MR L GOLDMAN v ENFIELD & HARINGEY HEALTH AUTHORITY [2001] UKEAT 1066_00_0503

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1066_00_0503

Case No Appeal No. EAT/1066/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR L GOLDMANAPPELLANT

ENFIELD & HARINGEY HEALTH AUTHORITYRESPONDENT

Before

Mr Recorder Burke

Date 5 March 2001

[1]APPEARANCES For the Appellant APPELLANT (In Person) MR RECORDER BURKE QC By a decision promulgated on 6 March 2000, after a hearing which lasted for several days, the London North Tribunal, chaired by Ms Lewzey, rejected Mr Goldman's claim of racial discrimination against his ex-employers, the Enfield and Haringey Health Authority, and ordered Mr Goldman to pay the Respondent's costs to be assessed if not agreed.

[2]This is the Preliminary Hearing of Mr Goldman's appeal against those decisions both as to the rejection of his discrimination claim and as to the Tribunal's costs order. Unusually, we are going to start this decision by telling Mr Goldman the result, the result is that we do not regard there as being arguable grounds for an appeal against either of the Tribunal's decisions and therefore that we will dismiss this appeal. We say that at the outset because in order to do justice to Mr Goldman's carefully constructed argument it is necessary to go through the points that he has made and we do not think for it is fair for him to have to wait till the end of what we have to say to hear and to know what the result is.

[3]Mr Goldman's claim has an extremely chequered history. He was employed by the Authority as Director of Human Resources for the North London College of Health Care Studies from September 1990 to June 1992, when he was dismissed. His first claim of racial discrimination was presented on 9 June 1992 and his second in September of that year; but one of those two claims (and it does not matter which), had coupled with it a claim in relation to sex discrimination. There were numerous interlocutory proceedings in the Employment Tribunal and three appeals to this Appeal Tribunal.

[4]Eventually, in the early part of last year, Mr Goldman's claims for racial discrimination were tried on their merits, the claim for sex discrimination having being withdrawn by Mr Goldman in 1999. It is the result of that trial of which Mr Goldman now complains. He represented himself at the hearing, as he has done today. The Employment Tribunal commended his competence in representing himself and so do we.

[5]In his Notice of Appeal, Mr Goldman puts forward fifteen paragraphs, some of them divided into subparagraphs, of criticisms of the Tribunal. In his skeleton argument dated 23 February, Mr Goldman acknowledges that he cannot appeal on the grounds that he does not like the Tribunal's decision although it is perfectly plain that he dislikes it intensely. And he identifies in that skeleton argument what he contends are errors of law in relation to the rejection of his discrimination claim under ten heads and in relation to the Tribunal's costs order under five heads.

[6]He has accepted today that the grounds which he wishes to argue are those heads set out in the skeleton argument as we have just identified them. The thrust of Mr Goldman's case was that he had been suspended and then dismissed by the Authority in June 1992 on the basis of allegations which were largely allegations of incompetence and unsatisfactory performance, but which had some element of conduct about them, but that another employee, Mr Henry Lee, had been more favourably treated as compared to Mr Goldman in that, although, says Mr Goldman, he was guilty of fraudulent over-claiming of his travel expenses, he, Mr Lee, was neither proceeded against, suspended or dismissed at all. The racial element comes in because Mr Lee is of Chinese ethnic background and Mr Goldman is Jewish.

[7]The Tribunal directed itself impeccably as to the law which it should apply to the facts in paragraphs 18 to 22 of the decision; and no criticism is made of that self direction. The appeal is based on criticism of the Tribunal's approach to some of its findings of fact. The tribunal concluded, rightly of course, that Mr Lee had not in relation to the allegations, which Mr Goldman says should have been brought against him, been disciplined at all and therefore was not suspended let alone dismissed. In so far as it is proper to compare Mr Lee with Mr Goldman at all, (and the Tribunal did carry out such a comparison, so we will assume for the purpose of this judgement that it was proper to look at the comparison), it is clear that Mr Goldman was treated differently from Mr Lee and the Tribunal proceeded on that basis; but it went on to find at paragraph 105 of its lengthy and detailed decision that it was satisfied with the explanation put forward by the employers for that difference in treatment.

[8]The Tribunal found that Mr Goldman had failed in numerous respects to discharge his duties as expected of him, while Mr Lee was a competent and hard working employee, who got on with his job and did his work and was neither incompetent or dishonest. The tribunal considered, in particular, three reports of investigations into Mr Lee's travel claims, about which we shall have more to say in a moment. It concluded that he had been exonerated or at least that there had been no criticism of his conduct in terms of disciplinary offence made in those reports. In his skeleton argument, Mr Goldman describes the Tribunal's finding on the issue of Mr Lee's travel expenses as pivotal. It should first be pointed out that the Authority needed a policy as to the manner in which the Whitley Council agreement on travel expenses should be applied to each specific case. Mr Goldman was asked to produce that policy and first presented a draft document to a management meeting in January 1991. This, unhappily, as the Tribunal found, was not an acceptable document and, by the time of his suspension, no such document, so the Tribunal found, had been produced; there was, therefore, a background of some difficulty as to travel expenses.

[9]On this travel expenses issue, the Tribunal concluded that Mr Lee's expenses had been investigated and that after the three audit reports, to which we have referred, no criticism of his conduct in terms of dishonesty, fraud or otherwise had emerged save that he had made mistakes, which meant that there had been some over-claims in respect of which he made a repayment.

[10]Mr Goldman firstly asserted that the Tribunal had erred in concluding that the first internal audit report into Mr Lee's travel claims exonerated Mr Lee, when it did not say so. Mr Goldman is strictly correct in saying that the report did not, in express terms, exonerate Mr Lee; but the Tribunal described that report as containing no concerns of substance; and that is correct. The report did not suggest dishonesty, did not recommend further investigation or suggest any consideration of disciplinary procedure. The Tribunal was entitled, in our judgement, to rely upon what appeared to be a perfectly proper report as indicating to the employers (and the issue before the tribunal in this case was what message did the employers receive from the report and not have not whether Mr Lee had in fact been guilty of fiddling his expenses) as indicating to the employers that there was no call for disciplinary proceedings.

[11]In September 1992 there was a second audit report. The Tribunal at paragraph 78 concluded that: "That report came about because Mr Goldman had made further allegations. The report concluded that Mr Lee had satisfactorily explained his claims and indeed, said Mr Goldman, as that report appears to suggest, there was not an over-claim".

[12]Mr Goldman suggests to us that the Tribunal, in effect, ought to have rejected that report, because, the first report having found that there was an over-claim, the second report could not be relied upon in its finding that there was no over-claim. We regard that as an impermissible approach to the task that the Employment Tribunal had before it. As we have already said, what the Tribunal had to consider in comparing the employer's treatment of Mr Lee with the employer's treatment of Mr Goldman was what information the employers had as to the travel expenses of Mr Lee; and here was a second report which on its face neither concluded that Mr Lee had been guilty of any wrongdoing nor suggested any further investigation nor recommended any disciplinary action.

[13]As his third ground, Mr Goldman refers us to a letter from a Mr Sobey of the District Audit Services to the employers in August 1993, which says in respect of the over-claims:-:

"There appear to be very strong grounds for instigating disciplinary procedures against Dr Lee."

The sum concerned, at that stage, was just over £300. Mr Goldman complains that the Employment Tribunal makes no reference to that letter; however it is clear from the numbering at the foot of this document that it was before the Tribunal, forming part of a total of 2000 pages or more that the Tribunal had in front of it. It is true that the Tribunal in its decision does not expressly mention this letter; but there followed, as a result of this letter, a lengthy further investigation leading to a third internal audit report, which the Tribunal had in front of them, and which they describe as concluding that there was no case for Mr Lee to answer. Mr Goldman has (same as set out in paragraph 16 below) not criticised that description of the third report, which in its terms speaks for itself; it makes no suggestion that a disciplinary offence had been committed.

[14]We cannot see in the circumstances how it could arguably be said that the Tribunal had materially erred in not referring to the letter from the District Auditor; the college reacted properly to it by the instigation of the third enquiry; and what the Tribunal would necessarily have regarded as important was the result of the third enquiry and not the letter which provoked it.

[15]Fourthly, Mr Goldman complains that there were inconsistencies in the explanations given by Mr Lee, which the Tribunal did not attempt to resolve, and that they erred in law in failing to do so. Mr Goldman in his submissions fails to understand that Mr Lee was not on trial. The Tribunal was considering not whether Mr Lee had been guilty of misconduct in relation to his expenses but the conduct of the employers in reacting to the information which they had and, if there was differential treatment by the employer, whether the employer's explanation was or was not acceptable. It was not necessary for the Tribunal to go into minute detail of Mr Lee's travel expenses or to consider in detail the evidence as to his travel expenses one way or the other, as opposed to looking at the outcome of the three separate investigations in which those travel claims were considered. It is worthy of comment, albeit that we have mentioned it before, that the Tribunal, who had evidence from Mr Lee, regarded him as an honest and straight forward witness. That was a conclusion they were entitled to reach; and that, in our judgement, is sufficient together with the content of the three audit reports to indicate to us that there is no arguable ground of appeal in this area.

[16]Mr Goldman's fifth ground, to put it shortly, is that the auditors involved in the third investigation appear to have proceeded on the basis that Mr Lee did not know the principles on which travel claims were to be made when, says Mr Goldman, he plainly did because he, Mr Goldman, supplied a copy of the relevant rules to Mr Lee in 1991. In our view, this argument again confuses the role of the Tribunal. The Tribunal were not concerned with whether the auditors got it right, but whether of the results of the investigations (right or wrong) produced by the auditors, did or did not satisfactorily explain the differential treatment between Mr Goldman and Mr Lee. If the college, after three sets of investigations, had in fact proceeded against Mr Lee, no doubt the college would have been in very serious difficulties; but we have no doubt that it was entitled to rely on the reports which were placed before it. We should add that the documents produced to us today by Mr Goldman purporting to show that he had given the information as to the relevant principles to Mr Lee, namely pages 1 to 6 of the further bundle which he has put in front of us, do not appear to us actually to do so. We investigated this with Mr Goldman during the course of his oral submissions', Mr Goldman suggested to us that there were some other relevant documents; but if so they are not before us and he has not asked us to look at them.

[17]Mr Goldman sixthly complains that the Tribunal failed to refer to the Authority's disciplinary rules, which are at page 56 of the further bundle that Mr Goldman has helpfully put in front of us. Those rules gave to the employers the power to suspend or dismiss by way of summary action in the case of grave offences of the type listed, which included theft and fraud. It is correct that the Tribunal do not seem to have referred to those rules in their decision but we see no arguable basis on which it could be said that their omission to do so could provide a ground for appeal. The Tribunal, on the basis of the investigations of Mr Lee's behaviour, were entitled to conclude that the employers regarded the allegations against Mr Lee in relation to the travel claims as having no substance save that there had been innocent over-claims which had been the subject of repayment and which none of the investigation reports described as giving rise to any disciplinary offence. So the question as to whether Mr Lee should have been suspended or disciplined or not simply did not arise. There was no basis on which it could even have been considered in the light of those reports.

[18]Seventhly, it is argued that the Tribunal erred in refusing to allow Mr Goldman to treat as hostile a witness, Mrs Mills, who he himself called, but who he describes as hostile. The problem was in part one of Mr Goldman's making. The Tribunal record at paragraph 3 of the decision that the chairman explained to Mr Goldman, in relation to those witnesses who had attended the Tribunal under a witness order and whom he wished to call, that he would not be able to put leading questions to those witnesses or to cross-examine them. There was, in the case of Mrs Mills, no witness statement from her from which it could be demonstrated that she was, as a result of hostile motive, prepared to depart. The only basis for treating her as hostile seems to be that she was reluctant to attend and had made some comments which were not supportive of Mr Goldman. The Tribunal had a discretion to exercise in deciding whether or not to allow Mrs Mills to be treated as hostile; we can only interfere with that discretion in very limited circumstances; and those circumstances do not appear to us to have been made out or even to be arguably made out. We see nothing which provides any material for suggesting that it is arguable that it was an error on the part of the Tribunal not to allow Mrs Mills to be treated as hostile.

[19]In his eighth ground Mr Goldman complains that he should have been given a witness order for a Mr Allert, who could, according to Mr Goldman, have given evidence in relation to some of the facts in issue. But we have not been shown or told of any specific evidence which Mr Allert was willing or able to give and have seen no statement from him. The witness order was refused at the Tribunal's discretion and we see no arguable basis on which that exercise of discretion can be attacked.

[20]Ninthly, in paragraphs 65 to 69 of the decision, the Tribunal make findings about shortcomings on Mr Goldman's part in the computerisation of the personnel records. Mr Goldman points out to us that he produced some computerised records which the Tribunal do not mention; but the Tribunal were not obliged to mention every piece of evidence that was put before them. We can see nothing in this part of their decision which would arguably be open to challenge in the light of those documents. They did not find that Mr Goldman never produced any computerised documents at all. They found that he had not properly discharged his duties in relation to the computerisation of personnel records and no arguable attack upon that finding has emerged from Mr Goldman's Notice of Appeal, his skeleton or his submissions.

[21]Finally so far as discrimination is concerned, Mr Goldman complains that the tribunal did not refer in the course of its lengthy decision to the fact that some important parts of the criticisms made of him, which were found by the Tribunal to be soundly based, related to events which took place after he had been given a performance related pay increase, which indicated above average performance. This is, as it seems to us, precisely the type of criticism of a Tribunal's fact-finding exercise, which goes beyond what this Appeal Tribunal can regard as permissible. The Tribunal had to distil the evidence of a number of witnesses and over 2000 pages of documents. It could not mention every piece of evidence. Clearly it did not regard this point as prominent; and it was entitled to give such weight to it as it thought right. It came to the conclusions that it did as to Mr Goldman's conduct despite that evidence which was put before them and which was no doubt strongly relied upon by Mr Goldman; and the omission to mention that piece of evidence does not, in our view, create an arguable ground of appeal.

[22]For those reasons the appeal against the dismissal of Mr Goldman's claim of racial discrimination will be dismissed.

[23]We now turn, briefly, to the costs decision. As we have already said, the Tribunal ordered Mr Goldman to pay the costs of his claim. They looked first of all at the costs of the sex discrimination claim which Mr Goldman had joined in one of his 1992 originating applications, but had withdrawn in September 1999. They then proceeded to consider the Respondent's application for costs of the race discrimination claims and decided to make the order sought. In the case of the sex discrimination claim and indeed the race discrimination claim the Tribunal directed itself correctly as to its powers under Rule 12(1)(a) of the Employment Tribunal Rules. It concluded in relation to the sex discrimination claim, that in making a claim which he had then withdrawn in 1999 having received advice that he should do so presumably on the basis that it had no reasonable prospects of success and in persisting with that complaint until 1999 and otherwise as set out in the decision, Mr Goldman had acted unreasonably. The Tribunal considered the decision of this appeal Tribunal in Wiggins Alloys Ltd. v Jenkins

[1981] IRLR 275

, in which this Appeal Tribunal held that the Employment Tribunal is not bound to refuse a costs order because the person against when the order is sought is penniless. There has since, we believe, been further authority from this Tribunal to the same effect. The Tribunal clearly considered Mr Goldman's absence of means and decided nonetheless, in its exercise of its discretion, that the order sought should be made. Mr Goldman submits that that order for costs in relation to the sex discrimination claim was in error for two reasons. The first reason is that he did not withdraw on the basis that there was no case, but on the basis that he had a case which was difficult to prove; the second reason is that he had not, he says, continued with that claim from 1992 through to 1999, because there was a stay from somewhere in 1992 or 1993 until 1995 or 1996, while wrongful dismissal proceedings were taking place in the High Court.

[24]In our view, there is nothing in these points; no arguable grounds of appeal arises from either of them. Whether the sex discrimination claim was one which Mr Goldman could not prove or whether he did not have a case at all in the sense that there never was anything in it, appears to us to be a distinction without a real difference. It was a claim which did not have sufficient merits to get home on any view, as is confirmed by its withdrawal.

[25]As to the stay, there obviously was a period of time in which Mr Goldman's discrimination claims in general could not move forward; but once the stay had gone, the sex discrimination claim was proceeded with and proceeded with right up to its withdrawal in the latter part of 1999; and the Tribunal were entitled to reach on the material before them the decision that it did.

[26]In the case of the costs of the race discrimination claim, we entirely accept Mr Goldman's first point to us, namely, that such an order is rare; but the Tribunal again correctly directed itself on the law; and no criticism is made of its self-direction. The Tribunal, in reaching its decision in its discretion as to whether to order costs or not, took into account a number of factors which are set out in detail in its decision at paragraph 120, sub-paragraphs (a) to (l) before, in sub-paragraph (m), it stated its conclusion. We do not propose to repeat these factors on that judgement.

[27]Mr Goldman by his skeleton argument raises four points. The first is that the Tribunal were wrong to rely on Mr Goldman's failure to accept the results of the three internal audits relating to Mr Henry Lee's travel claim. We have of course, in dealing with Mr Goldman's appeal against the dismissal of his discrimination claim, dealt probably at excessive length with the impact of those three internal audits. The principle plank of Mr Goldman' case was that he had been differentially treated as compared to Mr Lee. Yet Mr Lee's travel expenses claim, as Mr Goldman knew at least from the early stages of these proceedings, had been investigated three times, the third occasion of which was subsequent to the District Auditor's letter to which we have referred. Mr Goldman, despite the results of those three investigation, has persisted throughout this case in claiming that Mr Lee ought to have been found to have misconducted himself and to have been fraudulent in relation to his expenses claims; and the tribunal was fully entitled to say what it did about his attitude and approach to that central part of the case and the way in which he has persisted in conducting his case, based on what he believes Mr Lee to have done, in the face of those three internal report. We see no arguable ground of appeal arising in relation to the first criticism which Mr Goldman makes.

[28]Secondly, Mr Goldman submits that the Tribunal held against him that he had appealed in the course of the interlocutory history of this case to the Employment Appeal Tribunal on three occasions, when in relation to one of those three occasions he had in fact won his appeal. Factually Mr Goldman is correct. It seems that, although in the case of the appeal which he won the Employment Appeal Tribunal was not entirely happy about the way in which the claim was being presented or conducted. Mr Goldman won that appeal and as a result his case proceeded rather than being struck out as it would have been if he had lost it. However, he made two other interlocutory appeals to this appeal tribunal in the course of which judicial comment was made as to Mr Goldman's seeking to obstruct the process and to avoid a trial of the allegations which he was making which were of course serious. We do not believe that this error on the part of the Tribunal, in relation to the middle of those three appeals, could arguably be said to make any difference to their overall conclusions.

[29]Thirdly Mr Goldman submits that the Tribunal was in error in deciding that he had appealed against a Tribunal's decision of 29 July 1999 (the third of the three appeals mentioned by the Tribunal). There was a Tribunal decision of 29 July 1999, but there was no appeal against it. There was, however, a third appeal to this Appeal Tribunal, the successful appeal to which we just referred having been the second. The third appeal was against a decision of the Employment Tribunal of 13 January 2000. That appeal related to witness orders or a witness order and was derived from the order for directions which had been made on 29 July 1999. In that appeal the Appeal Tribunal held that, while Mr Goldman had initially been justified in bringing the appeal, he had continued it unreasonably, because the matters to which the appeal related had been resolved very soon after the order was made and yet the appeal had been persisted with. The appeal was dismissed and Mr Goldman was ordered to pay £300 towards its costs. We have no doubt that the Tribunal erred in expressing the wrong date for the third appeal but we see no reason to regard the date as being in any respect important to its overall consideration. If the correct date had been substituted for the wrong date, it would have made no difference to the Tribunal's decision.

[30]Lastly, Mr Goldman points out that at sub-paragraph (e) of paragraph 120 of its decisions, the Tribunal says as follows:

"The Tribunal has considered whether Mr Goldman knew that there was no substance in his claim. It is not clear to the Tribunal that that was the case."

But, says Mr Goldman, in sub-paragraph (i) of the same paragraph, the Tribunal has said:

"The Tribunal did not consider that Mr Goldman genuinely believed that he had been discriminated against and we considered that he wanted to bring these proceedings out of malice and thought that he might succeed."

Mr Goldman says that these two finding are contradictory. In our judgement they are not. The Tribunal was being careful to say that Mr Goldman thought that there might be some chance of succeeding in sub-paragraph (i) although he did not believe that he had actually been discriminated against. Thus, he would have considered that there was some substance to his claim although he actually did not think that he had been discriminated against. The two sub-paragraphs are not inconsistent.

[31]The most important features in the Tribunals' conclusion at paragraph 120(l); having considered the various factors which they had set out, that Mr Goldman's pursuit of his claim was unreasonable and an abuse of process; (we interpose that only the first was necessary to justify an order for costs) were, in our judgement, firstly, Mr Goldman's pursuit of his claim based as the Tribunal found on lies, bad faith and allegations which were not supported by evidence and secondly his wholesale failure or refusal to accept that, in relation to the central plank of his case, the claim that he had been treated differently on the grounds of his race as compared with Mr Henry Lee, which was based of course on the allegations as to the travel expenses to which we have already referred, he was bound to fail in the light of the three investigations of those claims which had been carried out and which had been put before the employers. Even if there was contradiction in the two sub-paragraphs which Mr Goldman has identified in paragraph 120 at the very end of this lengthy decision, we do not believe that, arguably, had there not been such contradiction the Tribunal would or could have reached any other decision. We do not see that the exercise of their discretion in relation to costs can be validly or arguably attacked. While it is very rare for a Tribunal to award costs against a failed Complainant in a discrimination case, in this case our conclusion is that the tribunal acted properly within its discretion in making the award that it did or to put it more accurately, so far as this appellate stage is concerned, there is no arguable basis for Mr Goldman's attack on that exercise of discretion of the tribunal. Accordingly, the appeal in relation to costs will also be dismissed.

[32]We apologise for the length of this judgement, which is of course the fault of the chairman rather than the lay members, but we have felt it important to show to Mr Goldman that we have considered and carefully considered each and every one of the grounds which he has put before us.