Appeal Nos. EAT/1379/00 & EAT/0412/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 May 2002

Before
THE HONOURABLE MR JUSTICE WALL
MR J HOUGHAM CBE
MR A D TUFFIN CBE

MR A BARI	APPELLANT

ASPEN WINDOW GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED	
For the Respondent	MR PATRICK O’GALLAGHER
Company Director
Aspen Windows Ltd
Hill Court
Walford 
Ross-on-Wye
HR9 5QN	

MR JUSTICE WALL

1.	This is an application by Mr A Bari for a review of the decision of this Tribunal on 12 October 2001 whereby we dismissed Mr Bari’s appeal against a decision of the Employment Tribunal sitting at Stratford on 12 December 2000.  For present purposes we can deal with the facts very shortly.

2.	Mr Bari is a young man who, when he was still at school, (I think after taking his GCSEs) got a holiday job with the Respondent Company.  His task was to make telephone calls designed to sell the Respondent’s product.  If he got a sufficient response on the telephone the matter was to be passed to another member of the Respondent who would go out to try and make a contract in relation to it.  The phrase used was ‘leads’.  He was a telephone canvasser whose job was to obtain ‘leads’ which were then passed on to a salesman who would visit the customer in the home.

3.	The Appellant was only with the Respondent for a week and it is quite clear that during that time he suffered some very unpleasant racial abuse, being described regularly as a ‘Paki’ and also being told that ‘Pakis’ were not very good at what was being sought by the Respondent.  The Appellant brought a complaint against the Respondent which came before the Tribunal who found that he had been discriminated against on the ground of his race. An allegation of breach of contract was dismissed.  His complaint of wrongful deduction of wages was found not to be well founded.  He was found not to have been unfairly dismissed.
 
4.	Mr Bari withdrew a complaint that he had not been provided with itemised pay slips and the Tribunal made an assessment of £1000 for injury to feelings and the extra £542 (I think plus interest) in relation to compensation for loss of wages.  The matter was procedurally quite complicated and had previously come before the Employment Appeal Tribunal in a constitution presided over by Judge Altman which dealt with a number of technical aspects.  One of the complexities was that the appeal to the Employment Appeal Tribunal on the technical aspects shortly predated the substantive hearing before the Tribunal itself and as we stated in our previous judgment, Judge Altman, in our view very sensibly took a pragmatic view of the case and effectively put a number of issues raised in the appeal back before the Tribunal which was shortly to hear the case on the basis that this was a practical and sensible way of dealing with it.

5.	One particular aspect which obviously concerned the Appellant was that he had at an interlocutory stage been ordered to pay £100 towards the Respondent’s costs.  That is something which the Tribunal subsequently rescinded.  We have been told today by Mr O’Gallagher who appears helpfully on behalf of the Respondent that the Appellant has obtained permission to appeal to the Court of Appeal from one aspect of the Employment Appeal Tribunal’s judgment given by Judge Altman and that relates to what we might loosely call the Seymour Smith point based after the case of R v Secretary of State ex Parte Seymour Smith [2001] IRLR 263.  Judge Altman dealt with that in this way: 

“Before the Tribunal the Appellant produced statistics and presented an argument to show that the proposition of women who could comply with such a time limit (ie the necessary 1 year’s service) was less than men and that therefore, they would discriminated against by the statutory requirement, with the result that that requirement is unlawful.  If it is unlawful, it is argued, both men and women can benefit from that proposition because the unlawfulness must apply to both, so that a male with one week’s service would become entitled to present a complaint, there being no time restriction.”
 
6.	The Employment Appeal Tribunal found that point not arguable and as I say it appears the Appellant has permission to appeal against it and the appeal is being heard in the Court of Appeal in July.  We have obviously thought and considered whether that impacts on the decision we reach today and we have come to the conclusion that it does not.  If the Appellant succeeds on that point it seems to us is likely the matter will be remitted to the Employment Tribunal who will need to consider it and if they find it well founded in the light of a Court of Appeal’s judgment no doubt they will make an additional award or not as the case may be.

7.	We are dealing with the matter by way of Review and as it appears to us today findings of the have been made by the Tribunal and therefore we think it appropriate we should consider today on its merits.  The difficulty we are faced with as indeed we were faced with last time is that the Appellant is not here.  On a previous occasion what we decided to do having looked at various letters that appeared to have gone astray (his reason for not appearing being that he had not received the relevant correspondence) we decided to proceed and give judgment.  However, in the light of the Appellant’s absence we indicated that if he was dissatisfied with the judgment having read the reasons he could apply for a review.  

8.	It is fair to say that we discouraged an application for a review on the grounds that the appeal seemed to us hopeless.  Mr Bari had in our view done well before the Tribunal and  the award to him totalling something in excess of £1,500 being a matter of discretion for the Tribunal hearing the case was one with which we could not interfere.  In any event Mr Bari did apply for a review and today was fixed as the date for the hearing of that review.  However, we have today received a letter dated 22 May from Mr Bari which says that he wishes to renew a previous application made in writing on 13 May for postponement.  His father, who is his representative, he said, was discharged from hospital on 19 May and would not be able to attend the hearing on the 23rd.  No other legal representation could be arranged for the hearing.  The Appellant has no knowledge of the relevant law and neither would be able to renew the said application in person due to his psychiatric condition.  

9.	The letter then goes on to refer to the issue of fresh evidence including matters relating to personal injury compensation for statutory torts under sections 54, 56 and 57 of the Race Relations Act in addition to other matters of law as to the admissibility of evidence.  Under the foregoing circumstances the Appellant prays and hopes that his application for adjournment of his hearing be granted in the interest of justice and makes reference to section 6 of the Human Rights Act.  I think he may mean Article 6 of the Convention which deals with the question of a fair hearing.  He concludes by asking for the application to be put off.

10.	The medical certificate does indeed appear to indicate that Mr Bari’s father was admitted to hospital on 13 May and discharged on 19 May with plural effusion has been given as the diagnosis.  We have, of course, in the context of preparing for this hearing re read all the papers and in that process we have, of course, looked at the Notice of Appeal put forward for the original hearing before us and it may be sensible for us simply to remind ourselves once again of what was being said.  Paragraph 6 of the Notice says the Tribunal’s decision:

“(i)	as to the wrongful dismissal without notice and wrongful deductions from wages had not been supported by evidence adduced in person by the Appellant (the Respondents had been struck out and debarred from the hearing);  (ii) the tribunal’s decision on automatic unfair dismissal for asserting a statutory right by the Appellant had not been based on the evidences adduced or on the correct statement of law (reason(s) for dismissal being mixed i.e race and/or assertion of statutory right(s);  (iii) the tribunal failed to deal with the EAT’s directions dated 1.12.00 on the issues of breach of contract (breach of mutual trust and confidence/disciplinary procedures) subject to appeal no EAT/1379/00.  This resulted in non-availability of the disciplinary procedures at the hearing.  
Amount of Compensation:  The amount of compensation awarded to the Appellant was inadequate.  The tribunal failed to take into account the factors relevant to the compensation for injuries to feelings or aggravated damages.  The tribunal erred in assessing the loss of earnings following dismissal, ignoring the appellant’s mitigation during the period of six weeks to date of hearing and future periods.

Application for costs:  The tribunal erred in determining the issues of cost award to the Appellant in breach of rule 12 of the ET Rules of Procedures, 1993, having failed to take account of all the factors including the misconduct of the Respondents which eventually led to the striking out order by a chairman of the Employment Tribunal.”

11.	We also noticed that on 16 December 2001 and Mr Bari wrote to the Tribunal with his request for a review and ask that the following matters are kindly taken into account:

“1.	The decisions had been made without hearing the full arguments on the matters of perversity and errors of law particularly in relation to the questions of aggravated damages and personal injuries, further evidences, rules of evidence, award of costs, inadmissibility of Respondents’ evidence etc

2.	The decisions had been made in the absence of the Appellant (Affidavit had been submitted) and in the interests of fairness, EAT had kindly given a leave for a review (see Judgement);

It is hoped and prayed that the decisions would be reviewed and the order be Set aside enabling the Appellant to have a fair hearing of his appeals (Article 6 of ECOHR as adopted in UK).”

12.	As I indicated earlier we have looked carefully at all the documents and we have re read both the decision of the Tribunal and the decision which we gave on appeal.  We have of course given anxious to consideration as to whether in the circumstances we should adjourn the review.  The Appellant is not here and he has a plausible reason for not being here namely the illness of his father.  That clearly has to be put on one side of the scales in deciding whether or not the hearing can be fair under Article 6.

13.	The other side of the coin is that this matter has been dragging on for an extremely long time and equally importantly apart from any question of continuing Court time and costs we are very clearly of the view having re read the papers carefully that this appeal has no merit at all.  We fully appreciate, as we said on the previous occasion, that this young man had a very unpleasant experience working for the Respondents but in our view he has been properly compensated both in the award of £1000 and in the £542 awarded for potential loss of earning.  

14.	Both of those matters are matters of discretion for the Tribunal and we can only interfere with that exercise of discretion if the Tribunal was patently wrong in law in making those awards or if those awards were so absurdly minimal that no Tribunal properly directing itself to the question could have made them.  We take the opposite view.  We take the view that not merely were these awards well within the ambit of the Tribunal’s discretion but they were if anything generous for a young man of his age.  We take into account the brevity of the experience he underwent that does not in any way to diminish the unpleasantness of his experience but we do take the view, we think, that the Tribunal in making its awards plainly looked carefully and sympathetically at his position and at the conduct of the Respondent and the conduct of the Respondent clearly merited in the award that was made.  We are told today by Mr O’Gallagher on behalf of the Company that the award has been paid.  The Company has appeared today as it appeared on the previous occasion.  It is no doubt incurred additional costs and expense and will no doubt continue to do so as the application is heard in the Court of Appeal in July but quite firmly we are of the view that as far as this Tribunal is concerned it is high time the line was drawn.

15.	The Appellant plainly had a fair hearing before the Tribunal which reviewed his case with care and sympathy.  He had the opportunity to appeal to us and although he was not here we considered the papers fully and carefully and looked at the grounds of appeal which, if I have not indicated expressly I now state, show in our judgment absolutely no merit of whatsoever.  In those circumstances when one draws the Article 6 balance one has to put in the scales the purpose of any further hearing before us and the purpose of any delay in achieving what in our view is the inevitable.  In these circumstances we take the view that having reviewed the matter carefully, as we have done, that fulfils the conditions of Article 6 and that the time has now come for as far as we are concerned for the line to be drawn.

16.	That is not necessarily the entire end of the road for Mr Bari because if he is dissatisfied either with our judgment initially or this judgement which we are now giving he has the right to apply to the Court of Appeal for permission to appeal against our decision.  A right he has exercised in relation to the decision made by Judge Altman.  So we are not shutting off all his remedies.  We simply take the view that his case has no merit in this appeal and therefore should be dismissed finally at this stage.