MR U MALHOTRA v PRICE WATERHOUSE [1999] UKEAT 528_98_2907

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 528_98_2907Case No Appeal No. EAT/528/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR U MALHOTRAAPPELLANTPRICE WATERHOUSERESPONDENT
Before
Mr Justice Charles Miss D Whittingham Mr N D WillisDate 29 July 1999
[1]APPEARANCES For the Appellant IN PERSON For the Respondents MR J ALGAZY (of Counsel) Instructed by: Miss S Davis Messrs Eversheds Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL MR JUSTICE CHARLES : This is an appeal by Mr Malhotra against a decision of the Chairman of an Industrial Tribunal (now an Employment Tribunal and we shall so refer to it) sitting alone at London (South) on 9 February 1998. Introduction The Extended Reasons for the decision were sent to the parties on 26 February 1998. The decision was that by reason of section 68(1) of the Race Relations Act 1976 the Employment Tribunal should not consider Mr Malhotra's complaint against Price Waterhouse. That complaint was made by an Originating Application which is dated 24 October 1997 and which was received by the Employment Tribunal on 27 October 1997. In it Mr Malhotra complained that he had been the subject of racial discrimination by the Respondents, Price Waterhouse, in respect of their refusal to short-list him for certain job positions reference ST1, ST4 and ST5 which jobs had been advertised.[2]When this matter came before this Tribunal by way of preliminary hearing there was a direction that the Appellant (Mr Malhotra) do lodge an amended Notice of Appeal providing further and better particulars of the grounds of his appeal and all matters to be relied on by him. That particularised Notice of Appeal was served and is in the following terms:
" Amended 'Notice of Appeal ' The grounds of appeal are as follows: 1. Rule 9(1) from EAT booklet - Practice Direction (Employment Appeal Tribunal Procedures) 2. Section 68(1), 68(6) and 68(7) of the Race Relations Act 1976. The Chairman was biased against the Appellant and there is no complete record as to what was said at the Preliminary hearing by the Appellant. The Chairman's extended reasons do not tell all the facts and are in parts incorrectly stated. The Appellant had prepared contemporaneous notes of the events, therefore his recollections should have been preferred. The Respondents must have made their statements from memory. However the Chairman states in his decision that he prefers Mr Bell's recollection of events. The Appellant was constantly interrupted by the Chairman when he was making his submission. The Appellant was a litigant in person and therefore the Chairman should have given him assistance. He failed to do so. The Chairman's demeanour suggested to the Appellant that he was against him. The Chairman had not used any discretion pursuant to Section 68 of the Race Relations Act 1976 in allowing the Appellants claim to proceed. He was biased against the Appellants. This was apparent from his unquestionable acceptance of the Respondents evidence at the hearing. The Chairman also failed to use his discretion in allowing the Applicants application, as it was explained to him that the Appellant acted on the advice of Ms Corinne Forbes of Commission of Racial Equality (CRE) on the 'Date of Incident' as 1 August 1997. It was Ms Forbes of CRE who served completed questionnaire form RR65 on the Respondent. There was evidence to support this contention, however the Chairman ignored it. He makes no mention of it in his decision. The Chairman failed to consider all the facts or exercise his discretion when he ought to have done so."
[3]Annexed to that Amended Notice of Appeal was a photocopy of an envelope which has written on it the following:
"Meeting Ms Corinne Forbes on 22/10/97 at 11.00. Date of Incident 1-8-97."
[4]It was explained to us by Mr Malhotra, and we accept, that the words "Meeting Ms Corinne Forbes on 22/10/97 at 11.00" are in his handwriting and that the words "Date of Incident 1-8-97" are in the handwriting of Corinne Forbes.[5]In addition to this envelope we were also shown a letter dated 14 October 1997 from Corinne Forbes to Mr Malhotra arranging a meeting for 22 October 1997, a letter dated 5 November 1997 from Corinne Forbes to Mr Malhotra enclosing a draft RR65 Questionnaire and a copy of the questionnaire which was later served on Price Waterhouse. Mr Malhotra told us, and we accept, that this questionnaire was prepared by Corinne Forbes of the Commission for Racial Equality. As served it is signed by Mr Malhotra and is dated 10 November 1997.[6]As was the case before the Employment Tribunal Mr Malhotra appeared before us in person. At the outset of the hearing he asked that the entirety of the proceedings be tape recorded. As we understood it his request was that he should be permitted to record the proceedings himself. We refused this request but directed that the entirety of the proceedings should be recorded by the Court. The main reasons why we took this course were:(a) in his appeal Mr Malhotra raises questions of bias,(b) issues have been raised by Mr Malhotra as to exchanges in the Employment Tribunal, and(c) it seemed to us that if we were to decide against Mr Malhotra it may be that he would allege that we were biased, or that in some way we had acted unfairly, and that the existence of a record of the proceedings before us might assist the parties and any court who had to deal with such issues.[7]During the course of the hearing before us we gave Mr Malhotra more latitude than would have been afforded to a party in his position who was represented. In particular we, in effect, permitted him to give evidence. In this respect we did not require him to go into the witness box and be sworn. However, when he was recounting facts Mr Malhotra made the statement that he was telling us the truth.[8]We add that Counsel for Price Waterhouse, in our judgment sensibly and correctly, took no objection to this course and made it clear that he and his clients were content that Mr Malhotra should place before us all matters that he wished to.[9]We were also provided with a skeleton argument and a chronology by Counsel for Price Waterhouse. Unfortunately it seemed that Mr Malhotra had not had a copy of these documents before the start of the hearing. However, he was given an opportunity over the lunch time adjournment to consider these documents together with authorities that had been referred to by Counsel for Price Waterhouse who identified the passages therein which he had relied on and had asserted to us were the most relevant. Counsel also did the same in respect of Peter Simper & Co Ltd v Cooke [1986] IRLR 19, which is a case we had referred to during the course of Mr Malhotra's submissions. Copies of that case were obtained during the hearing.[10]We did not hear oral submission from Counsel for Price Waterhouse on the allegations of bias. This was on the basis that we indicated to him that we had read his skeleton argument and that if he did not wish to add to the points made therein we saw no need for him to make oral submissions on this issue to us. Approach[11]In our judgment it is important when considering this appeal to remember what it was that the Chairman of the Employment Tribunal had to decide. The subject matter of that decision was one which went to the jurisdiction of the Employment Tribunal and the points which had to be decided were:(a) in the words of section 68(1) of the Race Relations Act 1976 "when the act complained of was done" having regard to the provisions of section 68(7) thereof, and(b) if that act was done outside the time limit set by section 68(1) whether in all the circumstances of the case the Employment Tribunal considered that it was just and equitable for the complaint to be heard out of time (see section 68(6) Race Relations Act 1976).[12]Paragraph 14 of the Extended Reasons is in the following terms:
"The question I have to answer is first was the application lodged within three months of the date of the alleged act of discrimination and secondly, if not, whether it is just and equitable to extend the period to enable the Tribunal to have jurisdiction to hear the claim."
In our judgment it is clear from that paragraph and the Extended Reasons read as a whole that the Chairman correctly had section 68 of the Race Relations Act 1976 in mind and applied the provisions of that section and thus directed himself to the right statutory tests.[13]Further in our judgment it is apparent from the Extended Reasons that in respect of the second stage relating to extension of time the Chairman correctly took an "in all the circumstances approach" which had regard, amongst other things, to the general background leading up to Mr Malhotra's dissatisfaction with and complaints against Price Waterhouse, the nature of the complaints set out in the Originating Application and the qualifications and experience of Mr Malhotra.[14]In our judgment this accords with the relevant statutory provisions and the correct approach to them as is set out in respect of the same provisions contained in section 76 of the Sex Discrimination Act 1975 in the decision of this Tribunal in Hutchison v Westward Television [1977] ICR 279, in particular at 282 A to F which is in the following terms:
"The words 'in all the circumstances of the case' refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in section 76(5). 'The case' does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand. The second matter to which we would draw attention is that this is a new, or relatively new, statute. The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the industrial tribunal to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words being encrusted by the barnacles of authority. The industrial tribunal is to do what it thinks is fair in the circumstances. In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on. Certainly it is not required at that stage to try the complaint. The third thing which we have to say about section 76(5) is this. Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."
[15]As appears from that citation the task of an appellant in challenging a decision of an Employment Tribunal on the question whether or not it should proceed to hear a case out of time is not an easy one.[16]In our judgment points which are of particular relevance in this case are(i) the date of the alleged discrimination and thus when the act complained of by Mr Malhotra was done (Point 1) and(ii) if that date is outside the three month statutory time limit, and thus in respect of whether there should be a just and equitable extension (Point 2) Mr Malhotra's explanation and thus his reasons as to why he did not present the claim in time. In our judgment it is apparent from paragraphs 4 to 16 the Extended Reasons that in reaching his conclusions the Chairman of the Employment Tribunal considered both these points and other points. These paragraphs are in the following terms:
"4. The Applicant submitted an application for those posts by letter dated 9 May 1997 and he enclosed a copy of his CV (page 22 of A1). The Applicant was anxious to be considered in particular for the positions ST1 and ST4. Incidentally position ST4 requires someone with specialist knowledge of human resources and employment law. 5. On 5 May 1997, after having spoken on the phone with Mr Macleod, the Applicant wrote to Mr Macleod confirming that in his view he could take responsibility for both positions referred to as ST1 and ST4 and expressed his confidence that he 'would excel in all the skills required to match the roles envisaged in the position'. 6. The Responsibility for selecting a short list of candidates from the application lay with Mr Macleod. The Respondents had received well over 650 applications. In accordance with his normal procedure Mr Macleod waited until all applications had been received before sifting through them and compiling a short list. A short list of 70 applicants was prepared. The Applicant's name was not selected and did not go forward into that short list. 7. On 30 June 1997 (page 24 of the Applicant's bundle) Mr Macleod wrote to the Applicant: 'Further to our recent exchange of letters we have now completed our initial review of all the applications for this advertisement. The quantity was larger than we had anticipated, which explains the slight delay in my response to you. I am afraid that the outcome of this review has been that we do not see a sufficiently close match between our needs and your background at this stage. We will therefore not be inviting you to attend for an interview. Whilst this will no doubt be disappointing I would like to thank you for your interest in Price Waterhouse and to wish you well for your ongoing search'. The Applicant received that letter on or about 3 July, that is the date of the act of alleged discrimination. The Applicant was unhappy about the outcome and there were subsequent communications between the Applicant and the Respondent on or about 7 July when there was a telephone conversation between the Applicant and Mr Bell. On 17 July the Applicant wrote by fax (copy page 27 of A1) to Mr Bell indicating that he would appreciate a meeting with Mr Bell and with Miss Hunt at the earliest possible convenience. 8. The Applicant in his evidence stated that there had been a promise that his CV and application form might be circulated by the Respondents and the Applicant considered for some other position in Price Waterhouse. Mr Bell denies this. In any event the Applicant had made it quite clear to Mr Bell that his concern was about the jobs that he had actually applied for ST1, ST4 and ST5. I prefer Mr Bell's recollection of events. 9. On 18 July 1997 Mr Bell wrote to the Applicant. This was a clear indication that the Applicant's application for the jobs advertised with the Respondents in The Times in May was going no further. 10. The Applicant subsequently contacted Mr Brooks, Chairman of the Respondent company. That letter was referred back to Mr Bell who responded by letter of 1 August. 11. The Applicant contacted the Commission for Racial Equality in late July 1997. He was concerned that the failure to shortlist him was discriminatory and he sought advice from them. 12. In the Respondent's bundle at pages 29 and 30 are copies of correspondence exchanged between the Respondent's solicitors and the Commission for Racial Equality. The Commission in a letter dated 22 January, a letter which appears to come from Corinne Forbes although signed on her behalf, confirmed that the Applicant had contacted them in July and confirmed that they had advised the Applicant that there were strict time limits involved and that an application had to be made within three months less one day of the alleged incident occurring. 13. The Applicant points out that it was the CRE who assisted him in completing the Originating Application and it was they who lodged the papers at the Tribunal. The Applicant in his evidence stated that he was not 'au fait' with all English legal procedures and had understood that the CRE was the body which would deal with the application. That I cannot accept, one of the jobs the Applicant applied for required a knowledge of employment law. 14. The question I have to answer is first was the application lodged within three months of the date of the alleged act of discrimination and secondly, if not, whether it is just and equitable to extend the period to enable the Tribunal to have jurisdiction to hear the claim. 15. I remind myself that the complaint is that the Applicant was not shortlisted for the jobs which he applied for, the ST1, ST4 and ST5 posts. The Applicant became aware of the fact that he was not shortlisted by letter dated 30 June which he received on 3 July 1997. That is, therefore, the date that the three month period commenced and therefore any application to have been in time would have needed to have been received at the Tribunal on or before 2 October 1997. In this particular case there were discussions between the Applicant, after the initial rejection as the Applicant was very determined to obtain a job with the Respondents, there were a number of telephone calls the Applicant pleading to be given an opportunity for employment with the Respondents or at least to have an interview. It is quite clear from the correspondence that any hopes that the Applicant may have had most definitely came to an end on receipt of the letter of 18 July which the Applicant said he would have received on 19 or 20 July. So giving the Applicant the benefit of the doubt the three month period from 20 July would expire on 19 October 1997. In either case the application is not lodged in time. Considering whether or not it would be just and equitable for me to extend the time I take into account that the Applicant received advice from the Commission for Racial Equality, that the Applicant is an intelligent man with a number of degrees, that the Applicant was applying for a post which required specialist employment law knowledge. Taking all of those matters into account I did not consider that it is just and equitable to extend the period in which the application can be lodged. 16. Therefore the application having been received at the Tribunal on 27 October 1997 it is out of time and the Tribunal therefore has no jurisdiction to hear the Applicant's claim which must be dismissed."
The Date - Point(1)[17]In his Originating Application dated 24 October 1997 which was prepared by Mr Malhotra himself he states that the matter about which he was complaining took place on 1 August 1997. If that is correct his application would have been in time.[18]The Chairman of the Employment Tribunal did not accept that the matter complained of took place on 1 August 1997.[19]In the Extended Reasons the Chairman sets out the terms of the letter of 30 June 1997. He also refers to two other letters from Price Waterhouse to Mr Malhotra, namely letters dated 18 July and 1 August 1997.

(a) The letter dated 18 July:

"Following your recent phone calls querying why your application to PW for advertised jobs had been unsuccessful. I have again considered your requests for an introductory interview. We aim to operate a fair recruitment process and in my view your applications have been treated fairly in relation to the many others we receive. Candidates who meet the key criteria for vacancies are selected for interview, but we cannot meet every applicant who asks for special treatment - partly in fairness to those who have not been invited and partly because of the extra time involved, both in meetings and administration. Consequently I will not agree to a meeting with you, and consider this correspondence closed. Your application papers will of course be kept on file for future reference.

(b) The letter dated 1 August: "

Your fax of 23 July 1997 to Mr Brooks has been passed to me for attention as he is overseas and your concern falls within my remit as Director of Recruitment. As discussed, in our previous contact and as set out in my letter of 18 July 1997, I confirm that your applications for the varied positions you have sought in response to advertised vacancies have been considered fairly and rejected on their merits, as with all applications we receive. Price Waterhouse operates an Equal Opportunities policy. I am satisfied that our selection processes are fair, unbiased, and in accordance with our non-discriminatory policies."[20]Both these letters were written by a Mr Keith Bell who is the Director of Recruitment of the Respondents. We were told by Mr Malhotra that Mr Brooks is the Chairman of Price Waterhouse and his fax to Mr Brooks dated 23 July 1997 so describes him.[21]In our judgment the Chairman of the Employment Tribunal took the correct approach on this point.[22]During argument before us both sides placed reliance on section 68(7), and in particular section 68(7)(b) of the Race Relations Act 1976. Counsel for Price Waterhouse also referred to Harvey on Industrial Relations and Employment Law Paragraph T - 119 and through that to Cast v Croydon College [1998] IRLR 318 .[23]Mr Malhotra argued that if the Chairman accepted that the act complained of might extend over a period ending with the receipt of the letter dated 18 July 1997 he was wrong not to go on and conclude that the period also extended over the period ending with the receipt of the letter dated 1 August 1997. In contrast Counsel for Price Waterhouse argued that the Chairman was over generous in going beyond the letter dated 30 June 1997 and indeed, submitted to us that the act complained of took place when that letter was written rather than when it was received.[24]In our judgment there may be some force in the submissions made on behalf of Price Waterhouse. However, having regard in particular to the second sentence of the first paragraph of the letter dated 18 July which is in the following terms: "I have again considered your requests for an introductory interview" we have concluded that in the circumstances of this case the Chairman of the Employment Tribunal took the correct approach in giving Mr Malhotra the benefit of the doubt in respect of that letter. We say this because this sentence could indicate that there had been some reconsideration of his applications following the letter dated 30 June 1997.[25]However in this case nothing turns on the questions whether the date should be assessed by reference to the dates the letters are sent or the dates on which they are received. Additionally little turns on whether the date should be identified by reference to the letter dated 30 June or the letter dated 18 July because on either basis Mr Malhotra commenced his proceedings outside the three month statutory time limit. It follows, in our judgment that in the overall context of section 68 (and thus when section 68(1) and 68(6) are considered together) if the Chairman of the Employment Tribunal (or we) had accepted the argument advanced by Price Waterhouse as to the date (i.e. that it was 30 June) it seems to us that it would have been appropriate for him (and us) to have regard to the argument referred to in paragraph 24 in considering whether it would be just and equitable for the Employment Tribunal to hear the case notwithstanding that it was not brought within the three month time limit.[26]The crucial issue as to the date of the act complained of and thus the expiry issue therefore remains, whether it can be said that the act complained of continued until receipt of the letter dated 1 August 1997.[27]In our judgment this is essentially a matter of construction of the correspondence and in particular the letters of 30 June, 18 July and 1 August from Price Waterhouse to Mr Malhotra. Of course that correspondence has to be read in its context and in particular in the context of the letters written by Mr Malhotra to Price Waterhouse which we have not set out but which are in our bundle.[28]In our judgment it cannot be said on any sensible reading of the letter dated 1 August 1997 that following the letter 18 July 1997 there was any reconsideration of the position by or on behalf of Price Waterhouse. We have based this conclusion solely on a reading of the correspondence against the background known to the parties up to the receipt of the letter of 1 August.[29]It follows in our judgment that there is no reasonably arguable point that the act complained of by Mr Malhotra extended over a period up to 1 August 1997. Further Background Facts relevant to Point (2) - Just and Equitable Extension[30]Mr Malhotra's bundle of documents before us and the Employment Tribunal contains a copy of an application made by him to the Commission for Racial Equality for assistance and which he signed on 27 September 1997, he says this:
"One of the partners of Price Waterhouse wrote to me on 1 February 1995 and I quote, 'I think one of the problems is that your job history and the fact it is 'probably ahead of its time' ... Recently, I applied for positions ST1, ST4 and ST5 which were advertised by Price Waterhouse. I enclose our correspondence in this respect. ... I decided to take a stand when I was not again called for an interview and finally rejected on 18th July 1997 for positions ST1, ST4 and ST5. See enclosures."
[31]It is apparent from that application that on 27 September 1997 Mr Malhotra's interpretation of the correspondence accorded with that which both we and the Chairman of the Employment Tribunal have put on it, namely that his application had been finally rejected by the letter of 18 July 1997. We have not relied on this statement of his understanding as an aid to determining the construction and effect of the correspondence but in our judgment it is relevant to the issue whether it would be just and equitable for the Employment Tribunal to hear Mr Malhotra's claim against Price Waterhouse.[32]To support his contention that the date for the purposes of section 68(1) of the Race Relations Act 1976 was 1 August 1997 and that this was his interpretation of the correspondence, in the course of his reply before us Mr Malhotra referred us to the letter dated 1 February 1995 (mentioned in the application to the Commission for Racial Equality) to indicate that in the past he had received some encouragement from a partner of Price Waterhouse. He went on to say that in 1997 he had had some discussions with the same partner and also that before he wrote to the Chairman of Price Waterhouse he had had discussions with Mr Bell who, he said, was waffling. He went on to assert that because of the discussions he had had with Mr Bell he decided to go to the top of the organisation and that it was the refusal from the top on 1 August 1997 which constituted the act complained of. He assured us that this was true.[33]In making these assertions Mr Malhotra also told us, and we accept, that his evidence before the Employment Tribunal contained similar assertions. As to that we note that at paragraph 8 of his Extended Reasons the Chairman of the Employment Tribunal preferred Mr Bell's recollection of events relating to his discussions with Mr Malhotra to that advanced by Mr Malhotra.[34]Further, in our judgment, it is right for us to record that we do not accept Mr Malhotra's assertion to us to the effect that when he wrote to the Chairman of Price Waterhouse he did not think that his applications had been finally rejected. We reached this conclusion for the following reasons:(a) this assertion is contrary to Mr Malhotra's views as expressed in the application to the Commission for Racial Equality signed by him on 27 September 1997,(b) in our view this assertion is contrary to the clear effect of the letters dated 30 June and 18 July 1997, and as the Chairman of the Employment Tribunal points out Mr Malhotra is a man who is well capable of understanding those letters, and(c) this assertion and explanation was not offered earlier during the hearing before us. As to point (c) we add that given the fact that Mr Malhotra was acting in person we would not have placed much reliance upon it if the question as to why Mr Malhotra had included the date 1 August 1997 in his Originating Application had not been the subject of earlier submission and assertion by Mr Malhotra and questions by us which took place before our attention had been drawn by counsel for Price Waterhouse to the application made by Mr Malhotra to the Commission for Racial Equality dated 22 September 1997.[35]In those earlier exchanges Mr Malhotra concentrated on the advice he received from the Commission for Racial Equality to the effect that the effective date was 1 August 1997. As to that he asserted and accepted that he was given that advice on 22 October 1997 and told us that that was the only occasion upon which he had had a meeting with Corinne Forbes at the Commission for Racial Equality. It is to be noted, as was pointed out during the course of the hearing, that this meeting did not take place until after the expiry of the three month time limit referred to in section 68(1) of the Race Relations Act 1976, if the relevant date was either of the two alternatives identified by the Employment Tribunal, namely 3 July 1997 or 19 or 20 July 1997.[36]In rejecting Mr Malhotra's assertion to the effect that prior to the expiration of the statutory three months time limit if it begins with the letter dated 18 July 1997, or the receipt of the letter of that date (which the Employment Tribunal took to be 19 or 20 July 1997) he (Mr Malhotra) had reached the conclusions that:(a) his applications were not finally rejected by the letter dated 18 July but by the letter dated 1 August 1997, and(b) it was the letter dated 1 August which set the date for the purposes of calculating the time limit in which he had to make his claim, we record that we are satisfied that Mr Malhotra was not deliberately seeking to mislead us. In our judgment he is now convinced that the relevant date is 1 August 1997 (or the date when that letter was received) and this has coloured his recollection of events.[37]Before turning to point (2) we record that the letter dated 22 January 1998 referred to in paragraph 12 of the Extended Reasons is in the documents before us and that its effect is accurately recorded in paragraph 12 of the Extended Reasons. It follows from that that the evidence before the Employment Tribunal was that Mr Malhotra was aware in July that there were strict time limits for bringing a claim under the Race Relations Act 1976. We add that the letter dated 22 January 1998 asserts that Mr Malhotra was told that his application had to be submitted to the Tribunal within three months less one day of the alleged incident occurring. Before us Mr Malhotra accepted that he had spoken to Corinne Forbes at the Commission for Racial Equality in July and did not dispute that she had told him that there were time limits. This discussion was, as the letter dated 22 January 1998 confirms, on the telephone. As the Chairman of the Employment Tribunal points out in paragraph 12 of his Extended Reasons the letter dated 22 January 1998 is not signed by Corinne Forbes but is signed on her behalf. As we understood him Mr Malhotra asked us to draw an inference from this fact that this letter does not accurately record the position. We do not draw this inference, not least because Mr Malhotra confirmed that he had spoken to Corinne Forbes in July 1997 and did not dispute that she had advised him that there were strict time limits. Point (2) - Just and Equitable Extension[38]As to this we can detect no error of law in the approach taken by the Chairman of the Employment Tribunal. Indeed, we would go further and record that, in our judgment, the conclusion he reached was plainly correct. Of particular relevance to these conclusions are the facts that in our judgment:(a) the identification of the date of the act complained of turns primarily on correspondence,(b) in July Mr Malhotra informally consulted the Commission for Racial Equality and was told that there were strict time limits,(c) in September Mr Malhotra thought that the starting date for such time limits was 18 July, and(d) Mr Malhotra was applying for senior posts and his case is that he is a man of intelligence and common sense well able to ascertain and comply with relevant time limits both in connection with legal proceedings and business decisions. Bias and Procedural Unfairness[39]Our findings on the application of section 68 of the Race Relations Act 1976 by the Chairman of the Employment Tribunal are plainly not a good start for Mr Malhotra in respect of his appeal based on bias and procedural impropriety.[40]In our judgment the relevant approach to allegations of bias based on the conduct of members of an Employment Tribunal at the hearing is to be found in Peter Simper & Co Ltd v Cooke [1986] IRLR 19. Paragraph 10 of the judgment in that case is in the following terms:
"We accept that there is jurisdiction for a Tribunal to discontinue a hearing and order a re-hearing ( Charman v Palmers Scaffolding Ltd (1979) ICR 335 and Automobile Proprietary Ltd v Healy (1979)ICR 809 ). But those cases also make it clear that that power should be exercised most sparingly and only for very good reason; a bare allegation of bias is not sufficient. We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which falls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."
[41]This is a case specifically directed to this jurisdiction.[42]In our judgment the objective approach set out in the Peter Simper case accords with later authority in the House of Lords regarding issues concerning bias (see Reg v Gough [1993] AC 646 and Reg v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [1999] 2 WLR 272 ).[43]Counsel for Price Waterhouse referred us to a decision of this Tribunal, namely Brooks Bank v Buckinghamshire County Council EAT/504/97 when, in respect of apparent bias, this Tribunal adopted the approach of Lord Goff in Reg v Gough [1993] AC 646 which is summarised in the headnote at 647 in the following terms:
"... The test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand. ..."
In his speech in the Pinochet case at [1999] 2 WLR 284 E/G Lord Browne-Wilkinson raises, but leaves open, the point that this test may need to be reviewed in the light of subsequent decisions. The possible review is to determine whether that test should be modified to make the relevant test the question:
"whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fairminded and informed member of the public that the judge was not impartial"
In our view it is not easy to identify in the abstract the distinctions between an objective test based on the appearance of a real danger of bias and one based on reasonable apprehension or suspicion of bias save, in the general sense, that the former is a more stringent and difficult test to satisfy for a person alleging apparent bias. In this case it has been unnecessary for us to consider the distinctions between the tests because we have adopted the course of considering first what is in our view the less stringent test (i.e. one based on reasonable apprehension or suspicion of bias) and have concluded on that basis that Mr Malhotra has failed to establish bias. It follows in our view that he also fails the test based on the need to establish a real danger of bias.[44]In our judgment, understandably, Counsel for Price Waterhouse had understood that Mr Malhotra was making a case based on apparent rather than actual bias. However, during his oral submissions Mr Malhotra made a general point relating to bias which we think could properly be characterised as an allegation of actual bias. Further, we think that this allegation is an extension of one of the grounds contained in Mr Malhotra's original Notice of Appeal which was in the following terms:
"How can a white Chairman know and feel when the 'Date of Incident' regarding the act of direct / indirect discrimination occurred."
[45]This allegation also reflected much of Mr Malhotra's complaint against Price Waterhouse. The allegation was to the effect that the racial background, education, upbringing and prejudices of those who make selections for senior posts in organisations such as Price Waterhouse are such that they are biased with regard to someone, like Mr Malhotra, who is from a different racial background. During his submissions to us Mr Malhotra also applied this approach to members of the High Court Bench, and as we understood him, the Chairman of the Employment Tribunal, to support a submission that in making their decisions concerning someone like Mr Malhotra, who comes from a different racial background, they are inevitably biased.[46]We put it to Mr Malhotra that this was, in effect, a submission that we should find that the Chairman of the Employment Tribunal was biased because of what Mr Malhotra perceived to be his background and the fact that he found against Mr Malhotra. Mr Malhotra did not really dispute this and we think it is an inevitable consequence of this part of his submissions.[47]We reject these submissions made by Mr Malhotra. In doing so we naturally recognise that all humans are affected by their background and upbringing and have some personal preferences and prejudices. However, in our judgment, in reaching decisions on specific matters, for example:(a) who should be appointed to a senior job, and(b) the application of a statutory test, and(c) who should win a case before the Courts decision-makers can and regularly do apply their minds strictly to the issues and merits relevant to the particular decision.[48]In our judgment it is open to us to reach our conclusions relating to the particularised allegation of bias made by Mr Malhotra in his Amended Notice of Appeal without hearing oral evidence. We have therefore reached our conclusions having regard to the documentary evidence before us, the submissions made by Mr Malhotra (which in parts effectively contained evidence, albeit that he was not sworn before us) and the submissions made on behalf of Price Waterhouse.[49]Our main reasons for taking this approach in this case are as follows:(a) having rejected Mr Malhotra's assertion of actual bias we are concerned with an objective appraisal,(b) the opinions and impressions of the parties and any observer they produce and whose observations they seek to rely on are therefore not decisive although, of course, they are of some relevance,(c) it will be an unusual case where it would be necessary to determine whether the assertions made by the parties or witnesses they produce do not in fact represent their true beliefs and opinions and thus, in other words, whether they are not telling the truth as to their opinions and beliefs, and(d) this is not a case in which we are of the opinion that a dispute as to what can be described as 'primary fact' (e.g. as to an incident or exchange during the hearing) needs to be resolved.[50]In this context we mention that we are aware of a decision of this Tribunal in Roberts v United Friendly Insurance Plc , Appeal No: EAT/436/95. In our judgment this case refers to earlier authority which can be said to go both ways but do not support a conclusion that members of an Employment Tribunal cannot be compelled to give evidence. Whilst we agree that:(i) it is undesirable that members of a Tribunal should be called upon to give oral evidence,(ii) generally they should not have to do so, and(iii) generally, as here, allegations of bias and procedural unfairness made against members of an Employment Tribunal can, and should be dealt with by this Tribunal without hearing oral evidence we do not agree that as a matter of policy or public interest Members of an Employment Tribunal should never be ordered to give oral evidence on such issues.[51]In our judgment it is possible that in some (albeit exceptional) cases such a policy could lead to allegations of bias and unfairness not being dealt with fairly. A basic proposition of our present law is that parties should have a fair trial and this is also part of the European Convention on Human Rights (see Article 6).[52]We add that in our judgment this is a different issue to the question whether the notes of evidence made by the Employment Tribunal should be conclusive in the event that parties do not agree that they contain an error.[53]We also comment that in our judgment if a Chairman of an Employment Tribunal does not specifically dispute an allegation made by an Appellant in his affidavit relating to allegations of bias (or anything else) it does not follow that that allegation should be accepted.[54]In our judgment the factual allegations in support of a submission, or finding, of bias must be proved on the balance of probability. The burden is on the person alleging bias, here Mr Malhotra. The approach to making findings on the balance of probability has been recently considered by the House of Lords in Re H (Minors) (Sexual Abuse: Standard of Proof) [1986] AC 563, in particular at pages 586/7 where Lord Nicholls points out that in assessing the probabilities a Court or Tribunal will have in mind, as a factor, to whatever extent is appropriate in a given case, that the more serious the allegation the less likely it is that the event occurred, and, hence, the stronger should be the evidence before the Court or Tribunal concludes that the allegation is established on the balance of probability. In our judgment this comment applies to allegations of bias and inappropriate conduct by members of Employment Tribunals.[55]On the above bases we turn to consider the allegations made by Mr Malhotra. In this exercise we are grateful to Counsel for Price Waterhouse because, in our judgment, in his skeleton argument he has correctly identified the various allegations made by Mr Malhotra in his Notice of Appeal, Amended Notice of Appeal, affidavits and other documents. We shall adopt that identification:(a) As regards the initial decisions on time limits (i) The allegation that there is no complete record of the preliminary hearing from a tape recording or independent person. In our judgment this is not an allegation which demonstrates any bias. (ii) The allegation that the Chairman was a white male hearing an Applicant of Indian origin. In our judgment this is an allegation by Mr Malhotra that could be classified as an allegation of actual bias. We have already dealt with it and rejected it. (iii) The allegation that the Chairman twisted the facts as recounted by the Applicant. In our judgment this allegation is not made good. It was clearly open to the Chairman to disbelieve Mr Malhotra and to accept evidence given by the witnesses he heard who were called on behalf of Price Waterhouse. In any event, as we have already explained, in our judgment the factual elements of the Chairman's decision turn on an interpretation of the correspondence and effectively accepted facts (e.g. that Mr Malhotra had consulted the Commission for Racial Equality in July on an informal basis and at that time had been told by them that there were strict time limits). (iv) The allegation that the Chairman constantly interrupted the Applicant. We accept that the Chairman would have interrupted the Applicant and that Mr Malhotra feels that he did so constantly. However, in our judgment, it is part of the function of a Chairman to ensure that litigants (whether they are represented or not) deal with relevant points (and so far as practical, relevant points only). In our judgment it is clear from the Extended Reasons that the Chairman in this case identified the relevant points and, having seen Mr Malhotra present his case before us, we are quite confident that he put before the Chairman all matters that he wanted him to consider in respect of those points. (v) The allegation that the Chairman failed to give the Applicant assistance as a litigant in person. In our judgment this is simply a bare allegation of a subjective view which is not made out. Mr Malhotra's case is that he is an intelligent man who is more than capable of being appointed to positions requiring skill and the ability to express oneself. He demonstrated to us that he is quite capable of expressing himself clearly and in "getting his points over". Further, as we have said, we are satisfied that the interruptions of the Chairman were to focus attention on the relevant matters and that Mr Malhotra "got his points over" on those matters. (vi) The allegation that the Chairman's "demeanour" suggested bias. Again in our judgment this is simply a bare allegation of a subjective view which is not made out. In respect of this allegation (and the other points on bias made by Mr Malhotra) we comment that in our judgment the statement dated 25 February 1998 made by a Mr Tim Williams which Mr Malhotra has put before us, does not establish bias. In this statement which is not sworn Mr Williams says that he was an observer at the preliminary hearing and that the Chairman hearing the case appeared to him to be biased. As we have explained, we proceed on the basis that this was the subjective view of both Mr Williams and Mr Malhotra. However, as we have further explained, this does not determine the issue. In our judgment on the evidence before us we have concluded on the balance of probability that an objective observer with a knowledge of the issues would not have concluded that the hearing was being conducted unfairly or that the Chairman was biased.(b) As regards failure to exercise the section 68(6) discretion. (i) The allegation that the Chairman has "totally misinterpreted" the law under section 68 of the Race Relations Act 1976. For the reasons we have given in our judgment this is simply wrong. (ii) The allegation that the Chairman accepted prepared statements from the Respondents when two of the witnesses lied on oath. In our judgment it is part of the function of a Chairman of an Employment Tribunal to determine issues of fact. (iii) The allegation that the Chairman failed sufficiently to consider the Commission for Racial Equality dimension and the involvement of the Commission for Racial Equality. In our judgment the Extended Reasons show that this is simply wrong. Further, we comment that in our judgment Mr Malhotra's arguments based on the involvement of the Commission for Racial Equality are somewhat disingenuous. This is because he accepted before us, and indeed accepts in his original Notice of Appeal, that he did not receive any advice from the Commission for Racial Equality as to the relevant date until 22 October 1997. It follows that any advice he received on that date as to the relevant date was after the three month time limit had expired if the relevant date was 30 June 1997 or 18 July 1997 or the date upon which the letters of those dates were received by Mr Malhotra. Further, so far as the involvement of the Commission for Racial Equality is concerned, it should be remembered that in the letter dated 22 January 1998 they assert that Mr Malhotra had contacted them informally in July and that he had then been advised that there was a strict three month time limit. Further, in making his application to the Commission for Racial Equality Mr Malhotra had identified that he was finally rejected on 18 July 1997. (iv) The allegation that the Chairman as a white male is not able to " ... know and feel when the 'Date of Incident' ... occurred". In our judgment this is an allegation by Mr Malhotra that could be classified as an allegation of actual bias. We have already dealt with it and rejected it. (v) The allegation that the Chairman failed to exercise his discretion. In our judgment the Extended Reasons show that the Chairman did exercise his discretion and, in our judgment, in doing so he made no error of law and indeed clearly reached the correct conclusion. (vi) The allegation that the Chairman failed to consider all the facts. In our judgment the Extended Reasons show that the Chairman did consider the relevant facts and that he took the correct approach. Amongst other things they show that: (a) he had regard to the nature of Mr Malhotra's complaint and the background, (b) he had regard to the relevant letters and refers to the letters of 30 June 1997, 18 July 1997 and 1 August 1997,(c) he had regard to the involvement of the Commission for Racial Equality and(d) he had regard to Mr Malhotra's education and intelligence. Finally, we mention that an issue was raised particularly on the preliminary hearing as to whether during the hearing before the Employment Tribunal Mr Malhotra had stated that he had worked for, or that he had a background with, East European Secret Services. Mr Malhotra denies that he ever said this and he is supported in this assertion by a further unsworn statement from Mr Tim Williams and from the fact that the notes of a Karen Birch, who is a barrister employed by Price Waterhouse who attended at the Employment Tribunal, do not indicate that he made any such assertion. Although in our judgment the point is a "red herring" we mention that it arose because it was raised by the Chairman in his comments dated 21 May 1998 on Mr Malhotra's first affidavit and in the Chairman's later comments dated 16 November 1998 he states as follows:
"I have been through my notes - I did not record the comment about the Applicant advising East European Secret Services but I do recall that he said it - it struck me a being quite unusual - it was irrelevant to the issues and was not necessary to record. I did record that Mr Malhotra gave evidence that he had advised 'the Polish Chamber of Commerce and a Polish Minister'."
[56]As appears from that comment it is apparent that the Chairman, in our judgment correctly, also treated his understanding that Mr Malhotra had asserted that he had worked for East European Secret Services as irrelevant.[57]We record that we have proceeded on the basis that Mr Malhotra made no such assertion and that in our judgment on the balance of probability in asserting that he had done so in his letter dated 21 May 1998 the Chairman did not remember these events of the hearing correctly or misunderstood something that Mr Malhotra said during the hearing. Overall Conclusion[58]For the reasons we have given we dismiss this appeal. We add that, notwithstanding the fact that on the preliminary hearing this Tribunal allowed this appeal to go forward, we have concluded that this appeal was always doomed to fail.