MR ERHAYIEM v (1) STOCKPORT AND HIGH PEAK TEC LTD (2) MRS H SMITH [2002] UKEAT 705_01_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 705_01_2009Case No Appeal No. EAT/705/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR ERHAYIEMAPPELLANT(1) STOCKPORT AND HIGH PEAK TEC LTD (2) MRS H SMITHRESPONDENT
Before
His Honour Judge D SerotaDate 20 September 2002
[1]APPEARANCES For the Appellant MR D McCARTHY (of Counsel) Instructed by: Messrs Maidments Solicitors 5 Great Moor Street Bolton BL1 1NZ For the Respondents MS R CRASNOW (of Counsel) Instructed by: Sinclair Abson Smith Solicitors 30 Greek Street Stockport SK3 8AD JUDGE D SEROTA QC This is an appeal by the Applicant, Mr Mohammed Erhayiem, and I hope I pronounce his name correctly, with permission of the EAT from a Decision of the Employment Tribunal at Manchester that was promulgated on 1 May of last year in which the Applicant's complaints of discrimination on the grounds of race were dismissed.[2]The matter came on a preliminary hearing before the EAT on 14 November of last year, presided over by Mr Justice Maurice Kay, and the appeal was allowed to proceed on two grounds. The first ground was related to the fact that the Respondents' solicitor, although not their advocate, was a part-time Chairman of the Employment Tribunals and had sat at Manchester, and it was suggested that this gave rise to an appearance of bias. This ground of appeal, however, has not been pursued.[3]The second ground of appeal relates to the fact that during the course of the hearing in Manchester, a number of documents were shown to be forged, not in the sense necessarily that the whole document was a concoction, but signatures on the document which purported to be Mr Erhayiem's were not his, and it is said that this has given rise to an arguable point that the Employment Tribunal failed to attach sufficient significance to the fact that important documents had been forged.[4]The Applicant is a man of Iraqi origin, with indefinite leave to remain in the United Kingdom. He is a graduate in civil engineering, he has a master's degree in structural engineering and an employment history in that field. He applied to join the Management Graduate Gateways Programme of the First Respondent, the Second Respondent being its Operations Manager. The scheme which he wished to join was a scheme aimed at unemployed graduates who are seeking to enhance their qualifications and improve their prospects in the employment market. It did not, apparently, provide job placements.[5]In October 1999, when the Applicant applied to join the scheme the programme had still not been prepared and the Applicant was informed. We note, and it may be a matter of no significance, that in 1996 the Applicant had previously taken proceedings against the First Respondent for discrimination in the Employment Tribunal.[6]On 3 December the Second Respondent wrote to tell the Applicant what steps needed to be taken so he could join a programme commencing on 4 January. He responded and was invited to interview. Again, it may be material to note that in the interview, which took place on 6 January, he mentioned that he had suffered discrimination in the past. The Respondent was unable to find a placement for the purposes of the course matching his skills in January and February.[7]He submitted a formal application in which he again referred to past discrimination on 17 January and on 19 January, the course commenced. The course was expected to last for twelve weeks and work was to be submitted for assessment by the Institute of Management, with a view to persons on the course being awarded a certificate in management. The course was led by a Mr Keigher who was described by the Employment Tribunal as being somewhat inexperienced. There was also an unfortunate confusion about assessment guidelines which had in fact been issued by the Institute of Management. There were ten persons on the course and all of them were led to believe that it was necessary for them to produce written work of 1,500 words per module. However the Institute Guidelines of which the Respondent should have been aware but were not, put that requirement at 2,500 words.[8]As the programme progressed, the Applicant expected to be given feedback on his work very quickly but it would seem that Mr Keigher was unable to comply and he regarded the Applicant's expectations as unreasonable. The Applicant regarded this failure to give speedy feedback as being discriminatory but the Employment Tribunal found that all participants in the course were treated in exactly the same way.[9]A number of other complaints were made by the Applicant; it is unnecessary to set those out. It is apparent, however, that relations between the Applicant and the Respondents broke down. A number of meetings took place and the Applicant began making complaints, for example on 10 March, he wrote to the Chief Executive of the First Respondent and he wrote numerous other letters, some of which were copied to persons with no connection with the dispute.[10]A number of meetings were held between 20 and 23 March to attempt to resolve the dispute, the First Respondent considered that matters had been resolved but the Applicant's correspondence suggests that he did not think that it had. He, towards the end of March, complained to the Employment Service, which we suppose to be responsible for the First Respondent, to complain of some criticism made by Mr Keigher on a piece of his work.[11]The error in relation to guidelines as to the length of the written work came to light on 18 May. There was no suggestion that work done by the Applicant was to be disregarded, but the suggestion was that he should provide additional work. He asked, however, for his work to be reassessed and wrote on 20 May to the Employment Service complaining that there had been deliberate misconduct in relation to the guidelines that was designed to jeopardise his success on the programme. Attempts were made by Mr Keigher and Mrs Smith, the Second Respondent, to persuade Mr Erhayiem that the First Respondent had made a simple mistake which was capable of rectification, but these attempts fell on deaf ears. Mr Erhayiem insisted that this was a tactic designed to ensure that he failed the course and amounted to race discrimination. Further meetings took place in June and again, although the Respondents were hopeful that matters had been agreed, Mr Erhayiem did not.[12]On 3 June he sought clarification of various matters and complained to Mr Durant, who was the Equal Opportunities Officer for the First Respondent that he was being given a hard time because he had complained of discrimination, and a remark made by Mrs Smith at an earlier meeting, when she had asked, in frustration at his attitude, for him to consider how she might be treated in similar circumstances were she to be in Iraq.[13]The Applicant asked the Institute of Management to take over responsibility for assessment, believing that his relationship with Mr Keigher had been damaged and on 16 June, he wrote to the Institute to challenge the amount of extra work he had been asked to do as excessive and he submitted no further work. He submitted two applications to the Employment Tribunal on 13 July and 9 August. We have already mentioned the Decision of the Employment Tribunal which was promulgated on 1 May. On 8 May the Applicant sought a review which was refused on 5 June.[14]The complaints made by Mr Erhayiem of discrimination were sevenfold. They are set out in paragraph 1 of the Extended Reasons. One of the grounds of which he complained was as follows:
"…(2) the respondents failed to provide him with adequate feedback on his work and his work was under-marked;"
During the course of preparation for the proceedings, the Respondents have disclosed a number of documents. Some of those documents are relevant to the question of feedback. When those documents were seen by Mr Erhayiem, he examined them and saw in relation to six of those documents that his signature appeared to have been forged. He firstly took this matter up with the Employment Tribunal and he made arrangements to obtain a forensic report. The first, however, that the Respondent knew of the matter was when a letter from the Chairman of the Employment Tribunal to the Applicant, dated 20 March, was copied to them and the letter would not have disclosed very much to the Respondent in the absence of Mr Erhayiem's letter of 13 March. In that letter the Employment Tribunal state:
"You must make any application - for facilities to have any documents expertly examined - at the hearing."
And then:
"In any event if an Order is made you must make your own arrangements to find, instruct and pay a handwriting expert"
Mr Erhayiem then faxed solicitors acting for the Respondent on 2 April, in which he referred specifically to fake signatures appearing on certain document, and he states:
"It is apparent that my signature was forged on these documents"
[15]We have seen evidence in the form of an affidavit from Mr Cook, a solicitor who appeared as an advocate on behalf of the Respondents at the hearing and he stated that he did not see this fax although it was addressed to him, amongst others. It was addressed also to "Jonathan Wittaker, Rachel Brown, John Cook & Others".[16]One of the documents which is perhaps at the centre of this appeal is the one to be found at page 149 of the bundle. It is dated 16 February. It refers to a period under review as being from 19 January 2000 to 16 January 2000. It has "Comments" and "Action to be taken". We will refer to the contents of the documents later, but does appear to show that feedback was being given to the Applicant and as we have said, it purports to bear his signature and is dated 16 February. This document and other documents was obviously of value to Mr Cook as an advocate because it would show, if it were a genuine document, Mr Erhayiem acknowledging that he had in fact received feedback.[17]When Mr Cook began his examination of Mr Erhayiem in relation to this matter, Mr Erhayiem said that the document was a forgery and at that stage he handed up his handwriting expert's report. The Respondents' evidence is that they were taken by surprise at this, the case was adjourned to enable them to take instructions and, according to the Chairman's Notes, Mr Cook said when the hearing resumed that these were review sheets prepared for audit purposes, that they should have been signed by the student, the Applicant was not asked to sign them by the Respondents' witnesses; they were passed to Administration, they could well be forgeries. This was a matter that was critically commented upon by the Chairman.[18]The matter was dealt with in this way by the Employment Tribunal. In paragraph 4:
"The Tribunal found all three witnesses to be honest witnesses."
That includes the Applicant, one might think. "There was remarkable congruity in their evidence and basic agreement as to the chronological events. However, the witnesses did not agree upon the interpretation to be placed on those events. The Tribunal found the interpretation of events offered by Mrs Smith and Mr Keigher to be persuasive and compelling. This assessment is reflected in the Tribunal's findings of fact. That conclusion was not disturbed by the Respondents' admission during the course of the hearing that a temporary employee had added the applicant's signature to certain documents maintained as part of the Respondents' quality audit system. While that does not reflect well upon the Respondents, the documents in question are not central to the issues before the Tribunal, the forgery did not occur in the course of these proceedings, and neither of the Respondents' witnesses were aware of it".[19]The Tribunal then made certain findings of fact. As we have referred to page 149, it is convenient to note that this refers to a review and during the course of that review, this document confirms that the Applicant had been advised to identify a friend or a colleague to help him draw up a development plan. That such advice was given is found in paragraph 13 of the Employment Tribunal's Decision. Furthermore, it has been demonstrated that the Applicant accepts that to be the case; we have been shown an affidavit that he swore on 6 September, in paragraph 4 of which he refers to the advice that he should attempt to find someone from his ethnic community to assist him in preparing a development plan.[20]In paragraph 15 the Employment Tribunal find that the Applicant was not treated differently from other participants; his work was of a high standard and he was internally marked and given feedback, in accordance with that. His specific complaints were rejected and the Tribunal were not satisfied that the Respondent had discriminated against the Applicant in any of the ways contemplated by section 13 of the Race Relations Act . They did not treat the Applicant less favourably than they treated or would treat other persons in similar or not materially different relevant circumstances.[21]In any event, say the Employment Tribunal, as a matter of causation they did not do so on racial grounds. They also rejected the suggestion that they had victimised the Applicant by treating him less favourably than others by reason of his earlier complaints. They then said this:
"37 ………….The respondents have provided consistent and credible explanations for their actions and those explanations undermine any suggestion of direct race discrimination or victimisation. This is not a case where, having considered the matter, the Tribunal has felt able to draw any legitimate adverse inferences from the primary facts. In particular, the applicant was not treated any differently from the way in which other participants in the programme were treated (or would have been treated). Any differential treatment of the applicant is explicable by the different circumstances affecting him, rather than less favourable treatment on racial grounds. Standing back from the individual events, and looking at the picture as a whole, the Tribunal is unable to detect or infer racial discrimination (whether amounting to direct discrimination or victimisation by the respondents against the applicant contrary to section 13."
[22]The thrust of Mr McCarthy's submissions is that the Decision of the Employment Tribunal was perverse. It is said that the Decision in paragraph 4, that the forged documents, in particular the one that we have looked at at page 149 was not central to the issues before the Tribunal, is unsustainable. The Tribunal appreciated the centrality of this document. It would have examined far more critically the credibility of the witnesses called by the Respondent rather than simply accept them as honest and truthful witnesses. Any appeal on the ground of perversity is bound to be extremely difficult. The Employment Tribunal had the benefit of seeing the witnesses and hearing the witnesses. They came in this case to very clear conclusions, they found the evidence given by Mr Keigher and Mrs Smith to be evidence given by honest witnesses.[23]They also found that even though the signature at page 149 may have been forged, matters that were recorded in the document were in fact correct; that was the evidence given by Mrs Smith and Mr Keigher. The Employment Tribunal were satisfied that they knew nothing of the forgery and had no reason to suppose that those documents were forged when they countersigned them. It seems to us that there was other evidence, if evidence were needed in documentary form, to support the finding that in fact the feedback had been given. Ms Crasnow, in her Skeleton Argument, identifies a number of documents in paragraph 9 which are to be found in our bundle which are contemporaneous records of meetings that took place. Furthermore, she drew our attention to a document which she said was before the Employment Tribunal, but which Mr Erhayiem says was not. That is a document at page 166 in our bundle.[24]We came to the conclusion that it was impossible for us to determine whether that had in fact been before the Employment Tribunal, notwithstanding that it appears to bear a page reference consistent with it having been placed at the end of the bundle, and therefore we pay no attention to that document, but it seems to us that the Employment Tribunal was perfectly entitled on the evidence to come to the conclusion, having regard to the fact that the documents it found to be forged, were not to be relied upon, and that those documents were not central to the case.[25]Furthermore, even without the documents, which the Employment Tribunal may not have specifically relied upon (we now refer to those documents referred to by Ms Crasnow) the Employment Tribunal had the benefit of hearing evidence from witnesses who said that feedback had been given. To some extent that was corroborated by the Applicant, as we have mentioned, and it seems to us to have been well within the remit of the Employment Tribunal as the Industrial Jury, to come to those findings of fact which we cannot upset. It seems to us as well that even were the Employment Tribunal to be regarded as wrong, in saying that the document was not central, it made no difference to their findings because the Employment Tribunal quite clearly believed the evidence of two honest witnesses.[26]In those circumstances, the appeal cannot succeed. Firstly, we do not consider that it can be said that the forged document must have been regarded as central, and secondly, even if it was, it would have made no difference to the findings the Employment Tribunal made having heard and seen the witnesses. In those circumstances, the appeal must be dismissed. We would like to record our gratitude both to Mr McCarthy and Ms Crasnow for their succinct and helpful submissions.