MRS A O ADEGBITE v (1) MRS J DEMIRSOZ (2) COMMISSIONERS OF INLAND REVENUE [2000] UKEAT 565_99_1411

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 565_99_1411Case No Appeal No. EAT/565/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS A O ADEGBITEAPPELLANT(1) MRS J DEMIRSOZ (2) COMMISSIONERS OF INLAND REVENUERESPONDENT
Before
Mr Justice Bell Mr D Norman Mr K M YoungDate 14 November 2000
[1]APPEARANCES For the Appellant MR G MORTON (of Counsel) Messrs Pattinson & Brewer Solicitors 1 Bridge Street York YO1 6WD For the Respondents MISS J EADY (of Counsel) The Solicitor Commission of Inland Revenue Room T117 East Wing Somerset House Strand London WC2R 1LB MR JUSTICE BELL : This is an appeal by Mrs Adegbite against the reserved decision of the Employment Tribunal held at Stratford dismissing her application claiming that she had been discriminated against on the basis of her race and colour by her employer, the Commissioners of Inland Revenue, and by her fellow employee and line manager, Mrs Demirsoz, who was responsible for making performance assessments in respect of the applicant. The Employment Tribunal dismissed the appellant's application on the ground that she had failed to prove her allegations of racial discrimination. Its reserved decision was sent to the parties on 31st December 1998. It followed a hearing which extended over five days on 7th and 8th July and 17th, 18th and 19th November 1998.[2]The appellant was represented by a representative of her trade union, Mr Bassett, a full-time union official, as we understand it. The respondents were represented by Miss Jennifer Eady, counsel instructed by the Inland Revenue's in-house legal team, whose representative at the Employment Tribunal throughout the hearing was Ms Sue O'Meara.[3]The respondents' representation is the same upon this appeal. The appellant is represented on her appeal by Mr Gary Morton, counsel instructed by her union's solicitors.[4]Ms O'Meara made a full note of the proceedings before the Employment Tribunal day by day. Her notes extend to 174 pages of clearly legible longhand.[5]The appellant gave evidence to the Employment Tribunal in support of her application. Her essential allegations were denied by the respondents, on whose behalf Mrs Demirsoz and four other witnesses gave evidence. There was a bundle of documents extending to some 400 pages.[6]The appeal consists of a challenge to certain features of the proceedings, mostly procedural, together with allegations of bias on the part of the members of the Employment Tribunal against the appellant and in favour of the respondents.[7]The material background for the purpose of the appeal is as follows. The appellant is black. At all material times she was employed by the Inland Revenue. She started working for them on 7th December 1987. From October 1994 she worked at the Walthamstow Collection Office as a revenue officer. Over the next year she was absent on maternity leave for pregnancy-related illness for significant periods. She returned from maternity leave on about 1st November 1995, to find that her line manager was Mrs Demirsoz. In April 1996 a performance assessment report was signed by Mrs Demirsoz and by the appellant. There were four key responsibilities, and the marking options, namely "not met", "succeeded" or "exceeded". The appellant was marked "succeeded" for all four responsibilities. In June 1996 the appellant disputed this marking but Mrs Demirsoz would not change it.[8]The Employment Tribunal made various findings as to the events thereafter. They included the following. On 17th July 1996 Mrs Demirsoz received the appellant's Personal Development Plan in which she requested two training courses. Mrs Demirsoz turned down that request as the courses were for managers; she notified the appellant of this. On 30th August 1996 the appellant told Mrs Demirsoz that she was pregnant and that it was making her unwell. On 10th October 1996 there was a formal meeting at which the appellant pressed for more work so that she could be shown to have exceeded her targets. Mrs Demirsoz refused that request on the basis that she had eleven staff of varying experience and work had to be spread around. On 11th October 1996 the appellant told Mrs Demirsoz that it seemed to her that a Ms Dwyer, a work colleague, had extra tasks and a privileged position. She "sounded off" about Ms Dwyer and Mrs Demirsoz formed the view that there was serious bad feeling between the appellant and Ms Dwyer. Ms Dwyer is white and she became the comparator or main comparator for the purposes of the appellant's allegations of racial discrimination. Mrs Demirsoz thought she had reason to be critical of the appellant's work in various respects. Ultimately on 3rd January 1997 she prepared an assessment of the appellant's performance. There was a meeting between the appellant and Mrs Demirsoz. The result was that Mrs Demirsoz signed off the Performance Assessment Report on 7th January 1997, concluding that the appellant had "not met" her key responsibilities. The appellant was due to start further maternity leave on 27th February 1997. Her end of year assessment meeting was held two days before that. On that day Mrs Demirsoz signed off the Performance Assessment End of Period Report in respect of the appellant, concluding that the appellant had "not met" three out of seven key responsibilities which resulted in "not met" overall.[9]The unfavourable performance assessments of January and February 1997 were at the heart of the appellant's application. In short, she claimed that Mrs Demirsoz judged her poorly because she was black with the result that she did not receive an increase in pay and her prospects of promotion were diminished.[10]The Employment Tribunal in its decision expressly referred to the fact that in January 1998 the appellant had complained to the Inland Revenue's Equal Opportunities Officer, who concluded that some of the complaints against Mrs Demirsoz were to be upheld, but that overall there was no case of racial discrimination made out. The appellant then met the Inland Revenue's Personnel Officer on 26th February 1998 when that officer stated that it was now accepted that the appellant's "not met" markings for 1996 and 1997 were not correct and would be corrected for the purposes of record and pay. Nevertheless, on 17th March 1998, the appellant instituted proceedings to the Employment Tribunal.[11]Having set out the history of the matter, the Employment Tribunal's decision referred to the relevant statutory provisions and case law. It summarised the submissions made on each side. It dealt expressly with some of the matters upon which the appellant had relied, finding, in effect, that it accepted Mrs Demirsoz' answer to them. The decision concluded as follows:
"26 … In this case there is little dispute on the facts, but much in their interpretation. Where, however, there has been a difference in the facts presented, we have generally speaking accepted the Respondents' evidence as we did not form a good opinion as to the accuracy of what Mrs Adegbite said in some respects. Furthermore, a great deal of the Respondents' evidence is supported by contemporaneous documents. We have concluded that Mrs Adegbite's performance fell away in the latter half of 1996 and we believe there is substantial evidence to support that conclusion. We do not therefore find it in any way surprising that Mrs Demirsoz when preparing the reports dated 7 January 1997 and 25 February 1997 came to the conclusion that Mrs Adegbite had "not met" her responsibilities. For the latter half of the year there were problems concerning almost every facet of Mrs Adegbite's work. Such evidence as we heard concerning Ms Dwyer indicated that, apart from a poorish sickness record in the past, she was an ideal employee with a high quantity of work and high calibre of performance. She took on extra tasks without being told and showed potential for management (she was in fact promoted in due course). In our conclusion, Ms Dwyer's circumstances were quite different from those of Mrs Adegbite and therefore Mrs Adegbite has failed to prove that she was treated less favourably than her white colleague. If, however, we are wrong in so holding, we are satisfied that any difference in treatment was due to Mrs Demirsoz' assessment of the abilities, commitment and potential of the two ladies and had nothing to do with their colour."
[12]Against that background we turn to the points made by Mr Morton in support of the appeal, taking them in what seems to us to be the most logical order.[13]First, Mr Morton refers to what are alleged to be a number of procedural irregularities which it is contended, individually and together, meant that the appellant was not given a fair hearing by the Employment Tribunal.[14]Before considering the particular allegations, we should say that they rely very largely upon the appellant's recollection of the proceedings, although they also, to some extent, rely upon the recollection of Mr Bassett, shortly expressed in an affidavit sworn on 6th December 1999. Where there is an issue as to events at the hearings, we accept Ms O'Meara's recollection and account, supported as it is in some respects by her contemporaneous notes, and supported to some extent by the recollection of the Chairman of the Employment Tribunal, Mr Duncan, and of the other members of the tribunal, Miss O'Sullivan and Mr Wallis, as expressed in their letters of June 1999 and March 2000.[15]The first of Mr Morton's allegations made upon the appellant's instructions is that Mr Bassett, her representative, was allowed less time to cross-examine Mrs Demirsoz than Miss Eady was allowed to cross-examine the appellant. It appears from Ms O'Meara's evidence, which we accept as we have said, that the appellant was some three hours giving evidence-in-chief as Mr Bassett took her through her witness statement. She was cross-examined in all for some eight and half hours, before Mr Bassett re-examined her for an hour. Mrs Demirsoz was cross-examined for six hours by Mr Bassett and Mr Bassett cross-examined the other four witnesses called on behalf of the respondents for between five and thirty-five minutes.[16]It follows that the appellant was cross-examined for longer than Mrs Demirsoz was and we will come later to a separate allegation that Mr Bassett's cross-examination of Mrs Demirsoz was curtailed by the Chairman of the Tribunal. But dealing with this first point, it seems to us that the matter cannot be judged simply by looking at the number of hours of cross-examination. It is perfectly normal for cross-examination of the first main witness in support of an application or claim to take longer than the cross-examination of the respondents' first main witness. There is a lot of sorting out of issues in the cross-examination the first main witness. Secondly, it appears from Ms O'Meara's evidence that cross-examining the appellant involved reading a number of documents to remind the appellant of what they contained. Thirdly, the length of cross-examination of a witness depends to some extent upon how clear the witness's answers are. Finally, both main witnesses, the appellant on the one hand and Mrs Demirsoz on the other, were certainly cross-examined for a considerable period of time, whatever the relative lengths of the cross-examinations were. We see nothing in that criticism taken on its own.[17]Secondly, however, it is alleged that the Chairman placed a time constraint on Mr Bassett's cross-examination of Mrs Demirsoz. It appears that indeed he did but only after Mr Bassett had been cross-examining Mrs Demirsoz for some five hours.[18]We accept the evidence of Ms O'Meara that ultimately the Chairman allowed Mr Bassett a final 30 minutes to conclude his cross-examination, after Mr Bassett had indicated that he required half an hour plus an extra quarter hour if need be. In fact, Ms O'Meara's evidence is that Mr Bassett cross-examined for a further three-quarters of an hour, so he got the full length of time which he had previously indicated. The appellant's own evidence is, nevertheless, that many matters which were to be challenged remained unchallenged. Mr Bassett's affidavit says that there were some questions which he had intended to ask Mrs Demirsoz but which he was unable to. He does not, however, say what those questions were. On the information before us, we are quite unable to say that any time constraint on Mr Bassett's cross-examination of Mrs Demirsoz handicapped the appellant's case in any significant respect or indeed at all.[19]Thirdly, it is said that the Chairman interrupted Mr Bassett's cross-examination of Mrs Demirsoz on a number of occasions.[20]It is common ground that on about three occasion the Chairman asked Mr Bassett how his cross-examination was progressing in terms of time, but only, it seems to us, in order to inform himself as to how the hearing was progressing. It is also common ground, indeed the Chairman accepts, that he did make other interventions, but, by his account, only in an attempt to keep Mr Bassett on the points which were particularly relevant. Miss O'Sullivan's evidence is that the Chairman's interruptions were constructive not destructive.[21]There comes a time when cross-examination about background matters is no longer productive, and an advocate must be directed by the relevant tribunal to concentrate on what really matters. We do not see anything untoward in the interruptions which the Chairman is alleged to have made in this case.[22]Fourthly, it is alleged that Miss Eady refused to let the appellant refer to documents to which she wished to refer when she was being cross-examined, saying that she, the appellant, could only refer to documents to which she had referred in her evidence-in-chief.[23]This allegation is flatly contradicted by Ms O'Meara's evidence, supported by her contemporaneous notes, that the appellant was allowed to refer to documents when she wished to. In any event, Mr Bassett had the opportunity to re-examine the appellant, and thereby to introduce references to any further documents to which the appellant did wish to refer. As we have already indicated, he accepted the opportunity to re-examine in full, taking an hour to do so. We see nothing in this criticism either.[24]Next it is alleged that the respondents were allowed to compile and produce the agreed bundle of documents for the hearing very late in the day, in fact shortly before the hearing started, and the respondents were allowed to put in additional documents late in the hearing, indeed as late as 14th November 1998. It is said that the appellant and Mr Bassett did not have time to digest those documents, particularly quality control worksheets in respect of Ms Dwyer.[25]Mr Morton has referred us to the standard directions given in this case, which provide for disclosure of documents before the hearing. Mr Bassett's evidence supports the appellant's claim that she was prejudiced by the late production of documents. Mr Bassett says that there was insufficient time to research the validity of the documents, but he does not say in what way their contents prejudiced the appellant.[26]Ms O'Meara has given an account of the documents concerned. They were limited in number by her account, which we accept. Some were put in when the issues became clearer as the evidence progressed, a not uncommon occurrence in our experience. Also Ms O'Meara says that Mr Bassett seemed perfectly able to cross-examine Mrs Demirsoz on the quality control worksheets. Today, Miss Eady has pointed out that it is clear from Ms O'Meara's notes that Mr Bassett started his cross-examination of the appellant by referring her to those very documents.[27]We need hardly say that it is better by far if all material documents are in an agreed bundle which is in the possession of all parties well in advance of any contested hearing, but it is almost inevitable that some further documents will be perceived to be relevant or particularly relevant as the case proceeds and, therefore, produced rather late. In this particular case, it is quite clear that Mr Bassett's cross-examination of Mrs Demirsoz started at 1.50 p.m. on 18th November 1998, itself some time after the additional documents had been produced. His cross-examination was interrupted by the normal afternoon adjournment overnight and he resumed his cross-examination at 10 a.m. the following morning, finishing shortly after the mid-day adjournment on that same day. From that chronology it is clear that he must have had time to read the documents and take the appellant's instructions on them well before he completed his cross-examination of Mrs Demirsoz. If any of the documents required further evidence from the appellant, Mr Bassett could have applied to the tribunal to recall her. If he had made such an application and it had been refused he might well have had, and the appellant might well have had, good grounds for complaint, but no such application was made in this case.[28]Next it is alleged, in fact, it is common ground, that witness statements of the respondents' witnesses were only provided to Mr Bassett as each such witness came to give evidence. That, Mr Morton has pointed out, was in direct breach of the standard directions that witness statements had to be exchanged not later than seven days before the date fixed for the hearing.[29]We agree with Mr Morton's submission that production of the respondents' witness statements as each relevant witness came to give evidence was not only in breach of the standard directions, it was completely unsatisfactory. It was particularly unsatisfactory in this case where it appears that the witness statements had been signed on or about 1st July 1998, before the hearings actually began, and there was a further four month passage of time before any of the respondents' witnesses were called in November.[30]What is said on behalf of the respondents is firstly, that the respondents were merely following the practice adopted on behalf of the appellant herself because her witness statement was handed to the respondents' representatives as the appellant came to give evidence. Secondly, it is said that there is no information or evidence in the case of any particular respect in which late production of the respondents' witness statements actually prejudiced the appellant. It is said that it is not unusual in Employment Tribunal cases to try to avoid undue costs of preparation by preparing witness statements late; that it is generally perceived at Employment Tribunal hearing that what is fair for the applicant is fair for the respondents also; that Employment Tribunals will listen to any application which is made for time to consider witness statements which have been produced late.[31]In our view, none of those matters excuse what was done in this particular case, where, as we have said, there was such a long passage of time between the first two days of the hearing in July and the resumption in November. However, we do accept Miss Eady's submission that for all the criticisms which can be made in this particular respect, the ultimate question is whether the appellant has been prejudiced by what happened. We have been referred to a number of authorities, but the test is, as we see it in a situation such as occurred here, is whether there was any unfairness in the conduct of the proceedings before the Employment Tribunal which prejudiced the appellant's interest and thereby vitiated the Employment Tribunal's decision? We cannot see any prejudice to the appellant in what actually occurred in this case. As we have already said, in respect of disclosure of documents, Mr Bassett could have applied for more time but did not. That also applies equally to late service of witness statements.[32]The final criticism which is made of the procedures before the Employment Tribunal, is that Mr Bassett was given insufficient time to make his final submissions.[33]It appears from the evidence of Ms O'Meara that Miss Eady took some 30 minutes over her final submissions aided by their prior reduction to writing. Mr Bassett took some 25 minutes. Miss Eady's oral submissions dealt with some matters of principle which Mr Bassett, therefore, did not have to deal with. Moreover, Mr Bassett ended his submissions at 3.50 p.m. and presumably could have gone on a little longer, if he had wanted to do so. There was no suggestion that he was cut short or asked for more time which was refused.[34]Secondly, and this is the second main point made by Mr Morton, and to some extent underpinning the detailed points which have already been made, it is said that there was an imbalance in representation of the parties between experienced counsel for the respondents and Mr Bassett for the appellant.[35]Miss O'Sullivan has written that there was a disparity in the quality of representation between very experienced counsel and a less-experienced trade union official. It showed, she says, in their conduct of the case.[36]Ms O'Meara, however, knew Mr Bassett as a full-time official of the union who was familiar with Inland Revenue policies and procedures. She understood him to be an experienced caseworker, familiar with the practice and procedure of Employment Tribunals.[37]The Chairman has written that many trade union representatives are conversant with relevant law and procedure. He formed the opinion that Mr Bassett "knew the ropes".[38]Moreover, as Miss Eady has pointed out in her skeleton argument, it was presumably up to the union to decide what the appellant's representation should be and in deciding that Mr Bassett should be her representative, they presumably considered that he was competent to represent her.[39]The relative informality of Employment Tribunal proceedings is designed to effect their conduct in a practical and straightforward manner which can be understood by those who are not legally qualified. The tribunal itself includes lay members from both sides of industry. Employment Tribunals are well used to many different forms of representation. Although this particular application took some time to hear, there is no suggestion that it was particularly complex factually, and there do not appear to have been any points of law which were in any way exceptional. In our view, there are bound to be cases where one party's representative appears to make a better fist of his or her conduct of the hearing than the other side's, but that cannot be decisive of whether the hearing is fair or unfair so as to vitiate the ultimate decision. On what we have learned of the case, there is no evidence that Mr Bassett did not present the appellant's case adequately to the Employment Tribunal.[40]The third point raised on behalf of the appellant is a straightforward allegation of bias on the part of the tribunal. It is made by the appellant alone and does not, in our view, receive any support from Mr Bassett. Nevertheless, of course we must deal with it.[41]It is not alleged that there was actual bias or presumed bias in the sense that it is suggested that members of the Employment Tribunal or any of them had an interest in the dismissal of the application. But, as we understand it, it is suggested that this case falls into the category of decisions which should be set aside because an examination of all the relevant circumstances should lead this tribunal, as the personification of the reasonable person observing the proceedings, to conclude that there was a real danger or possibility of bias. That is now the well-established test when allegations such as that made in this case are made. It has most recently been confirmed as the appropriate test in the case of Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 45 .[42]In support of the allegation of bias, the appellant, in effect, relies on the individual matters to which we have earlier referred. In our view, as those individual allegations fail, as in our judgment they do, so must the allegation of bias. The test of looking to see whether there was any unfairness which should vitiate the decision applies to all the allegations. We have come to the conclusion that there was no such unfairness.[43]Mr Morton made two further points which relate to the way in which the Employment Tribunal Chairman expressed his decision. They were not matters upon which the Employment Appeal Tribunal at the preliminary hearing allowed the appeal to proceed and on that being so, Mr Morton accepted that he was not strictly entitled to argue them today. But we will consider them shortly nevertheless. The first is that the Employment Tribunal failed properly to take into consideration the fact that a personnel officer of the Inland Revenue had found that the "not met" markings in respect of the appellant were incorrect. The second is that the tribunal failed to deal expressly with the five alleged instances of less favourable treatment of the appellant by the respondents.[44]As is clear from the parts of Employment Tribunal's decision to which we have already referred, the Employment Tribunal did refer to the personnel officer's conclusion. It was not bound by his conclusion. The Employment Tribunal clearly came to the conclusion that the appellant's performance was not of its best in the months before she made her application. In our view it had material upon which it could come to that conclusion. Perhaps more importantly to the eventual disposal of her application it also concluded that whether or not Mrs Demirsoz was right or wrong about the appellant's performance, she made it in good faith and without any racial motivation. Again, that was a conclusion to which the Employment Tribunal was entitled to come. It might have been better if the Employment Tribunal had expressly set out each of the main allegations of less favourable treatment, and then dealt with them each specifically. That is the main thrust of the additional points which Mr Morton had wished to take. In our view, although the matter could have been expressed more clearly, if one reads the decision it is quite clear that the Employment Tribunal did deal with all matters and come to a conclusion on each of the matters on the basis of the evidence of which it had heard.[45]The final matter raised by Mr Morton on the appellant's behalf in this appeal is that the date in accordance with the Employment Appeal Tribunal Rules and Procedures for the filing of the respondents' answer to the Notice of Appeal was 19th January 2000. In fact it was filed on 20th January 2000, one day out of time. The respondents sought leave to file it one day late and the Employment Appeal Tribunal gave leave for it to be filed one day out of time.[46]The appellant wishes to challenge that extension of time on the hearing of this appeal. It is quite clear from the Employment Appeal Tribunal's Rules, particularly Rules 26 and 39, that the Employment Appeal Tribunal had jurisdiction to extend the time for the filing for the respondents answer. It has a very wide discretion to do what is just so far as time limits are concerned. We cannot see that its decision in this case was in any way unfair to the appellant.[47]At the end of the day, we have concluded that there is no substance in any of the points made on the appellant's behalf and this appeal is dismissed.