Osigbesan v Lord Chancellor's Department & Ors [1996] UKEAT 922_95_2601

EAT

Osigbesan v Lord Chancellor's Department & Ors

[1996] UKEAT 922_95_2601 · 1996-01-26

JUDGE HULL QC:

This is an appeal to us by Mr Osigbesan against the decision of the Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Meeran. To that Tribunal a complaint was made in the usual Form IT1 by Mr Osigbesan that his employers, the Lord Chancellor's Department, had been guilty of racial discrimination, contrary to the Race Relations Act 1976 , in conjunction with his annual report he says, during September 1992 and November 1993. As he sets out there, he makes the Lord Chancellor's Department, and two managers in the department in which he was employed, Mr Martin Stewart and Mr Graham Wilkinson, Respondents to his application.

Mr Osigbesan is employed as an Administrative Officer by the Department. His employment began on 22 January 1990. First we are told, indeed we read, that he did well, he was considered a promising administrator. Later certain troubles developed and in particular his health has given rise to anxiety from time to time. In his IT1 application Mr Osigbesan set out ten particular matters which he said showed that he had been discriminated against in the matter of race. The Respondents denied certain facts and they also denied that those incidents which had any foundation in fact showed any racial discrimination. It would be tedious to go through them all, but there are examples which were given to us in the course of argument.

The Tribunal took no less than three days to hear the case. Mr Osigbesan appeared in person and we are told took no notes of what passed before the Tribunal. Of course he was not obliged to, but he is not in a position to tell us exactly what evidence was given. They reserved their judgment, as is customary, and finally published their decision on 18 July 1995 and sent it to the parties. The appeal is dated 25 August.

The Tribunal started by directing themselves impeccably as to the law, and the definition of racial discrimination. On this appeal Mr Bekoe-Tabiri, who appears for the Appellant, has not criticised any directions of law. The appeal is on a quite different basis from that. The Tribunal having set those matters out remarked that half the specific complaints were out of time, but as the decision shows, they decided that they would hear all of them, if only to hear the background to the case. In fact they dealt with all the complaints and treated them as though they were not time-barred. They allowed them in under their general discretion to hear them.

At paragraph 12 of their decision they dealt with each and every one of the complaints. There were a large number of complaints. Some of them had some foundation in fact. At certain points, the Tribunal felt obliged to criticise the employers. They said that generally, where there was a conflict of evidence, the Tribunal preferred the evidence of the Respondents' witnesses to that of the Applicant. That was a finding which, on the face of it, they were entirely entitled to reach. It is not only their right but their duty to decide all material disputes of fact, and that includes saying which witnesses they prefer, which witnesses they find more reliable, which witnesses they think have a better memory of certain events; and drawing all the inferences and making the deductions which a Tribunal of fact is bound to reach to arrive at its decision. From all those processes of enquiry, we are ourselves debarred. We are entitled only to entertain an appeal on a point of law.

Without going into any further detail, I will say how the appeal is put to us by Mr Bekoe-Tabiri on behalf of Mr Osigbesan. He invites our attention to the Notice of Appeal which says:

"1. The Tribunal failed and or neglected to deal adequately and/or at all the detailed and substantial harassment allegations against the Respondents in the course of his employment.

2. The Tribunal decision is NOT supported by the evidence put before it by the Appellant."

In his Skeleton Argument, Mr Bekoe-Tabiri (may I say that we are grateful for this document and the chronology which accompanies it) sets the matter out in detail. Mr Bekoe-Tabiri has been able to prepare this on the basis of the documents which he has been given, which he tells us were shown to the Tribunal. He has not, for the reasons which I have mentioned, been able to go further and put in matters which rely upon the actual oral evidence given. Mr Bekoe-Tabiri first of all starts with eight paragraphs setting out his statement of the law; certainly we accept it for present purposes. It is derived from the holdings in various important cases in this field. It is quite right that when it comes to matters of racial discrimination the Tribunal has to exercise particular care. It must look at the evidence and see first of all whether the Applicant has been treated unfavourably in some way. That is the start of it. Having looked at that, it must look to see whether he has been treated in that unfavourable way, being a way in which other employees in a similar position were not treated. If there is some difference between the treatment of the Applicant and treatment of people who might be called comparators, other people in similar positions who it is said were not treated in the same way; if there have been such differences; what, if any, explanation is there for them? There may be excellent explanations because people are not identical, events are not identical, but they are under a duty to look and see. If they find that there are differences in the treatment of individuals and they do not find any satisfactory explanations, they can ask themselves and should ask themselves: do we think that this is as a result of racial discrimination? Or of course in other cases, gender discrimination? They must ask themselves that question. They are entitled, in the absence of a satisfactory explanation, to make that inference. They are not bound to, but they are entitled to, and they should be vigilant. As is well said, and we cannot in any way quarrel with this, there would be very few cases indeed in which anybody would actually admit discriminating against an employee on the ground of race or gender and it will normally have to be inferred.

Here it appears to us that the Tribunal went about its task, directing itself in accordance with those authorities, impeccably, and as I say the directions of law which the Tribunal gave to themselves are not in any way disputed. What is said is that the Applicant gave a great deal of evidence in support of his complaints, and that this was disregarded, or not given sufficient effect to, by the Industrial Tribunal. In paragraph 12 of their decision they dealt with each and every complaint in turn. An example of one of the matters is in relation to alleged behaviour over his annual report. They say:

"12(j) The Applicant complained that he received an adverse annual report. The Tribunal has examined the annual report and noted that the Applicant failed to extend his full co-operation in the process leading to the preparation of the annual appraisal report. Whilst the Applicant was correct in being critical of his managers for their failure to follow, to the letter, the departmental procedures he himself had failed to appreciate that even if these procedures were not followed to the letter, there was still a duty on him as an employee to co-operate with his managers in the process and procedures for appraising job performance. The Tribunal can find nothing that is even remotely suggestive of racial discriminatory conduct over the question of the preparation of the annual report or its contents."

That is one matter which Mr Bekoe-Tabiri invited our particular attention to.

It appears to us that those are findings which they could only have reached having given effect to the evidence. It is true of course, as with any Tribunal of fact; where there is a jury, a magistrate, a judge, whoever it may be, he may reach conclusions which are in fact wrong. It is quite clear that they could only reach the conclusions which they set out there, giving full effect to what the Applicant had told them, and saying "yes, the Respondents are to be criticised in this particular" and having listened to what the Applicant himself had said, "we think that he himself failed to appreciate his position properly", and then going on quite rightly to say to themselves "do we find in this unhappy story, in which there was fault on both sides, any evidence of racial discriminatory conduct?". They found that there was not. One could go on with other examples. Another one is in the last complaint about annual leave:

"(l) The Applicant complained that whenever he requested days off as annual leave both Mr Stewart and Mr Wilkinson made things difficult and subjected his applications to the kind of scrutiny they would not have applied to any of his colleagues." [There is an allegation again which is capable of being evidence of racial discrimination.] The Tribunal find that the Applicant has shown a history of applying for leave at the last minute and although by and large his applications were successful his managers were trying to get across to him the message that except for situations of emergency he should put in his leave applications well in advance. The Tribunal find that Mr Stewart and Mr Wilkinson were exercising nothing more than normally expected managerial supervision over the taking of annual leave. Their conduct did not constitute less favourable treatment on racial grounds."

That is criticised by Mr Bekoe-Tabiri, who refers us to his chronology, which as I say is based on the documents. There are several examples in that chronology (and they certainly cannot be all the applications that were made for leave) of Mr Osigbesan, whether with good reason or not, applying for leave very shortly, that is to say, a matter of days, before he wanted it. It may well be that literally that, of course, is not "applying at the last minute". That is a familiar figure of speech. It was for the Tribunal to say whether they thought that those showed a history of applying belatedly, if I could use a neutral word, they were well qualified to do that. We should have been rather surprised if they had not taken the view that these applications were belated. At any rate that was their finding. The managers were trying to get across to him the message that, except in emergencies, he should put in his leave applications well in advance. That again is based and must be based on the evidence which they heard.

It is not suggested that this Tribunal has simply invented findings of fact. They heard the evidence of the two managers and they in general preferred it. They heard, we are quite sure, a great deal of contrary evidence from Mr Osigbesan and some of that evidence they did accept, either wholly or partly. It seems to us quite impossible in those circumstances to say that this Tribunal was not entitled to reach the findings of fact which they did. It is not suggested as I say that they simply imagined evidence. What is said essentially is that they failed to give proper effect to the evidence of Mr Osigbesan. Giving proper effect to evidence is a task for the Tribunal which we cannot possibly assume ourselves. It is said that it is impossible to demonstrate this point satisfactorily because we have not got the Notes of Evidence. That may be. But the fact is that however much evidence from the Applicant was laid before us, even if it were transcribed absolutely literally, we should be obliged to say "the Tribunal has said that they in general preferred the evidence of the Respondents". The mere fact that they did not make a favourable finding on certain evidence of the Applicant is neither here nor there.

This was a manifestly full investigation of what was laid before this Tribunal. They directed themselves correctly that the burden was on the Applicant, and they had the misfortune to find that they were unable to accept most of his evidence where it was contradicted by the Respondents' witnesses. It is not suggested that the Tribunal was biased, acted improperly, or did anything of that sort, nor as I say is it suggested that they mis-directed themselves or made an overt error of law. The complaint is of the nature I have tried to indicate. In spite of Mr Bekoe-Tabiri's very courteous attempts to make us take a different view, we have to say having heard what is said and having read the papers, that we cannot find here any fairly arguable point of law properly so called. Therefore, it is our duty under our practice direction to say that the appeal must not proceed to a full hearing, because that would involve a great deal of expense and time for all parties, and indeed for this Tribunal. Since it is impossible to demonstrate any error of law, the appeal would be bound to fail and in those circumstances we must dismiss it at this stage. That is our order, that the appeal be dismissed.