EAT 1352/98 - EAT 1356/98 MR B CROFTON v (1) MR S YEBOAH (2) LONDON BOROUGH OF HACKNEY [2000] UKEAT 1352_98_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1352_98_0603Case No Appeal No. EAT/1352/98, EAT/1353/98, EAT/1354/98 EAT/1355/98, EAT/1356/98, EAT/1357/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT 1352/98 - EAT 1356/98 MR B CROFTONAPPELLANT(1) MR S YEBOAH (2) LONDON BOROUGH OF HACKNEYRESPONDENTSEAT 1357/98 MR B CROFTONAPPELLANT(1) MR S YEBOAH (2) LONDON BOROUGH OF HACKNEY (3) MR M CRAIGRESPONDENTS
Before
Mr Justice Burton Mr P DawsonDate 6 March 2000
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE BURTON : Mr Crofton was a senior employee of the London Borough of Hackney, as was Mr Yeboah.[2]Because this is only a decision on a preliminary hearing I do not propose to go into any detail at all about the factual situation or, indeed, the tangled procedural history, but suffice it to say that Mr Crofton has brought one application for racial discrimination against the London Borough of Hackney, which has been dismissed.[3]Mr Yeboah has brought six applications against the London Borough of Hackney, of which Mr Crofton has been joined in four; and of those six, one was dismissed, five were successful, three of them only against Mr Crofton, being numbers one, two and three, and one of them successful against both, being number four and one of them, being number six, only ever brought against the London Borough of Hackney and successful against that Borough.[4]The appeals brought before the Court now today, on consideration for preliminary hearing, are Mr Crofton's appeals in respect of his own application, which was dismissed, and his appeal in respect of Mr Yeboah's success on the first, second, third and fourth of his applications.[5]There was also before us an appeal by Mr Crofton in relation to the sixth application, to which in fact he was not ever a party. The basis upon which Mr Crofton concluded that procedurally he was going to be able to get that appeal off the ground before us was not fully explored, because in the event he accepted, in the course of argument, that it was not necessary for the purpose of his argument to develop any such submission, or to pursue the sixth appeal which consequently, but for one point, is no longer being pursued. The one point I have already dealt with briefly in my directions that I have given, namely arising out of a point made by Mr Oldham, who assisted Mr Crofton on a pro bono basis today, and which has resulted in our adjourning that sixth application over to be dealt with at the same time as a costs and remedies matter, but without any indication that any other result than its dismissal will ensue.[6]The application by Mr Crofton himself can be dealt with shortly. We do not conclude that there is any point of law, at any rate of any substance in that appeal. It stands on its own, is not in any way intertwined with the four appeals relating to Mr Yeboah's successful applications for which we are giving leave and we do not conclude that, in the interests of justice, there is any need for leave to be given in relation to that application and we do not do so.[7]So far as Mr Yeboah's four applications are concerned they are all, of course, intertwined by the underlying factual conclusion of the Employment Tribunal, which was, after 108 odd days as follows, namely that Mr Crofton had made a series of allegations against Mr Yeboah that he had knowledge of, and/or was involved with, and failed to take adequate or any steps to control or prevent, a wilful and substantial scam which indeed was being carried out over a lengthy period in relation to frauds involving housing in the London Borough of Hackney.[8]The Tribunal unanimously concluded that there was no substance in any of those allegations and that Mr Crofton had no belief in the substance of any of those allegations, consequently that he was acting maliciously and unreasonably, and in those circumstances, because the Tribunal could see no justification for any of those allegations having been made, and because they related to Mr Yeboah, who is West African, and to allegations of connivance or acquiescence or involvement in this scam by those who were, it seems, very substantially West African, that consequently this was a case where they could be satisfied, on the balance of probabilities, that Mr Crofton was guilty of racial discrimination. That conclusion underlay the first application which, indeed, is entirely about the making of such false allegations.[9]Because of the way in which the procedural history unfolded, rightly or wrongly, Mr Yeboah brought more than one application and, although they were all heard together, they had to be dealt with and considered separately. But, as I have indicated, they are all intertwined in the way I have described.[10]The second application is based upon one of the allegations which Mr Crofton is said to have made, namely that Mr Yeboah's naturalisation papers were signed by a Miss Warnock, that she was a partner and subsequently wife of Mr Craig, one of the investigating officers appointed by the Council, that it was subsequently suggested, maybe even shown, to be the case, that those papers were signed falsely, because Miss Warnock did not have the necessary acquaintance with Mr Yeboah, and that it is suggested that Mr Crofton further made the allegation that, in reward for that signing of the naturalisation papers, Miss Warnock was awarded by Mr Yeboah a sabbatical. It can be seen that the facts, although for the purposes of the application capable of being severed out, are part and parcel of the overall picture said to arise from the first application, and depend (although I shall say something shortly about it in a moment) almost entirely on the same findings of the Tribunal that there was no substance, and known to be no substance, in the allegations made by Mr Crofton against Mr Yeboah.[11]The third application related to the suggestion made by Mr Yeboah that it was Mr Crofton who put his name on to a list of suspects which the Police then investigated.[12]The fourth application relates to the period after Mr Crofton had been dismissed by the Council, and at a time when he was, by way of procedural appeal, seeking, and subsequently was successful in, the restoration of his employment. During that period he was found by the Tribunal to have given a story hostile to Mr Yeboah to Private Eye, although not to other newspapers, and the Tribunal found that that was an act in the course of Mr Crofton's employment and that it was discriminatory unlawful conduct within the Race Relations Act, Section 4.[13]The grounds of appeal (I have indicated I shall not set out in detail because we are not limiting) are in substance these. So far as the first and, indeed, second, third and fourth applications by derivation, Mr Crofton attacks the conclusion of the Tribunal, root and branch, that there was no substance in the allegations and/or that he had no belief in such substance, from which, primarily, if not wholly, the Tribunal reached the conclusion they did of racial discrimination. The central point in the Chairman's conclusions, in the first application, appears at paragraph 117 A (ix), and it is an allegation, as follows:
"That Mr Crofton and Councillor Linda Hibberd raised concerns about rigged interviews with Mr Yeboah, but despite assurances that Mr Yeboah would look into these matters, Mr Yeboah never undertook any investigation, and subsequently denied to Councillor Hibberd that he had said he would respond to her concerns."
The Chairman sets out as follows, in relation to this allegation:
"This is a reference to the alleged complaint by Councillor Hibberd to Mr Yeboah, at their meeting of 22 October 1990, that Mr Amadi was influencing the recruitment of staff by coaching, or providing references or otherwise. Mr Crofton asserts that Councillor Hibberd raised this matter at this meeting where Councillor Hibberd, Mr Yeboah and Mr Crofton were the only persons present. The only two witnesses we have heard about this are Mr Crofton and Mr Yeboah. Mr Yeboah asserts that the matter was not raised at this meeting. Each man has produced a note of that meeting. Mr Yeboah's note is contained in a bound volume, like all his notes, and alteration or fabrication would be extremely difficult."
The Tribunal went on as follows:
"Of course, if it had been raised and Mr Yeboah failed to investigate it, it would serve as an instance of Mr Yeboah, the African Head of Personnel Services, protecting from investigation another African who was suspected of corrupt behaviour. Thus it would serve Mr Crofton's purpose [is the way that the Chairman puts it] by casting suspicion on Mr Yeboah. In fact the issue of Peter Amadi was raised at the meeting of 29 October 1990, when Mr Yeboah stated that he was aware of concerns about Mr Amadi because they had been brought to his attention by Miss Labinjo. This is noted in Mr White's notes of that meeting. There is no suggestion in the two notes that exist of the meeting of 29 October (that is Mr White's and Mr Yeboah's), that anybody suggested that the matter had been raised directly to Mr Yeboah a week earlier. When the matter was raised at the meeting of 29 October 1990 it was dealt with by an instruction from Mr White to Mr Yeboah to arrange for the investigation by Ms Adrien. All the evidence leads us to conclude that the matter of Peter Amadi or Petadist was not raised, as Mr Crofton alleges, at the meeting of 22 October. In so far as the note produced by Mr Crofton suggests that it was, we consider that that is not an accurate note, we consider it to be a recent fabrication."
[14]The conclusion is that:
"The allegation by Mr Crofton is not true and we find he had no reasonable ground for making it" and the eventual conclusion, which underlies the entirety of the basis, as we understand it, of the Tribunal's conclusion, is this: "
However, Mr Crofton has persisted in alleging that Mr Yeboah did little or nothing to combat recruitment fraud in particular. We reject that allegation and acquit Mr Yeboah of this charge. We find that, systematic recruitment fraud was a problem that began to emerge only in early 1995."[15]It is thus clear, even on the view of the Employment Tribunal, that the question of whether or not the matter was brought to Mr Yeboah's attention at the meeting of 22 October 1990, was of crucial importance to its decision. The way it is put by the Chairman, as I have indicated, was, "it would serve Mr Crofton's purpose by casting suspicion on Mr Yeboah", which suggests that the Chairman has already, by that stage, concluded that Mr Crofton was making up the whole matter, whereas even put in a neutral way, it could have been said, "thus it would support Mr Crofton's case if it was shown that it had been raised at that meeting". The Chairman continues, that the only two witnesses that the Tribunal had heard from were Mr Crofton and Mr Yeboah.[16]The evidence however, would not have been so limited but for orders by the Employment Tribunal, and it is evidence which the Employment Tribunal ruled out, which we are giving leave to the Appellant to rely on by way of fresh evidence at an appeal, as central to that crucial case.[17]First, Mr White, to whom I have referred, it appears, made notes. Mr White was a senior employee at the Council and, indeed, was not only an investigating officer but, it appears, a prosecuting officer at the disciplinary enquiry into Mr Crofton, which led to his dismissal, prior to his eventual reinstatement on appeal. Mr White's notes were, I am told by Mr Crofton, not produced on discovery prior to the hearing, but were only produced by Mr White in the course of his evidence. As a result of a direction by the Tribunal Chairman, perhaps unusually, particularly in the circumstances of this case where it was known that the Council, and in particular Mr White, were going to be supportive to Mr Yeboah and hostile towards Mr Crofton, Mr Crofton, although unrepresented, was to give his evidence before the witnesses of the Council. Thus, when Mr White came to give evidence he, Mr Crofton, had already given his evidence, and subject to one matter to which I will refer, had closed his case. Mr White then referred to or produced in cross examination his notes, which he had not previously disclosed, other, I think, than selectively those pages which had been chosen to be produced, by him or the Council or Mr Yeboah does not appear entirely clear.[18]It then became apparent that there were other pages of Mr White's notebook which were, or were likely to be, relevant to this application. Mr Crofton sought and obtained the opportunity to look at the notebook and, he tells this Tribunal, discovered that Mr White had taken a note, not of that meeting of 22 October 1990, but referring back arguably to that meeting, namely referring to a discussion he had had with Councillor Hibberd, as to what Councillor Hibberd was reporting had occurred at that meeting.[19]Mr Crofton applied to the Chairman for leave to put in additional pages, including that page of Mr White's notes. On grounds that are unclear to this Tribunal and would seem, on the face of it, difficult to support, those pages which either should in any event have been previously disclosed, or at any rate were now plainly relevant, were not permitted to be adduced in evidence. All that occurred, as we understand it, is that Mr Crofton was given permission to cross examine using his recollection of what he had seen, but the documents themselves were not permitted to be admitted or to be put, in terms, to the witnesses.[20]At the same time as that note was ruled out by the Chairman, a decision was made that the Appellant was not to be permitted to call Councillor Hibberd. Councillor Hibberd was going to be called by the Appellant, had given evidence which was recorded by a Council official at the disciplinary enquiry into Mr Crofton's conduct in making allegations, among other things, against Mr Yeboah, and had provided a witness statement which cross referred to the evidence that she had given and confirmed it to be true being evidence supportive of Mr Crofton as to what had occurred at the meeting of 22 October 1990. We are told that she was not well, and had consequently not attended the Tribunal at the time when the Tribunal had indicated Mr Crofton should call her. But he had been allowed to close his case without calling her, with the opportunity or re-calling her at a later date. It appears that she had then gone on a twinning exercise at the instance of the Council, but had now returned and was, Mr Crofton indicates to us, willing and able to be called as a witness at any stage convenient to the Tribunal.[21]What we are told by Mr Crofton is that either simultaneously with or immediately after the decision of the Tribunal to rule out the notes of Mr White, there was an application which the Chairman granted to debar Councillor Hibberd from giving evidence. There may well be, when the matter has been heard, perfectly good reason for that, but it appears to us odd, to say the least, both that in such a long case such as this, an opportunity was not found, however difficult Mrs Hibberd might have been proving to lure to the Tribunal for her to be heard, at her convenience. But, in any event her evidence as to the meeting of 22 October 1990, always significant, had become the more vital, given the disclosure of, and then the debarring of use of the notes of Mr White, which would apparently have been not only supportive of the evidence of Mr Crofton, but corroborative of the evidence which Councillor Hibberd was, it seems, intending to give.[22]In those circumstances there was central evidence ruled out, rightly or wrongly, by the Chairman, of which no mention is therefore made in the passage from paragraph 117A (ix) which I have read from the decision, but simply the rather elliptical phrase:
"The only two witnesses we have heard about this are Mr Crofton and Mr Yeboah"
. It seems to us, at the very least, arguable that the picture would or could have looked very different if, as we concluded it at least arguably should have done, the Tribunal had admitted the evidence both of Councillor Hibberd and of Mr White's notes, so that the other side of the story could have been fully analysed.[23]Relevant to this case also, although not quite so obviously central, is the evidence of Miss Linda Bellos. She would not have been relevant to give evidence about the meeting of 22 October, but she (I am told by Mr Crofton) would have given evidence to show that Mr Yeboah at least had had sufficient knowledge of the existence of, and consequently the duty to do something about, the scam, well prior to 1995. She too had given evidence to the disciplinary committee and had had her evidence taken down by a Council official to that intent and she too had been prepared to give evidence before the Tribunal.[24]It appears that because of the overrunning of the Tribunal and the directions by the Tribunal as to the order of witnesses, in the end she was either unwilling or unable to appear to give evidence. But nevertheless, I am told by Mr Crofton, that her evidence was, albeit nothing like so satisfactory as if it was in oral form, referred to by him and permitted so to be referred to on as hearsay evidence and was, of course, before the Court in the form of the transcript. And yet, there is no mention of it in the Chairman's decision, even to discount it, although it would have needed some discounting given that it was apparently evidence that had previously been given in a formal surrounding, recorded by a Council official.[25]We therefore, conclude that it is arguable that the Tribunal were perverse in reaching the conclusion that they did, reached a conclusion that no Tribunal ought reasonably to have concluded and/or ruled out evidence that they should not have ruled out and/or that there is fresh evidence, or evidence that was available, but not through the fault of the Appellant, ruled out below, which should now be considered on the appeal, which would go to this central point on the first application and similarly underlying the second, third and fourth. I say nothing more about other grounds, which I have indicated were shortly mentioned by, or argued by Mr Crofton and which we do not rule out for the purposes of the appeal, in particular his case that the Tribunal was perverse in its approach to the evidence about a Ms Labinjo and a Mr Sugrue.[26]The second application relates to the naturalisation papers to which I have referred. So far as this is concerned the conclusions of the Chairman were that because, for the reasons already referred to in application one, the Appellant had no grounds for any belief of any involvement in any scam by Mr Yeboah, and no belief in any grounds, and was consequently acting maliciously, therefore, all the steps he took were malicious and were only explicable as being due to racial discrimination, the more so because the naturalisation papers related to something which could only arise in respect of someone who was not British.[27]Quite apart from the main ground, and any other grounds which Mr Crofton wants to pursue, there were specific matters which he canvassed before us in relation to this application. First, he submitted that there was no basis on which the Tribunal could have made the findings that he was making an allegation so far as Mr Yeboah was concerned in relation to his naturalisation papers, at least to start with, but rather that the circumstances in which he was making the point was in relation to his complaint that Mr Craig should not be the investigating officer, by virtue of the fact that his common-law wife, subsequently wife, was someone who was a close friend of Mr Yeboah and witnessed the naturalisation papers. That, he says, was the only evidence and that no further case could possibly have been constructed, nor was there any evidence to support it upon the basis of which a racial discrimination case could be built.[28]Further, that insofar as there was a reference to the sabbatical, it was simply that in the course of the investigations and enquiries which, if he be right, he was reasonably carrying on, a Mr Patel, as Mr Patel consequently confirmed in his evidence to the disciplinary inquiry, it was who indicated, it may well be wrongly, as it turned out, the connection between Miss Warnock's sabbatical and Mr Yeboah.[29]There was an application for discovery, which was again rejected by the Tribunal, of Mr Yeboah's naturalisation form. Mr Crofton submits that that was a plainly relevant document and that discovery should not have been refused, because had it been produced, it would at least have confirmed his case that Mrs Warnock had, indeed, signed the papers and what is more, had to Mr Yeboah's knowledge signed the papers falsely because, if it was she who signed it, at that stage she did not have the relevant knowledge of Mr Yeboah. That is a matter which Mr Crofton submits went to Mr Yeboah's credibility, and that that was a matter which should not have been refused, given its relevance to the very allegation which was the basis of the second application, not simply to credibility, and consequently that its refusal was prejudicial, and that too is fresh evidence, which should now be capable of being relied on, if it could be produced.[30]The third application relates to the assertion that it was Mr Crofton who had Mr Yeboah's name put on a list of suspects by the Police. This seems to us to be a somewhat difficult allegation to disentangle from the rest of the case because if, in fact, he was entitled to have grounds for suspicion of Mr Yeboah and if, in fact, the Police were investigating, it would seem surprising if he were not entitled to say, as it seems indeed he did, that he concluded that there was something in relation to Mr Yeboah that the Police ought to investigate. It seems that no specific complaint is made of the fact that he said that at a meeting attended by a Mr Bundred of the Council in October 1990 (I think it was), albeit that Mr Bundred pooh-poohed the suggestion immediately. But what is suggested is that because some time thereafter Mr Yeboah's name was on the Police list of suspects he, Mr Crofton, must therefore have, subsequent to what one might call "the pooh-poohing meeting", caused it to be put on the list. Mr Crofton submits that there was no basis for any inference that it was he who caused the name to be put on the list, as opposed to the Police putting the name on the list of their own accord, having attended at a meeting at which one senior official had suggested that there might be something to investigate, even though another senior official had pooh-poohed that suggestion.[31]Quite apart from whether there is any basis for attacking the factual conclusion of the Tribunal, it is obvious that this third application, insofar as there is any call for any different consideration at all, stands or falls with the first application.[32]There is a further and subsidiary point, which Mr Crofton submits was not dealt with at all by the Tribunal, and that is that two other names of senior employees were put on the list, a Mr Hall and a Mr Bayliss, and insofar as the complaint is made of racial discrimination, then the existence of such comparators ought to have been taken into account by the Tribunal.[33]The fourth application is of a somewhat different nature, as I have previously indicated. Mr Crofton was dismissed as a result of the disciplinary enquiry, only subsequently to be reinstated. While he was dismissed, he, no doubt, was doing his best to get his job back. On the findings of the Tribunal he gave information to the Private Eye which formed the basis of an article but, of course, at that stage he owed no obligations to his employers and he was not employed and it is difficult to see that it can be said that his actions were in the course of his employment. But that is what was found by the Chairman. Mr Crofton submits that there is no evidence upon which the Tribunal can find that he was the source of the story, the Tribunal having found that he was not the source of many other stories which were, at that stage, being produced, and he has sought to take us through that part of the decision of the Tribunal, in which reasons are put forward to say that, in fact, there were no such reasons. In addition, he now seeks to rely on fresh evidence not available at the hearing, which would support his case in this regard and for which leave should be sought inter partes. But, even if the Tribunal was entitled to reach a conclusion of fact that he was the source of the story, it appears to us to be at least arguable that his action, if there was an action of giving such information to Private Eye, could not be said to be within the course of his employment.[34]At somewhat greater length than I intended, I therefore have given reasons why we dismiss the application in respect of his own appeal, and we give leave for an appeal in respect of applications one, two, three and four by Mr Yeboah, all four of the appeals should now go forward under one number.