Appeal No. EAT/1173/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	             On 11 March 2002
Judgment delivered on 11 June 2002

Before
MR COMMISSIONER HOWELL QC
MISS A MACKIE OBE
MRS T A MARSLAND

MS FERZANA QURESHI	APPELLANT

LONDON BOROUGH OF CAMDEN	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised 

	APPEARANCES

For the Appellant	MISS J SHEPHERD
(of Counsel)
Instructed by:
Messrs Tayo Arowojolu
Solicitors
Helen House
214-218 High Road
South Tottenham
London N15 4NP	
For the Respondent	MR M MULLINS
(of Counsel)
Instructed by:
Ms Alison Lowton 
London Borough of Camden
Town Hall
Judd Street
London WC1H 9LP	

MR COMMISSIONER HOWELL QC

1	This appeal was directed at the preliminary hearing in 28 February 2001 to be limited to two specific grounds only.  It is by Mrs Ferzana Qureshi, against the Decision of the London North Employment Tribunal set out in Extended Reasons issued to the parties on 9 August 2000, rejecting her claims of racial and sexual discrimination, victimisation and unfair dismissal against her former employers, the London Borough of Camden.  Ms Qureshi had been employed by the borough in a senior position as a Trading Standards Officer from 16 October 1991 until her summary dismissal on 26 May 1999, for gross misconduct and dishonesty in abusing the flexitime system and falsifying her work time records.  

2	There were three separate sets of proceedings all dealt with by the Tribunal at the same set of hearings in April and June 2000.  The first begun by an Originating Application dated 10 September 1998, alleged racial and sexual discrimination against Ms Qureshi (who is an Asian woman) in the way she had been dealt with in disciplinary proceedings in June and August 1998 when she had been warned of the need to improve her attendance and productivity following what the Respondent regarded as an excessive level of sickness absences measured over a substantial period of time.  The second set of proceedings alleged victimisation in consequence of her first Tribunal application, in that on 8 February 1999 she had been required to attend a separate disciplinary interview, and investigated and suspended, for the unauthorised absences from work and dishonest timekeeping for which she was subsequently dismissed.  That complaint was made by an Originating Application dated 3 March 1999 and was her only complaint of victimisation.  Her third Originating Application dated 26 July 1999 was for unfair dismissal on the grounds that her summary dismissal on 26 May 1999 had been procedurally unfair in that the disciplinary meetings had been held when she was unable to attend through sickness, and the charges of gross misconduct against her were false.

3	At the hearings spread over several days in April and June 2000, the Tribunal heard detailed evidence and contentions from the Applicant, who as the papers show is an educated and articulate person, and was accustomed to handling legal proceedings herself in her work as a Trading Standards Officer on behalf of the Respondent.  Having heard all the evidence, the Tribunal found on the facts that she had been fairly and properly dismissed for the gross misconduct alleged against her; that she had in fact abused the trust placed in her by going off home at times when she had claimed to have been working; and that her denials, both to her employer and to the Tribunal themselves on oath, had been false.  There is no appeal now  sought to be pursued before us against those conclusions on the facts, or against the consequent rejection of her unfair dismissal claim; and there is nothing in any of the papers before us to indicate that there could be.

4	Ms Qureshi’s Notice of Appeal dated 15 September 2000, against the substantive Decision of the full Tribunal set out in the Extended Reasons issued on 9 August 2000, was upon numerous stated grounds which she set out in the three closely typed pages annexed to her Notice.  These took issue in various ways with the Tribunal’s conclusions on the facts, rejecting her contentions of sex and race discrimination, victimisation and unfair dismissal.  She also complained of unreasonable behaviour on behalf of the Tribunal itself, in that her request for an adjournment of the case after her previous legal representative had withdrawn was refused, and she had been prevented from making all the points she wished to make, on the history of the matter and otherwise, in the course of the hearing.  

5	When the matter came before the Appeal Tribunal on the preliminary hearing on 28 February 2001, Ms Qureshi was represented by Counsel, who as the judgment of the Appeal Tribunal given by Mr Justice Hooper on that day records, had obviously taken a great deal of time go through the Grounds of Appeal and had reduced those pursued at that hearing to three.  The result of the preliminary hearing, as recorded in that judgment, was that the appeal was directed to be set down for a full hearing on only two grounds, the remainder of the Notice of Appeal being dismissed.  

6	As identified for us in the judgment, the first ground for us to consider “relates to the refusal to grant an adjournment”.  In fact, there was no refusal to grant an adjournment on the part of the full Tribunal whose Decision of 9 August 2000 is the only one under appeal.  No application for an adjournment was made to that Tribunal, either at the start of the hearing on 4 April 2000 or at any point during the course of it.  The only such application had been by an earlier letter from the applicant dated 27 March 2000, asking that the hearing of several days previously fixed and then due to start on 4 April should be vacated because her representative had withdrawn on 20 March. That request had been dealt with by a Chairman as an interlocutory matter and refused.  His Decision was recorded in a letter dated 30 March 2000, saying that a Chairman of Tribunals had considered carefully all that was said in the request for a postponement of the hearing and had balanced that against the desirability of bringing the case to a hearing without delay.  He refused the request for the reason that:
“the Applicant has been conducting all the correspondence herself and seems to be fully aware of the issues”.
That letter is quoted in the judgment of Hooper J on the preliminary hearing and for practical purposes, in accordance with the apparent intention of the Appeal Tribunal on that occasion, this ground of appeal has been treated as a separate appeal against the interlocutory decision of the Chairman in the letter of 30 March 2000 as if there was a Notice of Appeal properly before us against that decision as well as that of 9 August.  The reason stated by Hooper J for directing a full hearing on that was that:
“We take the view that it is arguable given the complexity of the case that that was not the right decision to reach in the circumstances.”

7	The second ground directed for full hearing relates to what the judgment describes as a comparatively narrow point on a very small part of the case, where the Tribunal dealt with the treatment of one possible (white female) comparator when considering the way the Applicant had been treated in the warnings she received about her sickness absences.  The point, as defined for us, was whether in paragraph 3(iii) of the Tribunal’s Extended Reasons, referring to this possible basis of comparison, the Tribunal had given a sufficient explanation of their reasons for declining to draw the inference that there had been a difference of treatment on racial grounds when they said:
“The female comparator had a number of separate absences over a period of time, as with the Applicant.  She was required to produce certification, and her sickness was monitored, and it improved, unlike the Applicant’s position.”

8	The Appeal Tribunal rejected the other grounds of appeal put forward at the preliminary stage.  Accordingly, the effect of the Order made on 28 February 2001 was that the full appeal hearing which eventually came before us was to be limited to the two specific grounds identified.  There was no appeal against that order of the Appeal Tribunal.
 
9	Nevertheless, at a very much later stage, some twelve months later and very shortly before the appeal was due to come on for hearing before us, an indication was given by the solicitors then acting for Ms Qureshi, and in the Skeleton Argument of Counsel (who did not, in the event, appear for Ms Qureshi before us), that it was sought to raise two further grounds of appeal.  These were stated to be that:
“(a)  In concluding that there was no evidence that the less favourable treatment of the Appellant was on grounds of her race or sex, the tribunal misunderstood or misapplied the law; see the judgment of Sedley LJ in Anya at paragraphs 13 and 14.  
(b)  In refusing to deal with a complaint of unlawful victimisation, on the basis that such a case had not been pleaded or argued in that particular way, the tribunal was plainly wrong (misunderstood or misapplied the facts) or acted unreasonably by introducing unnecessary formality to the proceedings.”

10	These grounds were related to two points in the Tribunal’s Statement of Extended Reasons which suggested that there might be some grounds for criticising the Respondent: the contention sought to be advanced by extension of the scope of the appeal being that the Tribunal’s failure to make more of them was a ground for setting their Decision aside.  The first point related to Mr Michael Knowles, the Trading Standards Manager to whom Ms Qureshi had reported, and the way he had dealt with the sickness absence warning, this having been the subject of a grievance raised by her against him.  In paragraph 6(ii) of their Extended Reasons the Tribunal said:
“The Respondent’s treatment of the Applicant in its handling of the sickness discipline and her grievance can be criticised.  Mr Knowles should not have issued a formal written warning, having just given the Applicant an oral warning, and there being no time allowed for improvement.  Mr Scourfield [acting Assistant Director of the department] should not have delegated Mr Knowles to deal with the grievance, and it should have been considered separately and independently by somebody else.  However, there is no evidence that this less favourable treatment of the Applicant was on grounds of her sex or race (see the Zafar case).  We accept Mr Scourfield’s explanation that he was badly advised by human resources and/or had too much concern for not wasting management time and/or had misread the Respondent’s procedures.  Even when looking at this matter in the context of the case as a whole, we do not reach the position where it might be legitimate to draw inferences that the less favourable treatment was based on the Applicant’s race or sex, (see King and Zafar).”

11	The victimisation point was dealt with by the Tribunal in the next following sub-paragraph:
“(iii)  Direct race or sex discrimination was not the reason, we conclude, for Mr Knowles’ heavy-handed and somewhat harsh disposal of the Applicant’s sickness and disciplinary procedure.  However, we find it significant that the formal written warning was issued after the grievance against Mr Knowles and Mr Strange was taken out by the Applicant.  This might have amounted to victimisation within section 2(1)(d) of the Race Relations Act (and the equivalent provisions of the Sex Discrimination Act).  However, the Applicant’s case was not put or pleaded in this way or argued for by the Applicant, and the Respondent has not been able to respond to such an argument.  The Tribunal therefore cannot deal with it.”

12	The first matter we had to consider at the full hearing of the Appeal, when Ms Shepherd appeared for Ms Qureshi and Mr Mullins for the Council, was whether these additional contentions should be admitted as grounds of appeal.  Ms Shepherd stated quite frankly that she could not explain why these contentions had not been put forward at the preliminary hearing or in the original Notice of Appeal itself some eighteen months before they were first sought to be raised.  She relied however on it being a matter of discretion for the Appeal Tribunal in the conduct of its own procedure to admit additional contentions or grounds of appeal outside the normal prescribed times and rules if the interests of justice require it; and submitted that they did in this case, so that we should take the exceptional course of allowing these points to be argued.  

13	We were not however satisfied that a proper case had been shown for us to take the exceptional course of exercising any discretion in this area that might still be open to us following the Order made on the preliminary hearing restricting the scope of the appeal.  We accept as correct the submission of Mr Mullins that while the possibility of the Appeal Tribunal using its case management powers to allow some limited departure from the defined grounds of appeal on which an Appellant has been permitted to proceed to a full hearing is not to be altogether ruled out, nevertheless such cases are exceptional and are subject in particular to the proviso that the point was raised before the tribunal, and the appellant has explained why he did not appeal against the limiting of the grounds of appeal at the preliminary hearing:  Miriki -v- General Council of the Bar (unrep. CA 21 December 2001), per Peter Gibson LJ at para 28.  In our judgment, such a departure is not to be allowed where, as here, there has been no explanation whatever for why these additional contentions, which relate to matters immediately apparent on the face of the Tribunal’s Extended Reasons, could not have been and were not raised either in the original Notice of Appeal, or at the preliminary hearing, or at any point before the very late stage, with the full hearing then imminent, when it was sought for the first time to introduce them.  For the need for a full, proper and acceptable explanation to support any application to the Appeal Tribunal for the indulgence of an exercise of discretion to admit appeals out of time, see also the judgment of Mummery J in United Arab Emirates -v- Abdelghafar [1995] ICR 65, 70H-71B, approved by the Court of Appeal in Aziz -v Bethnal Green City Challenge Company [2000] IRLR 111.  

14	Finally, we were not persuaded that the points sought to be added were of substantial merit in any event; it appears to us the Tribunal were justified in saying there was no evidence of the one incident of less favourable treatment they identified being on grounds of sex or race, and the question of whether it was right to draw any inference about that was a matter for them. What they said about the possible point on victimisation not having been put forward at all by the Applicant was factually correct, and justified the course they took.  It involved a completely different factual basis from her actual victimisation claim, and was never something she had sought to advance, even informally, as a ground of complaint under that head.  

15	For those reasons, we declined to allow the application that we should exercise our discretion to extend the scope of the appeal beyond the two limited grounds directed for full hearing, to which we accordingly now turn.

16	Ms Shepherd’s argument on the point about the refusal of an adjournment of the proceedings was that the Chairman on 30 March 2000 had erred in law by reaching an unreasonable decision.  She contended, as in our judgment she had to if the point was to succeed, that the decision to refuse a postponement in the circumstances in which this had been applied for by Ms Qureshi was a perverse decision: no Tribunal Chairman properly directing himself as to the law could have done anything else in those circumstances other than to grant the indefinite postponement she was seeking.  That formulation of the test that has to be applied in deciding whether the exercise of a Chairman’s discretionary powers on a procedural matter falls to be set aside on appeal was in our judgment entirely right.  As Mr Mullins’ skeleton argument points out, it is a different and much more stringent test than that implied in the observation of Hooper J in the judgment on the preliminary hearing that:
“It is arguable …..that that was not the right decision to reach in the circumstances”

17	As was common ground before us, the decision for us is not what decision we ourselves would have considered right or wrong on the merits, but whether the decision was perverse in the sense just identified, that no reasonable Chairman could have declined to exercise the discretion in the way being asked for.  To formulate the question in that way makes the answer in the circumstances of this case immediately apparent.  As the documentary material before us confirms, the Applicant herself had been clearly involved in the conduct of correspondence and the preparation of the case (including a detailed seven page witness statement which she had herself served on the Respondent on 17 March 2000) and as noted above she is intelligent, articulate and not without experience in the actual conduct of legal proceedings in the course of her own work.  Any Tribunal Chairman faced with an interlocutory application to postpone an impending hearing in such circumstances could quite properly take the view that this one obviously did; his decision at that stage did not of course preclude the making of a further application at the outset of the hearing itself if Ms Qureshi had found herself in some specific difficulty at that stage as a result of not having legal representation.  No such application was in the event made, either at the outset of the hearing or at any later stage during it, so it cannot be a criticism of the full tribunal that they did not adjourn.  Employment Tribunals are of course experienced in dealing with unrepresented parties and ensuring that they get a fair hearing of the substantive case they are seeking to put forward, and we have no doubt this one did so.  There is therefore in our judgment nothing in the first ground of appeal.  

18	We have reached a similar conclusion on the second ground, which questioned the way the Tribunal explained their reasons for not inferring racial discrimination by comparison with Ms Lynn Duggan, in the way sickness absence was treated.  Although this was admittedly not the major issue in the case, Ms Shepherd drew our attention to the well established principles laid down in Meek -v- City of Birmingham District Council [1987] IRLR 250 that an Employment Tribunal’s Extended Reasons for their Decision should contain a sufficient account of the facts and their reasoning to enable a higher Court to see whether any question of law arises.  See also the more recent formulation in the judgment in Anya -v- University of Oxford [2001] IRLR 377, emphasising the need for adequate findings of primary fact in discrimination cases where questions of inference are involved.  

19	None of that is in dispute as a matter of general principle, but we have been left unpersuaded that it has any application to invalidate the Tribunal’s decision in this case on the point with which we are concerned.  As Mr Mullins correctly pointed out, the Tribunal’s Statement of Extended Reasons includes in paragraph 6(i) an express finding of fact that the Applicant had not established, on the evidence, that she was treated less favourably than any other person was or would have been on grounds of race or gender.  The Tribunal amplified this by recording that they were satisfied there were material differences between her sickness absence and the absence of her comparators, which explained why she was disciplined and they were not.  

20	The particular comparison put forward with Ms Lynn Duggan, the white female employee referred to in the Tribunal’s findings of fact in paragraph 3(iii) from which we have already quoted an extract, was not suggested in the original pleadings in the case but was nevertheless specifically addressed by the Tribunal in that paragraph.  As they there recorded, by mid-June 1998 the Applicant had had nineteen days sickness on eight separate occasions in the previous rolling year.  In the rolling year before that, she had had fourteen and a half days absence on seven separate occasions.  No one else in the department had a similar history to this.  The Tribunal referred to other suggested comparators, giving a clear explanation of why their circumstances were special and not comparable, and concluded with the passage we have already quoted in paragraph 7 above, explaining why Ms Duggan’s case was not accepted by them as truly comparable either.  They stated explicitly that although she too had had a number of separate absences over a period of time, her attendance record had improved once she had been required to produce certification and her sickness record was monitored.  The Applicant’s had not, even after similar requirements (referred to specifically in the immediately preceding sub-paragraph 3(ii)) had been applied to her.  

21	Despite the doubts recorded in the judgment of Hooper J on the preliminary hearing, (and having now had the advantage of full argument and consideration of the case) we for our part find no difficulty in following what the Tribunal were quite clearly saying, on the basis of their own recorded findings of fact.  This is that they found the two cases materially different, because Ms Duggan’s attendance record had improved once the requirements had been applied to her, and that of the Applicant had not.  That explained why the two female employees had been treated differently, and why only the Applicant had had to be disciplined by being given a warning.  We find no substance in the suggestion that the Tribunal failed to address the matter correctly on a proper like-for-like comparison, or that their stated reasons are insufficient for any reasonable person reading them in their context to understand.  

22	For those reasons, we unanimously dismiss this appeal.