Garg v Ealing Health Authority & Ors [1993] UKEAT 199_92_0112

EAT

Garg v Ealing Health Authority & Ors

[1993] UKEAT 199_92_0112 · 1993-12-01

MR JUSTICE TUCKER: This is an appeal by Dr Garg against a decision of the Industrial Tribunal which was sitting in London (North) on the 3rd February 1992. The unanimous decision of the Tribunal on that occasion was that the Applicant's complaint of racial discrimination should be dismissed. That complaint arose out of the Appellant's employment either directly or through an agency with the Respondents, the Ealing Health Authority, for a very short time in April 1990.

Having been employed by that Authority for only a day or two he was dismissed by them. His complaint is that that dismissal arose as a result of racial discrimination. Their case is that it arose because the Appellant was unavailable to carry out his medical duties, he being employed as a locum registrar in psychiatry. One of the points raised between the parties is whether or not the Appellant answered the bleeper with which he had been provided. The Respondents complain that he did not but that he was spending his time trying to renegotiate his wage structure with them. His case would be that he never heard the bleep and that there was something defective about it and he would seek to allege that so far from him failing to carry out his medical duties, the reason for his dismissal was on account of his race, he being an Indian.

We are well aware of the fact that it is sometimes difficult for employees to establish that racial discrimination has occurred and for that reason discovery of documents and further and better particulars of allegations are encouraged. The Appellant made application, indeed more than once, for discovery of documents. The Respondents say that they supplied all relevant documents. Indeed, it seems to us rather difficult to understand how there could have been any great volume of documents, having regard to the nature of the allegation and the very short period of time for which this Appellant was employed. Be that as it may there is correspondence both ways, the Appellant seeking information and the Respondent saying that they have provided it. By the time the matter came before the Industrial Tribunal these questions were still in the Appellant's mind. He was obviously very disquieted about it and he made further applications to the Chairman of the Tribunal seeking adjournments and further orders. Unfortunately the Appellant seems to have been very dissatisfied with the way in which his case was heard. He appeared then, as he appears now before us, "in person", unassisted by any representative. He took the opportunity of an adjournment during the Tribunal hearing to visit the premises of the Employment Appeal Tribunal in order to launch an appeal. He returned to the Tribunal when it reassembled at ten minutes to two, and presented another application to the Tribunal this time in writing, requesting a further adjournment in order to pursue his appeals to the Employment Appeal Tribunal and to consider the Respondents' Equal Opportunities Policy, as he said, with the help of his Counsel. The Appellant, if we may say so, is an articulate and intelligent man who has been well able to present his case before us. He is also very experienced in litigation. It appeared during the process of this hearing that he has commenced proceedings against a number of local area health authorities and has been instrumental in criminal proceedings against two of them. In another case against the Merton and Sutton Area Health Authority he had the assistance of an opinion from Counsel and that has been placed before us. The short fact is that Dr Garg, the Appellant, is well able to present his own case and to argue it to the full. But when having made his applications before the Industrial Tribunal, the Chairman refused them, we are satisfied that the Appellant absented himself from that Tribunal. He was in a position, if he had wanted to do so to present his case. He elected not to do so. We quote from the Chairman's reasons:

"The Applicant then stated that he did not wish to proceed. The case could proceed in his absence. He started to make a speech about apartheid, race relations in the United Kingdom and the futility of any member of an ethnic minority attempting to bring a case based on racial discrimination. Asked if he was going to give any evidence in this case, he said he was not, except to say that he had brought a valid case."

As the Appellant recognises, the onus was, and is, on him of showing that racial discrimination has occurred. If he chooses not to present a case to the Tribunal he can scarcely complain if they find against him and dismiss his complaint. That is what occurred. He now brings this appeal to us. I hope he will agree that he has been given every opportunity of placing before us any submissions that he wishes to. We have listened to him patiently for two hours. We have allowed him to refer to any document to which he wishes to refer. We have allowed him to place before us, and we have read, an affidavit treating it, as we would, a skeleton argument. He has, I hope he would agree, been given every indulgence, he has been put under no constraint as to time or any other matter as long as he addressed us on relevant principles. But we are quite unable to see that he has any complaint to make about what happened at the Industrial Tribunal. There had been ample opportunity for discovery and discovery so far as it was possible to make had been made. He persisted in his attitude before the Tribunal of not adducing any evidence. Despite us giving him every opportunity to demonstrate if he can what racial discrimination took place, he has been quite unable to illustrate, even a suspicion of racial discrimination. There was none here, certainly none that he has demonstrated.

This was a hopeless appeal in our view, it should never have been brought and it is dismissed.

In response to an application for costs

Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the tribunal may order the party at fault to pay any other party of the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings.

We are all agreed that you should pay the costs the question is how much. Are you willing to accept the estimate of £3,400 plus VAT or do you want the matter to be assessed by the Taxing Officer?

We all agree that the proper Order to make in this case is that you pay the sum of £3,400 plus VAT, being the costs which we assess to be the costs of this appeal. Costs must be paid within 28 days.