Case No: A2/2008/2198

Neutral Citation Number: [2009] EWCA Civ 1542
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 22nd April 2009

Before:

LADY JUSTICE SMITH

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Between:

**RAJA (Appellant)

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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (Respondent)**

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(DAR Transcript of
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THE APPELLANT APPEARED IN PERSON

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED

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Judgment (As Approved)
Crown Copyright©

Lady Justice Smith:

1. This is a renewed application for permission to appeal the order made by HHJ Ansell, sitting in the Employment Appeal Tribunal (EAT) on 20 August 2008.  Judge Ansell dismissed the applicant’s attempt to appeal the decision of the Employment Tribunal (ET) made earlier.

1. The applicant’s complaint to the ET was that he had been subjected to unlawful discrimination and harassment on the ground of race and, in some respects, religion.  The ET determined that the claim was not well-founded and, moreover, held that it had no jurisdiction to hear the claim because it had been presented out of time.

1. The applicant is of Pakistani origin and Muslim.  He was employed by the respondent between February 2000 and February 2007 when he took early retirement.  Initially the applicant was employed as an administrative officer at the Guildford office.  In early 2001 he was downgraded to an administrative assistant and thereafter moved to Woking.  In August 2005 he moved to Staines, still as an administrative assistant.  In December 2005 he wrote to a senior business manager, complaining about the conduct of, in particular, two of his line managers or former line managers, Liz Busby and Sophie Smith.  Liz Busby had been his line manager from November 2001 until sometime in 2003, and Sophie Smith had been his line manager since August 2005.

1. The complaint was investigated under the respondent’s harassment, discrimination and bullying policy.  It was eventually dismissed in August 2006.  Meanwhile, on 28 July 2006, the applicant had commenced proceedings in the Employment Tribunal, alleging discrimination and harassment.  Later, on 19 September 2006, the applicant filed a formal grievance within the respondent’s grievance procedure.  He took early retirement in February 2007 before the ET hearing had taken place.

1. The ET held a number of case management hearings.  At one, the issues were defined.  It appeared that the factual matters to be investigated were spread over a period of about four years.  The final allegation of harassment or discrimination related to an incident in December 2005.  On the face of it, the application dated 28 July 2006 was out of time.  However, the applicant contended that the respondents’ dilatory conduct of his complaint was also an act of discrimination or harassment and time had not begun to run against him until that had been dealt with.  At a later case management hearing and subsequently, orders for disclosure of documents were made.  Some documents were produced, but the respondents claimed that others could not be located and might have been destroyed.  The applicant contended that these documents had been deliberately destroyed, but the ET rejected that suggestion.  They thought that they had probably been destroyed pursuant to the respondent’s ordinary policies.

1. The substantive hearing took place over the course of eleven days between September 2007 and March 2008; the applicant appeared in person.  The ET’s decision is long, but is well structured and deals clearly with all the issues.  The ET held that none of the matters complained of amounted either to discrimination or harassment.  Where there was a dispute as to what had happened, the tribunal preferred the evidence of the respondent’s witnesses.  In short, the applicant lost on the facts.

1. However, even more fundamentally, the ET held that the complaint was out of time.  They held that, even if the matters complained of had amounted to a course of conduct, that course of conduct had come to an end in December 2005.   The applicant was entitled to only three months after that in which to bring his claim.  Even if he were entitled to a three month extension -- which the tribunal did not think he was -- his claim had to be lodged by the end of June 2006. In fact, it was not lodged until the end of July 2006.  The tribunal held that it was not just and equitable to extend time.  Therefore there was no jurisdiction.

1. In the course of its judgment, the tribunal also explained that the appellant had wasted a great deal of time during the hearing.  The hearing was scheduled to last for five days, but in the event it lasted eleven days because, said the tribunal, the applicant was unable to cross-examine in a proper manner; instead he made long statements of complaint about the unfairness of his treatment while the witnesses were under cross-examination.  The chairman had tried to advise him about this but he had failed to heed either advice or assistance.

1. Accordingly, the claim failed both on jurisdictional and substantive grounds.  The applicant sought appeal to the EAT, alleging inter alia that the ET had failed to deal with the respondents’ serious dereliction in failing to produce documents.  He also alleged that the ET had been biased and hostile; for example, the chairman had refused the applicant’s application to exclude the respondent’s witnesses from the hearing room.  The applicant sought to challenge a number of findings of fact and alleged that the conclusion as to time and jurisdiction had been wrong.  Judge Ansell held that none of these grounds had any prospect of success.

1. The applicant now seeks to appeal to this court.  Sir Richard Buxton refused permission to appeal after consideration of the papers.  In this oral renewal the applicant has made a large number of complaints on paper in a lengthy skeleton argument.  They can be conveniently subsumed under four headings: 1) failure to deal properly with disclosure issues; 2) the jurisdiction point; 3) wrong findings of fact; and 4) bias.

1. This morning in oral argument the applicant has focused mainly upon the ET’s failure to criticise the respondents for their failure to produce documents which, he submits, were vital to his claim.  These documents related to the promotion of other people to the rank of administrative officer and the failure to promote him and to maintain him at the rank of administrative assistant (AA).  He has shown me an assessment of his work which, as an AA, demonstrates that he was well thought of by his then line manager who prepared his annual appraisal assessment.

1. However, it is apparent from the list of issues that it was never an allegation that the respondents had discriminated against him by failing to promote him to the rank of administrative officer.  There were indeed two allegations that bore some relation to promotion.  It was said that he was denied the opportunity to apply for promotion on the occasions that others were promoted in or around late 2001 and early 2002, and it is said that he was removed from higher rate duties by Liz Busby or other members of management in or around early 2003.  It is also said that in or around 2003, Liz Busby, or other members of the respondents’ management, failed to provide details to the claimant of presentational skills training course.  The tribunal made the point that, at the time of all of those complaints, the Employment Equality (Religion or Belief) Regulations 2003 were not yet in force.

1. It is clear that the documents which the claimant complains were not produced related to a sift-marking Band B progression exercise for November and December 2003.  Those documents plainly do not relate to the allegations of non-promotion in respect of 2001 to 2002.  As the tribunal was to comment in paragraph 26 of its decision, they relate to the events of November 2003, as to which the only complaint is that Liz Busby or others failed to provide the claimant with the details of a presentational skills course.  Accordingly, when, at paragraph 26, the tribunal came to consider the seriousness of the respondents’ failure to produce these documents -- which, as I have said, they claimed they no longer had -- the tribunal said that they could not see why these documents were important or relevant to the issue before the tribunal.  They say this, some way through paragraph 26:

“The Respondent was unable to locate those documents [that is the Band B progression exercise for November/December 2003], which may have been destroyed under the timescales set down under the Respondent’s procedure for retention of documents.  In any event, the Tribunal is wholly unable to see the relevance of the application forms of the applicant in that progression exercise to the Claimant’s allegation that Ms Busby or other members of management failed to provide him details of a presentational skills training course which may have assisted him in such a promotion exercise had he participated in it. The Tribunal for these reasons rejects the Claimant’s contention that the Respondent has concealed the material and incriminating documents which supports his allegations of unlawful racial and religious discrimination under this heading.”

1. That is the issue upon which the applicant has focused this morning. I am wholly unpersuaded that there is any substance in his complaint about the non-production of these documents.  The burden of the argument this morning was that the whole process had been flawed because of the failure to produce these documents and that there ought to be retrial of the issues with the tribunal seeing the documents; but there is a finding of fact that the documents no longer exist and that, in any event, they were not relevant to the only issue that the tribunal had to decide in relating to November and December 2003, which was the availability of the presentational skills course.

1. Accordingly, the point upon which the applicant has focused this morning is doomed to failure and there is no prospect at all that the Court of Appeal would interfere with the ET’s decision and order a retrial on that ground.

1. The other issues which the applicant urged upon me through his skeleton argument are similarly without merit.  As to the time point, the ET was of the view that the allegations did not amount to a course of conduct but related to discrete incidents.  They were prepared to assume in his favour that the allegations were a course of conduct on a hypothetical basis.  They were also of the view that the time for commencing proceedings was three months from December 2005, but we are prepared for the sake of argument to assume in his favour that by lodging a grievance in December 2005 he had secured an extension of a further three months in which to lodge his complaint.  Even so, the application was a month late.  They considered what the explanation was for that delay and concluded that there was no proper explanation and it was not just and equitable to extend time.  There can be no possible challenge to that.

1. The applicant sought to argue in his skeleton argument that the ET’s decision ignored his claim that the dilatory conduct of his complaint was itself discriminatory or an act of harassment, but the ET had held that there had been no unreasonable delay.  They were entitled so to hold and that is an end to that point.

1. As to the findings of fact, there was evidence on which the ET could reach all of its conclusions.  The findings were not in any way perverse.  There is no prospect that the Court of Appeal would interfere.

1. Finally, as to the allegations of bias, I have little doubt that the applicant found the hearing difficult.  The ET has explained why it was necessary, frequently, to ask the applicant to move on and ask questions of the witness, rather than making a speech of complaint.  I have little doubt that that is what lies behind the complaint of bias and I have no doubt at all that the chairman’s interventions were both reasonable and necessary.  In that regard, again, there is no prospect that the Court of Appeal would interfere.

1. I recognise that the applicant feels that he has been dealt with unfairly and that he will be dissatisfied and deeply disappointed by my rejection of his application for permission to appeal, but I am sorry to tell him that it is my considered judgment that there is no prospect that the Court of Appeal would allow this appeal.  There is no basis upon which it could do so, and accordingly this application must be refused.

Order:  Application refused