Lubenko v Ray Alan Ltd [1998] UKEAT 914_98_0111

EAT
Lubenko v Ray Alan Ltd
[1998] UKEAT 914_98_0111 · 1998-11-01

JUDGE D PUGSLEY :

In the case of Mrs Lubenko v Ray Alan Ltd this is a matter which has been listed before us as a preliminary issue as to whether or not there is an arguable ground for this matter going before a full Tribunal. The Appellant has drafted her rather homespun Notice of Appeal and we note that one of those matters has been struck out by order of the Registrar since it was not supported by an affidavit. For the assistance we have received we have been greatly indebted to Mr Davies, who appears under the auspices of the ELAAS scheme and, through his help, we are grateful for the submissions he has made.Without in any way causing distress to the Appellant it would be right to say that the Tribunal made it clear, in robust language, that, so far as she was concerned, they did not accept her evidence. Indeed, the Tribunal made findings of fact which are in very strong terms. Having found that the Respondents' reason for rejecting the Applicant's job application was sound and truthful they say this, in paragraph 12:
"But we would go further. We are quite satisfied, having listened to Mrs Lubenko, Mr Waldie and Mrs Witty give evidence, that Mrs Lubenko's account of the interview is a malicious fabrication. It cannot be a mistake; it cannot be a misunderstanding. We emphasise that she has an excellent comprehension of English. The accounts are so diametrically opposed to each other that there is room for no explanation other than that one or other party is being deliberately untruthful.
Mrs Lubenko did not know this before she came to the hearing because the event occurred after the time to which the RR65 questionnaire directed Mr Waldie's attention, but shortly after Mrs Lubenko was interviewed, and long before these proceedings were commenced, Mr Waldie did engage a young Spanish girl to work in the Respondents' store. The Respondents already employ a Ugandan Asian in a senior position as a fashion manager, (he or she is a long-serving employee) and Mr Waldie has also employed an Afro-Caribbean woman as a shop assistant. We see no evidence whatsoever of a tendency, let alone a policy, to discriminate which is the clear implication of Mrs Lubenko's complaint against these Respondents. None of her allegations ring true. We do not believe, if we may be forgiven for putting it like this, a single word of it. The complaint therefore fails and is dismissed."It is right that we should place a complaint in context. The Appellant (Applicant in the proceedings before the Employment Tribunal) made no less than five accusations on the base of race discrimination. They were all delivered to the Nottingham office on 21 March 1997 and the Tribunal decided to hear each of those cases consecutively. For reasons to which we have averted to a later stage this was the third such hearing.Before us it has been contended that it was wrong that the Tribunal should deal with these cases in that way and, effectively, the Appellant was not given a fair trial because of the procedure that was adopted. Having lost the first two cases, it is said, the Tribunal's mind was prejudiced against the Appellant.We are bound to say that, having looked at the reasons in this very careful decision, we see no force in the criticisms made. We consider it is clear that the Tribunal were addressing their minds to the issues of this case in deciding the matter. We appreciate it would be distasteful for the Appellant to be spoken of in these terms but there are occasions when Tribunals have to make findings of fact that are, no doubt, distressing to those who are the recipients of such a judgment but at the end of the day we do not consider it can be said that the Tribunal erred in law in taking the course of listing these cases to be heard by the same Tribunal consecutively.It is, as one of the Industrial Members, Mr Hodgkins, observed during the hearing, if one actually looks at the body of the text of the Tribunal case it is quite clear the Tribunal made its findings of fact on this case. The direction of law as to the issues of race discrimination are set out in paragraph 9. That paragraph, in the opinion of all of us would serve as a template for a direction given to any tribunal:
"This is very largely a case where everything turns on which witness is telling the truth. It is, of course, always very difficult for somebody in the Applicant's case to demonstrate, and the burden of proof is upon her, what lies in the mind of another person. The burden of proof never shifts to the Respondent, but if an applicant can show that there is a difference in race or nationality and a difference in treatment, then the Respondents are asked to give an explanation. If the explanation which they give is unsatisfactory, incomplete, untrue or in some other way does not satisfy the tribunal, the tribunal may draw conclusions which are adverse to the Respondents and conclude that the real reason for the difference in treatment is the difference in race."
Mr Davies, with great professionalism, does not challenge that that is a perfectly proper direction of law. We have come to the view, in that the grounds of appeal raise issues that go to the substantial issue of whether or not the Appellant was the subject of unlawful racial discrimination, we do not consider that anything which she has said in her grounds of appeal, or that Mr Davies has, with much greater restraint, urged upon us, can be said to show any misdirection in law.We turn now to the question of costs. Costs are mentioned by a side wind in the Notice of Appeal and Mr Davies has taken out two issues which he focuses on. He repeats his criticism that the Tribunal, having already reached a decision on two cases, therefore had not approached the Appellant's case with an open mind. As we have indicated, in making its findings of fact as to racial discrimination, the Tribunal confined its attention very much to the issues of that case. An application was made for costs. The Tribunal, in paragraph 13, properly directed themselves that they
"...can only do so if the proceedings have been conducted frivolously, vexatiously or otherwise unreasonably. It must be clear from our finding that Mrs Lubenko's case is based on a malicious fabrication that we are satisfied that it was conducted vexatiously. We would, however, go further. There are aspects of this and other cases brought by Mrs Lubenko that concern the Tribunal greatly. This is the third consecutive complaint of race discrimination brought by Mrs Lubenko which we have dismissed. We have one other to hear. There was a fifth which has been settled on terms which, in the context of racial discrimination with its potentially unlimited damages, could be described as a nuisance value. It is the juxtaposition of the dates in the cases which are of interest."
The Tribunal then points out that the first case involved a company called EEV Ltd:
"That job was applied for on 3 January 1997 and she received notification that she had been unsuccessful on 10 January 1997. On 17 January 1997, she applied for a post at Morrisons (this is the case that has settled). She received notification of rejection on 3 February 1997. She saw this job advertised on 20 January 1997 and was interviewed on 22 January, unsuccessfully. On 21 January she applied for a job at Halfords Ltd and learned she had been rejected on 28 January 1997 and she applied for a job with Lincolnshire County Council which she discovered in an advertisement on 22 January 1997 and for which she was unsuccessfully interviewed on 3 February 1997. The evidence of Mrs Witty that the Applicant did not really appear to want the job with Tradex, has clear pre-echoes in the case involving Lincolnshire County Council where, although that was not the evidence given by the Respondents, the somewhat odd circumstances surrounding the way in which the job application was made, led us to precisely that conclusion. We do not, of course, have sufficient evidence to draw the conclusion that this an orchestrated campaign brought by Mrs Lubenko with or without the support of others, but again it is not without interest that all of these proceedings were commenced by the hand delivery of Originating Applications to the Nottingham office of the Industrial Tribunals on 21 March 1997. We note those facts, but they do not ultimately form part of the reason why we conclude that costs should be ordered in this case."
Paragraph 15 continues in this vein:
"Nobody should proceed before an industrial tribunal on the basis of a deliberate falsehood. That is what Mrs Lubenko has done. The Respondents are entitled to their costs. She will pay the Respondents their costs, to be taxed in default of agreement, on the County Court higher scale on an indemnity basis."
I think it is clear that Mr Davies accepts that the reference to 'on the higher scale' on the County Court scale is scale 2. 'Indemnity basis' is, of course, from the point of view of the person who has to meet the costs, a far more exacting standard than the standard basis of taxation.We are unitedly of the view that the Appellant has no ground of appeal on the issue that the Tribunal were entitled, on the facts as they found them, to make a finding that she should bear the costs. However our attention has been drawn to a case, Omar v Worldwide News Inc t/a United Press International [1998] IRLR 291 EAT. That was a decision of this Tribunal in which judgment was given in these terms:-
"Finally, in our judgment, it is the case that, no doubt because they felt the unions means were relevant - which they were not - the Industrial Tribunal never enquired at all into the means of the Appellant himself. Thus, in our judgment, for those reasons this appeal must be allowed. The present cost order must be set aside and the matter should be remitted to the Industrial Tribunal to determine what order for costs, if any, should be made in the light of their finding, which is not under challenge, that the Appellant had fabricated his evidence before them and in the light of his personal means and ability to meet any such order without any reference to the means of the union which represented him."
We consider that there is an arguable point as to whether it was right to make an order of costs in those terms, in the absence of any enquiry as to the issue of the Appellant's means. We are told that no such enquiry was made. We wish to stress; we say the latter is arguable. We do not wish to hold out any false hope, or, to the Respondents, any false fear that, in our view, the matter is likely to be concluded one way or the other. We do not. All we say is, before making an order of costs, it is at least arguable that a Tribunal should have made enquiry of the Appellant and her ability to pay.One further matter, which is simply this: we are only told, on the Appellant's behalf, that she was not asked any such questions. As there is no mention of this in the decision of the Tribunal, we think there ought to be a Chairman's note limited solely to the question of her financial means.