MRS H ANIRAH v ASDA STORES LTD [2001] UKEAT 0254_01_0308

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0254_01_0308

Case No Appeal No. EAT/0254/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS H ANIRAHAPPELLANT

ASDA STORES LTDRESPONDENT

Before

Mr Justice Lindsay

Date 3 August 2001

[1]APPEARANCES For the Appellant MRS H ANIRAH (The Appellant in person) MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a Preliminary Hearing, the case of Mrs H Anirah v Asda Stores Ltd . It is the appeal of Mrs Anirah and she has appeared before us today in person. On 8 April 1999 Mrs Anirah presented an IT1 for unfair dismissal, racial discrimination, sex discrimination and disability discrimination. Mrs Anirah is a black diabetic of Nigerian origin. The Employer, Asda, on 16 April 1999 lodged its IT3. They claimed that she had stolen chicken drumsticks and had been dismissed for that reason. They took the point also that her complaint of 8 April 1999 was out of time. They said that no discrimination of any kind was involved in her treatment.

[2]On 13 May 1999 there was a hearing at the Tribunal at Stratford dealing simply with the question of jurisdiction; was her claim out of time and if it was, was it just and equitable to extend time? On 14 June 1999 Summary Reasons were sent out representing the conclusion of the hearing on that point. On 22 July the Extended Reasons were sent out. The decision of the Tribunal at Stratford under the Chairmanship of Miss R A Lester, was this: "A Tribunal has no jurisdiction to consider the Applicant's complaint of unfair dismissal but has jurisdiction to consider her complaints of sex discrimination, race discrimination and disability discrimination." and arrangements were made for a Merits Hearing dealing with such part of the case therefore that went forward.

[3]In September 1999 and spread over to November 2000 (and one notices an exceptionally long spread) there were 6 days of hearing during which Mrs Anirah was represented by Counsel, as indeed was Asda. The very long interval that had occurred between the first day of the hearing in September 1999 and the last day of the hearing in November 2000 was because one of the members of the original panel had fallen sick and the parties chose, as was their entitlement, not to continue with a panel of only 2 and so there was, inescapably, a long gap.

[4]On 12 December 2000 the decision was sent to the parties. It was the decision of Mrs V K Gay sitting with Mr Castle and Mr Ramsay at Stratford. The unanimous decision of the Tribunal is that:

"(i) the Applicant's claims of unlawful race, sex and disability discrimination in respect of dismissal fail and are dismissed; (ii) the Applicant's claim of unlawful sex discrimination in respect of subjecting her to a detriment succeeds to the extend set out in para 6.1A(iii) and para 7 below; (iii) the Applicant's claims of unlawful race and disability discrimination in respect of subjecting her to a detriment fail and are dismissed;"

Then there was a reference to there needing to be a remedies hearing if terms could not be agreed in respect, presumably, of the minor matter in which Mrs Anirah had succeeded.

[5]That was 12 December 2000. On 4 January 2001 there was a Notice of Appeal from Mrs Anirah. It is, I think it is fair so say, a home made appeal. It says this:

"The chairman erred in law. My evidence not applied appropriately by the Tribunal. The other side used a lot of forged evidence not questioned at the hearing."

The Notice of Appeal was so vague that the Employment Appeal Tribunal asked for particulars of it on 25 January 2001. They did not come in in time. On 2 February the Employment Appeal Tribunal extended time for the particulars until 22 February 2001. On that day, Mrs Anirah gave the necessary particulars.

[6]On 26 March Mrs Anirah swore or lodged an affidavit that, as it seems, for the first time complained about bias on the part of the Employment Tribunal. Broadly speaking the affidavit is not so much as to bias or misconduct but more as to alleged errors and mistakes that are said to have occurred in the course of the hearing on the Tribunal's part, but there are 2 aspects that emerge from the affidavit that might be described as bias. In relation to the making of adjustments to Mrs Anirah's witness statement, was she stopped from doing that and, if so, what was the effect of that? Also, secondly and perhaps more importantly, as to her having what is known as a 'hypo attack' during the course of the hearing, "Hypo attack" referring to hypoglycaemia and related, of course, to her diabetes. As is the usual custom of the Employment Appeal Tribunal, the affidavit, being one that suggested shortcomings on the part of the Tribunal, was sent to the Chairman, Miss Gay, for her comments. On 3 April she did comment on the affidavit and we have those comments before us.

[7]It is hard on reading the full Extended Reasons of the Tribunal not to form a view that they represent an exceptionally thorough, even handed and careful assessment of the case such as was put in front of the Tribunal. The decision is spread over some 20 pages of close typing. Nevertheless Mrs Anirah has since added some 10 pages of complaints about the decision. Not one of the complaints truly seems to attack the subject that should be before us, which is the identification of errors of law on the part of the Tribunal. The Employment Tribunal looked at the case against her as Asda saw it at the time and, in summary, the position that had appeared to Asda was this: that Asda believed that she had been a thief of company goods. Theft from the company was invariably treated sternly. An attempt was made by Mrs Anirah to explain the events (which, of course, were not accepted as being theft on her part) by reference to her medical condition. It was said that she was exhausted or confused, but she was in some difficulty because in trying to exculpate herself she had told different stories on different occasions. She also made complaints about other ways in which (she said) she had been treated less favourably than she should have been and she attributed that to race or sex or disability. The Tribunal held that she had been unable to discharge the burden of proof, the balance of probabilities, applicable in such cases. In some cases her evidence was simply not accepted. The Tribunal held that the Company had conducted an exhaustive investigation and that the Company had indeed believed that she had been guilty of gross misconduct. There had been a disciplinary appeal which took a careful look at her medical condition. That appeal failed and a further disciplinary appeal also failed. She had identified one or more comparators to compare her treatment in an attempt to show that she was treated less favourably than others but they, in the Tribunal's view, were not useful comparators because the cases were not like-with-like comparisons. She did in one minor respect succeed, as will have appeared from the point at which I set out the conclusion of the Tribunal. The Tribunal was not, as it were, devoted to finding no good in her case; she did, indeed, succeed in a small part of her case.

[8]That is something by way of a rather crude summary of the decision of the Employment Tribunal and the way that they looked at things. Mrs Anirah raises a number of complaints. Not all of these have been ventilated before us today orally but they have not been abandoned either and so they ought to be touched upon. I should say that ultimately we had to impose a guillotine on Mrs Anirah. We started within a minute or two of the due time at 10.30 and at about 11.48 I indicated that really we did have to put a guillotine upon Mrs Anirah's argument. She had been several times asked to direct herself to whether there were errors of law in the Tribunal's decision and at about 11.48 the indication given to her was that the guillotine would fall at 11.55, so she was given a further 7 minutes. Preliminary Hearings such as this, as will be seen from the Employment Appeals Tribunal's Practice Direction , are expected to take a maximum of 1 hour. Ultimately the guillotine did fall very shortly after 11.55. I mention that because not all of the points that I am going to refer to were actually orally taken up by Mrs Anirah, but, as I say, not abandoned either.

[9]At 5(iii) on page 9 she says that the medical report from Simon Aylwin did not say that she would recover within 20 minutes by consuming sweets drinks or food. This goes back to the question of her diabetes and to the hypo attack, which we will have to come on to in more detail. But the Tribunal did not say that she would recover within 20 minutes by consuming sweets, drinks or food. The Tribunal said:

"She became dependent upon insulin to control her diabetes in 1996. She is prone to hypoglycaemic attacks ('hypos') when her blood sugar level drops without warning. In order to avoid hypos the Applicant requires to test her blood regularly during the day. If the Applicants' blood test shows that her blood sugar is low, she will "on the whole" avoid or recover within 20 minutes from a hypo by consuming sweet drinks or food and/or glucose tablets. The phrase in inverted commas is from a medical report from Simon Aylwin who was assisting in the Applicant's case at the Royal London Hospital. During a hypo her heart pounds, she has a tendency to panic and may become confused and forgetful."

Dr Aylwin's report does indeed use the expression "on the whole". He says:

"It is very important that members of your Company [it is a letter addressed to Asda] particularly the first aiders present should understand that symptoms of anxiety are part of the hypoglycaemic state and need to be treated immediately. On the whole when this occurs, the symptoms resolve within 20 minutes and normal activity can be resumed."

The company had good reason to believe that Mrs Anirah's medical condition had not explained or justified what they believed to have been a theft; it did not exculpate her. Mrs Anirah says that the Employment Tribunal misunderstood a document. What the Employment Tribunal took to be an agreed prescription as to how to deal with diabetes was in truth, she says, merely a complaint that she made. We have not seen the document and it is hard to form any view as to an arguable error of law when we have not seen the document.

[10]She complains as to a list of tasks that was drawn up for her by Mr Ansell, but Mr Ansell's evidence was accepted in relation to the list and, indeed, his evidence was described as having been uncontradicted. Mrs Anirah implies that certain events should have been construed as an attempt to displace her from her job as Warehouse Manager in early spring 1998. The Tribunal said: "The Applicant felt that this was an attempt to displace her, but we do not accept that, because she stayed on in the position without any threat to her at that time. The Applicant complained that the borrowed manager gave orders and acted as if he were running the warehouse. Mr Ansell told us that had not been his intention and that he did not know about it. Had it happened, he would not have permitted it, because it could have undermined the Applicant. There was no contemporaneous complaint. We have no reason to believe that that was not a permissible option open to the Tribunal on the evidence which it heard.

[11]The next complaint – and I am going through the complaints that Mrs Anirah made in her further and better particulars rather than what she has addressed orally – the next complaint relates to consideration of her needs as a diabetic. That was relevant to excuse or explain what the company believed to have been a theft and also it had implications as to whether adequate adjustments were made, recognising that Mrs Anirah was a disabled person. In relation to the alleged theft the company was held by the Tribunal to have looked carefully at the medical questions that arose. The Tribunal said this:

"They came [that is the company] to the conclusion that although she had felt unwell on the night of 3 July, that unwellness had not caused such anxiety and/or confusion that she put her health first and decided to hurry home, rather than sorting out matters in respect of the chicken pieces. In respect of all this we have found that: - the Applicant put one bag of chicken pieces into an Asda shopping bag which she took, - she put a box containing another bag of the chicken pieces in a deep freeze, - she organised a lift home, - she kept that lift waiting while she went shopping, - she shopped in an unhurried fashion, - after the incident she did not hurry home, but sought to persuade Mr Moore not to suspend her, - she did not mention to anyone that night after the incident that she was unwell. There was nothing in all this to suggest, then or now, that her conduct in respect of the chicken pieces was in any way affected by her medical condition or her disability or anything related to it. We are satisfied that in respect of this incident the Applicant's disability did not put her at a disadvantage in respect of the Respondent's disciplinary procedures, either at all or substantially (which we take to mean more than a minor or trivial disadvantage). In consequence, no duty to make reasonable adjustments arose."

Then a little later the Tribunal says under the heading 'Dismissal: less favourable treatment for a reason related to a disability':

"We are not satisfied that the Applicant suffered less favourable treatment for a reason related to her disability (or at all) than she would have received had she not had the disability. On the basis of all the evidence, the Respondent was entitled to conclude that the disability was irrelevant and we so conclude."

We detect no error of law in that part of the case.

[12]Next comes Mrs Anirah's complaint dealing with Mr Ansell's attitude to her clothing. He had said to her, this is as the Tribunal found it:

"She was told at a meeting on 12 May 1998, that she needed to wear business dress and that her choice of colours was inappropriate. Mr Ansell explained this to the Tribunal on the basis that working in the warehouse led clothes to become dusty and that the Applicant's clothes came to look 'tatty' or dirty. This, he considered, was inappropriate."

The Employment Tribunal heard the evidence and they felt unable to determine the issue one way or another. They say:

"We feel unable to determine this issue. …….We have considered whether our findings on other matters assist us in coming to a conclusion here and have determined that they do not do so sufficiently to enable us to determine the matter in the Applicant's favour on the balance of probabilities. "

The complaint that Mrs Anirah makes is this:

"In my view, I submit that a reasonable tribunal could have reached the decision that this is part of the harassment that I suffered if the Tribunal had investigated properly."

One notices there, 'I submit that a reasonable tribunal could have reached the decision'. It is no error of law to identify a case where the Tribunal could have reached a different conclusion. It is incumbent upon an Appellant who has to show to us an error of law that the Tribunal could properly have come to no other conclusion than the conclusion which Mrs Anirah insists upon. To say that the Tribunal could have concluded differently, is not to identify an error of law. Mrs Anirah says: "From the evidence in the bundle, it shows clearly that Mr Ansell and Ms Stratford did not treat me in the same way as the other managers." but that of itself is not actionable discrimination. What was the reason for the difference in the treatment? Mrs Anirah failed to satisfy the Employment Tribunal that the reasons for any differences that were proven were either race or sex or disability. We have no reason to think that the Tribunal was in error of law in ascribing other reasons to the differences between the way in which Mr Anirah was treated and the way in which her comparators were treated.

[13]Mrs Anirah complains about this as a finding by the Tribunal. The finding is this:

"She also asserted that Mr Ansell kept her at one meeting even though she asked on a couple of occasions to be allowed to leave because she needed to eat in order to avoid a hypo. She told us that when the meeting ended she was then unwell. The Tribunal is not satisfied that this incident occurred as described. We accept that the Applicant did on one occasion become so unwell at work that an ambulance was called for her, but we do not attribute this to Mr Ansell."

The complaint that Mrs Anirah makes is: "The Tribunal did not examine me on this at all." but it was for her Counsel to examine her. If she failed to give evidence on a particular point that is not the Employment Tribunal's fault, still less an error of law on the part of the Tribunal. Mrs Anirah says, in effect, that if the ambulance man had been called he would have been willing to give evidence on her side and that the ambulance man or men had indicated that if only they had been asked by the Tribunal itself to give evidence they would have done so. But what evidence is to be called on behalf of the Applicant is very much to be decided upon by the Applicant, especially when the Applicant appears by Counsel, and if no witness summons was issued to require the ambulance men to attend then they failed to attend and that is not an error of law on the Tribunal's part; indeed, it is not an error of law on anyone's part.

[14]Mrs Anirah continues in some detail to attack various findings of the Tribunal in her pages of particulars. It has to be borne in mind that the Tribunal hears oral evidence as well as looking at the documents and that it has to bear in mind all the evidence, not just the evidence of one side. It is entitled to prefer the evidence of one side to another. If there is any evidence for a given conclusion then that conclusion cannot be said to be devoid of support and cannot be attacked as being against the weight of the evidence because the weight of the evidence is a thing that is left to be decided by Tribunal.

[15]Mrs Anirah makes a complaint that a video should have been shown and would have helped her as indicating how she had dealt with the chicken drumsticks and the shopping and so on. But Mrs Anirah, as we have said, was represented by Counsel and Counsel made full submissions and yet, as far as one can tell, there was no indication by Counsel that Counsel required the video to be seen. Still less was there a ruling that the video should not be seen and, even further less, an appeal against a decision that it should not be seen.

[16]Mrs Anirah makes a lot, quite rightly, of the fact that she suffered a hypo attack during the Employment Tribunal hearing. The Chairman gives a detailed account of the attack and the steps taken to ensure that as far as possible justice was done and that Mrs Anirah did not suffer by reason of having the attack. Mrs Anirah says:

"It was only after the Tribunal's decision that I found out that the Tribunal still used in its decision what I said during the period of my hypo attack. Mrs Gay promised that I would be re-examined with regard to the point regarding my dropped performance with reference to Ms Sally Johnson's letter to me which the other side used against me but I was not given the chance to do so."

The case that is made in relation to the hypo attack is that a diabetic does not necessarily know when a hypo begins. Obviously there may well come a point, and there did here come a point, at which Mrs Anirah as a diabetic recognised that she was having a hypo and that she then indicated that was the case but no diabetic can be sure, says Mrs Anirah, of precisely when a hypo begins and it could well be, therefore, that she was giving evidence during a hypo at a stage that she had not recognised that she was suffering from a hypo and could have given evidence that was not what she would have wanted to say had she been in good health and she could therefore have misled her advisers and the Tribunal. That plainly is a medical possibility. One would expect that if a witness's or a party's answers began to go 'off the rails' so to speak, that experienced Counsel would notice that evidence was being given that did not do the witness or the party justice. There is no indication that anything of that nature occurred and it was, as I mentioned, Mrs Anirah herself who indicated that she was having a hypo. What then happened is dealt with at some length by the Chairman in her explanatory answer. She says this:

"At about 3.20pm on the second day of the hearing Mrs Anirah had given evidence in chief, cross-examination and re-examination and I was asking her questions on behalf of the Tribunal. After one answer she said words to the effect that she was in a hypo."

It is worth noticing there that in the ordinary way one would have expected the Tribunal's questions to be relatively limited. There had already been evidence in chief, cross-examination and re-examination. Once Mrs Anirah had indicated that she was in a hypo, the Chairman continues to explain that the Tribunal recognised that the situation was serious. The Chairman says:

"I asked what we could do and offered to leave the room if it were easier for Mrs Anirah to remain where she was. My recollection is that everyone present was prepared to be guided by Mrs Anirah's response here. We thought that she might not be able to move and we were ready simply to walk out. Mrs Anirah indicated that she wanted to leave the room and this is what in fact happened."

The Tribunal then broke off for about 40 minutes. Mrs Anirah's Counsel came back and reported about the low blood sugar level probably coming up. The Chairman said:

"We considered what was appropriate to do with the remainder of the day and determined in fairness to Mrs Anirah simply to finish her evidence formally if and when she felt well enough to return."

Then the Chairman says:

"The Tribunal resumed at 4.05pm. In enquired of Mrs Anirah how she felt and she replied that she was okay. I informed Mrs Anirah that we had finished questioning her so far as the Tribunal was concerned, but asked whether there was anything that she wanted to do or to explain because of the condition in which she had been at the end of the period when I had asked her questions. Mrs Anirah told me that she was not sure what she had said in answer to the last few questions. I therefore read back to her the notes which I had made over the last five minutes of the hearing before the adjournment. I looked towards both representatives and their instructing solicitors, who had been taking notes of the evidence, and nodded in agreement with what I read. Mrs Anirah indicated she did not disagree. Mrs Anirah then said that she wanted to be reminded of the questions which I had asked about feeding the chicken to the birds. I explained the questions, which had been put just before those which I had read back to her. [So at that point one is going back further than 5 minutes] They included asking Mrs Anirah how she explained the two different accounts which we had recorded about her intended use of the chicken. After I had explained the questions Mrs Anirah said: "

That is not what I meant to say". I pointed out that I had not read what she said, because I had only repeated the questions (as she had asked). In fact she had not at the time provided any answer. I then invited her to answer the question, putting it to her again. Mrs Anirah then gave an answer to the question, which repeated one of the two versions that she had previously given, namely that she took the chicken because the children were going to the farm, but which did not explain why she had previously given two different accounts. Thereafter I ascertained whether either representative had any further questions. This was an opportunity for Ms Moore [that is Mrs Anirah's Counsel] to re-examine further if she felt it appropriate. Neither Counsel had any questions and we adjourned for the day. It follows that Mrs Anirah is correct in saying that she wanted to be asked again. She was asked again. Neither before or after the hypo was she able to answer the point that was troubling the Tribunal. I believe that this is the issue about which she is complaining here, but on the basis of the full description of what occurred at the Tribunal hearing, I deny that anything unfair or untoward occurred. Mrs Anirah was given every opportunity to explain herself. It was her inability to do so (either before or after the hypo) which the Tribunal recorded in its findings of fact at (xl) on page 14 of the extended reasons." We cannot see there any indication of injustice or of bias against Mrs Anirah. There seems to have been a thoughtful recognition of the fact that it might well have been the case that for a while before she indicated that she was suffering a hypo she might have not been doing herself justice, but the technique used seems adequate to explore whether that was the case and how best to correct it. As the Chairman indicated, at the end there was a further opportunity for Ms Moore to re-examine further if she felt it appropriate and nothing further was done.

[17]Mrs Anirah's complaint at several points this morning was that she never had the opportunity of putting her case but, indeed, quite apart from the fact that the overall case took some 6 days, the hypo only occurred at the very end of her oral evidence and it seems to us that she was given as full an opportunity as anyone could expect to put whatever case needed to be put. Mrs Anirah says:

"The Tribunal reached their decision by using evidence that was not true."

Unhappily, it can, of course, occur at an Employment Tribunal, just as it can occur at any Court or Tribunal, that the Tribunal or Court is sometimes itself deceived. It can be misinformed. It can transpire from later evidence that it has been misinformed. We are not for a moment saying that that is what happened here. It is a risk that can be avoided as far as possible by a careful analysis of what evidence is given. The Tribunal here seems to have embarked upon and to have succeeded in completing a careful analysis of the evidence that was given. If the Tribunal did use evidence that was not true, that would not of itself represent an error of law. It is not suggested that the Tribunal knew that it was receiving false evidence or that the only decision that any Tribunal could have reached was that the evidence was untrue. Accordingly, that particular complaint represents no error of law. Mrs Anirah at several points argues that the documentary evidence points to conclusions other than those reached by the Tribunal itself but that, of course, occurs time after time. The Tribunal hears oral evidence as well as looking at the documents and quite often the ultimate result is more impressed by what has been said orally than what was put in writing. Here the Tribunal heard evidence over a long period.

[18]Truly, to sum up Mrs Anirah's complaints, they could only succeed, as it seem to us, if they amounted to a case of perversity, namely that no reasonable Tribunal properly instructing itself on the evidence which it heard could have come to the conclusion at which this one arrived. Mrs Anirah has not used the expression "perversity" but that is what a great deal of her argument truly amounts to. It is always a difficult burden for an Appellant and we do not find that it is a burden that she has been able to satisfy here. Doing the best we can with her complaints and recognising that we have not dealt with every single one of them expressly, we are quite unable to find any error of law in the Tribunal's conclusion. Although we recognise that this will naturally disappoint Mrs Anirah we must therefore dismiss the appeal even at this Preliminary Stage.