MRS LYDIA SULE-CHARLES v HM CUSTOMS & EXCISE [2003] UKEAT 1310_01_0304

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1310_01_0304

Case No Appeal No. EAT/1310/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS LYDIA SULE-CHARLESAPPELLANT

HM CUSTOMS & EXCISERESPONDENT

Before

His Honour Judge J McMullen

Date 3 April 2003

[1]APPEARANCES For the Appellant MR JOHN HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE J McMULLEN QC This case is about sex discrimination, race discrimination and victimisation. The judgment represents the views of all three members. We refer to the parties as applicant and respondent. We have now carefully pre-read the papers in preparation for three listings of this hearing, having granted adjournments on previous occasions at the applicant's request or because she failed to attend on time. As will become clear, this has been an advantage to her, and to us, in that it has enabled the applicant to have access to the advice of Mr Horan, appearing under the aegis of the ELAAS Scheme. We are grateful to him for his careful presentation and consideration of the issues. Introduction

[2]It is an appeal by the applicant in proceedings against a reserved decision of an Employment Tribunal sitting over 15 days in 2001 at London South, Chairman, Mr John Warren, registered with extended reasons on 25 September 2001. The applicant represented herself. She had previously been represented by solicitors, who submitted her originating applications. The Tribunal noted that the applicant was familiar with the preparation of legal proceedings by virtue of her job and her experience. The respondent was represented by Counsel. Both parties made written closing submissions as advised at the outset of the hearing. These form part of the Employment Tribunal decision as incorporated into it.

[3]The applicant claimed sex and race discrimination, and victimisation under both statutes in four originating applications presented over 12 months starting in February 2000. The respondent denied the claims. The Issues

[4]The issues were defined by the Employment Tribunal in paragraph 8(i) to (xxx) which together with additional issues, amounted to 37 different decisions to be made by it. The Legislation

[5]The relevant provisions of the legislation are set out in paragraphs 6 to 7 of the Employment Tribunal's reasons and they are, the Sex Discrimination Act 1975 Sections 1(1), 4, 6(1), and 6(2) and the Race Relations Act sections 1(a), 2(1) and 4. The Decision

[6]The Employment Tribunal dismissed every complaint in a decision running to 61 pages. It contains detailed reasoning which is almost impenetrable by reason of the software used for numbering the paragraphs so that one turns, for example, to paragraph 30 (liii) or 17 (mmmmmmm), indicating that the system has had to use 7 turns around the alphabet. In a decision as long as this, we would recommend that Employment Tribunals pay attention to the words of the Master of the Rolls and take out Latin numeration, and institute sequential Arabic numbering for its paragraphs and sub-paragraphs or alternatively adopt the hierarchical formula used in every statute. The Appeal

[7]In her Notice of Appeal the applicant appealed against most of the findings. The Notice runs for 13 pages. Of the 37 decisions she challenges all but 5 or 6. She also alleged bias, or more accurately, apparent bias, by the Chairman and by the Tribunal as a whole. Today, the applicant relies expressly and solely on two grounds which have been advanced in a Skeleton Argument presented on her behalf by Mr Horan. EAT Directions

[8]Directions in this appeal were given in Chambers by the Registrar for the pursuit of the applicant's complaint of bias. She submitted an affidavit. It was sent to the Chairman. He commented. The applicant submitted a revised affidavit and an affidavit which sought to reply to the Chairman. The Registrar ruled that the original affidavit should stand. The affidavit is of 11 pages; the Chairman's comments, 9 pages. By way of a Skeleton Argument presented on the previous hearing of this case, which was adjourned from last week, the applicant submitted further comments. We read them. Those matters need be taken no further. The Parties

[9]The respondent is a State authority which collects revenue. The applicant is a British citizen of Nigerian origin. She was employed by the respondent as a casual worker in 1996. She is, at the time of the latest proceedings, in Band 4 in the Enforcement and Fraud Division of the respondent. At the time of most of the matters, beginning in March 1999, she was employed in the solicitors' department. The complaints in this case extend roughly over 2 years from March 1999. Tribunal Findings

[10]The Tribunal organised the presentation of the reasons as follows:- 1. A rehearsal of the issues. 2. Pleading and procedural points 3. Findings of fact 4. The Law 5. Discussion of what would be a Protected Act 6. A complaint by complaint analysis, as Mr Horan puts it in his Skeleton, of the applicant's complaints. 7. Lessons learned. Directions The Applicant's Case "The additional claim which was allowed to be addressed by way of amendment was struck out by the Tribunal after the Applicant had completed her evidence as the Applicant had led no evidence in chief whatsoever to support that claim. The claim listed above at 8(xxx) was similarly dismissed as no evidence was called to support it." The legal principles "It must be remembered that in the Qureshi case two substantive issues apparently were being advanced on behalf of Dr Qureshi relating to a failure twice to promote him." " Inferences The process of making inferences or deductions from primary facts is itself a demanding task, often more difficult than deciding a conflict of direct oral evidence. In Chapman v Simon

[1994] IRLR 124

, 129, para 43 Peter Gibson LJ gave a timely reminder of the importance of having a factual basis for making inferences. He said:

"Racial discrimination may be established as a matter of direct primary fact. For example, if the allegation made by Ms Simon of racially abusive language by the headteacher had been accepted, there would have been such a fact. But that allegation was unanimously rejected by the tribunal. More often racial discrimination will have to be established, if at all, as a matter of inference. It is of the greatest importance that the primary facts from which such inference is drawn are set out with clarity by the tribunal in its fact-finding role, so that the validity of the inference can be examined. Either the facts justifying such inference exist or they do not, but only the tribunal can say what those facts are. A mere intuitive hunch, for example, that there has been unlawful discrimination is insufficient without facts being found to support that conclusion." (See also Balcombe LJ, at p 128 , para 33(3).) In the present case, it was necessary for the tribunal to examine all the allegations made by Dr Qureshi of other incidents relied upon by him as evidentiary facts of race discrimination in the matters complained of. There is a tendency, however, where many evidentiary incidents or items are introduced, to be carried away by them and to treat each of the allegations, incidents or items as if they were themselves the subject of a complaint. In the present case it was necessary for the tribunal to find the primary facts about those allegations. It was not, however, necessary for the tribunal to ask itself, in relation to each such incident or item, whether it was itself explicable on "racial grounds" or on other grounds. That is a misapprehension about the nature and purpose of evidentiary facts. The function of the Tribunal is to find the primary facts from which they will be asked to draw inferences and then for the tribunal to look at the totality of those facts (including the respondent's explanations) in order to see whether it is legitimate to infer that the acts or decisions complained of in the originating applications were on "racial grounds"

. The fragmented approach adopted by the tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also forms an important part of the process of inference. The tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non-racial grounds of action or decision. Conclusion The additional comments are intended to provide some assistance to the tribunal to whom this case is remitted (and to other tribunals) in deciding what are, in our view, the most difficult kind of cases which industrial tribunals have to decide. The legal and evidential difficulties are increased by the emotional content of the cases. Feelings run high. The applicant alleges that he has been unfairly and unlawfully treated in an important respect affecting his employment, his livelihood, his integrity as a person. The person against whom an accusation of discrimination is made feels that his acts and decisions have been misunderstood, that he has been unfairly, even falsely, accused of serious wrongdoing. The accusations may not only be hurtful to him as a person but may also be damaging to his employment, his prospects and his relationships with others. In our experience, the industrial tribunals discharge this delicate, difficult function conscientiously and carefully. It should not be regarded as a criticism of the chairman and members of this industrial tribunal that we have found its lengthy, conscientious and detailed decision, taken after many hearing days and many hours of deliberation, to contain an error of law." "In making their decision the Tribunal found the primary facts, and looked at indicators from a time before and after the particular incidents complained of which may … demonstrate that an ostensibly fair minded decision was or was not affected by racial bias. The Tribunal looked at each individual circumstance on its own and as part of the whole." "It was for her to prove that she had been relevantly discriminated against and that would require evidence. In the absence of her or a representative for her, as no evidence had been proffered by her on the … point, the industrial tribunal would have been bound to dismiss her complaint." It seems that the Court of Appeal had in mind that the mere consideration of an originating application does not constitute evidence. Application of the principles "The Tribunal has of course the benefit of hindsight and has had the opportunity of looking at the situation since March 1999. This case should never have come to the Tribunal." "I have no problems with these investigators as persons or indeed their ability and all I am asking for is for an ethnic minority among the investigators. That is simple because if I believe that part of my complaint is to do with racial discrimination, equal opportunities etc, at least an ethnic minority should be among the investigators to create a better understanding." As to which the Tribunal found as follows:- "The applicant appears to have missed the point that the investigation panel were merely collectors of fact to ascertain from the applicant what the actual complaints were and the facts to support the complaint. It was not the panel who were going to decide whether the complaints were going to be upheld." "This is to miss the obvious point that the IT1 is itself evidence as opposed to pleadings in the High or County Court." He accepts that since 1999 pleadings in the Civil Court are to be signed and thus they can constitute evidence. Where, however, as in the old days, pleadings were signed by Counsel, or by solicitors, they remained pleadings and not evidence. In our judgment, that remains the position in an originating application signed by solicitors. It thus follows that we dismiss Mr Horan's second ground.