Khan v Nynex Cablecomms Ltd [1998] UKEAT 1401_97_2610

EAT
Khan v Nynex Cablecomms Ltd
[1998] UKEAT 1401_97_2610 · 1998-10-26
MRS JUSTICE SMITH: This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at London South between 15 April 1996 and 25 June 1997. The Tribunal sat to hear evidence and submissions for more than 30 days and they deliberated for a further 13 days in Chambers. At the conclusion of that time they decided unanimously that the Respondents, Nynex Cablecomms Limited, had not discriminated against the Appellant contrary to the Race Relations Act 1976 , and ordered the Appellant to pay costs, first for the sum of £152 and second, the cost of one day's hearing to be taxed if not agreed.The Appellant was employed by the Respondents from 26 August 1993 until a date in October 1996. He was still employed until part way through the prolonged series of hearings.The Respondents are a television and telephone cable company. At the relevant time they employed a large number of sales people, whose job it was to visit the homes of potential customers, to seek to persuade them to enter into contracts for cable services. The Respondents' organisation was divided into a number of franchises. The Tribunal was concerned with the franchises at Leatherhead and Bromley. Each franchise was headed by a regional sales manager. Below him there were a number of team leaders, each of whom controlled a team of between four and eight cable advisers. A cable adviser could be promoted through various ranks of cable adviser until eventually he achieved the rank of senior cable adviser. Promotion within the ranks of cable adviser depended upon the achievement of sales targets. At the relevant time, many cable advisers and team leaders were from ethnic minorities.The Appellant was employed as a cable adviser and was eventually promoted to senior cable adviser, but he was never promoted to team leader. On 11 June 1995, he presented an originating application to the Industrial Tribunal complaining of racial discrimination and victimisation. His IT1 covered a wide variety of issues. He complained about abuse, harassment, failure to afford opportunity for promotion, failure to afford opportunity for training, victimisation and discrimination in the calculation of wages and bonuses.At the start of the hearing in April 1996, the Chairman considered that the issues were insufficiently defined. In our judgment he was quite right to do so. The Employment Appeal Tribunal has on more than one occasion stressed the need for the issues to be adequately defined before a hearing begins. A list of issues was prepared during the first morning of the hearing. The list comprised 32 separate allegations covering a period from the 13 March 1994 to 11 June 1995. In respect of this list the Tribunal said, at paragraph 4 of the decision:-
"Having regard to the provisions of section 68(1) relating to the three months' time limit, it appears that there were time issues in respect of the first 14 issues and issue 32. However, because of the number of complaints, the Tribunal decided not to consider the time point as a preliminary issue; it appeared to the Tribunal that if all those issues are proved, and were found to be matter of race discrimination that they could all indicate the existence of a practice constituting a continuing act extending over a period for the purposes of section 68(7)(b) as had been suggested on Owusu v London fire and Civil Defence Authority [1995] IRLR 574, EAT."
Having thus deferred consideration of the time issue, the Tribunal then considered evidence which covered the period from August 1993 until June 1995. The decision is 38 pages long. It contains detailed consideration of the evidence and assessments of the credibility of the Appellant and virtually every witness. Of the Appellant's credibility the Tribunal said:-
"In the above circumstances it appeared to the Tribunal not only that the Applicant's recollection could not be relied on but also that the Applicant was a man who had no compunction in providing false information in job applications and in giving dishonest evidence to the Tribunal. Accordingly, the Tribunal unanimously concluded that the Applicant's evidence could not be accepted unless it was corroborated to the Tribunal's satisfaction."
The Tribunal's reasons set out a great deal of detailed factual material. However, it is not necessary for the purposes of this judgment for us to recount very much of this detail. It suffices if we mention one particular area of factual dispute and finding.During the early period of his employment, the Appellant worked in the Surrey franchise where his regional sales manager was a Mr Riggs. The Tribunal found that Mr Riggs was in the habit of using racist language. On occasions he called the Appellant and another Asian employee "a bloody Paki" or "a moaning Paki". The Tribunal found that in some respect, Mr Riggs was a good manager and treated the Appellant well. In particular, they referred to an occasion when he had treated him sympathetically during a time of marital trouble. In 1994 the Appellant was dissatisfied and unhappy about various aspects of his employment in the Surrey Franchise and sought a transfer to the Bromley franchise. That took place on 13 June 1994 and from that time the Appellant had no further contact with Mr Riggs. The use of racist language by Mr Riggs was not one of the 32 allegations identified by the Tribunal.Various disputes arose involving the Appellant and his new colleagues and superiors within the Bromley franchise. It is not necessary that we describe those disputes in any detail.At paragraph 133 of their decision, the Tribunal began to set out their findings and conclusion in respect of each of the 32 issues. They dealt with issues 1-14 which related to the time before 12 March 1995, that is before the time of which the Appellant was entitled to complain, as of right, in an IT1 dated 11 June 1995. Of those 14 issues, they found that in some cases there had been no difference in treatment between the Appellant and the comparator he had suggested or no difference in treatment between his treatment and that which the Respondents would have accorded to another employee. In some cases, the Tribunal found that there was a difference in treatment, and moreover a difference in race, but in those cases they found the Respondents' explanations satisfactory. They concluded that they had been no racial discrimination in respect of those 14 allegations.

At paragraph 134 of the Reasons the Tribunal said:-

"The Tribunal was not of the view that the above allegations indicated the existence of a practice which might constitute a continuing act extending over a period as explained in Owusu v London Fire and Civil Defence Authority [1995] IRLR 574 with reference to section 68(7). Accordingly, all the above issues were out of time. There appeared to be no reason why it would be just and equitable for the Tribunal to consider such complaints out of time and accordingly, in respect of the above complaints, the Tribunal would have concluded that it did not have jurisdiction to consider them."
The Tribunal then considered the remaining allegations which were 'within time'. Again they found that in some cases there had been no difference in treatment; in others they found that there was a difference in treatment but for a non-racial reason. The allegations of victimisation were rejected as a group, because the act on which the Appellant had sought to rely as a protected act was not one which was capable of founding a complaint of victimisation. He had contended that the reason he was being victimised was that he had made a complaint to the police that his wife had been followed in her motor car by an employee of the Respondent. However the Tribunal found that it was the Appellant's wife who had complained to the Police and they held that her act could not amount to a protected act for the purposes of his complaint under Section 2 of the Race Relations Act 1976 . The Tribunal also rejected the Appellant's allegations, first made in his final submissions, that he had been victimised on account of a complaint of discrimination made in October 1994. They found that no complaint of racial discrimination had been made until 5 June 1995, only days before his IT1 had been filed.Finally the Tribunal considered the applications for costs. First the Respondents sought a limited costs order in the sum of £152, to represent the costs wasted in calling a Miss Skelton to rebut a suggestion that the notes of a meeting which had occurred on 3 May 1995 had been forged. Miss Skelton had been present throughout the hearing days during November 1996, but the Appellant had not alleged forgery of the notes of that meeting during that time. He raised this issue later and it was necessary for the Respondents to make a special arrangement for Miss Skelton to attend the Tribunal to rebut the allegation that the notes had been forged. Miss Skelton duly gave evidence and the Tribunal were satisfied by her evidence. They concluded that the notes had not been forged. They ordered to Appellant to pay the costs of Miss Skelton's special attendance.Finally the Tribunal ordered the Appellant to pay the cost of one day's hearing because the Appellant had been guilty of undue repetition. He had to be asked to move on approximately 40 times. On a number of occasions he stopped the proceedings to ask that witnesses be prosecuted for perjury although he was aware, after he first raised the matter, that the Tribunal would not consider such an application, if at all, before it had reached its decision. Also, the Applicant's piecemeal production of documents had disrupted the proceedings a number of times. The Applicant had been told to produce all the documents on which he proposed to rely on 21 November 1996, Day 16. The Tribunal assessed the extra time taken in the hearing as a result of the Applicant's unreasonable conduct as one day. The Tribunal considered the Applicant's means but awarded one day's costs to be taxed if not agreed.The original written grounds of appeal were long and somewhat difficult to understand. It appeared to us that, to a large extent, they sought to reopen issues of fact which had already been determined by the Tribunal. Such findings are not susceptible to appeal, before the Appeal Tribunal, unless they can be shown to have been perverse, which they plainly were not.Today, the Appellant appeared by Counsel, Mr Carrington and has pursued three main grounds of appeal.First it was argued that, at the hearing the Tribunal had agreed to allow all issues from May 1994 onwards to be admitted as substantive issues, notwithstanding any delay in filing the IT1, on the basis that there was a course of racially discriminatory conduct which amounted to a continuing act. Therefore, the argument went, the Appellant was entitled to recover damages in respect of the racial abuse from Mr Riggs, despite the fact that all contact between the Appellant and Mr Riggs had ceased in June 1994. The Appellant's suggestion was that, having given this clear indication in the course of the hearing, the Tribunal changed its mind and said that they would not reach a decision on the preliminary issue until they gave their final decision. The Appellant was taken by surprise by this change. The Tribunal ought not to be permitted to go back on a ruling that they have previously made, which ought to result in an award of damages to the Appellant.We reject this argument. We are not prepared to accept from this Appellant that the Tribunal made any such statement during the course of the hearing. In our view, no Tribunal would have reached a decision on the preliminary issue before hearing evidence. When they heard the evidence, it showed that Mr Rigg's discriminatory conduct did not continue beyond June 1994. It could not have amounted to a continuing act beyond that date. There was no other discriminatory conduct. This ground of appeal is rejected.Second, the Appellant alleges that the Chairman was biased against him. He has sworn an affidavit and has put in an affidavit from a Mr Haroon, who assisted him throughout much of the hearing. They allege that the Chairman's conduct towards the Appellant had the effect of belittling and unnerving him. The Appellant claims he was subjected to constant criticism which undermined his confidence to the extent that he was unable to present his case. Also the Appellant complains that all the decisions during the hearing, on such matters as discovery of documents, went against the Appellant. This, alleges the Appellant, must be a sign of bias in the Tribunal.We have done our best to understand the various separate points of decision about which complaint is made. We note that none of those decisions has been challenged as being outside the Chairman's discretion or otherwise wrong in law. It appears to us that each of these criticisms is an attempt to relitigate a point of argument which was heard and decided during the course of the hearing.The test for bias in Tribunal proceedings, as in all court proceedings, is for the Appeal Tribunal to ask itself what an impartial observer would have thought and said on watching and hearing that which passed during the proceedings below. It is clear to us from the Appellant's affidavit and the Chairman's response that the Chairman did correct the Appellant on many occasions. It also appears to us that this must have been necessary. We accept, as the Chairman himself has accepted, that on one occasion he lost patience with the Appellant and used an inappropriate phrase. He told the Appellant to "shut up" . He accepts that that was unjudicial language. He says that he immediately apologised. We have no reason to doubt the truth of that.Plainly these were difficult proceedings for both parties. We have the clearest impression, not only from the affidavit evidence but also from the extreme care with which this decision has been prepared, that the impartial observer would have had no fear or concern that these proceedings were in any way biased or unfair. In our judgment, that ground of appeal must also fail.Finally, we turn to the question of costs. We can say only that in the light of the reasons given, to which we have adverted, the order for one day's costs seems to us to be a wholly reasonable exercise of the Tribunal's discretion. So indeed does the order for the payment of £152 costs in respect of the expenses of the unnecessary attendance of a witness. This Tribunal would only have jurisdiction to overturn such an order were the order perverse. As we have said it appears to us that these orders were made in the wholly proper exercise of the Tribunal's discretion. Accordingly, for those reasons this appeal fails and must be dismissed at this preliminary stage.