MR B KANSESE v CIMARA LTD [1999] UKEAT 628_99_1207

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 628_99_1207

Case No Appeal No. EAT/628/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR B KANSESEAPPELLANT

CIMARA LTDRESPONDENT

Before

His Honour Judge D M Levy

Date 12 July 1999

[1]APPEARANCES For the Appellant MR M SAHU (of Counsel) JUDGE LEVY: This appeal rises in the following circumstances. The Appellant saw in the West Ealing Job Centre a job advertised for a warehouseman. As we have learnt in the course of the appeal, he was perhaps somewhat overqualified for that job, having previously had employments at rather larger salaries than a warehouseman would earn and as he himself drew attention, he had several qualifications. He has a Social Science Degree, his finals including mathematics and egometrics. He also holds an NVQ Level 3 in Administration. There were seven or nine applicants for the job – it is not altogether clear on the evidence how many. Two persons were shortlisted, of whom the Appellant was one. Both were interviewed by Denis Griffin ('Mr Griffin'). The other person, a Mr O'Brian ('Mr O'Brian') was selected for the job, but shortly after the Respondent, his employer, found that they had need to contact the Appellant to see if he would like to take the job, and indeed he did. Within a week he was found to be unsatisfactory and his employment ended.

[2]He commenced proceedings by an application to an Employment Tribunal on 14 October 1998. His application is at page 18 of our bundle. He claimed "Racial Dismissal". He gave details of his complaint which run from pages 19 to 23 in the bundle. The Notice of Appearance was entered by the Respondent on 3 November 1998. They made a number of points and concluded in the Notice of Appearance in these terms: "We feel that [the Appellant] was an extremely smart, punctual and polite young man whose talents could be better employed in a different environment. The simple fact of the matter was that we did not want to waste [the Appellant's] time training him in a position that we felt would not suit him or us." - a paragraph, which Counsel for the Appellant submits itself, suggests bias and other evidence adduced by the Respondent should be disbelieved.

[3]After a preliminary hearing before the Industrial Tribunal on 16 February 1999, evidence was heard before the Tribunal from Mr Griffin on behalf of the Respondent and from the Appellant himself. The unanimous decision of the Tribunal was that the Respondent did not discriminate against the Appellant on the ground of race. Extended reasons where given. The decision was sent to the parties on 1 March 1999 and the Appellant promptly applied for a review on 13 March. The application for review starts on page 8 of our bundle and runs to page 15. The application for review was considered by the Chairman who said this in paragraph 5 in his decision promulgated on 30 March 1999:

"Much of the application sets out the Applicant's disagreement with the Tribunal's finding of fact. Those findings of fact were based on the evidence before the Tribunal and I have concluded that a review on that basis has no reasonable prospect of success, the Tribunal being entitled to come to the conclusion to which it came."

There is another paragraph in the review decision which is material to the Appeal. "The [Appellant] also complains that he was not entitled to cross-examine Mr Chapman. However, Mr Chapman was a Respondent's representative and did not give evidence. There is no entitlement to cross-examine a representative. The Chairman also notes that in paragraph (k) of the Application for Review the Applicant states that he was denied the right to cross-examine the Respondent, presumably a reference to the Respondent's witness. This is incorrect; I note from my notes of evidence that the Applicant cross-examined the Respondent's witness, Mr Griffin, from 11.45 am until 12.43 pm." The Application for Review was dismissed.

[4]The Appellant sent to this Court a Notice of Appeal on page 1 and 2 of our bundle on 8 April 1999. The Notice of Appeal reads commences:

"6. The grounds on which this appeal is brought are that the Industrial Tribunal erred in law in that: see attached sheet."

There was in fact accompanying his Notice of Appeal, a bundle containing a large number of documents which the Tribunal accepted with the Notice of Appeal. In the course of this hearing, many of the documents, which has taken something under two hours today, we have looked at many of the documents.

[5]The first ground of appeal was thus expressed:

"(a) The Tribunal denied the Applicant of his legitimate right to cross-examine the Respondent's representative while the Respondent's representative was granted ample opportunity to cross-examine the Applicant."

This was dealt with in the Review and has in fact been very properly abandoned. The grounds of appeal continued:

"(b) The Tribunal misdirected itself in law and misapplied the law [and there is a reference to pages 31(1), 42(5), 33(1), 37(k), 28(i) for details]. (c) The Tribunal never produced evidence to corroborate either its conclusions or findings of fact [and there is reference to other paragraphs in the bundle ]. (d) It suppressed incidents of irrefutable racial discrimination and failed to take into account relevant factors from which racial discrimination could been inferred [and other references are given]. (e) The Tribunal's decision, together with the Review decisions, was perverse in that it was one which no reasonable tribunal, directing itself properly on law, could have reached [and reference is made to other documents in the bundle]. "

[6]The Appellant asked for leave to add, he did ask for ground one of new ground to be added to his ground of appeal in these terms:

"under rule 7(9)(93) Regulations, no member of the Tribunal which has conducted a pre-hearing review shall be a member of the Tribunal. At the hearing of the Originating Application in the present case Chairman Mr C A Carstairs sat at the PHR on 5 January 1999 and at the full merits hearing on 16 February 1999."

Very near the last minute, Mr Sahu was instructed to appear for the Appellant on this appeal and he very properly told us that the application to add this ground of appeal was not being pursued today. He has however vigorously pursued the other grounds of appeal. We have had from him the benefit of a Skeleton Argument which we have been through with him at some considerable detail. This Tribunal is always concerned where an unhappy Appellant complains of a decision in an Employment Tribunal which alleges perversity and closely examines the decision in the light of the grounds of appeal.

[7]We have taken account of the fact that Counsel came into this case at a very late stage and have therefore shown him considerable latitude as he developed the submissions which he included in his Skeleton Argument. He has made several submissions that there was no evidence to support a particular finding of fact and submitted that several findings of fact were on the evidence perverse.

[8]First, Mr Sahu challenged the finding of fact made by the Tribunal that:

"The post was offered to Mr O'Brian because he had displayed that he had greater warehouse experience during the course of the interview.' "

It was submitted that because in cross-examination Mr Griffin could not give particulars of Mr O'Brian's greater experience, there was no evidence to support the holding that his greater experience caused his selection. It is in our judgment, quite open to a Tribunal to make the finding of fact which it did make on the evidence which it had and the criticisms made by Mr Sahu on his client's instructions were not warranted and do not entitle the matte to go forward.

[9]The second finding of fact about which complaint is made is that there was a finding that the Appellant was shown the warehouse system by Mr Griffin. It is submitted that there was no evidence as to this. It is common ground that Mr Griffin was the person who interviewed the Appellant and was his immediate superior in his employment. It is common ground that Mr Griffin was cross-examined. Paragraph 5 of his witness statement reads:

"The first duties I asked him to complete were Warehouse related functions that would acquaint him with the individual stock for each customer. These were exactly the same duties as were required of Mr O'Brian."

[10]In our judgment it is quite open to a Tribunal on that evidence and having seen and heard the witnesses and having found that both of them were honest and doing their best, possibly to have heard in evidence that Mr Griffin showed the Appellant round the premises. Indeed it would be unusual to find an employee starting work without being shown the premises in which he was expected to work. Without sight of notes of evidence, we cannot conclude that there was no evidence to support a finding which on the surface is unsurprising.

[11]The third complaint was of this finding of fact:

"the Applicant did not find it easy to get to grips with the warehouse procedure. The two sets of uniforms were stored in different places but the Applicant, when approached by staff of client customers, would from time to time go to the wrong area and produce uniform which was worn by staff by the other company."

It was submitted that there was no evidence of actual occasion when the Appellant issued wrong uniforms to employees and thus far the finding was perverse. Paragraph 6 of Mr Griffin's witness statement which we have seen, deals with the allegation. Where the Tribunal has had the obvious chance to see and hear both witnesses, in our judgment it was not perverse for it to make the finding which is challenged.

[12]Next it is submitted that the Tribunal's finding: "Mr Griffin then helped the [Appellant] sort through the stock correctly." was not supported by evidence. Indeed the evidence was that the Applicant rearrange the stock in alphabetical order himself unaided. Again, looking at Mr Griffin's witness statement, we are not satisfied that there was no such evidence before the Tribunal as was submitted by Mr Sahu.

[13]Next, Mr Sahu submitted that there was no evidence to support the finding that "by Thursday, Mr Griffin had decided that the Applicant was not suitable". He submitted that the Respondent had admitted that they had already made up their minds to dismiss the Appellant in Wednesday 1 July and not the next day, Thursday 2 July. We look to Mr Griffin's statement. Paragraph 8 reads:

"I decided on Thursday evening that I would be unable to continue with [the Appellant's] employ."

In further and better particulars the Respondent had in advance of the hearing stated:

"c. Mr Griffin decided that [the Appellant] was unsuitable for the position on Thursday 2 July 1998 at 5pm. [The Appellant] was informed of the decision to dismiss him on Friday 3 July 1998 at approximately 4.50 pm."

Such admission as the Respondent may or may not have made in cross-examination does not, in our judgment, stop the Tribunal making the finding of fact which it made.

[14]The second ground of appeal which Mr Sahu advances is this:

"The Tribunal found that 'Mr Griffin had also been surprised at the length of time the Applicant had taken to carry out [the function mentioned]. ' "

Mr Sahu submitted:

"The finding was perverse as not only was the evidence that the [Appellant] had finished both assignments Mr Griffin had given to him before he left. But furthermore, the finding could not be possibly correct for if the evidence of the Respondents were true, then the [Appellant], if he had still been doing this first assignment would not have finished until past 5.00pm, his leaving time, which the evidence did not support."

Again we look at Mr Griffin's statement on this matter. Paragraph 6 of his written statement appears to contain evidence which would have entitled the Tribunal to have made the findings of fact which it made.

[15]Mr Sahu has submitted to us that in the failure to find facts by the Tribunal, that the Appellant should be entitled at this stage to ask us to require the Employment Tribunal's Chairman to send to us his Notes of Evidence and he has helpfully referred us to the well known decision of Webb v Anglian Water Authority

1981 IRLR 494

, a judgment given by Browne-Wilkinson J, as he then was. In that case, Browne-Wilkinson J gave evidence as to when the Chairman's notes should be produced. "The question which arises for the first time in this case is what will amount to 'cause shown' justifying a departure from the general rule now established the Chairman's notes are not to be provided. In our view, the fundamental consideration is this. It is the Industrial Tribunal which is the body entrusted by Parliament with finding the facts of the case; the appeal to this Tribunal is only on a point of law. Therefore, for most purposes the only relevant source of the facts to be considered by this Tribunal are the findings of fact made by the Industrial Tribunal and stated by them in their reasons for their decision. For most purposes, it should be unnecessary, on this basis that a proper set of reasons had been prepared, to go behind the reasons to the evidence given to the Tribunal. The only appeals in which Notes of Evidence can be relevant are those where the notice of appeal includes, amongst the grounds of appeal, an allegation that there is no evidence to support a particular finding of fact, or that the Industrial Tribunal failed to make some relevant finding of fact, or that the Industrial Tribunal had misunderstood the evidence, or that a finding of fact made by the Tribunal is perverse in the sense that no Industrial Tribunal, properly directed, could have reached their conclusion. We will call these 'permissible groundings for attacking the findings'. "It is unrealistic to expect people who are conducting their cases in person before an Employment Tribunal to conduct the case that a skilled advisor would do, by keeping notes of the evidence. In such cases, therefore, we think that if an application is made for the Chairman's notes, the application should be considered in a rather more generous fashion; but, even so, it should be possible for the party to specify, in somewhat more general terms, the findings of fact to the Tribunal which he challenges. No doubt, his advisors would explain to him that in saying that he 'challenges' findings of fact, it is not enough simply to say 'I disagree with the findings of fact' but has to show that there was no evidence to support them."

[16]Having looked very carefully over the course of the day at the matters to which we have been addressed we are satisfied that the matters of which the Appellant complains of as failures to make findings of fact are not ones on which the Notes of Evidence would, on the balance of probabilities, be of assistance to a Tribunal if they were available for an appeal.

[17]We should add that in the course of his submissions to us, Mr Sahu has pointed out to us a couple of errors in the Extended Reasons and suggested these themselves add ammunition to the ground that this is an unsound decision. In paragraph 3 he said that there was a reference to the job application being advertised at the Acton Job Centre rather than the Ealing Job Centre and he pointed to a discrepancy between the number of people who applied for the job being nine in accordance with the evidence of Mr Griffin, whereas the document produced by the Respondents showed only seven written applications. This was a short case and these points are small in the context of an appeal where the findings in the Extended Reasons and the Review Decision satisfy us that the Employment Tribunal significant findings of fact cannot be challenged.

[18]In the final paragraph of the decision the Tribunal held in the extended reasons that the Tribunal was satisfied the Respondent did not discriminate against the Appellant on the ground of race by discriminating against him. We have carefully considered Mr Sahu's submissions challenging this finding. We are satisfied that having regard to all the matters we have mentioned that there was no failure to exercise discretion on the part of the Tribunal properly..

[19]We should add that in the course of his submissions Mr Sahu has asked for leave to amend the Notice of Appeal because within the Notice of Appeal there was clearly no application to appeal against the review decision which had been refused shortly before the appeal was launched, although in the voluminous papers sent with the papers, it was obvious the Appellant wished to appeal against that decision. Mr Sahu also sought leave to amend the Notice of Appeal to allege bias. We have refused to give leave to the Appellant to amend the Notice of Appeal to add additional grounds. There is a time schedule within which appeals to this Tribunal must be launched. The time has expired to introduce additional grounds. The Appellant himself says on the form he completed for this hearing that the appeal does not raise any point of law of general importance. To allow new grounds of appeal to be added several months after the time when they should have been made when they appear to have little merit is unfair to the Respondent. We take into account that the Appellant was acting in person until very recently, but he is obviously a highly intelligent man and we have no doubt that the forms supplied by the Tribunal made clear the requirements to plead his appeal case fully in the specified time.

[20]We have listened patiently and carefully to all the submissions that Mr Sahu has made. We are satisfied that at the end of the day that the decision of the Employment Tribunal appealed against was right. There is no ground of appeal which can properly be sent to a full hearing. In the circumstances, we will dismiss it at this stage.