Sharma v Birkbeck College & Anor [1997] UKEAT 1148_96_1703

EAT
Sharma v Birkbeck College & Anor
[1997] UKEAT 1148_96_1703 · 1997-03-17
MR JUSTICE MORISON (PRESIDENT) : Following a five-day hearing in May 1986 an Industrial Tribunal unanimously dismissed the only outstanding complaint of unlawful discrimination on grounds of race brought by Professor Sharma against Birkbeck College and a named individual.The decision of the Industrial Tribunal was sent to the parties on 28 July 1986. The issue before the Industrial Tribunal, as a result of agreement reached between the parties, was confined to matters which were related to pay. It was Professor Sharma's case that effectively, throughout his career at Birkbeck College he had been paid less than others on the grounds of race. He was initially appointed as Lecturer in Mathematics as from 1 October 1962. He was then promoted to Reader and it was (I think) his case that it was essentially from that time that he was discriminated against. Having been appointed Reader, he was subsequently appointed Professor.The Respondent college is part of the University of London, was founded in 1823, and is incorporated by Royal Charter. During his time as Professor it was his case that he was discriminated against on the grounds of his race.Before the Industrial Tribunal, Birkbeck called, amongst other witnesses, the then Master of the College, Professor Overend. Professor Overend informed the Industrial Tribunal that the Master had responsibility for deciding individual professorial salaries within the constraints of a nationally agreed minimum scale, and the permissible sum referred to in the preceding paragraph 28 of the Industrial Tribunal decision. He identified (paragraph 29 of the decision) the various criteria which he, as Master, took into account in deciding the relative merits of the various people in respect of whom he had limited discretionary powers.In paragraph 30 of the decision the Industrial Tribunal note that each year professorial salaries were increased by a fixed percentage figure with the Master retaining one per cent of the permitted sum to enable him to make additional allocations as eg the sums of £250 and £750 which had been allocated to Professor Sharma in 1980 and 1983. It was the Master's evidence as follows: that if Professor Sharma had been aggrieved about his salary level he could have appealed to the Chairman of the Governors, although the Master could not remember whether he had actually advised him of that.The Tribunal noted in paragraph 31 of their decision that what emerged from listening to the evidence and considering the documents in detail, was that this greatly gifted man, the Applicant, Professor Sharma, found himself frequently at odds with the authorities and his colleagues.In paragraph 32 they said this:"We think that the Master did the best that he could in the circumstances and if Professor Sharma had felt aggrieved, he could have taken his grievance to the Governors, being no stranger to the ventilation of complaint".Having considered the whole of the evidence they unanimously rejected the complaint of unlawful discrimination on grounds of race in relation to his salary.About a month after the decision had been sent to the parties, on 29 August 1986, Professor Sharma wrote to the Chairman of the Governors, Professor Wise, in effect exercising a right of appeal that the Tribunal had been referring to in their decision. In the second paragraph of that letter he said:
"As I understand it, I lost my action on pay on the sole ground that I had not exhausted the possibility of getting a redress within Birkbeck by appealing to you before starting my action. This is being done now."
There was then a meeting which took place between Professor Sharma and the Chairman of the Governors on 16 September 1986 and in paragraph 3 of the note made by Professor Overend, which Professor Sharma says is not a proper record of what actually took place, it was noted as follows:
"The Chairman stated that the Governors did not normally interfere in matters of administration; specifically, the assessment of professorial salaries had been delegated to the Master. He had however agreed in this instance to consider Professor Sharma's representations on salary and he invited him to state his case."
At paragraph 7 of this note it is recorded as follows:
"The Chairman asked Professor Sharma whether he understood the way in which professorial salaries were assessed and in particular whether he appreciated the limited flexibility available to the Master. Professor Sharma replied that he fully understood the system and its constraints; nevertheless he believed that there was sufficient flexibility within the total professorial bill to allow some adjustments."
The final paragraph reads:
"The Chairman thanked Professor Sharma for attending the meeting and for the manner in which he had presented his case. He would be giving very careful consideration to all that had been said and would communicate again with Professor Sharma in due course. If in the meantime Professor Sharma considered there were additional criteria that had not been taken into account he was at liberty to write to him."
After some period of delay, on 8 June 1987, Professor Wise wrote as follows:
"Following our discussion I wrote to the Master saying that after full consideration I did not consider that you were unfairly graded at the present time. I added however that I was sure that the Master would review your salary with his usual care at the next and subsequent reviews."
In due time, the Mastership of the College changed and Professor Blackstone became the Master and on 4 January 1989, Professor Sharma asked about the right of appeal that he believed he had, "so that when the matter is ultimately submitted to the Law Officers they have something really substantial rather than the recollections of a mere Bantu to go on". What he is referring to in this document is to a meeting in private that he had had with Professor Blackstone about the ability of the Governors to interfere with decisions made by the Master as to the allocation of monies in relation to professorial salaries. It was his view that the Master had said something to him at that meeting which was in contradiction with what Professor Overend had informed the Industrial Tribunal in 1986. The Master's reply to the letter, to which I have just referred, is dated 10 January 1989 and in the second paragraph she says this:
"As I told you when we met at the end of last term, your salary was reviewed in the summer. This was done in accordance with the findings of the Industrial Tribunal which stated that there should be an annual review 'in accordance with the College's policy on professorial salaries, no undertakings or guarantees being given as to any specific future increases'."
The third paragraph reads:
"It is open to any member of the academic staff to request to see the Chairman of the Governors if he or she is seriously dissatisfied with a decision made by the administration on any matter. However, you will be aware from the meeting that you had with the Chairman of Governors on 16 September 1986 that Governors do not normally interfere in matters of administration, and that, specifically, the assessment of professorial salaries has been delegated to the Master. Professor Wise made that clear to you at that meeting."
In due course, on 16 September 1996, Professor Sharma wrote to the Employment Appeal Tribunal seeking leave to appeal against the decision of the Industrial Tribunal in 1986 and I quote:
" ... on the grounds that the Decision of the Tribunal was based on perjured evidence by my employers. Though I have always known that the evidence was perjured, the perception that I can prove it has taken so long to grow to the point where this application can be made."
That letter indicated also that the method by which professorial salaries were decided upon was changed in 1994, when the Governors dealt with the question of professorial salaries through, as I understand it, a sub-committee rather than through delegation to the Master alone.In accordance with the Employment Appeal Tribunal's practice Professor Sharma was invited to explain what the reasons were for the delay in making an appeal so grossly out of time. He said as follows:
"The reasons for delay were simple. Though I have always known that I was a victim of the crime of perjury, before doing anything about it I needed proof and though the former Chairman of the Governors and the present Master told me quite categorically (long after the time allowed for appeal had expired) that my information on the point at issue was absolutely correct, there was equivocation in what they gave to me in writing and I was given the impression that if necessary the crime will be covered up by further acts of perjury. The other reason was fear: my position after the verdict has been difficult enough and I was given the impression that it will be made even more difficult if I did anything about it.
It is only now that I have the perception that I can nail the charge of perjury and now that I am nearing the age of retirement, though still afraid of that which will be done to me, I am prepared to stand up and proclaim the truth."Accordingly, he invites me to say that although this application for leave to appeal is made very late in the day, the interests of justice require that where there has been a substantial miscarriage of justice, which has been procured by perjury, the Courts should not be astute to allow the interests of justice to be defeated by mere procedural time limit points.Whilst I see the force of that submission I am bound to say that, on the facts of this case, it is my view that the distinguished Professor has completely failed to persuade me that there is any reasonable or satisfactory explanation for the inordinate delay which has occurred in this case.Furthermore, the delay in this case will have, inevitably, as the College have submitted in writing, prejudiced any question of the appeal being conducted in a fair and just manner. Ten years after the event, as one would anticipate, there has been a change of personnel, whether through death or retirement, it does not matter; there has also been a complete change in the procedure to which I have already referred.Of course, Professor Sharma, as an employee of the University, if still aggrieved by the way he says the University is dealing with his pay, may, if he so wishes, advance another claim for race discrimination. I am not suggesting to him or encouraging him in the belief that any such application would be likely to succeed. I simply do not know, but it does seem to me that his dissatisfaction with his present lot is best dealt with by a fresh application rather than seeking to re-open a decision which was given years ago.I have looked with care at the decision of the Industrial Tribunal. I do not believe for one minute that he has correctly characterised it in the correspondence to which I have referred. He did not lose the case on the grounds that he alleged to the Chairman of the Governors. The comments made in paragraphs 30 and 32 by the Industrial Tribunal, in relation to the right to go to the Governors if he had a grievance, is not in the slightest bit inconsistent with what is recorded as having occurred at the meetings to which I have referred.It seems to me that, if Professor Overend indicated that the matter had been delegated to the Master with a limited flexibility, but that at the same time the Governors reserved themselves a residual discretion, which they would not normally exercise, to interfere in matters of administration, that is entirely consistent with the statements made by the Master of the College to the Industrial Tribunal at the hearing to which I have referred.Furthermore, it seems to me that the fourth paragraph of the letter from the (I think) present Master of the College dated 10 January 1989, to which I have referred, is again entirely consistent with the evidence which was given to the Industrial Tribunal. If a Professor is seriously dissatisfied with a decision made in relation to any matter, including a matter which has been delegated to the Master, then he may raise that grievance with the Governing Body, but it is to be anticipated that the Governing Body will not be interested in dealing with any such grievance unless there are good grounds for believing that the grievance may be well founded. Accordingly, it seems to me that the premise upon which this application is made is not made out. Furthermore, if I am wrong about that and there is an apparent conflict between the evidence given by the Master to the Industrial Tribunal and what has been said by the Masters since that date, it seems to me to be self-evident that Professor Sharma would have been in a position to have made this application many years ago.The meeting with Professor Overend, the Chairman of the Governors, took place in 1986. The meeting with the present Master took place in 1988 and was concluded with a letter from her dated 10 January 1989. I see no grounds for saying that there has been put forward any sensible explanation for why it has taken a further seven years from 1989 before an application to us was made.In all these circumstances I take the view that this is a case where manifestly the interests of justice require that I should decline to extend time and therefore I agree with the initial decision taken by the Registrar in this case and I shall dismiss the appeal from it.Professor Sharma has asked me for leave to appeal against this decision. I refuse leave to appeal. This seems to me an attempt by him to continue a vendetta (which is referred to by the Industrial Tribunal in their decision in not very complimentary terms) against his colleagues.It seems to me that this case is so hopeless that it would be quite wrong for me to grant leave to appeal and I therefore refuse it.