Appeal No.	 EAT/120/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
SIR GAVIN LAIRD CBE
MRS J M MATTHIAS

MS F AHMED	APPELLANT

LONDON BOROUGH OF HACKNEY & MR G MOORE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR W PANTON
(of Counsel)
Instructed By:
Ms L Connerty
Principal Litigation Officer
Commission for Racial Equality
Elliott House
10-12 Allington Street
London SW1E 5EH	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us by way of a preliminary hearing the appeal of Ms F Ahmed in the matter Ahmed against Moore (Gavin Moore, an individual) and, secondly, the London Borough of Hackney.

1	Ms Ahmed is described in the papers as a black woman of Arab origin.  She was formerly employed by the London Borough of Hackney in the Directorate for Education and Leisure Services as a Governor Support Officer and Gavin Moore, the First Respondent was her Line Manager.  The decision against which she appeals is a decision of the Employment Tribunal at London (North) under the chairmanship of Mrs R.R. Hill.  It was a full three-member Tribunal and the decision was as follows:

“The unanimous decision of the Tribunal is that:
(i)	the Applicant was not the subject of discrimination or victimisation on the grounds of her race; and
(ii)	the Applicant was unfairly dismissed.  Any Remedies Hearing required to be arranged within 3 months of the promulgation of this decision.”

2	The background is quite complicated and it is a long and, as it seems to us, very full Reserved Decision of the Tribunal.  The hearing had taken place on 25, 26 and 27 February 1998, 2 March 1998, 12, 13, 14, 15 and 16 October 1998 and 19, 20 and 22 October 1998 and the decision is spread over very many pages.

3	We have a very full Appellant’s skeleton argument presented by Mr Panton of Counsel, who appeared also below for Ms Ahmed.  The Notice of Appeal asserts that the decision to dismiss the claim for racial dismissal and victimisation was perverse.  Of course, any argument about perversity is never an easy task and the skeleton argument embarks on particular examples which it draws to our attention and Mr Panton in his oral argument today broadly followed the skeleton argument which had been supplied to us.  I think the most convenient course is to go through the skeleton, major point by major point.  It is not necessary to deal with every single point but to take the leading points.  The first point that is made of substance is at the foot of page 3, paragraph 1.7 of the skeleton:

“The tribunal, in its Reasoned Decision, failed to mention the above evidence [I will come back to that] which is central to the issues of racial discrimination, victimisation and the fairness of the dismissal of the Appellant for the alleged theft of documents belonging to the Second Respondent.”

4	That reference to “the above evidence” is a reference to two memoranda made by Mr Moore, one dated 16 January 1996 and the other 26 March 1996, and the allegation is that they failed to be mentioned and should have been taken into account.  But in fact the Tribunal does mention them.  Thus at our page 31, paragraph 58, a few lines in, it says:

“One of these documents was a memo dated 16 January 1996 in which Mr Moore set out to Mr Mehmet his serious misgivings and concerns about the way in which the working relationship was developing with the Applicant.”

Later, in the same paragraph 58, it says:

“Before the Tribunal an additional document was produced namely a memo of 26 March in a similar vein.”

And on page 33 of our papers there is a final reference to the memoranda in paragraph 64.  It says:

“The very personal nature of the 2 memos from Mr Moore to Mr Mehmet were not ones which a person would willingly allow to be seen by others.”

5	So the Tribunal does in fact mention the memoranda.  It cannot be assumed simply from the fact that the Tribunal did not specifically quote passages from the memoranda, that the memoranda to which they did refer were not in the Tribunal’s mind.  They were mentioned, as we have shown.  It was for the Tribunal to view the memoranda in their place as part of the evidence as a whole and there is no ground, in our view, for supposing they did not do just that.  Mr Panton urges that the memoranda should particularly have been borne in mind to examine whether there was some causal link between the anxiety expressed in the memoranda and the allegation of a theft of documents, which was made against Ms Ahmed, but we have no reason to think that that point, which was apparently urged before the Tribunal, was not in their mind.  One cannot assume from the fact that they did not specifically mention it that they did not have it in mind.  It may well be that they thought there was nothing in the point.  So, accordingly, that first main heading at paragraph 1.7 of the skeleton seems to us to lead nowhere.

6	Another point is to be found at Mr Panton’s paragraph 2.2 on page 4.  It says this:

“The Tribunal failed to consider whether the Respondents had carried out as much investigation into the alleged theft as was reasonable in all the circumstances and that each element of the test in British Homes Stores Limited  v  Burchell IRLR 1978 had been satisfied …”

And then three components of Burchell are mentioned.

7	Burchell was a case of unfair dismissal and on unfair dismissal the Tribunal did find in Ms Ahmed’s favour.  One wonders whether the complaint is that the Tribunal should have been even more in her favour?  Indeed, that is the case, because Mr Panton urges that her victory was merely technical and should have been more than merely technical.  However, we have been unable to discern any error of law in the Tribunal’s treatment of this particular point.  Mr Panton urges that the Tribunal should have had in mind what was Mr Moore’s state of mind, but there is no reason to suppose that they did not have that in mind.  The adequacy or inadequacy of an investigation is very much a matter to be left to the Tribunal.  There is no certain and clearly applicable yardstick by which one can tell, in some scientific way, whether an investigation is, or is not, adequate.  It is a task best left to the Tribunal that hears and sees the witnesses and hears and sees all of them and we do not see that there was any shortcoming in point of law in relation to the test applicable under the Burchell case.

8	The next main heading in the skeleton argument is at page 5, paragraph 3:

“There was clear evidence before the Tribunal from which it should have concluded that there was racial discrimination and victimisation.”

There are occasionally cases where the only possible conclusion to be drawn from the evidence heard is that there has been racial discrimination or victimisation on racial grounds.  It is because it is rare that evidence is quite so unequivocal and unambiguous that cases such as King v The Great Britain-China Centre [1992] ICR 517, emphasise the ability of tribunals to draw inferences.  It is seldom that an employer, or anyone else, puts up their hand and says “Yes, I was biased; yes, I discriminated” or anything on those lines.  One has to draw inferences from the totality of the evidence.  The passages which the Appellant particularly relies on are set out in the skeleton.  At paragraph 3.1 it says:

“In paragraph 38 of the Reasoned Decision, the Tribunal said:-
‘By this time (March 1996) Mr Moore was feeling that he was unable to see the wood for the trees as regards the issue as to whether the Applicant should remain the clerk of governors of Jubilee School or not and asked Mr Mehmet to make the decision’.”

And then continuing with another point in paragraph 3.2, quoted in the skeleton:

“The Second Respondent admitted in evidence that he did not follow the First Respondent’s procedure.  He said:-
‘Without the colour of this case I would speak to the school, share documents with the staff concerned, talk through the request and go through possible responses and arrive at a conclusion.  I regret not doing so but you have to bear in mind the history of the case and my relationship with the Applicant’.”

The Tribunal plainly did have in mind that passage about “the wood for the trees” because they actually referred to it.  At page 25, paragraph 38 of the decision it says:

“By this time Mr Moore was feeling that he was unable to see the wood for the trees as regards the issue as to whether the Applicant should remain the Clerk to the Governors of Jubilee School or not and asked Mr Mehmet to make a decision.”

9	The position seems to have been determined by the Tribunal to have been that Mr Moore, in all the circumstances, thought it best to pass what was plainly a difficult task upwards to his immediate superior and, in the second passage that is relied upon, admitted his own shortcomings.  The Tribunal accepted that he had done so.  It is difficult to see why that should be taken as an indication of any discrimination or prejudice or victimisation but, in any event, it is no use to the Applicant to try and show that some tribunals might have thought that those passages were an unequivocal indication of racial discrimination.  Even were that so, it would not assist them.  The Appellant needs to show an error of law and in this context that means the Appellant has to show that a conclusion of racial discrimination or victimisation was the only conclusion properly to be drawn from those passages.  In our view, in that task, the Appellant fails completely.

10	The same answer is to be given, in our view, to the next heading, which is paragraph 4, where it is said that:

“The Tribunal erred in law in concluding that the Second Respondent’s subsequent treatment of the Appellant in relation to promotion, sickness absence, allocation of duties etc. were not affected in the same way.”

We do not see, despite Mr Panton’s argument, there is any necessary inconsistency between Mr Moore feeling that the task of deciding whether Ms Ahmed should remain Clerk of the Governors should be passed upwards to Mr Mehmet on the one hand, and his, Mr Moore’s, remaining on a panel of more than one, as Ms Ahmed’s Line Manager and dealing with tasks habitually falling to a line manager, on the other.

11	The next complaint in the skeleton is best illustrated by my reading paragraph 5.1 on page 6 of the skeleton:

“The Tribunal, in considering the Local Office Hearing in the context of whether the decision to dismiss was substantively fair and procedurally fair within the meaning of section 98 of the Employment Rights Act, failed to take into account the fact that the Local Officer Hearing did not consider the contents of the memoranda of 16 January and 26 March which disclose clear motive and intention to victimise the Appellant.”

It seems to us that that point is misconceived.  The Tribunal in general preferred Mr Moore’s evidence to that of Ms Ahmed.  What they said on that was, at paragraph 11:

“… Where there was a conflict we found that Mr Moore’s evidence was more credible particularly bearing in mind the needs to ensure good service delivery, and the stress which all parties accepted …”

Then they go on to deal with the particular point then in front of them but they do generally prefer Mr Moore’s evidence to that of Ms Ahmed.

12	The Tribunal held that the local Officer did in fact receive the memorandum of 16 January.  There is a quotation to that effect that the local officer did receive the memorandum of 16 January (paragraph 58 quoted below).  So the position appears to be that the memorandum of 16 January was given to the local officer.  The Tribunal held that the memorandum of 26 March was similar and, so, one might ask, whether it added anything of substance?  So far from disclosing a motive to victimise, the documents were held simply to speak of Mr Moore’s misgivings about the way his working relationship with Ms Ahmed was going.  That allegation in paragraph 5.1 of the skeleton thus seems to be without foundation.

13	The skeleton then reverts to the conduct of the disciplinary hearing, and in 7.1 it is said:

“The witness for the Respondents, Mr Dawson, who conducted the disciplinary hearing, was asked what standard of proof was used in deciding whether the allegations against the Appellant were proved.  He said he used the civil standard.  He did not distinguish between the allegation of theft and the others which did not involve dishonesty.”

The skeleton argument then cites passages from leading cases:  R v Hampshire County Council ex parte Ellerton 1985 IRLR 665 and Khawaja v The Secretary of State for the Home Department 1984 AC 74 H.L.  Both of those indicate that the civil standard is indeed the correct standard.  To that extent the officer, Mr Dawson, can hardly be criticised.  It is said that the civil standard is flexible, but the skeleton does not quote any evidence that the local officer did not know that the civil evidence was flexible or that he knew that it was flexible but ignored its flexibility.  There is, as it seems to us, here no error of law in the Tribunal not finding fault with Mr Dawson’s conclusion.  They dealt with that in their paragraph 58:

“The local officer hearing was held on a number of dates between November 1996 and February 1997.  As a preliminary issue the Applicant raised that she had not received a number of documents from the management side.  These were copied.  One of these documents was a memo dated 16 January 1996 in which Mr Moore set out to Mr Mehmet his serious misgivings and concerns about the way in which the working relationship was developing with the Applicant.  Mr Mehmet presented this document to Mr Dawson the Chair of the local officer hearing with a request that it should not be disclosed because of its personal nature to the Applicant.  Mr Mehmet said to the Tribunal that he considered it should be disclosed but he put forward Mr Moore’s personal objection to enable Mr Dawson to make a decision.  Mr Dawson concluded that it should be disclosed.  Before the Tribunal an additional document was produced namely a memo of 26 March in a similar vein.”

At the next page, the Tribunal concluded in their paragraph 60:

“The Tribunal considered that the conduct of the hearing itself was procedurally fair. …”

And a little later on:

“On that basis therefore the Tribunal considers that the dismissal would be fair.”

14	So we are unable to find any point of law that avails the Appellant in its emphasis on the possibility that Mr Dawson did not have in mind the flexibility that is properly attachable to the civil standard of proof.

15	The Tribunal then switches to the possibility of bias, or the allegation of bias in the Tribunal.  The first complaint made in the skeleton on this subject derives from paragraph 71 of the Tribunal’s decision.  What was said in paragraph 71 is this:

“Although the proceedings were conducted largely in a good-natured way on both sides strong terms were used.  The Respondent whilst accepting that the Applicant was a competent, able and intelligent woman described her as a primadonna.  The Applicant sought to argue that Mr Moore’s behaviour was affected by the fact that he was a Councillor with another London Borough and that his relationship with Mr Mehmet was affected by their both being members of the Labour party.  The Applicant also raised an issue that Mr Moore had been acting up into a post that was one that he could not hold as a substantive post because it was politically restricted.  We considered that these allegations and slurs did neither side any credit.  It had the opposite effect to that of trying to undermine the person against whom the allegation was made; it merely reflected badly on the person who made that allegation.”

It is quite plain from that passage that the Tribunal was criticising both sides and that is hardly an indication of bias.

16	The second head of complaint is that it is said Ms Ahmed was poorly treated by the Tribunal, as she gave evidence, and on that and related questions of bias we have laid before us and have read an affidavit of Mr Panton himself, an affidavit of Ms Ahmed and a full letter from the Chairman, Mrs Jessica Hill, in answer to the points made in the affidavits that were sent to her.  We remain entirely unconvinced that there was any treatment that could fairly be called bias.  We do not propose to deal with every single point in detail but we make three points.  Firstly, the Tribunal’s reasons cover some 25 or 26 pages.  They give every indication of being a full, careful and well-reasoned and patient response to the difficult case laid before them.  One might readily expect bias, had it been truly present, to be capable of being found in some corner of those 25 pages.  We have been quite unable to spot it.  Secondly, the Chairman’s answering letter treats the complaints seriously, and responds to them in detail, item by item.  It is not a high-handed response or an arrogant one but, on the contrary, the answers appear to be both material and convincing.  That, of itself, does not disprove bias but it is a feature seldom found in cases where there truly has been bias.  Taking a specific example, we look at paragraph 10 of the skeleton, which says:

“The Tribunal wrongly placed unfair pressure on the Appellant’s Counsel to complete his closing submissions.”

17	It is, of course, not uncommon for parties or their advisers to feel that they have been a little harried, perhaps unfairly, when the case truly is that the Tribunal has been doing no more than attempting to keep irrelevancies at bay and to limit prolixity and verbosity and to try and avoid unprofitable and costly delay.  Here the Tribunal directed that there should be final submissions in writing.  Mr Panton tells us that that was agreed.  There is no hint that when that was agreed it was indicated that the time afforded for preparation was not sufficient for the making of adequate final submissions in writing.  It is, of course, an entirely reasonable course which, in this case, neither side objected that final submissions should be put in writing; it is done up and down the country every day.  However, it was anticipated that oral additions should be made to the final written submissions and the Tribunal had indicated that they would be expected to be kept short.  In the event the Chairman tells us that Hackney’s Counsel had taken some five minutes to add orally to the final written submissions.  On the other side, Ms Ahmed’s Counsel took some three-quarter’s of an hour, having been told at the expiry of half an hour that the allotted time was already spent but was then allowed a further ten minutes or so, bringing up the total to some three-quarter’s of an hour.  What the Chairman says on that, is this:

“Mr Panton claims that unfair pressure was placed on the Appellant’s Counsel in the time to give his closing submissions.  It is correct that the Tribunal directed that the closing submissions should be in writing.  It is also correct that we indicated that if they wished to make any oral submissions in addition, these should be limited to half an hour.  Such a procedure is very usual in this Tribunal and in many courts throughout England and Wales.  Mr Akainyah, representing the Respondents, took about five minutes in his closing submissions.  The Applicant’s representative took ¾ hour.  Given that the Tribunal had indicated they expected those submissions to be in writing, I do not accept that to restrict the amount of time in oral submissions to half an hour in any way prejudices the Applicant’s case as all the information that was required should properly have been contained within the written submissions and it would only be to reply to anything unexpected in the Respondents’ oral submissions on which the Applicant’s Counsel should have addressed us.  I therefore do not accept that limiting the amount of time Counsel may spend in an oral submission in any way constitutes bias.”

18	That passage shows how two views can be taken as to the length of legal argument but, perhaps more significantly, Mr Panton has failed to identify to us any fact or any authority which the Tribunal should have had regard to but which they overlooked because he had not had time to speak to it and had been cut short.  Taking that one particular example in the skeleton’s paragraph 10, as an example, not untypical, of the allegation of bias all told, we are quite unable to find it to be some indication of bias.

19	We have not now dealt with every single head of Mr Panton’s skeleton but we do consider that we have dealt with the stronger of the points made.  We have found it impossible to find any point of law (and we do emphasise point of law) which has some arguable prospect of success.  On the contrary, the decision seems to us to have been, as we said, a careful, patient and full response to many days’ evidence and argument.  The consequence is that even at this preliminary stage we must dismiss the appeal.