred over the last two years: I
believe I have been subject to racial harassment, racial discrimination and
victimisation contrary to the Race Relations Act (1976).”
17.
There are then enumerated ten different matters which he contended would
inform the decision-making of the Tribunal as to the reason for his dismissal
two years later. That dismissal, the Respondent says, was entirely due to his
absence and a decision was made by the HR Manager and the Domestic Purser in
August 2009 to dismiss him for that reason.
18.
But it was the Claimant’s pleaded case that ten matters should be taken
into account, in deciding whether or not there was any race discrimination in
the decision to dismiss him. He also contended, of course, that the dismissal
was unfair in ordinary terms, but it is notable that he did not appeal
internally against the decision of the two officers to dismiss him.
The legal principles
19.
The legal principles to be applied in this case emerge from the Judgment
of the House of Lords in Porter v Magill
[2002] 2 AC 357 in the speech of Lord Hope of Craighead at
paragraphs 102 and 103, summarised in the short precis we gave above. The
correct approach in the EAT is as I gave in my Judgment on behalf of the EAT in
Abegaze (see above).
20.
It is important to note, as did Rimer J as he then was, that
allegations of bias and procedural irregularity are increasing in this
jurisdiction and great care should be taken to see if there is substance before
allowing them. See London Borough of Hackney & Ors v Sagnia
UKEAT 06/00/03. Sadly, Rimer LJ had occasion to remark on the same tread
five years later in his Judgment in Bascetta & Anor v Abbey National Plc
[2009] EWCA Civ 840, where he said as follows:
“In my own experience of appeals to the Appeal Tribunal […] vexatious
allegations of bias are frequently raised by losing litigants before employment
tribunals.”
21.
It is because of that, that the Practice Direction includes paragraph 11
on this rigorous approach to requiring those who challenge judicial officers to
do so on oath or affirmation, and for there to be a hearing on the matter.
22.
We bear in mind that in Igen v Wong [2005] ICR
930 CA, the two stage test for determining whether the burden of proof
switches, is reflected by a composite approach which may be taken in certain
cases (see Madarassy v Nomura International Plc [2007] ICR 867). If the burden of proof is not such as to shift to the Respondent, it may
be that a view could be taken at that stage. We think that that will rarely be
done but it is at least available.
The arguments
23.
Ms Robinson, in an exemplary oral argument without the benefit of
her own written skeleton (she was instructed late), was able to focus this wide
ranging attack on the Tribunal into a few short points. She contended that on
the material adduced principally by Ms Ruskin, and the lay member Mrs Grugeon,
there was sufficient material to indicate that the Tribunal had not been fully
aware of the legal case and that some of the points that had been made by
Ms Ruskin were accepted by at least one member of that Tribunal.
24.
She contended that the Tribunal had adopted an over robust approach
which went beyond simple case management and shut the Claimant out of his case;
and that a stereotypical view had been adopted by the Employment Judge of the
Claimant’s ethnic group. Certain matters were prevented by the judge from
being advanced by Ms Ruskin and the Judgment could not stand.
25.
Mr Samson has responded by indicating that there is more to this
than the material simply of one of the members, and relied upon the statements
of the judge and Mr Cameron, that the subject of this appeal had been
trawled, in many case management decisions including a decision in relation to the
“Pangloss” point, and that it was not open to the Claimant to re-open the
matters here.
26.
It was important to stand back and look at the substance of the
Claimant’s case, including the distance in time between the “Pangloss” comment
at his interview in November 2007, and dismissal almost two years later,
based upon completely different circumstances, in the hands of two officers,
who were not associated with Dr Parrott.
27.
The Tribunal had mentioned a number of the matters in the Claimant’s
claim form, although it is accepted that only two of them came to the fore.
Discussion and conclusions
28.
We prefer the arguments of Ms Robinson and have decided the appeal
should be allowed and the case remitted. It must be appreciated that the
material which we are working on, by order of Judge Hand’s division of the
EAT, consists of the affidavit of Ms Ruskin, supported somewhat by the Claimant,
which stands, and the response given to it by Mrs Grugeon.
29.
The first thing that we note is that Ms Ruskin contends that the
judge stopped her from asking witnesses questions relating to some incidents
which the Claimant believed showed the Respondent’s discriminatory attitude to
him. As to that, Mrs Grugeon acknowledges that a judge, in her
experience, will stop questions where they are irrelevant. The implication of
that is that there was a decision by the judge as to relevance, but she makes
the point four times in these comments, that “this was a claim for unfair
dismissal, so our questions would have been directed towards that”.
30.
In our judgment that is a fundamental misunderstanding of the purpose of
the case and her role. She does so having read the Judgment for the purposes
of making these comments. She says, apart from background, the failure of the
Claimant to get the chef’s job was not relevant, as the claim was for unfair
dismissal. Again, she says: “We were looking essentially at an unfair
dismissal claim and I cannot see the relevance of what the Claimant says”. She
also says that none of the matters relating to a questionnaire is relevant to
the claim of unfair dismissal.
31.
This is a specific reference to the contention made by Ms Ruskin,
about the way in which the Respondent had responded to two statutory
questionnaires and questions which she asked. It could not be said that these
had fallen away in the course of argument, because Ms Ruskin put in
written submissions, the second point in which was a complaint about the race
relations questionnaire.
32.
This is important, as we indicated earlier, because inferences can be drawn.
The Tribunal did draw inferences in this case, but a statutory factor is the
Respondent’s response to questionnaires. If the Tribunal was of the view that
it should not draw any adverse inference from the way in which the Respondent
responded to the questionnaires, it was bound to say so given the submission
made in writing to it. It may be there is no inference. It may be there is
nothing in Ms Ruskin’s point that the Respondent’s people lied. But that
is a matter which must form the basis of any consideration as to inferences.
33.
It is plain from the layout of the Judgment that the Tribunal was
concerned only with two of the background matters which were presented by the
Claimant out of the ten in his claim for viz his failure to get the chef’s job
and his disciplinary record. Again it may well be that the Tribunal did not
think much of the other matters or consider that they shed any light on his
dismissal. But since they are clearly pleaded and, at least in one or two
places in the Judgment, there is a reflection of a consideration of them, the
Tribunal was bound to say, in respect of all of them, whether they did give
ground for an inference, all together or one by one.
34.
Something had to be said about this because this was the Claimant’s
case. Ms Robinson rightly says the Tribunal did draw inferences but not
on the full basis which was open to it. As Ms Ruskin says in her
unchallenged evidence to us, she was stopped from asking questions and at least
Mrs Grugeon acknowledges that the questions related to relevance. These
are relevant matters. If they were held no longer to be relevant, the Tribunal
should have said so. The central point of Ms Robinson’s case is that the
Tribunal did not allow the full range of questioning of the witnesses, and this
itself is a material irregularity.
35.
We turn then to the second matter, which is the “Pangloss” point. This
matter has taken over this case. It is actually a small part of it and it
requires quite a leap of reasoning, for the reference to the Claimant being “Mr
Pangloss indeed” to a reflection by Dr Parrott that he is lazy and stupid.
Nevertheless, the judge accepts that there was a reference to a stereotype in
the course of the hearing.
36.
Ms Ruskin says the judge said that being lazy and stupid is not a
stereotype of a Black Caribbean man. This occurred during the course of
cross-examination on the interview notes. Ms Ruskin says she had supplied
documentary evidence from two universities on this point. Mrs Grugeon
acknowledges that Ms Ruskin did put that material forward, although she
considered that the point Ms Ruskin was making was not borne out by that
evidence.
37.
Nevertheless, if there was evidence, it required to be dealt with.
Instead, the judge came up with his own account, which is in paragraph 15 which
we have cited above. In his comments, given to the EAT following Judge Hand’s
division’s direction, he said this:
“1.7 It was, of course, the Claimant and his representative who
raised the question of “stereotypical” views of Black Caribbean males. I still
do not believe that there is a stereotypical view of Black Caribbean males
being “lazy and stupid”. They may have a more “relaxed” approach to life than
other ethnic groups but that is not in any way a derogatory assessment and in
any event was not in reality a relevant feature in this case. The Tribunal was
unanimously satisfied that the Respondent’s assessment of the Claimant was as
identified of paragraph 51 of the Written Reasons which related purely to the
assessment of the Claimant as an individual and was not based on any
stereotypical view of male Caribbeans.”
38.
We agree with Ms Robinson that here the judge has at least given
the appearance of holding a stereotypical view, in that he takes a view that a
more relaxed approach to life is exhibited by Black Caribbean males, than other
groups. In our judgment, that is inappropriate. It is put as an allegation of
actual bias but we prefer to regard it, and we uphold it, as being an
allegation of apparent bias.
39.
Given that there was evidence as to stereotypes, it ought to have been
dealt with and not been the substitution of a view by the judge. The matter
which worried Judge Hand’s division of this Tribunal was the finding by
the judge and Mr Cameron in their subsequent comments, that there was no
such attitude towards Black Caribbean men in this country, a view which
surprised very much the lay members in Judge Hand’s division and Judge
Hand too.
40.
In that respect, it is a matter that we too might have a view about. Since
there is no challenge before us to the evidence which Ms Ruskin says she
put before the Tribunal as to a divergent view of two universities (we have not
seen it), we consider that there would have been substance in her submission
and it was not fair for the Tribunal to form such a view.
41.
A good deal has been made in this case about whether or not allegations
of lying and material available for inferences get home. As Ms Robinson
correctly submits, that is not a matter for us. We would not send this case
back to a Tribunal to hear again if there were absolutely no substance in the
matter, but in the grey area of whether or not there were lies and inferences,
those are matters which we cannot possibly decide here.
42.
Further, we consider there is substance in Ms Robinson’s point that
given that at least Mr Cameron considered that the witness team from New College was smug and superior, that should have been a matter which was dealt with in
the Judgment in accordance with its duty to make inferences. Were they smug
and superior because they were above a mere chef? Or was it anything to do
with the fact that he was Black Caribbean? Particularly in the light of what
Ms Robinson contends is a highly dismissive superior and arrogant approach
by Dr Parrott in responding to the Claimant when he raised the issue of
what “Mr Pangloss” meant. The don was to produce a three-page essay which
had some unfortunate epithets about stupidity and malice. Irony was not what
was called for. The Tribunal ought to have decided these matters in relation
to whether or not there was any race discrimination involved in the decision to
dismiss in the light of all that material.
43.
Finally, it is contended that the judge took a view of the case before
the conclusion of the Respondent’s evidence. This was a case where, unusually
in an unfair dismissal claim, the Claimant went first - unusually, because the
Claimant was raising allegations of race discrimination, but they were in
respect of unfair dismissal only. It is a matter for case management, in the
hands of a Tribunal, which evidence to take first, and there is no criticism of
it for doing it this way. All the witness statements were exchanged in
advance.
44.
At the end of the second day, prior to the calling of Ms Goodgame,
the HR Manager, the judge said that the Tribunal would move straight to
submissions. Ms Ruskin complained, because she wanted to ask the HR
Manager questions. She felt rushed, and that the judge did not want to hear
any more evidence, as he had already made up his mind in favour of the
Respondent.
45.
In our judgment there is substance in that. Ms Robinson contends
that even if the judge were deciding the matter in relation to the burden of
proof, in that the Claimant had not been able to move the burden of proof, that
was a decision that could only be made at the appropriate stage on the
conclusion of all the evidence and the submissions by the three person Tribunal
(see Magenta Security Services v Wilkinson [2007] UKEAT 0385/06/1501) When confronted
with this matter, the judge decided that the evidence of the HR Manager would
be heard. Obviously she had to be heard. She had exchanged a statement and
she was party to the decision to dismiss the Claimant, and it is inexplicable
that her evidence should have been thought by the judge not to be called, certainly
without any reference to the Respondent’s representative, who could of course
say that he did not wish to call this particular evidence. That does not seem
to have been his view. So, again, there is an appearance that the Tribunal had
formed a view before an appropriate in-chambers discussion.
46.
In the comments of Mrs Grugeon and Mr Cameron there are
references to the decision-making. They apparently are both members of the
panel constituted by the Secretary of State from those having experience in
race discrimination claims. They are alert to the problems, and that the
decisions are made by the three of them. But as a matter of law, the Claimant
is entitled to a fair hearing by three persons who all have an open mind and
who make decisions on the basis of what they hear together. If one of them does
not meet that test, then the decision must be set aside. In our judgment,
confirmation of Ms Ruskin’s evidence is given amply by Mrs Grugeon
and that in itself is sufficient.
47.
We have also paid attention to what the judge says about his creation of
the formulation of the Claimant’s case recorded in the evidence. In the
circumstances, while not needing to consider the substantive points of law, we
hold that the decision must be set aside and it will be remitted to a new
Employment Tribunal.
