Mighty [1996] UKEAT 743_95_2401

EAT

Mighty

[1996] UKEAT 743_95_2401 · 1996-01-24

MR JUSTICE MUMMERY (PRESIDENT) : This is the preliminary hearing of an appeal by Mr N Mighty against the decision of the Industrial Tribunal held at London (North) on 18 April 1995. The Tribunal notified the parties of the extended reasons for their decision on 19 May. Their decision was that Mr Mighty had not been discriminated against on racial grounds by the Respondents. The Respondents are Mr Gardner and the Islington Branch of NALGO.

Mr Mighty appealed against the decision. His notice of appeal was served on 30 June. The appeal was set down to be heard as a preliminary hearing, because it was not clear from the notice of appeal as to what question of law arose from the decision of the Tribunal. This Tribunal only has jurisdiction to hear appeals from a decision of an Industrial Tribunal on a question of law; that is, a question of the correct interpretation of the legislation, such as the Race Relations Act 1976, or the correct application of it to the facts of the case. The Tribunal can also hear appeals against decisions which no reasonable tribunal would have arrived at on the evidence. We do not have any power to hear an appeal against a decision of fact. That is for the Industrial Tribunal which hears the witnesses give their evidence, hears them cross-examined on their evidence and decides whose evidence is to be accepted and what are the relevant facts of the case.

At the hearing today Mrs Obasa represented Mr Mighty. She has argued that there is an arguable question of law in the appeal which should be decided at a full hearing and we should, therefore, allow this case to proceed.

The background to the case is that the Applicant, Mr Mighty, is of Afro-Caribbean origin. He claims that he was discriminated against on racial grounds by Mr Gardner, Branch Secretary of his local branch of NALGO, and by that Branch.

The claim is made under section 11 of the Race Relations Act 1976, which applies to organizations of workers, such as trade unions. It provides that:

"(3) It is unlawful for an organisation to which this section applies, in the case of a person who is a member of the organisation, to discriminate against him - (a) in the way it affords him access to any benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them;"

In order to understand the effect of that section, it is necessary to refer to the definition of discrimination in section 1(1)(a) of the Act. It defines direct discrimination as follows:

"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;

There is a definition in section 3 as to what is meant by "racial grounds", that, is grounds of colour, race, nationality or ethnic or national origins and so the burden is on an Applicant bringing a case under section 11 to prove that he has not been afforded access to benefits, facilities or services on racial grounds and that that is less favourable treatment than is or would be given to others.

The complaint by Mr Mighty was that he had been the victim of discrimination. He was a fee-paying member of NALGO, Islington Branch, for about eight years and was discriminated against when he asked for representation and legal assistance from the Branch Secretary on 16 February and 18 September 1992. That was a straightforward complaint. If he could prove that there was discrimination in that matter then that would be unlawful conduct on the part of Mr Gardner and the Branch.

The Tribunal heard evidence. They heard evidence from Mr Mighty and a witness, Mr Rosenbaum, who is white. They also heard evidence from Mr Gardner. The Tribunal said, correctly in our view, that the first thing on which Mr Mighty had to satisfy the Tribunal, was that there was a refusal of representation. Their finding was, on the evidence they heard, that there was no refusal of representation. They said that:

"There is clear evidence in the correspondence that the Applicant was told that he could take the matter further, even if he was discouraged by what the First Respondent [Mr Gardner] had told him on the first or second occasion when they met. [The document] sets out what the Applicant's rights were, ie to approach any other union representative in the branch and request them to represent him and to require a panel to be convened to decide whether representation should be granted to him. That was in response to one the Applicant had written on 10 February 1992, [which says this]: `Having spoken to you on two occasions, ... I have decided to have representation outside of the Union and the Council'. That was a voluntary decision on the part of the Applicant to seek representation elsewhere. We also take note of the fact that, when there was a later refusal of financial assistance by the union (which was not a decision of the First Respondent) that was a usual step taken in accordance with what has been described as custom and practice within the union. It is quite an understandable one because the union must have some control over the legal costs. Without such control, costs could easily get out of hand."

The Tribunal found that there was no refusal of representation. That would be enough to reject the claim as unfounded.

The Tribunal did, however, go on to say that they would determine the further question whether there was any treatment of Mr Mighty which was discriminatory on racial grounds. On that they heard evidence from those I have mentioned. They said in paragraph 3 of the decision that they preferred the evidence of Mr Gardner to that of Mr Mighty and his witness. They concluded that there was no treatment of him that was discriminatory on racial grounds. They referred to the questions put by Mr Gardner to Mr Mighty about the allegations..The Tribunal found as a fact that Mr Gardner had acted properly in investigating the matter by putting the case to Mr Mighty in a robust way. They found as a fact that Mr Gardner did not go so far as to say that he thought Mr Mighty was lying. All that he indicated were that there were difficulties which might result in a finding against him after investigation by a disciplinary hearing. The Tribunal did not overlook the evidence of Mr Rosenbaum. They thought that that had not been helpful to Mr Mighty's case. Again, they said that, on the balance of probabilities, they preferred Mr Gardner's evidence and they accepted it as true. They found that:

"there was no racial element, either orally or by letter, notified to the Respondents before these proceedings were brought, some months after the events"

(which I have summarized). That was so, notwithstanding the attendance of Mr Robinson at Mr Mighty's request. Mr Robinson had been a previous boss of Mr Mighty when they were both involved in the Equal Opportunities Unit. The Tribunal commented that:

"It was up to the Applicant, or indeed to Mr Robinson, to raise an allegation of racial discrimination if either of them had thought that there was any racial element in the treatment the Applicant had received."

For those reasons, the Tribunal concluded that the claim failed. They therefore dismissed it.

We have to ask what is the legal question which arises on that decision? It appears from the extended reasons that the result turned on whose evidence the Tribunal accepted. There is no error of law in a Tribunal deciding, when there is a conflict of evidence, to accept the evidence of one person rather than another. Far from being an error of law, that is the function of the Tribunal: to establish the facts. If the facts are not disputed, then it is an easy matter. If the facts are disputed, the Tribunal have to consider all the evidence that they have heard and decide whose evidence is probably correct. That is what they did. They said more than once in their decision that they accepted as truthful the evidence of Mr Gardner. There is no error of law in preferring his evidence.

Having accepted his evidence, the conclusion was inevitable. His evidence was that representation had not been refused and there was no racial element in the treatment of Mr Mighty. He had produced, as someone accused of discrimination is bound to produce, an explanation for the way in which Mr Mighty had been treated. If he had produced no explanation or had produced an unsatisfactory or inadequate explanation, it would have been open to this Tribunal to infer that the treatment of Mr Mighty was on racial grounds. But Mr Gardner's explanation for his actions and decisions was accepted. They did not involve any racial element.

Mrs Obasa has drawn our attention to a number of matters. We clarified with her to whether it was the intention of Mr Mighty to bring an appeal on a point of law or whether what was really sought was a review of the decision from the Industrial Tribunal. She informed us that there was an intention to bring an appeal to this Tribunal. We thought it necessary to clarify this aspect of the case with her, because the heading ofthe document we have treated as the notice of appeal, says "notice of appeal to the Industrial Tribunal" and the there is reference in the document in paragraph 4 to requesting the Tribunal "to review its decision" on a number of grounds. The Industrial Tribunal is, of course, the correct body to make a review of its own decisions. It is not the correct body to which to bring an appeal.

We listened with care to what Mrs Obasa said. She made a number of points, both by reference to the notice of appeal and in oral argument. She that there had been a failure on the part of the Tribunal to deal with the legal points correctly. They had ignored evidence. She said that the decision was made in the absence of evidence from her. She could give relevant evidence of discriminatory treatment by UNISON. Her former employer was the Islington Council. Like Mr Mighty and other black and ethnic minority employees she had suffered racial discrimination and victimization. She, too, had requested help, support and representation from the hardship fund from NALGO, or UNISON, as it is now called, and had been refused it. She said it was well known that, when the Branch refused the help you sought, there was nothing you could do about it. You had to face the problem and deal with it on your own. She thought that the Tribunal decision was itself discriminatory and without justice. She said that new evidence was available since the conclusion of the hearing. The existence of that evidence could not have been reasonably known of or foreseen at the time. She also said that the interests of justice required a review of the decision. It was inconsistent with the evidence given. Her overall submission was that, on the balance of probabilities, in the face of the evidence put to the Tribunal, there had been discriminatory treatment contrary to section 11 of the Race Relations Act. She referred to the failure to process Mr Mighty's applications and to refer him to a panel, mentioned in the documents.

We have considered these arguments. We have no doubt that Mr Mighty feels aggrieved by what has happened, including the decision of the Tribunal which was not in his favour. We have to decide the matter according to what reasons given by the Tribunal for their decision and ask: are they legally correct reasons or are they legally incorrect? In our view, there is no legal question on this appeal. What Mrs Obasa's submissions amount to is that the Tribunal should have accepted Mr Mighty's evidence and rejected Mr Gardener's and, therefore, found that the complaint was well-founded. This is not a question of law. It is a question of whose evidence is preferred. The Tribunal made no error of law by preferring the evidence of Mr Gardner. Mr Mighty might not accept that evidence. He clearly does not. But it is for the Tribunal, and not for the parties, to decide what the facts are and, having found as a fact that there was no refusal of representation and no racial element in the treatment of Mr Mighty, the Tribunal were bound on those facts to dismiss the case.

As there is no arguable legal error in that decision, we are bound to dismiss this appeal. For those reasons, at this preliminary stage, we dismiss the appeal.