Lewis v New College Oxford (Practice and Procedure : Bias, misconduct and procedural irregularity) [2011] UKEAT 0533_10_1410

EAT
Lewis v New College Oxford (Practice and Procedure : Bias, misconduct and procedural irregularity)
[2011] UKEAT 0533_10_1410 · 2011-10-14
[1]This case is ultimately about race discrimination in the context of a dismissal, said to be unfair in the ordinary sense and discriminatory by way of direct race discrimination; and victimisation for having done a protected act. On appeal it is about Employment Tribunal procedure. This is the Judgment of the court to which all members, appointed by statute for their diverse specialist experience, have contributed. We will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal sent to the parties on 19 August 2010, following their delivery orally at the end of a three day hearing under the chairmanship of Employment Judge Coles, sitting with Mr J Cameron and Mrs E Grugeon.[3]The Claimant was represented by his partner, Ms Ruskin, who is a youth worker and the Respondent was represented by a consultant. Today, both parties have the services of counsel, Ms Robinson, appearing for the Pro Bono Unit, for the Claimant, and Mr Samson for the Respondent.[4]The Claimant essentially made the claim which we have described above. It was disputed by the Respondent. The essential issues had been mapped out for this Tribunal following the most protracted pre-trial directions and are encapsulated in the Tribunal’s Judgment in the following way:
“7. The only outstanding claim therefore, relates to case number 2703399/2009 which was presented to the Tribunal on 1 September 2009 and was initially a complaint of unfair dismissal but by leave granted on 11 December 2009, the Claimant was permitted to amend that claim to include claims of direct race discrimination and victimisation in relation to his dismissal. The Claimant was dismissed with notice on 14 August 2009 on capability grounds. 8. Accordingly, any complaint of race discrimination in relation to matters other than those immediately leading up to and including the Claimant’s dismissal are not the subject of consideration by this Tribunal as causes of action in themselves. The Tribunal is, however, of course, entitled to consider them as matters by way of background only, in order to assist it in determining the specific issues before it for adjudication and determination.”
[5]The Tribunal dismissed the claims. Procedure on appeal[6]The matter came before Cox J on his appeal who sent the matter to a preliminary hearing. The Claimant had raised substantive issues and issues relating to procedure, principally material irregularity and apparent bias. What troubled Cox J was that complaints had been made that the Claimant and his representative were prevented from asking questions and further material would be required because it was contended that there was a perception of bias.[7]The appeal was sent to a preliminary hearing. That was conducted by HHJ Hand QC on 18 May 2011, sitting with Mrs Chapman and Baroness Drake of Shene. The Claimant was there represented by different counsel giving his services under the ELAA Scheme. It is plain that the three person EAT was very concerned about the allegations of material irregularity and allegations that there were stereotypical views taken of the Claimant, who is Black, of Afro-Caribbean descent, born in the UK. For that reason, further directions were given to the parties as to the way in which the matter should progress.[8]Cox J had already set en train the paragraph 11 Practice Direction procedure, affidavit evidence was adduced by the Claimant and Ms Ruskin. That, together with the Notice of Appeal, was sent to the judge and members. A summary response was provided by the judge and detailed response by the members. When the matter came before Judge Hand’s division of this Tribunal, further directions were given for the judge to respond to the material, for an amended Notice of Appeal to be approved by the EAT, which it was in due course, and for an opportunity to be given to the Respondent to produce affidavit evidence and object to the Notice of Appeal, and to indicate if it wished to cross-examine the Claimant and Ms Ruskin. The Respondent did none of the above, and as we ruled in an interim ruling at the outset of this case, Judge Hand’s order directs this case: there is before us affidavit evidence from the Claimant and Ms Ruskin which stands, with the statements of the judge and the two members.[9]That material has been subject to rigorous analysis and submission by both counsel and so, although this was available as a live hearing, the formal position is in accordance with Facey v Midas Retail Security & Anor [2001] ICR 287 EAT as I explained in Abegaze v Shrewsbury College of Arts & Technology [2000] UKEAT 0176/07, not disturbed by the Court of Appeal on this point [2009] EWCA Civ 96 . We decide what the facts are, in the light of all the material and submissions, and decide from the perspective of an informed observer, whether an appearance of bias is given by the judge, or the members, or all of them.[10]Since we announced to the parties, at the conclusion of the argument, that this appeal will be allowed and the case remitted, the less we say about the substantive facts the better. We will provide sufficient to illuminate our thinking on what we hold to be the principal point which is apparent bias and material irregularity. It is common ground between counsel that if this point succeeds, the Judgment has to be set aside and so, although weighty arguments were presented by Mr Samson in his commendable and fair skeleton argument on the substantive points, as will be apparent, it is not necessary to deal with those head on. The legislation[11]To that extent, therefore, the legislation relevant to this appeal is not necessary to expand upon. Unfair dismissal, in its ordinary sense, is set out in section 98(1) of the Employment Rights Act , and fairness, by 98(4). Race Relations Act 1976 section 1 outlaws discrimination. The burden of proof is dealt with in section 54A(2). The Tribunal directed itself correctly in respect of those provisions and their application to direct discrimination and dismissal in the form of victimisation. The Tribunal does not expressly refer to the drawing of inferences from evasive answers or failures to answer questionnaires, a matter which will become important in this case.

(b) Facts

[12]The Claimant was employed by New College Oxford as a Deputy Head Chef. He had been a qualified chef for 20 years, having previously given his time to another of the learned institutions, Keble College. The Head Chef at the time he joined was French Algerian. A forthcoming vacancy was announced in November 2007. There were 60 applications. Four candidates, including the Claimant, were short-listed. The other three were white.[13]A qualification in food hygiene was required examination which the Claimant did not yet have. He was still interviewed for it. He was not successful. One of the interviewers was Dr Parrott, who is a history don. He wrote in elliptical terms on his notes of the interview, describing the Claimant as “Mr Pangloss himself”. The Claimant discovered later this is a reference to Doctor (or Maitre ) Pangloss, a fictional follower of the philosopher Leibniz, satirised by Voltaire in his work Candide , 1759; the full title of which, in various languages, Candide or Optimism , or Candide: The Optimist .[14]The gist of Dr Parrott’s depiction is that in the light of what he heard from the Claimant at his interview, he appeared to accept matters as they are, rather than striving for change, viewing life as all is for the best in the best of all possible worlds, the words attributed to Leibniz, and recounted by Candide.[15]It is extraordinary in this case what a large role this epigrammatic comment by an interviewer has had. It has been an interesting excursion and it does invoke some straining of a connection between an Age of Enlightenment, pre-revolutionary philosopher, fictionalised by a satirist in 1759, and a Black Afro-Caribbean chef in 2007 Oxford. But, the sense in which, the Claimant contended it was used by Dr Parrott was that he, the Claimant, had not produced sufficient original work for his interview and that it demonstrated that he was lazy.

The judge recorded the Claimant’s approach as being this:

“15. He also felt that the comment was indicative of a “stereotypical” view of men of Caribbean origin being “laid back” to the extreme.”
[16]The Claimant knew that he was raising race discrimination claims only in respect of the dismissal but, as we have pointed out, the Tribunal was alert to the fact that it was entitled to use as background the per-employment matters including the Pangloss comment. Actually, the Claimant had put forward in his sole surviving amended claim form the following:
“The background to my unfair dismissal due to racial discrimination includes incidents that have occurred over the last two years: I believe I have been subject to racial harassment, racial discrimination and victimisation contrary to the Race Relations Act (1976).”
[17]There are then enumerated ten different matters which he contended would inform the decision-making of the Tribunal as to the reason for his dismissal two years later. That dismissal, the Respondent says, was entirely due to his absence and a decision was made by the HR Manager and the Domestic Purser in August 2009 to dismiss him for that reason.[18]But it was the Claimant’s pleaded case that ten matters should be taken into account, in deciding whether or not there was any race discrimination in the decision to dismiss him. He also contended, of course, that the dismissal was unfair in ordinary terms, but it is notable that he did not appeal internally against the decision of the two officers to dismiss him. The legal principles[19]The legal principles to be applied in this case emerge from the Judgment of the House of Lords in Porter v Magill [2002] 2 AC 357 in the speech of Lord Hope of Craighead at paragraphs 102 and 103, summarised in the short precis we gave above. The correct approach in the EAT is as I gave in my Judgment on behalf of the EAT in Abegaze (see above).[20]It is important to note, as did Rimer J as he then was, that allegations of bias and procedural irregularity are increasing in this jurisdiction and great care should be taken to see if there is substance before allowing them. See London Borough of Hackney & Ors v Sagnia UKEAT 06/00/03. Sadly, Rimer LJ had occasion to remark on the same tread five years later in his Judgment in Bascetta & Anor v Abbey National Plc [2009] EWCA Civ 840 , where he said as follows:
“In my own experience of appeals to the Appeal Tribunal […] vexatious allegations of bias are frequently raised by losing litigants before employment tribunals.”
[21]It is because of that, that the Practice Direction includes paragraph 11 on this rigorous approach to requiring those who challenge judicial officers to do so on oath or affirmation, and for there to be a hearing on the matter.[22]We bear in mind that in Igen v Wong [2005] ICR 930 CA, the two stage test for determining whether the burden of proof switches, is reflected by a composite approach which may be taken in certain cases (see Madarassy v Nomura International Plc [2007] ICR 867 ). If the burden of proof is not such as to shift to the Respondent, it may be that a view could be taken at that stage. We think that that will rarely be done but it is at least available. The arguments[23]Ms Robinson, in an exemplary oral argument without the benefit of her own written skeleton (she was instructed late), was able to focus this wide ranging attack on the Tribunal into a few short points. She contended that on the material adduced principally by Ms Ruskin, and the lay member Mrs Grugeon, there was sufficient material to indicate that the Tribunal had not been fully aware of the legal case and that some of the points that had been made by Ms Ruskin were accepted by at least one member of that Tribunal.[24]She contended that the Tribunal had adopted an over robust approach which went beyond simple case management and shut the Claimant out of his case; and that a stereotypical view had been adopted by the Employment Judge of the Claimant’s ethnic group. Certain matters were prevented by the judge from being advanced by Ms Ruskin and the Judgment could not stand.[25]Mr Samson has responded by indicating that there is more to this than the material simply of one of the members, and relied upon the statements of the judge and Mr Cameron, that the subject of this appeal had been trawled, in many case management decisions including a decision in relation to the “Pangloss” point, and that it was not open to the Claimant to re-open the matters here.[26]It was important to stand back and look at the substance of the Claimant’s case, including the distance in time between the “Pangloss” comment at his interview in November 2007, and dismissal almost two years later, based upon completely different circumstances, in the hands of two officers, who were not associated with Dr Parrott.[27]The Tribunal had mentioned a number of the matters in the Claimant’s claim form, although it is accepted that only two of them came to the fore. Discussion and conclusions[28]We prefer the arguments of Ms Robinson and have decided the appeal should be allowed and the case remitted. It must be appreciated that the material which we are working on, by order of Judge Hand’s division of the EAT, consists of the affidavit of Ms Ruskin, supported somewhat by the Claimant, which stands, and the response given to it by Mrs Grugeon.[29]The first thing that we note is that Ms Ruskin contends that the judge stopped her from asking witnesses questions relating to some incidents which the Claimant believed showed the Respondent’s discriminatory attitude to him. As to that, Mrs Grugeon acknowledges that a judge, in her experience, will stop questions where they are irrelevant. The implication of that is that there was a decision by the judge as to relevance, but she makes the point four times in these comments, that “this was a claim for unfair dismissal, so our questions would have been directed towards that”.[30]In our judgment that is a fundamental misunderstanding of the purpose of the case and her role. She does so having read the Judgment for the purposes of making these comments. She says, apart from background, the failure of the Claimant to get the chef’s job was not relevant, as the claim was for unfair dismissal. Again, she says:
“We were looking essentially at an unfair dismissal claim and I cannot see the relevance of what the Claimant says”
. She also says that none of the matters relating to a questionnaire is relevant to the claim of unfair dismissal.[31]This is a specific reference to the contention made by Ms Ruskin, about the way in which the Respondent had responded to two statutory questionnaires and questions which she asked. It could not be said that these had fallen away in the course of argument, because Ms Ruskin put in written submissions, the second point in which was a complaint about the race relations questionnaire.[32]This is important, as we indicated earlier, because inferences can be drawn. The Tribunal did draw inferences in this case, but a statutory factor is the Respondent’s response to questionnaires. If the Tribunal was of the view that it should not draw any adverse inference from the way in which the Respondent responded to the questionnaires, it was bound to say so given the submission made in writing to it. It may be there is no inference. It may be there is nothing in Ms Ruskin’s point that the Respondent’s people lied. But that is a matter which must form the basis of any consideration as to inferences.[33]It is plain from the layout of the Judgment that the Tribunal was concerned only with two of the background matters which were presented by the Claimant out of the ten in his claim for viz his failure to get the chef’s job and his disciplinary record. Again it may well be that the Tribunal did not think much of the other matters or consider that they shed any light on his dismissal. But since they are clearly pleaded and, at least in one or two places in the Judgment, there is a reflection of a consideration of them, the Tribunal was bound to say, in respect of all of them, whether they did give ground for an inference, all together or one by one.[34]Something had to be said about this because this was the Claimant’s case. Ms Robinson rightly says the Tribunal did draw inferences but not on the full basis which was open to it. As Ms Ruskin says in her unchallenged evidence to us, she was stopped from asking questions and at least Mrs Grugeon acknowledges that the questions related to relevance. These are relevant matters. If they were held no longer to be relevant, the Tribunal should have said so. The central point of Ms Robinson’s case is that the Tribunal did not allow the full range of questioning of the witnesses, and this itself is a material irregularity.[35]We turn then to the second matter, which is the “Pangloss” point. This matter has taken over this case. It is actually a small part of it and it requires quite a leap of reasoning, for the reference to the Claimant being “Mr Pangloss indeed” to a reflection by Dr Parrott that he is lazy and stupid. Nevertheless, the judge accepts that there was a reference to a stereotype in the course of the hearing.[36]Ms Ruskin says the judge said that being lazy and stupid is not a stereotype of a Black Caribbean man. This occurred during the course of cross-examination on the interview notes. Ms Ruskin says she had supplied documentary evidence from two universities on this point. Mrs Grugeon acknowledges that Ms Ruskin did put that material forward, although she considered that the point Ms Ruskin was making was not borne out by that evidence.[37]Nevertheless, if there was evidence, it required to be dealt with. Instead, the judge came up with his own account, which is in paragraph 15 which we have cited above. In his comments, given to the EAT following Judge Hand’s division’s direction, he said this:
“1.7 It was, of course, the Claimant and his representative who raised the question of “stereotypical” views of Black Caribbean males. I still do not believe that there is a stereotypical view of Black Caribbean males being “lazy and stupid”
. They may have a more “relaxed” approach to life than other ethnic groups but that is not in any way a derogatory assessment and in any event was not in reality a relevant feature in this case. The Tribunal was unanimously satisfied that the Respondent’s assessment of the Claimant was as identified of paragraph 51 of the Written Reasons which related purely to the assessment of the Claimant as an individual and was not based on any stereotypical view of male Caribbeans.”[38]We agree with Ms Robinson that here the judge has at least given the appearance of holding a stereotypical view, in that he takes a view that a more relaxed approach to life is exhibited by Black Caribbean males, than other groups. In our judgment, that is inappropriate. It is put as an allegation of actual bias but we prefer to regard it, and we uphold it, as being an allegation of apparent bias.[39]Given that there was evidence as to stereotypes, it ought to have been dealt with and not been the substitution of a view by the judge. The matter which worried Judge Hand’s division of this Tribunal was the finding by the judge and Mr Cameron in their subsequent comments, that there was no such attitude towards Black Caribbean men in this country, a view which surprised very much the lay members in Judge Hand’s division and Judge Hand too.[40]In that respect, it is a matter that we too might have a view about. Since there is no challenge before us to the evidence which Ms Ruskin says she put before the Tribunal as to a divergent view of two universities (we have not seen it), we consider that there would have been substance in her submission and it was not fair for the Tribunal to form such a view.[41]A good deal has been made in this case about whether or not allegations of lying and material available for inferences get home. As Ms Robinson correctly submits, that is not a matter for us. We would not send this case back to a Tribunal to hear again if there were absolutely no substance in the matter, but in the grey area of whether or not there were lies and inferences, those are matters which we cannot possibly decide here.[42]Further, we consider there is substance in Ms Robinson’s point that given that at least Mr Cameron considered that the witness team from New College was smug and superior, that should have been a matter which was dealt with in the Judgment in accordance with its duty to make inferences. Were they smug and superior because they were above a mere chef? Or was it anything to do with the fact that he was Black Caribbean? Particularly in the light of what Ms Robinson contends is a highly dismissive superior and arrogant approach by Dr Parrott in responding to the Claimant when he raised the issue of what “Mr Pangloss” meant. The don was to produce a three-page essay which had some unfortunate epithets about stupidity and malice. Irony was not what was called for. The Tribunal ought to have decided these matters in relation to whether or not there was any race discrimination involved in the decision to dismiss in the light of all that material.[43]Finally, it is contended that the judge took a view of the case before the conclusion of the Respondent’s evidence. This was a case where, unusually in an unfair dismissal claim, the Claimant went first - unusually, because the Claimant was raising allegations of race discrimination, but they were in respect of unfair dismissal only. It is a matter for case management, in the hands of a Tribunal, which evidence to take first, and there is no criticism of it for doing it this way. All the witness statements were exchanged in advance.[44]At the end of the second day, prior to the calling of Ms Goodgame, the HR Manager, the judge said that the Tribunal would move straight to submissions. Ms Ruskin complained, because she wanted to ask the HR Manager questions. She felt rushed, and that the judge did not want to hear any more evidence, as he had already made up his mind in favour of the Respondent.[45]In our judgment there is substance in that. Ms Robinson contends that even if the judge were deciding the matter in relation to the burden of proof, in that the Claimant had not been able to move the burden of proof, that was a decision that could only be made at the appropriate stage on the conclusion of all the evidence and the submissions by the three person Tribunal (see Magenta Security Services v Wilkinson [2007] UKEAT 0385/06/1501 ) When confronted with this matter, the judge decided that the evidence of the HR Manager would be heard. Obviously she had to be heard. She had exchanged a statement and she was party to the decision to dismiss the Claimant, and it is inexplicable that her evidence should have been thought by the judge not to be called, certainly without any reference to the Respondent’s representative, who could of course say that he did not wish to call this particular evidence. That does not seem to have been his view. So, again, there is an appearance that the Tribunal had formed a view before an appropriate in-chambers discussion.[46]In the comments of Mrs Grugeon and Mr Cameron there are references to the decision-making. They apparently are both members of the panel constituted by the Secretary of State from those having experience in race discrimination claims. They are alert to the problems, and that the decisions are made by the three of them. But as a matter of law, the Claimant is entitled to a fair hearing by three persons who all have an open mind and who make decisions on the basis of what they hear together. If one of them does not meet that test, then the decision must be set aside. In our judgment, confirmation of Ms Ruskin’s evidence is given amply by Mrs Grugeon and that in itself is sufficient.[47]We have also paid attention to what the judge says about his creation of the formulation of the Claimant’s case recorded in the evidence. In the circumstances, while not needing to consider the substantive points of law, we hold that the decision must be set aside and it will be remitted to a new Employment Tribunal.