Post Office v Britten [1999] UKEAT 1461_98_0303

EAT
Post Office v Britten
[1999] UKEAT 1461_98_0303 · 1999-03-03
MR JUSTICE MORISON (PRESIDENT) : This is hearing is to determine whether there is an arguable point of law in an appeal which the Post Office wishes to make against an Industrial Tribunal decision which was promulgated on 22 October 1998. The decision was made at the end of proceedings brought by Mr Britten a former employee of the Post Office. He alleges that he was unfairly dismissed and he also alleges that he has been discriminated against on the grounds of his race, namely that he is Jewish, which he described as his ethnic origin, and on the grounds of his disability. It is common ground between the parties that the Applicant, Mr Britten is a person suffering from a disability within the meaning of the 1995 Act .The parties attended, before a Chairman sitting alone at London (North) on 12 October 1998. A discussion took place with the Chairman and he was invited to give a decision as to the ambit of the case which the Applicant was to be entitled to bring. It was the Applicant's pleaded case that he had been subjected to discriminations throughout his employment and that this was a matter of policy or procedure, such that the acts which were done again him could be regarded as all part of a piece and of a continuing nature, so that each incident is not just an allegation of discrimination in itself , but is evidence of the settled practice or procedure of policy.It was the desire of the Post Office that the Chairman should hear a limited amount of evidence and in particular, should receive in evidence the minutes of a meeting which took place between the employers and Mr Britten on 28 November 1997. It was the employer's case that at that meeting, where the Applicant was represented by his trade union, he effectively conceded that any of the allegations which were discussed in that document had effectively been resolved prior to the 28 November 1997.Accordingly, the Post Office were hoping that at the hearing before the learned Chairman, he would be able to conclude that the Applicant should not be entitled to adduce in evidence any matters which occurred before that date.The document was handed to the Chairman, and we are told by Mr White of Counsel, and of course accept, that the Chairman asked the Applicant whether he agreed with the document's contents, and it became plain that there was no dispute between the parties on that question. However, the Chairman did not receive any other evidence.The conclusion of the Tribunal Chairman was expressed in this way:
"my view is that the Applicant should be allowed to give evidence in respect of all the acts alleged in the Further and Better Particulars which had been served"
. He continued:
"..........It is difficult within the confines of a Hearing for Directions to give any ruling on whether there has here been continuing discrimination, bearing in mind the fact that at a Hearing for Directions evidence is not received. It seems to me that whether the acts against the Applicant do or do not amount to continuing discrimination, the fact remains that the Applicant has brought a claim in respect of race and disability discrimination within three months of the last act complained of and that the circumstances of this case require that even if the discrimination is not continuing in the sense in which that words has been used in the authorities, ............ it is nevertheless settled authority that subject to the directions of the Tribunal in any particular case an Applicant is entitled to adduce in evidence in order to support his case evidence of discriminatory acts which he alleges have been committed against him and which have occurred more than three months before the presentation of his Application. ......."
He said that regard should be given in the exercise of the Tribunal's discretion to the ability of the employers in this case to adduce evidence as to events which have occurred long in the past and which might contradict the evidence given by the Applicant as to what had happened many years ago.Regard must also be given to not hampering an Applicant in bringing before the Tribunal what may be evidence that over a long period there has been a settled policy of discrimination against him. "All these matters have to be balanced, but I have come to the conclusion that since the Applicant's case appears to be based according to his particulars on a settled policy adopted against him of using against him expressions which, if established are offensive against him both racially and on the grounds of his disability, he should be allowed to bring forward that evidence in its totality. It is essential in my view that the Tribunal should obtain a picture of conditions in the workplace over the whole period of the Applicant's employment against which it can judge whether the Applicant has suffered the detriment which he alleges he has suffered and whether the acts are continuing discrimination extending over the whole period, in the case of his racial discrimination and from the commencement of the act in the case of his claim for disability discrimination is a matter to be determined after hearing evidence. My decision is that the Applicant may adduce them in evidence."He then quite rightly pointed out that if the employers were unable over this period of time to adduce evidence which might rebut the earlier allegations, then the Tribunal should approach such evidence with caution based on the fact that no rebutting evidence was now available. Against that it would be in possession of evidence given by both sides as to later actions which had occurred and the Tribunal would probably be able to judge by its findings of facts on those later matters where the probabilities lay as to the accuracy of the Applicant's recollection as to earlier acts which he alleged to have been directed against him. On balance he says, therefore, and having regard to the nature of his case:
"I have decided that there should be no cut off point. That the Applicant should be allowed to adduce evidence to cover all the matters given in the further and better particulars and that it will be for the Tribunal at the hearing to decide whether in the light of the evidence and the facts found, these are all matters of continuing discrimination or isolated acts and how much weight should be given to the Applicant's evidence in respect of earlier acts if the Respondent's are for any other reason unable to produce evidence which might contradict those acts."
It seems to us despite the argument advanced by Mr White that that was an approach which was well within the discretion of the learned Chairman. He was not as it seems to us obliged to conclude that the minutes of the meeting effectively destroyed the Applicant's case in relation to matters which had occurred before that date.Whether in due course, a Tribunal will find as a fact that the Applicant has a genuine complaint in relation to matters arising before 28 November 1997 will be a judgment to be made on the evidence which they have heard, including cross-examination of the Applicant on that document and any evidence which the employers give about that meeting.It does not seem to us that this is one of those exceptional cases where the Tribunal could conclude that there should be a cut-off point. Nor do we think it fair, with respect, to suggest that the learned Chairman has not applied his mind to the principle submission which was made on the Post Office's behalf by Mr White, because it seems to us that the learned Chairman has specifically decided that there should be no cut-off point, but has surrounded that decision with cautionary words which we endorse. It seems to us quite obvious that where an Applicant is relying on very old matters, the Tribunal is not likely to be able to find cogent evidence in relation to it which is still available to the employers, where those matters were not drawn to their attention at the time. The note of caution which the learned Chairman has sounded, is entirely appropriate in our judgment.There is one further point that we would wish to deal with and it is this. Having reached their conclusion, the learned Chairman has decided that the estimated length of the hearing should be ten days. Whether that was on the basis of the representations made to him, by the parties representatives, we do not know, but suspect that it was. It seems to us that with careful case management, there is absolutely no reason why this case should not be heard and determined within half that time. It seems to us, that this is plainly a case where there needs to be an exchange of written witness statements between the parties and an exchange of any documentary material on which either of them intends to rely. That exchange should take place well in advance of the hearing date which is fixed. It would be preferable, if before the evidence were received, the Tribunal had an opportunity to read witness statements and any particular document or documents, which the parties requested them to do on the first day of the hearing. Taking time to prepare themselves for the hearing, will enable the evidence of the witnesses to be taken as read and for there to be a limited amount of cross-examination on the various statements. It should be apparent to the Tribunal, from reading the witness statements, precisely what the important issues of fact are and to concentrate on those.If a positive case management approach is adopted to these proceedings, we see no reason why five days would not be quite sufficient. Indeed, it may well be that less than that will be required.Furthermore, it seems to us, in accordance with the Tribunal Chairman's decision, that the Tribunal will then be well placed after the Applicant has first given his evidence to see where they go from there. They will be in a position to see whether there is a credible arguable case for a settled or continuing policy of discrimination and to invite the Respondent's witnesses to deal with those matters which they then think are pertinent in the light of the way the Applicant has given his evidence and has dealt with the cross-examination that may have been addressed to him. That is not to say that the Tribunal should cut the case off at half time, but they will be able to review the Order which was made, which is the subject matter of this appeal, in the light of the evidence which has been received which was what unquestionably this experienced learned Chairman had in mind in the decision which he gave.Accordingly, we are not persuaded by Mr White's helpful submissions that this is an arguable point of law. We think this is the pure exercise of sensible management discretion by an experienced Chairman with which we should not intervene. Accordingly, the appeal will be dismissed. We express the hope that this case should be progressed as soon as is practicable, in accordance with what we have said by way of guidance as to how it should now proceed.