MR F DENTEH v 1) COMMISSIONER OF POLICE FOR THE METROPOLIS 2) MR E SNOW 3) MS C HULME 4) MR J PARKER 5) MS M HARDING [2003] UKEAT 1033_00_1601

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1033_00_1601Case No Appeal No. EAT/1033/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR F DENTEHAPPELLANT1) COMMISSIONER OF POLICE FOR THE METROPOLIS 2) MR E SNOW 3) MS C HULME 4) MR J PARKER 5) MS M HARDINGRESPONDENT
Before
His Honour Judge Peter Clark Mrs R Chapman Mr S M SpringerDate 16 January 2003
[1]APPEARANCES For the Appellant MS NAOMI CUNNINGHAM (of Counsel) Appearing under the Employment Law Appeal Advice Scheme For the Respondents MR DIJEN BASU (of Counsel) Instructed by: Solicitor's Department Metropolitan Police Service New Scotland Yard London SW1 OBG HIS HONOUR JUDGE PETER CLARK The Appellant, Mr Denteh, was employed by the Metropolitan Police Service (MPS) as a Higher Executive Officer from 27 April 1998 until his resignation on 20 November 1998.[2]He presented four Originating Applications to the London (South) Employment Tribunal arising out of that employment and its termination alleging racial discrimination, victimisation and constructive unfair dismissal. In addition to the Commission of Police for the Metropolis, he named a further four individual Respondents, being employees of MPS.[3]The claims were resisted and came on for hearing before a Tribunal chaired by Ms C Hyde. The Tribunal heard evidence over fifteen days during May and November 1999. Closing submissions were put into writing following the last day of hearing on 15 November 1999 and the Tribunal deliberated in private over three days on 9-11 February 2000. On 29 June 2000 they promulgated their Reserved Decision with Extended Reasons (EWR). Those Reasons ran to two hundred and fifty four paragraphs over fifty seven pages of typescript. All claims were dismissed.[4]Before the Tribunal the Appellant appeared in person and the Respondents were represented by Mr Basu of Counsel. The Appellant then went to solicitors, Hodge Jones & Allen who lodged on his behalf a Notice of Appeal dated 9 August 2000. That appeal raised issues of bias, procedural irregularity and perversity.[5]The appeal first came on for preliminary hearing before a division presided over by Mr Recorder Langstaff QC on 27 March 2001. On that occasion the preliminary hearing was adjourned in these circumstances. The Appellant had lodged an affidavit sworn on 7 September 2000 in support of his allegations of bias and procedural irregularity; on which the Chairman had commented in a letter dated 16 January 2001. At the preliminary hearing held on 27 March the Appellant was represented by Mr Michael Duggan of Counsel He had lodged a Skeleton Argument in advance of the hearing which marshalled the grounds of appeal under four broad headings.[6]The EAT did not hear full argument. They adjourned the preliminary hearing so that the Appellant could lodge further evidence on affidavit from a friend, Frank Etu-Menson, who had attended the Tribunal hearing on 15 November 1999. It was alleged by the Appellant, among other things, that on that day he and his party had left the Tribunal room but the Respondent's party had remained, together with the members of the Tribunal. He further suggested that evidence was received by the Tribunal in his absence on that occasion and that such evidence formed the basis of findings by the Tribunal at paragraph 163 EWR. Those allegations are contained at paragraphs 14-15 of the Appellant's affidavit. The EAT further directed that the comments of the lay members be obtained. Finally it was directed that the Appellant formulate his best three or four points.[7]The Appellant did not comply with that last direction. He was ordered to do so by the Registrar by an Order dated 6 July 2001. An application by the Appellant's solicitors for an extension of time for so doing was refused by Douglas Brown J sitting with members on 27 July. Thereafter those solicitors came off the record.[8]An affidavit was received from Mr Frank Etu-Menson, sworn on 3 April 2001. The lay members and the Chairman of the Tribunal commented on the 15 November 1999 allegation and the preliminary hearing was restored for hearing before a division on which I sat on 4 March 2002. On that occasion we found ourselves unable to resolve the conflicting accounts of the Appellant and his witness on the one hand and the members of the Tribunal on the other as to what precisely happened on 15 November 1999. Thus, in accordance with the procedure suggested by Lindsay P in Facey -v- Midas Retail Security [2000] IRLR 812 , paragraph 39, the preliminary hearing was again adjourned for evidence in reply from the Respondents. Thereafter affidavit evidence was received from Andrea Cunningham a solicitor with MPS and a legal clerk, Julie Buckingham. Those affidavits were sworn on 24 April 2002.[9]On 8 July I directed that all four deponents attend this bilateral restored preliminary hearing for cross-examination. A further direction that the full hearing of the appeal should, if necessary, follow immediately upon that restored preliminary hearing was later revoked following representations by the Respondents.[10]It is in these circumstances that we now come to consider this appeal. Now, Mr Denteh is represented by Ms Naomi Cunningham under the ELAAS pro bono scheme. We are grateful to her for her careful and thoughtful presentation of his case.[11]Having considered the matter Ms Cunningham, with the Appellant's consent, applied for permission to substitute three grounds of appeal by way of amendment for the original grounds of appeal. In so doing she has taken to heart Mr Recorder Langstaff's exhortation to Mr Denteh to formulate his best three or four points. We granted that permission.[12]We then heard evidence from the four deponents, the Appellant and Mr Etu-Menson being cross-examined by Mr Basu on behalf of the Respondents and the Respondents' witnesses, Andrea Cunningham and Julie Buckingham by Ms Naomi Cunningham. Following completion of the oral evidence Ms Cunningham then formally abandoned the contention that on 15 November 1999 a conversation took place between the members of the Tribunal and the Respondent or its representatives in the absence of the Appellant, leading to the findings of fact contained in paragraph 163 EWR. However, she pursued her first ground of appeal, by amendment, which reads as follows:
"(1) The tribunal permitted an appearance of bias in that the Respondents and their legal team were allowed to remain in the hearing room at the conclusion of the hearing for some 15 or 20 minutes after the Applicant had left."
[13]She submits and we accept that the correct legal test for determining whether an appearance of bias is made out is that formulated by Lord Phillips MR in In Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 , 726H-727C , approved by Lord Bingham in Magill -v- Porter [2001] UKHL 67 , paragraph 103. The Master of the Rolls, in formulating a "modest adjustment" to the test in R -v- Gough [1993] AC 646 , said this:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
[14]We shall follow that two stage process. First we must ascertain all the circumstances which have a bearing on the suggestion that the Tribunal was biased.[15]In oral submission Ms Cunningham accepted that it is a pre-requisite of a finding of the appearance of bias on the part of Ms Hyde's Tribunal that we first find as a fact that the Respondent's party remained in the Tribunal hearing room with the members of the Tribunal in the absence of the Appellant's party for some fifteen - twenty minutes. That was the evidence of Mr Denteh. At paragraph 14 of his affidavit sworn on 7 September 2000 he said:
"At the end of the hearing in November 1999 the Chairman asked to go out to the Applicant's waiting room while she looked up some case references for me for the purpose of the closing statement. The Respondents' witnesses and legal team remained in the Tribunal hearing room. I was concerned and waited at the main door leading to the Tribunal room. I observed that the Respondents still remained in the room and after about 15 minutes the Court clerk came to my room to hand me a piece of paper with the case references."
He maintained that account under cross-examination, stating that there was no indication the Respondents' team were leaving the Tribunal room during the fifteen - twenty minutes that he waited in the Applicant's waiting room until the Tribunal clerk brought the case references found by the Chairman.[16]Mr Etu-Menson supported that account in his affidavit sworn on 3 April 2001. In cross-examination he said that both he and the Appellant had been told by the Chairman to leave the Tribunal hearing room and wait for the case references. During that waiting period he was not looking into the Tribunal hearing room. It was not a big issue to him. He did not raise it at the time.[17]Andrea Cunningham had specialised in employment law for some three years; she routinely attended Tribunal hearings. At the end of the hearing on 15 November 1999 there was a good deal of documentation to collect and remove. The papers were put into a suitcase. There were at least five members of the Respondents' party present at that time. She accepted that the Respondents' party may have taken longer than the Appellants to pack up and leave, but they did not remain behind for fifteen - twenty minutes. She would have regarded such a period of time in the absence of the Appellant as extraordinary and would have remembered such an event.[18]We must resolve that conflict. We find, on the balance of probabilities, that the Appellant and Mr Etu-Menson did wait for some fifteen minutes or so in the Applicant's waiting room until the Tribunal clerk brought the case references produced by the Chairman. However we do not accept that throughout that time the Respondents' party remained in the hearing room. We accept Andrea Cunningham's evidence that, due to the quantity of paper to be removed, it took the Respondents' party slightly longer to pack up than it did the Appellant's. He and Mr Etu-Menson left first. However, the Respondents' party followed shortly thereafter. They did not remain behind for fifteen minutes or anything like that period of time.[19]We find such a course of events inherently unlikely. There was no reason for the Respondents' party to remain once they had packed up their papers. The Appellant's account is, in our view, undermined by the concession, properly made on his behalf, that no improper conversation took place between the Respondents' party and the Tribunal during his absence. That was his assertion, contained in paragraph 15 of his affidavit; it was demonstrated to be wrong because evidence was given in open session which supported the Tribunal's findings at paragraph 163 of their Reasons. That evidence is helpfully set out in the Chairman's letter to the EAT dated 11 June 2002.[20]Accordingly we have concluded that no circumstances giving rise to an appearance of bias on the part of the Tribunal on 15 November 1999 is made out. The first ground of appeal by amendment fails and is rejected.[21]The second ground, by amendment, again complains of bias, or the appearance of bias on the part of the Tribunal. It is said that that Tribunal, in their reasons for decision, demonstrated a closed mind to any points favourable to the Appellant. Seven particular incidents taken from the Tribunal's Reasons are relied upon. They are as follows: (i) At paragraphs 37-44 EWR the Tribunal deal with the Appellant's application for employment with MPS. They found that he had not been truthful or accurate in some of the information he supplied in that form. In so finding they rejected an allegation by Mr Denteh that some of the details included in the form had been forged by the Respondents. One factor taken into account in reaching that conclusion was that during cross-examination Mr Denteh had alleged that these alterations had been made by the Respondents before he had even been interviewed (successfully) for the job (EWR paragraph 39), something the Tribunal did not consider likely. Ms Cunningham submits that in so finding the Tribunal had misinterpreted the Appellant's evidence. We cannot accept that submission; as Mr Basu points out, in his written response to the Respondents' closing statement (Bundle 2/227) Mr Denteh referred to the alleged forged application form as:
"something which occurred even before my employment relationship started." (ii) Next it is said that the Tribunal failed to allude to the fact that the Appellant's line manager, Mr Snow, had himself made a false claim about his employment history, as the Tribunal found had Mr Denteh. This suggestion arose, we accept from Mr Basu, during the Appellant's cross-examination when he alleged that during his employment Mr Snow had told him that he, Snow, had worked for Coopers & Lybrand for six-seven years, whereas the finding by the Tribunal (EWR paragraph 41) was that he had in fact worked for that firm of accountants for two years. Whether or not that conversation took place we have been taken to no application form completed by Mr Snow for employment with MPS which contained demonstrably false information. (iii) At paragraph 2 EWR the Tribunal lists the seven witnesses, including the Appellant, called to give evidence on his behalf during the fifteen day hearing. It is said, correctly, that no reference is thereafter made to the evidence given by four of those witnesses, James Yanwube, Agnes Fadun, Everton Walker and Maria Charles. Their evidence is summarised by Ms Cunningham in this way; Mr Walker had previously worked for the MPS and had left, he said, because of racist treatment. Mr Fadun had spent twenty two years working for MPS and stated that there was racism within the organisation which meant there were no promotion opportunities for black people (it was not alleged by the Appellant that had been refused promotion on racial grounds). Pausing there, we think that the Tribunal were entitled to take the view that general allegations of what may loosely be called 'institutionalised racism" did not assist them in determining the sharp factual conflicts arising in this particular case. As to Mr Yanwube and Ms Charles, also former work colleagues, their evidence is described by Ms Cunningham as that of character references. Again, that evidence plainly did not assist this Tribunal in deciding where the truth lay. Thus analysed, it seems to us that no inference of bias or the appearance of bias on the part of this Tribunal can be drawn from the fact that no reference was made in their lengthy Reasons to evidence which was at most of peripheral significance. It is not necessary for a Tribunal to refer to each and every piece of evidence heard over fifteen days. (iv) Then it is said that the Tribunal failed to refer in their Reasons to a discrepancy between what was pleaded in the Respondents' Form IT3 and oral evidence given by a witness, Mr Matthews, as to why further references were sought in respect of the Appellant some five months after his employment started. Having considered the evidence of Mr Matthews, recorded and accepted by the Tribunal, we are unable to discern any discrepancy. (v) The point is then made that the Respondent's evidence changed during the hearing as to whether any telephone calls had been made to the Appellant's former employers. The evidence came from Ms Harding, a Personnel Manager. The relevant extracts appear in the Chairman's Notes of Evidence dated 11 June 2002. There is no basis for contending that the evidence changed. (vi) What is clear is that on one matter the case advanced by Mr Basu in cross-examining the Appellant was not supported by evidence later called on behalf of the Respondents. It was first suggested that the Appellant had altered a document. Subsequently a witness, Ms Desai, was called by the Respondents to say that she had altered the document on the Appellant's instruction. That matter is dealt with at paragraph 186 EWR. The Tribunal say: "
It was conceded and accepted by MPS that the manuscript in the document …..had been made by Ms Desai." The Tribunal then went on to accept her evidence that she had written the entry on the Appellant's instruction. Ms Cunningham argues that the Tribunal closed their minds to the point made by the Appellant; that the Respondents' case had changed. We do not think that they did. The reference to it being 'conceded and accepted' by the Respondents encapsulates the fact that the initial case advanced by Counsel in cross-examination was not borne out in the evidence; it was not that the Appellant had himself physically completed the document; rather that the entry had been made by a member of staff, Ms Desai, but on the Appellant's instructions. (vii) Finally, on this aspect of the appeal, it is said that the Tribunal misinterpreted the Appellant's tape recordings of grievance meetings. We understand that these were covert recordings made by the Appellant. The sound was indistinct. The Tribunal heard extracts from those tapes. Apparently there was disagreement between the Appellant and the Respondents as to some of the words used on the tapes. The Tribunal's understanding equated to that of the Respondents. Now it is said that we should listen to those tapes in order to determine for ourselves precisely what was said. We decline to do so; it is difficult to imagine a more obvious question of fact for the fact-finding Tribunal, the Employment Tribunal, than what words were used on the tape-recording.[22]We have descended into the detail of these seven allegations partly out of deference to Ms Cunningham's sustained argument and partly to explain our conclusion on this part of the appeal. It is that this is really an attempt to retry the factual issues in the case, issues which were clearly and logically resolved by the Tribunal having heard all the evidence. In our judgment it is not the Tribunal which gives an appearance of bias in its Reasons; rather the understandable partisan approach of Mr Denteh.[23]The third and final amended ground of appeal relates to the Appellant's complaint of victimisation in that the Respondents sought references from his former employers five months into his employment and did so by reason of his having raised a grievance which was itself a protected act. The Tribunal found (EWR paragraph 244) that the raising of the grievance was a protected act, but that in seeking references from his previous employers, the Respondent was not treating the Appellant less favourably than they treated or would have treated others who had not done a protected act or did so by reason that he had done the protected act.[24]First, they found that the appropriate comparator was Mr Snow. He had not done a protected act. The grievance raised by the Appellant was directed at Mr Snow. Mr Matthews, who investigated the Appellant's grievance decided, genuinely and for good reason, so the Tribunal found (EWR paragraphs 240, 251) to enquire into references for both men. He thought that may throw light on the conflict which he had to resolve. So both were treated in the same way. Further, it seems to us, the grievance was the occasion for not the cause of the request for references. See Chief Constable of West Yorkshire Police -v-Khan [2001] ICR 1065 .[25]We reject Ms Cunningham's submission that Mr Snow was an inappropriate comparator. He was entirely appropriate. Thus we uphold this part of the Tribunal's Decision on the grounds(a) that there was no less favourable treatment and, were it necessary,(b) that the necessary causative link was not made out.[26]It follows, having considered each of the ways in which this appeal is finally put that no arguable point of law is raised. On the contrary, we must express our admiration for the way in which this Tribunal, under an experienced Chairman, has tackled its task and produced a detailed and careful assessment of a keenly contested dispute without, in our judgment, any hint of unfairness to the Appellant.[27]This appeal is dismissed.