EAT/232/98 NATFHE UNION v MR F SHAHROKNI [1999] UKEAT 232_98_0710

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 232_98_0710

Case No Appeal No. EAT/232/98 & EAT/989/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

EAT/232/98 NATFHE UNIONAPPELLANT

MR F SHAHROKNIRESPONDENT

EAT/989/98 MR F SHAHROKNIAPPELLANT

NATFHE UNIONRESPONDENT

Before

Mr Justice Holland Mr J R Crosby Mr E Hammond

Date 7 October 1999

[1]APPEARANCES For the NATFHE Union MR T LINDEN (of Counsel) Messrs Irwin Mitchell Solicitors 48-50 St John's Street London EC1M 4DP For Mr Shahrokni MR SHAHROKNI IN PERSON MR JUSTICE HOLLAND : We have before us two appeals brought by Mr Shahrokni. The history of the matter starts with IT1 dated 22nd February 1996. In that document Mr Shahrokni identified himself as a part-time teacher at Kingsway College and a member of the National Association of Teachers in Further and Higher Education ["NATFHE"]. The IT1 specified a complaint brought under the Race Relations Act 1976 . The complaint was brought against the Union and against its General Secretary, Mr John Akker. The thrust of the complaint was that the Union had been guilty of racial discrimination and victimisation in as much as it had denied him support with respect to the complaints of racial discrimination that he was making against Kingsway College and against fellow members of staff.

[2]That, in its turn, led to an exceptionally prolonged hearing before an Industrial Tribunal held at London (North). The hearing occupied some 21 days on and between 14th January 1997 and 28th July 1997. In the course of the hearing the tribunal heard some 15 witnesses and had to peruse some 1,200 documents.

[3]The tribunal plainly deliberated at some length, with the result that on 10th December 1997 it produced its decision together with extended reasons. The decision was as follows:

"(1) The majority decision of the Tribunal is that the First Respondent [ the Union ] discriminated against the Applicant on racial grounds and victimised him contrary to sections 1(1)(a), 2(1)(a) or (c) or (d), 11(3)(a) and (c) and 32 of the Race Relations Act 1976 ("the 1976 Act"); (2) The unanimous decision of the Tribunal is that the Second Respondent [ Mr Akker ] did not discriminate against the Applicant nor did he victimise the Applicant contrary to sections 1(1)(a), 2, 11(3), 32 and 33 of the 1976 Act; accordingly, the Applicant's complaints against the Second Respondent under the provisions of the 1976 Act fail and they are dismissed; and (3) the Tribunal will be reconvened to consider the issue of remedies against the First Respondent."

[4]The reasons were set out in great clarity and in great detail. In the overall result they occupy no less than some 70 pages. The essential decision made by the tribunal in favour of Mr Shahrokni appears in paragraph 23 of the reasons:

"A(1) It is the majority (The Chairman and Mr D Buckley) decision of the Tribunal that the Support-Committee established a policy or practice or criteria at its meeting on 30 June 1995, to the effect that it would not provide support in the form of representation at full Tribunal hearings (including EAT appeals against Tribunal decisions) to any NATFHE member who alleged race discrimination or victimisation by another employee (which by definition would include another NATFHE member), and insofar as there is no evidence to the effect that the policy has been rescinded, that policy is a "continuing act" within the definition of section 68(7)(b) of the 1976 Act and that new policy commenced its operation on 30 June 1995 and continued to the date of the submission of the IT1 and beyond and, on the facts of this case, the change to the rule or policy to the effect that the Support Sub Committee would not provide support to any NATFHE member who alleged race discrimination or victimisation by another named Respondent employee, e.g. another NATFHE member, amounted to racial discrimination and victimisation against the Applicant as he, an Iranian, was treated less favourably by the NATFHE Support Sub-Committee than Dr K Eames (a white)(who benefited from the operation of that policy). This amounted to both direct race discrimination against the Applicant as Dr Eames was known to be in receipt of legal support from the College whereas the Applicant was denied any assistance – and the Roose IT finding of discrimination had been in favour of the Applicant and against, inter alia , Dr Eames, - and victimisation as the purpose of applying for such legal assistance was to assist a protected act, i.e., the bringing of or the maintenance of legal proceedings under 1976 Act. That was "detrimental treatment" of the Applicant vis-à-vis Dr Eames. As a result of the new policy formulated on 30 June 1995 the Support Sub-Committee decided not to grant the Applicant legal representation at the EAT Appeal on 5 March 1996 … on the issue of whether Dr Eames was personally liable. That policy decision, during its operative period, also amounted to a deliberate policy of victimisation because, under the policy, a NATFHE member who alleged an act of race discrimination and/or victimisation against him by another NATFHE member would not have been granted legal representation in his Tribunal and EAT proceedings under the 1976 Act against that other member. The Applicant was therefore subjected to a detriment in that he was denied assistance for alleging an act protected under section 2 of the 1976 Act (that a NATFHE member had racially discriminated and victimised him)."

[5]Subsequent to that decision, the Union appealed to this tribunal. That appeal came before this tribunal by way of a preliminary hearing and in the overall result the matter was allowed to continue to an inter partes hearing. Thereafter Mr Shahrokni submitted a respondent's notice and he further submitted a Notice of Cross-Appeal.

[6]In the fullness of time the Union withdrew its appeal, but Mr Shahrokni has maintained his cross-appeal. It is to that matter that we now turn, that being the first of the appeals that we have to deal with.

[7]It is to borne in mind that the decision of the tribunal had been in Mr Shahrokni's favour with respect to so much of his complaint as lay against the Union. It was only with respect against Mr Akker that there had been a finding against him. It follows, on strict analysis, that the only scope for allowing any appeal lies with respect to the dismissal of his case against Mr Akker. Further, as we have sought to explain carefully and fully to Mr Shahrokni in the course of this hearing, this tribunal is only permitted to allow any appeal if it is satisfied that the decision of the tribunal below raises a matter of law. We emphasise Parliament has insisted that we are a tribunal dealing only with matters of law, we are not a tribunal that deals with matters of fact. Matters of fact are reserved to the tribunal at first instance. The facts of this matter were for the Industrial Tribunal and, indeed, so soon as one looks at the extent and nature of its hearing the wisdom of that piece of law becomes overwhelmingly manifest. Were the matter otherwise, this tribunal would have to embark on a similarly prolonged hearing, travelling along precisely the same route that was earlier travelled by the tribunal itself. Turning back to our task, if we are satisfied that the dismissal of his complaint against Mr Akker reflected an error of law on the part of that tribunal, then his cross-appeal succeeds. If we are not so satisfied, his cross-appeal has to fail.

[8]Turning then to the position of Mr Akker, it was dealt with by the tribunal in a prolonged paragraph 21. Reference to that paragraph shows that the tribunal set out in detail their findings with respect to that individual. The findings amount to this: that in the view of the tribunal and, as a matter of fact, Mr Akker did all he could to help Mr Shahrokni. Indeed, in their view, he did all that could be expected from a General Secretary and they would go further and suggest that the level of help he accorded to Mr Shahrokni was unprecedented, given the relationship between General Secretary and an individual member. Further, the tribunal make the point that as General Secretary he could not be held responsible for the decisions of that sub-committee which lie at the heart of the finding of racial discrimination and of victimisation. He was not a member of it, he had a wholly separate status within the union.

[9]Turning then from that summary of the findings (the findings themselves being set out at much greater length in paragraph 21) to the appeal, the question immediately arises as to what, if any, error of law underpinned that assessment? It is to be noted that no error of law is raised in the Notice of Cross-Appeal. Further, bearing in mind that Mr Shahrokni is unrepresented, it has been the task of this tribunal to examine carefully the extended reasons to see if it is possible to discern an error which he has overlooked given his lack of legal training. None of us can find any error at all in our perusal of the reasons as they stand. Yet further, turning to the submissions of Mr Shahrokni to us this morning, again he raised no error of law in his address to us.

[10]Mr Shahrokni's essential thrust is as follows: he makes the point that there is this finding against the Union that we have set out with care in the course of this judgment and contends that that did not just arise in a vacuum, there had to be individuals who were responsible for it. He is concerned at the way that individuals appear to have been exculpated by the tribunal so that, although he has a finding in his favour, he does not have the satisfaction of being able to identify those whom he alleges were behind the discrimination and the victimisation. It is thus, with that broad-brush approach, that he invites us to look at the position of Mr Akker along with certain other named individual to whom we will turn in a moment.

[11]We have given very careful attention to what Mr Shahrokni has said, but we have given equally careful attention to what the tribunal itself said and to its approach to the matter. We say immediately that we can find no error of law in any way affects their assessment of Mr Akker. What the extended reasons show is that they took a very careful note of what was said against him and they took, very properly, a very careful note of what was said by Mr Akker, who gave evidence before them, and they further then apply their own analysis of the situation and particularly note the role he has as General Secretary and the relationship between that role and first the position of Mr Shahrokni as an individual member and, second and as importantly in the immediate context, the relationship between that role and the role of the sub-committee that was subsequently condemned as being the root of the discrimination and victimisation. It is inevitable, looking at their analysis, that they would find unanimously that the complaint had no foundation. It is further inevitable that we are bound to dismiss this appeal because there is no error of law at all that would found a reversal of the decision of this tribunal.

[12]That does not totally end the matter with respect to this first appeal. The Notice of Cross-Appeal makes the point, already noted in this judgment, namely that there were certain individuals who were blamed by Mr Shahrokni, but who, in the event, got exculpated. Mr Shahrokni is concerned about that.

[13]Strictly speaking, given that those individuals are not parties to this matter, there is nothing for this Appeal Tribunal to look into. But Mr Linden, Counsel for the Union, very helpfully and very properly urged us to look at the merits of his further complaint so that there could be no doubt but that the matter had been fully looked into. Thus it was we had the benefit of argument and submission, not just from Mr Shahrokni but also from Mr Linden on this topic.

[14]What will have emerged from that exchange of submissions is that Mr Shahrokni has had the satisfaction of hearing Mr Linden submit to us that two of the individuals that are named are not fully exculpated by the tribunal and appear to have a role in the discrimination and victimisation; that though, however, leaves the remaining individuals that are mentioned in the Notice of Cross-Appeal. We have listened to Mr Shahrokni's submissions, we have listened to Mr Linden's submission and, more importantly than that, we have read the very careful analysis by the Employment Tribunal of the evidence and of their assessments based upon that evidence. We emphasise that we ourselves have never seen these individuals, we have not had the opportunity that the tribunal had of considering their respective positions over a prolonged hearing on the basis of evidence. We are quite satisfied that the tribunal was entitled to reach the views that it expresses. It had the evidence, it had the power to do so and, further, we do not find any conflict between its exculpation of those particular individuals and the overall finding that is already set out in this judgment. We emphasise our limited role. If we started enlarging it, not only would that be illegal, but paradoxically we should be discriminating this time in favour of Mr Shahrokni. Discrimination is not part of our function. Thus it is that this cross-appeal is unsustainable and is dismissed.

[15]This then leads us to the further appeal. That arises as follows: the first decision of the tribunal left open the matter of remedies. In the event, on 23rd April 1998, there was a remedies hearing conducted by the tribunal with an identical composition. The decision of the tribunal, so far as material, was as follows:

"(1) the Respondent [ the Union ] is Ordered to pay the sum of £4,906.67 to the Applicant, the said sum being the total of the award in respect of injury to the Applicant's feeling and the interest on it at 8% per annum form 30 June 1995 to 23 April 1998, under section 56(1)(a) of the Race Relations Act 1976 ("the 1976 Act) and the Race Relations (Interest on Awards) Regulations 1994 ("the 1994 Regulations"

[16]Perusal of the extended reasons shows that the matter of remedies was considered by the tribunal under two heads. The first head is already apparent from the terms of the decision and that was the award for injury to feelings. The tribunal noted that Mr Shahrokni had very sensibly left the assessment of the award under this head to the tribunal. He no doubt bore in mind the point made by Mr Linden, namely that the tribunal having had that earlier prolonged hearing was in an exceptionally good position to make an assessment of the impact of that which it had condemned upon him, and the appropriate resultant scale in terms of an award. In the event, the tribunal found as follows:

"The award in respect of injury to feelings should be at the lower to middle range of awards. The acts of discrimination and victimisation were based on ignorance of the law and the decision not to support the Applicant was taken contrary to the legal advice from NATFHE's Legal Officer and the recommendation of the Support Sub-Committee Chair. It is to be hoped that if the Tribunal's recommendation is implemented, the members of the Sub-Committee will doubtless be reminded when considering such applications in the future that it would not be permissible take into consideration, when considering applications from NATFHE members for legal assistance, the fact that the substance of the member's complaint is directed at or against a person or persons who are or are not themselves members of NATFHE. Having given careful consideration, it is the Tribunal's unanimous decision that the award in respect of injury to feelings should not include an award in respect of aggravated damages. The appropriate sum for injury to feelings is £4,000. …"

In the reasons the tribunal then turns to the calculation of interest.

[17]It is very unusual for an appeal to be mounted to this tribunal against any such findings. The reasons are two-fold. First, it is rare for a point of law to arise at this particular juncture in a tribunal's deliberations and, second and more importantly, such assessment is essentially a matter for a tribunal who has had the evidence presented to it as was the case here. No error of law has been alleged to us, either in the Notice of Appeal or in argument, and for our part we are quite unable to find one. As we emphasise, it would be very unusual were one to emerge from our perusal. Given no error of law, there is no way that we can allow any appeal with respect to that particular assessment.

[18]We turn then to the second head of assessment. That amounted to a claim by Mr Shahrokni for loss of earnings. The claim as noted by the tribunal was in these terms:

"The Applicant has quantified his net loss of earnings arising out of the NATFHE's acts of discrimination and victimisation at the figure of £172,722. He contends that but for the acts of discrimination etc by Kingsway College, aided and abetted by NATFHE, he would have been to a permanent lecturer's post in 1984-1985, and would have become a Senior Lecturer in 1988/89 and reached the management grade in 1992/1993. Although the Applicant did not become a member of the NATFHE Union until 23 March 1992 … and the Union could not have therefore become involved in assisting him before that date in relation to his complaints against the Kingsway College, it is nevertheless the Applicant's case that had NATFHE given him proper assistance in his complaints against the Kingsway College and the others at the Tribunal hearing in November and December 1994 … he would have been able to negotiate with Kingsway College a far more advantageous financial settlement which would have included all his loss of earnings going back to 1984 than the global settlement of £20,000, which he negotiated without NATFHE assistance."

[19]Pausing there, one only has to recite a claim in those terms to appreciate that its prospects for success were minimal, unless some very cogent evidence was put forward to sustain it. Occasionally tribunals like Courts are in a position to sustain arguments relating to consequential loss of that type of sophistication, but only when there is abundant evidence, evidence sufficient to ensure that the award made by the tribunal is not too remote and can be maintained on the basis of the original finding of victimisation and discrimination.

[20]Turning to the instant circumstances, the conclusion of the tribunal was as follows:

"The Applicant has not established a causal link between NATFHE's acts of racial discrimination and victimisation and his failure to get a permanent Lecturer's post at Kingsway College which would have been a first step in his career advancement. He was even a NATFHE member before 1992. His request for NATFHE assistance was in relation to part-time posts. NATFHE cannot be held responsible for the College's failure to give the Applicant a full-time Lecturer's post in 1984 or later. It would be pure speculation on the Tribunal's part if we were to find that he would have become a Senior Lecturer and would have progressed to management. The Tribunal declines to make any award in respect of loss of earnings."

[21]It is plain, therefore, that the tribunal in the event simply was not presented with evidence or arguments to make out the case that had been advanced and as it explains, the tribunal found itself obliged to reject it.

[22]Once again, we approach looking for an error of law. We note that none such is alleged in the Notice of Appeal. We note that none such has been advanced in argument, but further and, in any event, it would be very surprising where such to be apparent. The decision under appeal is essentially a decision of fact made by a tribunal of fact upon the evidence which was presented to it and, as such, difficult, if not impossible, to challenge before this Appeal Tribunal. Certain it is in the instant case that there is no basis at all upon which we could allow an appeal against a failure to make an award under that head and, thus, in the overall result, this second appeal is unsustainable and has to be dismissed. Mr Shahrokni has had his successes in the past in terms of complaints, no doubt deservedly, but this, alas, is not one of them. MR JUSTICE HOLLAND : Rule 34(1) of the Employment Appeal Tribunal Rules 1993 provides as follows:

"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings."

In reliance on that provision, Mr Linden on behalf of the respondent to the first appeal, Mr Akker and the respondent to the second appeal, the Union, makes an application for the costs of this hearing. He bases that application in particular on the words "unreasonable conduct in bringing or conducting the proceedings". He points out that Mr Shahrokni is no stranger to these proceedings, that he has quite significant experience of them. He points further to the advice that Mr Shahrokni undoubtedly had between the hearings under appeal and the hearing today, which advice came from the CRE, which advice was presumably well based in professional terms. He further points to the fact, as we have already found, that notwithstanding that this is a tribunal whose jurisdiction is confined to matters of law, neither Notice of Cross-Appeal nor the Notice of Appeal purport in any way to raise matters of law, there have been no submissions directed as to law. The matter really has not got off the ground. Thus it is, he says, that in these unusual circumstances that order should be made in favour of his clients. Mr Shahrokni admits that there did come a stage at which the CRE ceased to be interested. That stage arose when the Union withdrew its appeal. Very understandably at that stage the CRE felt, no doubt, that the point had already been made and was conceded. For the rest, Mr Shahrokni, sensibly, leaves the matter to this Appeal Tribunal. We have discussed the matter anxiously. Our position is this: but for one factor, we would make such an order. Mr Shahrokni better bear that in mind. The only factor that saved him from a costs order arises as follows. This case ought to have come before this tribunal by way of a preliminary hearing. That preliminary hearing would have involved the attendance of Mr Shahrokni alone and had that been arranged it is almost certain that the matter would have ended there. Given that he is quite unable to identify a point of law, there would be nothing to go forward for an inter partes hearing at which the Union should attend. Very unfortunately and due to the slightly unusual procedural history of this matter, no such hearing was ordered. That is in no way the fault of the Mr Shahrokni nor, for that matter, is it the fault of the Union or Mr Akker. The responsibility lies with this tribunal, albeit it arose in part, a great part, because of the rather unusual early sequence of events. We feel that it would be unfortunate and, ultimately, unfair if that particular combination of events worked to Mr Shahrokni's disadvantage. The fact that the Union and Mr Akker are represented here is because there was no earlier stage at a preliminary hearing that this matter so obviously needed. It is in those circumstances that we think that it would be unfair to make any such order against Mr Shahrokni. It would be well to bear in mind that what I am saying at this moment is being transcribed. The transcript will be available to the Union and no doubt if this problem arises again in the future, they will be able to refer the tribunal to what has been said. It is only because of our failure to have a preliminary hearing and the significance of that, that we have not made an order in this case. In the event it amounts to this, Mr Linden, we do not grant your application.