MR C RYTON v STEVEN FRANKHAM ASSOCIATES [2002] UKEAT 942_02_0212

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 942_02_0212

Case No Appeal No. EAT/942/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C RYTONAPPELLANT

STEVEN FRANKHAM ASSOCIATESRESPONDENT

Before

His Honour Judge J Altman Ms J Drake Mrs A Gallico

Date 2 December 2002

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant HIS HONOUR JUDGE J ALTMAN This is an appeal from a Decision of the Employment Tribunal sitting in Ashford on three days in June 2001. It comes before us by way of a preliminary hearing, to determine if there is a point of law that can properly be argued in full before the Employment Appeal Tribunal.

[2]Before dealing with the substance of the appeal, we have had what we should characterise as a request for an adjournment by the Applicant because he required the assistance of an ELAAS representative, and was dissatisfied to be told that he would only meet an ELAAS representative, if he or she felt that they could assist the Applicant, on the day, here at the Employment Appeal Tribunal. It may not be fully understood, but those generally very experienced practitioners who give of their time, for no fee, to assist appellants in person in the Employment Appeal Tribunal, do so universally on the basis that they do not meet the applicant/appellant until the day of the hearing itself. It is, of course, not for an appellant to dictate the manner of an ELAAS representative's willingness to give of their time to assist him or her. This seems not to have been fully understood by this Appellant.

[3]We also understand that in talking to one of the Employment Appeal Tribunal staff, a Mr Muldoon, who, we understand, was seeking to reassure the Appellant that he would be heard, even if he came alone, the Appellant was disturbed to find that Mr Muldoon was advised by a senior member of staff that he should not be involved in that process. That was clearly simply an administrative procedure.

[4]The position is this: the Appellant has not come today; the need for an adjournment on the basis that the Appellant wanted to seek assistance elsewhere, is not one that we can countenance. The matters that are being raised are clear from the papers before us, and the appeal has been before the Employment Appeal Tribunal waiting for hearing for some time. The original case was now a very long time ago, and no doubt through no fault of anyone's, it has taken until now for listing.

[5]In those circumstances, we have determined to proceed on the basis of the written representations that the Appellant has made. It would have been perhaps sensible for him to attend today, in any event, after the reassurance he received from the office. As the members of this Tribunal have pointed out, they and I are here to receive whatever criticism is thought appropriate, but we can see no basis for criticism of the Employment Appeal Tribunal staff, on the basis that they cause and are the prime cause of social unrest in this country, as Mr Ryton suggests in correspondence. The application for an adjournment is therefore refused.

[6]The Notice of Appeal raises six grounds of appeal. The Tribunal ignored, it is said, clear and truthful evidence of discrimination; secondly, that they did not conduct themselves in a fair and impartial manner; thirdly, that they prevented the Appellant from presenting his case properly, and thereby reduced the length of the hearing; fourthly, that they did not follow Rule 11(1) of the Regulations; that the Tribunal themselves were guilty of discrimination against the Applicant, in relation to the evidence that was provided to the Tribunal, and that the case was beyond the experience and clarity of the Tribunal.

[7]The Tribunal gave a Decision which covered some seventeen pages, and ran to seventy three paragraphs. In the preamble part of the Decision, the Tribunal pointed out, in paragraph 5, that the making of findings of fact had not been an easy exercise, and they had devoted much time and attention to it, and that they did not wholeheartedly prefer one witness to another. From that we infer that the Tribunal were not wholly against the evidence of Mr Ryton; clearly to the contrary, there must have been times when they preferred his evidence to that of other witnesses.

[8]The Tribunal found that the Applicant obtained a post as Principal Building Services Engineer on a six month probationary basis, with the Respondents, and the first job that the Appellant worked on was the Norman Shaw Project. The Tribunal found that the Respondents were initially impressed by Mr Ryton; that they did not know that his origins were East Indian, or that he had been born in Calcutta. The Tribunal then analysed, in some detail, the various problems that arose. In so doing, they followed the various complaints that had been set out in the Originating Application.

[9]The Originating Application referred to four matters. The first was that on 26 May, the Applicant was promised full time employment on successful completion of the project. He says that he completed well ahead and that he was congratulated. It appears that in fact the Respondents presented substantial evidence of difficulties with the Applicant.

[10]The matters raised included the appointment of a Mr Adeyemo, who was thought to be unsuitable and, indeed, later was regarded by Mr Ryton in a memo to be clearly unsuitable; that the Appellant was absent in September 2000 from the office for two hours and at a time when he was needed, and he was reprimanded; that he inappropriately sought new and enlarged documents in December 2000, which would have been an expense of time, effort and money; that there was a formal appraisal in that month, and that there were problems of communication with colleagues, lack of ability to work as part of a team, and failure to take instructions, that were highlighted as problems. As a result, the Respondent gave the Appellant an opportunity for matters to improve. Matters, on their view, did not improve. A situation arose where a senior employee, Mr Damiral, gave assurances of work and timescale, on the basis of the Applicant's advice, which could not be fulfilled, as a result of which the client was seriously critical of the Respondents. There was a meeting at which Mr Ryton was invited to reconsider the manner in which he worked with the department, and to consider his position; in other words, whether he was going to align himself with the task, and try and retrieve his relationship within the team of the Norman Shaw South Project. Mr Ryton advised that he was not prepared to make a decision; it was for Mr Batstone to decide whether their relationship should continue.

[11]It then appears that, on 15 January, the Applicant filled in a form which disclosed to the Respondents, for the first time they would say, his place of birth and his clear ethnic origin, and on that very day, Mr Ryton was told that his employment would have to be terminated. Thereafter, there seemed to be discussions about setting up another company with Mr Ryton at the helm, but, as the Tribunal properly found, that was outside the scope of the employment, as being after it had ended.

[12]Accordingly, it seems that on the evidence that the Tribunal had to consider, there were conflicting accounts of the extent to which the Applicant had made a successful contribution to the Norman Shaw Project. His assertion in paragraph 1 of the Originating Application was contrary to that set out by the Respondents, and the Tribunal preferred the evidence of the Respondents, and on the evidence before them, it seems that the Tribunal were entitled to come to that conclusion.

[13]Secondly, the Respondents, it is alleged, started to makes moves to remove the Applicant by lying about his performance, with glaring inconsistencies in the assessment sheet, and that the Applicant was asked continually if he anticipated any drastic changes to the project. Again, the same position applies, it seems to us. Clearly the Applicant had a point of view to raise on the matter, but the Tribunal addressed that at paragraph 47, when they say they found that there was material, that showed that two employees of the Respondents found the Applicant difficult to deal with. There were no inconsistencies or differences so as to form the basis of an inference of race discrimination on any of the findings of the Tribunal, nor any inconsistency in their approach.

[14]Thirdly, there was an allegation of there being a staggering amount of discriminatory abuse, which the Tribunal appear to have dealt with by dealing with each single allegation that was made. They also say, at paragraph 46:

"It seems to us that perceptions by employees that they are taken for granted and undervalued is a feature often encountered, in our experience, of conflicts in the workplace. ……..There was no evidence before us upon which we are able to infer that any perceived taking of the Applicant's labours for granted by partners and associates, was consciously or unconsciously by reason of his racial origins. In any event, the Applicant himself gave evidence that Mr Frankham had expressed his thanks and appreciation on completion of delivery by the Applicant of the Norman Shaw South Project package."

It is clear that the Tribunal recognised that the Appellant had made positive contributions to that, but nonetheless, they were not undermining the Respondents' evidence as to the difficulties that they had outlined in the way in which the Applicant did his work, and which led to the action which the Respondents took.

[15]Then the Applicant refers to what is, on the face of it, an interesting and apparently significant juxtaposition, according to the Applicant, because the very day that the Applicant told Mr Batstone that he was born in Calcutta, was the day that he was told that his future in the company was going to be considered, and very soon afterwards, his employment, according to the Applicant, was terminated.

[16]The Tribunal dealt with that in paragraph 52, they say:

"We have accepted Mr Batstone's evidence, however, that by that time he had already decided to dismiss the Applicant for reasons unconnected with the Applicant's origins or his birth place."

The Tribunal then deal with the basis upon which the information was requested, in order to clarify the details necessary for the Equal Opportunities form, and that the Applicant had been asked twice before to complete a personal details form. Accordingly, the Tribunal concluded that though there was a coincidence of these two events, they were, in fact, not cause and effect, and they clearly rejected any proposition that one was caused by the other. In those circumstances their conclusion was one they were entitled to reach on the evidence. We can find no error of law in the approach of the Tribunal on that matter.

[17]The Decision of the Employment Tribunal constituted a very careful and thorough analysis of all the issues and evidence presented to them, and there is no basis, it seems to us, upon which it can be said that their approach to the evidence contained an error of law. It is true that they appear to have preferred the evidence of the Respondents in a number of instances, and it is also true that they came to a conclusion which meant that they found that there was no racial discrimination, but that was a conclusion which the evidence, properly presented to them, entitled them to reach, and it cannot be said that there was an error of law in their approach.

[18]The Notice of Appeal makes criticisms of the way in which the Tribunal conducted itself, in a number of respects. We have dealt really with the approach to the evidence, which is contained in ground 1. The complaint that there was not the conduct of a fair and impartial hearing, according to law with a breach of human rights, no doubt thought by the Appellant, was dealt with to some extent by the letter of 10 October from the Chairman which notes that one of the members had himself noted the careful way in which the Chairman had explained to the Applicant the procedure, and explained the issues that had to be dealt with.

[19]Whilst many parties to the Tribunal, when they are uncertain and strangers to it, are left puzzled by certain aspects of procedure, we have no reason to believe, on the face of the information before us, that this Tribunal departed in any way from the well established tradition of Employment Tribunals, which is to assist parties before them properly and fairly to put the issues before the Tribunal. That may, of course, mean that evidence is directed towards a particular point, or that evidence that appears to the Tribunal to be irrelevant is excluded; the Tribunal has a wide discretion in that respect.

[20]The suggestion is that the Tribunal, in the third ground, was impatient and prevented the Applicant from presenting his case. That seems to us to be a good illustration of what we have just referred to. A two and a half day hearing is quite a long hearing, particularly where a `decision was reserved. The very fact that it was reserved shows how carefully the Tribunal are determined to approach this matter.

[21]It seems clear from the notes of the Chairman that there were arguments between her and the Applicant as to what was relevant and what was not, and that there were numerous exchanges about the evidence, and clearly, the Applicant was complaining that he was being restricted. However, the Tribunal is given a discretion by the Rules to regulate their own procedure, and it is very important, in the interests of both parties, that the Chairman should be free, with the assistance of members, to exercise this discretion to control the proceedings and for the assistance of both parties to direct the attention of the applicant and respondent to the issues in hand. A person may feel that a Chairman is being impatient, or that issues are being unfairly restrictive, but that is not shown in this case to have any substance on the material before us.

[22]There is no evidence before us other than of a very careful and thorough consideration of relevant evidence. Indeed sometimes a party, such as the Appellant, is not the best judge of what is relevant and what is not. We find no basis for arguing or concluding that the Tribunal ignored Rule 11(1) of the Procedure Rules, as alleged, nor, indeed, that there was any discrimination against the Applicant in relation to the way in which the Tribunal approached this case. It is one matter to accuse, as the Applicant did, his employers of race discrimination, but it is a shame that he feels able, without producing any real support for it, to slide that on to an allegation of the way in which the Tribunal itself operated. We can only conclude that we find no error of law in the way in which the Tribunal approached that matter, nor any substance that is sufficient to merit full argument in the matters raised by the Applicant.

[23]Finally, it is suggested that this case was " beyond the experience and clarity of the Tribunals" This matter was being heard by a very experienced Tribunal. If we had any doubt about that, it is manifest from the most careful and thorough Decision in which the issues raised by the Applicant have clearly been dealt with on their merits, without any hidden agenda or attitude or discrimination in what is quite clearly a most, on the face of it, impartial way. We have considered very carefully all the matters that were raised by the Appellant in answer to the letter from the Chairman.

[24]It is quite clear that the Appellant himself does not accept the matters that were raised. He felt that there was a lack of understanding on the part of the Tribunal as to the difficulties he had. It appears that the witnesses he called were, for him, hostile witnesses and he felt it difficult to bring out the truth from them. He was refused permission, he says, to treat them as hostile. This reveals what must be a misunderstanding. A witness is hostile when he or she 'goes back' on what he or she has previously said in a witness statement, or elsewhere, not simply because they are hostile to the party calling them. It was for the Applicant himself to identify, before calling a witness, what that witness was to say and whether he or she was going to support him.

[25]The Appellant then really suggests that he proved his case on a number of occasions, but that is simply a reiteration of the task that the Tribunal had to face, which is the evidence for them to consider. Whether or not a witness, such as the Appellant, repeated his evidence, must be a matter for the discretion of the Tribunal. The need to draw the Appellant's attention to the case in point, the Appellant says, was erroneous in that the remark was made on the second day by the Appellant and that he had to draw the Tribunal's attention to the issue of racial discrimination.

[26]In all the circumstances, it is plain that whilst the Applicant may, on occasion, have been at odds with the Tribunal in their approach to his case, there is no indication from any of the material before us that there is any support for his proposition. This may simply have arisen from, perhaps, his difficulty and lack of familiarity with the process. It is quite clear that there is no error, on the face of it, there, nor in the way the Tribunal approached this matter. In all these circumstances, therefore, this appeal must be dismissed at this stage.