“1. Consolidation with the new claim The claimant made a thorough application to EJ Hodgson to postpone the hearing on the basis that this claim should be consolidated with a new claim to be brought concerning the claimant’s expulsion from Chambers. The claimant said in his re-application of 7 November that the circumstances had changed as he has now actually issued his new claim and that therefore it was in the interests of justice to postpone and consolidate. I am satisfied that there has been no material change in circumstances and that the Hodgson tribunal was fully aware of the pending new claim when the decision was made not to postpone, I spoke to EJ Hodgson who confirmed this. Not only is it not appropriate for me to overturn EJ Hodgson’s decision, I support it. This claim was filed in February 2019 and is overdue for resolution, it is a substantial piece of litigation in its own right and the outcome will assist the tribunal deciding the second claim and shorten the process. Further, much preparation work has been done for this hearing, including case management by the tribunal and a judge has been made available, so it is not in anyone’s interests for there to be a postponement in these circumstances and at this late stage.”
“Request for a racially diverse panel The claimant also requests reasons for why a racially diverse panel was not provided. As he probably knows, the panel is provided based on the availability of members to sit on a particular day and the tribunal usually has little or no choice as to who that might be. All members of the panel have been trained on discrimination issues and are able to participate in the adjudication of race discrimination claims. It is also of course important that a panel is not hand-picked to suit the requirements of a particular party.”
“It eventually emerged, but only after we were forced to press Mr Matovu for clarity on the matter, that he had not made the EAT aware in his communication(s) sent to it on day one following the adjournment that he had made the application to us that day and received an adjudication upon it. We found this troubling.”
“The (further) renewed application added nothing. We rejected it, relying on the reasons already given.”
“The witnesses who gave evidence on the Respondents’ side were, to our minds, careful and conspicuously frank. Moreover, their evidence, which struck us as plausible and rational, was to a very large extent corroborated by, or at least consistent with, contemporary communications. By contrast, we did not find Mr Matovu in all respects a satisfactory witness, but since the Tribunal’s primary focus is necessarily upon the actions and thought processes of the Respondents we do not think it necessary to pass further comment on his evidence.”
“The Affidavit makes numerous complaints about the Tribunal’s handling of the hearing. In the reasons accompanying the judgment (paras 13-21) I went to some trouble to record the unusual profusion of procedural applications and issues that arose during the hearing, our decisions upon them and the grounds on which we arrived at those decisions. The Order does not identify any particular point or topic on which clarification or further comment is sought, but I will, of course, respond to any specific inquiry that may be directed to me.” ….. “I will not be drawn into inappropriate advocacy in support of the Tribunal’s decision (of City of London Corporation v McDonnellUKEAT/0196/17/JOJ ,28 February 2019 ) save to say I do not accept that the Tribunal was biased against the Claimant or that there was any procedural impropriety or irregularity.”
“We consider it highly undesirable that a judge should be required to make comments on anything other than very specific allegations as to the conduct of part or parts of the hearing. Such allegations (best set out as questions requiring the judge to confirm whether or not something occurred at the hearing as alleged) should generally be highly focused and capable of being responded to in brief terms. It would only be in the most exceptional circumstances that a judge should be requested or expected to provide comments that amount to a defence of the judgment and/or reasoning; indeed, it seems to use that such circumstances will rarely, if ever, arise.”
“The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”
“After a lengthy hearing like this, where written submissions are then sensibly ordered by the tribunal, we are quite clear that this should only take place on the following basis: (i) The timescale for preparation of the submissions must be a sensible one…. (ii) It is essential that the timescale should provide for the submissions to be provided to the other party in sufficient time before the oral submissions for the other party to be able to assimilate them, and thus comment upon them. … oral submissions are of very much less, possibly no, value if the written submissions have not been read in advance by the other party, so that that party can, in his or her oral submissions, comment upon, address and seek to answer them……problems can inevitably arise otherwise. Points are made which have never been made before, and yet the other side does not have the opportunity either to answer them or to seek to object to their being made. Incorrect submissions or incorrect references to the evidence may be made in good faith which are never corrected. A new case may be put forward which is not answered. A good point is made which could have been countered but had not been anticipated when the other side’s written submissions were prepared. It is only thus that the oral submissions can be well and sensibly used in a combination of emphasis of the original points and countering of the points made in the other party’s written submissions, together with the making of any objections or of any fresh arguments as necessary. (iii) It is equally, if not more, essential that the tribunal has had the opportunity to read the submissions, which again was not the case here. Points that are taken by the parties will not be tested and may be misunderstood. New points which do not arise out of the evidence or are incorrectly made but never corrected by the other party may be accepted by the tribunal. Points that are not made in the closing submissions (possibly for good reasons) but which appeal to the tribunal will never be canvassed with the parties. In this regard too, some of the problems in this appeal can be ascribed to this course of being taken.”
“means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed…with a view to influencing the Court’s decision”
“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”
“if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision….”
“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; ….”
“The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds”
“It was necessary for us to manage time carefully to ensure that the evidence and closing submissions were completed within the 10-day allocation. Mr Matovu’s evidence took longer than we had hoped. Mr Leiper needed to cover the entire narrative and unfortunately Mr Matovu’s answers tended to be long and frequently did not address the questions posed. Cross-examination of him ended on the afternoon of day four. It was agreed throughout that the Respondents’ evidence must be completed on day nine at the latest, leaving day 10 (a Monday) for submissions. There were 10 witnesses on the Respondents’ side and it was not until the morning of day nine that Mr Matovu announced that he did not intend to cross-examine two of them. We reminded Mr Matovu at several points of the need to keep up to speed. We agreed a timetable with both counsel and adjusted it from time to time. Ultimately, we were constrained to limit time for cross-examination of one witness, Mr Moody. His evidence began at 11.45 a.m. on day five and ended just after 3.00 p.m. on day six. Cross-examination lasted rather more than seven-and-a-half hours. At lunchtime on day six it was agreed and noted that completion of the evidence of Mr Moody and Ms Helen Wolstenholme (for whom an hour would be needed) would occupy that afternoon, two further substantial witnesses would fill day seven, four briefer witnesses (all of whom were expected at that stage to be called and cross-examined) would account for day eight and a final, substantial witness would give evidence on day nine. Mr Matovu was told that there was now no room for further slippage. He was subsequently given 30-minute and 15-minute warnings and, at 3.05 p.m. the cross examination of Mr Moody was stopped. We were reluctant to impose the guillotine but felt it necessary to do so as we had ceased to have confidence that, without our intervention, the hearing would be completed in the ample time allotted.”
“14. There were issues with the pace of the cross examination of Mr Moody in particular. At the start of day 5 Mr Matovu has proposed a timetable which would allow for the completion of the evidence by day 9 to which the panel agreed. EJ Snelson checked with Mr Matovu on the progress several times, each time being assured that Mr Matovu was an experienced Barrister well able to manage within his own timetable. 15. Cross examination of Mr Moody began at 11.30 on day 5 and was ended at 15.00 on day 6 to ensure that Mr Matovu’s timetable could be met. EJ Snelson checked with Mr Matovu that he was on course to end as proposed at the close of day 5 and at the lunchtime adjournment on day 6; both times being assured that Mr Matovu was on track. EJ Snelson reminded Mr Matovu of his timetable and reminded him of the time at 14.30 and 14.45. 16. Mr Matovu states at his paragraph 22 that there was no discussion of the need to limit time. As can be seen from the above this is not correct. The timetable had been, and continued to be, the subject of discussion on every day of the hearing. It was clear from the outset that the timetable would be tight. Mr Matovu was adamant at every turn that as an experienced barrister he was able to keep to the timetable he had set himself. 17. Mr Matovu further states that EJ Snelson did not enquire as to how much longer he would be with Mr Moody before ending the cross examination. This is not entirely in accordance with my notes. The subject of time constraint was very much live, canvassed with the parties frequently throughout. Mr Matovu can have been in no doubt about the constraints on the timetable he had himself proposed. When EJ Snelson ended the cross examination, Mr Matovu did not say that he was going to need only a brief further time or make any other suggestions as to how the timetable might reasonably be amended. Mr Matovu also complains that no arrangements were made to recall the witness. He made no application to do so either at the time the guillotine was applied or later. 18. At the start of day 8, Mr Matovu stated that he did not now propose to cross examine two of the Respondent’s witnesses; stating that their evidence was inadmissible, self serving and irrelevant. He made no application to strike out or for the tribunal to otherwise disregard their evidence. It was clear that the statements would be taken as read. Had the Tribunal been made aware of this at an earlier stage the decision to limit cross examination on day 6 would have been avoided. This decision also led to day 8 ending short at 15.05.”
“My notes show that Mr Matovu’s cross examination did take longer than timetabled. Partly because of time taken with administrative applications, both at the start of the case and during cross examination; and partly because of the manner in which Mr Matovu chose to answer the points put to him. EJ Snelson made clear to Mr Matovu on several occasions that the manner of answering was consuming time that the tribunal did not have and that the best assistance he could offer to the tribunal was to answer concisely.”
“20. There was also a procedural disagreement at the end of the hearing. The evidence was completed in the middle of Friday, 22 November (day 9). It was agreed that the parties would present written submissions on Monday, 25 November and supplement them with oral argument. In the usual way, counsel would exchange their submissions and deliver copies to the Tribunal. Mr Leiper proposed delivery and exchange of submissions by 10.00 and Mr Matovu voiced no dissent. We made no formal order as there seemed no need to do so. The agreement was that oral submissions would follow at 2.00 p.m., with up to an hour being allowed on each side. Mr Leiper duly delivered his submissions (46 pages, double-spaced, small font) to the Tribunal at 10.00a.m. on Monday, 25 November but unfortunately Mr Matovu was not in a position to do likewise. His submissions (11 pages, single-spaced, small font) were sent to the Tribunal at 1.38 p.m., and no doubt counsel exchanged their documents at or about that time. The result of Mr Matovu’s tardiness was that neither advocate could devote more than the briefest attention to the written submissions of the other. Both focussed overwhelmingly on emphasising and developing their main contentions. At the end of oral argument, Mr Matovu applied for permission to supplement his submissions in order to address Mr Leiper’s points. Mr Leiper opposed the application and we agreed with him. Appropriate arrangements had been made for the presentation of closing argument. Ample time had been allowed for the work to be done. To grant the application would extend the process and inflate the Respondents’ costs. There was some factual detail to master but the case was not complex, factually or legally. There was no reason to depart from the (standard) procedure which had been agreed and doing so would be contrary to the overriding objective. Accordingly, the application was refused. 21. After the end of the hearing, and despite our clear ruling on day ten, correspondence followed from Mr Matovu together with what appeared to be lengthy supplementary closing submissions. The Tribunal had refused permission for these and they remain, unread, on the file.”
“At the start of day 9 EJ Snelson canvassed views from the parties on timetabling for submissions. It was proposed that if parties wanted to rely on written submissions these should be handed up at the start of the day for the tribunal to read; with 1 hour each allotted for verbal submissions at 14.00. Mr Matovu did indicate at the point that he may not be able to complete written submissions in that time. There was no pressure on him to do so. He made no application for additional time. In the event Mr Matovu finished with the one remaining witness at 13.08 and the day ended short.”
“The Claimant proposes to supplement the above submissions which do not cover all of the issues to be determined by oral submissions”
“I can only observe that every application is determined on its merits. This inevitably means that some applications are granted, and some refused. The application for an extension of time to file the ET3 had no impact on the timetable for this case, nor indeed for the case management hearing for that claim. It had no cost implication for either side. Had the application been refused the Respondents indicated that they would simply file a skeleton response with a later application to amend which would have made no difference to the management of the latter case but would have caused additional administrative work for the tribunal.”
“Having not curtailed the cross-examination of me at all, the Judge then sought to cut short my re-examination. This is contrary to standard practice. He proposed that I could simply write down some bullet points and that would suffice. I actually had to argue to be allowed to re-examine myself in the normal way….”
“12. Mr Matovu states at his paragraph 18 that he had to argue to be allowed to re-examine himself. My note does not reflect this. At the close of cross examination on day 4, which was a Friday, EJ Snelson asked Mr Matovu in the normal way if there was anything in re-examination. Mr Matovu replied that there was but that he was unable to do this immediately because cross examination had been so long. There was no issue with this. EJ Snelson did suggest that Mr Matovu could, if he wanted, put additional material in writing. This was an offer only and not a requirement; made only to enable Mr Matovu to put over all the points he wished whilst still maintaining the required timetable. No limit of the time he might taken in re-examination was suggested. 13. On day 5, Monday 18th November, Mr Matovu told the court that he had not been able to make any preparation over the weekend for re-examination. He did not have a list or any other prompt. However, in the event he spoke for only about 15 minutes before commencing his cross examination of the Respondent’s witnesses.”
“Mr Matovu also sought permission on day one to install recording equipment in the hearing room. We refused the application. The case was not out of the ordinary. It was not said that there was any obstacle to either side attending with a note-taker. Maintaining the status quo would not entail any disadvantage to Mr Matovu. No disability or other special need calling for a special adjustment was asserted.”
“Mr Matovu states at his paragraph 14 that EJ Snelson stated he would provide the written reasons as a priority yet failed to do so. That does not accord with my record which shows that EJ Snelson actually stated, twice, that written reasons would be provided in due course. Mr Matovu continued over some minutes to press EJ Snelson for a precise timescale and asking that the matter be treated as a priority. EJ Snelson responded that whilst all efforts would be made to treat it as a priority but that it was not the only priority before the tribunal.”
“The fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment.”
“We are entirely satisfied that Mr Tyler’s act of suggesting Ms Gray’s name had nothing to do with race. He simply gave a hasty response to Ms Wolstenholme’s inquiry about availability, based on a survey of the diary. The idea that he was seeking to disadvantage Mr Matovu, let alone that that purpose was motivated by or linked to race, strikes us as remarkable. To state the obvious, if he had any such aim he would surely have been careful to avoid mentioning him as a possible candidate.”
“LT – I go back to what I said before...I thought it best to give a range of people as best I could, given that a limited number of people on paper were actually available and the fact that we were a week before the seminar and also I would say that yes JG may not have been appropriate, I accept that. If the criticism is that I put someone forward who was entirely inappropriate and that I have totally misunderstood what the seminar was about, then if that’s right, then I put my hands up. But I put forward people who were available from the employment group because I thought there was likely to be a weight on employment law at that seminar and JG was someone who was potentially available. And I say potentially because they were all only potentially available even though on paper they were available. As far as I was concerned, it was a week before, it was an evening seminar and they may well have had commitments during those evenings, as you do...”
“LT – … Bruce was no longer available to speak at either of the seminars and she was looking for a suitable replacement to join her and Helen Bell…. And she asked me who was available... Now I obviously knew that it was a PI seminar but that there were employment aspects to it so on that basis… Now I don’t know whether Helen asked me specifically can you nominate employment barristers. I think she may have done. But I can’t hand on heart say she did. But certainly that’s how I interpreted the request because of the employment aspect to it. So I went through the diary..”
“f. I find as a fact that JG was not an unsuitable choice for an alternative seminar speaker. LT chose members of the employment group as alternative speakers, which would have included JG. HW did not specify to LT that speakers had to be members of the PI groups. The seminar was a cross-over of employment issues and to which employment solicitors had been invited and I therefore find that it was appropriate to nominate speakers from the employment group, including JG; g. I find as fact that JG was not doing PI work at the time she was asked to do the seminar but that she had done PI work in the past. I further find as a fact that the proposal of JG by LT as a potential replacement speaker did not cause HW any concern at the time as to whether she was appropriate, such that HW did approach JG to speaker and further, that HW was equally not concerned about JG’s appropriateness even after she learned that JG no longer did PI work, as she had done PI work in the past and therefore felt JG would be able to speak to the issues.”
“The evidence was, as we have mentioned, detailed and extensive. We have had regard to all of it. Nonetheless, it is not our function to recite an exhaustive history or to resolve every evidential conflict. The facts essential to our decision, either agreed or proved on a balance of probabilities, we set out below.”
“We use the words “facts essential to our decision” advisedly. We have consciously omitted to record findings on certain matters. In particular, given our conclusion that the victimisation claim fails in any event, we decline to address the bad faith defence and so judge it unnecessary to make findings on a number of matters relied upon by the Respondents in support of that defence.”
“No pattern of behaviour is demonstrated pointing to race as a material influence upon the acts of omissions on which the claims hang. Certainly, the ‘background’ facts relied on by Mr Matovu are eloquent of the stubborn reality that the Bar is adapting to social change more slowly than many other professions. And progress towards diversity among barristers’ clerks is, it seems, even slower. But we were shown no evidence of a pattern of Chambers’ decisions rejecting strong black candidates for pupillages or tenancies in favour of weaker white candidates. Nor of recruitment arrangements which might be seen as disadvantaging black applicants. Nor of appointments in the clerks’ room suggestive of racial bias. The notion, implicit in Mr Matovu’s case, of some sort of Chambers ‘culture’ of race-based prejudice is not made out.”
“For reasons stated, all claims fail and the proceedings are dismissed. We have reached our decision without applying the burden of proof provisions. Had we applied them, we would have held that the onus had not transferred to the Respondents and that, even if we were wrong about that, they had amply discharged it.”
“Under issue 2.1 the detrimental treatment is said to have been (a) the refusal of Ms Vaughan Jones in her email of16 December 2016 to supply “any information” in response to Mr Matovu’s request of15 December 2016 , and (b) the failure of the Board to have regard to ‘due process’ prior to the meeting of19 December 2016 in relation to the contributions issue. We find no detriment in either. Ms Vaughan Jones reasonably pointed out that Mr Matovu could be assumed to be aware of the distribution of his recent earnings as between conventional and DA Instructions and that such data relating to other members of Chambers were confidential. She did not exclude the possibility of further evidence being gathered on the conventional/DA balance across Chambers if a case for that was made out at the meeting. It is true that some documents were not supplied to Mr Matovu until 20 December, the day after the meeting, but that occasioned no disadvantage to him. He was able to put forward his points at the meeting and he secured the best outcome that he could reasonably have hoped for, namely the decision to ask Mr de Navarro to conduct an investigation and produce a report.”
“We find no detriment in issue 18.1. On our primary findings there was a misunderstanding. There was no ‘agreement’ about recording. Mr Matovu asked Ms Kelly to arrange for the meeting to be recorded and she gave him to understanding that that would be done. But when she spoke with Mr Moody he said that recording was not appropriate. She did not pass that back to Mr Matovu. The fact that the recording equipment was not ready might, arguably, have left Mr Matovu disadvantaged had it resulted in a state of affairs in which recording of the meeting was made impossible. But that is not what happened. Ms Vaughan Jones proposed, more than once, that the meeting be recorded by means of a mobile phone. That was a practical and perfectly reasonable suggestion, which would have resolved the procedural disagreement and allowed attention to turn to substance. There was no detriment. Regrettably, instead of accepting Ms Vaughan Jones’s suggestion, Mr Matovu persisted in a fierce and entirely unreasonable tirade against Mr Moody which resulted in the meeting being aborted. If he suffered a detriment through the premature termination of the meeting, it was not one to which he was subjected by Mr Moody or Ms Vaughan Jones.”
“Mr Moody directed that the tape recording equipment be not used (issue 18.1) because he regarded it as inappropriate. It had not been used before and he considered that it had no place in an informal meeting between Chambers colleagues.”
“18.2. By Ms Rehana Azib failing to adopt a fair, objective or even-handed approach to conducting the fact-finding investigation of the Claimant’s complaint against the Senior Clerk.”
“As to issue 18.2, the alleged detriment is entirely unsustainable. As we have stated, we are satisfied that Ms Azib produced an admirable report. It was the result of a fair, objective, comprehensive and even-handed investigation. There was no detriment in the process and, rightly, Mr Matovu does not say that he suffered a detriment in the outcome. In any event, such an allegation would be doomed to failure. The fact that he does not agree with Ms Azib’s conclusions does not warrant the assertion that they entailed any detriment to him.”
“18.3. By the First Respondent and Management Board deliberately withholding Ms Azib’s investigation report from the Claimant and preventing him from commenting on it before the Board hastily formed an ad hoc panel to make a final decision on the Claimant’s complaint without allowing him a fair opportunity to be heard.”
“Under issue 18.3, again we find no detriment. Ms Azib’s report had concluded that there was no case for Mr Tyler to answer. The Board rightly and properly accepted her conclusions and released Mr Tyler from the jeopardy in which Mr Matovu’s allegation had placed him. It was no possible detriment to Mr Matovu for the Board to take that course. He had no right to comment on the report; his right to have his complaint investigated had been fully satisfied.”
“The implementation of the temporary clerking arrangements (issue 18.4) was necessitated by the damage to the relationship between Mr Matovu and Mr Tyler. No doubt that damage was attributed at least in part to the allegation of discrimination, but the reason for the Board’s act was the ruptured bond, not the antecedent allegation and it would have acted in precisely the same way had the rupture resulted from any cause out with the protection of the 2010 Act, s27.”
“18.8. By the First Respondent and Management Board, by letter dated1 May 2019 , seeking to instigate a formal grievance procedure against the Claimant based on comments which the latter had made in a feedback form that was completed on or about5 April 2019 just repeating longstanding complaints, whilst disregarding the Claimant’s complaints and not seeking to investigate those, withinsection 47(5)(e) of the Equality Act 2010 .”
“ “Again, issue 18.8 discloses no arguable detriment. Mr Tyler had raised a grievance and the only proper course open to the Board was to proceed to investigate it. To do anything else would have put Chambers in breach of its obligations to Mr Tyler.”
“As to issue 18.8, again the necessary ‘because of’ link is notably missing. It is plain and obvious that the fact of the protected acts had no bearing whatever upon the Board’s act of accepting and processing Mr Tyler’s grievance. We see no rational basis for thinking otherwise.”