Appeal No. EAT/1434/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 May 2001

Before
MS RECORDER COX QC
MR S M SPRINGER MBE
MRS R A VICKERS

DR L T LEANDER	APPELLANT

GOLDSMITH'S COLLEGE (UNIVERSITY OF LONDON)	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised: 1 August 2001

	APPEARANCES

For the Appellant	DR L T LEANDER
(The Appellant in Person)	

MS RECORDER COX QC

1.	This is an appeal from the decision of an Employment Tribunal sitting in London South, which was promulgated on 11 October 2000.  It comes before us today by way of a Preliminary Hearing.

2.	The Originating Application was received by the Employment Tribunal on 31 March 2000 and there were various allegations made, including breach of contract, wrongful and constructive dismissal and, in addition, an allegation that the Appellant had been discriminated against on the grounds of race and that that discrimination was both direct and indirect.  All the claims were resisted by the Respondent.

3.	The unanimous decision of the Employment Tribunal was that the Originating Application was not presented to the Tribunal within the period specified in Article 7 of the Employment Tribunals Extension of Jurisdiction order 1994, despite it having been reasonably practicable for the Originating Application to have been presented within that period.  As a result the Tribunal decided that they did not have jurisdiction to consider the Appellant’s breach of contract complaints and those complaints were dismissed.

4.	The complaints of unlawful racial discrimination both direct and indirect, were held not to have been presented to the Tribunal before the end of three months, beginning when the acts complained of were done and in all the circumstances of the case the Tribunal considered that it was not just and equitable for them nevertheless to consider such complaints out of time.

5.	There was a further order made in that an application made by the Appellant for witness orders was refused.
6.	In his Notice of Appeal, Dr Leander who appears before us today in person, has set out a number of errors of law which he contends are contained in the decision of the Employment Tribunal.  In addition, he complains about the conduct of the Chairman during the hearing and sets out in his Notice of Appeal a number of what he describes as procedural irregularities relating to orders that the Tribunal gave and to warnings given to him by the Chairman of the Tribunal.  He also alleges that there was bias and improper conduct by the Chairman in the ways set out in his Notice of Appeal on page 2 (b).

7.	Before us today he has helpfully summarised his arguments by saying that his first and main contention is that the Tribunal displayed bias, in particular in relation to the conduct of and statements by the Chairman during the hearing and he has succinctly summarised the errors of law which he maintains were made by the Tribunal in their decision.

8.	In their extended reasons, the Employment Tribunal set out at paragraphs 3-12 the nature of the claims made by the Appellant and the issues which arose.  I shall not repeat them all here but paragraph 12 records correctly that a time limit issue arose in relation to both the direct and indirect race discrimination complaints.

9.	The Respondent alleged that the Appellant ceased to be an employee as from 31December 1999 and accordingly all of the complaints arose on or prior to that date.  It was noticed that the Originating Application was not presented until 31 March 2000.  An issue, therefore, arose under Section 68 of the Race Relations Act 1976, as to whether the complaints had been presented within the period of 3 months, beginning when the relevant acts complained of were done, and if not whether, in all the circumstances of the case, it was considered just and equitable for the Tribunal nevertheless to consider such out of time complaints.

10.	A jurisdictional issue arose also in relation to the breach of contract claim and both parties, it seems from paragraph 13 of the decision, wished both jurisdictional issues to be decided as a Preliminary issue.  The Tribunal decided to treat as a Preliminary issue the breach of contract jurisdiction point but they determined that they would leave the issue of jurisdiction which arose in relation to the race discrimination complaints to be decided once the Tribunal had heard all the evidence as to the merits of the race discrimination issues.

11.	We take the view that the Employment Tribunal, in exercising their discretion and deciding to deal with the matters in that, way were following a well-recognised approach to such matters and we see no error of law in the way they dealt with that matter.

12.	In paragraphs 13-17, the Employment Tribunal deal in detail with the breach of contract jurisdictional issue and they conclude, having heard all the evidence and considering the submissions of the parties, that the Originating Application had been presented out of time.  The effective date of termination being 31 December 1999, the Originating Application was not presented until 31 March 2000 and was therefore one day out of time.

13.	The Tribunal conclude in paragraph 16 that it was reasonably practicable for the Originating Application to have been presented within 3 months of 31 December 1999.  They noted that the Appellant had returned to work as a visiting tutor during that period and had written at least one memorandum.  The Tribunal also noted in particular that the Originating Application had been completed and was dated 30 March but was not sent by fax until the early hours of the following day.  The Tribunal accordingly dismissed the breach of contract complaints on the basis that they did not have jurisdiction to consider them.

14.	They made it clear, in arriving at that conclusion, that they had taken into account the Appellant’s evidence as to his illness during January 2000 and his admitted knowledge as to the time limit.  Having considered those paragraphs with particular care, we can see no arguable error of law disclosed in the way that the Employment Tribunal approached the jurisdiction issue on the breach of contract complaint.

15.	In paragraphs 18-21 the Tribunal dealt with the application for witness orders and the Tribunal record in paragraph 18 that, following their decision on the Preliminary issue of jurisdiction, the Appellant made an application for two witness orders in respect of two members of staff.

16.	They then set out that it transpired that the Appellant had requested one of these witnesses, Professor Pimlott, to attend a Tribunal at the end of July 2000 and that the professor had refused.  The refusal came via the Respondent’s personnel officer who had advised the Appellant at that stage that he could apply to the Tribunal for a witness order.  However, no application had been made prior to the hearing for such an order.  It also transpired that the Appellant had not asked the second witness, Ms Barlow, to attend.  Nor had there been any application for a witness order for her to attend prior to the hearing.

17.	The Tribunal retired to consider the matter and decided to refuse the application for witness orders.  They record in paragraph 21 that they had no knowledge as to the relevance of the evidence of those witnesses, but in any event decided that the practicalities of the matter were such that it was too late for such orders to be made and for such persons to attend the Tribunal hearing.  In the exercise of their discretion they therefore refused the application for witness orders.

18.	Once again, we cannot see any arguable error of law in relation to the way the Tribunal dealt with that matter as it appears from the extended reasons.

19.	In paragraphs 22 onwards the Tribunal then record the evidence which was adduced before them and their findings of facts and these are set out in considerable detail.  We shall not refer to all of them but we look in particular at the following paragraphs.

20.	In paragraph 24, it is recorded that there had been an earlier Interlocutory hearing at which directions had been given in the case, which directions were then sent out in a letter to the parties.  The Appellant has confirmed to us this morning that that was a hearing which he attended.  Those directions included one that the parties were to prepare witness statements and exchange all witness statements by 31 July 2000.  Additionally, a direction was given that no further evidence was to be introduced without the leave of the Tribunal

21.	These are well-known and well-recognised directions given – by way of case management for a hearing which is to take place later (by a Chairman at an Interlocutory hearing).  At the substantive hearing there were concerns, as set out in paragraph 24, about the Appellant’s compliance with those directions.  The Tribunal record that he had not in fact prepared a statement of his own evidence and further he produced at the hearing a witness statement for someone called Mrs Knight, which statement had not previously been seen.by the Respondent.

22.	The Tribunal indicate that they gave the Appellant time for him to prepare a witness statement for himself.  After some deliberation they state that after considering the submissions of the parties and the balance of prejudice as between the parties, they decided not to admit the evidence of Mrs Knight.

23.	Once again, it seems to us that that was a matter for the discretion of the Tribunal and they exercised their discretion not to admit evidence which had arrived very late in the day and in breach of the Order made at the earlier Interlocutory hearing.

24.	They refer in paragraph 25 to the bundles of documents which had been prepared by the parties and refer importantly to the fact that the Tribunal’s attention was not drawn to all of the documents in the respective bundles.  It frequently happens in such hearings that a large number of documents which are before the Employment Tribunal do not in the event have any direct bearing on the issues before them and it appears that this was the position in this case.

25.	In paragraph 26 the Tribunal record that on the second day of the hearing, after lunch, the Appellant made an application for disclosure of various documents by the Respondent.  The Tribunal noted that the earlier Interlocutory Order had dealt also with the issue of disclosure and after considering the matter, the Tribunal announced that it would not entertain any application for disclosure of further documents.

26.	They state very clearly that in arriving at that conclusion they took into account the late stage at which that application was made, the perceived relevance of the requested documents to the issues and the balance of prejudice.  The Chairman in his Affidavit, responding to the allegations of bias, deals with this matter further in paragraphs 14 to 15 and explains all these matters were considered very carefully before the Tribunal members concluded that they would not entertain any late application for disclosure of the further documents.

27.	The Tribunal then, in paragraphs 34-43 set out the relevant legal principles which govern the case and the issues before them.  They correctly direct themselves, it seems to us, as to the relevant provisions of the Race Relations Act 1976, dealing with both direct and indirect discrimination.  In paragraph 41 they correctly identify Section 68 of the Race Relations Act 1976, which sets the time limit for the bringing of complaints of racial discrimination and correctly direct themselves as to the test for jurisdiction both as to whether a matter is out of time for the purposes of the legislation and as to the power that an Employment Tribunal has to allow, nevertheless, an allegation made out of time to proceed if they consider that it is just and equitable for it to do so. 

28.	In paragraphs 42 and 43 they correctly set out and direct themselves as to the case law and principles therein which govern the way in which Tribunals are to decide whether allegations of direct discrimination have been proved.

29.	In paragraphs 44 onwards, the Tribunal set out their deliberations and their conclusions.

30.	In paragraph 46 they deal with the jurisdictional issue as it applied to the complaints of unlawful discrimination and the Tribunal found that the alleged acts of unlawful race discrimination were dated on and prior to 31 December 1999.  They therefore found that, in those circumstances, the Originating Application was not presented within the 3 months beginning when the act complained of was done.

31.	The Tribunal then considered whether nevertheless as a matter of discretion they should consider such a complaint on the basis that it was just and equitable to do so.  They found, however, that there was no basis on which it would be just and equitable and, in doing so, the Tribunal stated in paragraph 46 that they were taking into account the evidence and submissions in relation to the breach of contract jurisdictional issue so far as they were relevant also to this issue.

32.	They record that the Appellant was well aware of the time limit for bringing the proceedings and that no further evidence was brought forward by the Appellant in support of an argument, that it was just and equitable for the Tribunal to consider those complaints which were out of time.

33.	In the circumstances, the Tribunal found that they had no jurisdiction to consider the Appellant’s complaints of unlawful race discrimination, both direct and indirect and dismissed those complaints.

34.	However, in paragraphs 47 onwards the Tribunal, expressing it to be for the benefit of the parties, then set out what their decision would have been in the event that the Tribunal had found that it was just and equitable to consider the Appellant’s out of time race discrimination complaint.

35.	In paragraphs 48-50 they set out their reasons, applying the relevant legal principles to their findings of fact, as to why they did not find that the Appellant would have proved his complaints either of direct or indirect race discrimination.

36.	Once again we can detect no arguable error of law in the way that the Employment Tribunal approached those issues and arrived at the conclusions that they did.

37.	That being the case we had then had to consider most carefully the allegations of bias and misconduct, which are made by the Appellant in his Notice of Appeal and before us today and to consider whether there is a reasonably arguable case that there was a real danger or possibility of bias (see R v Gough [1993] AC 646).

38.	It seems to us that in relation to the Tribunal’s refusal to order further disclosure of documents and to allow the late statement of Mrs Knight to be admitted, the criticisms made of the way in which they exercised their discretion are more appropriately dealt with under the heading of errors of law, rather than as part of any allegation of bias or misconduct on the part of the Chairman.

39.	It is clear from the reasons that these were unanimous decisions made by all three members of the Tribunal in the exercise of their discretion and we can see no arguable case that the orders that were made in relation to the documents and witness statement, were an indication of any misconduct or bias on the part of the Chairman or that they could reasonably be perceived as indicating that there was such bias and misconduct being displayed towards the Appellant.

40.	In addition to those specific matters, the Appellant alleges before us that there were further points at which he felt that this Chairman indicated that he was biased against the Appellant.  He sets out in his Notice of Appeal that the tone of voice of the Chairman when addressing him was, as he described it, consistently sarcastic, that his body language suggested that he was exasperated by the points being made, that he was seen to role his eyes and that he made various disparaging comments about some aspects of the evidence.  The Appellant submitts that that indicated bias on the part of the Chairman.

41.	We have considered of course these allegations very carefully and we have had full regard to the Appellant’s submissions, and in particular to the Affidavit evidence and of course the Chairman’s own comments on the allegations which are made.

42.	The Chairman himself concedes at one point of his comments that he may well have displayed some exasperation at the events which concerned him, namely the late applications for further disclosure of documents and the late production of witness statements in breach of the Order for directions.  However, a display of exasperation by the Chairman in the particular circumstances of this case cannot, in our view, reasonably be said to indicate bias on his part against the Appellant.  The evidence in the documents before us, taken at its highest, indicates no more than that the Chairman was exasperated and irritated at the course of events.  It does not indicate apparent bias or a real danger of bias against the Appellant.

43.	This was a unanimous decision by all three members of the Tribunal.  It seems to us that, in all the circumstances and for the reasons that we have given, there being no reasonably arguable error of law, either in relation to the substantive decision and the reasons which underpin it or as to the Chairman’s conduct, that this is an appeal which cannot proceed further and we dismiss it.