DR A A MAJID v (1) LONDON METROPOLITAN UNIVERSITY (2) PROFESSOR R C FLOUD [2003] UKEAT 0275_03_1507

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0275_03_1507Case No Appeal No. EAT/0275/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR A A MAJIDAPPELLANT(1) LONDON METROPOLITAN UNIVERSITY (2) PROFESSOR R C FLOUDRESPONDENT
Before
Mr Justice BurtonDate 15 July 2003
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondents MS E BANTON (of Counsel) Instructed by: Messrs Levenes Solicitors Ashley House 235-239 High Road Wood Green London N22 8HF THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing in relation to an appeal by Dr Majid, a reader in Law at what is now the London Metropolitan University, against the unanimous Decision of the London Central Employment Tribunal after a hearing between 23 and 27 September 2002, promulgated on 19 November 2002.[2]By that Decision the Tribunal unanimously dismissed the Appellant's claims of direct racial discrimination and victimisation. The Appellant, Dr Majid, had been employed by the Respondent University since 27 April 1987 and at the time of the Tribunal, continued to be so. There was a history of litigation between the parties which had, inter alia , resulted in successful proceedings by him against the Respondent University and a settlement agreement in 1995. Hence the fact that the matters about which the Appellant now complained, by way of direct racial discrimination, were also further or in the alternative characterised as victimisation under the Race Relations Act 1976 .[3]There were two Originating Applications before the Employment Tribunal which were, I think, the fourth and fifth such applications in the long history of such proceedings between the parties and they were consolidated for the purpose of the hearing in which, as he has done before us, Dr Majid appeared in person and, as she has done before us, Ms Banton, of Counsel, appeared for the two Respondents, the University and Professor Floud. The Respondent University does not seek to take any different position from the Second Respondent, Professor Floud, who has been separately and independently joined as a party by the Appellant, in relation to certain of the allegations that were made and so if Professor Floud were liable, so would be the university, but in the event, the claims against both of them were, as we have indicated, dismissed.[4]The Tribunal recited helpfully at the outset of the Decision the thirteen matters or incidents which were relied upon by the Appellant as particulars, either of direct racial discrimination or of victimisation; ten of those were contained in the first application and three in the second. They are as follows:(1) Appointment of a director of research without advertisement so that Dr Majid could not apply.(2) Dr Majid never being invited to sit on short listing, interviewing, grievance and disciplinary panels.(3) Refusing to grant Dr Majid a sabbatical (which was only granted after the Originating Application was delivered).(4) The imposition on Dr Majid of excessive timetabling when compared with other staff.(5) Ms Ostmann's conduct as set out in paragraph 10 of the attachment to the Originating Application.(6) The response of Professor Hopkin to Dr Majid's complaint about Ms Ostmann as set out in paragraph 11 of the attachment to the Originating Application.(7) Dr Majid's continuing exclusion from the departmental management team.(8) The failure by the Respondent to consult Dr Majid in the main meeting regarding what kind of Head of Department should be appointed.(9) The refusal by Sir John Carter to meet Dr Majid regarding a complaint he was making on behalf of a student who was also from an ethnic minority.(10) (As explained in Dr Majid's letter of 9 July) victimisation by marginalising Dr Majid by the Respondent in his enquiry in the aftermath of the 1995 litigation.(11) (This is the first of the three matters which were the subject of the second Originating Application) the way in which the Second Respondent enforced the First Respondent's Equal Opportunities Policy.(12) The Second Respondent's treatment of the Applicant's letter of 21 June 2001 relating to excessive timetabling.(13) The appointment of Professor Chatterjee to the chair of the Research Committee on 6 December 2001.[5]The format of the Decision was to set out those issues, then to give a history of the conduct of the hearing and to summarise the evidence that it heard by reference to the witnesses and then to make findings between paragraphs 28 and 60 as to the material facts. It then recorded briefly a summary of what submissions had been made and the law, and then reached its conclusions. Those conclusions, with one exception to which we will refer, by reference to the findings of fact that the Tribunal had made, dealt with each of the matters which the Tribunal had listed as the thirteen enumerated items.[6]The exception to which we will return is that in dealing with the fourth item, namely the complaint of excessive timetabling, the Tribunal addressed and made conclusions about excessive timetabling in relation to the early part of 2001, but did not address the first part of the two double headed complaint in relation to excessive timetabling, with regard to the autumn semester of 2000. The Tribunal set out its conclusions consecutively, subject to that point, in relation to all thirteen items. It found that the first eighth, ninth and tenth items were all out of time and did not conclude that it was just and equitable to extend time under the provisions of section 68(6) of the Race Relations Act . With regard to the balance of the items, the Tribunal gave its reasons as to why it did not conclude that the Appellant had been unfavourably treated on grounds of race.[7]The Appellant put in by way of a Notice of Appeal a very lengthy document indeed, with a number of attachments. In total, the bundle is something over two hundred pages. It begins with ninety pages of summary arguments and then there follow various annexures. When this arrived at the Employment Appeal Tribunal it was considered on our sift, as it happens, by His Honour Judge McMullen QC, who concluded that the matter would best be dealt with by an inter partes hearing to seek to clarify whether there were any issues and, if so, what, and he made such an Order on the 30 January 2003, in Chambers. This resulted in both parties appearing before us today with suggested directions, the Appellant, of course, seeking directions to take all his grounds of appeal to a full hearing.[8]The Respondents' draft directions began as follows:
"The Appellant to draft an Amended Notice of Appeal clarifying those grounds of appeal that are allowed within four weeks of the directions hearing."
It was apparent, as would in any event be clear, that the Respondents were anticipating that some if not all of the grounds of appeal before this Tribunal might not be arguable, or found not to be arguable, and consequently sent on for a full appeal. The jurisdiction, of course, of the Employment Appeal Tribunal is limited to appeals on points of law. In those circumstances today, we have sat to hold a preliminary hearing; this would ordinarily be held ex parte with the appellant justifying the arguability of the grounds of appeal, but, since the recent Practice Direction, respondents have been permitted to put in, if so advised, concise written submissions indicating their views as to whether any or all of the grounds of appeal are arguable.[9]Although invited to put in such submissions, in fact the Respondents, although they have appeared today by Ms Banton, have not done so and effectively, this has been, therefore, a traditional ex parte preliminary hearing of the arguability of the grounds of appeal. We should congratulate Dr Majid in this regard that, prior to the hearing and for the purpose of it, he has sought successfully to slim down the lengthy grounds to which we have referred, into six grounds of appeal. There was some complaint by Ms Banton at the outset of the hearing in relation to this, but it appeared clear to us that this was not a substitute ground of appeal, or some fresh notice, but a genuine and helpful attempt by Dr Majid to condense what was otherwise a lengthy document into six grounds, and today, we have had the benefit consequently, of four matters. First, we have those six grounds, which themselves cross-refer to the pages of the lengthier document. Secondly, we have had that lengthier document itself to cross-refer to and to read, by way of expansion of the six grounds. Thirdly, Dr Majid supplied to us a short and succinct Skeleton Argument proffered, as he put it, with reference to the grounds of appeal seriatim , and addressing the six grounds by way of concise support. Fourthly, we have had the benefit of his oral argument, and it is clear that he knows full well, of course, as one would expect, his own case.[10]It is plain that just because he knows his own case, he is fully armed in relation to the facts which underlie the hearing, not just those which were given at the Tribunal, but those which were not, or which underlay the ongoing dispute between himself and the Respondents, and in any event, he has, notwithstanding the fact of his disability through blindness, a total grasp of the documents and is able at a moment's notice to give an appropriate paragraph number, either of his own submissions or of the Decision, to illustrate the point he was making. He made his submissions fully and courteously. He recognised, and must recognise, and, indeed, sought to meet the problem that he faces, that he had plainly hoped to succeed before the Tribunal on the facts in establishing discrimination, and to his disappointment he failed to do so. There are detailed findings of fact by the Tribunal, the Tribunal having apparently, and, indeed, it has not been suggested otherwise, save in one respect which was not pursued, addressed itself correctly, in terms of legal approach and statutory content.[11]He recognises too that the very weight of documents before us tends to suggest that this is what one might call a fact-appeal, but of course, as he himself submitted in the course of argument, if he is to persuade us that there is, as he put it at one stage, perversity or some kind of error of approach in relation to the evidence, he can only do so by seeking to give examples from the evidence and that we recognise.[12]The one matter to which we referred earlier with which we should deal immediately relates to item 4:
"The imposition on Dr Majid of excessive timetabling when compared with other staff."
The first Originating Application was issued in December 2000 and that included an allegation in paragraph 8 that the Applicant's teaching commitments were raised by two hours a week in the autumn 2000 semester to eleven hours weekly. That was a complaint which he made and which, he submitted, formed part of an act of race discrimination against him.[13]When the second Originating Application was issued, in July 2001, a further complaint of excessive timetabling was made in relation to the spring semester in 2001. In the Decision, in resolving issue 4, the Tribunal only addressed, in paragraph 78, and found against the Appellant, in respect of the latter of the two complaints of excessive timetabling. It is apparent to us that this therefore is a situation in which the Tribunal has failed to make a finding. Rather than allow the matter to go to a full hearing of an appeal, which may only result in any event in the matter being, at that stage, remitted back to the Tribunal, it is clearly far more sensible, and both sides agreed that that this was the proper course, to refer the matter back now to the Employment Tribunal to enable the Employment Tribunal to make such a finding, if they can. Plainly, this should not be on the basis of a re-hearing or a remission for a re-hearing. The Tribunal will simply indicate whether there were relevant notes of evidence before them and whether they made and can now record a finding in relation to the complaint by Dr Majid in this regard, or simply omitted to include it in the detailed Decision that they made with regard to all the other items. That enables the Tribunal, if it can, to record a decision on the notes of evidence before it, and I have no doubt that the Tribunal would welcome written submissions if so advised by both parties, but this is not, we indicate, to be a re-hearing of the issue. Of course, if on the reference back to the Tribunal the Tribunal takes the view that it ought to review the point of its own motion, that would be a matter entirely for the Tribunal.[14]We turn then to the balance of the complaints by the Appellant as summarised now in relation to his six grounds. The first ground under the general heading of "Elaboration of Issues" covered not only the complaint that the excessive timetabling in 2000 was not dealt with by the Tribunal, with which we have now ourselves dealt, but three other matters. It was effectively what one might, without intending to be pejorative, call a "rag bag" ground. The first ground mentioned that there were what were called section 33 claims against Professor Floud and Professor Hopkin. There is, as effectively Dr Majid accepted in the course of argument, no claim against Professor Hopkin. He was never joined as a party before the Employment Tribunal. It may be of course, and it is the case in relation to one or two of the issues, that he is an important actor on behalf of the Respondent, but he is not enjoined personally; it is therefore not possible in any case that there could have been any personal finding against him, he not being a party before the Tribunal.[15]So far as Professor Floud is concerned, he has been enjoined as a Respondent and again, as Dr Majid accepted during the course of argument, his complaint that there is no finding against Professor Floud, can really not be separated from his overall complaint that there ought to have been, and were not, findings against the Respondent University. As we have indicated, Ms Banton accepted that the positions of the University and Professor Floud are inseparable in relation to liability. If, therefore, there is an arguable case to go to appeal, which involves Professor Floud, then he will remain party to the appeal; if there is not, he will not. There is no separate point to be made in relation to Professor Floud.[16]The other part of the first ground relates to the complaint by Dr Majid as to the rejection, because it was out of time, of the first item dealt with by the Tribunal, the fact that there was the appointment of a Director of Research without advertisement, so that Dr Majid could not apply. This was dealt with in paragraphs 72 - 74 of the Decision. No error of law has been established or been adumbrated by Dr Majid in the course of argument before us. He asserted that the fact of his being allowed to bring the application in July 2001, and having it consolidated, somehow established a continuing act, and/or that the fact, that, according to what we were told, the Director of Research who was appointed in the circumstances of which he complains in the summer of 1999, resigned or left the university in 2001, somehow rendered him then able to claim in relation to a matter which would otherwise have been out of time, by virtue, according to him, of the fact that he was once again excluded from consideration of his successor. The former point is obviously of no substance. So far as the latter argument is concerned, even if there were any basis for what he says, it could only amount to a fresh cause of action in July 2001, arising out of any complaint he might have with regard to his successor (and we do not know whether he has made such a complaint, but it is certainly not before us in this appeal) and could not, on any basis, re-open the statute barred claim in respect of what occurred in 1999, nor certainly found any basis for challenged to the Tribunal's decision in this regard, even in fact if it had been argued before them which it does not seem it was.[17]We turn to ground two. This is based upon what he calls an error of law in applying principles of the law of evidence. This falls into two parts, the first being that the Tribunal erred in not placing weight upon the evidence of the Appellant's witnesses, and in failing properly to evaluate the comparative probativeness, as he calls it, of the witnesses of both parties; and secondly, he asserts that the Tribunal was perverse in concluding that the Appellant was not justified in not taking advantage of the grievance procedures of the Respondents.[18]So far as the Appellant's witnesses are concerned, there were findings by the Tribunal in paragraph 27 which said as follows:
"The Tribunal noted that the evidence of the Applicant's witnesses" [and then they are named, including a Mr Beck, a Dr Ademuni-Odeke and a Mr Carey] " was on their own grievances with the Respondent and largely not relevant to the Applicant's complaints for the issues before the Tribunal."
The Appellant has specifically drawn attention to the statement of Mr Carey, which was further referred to by the Tribunal in paragraph 24, when it said:
"In addition we had a written witness statement of Mr S Carey which was admitted as evidence although Mr Carey did not attend having been released by the Tribunal."
[19]The Appellant complained that there was no reliance placed upon the evidence of Mr Carey, and no specific mention of it in the course of the Tribunal decision. It appears that Mr Carey did indeed have his own grievance against the university and, indeed, accused Professor Hopkin of perjury. We have no idea whether there is any substance whatever in the allegations which Mr Carey has apparently made against Professor Hopkin, but we are surprised that the Tribunal was even willing to allow Mr Carey's evidence to be read, given that it at best amounted to a collateral attack on the credibility of Professor Hopkin, who was a witness on behalf of the Respondents, in relation to a matter in no way relating to the Appellant, and on ordinary principles, would not have been admissible, even had Mr Carey been called to give evidence himself. But certainly, whatever may be the precise substance of Mr Carey's evidence, it does not behove the Tribunal to set out the content of every part of the evidence of every witness, but only to set out the evidence which it concludes to be material, and which forms the basis of its findings of fact, and in particular insofar as that evidence relates to the issues which the Tribunal has to decide.[20]The Appellant referred to paragraph 86 of the Tribunal's Decision in which there is the second reference to Dr Ademuni-Odeke, another of the witnesses for the Appellant referred to in paragraph 29. The Tribunal was there dealing in paragraph 86 with the thirteenth of the issues, relating to the appointment of Professor Chatterjee. The Tribunal states as follows:
"We heard evidence from Dr Ademuni-Odeke which purported to comment on these matters, but Mr Ademuni-Odeke was not employed by the First Respondent from 1998."
The issue relating to the appointment of Professor Chatterjee related to events in December 2001. This appears to us to be another example of the nature of the complaint by the Appellant that evidence of witnesses whom he submits to have been relevant was not dealt with in any detail by the Tribunal.[21]Another example he gave related to an issue, not central as we see it, as to the accuracy of the evidence of Mr Davis, which is set out in paragraph 43 of the Decision. At paragraph 43, there is recorded that Mr Davis gave evidence, that he had spoken to Dr Mujid some time at the end of March 2000, and that as a result of that conversation, Dr Majid had indicated that he was not interested in attending a meeting. That was contrary to the evidence which Dr Majid wished to give in relation to that meeting. It had been made clear by the Tribunal to Dr Majid, who is a qualified advocate, that he must challenge witnesses if he wished to do so. The Tribunal records, at the end of paragraph 43 as follows:
"Dr Majid put no questions to Mr Davies in cross-examination and therefore Mr Davies' evidence was unchallenged. We accepted Mr Davies' evidence."
[22]Dr Majid told us today, in the end after he and Ms Banton had had an exchange in which they had reminded each other of what had occurred, that in fact he accepts that he did not cross-examine Mr Davies, but that he did, as he put it to us today, show his statement to the Tribunal and left it to the Tribunal to decide which was right. He having done that, he can hardly be heard to complain if the Tribunal preferred the evidence of Mr Davies to his own evidence.[23]The other area which falls within ground 2 relates to his complaint about the approach of the Employment Tribunal in relation to the grievance procedure of the Respondent. This features particularly in relation to issues 11 and 13, which appear in paragraphs 85 and 86. It was a factor in the thinking of the Tribunal that the Applicant could have made but did not make, use of the grievance procedure. The Appellant has told us that he did make a case that he did not wish to make use of the grievance procedure because he concluded that the University was not willing to take any of his approaches seriously. It appears clear to us that the Tribunal was plainly entitled, notwithstanding such an explanation or assertion by the Appellant, to take into account the failure, notwithstanding, to use the grievance procedure. We cannot see any errors in law which are shown by reference to ground two, either in its shortened version or by reference to pages 30 - 32 and 41 - 45, which underlie it.[24]The third ground of challenge effectively criticised the Tribunal for making what were called crucial mistakes in comprehending and recording facts and the cross reference is to pages 29 - 30 and 33 - 40 of the lengthier document. The Appellant refers to an error in paragraph 48 of the Tribunal's Decision, where it recorded that a Dr Cohen retired in autumn 2000, when it fact it was autumn 2001. Examples are given by the Appellant of mistakes, in his document called "Misrecording of the facts". Apart from the Dr Cohen error, the Appellant picked out two other examples upon which he relied orally before us. The first was that it was incorrectly, according to him, recorded that the meeting of 10 July 2001, referred to in paragraph 57 of the judgment, was convened by Professor Chatterjee. His case is that it was chaired by Michael Grant. Quite apart from the fact that it does not appear to us to be necessarily the case that it is erroneous to say one person convened a meeting when another chaired it, once again, as with the other example, it does not appear to us that there is any particular significance in these errors.[25]Another example which the Appellant put before us by reference to page 73 was that, in paragraph 40 of the Tribunal Decision, it was recorded that Mr Frank Webb decided not to continue as Head of Department and subsequently left the University when, according to the Appellant, nobody either from the Appellant or Respondent's side has said Mr Webb had left.[26]It is inevitable that in relation to a four day hearing, and with complicated facts arising in respect of a period lasting some three or more years, quite apart from the earlier background which no doubt had also to be assimilated, some errors would be made, but that is exactly not the kind of dispute or series of disputes, into which this Appeal Tribunal, whose jurisdiction is only on points of law, is able or prepared to be involved.[27]The fourth ground is described as follows:
"The Tribunal made an error of principle by misconstruing the statutory phrase "detriment" on at least 5 occasions"
The cross-reference here is to pages 42 to 48 of the lengthy document. Two matters became immediately clear in the course of submissions by the Appellant. The first was that of the five occasions identified by the Appellant, that is five issues, two were irrelevant because they were dismissed by the Tribunal not on the substance but by virtue of the fact that they were out of time. This, therefore, left three identifiable issues in respect of which the Appellant wished to say that there had been a misconstruction of statute by the Tribunal: issues numbered 2, 3 and 4, being the failure to invite Dr Majid to sit on panels, the refusal to grant him a sabbatical, and the imposition of excessive timetabling in 2001. The second matter that became apparent was that, although of course it is right to say that detriment does feature in the statute, it does not appear to feature in any way material to the conclusions which were being reached by the Tribunal in this case, where what this Tribunal had to decide related to direct racial discrimination under section 1(1)(a), namely whether, on racial grounds, the discriminator treats another less favourably.[28]It was necessary, therefore, for the Appellant to recast this ground to assert, if he wished to do so, that there was some misconstruction of the approach in relation to less favourable treatment and he was, in our judgment, entirely unable to do so. In essence what he was doing was taking issue with the factual findings of the Tribunal that in relation to the three issues in question, on the findings of the Tribunal in paragraphs 75 - 76, 77 and 78, he had in fact, contrary to their conclusions, been less favourably treated by the Respondent. We see no ground for interference with the Tribunal's Decision.[29]The fifth ground complained that the Tribunal erred in law in ignoring a detailed request, as it was described, for the drawing of inferences. This was a cross reference to a lengthy document at page 78 through to 86, which had been submitted by the Applicant prior to the hearing, headed up "Inferences requested". This he did because he had been given to understand, correctly, that he could invite the Tribunal to draw adverse inferences against the Respondents in appropriate circumstances, either arising out of answers to the questionnaire, or indeed, in any event. The Tribunal, the Appellant complains, made no mention in the Decision of that document. It is plain that a Tribunal does not need to mention every item or document that is before it. Indeed, this Tribunal did not even set out any detail the submissions that had been before it, it being apparent that it had full well understood what those submissions were, from the conclusions that they reached, and indeed, it is no part of the Appellant's case that the Tribunal did not understand the issues which it had to decide.[30]We are satisfied, both that the Appellant was entitled to ask the Tribunal to draw inferences and that the Tribunal was entitled not to refer to that document, or to draw them. Some of those inferences are what one might call extremely complicated inferences, which do not relate to the issues which the Tribunal had to decide at all; they are, for example asserted inferences about shortfalls in budget and other matters which do not at any rate go to the centre of the issues which the Tribunal had to decide.[31]Really the question which is inferentially put by reference to ground five is that which is more expressly put by way of a challenge in relation to the Appellant's ground six, where he submits that the Tribunal failed to give adequate reasons. The real issue here, from the point of view of this Appeal Tribunal, is whether the Tribunal did give adequate reasons for its conclusions either such as to satisfy the principle of Meek -v City of Birmingham or so as to comply with such decisions in the discrimination field as Anya -v- University of Oxford [2001] IRLR 405 .[32]The Appellant complains, in particular, under this last head that the Tribunal preferred the evidence for the Respondent to his evidence and, consequently, it is part of his allegation that there were insufficient reasons that there were in his submission no grounds for such a preference. We are satisfied, having read the Decision, that, after the findings of fact to which we have referred, each, with the one exception to which we have referred, of the thirteen items are fully and adequately dealt with, and reasons for each conclusion are adequately set out in the respective paragraph. Notwithstanding, therefore, the able submissions of Dr Majid, we regret that he must appreciate that the place where he might have succeeded was at first instance, but having failed to succeed at first instance, he has no remedy in law on appeal.