MR J KOTECHA v (1) COMBINED INSURANCE COMPANY AMERICA (2) MR L POCOCK [2002] UKEAT 0999_01_2301

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0999_01_2301Case No Appeal No. EAT/0999/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J KOTECHAAPPELLANT(1) COMBINED INSURANCE COMPANY AMERICA (2) MR L POCOCKRESPONDENT
Before
Mr Justice LindsayDate 23 January 2002
[1]APPEARANCES For the Appellant MR S GARNER (of Counsel) Messrs Hodge Jones & Allen Solicitors 31-39 Camden Road London NW1 9LR For the Respondents MISS H GREWAL (of Counsel) Messrs DLA Solicitors 3 Noble Street London EC2V 7EE THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us two related matters, both in the proceedings Mr J Kotecha v(1) Combined Insurance Company America(2) Mr L Pocock . Both applications are made by Mr Kotecha for whom Mr Stephen Garner appears. The first application is an application that the Employment Appeal Tribunal should receive fresh evidence, evidence not laid before the Employment Tribunal, and should receive it for the purposes of the next Appeal. That application is an Inter Partes matter on which the Respondents are entitled to address us, and have addressed us. In that Inter Partes part of the case Miss Grewal appeared for the Respondents. The second part of the case is a straightforward Preliminary Hearing of Mr Kotecha's Notice of Appeal.[2]We have already informally ruled upon the application as to the reception of evidence, ruling against our receiving it. We then indicated that the reasons would be given later. We will turn in a little while to giving those reasons but first need to set out something of the chronology of the case.[3]On 22 December 1998 Mr Kotecha launched an IT1 for constructive dismissal, breach of contract, racial discrimination and victimisation against the two Respondents, firstly the Combined Insurance Company America and secondly Mr L Pocock, an employee of that company. Mr Kotecha had been employed by the company down to October 1998; that was at all events what he asserted. On 25 January 1999 the insurance company put in an IT3. They said, amongst other things, that Mr Kotecha had resigned voluntarily to take up other employment, he had not been dismissed, or constructively dismissed; he had in fact, they said, never been employed by the insurance company at all but had been self employed and in any event the racial aspects of the complaint were denied. On the same day Mr Pocock put in an IT3. He said that Mr Kotecha had never been employed by the insurance company and he also denied Mr Kotecha's claims.[4]The matter went forward to a not insubstantial hearing. It is worth bearing in mind that some seven days were spent in all, plus one day in Chambers where the Tribunal met to consider the matter themselves. The dates spread between 24 July 2000 and 6 December 2000 in terms of hearings at which evidence was received and at which the parties addressed the Tribunal; then on 3 January 2001 the Tribunal members met alone in Chambers to consider the case. Both sides had been represented at that hearing by solicitors and counsel. Indeed, Mr Kotecha's case was supported at the highest levels by a body well familiar with issues of the kind that he was raising.[5]After 6 December, the last date on which there was actual evidence given and oral address to the Tribunal (but before 3 January when the Tribunal met in Chambers) Mr Kotecha met an erstwhile colleague of his, Miss Williams, by chance. They spoke together of racism in the operations, or at least amongst the employees, of the insurance company and, perhaps more specifically, to those of Mr Pocock. That was a meeting by chance.[6]On 14 February 2001 the Tribunal's decision was sent to the parties. It was a decision of the Tribunal at Birmingham under the Chairmanship of Mr J Parkin. Some aspects of it do not need to be dealt with but so far as is relevant it was the unanimous decision of the Tribunal that the Applicant's unfair dismissal claim was dismissed for want of jurisdiction, the Applicant's breach of contract claim was dismissed for want of jurisdiction and then:
"(v) save for that relating to the String Writer of the Cycle award, the applicant's complaints of race discrimination are out of time, but it is just and equitable to consider them; and (vi) the applicant's complaints of race discrimination are dismissed."
On 27 February Mr Kotecha asked for a review of that decision and in that application for a review he indicated that he would want to rely on the basis of there being new evidence. He submitted a statement made by Sonia Williams, the woman that he had met by chance and had had the discussion with in late December. Later on, that statement became, more formally, an affidavit or at any rate something very similar to the statement became an affidavit by Sonia Williams. On 16 March 2001 the review was refused. The Tribunal said, amongst other things:
"It was for the parties to put before the tribunal at the hearing whatever evidence they considered necessary. There is no explanation given by the applicant why the new evidence he seeks to rely upon could not have been known of or foreseen, when Sonia Williams was always a potential witness to be called to give evidence, if necessary under a witness order. Likewise, if it was considered important to discredit Mr Stones' evidence of having had his notes photocopied at the Hilton Hotel, which is a matter upon which the tribunal made no express finding, that could have been done before final submissions on 6 December. It is always important that there is finality in litigation and that decisions once made are not simply reopened because a disappointed party seeks to raise new matters or introduce evidence it wishes had been introduced earlier. The applicant's letter of 27 February 2001 together with its enclosures does not provide a basis for a full tribunal considering whether to review its decision."
The review was therefore refused on the ground it had no reasonable prospect of success.[7]On 27 March 2001 there was a Notice of Appeal lodged by Mr Kotecha. It is against the main decision, not the failure to review. On 20 April, in relation to an application within the Notice of Appeal that fresh evidence should be received by the Employment Appeal Tribunal, the Employment Appeal Tribunal referred Mr Kotecha's side to Wileman v Minilec . The Employment Appeal Tribunal said:
"I have referred these documents to the Registrar who has directed that in accordance with Wileman v Minilec Engineering Limited (1988) IRLR 144, (1998) ICR 318 you write to show that in respect of your claim of fresh evidence …."
It then set out a brief summary of the three necessary ingredients or tests that needed to be satisfied if fresh evidence was to be accepted by the Employment Appeal Tribunal. So the matter was laid in front of Mr Kotecha's solicitors, even giving in detail not only the reference to the relevant legal authority but an understanding of what the authority said. On 11 May 2001 Mr Kotecha's solicitors gave their response to the Employment Appeal Tribunal's request. On 15 June the insurance company's solicitors, DLA, gave reasons for opposition to the reception of any further evidence, giving reasons in some detail. On 3 September 2001 the Registrar required Mr Kotecha to put the facts he relied upon for the reception of fresh evidence into affidavit form and directed that the issue as to the reception of fresh evidence should be dealt with (as it has turned out) at this Preliminary Hearing and an affidavit was lodged.[8]Dealing then first of all with the application to receive fresh evidence. First, reference must be made to Wileman v Minilec [1988] IRLR 144. It was a case at the Employment Appeal Tribunal and in it the Employment Appeal Tribunal adopts what had been the Court of Appeal practice. The long established case, Ladd v Marshall is applied by the Court of Appeal as to the circumstances in which it (the Court of Appeal) will receive fresh evidence not available at first instance. Three conditions have to be satisfied, and, looking at the Employment Appeal Tribunal's letter of 20 April, one can perhaps briefly modify the summary there given. The Employment Appeal Tribunal said it is required that the evidence in question could not have been obtained with reasonable diligence – and one perhaps should add, could not have been obtained for use at the particular Employment Tribunal hearing in question - even if reasonable diligence had been deployed. As to the second test, the Employment Appeal Tribunal says that the new evidence would have had an important influence on the case, put, perhaps more strictly, that should read that it would probably have had an important influence on the case, though it need not be decisive. The third of the tests is that the evidence is apparently credible, and to that one should simply add – that it does not necessarily need to be in contravention to evidence already before the Tribunal. So qualified, we will bear those three tests in mind as the practical tests which we must now apply. Mr Garner's application on behalf of Mr Kotecha has to satisfy all three of those tests. To fail on any one is, in effect, to fail altogether.[9]As a matter of general background we have to remember that Mr Kotecha had at least from 22 December 1998 (the date of his IT1) down to 6 December 2000 in which to collect evidence and he was thoroughly well represented, as we have already noted. If he had wished to assert that there was racial discrimination in the company generally, or in Mr Pocock in particular, well then, his colleagues, past and present at the company (those doing similar jobs) would be a natural possible source of evidence that might assist him. It is plain from her written statement and affidavit that Sonia Williams and Mr Kotecha were together present at a number of incidents which, supposing her version of them to be true, would represent, or might be regarded as representing, racial discrimination, certainly on Mr Pocock's part. She refers to incidents of such a character as having occurred in December 1997, January 1998, at an undated Royal Reward Dinner, also at another incident and in September 1998 at the Marriott Hotel in Bristol. There is nothing to suggest that Mr Kotecha had not realised that she was present at these occasions which could have been, and perhaps were, regarded by him as incidents of racial discrimination. She says, of the chance meeting with Mr Kotecha:
"A week before Christmas , I bumped into Jay in Coventry. I told him that I was aware of his case and asked him how it was going. He told me that he was waiting for the decision."
A little later:
"I told Jay that I agreed that he was discriminated against and that Les Pocock wanted to get rid of him."
A little later she said:
"I wish I could have contacted Jay whilst the case was going on because I believe he was a victim of racism by Les Pocock and C.I.C.A. I am shocked that Les and C.I.C.A. might get away with their treatment of Jay. and in her last paragraph she says: "
I am willing to attend any hearing and be asked any questions about my evidence." There was nothing to suggest that Sonia Williams had earlier been approached to give evidence or had indicated that she would not be willing to give it. There is nothing to indicate what researches had been done by Mr Kotecha or by his advisers as to whose evidence might assist him or to indicate that some mistake had been made which had ruled out Sonia Williams from having been approached. There is nothing to indicate that the Tribunal would have refused to receive her evidence even as late as it came to hand, namely after the last day of actual hearing but before judgment, if application had been properly made. There is nothing to indicate that Mr Kotecha told either the Employment Tribunal or his advisers of what Ms Williams had said to him when they met in late December. If the possibility of her having been likely to be a helpful deponent was considered at all, there is nothing to suggest that there would have been any difficulty in the way of her giving evidence. We have cited from those passages in her statement that indicate a willingness to give evidence.[10]A full consideration of the events should have thrown up to Mr Kotecha or his advisers the possibility that Miss Williams might be in a position to give evidence in his favour, given that she and Mr Kotecha and Mr Pocock were all present together on a number of occasions at which acts had taken place which Mr Kotecha would be likely to think had been discriminatory against him. Mr Kotecha says:
"The incidents in the statements where Sonia was present are her accounts of the matters which I did not know about at the time until our chance meeting."
But some of the incidents were incidents where Mr Kotecha was present and there is no reason to assume that he did not know that Miss Williams was present. Some, indeed, of the things of which she would wish to give evidence were outside Mr Kotecha's knowledge but some were within. Given that, there is no reason why she should not have been foreseen as someone who should be approached. Mr Kotecha says:
"Given the fact that Miss Williams is no longer with C.I.C.A. I believe she feels strongly about the racism and decided to give a statement after seeing my suffering, because she was not compromising her job."
Had it been the case that she had been approached earlier for evidence but had refused it because she feared that it would endanger her job, and had evidence been given of that in a compelling fashion, that, plainly, would have helped Mr Kotecha's application for the reception of fresh evidence, but there is no evidence to such an effect. As we have cited, Miss Williams seems to be willing to give evidence and there is no suggestion that earlier she had not been willing. There is no hint anywhere that if only she had been approached sooner she would nonetheless have refused because of her continuing employment at that time.[11]In all these circumstances we have to conclude that Miss Williams' evidence could have been obtained for use at the hearing had reasonable diligence been deployed. The reason why it was not available, so far as we can see, was either that insufficient research was made amongst Mr Kotecha's colleagues to find who might give evidence that might help him, or that a decision was made that having yet more of such evidence (that of his colleagues) would be unlikely to assist beyond the evidence of the three colleagues who were already called and in fact gave evidence. Or it could be that a tactical decision was taken that Miss Williams would be unlikely to assist. We do not need to speculate as to why it was. It is to be noted, in terms of willingness of the Tribunal to receive evidence very late, that in paragraph 3.4 they say:
"The Tribunal was critical of the parties' lack of cooperation and poor level of preparation, but nonetheless accepted in evidence all documents put forward by the parties, subject to later submissions about their relevance."
So, the Tribunal had not taken a stern line to shut out late evidence. In our view, therefore, the first of the three Wileman v Minilec grounds is failed and accordingly the whole test is failed.[12]As for the other two parts of the test, we, in the circumstances, need only deal with them briefly. A strong case was made by the company's solicitors in their letter of 15 June 2001, repeated and burnished by Miss Grewal before us, that Miss Williams' evidence was either as to matters not in real dispute or was hearsay or was in any event covered by other witnesses. Had it been necessary for us to rule upon the matter we would have concluded that her evidence would probably not have had an important influence on the case, even accepting that her evidence was credible in the sense of representing what she honestly believed. Accordingly we must reject the attempt to adduce further evidence for the purposes of the appeal. So much for the inter partes part of the case.[13]We now turn to the ex parte Preliminary Hearing. We have a Notice of Appeal and we have a skeleton argument. In many respects they overlap, as, of course, one would expect. It has to be borne in mind that findings of fact are very much the exclusive province of the Employment Tribunal. There can come a point at which a finding is made for which there was no evidence whatsoever. In that respect the error becomes one of law but it is not, of course, an error of law for the Tribunal to prefer one body of evidence to another. It is not an error of law for a Tribunal to accept the evidence of one person on one point and to dismiss the evidence of that person on another point. As long as some evidence is given for the conclusion at which a Tribunal arrives, no complaint can be made that there is an error of law in that particular finding. Not only fact, but of course, credibility, which is related to a finding of fact, is again a province exclusively of the Employment Tribunal and it is a great impediment in the way of a would-be Appellant where he has had his evidence unaccepted or unpreferred below. This is such a case. In their paragraph 4.1 the Tribunal says:
"The tribunal found the applicant to be a witness who was prepared to exaggerate and embellish. He frequently provided very much greater detail in the course of his oral evidence before the tribunal than had ever been included in his Originating Application, further particulars of that application and in his witness statement. The tribunal concluded unanimously that the applicant was untruthful [they then give a particular incident] about his job offer from Insurety Plc. [the company to which he moved after C.I.C.A] "
Indeed, relative to that particular incident and much later in their decision, at paragraph 13.7, the Tribunal said:
"The tribunal did so having unanimously concluded that the applicant was deliberately fabricating his evidence in respect of his reason for leaving."
One can see therefore that the case put forward by Mr Kotecha has that initial disability, that he failed on the evidence at certain points.[14]It is that aspect of things that Mr Garner first attacks as being in error of law. He draws our attention to Tchoula v Netto Foodstores unreported in the Employment Appeal Tribunal, the judgment delivered by Mr Justice Morison as President, on 6 March 1998. In that case towards the end the Employment Appeal Tribunal says; "We are aware of an increasing number of appeals where complaints are made about the way the Industrial Tribunal has conducted itself. The Employment Appeal Tribunal is well aware of the difficulties Industrial Tribunals encounter as the fact finding tribunal, and of the fact that it is rare for the Employment Appeal Tribunal to allow an appeal on the ground of misconduct or bias. However, we think it might be helpful if we were to make some general points which tribunals might wish to keep well in mind." The Employment Appeal Tribunal then embarked on a series of paragraphs giving general guidance, Paragraph (6) of which reads as follows: "It is not satisfactory that tribunal decisions should contain a general statement to the effect that wherever the evidence of the applicant was in conflict with that of the respondent the applicant's or respondent's evidence was to be preferred." and the reasons why that is distasteful, to put it no higher, are set out. Mr Gardner relies on that passage but what was done in this case was that there was no such simple, bald, unsupported statement. Credibility of witnesses is given a separate paragraph heading, at paragraph 4, and there is over a page of close typing indicating why the Tribunal decided, as it did, that Mr Kotecha's evidence was at points exaggerated or embellished or was untruthful or was unreliable.[15]Mr Garner seeking, as we would see it, to apply the legendary 'fine tooth comb' to those reasons given by the Tribunal, says that they do not suffice; that indeed, they are so deficient that there is error of law on this subject of credibility. No examples, he says, are given of exaggeration. There is a confusion as to the difference of language between a physical meeting and a telephone meeting. An attack was made at the hearing below on a note produced by a Mr Stones. The attack being, as it seems, of the serious gravity that it was a fabricated note. That last aspect plainly failed. The Tribunal, relative to the note, which was the note of Mr Stones, said:
"Mr Bill Stones was a compelling witness who had never known the applicant during his time with the first respondent and who, the tribunal accepted, recounted accurately the meeting he had attended on 16 October, using his own notes as an aide-memoire. He had a clear recollection of his own questions to the applicant about the package offered by Insurety Plc and whether that package was in reality as good as it appeared to the applicant to be."
It is quite plain from that that whatever attack was made on Mr Stones' note completely failed.[16]This was a long decision. It was a detailed decision. It is over twenty nine pages of close typing. There is a limit to what one can expect by way of detail on the subject of credibility. It goes without saying that an Employment Tribunal that has heard evidence over some six days has reasons deriving from the demeanour of witnesses and their particular manner in answering questions and in particular at cross-examination. We are quite unable to say that the detail given by the Tribunal on the subject of credibility is so deficient that it amounts to error of law. That first heading of the attack that Mr Garner mounts fails.[17]That is by no means the only ground that was advanced. A great many were addressed before us. They are perhaps best collected by looking at the Notice of Appeal rather than the skeleton argument, although, as I mentioned earlier, to a great extent they overlap.

(a) ):

"It is respectfully submitted that the Tribunal failed to use Mr Neil Balcombe as a comparator with Mr Kotecha in assessing whether Mr Kotecha had been racially discriminated against by the First Respondent when, on 23 September 1998, the "
Semi-Annual Award for String Writer" was awarded to Mrs Teresa Vaughan. Mr Balcombe had won the Stringwriters Awards in consecutive cycles." There is then a reference to the King and Zafar cases. The Tribunal give a full and careful assessment of the failure to give the award to Mr Kotecha, and the giving of it instead to Mrs Vaughan. The comparator chosen by Mr Kotecha, or at least the principal comparator, was plainly Mrs Vaughan – see for example paragraphs 5.19, 5.21 and 5.22 of the Tribunal's decision. The point about Mr Balcombe having won the award in consecutive cycles is relevant to the Tribunal's conclusion which was, first of all, that the Respondent did not act reasonably in failing to give the award to Mr Kotecha, or at least in failing to make a joint award to him and to Mrs Vaughan, but then more particularly as to their going on to say this:
"However unfairness or unreasonableness without more does not connote racial discrimination and for the reasons set out above the tribunal does not draw the adverse inference of unlawful discrimination. In the harsh and competitive world of selling insurance in which the first respondent operates, the tribunal can well understand that the first respondent might not wish to have the same sales representative succeeding as both sole String Writer of the Cycle and also Top Performer in consecutive cycles since this may actually demotivate other representatives."
It is not suggested that Mr Balcombe was in the position as having been such that he would be both sole String Writer of the Cycle and also Top Performer in consecutive cycles and so to that extent he was not an adequate comparator for the position of Mrs Vaughan. We see good practical reasons why the Tribunal could have concluded that to have awarded to Mr Kotecha might have actually, as they say, demotivated other representatives. We do not see that as being an area in which there is any arguable error of law.[18]The next ground asserted is this:
"The Tribunal erred in law in failing to find that the First and Second Respondent had racially discriminated against Mr Kotecha by stating at a full sales meeting: "
That's in pounds not in rupees" " Then there is reference to what might be better remembered as the 'Bernard Manning case'. That is referable to something that the Tribunal say in their paragraph 5.34. They say this:
"On one occasion, the second respondent expressly stated: "
That's in pounds not in rupees" at a full sales meeting at which a number of Asian representatives were present, which was a comment directed at Mr Dalbir Singh Mann. This was used in heavy-handed and insensitive humour aimed at Mr Mann, following their conversation about the respective purchasing powers of the second respondent's favourite football, club, Leicester City, and Mr Mann's favourite club, Wolverhampton Wanderers, the previous day. The tribunal finds that the second respondent was wholly insensitive to the fact that other Asian representatives present, in particular those from the Indian sub-continent, would or may be offended by the remark, irrespective of Mr Mann's reaction. Mr Mann, a long-standing friend of the second respondent was certainly not offended by the remark." Now, it is certainly not every single remark that can be regarded in context as being unlawful racial discrimination. The Tribunal had cases laid before it; there is no reason to understand that it misled itself or misdirected itself in understanding those cases and ultimately the tests that the cases apply have to be applied by the carefully balanced members of the Tribunal as the so called 'industrial jury'. We cannot see that this one remark, directed as heavy-handed and insensitive humour to someone other than Mr Kotecha, had necessarily to be held to be racially discriminatory or to be so with respect to him. The Tribunal had the matter put in front of it, and we have no reason to see that conclusion as one at which it could not properly arrive.[19]The next complaint is very similar because it says:
"The tribunal erred in law in failing to find that the First Respondent had racially discriminated against Mr Kotecha by the actions of their employee, Mr Simon Chalmers."
That is dealt with by the Tribunal in paragraph 5.33 where they say:
"Mr Chalmers, who is white, did use the expression "me wanting policy" in a way that mimicked the way some Asian people speak and that was belittling of them and sarcastic. The applicant did not complain to Mr Chalmers or about his use of the expression to anybody in authority at the first respondent."
Again, such remarks have to be weighed up in the context in which they were made. It is by no means conclusive, of course, that the fact that Mr Kotecha did not there and then complain denied the event the possibility of being racially discriminatory in an unlawful way. That there was no complaint made, plainly is a factor that can be taken into account and we have no reason to see that the Tribunal did not attach such weight as properly could be attached to the remark which was complained of. We see no arguable error of law there.[20]Then the Notice of Appeal turns to the subject of fresh evidence, which we have already dealt with. After that there are then what are called 'Points of Perversity' running from (a) to (l). Some of these, (in fact, I think, all of them) are repeated in the skeleton argument, although not always expressed in exactly the same way. It is better to look at the Notice of Appeal's formulation because it is that alone that, strictly, is in front of us. The first point concerns Claire Sudlow's hand-written witness statement. This has been explained to us, as far as it can be explained, by reference to a supplementary bundle of papers laid before us shortly before the hearing. That bundle shows that there are two sheets of paper in hand writing signed Claire Sudlow which purport to give certain evidence, and then there is a typed witness statement of just over two and a quarter pages which was plainly intended to be signed by Claire Sudlow and dated by her as her witness statement but which was neither dated nor signed. We are told - I do not know whether there would be dispute about this or not – that both versions were laid before the Employment Tribunal. What the Tribunal say of that is this:
"The applicant applied to put in evidence witness statements provided by …"
There are then a number of people named the last of which is Claire Sudlow. Of that third statement they say:
"… that third statement was not signed by the maker and the applicant's representative had notified the respondents on the Friday before the hearing that the maker of it would not sign it. The respondents objected to this statement being put in evidence, since the applicant had never applied for a witness order requiring the attendance of Claire Sudlow. [The tribunal determined to receive in evidence the other two witness statements] … and to give them such weight as they deserved, having regard to the fact that neither witness was present at the Tribunal and subject to cross-examination or questioning by the Tribunal. The Tribunal refused to receive the unsigned hand-written statement of Claire Sudlow."
Well, there is something of a confusion there because the hand-written version (if the version that we are given is the version put before the Employment Tribunal) does appear to have been signed. The subject of the need for an application for a witness order having plainly been put to the Tribunal, one can see that, given that there was a typed version that was not signed, given that the Respondents were saying that Ms Sudlow had contacted them to say that it would not be signed and given that the Applicant below, Mr Kotecha, had the opportunity to apply for a witness order but did not do so even though the subject of a witness order came up, that the Tribunal would have good reason for electing not to receive the evidence in either the hand-written or the unsigned typed form. We cannot see that as being an error of law on the Tribunal's part, nor, more particularly, behaviour that was perverse on their part.[21]The next 'Point of Perversity' concerns what is called the 'Eagle Trophy'. It is said that it was not a specially made trophy, although the Tribunal held that it was. This point is recognised as being a weak point by Mr Garner but is not in fact abandoned. There is some limit that needs to be put to the detail which a Tribunal needs to resort to. They indicate that in their view it was a specially made trophy. It is said that it was not a specially made trophy. It seems to us to be no of significance relative to the overall case whether it was specially made or not. We do not permit that issue to go further.[22]Next, there is an allegation that Mr Kotecha was left out of a dinner invitation. It is said that no evidence was presented to the Tribunal that Mr Kotecha was ever invited to the dinner and yet the Tribunal does say:
"The applicant was invited but declined to attend because he was going out with his wife and other friends that night."
We will come back to that issue because it may be that the proper approach to that issue is that the Preliminary Hearing should be adjourned simply to get the Chairman's views of that subject and the evidence given or not given on it.[23]Next, at 'Points of Perversity' (d) it is said:
"There was no evidence given to the Tribunal about the Second Respondent telling the Appellant that he should get rid of his Asian representatives or any of them."
Reference here is made to a finding of the Tribunal that ends:
"…he did not tell the applicant that he should get rid of his Asian sales representatives or any of them."
It is said there was no evidence on the subject. What it seems to us to amount to is an accusation that without any evidence on the subject the Tribunal nonetheless got to the right conclusion. We cannot see that as an error of law.[24]Next, it says:
"Mr Simon Farquar got full credits for the same training as Mr Kotecha. He was not sworn at. See paragraph 5.15 of the decision. It is submitted that this evidence shows less favourable treatment towards the Appellant."
But paragraph 5.5 makes it quite plain that it was not Mr Kotecha that was sworn at but the maker of the request, Mr Chalmers. The finding is:
"Mr Chalmers asked the second respondent in the applicant's presence if the applicant would be granted a day's credits since he was not able to sell that day. The second respondent replied to Mr Chalmers: "
Fuck Off. Half a day's credit"." So it was, in fact, although something said in Mr Kotecha's presence, a swearing at the white man, Mr Chalmers. We do not see that that assists Mr Kotecha and we do not see it as a point of arguable error of law that ought to go forward.[25]Then it is said at 'Point of Perversity' (f):
"On the balance of probabilities the Tribunal were perverse in finding that the First Respondent did not receive the Appellant's letter of complaint dated 25 September 1998 … The Appellant had retained a certificate of posting."
That is a quite hopeless allegation. A certificate of posting is not a proof of receipt; it is a proof of sending and there is no suggestion that there was no conceivable evidence on which the Tribunal could have concluded, as they did, that the Respondent's side had not received the letter.[26]Then there are points at (g) and (h) together that relate to the issue of whether Mr Kotecha voluntarily left the company with a view to getting what he regarded as a better job with Insurety or whether, having suffered circumstances amounting to constructive dismissal, he felt himself forced to leave C.I.C.A. and to find other employment which transpired to be with Insurety. In this area it will be remembered that the Tribunal found Mr Kotecha's evidence specifically unreliable and indeed fabricated. We have no reason to believe they had no ground on which so to conclude. It is said that Mr Stones fabricated a note, or at any rate that his note was false, but we have already dealt with that; that was plainly not accepted by the Tribunal. Mr Stones and his note were taken to be reliable. It is no part of any Tribunal's job to decide every possible conflict that could have arisen on the evidence and we do not think that in this part of the case there was any error of law on the Tribunal's part, bearing in mind, in particular, that they found that Mr Kotecha in this part of the case was worse than unreliable. He had actually fabricated evidence deliberately.[27]Next there is reference to what are called 'no-go' areas in 'Points of Perversity' (i). Coventry became a "no-go" area in March 1998 says the Notice of Appeal. The Tribunal are therefore mistaken that it was in or about November 1997. We have no reason to think that the Tribunal's conclusion, which was related only to sickness policies, was wrong. In any event it seems it is no crucial factor in the reasoning whether it was in March 1998 or November 1997.[28]Then we have a reference to the 'no-go' status of Coventry being lifted in October 1998 after Mr Kotecha had left his employment (if that was what it ever was) with C.I.C.A. The Tribunal said in their paragraph 5.31:
"In or about November 1997, Coventry was made a "no-go" area for the selling of sickness policies. The tribunal is satisfied that this was not at the instigation of the second respondent or Mr Chalmers, but was entirely determined by the first respondent's Head Office in response to the claims history. Whilst there were other areas declared "no-go" areas which, like Coventry, had a high or very high proportion of ethic minority residents, the tribunal accepted that the first respondent also applied such a "no-go" area to an area within South Wales which was not self-evidently a high ethnic minority population area. The tribunal accepted that whatever disproportionate impact upon ethnic minorities was caused by the declaration of "no-go" areas, the first respondent had given no active consideration to any such effect but was entirely driven by its commercial motivation, in that it had suffered an unacceptably high proportion of claims in relation to policies sold in the area which had caused it to declare it a "no-go" area."
There is no indication that shows us that the lifting of Coventry as a 'no-go' area was done on anything that could, however broadly, be described, as racial grounds. There having been, as it seems, commercial reasons to impose it, there could have been commercial reasons to lift it. We do no find any arguable error of law in this area.[29]'Points of Perversity' (k) says:
"The tribunal heard no evidence of South Wales being a "no-go" area and yet concluded in their decision that it was."
Well, we have already read that passage. The passage would seem to indicate that the Tribunal had been told of a series of areas which had been declared 'no-go' areas and that those 'no-go' areas included South Wales. We have no reason to suppose that that was just something somehow speculated on or imagined by the Tribunal.[30]Lastly, in 'Points of Perversity' (l) it is said:
"The Second Respondent verbally reprimanded the Appellant for being ten minutes late to a meeting. He did not speak to other latecomers (see paragraph 5.32). The Second Respondent confirmed this in his oral evidence."
In fact, 5.32 of the decision does not specifically deal with an incident about ten minutes lateness, but it does say:
"The tribunal does not find that the second respondent intimidated, belittled or singled out the applicant for criticism."
The criticism is that apparently on one occasion when Mr Kotecha arrived ten minutes late he was deliberately sought out and reprimanded whereas two white people who appeared thirty minutes late were not. It transpired, apparently, that the reprimand was in private conversation; it was not public, it was not, in that sense, belittling, but in any event one cannot assume that a ten minute lateness is less culpable than a thirty minute lateness. A lot depends on the context, where people have come from, what their reasons were for being late and so on. We have no reason to find error of law in the Tribunal's conclusion that there was no relevant belittling or singling out for criticism arising out of that event.[31]We have now exhausted the particular allegations that are made. We, with only one very slight exception, have found no indication of even arguable error of law. What we will do therefore, is dismiss here and now the whole of the Notice of Appeal save on one subject only, which is a very minor one. That is whether there was no evidence on which the Tribunal could have concluded that Mr Kotecha was invited to the dinner that is dealt with in paragraph 5.12 of the Tribunal's decision. Whether there was such evidence can only be dealt with by us asking the Chairman for his comments on that point. I am bound to say that whether it is worth going back to the Chairman on so limited a point is a matter that Mr Garner and Mr Kotecha might wish to consider here and now, but, subject to that point only, the rest of the Notice of Appeal is dismissed here and now as not including any arguable error of law. Lindsay J Mr Garner, what do you say on that very small point? It is a small point - is it really worth going back on that? Would it help you even if it transpired there was no evidence? Mr Garner Sir, I've got my ………………[inaudible] …… can I just …?. Lindsay J Yes of course. Mr Garner Sir, on instructions, if I could ask for an application for the Chairman's notes on that issue? Lindsay J Right, well, it comes back, still as a Preliminary Hearing. We are not saying that there is an arguable point of law in that area; we are saying merely that for a fully informed Preliminary Hearing one needs to know what the comments of the Chairman would be on that area. It is still the case that the other parties are not involved. It is still an Ex Parte Preliminary Hearing. The Employment Appeal Tribunal will enquire what, if any, evidence was given on that subject, the subject described in 'Points of Perversity' (c), the dinner, I think it was in Portugal was it not? Mr Garner It was, yes sir. Lindsay J Otherwise, as we say, the Notice of Appeal is dismissed here and now. Mr Garner Very well. Sir, can I ask for leave to appeal? Lindsay J Yes indeed. We refuse leave to appeal. Mr Garner Very well sir, I think the only thing I've got to ask for is legal aid taxation please? Lindsay J I've forgotten what the phrase is these days – it is not legal aid taxation is it? Mr Garner I think it's legal aid assessment but I'm not sure. Lindsay J We will direct a legal aid assessment to be made of Mr Kotecha's costs of the appeal. Mr Garner Sir, I'm grateful for that.