MR S J O'SULLIVAN v LONDON BOROUGH OF EALING [2000] UKEAT 1330_99_1906

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1330_99_1906Case No Appeal No. EAT/1330/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S J O'SULLIVANAPPELLANTLONDON BOROUGH OF EALINGRESPONDENT
Before
His Honour Judge J Altman Mr P R A JacquesDate 19 June 2000
[1]APPEARANCES For the Appellant MR B BURGHER (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE J ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (North) on 26 July 1999 when they dismissed the Appellant's claims for race discrimination. The matter comes before us by way of preliminary hearing, to determine whether there is point of law which merits argument in full before the Employment Appeal Tribunal. Mr Burgher has appeared on behalf of the Appellant under the ELAAS scheme and we wish to record our indebtedness to him for giving of his time and considerable expertise, without remuneration in presenting to us all the arguments that could properly be raised on the Appellant's behalf.[2]At the heart of the complaint of race discrimination, as described by the Employment Tribunal, was a conflict of evidence between the Appellant and the Respondent's witnesses. On a number of grounds, the Appellant argues that the decision of the Tribunal demonstrated an error of approach so as to make the final decision unreliable and arguably wrong in law, it being necessary for him to prove no more at this stage. He refers to four areas as informing the approach of the Employment Tribunal, but essentially what is said is that the Employment Tribunal's analysis of the facts was cursory and cavalier and that it is not apparent on the face of the decision as to why the Respondents witnesses were preferred to that of the Appellant. It is said that there are four indicators to that conclusion coming from an examination of the facts: The law The way in which one member appears to have fallen asleep This was followed by the way in which the Employment Tribunal then handled that allegation Finally, that the Appellant was appearing in person 2. "The Tribunal found it difficult to follow the (Appellant's) arguments in relation to his having suffered a detriment but decided that it would first determine whether any action had been taken against him on racial grounds and that if it did find that such action had been taken it would consider whether it should adjourn the case in order that the (Appellant) could properly establish if he could (show) that he had suffered a detriment. It was in respect of these matters that we considered the (Appellant's) claim." It appears that the Employment Tribunal heard the evidence of the Respondents first because they knew what the Appellant's case was and wanted to hear the Respondent's answer to it and no doubt, with an un-represented party, it was of assistance to him as well to know in advance what was going to be said. 4."Evidence was given in respect of these remarks by Ms Khan and Ms Johal who were impressive witnesses. We were quite satisfied from the evidence which they gave that there was no substance whatever in the (Appellant's) claims. Ms Khan said that she was fully aware of racial issues and that she had never made any remarks about his colour or about his Irish nationality. She had once found a large number of books in the porter's lodge which belonged to the Respondent's library services, was told that the (Appellant) was responsible for them and then finding that there was no evidence that they were booked out to the (Appellant), had returned them to the shelves and had later asked about the (Appellant's) interest in Irish cookery. Similar evidence was given by Ms Johal who said, as did Ms Khan that the (Appellant) could be difficult and argumentative but denied ever having made remarks of any kind which could be construed as being of a racial nature. As we said we accept the evidence of these witnesses." 5."Mr Ludbrook said that there had been remarks but these seem to have been generated entirely by the (Appellant) taking exception to the fact that people thought that he was of Spanish, Greek or Italian ancestry." The Employment Tribunal then sets out a passage, which is criticised by Mr Burgher, as follows: 5."We do not propose to repeat the evidence at length except to say that we did hear from the (Appellant) and that we are not convinced from the evidence which the (Appellant) gave and from hearing the Respondents' witnesses that the (Appellant) was ever subjected to racial discrimination either on the grounds of his ethnic or national origins as Irish or indeed on any other ground and consequently we find that the (Appellant's) claim is not established. 1.First of all, it is suggested that in assessing the evidence of the Respondents' witnesses, there is no reference within the decision to other evidence, given in different form by the Respondents' witnesses, and inconsistent with that recorded on the face of the decision, which should have been taken into account as inconsistencies, tending to undermine the veracity of their evidence. Reference has been made to the grounds of appeal, which on page 5 of the grounds of appeal, it says this: Tehmina Khan says in paragraph 4 page 2 of her statement line 10: 4."That was when I found out about his Irish identity." And the point is then made, under oath she confirmed this was 1997. "I queried her, for 5 years 1992 – 1997 she was unaware of my Irish background with a name like Steven James O'Sullivan. This is not consistent with J Smith's statement regarding Amyn Jumani. Steve took offence at being called Asian in 1993 or 1994 and still T. Khan who shared the same desk as G. Smith had no idea I had an Irish identity." Temina Khan says in paragraph 8 of her statement "his extreme reaction when people mistakenly referred to him as Asian. And the efforts he made….etc." Does she seriously expect anyone to believe that it was a mistake?" It is suggested that those demonstrate inconsistencies in the evidence, for in the decision of the Employment Tribunal, they record her evidence as being that she had never made any remarks about colour or Irish nationality. "The Chairman said that Mr. O'Sullivan must stick strictly to what the respondent's witnesses had said in their statements with regard to his cross-examination questioning and that he would get a chance later on to question them more fully. He told them this twice. He wasn't given that chance. The respondent's solicitor Miss Qaiyoom only gave Mr. O' Sullivan her skeletal argument and submission twenty minutes approximately before she read it out. The lay member of the Tribunal, Mr. Brandt had his eyes closed and appeared to be snoozing at various times during the hearing." In another more detailed document, Mr Azariah said that Mr Brandt appeared to be half-asleep. This went before the Chairman, Mr Flint, for him to give his response and in a letter dated 7 January 2000, the response came that in. In relation to the affidavit of Mr Azariah:
"The affidavit is so uninformative and lacking in particulars that he (the Chairman) is not prepared to comment on it. In particular he wishes to know who Mr Azariah is, during what part of the proceedings he was present and what exactly is meant by the statements in paragraph (1)." "
The Chairman asked me to say that he does not have the slightest idea what the (Appellant) or the two person who swore affidavits are talking about. "The Affidavits are in common form, which is why the Chairman did not mention both. He suggests that if persons making Affidavits stick to a common form instead of commenting fully on their impressions of the hearing little attention should be paid to them. "The only comment, which he wishes to make, is that the (Appellant) was not warned in the way he suggests. He was warned, as is the Chairman's practice that he should not interrupt while the witnesses read their statements but could cross-examine later. Mr Brandt is being asked for his comments on the allegations that he was asleep." On 1 February the Regional Secretary dealt with the matter further, having said that the Chairman had discussed the allegations with the member:
"Mr Brandt denies he was asleep. He was at the time suffering from an inflammation of the eyes which caused him occasionally to close them or to wipe them with a handkerchief."