Sidhu v Bhart & Anor [1996] UKEAT 985_95_2806

EAT

Sidhu v Bhart & Anor

[1996] UKEAT 985_95_2806 · 1996-06-28

MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an appeal against the unanimous decision of the Industrial Tribunal held at Birmingham on three days, 24 November 1994 and 25/26 May 1995. The Tribunal heard a claim by Mrs P J Sidhu against Mr Bhart and the Shaheed Bhagat Singh Welfare Centre. The Tribunal unanimously decided that her claims alleging unlawful sex discrimination failed. They were dismissed.

A Notice of Appeal was served on 18 August 1995. The Extended Reasons for the Tribunal's decision were sent out to the parties on 25 July. On 3 August there was a letter applying for a review of the decision by the Industrial Tribunal. For reasons stated in a letter dated 7 August, the Chairman of the Industrial Tribunal refused the application for a review on the grounds that it had no reasonable prospect of success.

The case was listed as a Preliminary Hearing to determine whether the grounds of appeal revealed a reasonably arguable question of law. This Tribunal only has jurisdiction to hear an appeal against a decision of an Industrial Tribunal on a question of law. If there is no reasonably arguable question of law in the case, there is no point in the appeal proceeding to a full hearing. On the hearing today we have had the assistance of Mr Cavanagh, who presented the best arguments that could be presented for allowing this case either to proceed to a full appeal or, in the alternative, to be adjourned until further information is obtained.

We deal first with the points set out in the Notice of Appeal. The first point taken is stated to be a point of limitation. Mr Cavanagh accepted that this point could not be pursued. The point is dealt with in paragraph 8 of the Extended Reasons, where, having set out the statutory provisions in the Sex Discrimination Act relating to the time for bringing complaints to an Industrial Tribunal, the Tribunal said this:

"8. The tribunal considered whether or not in the light of these statutory provisions it should consider the claims made by the applicant relating to the respondents conduct prior to the 18th April 1995. [I pause to mention that the Originating Application had been presented three months later on 18 July 1994. I think the reference to 1995 is meant to be 1994.] The tribunal decided to do so. It reached this decision on the basis that it appeared to it that the application related to all the conduct of both respondents which culminated in her dismissal. The prior conduct and the dismissal which resulted were part of one continuing course of action."

As Mr Cavanagh fully appreciated, there could not be an appeal on the point of limitation by Mrs Sidhu, because the Tribunal had decided that point in her favour. There was nothing for her to appeal against.

Two other points are mentioned in the grounds of appeal. The first is designated "passing information" in paragraph 35 of the Extended Reasons. The other point is "reporting to TEC" paragraph 38. In those paragraphs findings of fact are made by the Tribunal in relation to the grounds on which Mrs Sidhu was dismissed. The Tribunal said this about her claim of sex discrimination in paragraph 30:

"30 The tribunal had particular concerns as to the claims made by the applicant that her treatment was because she was a woman. Fortunately the tribunal had before it copies of documents addressed by the applicant to Mr Crossland in March and April 1994 setting out her complaints. It was clear from these that the applicant's main complaints relate to her allegations of financial irregularity by Mr Bhart and the Welfare Centre. In his closing address, Mr Manjit Singh [who had represented the Applicant] said that the applicant was dismissed because "she tried to put things right and stop public funds from going to Mr Bhart's pocket.

"31 The tribunal is satisfied that the applicant's claims that she was treated in the manner in which she was treated by the respondents because she was a woman, are false and without foundation. The applicant was dismissed mainly because she made allegations of financial irregularity against Mr Bhart and the Welfare Centre and caused details of the complaints to be transmitted to the TEC. There were other contributory factors but these were in no way related to the fact that the applicant is a woman."

That was followed by a reference by the Tribunal to the relevant statutory provisions of the 1975 Act concerning discrimination in employment, and by a reference to the leading case, which relates to the proof and the drawing of inferences, in relation to discrimination claims King v Gt Britain China Centre

[1992] ICR 516

. In the decision, in particular at paragraphs 35, 37 and 38, which are referred to in the Notice of Appeal, the Tribunal stated their conclusions. The Tribunal correctly said that it was for them to ascertain the reason for the dismissal of the Applicant from her post as Project Co-ordinator of the TEC project and her treatment following Mr Bhart's return from holiday in India. The Tribunal was satisfied that the reason the Applicant was dismissed and was treated as she was, arose as a direct result of the allegations of financial impropriety, which she made against Mr Bhart and the Welfare Centre. The Tribunal said in paragraph 35:

"The Welfare Centre, the Committee and Mr Bhart perceived that the applicant was attempting to damage the Welfare Centre, the Committee and Mr Bhart. The applicant had caused complaint to be made to the TEC as to the financial management of the TEC project and as a result the Welfare Centre had been called to account for their actions by the TEC. This was the major cause of the dismissal of the applicant."

On that point, Mr Cavanagh submitted that his client's case was that that finding of fact was perverse. He said that he was instructed that evidence was given to the Tribunal of complaints in relation to financial irregularity, even before the Applicant had joined the Welfare Centre organisation. He would require production of the Chairman's Notes in order to see whether that could be established as a ground of perversity.

The Tribunal said in paragraphs 37 and 38 that they were not able to draw any inference that the Applicant was the victim of unlawful discrimination on the ground of sex. They expressly said that she was treated in the same way that a man would have been treated who behaved as she had behaved. They said there was no unlawful direct sex discrimination. They concluded by saying in paragraph 38:

"38 The respondents applied a requirement or condition to the applicant to the effect that she should not question the financial affairs of the Welfare Centre and arrange for her conclusions to be reported to the TEC."

They found that that requirement or condition was not the subject of indirect unlawful sex discrimination.

On those grounds we are unable to say that there is any arguable question of law. Those are conclusions of fact by the Tribunal on the crucial question as to whether the Applicant's dismissal was on the ground of sex, and as to whether there was any direct or indirect sex discrimination. In view of their findings of fact, the conclusion was inevitable, that there was no unlawful discrimination on the ground of sex. As to the request for Chairman's Notes, it is not permissible to fish for the Chairman's Notes, in order to see whether there is a perverse finding of fact. It is necessary to have a ground for bringing the appeal and then to satisfy the Tribunal that the Chairman's Notes are necessary in order to decide that question of law.

In our view, there is no ground for alleging perversity in the conclusions of this Tribunal. That left one final point not in the Notice of Appeal, but raised by Mr Cavanagh on the face of the Tribunal's decision. If we thought that it was a reasonably arguable point, we would go on to consider an amendment to the Notice of Appeal, to enable it to be argued at a full hearing. It was an interesting point based on paragraph 13 of the Extended Reasons. In that paragraph the Tribunal said:

"13 The findings of facts set out in these Reasons take into account the documents and evidence adduced before the tribunal and the evidence which it has heard, bearing in mind the tribunal's views [as] to the reliability of the witnesses who appeared before it. Following the hearing on 26 May 1995 [that is the last day of the hearings] documents which apparently related to the applicant and these applications were received at the tribunal office. These documents were not considered by the tribunal."

The point made by Mr Cavanagh is that it was an error of law on the part of the Tribunal not to copy the documents, which it received after the hearing was over, to the parties, for them to read the documents and to decide whether they wished to make any representations about them. It does not appear that the request for the review was based on this paragraph in the decision. Nothing was said in the letter of 3 August, applying for a review hearing, about the Tribunal having received documents which it had not considered and had not copied to the parties. This complaint was not made in the Notice of Appeal. Nobody knows, on the Appellant's side or the Members of this Tribunal, what is in these documents. Mr Cavanagh's suggestion was that we might feel hesitant about allowing this matter to proceed to a full hearing; what we should do is to adjourn this Preliminary Hearing, and, in the meantime, make a request to the Chairman of the Tribunal to produce the documents to the parties and to this Tribunal, so that we can see whether or not they were documents which the Tribunal had ignored correctly in law.

We have considered this argument. In our view, there is no error of law by the Tribunal. There might well have been an error of law by the Tribunal if they had considered documents, received after the hearing, without notifying the parties, showing the documents to the parties, or giving the parties an opportunity to make representations. The rules of natural justice require that Tribunals should not decide cases, by taking evidence which has not been put to the Tribunal in the presence of both parties, so that there is an opportunity to test it and an opportunity to make submissions about it. This is the reverse situation. The Tribunal, having ascertained that the documents related to the Applicant and the applications, expressly did not consider them. In our view, that was the legally correct course to follow. An Industrial Tribunal has a wide discretion to decide how to conduct its proceedings. In our view, the decision they took not to consider these documents, was well within that discretion. There is no error of law by the Tribunal in not considering documents received after the hearing and not copying them to the parties. There is no arguable question of law on this appeal. There is no purpose in it proceeding any further. It has no hope of succeeding. We therefore dismiss it.