Kattab v British Airways Plc & Anor [1997] UKEAT 261_97_2506

EAT

Kattab v British Airways Plc & Anor

[1997] UKEAT 261_97_2506 · 1997-06-25

JUDGE J HULL QC :

Mr Kattab, the Appellant, has at all material times been employed first by British Caledonian Airways and then, after the take-over or merger of that company with British Airways, by British Airways Plc as a member of cabin crew. We are told that the correct description of his appointment is as a Steward. He was first employed in 1985. Then there was the merger in 1988 and in July 1988 he and a number of other stewards, or members of staff, made a claim that they had been discriminated against by reason of race. That claim happily was settled and the terms of settlement are with our papers at page 47. We have looked at them. Nothing turns immediately on them, so all was well at that stage in the sense that matters had been resolved.

Then the Appellant made a second complaint of racial discrimination and also of victimisation in 1992. That too, happily, was settled after a couple of years on 14 December 1994. Before that happened a lady called Ms Perigo, who is important in this story, was appointed as Performance Manager and she was responsible as Performance Manager for a number of members of British Airways staff including Mr Kattab. She was responsible for maintaining or helping to maintain two types of file, the one which we are concerned with is an operational file. In that file, we are told, there were in-flight assessments and there might also be reports adverse or otherwise on particular employees and we were told in addition, but we have heard this only today, that there were microfiche records relating to operational files kept on the various members of staff.

Then there had apparently been a considerable period during which there had been no vacancies for promotions, but in 1995 there came a time when there was a vacancy or vacancies for promotion to Purser, and among those who hoped to be considered for that was the Appellant. He was one of 500 or more people who fell to be considered as being eligible by reason of seniority for consideration and, as part of that operation before it went forward to interviews, performance managers did what was called "screening" the operational files of particular employees to see whether they should be put forward to interview. Mr Kattab's Performance Manager, Ms Perigo, screened him out on the basis of some adverse matters, which were on his operational file. They did not relate to his performance whilst carrying out his duties in flight, but to a number of unhappy incidents when his behaviour had been immoderate and his attitude inappropriate on land at the Respondent's premises.

Mr Kattab formed the view that he had, or might have been, discriminated against by reason of this screening out and, on 1 August 1995, he drafted his complaint to the Industrial Tribunal complaining of racial discrimination and victimisation. The Respondent put in their Answer, their IT3 as it is called. That is at pages 52, 53 and 54 of our bundle. They said that there was no question of discrimination against him or of victimisation, being a sort of discrimination. They said:

"The Applicant's operational file included complaints and negative feedback about his attitude and behaviour, all of which he had been made aware of by Sally Perigo, his performance manager. Any complaints or feedback of this nature where such performance is identified would preclude clearance of anyone's operational file."

They also said, and this was found by the Tribunal to be correct, that Ms Perigo had invited the Applicant to see her to discuss the reasons why his name had not gone forward. He had not taken up that invitation and they denied, as I say, that any question of discrimination by way of race or victimisation had come into the matter at all. That was in 1995 and it was more than a year before the case was heard. While the proceedings were pending, those advising Mr Kattab, Solicitors assisted by Counsel, wrote asking for discovery; we say at once, a very reasonable and proper request. They wished to see whether there was any material which ought to be disclosed to them which would support, or as the case might be, negative the case which they were making or sought to make.

The Solicitors wrote a letter on 22 March 1996, which we have been shown, referring to other correspondence, saying:

"We feel that there are a number of issues of discovery which must be attended to.

You have of course provided us with a copy of our client's operation file. Would you please provide us with a list of crew members whose files were cleared for promotion to Purser. We will then select a random number of files from this list for inspection."

They say it would involve unnecessary time and so forth if all the personnel files were to be disclosed. They made other comments and complaints in the letter which we do not need to look at. There was a long reply dealing with the various matters and dealing with a yet further complaint which had been made. This was 12 April 1996 and a legal assistant, a Ms Maunder, wrote on behalf of British Airways and said, on the third page of the letter:

"I now turn to the matter of discovery of randomly selected successfully screened Operational files.

I understand from BA's Fleet Coordinator that it will take approximately 1 hour to raise and copy the documentation from one Operational file. I would therefore suggest that the number of files disclosed is limited to 5%, namely 25 files [involving perhaps, 25 hours of work].

I would propose that the random selection be made by the Fleet Coordinator and her team by selecting, for example, every 20th name from the list of the 502 relevant files.

. .. all references to the employee by name or staff number will be deleted. In addition, documentation placed on the file after its screening will not be disclosed."

That suggestion, as a general matter, was apparently acceptable to the Applicant and his advisers.

There was further correspondence and on 4 October, 25 crew operational files were sent to the Applicant's Solicitors with a letter saying that they had been randomly selected and asserting that they were complete up to and including 30 May 1995. "You will note that some files appear to be incomplete" and giving an explanation for that which we are not concerned with at the moment.

On 4 November there was a letter from the Applicant's Solicitors alleging that the discovery was incomplete and, indeed, useless.

"Much has been made of the fact that there is a difference between operational files and personnel files. The operational file relating to Mr Kattab which you disclosed to us contains substantial documentation, including in-flight assessments, correspondence and records of interviews. None of this information is contained within the operational files of the other personnel."

That was, on the face of it, incorrect because it is now said to us that, in fact, the other files did contain in-flight assessments, but they were "useless".

There were various other matters raised in the letter and they raised the case of three people whose files had not been disclosed. I will not read their names out now. They said that all three "had disciplinary action taken against them in the past, which should be recorded in their operation files" and details were asked of those, for those files to be disclosed. Evidently that was gone into, I would say in parenthesis, at the hearing and the reasons why those personnel had gone forward, notwithstanding adverse matters on their files, were dealt with by the Tribunal at the hearing.

Then there was a reply from British Airways on 6 November; that was in categorical terms. Ms Maunder wrote in paragraph 1:

"I am assured that complete operational files, as held on the system at the relevant date, were printed and disclosed."

She dealt with other matters and said at the end of her letter:

"I have to say that I take exception to your statement 'in view of the lack of disclosure' which is blatantly incorrect and that any application you may make to the Tribunal to have this matter adjourned will be strenuously resisted."

So that was what Ms Maunder wrote and nothing can be much more categorical that that. She said that there was thorough disclosure.

Then on the 7th, and all this was very shortly before the hearing which took place on the 13th, there was a letter which was sent saying:

"Would you please provide us with a copy of the document entitled 'Operational File Screening Guidelines' completed by Sally Perigo on 3 May."

That was a document actually referred to in the letter of the 6th, which I have just referred to. So British Airways replied:

"I enclose a copy of the document referred to, which I believed was copied to you as part of the documentation enclosed with ... letter to you dated 15th December 1995."

We are told that that belief is erroneous and, in fact, the Applicant was now seeing this for the first time. There are the Operation File Screening Guidelines relating to Mr Kattab and, as one goes through, these apparently relate to negative indicators and there Ms Perigo (I think it must be) has said, "Yes, there are adverse performance issues", but she has said, "No" to other matters. "Are there attitude/behavioural problems?". "Yes" said Ms Perigo and then there are other details which I need not refer to, relating to her assessment or extract from this particular file.

Then there is the reply on 8 November from the Applicant's Solicitors. They said in the letter of the 8th, this being five days before the hearing:

"Throughout this case, it has been quite clear that the central issue has been the precise reasons why our Client's Operational File was not cleared for consideration for promotion to Purser. It is obvious that the document which you have now disclosed to us is of crucial importance and, quite frankly, we are astounded that it has only been disclosed to us at this late stage. We would have expected this document to have been disclosed in response to our letter of 13th October 1995."

Then, in addition, they said, "We shall require copies of the Operational Files Screening Guideline forms in relation to the 25 Operational Files disclosed to us". They said, "We also require a random selection of Operational Files Screening forms relating to candidates whose files were screened out".

So in other words, having throughout this period called for the 25 files of those who were successful, now they wanted other files five days before the hearing; the files of those who were screened out. They also said they wanted, in respect of the 25 chosen files, to see the Operational Files Screening Guidelines, the form which corresponds to Mr Kattab's. One can see that those might contain material matters. In particular, as a hypothetical matter, they might show that successful candidates, who had something against them, who had positive contra-indications or negative contra-indications to their names going forward, had in fact gone forward, and that an explanation could rightly be called for, for that apparent discrepancy between Mr Kattab and the other 25 people.

So those were two new demands. I suggested, in the course of argument, to Mr Kelly, that those assessment forms, those Operational File Screening Guidelines, would not in fact be on the files. It looks as if they are raised for the occasion of assessing whether people should go forward or not. Mr Kelly was uncertain about that point, it seemed to us, but he did say that when they came to the hearing on the 13th he raised this matter with the Tribunal and it then emerged, he said, and Ms Perigo conceded on behalf of British Airways that, in fact, matters relating to operational files would not necessarily be kept (I think the right word is as 'hard copy') on the files themselves, but in microfiche somewhere else and those microfiche entries had not, apparently, or might not have been disclosed.

On the strength of that Mr Kelly asked the Tribunal whether they would please adjourn and please make an order for the disclosure of all those microfiche details. It was suggested apparently by British Airways that this was pure speculation. These 25 files were of those who had gone forward. They were therefore different from those of Mr Kattab who had failed to go forward, and it was suggested that this was simply "a fishing expedition". It is put like this in the Notice of Appeal by the Appellant in this case, looking at his Notice of Appeal at page 2 of our bundle. It is said, on his behalf:

"The operational files would have contained vital evidence to prove or disprove the Applicant's case."

It does look as if the suggestion that this was "a fishing expedition" was not without substance in all the circumstances, but there it was. There had been fairly comprehensive discovery, but it was not, said the Applicant, sufficient. So the Tribunal had to consider the two applications, which depended on each other.

First, the further discovery, Second, for an adjournment to enable that to take place, on the basis that the contents of those files would, or would not, or as Mr Kelly rather modified that, might or might not prove, or disprove, the Applicant's case.

In all cases, whether before Courts or before Industrial Tribunals, the question of whether to make an order for discovery and if so, to what extent there should be discovery, is a matter of discretion for the Tribunal. This was a case in which Counsel and Solicitors had been engaged for a considerable time. It was said by Mr Kelly, on behalf of the Applicant, that they had been working under a misapprehension.

The Tribunal nonetheless proceeded to the hearing. We are not going to go through all their findings or read their judgment. The reasons that they gave for their decision are comprehensive. They heard Ms Perigo, who gave the reasons in detail why Mr Kattab had not gone forward to an interview; who described the cases of others. She was able to tell the Tribunal that of the other (I think it was) 12 complainants of racial discrimination, all had gone forward to interview, though they had not been successful at interview. She was able to deal with the case of others against whom there had been indications on their files, but who had nonetheless gone through to interview and to explain why that was, and of course Mr Kattab, himself, gave evidence about the way that he had been treated and what his feelings and suspicions about the matter were. The burden was, of course, on Mr Kattab.

The Tribunal state, though unfortunately in a very garbled paragraph, that where the evidence of Ms Perigo and of Mr Kattab differed, they preferred the evidence of Ms Perigo.

It is quite clear from what we see of the Tribunal's decision (which is a long and careful one) that they were accepting the evidence of Ms Perigo given on behalf of British Airways. They found that her conduct of the matter was satisfactory. They made a number of criticisms of Mr Kattab and in particular, they accepted that he had been invited to attend with Ms Perigo and discuss with her exactly why his name had not gone forward and that he had failed to take advantage of that. Having inquired into it, obviously with considerable care, they reached the decision that they were not satisfied that there was any discrimination.

The Tribunal were satisfied that British Airways, through Ms Perigo and of course her colleagues, had acted with complete good faith throughout, had not been motivated by a desire to victimise, or any motive of discrimination against Mr Kattab on the ground of his race. That, of course, was a matter for them which they could only decide after hearing the evidence and looking at the documents which were laid before them and, as we say, there were a considerable number of documents and they heard such evidence as the parties thought it right to lay before them.

Therefore the question for us is simply this. Were the Industrial Tribunal entitled to exercise their discretion in the way which I have indicated? Some of the material on which they could, or might have exercised their discretion we have indicated in going through the facts and dealing with Mr Kelly's submissions to us. There may very well have been other material and in particular of course, it was open to them to say at any stage in their enquiry - having heard, say the evidence of Mr Kattab; having heard the evidence of Ms Perigo; having looked at certain of the documents - it was perfectly open to them to say, "Well now it appears to us that we ought to see further documents and we are going to adjourn for that purpose". They did not.

They had not only the material I have referred to and documents which, of course, we have not seen, but they had evidence before them which we have not heard.

What is said by Mr Kelly is that there is here an arguable case that the Tribunal's decision was perverse; that it was one which no reasonable Tribunal, properly instructing itself about the law, could have taken. We have considered that as carefully as we can. We bear in mind the need for a Tribunal to get to these matters as soon as they reasonably can and the fact that there was a substantial period of preparation here. Both parties had the assistance of Solicitors and Counsel.

We think that this Tribunal were fully entitled to exercise their discretion in the way which they did. There had already been substantial discovery; it may well have been burdensome discovery. They had the advantage, and this was probably more important than anything else, of hearing Ms Perigo; hearing her cross-examined by experienced Counsel - various anomalies were explored with her - and having to say to themselves, "Do we accept this evidence or not?". Of course, if they did not accept it and thought it was not a satisfactory explanation of the various matters of doubt and difficulty which arose, then they would be able to draw a very adverse inference to British Airways in all the circumstances of the case. They did accept her evidence. They did not feel able to draw the inferences invited. They preferred her evidence to the other evidence they heard. We think that the Tribunal were entitled to proceed in the way that they did.

In those circumstances, we can see no basis on which this appeal could succeed. It is not a matter for our discretion. We cannot exercise again the discretion which the Industrial Tribunal had to exercise in this case. If we were to exercise it, we should have to hear the same evidence and look at the same documents as the Tribunal did. Nor is it for us to say whether another Tribunal, on similar grounds, on similar evidence, would have exercised their discretion differently. That inevitably is something which may happen in any case of discretion. All we can say is that an appeal lies to us only on matters of law; that we cannot say here that the Tribunal was not entitled to exercise its discretion in the way that it did and to proceed with the hearing of the case.

In those circumstances, this appeal being in our list under our Practice Direction, we have to say that it cannot proceed any further. We can see no prospect of its success and we must dismiss it at this stage.