MR A KHAN v 1) TRIDENT SAFEGUARDS LTD 2) MR R SHAW 3) MR A KING [2000] UKEAT 900_00_0611

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 900_00_0611

Case No Appeal No. EAT/900/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A KHANAPPELLANT

1) TRIDENT SAFEGUARDS LTD 2) MR R SHAW 3) MR A KINGRESPONDENT

Before

Sir Christopher Bellamy

Date 6 November 2000

[1]APPEARANCES For the Appellant MR A KHAN (In Person) SIR CHRISTOPHER BELLAMY QC In this matter, which comes before us by way of an Ex Parte Preliminary Hearing, the Appellant Mr Arfan Khan appeals against various orders and directions made by the Chairman of the Employment Tribunal, Mr Peters, sitting at London (South) and dated 8 June 2000.

[2]Those orders and directions were made at a pre hearing discussion on 1 June 2000 in preparation for the disposal of 5 complaints which Mr Khan has brought against his employers, Trident Safeguards Limited, and certain other persons under the Race Relations Act 1976. The substantive hearing of those matters is set down for 4 days beginning on Monday, 27 November 2000. We understand that there is a further interlocutory hearing for further directions fixed for 15 November ie next week.

[3]The 5 complaints with which we are concerned are as follows:(1) No 2301012 – The Appellant complains against Trident Safeguards Limited of racial discrimination in that he was paid less than employees in a different racial group. Following the directions hearing on 1 June 2000 and after considering further submissions made by the parties, Mr Peters has directed by letter of 30 June 2000 that this complaint should further include a complaint of racial discrimination by way of victimisation. The essence of that complaint concerns an assault alleged to have taken place on the Appellant on 1 January 2000 and his employers' response to that assault as particularised in the second schedule to the Order of 8 June 2000.

(2) &

(3) Nos 230339 and 2302340 concern claims of victimisation and racial discrimination brought against Trident Safeguards and their employee, Mr R Shaw respectively. The essence of the complaint is that Mr Shaw telephoned the Appellant on 24 January 2000 and ordered him back to work although he was unwell, this being after the Appellant had claimed racial discrimination in respect of the equal pay matter.

(4) &

(5) Nos 2302341 and 2302344 also concern claims of victimisation and racial discrimination in this instance brought against Trident Safeguards Limited and Mr A King respectively. The essence of the allegation is that Mr King accused the Appellant of stealing things on 28 January 2000. Again, this was after the Appellant had raised the matter of racial discrimination as regards equal pay.

[4]The Order of 8 June 2000 deals with a large number of procedural matters in preparation for the determination of this case and summarises in the first schedule the issues that arise on each of the above complaints. The Applicant challenges a number of those directions and we think the best approach is to go through each of those challenges by reference to the Notice of Appeal also supplemented by the Skeleton Argument.

[5]Since the Notice of Appeal was lodged the Appellant has more recently raised certain other matters, of which a principal point is an application for an adjournment of the hearing fixed for 27 November and a request for the Chairman's notes, as well as certain other matters relating to the conduct of the proceedings. We will deal with those at the end of this judgment.

[6]Although the Appellant has represented himself, his Notice of Appeal contains an exceptionally full argument in which his point of view is fully presented. We have paid close attention to this document but did not think it necessary to set out in detail all the arguments which it advances.

[7]By way of a general comment, however, we have to bear in mind that at this stage we have to determine whether this Appeal discloses an arguable error of law in the order made by the Chairman on 8 June. Since, moreover, the orders made are those that lie within the ordinary discretion of the Employment Tribunal, an error of law can only be shown in this case if it is established or, as far as we are concerned it is at least arguable, that in exercising his discretion the Chairman of the Tribunal has applied a wrong principle or has arrived at a result to which no Tribunal properly directing itself could have arrived.

[8]That is a stiff test to meet. And the reason for it is that, essentially, it is up to the Employment Tribunal itself to decide how to run the case. It is only extremely rarely that the Employment Appeal Tribunal is able to interfere in such matters. And in this particular case there are still interlocutory hearings to take place next week before the main proceedings commence.

[9]The Applicant challenges 7 aspects of the directions made as follows.

[10]The first matter is the Notice of Appearance by Mr King. This concerns complaint No 2302341 against Mr King who has said to have falsely accused the Appellant of stealing things on 21 January.

[11]On 17 May, the Appellant wrote to the Tribunal Chairman alleging in essence that Mr King had been perverting the course of justice in seeking to persuade certain witnesses to provide false statements. He asked the Chairman among other things to debar Mr King from defending or for such other directions the Chairman should wish to make.

[12]It appears, however, that Mr King himself, had not entered a Notice of Appearance in relation to the complaint made against him, although the Respondent Company Trident Safeguards Limited had entered a Notice of Appearance in complaint No 2302344 through their solicitors Brooke North. In complaints 2302339 and 2302340 Brooke North represent both Trident and the employee there concerned, Mr Shaw.

[13]Now, the Order made by Mr Peters on 8 June in respect of this matter was that the Notice of Appearance in Case 2302344, that is to say, the appearance entered on behalf of the Respondent Company, shall also stand as a Notice of Appearance on behalf of Mr King in Case No 2302341 without the need for service of the same upon the Applicant.

[14]Essentially, in paragraphs 1 and following of his Notice of Appeal, the Appellant argues that Mr King did not enter a Notice of Appeal deliberately in order to avoid the proceedings. It is not certain whether he is represented by Brooke North. No explanation has been given for the non-entry of his appearance, and Mr King should be debarred from taking part in the process. Indeed, it is also said that both Mr King and the Respondent Company Trident should be debarred because they have allegedly been perverting the course of justice.

[15]Before us, the Appellant has also emphasised that the Chairman had no jurisdiction to make this Order. The only Order that he could have made, was an Order giving an extension of time for entering a Notice of Appearance, and he can only do so on the basis of reasonable explanations being forthcoming which are not present here, so the Appellant says.

[16]On this point, we have got no direct indication as to why an appearance was not entered on behalf of Mr King, whether by Brooke North or otherwise, nor do we have reasons from the Chairman as to the course that he took. However, it is the case that as the Appellant points out the Tribunal has jurisdiction to extend time for entering a Notice of Appearance and in this case it is implicit in the Order made by the Chairman that he has indeed implicitly extended time to include Mr King. The effect is that there is no doubt that Mr King is fully a party to the case.

[17]We are not able, as an Appeal Tribunal, at this stage to go into detail as to what explanations were or were not given before the Chairman regarding the apparent non-entry of appearance by Mr King. We simply observe that the Tribunal is not obliged to debar a Respondent from defending; even if a Notice of Appearance is entered late it is still entered. There is no material before us upon which we could say that the Order made by the Chairman in this respect shows that the Tribunal erred in law. It may, indeed, be added that it may well turn out to be in the Appellant's interests rather than the reverse that Mr King is fully a party to the process and that Orders can indeed be made against him in that regard.

[18]Clearly, the allegations made in the Notice of Appeal that Mr King or Trident should be debarred from defending because of the allegations regarding perverting the course of justice, are not matters that can be gone into at this stage because those matters are by definition not yet established.

[19]So, we have come to the conclusion on this point that we are unable to identify a reasonably arguable error of law in relation to the course taken as regards the Notice of Appearance by Mr King.

[20]That takes us to the second matter which is an Application to add 2 further Respondents in Case 2301012, a Mr John Wright, who is the managing director of Trident, and Mr Mark Harman, one of the Applicant's superiors. This is the equal pay case and on this Application the Chairman said:

"Having concluded that adding Mr Wright and Mr Harman would not further the interests of justice or the just disposal of the complaint set out in the originating application, bearing in mind the prejudice to the proposed Respondents in joining them into proceedings so long after the events. I refuse the Application to add Mr Wright and Mr Harman as further Respondents."

[21]The Appellant says first of all as regards to Mr Harman that, having subsequently to the Order of 8 June decided, by direction of 30 June, to allow the victimisation complaint, it would be only fair and just for the Chairman to order that Mr Harman should be added as a party, because Mr Harman was the person who had investigated the assault incident on 1 January.

[22]As against Mr Wright, the Appellant's case is that he, Mr Wright, consciously or unconsciously excluded the racial element when investigating the Appellant's complaint of unequal pay and should thus be held responsible for racial discrimination in his personal capacity on the basis of certain recent authorities including a decision of the House of Lords to which the Appellant has referred us.

[23]These points were put to the Tribunal in the Appellant's letter of 16 May 2000. As regards first Mr Wright, the Appellant's IT1, in the equal pay case, takes as the date of complaint 23 December 1999, which is a date when the Appellant received a letter from Mr Wright. Indeed, he also received a further letter on 14 January concerning the equal pay matter. It is plain, therefore, that the Application to add Mr Wright on the basis of the IT1 was out of time. The Appellant has already his complaint against the Respondent Company, which will in itself ensure that the issues the Appellant raises are seriously and properly investigated. There does not therefore appear to us to be any overwhelming reason why the Chairman should not have taken into account the prejudice to the proposed Respondents in joining them into proceedings so long after the event.

[24]Furthermore, we are not persuade by the arguments elaborated in the Notice of Appeal to the effect that Mr Wright, in this particular case, is plainly and obviously liable for racial discrimination in his personal capacity. Bearing all those matters in mind, we find it impossible to say that in all the circumstances, the Tribunal wrongly exercised its discretion in refusing to add Mr Wright out of time. That was a decision that lies well within the range of decisions that such a Tribunal can come to, and is not one that no reasonable Tribunal could have come to, which is the test to be applied in this case.

[25]As regards Mr Harman, the original IT1 made only unspecified reference to victimisation. There was in our judgment nothing to stop the Appellant at that stage including more details of that allegation or indeed, citing Mr Harman personally. The incidents that are now referred to in Schedule 2 to the Order of 8 June relate to January 2000 and, once again, it is plain that the Application to add Mr Harman would be an Application that is made out of time.

[26]In the letter of 16 May, 2 points are made, the first is that Mr Harman was in charge of the discriminatory pay policy, but we would not consider that an argument in itself. That is sufficient reason for joining Mr Harman personally out of time. We see no error of law in that regard.

[27]The other matter raised in the letter of 16 May, was that Mr Harman was the author of the incident of 1 January, but by the hearing of 8 June 2000 the Chairman had not yet reached the decision on whether that incident formed any part of the complaint. The Chairman did not rule on that matter until 30 June. We think it hard to criticise the Chairman for not adding Mr Harman in the Order of 8 June in relation to the victimisation complaint at a stage when it was not yet clear whether or not the victimisation complaint was part of the proceedings. There is a prejudice to a Respondent in being joined in the proceedings at a very late stage and that also applies in the case of Mr Harman.

[28]We cannot therefore, detect an error of law made by the Chairman in not adding Mr Harman as matters stood when the Order of 8 June 2000 was made. That is the Order that is appealed from in this case. It may be that the Appellant could or perhaps did apply to the Chairman to review his decision regarding Mr Harman after the Order of 8 June was made in the light of the further Order of 30 June. That is a separate matter, which is not at this stage within the parameters of this Appeal.

[29]That takes us on to the question of further particulars. In a letter of 24 March 2000, the Appellant asks for further particulars of paragraph 7(1) – 7(13) of the Notice of Appearance in Case 2301012, as well as certain documents namely, the payslips of Ms Emma Warman and certain other documents relating to the investigation of the incident of 1 January. In paragraph 3 of the Order of 8 June the Chairman said that:

"Having established the issues as set out in the First Schedule to this Order I refuse the request as I consider the issues are established with sufficient clarity and because I consider that the requested particulars relate to matters of evidence which are matters to be dealt with at the hearing."

[30]The Appellant, in pursuing his application for further particulars, refers to an apparent change of front on the part of the Respondent Trident, in that initially they had said in the Notice of Appearance that only one other employee, Ms Warman, had been paid at a higher rate, owing to an administrative error. And they now say apparently that 2 other employees were paid at a higher rate, again allegedly owing to administrative error.

[31]At paragraph 3.4 of the Notice of Appeal, the Applicant identifies certain other matters that he asks the Chairman to have ordered to be supplied, relating to the names and status of the previous employer allegedly involved, the relationship of that employer with Trident, the date of start of employment for both employees with Trident, and the previous employer, their rates of pay and so forth.

[32]At paragraph 3.7, he also asks for particulars of various dates when Mr Wright or Mr Harman checked the records when the alleged administrative error was detected, the cause of discovery of that error, and the dates of various conversations between Mr Wright and Mr Harman in that regard.

[33]There is also to be noted in this respect, an Order for discovery in the third schedule to the Order of 8 June, which includes the pay records of Ms Warman, Mr Nigel Bligh and Mr Eric Morton. An Order for the discovery of all documents in the Respondent's possession or power relevant to the proceedings is included at paragraph 7 of the Order of 8 June. There is a provision for inspection of documents. There is also provision for the exchange of witness statements which is due to take place in fact on 6 November.

[34]In this respect, it is in our judgment very much for the discretion of the Tribunal to assess whether what has been indicated in the Notice of Appearance requires the supply of further and better particulars, or whether that particular matter is best dealt with by discovery, and through the exchange of witness statements. It is very often more convenient for these matters to be done by reference to the original documents and the statements of witnesses than to have a further round of further and better particulars.

[35]Doing the best we can on the information that we have got, and bearing in mind that the Chairman has himself established the issues in the first schedule to this Order, we find it impossible to say that the Chairman has erred in law in the exercise of his discretion in making the Order that he did. If at the stage of the interlocutory hearing next week on 15 November the Appellant still feels that the information supplied by the Respondents is inadequate, it is open, of course, to him to renew his application before the Tribunal for further information or for further discovery of documents. That again, is a matter of the procedure of the Tribunal, and is very difficult for the Appeal Tribunal, limited as it is to errors of law, to come to a different conclusion from that of learned Chairman.

[36]The next matter that the Appellant raises is the question of the combination of the cases. The Appellant contests the joiner of the 5 cases that I have mentioned, and feels that this puts him under a great deal of pressure in preparing his case given that he is acting in person and their respondents on the other side have lawyers working for them to prepare these matters.

[37]We have, of course, sympathy with the Appellant in this particular situation. But rule 18 of the relevant Tribunal rules in the first schedule to the Employment Tribunal (Constitution and Rules and Procedure) Regulations 1993 gives the Tribunal power to combine the applications where there is a common question of law or fact in some or all of the applications, or whether the relief claimed is in respect of or arises from the same set of facts, or for any other reasons it is appropriate to make an Order under this rule.

[38]It appears to us that the facts that affect the application in this case cover a relatively short time frame, basically in December and January 2000. They concern the same respondent, Trident and various employees of that Company. It is normal practice to hear cases of this kind together and that tends to lead in the end to a shortening of time and saving of costs. It is generally, therefore, in the interest of justice rather than the reverse to join the cases. We are sure that the Tribunal when it comes to the hearing will protect the Appellant as far as it can, but it is not possible for us to say that the Chairman has made an error of law in ordering a joiner of the cases.

[39]That takes us on to the question of discovery, which we have already touched on. The Appellant essentially complains that the discovery ordered in this case has been too limited, and the particular point is made that the payslips for the comparator employees is limited to the period up to 25 February. Here again, the Chairman's order in this case is not only for certain specific discovery as set out in the third schedule, but, also in the normal form for disclosure of documents which are or have been in the possession or power of the parties relating to the matters in issue in these proceedings.

[40]Therefore, it is the Respondents' duty to provide all the relevant documents in accordance with that Order and they risk a sanction being imposed upon them if they fail to do so as is made clear from the notes to the Chairman's Order of 8 June. The Appellant is not entitled to any more than the documents that are relevant to the proceedings and it is up to the Respondent to produce those documents. If the Respondent does not produce those documents the Appellant's course is to make further application to the Tribunal. Indeed, it appears from some of the recent correspondence that we have been shown that there is at the moment some questions as to whether full discovery has been made and that matter is currently being pursued before the Tribunal.

[41]The Chairman of the Tribunal's letter of 4 October to the Appellant did indicate that at least some of the further discovery that he was seeking does appear to concern relevant documents. Again, in the ordinary way discovery is a process, sometimes an on-going process, that proceeds before the Tribunal in question and it is very difficult for the Employment Appeal Tribunal to interfere with that matter. We cannot as a present advised see any reason for holding that the exercise of the Chairman's discretion and indeed the details of the specific discovery ordered in the third schedule exceed the very wide margin of appreciation that is properly accorded to the Tribunal in the circumstances of this case.

[42]The same considerations in our judgment apply to the sixth complaint which is the question of disclosure and inspection of documents. There is a request for the timetable there to be held in abeyance. But on the information and the material has been supplied to us in argument, there seems to us no reason why the timetable envisaged by the Order of 8 June should not proceed as there set out. And we will come back in a moment to the timetable when we are considering the Application to adjourn the Appeal set down for 27 November.

[43]The final matter is the question of witness statements, and there the Appellant's principal contention is that he has difficulty in calling witnesses who are employees of the Respondent, Trident Safeguards, because those witnesses could be afraid of putting their jobs in jeopardy and that the way round this is for the Chairman to issue subpoenas and for the witnesses to come forward in response to subpoenas rather in response to witness statements prepared in accordance with the Chairman's Order.

[44]Once again, the normal procedure in such cases is to proceed by way of witness statements and the Tribunal in paragraph 10 of its Order of 8 June has made a normal order in respect of witness statements, and evidence without witness statements and exchange of witness statements is also dealt with at paragraphs 11 and 12. We can detect no error of law in that approach. If it be the case that there were witnesses that the Applicant would wish to call which are not the subject of witness statements then it is for him to make any appropriate further application to the Tribunal and it is not a matter that we can deal with. Similarly, outstanding matters such as possible non-compliance with discovery are matters not for us but for the Tribunal hearing the case.

[45]As regards the application for an adjournment which has been raised before us today, again we are very conscious of the pressure that Mr Khan must feel. But, in view of the state of the list in Employment Tribunals and of the difficulties in re-assembling Tribunals and in finding time set aside to hear cases such as this, and now 4 days has been set aside, it is only in exceptional circumstances that at this stage the matter should be adjourned.

[46]It is, we would comment generally, undesirable for the kind of events that are the subject of the proceedings to go cold. And it is in everybody's interests that these proceedings should come on on the due date, which is already very nearly a year after the various incidents that are alleged to have taken place. Again, we are sure that the Tribunal will see to it that Mr Khan is not prejudiced or affected unfairly by the fact that these proceedings are continuing in accordance with the timetable laid down.

[47]If, of course, there were further matters of discovery or evidence to be sorted out, it would always again be open to Mr Khan to make a further application to the Tribunal below once witness statements had been exchanged if there is reason to do so. But we would think it very much in his interests that this Appeal should continue on the due dates and it would be quite exceptional for this Appeal Tribunal to order an adjournment.

[48]Similarly, it is extremely exceptional at this stage of the proceedings for us to order the Chairman's notes and we find no reason to do so in this particular case. The result of all this is that despite the extremely able way in which Mr Khan has presented his case we are unable to find in his favour on this particular procedural appeal which must in consequence be dismissed.

[49]We are obliged to refuse leave to appeal on the grounds that such an Appeal would in our view have no reasonable prospect for success. It is open to you to ask the Court of Appeal itself, to grant you leave and that is not a matter for us. We have to refuse you leave at this stage.