Brewster v London Borough Of Newham [1997] UKEAT 398_96_0205

EAT
Brewster v London Borough Of Newham
[1997] UKEAT 398_96_0205 · 1997-05-02

JUDGE LEVY QC :

This is an appeal by Mr L W Brewster against a decision of an Industrial Tribunal sitting at London (North) on 27th November 1995.By an application to an Industrial Tribunal dated 24th February 1995 Mr Brewster sought determination as to whether he had been discriminated against contrary to the Race Relations Act 1976 naming as respondents the London Borough of Newham ["the Council"] and named individuals. His complaint against the Council was heard on 27th November 1995. The decision was remitted to the parties on 21st December 1995. His complaint was dismissed. At a pre-hearing review, it had been held that there was no reasonable chance of success, and a deposit had been ordered. The question of costs was reserved.Mr Brewster appealed against the decision following the November hearing ["1995 decision"] by a Notice of Appeal dated 31st January 1996.Before there was a hearing of his appeal, preliminary or otherwise, a decision of an Industrial Tribunal was promulgated and dated 4th October 1996 ["the 1996 decision"] inter alia ordering Mr Brewster to pay all costs of parties named in his application on an appropriate scale.There was a hearing of his appeal against the 1995 decision dismissing his complaint under the ex parte procedure before this tribunal on 22nd November 1996. Shortly before that date, Erskine Grant had made an affirmation suggesting that during part of the hearing on 27th November 1995 a member of the panel appeared to be asleep. This was not a matter raised in Mr Brewster's Notice of Appeal which had claimed that the decision of the Industrial Tribunal was perverse. At the ex parte hearing, a panel differently constituted, having been addressed by Mr Brewster and Mr Drake on his behalf under the ELAAS scheme, adjourned the hearing of the appeal and ordered Mr Brewster to file an affidavit sworn by Mr Mike Franklin within 14 days from that date. Mr Franklin had represented Mr Brewster at the October 1995 hearing before the Industrial Tribunal. Mr Franklin made an affirmation on 3rd December 1996. In a letter dated 5th December 1996, Mr Brewster sent to this tribunal inter alia a copy of the 1996 decision and a document called "Expanded Grounds of Appeal". This document sets out his complaint about the 1995 hearing in more detail about one of the members of the tribunal appeared not to pay full time and attention to the hearing in that he seemed to have dozed off. It also made allegations that the Chairman of the Industrial Tribunal had behaved improperly during the hearing, and raised other questions of law as regards the 1995 decision.Today is a further hearing under the ex parte procedure. Mr Brewster has not attended, and we are therefore dealing with this appeal on the ex parte procedure in his absence.We will first deal with the allegations of impropriety below. We have all carefully read the two affidavits which we have mentioned, on which there have been comments from the Chairman and the members of the Industrial Tribunal, which we have also read carefully and considered.As to the allegation that a member of the Industrial Tribunal appeared to be dozing, sometimes it may appear that somebody's eyes are half-closed, but in truth and in fact they are listening to what goes on in the tribunal. Having considered the affidavits and the comments, we are satisfied that all members of the tribunal took an active part in the hearing below, and that the complaint that there was inattention by one of the members is not well-founded. We have also concluded that there was no bias of any sort by the Chairman, whom we are satisfied on the evidence which we have read, conducted the hearing properly.We have carefully considered the extended reasons given by the tribunal for the decision to support their decision that Mr Brewster's complaint was not well-founded. We find them convincing and we find that the suggestion made in the grounds of appeal that the decision is perverse does not hold water.The background to Mr Brewster's complaint was that he was not considered for employment when he applied to the Council for employment because for reasons relating specifically to the harassment of women, he was not regarded as a person suitable to be employed in any department of the Council.The tribunal carefully considered the discrimination alleged by Mr Brewster. In the circumstances and on the facts as they found them, they came to a conclusion which is impeccable.Prior to paragraph 11 of the extended reasons, the tribunal found the Council's procedures satisfactory. In paragraph 11 of their reasons they say this:
"11. ... We cannot find anything unreasonable in Mr Stevenson's approach [we interpose to say that Mr Stevenson was a named respondent who had refused to consider an application by Mr Brewster in 1993, because there had been a similar refusal in 1990], having regard to the fact that when Mr Samuel adopted the same approach some 3 years earlier, Mr Brewster made no complaint of racial discrimination to the tribunal. In relying on alleged breach of the Council's open files policy Mr Franklin [Mr Brewster's advocate] is relying on the procedure relating to taking up references, which is followed at a much later stage than the initial application. Finally, there is nothing in the rules of natural justice which require an employer to give an applicant a hearing every time an application is made for employment."
It is quite clear in our judgment from the extended reasons that the Industrial Tribunal were entitled to be satisfied that the Council's decisions were entirely reasonable ones in the circumstances of the case, and the Industrial Tribunal were right to determine that there was no racial prejudice involved.In the circumstances we dismiss the appeal at this stage.