Pillay v Lewisham & North Southwark Health Authority [1992] UKEAT 459_90_2710

EAT

Pillay v Lewisham & North Southwark Health Authority

[1992] UKEAT 459_90_2710 · 1992-10-27

MR JUSTICE KNOX: This is an appeal by Miss Pillay from the decision of the Industrial Tribunal sitting at London (South) on the 11th May 1990, sent to the parties on the 21st May, whereby the Tribunal decided unanimously that Miss Pillay's application was dismissed.

Her application, by an Originating Application dated 6th November 1989, was for relief in respect of discrimination contrary to the Race Relations Act 1976, Sections 1 and 4(2)(b). That is a claim that there has been direct discrimination as it is commonly called in the light of the way in which the case was put. The claim that was made by the Originating Application was that on the 4th August 1989, Miss Pillay applied for upgrading to the post of assistant to the General Administrator of the X-ray Department at Guy's Hospital, was interviewed and was told on the 9th August, the day of the interview, that she was unsuccessful, whereas the successful applicant was white and had much less experience in the X-ray Department than she, Miss Pillay, had, and that Miss Pillay was treated less favourably on racial grounds.

The basis of the appeal is that there was not a fair hearing given to Miss Pillay's Counsel. I use the word "Counsel" advisedly because he is, and was at the material time, a member of the Bar, although the indications are not in private practice.

The application before us is not facilitated by the fact that there is unfortunately a conflict as to what occurred at the Industrial Tribunal. We have, effectively, three accounts. First of all, there are some or near contemporaneous notes. They are dated, it would appear, the 8th June 1990 and the hearing, as mentioned, was on the 11th May but they are pretty close to contemporaneous. The Member of the Bar concerned who appeared for Miss Pillay, has put those into the form of an affidavit and there is no significant difference between the notes that he compiled in June 1990 and the affidavit that he swore only a few days ago on the 22nd October 1992. He deposes to the fact that he cross-examined the only witness for the Respondents, a Mrs Kent, who was the person who was primarily concerned with the appointment and was on the appointing panel and his account of the cross-examination starts off in a way which, it seems to us was unfortunate. He says:

"I began by telling Mrs Kent that she was not accused of being a racist."

Now that does seem to us to be an unfortunate turn of phrase. "Racist" is not an expression that finds a place in the Race Relations Act 1976 and it is a word that is both imprecise in meaning and has unfortunate vituperative overtones and is much better avoided in the conduct of legal proceedings, which are, or should be, based on the provisions of the Race Relations Act 1976. Those provisions, as was pointed out to us by Miss Cox, who appeared before us on behalf of Miss Pillay, and I may say performed a difficult task with great skill and moderation, are indeed somewhat complex and it only obscures what is already fairly difficult if a vocabulary is used which includes such words as "racist" and "racism". However that may be, the cross-examination did start off in that way. The point that Counsel was seeking, perhaps not entirely felicitously, to make, is a perfectly legitimate point in our view and that is, that it is not an essential ingredient for there to be an infringement of the Race Relations Act, which sanctions discrimination in certain contexts, for there to be racial motivation in the mind of the person who indulges in the discriminatory conduct. This, however, led to the first of at least two misunderstandings between Counsel for the Applicant and the Chairman of the Tribunal, because it seems to us reasonably clear from the account that the Chairman has given in the form of her comments on the Notice of Appeal that the point that she was driving at was a different one from that which Counsel was seeking to make, namely that the case that was being advanced was one of direct discrimination and not one of indirect discrimination and the Chairman was seeking to impress Counsel with the fact that it was essential to establish that the person who is charged with discrimination has treated the victim less favourably on racial grounds.

(a) of the Act of 1976 reads:

"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if - (a)on racial grounds he treats that other less favourably than he treats or would treat other persons;"

but it does appear fairly clear that there was this cross purposes between Counsel on the one hand and the Chairman on the other. Counsel's account in his affidavit is that:

". . . . the Tribunal Chairwoman, exploded that I should stop being pompous and that I should, `live in the real world'."

and a little later he claims his cross-examination was interrupted by the Chairman telling him:

"that I must be accusing someone of racism. She said, `in race cases you get bloody noses'."

Here again, there is not so much a misunderstanding as an unfortunate conflict of the evidence that we have before us in this Tribunal as to what exactly happened because the Chairman's comment on that is:

"I am certain I did not say that `in race cases you get bloody noses'. I cannot think of any context in which a remark of that sort could possibly have been even misunderstood."

It is at that point that I turn to the third of the sources of information that are before this Tribunal as to what occurred, the first being Counsel's affidavit, the second being the Chairman's comments on the Notice of Appeal and the third is the comments that we have been supplied with by the other persons who were present, who again are effectively three in number, the other two Members of the Industrial Tribunal and the answer that is put in on behalf of the Respondents, the Health Authority, to the Notice of Appeal which embodies the account given by their representative.

Dealing first with the other Members of the Tribunal, one of them says:

"There was certainly a robust exchange between [the Chairman] and the Appellant's representative.

At no stage did Mr Nicol indicate any objection to the way the tribunal was being conducted.

No reference was made to the fact that the cross examination had been curtailed to the disadvantage of the appellant."

and in the other case of the fellow Member of the Tribunal, the only comment is:

"I have not kept my notes, but I remember the case well, and while I recall some friction, I do not think it affected the outcome."

Lastly, in this third category of evidence of what happened, using "evidence" in a rather loose sense, the answer of the Respondent Health Authority includes this:

"The Appellant was not denied a fair hearing. . . . . . . . .

The contemporaneous note of the disagreement between" [Counsel] "and . . . . the IT chairwoman attempts to reflect a bias on the part of" [the Chairman] "against the applicant. This was not evident during the course of the hearing and" [the Chairman] "was equally as impatient and directive towards the Respondent's representative Mr C Wilson throughout." [Counsel] "effectively gave up presenting his case when he ceased his cross-examination of Mrs Kent and refused to make a final submission."

As a tribute to impartiality, of course that leaves a certain amount to be desired.

So far as this Tribunal is concerned, faced with those significantly different accounts of what occurred, there is no alternative but for this Tribunal to accept the comments from the Chairman. The situation is not significantly different from that which is well established in relation to challenges that are made occasionally to the accuracy of a Chairman's Notes of Evidence. When that occurs it is well established that this Tribunal will accept an agreed statement by the parties with regard to evidence that was given to the Industrial Tribunal, even if their agreed version differs from what is contained in the Chairman's Notes. But in any other case, typically, where there is a disagreement between the parties as to what occurred before the Industrial Tribunal, this Tribunal effectively has no choice at all, but to accept, and it does accept, the Chairman's Notes of Evidence. We find ourselves in an indistinguishable position and we therefore do adopt the account, on a factual basis, that the Chairman gives of what occurred in the Tribunal.

The next event that needs to be recorded again, we fear, the subject of a misunderstanding between Counsel and the Chairman and also the subject of a conflict of evidence is a comment that was made admittedly by the Chairman in relation to costs. The account that we have from the Chairman is:

"I gave a costs warning to "Counsel" at 2.05 pm after "Counsel" had refused to accept the ruling that in order for the applicant to succeed then she would have to show that Mrs Kent had discriminated against her on racial grounds and that this could not be `unconscious' on the facts relied upon."

The misunderstanding here appears to be that Counsel was under the impression that the costs warning was based on the proposition that Miss Pillay's case was frivolous or vexatious. That is not the effect of the Chairman's note which is that the costs sanction was being mooted, (there was no ruling as to costs) on the other aspect of the costs rule. That rule is Rule 11 of the Industrial Tribunals' Rules of Procedure, and there are two quite distinct cases where an Order can be made for one party to pay another party costs. One is that a party has in conducting the proceedings acted unreasonably, the other is that a party has in bringing the proceedings acted frivolously or vexatiously. So there are two quite separate categories of case and it was the submission of Counsel, rightly, that this could hardly be treated as a frivolous or vexatious case in the light of the fact that there had been a submission of "no case to answer" at the conclusion of the Applicant's case which had been unsuccessful. In those circumstances it would, of course, not be possible, as we see it, for an industrial tribunal to hold that the proceedings themselves were frivolous or vexatious. Quite separate, however, would be a case where the manner in which the proceedings were conducted was unreasonable because, there could perfectly well be cases, to take an example near home, where the advocate on behalf of one party or the other refused to accept a ruling which was given by the Tribunal. In those circumstances it is the duty of an advocate, having said as much as he can say on his or her client's behalf to take the ruling that the tribunal gives in that tribunal as conclusive but, if so advised, to appeal against it, in those cases where an appeal lies and it is an improper way to conduct the case, to go on challenging a ruling after it has been given. There may well have been yet another misunderstanding between the Counsel and the Chairman in that Counsel may well not have appreciated that a formal ruling had been given.

The third and last significant event upon which reliance is placed in support of the appeal is an event where the Chairman decided that it was desirable to record the proceedings, which at that point consisted of the Counsel for Miss Pillay's cross-examination of the Health Authority's witness, Mrs Kent. A tape recorder was sent for and there was a pause while that occurred. Counsel's recollection, as stated in his affidavit, is that his cross-examination had lasted approximately 15 to 20 minutes. That does not quite accord with the recollection that is included in the Respondents' answer because they put it at at least 30 minutes, whereas the Chairman's comments only say some time. However that may be, the actual length in terms of minutes is not very important, what is common ground is that on the advent of the tape recording machinery only one final question was put to Mrs Kent, which was recorded, and this is not significantly disputed, by him in his affidavit in the following terms:

"I put it to you that you took into account "interactive skills" which is simply a way of saying how white people fit in to white groups and black people don't fit into white groups"

That is the end of the question, as he recalls having put it. That is not, as I say, significantly different from the Chairman's Notes of what occurred.

The answer that was given by the witness was in one word, and that word was "nonsense" and Counsel records in his affidavit that the Chairman at that stage, groaned and put her head in her hands. That is not a matter on which the Notes of the Chairman actually say anything at all. What is of more significance is that Counsel stopped his cross-examination at that stage and moreover, he declined to make a final submission to the Tribunal. What he says in his affidavit is this:

"The Respondents' representative then made his submissions but I stated that I had nothing further to add to submissions made during the course of the case. I felt that no submission I could make could possibly affect the mind of the Tribunal Chairwoman."

We were reminded, by Miss Cox, of the possibility of there being unconscious racial attitudes and the particular passage from a judgment of Lord Justice Balcombe, to which our attention was drawn, is in West Midlands Passenger Transport Executive v. Singh

[1988] IRLR 186

at 189, paragraph 18, which reads:

"The suitability of candidates can rarely be measured objectively; often subjective judgments will be made. If there is evidence of a high percentage rate of failure to achieve promotion at particular levels by members of a particular racial group, this may indicate that the real reason for refusal is a conscious or unconscious racial attitude which involves stereotyped assumptions about members of that group."

and it was submitted to us that that is a clear indication of the possibility of unconscious racial attitudes by way of stereotyped preconceptions influencing choices in the field of employment which have the effect of amounting to discriminatory treatment. This, we accept, is a feature of the law and we accept what was not disputed on behalf of the Respondents, that motive is not a necessary ingredient in discriminatory conduct which is sanctioned by the Race Relations Act 1976. To that extent therefore, Mr Nicol's point that he was seeking to make to Mrs Kent, the witness, is intrinsically, a valid point. But this, in our view, does not go to the heart of this case which really is, was there an adequate opportunity for the evidence that was brought before the Tribunal by the Respondents, in the shape of Mrs Kent, to be properly probed and cross-examined? If there was not, it was submitted to us by Miss Cox, one could not safely make the assumption which is involved in the assertion of both of the other Members of the Tribunal than the Chairman, that there was no doubt at all that the result of the application was, taken overall, that the applicant failed to show any discrimination on racial grounds.

Nevertheless, we have to examine the way in which the proceedings were conducted and we have already alluded to the way in which the impartiality of the Chairman is described in the Respondents' answer to the Notice of Appeal. It is, of course, easy to be wise after the event, but we do feel that it is desirable that we should repeat and adopt what Mr Justice Wood said in Kennedy v. The Metropolitan Police Commissioner which appears only to be reported in "The Times" newspaper on the 8th November 1990 but which is quoted in "Harvey on Industrial Relations and Employment Law" in a passage at paragraph 187.05 and which starts as follows:

"Although the Members of a Tribunal may be justifiably irritated or exasperated at events that occur during the course of a hearing it is nevertheless of vital importance that they express themselves in moderate and temperate language in order to avoid giving the impression of bias."

We would adopt what is said in that sentence. But it is also to be recalled that as Mr

Justice Wood is recorded as having said in the Kennedy case:

"What could be tolerated by the Bar could give a wrong impression to a layman."

and that is a factor that we do take into account in approaching this appeal, namely that the advocate for Miss Pillay, the Applicant, was a member of the Bar. Members of the Bar from time to time, unfortunately, are exposed to what may amount to hostile questioning. It is, of course, desirable that this should be conducted in as moderate a way as practicable and no doubt, Chairmen and Judges, being human beings, vary in the extent to which they find it practicable to restrain the emotions that they feel. But nevertheless it is the duty of advocates, be they members of the Bar or Solicitors, or other persons, to stand up, so far as they reasonably can to a hostile reception. In this case, it seems to us that it can not be said that the evidence of Mrs Kent was not properly probed or cross-examined save to the extent that Counsel for the Applicant decided of his own volition that he would not continue. The advent of the tape recorder was not an event that prevented him from continuing his cross-examination. Equally, his failure to sum up the case on behalf of his client was a voluntary act on his part, and in those circumstances it does not seem to us that there is a basis for this Tribunal to conclude that the conduct of the proceedings before the Industrial Tribunal was such as to deny a proper investigation of Miss Pillay's case. If, and to the extent to which there was not a full cross-examination it was as a result of a voluntary act by her advocate.

In those circumstances, notwithstanding the misunderstandings earlier referred to which did not amount to denials of justice, it does seem to us that this appeal must necessarily fail, and it will be dismissed.