Kansese v London Borough Of Ealing [1995] UKEAT 646_94_2305

EMPOLYMENT APPEAL TRIBUNAL

BAILII case number: [1995] UKEAT 646_94_2305

Case No Appeal No. EAT/646/94

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

Kansese

London Borough Of Ealing

Date 23 May 1995

[1]BAILII case number: [1995] UKEAT 646_94_2305 Appeal No.

EAT/646/94

EMPOLYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 23rd May 1995 THE HONOURABLE MR JUSTICE MORISON LORD GLADWIN OF CLEE CBE JP MISS C HOLROYD MR B KANSESE APPELLANT LONDON BOROUGH OF EALING RESPONDENTS Transcript of Proceedings JUDGMENT PRELIMINARY HEARING Revised APPEARANCES THE APPELLANT IN PERSON MR JUSTICE MORISON : Following a four day hearing before an Industrial Tribunal held at London (North) Mr Kansese's complaint that he had been unlawfully discriminated against on the grounds of his race contrary to the Race Relations Act 1976 was unanimously dismissed. We take the facts from the written decision of the Industrial Tribunal which was entered in the register on 24th May 1994. Mr Kansese whom we shall call, if we may, the appellant and who is black was employed by the Council of the London Borough of Ealing whom we shall call the employer, as housing management officer from 20th August 1990 until 21st June 1992. At the date of the termination of his employment, he did not have the requisite qualifying period of two year continuous service for making a complaint of unfair dismissal. His responsibilities in his post included liaising with tenants and endeavouring to ensure that they complied with the terms of their tenancies. The Industrial Tribunal said that the appellant was:

"... an unhappy and difficult man full of aggression. He was unwilling to accept any form of authority or to respond to instructions given to him, ... . In addition to problems with communication and a poor grasp of legislation, he failed to get on with this work colleagues and the tenants for whom he was their first line of contact."

Following an investigation the appellant was given by letter dated 4th March 1991 a first formal written warning which led to the withholding of his annual increment, a change in his place of work, further training, and lastly, his work was subject to monitoring for a period of one month. On 1st October 1991 he was issued with a final warning for failing to carry out his duties in a satisfactory manner. And he was set, according to the Council objectives, targets and standards by which his work could be monitored over a three month period. On 22nd May 1992 he was dismissed following a five day domestic hearing which found proved allegations that he failed to comply with the standards set for him during the monitoring period and that he had demonstrated a lack of capability and willingness to comply with management instructions. His appeal against dismissal was refused following a hearing on 23rd July 1992. It is to be noted that at all stages Mr Kansese has said that the requirements and instructions were never specified and his breaches of those requirements and instructions have never been proper particularised and nobody has ever justified their allegation that he was incapable or unwilling to carry out the duties to which he was assigned. On 18th September 1992, Mr Kansese presented a complaint to an Industrial Tribunal alleging unlawful discrimination on the grounds of race. It was his case that throughout his employment he had suffered two years of persecution and discrimination because of his cultural background alternatively his colour. If he was as bad as was made out, he surely would have not have been dismissed after twenty-two months but much earlier. The disciplinary hearings had been a farce. He had, contrary to what the Council said, complained of racial discrimination before his application to the Industrial Tribunal. He had suffered abuse by a tenant which he had reported to the Council, and there had been a conspiracy between the Council's managers, or some of them, because he does not allege that everybody was conspiring against him, to dismiss him. Having correctly directed themselves as to the law, in particular to the need for Industrial Tribunals to draw inferences of racial discrimination where such were justified, the Tribunal concluded that the case for dismissal was based upon the appellant's conduct and capability and that the Council had taken the appellant at great length and with great patience through its procedure. They were satisfied that his dismissal was for a bona fide reason and they were not prepared to draw an inference of racial discrimination as there was no evidence, in the judgment of the Tribunal, to justify it. And the application was accordingly dismissed. By a Notice of Appeal the appellant says: He was restricted to cross-examination about those incidents which had occurred within the period of three months before his complaint was presented. Yet the employers, the Council, were able to go through matters which occurred must earlier.

[2]The Industrial Tribunal failed to take into account matters for which an inference of unlawful discrimination could be drawn. Namely in particular, that the Council had failed to follow their probationary staff review procedure, and disciplinary and work review procedures.

[3]The finding of fact that that the complaint of racial discrimination was the first occasion on which he had made such an allegation was "contrary to the evidence before the Tribunal."

[4]The appellant appearing in person could not properly present his case because the Council did not properly respond to discovery orders against them. The Industrial Tribunal did not make proper discovery orders against the Council. And the appellant had insufficient time to study the bundle of documents presented to him on the morning of the hearing.

[5]The finding that the applicant was an "unhappy and difficult man, full of aggression" was an extremely emotive finding which no reasonable tribunal should have made.

[6]The decision is seriously flawed in that insufficient weight was attached to matters of evidence presented by the appellant "because of the extremely negative view formed by the Tribunal of the appellant." The purpose of this hearing has been to determine whether the Notice of Appeal and the accompanying documents, in particular the submissions which have been made to us and the correspondence with the Employment Appeal Tribunal, reveals any arguable point of law against the decision of the Industrial Tribunal fit to be presented at a full hearing of the Employment Appeal Tribunal. We shall consider each of the matters raised in the Notice of Appeal in turn. As to the first ground, that is the restriction on his ability to cross-examine, the problem with which this Employment Appeal Tribunal is faced, is that the Chairman's comments have been sought on that complaint, and the factual basis, according to him, upon which this ground is based, is simply not made out. The appellant was given an opportunity to cross-examine about everything that had happened during his employment, and that is what we have been told by the Chairman. As to the second ground, that is that the Industrial Tribunal failed to take into account matters from which the inference could be drawn, an Industrial Tribunal is not to be criticised for failing to mention in their decision every point relied upon by either party. They specifically addressed themselves to the question, whether there was any unfairness shown to the appellant in the way in which they dealt with him procedurally. Their findings in paragraphs 3(h), 5 and 6 show that the Industrial Tribunal were impressed by the care with which the Council took to encourage the employee to work in accordance with their standards, and according to the Industrial Tribunal, invested considerable time and expense in doing so. They also noted that on one occasion he had walked out of a monitoring session. It seems to us that however much the appellant disagrees with the conclusions arrived at by the Industrial Tribunal in this respect, there is no reasonable argument capable of being presented, that the Industrial Tribunal failed to take into account any point made by the appellant or by the Council such as to render the decision of the Industrial Tribunal challengeable in this Tribunal as a matter of law. But that said, it is manifest that the appellant believes that he had been unfairly dealt with by the Council, and that his immediate superior altered records (Golf Links Day Book entries) and failed to distinguish between a probationary review meeting and a probationary review report and was biased against him. But our powers are limited to putting right errors of law, and not what the appellant believes to be errors of fact. As to the third matter, that is the finding of fact that the complaint of racial discrimination was the first occasion on which such an allegation had been made. There was a conflict of evidence before the Industrial Tribunal, and it seems to us, that it was for them to decide what evidence they accepted and what they did not. There are various indications that the appellant had made complaints of racial discrimination in one form or another. In the first place, he complained to his employers about the racial attitude demonstrated to him by a tenant. This is mentioned in the decision, but of course of itself does not meet the force of the proper comment which is being made, namely, that if he had felt that his employers were treating him badly, because of his colour, he surely would have said so before his dismissal. Yet, according to the Tribunal he did not. But it is right to record the fact that the appellant had been involved in an issue over the use of the Punjabi language within the Council. He had signed a circular protest paper in relation to it, and it is also right that he had consulted Black NALGO about his position, vis-a-vis his Asian superior. Despite these matters we do think that the Tribunal were entitled on the evidence which they heard, to accept the evidence presented to them and to reach the conclusion about which complaint was made. The fourth matter is that the appellant was appearing in person and could not properly prepare his case because of the lack of proper discovery. As to the lack of proper opportunity to present his case, it is always, in our judgment, regrettable that any losing party should feel that he has not had a fair hearing, and it is apparent to us from what has been submitted to us by Mr Kansese that he strongly believes that he was not given a fair hearing by the Industrial Tribunal. It is true that each party brought to the Industrial Tribunal on the date of the hearing bundles to which reference would be made. As we understand it, because of the weight of the material the case was put back to the afternoon session, and it was found, as one would expect, that there was much overlap between the two bundles. According to the Industrial Tribunal Chairman, no complaint was made by the appellant about documentation, and he did not ask for an adjournment, nor complain about the adequacy of the Council's discovery. We have had referred to us a letter which the appellant wrote to the Industrial Tribunal asking for specific discovery to which he says he has had no reply. There was a very considerable quantity of material before the Industrial Tribunal, and we do not think that it can be fairly suggested that the absence of any one of more particular documents can have had any significant affect on the outcome of this case. We note from other material provided to us that the appellant had prepared himself for an opening statement to make to the Industrial Tribunal. As the burden of proof was upon him, he felt, rightly, in our view, that he had the right to make an opening statement before being asked, as he was, to go to the witness box. However, in practice, the right make such a statement is often not as advantageous as inexperienced litigants, if I may so describe Mr Kansese, would tend to believe. But it does seem to us that where an applicant, on whom the burden of proof lies wishes to make an opening statement, the Tribunal should consider very carefully before refusing such an application. In this case having regard to the way in which matters have been presented to us by Mr Kansese, we have no reason to believe that the Tribunal would not have been assisted by him making such a statement. The next point relates to the finding to which we have already referred. We for our part would probably never choose to make findings of the sort complained about. It seems to us not to be the function of a Tribunal to make what must be regarded as unpleasant personal remarks about the personality or character of the persons who appear before them. On the other hand, the Industrial Tribunal had to assess whether the appellant was in effect persuading himself in their view, that his colour was the reason for his treatment, rather than his own alleged inadequacy in the job, or whether the Council were, intentionally or unintentionally, consciously or unconsciously discriminating against him on the grounds of race. To some extent therefore, his manner and demeanour during the hearing was going to assist them at arriving at their own conclusion, but it seems to us that an Industrial Tribunal must beware of assuming that a person's behaviour before them, in the artificial and unusual atmosphere that pervades the adversarial process, truly reflects their behaviour under other circumstances. Instead of saying that the appellant was an unhappy and difficult man, full of aggression, it would, we think, have been better if that was expressed as an opinion, expressed if it were, by the Council during the course of their case, or formed, if it was the case, by the Industrial Tribunal on the basis of their brief acquaintance with him during the litigation. We cannot conclude however that what was said, assuming that it was entirely the Industrial Tribunal's own view, was unfair, or that it revealed bias, prejudice or hostility on the part of the Industrial Tribunal, although we can quite well understand why it is that the appellant before us feels strongly about those sentiments. We think it right to record that the appellant has behaved to us in an entirely appropriate way, and has put his points with force and clarity, and we would like to record the fact that had it been our business to say so, and it is not, we would have reached a completely different conclusion as to Mr Kansese's character and qualities, based on the little limited time that we have had to observe him. Finally, we should add, and this is the last point, that the question of weight to be attached to matters of evidence is entirely a matter for the Industrial Tribunal and not for us. We cannot re-weigh the evidence, we cannot re-consider the evidence, we can only look at points of law, if such are established. With those limited powers we therefore have to ask ourselves is this matter fit for hearing before a full tribunal, and we have come to the conclusion, for the reasons which I have shortly tried to express, that as there is no arguable point of law, we should dismiss the appeal.