MR M ANSAR v LLOYDS TSB BANK PLC LLOYDS TSB FINANCIAL CONSULTANTS LTD [2006] UKEAT 0152_06_1407

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0152_06_1407

Case No Appeal No. UKEAT/0152/06

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR M ANSARAPPELLANT

LLOYDS TSB BANK PLC LLOYDS TSB FINANCIAL CONSULTANTS LTDRESPONDENT

Before

Mr Justice Burton Mr John Shrigley Mr Barry Gibbs

Date 14 July 2006

[1]APPEARANCES For the Appellant MR MOHAMMED ANSAR (The Appellant in Person) For the Respondents MR JONATHAN GIDNEY (of Counsel) Instructed by: Messrs Pinsent Masons Solicitors Dashwood House 69 Old Broad Street London EC2M 1NR Summary Appeal against dismissal of claims of race discrimination and victimisation on grounds of apparent bias/judicial misconduct of ET and perversity/error of law. Appeal on both grounds dismissed. No reason why, consistent with Lodwick , such an appeal could not be disposed of by EAT, after operation, where appropriate, of paragraph 11 of EAT Practice Direction without cross-examination or full, or even preliminary, hearing. Burton J: After a hearing lasting 36 days, the Tribunal at Southampton, chaired by Mr Kolanko, on 16 February 2005, reserved judgment in respect of the claims by the Appellant, Mr Ansar, of race discrimination and victimisation: after 10 days of recorded meetings with the members, and his own time for preparation and writing of the Judgment, the Chairman delivered a 65-page reserved judgment on 27 April, dismissing the claims. That was the first hearing, and the Appellant's appeal against that judgment is Appeal 1. He was, and is, employed, as the Tribunal concluded, by Lloyds TSB Financial Consultants Ltd (the First Respondent), and, although the identity of the Respondents has remained in certain respects an issue before us, we shall, except in regard to that issue when it arises, simply refer in this judgment to "the Respondents". At the material time the Appellant, who is a British Asian, was employed as a financial planning manager at the Winchester branch. He has at all material times, and in particular throughout the hearings at the Employment Tribunal and before us, represented himself: indeed before us doing so, albeit with understandable pertinacity, yet with conspicuous ability. The Respondents have at all times been represented by Mr J Gidney of Counsel, as also before us.

[2]As will appear, the Appellant complained in the first action - which led to the first hearing and now onto Appeal 1 - lodged by an ET1 issued on 2 April 2004, of events in 1999 to 2000, and also of events in 2002 to 2004, leading up to a disciplinary hearing in April 2004. The first hearing commenced on 27 September 2004, and, after the expiry of the original 12 days fixed, was adjourned part heard, to be restarted in the event on 4 January 2005. During that intervening period, the Appellant issued a second ET1 ("the second action") on 3 December 2004: the second action was by agreement stayed on 5 January 2005 while the balance of the first hearing was concluded. A hearing in the second action on 3 August 2005 took place, when certain claims were struck out and 2 Respondents were dismissed from the proceedings. This has led to the Appellant's second appeal (Appeal 2), in respect of which we have delivered a separate, but contemporaneous, judgment.

[3]The Appellant has apparently commenced a third action against the Respondents, which is not before us, and of which we have no knowledge, but we understand it to be ongoing, as is the balance of the second action.

[4]The Grounds of Appeal in Appeals 1 and 2 are diverse, but the two appeals have been heard together before us over a period of 3½ days:

[5]In this judgment we deal with Appeal 1. The Appellant submits that the judgment dismissing his claim in the first action should be set aside on grounds of apparent bias. The Appellant submits that the test articulated by Lord Hope in Porter v Magill

[2002] 2 AC 357

at 494 para 103, has been satisfied, namely that " the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased ".

[6]Absent a very clear piece of evidence, such as, for example, a Chairman or member stating a conclusion as to the outcome of the case before having heard the evidence or submissions, this is never an easy task for an appellant to establish, but it is of course not impossible, and appeals have been won on that basis. What is required is that the Employment Appeal Tribunal must be ready to resolve any material disputed factual issues where it can (see Stansbury v Datapulse plc

[2004] IRLR 466

CA). In this appeal we have consequently studied the detailed affidavits ordered pursuant to paragraph 11 of the EAT Practice Direction, and heard cross-examination, of, on the one side, the Appellant, and, on the other, an undergraduate at Bournemouth University, Mr Thomas Doyle, who was, at the time of the first hearing, on a year's work placement with the Respondents, and was delegated to assist and sit behind Mr Gidney: and we have received and studied detailed comments from the Chairman, and a short note supportive of him from one of the lay members.

[7]Challenges based upon alleged bias and/or unfairness by a Chairman and/or Tribunal at the Employment Tribunal are still common at the Employment Appeal Tribunal and, as pointed out by Rimer J in London Borough of Hackney v Sagnia UK/EAT0600/03, 0135/04 6 October 2005, such complaints often amount " to no more than the deployment of the fallacious proposition that(i) I ought to have won;

(ii) I lost;

(iii) therefore the tribunal was biased " (para 63). There is also the very real risk, as pointed out by the Employment Appeal Tribunal in our Practice Direction (paragraph 11.6), that what is in fact firm case management by a Chairman will be seen or characterised by a party as unfairness. Every case depends upon its own facts, but it is, in any event in our experience, a rare case in which an allegation of bias or misconduct is not also supported, as here, by an alternative basis upon which it is further or in the alternative suggested that the judgment needs to be challenged. The Appellant in this case relies additionally or alternatively to his case of apparent bias upon a case that, in identified respects, the Tribunal erred in law and reached a perverse conclusion. The Appellant realistically accepts that, in the light of consistent Court of Appeal authority, most recently Yeboah v Crofton

[2002] IRLR 634

, for a perversity appeal to succeed the Appellant has a very high hurdle to surmount.

[8]The claims being resolved by the Tribunal were concisely recited in the judgment:

" 3.2 At the outset of the proceedings, the Claimant confirmed that he makes complaint of: 3.2.1 Direct racial discrimination (Section 1) and/or harassment (Section 3A). 3.2.2 Victimisation (Section 2) 3.3 The Claimant complains of the following acts of discrimination/harassment: 3.3.1 In September 1999 the Claimant was the victim of discrimination perpetrated by Ian Reeve (i) by asking him to repay a loan, and (ii) calling in a Compliance Investigation in respect of the loan. 3.3.2 In March 2000 Mr Reeve raised a Compliance concern based on an error in the working of a form filled in, in respect of a Mr Butler. 3.3.3 The sending of a memo dated 16 March 2000 (…) to Human Resources, indicating an insert in any future reference. 3.3.4 The initiation of a short term exception to the new segmentation rule which was discussed at a meeting in Vietnam in October 2002, which enabled tied advisers to have business granted as an exception to the Segmentation Rule, in respect of business with customers whose assets exceeded £250,000 (marketable assets). The Claimant did not have such business granted as an exception in respect of the cases of Speed and Payne, whereas his comparators were permitted to complete similar deals. 3.3.5 The initiation of an Immediate Focussed Adviser Review ("

IFAR") investigation against the Claimant. 3.3.6 The conduct of the IFAR investigation. 3.3.7 The triggering of further investigations flowing from the conclusions of the IFAR report (…) concluding on 27 March 2003, which culminated in the Claimant's suspension on 12 November until exonerated in April 2004 by a disciplinary panel. 3.4 The Claimant relies upon the comparators as recited in the case management directions 27 August 2004, namely white financial advisers at the Winchester Lloyds TSB Branch, the Winchester Group and those present at a meeting held in Vietnam in October 2002. The Claimant also relies upon the hypothetical white comparator. "

[9]The Tribunal then set out the Respondents' response to each of those claims, including the fact that those in 3.3.1 to 3.3.4 were presented out of time: that there were not continuing acts and that it would not be just and equitable to extend the time limit. In the event, the Tribunal dealt with all these matters substantively by dismissing the claims on their merits, and did not address the time point.

[10]The Tribunal then set out the position in relation to victimisation in paragraph 4 of the judgment:

" 4. In respect of victimisation, the Claimant bases his complaints under Section 2(1)(d) of the 1976 [Act] in respect of the following allegations made by the Claimant, namely: 4.1 In 1999 the Claimant brought a complaint against Ian Reeve to the attention of the HR Department (Reward) of the Second Respondent that Ian Reeve had racially harassed and discriminated against the Claimant in respect of a staff loan applied for and lent to the Claimant. 4.2 On 13 January 2003 the Claimant raised a grievance against staff of the Second Respondent, as set out in the Claimant's letter (…). 4.3 The Respondents contend that the above allegations raised by the Claimant were not protected matters, in particular the first allegation was not of a complaint under 1976 Act; the second allegation did not become a protect act until 10 December 2003 (the initial Stage III grievance) . 4 . The Respondents further deny that there was any substance in the allegations made by the Claimant. "

[11]The Tribunal found the facts in a lengthy paragraph 9, contained in subparagraphs, from 9.1 to 9.167. After referring to the law and the submissions, the Tribunal set out its fully reasoned conclusions in paragraphs 19 to 53 inclusive.

[12]The Tribunal's conclusions were:12.1 3.3.1(i) and (ii) that the Appellant did not suffer any less favourable treatment on grounds of race: Mr Reeve's behaviour, though wholly unreasonable towards the Appellant, was typical of his conduct towards other members of staff, male, female and across racial bounds and seniority (paragraphs 22 to 23). In particular, one of the Appellant's witnesses, Mr Stevens, who was critical of Mr Reeve, " stood by his assertions that Mr Reeve treated all staff the same " (paragraph 9.11).

12.2 3.3.2 " that Mr Reeve's actions would have been the same to any adviser, white or otherwise, who had been the subject of complaint from a senior business manager, namely an immediate referral to the adviser's line manager " and that there was no less favourable treatment suffered by the Appellant on the grounds of his race (paragraph 24 of the judgment).

12.3 3.3.3 , that as the memo to Human Resources was wholly unrelated to the Appellant's race and was a compliance requirement of the Personal Investment Authority (paragraphs 9.26 and 25), and was in any event never actioned, there was no less favourable treatment on grounds of race and no detriment (para 25). The Tribunal records (para 9.31) that from April 2000 until October 2002 " there is a gap when the Claimant acknowledges that he had no particular concern regarding any unfavourable treatment towards him ".

12.4 3.3.4 , that the refusal to grant to the Appellant an exception to the new segmentation policy (requiring tied advisers selling the bank's own products only, such as the Appellant, not to deal with, and to refer to an independent adviser from the Bank's Private Banking, clients with marketable/disposable assets in excess of £250,000) in respect of the business of Speed and Payne was not unfavourable treatment on grounds of race. Other white advisers were granted exceptions, but " other white advisers had their business rejected under this exception process ". Why was the Claimant less favourably treated than some of his white contemporaries? Our findings reveal that there was confusion and wide-scale inconsistency in respect of the implementation of the exception to the segmentation process " (paragraph 26). Further:

" We have heard evidence from Mr Lywood, who we found was a reliable witness. He did not know the Claimant at all well. We are satisfied that Mr Lywood rejected the Claimant's list as he did not believe that the 40 or so clients could possible have been the subject of valid exception at or around 1 November. This view was based upon the fact that no more than five customers had been put forward by any adviser by way of excepted business across the country. The Claimant's evidence confirmed that the list was no more than, to use Mr Gidney's expression "a wish list" of customers he would like to have accepted. Mr Lywood also rejected the list provided by the Claimant on the grounds that it did not comply with the detail he believed was required as recited earlier in our findings of fact " (paragraph 27). 12.5 3.3.5 , that the initiation of the IFAR was not unfavourable treatment on grounds of the Appellant's race, but was justified on the basis of the facts reasonably believed by the Respondents: a) "

A major thrust in the Claimant's assertions of discriminatory conduct in respect of events leading up to the IFAR was that Mrs Moody was intent on causing problems for the Claimant. The Claimant was suggesting that she was intent on making unjustified complaints against him that would result in unjustified process being initiated against him. Having heard the evidence in this matter, we reject this assertion entirely. We find no evidence to support this, in fact, quite the contrary. The Claimant ignored the advice of Mrs Moody in September 2001 regarding HIF sales for growth, and proceeded in the full knowledge that such sales were contrary to the then Product Suitability Rules " (paragraph 30). See further paragraphs 9.33 to 9.39 in relation to the Appellant carrying out HIF (High Interest Fund) sales contrary to Bank policy, and (9.39) " in evidence to the Tribunal he confirmed that he was aware at all times of the product suitability rule relating to growth and to taxpayers and that he had lied in his letter for the purposes of suitably influencing Mr Dowrick to stop the cases being unwound ". b) " We were satisfied that the concerns that prompted the initiation of an IFAR were held by a number of senior managers who had no particular involvement or regular dealings with the Claimant. We are satisfied that the initiation of the IFAR, which we record was seen as a training tool, was merited in the case of the Claimant " (paragraph 32). c) " We are satisfied that it was as a result of "sloppy" undertaking of work that raised legitimate concerns for those in Compliance and Monitoring, where the Claimant's desire to complete sales adversely affected his conduct of business rules and procedures " (paragraph 34). 12.6 3.3.6 , that " there was no evidence … to support the suggestion that Mr Gladstone, in undertaking the IFAR process, did not act in a careful and conscientious manner … no basis for contending that the conduct of this process was discriminatory in any form … the Claimant was not treated less favourably in the conduct of this process, let alone on account of his race " (paragraph 35). 12.7 3.3.7 , that the Appellant suffered no less favourable treatment by virtue of the investigations which led to his suspension, and that his suspension was wholly unrelated to his race (paragraphs 36 and 37). There was " documentation … which suggested in the case of Gould and the case of Burgess that there was evidence of deliberate falsification of assets on the part of the Claimant to avoid the segmentation rule " (paragraph 37): see, as to the client Gould, paragraphs 9.125 and 9.130 of the judgment, as to Burgess 9.131, and as to both 9.133. " The information obtained from the Claimant's office on 11 November, together with the Claimant's failure to fully explain himself at the meeting on 14 November, prompted the decision to suspend the Claimant by Mr Frier. Mr Frier had been moved from a post in the Midlands to the role of ARSM in Taunton to cover the absence of Mr Lywood. He had no knowledge or previous dealings with the Claimant. The belief of Mr Frier of wilful concealment of assets of clients was, we find, a reasonable belief in the circumstances. Mr Frier's decision to suspend the Claimant arose we find solely from such a belief. We have heard of no other evidence to suggest that white advisers in a similar situation to the Claimant would have been treated any differently to the Claimant by Mr Frier. We are satisfied that the Claimant suffered no less favourable treatment and that his suspension was wholly unrelated to his race. Our conclusion in this matter is in no way affected by the fact that Mr Rayner, at the disciplinary hearing, on 6 April 2004, acquitted the Claimant of the charges for the reasons given in our findings above ". [This last is a reference to paragraphs 9.159 and 9.160, which explain that Mr Rayner had not been supplied, for the purposes of his hearing, with the relevant Gould and Burgess documents.]

[13]As to the claims of victimisation, the Tribunal's conclusions were as follows, first with regard to protected acts : 13.1 As to 4.1 there was no such act prior to the discriminatory acts complained of in 1999 to 2000, or in 2002. The Tribunal was not satisfied (paragraph 39) that the Appellant raised a complaint regarding Mr Reeve which would have amounted to a contravention of the Act (in accordance with s2(1)(d) of the Race Relations Act 1976), did not believe that the Appellant at that stage had thought that Mr Reeve's unreasonable conduct was racially biased, and, in particular, recorded that:

" the Claimant argued before the Tribunal, in support of an extension of the time limit to make complaints, certainly in respect of matters in 1999, that he had not appreciated that he had suffered discrimination until matters 'crystallised' upon receipt of the Respondent's [Race Relations] Act questionnaire in February 2004. "

In any event, for the reasons summarised in paragraph 12 above, the Appellant did not establish discriminatory conduct at that stage. 13.2 As to 4.2 , the Tribunal concluded (paragraph 40) that there was also no relevant complaint within s2(1) in January 2003 (paragraph 40): and in any event no discriminatory treatment (paragraph 42). The specific complaints in 4.5.2 to 4.5.5 failed, both because of the absence of a relevant protected act for the above reasons, and because he suffered no less favourable treatment than other persons who had not made a protected act (paragraphs 43 to 48 of the judgment). 13.3 The Tribunal found that there was a protected act as of 10 January 2003. On that date, as appears from paragraphs 9.135 onwards of the judgment, the Appellant attended a Stage 3 Grievance Meeting, together with his union representative, and he produced, among other things, a Without Prejudice letter, which was put before the Tribunal. Paragraph 9.138 of the judgment records that:

" The Claimant, in evidence before us, confirmed that this was the first occasion that he had made an assertion of racial discrimination suffered, and indicated that, prior to this, in the previous proceedings, he had tried to argue on a business case alone. "

Further, and in any event, within a very few days thereafter he served a Race Relations Act questionnaire. The Tribunal found, however, that there was no less favourable treatment thereafter by virtue of any such protected act. With specific regard to complaint 4.5.4, the Tribunal found (paragraph 49) that there was no tampering with the Appellant's intelligence data files and, as to 4.5.5, the suspension antedated the protected act, but, in any event, " we would have been satisfied that the reasons for the suspension was the belief on the part of Mr Frier that the Claimant had wilfully withheld relevant assets in respect of clients, to avoid the segmentation process and also as a result of other believed failings. We have recorded our opinion that Mr Frier held a genuine belief on the information before him and we are satisfied that his action was unrelated to any protected act of the Claimant. We are satisfied that Mr Frier would have acted in the same manner in respect of other persons who had not made a protected act but whom he believed may have deliberately falsified clients' details " (paragraph 50).

[14]The Tribunal ends its analysis of conclusions with the following paragraph:

" 52. We should record that we found that the Claimant before us was clearly an articulate, able and intelligent person. He has through the course of this lengthy hearing mastered the requirements and procedures applied in this Tribunal. We have seen, both in his presentation and general manner before us, and from the evidence, that he is a forceful personality, who is often highly confident in his own abilities and his assessment of any particular circumstances. This confidence, we judge, has caused him to test and push the boundaries of his powers and authority as a regulated adviser, and manipulated circumstances for his own benefit. Examples are his attitude towards the HIF sales in the full knowledge of Mrs Moody's warning, his dishonest letter seeking help from Mr Dowrick in relation to the HIF sales and his preparation of a 40-client list in response to Mrs Gwynn's request for a list of clients who could properly be the subject of exception procedures, in the full knowledge that many did not meet the criteria. We consider that the Claimant's confidence has caused him on occasions to be highly assertive towards senior managers such as Mrs Gwynn and Mrs Moody when putting over his particular view point. We believe that the Claimant's personality and confidence presented challenges for his managers, such as Mrs Gwynn and Mrs Moody, when their views on occasions did not coincide with his. We are satisfied that many of the matters that we have heard relating to the Claimant in this case were escalated to higher levels within the Bank as a consequence of the Claimant's unwillingness to heed guidance and advice from his managers. These matters, we judge, were the cause of the Claimant's problems and not as a result of the Claimant's race. "

[15]We turn to the issue of apparent bias and/or unfairness. Lord Hope's principle is not in any doubt, nor is Rimer J's warning, but it is of course the application to the particular facts which is in question. The following general matters appear to us to need setting out:15.1 The establishment of the existence of apparent bias and consequent unfairness is of course a separate ground of appeal before the Employment Appeal Tribunal. It does not, however, detract from the fundamental and statutory principle underlying the Employment Appeal Tribunal, which is that appeals are limited to errors of law. As Rimer J has pointed out, to one who loses at a tribunal, even if reasons are given, and particularly if those reasons are critical of the loser, the result can appear unfair, and a concluded judgment against the loser can appear to be biased in favour of the winner. Thus clear findings of fact, reasoned conclusions, firm case management, if such they be, must not be permitted to be challenged on any basis other than the legally permitted routes of perversity, lack of reasoning and abuse of discretion.

15.2 Absent a specific allegation of obvious unfairness or closed mind, such a case can only be built up, as it is sought to be in this case, by reference to individual strands of evidence, from inferences, from nuances or choice of words. But this Appeal Tribunal is in no position to carry out an exact reconstruction of what occurred. Rimer J in Sagnia at paragraph 66 further said:

" The case is built solely on the basis of an assertion of a lack of even-handedness of the treatment of both sides, the treatment of the appellants' case being said to have been so hostile as to justify the inference that the tribunal had already made up their minds about it, even thought they had not openly declared their views. We readily accept that such a case might be capable of being made. If from the start of the case, a tribunal treats one side's case and witnesses sarcastically, dismissively and aggressively, whilst displaying outwards signs of unbroken sweetness and light to the other side's case and witnesses, it may not be difficult to infer that the tribunal had already made its mind up, or at least that it was conducting the hearing so unfairly that justice was neither done nor seen to be done. Like all cases, however, such a case requires to be proved. It is not enough for a collection of dissatisfied witnesses merely to make generalised assertions of such alleged lack of even-handedness. They must be able to point to concrete examples in order to make it good. " 15.3 There is no tape-recording at tribunals, and hence no transcript available. We do not recommend its introduction, because there would then be the potentiality in every case to institute trawling through days of evidence, adding substantially to legal costs and to the prolixity of appeals. But in the absence of such transcript, there is a very good substitute in the form of Paragraph 7 of the Employment Appeal Tribunal Practice Direction, which has been of considerable value since its introduction in December 2002. Prior to that date, Chairmen's Notes of Evidence were requested in very many cases, often simply in order to prove a negative – e.g. that something or other was not said below – and pages of such notes would be obtained, put in bundles and usually hardly referred to. The obtaining and transcribing of Chairmen's Notes took many hours, and was causing an average of six months' delay in the listing of appeals where such were sought. Paragraph 7 applies where " an appellant who considers that a point of law raised in the Notice of Appeal cannot be argued without reference to evidence given (or not given) at the employment tribunal, the nature or substance of which does not, or does not sufficiently appear from the written reasons. "

The procedure is laid out, and the nub of it is that there will ordinarily be (see paragraph 7.3) an

[16]In the present case: 16.1 There was certainly nothing of this last kind. The case took 36 hearing days, and both sides appear to have been given considerable leeway. The Chairman records as follows in paragraph 53:

" In the course of this hearing, as noted at the outset of these Reasons, there were a number of requests for disclosure, in particular in relation to training details in relation to comparators and in relation to advisers who had accepted business granted in the latter stages of 2002 and the early part of 2003. There was, unfortunately, not full disclosure given by either side at the outset of these proceedings. We were satisfied, however, and in particular having regard to the large gap at the end of the first 12 days hearing, before the case was able to be reconvened, that in large measure disclosure was effected on both sides without any injustice. In instances where either side had been prevented from questioning either the Claimant or other witnesses, they were recalled to ensure both parties had an opportunity to ask all pertinent questions. At the conclusion of the case, the Tribunal was satisfied that both parties were provided with the time in order to present their cases to the Tribunal. "

We have an agreed approximate chronology of the 36 days, and it is apparent that there was time for lengthy cross-examination of witnesses on both sides, and indeed recall of witnesses. 16.2 We are in no position to trawl through the case, the evidence and the day by day hearings, nor are we invited to. But the exposition of the Employment Tribunal's findings of fact, recitation of the law and conclusions, summarised above, appears wholly comprehensible and comprehensive: there is certainly nothing outrageous or inconsistent on the face of its judgment. 16.3 The Appellant, in the course of his able submissions to us over three days, often referred, by way of drawing attention to what he submitted to be a difficulty or a weakness in the Respondents' case, to the Chairman having " given a grilling " to one or other of the Respondents' witnesses – e.g. to Mr Montgomery and Mr Sycamore. We are not left with a picture of a one-sided tribunal or a one-sided hearing. 16.4 The Appellant did not operate the Paragraph 7 procedure, notwithstanding his acceptance that he had a copy of the EAT Practice Direction from the very first (one is automatically supplied at the outset of the appeal process to an appellant), and his clear grasp of procedures, at which he may have been a novice (although, as we understand it with some legal knowledge) when these proceedings started, but of which, after a 36-day hearing and 3 sets of employment tribunal proceedings, he has become, we are satisfied, an able, quick-witted and experienced practitioner. In any event, express reference was spelt out, in a number of orders made by the Employment Appeal Tribunal (that of 8 March 2006 in Appeal 1, and of 5 October 2005 in Appeal 2), to the need to give the 14-day notice, the required co-operation in the agreement of a statement or note, and the opportunity for an application for the purpose of resolving such disagreement etc, all as per Paragraph 7 of the Practice Direction, fully set out with the relevant time scales. No effort was made by the Appellant to supply his notes of the hearing, taken it seems by a combination of himself and an associate Mr Sultan, and seemingly at all times within his possession, and forming the basis of his affidavit, to the Respondents for agreement. He eventually applied to the Deputy Registrar for what is described by Elias P in paragraph 5 of his judgment of 19 June 2006, dismissing the Appellant's appeal against the Deputy Registrar's refusal, as Chairman's Notes of Evidence involving " something like 31 days of evidence from the whole range of witnesses and in almost all the cases … [of] no relevance or no significant relevance to the appeal that has to be heard. " Elias P relates, in paragraphs 2 to 6 of his judgment, the history of the failure by the Appellant to submit notes for agreement, or otherwise operate the Paragraph 7 procedure, but, because of the fact that the Appellant was a litigant in person, he took a full day's hearing, and in the event a 22-page judgment, to resolve the issue, not only upon the basis that the application came far too late to be granted, but that, in any event it would not have been appropriate to make the order for Notes sought, save possibly in respect of one small piece of evidence involving a Mr Dulay. In mention to this latter, he requested a note of the relevant evidence from the Chairman, which was forthcoming in time for this appeal, and, as will be seen, did not in the event assist the Appellant's case. In the event, very belatedly, the Appellant went through the route which would have been open to him many months ago, when he produced to the Respondents, and put into a bundle for the court, one day before this appeal was due to heard, a set of 22 " notes of evidence ", of between one and three pages each, containing extracts from notes taken by him or Mr Sultan, occasionally accompanied by a commentary. As will appear below, we did not, in the light of the opposition of the Respondents and their inability in that time scale to compare such extracts with their own notes, and seek to reach agreement, allow the wholesale admission of such belated documents. However, what we said we would permit, and did permit, was that, if and when a need arose to look at one or more of such notes in the course of the hearing, we would consider them on a case by case basis. In the event, either in the course of the Appellant's cross-examination of Mr Doyle, or in the course of his own submissions, he wished to produce, and we allowed him to produce, five notes, numbered 2, 3 (first page), 11, 12 and 12A, which were the only ones which arose, and which went in on the basis that they were not agreed documents, but could be considered. As will be seen, they did not add a great deal, if anything, to what we already had by way of the Appellant's affidavit, Mr Doyle's affidavit, and the Chairman's comments; and to that extent we see no reason to differ from Elias P's analysis in his recent interlocutory judgment. However, we have no doubt at all that, if there were a case which materially depended upon resolution of disputed events at the hearing, an appellant would be well advised to do that which the Appellant here failed to do, namely at least to get his or her note or notes relating to such evidence agreed and properly admitted. In this case, if indeed there had been that course operated, and there had been some disagreement, although it may well be there would not have been, then the Chairman could have been asked to resolve that disagreement. In the event, as will be seen, the Chairman was given sufficient opportunity to comment on the affidavit of the Appellant, based upon those notes. That has enabled us to have full argument on the points. What we do not have, however, is any ability to reach a definitive conclusion as to precisely what words were used, if and insofar as such might be significant.

[17]We indicated, when dismissing the preliminary applications made by the Appellant at the outset of this hearing, that we would give our reasons for so doing in the course of this judgment. The first such application was for the admission of an affidavit by Mr Sultan, the associate to whom we have referred. Mr Sultan did give evidence, limited to what occurred at the second hearing - although the events in that regard were not materially, or at all, in dispute - when, for reasons which are not now relevant, Appeal 2 came on for hearing before Judge McMullen QC on 8 March 2006, and it became apparent to all that it would be far more sensible to adjourn it off so that it could be consolidated with Appeal 1, and be heard together, as has occurred. Rather than waste that hearing wholly, Mr Sultan, who attended at that hearing, was cross-examined by Mr Gidney and re-examined by the Appellant. Mr Sultan did not however proffer any evidence in Appeal 1. The only deponents in Appeal 1, as set out above, were the Appellant and Mr Doyle, and, in giving directions for the now consolidated appeals, Judge McMullen ordered, at paragraph 3 of his Order dated 9 March 2006, that within 14 days of that order each party must give notice as to which paragraphs in the affidavits of the Appellant and Mr Doyle were to be subject to cross-examination, which requirement was fulfilled. Unsignalled by any prior notice, a 13-page, 41-paragraph affidavit of Mr Sultan relating to the events the subject matter of Appeal 1 was included in the bundle for this hearing, and served on the Respondent, on the day prior to the start of this appeal. The Appellant sought permission from us to put in that affidavit, albeit that Mr Sultan was not even present for cross-examination had it been admitted, on the basis that, having been refused the order for Notes of Evidence by Elias P on 19 June, he now felt he needed this affidavit.

[18]We had no hesitation in refusing such application:18.1 The affidavit was purportedly served way out of time. The order for affidavits in accordance with paragraph 11 of the Employment Appeal Tribunal Practice Direction was made by me on 24 November 2005, pursuant to which the Appellant served his affidavit.

18.2 In any event, the affidavit of Mr Sultan went way outside the bounds of the Notice of Appeal, and of the allegations of bias and/or misconduct both made in that appeal and, as they were required to be, particularised in the Appellant's affidavit.

18.3 Mr Sultan's affidavit had not been submitted, as the Appellant's affidavit was, in accordance with paragraph 11, to the Chairman for his response.

18.4 Similarly, the affidavit had not been submitted, in accordance with paragraph 11, to the Respondents for their response, and indeed, given the timescale of its production, was now far too late for them to deal with it.

18.5 Judge McMullen QC had made the Order referred to above in respect of the affidavits that had been served, and, had permission been sought (which it was not before Judge McMullen, nor even before Elias P), if granted at all, it could only have been given upon the basis that sufficient time for consideration would be given to the Respondents and that, in any event, Mr Sultan would attend for cross-examination, which he had not.

[19]The second application related to the Appellant's own "notes of evidence", to which we have referred in paragraph 16.4 above. Here too, the explanation given by the Appellant was that he had hoped to obtain the Chairman's Notes of Evidence from Elias P, and, given that he now did not have those, these were his fallback position. None of that, nor his being a litigant in person, could excuse his having failed to comply with the paragraph 7 procedure and the obvious course, even without such specific requirements, of supplying his/Mr Sultan's notes for agreement to the Respondents, months ago. In case there should be any prejudice however, we took the course indicated above, of saying that we would consider, and in the event letting him put in, any that he particularly wished to refer to, which is what occurred, as set out above.

[20]Finally the Appellant sought that this hearing, fixed many weeks ago, and specifically consolidated and dealt with by agreement by Judge McMullen QC on 6 March 2006, be adjourned, pending his making an application to the Court of Appeal for permission to appeal against the refusal of the Chairman's Notes of Evidence by Elias P. We had no doubt that this application should be refused. The 3 (in the event 3½) day hearing was now fixed to commence, and all parties, including those who were to be cross-examined, were in attendance. The background to the application to, and refusal by, Elias P in respect of the Chairman's Notes, which we shall not repeat, emphasised the inappropriateness of any adjournment. In any event, we concluded that, both because Elias P's order appeared to us to be, for a number of reasons, unchallengeable in law, and also because it was in reality a case management direction, which we doubted that the Court of Appeal would be interested to reconsider, we dismissed the application, and commenced the hearing which, as we have already indicated, the Appellant conducted competently and well, and without apparent sign of being deprived of any argument which he otherwise wished to put forward (not least because of the way we dealt with his wish to rely on the "notes of evidence", referred to above). ET Rule 7(9)

[21]There is a preliminary argument, which the Appellant subsumed under the rubric of bias or misconduct, but which is in fact a jurisdictional challenge. His case is that Mr Kolanko was debarred from chairing the full hearing which commenced on 27 September 2004, because he had chaired the earlier interlocutory hearing of 27 August 2004. This submission arises out of his reading of Rule 7(9) of the 2001 Employment Tribunal Rules. This Rule appears not to have survived into the 2004 Rules, but the 2001 Rules govern this hearing, as it antedated October 2004; and the 2001 Rules in this regard were not new, because there was a rule in identical terms at least in the 1993 Rules, which we have considered.

[22]Rule 7, under the heading "Pre-hearing review", reads in material part as follows:

" Pre-hearing review 7. - (1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, conduct a pre-hearing review, consisting of a consideration of - (a) the contents of the originating application and notice of appearance; (b) any representations in writing; and (c) any oral argument advanced by or on behalf of a party. (2) If a party applies for a pre-hearing review and the tribunal determines that there shall be no review, the Secretary shall send notice of the determination to that party. (3) A pre-hearing review shall not take place unless the Secretary has sent notice to the parties giving them an opportunity to submit representations in writing and to advance oral argument at the review if they so wish. (4) If upon a pre-hearing review the tribunal considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have no reasonable prospect of success, the tribunal may make an order against that party requiring the party to pay a deposit of an amount not exceeding £500 as a condition of being permitted to continue to take part in the proceedings relating to that matter. (5) No order shall be made under this rule unless the tribunal has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit. (6) An order made under this rule, and the tribunal's reasons for considering that the contentions in question have no reasonable prospect of success, shall be recorded in summary form in a document signed by the chairman. A copy of that document shall be sent to each of the parties and shall be accompanied by a note explaining that if the party against whom the order is made persists in participating in proceedings relating to the matter to which the order relates, he may have an award of costs made against him and could lose his deposit. (7) If a party against whom an order has been made does not pay the amount specified in the order to the Secretary either - (a) within the period of 21 days of the day on which the document recording the making of the order is sent to him, or (b) within such further period, not exceeding 14 days, as the tribunal may allow in the light of representations made by that party within the said period of 21 days, the tribunal shall strike out the originating application or notice of appearance of that party or, as the case may be, the part of it to which the order relates. … (9) No member of a tribunal which has conducted a pre-hearing review shall be a member of the tribunal at the hearing of the originating application. "

[23]It is quite apparent to us what the 'mischief' is, namely that a Chairman who has to and does form a provisional view of the merits of a case, one way or the other, ought not to adjudicate at trial.

[24]Whatever the merits of such approach – and it is not replicated in the CPR, where, for example, a judge of the Commercial Court or of the TCC might be required interlocutorily to decide a similar application, or this Appeal Tribunal, where a judge may have sat on a preliminary hearing, or indeed the new Employment Tribunal Rules, which appear to put no such embargo – that appears to us to be the basis for it. Even against the background of such a Rule, there is an important principle to set against it, namely that it is positively advantageous and advisable that a Chairman, who is to preside shortly over a lengthy or complicated case, should be the one to make the necessary directions to facilitate trial, including the elimination of unnecessary issues at that trial; and that that applies in employment tribunals just as it does under the CPR where, as soon as a trial judge is known or nominated, it is considered best for such trial judge to take over the interlocutories at the earliest possible stage.

[25]In this case, notice was given by the Employment Tribunal at Southampton, by letter dated 5 August 2004, described as "NOTICE OF CASE MANAGEMENT DISCUSSION". Paragraph 1 of the letter gave the notice that a case management discussion would take place at 10am on Friday 27 August 2004. Paragraph 2 specified that a time estimate of half a day had been given for that discussion, and it was required that the parties must attend or be represented. At paragraph 3 the agenda for the discussion was set out, to include the identification of the claims and the clarification of the issues, including consideration of what other matters were " necessary and desirable to achieve a fair and expeditious conclusion of the case ".

[26]Paragraph 4 of the letter provided for the possibility that there might arise " during identification of the claims and clarification of the issues at the discussion " the possibility of determination as to whether a deposit should be paid because of there being no reasonable prospect of success. There were also five general "Notes" at the end of the letter, of which the first indicated that " This letter constitutes notice of both a case management discussion and pre-hearing review ".

[27]Whatever may have been provided for by such Note, we have the Order which was issued on 9 September 2004, resulting from the hearing of 27 August 2004. It is headed up "Case Management Discussion held on 27 August 2004" and the title is "CASE MANAGEMENT DIRECTIONS". There was no determination of whether there was a reasonable prospect of success for the claim, and in particular no determination as to whether a deposit should be paid. There is no suggestion that the meeting, discussion, hearing or order was or was to be described as, or by reference to, a pre-hearing review.

[28]The Appellant relies upon Note number 1 such that, he submits, there was notice given of a pre-trial hearing, and the next question is whether such pre-trial hearing took place. He submits that such is to be concluded by reference to Rule 7(1) of the 2001 Rules referred to above. There was a " consideration of … the contents of the Originating Application and Notice of Appearance (paragraph 7(1)(a)) and there was " oral argument advanced by, or on behalf of, a party " (7(1)(c)). Both the Chairman, in his comments, and the Respondent in their affidavit assert that there was no pre-hearing review under Rule 7 of the 2001 Rules on 27 August. What the parties believed at the time is, of course, not determinative (and we note that the Appellant did not take any objection to Mr Kolanko sitting at the outset of the main hearing one month later, although as this is a jurisdictional point, there can be no issue of waiver). It is perhaps unfortunate, given the then existence of Rule 7(9), that the apparently standard inclusion of Note 1 might have led to some blurring between case management (by reference to Rule 4 of the then Rules) and the holding of a pre-hearing review in accordance with Rule 7. However we are entirely clear that there was no pre-hearing review, and that it is of no relevance that there was, for the purposes of giving directions and clarifying the claims and issues, a consideration of the contents of the pleadings, and the hearing of oral argument. As described by the Order itself, all that occurred was a Case Management Discussion, and although it was specified in the notice as to what might happen if, during the identification of the claims and clarification of the issues, it became appropriate to consider the making of an order under Rule 7(4), such did not in the event arise. Consequently this ground fails. Bias/Misconduct

[29]When asked to summarise the nature of his submission, the Appellant, while firmly basing his appeal upon Lord Hope, and the fair-minded and informed observer , framed his case on the basis that the Chairman was not even-handed: that he showed disfavour to the Appellant's side and/or favour to the Respondents' side. He derived his case from the following:29.1 The Chairman's approach to the joinder of the Respondents.

29.2 His decisions on witness orders.

29.3 His approach to disclosure.

29.4 His dealing with the assertion of tampering with documents, and of interference with witnesses.

29.5 His dealing with two late applications by the parties.

29.6 His having on one occasion on rising nodded to Mr Gidney and not to the Appellant.

29.7 The way he dealt with the matter when the Appellant raised with him (after the witness had been released) that that witness had, during the luncheon adjournment, obtained a sandwich at the same time and place as the Respondent's Counsel, Mr Gidney, and Mr Doyle.

29.8 His having chastised Mr Dulay, one of the Appellant's witnesses, or then proposed witnesses, for nodding his head in agreement while the Appellant was giving evidence, while not taking any action on an occasion when there was talking and/or disruption at the back of the court by the Respondent's witnesses and/or staff.

29.9 The fact that he did not mention the Respondent's replies to the Race Relations questionnaire in the judgment.

29.10 His having been more generous to Mr Gidney and/or more stringent to the Appellant in respect of:29.10.1 leading questions (examples are given in respect of the witnesses Reeve, Stevens, Dulay, Brooks, Frier, Travers and Cullup).

29.10.2 cross-examination (that of Carol Burton by the Appellant compared with that of Cullup by Mr Gidney) and of Gallop compared with Mrs Moody and Gladstone.

29.10.3 re-examination by reference to a comparison of that of Vickers and Sycamore.

29.11 The Chairman's intervention in the evidence of Mr Rayner.

29.12 There were some other minor matters raised in the documents, none of which were pursued before us – the Chairman's description of the role of Mr Doyle (paragraph 2.14 of the judgment), Mr Lywood's notes etc.

[30]In arriving at our conclusions in relation to the above, we have taken into account the affidavits of the Appellant and Mr Doyle, and their cross-examination and the comments of the Chairman. So far as the latter is concerned, of course, as in any such appeal, it has to be taken into account that the Chairman himself or herself is not available for cross-examination, and one cannot but be influenced, in the absence of such cross-examination, both by the fullness and extent of a Chairman's comments, and by any area in which his or her comments appear to be inconsistent, either with something in his judgment or something in a document, or, as is sometimes the case, positively inconsistent with, or not supported by, the case put forward by, or recollection of, the Respondents. In this case, there are no such inconsistencies, and the comments of the Chairman were full and convincing. Indeed, as will be seen, there is, to our minds, very little, if any, dispute about events. Our views and conclusions have been informed by the following:30.1 Lord Hope's observer has to be fair-minded and informed . But he must not be over-sensitive. Although we have no doubt that the Appellant is certainly of the view that he has not been over-sensitive, and that he genuinely feels there was unfairness going beyond his simply having lost the case, we are of the view that many of his complaints arise from over-sensitivity, and this particularly applies to allegation (vi) above, the alleged nod.

30.2 In relation to a 36-day hearing in which one party was, albeit very able, not represented, there was a considerable burden upon the Chairman. He had to balance firm and fair case management with advice to a litigant in person as to how to examine and cross-examine, and indeed re-examine, and yet coupled with fairness to the Respondent. It is too often forgotten that if, pursuant to his duty to assist, a Chairman leans too far towards helping a litigant in person, that can become correspondingly unfair to the party which has invested in a lawyer.

30.3 There are bound, in the course of a hearing, to be occasions when case management decisions are made which appear to one party or the other to be wrong and unfair.

30.4 Even while allowing sufficient latitude for both cases to be put, such that, as in this case, 36 days were in the event taken, the Chairman is still under an obligation to take all available steps to ensure that, as it was put during the course of the hearing before us, " the show is kept on the road ".

[31]We now deal with these 11 items: the first five appear to fall into the category of approach to directions or orders, the next four relate to approach to the hearing and/or the judgment, and the last two fall into a category of the approach to the giving of evidence. We deal first with the first category.

[32]As to (29.1), one of the applications made at the case management discussion on 27 August 2004 was made by the Respondents, to change the name of the then identified Respondent, Lloyds TSB Bank plc, to Blackhorse Financial Services Ltd, as being the correct employer. This application was opposed by the Appellant, both on the basis that he regarded it as an attempt, as he put it, to " divert publicity away " from the Bank itself, and on the basis that, as Lloyds TSB Bank was the parent company, the actions of the subsidiary company, such as they were, should be held to be those of the parent company. The Order of 27 August 2004 records that the Appellant acknowledged that his offer of employment came from Blackhorse Financial Services, and the Second Schedule to the Order records as follows:

" Second Schedule (…) Correction of Respondent's Name Sch 2.1 Upon the Tribunal referring the Applicant to the provisions of Section 32 of the Race Relations Act 1976 and indicating that the proposed amendment of the name of the Respondent does not prejudice the Applicant's rights within these proceedings And upon the Applicant acknowledging that his offer of employment came from Black Horse Financial Services Ltd by letter dated 26 June 1997 And upon Lloyds TSB Bank Plc, and Black Horse Financial Services Ltd through their Counsel Mr J Gidney asserting that the actions and conduct of staff employed and/or engaged by Lloyds TSB Bank Plc of which the Applicant makes complaint under the Race Relations Act, were actions and conduct of such staff acting at all times as agent for the Black Horse Financial Services Ltd, and as such is to beheld to be action and actions of Black Horse Financial Services Ltd against the Applicant under the Race Relations Act 1976, It is ordered that the correct name of the Respondent is amended from Lloyds TSB Bank Plc to Black Horse Financial Services Ltd. "

[33]In the course of the submissions before the Chairman, which sought to address the opposition of the Appellant to the name change, the provisions of s32 of the 1976 Act were canvassed, and, the matter having been raised, the Appellant sought to argue that it was odd to postulate that, for the purposes of establishing liability for discrimination, the staff of the parent company, the Bank, should be regarded as agent of the subsidiary, rather than the other way round.

[34]It is quite apparent to us that the Chairman was seeking to cut through any such legal arguments by securing, as he saw it in the interests of the Appellant, the position that no point would be taken, once the correct employer was joined, on the basis that, if there was any discrimination, anyone other than the joined Respondent would be contended to be liable. This appears to us to be a perfectly sensible approach. The Appellant still seeks to object to this, characterising it as the 'taking of legal advice' from Counsel for the Respondents during the course of the hearing. He draws attention to a principle, which he seeks to extract from a Northern Ireland decision (given on a judicial review application by Weatherup J [2005] NIQB 40 ), which underlined the objectionability of a decision-maker obtaining extraneous legal advice. There cannot be any doubt about the existence of such principle, set out by reference to such well known examples as Justices' Clerks retiring with Magistrates, such that it would not be appropriate (as appears from paragraph 1 of Weatherup J's judgment) for " the members of the [Police] disciplinary panel, between the date of the hearing and the delivery of a decision on a preliminary issue, [to] obtain legal advice in relation to the matter from the Head of Legal Services to the Police Service of Northern Ireland ". But the Chairman, in inviting legal submissions and assistance in open court, and in front of the Appellant, in looking to Counsel for the Respondents for submissions on the law, and guidance as to the proper outcome (expressly reminding him, it seems to be accepted on both sides, insofar as it was necessary, of the duty owed by such Counsel to the Court), is not conceivably objectionable, nor even beginning to fall foul of such principle.

[35]To complete the picture, it seems that the Appellant then discovered, prior to the full hearing, that Blackhorse Financial Services Ltd had actually changed its name on 28 June 1999 to Lloyds TSB Financial Consultants Ltd. This did not mean, nor is it the case, as seems to have been suggested by the Appellant, that that company no longer existed, but simply that the company number 01690781 which remained the Respondent, was now wrongly described. When this was brought to the attention of the Chairman at the outset of the hearing by the Appellant, the Chairman appears to have taken the view, understandably in all the circumstances, that the best course was after all to allow both Respondents to be joined, but making sure that the subsidiary had what was now its correct name. Paragraph 2.1 of the judgment records the amendment of the name of the First Respondent into its correct name, and it is recorded that the amendment of the name was sought by Mr Gidney and agreed by the Appellant. The Appellant complains that it is not recorded that all this arose as a result of his bringing the matter back to the attention of the Chairman, but it does not seem to us that that is of any significance, and formally it would have to have been Mr Gidney who would need to seek permission to change the name of his client on the record. In the event, at the end of the hearing, in its judgment, the Tribunal concluded (in paragraph 21) that it was the first Respondent, formerly Blackhorse and now Lloyds TSB Financial Consultants, which at all times was the employer of the Appellant.

[36]With regard to (29.2), the Appellant complains about the approach of the Chairman to witness orders. Technically a complaint about the issue of witness orders is, like complaint (i), out of time insofar as it arises at all, because the making or not making of the orders antedated the start of the hearing, such that any Notice of Appeal in respect of that issue was out of time. However, the Appellant refers to such matters simply so as to paint a picture of what he submits to be an unfavourable predisposition towards him by the Chairman. Seven witness orders were sought on 11 September 2004. In the event, five were granted, and one was resolved by the agreement of the Respondent that the statement which the Appellant had obtained from a Ms Parker could be read. That left one witness, a Mr Fairey, who was a senior executive of the Respondent, who did not wish to attend, and who, had he attended, could not have been cross-examined by the Appellant if called, as he would have to have been, by him as his own witness. We see no reason to doubt the propriety of the conclusion of the Chairman, in his comments: " I judged that he was sufficiently removed from the issues identified in this case as to be unlikely to give relevant evidence, which again fortified my view at that stage that an order against him was inappropriate.

[37]Mr Reeve, to whom reference has been made in paragraph 12 above, had retired from the Bank many years previously, and he was reluctant to attend without a witness order. He was plainly a central witness, as being a person positively alleged by the Appellant to have discriminated against him. We see no comparison between the two cases, certainly none indicating bias.

[38](29.3) and (29.4). The Appellant not only alleges a difference in approach between the way the Chairman dealt with inadequate disclosure by the Respondent and by him, but positively suggests, although without any apparent justification and certainly no particularisation, that the Tribunal's conduct was a matter of " major concern ", because " the Respondent's representatives Mr Gidney and Ms Davies [their solicitor] were shown to be guilty of improper conduct, all of which was drawn to the Tribunal's attention by either me or witnesses " (paragraph 25 of the Appellant's affidavit, and put by him in general terms in cross-examination to Mr Doyle). It must first of all be stated, in terms, that there is no indication whatever to us, anywhere in the papers, of any suggestion of such misconduct by either Mr Gidney or Ms Davies, and certainly none " shown ", if that is suggested to mean established or proved. Making allowances for the fact that the Appellant is both not a professional advocate owing duties to the court, and inevitably partisan in his own case, it was still quite inappropriate for him to have made or pursued such suggestions on this appeal. Insofar as the suggestion was made that documents had been tampered with by the Respondents themselves, such was rejected by the Tribunal (paragraph 49 of the judgment). In any event it does not appear to have been in the forefront of the Appellant's case. We have been supplied by him with a copy of his 91-page closing submissions, and so far as concerned his case in respect of the two matters, said to constitute the tampering complaint, which he drew to our attention and relied upon, his case on records of coaching appears in six lines on page 86 (in paragraphs 451 and 452), where such case is simply based upon a complaint of late disclosure; and his case that the genuineness of some of the compliance referral documents should be doubted appears at best sotto voce in footnote 172 on page 64, as a footnote to the two-line paragraph 334, accompanied by a graph. The criticism needs to be of the Tribunal, and of the Tribunal in some biased way apparently sweeping under the carpet some positive case put forward and indeed proved by the Appellant. There is nothing of the kind.

[39]With regard to the suggestion that the Respondents were putting pressure on witnesses, this is not suggested to us to have been raised with the Chairman except in the context of the Appellant's application for some of the witness orders, and all such witness orders were in fact granted.

[40]So far as concerns disclosure, it appears to us that the Tribunal held the ring more than fairly as between Claimant and Respondent in this regard. It would be natural for the Tribunal to be more critical of a large commercial organisation's delay in producing documents, than of an unrepresented litigant; but in some ways the unrepresented litigant might be able to lay his hands on documents the more easily, just because of the economies of scale. Nevertheless, quite rightly, the Tribunal responded to the well-founded applications for disclosure that the Appellant continued to make, by criticism of the Respondents, and insistence upon their sending senior witnesses to explain the matter, which explanations eventually, after grillings , were accepted; while the Appellant was permitted, as he accepted to have been the case before us, on very many occasions to produce fresh, previously undisclosed, documents at the outset of a day's hearing for the purpose of being used in cross-examination of that day's witnesses. We note what the Tribunal said at paragraph 2.22 of its judgment:

" We record that the Claimant, during the course of the restored hearing, produced documents almost on a daily basis, resulting in Mr Gidney, on occasions, repeating a request that the Claimant should produce all the documents he had in his possession which he intended to rely upon, rather than continue with the daily disclosure of documents. The Chairman explained the importance of the Respondents and, in particular, Mr Gidney, having sight of such documents in advance of the day when witnesses were to be questioned on such matters. The Claimant indicated that he was working all hours of the night and day in the preparation of his case, that he was a litigant in person, and asked for a level of indulgence from the Tribunal. We were satisfied that Mr Gidney was able to overcome these difficulties in large measure. "

[41](29.5). The dealing with the two late applications is a complaint, as we raised with the Appellant during submissions, which seems to us to be totally misconceived. On day 26, the Appellant made an application to the Tribunal in relation to various matters, without having given prior notice to Mr Gidney. But what it became quickly apparent he had done was to lodge in advance, via the Tribunal clerk, with the Chairman submissions in writing, without giving a copy to Mr Gidney, or telling him of them. It was this course which the Chairman criticised, namely creating a position in which the Chairman had seen written information from one side, which had not been vouchsafed to the other, contrary to the ordinary principles of natural justice. It is not surprising therefore, that the Chairman was critical of this course. There is no comparison with the Chairman's apparent failure to criticise an application made by Mr Gidney on Day 3, about matters raised in witness statements filed by Mr Ansar, which were going to have to result in the calling of additional witnesses if such belated documents were admitted, which was made responsively, but without prior notice, but was not made on the basis of his having previously supplied to the Tribunal, but not disclosed, a written application.

[42]We now turn to matters in the next category.

[43](29.6) The nod. Having read the affidavits and the Chairman's comments, and having heard cross-examination, this matter seems to us to be wholly inconsequential, and probably the subject of a misunderstanding or erroneous observation. Consistent with our concern that there is here over-sensitivity, the Appellant described this incident of the Chairman's nod as " one of the clearest examples of apparent bias ". The Chairman states that it may well be, although he has no recollection of it, that on one occasion, while Mr Gidney was on his feet and it was intended to take a mid-morning break, it was at Mr Gidney that he nodded to indicate a suitable time to rise. No objection was taken at the time, nor is it said to have arisen on any other of what presumably (if this break was normal) will have been three times daily adjournments over 36 days.

[44](29.7) The sandwiches. As we have indicated, we saw Mr Doyle in the witness box. He was, as one would expect from a young undergraduate, however enthusiastically carrying out the task of sitting in on litigation during a year's work placement, inexperienced. It is not surprising that the Tribunal (in a passage which for some reason was originally suggested by the Appellant to indicate bias, although he did not in the event pursue this before us) stated that " Mr Gidney did not have the benefit of a senior manager at the bank sitting behind him throughout the course of proceedings " (paragraph 2.14 of the judgment). Whatever else may be said about Mr Doyle, he certainly came over as a frank witness. He accepted that when, in his affidavit, he stated that Mr Johnson, the witness in the course of his evidence, did not know where to go to get a sandwich, what seemed to be implicit was indeed the case, namely that it was he who had (obviously unwisely) been the source of the advice to Mr Johnson that he should go and get his sandwich at the place where he and Counsel used to lunch. It was not an issue before us, as to whether, during that luncheon adjournment, Mr Johnson was or was not, as he got his sandwich, in eye or ear shot of Counsel and Mr Doyle as they sat at their table, and such was not suggested before us, because that was not the issue. The issue was whether the Chairman dealt adequately with the complaint raised by the Appellant. It must be first of all noted that the Appellant, not surprisingly given that he was unrepresented, did not know that it would have been most sensible to raise the query immediately after the luncheon adjournment, and indeed for him to ask questions in cross-examination of Mr Johnson, to clarify whether it could be that he might have had some inappropriate contact during the luncheon adjournment. There is of course no specific rule against an advocate lunching in the same place as a witness. The rule simply relates to an advocate not discussing the witness's evidence, or anything relating to that evidence, while the witness is in the course of and/or not released from his examination. The matter was only raised when the witness had been released. There is a slight, but very minor, disagreement between Mr Doyle and the Appellant as to precisely what occurred, which could not have been resolved by the obtaining of any Chairman's Notes. The Appellant submits that the Chairman was too ready to make the assumption that there had been nothing improper. We are entirely satisfied that, when the Appellant raised the issue, the Chairman looked to Mr Gidney for an explanation and assurance, and obtained it, and that, in the light of that, there was nothing more which he did, nor in our judgment could have done, and that such a response is in no way indicative of any bias, apparent or otherwise.

[45](29.8) Mr Dulay's nodding. It can, on occasion, be a matter of significance, if a witness is giving evidence, and receiving assurance or reassurance from someone in the courtroom. Any possibility of that must obviously be prevented, whether the witness is in fact looking at that person, and whether the conduct in question is a nod, a shake of the head, or a grimace. It is clearly important for a Chairman to control his court in that regard. That must obviously fall into a different category to a situation in which, as it is now suggested, there may have been on a different day noise by way of disruption from the back of the court. The Chairman has no recollection of anything disturbing him or the proceedings, and says that if he had noticed it, and it had disturbed the proceedings, he would have said something, but the two situations, even if in fact the Chairman can be shown to have known of something going on and not stopped it, are not in any way comparable.

[46](29.9) The Appellant, in his lengthy closing submissions below, made criticism of the Race Relations Act questionnaire, to part of which he referred us. There was only one paragraph of which he used particularly critical language, namely paragraph 13, which he described in those submissions as " fully equivocal and evasive ". There was specific discussion before the Tribunal of the Barton guidelines, as updated in Igen v Wong

[2005] ICR 1205

and in his additional written representations of 11 March 2005, the Claimant drew the Tribunal's attention to guideline (7), which provides that a tribunal can, but not must, draw an inference from an evasive or equivocal reply to a questionnaire. No argument is before us, nor was before the Tribunal, directed as to which aspect of the Respondents' case in particular ought to have been influenced by the drawing of such inference. But, in any event, the drawing of an inference is a matter for the Tribunal, and failure to draw such inference, in what is otherwise a fully reasoned judgment, which we have summarised above, can, in our judgment on the facts of this case, neither be counted as perverse nor, in any event, as evidence of bias, either taken with the other matters referred to or on its own.

[47]Finally, the last category. The principles are not in any doubt. Asking leading questions of your own witness are inadvisable, because they tend to detract from the persuasiveness and effectiveness of evidence, if it looks as though you have put the words in the mouth of the witness. There may be a case in which a witness would simply not come up to proof, unless prodded, such that in the absence of a leading question, the evidence might never be given. In such circumstances (although an experienced advocate may well be able to find a number of ways around the problem) there may be some leading questions which are not simply incompetent but objectionable. This was the Appellant's first effort at being an advocate, and there were many witnesses with whom he had to deal. It is inevitable that the Chairman will have been involved on a number of occasions, assisting him to rephrase questions. The Chairman also indicates, in his comments, that there were occasions when he had, as might well arise in an ordinary case, to require Mr Gidney to reword what might otherwise be a leading question. As for cross-examination, there are also techniques to be learnt in respect of that, for example, not putting matters repetitively to a witness, or to coin a phrase " using a witness as a sounding board ", at any rate, for any lengthy period. Re-examination is a matter to be considered all on its own. It is even more important now that so many witnesses are not examined in chief at all, or at any length, but simply put in their pre-prepared witness statement. It can sometimes be very necessary for a witness, who has hardly had the opportunity to impress the tribunal in chief, to be given a platform in re-examination. On the other hand, the rule that one cannot cross-examine one's own witness applies with all the greater force if the purpose is to try to resurrect a witness who has been badly damaged in cross-examination there are many ways of doing that short of actual cross-examination). Against this background, we consider the Appellant's case that there is some indication of bias towards the Respondents in the way the Chairman approached these matters. This is inevitably a difficult area because of the impossibility of reconstructing precisely what occurred, which would arise even if there were a transcript, even if there were verbatim Chairman's Notes of Evidence, and certainly where, as here, there are to varying degrees differing recollections as to precisely what was said.

[48](29.10) (a) Leading Questions.• Reeve . There are said to have been leading questions by Mr Gidney in re-examination. The Chairman has no such recollection, no particulars being given, and recounts from his note that the total re-examination lasted seven minutes (it seems common ground that Mr Gidney did not believe in long re-examinations). Mr Doyle recites that only five questions were asked in that seven minute period, and sets out what they were. If that is accurate, then none of the questions appear to have been leading, but, in any event, no case is made out.

• Stevens . The Appellant complains that he was reprimanded for asking leading questions in re-examination. It is apparent from the Tribunal's recitation of what Mr Stevens firmly said, to which we have referred in paragraph 12.1 above, by reference to paragraph 9.11 of the judgment, that Mr Stevens remained constant on an important aspect which did not assist the Appellant's case. Mr Doyle gives the account in his affidavit, which in the circumstances we accept, that " in re-examination the Appellant sought to cross-examine Alan Stevens into withdrawing [his] comment …However, the witness stated (of his evidence that Ian Reeve bullied all of the staff) 'I stand by it in all circumstances'. "

• Dulay . Again the Appellant complains of being prevented from asking a question in re-examination. The Appellant confirmed, when cross-examined before us by Mr Gidney, what is stated in paragraph 20.5 in Mr Doyle's affidavit, namely that the Chairman would often ask of both Mr Gidney and the Appellant where a particular line of questioning was heading, particularly if the examination had already lasted a long time.

• Reeves. Although under the category of leading questions, this amounts to a complaint that he was, on occasion, prevented from asking a witness to give a hypothetical answer, whereas Mr Reeves was invited to give one. When cross-examined, the Appellant accepted that it could be appropriate to put, and to answer, a hypothetical question, and no sufficient case is made out for any complaint.

• Brooks . He is said to have been asked a leading question by Mr Gidney, which was permitted despite the Appellant's objection, in relation to his application to have his business treated as an exception to the segmentation policy referred in paragraph 12.4 above. Note of evidence number 3 was produced by the Appellant to support his account, the question recorded there being " When was your list checked? " Both the Chairman and Mr Doyle, by reference to their notes, do not record such a question: although, and this is perhaps symptomatic of the exercise we are forced to go through on this kind of application, the answer did not in fact, in the event, take anyone anywhere. The Chairman's comment – taken from his notes – is that the question was " Do you know if it was checked? " and he has the answer recorded as " I could not honestly tell you. "

• Frier . Here the Appellant complains that, during his re-examination of Mr Frier, Mr Gidney started a line of questioning by referring to pp 2022 and 2023 of the Tribunal bundle, stating " These are the product suitability rules ." Mr Doyle says that his notes record a slightly less leading situation, namely a question whether the document set out the product suitability rules. But in any event Mr Doyle submits in his affidavit that there was no issue over the question, as the document was headed up Product Suitability Rules. There was an issue about that, and we asked if they could be supplied, and there was produced to us, on the next day of the hearing, the original computerised document, of which these pages form part, which does appear to have been headed up Product Suitability Rules. As it happens, this matter was canvassed before Elias P on the occasion of the Appellant's appeal in respect of the Chairman's Notes of Evidence on 19 June, when, in paragraph 12 of his judgment, the President explains why he concluded that, even if there was a leading question, it was of no great significance, at which time it seemed that a different argument was being put forward by the Appellant. But in any event, singularly or cumulatively, a case of apparent bias does not begin to be approached.

• Travers . Again it is suggested that the Chairman did not restrain Mr Gidney from leading questions in re-examination. Note of evidence number 2 is produced which actually suggests – unhelpfully to the Appellant's proposition – that (albeit in relation to something of no apparent great significance) the Chairman did agree with the Appellant that one of Mr Gidney's questions should be rephrased. But, once again, Mr Doyle records that this was another of Mr Gidney's short re-examinations, and he sets out the substance of all four questions that were asked, none of which appear leading, as the Appellant accepted, when cross-examined about it.

• Cullup . The allegation in this regard was wholly unparticularised and unexplained, and appears to feature more relevantly under the heading of Cross-examination below.

[49](29.10) (b) Cross-Examination Two issues arise here. The first is an alleged comparison between the free rein said to have been allowed to Mr Gidney in cross-examining the Claimant's witness Mr Cullup, as compared to limitations placed upon the Appellant's cross-examination of Carol Burton, a Respondents' witness. The second issue relates to the suggestion that Mr Gallop, a Claimant's witness, was restricted from explaining his answers to cross-examination, as compared with the Respondents' witnesses, Ms Moody and Mr Gladstone. Mr Cullup, called by the Claimant because at various stages he had, as a trade union representative, assisted him, turned out to be a former lay member of the Employment Tribunal at Reading who had many years before sat with the Chairman. There might have been some problem, particularly for the Respondents, in such circumstances, but the position was fully clarified and disposed of, as referred to in paragraph 2.6 of the judgment. The Claimant complains that, because the Chairman had previous knowledge of Mr Cullup he might have thought the more of him: not a criticism one would ordinarily expect, but, it seems, necessary once it became apparent that some of the evidence Mr Cullup gave may have been regarded as unsupportive of the Appellant's case. The Appellant's complaint is that the Chairman did not discourage questions, which appeared to him not to be within Mr Cullup's expertise, being asked of him, while there came a time in respect of Mrs Burton when the Chairman queried whether the questions he was asking her were within her knowledge, and whether she was not being used as a 'sounding board'. We are left with no reason to doubt what the Chairman said in his comments:

" 17. Regarding Mr Cullup, the tribunal reasons reveal at paragraph 2.6 that there was an issue concerning my continuing to hear this case because of my distant memory and involvement with Mr Cullup as a lay member sitting in the Reading Tribunal. I mention this because inevitably I was aware of Mr Cullup's experience of tribunals, and became aware in these proceedings of his experience as a retired senior manager for the respondent. I am quite satisfied that Mr Cullup was not placed in difficulties regarding any documents familiar or unfamiliar put to him, he was a witness who commented with assurance upon matters he was able to express a view upon, and declined in an equally positive manner to express an opinion on matters he had neither knowledge or experience of. My notes of the cross examination of Mr Cullup reveal that he was asked generally questions on matters upon which he had direct knowledge or involvement, or experience in his capacity as a former senior member of the management. He did indicate that he did not have any special expertise in securities and the procedures to be adopted. I consider the questioning was proper, and that Mr Ansar was not placed in any disadvantage as a consequence. 18. My notes reveal that for the hour prior to the lunch break on Day 25 Mr Ansar was cross examining Mrs Burton; he commenced by asking questions concerning compliance and FSA rules. He then asked questions as to the potential for an unscrupulous manager using the compliance process to abuse his power over an employee; he then referred to certain compliance issues concerning him. Mr Ansar then went into detailed questioning of the various compliance concerns. She acknowledged that the concerns were those of the Branch Director. Although this was an example of rather lengthy questioning on matters not wholly relevant to the case, Mr Ansar was allowed to put his questions, and continued for a further hour after lunch. I did on numerous occasions question Mr Ansar as to the relevance of certain lines of questioning; it may well be that I made such an enquiry on this occasion. " • Gallop/Moody/Gladstone . The suggestion that Mr Gallop was asked not to elaborate is wholly unparticularised and, as Mr Doyle suggests, it may be that the witness was about to expand into areas which were not necessary. So far as Moody and Gladstone are concerned, we accept as persuasive the response of the Chairman in this regard at paragraph 24 of his Notes: "

It was the habit of Mr Ansar on occasions to request witnesses to answer a question with a yes or no. When such witnesses attempted to elaborate on the limited answer, Mr Ansar often prevented this. Mr Gidney as a consequence requested that the witness be permitted to fully answer. I invariably agreed to this course. I do not believe this was in any way inconsistent or at odds with my approach throughout or indeed with the other side. The adequacy of any response was judged upon its individual merit. This may well have occurred in the case of Mr Gladstone and indeed Mrs Moody. I observe that Mr Ansar, having filed his second claim in the tribunal in the course of these proceedings, sought to restrict the evidence of matters he wishes to raise in the second action, which included evidence from Mrs Moody. Mrs Moody however was one of the managers Mr Ansar alleged was the cause of his discriminatory treatment and her evidence and presence at the hearing was plainly relevant. She gave important evidence amongst other things on the High Interest Funds, which was an important matter in the case. I informed Mr Ansar that she would be permitted to give evidence. " The Appellant in fact cross-examined Ms Moody for a substantial part of two days (23 and 24), and applied for her to be recalled, when he further cross-examined for a substantial part of the morning of day 35.

[50](29.10) (c) Re-examination It is asserted by the Appellant that the Chairman was inconsistent in the way he allowed re-examination said or said not to arise out of cross-examination, in respect of a Mr Vickers, the Claimant's witness, and Mr Sycamore, the Respondents' witness. We allowed that part of Note of Evidence 10 which does not consist of commentary to be put forward in respect of Mr Vickers, and the equally short Note of Evidence number 11 in respect of Mr Sycamore. The point appears to us, after hearing evidence and argument, to be adequately clear, insofar as it has been possible, notwithstanding all the difficulties, to reconstruct the position. The Appellant, in cross-examination before us, was not able to challenge what was put to him, namely that there had not been any cross-examination of Mr Vickers in relation to the conduct of the Respondent's representatives on incentive trips, nor was it covered in his witness statement. It is not therefore surprising that re-examination dedicated towards that topic, seeking to establish discriminatory conduct by fellow staff members in that regard, was not permitted of that witness in re-examination. In relation to Mr Sycamore, once again there was only a very short re-examination by Mr Gidney: according to Mr Doyle only one question, which he describes. Note of Evidence number 11, which we have seen, in no way casts any doubt on Mr Doyle's explanation (paragraph 28 of his affidavit) which indicates clearly that the question arose out of cross-examination.

[51](29.11) Intervention in Cross-Examination This relates to the evidence of Mr Rayner, who held the disciplinary hearing on 6 April 2004, at which, as referred to in paragraph 12.7 above, by cross-reference to paragraph 37 of the judgment, the Appellant, accompanied by Mr Cullup, was acquitted of the charges. Mr Rayner was not dealing with the Appellant's grievance, which had by this time reached a stage 3 grievance hearing; this took place on 5 April 2004, when the Appellant, again attended by Mr Cullop, appeared before Mr Montgomery, who reserved his decision, not delivering it until 23 June 2004. The Appellant, even though he had been acquitted by Mr Rayner, wished to, and did, cross-examine him, which took the afternoon session on day 32. The Appellant it seems had an aim in asking his questions of seeking to suggest that Mr Rayner had some motive, when resolving the disciplinary matters in his favour, in not having addressed the matters which were the subject of the grievance procedure and/or the Respondent's harassment process. The last of the notes of evidence which the Appellant was permitted, on application, to produce before us, note 12, related to this matter: he was subsequently permitted, on the following day, to produce his note 12A, not for the purpose of relying on its contents, but simply so as to show that that extract upon which he relies in note 12 was part of a longer note. At paragraph 21 of the Appellant's affidavit, he states as follows:

" 21. On day 32, I cross-examined Respondent witness Mr Marcus Rayner who sat in as a judging manager on my Disciplinary Hearing. One important aspect of the questioning related to why Mr Rayner declined to look at a number of issues which had been specifically referred to the Respondent's Disciplinary process by the Respondent's Harassment process. Before Mr Rayner was able to answer, Chairman Kolanko answered in his place stating "… if I was invited to hear … some of these things, I would argue that it muddies the water of what we were there to discuss at the disciplinary meeting. I thought it would be helpful if you had my thoughts on those first … he (Mr Rayner) could not have looked at those issues as he is only there to look at Gould and Burgess; bigger issues raised were not part of the Disciplinary process."

I stated that I was looking for an answer from the witness. The witness then stated "I couldn't have said it better myself". The Chairman had effectively answered the witness's cross examination question, offering not only his own opinion but drawing conclusions for the witness. This style of behaviour was exhibited throught the Tribunal hearing and is claimed as being a gross perverse injustice against me. " Although the Appellant concludes his sentence with this generalised and critical statement, he has not in fact put forward any other example of a case in which, as he submits, the Chairman intervened to answer a question for the witness. Mr Doyle deals with the incident at paragraphs 29 and 30 of his affidavit:

" 29. The Appellant has referred to this incident as 'one of the most serious incidences of apparent bias', yet there is nothing in it. The context was as follows: the evidence at this stage revealed that the Appellant was facing a disciplinary hearing, before Marcus Rayner. The Appellant had also raised a grievance. At a grievance investigation [meeting] Sarah Leeming had suggested that some of the matters raised were factually connected to the disciplinary, and so should be considered in that venue. Accordingly the Appellant defended the disciplinary hearing on the specific grounds upon which it was based (ie the cases of Gould and Burgess) and also the additional matters that he had raised as a part of his grievance. Mr Rayner therefore had various grounds upon which the Appellant was seeking to defend the disciplinary proceedings. Mr Rayner decided to dismiss the disciplinary case against the Appellant on the strength of his case on Gould and Burgess alone. Effectively the Appellant had won without needing to elaborate on his other issues. He nonetheless wanted to, and Mr Rayner did not let him, as the most he could do was dismiss the case against the Appellant, which he had done, and as such there could be no benefit in determining the various other matters. 30. … the Chairman intervened, saying, from memory, the gist of what the Appellant attributed to him. This was no bias, but sensible case management. Had the Chairman not done so, the cross-examination of Mr Rayner on this issue would have carried on in a circular fashion for some time. The suggestion that the Chairman had answered for a witness before the witness could answer is simply not true. The witness had presented the same answer at length before the Chairman intervened. "

The Chairman states as follows at paragraph 21 of his comments:

" I recall this incident quite clearly. Mr Rayner was the witness who heard the disciplinary proceedings, and acquitted Mr Ansar of all remaining charges brought against him. Mr Ansar embarked upon questioning and criticism of Mr Rayner for not proceeding to deal with the numerous matters of complaint the subject of grievances which other managers had suggested might be raised in the disciplinary hearing. Mr Rayner's response was at one point, "

I struggle to correlate these issues with the reason I was there for the disciplinary. I felt I dealt with issues I was asked to deal with, the 2 cases of Gould and Burgess." Mr Ansar then suggested to Mr Rayner that he declined to tackle those additional matters because they related to Mr Songer who had appointed him to hear the disciplinary. His response was "No absolutely not." After cross examination of 30 minutes, my note records I intervened to query the line of questioning of a witness who had acquitted him of all charges. I do not dispute that I made a comment not dissimilar to that quoted by Mr Ansar. My brief note at that stage in the margin of my notes records "3.00 Chairman questions the relevance as Applicant was acquitted. Ansar does not agree." My note records that Mr Ansar continued along with the same line of questioning from 3.00pm to 3.15 when the afternoon recess was taken. This was I recall the first occasion when matters moved to a highly confrontational stage. Mr Ansar ignored my interventions, and I made a full note during the recess of events, which was confirmed by the lay members as follows:

"The Chairman intervened to question the relevance of the Claimant's questioning. This witness acquitted the Claimant of the 2 charges before him. He has given his reasons for not addressing other matters (per Leeming suggestion) which even Mr Cullup agreed was not relevant. Ansar notwithstanding disagreeing with Mr Cullup. Witness had indicated that these matters which Ansar sought to introduce could more sensibly be dealt with in the grievance procedure. The Chairman stressed the intervention was to help and assist a litigant in person, and not to impede. The Chairman expressed the clear view that any disciplinary officer prepared to consider specific charges would not entertain wide ranging allegations of discrimination that have challenged a tribunal over 30 days."

This incident was highlighted in Mr Gidney's closing submissions (Page 37). Despite Mr Ansar's response I judged it sensible to allow him to continue his cross examination. I believe that this incident reflects the latitude that was given to the claimant which I would not have afforded to someone legally represented. " The reference to page 37 of Mr Gidney's closing submissions appears to relate to Mr Gidney's submission there that the Appellant's " repeated forthright rejections of the Chairman's observations spoke volumes ". As to this incident, we are satisfied that: i) The intervention did not exhibit bias, but was typical of the kind of summarising intervention which can be helpful to seek to bring to an end a lengthy period of questioning. We have seen ourselves, even in the Appellant's limited cross-examination of Mr Doyle, which occurred before us, the way in which he likes to lay the groundwork at some length before asking his relevant question or questions, such as they were. Due to the absence of the paragraph 7 procedure, there has not been the possibility of an agreed note of the cross-examination, but we do note the length of time it in fact took. We see no reason to doubt the Chairman's account. (ii) We are not satisfied that this incident, even if it occurred, was in any way central to the real considerations that were live in the case, given that in fact Mr Rayner did acquit the Appellant and did not consider the other issues. In any event there was nothing to stop the Appellant going ahead and asking the question which he said he would have liked to have put in cross-examination, namely the suggestion that the reason that he did not investigate the grievance and harassment issues was in order to avoid embarrassment to his fellow managers: indeed according to the Chairman's comments above, he had already put that case (by reference to Mr Sanger's involvement) and received a negative response. (iii) We are in any event clear that, contrary to the generalised but unsupported assertion of the Appellant, this is not symptomatic of any unfair treatment of the Appellant by the Tribunal.

[52]With the exception of the issue of Mr Lywood's notes, which did not appear to be pursued, as it was not mentioned, and in any event is fully and satisfactorily answered by the Chairman, we have, we believe, dealt with all the complaints of the Appellant. Taken separately or together, we are entirely satisfied that in this lengthy hearing, in which the Appellant plainly more than kept his end up, unrepresented, against Counsel and a large institution on the other side, there is not the shadow of a case of unfairness, and we are entirely satisfied that the fair-minded and informed observer, having considered the facts, would not conclude that there was a real possibility that the Tribunal was biased. Error of Law

[53]We turn to the alternative case made by the Appellant. There is a suggestion that the Tribunal did not comply with the requirements of Igen v Wong , but we have summarised their judgment above, and we are satisfied that, in applying the test, including the burden of proof, they complied with the law as set out correctly in paragraphs 10 to 18 of the judgment. The Appellant's primary contention is that the Tribunal's judgment was perverse in a number of respects, and sufficiently to comply with the high hurdle referred to in paragraph 7 above. Many points were raised, and we shall deal shortly first with a number of them. 1. Identity of the Respondent. No argument was put forward to challenge the Tribunal's conclusion in paragraph 21 of the judgment. 2. The Chairman's decisions referred to in paragraphs 2.3 and 2.7 of the judgment, with regard to evidence to be given by two of the Claimant's proposed witnesses. These decisions were made in the exercise of the Chairman's discretion, and are plain case management decisions. The Appellant refers to such authorities as Chief Constable of West Yorkshire Police v Khan

[2001] IRLR 830

for the proposition that cases of discrimination must be decided by an employment tribunal in context, but that does not require a tribunal to abdicate its discretion in relation to deciding what evidence is or is not material for consideration in an instant case, and we are satisfied that no ground to challenge the decisions in law is shown. 3. We are entirely satisfied that no error of law has been shown in relation to the decision of the Tribunal, recorded in paragraph 2.17 of the judgment, not to exclude substantial evidence from Ms Moody. It is plain that, as the Chairman said in his comments, quoted at paragraph 49 above, at least on the case for the Respondent, who sought to, and successfully did, rely on her evidence as to compliance and other matters to explain what occurred, and to rebut the suggestion that what occurred was on the grounds of race, her evidence was very material. 4. Nor is there any ground to challenge in law the conclusion of the Tribunal in relation to the absence of discrimination and victimisation with regard to the events of 1999 to 2000, as summarised in paragraphs 12 and 13 above. The Tribunal made findings of fact as to the issue of discrimination at paragraph 9.11 of the judgment. The Appellant points out that there is no express reference to the way in which Mr Reeve is said to have behaved towards a Mr Langridge, but there is express reference in paragraph 9.11, in the relevant context, to the fact that " the Claimant called witnesses, in particular Mr Stevens, who commented upon Mr Reeve's style ". As to the issue of protected act, we have already referred in paragraph 13.1 above to the conclusions in paragraph 39 of the judgment. The one passage of Chairman's Notes which was ordered by Elias P (paragraph 19 of his judgment) in fact revealed that in cross-examination Mr Dulay stated that, in discussion at the time between him and the Appellant, the Appellant " did not suggest [the] fax [of complaint] contained any criticism of Reeve, denying loan on racial grounds … [the] fax, as I recall, clarified whether Ansar entitled to staff rate. No enquiry re it being discriminatory ". 5. There is similarly no arguable case disclosed that there was an error of law in relation to the Tribunal's decision that there was no protected act in December 2002/January 2003. Once again there are findings of fact which were available on the evidence. The Appellant suggests that the Tribunal may only have addressed the issue as to whether the person victimised has " alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of the Act ", without also considering the alternative possibility that " the discriminator knows that the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them ". It is quite clear in our judgment that this latter does not arise for separate consideration on the particular facts of this case, and the findings in paragraph 40 of the Judgment. The argument that the Appellant puts forward is that the Tribunal ought to have concluded that any grievance put forward by someone from an ethnic minority inevitably ought to have been appreciated to carry within it a risk of a race discrimination complaint. Quite apart from the fact that knowledge or suspicion of a risk is not sufficient to fall within s2, the foundation for the argument is said to be in one or other of the Codes of Practice. We have sought to find something, even implicit, in what we assumed the Appellant was referring to, namely para 1.2.2 of the Code of Practice (Racial Equality) 1983 [now expanded in paragraph 4.65 of the 2005 Code, which would not be applicable] but we can find no support for any such proposition. In any event, even if there was a protected act, there is an unchallengeable finding of no relevant unfavourable treatment (paragraph 42 of the Judgment). 6. The Appellant has also failed to establish any error of law in relation to the Without Prejudice letter referred to in paragraph 13.3 above. The Appellant asserts that, when he agreed to waive the privilege in the letter, the Chairman said to him words to the effect that " it will not be fatal to your case ". This is not agreed by the Respondent, and it does not form part of what was submitted to the Chairman for his comment, as it was not part of the bias allegations. But, even if it, or something like it, was said (and we make no such finding) it is plain that the content of the Without Prejudice letter was not fatal to the Appellant's case. It was not even of itself fatal to the argument that there was a protected act prior to 10 December 2003. The delivery of the Without Prejudice letter on 10 December 2003 was speedily followed by the service of the Race Relations Act questionnaire. There was thus no doubt that in December 2003 a complaint which fell within s2 of the Act was being made, as was found. What was fatal, or detrimental, to the Claimant's case that there was no protected act prior to 10 December 2003 was his own evidence, recorded in paragraph 9.138 of the judgment, that he had not previously made such a complaint, as quoted in paragraph 13.3 above.

[54]The only matter which the Appellant raised which caused us to call on Mr Gidney in response on the issue of error of law was the case made by the Appellant by reference to comparators in December 2002. We have referred in paragraph 12.4 above to paragraphs 26 and 27 of the judgment. The finding of the Tribunal was that a refusal of the business of Speed & Payne was not discriminatory on racial grounds, by reference to the fact that:54.1 The Appellant was not the only adviser refused, while all white advisers had their business accepted.

54.2 There were good reasons for the refusal.

[55]As to (54.1) the Appellant submitted to us, although not by reference to any documents, that Brooks, the only white adviser who had business refused (it is common ground that there was, contrary to what is stated in paragraph 26, only one) was not a comparable, because his refusal came at a time when all business was automatically refused, unlike the Appellant's applications which were made at a time when consideration was discretionary. We allowed this argument to be put forward, at least on a hypothetical basis, given that the Appellant is unrepresented, on the basis of an assertion that there are material facts omitted from paragraph 26 of the judgment, notwithstanding once again the failure of the Appellant to comply with paragraph 7 of the Practice Direction if indeed there was evidence or documentation not referred to in the judgment, but given at the hearing, which would be relevant in that regard. Given the hypothetical nature of the argument, we were willing to look to the Respondents on a similar basis and, as it happens, they were able to answer our concern in such a way that the Appellant was unable to respond in reply. Mr Gidney took us, in support of his assertion that Brooks was a comparable, to his final submissions (which were before us) at pages 25 to 27. By reference to those submissions, it was explained to us that the two customers of Brooks which were put forward by him and refused were indeed identical cases to Speed and Payne, being customers whose business could, if permitted to be an exception, be done before the end of December 2002.

[56]As to (54.2), once again, on the face of it, the findings of the Tribunal in paragraphs 26 and 27 were conclusive and persuasive. What the Appellant submitted was that the fact that, as set out in paragraph 12.4 above, there was criticism of his list, should not have been determinative, because there were others who had made applications for exceptions which were not by reference to a list, and that Mr Songer on behalf of the Respondents had given evidence that a list was not essential. Once again, even considering this on the hypothetical basis, it was apparent to us, by reference to the Respondents' final submissions, that the criticism of the inadequacy of the list was a self-standing criticism, but that the problem was that, because the list was simply a list of all the customers that he would like to keep, there was no sufficient and persuasive detail to support the case for the two customers, Payne and Speed (see paragraphs 9.88 to 9.89 of the judgment), unlike the cases put forward by the other advisers dealt with in those Final Submissions.

[57]We consequently dismiss this appeal. But we would not wish to end without taking the opportunity to express our concern, after an appeal which has lasted 3½ days of judicial time at the Employment Appeal Tribunal – time which is valuable, not for itself, but because of the other cases that need to be dealt with - mostly dedicated to the consideration of the allegations of bias and misconduct. There is no need for us once again to repeat the strictures of Rimer J in London Borough of Hackney v Sagnia at paragraphs 63 to 66, or the warning contained in paragraph 11 of the EAT Practice Direction. We do not seek to discourage properly arguable appeals, and loyally follow the guidance of the Court of Appeal that the Employment Appeal Tribunal must resolve material disputes of fact, where there is a complaint about the behaviour of a member of the employment tribunal (paragraph 25 of Stansbury ) and must, unless the allegation is totally without merit on its face " exercise its powers in the manner contemplated in the Practice Direction before reaching its decision, thus giving the [Claimant] , the [Respondent] , and the Chairman and members of the tribunal the opportunity to say what happened " (paragraph 11 of Lodwick per Pill LJ). But there is no reason why this cannot be done – and in our judgment this should have been such a case – by way of a consideration under Rule 3(7) and (10) of the Employment Appeal Tribunal Rules, without a full hearing and without cross-examination:57.1 Rule 3(7) is now in different terms from the Rule which was considered by the Court of Appeal in Lodwick (para 10 of Pill LJ's judgment), which was limited to where the Appeal Tribunal had no jurisdiction to entertain an appeal. The Employment Appeal Tribunal is now entitled to conclude, no doubt in most cases after operating paragraph 11 of the Practice Direction, and thus after considering the Notice of Appeal, the affidavit or affidavits of claimant and respondent and any other material party and the comments of the Chairman and, if appropriate, members, whether there are in whole or in part (see subparagraph 7a) " reasonable grounds for bringing the appeal ".

57.2 This is not a case in which we in any way benefited by the cross-examination, which in our judgment added nothing to, and changed nothing in, the substantial affidavits of, and comments from, the parties and the Chairman in a case in which, quite apart from the unpersuasive nature of the allegations, which we have analysed above, there was very little real material dispute of fact between the parties.

57.3 We conclude that this case could and would have been capable of resolution, as we have resolved it, by consideration of the documents produced under the paragraph 11 procedure. So far as concerns the allegations of perversity, in respect of which, as appears above, we did not in substance need to call upon the Respondents, we have no doubt that those matters too could have fallen for proper conclusion under Rule 3.

order

"… requiring the party who seeks to raise such a matter to give notice to the other party(ies) to the appeal/cross-appeal. The notice will require the other party(ies) to co-operate in agreeing within 21 days (unless a shorter period is ordered) a statement or note of the relevant evidence, alternatively a statement that there was no such evidence. All parties are required to use their best endeavours to agree such a statement or note. " Such procedure ordinarily results in agreement, either of the appellant's note, whether contemporaneous or otherwise, or the respondent's note, or a combination of the two, or a compilation showing the relevant differences, together with an agreement to put both before the Appeal Tribunal. It is still possible, in the absence of agreement, for this Appeal Tribunal then to request a Chairman for some limited notes, in relation to areas which have not been agreed, or to express an opinion as to which note the Chairman agrees with, or to answer a short questionnaire. In any event, the matter can be, and is regularly, sorted out well in advance of the appeal hearing, with the crucial areas of difference, if any, identified. 15.4 On occasion it may be possible to deduce unfairness from the very outrageousness or inconsistency of a conclusion (though such would probably found an appeal on perversity grounds in any event) or from the irrationality or inappropriateness of some decision, e.g. preventing the calling of a number of witnesses whose evidence had been pre-served and whose relevance can thus be appreciated by the Appeal Tribunal, where there appears to be no apparent justification for the decision. Thus there have been cases where criticism has been made of a Chairman ruling out witnesses, otherwise intended to be called by one side, simply because of a determination to ensure that a case finished within its prearranged time slot.