Iteshi v British Telecommunications (Practice and Procedure : Bias, misconduct and procedural irregularity) [2011] UKEAT 0378_11_3008

EAT
Iteshi v British Telecommunications (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2011] UKEAT 0378_11_3008 · 2011-08-30
[1]This case is about race and sex discrimination in the arrangements made for the selection of candidates to be interviewed for two positions. I have pre‑read the papers prepared by the case manager (no bundle being submitted by the Appellant) and looked also at an additional bundle produced today by Mr Iteshi, the Claimant, and read the relevant pages that I have been referred to. I will refer to him as the Claimant and to BT plc as the Respondent. The procedural background[2]It is an appeal by the Claimant in those proceedings against a Reserved Judgment of an Employment Tribunal sitting at London Central under the chairmanship of Employment Judge Sarah Goodman, in Reasons sent to the parties on 3 February 2011 with a full explanation for the apparent delay between the hearing and the Reasons. The Claimant represented himself and the Respondent was represented by counsel. The Claimant claimed race and sex discrimination in the selection procedures adopted by the Respondent; the Respondent contended that the first job was withdrawn and there was no appointment, and in relation to the second that the reasons why the Claimant was not sifted to an interview stage lay in his and the other candidates’ relative qualifications. The essential issues, therefore, were to decide the reason why the Claimant was not sifted further following his applications. The Employment Tribunal rejected the Claimant’s case under both the anti‑discrimination statutes; the Claimant appeals against that Judgment.[3]In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1‑13 I set out my approach to rule 3. It should be read with this Judgment. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240 .[4]On the sift of this Notice of Appeal in accordance with the Practice Direction HHJ Richardson exercised his power under rule 3(7) and concluded the case had no reasonable prospect of success. He said the following:
“The Notice of Appeal does not suggest any error of legal approach on the part of the Tribunal; the Tribunal’s summary of the law in paragraphs 34 to 38 of its reasons appears to me to be correct. Rather the Notice of Appeal is an attack on the Tribunal’s findings of fact. The limits of such a challenge are well known - see Yeboah v Crofton [2002] IRLR 634 at paragraph 93. The Tribunal heard the witnesses, considered the Claimant’s attack on their evidence and his suggestions of fabrication of documents, and accepted the truth of the evidence of the witnesses. It was entitled to do so, and I see no prospect of a successful attack on perversity grounds. Complaint is made of the Tribunal’s decisions about disclosure and case management, including the limitation of his cross examination time. These decisions are explained in the Tribunal’s reasons; I can see no error of law in the Tribunal’s decisions or reasoning in these respects. I do not think there is any substance in the Claimant’s criticism of the sufficiency of the Tribunal’s reasons. His suggestion that the Tribunal was biased is based on no more than the fact that the Tribunal determined issues against him. This is no foundation for an allegation of bias. For these reasons I consider there are no reasonable grounds for appealing.”
[5]Where no point of law is found section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction. The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a Judge, and he has done the latter. I hear the case on more material than was available to Judge Richardson and form my own view of the appeal. The question for me is whether there are any or no reasonable grounds in the appeal. The recusal application[6]At the outset of today’s hearing Mr Iteshi made clear and straightforward allegations against me of fraud, lack of credibility, evasion, dodging and failing to respond. The same allegations were made against HHJ Richardson. Mr Iteshi contends that his antecedents describe his torture in court, during the course of which he has remained cool. All he seeks to do is to express his displeasure at a fraudulent Judge sitting on his case, the Judge having lost all moral ground. If I were to recuse myself, another fraudulent Judge would be appointed. All Judges of the EAT are discredited, but in particular Judge Richardson and myself. The same allegation is made against HHJ Peter Clark, both of those Judges having given full Judgments in respect of appeals made by Mr Iteshi that failed, as has HHJ Hand QC, and so Mr Iteshi said that in the light of these accusations I should recuse myself from today’s hearing.[7]The Claimant misunderstands the distinction between a finding against him and a finding that his case will not be listened to objectively. I have heard Mr Iteshi in the past, and I have decided on the sift of his Notices of Appeal that they have no prospect of success. I have pointed out the very large number of appeals made by Mr Iteshi to the EAT; at the present time, some 15 appeals have been disposed of (none in his favour, as I understand it) and there are some 7 cases still before us, all against different Respondents. Mr Iteshi is entitled to a fair hearing on each of the cases that he brings before us, and that is what he will get. He has presented no evidence sufficient to cause any doubt in the eye of a reasonable, informed observer that I would not treat his case this morning in the same objective way as I would others. Applying the test in Porter v Magill [2002] AC 357 and Ansar v Lloyds [2007] IRLR 211 CA (upholding the principles I set out UKEAT/0609/05, and Burton P followed [2006] ICR 1566) I reject the application for recusal. The legislation[8]The legislation applied in this case is not in dispute; it is the Race Relations Act 1976 in the form known as direct discrimination, and it might also be said to be indirect discrimination in applying a condition or criterion to the recruitment of the Claimant. A similar claim was made under the Sex Discrimination Act 1975 . The Claimant said in his claim form that he was not considered for either of the two jobs because of his race or ethnicity or gender. The Tribunal set out the relevant law in paragraphs 34‑36 of its Judgment, and the relevant principles in paragraph 38, relating to the burden of proof and the offering of explanations by a Respondent; none of that is disputed before me today. Mr Iteshi relies upon his Notice of Appeal and his oral argument addressed to that Notice of Appeal. The facts[9]The Claimant is self‑described as a black African UK resident of Nigerian nationality and Igbo ethnic origin. The Tribunal set out the approach it was to take to the evidence at the outset:
“4. It is important to note that much of the Claimant’s case relied on challenging the authenticity of documents. So it is necessary to make some comment in our findings as to the witnesses’ truthfulness. We thought that both Mr Keith and Mr Edwards were frank and careful witnesses, who were honest about the extent of their records, and who would concede points in evidence. Of the Claimant, we accepted his factual evidence, but as would become clear, we could not accept the construction he put on some events, or his interpretation of them.”
[10]The Respondent sought to recruit a paralegal and an employment lawyer, sometimes described by BT as a contentious lawyer. The Claimant applied online. He has a number of qualifications, including his call to the Bar in 2007 and undergraduate and postgraduate qualifications. He has not undergone pupillage, and so cannot practise as a barrister, but of course can offer services of a legal nature.[11]The Tribunal found that as to the paralegal post a recruitment freeze was imposed after the point at which the Claimant had applied, and there was no recruitment. A person who had been approached as a result of a different exercise, known as Tom who appears to be white, might have been recruited, but the freeze was placed upon him too. The decision‑making in this is through the Head of Legal. The Tribunal accepted evidence of the applications for the paralegals. It resolved a dispute about how the freeze came to be imposed and accepted the Respondent’s case upon this. It did so by accepting explanations that rang true.[12]The second post was that of the employment lawyer. The requirements for the post were good advocacy skills. The Claimant could not show that he was entitled to practise as a barrister for want of the pupillage. He showed that he had obtained some experience of litigation, but ultimately the sift ruled him out by way of his shortfall in the requirements for the job.[13]Three candidates were thought to be suitable for interview, and in fact two were interviewed. The Tribunal found that they had higher qualifications than the Claimant and better experience relevant to the job description. Important to the decision‑making was that both were entitled to practise as lawyers, both barristers. The Tribunal upheld the Respondent’s case in the following way:
“31. The Respondents say that the Claimant’s experience came nowhere near their requirements, either in being qualified to practice as a barrister, or in having experience of working in a team with a large case load. Having heard the Claimant’s answers about his CV, and assessed it ourselves, we thought this was an accurate and reasonable assessment. We also thought that it was quite clear that candidates 1 and 2 who were actually interviewed had far more convincing qualifications in terms of experience of teamwork, managing a case load, and advocacy in the Tribunals. 32. It is a mark of the fact that the Claimant did not really dispute this that his real case was that these CVs were not genuine. In opening, he alleged that these CVs had been taken from a pool of CVs, and were not in fact those of the candidates who had been interviewed. The grounds on which he asserted this were: (i) that no emails had been produced from the candidate when filing their applications. (ii) that it was well known that black women did not go to Oxford or Cambridge. The Respondents made the point that although some of the personal information has been redacted, it would not have been too difficult for the Claimant to make enquiries about the background of these candidates had he wished to. The Tribunal, having heard the evidence, had no reason whatsoever to doubt that these CVs are genuine, and are in fact the CVs of two people who applied for the same job as the Claimant and who were interviewed for that post.”
[14]That indicates the Claimant’s approach to the case, which is the subject of a further note provided by the Tribunal as part of its Judgment. The Tribunal noted the following:
“47. On the morning of the hearing the panel were handed copies of an email the Claimant sent to London Central ET dated 17 November 2010 headed: “another false injustice is set to happen in the London Central Employment Tribunal (between today and tomorrow).”
The email covers two and a half sides of A4, summarises the points that the Claimant wishes to make, and expresses concern:
“that the Tribunal will ignore” these points in its decision, and says: “the Tribunal will most likely promulgate an evasive judgment adopting everything BT is saying despite my challenges without any justification as to why what I say cannot be believed. The Tribunal will equally fail to draw any inference from the failure to disclose relevant documents.”
[15]It then went on to note how it resolved the dispute about disclosure, and refused to order further disclosure. It also imposed time constraints on the Claimant’s cross‑examination; that is in accordance, of course, with the direction of the Lord Chief Justice to all courts to manage their time carefully, and does not appear to be the subject of any independent ground of complaint.[16]The Tribunal then in the substance of its Judgment examined the case the Claimant had made and held that he had not overcome the requirement that he produce evidence which could on its own show sex or race discrimination in accordance with the two‑stage test in Igen v Wong [2005] IRLR 258 . It accepted the Respondent’s explanation, which may be given, as it correctly noted, at the same time (see Network Rail Infrastructure v Griffiths‑Henry [2006] IRLR 865 ), that there had been a freeze and that explained why no one’s application was taken further for the paralegal. As to the employment lawyer, the Respondent’s case was accepted: that the Claimant did not meet the qualifications for the job by way of qualifications, experience and so on, and therefore the Claimant had not proved such facts as would cause the burden of proof to shift. It did make some criticisms of the way in which the Respondent dealt with the further stages.[17]The Tribunal was considering the claim that the Claimant had not been treated fairly in his application, in that he had not been sifted into an interview stage. What happened thereafter was that neither of the two women who had been interviewed and recommended, one of whom was preferred, was in fact appointed, because a manager decided that the appointee should be a solicitor. A white woman solicitor was appointed. The Tribunal said this:
“We comment at this point that it is not necessary for the Respondent’s case to succeed that in fact the interviewed candidates were both black. Their experience and qualifications fitted the Respondent’s requirements, which in our view were reasonable and necessary. The Claimant’s did not. We should also mention the unexplained decision by Mr Jobling not to accept either of them, because he now said he wanted solicitors. If either woman had brought a discrimination claim, this would certainly need to be explained. But it does not suggest that the decision not to shortlist the Claimant needs to be explained or that race or sex was a reason for the Claimant not being interviewed. The Respondent’s reasons for not interviewing have convinced us as genuine, and relevant to the job.”
The Claimant’s case[18]Naturally the Claimant contends the Tribunal lived up to his pre‑trial publicity and was biased against him. In strong terms he criticises the conduct of the Employment Tribunal and its decision as being a classic case of judicial bias. Any informed observer would see that the Tribunal was predetermined to find against him. The Tribunal spent more time in manipulating or embellishing the Respondent’s very bad case than promulgating a proper Judgment. It refused to accept useful evidence and to order vital disclosure. No steps had been taken by the Claimant to comply with the Practice Direction and to give further particulars of that or to provide an affidavit of evidence; nevertheless, the gist of the complaint is clear.[19]The Claimant contends that the principal ground of appeal is evasiveness and perversity, and rightly points out that this Tribunal, although there is a high hurdle against success in such cases, does allow them from time to time (see Yeboah [2002] IRLR 634 CA). The Tribunal spent time patching up the Respondent’s case and deviating into falsehood in its desperate attempt “to deny me justice” and as a result reached a conclusion that was perverse. Secondly, as is so often the case in this Tribunal, such a ground is accompanied by a Reasons challenge. Insufficient reasons were given by the Tribunal for its decision when, the Claimant contends, every single fact was disputed. The legal principles[20]The legal principles are not in dispute in this case, as I have indicated above. As to fairness, a proper opportunity must be given for the case to be presented and for decisions to be made as a result of the evidence and the submissions. Conclusions[21]For essentially the same Reasons as are given by Judge Richardson, this case has no prospect of success. As to the paralegal position, the dispute before the Tribunal was as to why the Claimant had got no further in his application. The Tribunal accepted management’s evidence as to the recruitment freeze. Tribunals and the EAT see many of them in the present economic climate. That was the reason why the Respondent took the matter of paralegal no further. It was irrelevant what the Claimant’s background was, because no one was appointed of the 40 or so applicants, not even Tom. That is clear and it shows that race and sex discrimination played no part.[22]As to the employment lawyer position, the Claimant did himself no good in his assertion that the Respondent had fabricated the material relating to the two black women whom it had interviewed and whose CVs it had examined. Objectively, the CVs placed those two women in a higher category than the Claimant by way of experience relevant to the job and qualifications. For him to assert that these must be fabricated because it is well known that black women did not go to Oxford or Cambridge was an easy assertion for the Tribunal to reject. Plainly accepting the evidence of the Respondent of the existence of, and qualifications of, these two women, it is obvious how wrong the Claimant is. At least two black women have been to Oxford and Cambridge, and there are many more, as is apparent to anybody with any familiarity with the modern legal professions and admission of candidates to Oxford and Cambridge. It is an unworthy assertion. One does not know how that assertion would have been treated by the two women professionals. The Respondent’s case as to their qualifications was accepted. They were better qualified; that was a matter for the Respondent to decide, and the fact is that both of those candidates were black. The Tribunal noted that it was not necessary for the Respondent’s case to succeed to show that it in fact interviewed two black candidates. The basis of this case was that the two candidates had the qualifications that they did, and the Tribunal came to a permissible conclusion in deciding that this was nothing to do with the Claimant’s race or gender.[23]Nor did the Claimant assist his case by making the unwarranted allegation against the Tribunal in his pre‑trial utterance. It is worth reminding this legally qualified Claimant that bias means a predetermination based upon an imperfect approach to the evidence or a stereotypical adverse opinion. Yet that is exactly what Mr Iteshi had before this Employment Tribunal descended upon the case. He accused it of being biased before he had even faced the members of this Tribunal. Fortunately the Tribunal noted this, and I detect no trace of any bias against the Claimant either in the form of the pre‑hearing publicity or in what he has told me about the conduct of the case.[24]As Mr Iteshi carefully puts it in measured terms, being a member of the Bar making allegations of fraud by Judges might put him at risk of sanction. I do not know whether it would or not - I can weather his baseless assertions. But in this court he already has some 15 or so failed appeals. It may be that the Attorney General’s office, who has powers under Employment Tribunals Act 1996 s33 and has raised an enquiry of the Registrar, will wish to consider the history. Those are matters, however, for the Attorney General’s office and for the Registrar, and not for me.[25]I have pointed out Mr Iteshi’s sad record in the EAT. It appears to me that he joins in a grim carousel. He needs a job, applies and fails to get interviewed or appointed, he brings proceedings in the Employment Tribunal, which fail, and then he brings proceedings in the EAT, which fail. The basis of his approach to all of these cases is that he will not get justice in our Tribunals. He employs absurd logic, which he expressed to me in graphic terms: he has never taken drink or unlawful drugs, he is not a madman, and so the Judges who do not follow his submissions and do not find in his favour must be wrong and biased. There is no logic in that proposition. This application is dismissed. Appeal[26]The application for permission to appeal is refused. It has no prospect of success, and there is no compelling reason for Mr Iteshi to be heard by the Court of Appeal. He again makes the contention that I am a fraudulent Judge; we differ.