Avsey v University Of Westminster & Anor [1997] UKEAT 249_97_1906

EAT
Avsey v University Of Westminster & Anor
[1997] UKEAT 249_97_1906 · 1997-01-13
MR JUSTICE KIRKWOOD : This is an appeal by an employee from the decision of an Industrial Tribunal sitting at London (North) on 7th January 1997. The extended reasons were handed down on 13th January 1997. By his Originating Application, the employee complains of racial discrimination or victimisation by his employer, the University of Westminster and by Dr Maud Tyler, the Dean.The employee, Mr Avsey, has been employed as a Senior Lecturer in Russian language and literature by the University and its predecessor establishments for, I think, some 30 years or more. Mr Avsey is, by origin, Latvian, and as well as having a refined mastery of both the Russian and English languages, he has, as his teaching post suggests, a special command of Russian literature. In addition to his teaching work, Mr Avsey has over the years had published translations of Russian classical literature together, in some instances, with his introductions and annotations both in this country and in the United States of America.There are two processes in university life to which his Originating Application IT1 refers. The first is the question of promotion. On a number of occasions in the past Mr Avsey has applied in competitive procedures for promotion to, I think, Principal Lecturer. He has been unsuccessful. In his Originating Application Mr Avsey refers to such applications. There is some inconsistency in the papers about when those applications were made, but I think that the right interpretation is that he had made some seven applications for promotion of one sort or another in all, and the latest ones for the more senior posts have been in 1986, 1988 and 1992. I have seen reference to a 1990 application and it may be that there was such an application, but at all events the latest possible date seems to be 1992.The second process is the periodic assessment by the Higher Education Funding Council of England ["HEFCE"] of university funding. We understand that the allocation of funding is linked to research work. Accordingly the university has to undertake a substantial exercise across its whole area of activity, preparing a submission to the HEFCE in accordance with guidelines and forms issued by it. That exercise is called the "Research Assessment Exercise" or by its initial letters "RAE". Such an exercise took place in 1996 and an earlier one in 1992.In his Origination Application in form IT1, Mr Avsey set out a summary of his version of the history, and he then said:
"... I had made two previous unsuccessful applications for promotion to PL. The aforementioned publications were not submitted by the University for the 1992 Research Assessment Exercise. For the 1996 RAE submission ... I had two works available and again the University decided not to submit them. I took this to be the final in a long series of acts of discrimination against me and have decided to take my case to an Industrial Tribunal. I claim I was discriminated and victimised because of my race contrary to the provisions of the Race Relations Act 1976. I maintain I suffered a detriment as neither my work, nor myself were promoted by Dr M Tyler &/or my employers during my period of employment."
The respondent University entered a Notice of Appearance and a notice of intention to resist the claim. One of the points raised in it was that the claim of discrimination in relation to unsuccessful applications for promotion was well out of time. S.68 of the Race Relations Act 1976 says that such application must be made to the tribunal within three months beginning when the act complained of was done.So it looked as though those complaints and indeed the 1992 RAE were not just slightly of date, but were years out of date by the time the Originating Application was issued on 18th June 1996.An interlocutory hearing in Mr Avsey's application took place on 6th November 1996. On 11th November 1996 the Regional Secretary sent to the parties a letter about the hearing that had taken place. It includes this:
"2 The Applicant is of Latvian origin and is pleading continuous discrimination. He cited the failure to promote him in 1988, 1990 and 1992 and the failure in 1996 to include his research work in the Research Assessment Exercise. The result of that Research Assessment Exercise was communicated to the Applicant on 27th March 1996 and he submitted his application on 18 June 1996.
3 Mr Scott on behalf of the Applicant argued that, as it was alleged that there was continuous discrimination all these matters should be incidents complained of to support his claim. The Chairman decided, however, that there should be a preliminary hearing to decide whether the incidents relating to his promotion which took place in 1988, 1990 and 1992 should be included as these were submitted on 18 June 1996 outside the three months time limit laid down by the Race Relations Act 1976.4 The Chairman decided that if the Tribunal came to the conclusion that those earlier incidents should not be incidents that can be relied on, then the only remaining incident pleased is the non-exclusion of his research work in the Research Assessment Exercise. If that is the case then the Chairman ruled that the preliminary hearing should be followed by a pre-hearing review and then by an interlocutory hearing to decide how this matter should proceed.5 The case will be listed for one day in January 1997. ..."Then there is a reference to a personnel file.I should mention in connection with that letter that, as Dr Majid for the appellant has rightly pointed out, it overlooks the fact that there is reference in the Originating Application to the RAE 1992. There is simply no mention of that in the letter at all.The next hearing took place on 7th January 1997. It was conceded there on behalf of Mr Avsey that the promotion matters were well out of time. The decision of the Industrial Tribunal in its formal part is accordingly in this terms:
"It is the unanimous decision of the Tribunal at a Preliminary Hearing that the allegations of race discrimination contained in the Originating Application in respect of failure to promote the Applicant in 1992, 1988 and earlier are out of time, pursuant to section 68(1) of the Race Relations Act 1976."
That contains an obvious typographical error in failing to mention 1990, but it is encompassed by what the tribunal decided.As had been intimated would be done in the letter of 11th November 1996, the hearing then proceeded to a pre-hearing review and interlocutory hearing. It may be that there was not a clear separation of those two hearings, but the points for adjudication and direction arose in this way.Whilst it was recognised that the promotion matters were out of time, the applicant nonetheless wished to refer to them and adduce evidence about them in prosecuting his complaint of discrimination by failure to include his research work in the 1996 RAE.On that the tribunal held in its extended reasons:
"1 ... it would put an unfair burden on the Respondents to have to produce evidence and witnesses of events which occurred four or eight years ago or more. Furthermore, we do not think that the allegations of failure to promote are sufficiently relevant to the timeous claim as to justify their inclusion."
Having decided that, the Industrial Tribunal ruled:
"The evidence which may be submitted to the Tribunal at a full merits hearing will therefore be limited to events which relate to the 1996 Research Assessment Exercise. ..."
And the extended reasons continue:
"Any request for discovery of documents in relation to the failure to promote is therefore refused."
That last sentence is somewhat curiously phrased. It appears to us that in presenting his argument about relevance, the applicant's Counsel, Dr Majid, had indicated that he would be asking for an order for discovery in relation to those matters, but had not fully developed his argument in regard. However, the direction the Industrial Tribunal gave inevitably forestalled any further argument on that aspect, because if the material was decided to be not relevant, then any application with regard to discovery would fall by the wayside.It is our understanding that that first paragraph of the extended reasons, to which I have referred, corresponds with the decision of the tribunal given that day and dictated by the Chairman extemporarily into a recording machine. At the point reached at the end of paragraph 1 of the extended reasons, Dr Majid for the applicant interrupted and raised the question of the 1992 RAE which lead to the decision that follows in paragraph 2. That reads:
"2 With regard to the allegation that the Respondents did not submit the Applicant's publications in the 1992 Research Assessment Exercise, that is also out of time, and the evidence should be limited accordingly."
Those then amount or equate to the summary reasons that Chairmen often give and the Chairman gave in this case at the conclusion of the hearing.The extended reasons which followed contain an additional paragraph 3 in which the tribunal expand and enlarge upon the reasons already given in the shorter form.The applicant, the appellant before us, seeks to persuade us to reverse the decision limiting evidence to be adduced at a full merits hearing to the 1996 RAE and excluding earlier material as irrelevant.It is because of the finding of irrelevance that an application for discovery of documents in respect of those earlier matters fails, even apart from the question of unfair burden. If the appellant can reinstate relevance, he would wish to go on to argue that discovery of relevant documents by a sophisticated and well-organised respondent such as in this case, and which keeps good archives, is not overburdensome. The appellant would, however, limit his application for discovery to the 1992 promotion and RAE processes and would not seek to go back further in time. The appellant would also argue that 1992 is not so long ago as to amount to a lapse of time prejudicial to the marshalling of the necessary oral evidence.It has to be stressed that this is not a rehearing. To disturb the finding of the Industrial Tribunal the appellant must satisfy us that the Industrial Tribunal misdirected itself in law or so conducted or rather misconducted the hearing as to amount to an unfairness because it so prejudiced the presentation of the case and the argument that the tribunal did not in fact have before it material it should have and needed to have before it, in order properly to exercise its judicial task.In the latter regard, Dr Majid recounted to us how the Chairman had stopped him reading written documents as Dr Majid was seeking to develop his case on relevance. We do not understand that Dr Majid was prevented from making his primary points. It was that he was stopped when reading out documents to enlarge upon them and substantiate them. He recalls the Chairman saying at that stage that the tribunal was concerned with the pleadings and not with the evidence. By that stage Dr Majid had read two letters and a memorandum.The first letter was a laudatory from the Oxford University Press of 1990 about some work the appellant had done and was doing. The second was a 1986 letter also in laudatory terms from a publishing house and concerned placing some work of the appellant with Cornell University Press. Both those letters were indeed purely evidential relating to matters specifically or generally referred to in the Originating Application. Furthermore, Dr Majid was seeking, I think, to make the point that the appellant was so manifestly pre-eminent in his field that there could be no proper reason for not promoting him or putting forward his work in the RAE.The memorandum seems to relate to an incident in 1990 to do with the appellant's use of somebody else's word processor and does not immediately appear to have any relevance at all either to the promotion or RAE submission.It was when Dr Majid was about to go on to show the Industrial Tribunal some press reviews about his client's work, that the Chairman interrupted. Having seen what the material was that was being referred to, we can fully understand why the Chairman called a halt to it and we do not think that he can properly criticise for doing so. It was manifestly evidential material and such as was shown to the Chairman, so far as relevant, went to matters set out in the Originating Application and which was not, in fact in issue in any event. The tribunal was not concerned with evidence at that stage.The second procedural point concerns the events surrounding paragraph 2 of the extended reasons to which we will return.On the law, Dr Majid has referred us to a line of authorities which show essentially two propositions. The first is that racial discrimination is extremely hard to prove and that the Industrial Tribunal will and should, as it thinks fit, draw inferences from the totality of the evidence before it. The second proposition is that the tribunal can receive evidence relating to instances arising before or after the act complained of, even though the time has expired for complaint seeking relief in respect of earlier instances. As to receipt of the latter, the tribunal must exercise its discretion and in so doing relevance is obviously and inevitably a fundamental consideration.It is plain to us that the tribunal had well in its mind that vital question of relevance on the promotion issues. The very fact that the tribunal addressed it gives the lie, as it seems to us, to Dr Majid's submission that the tribunal did not appreciate the distinction between material that was out of time for the purposes of a complaint, and material, which though in the past, might be relevant and material to the act complained of. Further, specific reference was made in the extended reasons to the Midlands Transport Executive v Singh [1988] IRLR 186 , which includes a full citation of the well-known passage from the judgment of Browne-Wilkinson J, as he then was in Chattopadhyay v The Headmaster of Holloway School [1981] IRLR 487 , and the citation to which I refer is at page 490.The point that exercises us relates to the matter raised by paragraph 2 of the extended reasons, the exclusion of the 1992 RAE. We understand from the Bar that Dr Majid having interrupted and raised that question, the Chairman queried whether it was a pleaded matter. One way or another, there were on any view only at best the most limited submissions on the 1992 RAE, which was indeed a pleaded matter. The Chairman then gave the decision that is recorded, and evidently dealt with it on the basis that as it was out of time it fell by the wayside together with the promotional issues. That seems to us to have been unfortunate.The 1992 RAE is an integral part of the appellant's case. He makes just the same complaint about it, his research was excluded. If he is right, that is because of discrimination. A number of points are made about it, but the relevance 1992 RAE is summarised by the word used in argument "commonality".It does not appear to us that the Industrial Tribunal fully appreciated, no doubt due to the absence of full argument, the important distinction between the 1992 RAE and the promotional episodes.The promotional history forms part of the uncontroversial background facts. To the extent that there is an absence of issue about those matters, they can be put before the Industrial Tribunal in painting the background which cumulatively leads to the appellant's belief in discrimination. But as a result of the finding of the tribunal in January 1997, in respect of which we are not satisfied that there is established any ground on which we could or should interfere, there can be no evidence about those matters to take them further.So far, however, as the 1992 RAE is concerned, we are satisfied for the reasons that we have indicated, that the decision of the Industrial Tribunal cannot stand. In those circumstances, both Counsel invited us to substitute our own decision.The tribunal heard these matters on the written material and argument alone. No oral evidence was heard; there were no facts to be found. We too have heard it on written material and oral argument; we are certainly in no worse position that the Industrial Tribunal. Accordingly, we accede to Counsel's request to substitute our own orders.The first order we shall make is to allow the appeal to the extent of setting aside the direction contained in paragraph 2 of the extended reasons excluding evidence about the 1992 RAE. But a two day hearing has been fixed for early July and we want, if possible, to avoid jeopardising it.Dr Majid indicated the nature of the material he was seeking by way of discovery in relation to the 1992 RAE. What he said he wanted was all relevant documents connected with that exercise, excluding any confidential or private information.Bearing in mind that the exercise was across the whole range of the University's activities, we think that that is far too wide. Whilst we shall hear Counsel in a moment, and subject to that, we are tentatively of the view that there should be a limit to the amount of material that is potentially made available by limiting it to the material put before the funding body in relation only to the Language Schools. As I say, we will hear Counsel about that in a moment.As the hearing before the tribunal progresses, it is highly likely, in our view, that the issues will become more clearly and narrowly defined than at present. Any further application for the discovery of any further documents can be made to the tribunal, who will be able to consider it in the light of the key issues as they have emerged.That is all I have to say by way of judgment on this appeal, but I would like now to hear how best to proceed in the light of the possible necessity for the production of a limited amount of material in relation to 1992 RAE.

[Submissions from Counsel]

MR JUSTICE KIRKWOOD : We propose to give the following directions.

The applicant shall, within seven days, furnish to the respondent and to the Industrial Tribunal in writing, a statement of his case as to the matters relied upon by him in respect of 1992 RAE.The respondent shall produce within not more than 14 days to the applicant and to the tribunal, a bundle containing the following documents in the following category:(1) the criteria raised by the funding body for the 1992 RAE;(2) the procedure adopted within the University, or rather the procedure adopted relevant to the applicant's department within the University for addressing the 1992 RAE;(3) the names of the panel of experts in respect of the language schools;(4) the minutes of meetings relating to consideration of the applicant's work;(5) a copy of the submissions made to the funding body in respect of the language schools. We have heard submissions as to whether that should be enlarged to the entire faculty of Law, Language and Communications, but we are satisfied that it should be limited to the language schools; and(6) the respondent is to furnish also comparable material in relation to any dry-run that was undertaken prior to 1992 RAE.[Mr Cramsie, I imagine that if this creates insurmountable difficulties of time, the matter will have to be mentioned to the Industrial Tribunal, but I do wish it to be conveyed that we made clear that any difficulties that can in fact be surmounted by prodigious effort should be surmounted, and it is highly undesirable that the time set aside by the Industrial Tribunal at the beginning of July should be lost.]