MR A MILLAR v (1) WEST END COMMUNITY PROJECT LTD (2) MR J WARD (3) MR M CLUTTEN [2002] UKEAT 549_01_3010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 549_01_3010Case No Appeal No. EAT/549/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MILLARAPPELLANT(1) WEST END COMMUNITY PROJECT LTD (2) MR J WARD (3) MR M CLUTTENRESPONDENT
Before
His Honour Judge D Pugsley Miss N Amin Mr G LewisDate 30 October 2002
[1]APPEARANCES For the Appellant MR A MILLAR THE APPELLANT IN PERSON For the Respondents MR PETER WARD (of Counsel) Instructed By: Messrs Levenes Solicitors Bedford House 125-133 Camden High Street London NW1 7JR JUDGE D PUGSLEY : It is inevitable that in many cases where relationships fail, be it either in marriage or in employment, that those involved feel hurt. Where there is litigation and their account of the matter is not accepted, or they feel insufficient weight has been given to the trauma that they have sustained in the course of the breakdown of the relationship, it is understandable that they wish to complain and appeal the court or tribunal's decision.[2]The difficulty any legal system has is to get a balance between conferring untrammelled power on either a court or tribunal and repetitive litigation, on the other hand, with the result there is no finality. The solution that we have in the context of employment law is that Employment Tribunals are the sole judges of fact. An appeal of law, of course, includes the allegation of perversity, namely that a Tribunal has reached a decision which was not open to them because they misunderstood the evidence, ignored it, or they reached a conclusion based on evidence which was never given. But because that can so often lead merely to a re-argument of facts there are certain limits placed upon the argument as to perversity. Perversity only arises in the most striking and obvious case. Cases such as Piggott Brothers & Co Ltd v Jackson [1991] ICR 85, the earlier decision of Bailey v BP Oil Kent Refinery Ltd [1980] IRLR 287, and the most recent decision, Yeboah v Crofton [2002] IRLR 634 , are all decisions of the Court of Appeal that reiterated the need for an appellate tribunal to resist the temptation to think they could have all done it better than the Tribunal below. The most stinging criticism of this propensity of appellate tribunals and courts to try and intervene in matters, where they did not have the responsibility of actually trying it, is the matrimonial case of Piglowska v Piglowski [1999] 3 All ER 632 , in which Lord Hoffman sets out the very real dangers of appellate courts intervening. However well-drafted, few decisions could not be improved by re-drafting. The temptation should be resisted to approach every case with Olympian arrogance and say, "Well, they didn't deal with this, they didn't deal with that" and for an appellate tribunal to substitute its own view. Tribunals have a wide discretion as to how they approach cases.[3]The preliminary hearing of the Employment Appeal Tribunal under Mr Justice Wall, Mr Fitzgerald and Mr Springer noted that there were certain matters which gave cause for concern. Pursuant to the decision of the preliminary hearing Mr Burns from ELAAS drafted the following amended grounds: Race Discrimination(1) The tribunal failed to address or make findings of primary fact on the whole of the Applicant's claim it improperly restricted its enquiry to a racial comment about the Appellant's Scottish accent made at the disciplinary hearing, but failed to consider or determine: (a) the differential treatment between the Appellant and Mr Dooher who was the other employee involved in the altercation, (b) whether the Respondent's explanation for the difference in treatment was satisfactory (c) the other comments of a racial nature made by employees of the Respondent (some of which were admitted in evidence) whether as (i) part of a continuing act culminating in the Appellant's disciplinary (procedure) and dismissal or; (ii) part of the totality of the evidence from which the tribunal ought to draw inferences.(2) It is suggested that the Tribunal failed to make findings and conclusions about a series of racial comments alleged to have been made by employees of the Respondent and assess whether the fairness of the decision to dismiss was tainted by racial discrimination and/or bias on the part of Mr Clutton and Mr Ward of the Respondents. Unfair Dismissal The gist of these grounds of appeal were that the tribunal had failed to consider the extent to which the dismissal was tainted by racial discrimination; failed to take into account the evidence of Mr Ward that his mind was 90% made up; failed to consider the extent to which it had erred in adopting its own procedure and that its finding that the Appellant was given the opportunity to be represented was perverse.[4]This is a Tribunal that sat for a number of days. The majority of the Tribunal made a number of findings of fact. They are set out in paragraph 3 of the Decision. The Respondents were a charitable organisation, set up to provide legal advice and representation at Courts and Tribunals for its local community. It was financed by various grants. It had three full time-employees, one part-time and a cleaner. There were about 50 volunteers who gave help and assistance when required. It was run by a management committee which included a number of volunteer members. The Applicant originated from Scotland. He has a Scottish accent. He was employed by the project as a Welfare Rights worker. He advised members of the local community who consulted him and, when required to do so, represented them in the County Court and Tribunals.[5]The Project Manager was a Mr Dooher. The Applicant commenced grievance procedures against him in March 1999. The Applicant considered that Mr Dooher had allowed the other rights workers to undertake work which resulted in him having to shoulder an unacceptable amount of work. In September 1999 the Applicant went to his bank and found that his wages had not been paid in for that month. He thought that they should have been, because they should have been paid on the 25 th of the month. As a result the Applicant attended the office, saw Mr Dooher, asked why the telephones were not being answered and then said to Mr Dooher, "My wages still aren't in the bank. What the fuck's going on?". The Applicant was in an agitated state and Mr Dooher refused to continue the conversation. He walked out of the office. There was a shouting and then, thereafter, there was an altercation. Mr Dooher made a complaint on the 28 th that, on the 27 September, the Applicant had assaulted him. He gave details of his complaint in a written statement. The Chairman of the project read the particulars and decided that the allegation was sufficiently serious for it to be investigated. She wrote to the Applicant informing him of the position that he was to be suspended pending the completion of the investigation.[6]The Tribunal then deal with the various attempts to convene a meeting and the issue as to whether the witnesses would or would not be allowed. It is pertinent to say that there was considerable to-ing and fro-ing as to availability of various people, including the solicitor who had been instructed by the Applicant, a solicitor acting for a Leicester Law Centre.[7]At the disciplinary hearing reference was made to the fact that the Appellant's voice had not come out clearly. Mr Ward said that "The rape recorder doesn't understand your Scottish accent" and there was laughter at that remark. The Respondent dismissed the Applicant and the Applicant then brought a case based on race discrimination and unfair dismissal.[8]In the race discrimination case the Tribunal reached a unanimous decision. The unfair dismissal case was very different. There was a sharp cleavage between the view of the majority and that of the dissenting member. The majority found that the reason for the dismissal was a belief that on 27 September 1999 the Applicant assaulted Francis Dooher on the premises. They decided that the First Respondent had acted reasonably in treating that as a sufficient reason to dismiss the Applicant. They took, as a starting point, the words of Section 98(4) of the Act. In particular, they considered the size and administrative resources of the Respondents' undertaking and they said this:
"The first respondent's administrative resources were poor. There were only three full-time employees, a part-timer and a cleaner. The management committee included a number of volunteers who were unpaid. The project was run on a shoestring and relied on various grants and voluntary help. Ironically, whenever the management committee required help or advice in administrative or employment matters, it was the applicant to whom they turned. He was an expert."
[9]The majority of the Tribunal said that the procedure which led to his dismissal was not unfair. A reasonable investigation was carried out, in that statements were obtained from all those in the vicinity at the time of the assault, including the Applicant. The Applicant was given copies of the statements and informed in writing of the nature of the allegation made against him. By the time of the disciplinary hearing, he was well aware of the nature of the case and had the evidence upon which the employer relied. He had ample opportunity to present his case.[10]At the disciplinary hearing he was allowed to be represented by a solicitor. He was given the opportunity to cross-examine the witnesses face to face and, when he did not take the opportunity, he was allowed to put the questions in writing. He did so and was supplied with a written answer.[11]The majority of the Tribunal considered there was reasonable evidence before Mr Ward and Mr Clutten for them to come to the conclusion that the Applicant had assaulted Mr Dooher. That was the evidence of Mr Dooher, who described being struck by the Applicant, and that was supported by Julia Ruck and Paddy Bromley. These two females did not see the first blow struck but, within seconds, were observing the scene and their evidence supported the fact that the Applicant was the aggressor and Mr Dooher was having to defend himself. There was no need to call the police officer who attended the incident. By the time he arrived it was all over. The Tribunal continued: that the majority were satisfied, that is, Mr Ward and Mr Clutten heard the matter and came to the conclusion on the basis of the evidence and did not pre-judge the issue. The dismissal was not unfair, it was within the range of responses.[12]The dissenting member took a very different view. He said that the version of the events given to the police officer and the two women, Julie Ruck and Paddy Bromley, differed from the statements they made during the investigation and that the sub-committee failed properly to investigate this matter. He thought that on a proper construction of the correspondence the Applicant had not been given permission to cross-examine the witnesses; the minds of the Tribunal were made up from the start; the Applicant was treated differently from Mr Dooher; the rules of procedure were changed without there being a full investigation and the panel went directly into disciplinary proceedings.[13]The minority member noted that Mr Ward, in cross-examination, said that the Applicant had been on sick leave with TB and diabetes. The fact that he had been absent had created an atmosphere in the workplace that made Mr Ward assume that no one would work with him if the Applicant were allowed to return to work. Mr Clutten refused the Applicant a copy of the tape recording of the disciplinary hearing, which he required to prepare his case in the Tribunal, and Mr Clutten closed his mind to the Applicant. The Applicant had cancelled a meeting due to ill-health. Mr Clutten regarded this as "the last straw" and made up his mind that the Applicant was taking advantage of them and that dismissal was the only course open to them. In brief the minority member considered the decision unfair.[14]We have considered very carefully the arguments. These are very divergent findings. The answer, as we consider was the true analysis, is that there were findings that were open to the Tribunal in good faith to make. It is true that, from the notes of evidence, there is the case that Mr Ward said that he felt this was supposed to be investigatory at the meeting of 26 October. "My mind was not made up at this point. It was on its way though. By this time we had statements from Dooher and Ruck. We had also interviewed them". We consider, having considered that, it is perfectly open for someone to say, quite honestly, "I've looked at these statements. My mind was not made up, it was on its way though". To accept one interpretation of that, that someone was being perfectly honest, "I've heard it, it looks credible, not completely made up but a long way towards it". Equally, it was open to someone to say, "Well I don't like that, and my view of the matter is that it looks as though it is predetermined". That is reflected in the fact that two members felt they could put the benign interpretation on that and one member rejected it. Similarly, if we say so, in the long and rather tortuous correspondence about times and dates, the availability of witnesses and who was available when, and who was off sick when, in all the circumstances, it would be open to construe that as saying the Applicant had the opportunity to be represented and cross-examine witnesses. However because the Applicant was unwell and the solicitor could not attend, it is equally open for a party to construe it in a very different way and say the Applicant was denied the opportunity of cross-examining witnesses.[15]We consider that the disparity between the majority and the minority (though it is and we fully accept this is striking and unusual) is a matter open to the Tribunal on the basis that they took a different view of the same evidence that was before them. Rather than being a criticism, in a rather strange sort of way one may see it as a comfort, that people are not bullied in a Tribunal to speak with the unity of the graveyard. Here the members were taking a different view, as they are entitled to, of the same evidence. But is the unfair dismissal decision tainted by the failure of the Tribunal to consider the references to badinage and offensive remarks and to ignore that? Race Discrimination[16]What the Tribunal say, on the race discrimination, was that they were all united in rejecting the claim that the incident on 22 November, about the tape recorder not understanding a Scottish accent constituted race discrimination. They say at the meeting, following the comment Mr Ward removed the tape recording to the centre, close to the Applicant. The remark by Mr Ward may have been unfortunately expressed, but the Tribunal made the finding that the Applicant understood and realised that all that was being said was that the tape recorder was failing to pick up his voice. The Applicant realised that, if the meeting was to be recorded with him on the tape, the tape recorder had to be moved. The Tribunal did not accept that the Applicant was taken aback or disturbed by the comment as he stated in the evidence.[17]The Tribunal were satisfied that the Applicant was no way offended by the comment. The Tribunal concluded that if he had been offended in the slightest degree, they were satisfied that either he or his solicitor, Mr Coxon would have raised the matter at the time. The Tribunal were satisfied, therefore, the Applicant suffered no detriment in this regard. At paragraph 13 the Tribunal made it clear they were further satisfied that the Applicant suffered no other detriment in respect of the words uttered by Mr Ward and, in respect of the remarks made by Mr Clutten, concerning the fact that the Applicant was Scottish. It is clear from the context the Tribunal were satisfied comments made about him of his Scottish accent had nothing to do with his dismissal, although the text of that paragraph could have been more clearly drafted.[18]In paragraph 11 of the Extended Reasons the Tribunal have given a classic textbook summary of the law concerning the place of inference following King v Great Britain China Centre [1991] IRLR 513 , 518. It is true that the evidence of what the Tribunal took to be office banter between members of the staff and the Applicant is only dealt with briefly.[19]The Tribunal deals with the points that were made in paragraph 13. There is a high artificiality about appeal hearings. You concentrate on matters that may have formed only a small part of the original hearing. At the end of the day, it would have been much wiser if this Tribunal had in terms set out that there had been a history of badinage, that it found that had nothing to do with the dismissal and, therefore, it did not propose to make findings other than that about it. That is set out at paragraph 13 of the Decision in the sense that it said:
"We are further satisfied that the applicant suffered no other detriment in respect of the words uttered by Mr Ward or in respect of remarks made by Mr Clutten concerning the fact that the Applicant is Scottish. In particular, we are satisfied that comments made about his being Scottish or about his accent had anything to do with his dismissal."
From the context the last sentence seems to have missed the word "not" out.[20]But, at the end of the day, if you look at the Originating Application, the whole application is made in the context of dismissal and we are satisfied that the Tribunal carefully considered the issue of dismissal. We cannot ignore the fact that one member of the Employment Tribunal made grave findings of fact against members of the Management Committee, quite simply that member did not feel he could rely on their evidence. But nevertheless, all were unanimous that this was a case where the race discrimination should be dismissed. The Originating Application starts, in paragraph 11, with the unfair dismissal, "biased against me" and then, "Not allowed the sight of the evidence" and then it goes on, "Throughout the proceedings I was mocked for having a Scottish accent in the [presence, I think] of the disciplinary panel". The Applicant goes on to state previous such comments had been made.[21]We are not making light (we want to make this quite clear) of the allegations of race discrimination, but we consider that they were dealt with. With hindsight, one can criticise the Tribunal and say they could have been dealt with in greater detail but, at the end of the day we think, subject to the text and amendment of the Decision to which we have referred, it is quite clear from their Decision that they did not accept the allegations of racial discrimination that were made and they found there was no causal connection with the dismissal.[22]In those circumstances, having considered all that has been said, we dismiss this appeal. Mr Ward has applied for costs; he makes the point that the supplementary bundle and aspects of the skeleton argument go beyond the limited grounds of appeal. At times Mr Millar has been verbose and has not concentrated his argument on the most relevant matters. But in our view this is not a case in which costs should be ordered against him.