MR R SUNDERALINGAM v ANCHOR TRUST [2001] UKEAT 869_00_2102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 869_00_2102Case No Appeal No. EAT/869/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R SUNDERALINGAMAPPELLANTANCHOR TRUSTRESPONDENT
Before
Mr Recorder LangstaffDate 21 February 2001
[1]APPEARANCES For the Appellant The Appellant in person MR RECORDER LANGSTAFF QC This is a preliminary hearing in a case which came before the Employment Tribunal in London South, for some seven days, in April 2000, followed by some three days, in Chambers. The Extended Reasons, were promulgated on 7 June last year.[2]The hearing concerned no less than three Originating Applications which Mr Sunderalingam brought, in respect of his employment with the Respondent, the Anchor Trust. He has represented himself today, in this preliminary hearing, as he did throughout the hearing before the Employment Tribunal, and I have to say, he kept his submissions commendably brief and to the point, and we are grateful to him for their clarity, and the moderation with which they were expressed.[3]What concerns Mr Sunderalingam about the decision to which the Employment Tribunal came, which was to reject his complaints, are essentially procedural issues.[4]The complaint which he brought, alleging discrimination is one which I shall summarise, and in doing so, inevitably will miss a number of points which are of importance. In doing so, I do not want it to be thought that this Tribunal has missed the significance of any particular point; my function here is simply to set the scene for the complaints which Mr Sunderalingam made before us.[5]On 26 January 1999, Mr Sunderalingam sent a briefing note, or memo, to his immediate superior manager, Mr Thomas. He, that is, Mr Sunderalingam, was a Care Services Manager. Beneath him, in the hierarchy set up by the Anchor Trust to deal with the housing which they managed, were a number of Site Managers, of a number of homes, beneath whom were employees of the Trust in those homes. Above him was a Regional General Manager, later to be known as an Operations Manager, and at the material time, that was Mr Thomas. Above the Regional Manager were Assistant Directors, of whom there were at one stage, three, one of whom was a Ms Good. In a side structure, there was a Human Resources Department, the intention of which was to provide a service for, but not to dictate to, the managers who were operationally engaged in pursuing the business of the Anchor Trust. The Human Resources Manager who had most dealings with Mr Sunderalingam was a Cheryl Richardson.[6]In the memorandum, which Mr Sunderalingam wrote in January 1999, he made a number of complaints about the inadequacy of the way in which the Human Resources structures and personnel had served him, and those under him, in their business. In particular, he singled out Cheryl Richardson for criticism; one of those criticisms was the reference to her attitude toward black staff. He said:
"Cheryl's attitude towards black staff members is rather worrying."
And he went on to give examples of it.[7]There can be no doubt, in our minds, that that was a complaint which related to a racial attitude and as such, was capable of coming within section 2 of the Race Relations Act 1976 as a protected act. Section 2(1) (c) of the 1976 Act provides that where a person victimised has "(c) …… done anything under or by reference to this Act, in relation to the discriminator or any other person; or (d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act." that constitutes discrimination.[8]He found that there was an immediate reaction to the memorandum of 26 January 1999. That reaction led to two matters he tells us today were of particular significance. Those are, first, that there was a disciplinary meeting arranged to take action against him for expressing the views he did of a senior manager, in the language and style that he had adopted. Secondly, management determined that he should see, as should Ms Richardson, a person described as an "external facilitator", in order to resolve the issues that had been raised by the memorandum. It had been Mr Sunderalingam's intention throughout that the memorandum would act as an aide memoire for the purposes of a round table discussion, at which issues of concern could be thrashed out between the various managers and hierarchies of manager involved. He had not intended the letter as a broadside to be delivered to Ms Richardson. That is the way in which it came to be treated.[9]There followed, and here I summarise to a very great extent, incidents in which Mr Sunderalingam applied for a senior post of Operations Manager, was rejected, having been shortlisted, applied again for a similar post, and was not even shortlisted. He complained about that, and he complained about the subsequent conduct of his employers toward him, not least the way in which they had dealt with a particular difficulty which had arisen in relation to Partridge House, one of the homes which fell under his responsibility. He felt excluded from investigations which were conducted in respect of events at that house. It is, I think, unnecessary to descend to detail, because the Extended Reasons of the Employment Tribunal, to which I have already referred, are clear, lengthy and extensive, and deal at great length with the events that then transpired, and the events that founded the later applications to the Employment Tribunal.[10]What happened when Mr Sunderalingam came along in person to the Employment Tribunal at London South was that he was met by Ms Moore, who was Counsel for the Anchor Trust. She had with her a prepared list of issues, which she had extracted from the Originating Application and the Respondent's Notice. It was suggested that the Tribunal would like to focus upon the issues which she had identified as the central disputes of fact to which they should have regard. Mr Sunderalingam went along with this, but did so, he has conveyed to us, at a sense of some disadvantage, not being familiar with Employment Tribunals, not being represented, and needing perhaps, as he felt, a little more time to make his mind up as to whether they were, indeed, the issues to which he felt evidence should be addressed. He was, he told us, assured by the Chair of the Tribunal that if he had other matters to add to the list that he could do so during the course of the Tribunal.[11]He has complained to us that what thereafter happened demonstrated a bias in the Tribunal against him. He was, perhaps, wrong-footed by the list of issues. What next happened was that he wished to call the Site Manager of Partridge House, Mr Bastiampillai, who himself had a claim against the Anchor Trust. At page 17 of our bundle, paragraph 5, page 3 of the Extended Reasons, the Employment Tribunal record what happened in these terms:
"5 ………….The Applicant proposed to call Mr Peter Bastiampillai, former Home Manager, to give evidence on his behalf. The Applicant informed the Tribunal that Mr Bastiampillai had brought proceedings against the same Respondents and his case had not yet been heard. It was the view of the Chairman that there was a risk that by giving evidence Mr Bastiampillai might prejudice his own case against the Respondent, bearing in mind that any findings of fact of the Tribunal which related to his employment would be binding on any subsequent Tribunal. In the circumstances the Applicant accepted the guidance given by the Chairman and Mr Bastiampillai was not called to give evidence."
The Reasons continue in paragraph 6 to say:
"6 The Applicant informed the Tribunal that he had also intended to call Ms Patricia Cox to give evidence. Ms Cox was unavailable to attend the hearing and the Applicant chose not to call her."
It is plain from what he has said to us that he felt that he was not permitted to call those witnesses to give evidence on his behalf. However, in the course of argument, he frankly accepted that the better, more accurate label was "discouraged" rather than "prohibited" and we have little doubt that he felt inhibited by what was said to him by the Chair, but that it fell short, as he himself accepted, of the Chairman refusing to hear evidence which was legally relevant and permissible. Mr Sunderalingam has made the point that Ms Cox was a witness he would wish to have called, but the Chair indicated that the evidence would be of little assistance to the Tribunal. He contrasts this approach with the approach which the Chairman took to the Respondent's evidence, where no less than eight witnesses are recorded in paragraph 7, as having been called (indeed that, as we understand it, omits one further witness, whose name is not even mentioned in the list). Some of those witnesses had made statements, but one had not. Those who had made statements had not all signed those statements and were permitted to do so immediately before giving evidence by the Chair. The one who had not made a statement was permitted to give evidence, producing a statement late in the day, which Mr Sunderalingam felt, dealt with and responded to many of the points upon which he had effectively cross-examined other witnesses for the Respondent.[12]He complains therefore, that this amounted to a fault in the procedure, or a bias against him. We have carefully considered whether there is in what he has told us an arguable point of law upon which this case would merit full argument, with the Respondents being represented before a subsequent Employment Appeal Tribunal. We think that there is insufficient in what he has said to amount to a point of law. This is because we think that what Mr Sunderalingam has not perhaps appreciated, and it is not his fault, is that a Tribunal has a procedure which is, to an extent, flexible and has to be. It is not at all uncommon, in our experience, for witness statements to be put forward unsigned and evidence to be given from the unsigned statement. It should not happen, but it does. The question is whether that puts the litigant on the other side at a disadvantage. Here, we think, the disadvantage was really in Mr Sunderalingam's lack of familiarity with the Employment Tribunal procedures. He accepted that he was nonetheless, able to make the points that might have been made as to any late change made in the statements produced and signed. This does not therefore seem to us to be a point of procedure which, because of its lack of observance by the Tribunal (if that was what it was) should justify our intervention.[13]As to the witnesses, a Chair of a Tribunal who has before her an unrepresented party is sometimes in a difficult position. The Chair has to maintain the impartiality which it is necessary in any judicial office to maintain, while at the same time, giving such advice and assistance as it is proper to give to an unrepresented party, or to that matter, a represented party. In the course of doing so, sometimes a Chair may intend to be helpful, and may indeed by helpful, but in retrospect, the intervention may seem to have been less helpful than was originally intended. Looked at from the Tribunal's perspective, a Tribunal has to control its own procedure, and to hear such evidence, as appears to be relevant to the issues emerging before it.[14]We do not think that there is, in Mr Suneralingam's complaints of procedural difficulty, anything more than the Tribunal attempting to arrange its own procedure in a way that would best suit the ends of justice , as it saw it. Mr Sunderalingam has felt aggrieved at the result of that process, and we can well understand why that should be. But we do not think it is because there has been any fundamental failure to listen to his case, or to appreciate the arguments he would wish to put forward.[15]Turning to a second issue which he makes at page 102 in the bundle, in paragraph 4 of his Skeleton Argument, Mr Sunderalingam complains that the Chairman completely ignored what he describes as the "vital issues in his case". He identified three; one was the disciplinary meeting, the second was the "external facilitator" and the requirement that he should meet this "external facilitator", and thirdly, the threat of using a letter from Mrs Sue Hoskins, following his complaint of racism.[16]In essence, what we understand him to say is that the Tribunal would have been bound to conclude that the only reason that he, Mr Sunderalingam was disciplined was because he had made a complaint. That complaint was a protected act. Therefore, he was disciplined because he had made a complaint of racism. Discipline in itself is less favourable treatment than would be given an ordinary employee, who had not made such a complaint, therefore the elements of discrimination by victimisation are made out.[17]Similarly, the point that he makes about the external facilitator was that no other manager, in his experience, has been asked to see an external facilitator about a complaint, and he points to the fact in the course of evidence, though not referred to in the reasons for their decision, two of the management witnesses called on behalf of the Respondents said in terms, that the reason for asking an external facilitator to become involved, rather than using some manager from a different department of what was a large body, was because Mr Sunderalingam had made a complaint of discrimination which was racially motivated. He backs up this latter complaint by pointing out that the Respondents have a disciplinary code which was not followed in his case.[18]We pursued the issues that these facts gave rise to with Mr Sunderalingam. He accepts that part 1 of the Race Relations Act 1976 deals with the definition of discrimination. That includes in section 2 a definition of what constitutes discrimination by victimisation. However, in order for that discrimination to result in a successful claim for compensation under the Act, it has to brought within one of the other parts of the 1976 Statute.

(c) )

[19]When pushed, Mr Sunderalingam did not, it seemed to us, contend that he had suffered a detriment by being asked to see an external facilitator, nor did it seem to us that he was alleging that being disciplined, in itself, was less favourable treatment that would have been afforded somebody who had made similar complaints against a senior manager, but had omitted any reference to race in making those complaints. If a complaint had been in broadly similar terms to that raised by the memorandum of January 1999, save for any racial reference Mr Sunderalingam told us that he would have expected the manager concerned to be called to account for it. That would not, of course, be a protected act, by definition, yet the treatment would be the same. Accordingly, it would be difficult for him to show that it was the protected act which had caused him to see the facilitator.[20]There are a number of other points which Mr Sunderalingam makes in his Skeleton Argument to which he adhered in the course of his argument towards us. He notes in paragraph 19 that the Chairman made several incorrect recordings of the proceedings. He suggests that vital evidence in pages 108 of our bundle was omitted (see page 8 of the Skeleton, paragraph 20(c) ) and draws particular attention to the fact the vital evidence given by Mr Riggal, and a Mrs Ashcroft, was omitted in the decision which was given by the Employment Tribunal. He notes that there was no reference to the fact that Mrs Good and Mrs Ashcroft accepted that they did not follow their own internal procedures.[21]Those points may very well be the case; it is not our role here and now to pass judgment upon them. What we have to ask is whether, if well founded, they amount to an arguable point of law which requires the Respondents to come to this Tribunal and answer. We do not think that they do because it seems to us that, although it may often be said, and correctly said, that procedures, rules and regulations are there to be followed, and employment is properly regulated by reference to equal opportunity procedures, and other policies, nonetheless, the failure by an employer to follow such a policy is not in itself, something that gives rise, automatically, to a right to compensation. It may be a basis for asking further questions, such as "Why was the procedure not followed?", or whether the failure to follow an established procedure might indicate a difference of treatment which had, as its cause, some impermissible fact or basis, but here, the Employment Tribunal has spent some 28 pages in a decision, the structure and clarity of which we must acknowledge, dealing with the very considerable number of issues and the considerable difference of perspective that there was between the employer and the employee, in relation to the facts of the case.[22]They rejected the allegations that were made by Mr Sunderalingam. In particular we note at page 14, paragraph 75 that they found no evidence to support the Applicant's allegation that Human Resources failed to support himself or his staff. At page 17 of the Reasons they found no evidence to support his contention that an Operations Manager who succeeded to Mr Thomas's post had interrogated him and denied him representation. At page 19 they note:
"The Applicant did not satisfy the Tribunal that a note had been given to Ms McKibben for her to go forward to the Registration Unit."
And they rejected a claim that he had made that the Respondents had deliberately excluded him from Partridge House. They repeat that view at paragraph 105, and at paragraph 108 reject an argument that had plainly been addressed to them that a particular meeting had been deliberately scheduled to clash with another meeting so as to put Mr Sunderalingam, effectively, in an impossible position and to exclude him from Partridge House.[23]There are similar findings at paragraph 135, and at paragraph 137. At paragraph 134 there is specific reference to the way in which the Appellant before us was deprived of the advantage he had over other managers, which is that he had been issued with a mobile phone. It is plain that the Tribunal took on board criticism that was made of the way in which the mobile phone had been withdrawn from him, but they did not, in the event, consider that that constituted either victimisation or less favourable treatment.[24]In order for us to second-guess the Employment Tribunal decisions we must have a basis which allows us to say that the Employment Tribunal were necessarily wrong in law to reach the conclusions that they did, that is, that they must either have stated the law wrongly, so that they were following the wrong principles; or secondly, have come to a conclusion of fact which was not just unfortunate or undesirable, from the point of view of the losing party, but went so far as to be perverse or, thirdly, that they reached that decision by a procedure which was flawed.[25]We cannot here identify an error of law in the first sense, nor do we think that the Employment Tribunal were necessarily perverse. We think it inevitable that in a case which lasted for as long as this one did, where there were so many issues, and so many matters of fact to take into consideration, that a Tribunal could not hope to cover every issue of fact and indicate in their decisions that they had done so, in much the same way as in this present ruling, I have already indicated that I do not propose to refer to every fact which might be relevant; there is obviously an economy in time and expression involved.[26]It is the third area, that of procedure, which, as I have said, Mr Sunderlingam focused most of his time upon. Having considered what he has had to say, cogent and persuasive though it was we have in the end come to the conclusion that we can see no error of law in what occurred. Accordingly, we have no alternative but to dismiss this appeal with thanks, as I have indicated already, for the way in which it has been presented to us.