MR A A LAWAL v CHESTERFIELD BOROUGH COUNCIL [2001] UKEAT 1362_00_0905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1362_00_0905Case No Appeal No. EAT/1362/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A A LAWALAPPELLANTCHESTERFIELD BOROUGH COUNCILRESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 9 May 2001
[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of Mr A A Lawal in the matter of Lawal v Chesterfield Borough Council . Mr Lawal this morning has appeared in person, and has addressed us with his habitual charm, and, I should say, at some length.[2]The background to the matter is that on 29 September 1999, Mr Lawal lodged an IT1 for racial discrimination and what he called "employment recruitment", meaning, I think, not two separate causes of action, so to speak, but that the racial discrimination was suffered in relation to recruitment, and his complaint was, in effect, that he was not recruited and that his non-recruitment was on racial grounds. Chesterfield, he said, has subconsciously been influenced to victimise him on racial grounds because he had complained to the CRE in 1997.[3]On 20 October 1999, Chesterfield lodged an IT3. It set out the long history of its dealing with Mr Lawal that seemed to have begun with Mr Lawal giving a dishonoured cheque for his rent to the Borough Council back in March 1997; they ended their IT3 by saying:
"26. The Respondent's position is that it can show that the failure to appoint the Applicant to the position he applied for is clearly justified. A better candidate was appointed to the position with race playing no part in the decision."
[4]The matter went forward to a hearing on 18 September 2000 at Sheffield, before the Employment Tribunal under the chairmanship of Miss H A McWatt, and, on 16 October 2000, the Decision of the Employment Tribunal was sent to the parties and it was as follows:
"The unanimous decision of the tribunal is that the applicant was not discriminated against, nor was he victimised, by reason of his race or ethnic origin when he was unsuccessful in his application for the post of Recovery Assistant with the respondent Council. His claim is therefore dismissed."
We are bound to say that the Decision and the Extended Reasons have all the appearance of a careful review of the evidence and there appears no manifest self-misdirection on the law.[5]On 19 October 2000, Mr Lawal presented a Notice of Appeal; on 20 October, he applied to the Employment Tribunal for a review; on 26 October last year the application for a review was refused.[6]On 1 May of this year, Mr Lawal completed a paper headed "Outline Arguments on Behalf of the Appellant". The outline arguments on behalf of the Appellant are wholly concerned with the Employment Tribunal's handling of the undoubted fact that, at Mr Lawal's request, a Witness Order had been made requiring the attendance at the hearing of a Mr Woodhouse and a number of others, but that, whereas two others had attended, Mr Woodhouse had not.[7]The Employment Tribunal dealt with this at some length in their paragraph 10. What they said was this:
"At the start of the hearing the tribunal enquired of the applicant the relevance of the evidence of these witnesses"
That is a reference to the witnesses, including Mr Woodhouse. "The two witnesses who attended it appeared were summonsed to give evidence in relation to rent review proceedings involving the applicant. The tribunal explained that this was in no way relevant to the hearing and the applicant agreed that they should be released. It was noted that Mr Woodhouse had not attended and it was left that this matter would be considered at the end of the evidence. In the course of his submissions the applicant indicated his concern that Mr Woodhouse had not attended to give evidence." Then they continued:
"The tribunal pointed out that from the evidence which had been given at the hearing it was clear that Mr Woodhouse had simply been the person who had written to the applicant arranging his initial interview, had written to his referees by way of a standard form letter and had written again to the applicant advising him that he had not succeeded with his application. The applicant took the view that Mr Woodhouse was the person responsible for making "arrangements" as per section subsection (1)(a) of the Race Relations Act 1976 and should have given evidence."
The Employment Tribunal therefore called back Mrs Cave, the Respondent's principal recovery officer, and having heard her evidence they then said this:
"The tribunal recalled Mrs Cave to give evidence about Mr Woodhouse's role in that matter. Her unchallenged evidence was that he was an administrative assistant to the Borough Treasurer, that he had had no involvement whatsoever either in the short listing or interview process and had certainly not contributed in any way to the final decision re selection. As a clerical officer he merely conducted the clerical duties in terms of letter writing, as instructed by Mrs Cave. The applicant took the view that Mr Woodhouse's evidence would have been crucial as he was a "lynch pin" in the process as indeed the applicant viewed the Borough Treasurer as the "king pin" in the process. The tribunal considered this matter and took the view that it was in order to conclude the hearing without the evidence of Mr Woodhouse on the basis that he would have had nothing to contribute in terms of the tribunal coming to its decision as to the interview/selection process of which the applicant had complained."
[8]In the circumstances we have been unable to see any reason why that factual conclusion of the Tribunal can in any way be doubted. Mr Lawal has not given us any reason to doubt that factual conclusion. It is, as it seems to us, impossible to see how Mr Lawal's case at the Employment Tribunal was prejudiced by Mr Woodhouse's failure to attend. That, as it seems to us, is the key consideration. Whether the Tribunal should have required his attendance, or should have demanded explanation and followed it up, to see why he had not attended or should have even punished him for not attending, those are all issues which could be debated, but they do not touch the strength or weakness of any point of law that Mr Lawal can identify in his Notice of Appeal, and they do not, either, point to any prejudice that he suffered in the conduct of his case below.[9]Mr Lawal has emphasised to us what the powers of the Employment Tribunal are, and undoubtedly, those powers include the power to require a witness to attend. But the power is to be judicially exercised; it is a judicial discretion, and nothing could be clearer than that it is relevant for a Tribunal to consider, in the exercise of its judicial discretion, whether the attendance of a witness is truly necessary or not, and here, for the reasons that the Tribunal gave, they concluded that there was no good reason why Mr Woodhouse should have been required to give evidence. He had nothing to contribute to the case.[10]It sounds from Mr Lawal's argument that he truly hoped to achieve a striking out of Chesterfield's case under Employment Tribunal Rule 4(7), but, given that the Tribunal found that Mr Woodhouse, in effect, should never have been made the subject of a Witness Order in the first place, as he had nothing to add of any relevance, the prospect of getting a striking out under 4(7) would be utterly hopeless.[11]We have heard Mr Lawal at some length; as I mentioned earlier, his Outline Written Argument concentrates wholly on the Woodhouse issue. His Notice of Appeal goes more broadly than that and at times Mr Lawal has ventured into the grounds he sought to raise in his Notice of Appeal but, in argument, as we mentioned, he has concentrated on the Woodhouse issue. The Woodhouse issue leads nowhere but we should say that, having looked at his written Notice of Appeal, there seems to us no arguable point of law emerging in his favour in that either. Mr Lawal believes that he has been denied a fundamental right but there is no fundamental right of anyone to require the attendance of immaterial witnesses and the Tribunal here found that Mr Woodhouse had nothing to contribute and that is an end of the Woodhouse point.[12]Finding no error of law in the Woodhouse point, and, in summary, saying that there is no arguable error of law in the rest of the Notice of Appeal either, we are in a position in which we have to dismiss the Notice of Appeal at this preliminary stage simply because no arguable error of law can be discerned in it at all. Accordingly, we dismiss this appeal even at the preliminary stage.