Soobrayen v Air Mauritius [1995] UKEAT 269_95_0310

EAT
Soobrayen v Air Mauritius
[1995] UKEAT 269_95_0310 · 1995-10-03
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal. The appeal is by Mr Soobrayen against the decision of the Industrial Tribunal held at London North on 9, 10, 11, 14 and 15 November 1994.The Tribunal gave extended reasons for their decision and notified them to the parties on 24 January 1995. The unanimous decision of the Tribunal was that Mr Soobrayen's claim that he had been victimised by the Respondent, Air Mauritius, under Section 2 of The Race Relations Act 1976 was dismissed, but his claim that he had been unfairly dismissed on the grounds of redundancy succeeded. He was awarded compensation of £10,000. He was refused reinstatement or re-engagement.Mr Soobrayen appealed against that decision by Notice of Appeal served on 6 March 1995. The purpose of the preliminary hearing is to decide whether the grounds of appeal are legally arguable. The Employment Appeal Tribunal only has jurisdiction to hear appeals on points of law. If there is no reasonably arguable point of law raised in the grounds of appeal, there is no point in the matter proceeding beyond this preliminary stage.At the hearing before the Industrial Tribunal, Mr Soobrayen was represented by Lord Meston. On this appeal he conducted his own case. If we may say so, he has presented his case clearly and concisely. He has two points. The first point concerns his case of victimisation. According to his Originating Application, Mr Soobrayen's first complaint was that he had been victimised by Air Mauritius. That victimisation had resulted in his dismissal from their employment in December 1992.The Tribunal rejected the complaint of victimisation. Mr Soobrayen argues that they made a legal error in doing so because, during the course of the hearing, the Tribunal admitted two affidavits from witnesses who did not attend to be cross-examined on the affidavits. He says that these two affidavits related to a critical part of his complaint of victimisation. That was well known to the Respondents, Air Mauritius, from an early stage. Despite the fact that they had been warned, from an early stage, of how important this evidence was, the affidavits in question were not served on his legal advisers until shortly before the hearing started in November.Before dealing with the way in which the Tribunal handled this evidence and Mr Soobrayen's criticism of that handling, it is necessary to consider the legal powers of the Tribunal in relation to procedure and evidence. Under The Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , the Tribunal has a wide discretion as to how it conducts hearings and as to the admission of evidence. Under Rule 13 a Tribunal may regulate its own procedure, subject to certain specific provisions which are not relevant for this hearing. Under Rule 9 a Tribunal shall, so far as it appears to it appropriate, seek to avoid formality in its proceedings and shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts of law. The Tribunal shall make such enquiries of persons appearing before it, hear witnesses as it considers appropriate, and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings. There are other specific parts of that rule dealing with the calling of witnesses and to their giving evidence on oath or affirmation.It is clear from the Rules of Procedure that Industrial Tribunals have a very wide discretion about the procedure that they adopt and about the manner in which they receive evidence. The proceeding is, under the rules, more informal than in a court of criminal law or a court of civil jurisdiction. The importance of this is that an appeal can only be made to this Tribunal on a matter of discretion if it can be shown that the discretion was exercised contrary to legal principle, or was an unreasonable exercise of the discretion, that is one which was affected by irrelevant considerations or failed to take into account relevant considerations.With those points in mind, we examine the arguments of Mr Soobrayen on this point. His starting point is a letter sent by the Regional Office of Industrial Tribunals, to the legal representatives of the parties on 28 April 1994. This letter was written to put on record what had been stated, agreed or directed at an interlocutory hearing on 22 April at which both sides had been represented by Counsel. The letter recorded that Air Mauritius conceded that the complaint of unfair dismissal was well-founded. The only issue left was that of remedy. Paragraph 3 of the letter dealt with an allegation of race discrimination and said:
"3 The allegation of race discrimination rests on two matters; (a) Did the Chairman of the Respondents, [and the Chairman, who I shall refer to again in a moment, was Sir Harry Tirvengadum] in January 1990 and again in March 1992 imply to the Applicant that he was and would be treated less favourably because he had previously brought proceedings against the Respondents alleging discrimination? (b) Was the subsequent treatment of the Applicant (i) less favourable than would be applied to others and (ii) was it because he had brought the earlier proceedings, eg was he being victimised?"
Mr Soobrayen makes a point that it had been made absolutely clear in that letter in April 1994 that the evidence of the Chairman as to conversations in January 1990 and March 1992 was critical to the complaint of victimisation on the grounds of race. Despite that being made absolutely clear, it was not until 4 November that two affidavits were served by Air Mauritius. The first affidavit by Sir Harry Tirvengadum was sworn on 14 September 1994. The second affidavit was sworn by Mr Dastur, the Regional Director for Europe and the United Kingdom for Air Mauritius from his base in Geneva.Mr Soobrayen's point is this; the Industrial Tribunal made a legal error in admitting these two affidavits served just before the hearing started and in depriving his Counsel of the opportunity to cross-examine the two deponents of the affidavits. For reasons explained in the extended reasons, neither Sir Harry or Mr Dastur attended the hearing. Mr Soobrayen argues that this was a serious legal error. He explained that the heart of his case was that Sir Harry had never forgiven him for making a complaint of race discrimination in 1990 (that complaint was compromised); that the real reason for his dismissal was not redundancy, as given by Air Mauritius when he was dismissed, and later conceded by Air Mauritius to be an unfair dismissal. In the circumstances, he was deprived of the opportunity of cross-examining these two witnesses on their affidavits, and of the chance to elicit further evidence which would have helped him to establish his case of victimisation.The Tribunal heard argument from both sides about the affidavit evidence. The way they dealt with it on page 7 of their reasons was this:
"9.2 The Respondent introduced evidence from Sir Harry and Mr Dastur by Affidavit, and neither of them attended the hearing. Lord Meston, for the Applicant, sought to exclude their evidence, arguing that both witnesses could have attended the hearing. Mr Wallington for the Respondent submitted that as Chairman and Chief Executive of a worldwide airline, and a personal member of an IATA Committee, Sir Harry was always on the move, and could not reasonably be expected to spend up to five days attending a Tribunal hearing in London. Mr Dastur is based in Geneva, has suffered a serious heart operation, is elderly, and accordingly could not be expected to travel to London.
While we were not entirely satisfied with these reasons for non-attendance (arrangements could have been made to take Sir Harry's evidence by appointment), we accept the Affidavits as evidence, albeit with considerably less weight than if the individuals had made themselves available for cross-examination."Mr Soobrayen said that the Industrial Tribunal must have given excessive weight to these two affidavits in dismissing his claim of victimisation, as their evidence was crucial to his case and yet his Counsel was unable to cross-examine them. That is the heart of the complaint.We have sympathy for Mr Soobrayen's complaint. If we were the Industrial Tribunal we might have come to the conclusion that either the case should be adjourned so that one, or both, of those swearing the affidavits could attend to be cross-examined and, if they did not attend, exclude their evidence. We might have taken a hard line and said, "In view of the lateness of the service of the two affidavits, they should not be admitted at all". The fact that we might have taken those courses of action does not mean that the course of action taken by the Industrial Tribunal was legally incorrect. The Tribunal has a wide discretion about how it handles evidence on a hearing before it.In our view, there was no legal error by the Tribunal in taking the course of admitting the evidence without it being cross-examined, but carefully noting that they would give it less weight than if it had been the subject of cross-examination. That may not be an ideal way of dealing with it, but we are unable to say that it was arguably legally incorrect; it was within the wide area of discretion of the Tribunal.The Tribunal observed that they were not entirely satisfied with the reasons given for non-attendance. They did not accept the evidence without question; they gave it less weight than they would have done if there had been cross-examination.In those circumstances, in our view, there is no arguable legal error by the Tribunal in adopting that course. For those reasons, we do not accept the first argument put forward by Mr Soobrayen.His second argument is a narrower one and relates to the refusal of the Tribunal to order re-engagement. As already mentioned, Air Mauritius had conceded before the hearing that there was a case of unfair dismissal. The only question was the appropriate remedy.In dealing with remedy in paragraph 23 of the decision the Tribunal explained that reinstatement was out of the question, because Mr Soobrayen's job had ceased to exist and they refused to order re-engagement for the reasons stated in paragraph 23.3; that is, "given the accusations and counter-accusations on both sides, we conclude that it is not reasonably practicable to order re-engagement."Mr Soobrayen's criticism of this part of the decision was that the Tribunal had made a legal error in not ignoring a letter put before the Tribunal. That letter is dated 29 June 1994. It is on Air Mauritius notepaper. It bears seven signatures of all the people employed by Air Mauritius in the London office. It is not necessary to read the letter out. The letter makes various points about the relationships between Mr Soobrayen and his colleagues in the London office. The Tribunal, in paragraph 23(2) of the decision, quoted an extract from the letter and commented that they found the production of that letter distasteful, and that they had some reason to doubt that all the signatures had been obtained voluntarily, or that they represented the genuine views of all those who signed.The Tribunal nevertheless went on to say "we cannot ignore it in considering whether or not it is practicable to make a re-engagement order". Mr Soobrayen says that the Tribunal should have ignored the letter in view of the fact that he alleges that Sir Harry and Mr Dastur must have put pressure on the London office to express unhappiness at the prospect of Mr Soobrayen being re-employed.In our view, there was no error of law by the Tribunal in the manner in which they dealt with this letter. They had reservations about it; about whether it expressed the true views of those who signed; about whether it was voluntary. In our view, they were entitled to take the view that they could not ignore it.The fact was that accusations were being put forward; two of those who signed the letter attended the hearing of the Industrial Tribunal and gave evidence for Air Mauritius. Against the letter Mr Soobrayen was saying that pressure had been brought to bear on those who signed it.In our view, the Tribunal were entitled to say they could not ignore the letter. They were entitled to conclude, in the circumstances, that, given the accusations and counter-accusations on each side on the question of Mr Soobrayen's position as a colleague, it was not practicable to make a re-engagement order.In our view, neither of the points advanced by Mr Soobrayen reveals an arguable point of law. We understand why he has brought the appeal and why he feels that he has a grievance about the way in which the case was conducted. It may be that a different Industrial Tribunal would have taken a different view about both the question of the affidavits and the letter. But that does not mean that there has been an error of law by the Tribunal in matters over which it had a wide discretion.We would also add this. We were able to discern from Mr Soobrayen's contentions that he believes that, if the question of the unfairness of his dismissal was conceded, it must follow that he had been victimised. We point out that one does not follow from the other. It was a possible conclusion, in law, for the Tribunal to conclude that on the one hand there had been unfair dismissal and should not be re-engagement but compensation ordered and, on the other hand, to conclude that victimisation had not been established. The two are different kinds of claims, under different Acts of Parliament, with different requirements. It does not follow that because you succeed in a claim under the Employment Protection (Consolidation) Act, that you must succeed in a claim of victimisation under the Race Relations Act.For all those reasons, we see no point in this case proceeding to a full hearing. We will accordingly dismiss the appeal at this stage.