MR A MAYERS v THE CORPORATION OF LONDON & THE CITY OF LONDON POLICE [2002] UKEAT 812_00_1012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 812_00_1012Case No Appeal No. EAT/812/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MAYERSAPPELLANTTHE CORPORATION OF LONDON & THE CITY OF LONDON POLICERESPONDENT
Before
His Honour Judge D SerotaDate 10 December 2002
[1]APPEARANCES For the Appellant MR F EDWARD (of Counsel) Instructed by: Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX For the Respondents MR T KEMPSTER (of Counsel) Instructed by: Legal Department Corporation of London PO Box 270 Guildhall London EC2 2ET HIS HONOUR JUDGE D SEROTA QC This is an appeal from the Decision of the Employment Tribunal at London North chaired by Mr G Flint, promulgated on 12 April 2000 after a hearing that lasted eight days. The Employment Tribunal dismissed the Applicant's complaints of unfair dismissal, discrimination on the grounds of race, breach of contract, breaches of the Wages Act and wrongful dismissal. The grounds of appeal originally served extended over much wider grounds but at a preliminary hearing of the EAT presided over by the President on 23 May 2001, certain grounds of appeal only were permitted to proceed.[2]We now turn to deal with the factual background to this appeal. The Applicant is of Afro-Caribbean origin. On 6 May 1986 he joined the Respondents as a traffic warden. He complains he has suffered discrimination on the grounds of race since 1994. In April 1994 the Applicant saw an advertisement for a JE2 post. The advertisement gave an incorrect salary. This was corrected before the Applicant went for interview. The Applicant maintained that the post had been graded JE3 or alternatively that it was downgraded to JE2 because a black applicant was going to be appointed to it. These allegations were rejected on the facts by the Employment Tribunal.[3]In 1993 the Respondents lost its traffic warden responsibilities to the Corporation's City Engineer's Department. A number of traffic wardens had to be redeployed and the Applicant became a general assistant to the Commissioner, Assistant Commissioner and the Commander of the City Police providing messenger services in June 1994. In December 1997 Government grants to the City Police were reduced from some £61.5m to £57.1m. The Employment Tribunal was satisfied that the Respondents required to make savings; those savings included a reduction in staffing levels. Accordingly there was a redundancy situation. The Applicant's post was one of those that would disappear and the Applicant was selected for redundancy. The Employment Tribunal was satisfied that no considerations of race entered into the decision.[4]On 26 April 1998 the Respondents' policy for redeployment and competition for jobs was explained to the Applicant. The Employment Tribunal was satisfied that the Respondents followed its rules for slotting-in and ring-fencing and that there was no discrimination. The Applicant applied for the job of Mr Kevin Smith as a front office clerk. From July 1998 Mr Mayers acted up as a Front Office Clerk (Grade 3) in the post temporarily vacated by Mr Smith who was acting up as a Grade 4 Central Property Officer. The Applicant did not secure the post and the Employment Tribunal was satisfied that the post went to a better qualified candidate and that racial considerations played no part in the decision. During the period Mr Mayers acted up his salary was protected. Had he received the acting up allowance together with the salary for his temporary post, he would have received less pay. The Employment Tribunal found there was no element of discrimination in the decision not to pay him an acting up allowance.[5]On 3 December 1998 the Applicant was notified that his substantive post (of General Assistant Grade 2) was to be made redundant. He sought to raise a grievance concerning his redeployment to the front desk. This grievance was rejected by the Personnel Officer, Ms Beechey, as invalid. Thereafter there was considerable correspondence between the Applicant and his union on the one hand and the Respondents on the other. The Employment Tribunal considered that Ms Beechey had acted in a high-handed manner and the Respondents were wrong to refuse to allow the Applicant to raise a grievance. However the Employment Tribunal was satisfied that the refusal to permit the Applicant to raise the grievance did not constitute an act of discrimination.[6]In March 1999 the Applicant was interviewed for the front desk job but was unsuccessful and his contract of employment terminated on 1 March 1999.[7]The proceedings before the Employment Tribunal commenced on 10 December 1999 and lasted some eight days. It is asserted by the Applicant and a witness Ms Conetta Aslam, that the Chairman repeatedly fell asleep. We quote from paragraph 4 of the Appellant's affidavit:
"Throughout the eight days of the hearing into my case, ……..the Chairman continually fell asleep or dozed off during the hearing. This was something which occurred every day of the hearing, especially near 12 pm and in the afternoon."
The Applicant claims he drew his lawyer's attention to the fact that the Chairman had dozed off or fell asleep and on occasions Mr Edward would resort to making a noise to wake up the Chairman. The Applicant complained that the Chairman had fallen asleep during the evidence of a Mr Valentine when Mr Valentine is said to have accepted in cross-examination that the Applicant's grievances should not have been blocked and that a white employee who had made complaints considered to be futile was permitted to proceed with his grievance. The Applicant's evidence was, as we have noted, supported by a Ms Connetta Smith. On the other hand Mr George Jeffrey, solicitor of the Respondents who appeared for the Respondents, in his affidavit gave a wholly different account. His recollection was that on two occasions (and no more) the Chairman appeared to have his eyes closed for a couple of minutes. His posture was not that of someone who was asleep. He did not recall any loud noises being made.[8]The Decision of the Employment Tribunal was promulgated on 12 April 2000 and on 16 May a Notice of Appeal was lodged which included the allegation that the Applicant had not had a fair hearing because the Chairman had repeatedly fallen asleep. On 23 May 2001 the EAT (as we have mentioned) permitted certain grounds to go to a full appeal including the allegation that the Applicant had been deprived of a fair trial by reason of the Chairman falling asleep. The EAT ordered the Chairman to provide his notes in relation to certain matters and required the Applicant to file an affidavit within twenty one days identifying the dates and times when he asserted the Chairman had fallen asleep and the evidence and argument that the Chairman had not attended to. The Court provided for the Chairman's comments to be sought after those affidavits were filed.[9]In fact (for reasons connected with a bereavement) the Applicant's affidavits were not filed until 11 October 2001. In the interim the EAT had sought the Chairman's comments based on the Notice of Appeal which was quite unparticularised. The Chairman declined to deal with what he considered to be vague allegations but would comment further after proper particulars had been received. Unfortunately, when the affidavits were received in October 2001 no further comments were sought from the Chairman who has now retired. He has therefore not responded to the allegations.[10]The Applicant made a number of specific allegations.(a) The post to which he was appointed at Grade 2 should have been Grade 3, as it was when done by white staff in 1994.(b) The refusal of the Respondents to upgrade to Applicant to a higher grade was by reason of discrimination on racial grounds.(c) Failure to pay the Applicant an honorarium while acting up as Grade 3 in 1998 amounted to discrimination on grounds of race.(d) There was no redundancy situation in December 1998 but a situation was engineered to give rid of the Applicant by reason of his race.(e) The interview that took place in March 1999 for the front desk job was discriminatory in that a white employee was preferred.(f) Apart from discrimination on the grounds of race, there was a general unfairness in the manner of selection for redundancy and redeployment.(g) The Respondents refused to deal with the Applicant's grievance because he was black.(h) There was overall discrimination in the redeployment process.(i) There was also a general allegation of institutional racism in the City Police.[11]We mention these matters because they are set out with the exception of (i) in paragraph 2 of the Extended Reasons of the Tribunal and because each of these allegations was investigated and rejected on the facts. We take these complaints in order. (a) The Employment Tribunal found that the advertisement was for a Grade 2 post but the salary advertised was incorrect and was soon corrected. (b) The decision not to regrade was made on proper grounds without any element of discrimination. (c) An honorarium was inappropriate as the Applicant was being paid more than the salary for the post. (d) There was a true redundancy situation and there was no truth in the suggestion that it was designed to engineer the Applicant's removal. (e) There was no discrimination as the Applicant was not the best candidate and the Respondents properly followed procedures for slotting-in and ring-fencing with all employees. (f) This was rejected on the facts and there was no discrimination. (g) The Employment Tribunal was critical of the way in which the matter was dealt with by the Respondents. The Employment Tribunal found that in refusing to allow the Applicant to raise his grievance, Ms Beechey acted in a high-handed fashion. The Employment Tribunal was satisfied the Applicant properly exercised the grievance procedure and that the failure of the Respondents to allow the Applicant to exercise his right to raise a grievance by refusing to allow him to raise it because it appeared futile was a wrong exercise of procedure. However the Employment Tribunal was satisfied there was no element of discrimination on the grounds of race in this conduct of the Respondents, who in the view of the Employment Tribunal, were doing no more than maintain a position which should not have been adopted. The Employment Tribunal concluded:
"We cannot find, simply because the Applicant is black, that this is an instance of racial discrimination against the Applicant." (h) The Employment Tribunal recognised it was its duty to consider the totality of the evidence given by the Respondents and to decide whether any adverse inferences could be drawn from that evidence. The Employment Tribunal concluded that no such inferences could be drawn: "
The Respondents….. have acted perfectly properly and in accordance with their policies, and the only possible criticism is their failure to deal properly with the Applicant's grievance in respect of which we cannot see any racial discrimination as the evidence given by the Respondents was not so unsatisfactory that inferences could be drawn from it. Consequently, we find that there was no overall policy of discriminating against black people generally or the Applicant in particular as a black person, ….." (i) The allegation of institutional racism was rejected on the facts.[12]We should also note that the Employment Tribunal determined that had they found in the Applicant's failure on claims of racial discrimination, they would have considered the matters we have set out above as being discrete events that did not amount to a continuing course of conduct or continuing discrimination. The effect of this finding would have been that there would have been no jurisdiction to entertain a number of these allegations unless the Employment Tribunal had been prepared to extend the Applicant's time.[13]We now turn to consider the grounds of appeal permitted to go forward by the EAT. We take grounds 1 and 3 together. The effect of these grounds of appeal is that the Employment Tribunal should have found that the failure to permit the Applicant to invoke a grievance procedure amounted to discrimination on the grounds of race. Mr Edward submitted as follows. Firstly, the Employment Tribunal ignored evidence relating to a white comparator whose grievance was believed to be untenable and was permitted to proceed. The documents that we were shown by Mr Edward in fact proved the opposite. They showed that the comparator had made a large number of complaints which were sifted by the Respondents and that only those that appeared to be tenable were permitted to go to the grievance procedure. Mr Edward asserted that a witness, Mr Valentine, had given evidence that the comparator's complaints were allowed to go forward notwithstanding that they were "futile". The documents we have shown do not bear out this allegation and there is no note of Mr Valentine having accepted that the comparator's "futile" complaints were permitted to proceed.[14]Mr Edward then submits that the Applicant was being pushed away from a "posh front office job". He maintained that there was evidence that no black person had ever worked in the front office. We observe that there is no evidence to support this allegation and it is not mentioned in the grounds of appeal. Mr Edward pointed out that the job in which Mr Mayers acted up had gone to a white person. Mr Edward then submitted that the Applicant had good grounds to complain in his grievance procedure and that the Employment Tribunal should have drawn the inference or at least exercised their mind as to whether to draw an inference of discrimination on the grounds of race.[15]We are unable to see that there is any merit in these points of appeal and it seems to us the Employment Tribunal was correct. Although the Employment Tribunal did not refer to the well known cases of King -v- Great Britain China Centre and Zafar -v- Glasgow City Council it is clear to us the Employment Tribunal had them well in mind as shown in particular at paragraph 11 of the Extended Reasons, a passage to which we have already referred. There is simply no evidence to justify the suggestion that the Employment Tribunal had misconstrued the evidence. Weighing up of evidence is a matter for the Employment Tribunal acting as an industrial jury. The Employment Tribunal did find that Ms Beechey was wrong and that her conduct amounted to a detriment so far as the Applicant was concerned, but they were also entitled to find on the facts, as they did, that this was not on the grounds of race. An Employment Tribunal is entitled to draw inferences but is not bound to do so based on different treatment. It seems to us the Employment Tribunal correctly directed itself and made findings of fact which cannot be disturbed on appeal.[16]The second ground of appeal suggests that the Employment Tribunal should have held that the various matters of which the Applicant complained amounted to a continuing act, a pattern or regime of discrimination which the Employment Tribunal should have found to be proved. In the light of our findings relating to grounds 1 and 3 this issue does no arise. In any event this would have been an issue of fact and we can see no basis for saying the Employment Tribunal was wrong.[17]We now turn to deal with the fourth matter raised by Mr Edward, namely that the Applicant was denied a fair hearing because the Chairman fell asleep. We have already noted the evidence in relation to this allegation. We also note that the Applicant in his affidavit suggested that the Chairman was asleep during some of the evidence of Mr Valentine in relation to the white employee whose alleged futile grievances were alleged to go forward. However it is apparent that the Chairman did make a note of this evidence, see pages 66 - 67 of our bundle. Mr Edward is a non practising barrister of the law firm of Cain and Abel. He appeared for the Applicant below. He said that he was embarrassed to raise the question of the Chairman dozing off with the Chairman as he was unwilling to prejudice his client's case by upsetting the Chairman.[18]Surprisingly neither Mr Edward nor Mr Kempster referred to the Decision of the EAT in Red Bank Manufacturing -v- Meadows [1992] ICR 204 and we asked them to comment upon it. In that case at the end of the first day's hearing in an Industrial Tribunal the employer's representatives suggested that one of the lay members had apparently fallen asleep for short periods. The following day submissions were made to the effect that the Decision of the Industrial Tribunal was unsafe but the Industrial Tribunal accepted the member's explanation that he suffered from an eye complaint which caused him to close his eyes from time to time and declined to order a rehearing. The decision of the EAT was given by Tucker J. The EAT noted that bias was generally something which could be tested and recorded by a shorthand note or notes of evidence or by the parties' solicitors being able to speak of it. That was to be differentiated from a transient matter such as an allegation of the kind raised in that case of a member apparently falling asleep for short periods of time. "In our view if matters such as that are to be raised, transient matters such as a member falling asleep, inattention, matters of that sort, they must be raised at the time and in the course of the proceedings if they are to form the ground of any complaint. It is not sufficient in our view for parties to await the outcome of the decision - we are not suggesting deliberately awaiting the outcome of a decision to see which way it goes - and only at that stage raise questions such as have been raised here."[19]Mr Edward sought to distinguish Red Bank Manufacturing -v- Meadows on the grounds that the conduct there was of a lay member not the Chairman. He also pointed to cases where the Court of Appeal criticised a judge for dozing off. Mr Edward also pointed to the fact that the lay member was questioned at the time by the Chairman and gave an explanation. It seems to us that these matters raised by Mr Edward form no distinction at all.[20]It seems to us quite wrong, if the Applicant is correct, that the Chairman's conduct extended throughout the eight days of the hearing without any complaint being made to the Employment Tribunal or the Respondents' solicitor. (We have noted that the evidence of the Respondents' solicitor is contrary to that of the Applicant). It seems to us that a litigant cannot be permitted to allow conduct such as that alleged by the Applicant to continue on the basis that if the decision is in his favour, he will take no action, but that there is a ground of appeal if the decision goes against him.[21]We wish to make quite clear that if an advocate in an Employment Tribunal considers a member of the Employment Tribunal is dozing or failing to attend, he has a duty to draw this to the attention of other advocates and raise it with the Chairman at once. The duty of the advocate to a client (and to the Tribunal) must prevail over any personal embarrassment. If the conduct complained of is seen by both advocates, the question of embarrassment should not arise. If the matter is raised at the time it can be dealt with appropriately by the Employment Tribunal and if there is substance in the complaint, the Employment Tribunal may have to order a rehearing. But it is quite wrong to permit a hearing to extend over eight days without any complaint. Unless matters such as are complained of in this case are raised at the time, as made clear by Tucker J, they will not be entertained by the Employment Appeal Tribunal. We therefore reject this head of complaint also.[22]We make clear that we make no finding (and we of course cannot do so) that the Chairman was in fact sleeping, as the Applicant has alleged.[23]In the circumstances all the grounds of appeal have been rejected and the appeal is dismissed.