MS VALERIE SHODEKE v MR D HILL & OTHERS [2004] UKEAT 0394_00_0605

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0394_00_0605

Case No Appeal No. UKEAT/0394/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS VALERIE SHODEKEAPPELLANT

MR D HILL & OTHERSRESPONDENT

Before

Mr Justice Rimer Mr P Dawson

Date 6 May 2004

[1]APPEARANCES For the Appellant MR WILLIAM PANTON (of Counsel) Instructed by: Messrs Stewart & Co Solicitors 76 West Green Road Tottenham London N15 5NS For the First Respondent For the Second, Third and Fourth Respondents MS SALLY ROBERTSON (of Counsel) Instructed by: Messrs Mullinger Banks Solicitors Grove House 140/142 The Grove Stratford London E15 1NS MR ROBIN ALLEN QC (One of Her Majesty's Counsel) Instructed by: Messrs DLA Solicitors 3 Noble Street London EC2V 7EE and MR EWAN KEEN (Solicitor) of Messrs DLA Solicitors THE HONOURABLE MR JUSTICE RIMER Introduction This is an appeal by Ms Valerie Shodeke against the decision of an employment tribunal sitting at Woburn Place (Stratford) over 28 days between October and December 1999. The Chairman was Mr S.M. Duncan. The tribunal's decision was promulgated, with extended reasons, on 24 January 2000. Ms Shodeke was the applicant. There were four respondents: David Hill, Anthony Douglas, Harold Tinworth and the London Borough of Havering ("Havering"). Several matters were before the tribunal. We must first outline what they were.

[2]Ms Shodeke worked as a Principal Officer for Havering from 4 January 1994 until 31 January 1998, when she was dismissed. On 22 January 1997, she presented an originating application ("the first application") alleging race discrimination and victimisation against Mr Hill, Havering's Head of Service Children and Families. On 27 February 1997, Ms Shodeke withdrew that application, following which Mr J Scannell, a Chairman, made an order on 3 March 1997 formally dismissing it.

[3]On 11 July 1997, Ms Shodeke presented another originating application ("the second application") alleging race discrimination and victimisation against Mr Hill and Mr Douglas, Havering's Social Services Director. On 21 August 1997, Havering – although not named as a respondent – lodged a Notice of Appearance denying Ms Shodeke's allegations and asserting that she could not pursue her claims against Mr Hill, which had been dismissed with the first application. Havering also asserted that certain of her claims were out of time.

[4]On 17 November 1997, Ms Shodeke presented yet another originating application ("the third application") alleging race discrimination against Mr Tinworth, Havering's Chief Executive. Havering was again not named as a party, but it lodged a Notice of Appearance denying the allegations on 10 December 1997.

[5]On 23 March 1998, Ms Shodeke presented a yet further originating application ("the fourth application") alleging race discrimination, victimisation, sex discrimination (a claim she later withdrew) and unfair dismissal against Mr Tinworth and Mr Douglas.

[6]On 15 April 1998, Mr Puttick, a Chairman, made orders dismissing the claims against Mr Hill in the second application and adding Havering as a respondent to the second, third and fourth applications. He directed that the three applications should be heard together. On 22 June 1998, Ms Shodeke amended her claims to allege that Havering was vicariously liable for the individual respondents' actions.

[7]On 14 July 1998, Ms Shodeke appealed to this appeal tribunal against that part of Mr Puttick's order of 15 April 1998 dismissing her claims against Mr Hill in the second application, an appeal which was then stayed. At the end of the hearing before us, Mr William Panton, who appeared for Ms Shodeke, informed us that she did not wish to pursue that appeal, and we lifted the stay so that the appeal could be dismissed.

[8]On 23 July 1998, a tribunal heard Ms Shodeke's application for a review of Mr Puttick's decision of 15 April 1998. That tribunal revoked the decision dismissing Ms Shodeke's claims against Mr Hill in the second application and allowing her to proceed with claims against him to the extent that they were based on incidents alleged to have occurred after 3 March 1997 (the date on which Mr Scannell had dismissed the first application).

[9]On 11 March 1999, a tribunal heard Ms Shodeke's application to review Mr Scannell's decision of 3 March 1997. That tribunal referred that application to the tribunal whose decision is now under appeal. The net result is that the latter tribunal became seised of, and ruled on,(i) that review application and

(ii) the substantive claims in the second, third and fourth applications. The decisions of the employment tribunal

[10]Ms Shodeke appeared in person before the tribunal. On the first day of the hearing, 11 October 1999, she sought an adjournment of it until 2000. The tribunal refused her application. On 19 October 1999, the tribunal made a wasted costs order against Ms Shodeke (£150 to Mr Hill and £300 to the other respondents). The hearing concluded on 3 December 1999 and the ultimate result was that the tribunal dismissed Ms Shodeke's review application as well as all her claims in the second, third and fourth applications. They held that she had failed to prove race discrimination or victimisation and that her dismissal had not been unfair. The appeal to this appeal tribunal

[11]Ms Shodeke appeals against the refusal to adjourn the substantive hearing and against the costs order. She also has nine grounds of appeal against the tribunal's substantive decision, which are largely founded on complaints that she did not have a fair hearing. As we have said, Mr Panton appeared on her behalf. Mr Hill was represented by Ms Sally Robertson, who had also represented him before the tribunal from 19 October 1999 onwards (before then he had represented himself). Mr Robert Allen QC (instructed by DLA) and Mr Ewan Keen (a Solicitor from DLA) appeared for Mr Douglas, Mr Tinworth and Havering, whom they had both also represented before the Tribunal. We will take each ground of appeal in turn, but before doing so we will first make some general comments about certain of the problems raised by Ms Shodeke's appeal. The Employment Appeal Tribunal as a tribunal of fact

[12]Our jurisdiction on the appeal against the decision of the tribunal is confined by section 21 of the Employment Tribunals Act 1996 to questions of law. Ms Shodeke's appeal raises, however, and depends upon, a number of criticisms of the hearing, being criticisms against (in particular) the Chairman, Mr Duncan, to the effect that he was biased against her and conducted the hearing so unfairly that the presentation of her case was severely prejudiced. In such cases, this appeal tribunal can only identify, and rule upon, the question of law upon which it is being asked to adjudicate once it has ascertained the facts of what happened before the tribunal. If there is no dispute as to the facts, then there is no difficulty. But in a case in which there is a dispute, the appeal tribunal must first make any necessary findings of fact.

[13]In the present case there are stark disputes as to what happened before the tribunal. Ms Shodeke's criticisms are, in large part, supported by affidavit evidence from her or other witnesses. They are, however, disputed by evidence from Mr Hill and from Mr Keen (Mr Allen's junior before the tribunal). We have also had the benefit of written comments on them from the Chairman and from the lay members of the tribunal, Mrs Fraser and Mr Goldwater. Those comments also reflect substantial disagreement with Ms Shodeke's complaints. On 4 June 2003, Burton J, the President, had made an order for the exchange of evidence relating to the matters of which Ms Shodeke complains, and for the extending of invitations to the Chairman and tribunal members to respond to her complaints, as they have. Paragraph 12 of that order also entitled the parties to apply for the cross-examination of any deponent, although it did not extend to permitting the cross-examination of the Chairman or members, which this appeal tribunal will not permit. Facey v.(1) Midas Retail Security and

(2) Whitgift Centre Management

[2000] IRLR 812

, a decision of this appeal tribunal, provides helpful guidance as to the procedure to be adopted in cases such as this: see, in particular, paragraph 39 of the judgment delivered by Lindsay J, the President.

[14]In the event, no party took up the opportunity to ask for the cross-examination of any deponent. To the extent, therefore, that the evidence and written representations advance different assertions as to what happened before the tribunal, we have nothing more than the competing assertions on paper. We are nevertheless (in effect) asked by Mr Panton to prefer Ms Shodeke's account, and to reject the opposing accounts. Mr Panton did not explain by reference to what principle of judgment we are expected to do that. Usually, of course, in the absence of cross-examination (and leaving aside those rare cases in which one side's account is so manifestly incredible that it can safely be disregarded), a court or tribunal faced with conflicting factual accounts on paper is not in any position to make findings as to which of the accounts is to be preferred. We say no more about this now, but will return to it in relation to those grounds of appeal raising disputed issues of fact. Procedural background

[15]Before coming to ground 1 of Ms Shodeke's appeal – her appeal against the tribunal's refusal to adjourn the substantive hearing – we must set out the background against which the tribunal made that decision. A convenient starting point is Mr Scannell's directions order of 26 March 1999. At that stage, Ms Shodeke was represented in her various applications by a solicitor and counsel. The solicitor was Ms Kirby, who was employed by Ms Shodeke's union, MPO, which was supporting her case. Her counsel was Ms Melville, who attended the hearing on 26 March. Mr Hill was represented at the hearing by his solicitor, Mr Mullinger. Mr Allen, instructed by DLA, represented the other respondents.

[16]Paragraph 2 of the order recorded that the "parties agreed and the Chairman directed" that the substantive hearing was to be completed within 34 days, and directed that the hearing would start on 11 October 1999 and continue on specified days until 3 December 1999. Paragraph 2 also provided that "Save in exceptional circumstances, no postponement of the hearing of the case will be granted." Paragraph 3 reflected that all parties fully understood the issues in the various cases and that they agreed that "no purpose will be served today in attempting to define the issues any more fully than they are set out in the pleadings and the particulars which have been supplied." Paragraph 4 provided for disclosure within six weeks. Paragraph 5 required the parties, if possible, to agree a chronology of relevant events. Paragraph 6 provided for a mutual exchange of witness statements by not less than six weeks before 11 October 1999 (i.e. by end August). Paragraph 7 provided for the agreement, if possible, of a bundle of documents. Paragraph 8 recorded that the directions given were "… designed to ensure that the case is prepared and ready for the hearing and to ensure that it is completed within the time allocated." The directions therefore imposed obligations on all parties to take the steps necessary to ensure that the matter would be ready for hearing on 11 October 1999.

[17]On 1 May 1999, the tribunal sent the parties a formal notice of the fixing of the hearing for 11 October 1999. Paragraph 2 stated that:

"Unless there are wholly exceptional circumstances, no application for postponement due to non-availability of witnesses or for other reasons will be entertained if it is received more than 14 days after the date of this notice. Any such application must be in writing and state the full grounds and any other unavailable dates in the six weeks following the above hearing date."

[18]By 23 June 1999, disclosure had still not taken place. On that day, DLA proposed to Ms Kirby an exchange by 1 July. They said that, failing the prompt receipt of Ms Kirby's comments on this, they would apply for an order. On 2 July, Ms Kirby responded, saying she wanted time to enable Ms Shodeke to obtain Leading Counsel's view on DLA's settlement offer. Ms Kirby made no further prompt response, and on 21 July DLA wrote to her again, explaining that they could not hold the matter in abeyance and must proceed to preparation for trial. They asked her to inform them within seven days whether their offer had been accepted, saying that any further delay would prejudice their client. Ms Kirby replied on 23 July, as a result of which DLA extended until 4 August her time for reporting whether Ms Shodeke had accepted the offer.

[19]On 29 July, Ms Shodeke's father was taken ill and admitted to hospital. On 3 August, Ms Kirby wrote to the tribunal (with a copy to DLA), requesting a postponement of the hearing because of Mr Shodeke's illness. The ground was that Ms Shodeke was "unable to prepare her case for the hearing for this reason …" and "unable at present to focus on preparations …". DLA responded to Ms Kirby (with a copy to the tribunal) on 6 August, expressing their concern that, given the magnitude of the case (fixed for 34 days), they would, if the matter were adjourned, be unlikely to obtain a re-listing for a considerable time. They suggested that, pending an opinion as to the duration of Mr Shodeke's current critical condition, there should simply be a delay in the exchange of documents, but not a vacation of the trial date.

[20]On 18 August, Ms Shodeke wrote to the tribunal in response to the tribunal's letter of 5 August asking her for confirmation of her father's illness and why it prevented her from preparing for the hearing. She said that her father did not consent to information about his condition being given to others. She was unable to say what his illness was, but said that following his admission to hospital his temperature had risen, he started to have seizures and was transferred to the intensive care unit on 4 August where he was on a life support machine. She said that on 15 August he started to regain consciousness and tried to speak to her. The doctors' advice was that he was critical, but stable. Ms Shodeke said this in her letter:

"Although the respondent's [sic] have an in-house legal department, they have commissioned one of the largest law firms in London and are spending public money on Queen counsel and Barristers. Which they need, as they are fully aware of how they victimised and discriminated against me. However, the legal system is such that I am not entitled to Legal Aid to hire the equivalent. In addition have [sic] to rely on my union MPO, who do not have the funds to finance Queen's counsel or separate Barristers for a thirty five day hearing. Prior to his ill health, my father who is a respected community leader and ex academic was both an emotional support and intellectual genius in race discrimination and employment issues. His expertise has helped me a great deal. In light of the David and Goliath situation I have been forced into with the respondents it would be detrimental to my case to continue without my father's expertise particularly as he agreed to attend all the 35 day hearing. Further I believe my father's recovery will be a long process and as he lives alone I will need to devote my time to caring and supporting him when he is recovered enough to be discharged from hospital."

Ms Shodeke asked for a postponement until 2000 "When I believe my father will be fully recovered to advise me and attend."

[21]The tribunal sought DLA's views, which DLA provided by fax on 1 September. Whilst expressing sympathy with Ms Shodeke, they opposed her application. They pointed out that the events of which she complained had taken place over two years previously and that any postponement would mean that the case would probably not be re-listed before the spring of 2000. Such a delay would further dull witnesses' recollections. The respondents, who included Havering's Chief Executive and its Director of Social Services, were entitled to have the allegations against them determined promptly. DLA explained that they had been instructed in the matter only because of a potential conflict of interest arising from continued use of Havering's in-house legal department on behalf of all respondents. They had retained Leading Counsel, but not Junior Counsel as well. Ms Shodeke had been represented by a solicitor and Junior Counsel, and the former had informed DLA that she had also sought, or was seeking, Leading Counsel's advice. Contrary to Ms Shodeke's representations, the situation was not a "David and Goliath" one.

[22]On 3 September, a Chairman refused Ms Shodeke's application. He had noted both sides' representations, and concluded that(a) Mr Shodeke's illness did not prevent the proper presentation of Ms Shodeke's case, and

(b) a postponement would result in significant delay, to the prejudice of both sides and the interests of justice.

[23]Following that decision, DLA wrote to Ms Kirby on 8 September expressing their wish to finalise preparation. They said they had been pressing her for some time in relation to disclosure, which was to be by way of mutual exchange. They said that if Ms Kirby did not respond by noon that Friday, they would serve their list and ask for an order requiring Ms Shodeke to serve hers. They proposed that the final bundle be agreed by 30 September and witness statements exchanged on 4 October.

[24]There was no substantive response to that letter and the next development was that on 19 September Hardcastle & Co, solicitors, came on to the scene for Ms Shodeke. They wrote on that day to the tribunal, with a copy to DLA, renewing the adjournment application. They said Ms Shodeke's father's illness was "completely undermining preparations for the presentation of her case, and is seriously compromising her ability to make ready for the forthcoming hearing." They said that they enclosed medical evidence, confirming the extremely serious nature of Mr Shodeke's condition, namely the combined effects of a stroke and renal failure. However, the only piece of medical evidence they enclosed which is before us is a brief manuscript note to the effect that, although Mr Shodeke had been in intensive care, he was now out of danger. They wrote that:

"Even after Mr Shodeke has been discharged from hospital, his convalescence will be lengthy, and he will require virtually constant care and attendance. The burden of such care will primarily fall on [Ms Shodeke's] shoulders, in continuation of a role that she is already fulfilling. The consequent strain this has exerted on [her] to date has effectively ruled out proper preparations for the hearing, quite apart from the extent to which her father's illness has told on [her] own health and well-being. Put simply, the distraction which her father's condition constitutes has completely prevented [Ms Shodeke] from applying her mind to the undoubtedly convoluted and complex legal and factual issues engendered by the case. If the hearing was to commence on 11 October, as scheduled, this will take [her] away from her father for at least 35 days to the serious detriment of them both: something which will hinder both the presentation of the case, and the recovery of the patient."

Hardcastle submitted that a delay in the trial until 2000 would not make a pronounced difference to the witnesses' ability to recall the relevant events, the case being, they said, "copiously documented". They said they could not stress enough that "[Ms Shodeke] is in no fit state to undergo the trying experience of a 35 day hearing, particularly without the benefit of her father's presence and support."

[25]All this suggested that Ms Shodeke might have been expecting to have to present her case in person, assisted by her father. But this had not previously been the position, and had not necessarily become the position. Hardcastle also said that "we are instructed that the issue of funding for [Ms Shodeke's] legal team is now [our emphasis] in doubt, and that there is some uncertainty as to whether she will be represented at all, let alone by both an experienced solicitor and junior counsel. (This is indeed the reason why [Ms Shodeke] has enlisted our help in the present context)."

[26]So down to that point, she had been, and was apparently still being, represented by experienced lawyers. The picture so conveyed was, however, that "… Mr Shodeke has been pivotal to [her] preparations: his extensive knowledge of, and expertise in, discrimination law, not to mention his thorough grasp of the multifarious issues arising, have buoyed up [Ms Shodeke] and her legal team throughout. It is not too difficult to perceive the potentially calamitous effect that the withdrawal of this facility is likely to have." The suggestion was, therefore, that Ms Shodeke's lawyers had been and were substantially dependent on the advice of Mr Shodeke, a layman. That appears to us to be an unusual situation. Hardcastle went on to say that:

"On a more positive note, we are informed that the prognosis is good as far as [Ms Shodeke's] father is concerned, signifying, in our respectful submission, that there is every prospect that he will have recovered sufficiently by Christmas to enable him to participate in proceedings in early Spring. The adjournment need not, therefore, be open-ended, as the Respondents suggest."

[27]On 22 September, and having received Hardcastle's letter, DLA wrote to Ms Kirby asking her if she still represented Ms Shodeke. They also asked her if she would confirm whether she would be in a position to agree the final document bundle by 30 September. Ms Kirby replied on 27 September, saying that the MPO was no longer representing Ms Shodeke in respect of any of her claims. They said that all future correspondence should be addressed to Ms Shodeke.

[28]In those circumstances, DLA wrote to the tribunal on 28 September. They indicated that their clients would be prepared to consent to a postponement on terms that the applications should be struck out for want of prosecution unless Ms Shodeke applied for a directions hearing on or before 31 January 2000. They said that, if the Chairman was not minded to make such an "unless" order, they opposed Hardcastle's adjournment application made in the letter of 19 September.

[29]On 4 October, a Chairman refused the adjournment application. The reasons given were expressed as being the same as before. The Chairman also said:

"[Ms Shodeke] has been represented and, at this late stage, it must be assumed that the preparation is advanced. A 34 day hearing represents a very significant commitment of Tribunal resources and very considerable delay would be occasioned were this listing to be abandoned. As the letter of 19 September contemplates, [Ms Shodeke's] father is likely to be in convalescence for a lengthy period."

[30]On 7 October, Mr Shodeke tried again to obtain an adjournment. She faxed a further letter to the tribunal. She explained that whilst her father had been in intensive care in August, she had visited him every day twice a day and was unable during that time to prepare her case. She said that MPO had advised her that, if she did not accept the settlement offer, they would be unable to finance her representation by counsel over a 34-day hearing. MPO had withdrawn their representation less than two weeks before. She said she therefore faced a 34-day hearing in circumstances in which she said(i) she had no representation,

(ii) she had no bundle "as I have not been able to prepare one, nor have the respondents exchanged theirs",

(iii) she had not prepared witness statements,

(iv) she had no idea of the respondents' case,

(v) she had not had a chance to ask for disclosure of documents,

(vi) she had not been able to request witness orders. She said her case was "no where near ready for presentation". She said that she would be disadvantaged by being opposed by two eminent Queen's Counsel (Mr Allen QC was instructed, but it is obscure who she thought the second Queen's Counsel was, or for whom she believed he/she would be acting). She said that "the decision to go ahead is having a debilitating effect on my health" and had "generated extreme stress. Today I have had to visit my doctor, (see attached letter)." As for her father, she wrote that:

"Furthermore, although my father has now been discharged from hospital he is convalescing well, the progress is good, although he requires my continued support which will affect my ability to fully prepare my case."

In those circumstances, Ms Shodeke repeated her application for an adjournment.

[31]We regard that letter as surprising. The applications whose trial was to commence on 11 October 1999 had not been made at the beginning of August 1999, at the time of the unexpected onset of Mr Shodeke's illness: they dated from January 1997 and concerned events occurring before then. Ms Shodeke had been represented by a solicitor until shortly before her letter. We have referred to the directions given on 26 March 1999. They required the exchange of lists of documents by late April, later extended to 20 May. Lists were not exchanged even by the later date, after which DLA proposed an exchange by 1 July. Still Ms Shodeke did not want to exchange lists, and the inference is that she and Ms Kirby had done little or nothing towards preparing for it. We ask rhetorically, why not? Similarly, witness statements were originally directed to be exchanged by the end of August. If, as Ms Shodeke suggested, little or nothing had been done towards their preparation, then why not? Ms Shodeke says that she had not been able to prepare a bundle. But DLA had been pressing for one to be agreed, and we do not follow why this was not dealt with. Ms Shodeke asserts that she "had no idea of" the respondents' case. But her counsel acknowledged at the hearing on 26 March 1999 that the issues were clear, and if there had been the invaluable input into the case by her father of which Hardcastle spoke so fulsomely, we cannot understand how Ms Shodeke cannot have had as full an understanding of the issues as he and counsel had absorbed. She was, after all, the applicant and knew the facts on which she was claiming to rely and on which her father's advice must have been based. Whether or not she had personally been able to consider matters such as witness orders, her lawyers had had ample opportunity to do so. If the state of preparation was, by 7 October, as dismal as she asserted, the only inference is that neither she nor her lawyers had bothered to do any significant work at all on the case even though they had had literally months in which to do so.

[32]It is also a matter of significance, to which we will come, that Mr Allen submitted that his clients do not know - and question - whether the medical report (the "attached letter") in relation to Ms Shodeke's own medical condition was in fact enclosed with her fax of 7 October 1999. Mr Allen pointed out that they have never seen the header sheet for the fax, and Ms Shodeke did not send DLA a copy of her fax.

[33]On 8 October, a Chairman refused Ms Shodeke's application made by her letter of 7 October. The reasons were expressed as follows:

"… your request merely repeats many of the previous grounds. In your letter, you raise 5 principal grounds for postponement, none of which relate to your father's health. It is also noted that your father is now discharged from hospital and can advise you as necessary."

Ground 1 of the appeal: was the tribunal in error in refusing to adjourn the hearing?

[34]After this introduction, we come to ground 1 of the appeal. The first day of the hearing before the tribunal was 11 October 1999. Ms Shodeke appeared in person. So did Mr Hill, the first respondent. Mr Allen, leading Mr Keen, represented the other respondents.

[35]At the beginning of the hearing Ms Shodeke renewed her adjournment application. This was her fourth such application since the beginning of August. Mr Hill and Mr Allen opposed it. The tribunal refused it, for reasons they gave in paragraph 20 of their extended reasons. They were as follows:

"20. … Ms Shodeke said that she wished to obtain legal representation as her union had withdrawn two weeks before and she had been unable to obtain the services of a solicitor in the meantime. Ms Shodeke further said that she needed to be at home on occasions when required to care for her father who was recovering from a serious renal condition. We were aware that Ms Shodeke had recently made applications to adjourn these cases which were scheduled to last 34 days and all had been rejected. The last application before this hearing was made on 7 October 1999 and the grounds put forward on 11 October 1999 were not materially different to those put forward then. We were sympathetic to a degree, to the position Ms Shodeke found herself in, but she had known for over six months that her cases were due to start on 11 October 1999. It appeared to us that it was lack of funds that really prevented Ms Shodeke obtaining the solicitor and barrister of her choice. This may be unfortunate, but we must bear in mind that Mr Hill and the other individual Respondents had to some extent freed their diaries for the hearing (even if they did not intend to attend every day). The same consideration applied to the solicitors and counsel instructed in these cases. An adjournment was we considered likely to be of great inconvenience to the Respondents and likely to incur costs for the London Borough of Havering. We understood Ms Shodeke's father required some support when he was feeling low, but it appeared to us that he was resting at home and that his treatment consisted of his taking pills and attending hospital for therapy. Mr Shodeke did not suggest that her father could not fend for himself and she indicated that if she was not in court she would be at work, albeit that her employers had agreed that she could on occasion leave to attend to her father at short notice. Moreover, we understood that there were some four other brothers and sisters living in the London area who might be able to provide some support as well. The Respondents pointed out that the allegations made went back to April 1996 or possibly even earlier and that allegations of racial discrimination hanging over the heads of the Chief Executive of the London Borough of Havering and other persons in senior management were personally upsetting and made it difficult for them to carry out their business duties. Balancing the interests of all parties, we came to the conclusion that the cases should proceed, that it was time the complaints made were decided upon whichever way that might be and the application was accordingly refused."

[36]Mr Panton submitted that the tribunal's refusal to adjourn the proceedings was perversely unreasonable. He says that, in coming to their decision, the tribunal overlooked material matters. The first was the medical evidence that Ms Shodeke was not in a fit state to take on a 34-day hearing. That was based on a manuscript doctor's note of 7 October 1999 that she had "been under a lot of stress in the past four weeks following her Father's illness. … She is still not back to normal and appears very anxious and tense. She is unfit to appear for any hearing for immediate future."

[37]There is a dispute as to whether the note was shown to the tribunal, or whether the tribunal ever saw it. Ms Shodeke claims it accompanied her fax of 7 October 1999 in support of her earlier adjournment application, a fact she confirmed in her affidavit of 5 December 2000. In the same affidavit, she asserted that, when making her adjournment application on 11 October 1999, she told the tribunal she was not well enough to continue and made specific reference to that note. What she there said is, however, to be contrasted with her omission to make any such point in her first affidavit sworn for the purposes of the appeal, one made on 24 May 2000. In that affidavit, all she said about the refusal to adjourn was that:

"1. … My father's serious illness, and the sudden and unexpected desertion of my legal representative, laid me low from the start. In spite of this, I was refused an adjournment, and forced to carry on regardless in a case for which I had had little opportunity to prepare. The result was that I was forced to work through the night on numerous occasions, and after the first few days, I was exhausted and dispirited, and incapable of properly presenting my case."

[38]Some support for Ms Shodeke's position with regard to the medical certificate is to be found in Mr Hill's affirmation of 29 September 2003. He referred in paragraph 4 to Ms Shodeke advancing four grounds in support of her adjournment application, of which the fourth was that "She was stressed by the process and was not fit to attend the hearing." Later, he said that:

"6. … The Chairman asked her specifically about whether she had a doctor's certificate supporting her assertion that she was unfit to be at the hearing. Ms Shodeke said that it had been sent to the Stratford Tribunal. The Chairman checked the papers from Stratford and said that there was neither mention of a doctor's certificate in the decision from the acting Chairman who refused the adjournment, nor any trace of the doctor's certificate (or a copy of it) in the papers. 7. He questioned Ms Shodeke further about the certificate and enquired as to whether she could arrange for a duplicate to be provided. She was vague in her response to this questioning and seemed to backtrack on whether the doctor's certificate had in fact been sent to the Stratford ET. She said that she would look at home. There were no further references from Ms Shodeke on subsequent days to the doctor's certificate."

[39]The Chairman, Mr Duncan, was invited to comment on Ms Shodeke's assertions about the medical certificate. He did so in a letter of 5 April 2001. In paragraph 1, he explained that the tribunal file (the relevant part of which he described in detail) suggested that the medical certificate of 7 October 1999 had not accompanied Ms Shodeke's fax of the same day, and that no such certificate was on the file. He said he had read the file before the start of the hearing on 11 October and had noted that there had been a number of adjournment applications. He explained that his notes showed that, when Ms Shodeke made her application on 11 October, she read her fax of 7 October 1999 to the tribunal. He said that:

"… There is no mention in my notes of the medical certificate and as it is a highly relevant document I believe I never saw it, otherwise I would have asked Ms Shodeke about her health. My note goes on to set out the basis of Ms Shodeke's application and reads: 'First ground is that I wish to be represented and have been unable to find a solicitor to take on case in 2 weeks since previous solicitor withdraw (they felt they should accept the offer). Second ground is that I need to be at home to look after my father/calming him down/or making arrangements for somebody to look after him (father has refused help).' Ms Shodeke according to my note and memory never relied on her health as a ground for an adjournment and therefore the Tribunal did not consider this aspect when deciding at about 11.40 am to refuse the application. Accordingly, I believe Ms Shodeke is mistaken in her recollection that she told me she was not well enough to continue and that specific reference was made to the medical certificate. If I had seen the certificate it is quite likely that the Tribunal would have come to a different decision."

[40]Mrs B.M. Fraser, a lay member of the tribunal, was asked for her views on the matter. She said in her letter of 19 November 2003 that "Ms Shodeke's health … did not appear to have been a problem at the ET. We had no sight of a Medical Certificate. Ms Shodeke did not attempt to provide a copy of the one she claimed to have sent previously."

[41]The Chairman's account is supported by Mr Keen's affirmation as to the events at the hearing. Mr Keen asserted in paragraph 63 that Ms Shodeke "did not state explicitly at the commencement of the hearing that she was not well enough to continue." He did not recall any medical certificate being read out, but does recall that Ms Shodeke's fax of 7 October 1999 was read. He noted Mr Hill's recollection on the subject, but does not recall the extent to which there was any discussion of a medical certificate. He agreed with the Chairman's summary in the latter's letter of 5 April 2001 of the basis on which Ms Shodeke was seeking an adjournment, namely the lack of representation and her father's dependency on her. He said Ms Shodeke did not base her case for an adjournment on her own ill health.

[42]Mr Keen's contemporaneous notes of the hearing are in evidence. They record that at the outset the Chairman asked Ms Shodeke whether she was putting forward any fresh grounds for her adjournment application (her fourth), to which she replied that she wanted to think about that. They make clear that her grounds were the two to which we have just referred (lack of representation and father's dependency), but they do also include the following note:

"Stress – been to doc."

There is no reference in them to any medical certificate or to any discussion about one. There is no suggestion that her health was advanced as a separate ground for an adjournment.

[43]Coming now to our conclusions on this aspect of this ground of appeal against the tribunal's refusal to adjourn, we have to make a finding of fact as to whether or not it was part of Ms Shodeke's grounds for her application that she was too unwell to carry on with the hearing and that her case in that respect was supported by the doctor's certificate of 7 October 1999. As we have said, neither on this issue, nor on any of the other factual issues arising on this appeal, have we heard any oral evidence, and no-one has been cross-examined as to their recollections of the relevant events.

[44]The Chairman's account of the state of the Stratford file satisfies us, and we find, that no doctor's certificate accompanied Ms Shodeke's fax of 7 October 1999 to the tribunal. We are also satisfied on the probabilities, and also find, that no such certificate was produced to the tribunal on the morning of 11 October 1999, or at any time afterwards, and that the tribunal never saw any such certificate. It is not even clear to us that Ms Shodeke is suggesting that she did actually produce a doctor's certificate on that morning: she asserts no more than that she made reference to the "attachments to the letter of 7 October 1999 and specifically to my doctor's certificate of the same date." We find that she did assert to the tribunal that she was stressed and that there was some discussion about the existence of a certificate during the adjournment application. The stark fact remains, however, that no certificate was produced to the tribunal. Its absence meant that Ms Shodeke had no medical evidence relating to her health to put before it, and any attempt to base her adjournment application on the grounds of her own alleged ill-health was obviously hopeless.

[45]Whether or not this last point formed part of Ms Shodeke's reasoning at the time, we anyway find that the only grounds for an adjournment on which she was positively relying were the two identified by the Chairman, namely(i) the recent loss of her legal representation and

(ii) her father's dependency on her. That is supported by the Chairman's notes, by Mr Keen's affirmation and by paragraph 20 of the tribunal's reasons. If Ms Shodeke had, despite the absence of any medical certificate, been relying also on her own ill-health, we would expect the tribunal to have mentioned it, if only to reject it as unsupported. Since, as we find, she was not so relying, we reject the criticism of the tribunal that it did not take her health into account when ruling on her application.

[46]Mr Panton submitted next that the tribunal overlooked the fact that Ms Shodeke's debilitated condition, which had been exacerbated by her anxiety over her father's illness, had precluded her from making adequate preparations for the case. We consider that there is here no additional point based on Mr Shodeke's alleged "debilitated condition", which is simply an attempt to resurrect the ill-health point. The only additional point is that it is said that the tribunal failed to pay adequate regard to the fact that Ms Shodeke was not prepared for the case.

[47]The tribunal of course fully appreciated that Ms Shodeke was faced with the difficulty of having to represent herself, her lawyers having ceased to act for her shortly before; and they considered this. But the point about the extent to which her case had been prepared is strictly a different one. As we have said, she and her lawyers had had months to prepare it, and if they had made any responsible efforts in this direction its preparation should have been well advanced. If they made none, they were at fault. Ms Shodeke's first adjournment application had been refused on 3 September 1999, over a month before the hearing. If, following that refusal, she and her lawyers still took no further steps towards preparing the case, they continued to be at fault; indeed, in light of the refusal, any continued non-preparation was the height of folly. Mrs Fraser's observation about this is that the tribunal "took the reasonable view that much of the preparation should have been done." That is in line with what we would regard as the equally reasonable view taken by the Chairman on 4 October 1999 when refusing Ms Shodeke's third adjournment application.

[48]In our view, there is nothing in this head of criticism of the tribunal's decision. Ms Shodeke's preparation should have been well advanced by the end of July; and even if the trauma of August caused an understandable hiatus in its further preparation, there was no excuse for any failure to resume it after 3 September 1999. In any event, we do not understand Ms Shodeke's adjournment application to have been founded on the proposition that the case had not been prepared. Rather, it was founded on the submission that she wished to be legally represented. The tribunal took full account of that submission in coming to its decision.

[49]The next point raised by Ms Shodeke is related to the one just discussed. It is that the tribunal failed to take sufficient account of the fact of the union's withdrawal of its support for Ms Shodeke less than two weeks before the hearing, without having made any preparations on her behalf beforehand. To the extent that this ground complains that her lawyers had done nothing in the way of preparing the case (if that is the point being made) we have nothing to add to what we have just said. To the extent that the point is that Ms Shodeke had been abandoned by her lawyers only shortly before, the tribunal knew that perfectly well. They knew equally well that she had been unable to obtain alternative representation and was faced with representing herself, and they cannot have been insensitive to the disadvantage to which that put her. The tribunal took all this into account in considering the adjournment application.

[50]Then it is said that the tribunal failed to take into account her evidence that other solicitors she had approached had told her that they were unable to do justice to her case at such short notice, whereas the tribunal had wrongly concluded that it was mere lack of funds that had prevented her from securing their assistance. From what Mr Panton told us, we understand that Ms Shodeke would at best only have been able to make instalment payments to any new solicitors who might have been prepared to take her case on, and he confirmed that she explained to the tribunal that she had a difficulty with funding alternative representation. In his letter of 14 November 2003, the Chairman said that "Ms Shodeke said that she was not in a position to find solicitors at that time, but one firm would act on what she could pay but were tied up until 2000." We interpret her position to have been that she had been unable to find immediate alternative representation, and we see no basis for a criticism of the tribunal's finding that her problem with doing so was a lack of funds.

[51]Mr Panton argued further – although this appeared to be a new point - that Ms Shodeke was further disadvantaged because 50% of the trial bundles that DLA had produced contained material new to her. If so, that was because she and her lawyers had not carried out even the most basic pre-trial preparation. They had been pressed at an early stage to proceed to mutual disclosure, but had declined to do so.

[52]For reasons given, we have found that the tribunal was not in error in failing to take account of Ms Shodeke's alleged ill-health as a ground for an adjournment. That still leaves the more general question as to whether it was otherwise in error in refusing the adjournment application. Mr Panton's submission is that the decision was perverse: he said that no reasonable tribunal could have made such a decision in the circumstances in which Ms Shodeke found herself – namely, as someone who had lost her legal representation less than two weeks before and who, failing an adjournment, faced the prospect of conducting a 34-day hearing in person.

[53]That summary of the facts, particularly if linked to the fact of Mr Shodeke's serious illness and its distraction of Ms Shodeke from the case, posed what we would assess to have been a difficult exercise of discretion for the tribunal. We would be prepared to accept that some tribunals might have taken the view that the interests of justice required an adjournment. The decision for the tribunal – whether or not to adjourn - was, however, par excellence one involving an exercise of their discretion, and it is in the nature of a discretion that it can be exercised in different ways. It is well settled that an appellate tribunal will be slow to interfere with the exercise of a tribunal of its discretion as to whether or not to grant an adjournment, and that there are only limited grounds on which it can properly do so. There will or may be grounds for doing so if it can be shown that the tribunal has taken account of irrelevant matters, or failed to take account of relevant ones. Similarly, the appellate tribunal may interfere if satisfied that the tribunal's decision was one to which no tribunal, properly directing itself, could reasonably have come: for example, if the refusal of the requested adjournment could be shown to represent a denial of justice.

[54]We find it impossible, however, to conclude that the tribunal's decision in the present case can be faulted on any such grounds. The tribunal had to take full account of the reasons Ms Shodeke was advancing for an adjournment and had to carry out a balancing exercise which took into account not just those reasons, and her own interests, but also the interests of the respondents: Ms Shodeke was merely one player in the case, and the respondents' interests were just as important. The tribunal balanced the competing interests of the parties, and decided that an adjournment ought to be refused. We are unable to conclude that, in reaching that decision, the tribunal misdirected themselves, whether by failing to take account of relevant matters, or by taking into account irrelevant ones. Nor are we satisfied that the decision was one which no reasonable tribunal could properly have made. We dismiss Ms Shodeke's appeal against the refusal to adjourn the proceedings.

[55]The next point raised by Ms Shodeke's notice of appeal (which also arises under ground 1) is in the nature of a free-standing complaint that when Ms Shodeke then told the Chairman that she intended to appeal against the refusal to adjourn, he responded angrily "and said [she] had no ground and to emphasise the point he pulled out a law book and read out aloud the grounds for appeal dismissing each one out loud in an aggressive manner."

[56]Mr Keen's evidence is that Ms Shodeke did not suggest she wanted to appeal against the decision, but that she wanted a review of it, an application which the tribunal dismissed. That is supported by Mr Keen's contemporaneous note. In his letter of 14 November 2003, the Chairman said of this allegation:

"I have no note or recollection of reading from a law book after giving the Tribunal's decision on the application to adjourn. It is possible that Ms Shodeke asked the Tribunal to review its decision and that I read out the grounds for a review and asked her which she relied on, but I have no note of this. If it happened at all, I certainly had no reason to be angry, would not in fact have been angry and I do not believe my manner would have been aggressive and bullying."

[57]We do not accept Ms Shodeke's evidence that she said she intended to appeal against the decision because, if she had said this, we would regard her evidence as incredible: for the simple reason that, if she had given such an indication, we cannot think what law book the Chairman could possibly have turned to in order, so she alleges, to make the response she says he did. On the other hand, her evidence makes more sense if she had said she wanted a review of the decision. Mr Keen's evidence and notes support the conclusion that that is what she in fact asked for, and the Chairman's explanation is that, in such event, he might have read out the grounds for a review and asked which she relied on.

[58]We find that Ms Shodeke did ask for a review, and that it is therefore likely that there was some such exchange between Ms Shodeke and the Chairman as the Chairman suggests, and we find that there was. If so, we do not see where it takes Ms Shodeke on this appeal, save that she asserts that the Chairman's response to her application was angry and aggressive. If it was, that might provide evidence of a lack of even-handedness in his approach to the case. But the Chairman denies that allegation and says that he had no reason to be angry. We cannot see that he did have any such reason. The adjournment application that Ms Shodeke had made was an understandable one. It took no more than about 25 minutes, which was modest, and the application for a review, if ambitious, was one that Ms Shodeke was at least entitled to make. There is no evidence before us indicating why it should have provoked the Chairman to his alleged anger and aggressiveness; and, given his denial, we find ourselves unable to prefer her uncorroborated assertions as to what happened. The burden is on Ms Shodeke to prove the facts on which she claims to rely, and we hold that she has not proved this head of criticism against the Chairman. We find that there is nothing in this part of her complaints.

[59]That is not quite the end of this point, since Ms Shodeke also alleges that, "On another occasion the chairman denied the review being submitted due to issue estoppels, and other legal terms" and said something like "I want to tie this up as I don't want her to go running to the Court of Appeal." The Chairman's response, in his letter of 14 November 2003, is that he does not know when this is alleged to have occurred, that he has no recollection of "denying a review being submitted on another occasion", would not have said what is attributed to him in open court and that the attributed expression is not one he would not have used. Mr Hill's evidence is also that he does not recall this alleged incident. Again, we find ourselves unable to find that this exchange occurred. We add that it is improbable that Ms Shodeke's recollection can be wholly reliable: the Chairman would have known that any appeal lay to this appeal tribunal, not to the Court of Appeal.

[60]All points so far discussed fall under ground 1 of the appeal, namely the alleged unreasonableness of the tribunal in refusing to adjourn the hearing. We dismiss that ground. Ground 2: the tribunal's failure to conduct the proceedings in an impartial and even-handed manner

[61]This is supported by nine paragraphs of particulars of complaints about the Chairman's conduct. We will summarise the complaints and the evidence, and express our overall conclusions on this ground after having done so.

[62](i) The first complaint is that the Chairman tolerated constant interruptions by Mr Allen during Ms Shodeke's evidence in chief. She expands on this, although without much detail in paragraphs 3 to 5 of her affidavit of 24 May 2000. She complains that on one occasion Mr Allen interrupted and complained that she was not giving "the whole story". She says that the Chairman never controlled Mr Allen, often invited his comments and seemed in awe of him. She said that "Mr Allen's interruptions (often whilst I was in mid-sentence) were accepted without complaint, and this effectively prevented me from freely presenting my case, added as it was to the adverse effects of anxiety and sleep deprivation." She said that Mr Allen uttered remarks in a scathing tone, and gave exaggerated looks of disbelief when she was giving evidence. Her evidence about Mr Allen's interruptions and conduct is supported by evidence from her sister, Pauline Shodeke, who attended the hearing on two unidentified occasions.

[63]The Chairman's response of 11 July 2003 was that it was possible that Mr Allen intervened during Ms Shodeke's evidence in chief to seek clarification of a point, just as the Chairman also did. He had no recollection of "the whole story" allegation. He did not recall Mr Allen using a scathing tone, nor did he notice any exaggerated displays of disbelief by him. Mr Keen's affirmation also disputes. Ms Shodeke's allegations: to the extent Mr Allen intervened, it was for the purpose of identifying Ms Shodeke's case with sufficient clarity to enable instructions to be taken on it. Mr Keen disputes any oppression by Mr Allen towards Ms Shodeke, and points out, for example, that it was Mr Allen who proposed an adjournment on 13 October because Ms Shodeke was obviously tired.

[64]Mr Hill dealt with the matter of interruptions in relation to Ms Shodeke's evidence in chief as follows:

"18. Because there had been no agreed bundle from Ms Shodeke, issues were being raised by her on a daily basis and documents produced at random. Ms Shodeke had not agreed the trial bundle beforehand and she produced a number of documents, both when giving evidence and later in the hearing. When she gave evidence in chief, she presented what she had written for her witness statement on the first morning she gave evidence. The next day she produced the next tranche of her witness statement and so on until she had completed her evidence in chief. When she ran out of written evidence, she continued orally. 19. This meant that various issues, not in the IT1s, were being put forward by Ms Shodeke as being relevant to the case and as a result there was a lot of discussion, which I remember as involving both representatives, on what was admissible and what was not. This was an inevitably 'messy' part of the proceedings as several points were open to discussion and challenge. The Chairman and other participants were in my view patient and thorough in the approach to this, although Ms Shodeke at various points expressed her frustration at what she saw as interruptions in the flow of her evidence in chief. 20. I observed and believe that the Chairman was reasonable and fair throughout and took the time to explain points of order and process to Ms Shodeke so that as a non legal person she was not unduly prejudiced. Ms Shodeke appeared to understand and responded to this direction by the Chairman."

[65]As will appear, Ms Shodeke levels unqualified criticism of the Chairman and Mr Allen under various heads which we explain further below. Mr Hill, in his affirmation, in addition to the points just quoted, also made a generalised denial that there was any justification in them, and we refer to what he says in paragraph 23:

"23. Generally, at the start [Ms Shodeke] seemed to be quite difficult to control within the process of the hearing and in my view the Chairman having established the ground-rules early (no mobile phones, interruptions etc), managed to deal with the case with fairness and good grace throughout. Once she began giving evidence she seemed to settle down. I was present throughout the entire hearing except for 1 hour towards the end and do not recognise the comments attributed to the chairman and others by Ms Shodeke in her grounds of appeal."

[66](ii) The second complaint is that the Chairman and Mr Allen "told [Ms Shodeke] that she could not include certain things in her testimony and the offending items would have to be removed".

[67]It is accepted that objections were made to the contents of Ms Shodeke's witness statement and that the objections as to parts of it were accepted. The point here is that her witness statement was produced in instalments during the course of the hearing and contained matters which the respondents claimed were either outside her pleaded case or which could not have been anticipated, and it was this that gave rise to the objections. One such objection related to a new – and previously unadvertised - allegation concerning a right wing organisation called Combat 18. Its raising was objected to by Mr Allen on the grounds that it was scandalous, there being no allegation that any Havering officer had any connection with Combat 18. The objection was upheld. Mrs Fraser recalls that matter, and said that the Chairman was correct in refusing to allow the allegation. Further allegations were also objected to and similarly ruled out. Mr Panton did not demonstrate to us that Ms Shodeke was prevented from relying on any matter which could or might be said to have been relevant to her case.

[68](iii) Next it is said that the Chairman "regularly allowed Mr Allen QC to comment adversely upon [Ms Shodeke's] evidence whilst she was giving it." The Chairman has produced his notes of the evidence in chief given orally by Ms Shodeke and has referred to some 13 interventions (one continued overnight) made in the course of it, of which perhaps ten were by Mr Allen and at least two by the Chairman. The Chairman described two of Mr Allen's interventions as helpful to Ms Shodeke, and one as being by way of a response to a request from her. We will not summarise the interventions, upon which Mr Panton made no detailed submissions. We say simply that we have been shown nothing to indicate that they were other than properly made in the interests of Mr Allen's clients.

[69](iv) The next complaint is that the Chairman permitted Mr Allen and Mr Robertson to cross-examine Ms Shodeke during her evidence in chief. This improbable allegation does not appear to be supported by any evidence. We were informed that cross-examination of Ms Shodeke took place in a conventional way, with Miss Robertson's cross-examination of her commencing on 22 October, after which there was a gap in the hearing until 1 November. Ms Robertson's cross-examination concluded on 3 November. Mr Allen's cross-examination of Ms Shodeke commenced on 4 November and concluded on 5 November.

[70](v) Next, Ms Shodeke complains that the Chairman unreasonably and unjustifiably controlled the questions she could put in cross-examination. In her affidavit, she gives one example of this, referring to a particular document she wanted to put to Mr Hill. The Chairman's response is that he understands this to be a reference to the document referred to in paragraph 28 of the extended reasons, being an apparently confidential document that the tribunal had ruled was irrelevant to the issues. Mr Panton did not satisfy us that the tribunal was wrong in so ruling.

[71](vi) Next, Ms Shodeke complains that the Chairman invited Mr Allen to intervene and make observations during the course of her closing submissions. She complains in particular that Mr Allen insisted on taking this opportunity to interrupt her and read out a document, and that the Chairman made no attempt to stop him. She complains that at one point the Chairman said "It's not as easy it looks representing yourself, is it Ms Shodeke." She says that the Chairman rushed her to finish and that she felt she was running out of time and began to panic.

[72]The Chairman's recollections are different. He did not recall Mr Allen interrupting Ms Shodeke during her final submissions, nor did he recall extending any invitation to him to comment on them, which he anyway believes is very unlikely. He pointed out that Mr Allen's closing submissions occupied 3 hours 12 minutes; Ms Robertson's 2 hours 12 minutes; and Ms Shodeke's 4 hours 23 minutes. Her submissions finished at 4.15 pm, but the tribunal was due to sit the next day and could have allowed her to continue on that day if necessary. The Chairman has no recollection of making the remark attributed to him, and says he would not have used such an expression, which he said sounded patronising. He said further on this, in his letter of 14 November 2003, that he does not believe he ever made this remark, although may have said, sympathetically, that representing oneself is not easy – which he says is quite different. Mr Keen also has no recollection of the Chairman making the remark.

[73](vii) Related to this last point, Ms Shodeke also complains that the Chairman interrupted her submissions to hurry her up and thereby so flustered and intimidated her that she felt totally cowed, resulting in a shattering of her concentration and a substantial impairment of her articulacy. The Chairman does not accept that he did hurry her – her submissions were in fact materially longer than her opponents' – nor did he observe that she was flustered. He accepts he may have asked her how long she was going to be, and says he asked Ms Robertson the same question. He said that if he was not certain what she meant in any of her submissions, he "interrupted" her in order to obtain a clarification. That is what one would expect, and any such interruption would have been in Ms Shodeke's interests, not adverse to them.

[74](viii) Ms Shodeke complains that the Chairman failed to treat her with deference and courtesy, raised his voice with her, peremptorily interrupted her and was generally impatient and brusque. On one occasion when allegedly harassing and belittling her, he is said to have grinned at Mr Douglas, a respondent. Her criticism of the Chairman's conduct towards her is generally supported by the affidavit of John Vogler, who attended the hearing on the afternoons of 5 and 24 November 1999.

[75]The Chairman's response, in his letter of 11 July 2000 is that he does not believe he was ever disrespectful or discourteous to Ms Shodeke, or brusque towards her. He admits he may occasionally have been impatient with her when she would not get to the point. He admits he may have reprimanded her for a lack of preparation. He admits he would and did interrupt her when she wished to raise irrelevant matters or when he was not clear what she was saying. In his letter of 14 November 2003, he added that he does not believe he bullied or harassed her at any time, but had to be firm with all parties in order to keep to the timetable. He does not recall speaking rudely or being unprofessional. He has no recollection of grinning inappropriately, and, if he was reprimanding Ms Shodeke, would not have grinned whilst doing so. Mr Keen's evidence is that he was aware of no occasion when the Chairman smiled inappropriately at Mr Douglas, and said he was sure that at some point the Chairman must have smiled at all the main participants, including Ms Shodeke.

[76](ix) Next, Ms Shodeke complains that the Chairman generally afforded more latitude to the respondents than to her. She says he condoned without criticism Mr Allen's arrival 5 to 10 minutes late after lunch on virtually every day; allowed him - again without criticism - to arrive an hour late on one occasion; added insult to injury by inviting Mr Allen to speak to Ms Shodeke on the subject of delay; did not intervene when Mr Allen allegedly usurped the tribunal's discretion by stating that a particular witness would not be attending; allowed Mr Allen, in his closing submissions, to refer to two reports which were not in the bundle and had not been previously introduced into evidence; and afforded Mr Allen generosity and courtesy which he did not extend to her.

[77]In his letter of 11 July 2000, the Chairman explained that on a few occasions the lunch break was less than an hour. But, allowing an hour, his notes showed only four occasions when the afternoon session started late: by five minutes on 3 November, by 12 minutes on 5 November, by five minutes on 11 November and by 20 minutes on 26 November. He cannot say who caused the delays but has no recollection of Mr Allen being regularly at fault. He believes the longest delay related to the timing of Mr Tinworth's evidence, which he explains, and he does not suggest that it was Mr Allen's fault. He does not ever recall Mr Allen arriving an hour late, but if he did he says the hearing must have continued without him (Mr Keen was his junior). He interprets the point about the alleged invitation to Mr Allen to speak to Ms Shodeke on the subject of delay to relate to the occasion on 19 October when Ms Shodeke had failed to arrive on time for the day's hearing. In her absence, Mr Allen and Ms Robertson had indicated a wish to apply for Ms Shodeke's applications to be struck out or dismissed. However, Ms Shodeke then arrived, just over an hour late, and the Chairman asked Mr Allen whether he still wanted to make the application. Mr Allen said he did, he made it and apparently he did level criticism against Ms Shodeke. The Chairman said he saw no basis to intervene. The application and the decision on it took until 11.43 am, the tribunal concluding that Ms Shodeke's late arrival had wasted a total of 1 ½ hours, in respect of which they awarded costs against her (the subject of ground 11 of the appeal). The Chairman says that his notes show that Ms Shodeke asked for and was granted a number of comfort breaks during the case. He says that he does not believe he treated either side in any different way, save for taking into account that Ms Shodeke was not a trained lawyer.

[78]Mr Hill also touches on these complaints in his evidence. He said that on one occasion Mr Allen explained in advance that he had an unavoidable appointment at Moorfields eye hospital and that Mr Keen would be covering in his absence. He recalls no other occasion when Mr Allen was late. Mr Keen, in his evidence, also confirms Mr Allen's hospital appointment and says that he continued with the case in his absence. He also explains that on one occasion, as a result of fresh allegations from Ms Shodeke, Mr Allen was absent from the hearing for a time in order to take instructions on them from Ms Canavan, the personnel manager at Havering. During his absence, Mr Keen continued with the case, and no delay was occasioned. As for Mr Allen's alleged ruling out of a witness, there does not appear to be any evidence relating directly to this, but Mr Keen's contemporaneous notes suggest that the witness referred to was Mr Ben Brown – not a witness whom the respondents were proposing to call - and that the decision that he could not be called by Ms Shodeke was that of the tribunal, on the basis that it would not permit the calling of witnesses who could not give relevant evidence.

[79]The allegation that Mr Allen read from two new documents in his closing submissions is not supported by evidence. Ms Shodeke's evidence simply levels an unparticularised criticism at Mr Allen that on at least two occasions he referred to "additional documents" and she also accuses him of interrupting her closing submissions to read one document. The Chairman's recollection of this is that the tribunal's policy was to allow relevant and admissible extra documents into evidence. The tribunal did not allow Ms Shodeke to refer to documents which had been ruled out of evidence. The Chairman has no recollection of Mr Allen reading from any document during Ms Shodeke's closing submissions.

[80]Having summarised the evidence in relation to this ground of appeal, we interpret Ms Shodeke's complaints to be to the effect that the Chairman's approach throughout the hearing was one of manifest bias against her and in favour of the respondents. She complains of a lack of even-handedness in the Chairman's conduct of this long hearing, and of a discourtesy, brusqueness and impatience towards her. She complains (in effect) that he applied one law for her and another for Mr Allen.

[81]If we were satisfied that these criticisms were well-founded, we consider it likely that we would conclude that Ms Shodeke had not a fair hearing and that the only safe course would be to set aside the tribunal's decisions and direct a re-rehearing. However, we are not satisfied that they are well founded. Ms Shodeke's assertions are essentially of a general nature and, so far as they are understood by the Chairman, Mr Keen and Mr Hill, who have sought to respond to them, they are disputed as unjustified. Whilst there could have been no cross-examination of the Chairman, there could have been cross-examination of the other deponents, and that might have enabled us to make concrete findings as to whether any of the criticisms was justified. However, neither side sought to cross-examine anyone, and so we are simply faced with allegations and denials on paper.

[82]It appears to us that, in those circumstances, we cannot simply choose between the rival accounts and make findings of fact about the disputed matters. That means, we consider, that Ms Shodeke's appeal on the present ground must fail, since the burden is on her to satisfy us that her complaints are justified whereas we hold that she has simply not proved them to the required standard.

[83]Nor, we add, do many of her complaints even appear likely to be well-founded. We are not here referring to her general criticism of the Chairman's allegedly hostile manner towards her. We make no presumption one way or the other about that. But the criticism of, for example, Mr Allen's alleged interruptions and attempts to exclude material out appears to us to be at least likely to be unjustified. Ms Shodeke was levelling serious allegations against Mr Allen's clients and it was not just Mr Allen's right, but his duty, to defend the case against them to the best of his ability and to raise and take all points in the course of the case which he regarded as being in his clients' interests. It is the familiar experience of anyone who has had to deal (whether as a judge or advocate) with cases presented by litigants in person that such litigants often focus on the irrelevant rather than the relevant, shroud in some obscurity the points they are making and seek to introduce new matters which have not been foreshadowed. These features of lay advocacy necessarily require the tribunal to make interventions with a view to keeping the case on some sort of a track, quite apart from the need for interventions directed simply at ascertaining what it is the litigant is trying to say. Similarly, with a view to the proper protection of their clients' interests, the opposing advocates will also quite reasonably find it necessary to intervene – or interrupt – in order to achieve similar clarification. Further, if those advocates are of the view that the litigant is endeavouring to adduce material which is irrelevant or ought otherwise to be excluded, it is not only their right but their duty to object to it. The regularity in which it is necessary for such interventions to be made will vary according to the skills of the particular litigant. Bearing in mind, however, the extraordinary manner in which Ms Shodeke gave her evidence in chief, we can readily see that there was likely to be occasion for interventions by Mr Allen, and we see no basis for any presumption that they were improper. If Ms Shodeke had, as she should have done, produced her witness statement in advance of the hearing, it is likely that the occasions for interventions from the Chairman and from Mr Allen would have been significantly fewer.

[84]We do not, however, dispose of this ground of appeal on the basis that we consider it probable that there is nothing in Ms Shodeke's complaints, and we have already explained how, in certain respects, we find ourselves simply unable to make a finding to such effect. We do so, on the basis that, for reasons given, her complaints are of a generalised nature which we hold she has not proved to the standard necessary to enable us to find that they are well-founded. We dismiss Ms Shodeke's second ground of appeal. Ground 3: did Mr Clive Goldwater fall asleep?

[85]The complaint here is that one of the lay members, Mr Goldwater, "manifestly experienced difficulty in remaining awake throughout much of the proceedings, and was observed sleeping on at least 2 occasions." It is said that this resulted in the placing in jeopardy of the due and proper consideration of the evidence and issues. The evidence relating to this complaint is as follows.

[86]Pauline Shodeke is Ms Shodeke's sister. She attended the tribunal on two days. In paragraph 7 of her affidavit of 24 May 2000 she deposed that:

"7. On one of the days I attended, a lot of time was spent discussing a previous decision made by another Chairman at an earlier directions hearing, and these discussions involved a lot of what I would call legalese. These discussions resumed after lunch, when I noticed that the male panel member [Mr Goldwater] had his eyes closed and his head low. I wrote a note to Mr Subu, another observer, asking whether Mr Subu thought the panel member was asleep or not. Mr Subu agreed that this was the case. Mr Subu was later to tell me that he had also observed the same panel member sleeping on other occasions."

[87]John Vogler attended the hearing on the afternoons of 5 and 24 November 1999. He said in paragraph 2 of his affidavit of 24 May 2000:

"2. On the first occasion the Tribunal member on the right hand of the Chairman [Mr Goldwater] spent most of the time with his eyes closed, and gave the impression of being asleep. On the second occasion, he also had his eyes closed for a considerable amount of the time."

[88]There is no evidence from Ms Shodeke that she ever noticed that Mr Goldwater was either asleep or apparently asleep.

[89]In his letter of 11 July 2000, the Chairman said of Mr Vogler's allegations:

"I cannot say whether Mr Goldwater had his eyes shut on [either] occasion, but I do not believe he was asleep. I have asked him and he said that he does shut his eyes on occasion, but having checked appears to have a note of the afternoon proceedings and does not believe he lost his attention. Mr Goldwater never gave me the impression that he had not followed the evidence at any time."

The Chairman said he found it difficult to comment on events alleged to have happened on the two unspecified occasions to which Pauline Shodeke referred. His response suggests that Mr Goldwater made notes of the afternoon proceedings to which Mr Vogler referred, but no request was made by any party for their production.

[90]Mr Goldwater's response to the allegations is in a letter of 10 November 2003. He does not deal expressly with the "eyes shut" allegation, but we interpret what he says as endorsing what the Chairman had said on the subject in his letter of 11 July 2000.

[91]Mr Hill's evidence on the point is that:

"… The lay member concerned had a mannerism whereby he sometimes closed his eyes whilst listening. I found him to be alert and knowledgeable on the detail of what was presented. I did not observe him to be asleep, indeed this was not raised as an issue by Ms Shodeke at the time."

[92]Mr Keen responded to the allegation by referring to the Chairman's notes of 11 July 2000, with which he agreed. He points to various somewhat unsatisfactory features of Pauline Shodeke's evidence, and asserts that she cannot be considered "an impartial knowing observer of the events during the tribunal hearing." For example, one of her allegations is that Mr Allen was "afforded four times as long as [Ms Shodeke]" in his closing submissions. We have referred earlier to the Chairman's record of the respective lengths of the closing submissions, namely that Ms Shodeke's closing speech lasted 71 minutes longer than Mr Allen's.

[93]This ground of appeal took us to the decision of the Court of Appeal in Stansbury v. Datapulse PLC & Another

[2003] EWCA Civ 1951

. The appeal was against an order of this appeal tribunal dismissing an appeal against a decision of an employment tribunal dismissing the appellant's unfair dismissal claim. The hearing before the employment tribunal took place on 25 May and 20 July 2001, when judgment was reserved. Following the dismissal of his application, the appellant sought a review of the decision alleging (inter alia) that one member of the tribunal fell asleep during the hearing on 25 May 2001 and that on 20 July 2001 there was an extremely strong odour of alcohol on his breath. The Chairman refused the application. The appellant then appealed to this appeal tribunal, which sought the Chairman's views on the allegations. The Chairman said he was unaware that the member had fallen asleep, and that at no time had the allegation been drawn to his attention. He admitted that during the hearings he had smelt alcohol on the breath of one lay member, Mr Eynon, but said he had no reason to think this impaired his ability to participate properly in the proceedings. Again, at no time did anyone mention the point to him. Mr Eynon responded to the criticisms by saying that he had never fallen asleep during a hearing, although he may on occasion have closed eyes in order to concentrate. He disputed "the allegations of smelling of alcohol" but did not deny taking alcohol. Mrs Kavanagh, counsel for Mr Stansbury before the employment tribunal, gave evidence that she did not observe Mr Eynon falling asleep, but said his behaviour "was rather odd, and was such as to give the impression that he may have been drunk." By contrast, Mrs Kavanagh had, some months before that evidence, provided an Opinion to Mr Stansbury's insurers in which she had referred to "one of the tribunal members who was plainly drunk and not following the proceedings." There was also evidence from Mr Waddington, a Datapulse employee, who saw Mr Eynon "momentarily closing his eyes on one occasion, concentrating, Mr Waddington thought, rather than sleeping."

[94]Peter Gibson LJ, in giving the leading judgment of the Court of Appeal, said that it was always desirable that a point such as was raised in that case – and now in this one – should be raised at the time: that is, during the hearing whose conduct is criticised. But he said that the fact that it is not so raised does not prevent its being later raised on appeal. He said, in paragraph 24, that "It is appropriate to consider a failure to raise an objection before the ET against the test of reasonableness in all the circumstances of the case."

[95]Peter Gibson LJ explained that, if this appeal tribunal does entertain such a ground of appeal, it may have to assume the role of judges of fact in relation to the complaint: it has to make any necessary findings as to what actually happened during the hearing. He agreed with Lindsay J's approach in Facey v. Midas Retail Security

[2000] IRLR 813

in relation to the way in which this tribunal has to grapple with disputed allegations of misconduct, bias or procedural irregularity. He said that the point raised in the appeal went to the fairness of the hearing before the employment tribunal and that: "26 … A hearing by the ET may be unfair by reason of one member not being able, through the consumption of alcohol or falling asleep, to give the hearing his full attention. If the hearing was unfair because of the misbehaviour of a member of the ET, the decision is not saved from being unfair by the fact that the decision was unanimous and reserved or by the fact that, on the findings made by the ET at the flawed hearing, there could be no successful appeal. If there was an unfair hearing such that there had to be a retrial by a differently constituted ET, then at the retrial the new ET could make quite different findings. 27. … In Whitehart v. Raymond Thomson Ltd , an unreported decision on 11 th September 1984 of the EAT, Popplewell J presiding, this was said by the EAT in relation to a case where a member of the tribunal had dozed off once, if not twice: 'It is axiomatic that all members of a tribunal must hear all the evidence and to have a trial in which one member of the tribunal is asleep even for a short part of the time, cannot be categorised as a proper trial. Justice does not appear to have been done.' That is cited in Red Bank Bank Manufacturing Co. Limited v. Meadows

[1992] ICR 204

at page 209. No less strong a comment might be made of an ET member who has fallen asleep and is known to have consumed alcohol. That might well have impaired the member's ability to attend to the evidence and submissions before the Tribunal. 28. The EAT in Kudrath v. The Ministry of Defence , 26 April 1999, unreported, were, in my judgment, right to say that it was the duty of the Tribunal to be alert during the whole of the hearing, and to appear to be so. It seems to me that an analogy with cases of bias is appropriate. In cases of bias the appearance of bias, as observed through the eyes and ears of a fair-minded and informed observer, will vitiate a hearing: see, for example, Porter v. Magill

[2002] AC 357

at 394 per Lord Hope. A member of a tribunal who does not appear to be alert to what is being said in the course of the hearing may cause the hearing to be held to be unfair, because the hearing should be by a tribunal each member of which is concentrating on the case before him or her. That is the position, as I see it, under English law, quite apart from the European Convention on Human Rights. It is reinforced by Article 6 (1) of the Convention. …".

[96]This appeal tribunal had decided the Stansbury appeal on the assumptions , but without deciding, that Mr Eynon had consumed alcohol and fallen asleep. The Court of Appeal held that, on those assumptions, the appeal tribunal had been wrong to hold that the hearing was nevertheless fair. Peter Gibson LJ then said that the Court of Appeal itself could and should decide the factual question which the appeal tribunal should have decided, namely whether either or both of the allegations against Mr Eynon were established. The Court found that there was no doubt that he had consumed alcohol. It said there was less corroboration of the allegation that he had fallen asleep. There was evidence from Mr Waddington that he had closed his eyes, although Mr Waddington thought that he had been concentrating rather than sleeping. Mr Eynon's own evidence about the closing of his eyes was to like effect. Mr Stansbury was clear in his evidence that Mr Eynon had fallen asleep, evidence to which Peter Gibson LJ said plausibility was lent by the fact of the consumption of alcohol; and the Lord Justice also referred to Mrs Kavanagh's evidence about Mr Eynon's odd behaviour, and to the fact that she had said he was not following the proceedings. After his brief review of the evidence, Peter Gibson LJ said that:

"32. … In my judgment therefore the allegation that there had been such misbehaviour on the part of Mr Eynon has been made out on a balance of probabilities. 33. … In my judgment, a hearing by a tribunal which includes a member who has been drinking alcohol to the extent that he appeared to fall asleep and not to be concentrating on the case does not give the appearance of a fair hearing to which every party is entitled. Public confidence, as Mr Kibling pointed out, in the administration of justice would be damaged were we to take the view that such behaviour by a member of the ET did not matter. In my judgment we should say firmly that the conduct of Mr Eynon at the hearing was wholly inappropriate for any member of a tribunal. 34. In the result, Mr Stansbury not having had the fair hearing to which he was entitled, this appeal should be allowed …"

[97]We have referred to the facts of that case in some detail because they were, we consider on any basis significantly more extreme than those alleged in this one. They concerned a member who had indisputably been drinking, whose behaviour was odd and who gave the appearance of falling asleep and of not following the proceedings. The hearing in question lasted only two days, criticism was levelled at Mr Eynon's behaviour on both of them, and the ultimate result was that the decision was set aside and a re-trial ordered. The principle of the decision was that the hearing did not give the appearance of having been the fair one to which the litigants were entitled.

[98]The basic principle of that decision is clear, namely that justice must be done and be seen to be done; and that the justice purportedly administered by a manifestly inattentive tribunal may deserve the criticism that it was neither justice nor seen to be justice. The case in question was a two-day case, with the evidence justifying the conclusion that Mr Eynon had misbehaved on both days. The present case was a 28-day case. Does Stansbury establish that proof, for example, that one of the tribunal members was asleep for, say, three minutes on each of two of the 28 days is sufficient to entitle the losing party to have the decision set aside and a re-trial ordered? If so, it would appear to establish a principle whose consequences could in some cases be devastating, particularly if, for example, the moments of proved inattention were exclusively during parts of the case which could not rationally be regarded as having any impact one way or the other on the ultimate decision: for example, during the unnecessarily extended reading by counsel from a demonstrably irrelevant law report. In such an example, we question whether the informed and fair-minded observer would regard the member's brief inattention as inevitably fatal to the quality of the decision. As it seems to us, it will always be a question of fact in all the circumstances of the case whether the nature and extent of the proved inattention will be sufficient to require the conclusion that the hearing was an unfair one whose decision cannot be allowed to stand.

[99]We do not propose, however, to consider this point further since in the circumstances of this case we are not satisfied that Mr Goldwater was in fact asleep. Pauline Shodeke does not assert he was, merely that on one occasion his eyes were closed and head low. She does not say for how long his eyes were closed. We have no evidence from Mr Subu, to whom she refers, and place no reliance on his alleged observations. Mr Vogler refers to two occasions when he was at the hearing. He says that on the first Mr Goldwater "spent most of the time with his eyes closed, and gave the impression of being asleep." He does not say what length of time he is referring to. He says that on the second occasion "he also had his eyes closed for a considerable period of time." Again, he does not say what that period amounted to. By contrast, we understand Mr Goldwater's position to be that, whilst he admits he would close his eyes, he in fact remained awake and did not lose attention. Mr Hill (who was present throughout the hearing, save only for an hour) referred to Mr Goldwater's habit of closing his eyes whilst listening as a "mannerism", whilst also making clear that he assessed him as being alert at all times. Mr Keen does not suggest otherwise. Nor has Ms Shodeke suggested that Mr Goldwater was ever asleep or apparently asleep. That is an omission of some importance. She was present throughout the hearing and cannot have failed to notice if he had apparently fallen asleep, or was displaying an apparent lack of attention, yet she made no mention of it at the time, and made no mention of it in her own evidence. Nor did either Mr Allen or Ms Robertson make any point during the hearing about Mr Goldwater's alleged inattention. In Kudrath v. The Ministry of Defence , 26 April 1999, a decision of this appeal tribunal, Morison J said that "when judging whether there has been an appearance of bias or impropriety, whether or not a contemporaneous complaint was made will be relevant."

[100]Once again, we consider that the burden is on Ms Shodeke to satisfy us that the hearing was, on this ground, unfair or was not seen to be fair. On the evidence we have summarised, and in the circumstances we have mentioned, we are not prepared to find that Mr Goldwater was asleep during the hearing. Ms Shodeke has, therefore, failed to satisfy us that he was guilty of any misbehaviour entitling her to complain that she the hearing was not fair, or did not give the appearance of being fair. We dismiss this ground of appeal. Ground 4: was the tribunal biased?

[101]The complaint here is that Ms Shodeke did not have her case heard by an independent and impartial tribunal and so was deprived of her right under article 6 (1) of the European Convention on Human Rights . The hearing took place in 1999, before the Human Rights Act 1998 came into force, and so strictly article 6 (1) is not directly in point. But if Ms Shodeke's complaints under this head are well-founded, we have no doubt that she would anyway be entitled to a re-hearing. She relies on nine sub-heads of complaint, certain of which she also relies upon for the purposes of her appeal on Ground 2. Again, we will consider the evidence relating to each complaint first and then give our conclusion on this ground of appeal.

[102](i) Ms Shodeke complains she had no fair opportunity to put her case. Mr Allen was allowed to ask questions of her in advance of her cross-examination and "on occasions" was allowed to break in and say to her that he did not believe she was giving the whole story, without any reaction from the Chairman.

[103]This is a repetition of ground 2, point (i), with the embellishment that "the whole story" allegation is now said as having happened "on occasions" rather than on one occasion. We have already summarised the evidence relating to this.

[104](ii) Next she complains that the Chairman never stopped Mr Allen from harassing her, often inviting his comment. On one occasion Mr Allen is alleged to have said to her that she knew far more about tribunals than she was letting on, to which the Chairman nodded in apparent agreement. Ms Shodeke says she constantly had to remind the Chairman that she was not a trained advocate, which resulted in scornful glances from him and Mr Allen.

[105]This too is much the same as Ms Shodeke has said before. The Chairman's response in his letter of 11 July 2000 is that he does not believe that Mr Allen ever harassed Ms Shodeke, although he says that on one occasion he warned him that he was getting close. He can only recall inviting comments from Mr Allen on legal issues, in particular the question of post-employment discrimination. He does recall Mr Allen suggesting to Ms Shodeke that she knew something about tribunals, but he would not have nodded at the suggestion since he did not know one way or the other. He was well aware that she was not a trained advocate, and a reminder from her about it would not have been met with a scornful glance. He saw no evidence of any inhibition on Ms Shodeke speaking her mind during the case, and says that she was in some respects very capable of conducting her own case.

[106](iii) Ms Shodeke complains that, instead of stopping Mr Allen when he interrupted her, the Chairman seemed in awe of Mr Allen and often deferred to him.

[107]The Chairman, in his letter of 11 July 2000, denies he was in awe of Mr Allen or deferred to him and says he believes he had control of the case throughout. He says that he does not believe that Mr Allen's interruptions were improper and so would not have made adverse comments about them.

[108](iv) Next Ms Shodeke says that during much of her evidence the Chairman disputed the respondents' motives. She gives, as examples, Mr Hill's motives in sending her a memo headed "Tosh" relating to the M complaint and in keeping her in a meeting for a few hours on her return from sick leave. She explains this further in her affidavit of 30 July 2003, in which she says in paragraph 4:

"The chairman did this because he did not understand the concept of indirect racism, and was biased in favour of the respondents from day one. Neither would the Chairman allow me to refer to the Stephen Lawrence report with regards a definition of indirect racism."

[109]This appears to reflect some confusion on Ms Shodeke's part. First, we cannot see why she should have been allowed to refer to the Stephen Lawrence report for a definition of "indirect racism" when(a) the relevant definition, insofar as relevant to the case before the tribunal, is to be found in the Race Relations Act 1976 , and

(b) we understand this in fact to be a mistaken reference by her to institutional racism, which was no part of her pleaded case. Secondly, the burden of her "Tosh" and "meeting" complaints appears, in effect, to be that the tribunal did not accept her case that they manifested racial discrimination against her by Mr Hill. However, the tribunal was not bound to accept her case on these matters, and they dealt with these complaints in a full and reasoned manner in paragraph 55 of their extended reasons. We will not extend a potentially interminable judgment by citing at length from paragraph 55, but they there explained that Mr Hill accepted that the "Tosh" memo was a mistake, and they found it was nothing more sinister than that. As for the meeting, they found that Mr Hill accepted that its holding was unwise, but also found that, contrary to Ms Shodeke's case, she could have left it at any time but chose not to do so. The tribunal's conclusions about the allegations against Mr Hill were that: "Of course the fact that Mr Hill has put forward a reasonable explanation for the various acts of which Ms Shodeke complains does not mean that he was not acting in a racist way. In a case like this where there is no direct evidence of racism, we must be particularly careful to look at the primary facts and draw the correct inferences. We conclude that over this particular period we would be wrong to draw any inference of racial discrimination or victimisation by Mr Hill. The reason is that first, we do not believe having heard him give evidence that Mr Hill is racist. Secondly, the explanations Mr Hill gives for his conduct are reasonable and convincing. On occasions Mr Hill got it wrong and made managerial mistakes. He may be open to criticism for that, but it does not mean that we should draw an inference of racial discrimination or victimisation." (v) Next, and related to this point, Ms Shodeke complains that the Chairman appeared not to understand the concept and nature of indirect racism, was biased in favour of the respondents from day one and refused her to refer to the definition of set out in the Stephen Lawrence inquiry.

[111]As we have explained, Ms Shodeke in fact meant to refer here to institutional racism, not indirect racism, but the former was anyway no part of her pleaded case. Nor was the latter. The Chairman's response in his letter of 14 November 2003 is that he was not biased in favour of any party from day one or at any time. He does not know how Ms Shodeke knows whether he understood the concept of indirect racism or not, but points out that in any event this was a case of alleged direct racism. He says it is possible that he refused to allow her to quote from the Stephen Lawrence report on the grounds that it was irrelevant to the issues in the case.

[112](vi) Ms Shodeke complains next that the Chairman "failed to record much of [her] evidence in the decision, particularly the evidence relating to comparators."

[113]The Chairman's response is that he recorded in a lengthy decision (it runs to 35 pages, comprising 62 paragraphs) all the facts he felt were relevant to the decision. He accepts he did not record all her evidence. He said, however, that "the facts as found do represent a large part of [her] evidence."

[114](vii) Next, Ms Shodeke repeats her allegation that the Chairman told her at one point that "representing yourself is not as easy as it looks." We have already referred to the evidence which counters that allegation.

[115](viii) Ms Shodeke complains next that the Chairman was not even-handed with regard to the production by one side to the other of witness statements. She asserts that "[she] repeatedly asked the Chairman to direct the respondents to provide [her] with copies of their witness statements. The Chairman constantly berated [her] for not following directions, but never berated the respondents for not giving [her] their witness statements. On 1 November [she] requested a formal direction that she should be provided with the witness statements. Ms Robertson's excuse for not meeting the deadline was that she had Mr Hill's completed statement but she was concerned it may confuse [her]."

[116]The Chairman's response is that he has no recollection of continually berating Ms Shodeke for not following directions. He explains that his understanding was that the respondents had been ready to exchange witness statements in due time, but Ms Shodeke had not prepared hers and so was unable to exchange. Because she had not prepared a witness statement in advance of the hearing, she was permitted to produce it in instalments as the hearing proceeded. In those circumstances, the Chairman allowed the respondents to produce their witness statements sequentially. He has no recollection of Ms Robertson making the statement attributed to her. He says his concern was to ensure that Ms Shodeke had the statements in sufficient time to prepare her cross-examination and he believes she did.

[117]Mr Keen also deals with this point in his evidence. He says that the real point was that Ms Shodeke's witness statement was only produced during the hearing, and that (as we understand his evidence) the instalments made numerous irrelevant or new allegations which fell outside the pleaded case and which could not be anticipated. He says that, had there been an exchange at any early stage, the respondents could have dealt with the new, or unexpected, points in further statements before the case had started. But, as we follow it, the respondents' preferred choice, which the Chairman endorsed, was to await the final production of Ms Shodeke's full witness statement and then provide their evidence in answer.

[118]The tribunal's extended reasons deal in detail with the course of the hearing, and paragraph 27 deals with the matter of witness statements. It reads:

"27. On 1 November 1999 when the hearing of these cases continued Ms Shodeke asked for a formal direction that the Respondents serve their witness statements on her at the beginning of the following day's hearing. Ms Robertson said that she was prepared to serve Mr Hill's statement a the end of Ms Shodeke's evidence, but preferably not before. Mr Allen QC said that he was not ready to disclose his witness statements because of the raft of further allegations in Ms Shodeke's evidence upon which he needed to take instructions. Mr Allen QC said that he was reluctant to serve incomplete statements but offered that best endeavours would be made to serve all statements by the end of Friday 5 November 1999. In view of Ms Robertson's offer, we directed that Mr Hill's witness statement be served on the other parties at the close of Ms Shodeke's evidence. In the case of Mr Allen QC's clients, we made no direction but noted his offer and informed Ms Shodeke that this matter could be revisited if necessary. Cross-examination of Ms Shodeke recommenced just after 11.30am and continued on 2, 3, 4 and 5 November 1999. At the end of the sitting on 5 November 1999, the statements of Mr Hill and the other witnesses for the Respondents were duly served."

[119](ix) The final allegation relied upon in support of this ground of appeal is that "On one occasion the Chairman and Mrs B. Fraser, one of the lay members, had a long discussion which, in summary, queried whether [Ms Shodeke] was suffering from a split personality, or had been abused."

[120]This allegation is supported by paragraph 7 of Ms Shodeke's affidavit of 309 July 2003, in which she expands the allegation to allege that the discussion by the two members of the tribunal was with Ms Robertson. She there says that the matter was discussed in front of her, as if she were not present. She deposes that "There was no reason for this statement but the fact they had decided that my insistence in referring to the M case evidence was clearly an obsession as opposed to identifying to the panel comparators of black staff being treated unfavourably in comparison to white staff." We comment that in paragraph 55 of their extended reasons the tribunal said that "Ms Shodeke has been described as having an obsession over the M case and we do not think this is too strong a term to use."

[121]The Chairman's response to this, in his letter of 14 November 2003, is that he has no recollection of such a discussion and considers it highly unlikely he would have had such a discussion with a lay member and Ms Robertson at any time. He added that it would anyway be very unusual for Mrs Fraser to join in any discussion he was having with counsel. Mrs Fraser is rather more positive, saying in her letter of 19 November 2003 that Ms Shodeke's allegation that there was any such discussion is simply untrue, and there was no such conversation. She adds "Furthermore, as Ms Robertson was Counsel for the Respondents, it would not have been possible for such a conversation to take place in an ET." We do not understand that statement, although do not regard its obscurity as detracting from Mrs Fraser's previous positive denial. Mr Hill deals with the point in paragraph 22 of his affirmation, saying:

"22. I have no recollection of the Chairman or lay members discussing [Ms Shodeke] having a 'split personality' or the issue of abuse. Having looked at the other respondents' notes of evidence, it is possible that Ms Shodeke is mixing up part of Christine Paley's evidence. This was when Ms Paley was being cross-examined by my counsel (on 28 November 1999 probably at 10.45/11 am, and see the second side of the other respondents notes of evidence for the day)."

Mr Keen's evidence is also that he has no recollection of this alleged incident at all.

[122]Coming now to our conclusions on this ground of appeal, we regard it as essentially in the nature of a re-run of ground 2, which we have already dismissed. We are not satisfied that Ms Shodeke was not given a fair opportunity to put her case. Ms Shodeke's repeated criticism of the Chairman's conduct towards her, and her like criticism of Mr Allen, impress upon us that she has a genuine subjective perception that she was treated unfairly throughout this hearing. But her complaints are challenged by the Chairman, Mr Hill and Mr Keen and we have already explained why, in the state of the conflicting written allegations before us, we are unable to make findings that Ms Shodeke's complaints under these various heads are justified. This is not to say that she did not have to suffer interruptions from Mr Allen and that the Chairman did not restrain them: but we have explained why it may well have been perfectly proper, in his clients' interests, for Mr Allen to make them, and we are unable to make any finding that it was not. We take the view that there is nothing in her complaints about the tribunal's treatment of the "Tosh" and "meeting" complaints. These related to issues in the case, the tribunal's task was to consider and make decisions on them and the tribunal did just that. The complaint that Ms Shodeke was not allowed to refer to the Stephen Lawrence report appears to be groundless, since she sought to do so in support of an unpleaded case, which the Chairman rightly considered she was not entitled to do. We are not satisfied that the Chairman's treatment of the exchange of witness statements was unfair. Ms Shodeke had failed and refused to co-operate in the exchange of witness statements in advance of the hearing – because she had apparently done nothing towards the preparation of such statements – and was allowed to produce her statement in instalments during the hearing. Her evidence apparently continued to raise new matters, and so it is not surprising that the respondents wanted to await the conclusion of her evidence before serving their own witness statements. It may be that the Chairman could, or might, have directed the service of the respondents' statements earlier than they were in fact served. But if any criticism is to be directed at him in this respect (and we do not do so), we do not regard as undermining the fairness of the case. The Chairman's concern was to ensure that Ms Shodeke had sufficient time from their service to prepare her cross-examination and he says he was satisfied that she did. Giving the conflicting accounts relating to the alleged "split personality" incident we find ourselves wholly unable to be satisfied it happened at all, one whose happening we add would appear to be improbable. Overall, we conclude that there is no substance in this ground of appeal either, and we dismiss it. Ground 5: the tribunal failed to give consideration to the difficulties Ms Shodeke was under in presenting her case

[123]This ground is expanded in the full particulars of Ms Shodeke's grounds of appeal as follows:

"The tribunal overlooked the fact that – by obliging [Ms Shodeke] to continue with the proceedings at a time when was manifestly ill-equipped to handle the stresses and strains engendered thereby – the tribunal created and perpetuated the conditions which caused [Ms Shodeke's] powers of recall to suffer and then compounded the resultant difficulties by allowing the symptoms of trauma and stress which [Ms Shodeke] was suffering to colour the tribunal's perception of [her] credibility, and the weight to accorded to her evidence."

[124]We do not know what to make of this ground. Nor, it seems, did Mr Panton whose skeleton argument did no more than repeat it verbatim. The thrust of his submission in his oral argument was that Ms Shodeke was in too much of a state of stress to give her evidence properly with the result that the tribunal's conclusions based on it were unfair. The argument appears to be, in effect, another complaint than none of Ms Shodeke's four adjournment applications succeeded as a result of which she was materially disadvantaged in presenting a case which anyway suffered from an inexcusable lack of preparation.

[125]We are not satisfied that there is any substance in this ground. We have already held that the tribunal's refusal to adjourn the case on 11 October cannot be criticised. In particular, we have found that the adjournment application was not advanced on the basis of Ms Shodeke's alleged ill-health, and was unsupported by any medical evidence. Having refused that application, the tribunal took into account Ms Shodeke's lack of preparedness (both in relation to her lack of a witness statement and the recent production to her of the bundle of documents) and adjourned the case to 13 October. On 13 October, Mr Allen indicated that he was concerned that she was stressed and tired and possibly not in a fit state to proceed and Ms Shodeke also asked for an adjournment to the following day. The tribunal agreed to that, all which it explains in paragraph 22 of its reasons.

[126]On the following day, 14 October, all parties sought an adjournment: Havering and Ms Shodeke were negotiating a settlement, and in the circumstances explained in paragraph 24 of their reasons the tribunal adjourned the case until 19 October, pointing out that all parties must be ready to proceed at 10 am on that day. No settlement was achieved and the case continued on 19 October, although only following the late arrival of Ms Shodeke. The tribunal's view, as expressed in the Chairman's letter of 11 July 2000, is that "from there on Ms Shodeke was in a fit state to proceed." At no stage afterwards did Ms Shodeke seek an adjournment on the ground that she was not fit to proceed, and she never produced the note of 7 October 1999 to the tribunal, or any other medical certificate as to her state of health.

[127]Ms Shodeke therefore obtained an extra week's time to prepare herself. We recognise that she may well have regarded that as insufficient time within which to ready herself for the hearing, but the tribunal had decided on 11 October that the hearing should proceed, and a week was, in the circumstances, a considerable bonus. Ms Shodeke started giving her evidence on 19 October and the hearing thereafter continued (with gaps, including(i) from 22 October to 1 November,

(ii) from 12 November to 19 November, and

(iii) from 19 November to 24 November) until it finally concluded on 3 December 1999.

[128]We have no doubt that the hearing imposed a considerable strain on Ms Shodeke. We are fully sensitive to the fact that litigation imposes an enormous strain on litigants, even when they have the good fortune to be represented. We are equally sensitive to the fact that litigants who have the misfortune to have to represent themselves suffer even greater strain. To the extent that Ms Shodeke was under strain, her position was not materially different from that of most litigants in person. It is a price which such litigants have to pay. So far, however, as we can assess it she acquitted herself with at least reasonable competence; and the fact that she was not able to conduct it with greater competence is not a ground for directing a re-hearing. The Chairman's opinion in his letter of 11 July 2000 was that he "saw no evidence of any inhibition on Ms Shodeke speaking her mind at any time during the trial. [She] was in some respects very capable of conducting her own case."

[129]We find ourselves unable to find that there is any objective justification in this ground of appeal, or at any rate we find that there is nothing in it that can be said to justify a conclusion that the stress to which Ms Shodeke was no doubt subject meant that the tribunal's conclusions on the evidence were inherently unsound such as to entitle her to have their decision set aside. We dismiss this ground of appeal. Ground 6: by reason of all the factors raised in grounds 1 to 5 of the appeal, the tribunal failed to give enough weight to Ms Shodeke's evidence or to draw appropriate inferences from the primary findings of fact

[130]We regard as close to absurd the attempt to build a causal connection between the facts relied upon in support of the first five grounds of appeal and the particular criticism raised in ground 6. Ground 1 is a free-standing adjournment point, and ground 3 is another free-standing point based on the allegation that Mr Goldwater had nodded off from time to time. Grounds 2 and 4 are to the effect that Ms Shodeke did not obtain a fair hearing, and ground 5 is to much the same effect. We have dismissed all five grounds. Ground 6 seems to be an attempt to re-introduce them all by the back door and to use them as a base for the proposition that the decision was overall thoroughly unfair to Ms Shodeke. We will not take time in referring again to any of the grounds 1 to 5 factors, on which we have given our decision.

[131]Ground 6 does not stop, however, at making this unpromising point. The particulars under it go on to identify three further matters upon which reliance is placed. It is said the tribunal(a) failed to give due weight to the fact that two members of staff (including Ms Shodeke) subject to relevant sanctions were black, something that might not be explicable on the basis of coincidence;

(b) failed to consider independent reports "levelling serious criticism at – not to mention condemning instances of racial insensitivity on the part of – at least one of the respondents"; and

(c) failed to consider and take into account the documented evidence of a general climate of racism and racial insensitivity in Havering which formed a backdrop to the relevant events.

[132]We are not satisfied that there is any substance in these criticisms of the tribunal's decision. In paragraph 19 of their extended reasons, the tribunal identified, in eight sub-paragraphs, what it regarded as the issues it had to decide. There appears to be no challenge to that analysis, and the tribunal set out its reasoned decision on each of the issues in paragraphs 53 to 61 (and we comment that if the other unidentified black member of staff to whom Ms Shodeke refers in her particulars under ground 6 is Ms Blaize, the tribunal refer to her in paragraph 53). The reasons given by the tribunal in dealing with the issues are full and careful. The tribunal were, of course, required to consider all the evidence relevant to those issues and to make appropriate findings of fact. They were not, however, required to set out all their findings of fact, or to identify specifically every piece of evidence that they considered; and they cannot be criticised for not identifying specifically particular matters which Ms Shodeke claims were material to the forming of conclusions on the issues before them. The most that can be said of the points made by Ms Shodeke under this ground of her appeal is that the tribunal did not refer specifically to the particular matters she identifies. There is, however, in our view no reason to doubt that the tribunal considered all the relevant evidence in coming to its conclusion. Having considered all the primary facts, the tribunal declined to draw any inference of race discrimination against Ms Shodeke. In our view, its reasons for rejecting her claims were fully and adequately explained and we can detect no error of law in the tribunal's journey to their ultimate decisions. Ground 7: this is to much the same effect as ground 6

[133]The particulars of ground 7 are as follows:

"Owing to the factors mentioned in grounds 1 to 6, the tribunal was unduly dismissive of Ms Shodeke's evidence, and therefore did not have sufficient regard to the possibility that all or part of the treatment meted out to [her] by the respondents might amount to racial discrimination, or in particular victimisation, within the meaning of section 1- 4 of the Race Relations Act 1976 ."

[134]We consider we have covered this sufficiently by our reasons in response to ground 6. We are not satisfied that there is any basis for criticism that the tribunal was "unduly dismissive" of Ms Shodeke's evidence, and the tribunal could not have failed to be aware that they had to assess, in the light of all the evidence, whether the matters of which she complained were referable to race discrimination and victimisation. The tribunal found that they were not. Ground 8: the tribunal failed to apply section 71 of the Race Relations Act 1976 to the facts

[135]Section 71 imposed a duty on Havering in carrying out its functions to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. Ms Shodeke's complaints did not include complaints of breaches by Havering of its section 71 obligations, and proof that it had breached them would not, by itself, have entitled her to succeed on the complaints she was making. There is nothing in this ground of appeal and we dismiss it. Ground 9: alleged failure of the tribunal to "ventilate" the arguments, and in particular to give "full and mature" consideration to Ms Shodeke's arguments

[136]This ground is elaborated by a complaint that the tribunal made no reference in their extended reasons to Ms Shodeke's "comparators-as-witness" and virtually no reference to her submissions. Ms Shodeke adds four heads of particulars to this ground of appeal. First, that the Chairman refused to allow her to refer to certain "comparative material", alleged to be in the nature of "clear evidence that [she] had been treated by Mr Hill less favourably than her white colleagues." Mr Panton did not identify what this material was. Second, that the Chairman refused to allow her to give certain evidence. It appears that this relates to a complaint which she also raised under ground 2, with which we have dealt. Third, that during her cross-examination the Chairman and Mr Allen "dismissed as coincidence" a particular matter. Whether or not Mr Allen may have done, or purported to do, any such dismissing is irrelevant, because he was not trying the case. The Chairman's response is that he "would not have dismissed any inference during the hearing as unfounded." This seems to us to be probable, whatever impression Ms Shodeke may have formed at the time. It is not usual for tribunals to pass judgment on particular issues during the currency of the hearing, and we have no reason to accept that the Chairman in this case had a different practice. Fourth, that Ms Shodeke's cross-examination of Simon Froud illustrated another instance in which a white male member of staff was treated more favourably than her, whereas the Chairman is alleged to have said that there was nothing unusual in what had happened in this particular instance. The Chairman's response is that he does not know in what way he is supposed to have indicated such views, and that the tribunal's views are to be found in their extended reasons. Mr Keen responds to this point by saying that he does not understand it.

[137]In our view this ground of appeal is nothing more than another complaint that the tribunal did not make findings in Ms Shodeke's favour. They were not bound to do so, and did not do so. This ground of appeal does not satisfy us that the tribunal failed to consider the matters they ought to have considered, or that they arrived at an irrational or perverse conclusion. We dismiss ground 9. Ground 10: the tribunal erred in law in concluding that the real reason for Ms Shodeke's dismissal was redundancy

[138]Under this ground, Ms Shodeke alleges that, in arriving at their decision, the tribunal failed to address or consider several matters. We do not propose to refer to them, save to mention that points d (i), (ii) and (e) were new points, which Ms Shodeke was not entitled to raise. The tribunal made clear findings on this issue in paragraph 60 of its extended reasons, and Ms Shodeke's attempt to undermine those findings is nothing more than an attempt before us to re-argue the facts. We dismiss ground 10. Ground 11: the appeal against the costs order against Ms Shodeke

[139]The complaint here is against the costs order that the tribunal made against Ms Shodeke on 19 October 1999. We have already explained that the hearing had been adjourned on 14 October until 19 October, and have noted that the tribunal pointed out that the parties must be ready to proceed promptly at 10 am on 19 October.

[140]Ms Shodeke was not so ready. She was an hour late, which provoked Mr Allen (supported by Ms Robertson) into making the dismissal application to which we have referred. The tribunal did not accede to that application, but did accede to Mr Allen's application (also supported by Ms Robertson) for costs thrown away by the delay, in reliance upon rule 12 (1) of the Employment Tribunals Rules of Procedure 1993 . The tribunal ruled as follows on this matter:

"25. Mr Allen QC said that Ms Shodeke had used negotiations to settle as a way of buying time and that it was frivolous and vexatious of Ms Shodeke to turn up an hour late, particularly when the Tribunal had indicated that the case should start promptly at 10 am. Ms Robertson added that the cases had started in 1997 and that Ms Shodeke had had years to prepare for this hearing. Ms Shodeke apologised for being later and said that she had not acted in bad faith when seeking an adjournment and that she was late that day because she was at home printing off two lengthy documents. Ms Shodeke added that she had taken legal advice the day before and had decided thereupon not to accept the terms of settlement offered. We said that we took a serious view of the delays in these cases and in particular the 1½ hours lost that morning. We added that we were not then in a position to decide whether the adjournment the previous week was sought by Ms Shodeke in bad faith or not but we considered that it would be too harsh a penalty to strike out cases listed for 34 days when Ms Shodeke was one hour late on one day. We informed Ms Shodeke that she must take serious note of our request that she must be prompt each and every day in the future and it was likely that the Tribunal would not accept excuses for late attendances in the future. We concluded by saying that, although the application to strike out failed, we would make an order for costs in respect of 1½ hours lost and we would hear representations as to the amount at a later date."

The tribunal later assessed the costs payable to Ms Robertson's client at £150 and those payable to Mr Allen's clients at £300.

[141]It is said there was no evidence pointing to unreasonableness on the part of Ms Shodeke sufficient to justify the costs order. If that submission were right, we would agree that the order ought not to have been made. We are satisfied that it could only properly be made if the tribunal was justifiably satisfied that Ms Shodeke had acted unreasonably in being an hour late and so causing a wasting of costs.

[142]The tribunal plainly were so satisfied, and we can see no basis on which it can be said that they were not entitled to be so satisfied. Ms Shodeke's evidence is that she was late "by reason of the breakdown of my computer printer." Had that occurred on the morning of 19 October, resulting in a delay in the printing of documents needed for the day's hearing, that might perhaps have raised a question as to whether the tribunal could properly have found that her lateness was unreasonable. But the Chairman's notes are that the problems with the printer occurred not on 19 October 1999, but on the previous day, and his observations in his letter of 11 July 2000 was that this was not a proper excuse for her lateness on 19 October, for which it appears no explanation was offered. In our view, the tribunal was entitled in these circumstances to find that Ms Shodeke's late arrival on 19 October was unreasonable conduct on her part, and it follows that we consider they were entitled to conclude that it was a proper case in which to make a costs award. We are not satisfied that the making of the order was one which it was not properly within their discretion to make. We dismiss this ground of appeal as well. Overall result

[143]We dismiss Ms Shodeke's appeal.