MR B DAVIES v NORTHAMPTONSHIRE PROBATION SERVICE & OTHERS [2001] UKEAT 235_00_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 235_00_2303Case No Appeal No. EAT/235/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR B DAVIESAPPELLANTNORTHAMPTONSHIRE PROBATION SERVICE & OTHERSRESPONDENT
Before
Mr Justice LindsayDate 23 March 2001
[1]APPEARANCES For the Appellant MRS PAT DUFFAY Consultant Employment Law Advice Centre 27 St Edmunds Road Northampton NN1 5EH MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Preliminary Hearing the appeal of Mr B Davies in the matter Mr B Davies against, firstly, Northamptonshire Probation Service, secondly, Mr Edward Lambert and, third, Mr Rashid Ghumra.[2]On 27 March 1999 Mr Davies presented an IT1 for disability discrimination and/or, he said, treatment contrary to Section 44 of the Employment Rights Act 1996 (that is the Health and Safety ground) and/or Section 47 of that Act (that is the Trade Union Employee Representation Section). With a talent for prolixity which was then only in its infancy the IT1 went on for some 33 odd pages.[3]On the 27 April 1999 the 3 Respondents answered. They said it was denied that the Applicant had been subjected to any detriment within the meaning of Sections 44 or 47 of the Act. The first Respondent's safety policy was described. They then said in their paragraph 8, under the heading of disability discrimination, that in particular it was denied that the paid leave given to the Applicant amounted to discrimination under Section 5 of the DDA. In their paragraph 9, having explained that further, they said it was denied that any relevant detriment had been suffered by Mr Davies.[4]In November 1999 there was a 3 day hearing at the Employment Tribunal and on 16 February 2000 there was a decision sent to the parties; it was the unanimous decision of the Tribunal at Bedford, under the Chairmanship of Mr D R Crome, that the applications were dismissed.[5]On 28 March there was a notice of appeal received by the Employment Appeal Tribunal. It specified grounds, each having an alphabet letter, and it went from A to Z; it was accompanied by some 50 paragraphs of summary and some 6¼ pages of affidavit. On 16 November the Employment Appeal Tribunal directed that the Chairman should be asked for his notes of evidence and on 14 December the notice of appeal, by amendment, was compressed to some 12 grounds running from letter A to letter L.[6]The Employment Tribunal's decision first set out the general background to the case and it then identified a number of issues. It had received 552 pages of documents, which is an immense burden for a Tribunal to receive. It said in its paragraph 7:
"The Applicant's proof of evidence ran to some 16 pages, 143 numbered paragraphs of closely typed text. Clearly the Applicant has attempted a very close and detailed analysis of the 5 years of his contract of employment and the experiences he has had with various members of his line management. Leaving aside incidents which are so trivial and do not justify being considered as detrimental behaviour or less favourable treatment we have identified 19 alleged circumstances on which we think the applicant might properly seek to rely on supporting his claims"
It then sets out those 19 separate issues with what seems to us, at first glance, admirable clarity. It then turned to the respective parties' submissions and it then assessed the evidence and it is plain that Mr Davies or his side faired badly on issues of evidence. They faired badly, in other words, on the facts. It has to be remembered that credibility is an issue for the Employment Tribunal and it not one for the Employment Appeal Tribunal. Within broad parameters it is the Employment Tribunal that is the complete master of fact.[7]A flavour of Mr Davies' poor performance as to credibility and generally as to the credibility of his side can be seen by some selected passages to which we shall refer. Thus, in the Tribunal's paragraph 9.2, it is clear, says the Tribunal; "from document 161 that the Applicant was in fact given consent to go on the course and that the Applicant is mistaken in his recollection;" … 9.3 We are satisfied that neither Mr Lambert or any other manager said to the Applicant that the workshop might close if he persisted in pursuing health and safety issues, as a threat to his job. …. 9.4 It is perfectly clear on the documents that he, [that is Mr Davies] never was anything other than workshop supervisor. …. 9.6 We reject the evidence of the Applicant that Mr Lambert had dealt with him in a way which involved giving him verbal threats and he was, for instance, destroying the service. It may well have been that Mr Lambert demonstrated "red faced outbursts" from time to time. This is not something which is forbidden in management. However, we reject in its entirety the suggestion that Mr Lambert ever threatened the Applicant with assault. …. 9.7 We reject the Applicant's evidence that Mr Lambert ……….. [they then go on to describe what it is that they are rejecting.] … 9.8 The Applicant's over sensitive response to employment situations is amply demonstrated again ………. [they then explain what they mean by that - and at the foot of 9.8] - There is no sense in which any reasonable person can consider that the exchange was in any sense less favourable or intimidatory or detrimental to the Applicant. [9.9 Has a sentence that says] - In any event that is no detriment to the Applicant. 9.10 We accept Mr Lambert's evidence and reject the Applicant's evidence. …. 9.11 That was not less favourable treatment to the Applicant or any detriment to him. …. 9.12 The Applicant claims that he was unduly monitored. We reject that claim. …. [9.15 they say, describing a particular incident] - that it had nothing to do with intimidation or detrimental treatment. [9.17 They describe Mr Ghumra's reaction on discussing a matter with Mr Lambert, they say] - Mr Ghumra on discussing the matter with Mr Lambert formed the view that the Applicant's statements that he was experiencing blindness and had collapsed and coupled with the fact that he was diagnosed as having high blood pressure, posed a risk to somebody who was in charge of persons the subject of the Community Order in a carpenters workshop. What could happen if he collapsed whilst in the middle of tutoring somebody or, more particularly, and this was a very real risk, in the course of a consultation with a recalcitrant client." A little later they go on:
"There was nothing in our view which was less favourable treatment to the Applicant in this course of conduct."
Adding:
"Nothing that was addressed to him as a person with disabilities or as a trade union representative in any sense. It was a perfectly reasonable response of a prudent employer wishing for a medical report to be obtained in order to make an assessment of the risks posed by the Applicant to him and to the workplace."
Again in 9.17, talking about a grievance, they say: "The Applicant raised a grievance in regard to these matters but it is quite clear that the grievance was given proper consideration." 9.18 They draw attention to the fact that in their view the Applicant seemed to be determined not to accept the employer as acting in good faith in any respect. Then they turn to an assessment of the totality of the evidence in their paragraph 10, which we do not need to read out now. They continued in their paragraphs 11 and 12; they say that they cannot see that in any sense the Applicant had been treated less favourably or been subjected to any detriment by reason of the fact that he was either a trade union representative or the elected representative on the health and safety committee.[8]Given that flavour of the decision as a whole, it seems relatively clear that Mr Davies really lost on the facts. Frequently, as we will have seen from those brief citations, his evidence or that of his supporters was not accepted and the evidence of the Respondent was accepted. Their evidence was, on a number of occasions, preferred. When one loses on the facts in that way it is, of course, difficult to find an error of law because too often it will transpire, when properly examined, simply to have been a failure on the facts. Despite that, we have been handed some 24 pages, described as Appellant's arguments as amended, presenting, in effect, 112 separate arguments. All this is in a process which is intended to be dealt with, according to the Employment Appeal Tribunal's practice direction, in 1 hour. There are 2 bundles laid in front of us together coming to some 329 pages. How can one cope with this kind of approach within the time which is ascribed, or even much much longer?[9]It seems to us wrong, simply to allow the matter to go forward inter partes, bringing the Northamptonshire Probation Service into the matter, as that might lead them to expense which truly might prove to be quite unnecessary. Equally, though, we have to do justice to Mr Davies' notice of appeal. Had the Appellant confined himself to a modest number of points of appeal, perhaps we could have identified some arguable ground. We have not, any of us, yet found one, which means that if that transpires to be the outcome then a reasoned judgement has to be given on each of the grounds which are declined, a reasoned judgement sufficiently setting out the reasons so that Mr Davies could see why he had lost, if he had lost, and that he could interpret it in a manner that enabled him to see whether the Employment Appeal Tribunal itself was wrong in law and that the matter therefore should be taken to the Court of Appeal.[10]The only approach that seems open to us is this, that we shall adjourn the matter generally, still to come back as a Preliminary Hearing. It is to be restored to the President and to Mr Fitzgerald and Mr Wright because we have all spent time on the papers and would not wish to waste that time. It is to be listed on its return as a Preliminary Hearing for a whole day and that whole day is to be immediately preceded by a reading day for the President. The President has a reading day on most weeks and the return of this as a Preliminary Hearing is to be on a day immediately following the President's reading day. It is only in that way that the mass of material laid in front of us can be dealt with; even then, of course, it will not be easy, but when it does return we will be inviting Mrs Duffay as consultant to Mr Davies in the meantime to have given her best possible thoughts to concentrating the argument yet further. It has been reduced already once but we have drawn attention, deliberately, to a whole number of factual issues that Mr Davies lost and as to which it will be very difficult to raise any point of law on appeal. True it is that if there is a finding by a Tribunal for which no evidence whatsoever in support was given, well then, what looks like a point of fact does become an error of law and also we know that there are areas in which matters can be properly described as perverse but, as we indicated earlier, within broad parameters the Employment Tribunal is the master of fact and it is quite hopeless to persist in issues which are truly merely a reflection that a fact was lost. One does not make it an error of law simply by saying that it is an error law and so we do ask that in the meantime Mrs Duffay and Mr Davies try and concentrate their claims yet further in order that the matter can be capable of being handled even within the day that we have now arranged that it will have.[11]The course that we have embarked upon necessarily means more expense and more delay to Mr Davies but really he has no one but himself or his advisers, to blame if so large an appeal is mounted, one that cannot be dealt with within the time that should be properly ascribed to it. So we adjourn the matter generally for it to come back as a Preliminary Hearing on the day after a President's reading day, that being the least inconvenient course that we can think of.