MRS N ASHBOLT (FORMERLY SINAWI) v THE CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARY [2001] UKEAT 0438_01_0712

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0438_01_0712Case No Appeal No. EAT/0438/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS N ASHBOLT (FORMERLY SINAWI)APPELLANTTHE CHIEF CONSTABLE OF HAMPSHIRE CONSTABULARYRESPONDENT
Before
Mr Justice LindsayDate 7 December 2001
[1]APPEARANCES For the Appellant MR S CRAMSIE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Preliminary Hearing the appeal of Mrs Nympha Ashbolt (formerly Sinawi) in the matter Ashbolt (formerly Sinawi) v The Chief Constable of Hampshire Constabulary . We are very grateful today for Mr Cramsie who has appeared under the ELAAS system for Mrs Ashbolt, who at earlier stages was represented by Mr Murphy, her father.[2]The chronology of the matter is that on 9 August 1999 Mrs Ashbolt put in an IT1 for racial discrimination. She had not been employed very long, only from 1 June 1998. In order to explain the nature of her claim it is probably best to read a little of Box 11 of her IT1, where details of her complaint were given, where she says:
"As part of my training for a new position in my civilian employment I was sent on a six week residential course, to the Police Training HQ at Netley, to be trained as an Equal Opportunities and Community Race Relations Trainer. While on the course I was subjected to bullying, harassment and other discrimination because of my Irish ancestry, as a result of which my health deteriorated to the extent that I now require regular counselling by the police force psychologist."
On 26 August 1999 the police put in their IT3. The matter went forward to a trial. Remarkably, it took 11 days at the Employment Tribunal plus a further 2 days for the Tribunal to consider matters in Chambers. That hearing spread over the period from 13 July 2000 to 31 October 2000. Throughout that hearing the Applicant was represented by her father, Mr Murphy, and the police by counsel. There were 21 witnesses called. On 20 November the decision was sent to the parties. It was the decision of the Tribunal at Southampton under the Chairmanship of Mr I A Edwards. It was a unanimous decision and it was:
"1 This application for race discrimination fails and is dismissed. 2 The Applicant is ordered to pay to the Respondent the costs of four days' hearing to be assessed on the standard basis in the County Court if not agreed between the parties. The Order is not to be enforced without permission of the Tribunal."
It was a very full decision, some 40 pages long.[3]On 1 January 2001 there was a Notice of Appeal lodged and paragraph 6 - which gives the grounds - says:
"The grounds on which this appeal is brought are that the Employment Tribunal a) erred in Law b) The findings of the Tribunal were perverse in that no reasonable Tribunal could have arrived at its findings as to facts from the evidence, c) The Tribunal in its own Extended Reasons fails within the document to be consistent in its representations, d) The Tribunal discloses in its Extended Reasons an inability to deal accurately with facts which fell within its own conduct of the case, e) The Tribunal interfered with the conduct of the case by Applicant's representative such as to deny to the Applicant her right to proper representation and f) The Tribunal made an order as to costs which was unwarranted."
[4]The matter first came before the Employment Appeal Tribunal at a Preliminary Hearing on 3 October 2001 when the matter was adjourned until today because Mr Murphy who was intending to represent his daughter was unwell. Hence it comes before us today.[5]The pattern of the Employment Tribunal's Extended Reasons is exemplary. There is a very brief identification of the type of case, a brief outline of the documents received, a brief outline of the witnesses who gave oral evidence, there is a full survey of the background to the case running from paragraph 8 to paragraph 90, then an identification of specific complaints that had been made by Mrs Ashbolt (paragraph 91 which was divided into 23 Roman-numbered sub headings), then there were the parties submissions on the law (paragraph 92) and they included at paragraph 110:
"Mr Murphy, in his submissions on behalf of the Applicant, agreed with the statement of law made by Mr Self, [he was counsel for the Respondent] … "
The Employment Tribunal's conclusions on the law were at paragraphs 118 to 121; they began under the heading 'The Law' at paragraph 118 with:
"We accept Mr Self's analysis of the law, as outlined above, and as agreed by Mr Murphy."
The 'law' that the Tribunal had been taken to included a number of highly relevant and well known cases. I will not give all of their full names and references but they were, Driskel , Burton v De Vere (the well known Bernard Manning case), Pearce v Mayfield School , Armitage v Johnson , King v Great Britain China Centre , Qureshi . No passage in the Employment Tribunal's view of the law has been challenged successfully or at all by Mr Murphy or by Mr Cramsie on Mrs Ashbolt's behalf.[6]Continuing with an explanation, briefly, of the outline of the way the Tribunal set about things, in paragraphs 122 to 210 they set out their conclusions as to disputed areas of fact under sensible sub headings. From 210 to 223 they give their general conclusions and at 224 to 238 they look at the questions of cost. We are bound to say that the decision gives every appearance of being a record of a careful, patient and well directed assessment of a long and what must have been a somewhat trying case.[7]Attached to the front sheet of the Notice of Appeal from which we read a moment ago there were a number of explanatory sheets that I would expect were drafted by Mr Murphy. Mr Cramsie has, as he took us through his argument, abandoned quite a number of those points that were raised by Mr Murhpy. It may be some consolation to Mrs Ashbolt that we have seen no arguable error of law in the passages which were thus abandoned in the course of Mr Cramsie's address. But there are some points that still remain and which Mr Cramsie did advance and which require attention. One of them is about a number of witness statements having been read by the Tribunal but being witness statements of witnesses who then, as it transpired, did not attend to give evidence. Mr Murphy's fear, as explained in his original notes, was that things would have been taken into account which should not have been taken into account and that what was untested by cross-examination could have influenced the view of the Tribunal. We are bound to say we see no error of law in that part of the argument. It is commonplace for Tribunals to be expected to put out of mind matters which, as it transpired, have not been tested by cross-examination or to give them less or virtually no weight. We do not see any difficulty on the law in that area.[8]Next, Mr Cramsie says that the Employment Tribunal misapplied the Burton v De Vere case but the Tribunal plainly accepted that the Respondent had no reason to believe other than that the course which Mrs Ashbolt was sent on was in excellent hands. They make a number of points on the subject particularly by reference to the position of Mr Trott, who was the man most in charge of the course. In their paragraphs 15 to 19they say:
"The second part of the training was a six weeks residential course at Netley. The course was organised and run by Equilibra, the Managing Director of whom is Mr Lawrence Trott. Mr Trott has an impressive CV. He was a police officer in the Metropolitan Police for 19 years until 1996 where he served in a variety of posts, including secondment to the Home Office Specialist Support Unit for community and race relations training, based in Turvey. After retiring, he joined the unit at Turvey as a consultant to many police services and as a trainer of trainers. He holds a degree in social science and various other training qualifications. After retirement from the Metropolitan Police, he set up his own consultancy business which trades under the name "
Equilibra". He has trained hundreds of police staff to become community and race relations trainers. Inspector Bedford, who gave evidence to us, explained that when Hampshire Constabulary decided to use Equilibra to carry out the training, they knew of Mr Trott's work at the Special Support Unit at Turvey and the fact that he had designed the six week Home Office Community and Race Relations Training Programme. They also knew that he had delivered similar training at Sussex Constabulary. Inspector Bedford liaised with colleagues at Sussex who were pleased with the work of Equilibra." So there was no reason to suspect that anything would be likely to go wrong if a course run by Mr Trott was the course that the individuals, of whom Mrs Ashbolt was one, were sent on. We see no error of law in that area.[9]Mr Cramsie has sought to add a ground of appeal based on a remark where one of the people on the course, or surrounding the course, said that they hated the Irish, the point being that Mrs Ashbolt is of Irish extraction or blood. In paragraph 44 the Tribunal said:
"It was also on this same evening, Wednesday, 21 April, that Sergeant Crumpton, who had been on a 40 mile cycle ride for relaxation after the course, came into the bar. According to the Applicant, he announced, "
You know why I hate the Irish". He then proceeded to explain about a relative's best friend being blown up by the IRA. According to Sergeant Crumpton and the other delegates, this was in the context of all the delegates sharing their experiences and innermost thoughts. Sergeant Crumpton had had time during his cycle ride to think about his hidden prejudices and he had begun to realise that he had certain prejudices against the Irish and wanted to share these and discuss them with the other delegates. As soon as Sergeant Crumpton had made the remark, PC Close [and I interpose there – he too was Irish] reacted by being visibly upset and the Applicant escorted him from the bar." PC Close was upset, but PC Close then (I should add that it seems that he was, as it was put, 'in drink' at the time) then made up matters with Sergeant Crumpton and the evidence led to a conclusion that PC Close indicated that he did not want matters taken further and that he and Sergeant Crumpton had resolved the matter to their satisfaction. There is no finding that the Applicant herself, as opposed to PC Close, was upset at the incident. It was also dealt with later in paragraph 215 of the Extended Reasons where the Tribunal said:
"… we accept that this was a challenging course, [That is to say the course on which Mrs Ashbolt and others were sent. It was a course in relation to race and training about race] that the delegates were encouraged to give and receive feedback without querying it. We have also accepted the various other explanations put forward, e.g. that Sergeant Crumpton had had a "eureka" moment and wanted to discuss in the spirit of the course his newly perceived racial prejudice, and that any of the treatment meted out to the Applicant was in equal measure meted out to the other members of the course."
Therefore it would seem that there was no ground for a finding of less favourable treatment. All the members of the course and those running it were thrown into a sort of melting pot in which they were expected and encouraged to come out with such prejudices as they had so that those prejudices could be explored. That was a matter in which all were treated equally so we see no ground for an error of law even were that added ground proper to be added.[10]The next ground that Mr Cramsie took was one of perversity, of which Mr Murphy's notes gave many examples. We do not propose to deal with each example of alleged perversity but some points do need to be made of a rather more general character. First of all, if there is any evidence supporting a particular conclusion of the Tribunal then, even if there was evidence contrary to that, the Tribunal's conclusion cannot be said to be in error of law because it is for them to elect which evidence to rely upon from the body of evidence given to them. Within very broad parameters the Tribunal alone is the master of fact. The Appellant needs to show, when perversity is in play, that there is some material conclusion to which no Employment Tribunal, properly instructing itself on the facts as duly found, could have arrived. Moreover, one cannot assume that a particular fact is out of mind, or a particular argument out of mind, simply because it is not expressly mentioned. Evidence was given over very many days and even a 39 or 40 page typed judgment with Extended Reasons could not possibly hope to cover everything. We have looked at a number of the examples and have found nothing in any of them. It is to be recognised that the argument as to perversity is a very stern test, very difficult to satisfy and we do not see it satisfied in any particular.[11]Then there was an argument about inconsistency and inaccuracy but that is not pursued as a separate ground of appeal.[12]There was then an argument that the conduct of the case by Mr Murphy on Mrs Ashbolt's behalf was so substantially interfered with as to be unfair, especially in relation to the cross-examination of Mr Trott. It is not an argument one receives with enthusiasm given that this was a case which spread itself over 11 days but, as is usual, the Chairman concerned was asked to give an explanation of how the timing of the cross-examination of Mr Trott occurred and events relative to it. The Chairman has given a full explanation. He says that:
"Mr Trott's evidence then began at 10.40am on 1 September 2000. The Tribunal had already read his statement and therefore the cross-examination began at 10.55am. This was Day 9 of the hearing. The cross-examination of Mr Trott lasted all day and at the end of the day it appeared that Mr Murphy had not concluded Mr Trott's cross-examination. At that stage Mr Self, counsel for the Respondent, indicated that he wished to raise at a later stage the question of costs which were being incurred by the prolix cross-examination. Mr Murphy indicated that he understood this issue. The hearing was adjourned until 28 September, but Mr Trott was not available on that day. It was therefore agreed that other witnesses would be interposed and that Mr Trott's cross-examination would be completed on a day that was convenient both to him and to the Tribunal."
The Chairman then explains what happened in the meantime but he says:
"On Day 12, 17 October 2001, it was anticipated that Mr Trott's cross-examination would be concluded. Mr Murphy was slightly delayed because of traffic. Normally, in Southampton we commence at 9.45am. We were able to start at 10.05am and Mr Murphy then made an application for certain witness orders. These were eventually granted and Mr Trott's cross-examination began at 10.45am."
So, in effect, there an hour was lost that could have been of cross-examination time but through no fault of the Tribunal. Continuing the Chairman's comments:
"The parties had already been alerted to the fact at the discussion at the end of the day on 29 September that the hearing on 17 October was to be used to conclude the outstanding witnesses. I indicated to Mr Murphy during the course of the morning that he should conclude his cross-examination of Mr Trott before lunch to enable the other outstanding witnesses to be concluded that day. When Mr Trott wanted to go to the lavatory at 12.05pm, Mr Self objected to the time being taken by Mr Murphy in cross-examination of Mr Trott. He pointed out that the other witnesses had been warned and were available for the afternoon in accordance with the time-table already agreed with the parties. I then indicated to Mr Murphy that he should finish his cross-examination by 12.30pm, since I had already indicated to him that he should conclude his cross-examination before lunch, and I also gave Mr Murphy a further five minutes he requested in order to prepare his final questions for cross-examination. At 12.10pm Mr Murphy acknowledged that he had said that he would conclude his cross-examination before the end of the morning and he apologised for thinking that he had until 1.00pm rather than 12.00noon. In the circumstances Mr Murphy continued his cross-examination until 12.30pm when the cross-examination was concluded. It can thus be seen that the time limits, which I admittedly imposed on Mr Murphy because of the prolixity of his cross-examinations, were not sprung on him at the commencement of the hearing on 17 October. It was part of a pattern of agreeing with the parties how long the witnesses' evidence would take and how long cross-examination would take, and then keeping to those estimates."
Then a little later the Chairman says:
"There was no question of the examination of the remaining witnesses to be curtailed to one day, as Mr Murphy suggests, since this was the way the evidence was going and Mr Murphy agreed that the evidence could be concluded on 17 October. In fact, Mr Murphy was allowed to recall Mr Ashbolt briefly at the beginning of the morning on 18 October and the submissions then began at 11.15am on 18 October 2000. To summarise, I did agree with the parties a time-table in order to ensure that the evidence was concluded within a reasonable time. The time limits were reasonable and were agreed with the parties, and there was no question of Mr Murphy being taken by surprise at his cross-examination of Mr Trott being cut short."
There has to be some discipline in cross-examination and, given the time that was afforded to Mr Murphy to cross-examine Mr Trott, we do not see that there was anything there that was so substantial an interference with the proper conduct of a case as to represent anything like an arguable error of law.[13]Another point, a new point that was raised by Mr Cramsie, relates to some notes of a meeting of 12 July 1999 which Mr Cramsie says have some relevance, at least to the credibility of Mrs Ashbolt. They were taken by a Mr O'Malley, a man who did give evidence at the Employment Tribunal. We are told that they were not available to the Employment Tribunal that we are dealing with at the time of the hearing. They came to the Ashbolt hands in the course of discovery in a related unfair dismissal case and we are told - although there is no proof of this - that they came to light only in December 2000 and therefore could not possibly have been produced in a hearing that ended on 31 October, the one we are concerned about. However, if all that the notes go to is to credibility we do not think that it would be right to adjourn in order to spend money on the lodging of affidavits in relation to whether those papers could with due diligence have been produced before the Tribunal with which we are concerned. If they merely go to credibility it would not be right, it would not be proportionate, to stand the matter over for that reason. So we do not see that proposed added ground as taking the case anywhere.[14]The remaining question is as to costs. In paragraph 227 onwards the Tribunal examined the wastage of time at the hearing that had taken place before them. They did so in considerable detail. They set out how at first 2 days had been lost and then another 50 minutes, then another hour, and 30 minutes and so on, and then more generally they took the view that there had been extreme prolixity on behalf of Mr Murphy, acting on his daughter's behalf as her chosen representative. They turned to the question of costs against that background of a lot of time having been wasted. Of course, the discretion as to costs is a broad one. It is, of course, very difficult therefore for an Applicant to overturn it because to overturn it he has to be able to identify some error of law. We have looked at the Tribunal's reasoning on costs. We have looked at the argument on that and we have not been able to find any arguable error of law in relation to costs.[15]Mr Cramsie has emphasised that it was unfair, he says, to penalise the Applicant for the conduct of her representative but there has to be some form of discipline and it cannot be the case that simply by using an unqualified representative a party escapes any risk of liability in costs. Mr Murphy had been warned about the risk of prolixity leading to costs more than once. The Tribunal expressly took into account in their paragraph 234 that he was a lay representative and not a qualified one. He had however, as paragraph 234 shows, worked for some years in a solicitor's office and had had experience in presenting cases in the High Court. The Tribunal said:
"We agree with Mr Self that throughout this lengthy hearing he [that is Mr Murphy] was unable to take directions or guidance from the Tribunal and his cross-examination was, indeed, prolix, unfocussed and rambling."
We cannot assume that Mrs Ashbolt had no control over her representative nor even that she has no recourse against him if she is bound to pay costs as the order suggests. We are told by Mr Cramsie that there seems to have been no adequate look at her means but in contrast with Rule 7(5) of the Employment Tribunal Rules the costs Rule has no provision that requires means to be looked at. Of course, that is not to say that it is not appropriate to look at means but there is no requirement that they should be looked at and an Order for costs is not necessarily in error of law simply because means were not taken into account. The important stage at which means are taken into account is when the Order comes to be enforced in the County Court. So we see no error of law in relation to costs.[16]Indeed, doing the best we can with all the points that have been advanced and those which have been sought to be added to those that had been advanced, we have been unable to find any arguable error of law and so we will dismiss the appeal even at this preliminary stage.