Gossiel v Sheffield City Council [1996] UKEAT 1186_95_2102

EAT
Gossiel v Sheffield City Council
[1996] UKEAT 1186_95_2102 · 1996-02-21
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Sheffield on 14 June 1995. The Tribunal unanimously decided that Dr Gossiel's claim against the Sheffield City Council for race discrimination and victimisation should be dismissed, and ordered him to pay £50 towards the Council's costs.The extended reasons for the decision were sent to the parties on 7 July. Dr Gossiel was dissatisfied with the decision and appealed by serving a Notice of Appeal dated 17 August, subsequently amended on 20 October.At the Preliminary hearing Mr Quigley represented Dr Gossiel. He made all the points that he could possibly make in support of his appeal. We have to decide whether the appeal raises a reasonably arguable question of law. If it does, then the case will proceed to a full hearing at which the Council will be represented, as well as Dr Gossiel. If there is no reasonably arguable question of law, there is no point in the case continuing. The jurisdiction of the Appeal Tribunal is limited to appeals on questions of law in Industrial Tribunal decisions, or arising in proceedings before an Industrial Tribunal. It is not open to this Tribunal to interfere with a decision of an Industrial Tribunal simply because it would have handled the case differently, or reached a different decision. There has to be an error of law for this Tribunal to adjudicate upon.To decide whether there is an error of law in this case, we must examine the events which led up to the case being dismissed. Dr Gossiel brought a case against the City Council. He presented his application to the Tribunal on 23 August 1994. He complained that there had been racial discrimination and victimisation contrary to the Race Relations Act 1976 , in relation to his unsuccessful application for two teaching posts. The Council contested the claim denying that there had been any breach of the 1976 Act . Their case was that all the applicants for the posts in question at two schools were carefully and properly assessed, and the appointments made purely on the basis of suitability, ability, and appropriateness for the individual posts concerned.The case was set down for a two day hearing. On the first day Dr Gossiel appeared in person. Counsel appeared for the City Council. Dr Gossiel did not propose to call any witnesses, though there were people present to give evidence on behalf of the Council. At the outset of the hearing, Dr Gossiel objected to the composition of the Tribunal, and complained that the Chairman was biased. He said he had made his objections known to a member of the Tribunal staff at an earlier date. He was aggrieved that the Chairman was going to sit. Dr Gossiel was invited to explain why he considered the Chairman, Mr R Williams, to be unfair or biased. He said nothing to support his contention, other than to say that he felt himself to be under psychological pressure. He did not want a Chairman who had previously been involved in a decision affecting him. He referred to an earlier case where a Tribunal, chaired by Mr Williams, had unanimously decided at a Preliminary hearing that a claim brought by Dr Gossiel was out of time. There was no application to review the earlier decision and no appeal against it.The extended reasons explain how one of the lay Members who sat on the first day, Mr Hussain, had a tenuous connection with some of the Council's witnesses: he had a brother who worked at the school where Dr Gossiel had unsuccessfully applied for a job. When Dr Gossiel was told this, he objected to Mr Hussain sitting on the Tribunal. There was a short retirement, after which it was decided that Mr Hussain should stand down. It was also decided that there was no good or valid reason why the Chairman should stand down. Arrangements were made for another panel member to come the following day and the case was adjourned. Mr Wilkinson took Mr Hussain's place.At the commencement of the proceedings on the second day, Dr Gossiel repeated his objection to the Chairman's presence and stated the reasons for his objection. The Tribunal stated that there was no good basis for these objections and decided to hear the application. Dr Gossiel was invited to present his case, but he declined to do so. He was urged more than once to do so. It was explained to him that the burden of proof was on him and that he would be in difficulty if he did not give evidence and present his case. He was told he could have a short adjournment to compose himself and consider his position, but Dr Gossiel remained adamant that he was not prepared to proceed while Mr Williams was the Chairman of the Tribunal. There were more futile attempts to persuade him to present his case. Mr Grundy, the barrister representing the Council, was then invited to speak. He invited the Tribunal to dismiss the application, saying that the burden of proof was on Dr Gossiel to prove his case. Dr Gossiel was reminded of this and asked to reconsider his position. He was invited to take a few moments to consider his position, but he declined to give any evidence. He declared that he would not do so while the Chairman remained on the Tribunal.In those circumstances the Tribunal dealt with the application. The Chairman read out the Originating Application. Dr Gossiel said he should not do so. He said it was unnecessary, because he had his case all ready to put before a differently constituted tribunal. The Members of the Tribunal retired. They re-read the application and took those matters into it into account. They decided that Dr Gossiel had not established any basis upon which he could succeed, as he had positively declined, despite prompting from the Chairman, to give any evidence. It was in those circumstances that the complaint of Dr Gossiel was dismissed. The Tribunal set out the considerations that led them to make an order for costs.The Notice of Appeal raised questions about the procedure in the Tribunal. In accordance with the practice of this Tribunal, Dr Gossiel was required to swear an Affidavit. The grounds of the appeal, as amended, were these:
"6. ... that the Industrial Tribunal erred in law in that: (a) the Tribunal decided to overrule the Appellant's objections to the case being heard by Mr Williams, the Chairman, when it would have been well aware that the Appellant had, during the course of a previous application heard on the 8 February 1995, objected to various derogatory remarks made by Mr Williams about the Appellant's religion, where such remarks would have caused a reasonable observer not being a party to the proceedings to conclude that there was a real danger of bias on the part of the Chairman against the Appellant; (b) the Tribunal decided to proceed with and determine the application even though it did not hear evidence from the Appellant; (c) the Chairman Mr Williams should not have adjudicated on the Appellant's complaint that he the Chairman should not sit on the Tribunal dealing with his case because of bias displayed by the Chairman on a previous hearing involving the Appellant; (d) the Tribunal had acted incorrectly in asking me to give evidence when, as a result of a letter from my GP (Dr Hoare) and dated the 15 June which I produced on the second day of the hearing, it should have concluded that I was not in a fit state to be able to present my case."
All the objections are to procedural matters. They fall into two heads: first, the way in which the Tribunal dealt with the objection to the Chairman on the grounds of bias; secondly, the way that the Tribunal handled the hearing of the case, despite Dr Gossiel's claim that he was not in a fit medical state to present it.Dr Gossiel swore an Affidavit on 9 November in which he stated in more detail the grounds of his complaint about the procedure followed by the Industrial Tribunal. He provided more details about his earlier case, heard by an Industrial Tribunal chaired by Mr Williams. That case was against the Pakistan Muslim Centre and that was heard in the Sheffield Industrial Tribunal on 8 February 1995. The Tribunal declined jurisdiction in that case, on the basis that the application lodged by Dr Gossiel was outside the three month time limit. He gave some details of that case and explained why he did not appeal against the decision, despite his belief that he was the victim of bias on the part of the Chairman.He details incidents at that earlier hearing, which, he says, evidenced bias by Mr Williams. They included intervening when other members of the Tribunal were trying to cross-examine the Respondent's witnesses, cutting short their questions and so damaging his case. There were complaints that in the Tribunal in the presence of the legal representatives of the Respondent, Mr Williams made various derogatory remarks towards Dr Gossiel about his religion. Dr Gossiel considered that the alleged remarks were blasphemous and insulting to him and to his religion. He was upset by those comments.He explains how he started this case against the City Council and how he discovered that Mr Williams would be the Tribunal Chairman. He had made enquiries at the Tribunal in May as to who would be the Chairman. He was told that a Chairman had not been appointed, but was assured, he said, by a female court clerk, that it would not be Mr Williams, as it would be unfair to him, because he had sat at the earlier hearing. He went along to the office again, a week or so before the hearing started. He saw another court clerk, explained his concerns about Mr Williams, the Chairman, and said he was assured that Mr Williams would not be appointed to chair that Tribunal. He attended on the 14th. He said this:"... I saw to my horror that Mr Williams name appeared as the Chairman for my case. I again spoke to the Court clerk (who was a person other than the two which I had previously spoken to) and again explained to her my concerns about my receiving a fair hearing if Mr Williams sat on the Tribunal and she said that she would pass the comments onto the Chairman. She returned shortly thereafter and told me that I could explain to the Chairman my objections to him hearing my case."...That is what happened. He explained his concerns to the Tribunal. The Chairman himself volunteered the position about the lay Member, Mr Hussain. He objected to Mr Hussain. The matter was then adjourned to the following day. He invited the Chairman to step down so that a fresh Chairman could be appointed. The Chairman said he would not. The Chairman read out his application. Dr Gossiel interrupted, stating for reasons already given, that he was unable to give evidence. His application was dismissed.Dr Gossiel contends that the Tribunal acted improperly in overruling his objections to bias. His allegations against Mr Williams satisfied the usual test: would a reasonable observer present at the hearing gain the impression of bias? Would he gain the impression of an appearance of a closed mind against a party on a matter that called for decision, when that party had not yet presented all his evidence on the point, or had an opportunity of addressing the Tribunal? Secondly, he objected, it was contrary to natural justice for his objections regarding the Chairman to be heard by the Chairman himself sitting on the panel making the decision. The proper procedure was that Mr Williams should have made his comments known to the Tribunal and then withdrawn from the panel, to enable the existing Members to make the decision.The Affidavit was placed before the Chairman of the Tribunal for his comments. He provided his comments on 29 November. Mr Williams's comments were these: that, the earlier decision, was a unanimous decision on a preliminary point. There had been no appeal and no application for a review. As for the account of the events of 14 and 15 June, the Chairman said that, at the outset of the hearing, Dr Gossiel was asked why he objected to Mr Williams. He said he was happy with him as a person and respected him, and added that he was pleased with the way that he had brought out some of the evidence at the earlier hearing. Dr Gossiel said:
"Once a Chairman has been before it will be upsetting to be heard by the same Chairman, that's my only objection. I always got a lot of pressure and I do not want to suffer another problem." He then added "I know you are a fair person, I know you are interested in justice but it is my psychological feelings. I cannot let myself engage in this case at this time."
Dr Gossiel did not suggest that he, Mr Williams, had been or would be biased. At one stage, thinking that Dr Gossiel might be suffering from some form of stress, Mr Williams asked him whether he had any medical evidence in the form of a letter or note from a doctor. He said, that at that suggestion, Dr Gossiel somewhat forcibly told him there was no question of him being mentally ill.Dr Gossiel was told that he had not put forward any sound reasons for a differently constituted panel. Only then, the Chairman says, did Dr Gossiel begin to mention bias. He began saying that he, the Chairman, had insulted his religion: had quoted Salman Rushdie's "Satanic Verses" and said something about the "ladies going to Mohammed in the mountain or Mohammed going to the ladies in the mountain". The Chairman denied that these had been said and that he had not read Rushdie's works. He added that two other Chairmen had turned down Dr Gossiel's request for an early adjournment, one ground being that the case was due to be heard during Eid, the holiest event in Islam. He says unknown to Dr Gossiel he was the Chairman who had decided that it would be appropriate to adjourn the case, because it coincided with that important religious event.We have to ask this question: was there a legal error in the decision of the Tribunal to dismiss Dr Gossiel's claim for race discrimination and victimisation? In his helpful submissions, Mr Quigley said that there were reasonably arguable errors of law in the procedure of the Tribunal. There had been a breach of the rules of natural justice, because the decision against Dr Gossiel had been made without the Tribunal hearing any evidence or argument from him. The reason he had not given evidence was, first, that he had made an objection that he was entitled to make against the presence of Mr Williams as the Chairman. That objection which was based on stated grounds relating to Dr Gossiel's earlier case at which Mr Williams had presided. A second reason for not giving evidence, was that he was not well enough to give evidence. He was stressed. He had some medical evidence on the second day. He was not well enough to go on in these circumstances. It was not in accordance with the rules of natural justice to decide the case against Dr Gossiel without hearing him.Further points made by Mr Quigley were that the question of the objection to the Chairman should have been put to a different Tribunal, or at least to a Tribunal with a different Chairman, rather than the Tribunal chaired by Mr Williams. That could have been sorted out and, if appropriate, a decision made to have a different Chairman in place of Mr Williams. On the point of Dr Gossiel's fitness to continue, the Tribunal should have adjourned the case. In addition to Mr Quigley's arguments, Dr Gossiel, at our invitation, made submissions himself. He conveyed his feeling of upset, not only at finding that Mr Williams was the Chairman, but also at the procedure adopted in deciding the case against him without hearing him. He said all he wanted to do was to present his case and to get justice. In those circumstances, we ought to allow this appeal to continue to a full hearing.We have considered all these points. Despite the very helpful submissions from Mr Quigley for Dr Gossiel's part, we are unable to find an error of law in the procedure adopted by the Tribunal. In our judgment, the position is this: the reason why Dr Gossiel lost the case was not as a result of any error on the part of the Tribunal; it was as a result of his own refusal to give evidence to the Tribunal, even after attempts made more than once, to persuade him to do so, and after the position had been explained to him about the burden of proof and the consequences of not giving evidence. There is no error of law in a Tribunal deciding a case against an applicant, if the applicant refuses to give evidence to the Tribunal. It is necessary for him to prove his case. As for the argument that Dr Gossiel had a good reason for not giving evidence to the Tribunal, on account of alleged bias and to his medical state, we are not satisfied that this involves any legal error on the part of the Tribunal.The position is this Dr Gossiel made an objection to the constitution of the Tribunal. His objection was not upheld. It was then his duty, as it is the duty of every other litigant in the case of a ruling made by a Tribunal during the course of a hearing, to abide by that ruling and proceed with the case. He would not prejudice his position by doing so. If the case proceeded and the Tribunal heard all the evidence and argument on both sides, they could come to one of two decisions. They might decide that Dr Gossiel had established his case, in which event he would have nothing further to complain about or appeal about. Or they could find that he had lost the case because he had not proved it. In that instance, he could then have appealed. One of the grounds of appeal which he could advance to this Tribunal, is that there had been an error on the part of the Tribunal in proceeding with the hearing with that Chairman to whom he objected.It is not permissible for an objection to be made and, when it is not upheld, for the applicant to refuse to take any further part in the proceedings. If that were permissible, it would bring chaos to the conduct of hearings in an Industrial Tribunal. Hardly a hearing takes place when it is not necessary to make rulings on one matter or another. There may be rulings on matters such as this. There may be rulings on amendment of the case. There may be rulings on discovery of documents. There may be rulings on the admissibility or inadmissibility of evidence. In all these cases, if the ruling rejects the submission of the person who made it, that person should abide by the ruling for the purposes of that hearing. Then, if he loses, he can raise the objection on an appeal.The error in this case was Dr Gossiel's error. After he had the matter fully explained to him, he refused to continue with his case. On the question of whether he was medically fit to present the case, it does not appear, from the facts before us, that he actually asked for an adjournment or produced material on which an adjournment could be granted for that reason. There is nothing in the Affidavit relating to this. All we have on it is an allegation in the amended Notice of Appeal that he produced a Medical Certificate from which the Tribunal should have concluded that he was not in a fit state to present his case. A Medical Certificate (although we have not seen it) was dated 16 June, that is after the date of the hearing. Secondly, we have the comments of the Chairman (which we accept), that the question whether Dr Gossiel was suffering from some form of stress was a matter raised by the Chairman, when he requested whether there was any medical evidence in the form of a letter or note. He says that he was told by Dr Gossiel that there was no question of him being mentally ill.On this point, it cannot be said that the Tribunal made a legal error in proceeding with the hearing, when it is not clear from the factual material that there was any application for an adjournment or any medical evidence upon which a decision could be made on the question of whether the hearing should proceed or be adjourned. For all those reasons, we have reached the decision that there is no arguable point of law in this appeal. We appreciate that Dr Gossiel may feel aggrieved about this. He has made it clear to us in his own remarks that he does, but we have to say, for the reasons mentioned, that it was his decision not to give evidence. He must take the consequences of that as a matter of law. The appeal is dismissed.