MRS A DEY v HOUNSLOW LANGUAGE SERVICE [1999] UKEAT 555_99_0812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 555_99_0812Case No Appeal No. EAT/555/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A DEYAPPELLANTHOUNSLOW LANGUAGE SERVICERESPONDENT
Before
His Honour Judge A WilkieDate 8 December 1999
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON JUDGE WILKIE QC : This is an appeal brought by Mrs Aparupa Dey against a decision of the Employment Tribunal sitting at London (South), under the chairmanship of Mr Milton, which unanimously decided that she was fairly dismissed by the respondent, the Hounslow Language Service, and dismissed claims of race discrimination and victimisation brought against that body. The hearings took place over eight days between 1st and 11th February 1999. The full decision, which runs to 17 pages, was sent to the parties on 2nd March 1999. Mrs Dey submitted a Notice of Appeal, which runs to 12 pages. That Notice of Appeal is dated 8th April 1999. Amongst the points that she makes in that Notice of Appeal were complaints about the improper conduct of the Industrial Tribunal, as she called it, due to the Chairman being biased. Very properly, she has submitted an affidavit, sworn on 7th May 1999, running to 10 pages in which she goes on oath as to complaints that she makes against the Chairman.[2]In preparation for this hearing Mrs Dey has very helpfully, and again entirely properly, submitted a skeleton argument which encapsulates, in 40 numbered paragraphs, the essence of her case as exemplified in the other two documents. To that skeleton argument she has appended a number of documents, in particular the first page of the minutes of the disciplinary/grievance hearing held on 23rd September 1997. She draws our attention to the fact that this document was before the tribunal but that it has at its head the following hand-written words:
"THESE ARE NOT APPROVED MINUTES AND MAY BE AMENDED"
She drew our specific attention to this document in support of her contention that the minutes of those disciplinary/grievance hearings were manipulated by the respondent and in support of her contention that the tribunal was perverse or biased in relying on the minutes of those hearing.[3]Mrs Dey has before us, courteously and with commendable brevity, developed her points on appeal in oral argument. She has done so extremely bravely because it is plain to us that she feels very strongly about the way that she says she was treated both by the respondent and in particular by tribunal. Indeed, on more than one occasion she was overcome by the emotion of recollecting how she had been treated, and she was assisted by her husband who has given her support by being here.[4]In essence, the complaint of Mrs Dey is that the tribunal wholly misconducted this hearing and she focuses on the conduct of the Chairman. She says that from the outset he was hostile to her; he ridiculed her for on occasions having taped meetings or conversations with other employees of the respondent. She says that, notwithstanding the fact that the hearing took place over eight days, he did not give her sufficient time to develop her case because he kept saying to her that they had read her statement, read the documents and therefore did not need her to explain orally what they had already read. She complains that he was continuously interrupting her. She says that such time as they did take to consider issues were, to a large extent, taken up with issues which were utterly irrelevant and that they failed entirely to address relevant issues.[5]In Mrs Dey's oral argument she encapsulated what, in truth, is the essence of her claim against the respondent, namely that she was the victim of a racially motivated and inspired conspiracy. She says she was not the only victim of this, but there were two others person of Asian ethnic origin who had been dismissed at about the same time as her.[6]Given the nature of the allegations, which Mrs Dey has made against the Chairman, in accordance with proper and common practice, her contentions were placed before the Chairman for him to have the opportunity to respond to them. He did so by letter to the Registrar of the Employment Appeal Tribunal dated 22nd October 1999. In that letter he point blank denies that he was biased against the appellant, racially or otherwise, or that he expressed himself in anyway to indicate that he was biased. In addition, he did acknowledge that, as is his practice, particularly in a lengthy case, he may well have asked questions about issues that seemed to him and his colleagues to be important and that this was part and parcel of the ongoing process of exploring particular areas, having discussed the matters over lunch or in the evening. He does acknowledge that the conclusions of the tribunal were based principally on the evidence of the tapes, which the appellant placed before the tribunal and upon which she sought to rely. He denies the contention that any of their conclusions reflected in anyway upon Mrs Dey's mother-tongue and that the conclusions about her tone of voice and what the tribunal held to be a confrontational form of words was something which was clear from the tapes and transcripts.[7]We must emphasise that the role of the Employment Appeal Tribunal is strictly limited. We can only entertain an appeal either if there is a point of law or if the conclusions of the tribunal as to matters of fact were simply perverse or, alternatively, if there is either the reality or the appearance of bias. As far as that last category of appeal is concerned, where contentions are raised by way of an appeal as to the alleged improper conduct of the tribunal as a whole or a particular member of the tribunal, it is right and proper that they are placed on affidavit and the member of the tribunal or the Chairman of the tribunal has the opportunity to comment on it.[8]It is the judgment of this tribunal that there is absolutely nothing in the point which Mrs Dey raises concerning bias or an appearance of bias of this extremely experienced and able tribunal Chairman.[9]It is a matter of common and sensible practice for the tribunal members and the Chairman to seek to elucidate from the parties what exactly it is that they are saying and to test what they are saying so that they may understand and form a view. That necessarily does involve, to some extent, intervention by way of asking questions or asking for elucidation and that is what Mr Milton has recorded as having happened.[10]It is clear to us, from reading this long decision, that this tribunal found this particular case virtually unique and the evidence particularly stark and compelling. The appellant had been employed since 1988. She was formally dismissed on 22nd October 1997, her last day of service being 31st December 1997. This followed upon a combined grievance and disciplinary hearing on matters of complaint made by the respondent set out in a letter of 4th September 1997. The complaints against her were that she had refused to work to the direction of the appropriate line manager; that she had acted in an unprofessional manner in her dealings with the Head of Department and her colleagues; and lastly, that when, as a consequence of her behaviour, she was required to enter into consultation as to transfer from one school to another she refused to entertain discussions about that transfer. In addition, and uniquely in the experience of that Employment Tribunal, the complaint was made against the appellant that she had made allegations of racism and conspiracy against her colleagues and this was expressly relied upon as a ground for dismissal.[11]The Employment Tribunal is charged with hearing the evidence and coming to findings of fact. In this case, the tribunal said, with regret, that it found the evidence to be so overwhelming and clear-cut that they did not accept the appellant's allegations. They found that she was fairly dismissed by reason of her own misconduct and shortcomings as a teacher and, by reason of the fact that on numerous occasions she made allegations of racism and conspiracy against a variety of her colleagues without any foundation which were quite plainly falsely made and made in bad faith. The Employment Tribunal also found them to be made falsely and in bad faith.[12]In the decision at paragraph 13 the tribunal state that the principal reasons they found against the appellant were the language that had come out of her own mouth, evidenced by the dozens of documents which she herself had relied on, her own witness statement, her own evidence and the transcripts and content of a number of tape recordings which she had been making covertly from 16th December 1996 onwards. In other words, highly unusually, this tribunal essentially found against this appellant based upon her own evidence, her own documents and her own tapes.[13]Mrs Dey had been suspended from work on 26th March 1997. There was then a considerable delay before the letter dated 4th September setting out complaints, which were to be the basis of the disciplinary hearings. Thereafter, the disciplinary hearings took place and at the end of those proceedings the panel recommended that she be dismissed for gross misconduct. She was dismissed for that reason, albeit she did receive notice and notice pay.[14]The tribunal addressed the question of racial discrimination, which was a complaint made by the appellant. They addressed the principles in the leading decision of King v Great Britain Chins Centre [1992] ICR 516 . They reminded themselves that they should be astute to detect whether the intelligent professional persons against whom the allegation was made might have found devious ways of practising discrimination so as to deceive an outside body such as the Employment Tribunal. They concluded that they had no doubt at all that insofar as decisions were taken unfavourably to the appellant, they were made because of her own behaviour at the relevant time and rejected her contention that she was the victim of either individual racism or a conspiracy of racism.[15]The tribunal also dealt with Mrs Dey's claim of victimisation. This they dealt with on the basis that the respondent accepted that it was acting in part specifically because she had made allegations of racism and conspiracy. They addressed the statutory provisions and in particular section 2(2) of the Race Relations Act 1976 , which reads that:
"Subsection (1) does not apply to treatment of a person by reason of any allegation made by him or her if the allegation was false and not made in good faith."
They recorded that the respondent had grasped the nettle of asserting that the appellant was not entitled to the protection of the act because the allegations she was making were false and were not made in good faith.[16]The Employment Tribunal then set out in a number of paragraphs their reasoning and in paragraph 56 they summarise their conclusion as follows:
"56. The whole tenor of the Applicant's case and the sweeping and indiscriminate variety of the allegations levelled against all members of staff with whom she came into professional contact leads us to what we find is the inevitable conclusion that she must have realised that there was no truth in the allegations which she was flinging in all directions against every variety of ethnic member of staff. We are satisfied that this is one of what we suspect is a very small number of cases where there was no factual foundation at all in the allegations of racial discrimination being made by the alleged victim and furthermore the allegations were false and not made in good faith. We find therefore that that Applicant has not made out her claim of victimisation and she is not indeed entitled to the protection of the act in that regard."
[17]It has to be repeated that those conclusions were conclusions which this tribunal came to, not because they preferred the evidence of one side rather than the other, but because of the material that emanated from the appellant and that she placed before them. In particular the material comprised the tapes and the documents which she placed before them as well as her own witness statement and her evidence to the tribunal.[18]The tribunal then went on to consider the question of unfair dismissal. It reminded itself of the leading authority of British Home Stores v Burchell [1980] ICR 303 and it made, in paragraphs 60 to 62, certain criticisms of the minutiae of the procedures adopted. Thus it cannot be said that this tribunal were entirely deaf to any criticism levelled against the respondent. Where there were mattes of criticism this tribunal was quite prepared to identify them and to make them. However, they went on to consider in paragraphs 63 to 65 the question of fairness or unfairness of the dismissal. They addressed the question of the way in which the respondent ran together Mrs Dey's expressions of grievance as well as the disciplinary matters, all in the course of one combined hearing. They concluded that the dismissal was fair. They did go on in paragraph 65 to express themselves as follows on the question of penalty:
"65. … So far as penalty is concerned if there is any criticism of the Respondents it is perhaps that the Applicant had been allowed to behave in an extreme and irresponsible fashion for such a lengthy period of time that there was a risk that she might have argued that she was beyond reproach. With a more junior and lower level type of employment perhaps there might have just been something in such an argument. In this case however we have no doubt at all that the Application realised that matters were coming to a head and yet she continued relentlessly to behave in an extremely irresponsible and unprofessional fashion. That stance she adopted and if anything aggravated and exacerbated by her behaviour at the hearing. There was not a hint of remorse or apology throughout that hearing as indeed has been her stance in the Tribunal proceedings before us. In all those circumstances it seems to us that dismissal was the only reasonable penalty and the result is that all the limbs of the Burchell test have been made out by the Respondents."
[19]In our judgment, and despite the force with which Mrs Dey holds the contrary view, the decision of this tribunal was a very careful and comprehensive one. It acknowledged, as was the case, that there were features of this particular case which were unique in its experience, but it faced up to those unique and difficult issues in a way which demonstrates that the Chairman and the members of the tribunal were approaching their task in an entirely proper fashion. In coming to this conclusion we have had regard to what is said by Mr Milton in his letter of 22nd October 1999.[20]For our part, Mrs Dey having addressed us for half an hour, we fully accept that she does feel deeply aggrieved as to everything that has happened. She has expressed herself, if we may say so on this occasion forcefully not mincing her words but not in an intemperate fashion at all. Nonetheless, in our judgment she has fallen very far short of establishing to our satisfaction that there are any grounds of appeal which are remotely arguable. Therefore, we conclude that this is not an appropriate case to go to a full hearing. We therefore dismiss this appeal at this preliminary stage.