MR F OMILAJU v LONDON BOROUGH OF WALTHAM FOREST AND OTHERS [2003] UKEAT 1352_01_3004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1352_01_3004

Case No Appeal No. EAT/1352/01/SM EAT/0297/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR F OMILAJUAPPELLANT

LONDON BOROUGH OF WALTHAM FOREST AND OTHERSRESPONDENTS

Before

Mr Justice Wall Mr D Bleiman Mr T Haywood

Date 30 April 2003

[1]APPEARANCES For the Appellant Fred Edward Jnr Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX THE HONOURABLE MR JUSTICE WALL This is the preliminary hearing of two appeals by Mr Omilaju against Decisions of the Employment Tribunal held at Stratford and promulgated on 24 September 2001 and 9 January 2002 respectively. The first relates to the substantive hearing, the second relates to a second set of reasons given by the Tribunal in relation to costs. The Decision on the substantive hearing was unanimous and it was that the Applicant's claims against the Respondents (the London Borough of Waltham Forest, Ms Marilyn Chown and Mr. Mike Driscoll) in respect of unlawful direct race discrimination, race discrimination by way of victimisation and interference with trade union activities failed and were dismissed. The Tribunal then went on to invite the parties to make representations in respect of costs.

[2]Those representations were duly made, and on 9 January 2002, the Tribunal promulgated its Decision on costs in which it directed that the Applicant was to pay all the costs of an adjournment which had occurred on 2 November 2000, all the costs incurred by the Respondents in relation to two named Respondents, and fifty per cent of all other costs from the receipt of the Originating Application.

[3]The hearing itself appears to have occupied nineteen working days between 9 July 2001 and 7 August 2001 and that after that the Tribunal appears to have spent two days in chambers deliberating. Its written Reasons were promulgated on 24 September 2001 and they run to some eighty eight single spaced typed pages of A4 It is apparent from a reading of that document that this was an extremely complicated case. It also appears that when the Tribunal began its hearing, the case was not in the order in which it wished it to be. As a result, some considerable time was spent at the outset with the Tribunal and the parties together attempting clearly to define the issues upon which it was expected to adjudicate, and to put them in some form of order. The initial pages of the reasons are taken up with that endeavour. The Tribunal also, in the early pages of the reasons, deals with various applications in relation to documentation and to parties, to which we will return when we examine the complaints which were made about the Reasons.

[4]Having undertaken that initial exercise, the Tribunal then proceeded to address the law, and to direct itself on the questions of law to which the case gave rise. It does this over a number of pages, and then deals with the manner it approached its findings of fact and the evidence. The Tribunal records that it heard the Applicant and seven other witnesses called on his behalf. On behalf of the Respondents, it heard Mr Chown and Mr Driscoll and fourteen other witnesses. It refers to the evidence-in-chief, cross-examination and so on. In addition to that there were a thousand pages of documentation, or thereabouts.

[5]The Tribunal then, over a very substantial portion of the judgment, deals with its findings of fact. It appears that it had to deal with a very substantial number of issues. It did so in great detail, and, we think, with considerable care. It then applied the law as it understood it to be to those findings of fact and then reached its conclusions. Those conclusions were hostile to the Applicant.

[6]As we indicated at the very outset, the Tribunal found that the Applicant's claims all fell to be dismissed. In addition, however, it went further because it found that in material respects, the Applicant had manipulated the facts; he had ignored relevant documentary material; he had made a number of false unfounded allegations against employees of the London borough of Waltham Forest; he had on some occasions been dishonest and untruthful, and he had further pursued some matters not in good faith. The Tribunal then goes on, having identified those headings of criticism, to deal with the basis upon which it made those particular findings. In the process, it also made a number of criticisms of Mr Edward, who conducted the case for the Tribunal, and who has conducted it before us.

[7]It was as a result of those latter findings that the Tribunal took the view that paragraph 14 of Schedule 1 of the 2001 Employment Tribunal Regulations applied, and that the case had been unreasonably conducted. It accordingly asked for representations on the question of costs.

[8]It follows, in our judgment, on this preliminary hearing that for Mr Edward to succeed in persuading us that there is an arguable case to go before the full Tribunal, he has to demonstrate that the Tribunal's findings of fact were such that it was not open to them to make, because on the findings that they have made, it is plain that there was no direct race discrimination or discrimination by way of victimisation and interference with trade union activities. Alternatively, Mr Edward has to persuade us that the Tribunal erred in law in some material way which vitiates its Decision.

[9]Mr Edward has conducted the case before us with great courtesy and moderation. As an example, there was a point in his submissions, and indeed in his Notice of Appeal, in which he made very serious allegations indeed against the Chair of the Tribunal, including allegations that she had conducted a vendetta against him because of his appearance before her on a previous occasion. However, we were pleased to hear that when Mr. Edward saw her response to that allegation, he accepted what she said in relation to it.

[10]We therefore turn to the Skeleton Arguments put forward on behalf of the Appellant. The first relates to the substantive appeal itself. The first proposition advanced is that the Chair "was erroneous in her test or the interpretation of how to determine whether or not there was a continuous act of racial discrimination by having to first look into the merits of various complaints as to whether they had been proven or not".

(i) ):

"The vast bulk of matters about which complaint was made herein occurred more than three months before the presentation of the relevant Originating Application. We have had no explanation from the Applicant as to why this was so. He was an alert trade unionist and we are satisfied that he knew at all material times of the right to complain to a Tribunal and of the relevant time limit. He has not told us that he thought that he was keeping matters alive by complaining internally and following through the grievance procedure. We do know that it has been onerous for the Respondent to attempt to meet many of the old allegations which had been made herein. It certainly made for a prolonged Tribunal hearing, with several of the witnesses having difficulty in recall of certain instances. If we had to consider the exercise of the discretion herein, we would not find that it was just and equitable to extend time so as to allow complaints to be made more than three months before the Originating Applications were presented to be regarded as being in time."

The Tribunal then goes on to consider the question of a continuous course of conduct by Ms Chown and by Mr Driscoll, which it says can only be founded on the acts which the Tribunal accepted as being proved as unlawful race discrimination. In fact there were no such acts.

[11]Mr Edward submits that the Chair was putting the cart before the horse in this paragraph. In his skeleton argument he submitted:

"In that there are some acts which taken individually may not themselves be unlawful race discrimination but when looked at in their totality or as to whether they formed "continuing state of affairs" the eloquence of those acts may become, on balance of probability, persuasive of unlawful act of racial discrimination. Thus, it is not whether the act is accepted first as being proved as unlawful race discrimination but whether those acts show a continuing state of affairs which may lead to the proving of unlawful race discrimination or from which inferences can be drawn and not the other way round."

He placed reliance on Hendricks -v- The Commissioner for the Metropolis

[2003] IRLR 96

(CA).

[12]This complaint, we think, fits in with Mr. Edward's second complaint, which is that:

"The Chair was erroneous in law in claiming that they did not exercise their discretion under s68(6) of just and equitable limb because the Applicant had not told the Tribunal that he thought he was keeping the matter alive by complaining internally and following through the grievance process. In that this was contrary to the facts and evidence."

The passage from the Reasons we have read, we think covers both these points. What the Tribunal is plainly saying in paragraph 12.3(i) is that the Applicant, as an alert trade unionist, was fully aware of his right at all material times to complain to a Tribunal, had not put forward the argument that the continuing process of an internal complaint had kept the matter alive and was the reason why he had not made his application within the three month period. In those circumstances, it seems to us that the Tribunal was fully entitled to say that no proper reason had been put forward by the Applicant for his failure to institute proceedings timeously, and insofar as there were continuing acts or continuing complaints, it would follow inevitably, in our judgment, that those would only amount to race discrimination if that was warranted on the facts found by the Tribunal. We therefore, with respect, think there is nothing in this point.

[13]Ground three of the Notice of Appeal asserts that "the Chair was erroneous in law when she held that in determining the issue of victimisation that section 2 of the Race Relations Act must be read with section 4(2)." This relates to a passage on page 23 of the Reasons, when in dealing with the law, the Tribunal says at paragraph 7(1):

"The Tribunal is concerned with direct race discrimination, namely less favourable treatment contrary to section 1(1)(a) and section 4(2)(a) and/or (b) of the Race Relations Act 1976 and with victimisation contrary to section 2 when read with section 4(2). The Tribunal is mindful that it is unusual for there to be clear, overt evidence of race discrimination and that it should consider matters in accordance with the guidance of the Court of Appeal in King v Great Britain China Centre "

[14]In our judgment all the Tribunal is doing here is stating that it is looking at the question of victimisation as well as direct discrimination in the context of employment. The direction in relation to King -v- Great Britain China Centre and, indeed, the other directions in relation to the law on this aspect of the case seem to us to be entirely appropriate, and certainly not capable of being criticised in any substantive appeal.

[15]The next ground was that:

"The Chair erred in law in her test or interpretation or view of what is the function of the evidentiary facts. In that "hostility" (or hostile animus) is unnecessary nor is that the purpose or aim of evidentiary facts which the Employment Tribunal should have been looking for in the determination of racial discrimination or what such evidence should show in order to draw or found inference."

This relates again to a passage on page 24 of the Reasons when the Tribunal is again directing itself in relation to the law on the basis of James -v- Eastleigh Borough Council . The Tribunal says at subparagraph (iii):

"We acknowledge that the evidentiary facts are not to be examined in order to establish whether, in each case or taken in total, they also constitute race discrimination. That would be to misplace the proper emphasis and/or to direct the Tribunal's attention away from the main issues. We are concerned, rather, to establish whether, in each case or taken in total, they also constitute race discrimination. That would be to misplace the proper emphasis and/or to direct the Tribunal's attention away from the main issues. We are concerned, rather, to establish whether the evidentiary facts show (for example) hostility from a manager to a black African, which hostility is unexplained, so that it may serve to found an inference in respect of the main issues in the case that the less favourable treatment there identified would not have occurred but for the Applicant's race. We recognise that weak management or incompetence on the part of the employer does not, without more, constitute unlawful race discrimination or a matter for which we should infer unlawful race discrimination, merely because the person adversely affected by it is from an ethnic minority."

The Tribunal goes on to say that it is guided by Qureshi -v- London Borough of Newham . In our judgment, not only is this a straightforward and correct application of the law but it is indeed favourable to the Appellant. It is a model in its way of how one should or should not draw inferences from primary facts. We therefore see no basis upon which that could form the subject of an appeal to the full Tribunal.

[16]There is then a reference in ground 8, which is the next ground relied upon, that the Chair was biased in favour of the white Respondents in the conduct of the hearing and was not neutral in the way that she received evidence. We have to say, having read the judgment, and looked at all the submissions, that there is absolutely no basis whatsoever on the material we have before us which could even begin to suggest that this was the case. Because such a serious allegation was made, the matter was put the Chair. She gave her comments, and as I indicated previously, Mr Edward was gracious enough to accept what she said. In those circumstances, we propose to say no more about that particular ground.

[17]Ground 10 appears to touch on the same theme in that it asserts that the Chair:

" … misconducted the hearing when she allowed the White Respondent's witnesses to continuously bring forward new versions of witness statements during and in the middle of the hearing not only after having seen the Applicant's witness statements four months earlier following an Employment Tribunal's order to exchange witness statements but also to continually change and tender again and again new versions of these witness statements having heard the Applicant's evidence during proceedings and which were given to the Applicant at the moment when the witnesses were being called thus disadvantaging and prejudicing the Applicant."

The findings of the Tribunal, we have to say, would appear to indicate that in this respect the boot was really rather on the other foot. Not only did the Tribunal have to spend a substantial period of time, before beginning to hear evidence, sorting out the allegations; but the Tribunal, as we indicated earlier, was very critical of the Applicant and the way his case was conducted. We do not, for the purposes of this appeal, think it necessary for us to go into the detail of this, or to read out in any detail the conclusions which the Tribunal reached. It is, however, quite clear, in our judgment, that this allegation had no substance whatsoever, and could not possibly warrant the hearing of a substantive appeal.

[18]The next ground of appeal was that the Chair:

" ….. misconducted the hearing by being too formal and pedantic in approaching the wordings in the Originating Application in a technical, narrow or legalistic manner rather than looking at the substance of the Applicant's complaints."

This relates to the exercise to which I have already referred, namely the attempt by the Tribunal to put the proceedings in to proper shape, and identify the allegations which were to be heard and determined. With great respect to Mr Edward, we do not think that he can have his cake and eat it in this respect, because having criticised the Chair in an earlier ground of appeal for effectively eliding two sections of the Race Relations Act , he now appears to criticise her in this respect for separating them out and indicating under which heading the applications were to be determined. We take the view that the exercise which the Chair conducted at this early part of the hearing was an essential one, albeit one which should not have been necessary had the case been properly prepared.

[19]The next complaint pursued relates to the Tribunal giving permission for a particular Respondent to be discharged from the proceedings, it being alleged that the fact of that discharge caused very substantial prejudice to the Applicant's case. This matter arises because in some further and better particulars which the Applicant was ordered to send, and which he did send, by letter dated 8 March 1999, an allegation was made in relation to less favourable treatment that:

"As a Trade Union steward and a Health & Safety Representative, following my open support for many number of Blacks who were complaining of racial discrimination, on many occasions I was bullied, harassed and intimidated openly by the First Respondent's management, especially Marilyn Chown in the course of carrying out union activities. This is despite the entrenched time off allowed by Management for these activities."

[20]As a pleading, in our view, that is hopeless. It gives no opportunity for the Respondent to identify the acts or the person alleged, except Ms Chown. What appears to have happened in the preliminary stages of the case is that when particulars of the Applicant's claim were being identified and particularised, Mr. Edward agreed that a particular allegation which involved Mr Kendler (one of the Respondents to the application) was erroneous and should be deleted. It appears that Mr. Kendler was not identified at this point as the person involved in the particular allegation. An application was then made on behalf of Waltham Forest for Mr Kendler to be discharged from the case. This was opposed by Mr. Edward. The Tribunal commented that it had no real idea, (nor, did it think, had the Respondent) as to what Mr Kendler was supposed to have done. The allegation was that he had "disingenuously denied access" to the Applicant to a certain post.

[21]The Tribunal acceded to the application which was made by Waltham Forest for Mr Kendler, as a Respondent, to be struck out of the Originating Application,. The Tribunal made it clear that Mr Edward, on the second day of the hearing, had acknowledged that the allegation made was incorrect and asked to have it deleted, albeit at that point Mr Kendler was not named. This was done and the Tribunal took the view that an identical allegation in the Particulars also had to fail. For that reason the Tribunal that took the view that it was quite inappropriate for Mr Kendler to remain a party to the proceedings and the Tribunal discharged him.

[22]In any event, the Tribunal made it very clear that there would be no prejudice to the Applicant in this respect because evidence would be given in relation to these matters by the Applicant. On the other side, the virtue would be that Mr Kendler, against whom no allegations were formally pleaded, would be released as a Respondent. In our view, this was a perfectly proper exercise by the Tribunal of its powers over its own process, and the attempt by the Applicant to elevate it into a major reverse for himself, and to argue that it shut out a substantial portion of this case, seems to us entirely unfounded.

[23]Finally, the last allegation in the Notice of Appeal was that the Chair:

" …. was erroneous by restricting many of the Applicant's complaints to only victimisation when the Applicant's claim was that the complaints were both for victimisation and racial discrimination"

With great respect, having looked at the wide scope of the Tribunal's enquiry, and the care with which it addressed the issues, that allegation cannot even begin to get off the ground.

[24]So it seems to us that there is nothing in the grounds of appeal which is remotely arguable and which would warrant this case going forward on its merits on the substantive application to a full hearing. The substantive appeal will therefore be dismissed at this stage.

[25]We turn now to consider the appeal on costs. This is an area which gives us greater concern, given the historical reluctance of the Employment Tribunal to make Orders for costs, and indeed the restrictions placed on its powers to award costs.. However, having looked at the matter, it seems to us that the structure of what the Tribunal did cannot be faulted. It took the view that this was a case that came within new Rule 14(1) which reads: "Where in the opinion of the tribunal, a party has in bringing the proceedings, or a party or a party's representative has in conducting the proceedings, acted vexatiously, abusively, disruptively, or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived, the tribunal shall consider making, and if it so decides, may make(a) an order containing an award against that party in respect of the costs incurred by another party;"

(b) an order that the party shall pay to the Secretary of State …… [which does not arise in this case] Under the old Rule the maximum figure which the Tribunal could award, as it were, by way of immediate assessment was £5,000 and that figure was increased to the figure of £10,000 by the 2001 Regulations which came into force shortly after the commencement of this hearing.

[26]Mr Edward, very fairly, accepted that his Notice of Appeal which effectively said the Court or Tribunal did not have jurisdiction to make the Orders which it did, was wrong and withdrew that ground of appeal. That was, in our judgment, a very sensible concession; the Court plainly had the jurisdiction to make an Order and, moreover, it was bound, as Rule 14 indicates, to consider making an Order if it came to the view that the case had been conducted inappropriately, as indeed it did, and as, in our judgment, it was perfectly entitled to do. Having reached that stage, the Tribunal, in our judgment, acted entirely fairly and gave both parties the opportunity to address it on the issue of costs. Both parties put in submissions in relation to costs and the point was duly argued. It is very clear that the Respondents wanted all their costs of all the separate Originating Applications and therefore the Tribunal had a judicial discretion to exercise.

[27]Mr Edward has put before us the decision of the Court of Appeal in Carter -v- Credit Change Ltd , which is not related to costs. Nonetheless it explains the proposition that any judicial discretion must be exercised appropriately, and clearly if there are material facts taken into account which should not have been taken into account, or if the Tribunal leaves out matters which it ought to have taken into account, then the discretion can be held to be flawed The question here is whether the discretion was inappropriately exercised.

[28]The first part of the Order was the Order in relation to an application for an adjournment of the hearing, which had occurred on 2 November 2000, when the case had been unable to proceed. The Tribunal deal with this by referring to the Reasons, which the Tribunal hearing that application gave. Mr Edward explains that this was a case where there had been storm damage to his premises and he was unable to put together different parts of the Applicant's draft statement, which had been damaged. He said he was unable to proceed. The Tribunal had plainly taken the view that he should have been in a position to proceed and so they took the view that those costs should be paid by the Applicant.

[29]They also took the view that the Applicant should pay the costs in relation to the two main Respondents, and they made an Order for fifty per cent of all the other costs. This, clearly, took the figure to well below the £10,000 which would be the assessable sum, done on the spot. We have to consider whether, in all the circumstances, looking at the case and looking at the judgment which the Tribunal gave, they erred in the exercise of their discretion. With great respect to Mr Edward, we have looked at the grounds of appeal, we have also looked at the Reasons given by the Tribunal and we have come to the very clear view that it is quite impossible for us to detect any error of law in that exercise.

[30]The Tribunal was clearly entitled to make the findings of fact which they made in relation to both the Applicant and to the manner in which the case was conducted before it. Those findings were very strong but the Tribunal had material on which it could make them. This Tribunal, in our judgment, has a limited function; we have to be satisfied that the discretion was properly exercised. Whether we would have exercised it in the same way, whether we would have made the same Order, is neither here nor there. Was this an appropriate exercise of the discretion which the Tribunal was given under the Regulation? In our judgment, having looked carefully at the Reasons which are given, we take the view that it would be quite impossible for any Appeal Tribunal to interfere with the exercise of that discretion, and under no circumstances could it be said to be plainly wrong.

[31]In those circumstances we take the view that there is nothing in the Costs order to go forward to the full Tribunal and accordingly, both appeals will be dismissed at this stage. [Discussion] We think that is a matter for the Court of Appeal - you have, of course, the right to apply for permission to appeal, but we would refuse permission to appeal for the reasons we have given in the judgment. Thank you very much.