MR S AZIZ-MIR v SAINSBURY’S SUPERMARKETS PLC [2007] UKEAT 0415_07_2811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2007] UKEAT 0415_07_2811Case No Appeal No. UKEAT/0415/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S AZIZ-MIRAPPELLANTSAINSBURY’S SUPERMARKETS PLCRESPONDENT
Before
His Honour Judge McMullenDate 28 November 2007
[1]APPEARANCES For the Appellant MR S AZIZ-MIR (The Appellant in Person) For the Respondent MS HELEN BARNEY (of Counsel) Instructed by: J Sainsbury Plc Legal Services 33 Holborn London EC1N 2HT SUMMARY Practice and Procedure – Bias, misconduct and procedural irregularity Race Discrimination - Direct 1. An allegation of actual bias and for recusal by way of disqualification of the Chairman was dismissed. The Chairman's connection with the Respondent was unknown to him, and so tenuous and remote as not to require his recusal. Ex parte Pinochet HL and Porter v Magill HL applied. 2. Allegations of bias and apparent bias by the Chairman and one member were sent to a Full Hearing. El-Farargy CA may be applied. 3. The 45 allegations of perversity did not singly or in aggregate pass the high threshold in Yeboah v Crofton CA raised even higher by Klusova v Hounslow CA. 4. The Employment Tribunal correctly applied the burden of proof. 5. The 17 allegations of race and trade union discrimination which were rejected by the Employment Tribunal showed no error of law. If the Full Hearing finds there was an unfair hearing and sets aside the Employment Tribunal judgment, or calls it into question, that EAT may make such order as it sees fit in relation to this judgment. HIS HONOUR JUDGE MCMULLEN QC This case is about bias and apparent bias and substantive issues on race discrimination and the burden of proof. The judgment represents the views of all three members, who pre-read the considerable volume of papers in this difficult and protracted litigation. We will refer to the parties as the Claimant and the Respondent. The Claimant today has a temporary disability and we have made adjustments Introduction[2]It is an appeal by the Claimant in those proceedings against a judgment of an Employment Tribunal sitting at Leeds: Mr C T Grazin, Chairman; Mr M Golightly and Ms N Takla-White. The Tribunal was engaged in this case over 12 days including four in deliberation and reading. The judgment was registered with Reasons on 6 April 2006, extending to some 41 pages. The Tribunal dismissed the Claimant's claims under the Race Relations Act 1976 and of unlawful victimisation on trade union grounds under the Trade Union and Labour Relations (Consolidation) Act 1992.[3]The Respondent denied all of the claims. The Claimant appeals. The matter came before a number of judges in the EAT. First, the President, who said this :
"This was a careful and cogent decision in which the Tribunal set out its reason with considerable clarity. The grounds of appeal either seek to re-open findings of fact, or allege perversity, or to submit that inferences were either not grounded in evidence or at least sufficient evidence. None of these complaints begin to raise a serious issue of law. The Tribunal had a proper evidential basis for each of its findings and the appellant comes nowhere near to establishing that their conclusions were perverse. They concluded either that the claimant had not received less favourable treatment or that if he had, it was plainly not by reason of race. That conclusion was manifestly sustainable on the material before it and on the findings of fact that it made. There is also a complaint that certain matters were not sufficiently considered, e.g. the conduct of Kaz. It is a trite observation that tribunals should not have to deal with each and every issue raised before them. But to take the particular example of Kaz, the Tribunal set out in some detail why it considered that his investigation on appeal had been extremely thorough and fair. If any application is to be made pursuant to Rule 3(10) it should be heard at the same time as the Preliminary Hearing in the related appeal."
[4]Exercising his right under Rule 3(10), the Claimant came before HHJ Ansell for an oral hearing when the judge sent the matter to this preliminary hearing. To the substantive issues which we have identified can be added bias and apparent bias of the Chairman and of one member, Mr Golightly. The proceedings are accompanied by a further (second) set of proceedings which arise from a claim made by the Claimant and heard at a PHR by a different Chairman, Ms Cox, in August 2006. This is relevant to our case, for it is a claim by the Claimant, raising, as was found, essentially matters which could have been raised by the Claimant in the proceedings before Mr Grazin's tribunal, but which were either not or not allowed.[5]The matter then came before Burton J, immediate past President, on the sift, who decided that this should be heard at a preliminary hearing, which was conducted by HHJ Ansell at the same time as the first. He dismissed the Claimant's appeal. The Claimant has told us that he has applied for permission to the Court of Appeal and as yet has had no answer. The finding by HHJ Ansell on 8 August 2007 is this:
"9. The Appellant has set out 45 grounds of alleged perverse findings. The grounds amount to a patent attempt to re-litigate the merits of the Appellant's claims before the Employment Appeal Tribunal. To address each and every ground would be wholly disproportionate in the terms of time and cost to the Respondent as compared with their respective merits."
We need say no more about it, except so far as is necessary for us to understand and dispose of the claim based on the failure by the Tribunal, as it is said, to allow certain matters to be raised.[6]During the time when the issues were being decided by Mr Grazin and Ms Cox, the Claimant was employed. He has subsequently been dismissed He applied to an Employment Tribunal and a (third) Chairman dismissed his claim. Last Friday he told us he submitted an appeal against that judgment to the EAT, which has not yet found its way into the sift before a judge; and we say no more about it.[7]The issues before the Grazin Tribunal were codified by it and they consisted of 17 separate allegations, which are set out in paragraph 7 of its reasons. The Tribunal took an analytic approach, dealt with each one and dismissed it. It also stood back from those decisions and looked at all of the evidence and concluded that its judgment dismissing each of these matters was correct. See paragraph 72 in the summary of its reasons..[8]The Claimant was represented by Ms Maria Bamieh, described by the Tribunal as a practising barrister with a good deal of experience in criminal law. As we explained in our hearing, she is also experienced in her own right, having appeared successfully in race discrimination litigation before an Employment Tribunal, on which our colleague, Mr Yeboah, who sits today, sat and found in her favour, having found her to be an impressive witness and an impressive advocate in her own cause. The Employment Tribunal, in our case, paid tribute to the helpful submissions on the law which she had made. The Claimant can be assured that he was well represented by her in the substantive proceedings and in what we will call the recusal applications.[9]The Tribunal set about its task of marshalling the issues and hearing the evidence but it had to deal with a number of matters at the outset. The first concerned the adduction by the Claimant of a further witness statement, the subject of considerable dissatisfaction by the Claimant. The Tribunal said that it would not allow new matters to be adduced which had not been in the "pleaded" case of the Claimant, first adduced in an 18-page witness statement on the morning of the trial, for it would involve considerable additional allocation of time, adjournments and so on. It is the approach to that application which generated the new application before Ms Cox and has led to the judgment of Judge Ansell. The Tribunal also dealt with issues of documentation[10]Thus we have the reasons given by the Tribunal on appeal, and the Additional Reasons. These have been the subject of submissions, again ordered by Judge Ansell, by the Respondent and of representation by the Respondent today by Ms Helen Barney, of counsel. These written submissions are of help to us because they include both the written reasons and the supplementary reasons, which we will call the Tribunal's comments.[11]The Claimant relied upon a very thorough Notice of Appeal of 11 densely-written pages, equivalent, roughly, to 20 pages, which pre-dated the comments, but he has supplemented the Notice of Appeal by his oral submissions today. The case was listed for half a day and has lasted one day. We are satisfied that the Claimant has said everything he could say, albeit when directed to focus on certain issues, he has most engagingly volunteered, that he waffles, wanders from the point and off at a tangent. It is for that reason that we urged him to rely upon the carefully written documents in support of his appeal so as to avoid the stress which advocacy involves. .[12]We turn then to the facts. Insofar as it is necessary for us to express a detailed view on the facts, they are these: The Claimant describes himself as Pakistani British. He is also in the papers described as "Asian". There is no finding by the Tribunal as to the racial group relied on. This is, as we have regularly pointed out, a crucial ingredient in any claim. It is an error of law to make no finding on this matter. We will use our corrective powers under the Employment Tribunals Act 1996 section 35 and Employment Tribunal Rule 37 to insert in paragraph 10 the following words at the beginning:
"The Claimant is self-described as Pakistani British and Asian"
. Graciously, it is not contended that this error of law vitiates the Judgment.[13]He had a relatively short career with Sainsbury's and, in due course, outside of the remit of this particular Tribunal, his employment relationship terminated. He was employed as an evening display assistant in 1998 and in due course was employed at Huddersfield and Halifax. He had a number of grievances with the Respondent. Without describing each incident in detail, as the Tribunal was at pains to do, the Claimant complained that in his relationship with his superiors and in the handling of grievances he was treated less favourably on the grounds of his race and victimised on the grounds of his trade union activities as a shop steward.[14]The issues have been placed before us in the Notice of Appeal and we think we can do justice to the facts in this case by reference to the arguments of the Claimant and those of the Respondent, taking each one as we go and taking the Claimant's own headlines. Substantive issues[15]The Claimant contended the Tribunal failed to make any findings in relation to a range of substantive issues cited as 6A(i) (a) to (g). The attack on the Tribunal was met by an invitation to the Tribunal to give further reasons, which it did. The Tribunal has brought together further reasons in respect of subparagraphs (a) to (g). The Respondent contends that in the light of those findings the charge of failing to make findings under this heading cannot be made out. For this purpose we adopt in full the response of Ms Barney in her Skeleton Submission:
"The Appellant's contention that the Tribunal has failed to make findings of fact and/or reach conclusions in respect of a number of substantive issues is erroneous. The Tribunal has either made the necessary findings of fact/conclusions, or the Appellant did not plead the matter as asserted. Dealing with each sub-section in turn: a) No such attack by Jane Green against the Claimant occurred. Please see paragraphs 38 and 71.6 of the Tribunal's Written Reasons. The Respondent adopts the Tribunal's comments dated 19 th September 2007 at paragraph 1.1 (hereinafter referred to as "the Tribunal's comments"). b) The Respondent adopts the Tribunal's comments at paragraph 1.2. c) The Tribunal's findings in respect of the alleged breaches of the Disciplinary Code relating to the manner of suspension are set out at paragraphs 40-41 and 71.7 of the Written Reasons. d) The Respondent adopts the Tribunal's comments at paragraph 1.4. In particular there is no pleaded claim in respect of "
Saturday working", and Sunday working arrangements are dealt with at length by the Tribunal at paragraph 18, 19, 22 and 23 of the Written Reasons. e) The Further and Better Particulars make no reference to "setting the Appellant up to fail". f) The Respondent adopts the Tribunal's comments at paragraph 1.6. The relevant findings can be found at paragraphs 26-27 and 71.15 of the Written Reasons. g) No allegation was made by the Appellant in terms of "nightshift" work in his Claim Form or Further and Better Particulars." Evidence of pleaded cases - excluded background[16]Again, the allegation is that the Tribunal failed to deal with matters which it should, and, put in short, is this: outside the specific acts of race discrimination and trade union victimisation, the Tribunal is obliged to consider background or evidentiary material which might go to support the claim and an inference should be drawn. (See most particularly Anya v University of Oxford [2001] EWCA 7405 and Qureshi and the Victoria University of Manchester [2001] ICR 863 EAT, which was cited with approval in Anya . ) The central allegation is that numerous past grievances were not allowed to be adduced.[17]The legal proposition is correct. But as a matter of fact in this case, case management decisions were made which involved the exclusion, or the filleting, of the 18-page supplemental statement. Also the contention fails to recognise the force in the Tribunal's finding in paragraph 11 of its reasons, which is this:
"Within the Claim Form, the Claimant contends that the primary incidents, which occurred from November 2004 onwards, were not the first occasion when he had been deliberately humiliated on the shop floor by the Respondent's Management Team. Accordingly, we allowed evidence to be led of incidents which occurred in February 2001."
This corresponds to the finding by the Tribunal in paragraph 7, which says this:
"These proceedings arose out of a Claim Form submitted to the Tribunal on 24 May 2005. In that document, the Claimant claimed that he had been the subject of unlawful discrimination on the grounds of his race, his religion and his sex. He also claimed victimisation by reason of his status as a Trade Union Shop Steward. Although the greater part of that original claim dealt with incidents which commenced on 25 November 2004, the Claimant also alleged that there had been ongoing discrimination against him in the past: 'with regards to hours/days worked, my role within the company amongst other things'. He further contended that he had been humiliated on the shop floor in front of others, as well as physically and verbally threatened in front of others. The Tribunal therefore considered those additional allegations of discrimination, as well as matters occurring between November 2004 and May 2005."
[18]The reason for the handling of the allegations in this way was set out by the Tribunal at paragraph 2. "The Tribunal considered the various Orders that had been made for disclosure of documentary evidence and production of witness statements. We considered how far, if at all, the guidance contained in the decision in Anya v The University of Oxford [2001] IRLR 377 might assist, in that the Tribunal would, of course, be entitled to consider evidence both pre-dating and post-dating the acts of discrimination here alleged. In addition to the original application to the Tribunal, the Claimant had, pursuant to an Order, presented a schedule of acts of discrimination. After considering the contentions on both sides, we concluded that it was in the interests of justice to allow the Claimant to give additional evidence by way of the new witness statement but only in relation to matters which had been pleaded in the original documents before the Tribunal. Insofar as the evidence related to circumstances between the parties during the period between 1999 and 2003 (matters which were documented in some 250 pages of material included in the agreed bundle of documents), we declined to allow the Claimant to give evidence on the vast majority of those matters, because there had been no reference whatsoever to them, either in the original pleading or in the schedule of acts of discrimination. We suggested to the representatives that they might seek to reach agreement as to which parts of the new statement were admissible in evidence, pursuant to the guidance we had given. We allowed the parties some time to carry out that exercise. Unfortunately, they were unable to reach agreement and we therefore made our own decision as to which sections of the additional witness evidence should be allowed. The witness statement within the Tribunal file is marked as to which sections were deemed to be admissible and which were deemed to be inadmissible. Both parties have a similar record of that decision. We do not, therefore, propose to say any more on that point. That issue having been decided, the formal evidence on behalf of the Claimant was given from 2.45 pm on the first day."[19]For those reasons, the premise upon which this ground of appeal is lodged is incorrect. The Tribunal was fully aware of the intention to introduce background material, insofar as it was relevant, and it allowed it to be done, but excluded those matters which it was unfair to adduce. It is plain that the Tribunal focussed on the 2004 issues but took account of the evidence which it allowed to be led in respect of earlier matters. This ground of appeal is dismissed. Comparators[20]The Claimant made a number of complaints about the Tribunal's approach to comparators on the different claims he made. These were quite sophisticated claims. We accept in full the response of Ms Barney to each one of these contentions and, without setting them out, it is sufficient for us to indicate that paragraph 2 of her Skeleton Argument, which responds point by point to allegations (a) to (g), is correct. The Tribunal did not make an error of law in its approach to the comparators in this case, taking each actual or hypothetical comparator as advanced, and making appropriate findings. The burden of proof[21]Here it is contended that the Tribunal erred in its approach to the burden of proof under the Race Relations Act section 54(a) and the application of the judgment of the Court of Appeal in Igen v Wong [2005] EWCA Civ 142 . We will not dwell on whether or not victimisation in race matters is affected by this burden of proof. The Claimant did not address us at length on this issue but the argument which he sets out indicates a failure by the Tribunal to apply the direction which the Tribunal correctly gave itself. We respectfully agree with Ms Barney's short response, which is that this is simply a quarrel with and a dislike for the Tribunal's findings of fact and conclusion. The Tribunal correctly directed itself as to the burden of proof and decided against the Claimant. It was in quite compelling terms, for the Tribunal said this:
"We have therefore dealt with all of the issues. We emphasise, again, that, although we have looked at each issue separately and made a finding separately on each issue, we have done so by reference to the totality of the evidence, both from the Claimant and his witnesses and the various witnesses for the Respondent. We have considered all of the contemporary documents which we regard as important in reaching our findings. In considering all of the evidence, we have come to the conclusion that, if a hypothetical white comparator had acted in the manner which this Claimant acted over a very long period, the Respondent would have dealt with that behaviour very much earlier than occurred here. Insofar as the Claimant alleges less favourable treatment, it seems to us therefore that there has been more favourable treatment to a very large extent."
Primary facts[22]The Claimant here contends that the Tribunal failed to take into account and make findings upon primary facts. Again we accept in full the short response to each of these points addressed by Ms Barney, which can be summarised as follows:
"The assertion that the Tribunal has failed to make all necessary findings of fact is without substance. The Tribunal has set out in the Written Reasons all material findings of fact in respect of the particular grounds cited, namely: a) The circumstances surrounding the Appellant's suspension and Darren Jackson's alleged conduct can be found at paragraph 40 of the Written Reasons. b) and c) The Appellant's break entitlement is addressed at paragraphs 10 and 13-17 of the Written Reasons. d) and c) The Jane Green attack, and circumstances surrounding it, are set out at paragraphs 33-40 of the Written Reasons. f) The Tribunal made findings of fact in respect of the Respondent's equality and diversity policy, and training at paragraphs 28 and 29 of the Written Reasons."
Reasons for findings and ambiguities[23]The criticism here is that certain issues required to be addressed by the Tribunal were not. English v Emery Reimbold and Strick Ltd [2002] EWCA CIV 605 is cited. However, whatever deficiencies there may have been have been cured, in our judgment, by the additional reasons of the Chairman and members in relation to this. This is a portmanteau containing allegations which have already been dealt with, and takes the appeal no further. Procedural or other errors[24]These are dealt with primarily in the allegations of bias but include small matters such as the wording of certain issues and the taking of notes. These are questions of law. The Tribunal has adequately answered these in its additional comments.[25]Those, then, constitute what the Claimant contends are substantive issues. His second principal field is perversity. Perversity[26]Under this head no less than 45 criticisms are made of this judgment of the Employment Tribunal. Correctly he identifies the standard. It is Yeboah v Crofton [2002] IRLR 634 CA: an overwhelming case, a very high threshold. Mummery LJ, who presided over the Court of Appeal in that case, has since revisited the issue in Klusova v London Borough of Hounslow [2007] EWCA Civ 1127. There he found that a Tribunal had not acted perversely, for it found that a mere assertion by a Claimant constituted evidence upon which the Tribunal could make its judgment. So the threshold has been raised even higher.[27]None of the grounds constitutes a ground of perversity. We do not consider Ms Barney's response to be haughty or dismissive. She correctly contends that it is an attempt to re-litigate all of the merits of the Claimant's case and it is disproportionate at this stage for them to be canvassed in detail. We agree that there is no substance in these 45 allegations of perversity, singly or in aggregate, so as to found a reason and a question in law for this Tribunal. Conclusions[28]With those matters in mind we will dismiss the other parts of the appeal Bias[29]During the course of the proceedings, which had been lengthened beyond the original five days, a lengthy application was made on 24 November 2005 on the Claimant's behalf that the Chairman should recuse himself. The Tribunal last sat on 18 November 2005 and resumed, at least in private, on 27 January 2006 and sat in public on further days.[30]The nature of the application was that remarks and interventions by the Chairman had indicated hostility towards the Claimant. The Chairman, having consulted his colleagues, refused to recuse himself and the case was due to be continued. The substance of the allegations has been the subject, not only of paragraphs in the Judgment, but also of additional reasons given by the Tribunal. These were provoked by the order made by HHJ Ansell for further clarification under the Burns/Barke procedure of the Tribunal's findings relevant to certain passages in the Notice of Appeal.[31]At the outset of our proceedings today we canvassed with the Claimant and Ms Barney various ways of proceeding and we have heard argument on all points. We expressed a provisional view in favour of the Claimant on his application relating to bias. We maintained that view, having heard the argument of Ms Barney and did not need to call upon the Claimant. It is sufficient for the purposes of this judgment for us to indicate that the allegations relating to bias and apparent bias by the Chairman and Mr Golightly will be the subject of directions so that this matter can be heard by the EAT at a full hearing, which will decide the facts. We give those directions in an order and allow the opportunity to be given to all three members of the Tribunal to respond, together with an affidavit from the Claimant, statements from Ms Bamieh and Mr Robinson, the solicitor who represented the Respondent, and further steps to be taken.[32]At the midpoint in the Employment Tribunal hearing, an application was made to the Chairman to recuse himself because of actual bias. This arises from his connection to an organisation called Limmud. The Chairman responded to that in writing and declined to recuse himself.[33]The separate issue of the Chairman's connection to Limmud is one which we will not allow to go forward to a full hearing. The issue is this: Limmud is an organisation of Jewish people which is there to support, in an ecumenical way, relations between Jews, Muslims and those of other faiths. The Chairman, Mr Grazin, is co-chair of the Leeds Limmud. It is connected nationally to the national Limmud. He occasionally attends the national meetings but the decision making is done by a smaller body. Limmud receives funding from an organisation known as UJIA, the United Jewish Israel Association. We have been told, although that is unclear, UJIA receives funding from the Sainsbury Family Trust. The Sainsbury Family Trust receives money from Sainsbury's Supermarkets Plc. On that basis, it is suggested that the Chairman is automatically disqualified for hearing this case by reason of his interest in the Respondent.[34]The test approved by Lord Hope in Porter v Magill [2002] 2 AC at para 102 is this "The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased." I.[35]The Chairman has given a full account of his involvement. On behalf of the Claimant, it is contended that applying the rules in R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (Amnesty International and others intervening) [1998] 3WLR 1456 , the only order we should make is that in due course he should have recused himself. (See also Morrison v AWG [2005] EWHC 2786 .)[36]On behalf of the Respondent, it is contended that the Chairman's involvement is tenuous. Importantly, there has been no challenge to the Chairman's assertion that he knew nothing of the financial funding, indirect as it may be, by the Sainsbury Family Trust, of Limmud.[37]We find these facts. We have considered most carefully the response which he has made and we accept the submission of the Respondent that there was no real possibility of a fair-minded observer of the proceedings taking the view that the Chairman would be biased in favour of Sainsbury's Supermarkets Plc because of his co-chairing Leeds Limmud. It must be noted that the Claimant himself applauds the work done by Limmud in bringing together Jews, Muslims and other faiths. This ground of appeal is dismissed. Disposal[38]We have heard argument on the Chairman's notes, and an application is before us that would properly be before us if there were a subsisting ground of perversity. There is not. We therefore will not allow the application for wholesale adduction of the Chairman's notes. As it is, the application would require the Chairman to write up his notes of just about the whole of these proceedings; certainly something of the evidence of each of the witnesses. That, too, is disproportionate. The standard order which we will make, as the Claimant recognises, will require any dispute about the facts to be ventilated with the Respondent before any decision is made to invite the Chairman to produce his notes.[39]Returning then to the options which we canvassed at the outset, it seems to us that if, on full hearing of this case, the EAT upholds in full the allegations of the Claimant, then our judgment would not survive. If some of the allegations survive, we propose that it will be a matter for that EAT to decide, in the light of our judgment, whether that should affect the overall outcome of this case. It may be that if one or two points get home but they do not affect the overall fairness that finding will not change the result. But we will cede to the EAT a decision on that matter and it will hear argument at the end of the full hearing if it finds in favour of the Claimant to any extent whether or not our judgment can survive. We have every confidence in our colleagues to be able to make that decision without coming back to us.[40]Save for the above, the appeal is dismissed. Appeal[41]An application has been made by the Claimant for permission to appeal to the Court of Appeal. The test which we use is the same: is there a reasonable prospect of success in the appeal? Or is there a compelling reason? We can dispose of the latter quickly. No argument has been made that there is a compelling reason for the Court of Appeal to hear this case. As to the grounds, when we asked Mr Aziz-Mir what they were he simply said they were the ones which he had argued before us. Thus we must assume that no single word we have said finds favour with him and we are wrong in law. We cannot reach that conclusion. If he succeeds at the full hearing on apparent bias, and our Judgment is set aside, he will not need permission. Apart from that, there is no reasonable prospect of overturning the Employment Tribunal's findings. The application is refused.