Appeal No.	EAT/0992/02 & EAT/0108/03 TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR D EVANS CBE
MRS A GALLICO

MRS I UZOECHINA	APPELLANT

IMMIGRATION ADVISORY SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P UZOECHINA
(Representative)	
For the Respondent	MR S STANTON-DUNNE
(Solicitor)
Messrs Merricks Solicitors
207-208 Moulsham Street
Chelmsford
Essex CM2 0LG	

HIS HONOUR JUDGE PETER CLARK
 
1	By a reserved decision with Extended Reasons promulgated on 20 May 2002 (“the liability decision) a Tribunal sitting at London (South) on 4 January 2002 under the chairmanship of Mr A M Snelson dismissed the Applicant, Ms Uzoechina’s complaint of racial discrimination and breach of contract brought against her former employer, the Respondent Immigration Advisory Service.  Against that decision she appealed (EAT/0992/02) (“the liability appeal”).
 
2	The liability appeal came on for ex parte Preliminary Hearing before a division of the EAT on which I sat on 4 December 2002.  We reserved judgment in order to consider closely the case advanced on her behalf by her husband who has represented her throughout.  By a judgment delivered on 16 January 2003, with which this judgment should be read, we dismissed all grounds of appeal, including the Appellant’s complaints of bias on the part of the Employment Tribunal, save for three issues which we directed should proceed to a full hearing with both parties present.  Those issues are identified at paragraph 7 of the judgment.  For the purposes of this hearing we directed that the Chairman be asked to comment on those three issues.  He has done so by a letter dated 24 January 2003.
 
3	Meanwhile, on 16 October 2002, the same Tribunal heard an application by the Respondent for costs arising out of the earlier proceedings leading to the liability decision.  By a decision promulgated with Extended Reasons on 11 November 2002 (“the costs order”) the Tribunal awarded £500 costs in favour of the Respondent.  Against the costs order she appealed by a notice dated 18 December 2002.

4	Having considered the grounds of appeal advanced in the costs appeal the Registrar, by a letter dated 20 January 2003, ruled that the appeal raised no question of law such as to found the EAT’s jurisdiction to entertain the appeal and directed that no further action be taken upon it under Rule 3 (7) of the Employment Appeal Tribunal Rules 2001.  Thereafter the Appellant exercised her right under Rule 3 (8) to lodge a fresh Notice of Appeal which was then referred to me.
 
5	Those grounds of appeal fell into two parts; complaints of bias or the appearance of bias on the part of the Tribunal, particularly in not recusing themselves in the light of allegations of bias raised by the Appellant in the then pending liability appeal.  The Tribunal had declined to step down.  Secondly, a more general attack on the costs order.
 
6	The revised costs appeal was placed before me to consider on paper and by an order dated 14 March 2003 I directed that it proceed to a full hearing (EAT/0108/03) to be combined with what remained outstanding in the liability appeal following the earlier Preliminary Hearing.  At paragraph 5 of that Order I directed the Appellant to lodge an affidavit setting out her allegations of bias or improper conduct on the part of the Tribunal within 14 days, failing which the Notice of Appeal would be dismissed.  I added the usual caution as to costs if an unsuccessful bias appeal was pursued.
 
7	By a letter dated 24 March the Appellant indicated that in view of the costs warning she was forced to withdraw the bias and improper conduct allegations against the Tribunal Chairman.  Pausing there, that was a sensible course in view of our judgment following the Preliminary Hearing, dismissing the original bias allegations, directed to the liability hearing before the Tribunal.  She then added:
 
“I now wish for the case to proceed on points of law raised in my Notice of Appeal.”
 
8	Having considered that letter I dismissed the costs appeal by order dated 26 March in accordance with paragraph 5 of my earlier order, that is to say, in the absence of an affidavit filed within time.
 
9	That order was sealed and sent to the parties on 8 April.  On 11 April the Appellant complained that she had only withdrawn the bias part of her costs appeal, not the remainder.  That is why she did not lodge an affidavit.  She had not withdrawn the whole appeal.
 
10	I treated that matter as an application for review and directed by letter dated 25 April that a hearing fixed for 29 April be vacated and that the review application in EAT/0108/03 be listed for consideration by me, with both parties present, together with the full appeal in EAT/0992/02.
 
11	Those are the matters before us today.  It follows, procedurally, that the sensible order of business is:
 
(1)	for me to hear and determine the Appellant’s review application in the costs appeal and if successful in whole or in part for that appeal to be considered by the full appeal Tribunal;
 
(2)	for the full Appeal Tribunal to consider the outstanding issues in the liability appeal;
 
(3)	for the full Appeal Tribunal to consider any outstanding matters in the costs appeal.
 
The Review Application
 
12	Mr Uzoechina sought to withdraw the withdrawal of the Appellant’s bias allegations in the costs appeal.  The basis for doing so was that he believed this was the only way to pursue the Appellant’s costs appeal.  It is not and I can see no grounds for allowing him to do so.
 
13	Having considered the submissions of both parties I conclude that there had been a genuine misunderstanding on Mr Uzoechina’s part as to the effect of withdrawing the bias grounds and not lodging an affidavit in accordance with paragraph 5 of my earlier direction of 14 March.  In these circumstances I shall grant the review application in part in the interests of justice and permit the non-bias grounds of appeal to proceed to a full hearing.  They are Grounds 1 and 3 and the first sentence of Ground 2.  The remaining bias grounds stand dismissed by my earlier order.
 
The Liability Appeal
 
14	By his Skeleton Argument lodged on behalf of the Appellant Mr Uzoechina first sought to raise matters on which he lost at the Preliminary Hearing.  We shall not permit him to do so.  The EAT is functus, so far as those matters have been adjudicated upon.

15	As to the three issues permitted to proceed to this full hearing, our conclusions are as follows:
 
(1)	the first issue is whether the Tribunal failed to consider and determine an allegation by the Appellant that:
 
“…she was less favourably treated than an actual white comparator, Stephanie Marcou, in that the Appellant’s employment was not continued following completion of her three month trial period, whereas Ms Marcou, said to be a less capable employee, was continued and that such less favourable treatment was on grounds of her race.”
 
In commenting on that issue the Chairman said in his letter of 24 January 2003 that the question of a comparison between the Applicant and Ms Marcou in relation to one, the Appellant, being dismissed, whilst the other, Ms Marcou, was retained by the Respondent was not raised:
 
(a)	in the Originating Application;
(b)	in the Appellant’s further particulars dated 10 October 2001;
(c)	when the issues were identified at the start of the liability hearing;
(d)	in the Appellant’s witness statement;
(e)	in oral evidence and cross-examination on either side;
(f)	in an exchange of correspondence after the hearing between the Tribunal and the Respondent copied to the Appellant, but instead arose for the first time in the Appellant’s closing written submissions.  As it was not in issue until that point the Tribunal did not rule on it.  
 
Mr Stanton-Dunne adopts the Chairman’s account.
 
Mr Uzoechina submits otherwise.  He contends that the point was raised: first, at paragraph 3 of the Appellant’s further particulars of 10 October 2001 and, secondly, in the Appellant’s witness statement at paragraphs 9 and 10.  It is common ground that the point was raised twice in the Appellant’s closing written submissions.
 
We have carefully considered the two references above relied on by the Appellant, but we are unable to discern the point being raised in either place.  In these circumstances, following Chapman v Simon [1994] IRLR 123, it seems to us that the Tribunal was right not to adjudicate on a matter not raised as an issue, despite every opportunity to do so, until the Appellant’s closing submissions.
 
(2)	The question here raised is whether there was any evidence to support the Tribunal’s finding at paragraph 12 of their liability reasons, that Ms Marcou’s hours of work spent attending to her father in hospital were deducted from her annual leave entitlement.
 
	The short answer, according to the Chairman’s notes of evidence, is yes.  The Chairman recorded this question and answer during Mrs Robinson’s evidence in chief, she being the principal witness for the Respondent:
 
“Q	Stephanie Marcou?
A	No question of lateness.  If late, [it] was arranged and [she] got permission in advance.  F[ather] had had hospital treatment.  Allowed to come in late and deducted time taken from A/L [annual leave].
This evidence was not the subject of any challenge in cross-examination.”
 
Mr Uzoechina disputes that that evidence was given.  Had it been given, he would have challenged it, he says.
 
Mr Stanton-Dunne again relies on the Chairman’s note.
 
It seems to us that the Appellant has had ample opportunity to follow the procedure laid down in Dexine Rubber Co. Ltd. v Alker [1977] ICR 434.  She has not done so.  In these circumstances we shall accept the Chairman’s note.
 
(3)	Similarly, on the third issue, did the Appellant pursue in evidence and submissions a contention that she had been denied a contract by the Respondent?  On analysis, in her witness statement, paragraph 25, the Appellant said that she was told by Mrs Robinson that she would get a full contract later.  It is common ground that she never did before her dismissal or thereafter.  However, that is not evidence that the Respondent refused to give her a contract, as alleged at paragraph 4 of the Appellant’s further particulars dated 10 October 2001.  Further, the Chairman, in his letter of comment, records this question and answer during Mrs Robinson’s evidence in chief:
 
“Q	[Did you] refuse to give A[pplicant] a written contract?
A	No.”
 
	Again, he notes that that answer was not challenged in cross-examination.
 
	In these circumstances we fully understand the Tribunal’s observation at paragraph 15 of their liability reasons, that there was no evidence that the Respondent “denied” the Appellant a contract.  That is an accurate summary of the state of the evidence.
 
	However, again, Mr Uzoechina submits that that evidence was not given.  We repeat our observations about the practice laid down in Dexine Rubber and for the same reasons reject that submission.  We accept the Chairman’s account as to the entry in his note.
	It follows, in our judgment, that, upon investigation at this full hearing, there is nothing in any of the three points which were raised by Mr Uzoechina at the Preliminary Hearing on which this appeal was permitted to proceed.  It is dismissed.
 
The Costs Appeal
 
16	On the remaining grounds of the costs appeal Mr Uzoechina takes three points:
 
(1)	In the Respondent’s written application for costs dated 12 June 2002 Mr Stanton-Dunne took only one point, that the Appellant’s conduct of the proceedings was unreasonable in that she had made untrue allegations against the Respondent, as the Tribunal found at paragraphs 23 to 26 of their liability reasons.
 
	However, at paragraph 8 of their costs order reasons, the Tribunal record Mr Stanton-Dunne, at the oral costs hearing at which both sides were present, putting the application on two grounds: that mentioned in his letter of 12 June and a further ground that the application was misconceived.
 
	The Tribunal upheld the second submission in part, finding (at paragraph 12 of their costs reasons) that two of the Appellant’s seven allegations of racial discrimination, allegations (d) and (f), were misconceived and awarded costs on the basis of that finding, as well as that of unreasonable conduct, shown by their findings at paragraphs 23 to 26 of the liability reasons.
 
	Mr Uzoechina submits that (a) Mr Stanton-Dunne did not advance the ‘misconceived’ ground before the Tribunal but (b) if he did, he should not have been permitted to do so without amending his costs application dated 12 June.
 
	First we accept that the application was put on two bases by Mr Stanton-Dunne orally in submissions to the Tribunal, as they record in their reasons; secondly, we do not accept that, having applied for costs, it was necessary to formally amend the written application to raise a further line of argument with which the Appellant’s representative had an opportunity to deal at the oral hearing.
 
(2)	He contends that the Tribunal took into account irrelevant factors when making their findings adverse to the Appellant at paragraphs 23 to 26 of the liability reasons.  In particular, the Employment Tribunal’s observation at paragraph 23 that it was inherently improbable that Mrs Robinson, a manager in a racially-diverse organisation like that of the Respondent, would make the offensive comment referred to in the Appellant’s witness statement, namely “it is rare to see a black woman married with children working and doing a law degree course at the same time”, particularly where that complaint was not raised in the Appellant’s detailed memorandum written immediately after her dismissal, nor in her Originating Application to the Tribunal.
 
	Mr Uzoechina submits that the Tribunal’s reasoning as to the inherent improbability of such a comment was hypothetical and baseless.  We disagree.  It was a proper inference for the Tribunal to draw when assessing the credibility of the witnesses, an exercise still required in discrimination cases, even although its resolution will not necessarily be determinative: see the judgment of Sedley LJ in Anya, to which Mr Uzoechina referred us, particularly where the allegation was raised comparatively late in the day.
(3)	Finally, Mr Uzoechina submitted that since the case was to be determined on the balance of probabilities, there was no warrant in law for the Tribunal to find that the Appellant was telling untruths.  We accept that the burden of proof in this case is to the civil standard; that does not preclude the Tribunal, as the fact-finding Tribunal, from expressing a clear finding that one witness is telling the truth and another is not.  That is all part and parcel of any fact-finding first instance court or tribunal’s function.
 
17	For these reasons we shall dismiss the costs appeal also.