MRS Y KHAN v THE POST OFFICE [2000] UKEAT 1238_99_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1238_99_0905Case No Appeal No. EAT/1238/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS Y KHANAPPELLANTTHE POST OFFICERESPONDENT
Before
Mr Justice NelsonLord Davies of CoityDate 9 May 2000
[1]APPEARANCES For the Appellant MS SUSAN MONAGHAN (of Counsel) Instructed by: Messrs Blaser Mills Winter Taylors Solicitors 12 College Road Harrow Middlesex HA1 1JF MR JUSTICE NELSON : This is a preliminary hearing which arises out of a decision of the Employment Tribunal sitting at London (North) given on 23rd August 1999, when by its unanimous decision the tribunal found that the applicant was not discriminated or victimised on the grounds of her race. The hearing took place between 19th and 26th July 1999. During the course of that hearing the tribunal heard evidence from the applicant and also from the witnesses from her employers, who are listed in the extended reasons for the decision which it gave.[2]In reaching the conclusions, the tribunal at paragraph 46 said that it had:
"… considered all the evidence presented. Where there has been a dispute in the evidence we prefer the evidence of the Respondents' witnesses Marian Jewiss, Peter Packard, Bob Mitchell and Calvin Little …"
The tribunal went on to say that insofar as Steven Rains and Sue Donaldson were concerned, they had:
"… presented as impartial investigators and genuinely concerned to explore the issues …"
The tribunal found that the applicant herself was "inconsistent" in her evidence. And having considered it, they came to the conclusion:
"47 … We did not find the Applicant a credible witness. She clearly believed that she had been the subject of discrimination but the evidence on which she sought to rely on occasions appeared to have been embellished. 48. The Tribunal therefore concluded that the Applicant had not succeeded in demonstrating that either she had been the subject of discrimination on the grounds of her race or that she had brought a complaint of discrimination. We therefore dismiss her claims."
[3]The appeal that is set out in the grounds of appeal before this tribunal today, alleges various different grounds running from 1 to 12. Emphasis has been placed by Ms Monaghan on behalf of the appellant on some rather than others of those grounds.[4]In particular, Ms Monaghan has sought to put forward these points. At (i)(a) of the grounds she contends that the Employment Tribunal erred in law in dealing with the matters before it by looking at whether there had been a conspiracy. She says that that involves them looking at the state of mind of managers and not looking at the matter properly in order to assess it, indeed, in effect, this approach added to the burden of proof. There is no legal requirement to look at conspiracy and that for them to do so was an error of law it was submitted.[5]The tribunal set out their approach to the matter on this point first of all in paragraph 29, where they said as follows:
"In order to decide whether the allegations made by the Applicant were those that the Tribunal had jurisdiction to consider, given that so many of them fell outside the three month period as prescribed in section 68(5) the Race Relations Act 1976, the Tribunal first considered whether there was a "conspiracy" to discriminate against the Applicant and, whether the acts constituted continuing acts."
That paragraph shows the approach of the tribunal and demonstrates that they were looking not only at what they had designated as "whether there was a conspiracy" but also as to whether the acts constituted continuing acts. They concluded at paragraph 41, from their consideration of all the aspects of the case that there was:
"… no conspiracy could be made out nor could it be shown that the events were so linked as to make the matters continuing acts of discrimination such as to bring them within time."
[6]We are satisfied that the tribunal did not fall into error in approaching the matter in this manner. Indeed, by doing so the tribunal demonstrated, both in the passages in paragraphs 29 and 41 and indeed in the reasons as a whole, that they were looking not merely at particular individual parts but looking at the matter as a whole in the context of the time limit and did so correctly. They set themselves the task of ascertaining whether there was a conspiracy and whether the acts constituted continuing acts. They go into detail in their reasons in assessing the evidence and considering it. There was no error in law in relation to their approach.[7]Allied to this ground is the additional ground, which is set out in the second ground, that the tribunal erred in law in that it misdirected itself in respect of the background facts and matters relied upon in support of the complaints of discrimination. The case of Qureshi v Victoria University of Manchester and another (unreported) is relied upon not only in this context but also in the context of ground (i)(b) where it is said that this Employment Tribunal " adopted a fragmented approach" in considering the complaints made, whereas they should have looked at the whole of the matter and that by doing so they lost the opportunity of, as was said in Qureshi , considering the "eloquence that the cumulative effect of the primary facts might have" upon the case.[8]Again, having considered these submissions and the extended reasons given, we are satisfied that the tribunal did not misdirect itself or look at this in a fragmented or narrow way. We are satisfied indeed that over the several days hearing that they gave consideration to the matters of complaint both individually and indeed as a whole and there is no ground for this complaint to be made against the tribunal.[9]It is also said that in (vi) of the grounds that the Employment Tribunal "reached a decision which no reasonable Tribunal properly directing itself could have reached" in relation to aspects of the appellant's complaints relating to promotion. They made a finding which they should not have made on the evidence before them, which was perverse for them to make that "the Applicant did not in fact make application for" this particular job. They also went on to find that it may have been that that the appellant was considered for the position in any event, "but because of her time-keeping problems which then existed was not considered suitable for that level of post."[10]We are satisfied that the Employment Tribunal did not err in law in reaching either of those decisions. They heard evidence from the appellant and they heard evidence from the respondents' witnesses who were available there to be cross-examined upon the matters that were relevant. Having heard that evidence, the tribunal came to the conclusions that they did. In the view of this Court, they did not fall into error in doing so but were entitled to approach the matter in that manner and make those findings.[11]Next, it is said that in relation to ground (vii) of the appeal, that because of an earlier ruling which had been made, refusing disclosure of documents, the Employment Tribunal had effectively deprived itself of the material which would enable it to consider the evidence fully and make proper findings. As a consequence by then nevertheless continuing to hear the matter without such disclosure, what the Employment Tribunal did was to fall into what effectively Ms Monaghan submits, were errors of fact, errors of fact because they dealt with it on the basis of inadequate material before them. Allied to ground (vii), which is the dealing of the matter when inadequate information was before them after the order requesting disclosure had been refused, are grounds (ix) and (x) as well. Furthermore, grounds (x), (xi) and (xii), the remaining grounds, are, as Ms Monaghan rightly concedes, in essence, issues of fact related to that.[12]We are satisfied that the tribunal did not err in dealing with the matter without disclosure having taken place; that they had ample opportunity to deal with the evidence over the course of several days hearing; that these were matters of fact which were properly in their province, which they were entitled to deal with in the manner that they did and that there is no error of law which can be established.[13]In those circumstances, this tribunal is forced to come to the conclusion that the appeal must be dismissed and accordingly that is the order of this tribunal.[14]The application for leave to appeal to the Court of Appeal is refused. The tribunal is of the view that it has no reasonable prospect of success.