Patel v British Gas Plc & Anor [1997] UKEAT 446_96_2103

EAT

Patel v British Gas Plc & Anor

[1997] UKEAT 446_96_2103 · 1997-03-21

MR JUSTICE MORISON (PRESIDENT) : The purpose of this hearing is to determine whether there is a point of law raised by Mr Patel in an appeal which he wishes to make against a unanimous decision of an Industrial Tribunal held at Leicester on 20 December 1995 which dismissed his complaint of racial discrimination.

That complaint had been brought against two entities, that is, the MacLeod Group Ltd, as First Respondents and British Gas Plc, the Second Respondents As we understand it, the MacLeod Group Ltd were, in effect, Employment Consultants who arranged for people to take up employment in the Computer Services Division of British Gas and provided staff for British Gas's approval.

At the hearing before the Industrial Tribunal Mr Patel indicated that he would withdraw his application against the MacLeod Group, but he wished to proceed with his discrimination case against British Gas and that is what he did.

The hearing took place following a preliminary hearing at which he had been given a costs warning and been required to pay a deposit in accordance with the rules. There is also an appeal against that decision in the sense that Mr Patel would like us to extend time for an appeal against that earlier decision. The brief facts relating to the complaint of unlawful discrimination are set out in paragraphs 2 and 4 of the decision:

"2. The brief facts are that in January of this year he showed an interest in a job advertised at the Leicester Job Centre which was a vacancy for Customer Services Clerk. He did not complete an application for this job because he was told that there was no longer a vacancy, but he tells us that the Job Centre continued to advertise it. He got some idea that somebody 'upstairs' was blocking his application which he believed was by reason of his race. He also put in a CV to the first respondent for a job as a Computer Operator which turned out to be with British Gas but it is fair to say that the MacLeod Group Ltd denied ever receiving such a CV. They had filled the position with British Gas, in any case, having found a Mr J Parmar for them as he was a suitable candidate and he is, we understand, of Asian origin.

4. He was taken on by British Gas Plc in the cashiers department on 22 January and he was there for a fortnight until 3 February when the agency who found him for British Gas Plc were told that Mr Patel was unsuitable for the job. Now he alleges that he was offered that cashiers job by British Gas Plc to prevent him from making a claim before an Industrial Tribunal for discrimination and really as a sop to him, and this is the rock on which he found his case before this Tribunal. It is significant, we think, that many of the employees in the cashiers department were of Asian origin and that three Asians were taken on in that department on 6 February, three days after he had left. He also says that he was employed by British Gas in 1991 but was dismissed and this shows a pattern of behaviour and discrimination against him."

At the hearing of the case Mr Patel says this, in an affidavit which he provided to us: at the outset of the hearing of 20 December 1995, it transpired that a former employee of British Gas Plc was empanelled to adjudicate with the Chairman and another. He was recognised by Mr Peter Bailey, a witness for British Gas who pointed that out to Counsel, Mr Din, upon whose motion that panel member was replaced.

In other words, what Mr Patel was saying was that Counsel for British Gas pointed out that one of the lay members should have disqualified himself from sitting because of his previous connections with British Gas, as we understand it, and his familiarity with one of the witnesses who was to give evidence. That was a submission which was made and acceded to and, as we understand it, the lay member was replaced by another lay member and it occurred probably at the very outset of the proceedings and no suggestion has been made by Mr Patel otherwise. That, of course, left Mr Patel with an uneasy feeling that perhaps there had been some discussion between the disqualified lay member and the rest of the Industrial Tribunal and he made a specific complaint of bias on the part of the Industrial Tribunal and relied, in particular, on an allegation that what was said in the Industrial Tribunal decision at paragraph 2 shows that they must have had information which had come from the disqualified member.

The Tribunal were obviously asked to deal with this very serious allegation, which was made against them, and Mr Richards has written to us, in accordance with our Practice Direction, making it plain that the reason why there was a reference to Mr Parmar was not because of anything that the lay member may, or may not have said (and indeed, it is unlikely that he could have said it, because he left before any evidence was given) but because there was a reference to that particular person, both in the oral evidence that was given, and in relation to what was in the documentary bundle.

Mr Patel says that the Tribunal should not have decided that Mr Parmar, the gentleman concerned, had been employed by British Gas, because he had evidence that he had not been, but it seems to us that, with great respect to him, for the purposes of bias it is going to be necessary for him to show that there was some risk of contamination of the case by reason of the disqualified member having come into the Tribunal in relation to this matter, before his embarrassment had been pointed out to him. It seems to us that there is absolutely no basis whatever for suggesting that there could be either actual or any appearance of bias in this case.

The premise upon which the allegation is made is wholly unfounded, having regard to the note from the Chairman to which I have referred. During the course of the hearing Mr Patel made a further allegation, which was effectively that the Chairman intervened during the course of the evidence as to the number of vacancies, in a way which was deliberately designed to suppress the truth. That is an allegation to which we are not prepared to give any credence at all.

It seems to us that it is inconceivable that a Chairman would have acted in that way. He certainly would have had no motive to act in that way and it would have been a fundamental breach of his duty to act impartially, had be come anywhere near to acting in that way. I have to say that, speaking for myself, I regard that comment made by Mr Patel, during the course of his submissions, as a wild allegation which should never have been made.

In addition to his complaint of apparent, or actual bias, Mr Patel also has an argument which he wishes to make on the rules. We, for our part, had great difficulty in appreciating fully the force of the submission which he was making but, it does seem to us, that there can be no difficulty in this case about the question of the parties to the proceedings, bearing in mind the terms of the Industrial Tribunal's decision. He also wishes to take a point on the time limit provisions and it seems to us that there is no merit in the point that he was making. He was indicating to us that he would have liked an adjournment to have developed that point through some lawyers.

At the very outset of these proceedings we gave him the opportunity to adjourn. We thought he was going to make an application to us, so that he could have lawyers and he expressly declined that invitation. I indicated to him that it would not be satisfactory for him to make his submissions, see what happened and then ask us for an adjournment. Accordingly, we are not prepared to accede to his request that that point should be adjourned. It has no merit in it, in any event, as it seems to us.

Accordingly, there being no arguable point of law fit for hearing before a full panel of the EAT at this stage, we are prepared to dismiss the appeal.

Mr Patel has asked for leave to appeal. We are unanimously of the view that that application should be refused. It is our view, for the reasons that I have endeavoured to give, that there is no merit at all in this application and no point of law which is fit for hearing by us and therefore, no point of law fit for hearing by the Court of Appeal. It seems to us that, in those circumstances, we should refuse leave.