MR G ARROYO-VALENCIA v 1) UNITED ROAD TRANSPORT UNION 2) MR MICHAEL BILLINGHAM 3) MR DAVID HIGGINBOTTOM [2001] UKEAT 0418_01_0711

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0418_01_0711Case No Appeal No. EAT/0418/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR G ARROYO-VALENCIAAPPELLANT1) UNITED ROAD TRANSPORT UNION 2) MR MICHAEL BILLINGHAM 3) MR DAVID HIGGINBOTTOMRESPONDENT
Before
His Honour Judge J R ReidLord Gladwin of CleeDate 7 November 2001
[1]APPEARANCES For the Appellant THOMAS KIBLING (of Counsel) Messrs Davenport Lyons Solicitors 1 Old Burlington Street London W1S 3NL HIS HONOUR JUDGE J R REID QC This is the Preliminary Ex Parte Hearing of an appeal by Mr Arroyo-Valencia against a decision of an Employment Tribunal held at Bedford following a hearing which lasted six days. The decision was reserved and was sent to the parties on 15 February 2001. By the decision the Tribunal held that Mr Arroyo-Valencia's complaint of racial discrimination failed. Against that decision Mr Arroyo-Valencia has appealed. He has had the benefit of Mr Kibling's assistance, formerly under the ELAAS scheme, but now fully instructed, and we are extremely grateful to Mr Kibling for his assistance.[2]The grounds of appeal can be broken down into three. Taking them in reverse order, the first is a claim that the decision was perverse. As Mr Kibling rightly said, that is a matter of impression. We have read the decision which is a careful decision running to fifteen pages. We do not think that there is any arguable issue of perversity and therefore so far as that ground is concerned the appeal should go no further.[3]The second of the grounds is a procedural one which in itself can be broken into three sub-headings. The first of those sub-headings can be called the 'Byrne issue'. So far as this is concerned, what happened was that a Mr Byrne provided a witness statement to the Respondents, both below and to this appeal. The witness statements were apparently all read by the Tribunal before the start of the hearing. Mr Arroyo-Valencia gave evidence first. In the course of cross-examination some parts of Mr Bryne's statement were put to him. There is some doubt as to whether this was done entirely by counsel cross-examining on behalf of the Respondents, or entirely by a member of the Tribunal, or by both (I do not think it matters) but then when it came to the Respondent's case they did not call Mr Byrne. It is said that in those circumstances steps should have been taken to ensure that Mr Byrne did in fact give evidence. There was no application by Mr Arroyo-Valencia, who was in person, for any form of witness summons. There was in fact a lengthy delay between the two parts of the hearing so that Mr Arroyo-Valencia had a number of months during which he could have investigated the question of witness summonses or the like. He chose not to do so. No application, as I say, was made to try and ensure that Mr Byrne did attend. It does not seem to us that that give rise to any matter which requires to be investigated in a full appeal.[4]It was suggested that it would be desirable for some form of guidance to be given by the Employment Appeal Tribunal to Employment Tribunals as to how matters should be dealt with when a witness statement has been put in but the party putting in the witness statement then indicates they do not wish to call the person who made the witness statement. It may be that on some other occasion it would be desirable to have some sort of guidance given on this and other procedural matters. It does seem to us that this is the case in which that should be done.[5]The second of the procedural points was the 'Higginbottom point'. The position in relation to this was that Mr Higginbottom was called to give evidence immediately after Mr Arroyo-Valencia had completed his evidence and had been cross-examined over a considerable period of time, because the witness statement was read this meant that Mr Arroyo-Valencia was put in the position of coming off the witness stand and then very shortly thereafter having to cross-examine Mr Higginbottom. This was upon the afternoon of the third day of the hearing when it was apparent that after that day there was going to have to be a lengthy adjournment before the next three days of hearing. It was said that this was unfair and that in the circumstances what should have happened is that the Tribunal should have adjourned at that stage in order to allow Mr Arroyo-Valencia to, so to speak, gather his thoughts and refresh himself before a cross-examination.[6]In our judgment there is no substance in this point. It is a matter for the Chairman of the Tribunal as to how the proceeding is conducted. It is clear that the cross-examination of Mr Higginbottom that was conducted went on for some considerable time, a period of one hour nineteen minutes according to the Chairman's notes. Thereafter, Mr Arroyo-Valencia could, if he had felt there were matters he had not dealt with, have asked over the intervening four months for Mr Higginbottom to be available to be recalled. He did not do so. In our judgment there is no substance in this point and this too should go no further.[7]The third of the procedural points relates to the fact that a substantial number of documents were said to be missing from a file which was put before the Tribunal. It is said by Mr Arroyo-Valencia that there were a number of documents which were in the index but were not in fact in the bundle and that he raised points about this but that nothing was done about it. In particular he sent a letter to the Tribunal in which he raised the issue of the missing documents but that produced no response. It appears that he did send a letter dated 25 September 2000 in which he set out some fifty four documents that were said to be missing. What happened to that letter is that it had as its heading three separate Employment Tribunal references, the other two case references relating to two other cases that Mr Arroyo-Valencia had, which had at one stage been subject to a Directions Hearing at which all three of the cases were considered together. By misfortune the letter appears to have been treated primarily as dealing with one of the other hearings and the Chairman did not appreciate when he got a sight of the letter that it dealt with the particular case. The result was that that letter was never in fact dealt with by the members dealing with the case now under appeal.[8]We have considered whether that gives rise to some form of unfairness but the position appears to be this; that although Mr Arroyo-Valencia and indeed the other side, could see from the index what the supposedly missing documents were, neither side wished to refer to any of those documents at any point. We do not know in fact whether the supposedly missing documents were missing from the volumes placed before the Tribunal, or whether it was simply Mr Arroyo-Valencia who was missing the documents. In any event Mr Arroyo-Valencia did not raise the matter further before the Tribunal and there is nothing to indicate that he was in any way disadvantaged by the absence of this further substantial number of documents which neither side, as I say, appears to have wished to refer to when it came to the crunch. In those circumstances, although it is unfortunate that the question of whether or not documents were missing from the Tribunal's files was not cleared up, and it is unfortunate that it appears Mr Arroyo-Valencia did not manage to get copies of those documents, which he could have applied for direct to the other side's solicitors in any event, it does not seem to us that that gives rise to any concern as to the safety of the decision, and it does not seem to us that it gives rise to any matter which should go to a Full Hearing.[9]That brings us on to the remaining point which is outlined in the proposed amended grounds of appeal set out in Mr Kibling's skeleton argument in these terms:
"The Employment Tribunal erred in law in that: (i) (having made its findings of fact) it failed to properly consider or apply the provisions of Part 1 and 11 of the 1976 Act which requires a series of questions to be answered in determining a claim for direct race discrimination and/or it failed to give a reasoned decision ("the statutory consideration issue"); (ii) it failed to properly consider or apply section 11(3)(c) of the 1976 Act as to what amounts to a detriment in law ("the detriment issue"); (iii) it failed to act judicially in addressing the Appellant's concern as to the manner in which the evidence was being adduced, and the general conduct of the Employment Tribunal …"
That third is the procedural issue which I indicated should not proceed. It is grounds 2.(i) and 2.(ii) which are to be pursued.[10]The problem primarily appears to be that it is suggested that the Tribunal failed to identify the specific areas in which there differences of treatment between the union, the first Respondent's, treatment of Mr Arroyo-Valencia and treatment of another white lady employee, Ms Young. The importance of this distinction is that Ms Young had complained about harassment by Mr Arroyo-Valencia. Mr Arroyo-Valencia in his turn was complaining about racial discrimination as a result of this treatment by his employers and subsequently by his union. What happened was that Ms Young was represented by the union both in the internal proceedings that the employer instigated as a result of her harassment complaint and in her subsequent Employment Tribunal proceedings in which she made a claim under the Sex Discrimination Act , whereas, so far as Mr Arroyo-Valencia was concerned, the union represented him, as the Tribunal found to the best of their ability, in the internal proceedings that the company brought as a result of Ms Young's complaint of harassment, but then did nothing to represent him in the ensuing Employment Tribunal proceedings against his, by then, former employers.[11]That issue does not appear to have been addressed by the Tribunal. They do not appear to have identified differences in treatment or to have then considered, in particular in relation to this matter, the basis of the difference in treatment. It may very well be that at a Full Hearing it will become clear that either this point was never raised before the Tribunal, or that on a proper reading of the decision the matter was disposed by the decision as it stands but it does appear to us that there is an issue which should be fully investigated at an Inter Partes Hearing.[12]We therefore propose to give leave to amend the grounds of appeal in the form set out in paragraphs 2.(i) and 2.(ii) of the skeleton argument. We also give leave for the matter to go to a Full Hearing in relation to those two points (that one point and sub point) but only in relation to that and not in relation to the other matters. Sir, may I just raise one matter, and that is in relation to a point that was touched on which was the victimisation point we saw at page 4 of the original grounds of appeal, and the reference to that same point being made by the Chairman of the Tribunals in his notes which appeared at page 85 if you will recall that. It appears that victimisation was raised but it does not find itself in the decision and I wondered whether you would be minded to also grant leave in relation to any victimisation that may be raised and not dealt with. No. We take the view that the appropriate matters to be dealt with are only those that we have mentioned. The victimisation point does not shine through. The usual 14 days? The usual directions procedurally will follow and you will have 14 days from now to put in your amended Notice of Appeal. Sir, can I raise one final matter? I am instructed to seek to take the other matters to the Court of Appeal. I simply make that application at this stage. I note you made the application. If you wish to pursue it you will have to do so elsewhere. Thank you sir.