Onuh v London Borough Of Enfield & Ors [1992] UKEAT 431_91_0510

EAT
Onuh v London Borough Of Enfield & Ors
[1992] UKEAT 431_91_0510 · 1992-10-05
MR JUSTICE WOOD (PRESIDENT): This is an appeal by Ms Onuh from a decision of an Industrial Tribunal sitting in London (North) under the Chairmanship of Mr Robson which Tribunal heard her allegation of racial discrimination on the 22, 23, 24 and 31 (four days) in May 1991.The Respondents were her employers, the London Borough of Enfield, together with 5 other individual members of the managerial staff of that Borough. She is represented on her appeal before us by Mr Bronkhurst of the Tottenham Neighbourhood Law Centre in London N15 and the central basis of the appeal is that the Tribunal was in error in law in exercising its discretion not to grant an adjournment on the 22nd May 1991. That being an exercise of a discretion we can only interfere with it if there was a breach of what is called, commonly, the Wednesbury rules, in other words, that the Tribunal took into account something it should not have taken into account, or failed to take into account something which it clearly should have taken into account, or that this Tribunal feels that the decision was just plainly and obviously wrong.This is a substantial case, the learned Chairman has written a long judgment of some 17 pages and judging by the evidence before him it is by no means too long. What is abundantly clear is that he, and those sitting with him, took the very greatest care to investigate every single allegation that Ms Onuh cared to place before the Tribunal. Their enquiry ranged far and wide. So far as their direction on the law is concerned, it is not criticised, nor could it be criticised, it is perfectly plainly set out in paragraph 4 to 12 of the decision and there could be no criticism of it.The decision therefore, was essentially one of fact and, as we have already indicated, the ground of appeal is the failure to adjourn and as it was put by Mr Bronkhurst before us in this way, the question is was injustice done to the Applicant by the refusal to adjourn. Was he so prejudiced in her ability to present a case properly that injustice was done. We will return to that procedural aspect of the matter, but first it is necessary, broadly, to look at the decision itself.As indicated in paragraph 2 right at the beginning of the decision, the Tribunal speaks of the particulars of allegations which were made by the Applicant, citing some 18 matters in all. They then continue thus:
"In the four days of the hearing, we have in fact identified over 30 matters which she complains show such discrimination against her by one or more of the Respondents and have carefully investigated each of them."
In order to examine that in a little more detail one needs to look at the two Originating Applications; they are dated respectively, the 1st October and the 6th November 1990. They are before us and they set out in the first case a full page of detailed criticisms and complaints, and in the second there is a slightly shorter, but carefully reasoned and presented case. No one reading those documents could feel that Ms Onuh was other than thoroughly capable of presenting the matter, and indeed when one looks at the general facts of the case to which the Tribunal turn in paragraph 14, it is abundantly clear that Ms Onuh is a qualified and highly intelligent person. She is black, she came from Nigeria to this Country in 1976, she obtained a Higher National Certificate in Business and Finance and a diploma in economic development, and the testimonial indicated that:

"`a supremely successful student'."

So that the documentation support that background of education.The ability to express and deal with matters has also become abundantly clear during the hearing before us because we asked to see the Further and Better Particulars. Mr Bronkhurst has kindly given us copies of documents which seem to be dated in October and December 1990, which clearly show that over some four or five typed pages, there is a very clear expression of all the matters about which Ms Onuh makes complaint. Turning then to the facts, the Tribunal examine each of those 30 matters, they indicate, as a general comment, in paragraph 13:
"It is, however, fair to say, that in every case of conflict where independent evidence has been available, it has not supported the Applicant's allegations but rather tended to show the contrary."
Every instance is examined, the criticism is taken, it is analysed, the evidence is set out. Time after time those who are responsible within the Local Authority are found to have acted perfectly reasonably and that there was no element of racial discrimination whatsoever in the way that they approached these matters and dealt with them. In the end each of the allegations made are, in fact, rejected.The Tribunal look finally, in paragraph 57, at victimisation and they set out seven instances there. They say that they do not accept that the last one occurred, but they deal with each of them and they said they did not constitute acts of discrimination against her.In paragraph 58 they look at matters in the round, and they say they are satisfied that the Local Authority have established a number of things, five matters therein set out. They all find in favour of the Local Authority.They say, in paragraph 59:
"At the end of the four days' hearing, we are left with the impression that, while she genuinely believes in some of the grounds of complaint which she has brought against the Respondents, she can have no such genuine belief in the great majority of them but has brought them out of spite against the Council and those of its officers who did not rate her abilities as highly as she did herself and whose acts in bringing about the termination of her appointment damaged her self-pride."
Now that is a very stringent remark for a Tribunal to make, but they saw and heard the witnesses, and were entitled to make it.They do criticise the Local Authority in some aspects of its Equal Opportunities employment and suggest that they might look at their systems with some care having heard various points made during the hearing.It seems to us therefore, that looking at that decision there can be no criticism whatsoever and that the Tribunal took the view which they did on the facts and the evidence and the impressions which they held.The way in which the appeal is put rests upon a number of dates in the first place, and then on what occurred on the 22nd May. This is a case where yet again, and there have been a substantial number coming before this Tribunal, in which appellants complain that documents are produced on the day of hearing, at the door of the Court. Sometimes bundles are moderate in size, some 30, 40 or 50 pages; sometimes the documents are very numerous indeed, as is suggested in the present case of some 400 documents. It is difficult to see quite how 400 documents could be relevant on the facts of the case, but there it is. Because of the persistent complaints about this matter, it seems to us that some thought should be given as to whether, as a matter of practice, tribunals should not direct, more especially if there has been an interlocutory hearing, that documents should be prepared and presented, for instance 7 days before a fixed date of hearing. It may not always be possible, and of course each case must depend upon its own facts, but we would emphasise that the criticism made in the present case is not one which is in any way exceptional, and it is very often to be found. Looking at this present case we are quite satisfied that there has been no injustice and we will now give our reasons why.When she first sought to bring these cases, the Applicant, Ms Onuh, consulted the Commission for Racial Equality; they consider cases for representation and we are told that a committee meets every three months. That seems to us rather a large gap between meetings as so often it is rather important to know whether representation is to be given, more especially when a day has been fixed. In the present case a hearing was fixed on the 22nd March 1991 and that was fixed for the 22nd, 23rd and 24th May. Clearly some progress had been made in the preparation of the case because on the 25th February 1991 Mr Bronkhurst kindly attended with Ms Onuh to help her to inspect documents at the Town Hall. He was not at that time instructed to act for her. He offered to take the case for her, but she said "no. she wished the CRE to take her case". That was her choice at that time and Mr Bronkhurst was good enough to say he would have handled it. So that, he then fell out of the picture. The date must have been fixed in the usual way, presumably, although it is not quite certain whether in London North, it is after a document had been sent asking for which days the parties could or were unable to attend. There is was then, the 22nd May fixed on the 22nd March. On the 3rd May the Applicant was told that the CRE were not going to represent her and on the 6th May she returned to consult Mr Bronkhurst. He sent a fax to the Industrial Tribunal asking for an adjournment on the basis that he would be unable to prepare these in that time. He thought he had told them that he also could not attend that day, but we have seen the fax and there is no mention of that at all.He put before us two matters which he said he needed further evidence about before he could have properly presented the case. The first is the criticism of lack of training available when it was Ms Onuh's communication skills which were the subject of comment and the subject of problems in the course of her employment. The second basis was that he wanted to know the statistics of the ethnic mix of the workforce and why that mix was there. Turning to those two matters, he submitted that training really did not come into the picture, and had not been considered by the Tribunal. The first point to be made about both those issues raised is that Ms Onuh was clearly capable of raising them, either or both, and we are satisfied that both were considered by the Tribunal.The ethnic mix is considered in paragraph 21 where the statistics were dealt with before as best they could be; the Council did not keep records; there were three non-whites out of 35 in the Accountancy Department. Mr Bronkhurst wanted to argue that that was not a proportion of the ethnic minorities within the Borough. Statistics on those occasions prove nothing. On the facts of this case, as carefully examined over all those 17 pages, it is quite clear that the Tribunal were conscious of the statistical background, which was not detailed but it was sufficiently available in so far as it was relevant.So far as training was concerned, Mr Bronkhurst drew our attention to paragraph 45-49 of the decision. We went through paragraph 45 together, reading it, and it is abundantly clear that training must have been considered from the way in which that paragraph is drafted. We reject the complaint and criticism that training was not sufficiently examined in the course of the hearing.However, the most worrying aspect of this matter is this question of the documentation. What is said in the Notice of Appeal is that on the day of the hearing bundles of documents, consisting of about 400, were produced, that Ms Onuh was not able to read them through and that she was not able to receive legal advice on the contents of those documents. Those matters are set out in the Notice of Appeal. Paragraph 5 of the Notice says:
"The decision of the Tribunal is riddled with errors and omissions and was perverse that they could not have reached the conclusion on the facts found."
Having read the decision with care that is simply untenable as an argument. However, having looked at the Notice of Appeal, the learned Registrar of this Court took the usual course which was to ask the learned Chairman for his comments on the grounds of appeal. He has written a letter to us dated 27th November 1991. He notes that on the 22nd May there was an application for adjournment on two bases, the first that an internal investigation was going on, and the second that she had just been given a bundle of correspondence and would like time to study it. So far as the internal investigation was concerned, no complaint is made on the refusal to allow an adjournment on that basis.Turning to the question of the bundles the Local Authority took the view that it was unreasonable for an adjournment to take place. The Note, obviously taken by the learned Chairman and produced in the form of a letter, says this:
"The Respondent resisted the application (other than for a short adjournment), pointing out that the bundle consisted of documents previously sent to the Appellant and that she had been to the Respondent's offices and inspected her file."
So, the first point is that the bundle had been sent to the Appellant. Secondly, that she had been to the Respondents' offices and inspected her file.Then, so far as representation is concerned, the Tribunal say that the Tottenham Law Centre had dropped out the previous week, and then further, they point out that there had been an interlocutory hearing and that the date had been fixed after that interlocutory hearing. Then, finally they say this:
"Counsel for the Respondent then pointed out that it had sent her a list of the documents on 8 May 1991 and that she had in fact previously seen all of them apart from a few flexi-sheets. Otherwise only about five memoranda of less than a page each had been added."
They indicated that they would give her time to look at those other documents. Then, they also say that they took into account that the hearing was going to take place over a number of days and there was an ability to look at those few extra documents over night. They add finally:
"In the event at no time during the hearing did the Appellant have any difficulty with the documents."
So they deal with the basis of the present complaint in that way.They say, first of all, she was sent the vast majority of the documents; two, she had the opportunity to inspect the file so she could look at the originals; three, that the list of documents had been sent on the 8th May; four, that she had seen them all previously save for a few flexi-sheets, and five, memoranda of less than a page each. They indicate that as the matter was taking place over a number of days that she would have had ample opportunity of looking at the matter.It is against those facts that are clearly set out, that this Tribunal must now consider what is the answer to the question posed to us by Mr Bronkhurst, namely, was there an injustice done to the Applicant by the refusal to adjourn, was she prejudiced in her ability to present a case properly and an injustice done to her? We are quite satisfied in the present case, looking at the whole history and the facts, and the reasoning of the learned Chairman, that his reasoning cannot be criticised. It was the exercise of a discretion it seems to us that in the present case that it was properly exercised on sound reasons and sound findings of fact, therefore, the present appeal is dismissed.