MR S HUSSAIN v 1) UNIVERSITY OF EAST ANGLIA 2) DR STEPHEN JAMES COX [2002] UKEAT 0678_02_1811

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 0678_02_1811

Case No Appeal No. EAT/0678/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S HUSSAINAPPELLANT

1) UNIVERSITY OF EAST ANGLIA 2) DR STEPHEN JAMES COXRESPONDENTS

Before

Mr Justice Elias Mr N D Willis Miss S M Wilson

Date 18 November 2002

[1]APPEARANCES For the Appellant MR D PANESAR (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE ELIAS The Applicant in this case failed in a claim of race and sex discrimination against the two Respondents. An appeal in respect of sex discrimination had no prospect of success whatsoever and it has not been pursued before us. The Applicant has been very ably assisted, if we may say so, by Mr Panesar who has reduced the number of grounds which are now being urged before us. The Applicant initially put in a very detailed Notice of Appeal but this has been substantially trimmed.

[2]The background, very briefly is as follows. The Appellant is of Iraqi origins and he was taken on by the University of East Anglia as a research assistant working in the Field of Voice Recognition Technology on 31 October 2000. Relatively early in the period of his employment there were some concerns about his abilities. For example, a Mr Andrews who was a technical support manager drew attention to the fact that on four occasions in November 2000 he had had to assist the Appellant because files had been deleted from his computer. On average, Mr Andrews said that he would only expect to be giving assistance of this kind once every six months or so.

[3]Shortly after becoming employed by the University the Applicant came under the supervision of the second Respondent, Dr Cox. By the end of January he had significant reservations about the Applicant's ability and he asked him to write a programme, evidencing some of the work that the Applicant had been doing since he came to the University. He formed the very clear view that the work was inadequate. We note in passing that his opinion was (after the Appellant had been dismissed) referred to a professor at Cambridge University who confirmed indeed Dr Cox's conclusions.

[4]There was an appeal to an Appeal body. This Appeal body found that the Appellant had not been dealt with procedurally fairly in all circumstances and they held that he should continue to be paid for the duration of his contract. It was a fixed term contract and I think he was paid for the whole relevant period. But he submitted that he had been discriminated on grounds of race and sex discrimination. As we have said, the sex discrimination had no prospect of success and was rejected. As to the race discrimination claim, the Applicant identified a number of persons who he said had indicated hostility towards him because of his Iraqi origins. For example he referred to comments made by a Mrs Horncastle at the time when he commenced employment. The Tribunal dealt with this specifically and rejected it. He said that on occasions he had been referred to as "Saddam Hussain". The Tribunal considered these allegations. They found that on one occasion, for example, the comment was not made.

[5]In relation to another occasion they say this at paragraph 7 of their decision:

"In January the Applicant claimed that a technician referred him as Saddam Hussain. This is of course a deeply insulting and wounding remark to have made but unfortunately we have no evidence before us other than the Applicant's word and of course that stands as to who said it or in what circumstances. Certainly there is nothing in that that can be attributable to the first Respondent so as to make it vicariously liable. He also alleged that certain other individuals with whom he had had dealings had discriminated against him on grounds of race."

The Industrial Tribunal rejected his claims. They held that there had been no race discrimination at all and that he had been treated the way he had because it was considered on reasonable grounds that he was not up to the job.

[6]Mr Panesar has identified now four grounds specifically on which the Appellant still submits that this case should go forward to a full hearing before the Employment Appeal Tribunal. First, he says, that the Tribunal did not deal properly with the allegation by the Appellant that he had been referred to as Saddam Hussain. We reject that. We have already referred to paragraph 7 of the decision of the Tribunal where they deal with the matter but say that whatever the position, the comment could not be attributable to the first Respondent.

[7]Secondly, there is a reference towards the end of the Tribunal's decision to the Burchell test. That must be to the well-known test of British Home Store v Burchell . Mr Panesar says that this is applicable to misconduct and not incapability. Whether that is so or not it is entirely irrelevant to this particular case. This Applicant does not complain about unfair dismissal. He did not have sufficient continuity of employment to be able to do that so whether or not there was misleading reference to Burchell (and we do not say that there was) it would in any event be wholly irrelevant to this claim.

[8]The third and fourth grounds related not to the decision itself but to an allegation that the Tribunal was biased and did not give the Applicant a proper opportunity to make closing submissions or to cross examine properly. The Applicant says apparently that he was interrupted from time to time during the two day hearing. One must bear in mind that he was an Applicant in person. They will frequently be assisted by a Tribunal which is seeking to make sure that they address relevant points and do not go off on a tangent, and that is something which Tribunals inevitably have to do when dealing with litigants in person who are not aware of the way in which cases ought to be conducted. The Chairman of the Tribunal has given the response in which he has categorically denied treating Mr Hussain differently than he would other people. So far as closing submissions are concerned, for example, he said he did not stipulate any time limit as is alleged but he was hopeful that no-one would spend more than about fifteen minutes. He said that he treated him as he would any unrepresented Applicant to try and make sure there was a level plain field. We find there is no basis on which this challenge has any prospect of success. It is not even, we understand, as if there were complaints at the time by the Applicant that he was being unfairly interrupted or that he was not given the chance to be cross-examined or putting his closing submissions.

[9]Equally, in relation to bias Mr Panesar realistically says that there is no basis for any bias allegation independently of succeeding on some of the other points. It is true that the Chairman knew some of the legal representatives before him who were acting on behalf the Respondent that is inevitably going to be the case where you have a Tribunal sitting in a town as in Norwich. That is not a basis for alleging bias and there is no other independent ground on which it could be properly run and be capable of being sustained. Accordingly, for these reasons we think that no point of law is raised in these matters and that this case ought not to go any further.