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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Malhotra v Price Waterhouse  UKEAT 528_98_2907 (29 July 1999)
Cite as:  UKEAT 528_98_2907
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|At the Tribunal|
|On 17 June 1999|
THE HONOURABLE MR JUSTICE CHARLES
MISS D WHITTINGHAM
MR N D WILLIS
Transcript of Proceedings
|For the Appellant||IN PERSON|
|For the Respondents||MR J ALGAZY
Miss S Davis
85 Queen Victoria Street
London EC4V 4JL
MR JUSTICE CHARLES: This is an appeal by Mr Malhotra against a decision of the Chairman of an Industrial Tribunal (now an Employment Tribunal and we shall so refer to it) sitting alone at London (South) on 9 February 1998.
"Amended 'Notice of Appeal'
The grounds of appeal are as follows:
1. Rule 9(1) from EAT booklet - Practice Direction (Employment Appeal Tribunal Procedures)
2. Section 68(1), 68(6) and 68(7) of the Race Relations Act 1976.
- The Chairman was biased against the Appellant and there is no complete record as to what was said at the Preliminary hearing by the Appellant. The Chairman's extended reasons do not tell all the facts and are in parts incorrectly stated. The Appellant had prepared contemporaneous notes of the events, therefore his recollections should have been preferred. The Respondents must have made their statements from memory. However the Chairman states in his decision that he prefers Mr Bell's recollection of events.
- The Appellant was constantly interrupted by the Chairman when he was making his submission. The Appellant was a litigant in person and therefore the Chairman should have given him assistance. He failed to do so. The Chairman's demeanour suggested to the Appellant that he was against him.
- The Chairman had not used any discretion pursuant to Section 68 of the Race Relations Act 1976 in allowing the Appellants claim to proceed. He was biased against the Appellants. This was apparent from his unquestionable acceptance of the Respondents evidence at the hearing.
- The Chairman also failed to use his discretion in allowing the Applicants application, as it was explained to him that the Appellant acted on the advice of Ms Corinne Forbes of Commission of Racial Equality (CRE) on the 'Date of Incident' as 1 August 1997. It was Ms Forbes of CRE who served completed questionnaire form RR65 on the Respondent. There was evidence to support this contention, however the Chairman ignored it. He makes no mention of it in his decision. The Chairman failed to consider all the facts or exercise his discretion when he ought to have done so."
"Meeting Ms Corinne Forbes on 22/10/97 at 11.00.
Date of Incident 1-8-97."
(a) in his appeal Mr Malhotra raises questions of bias,
(b) issues have been raised by Mr Malhotra as to exchanges in the Employment Tribunal, and
(c) it seemed to us that if we were to decide against Mr Malhotra it may be that he would allege that we were biased, or that in some way we had acted unfairly, and that the existence of a record of the proceedings before us might assist the parties and any court who had to deal with such issues.
(a) in the words of section 68(1) of the Race Relations Act 1976 "when the act complained of was done" having regard to the provisions of section 68(7) thereof, and
(b) if that act was done outside the time limit set by section 68(1) whether in all the circumstances of the case the Employment Tribunal considered that it was just and equitable for the complaint to be heard out of time (see section 68(6) Race Relations Act 1976).
"The question I have to answer is first was the application lodged within three months of the date of the alleged act of discrimination and secondly, if not, whether it is just and equitable to extend the period to enable the Tribunal to have jurisdiction to hear the claim."
In our judgment it is clear from that paragraph and the Extended Reasons read as a whole that the Chairman correctly had section 68 of the Race Relations Act 1976 in mind and applied the provisions of that section and thus directed himself to the right statutory tests.
"The words 'in all the circumstances of the case' refer, as we think, to the actual facts of the matter in so far as they are relevant to the matter under consideration in section 76(5). 'The case' does not refer, we think, to the entire complaint which, if time were extended, would have to be investigated. The words refer to the actual facts so far as relevant to the matter in hand.
The second matter to which we would draw attention is that this is a new, or relatively new, statute. The formula provided by section 76(5) by which an application to extend time has to be judged is a new one, and it very sensibly gives the industrial tribunal a wide discretion to do what it thinks is just and equitable in the circumstances. Those are very wide words. They entitle the industrial tribunal to take into account anything which it judges to be relevant. We doubt whether industrial tribunals will get much assistance in exercising that jurisdiction by being referred to cases decided on other tests under other statutes. We do not go so far as to say that they are always and in all circumstances irrelevant, but we would deprecate these very simple, wide words being encrusted by the barnacles of authority. The industrial tribunal is to do what it thinks is fair in the circumstances.
In that connection and going back for a moment to the first point, it is for the tribunal to say how far they think it is necessary to look at the circumstances of the matter complained of. No doubt they will want to know what it is all about; they may want to form some fairly rough idea as to whether it is a strong complaint or a weak complaint, and so on. Certainly it is not required at that stage to try the complaint.
The third thing which we have to say about section 76(5) is this. Because it is such a wide discretion conferred upon an industrial tribunal, the task which an appellant has in such a case is a heavy one. Really he must show, if he is to succeed upon appeal, that the industrial tribunal demonstrably took a wrong approach to the matter, or that they took into account facts which they ought not to have done, or that they failed to take into account facts which they should have done, or, as a last resort which is always open upon an appeal, that the decision was so unreasonable in all the circumstances that no reasonably instructed tribunal could have reached it."
"4. The Applicant submitted an application for those posts by letter dated 9 May 1997 and he enclosed a copy of his CV (page 22 of A1). The Applicant was anxious to be considered in particular for the positions ST1 and ST4. Incidentally position ST4 requires someone with specialist knowledge of human resources and employment law.
5. On 5 May 1997, after having spoken on the phone with Mr Macleod, the Applicant wrote to Mr Macleod confirming that in his view he could take responsibility for both positions referred to as ST1 and ST4 and expressed his confidence that he 'would excel in all the skills required to match the roles envisaged in the position'.
6. The Responsibility for selecting a short list of candidates from the application lay with Mr Macleod. The Respondents had received well over 650 applications. In accordance with his normal procedure Mr Macleod waited until all applications had been received before sifting through them and compiling a short list. A short list of 70 applicants was prepared. The Applicant's name was not selected and did not go forward into that short list.
7. On 30 June 1997 (page 24 of the Applicant's bundle) Mr Macleod wrote to the Applicant:
'Further to our recent exchange of letters we have now completed our initial review of all the applications for this advertisement. The quantity was larger than we had anticipated, which explains the slight delay in my response to you.
I am afraid that the outcome of this review has been that we do not see a sufficiently close match between our needs and your background at this stage. We will therefore not be inviting you to attend for an interview. Whilst this will no doubt be disappointing I would like to thank you for your interest in Price Waterhouse and to wish you well for your ongoing search'.
The Applicant received that letter on or about 3 July, that is the date of the act of alleged discrimination. The Applicant was unhappy about the outcome and there were subsequent communications between the Applicant and the Respondent on or about 7 July when there was a telephone conversation between the Applicant and Mr Bell. On 17 July the Applicant wrote by fax (copy page 27 of A1) to Mr Bell indicating that he would appreciate a meeting with Mr Bell and with Miss Hunt at the earliest possible convenience.
8. The Applicant in his evidence stated that there had been a promise that his CV and application form might be circulated by the Respondents and the Applicant considered for some other position in Price Waterhouse. Mr Bell denies this. In any event the Applicant had made it quite clear to Mr Bell that his concern was about the jobs that he had actually applied for ST1, ST4 and ST5. I prefer Mr Bell's recollection of events.
9. On 18 July 1997 Mr Bell wrote to the Applicant. This was a clear indication that the Applicant's application for the jobs advertised with the Respondents in The Times in May was going no further.
10. The Applicant subsequently contacted Mr Brooks, Chairman of the Respondent company. That letter was referred back to Mr Bell who responded by letter of 1 August.
11. The Applicant contacted the Commission for Racial Equality in late July 1997. He was concerned that the failure to shortlist him was discriminatory and he sought advice from them.
12. In the Respondent's bundle at pages 29 and 30 are copies of correspondence exchanged between the Respondent's solicitors and the Commission for Racial Equality. The Commission in a letter dated 22 January, a letter which appears to come from Corinne Forbes although signed on her behalf, confirmed that the Applicant had contacted them in July and confirmed that they had advised the Applicant that there were strict time limits involved and that an application had to be made within three months less one day of the alleged incident occurring.
13. The Applicant points out that it was the CRE who assisted him in completing the Originating Application and it was they who lodged the papers at the Tribunal. The Applicant in his evidence stated that he was not 'au fait' with all English legal procedures and had understood that the CRE was the body which would deal with the application. That I cannot accept, one of the jobs the Applicant applied for required a knowledge of employment law.
14. The question I have to answer is first was the application lodged within three months of the date of the alleged act of discrimination and secondly, if not, whether it is just and equitable to extend the period to enable the Tribunal to have jurisdiction to hear the claim.
15. I remind myself that the complaint is that the Applicant was not shortlisted for the jobs which he applied for, the ST1, ST4 and ST5 posts. The Applicant became aware of the fact that he was not shortlisted by letter dated 30 June which he received on 3 July 1997. That is, therefore, the date that the three month period commenced and therefore any application to have been in time would have needed to have been received at the Tribunal on or before 2 October 1997. In this particular case there were discussions between the Applicant, after the initial rejection as the Applicant was very determined to obtain a job with the Respondents, there were a number of telephone calls the Applicant pleading to be given an opportunity for employment with the Respondents or at least to have an interview. It is quite clear from the correspondence that any hopes that the Applicant may have had most definitely came to an end on receipt of the letter of 18 July which the Applicant said he would have received on 19 or 20 July. So giving the Applicant the benefit of the doubt the three month period from 20 July would expire on 19 October 1997. In either case the application is not lodged in time. Considering whether or not it would be just and equitable for me to extend the time I take into account that the Applicant received advice from the Commission for Racial Equality, that the Applicant is an intelligent man with a number of degrees, that the Applicant was applying for a post which required specialist employment law knowledge. Taking all of those matters into account I did not consider that it is just and equitable to extend the period in which the application can be lodged.
16. Therefore the application having been received at the Tribunal on 27 October 1997 it is out of time and the Tribunal therefore has no jurisdiction to hear the Applicant's claim which must be dismissed."
The Date - Point(1)
(a) The letter dated 18 July:
"Following your recent phone calls querying why your application to PW for advertised jobs had been unsuccessful. I have again considered your requests for an introductory interview.
We aim to operate a fair recruitment process and in my view your applications have been treated fairly in relation to the many others we receive. Candidates who meet the key criteria for vacancies are selected for interview, but we cannot meet every applicant who asks for special treatment - partly in fairness to those who have not been invited and partly because of the extra time involved, both in meetings and administration. Consequently I will not agree to a meeting with you, and consider this correspondence closed. Your application papers will of course be kept on file for future reference.
Naturally I hope you will be successful with any other applications you may be pursuing."
(b) The letter dated 1 August:
"Your fax of 23 July 1997 to Mr Brooks has been passed to me for attention as he is overseas and your concern falls within my remit as Director of Recruitment. As discussed, in our previous contact and as set out in my letter of 18 July 1997, I confirm that your applications for the varied positions you have sought in response to advertised vacancies have been considered fairly and rejected on their merits, as with all applications we receive.
Price Waterhouse operates an Equal Opportunities policy. I am satisfied that our selection processes are fair, unbiased, and in accordance with our non-discriminatory policies."
"I have again considered your requests for an introductory interview"
we have concluded that in the circumstances of this case the Chairman of the Employment Tribunal took the correct approach in giving Mr Malhotra the benefit of the doubt in respect of that letter. We say this because this sentence could indicate that there had been some reconsideration of his applications following the letter dated 30 June 1997.
Further Background Facts relevant to Point (2) - Just and Equitable Extension
"One of the partners of Price Waterhouse wrote to me on 1 February 1995 and I quote, 'I think one of the problems is that your job history and the fact it is 'probably ahead of its time' ...
Recently, I applied for positions ST1, ST4 and ST5 which were advertised by Price Waterhouse. I enclose our correspondence in this respect. ... I decided to take a stand when I was not again called for an interview and finally rejected on 18th July 1997 for positions ST1, ST4 and ST5. See enclosures."
(a) this assertion is contrary to Mr Malhotra's views as expressed in the application to the Commission for Racial Equality signed by him on 27 September 1997,
(b) in our view this assertion is contrary to the clear effect of the letters dated 30 June and 18 July 1997, and as the Chairman of the Employment Tribunal points out Mr Malhotra is a man who is well capable of understanding those letters, and
(c) this assertion and explanation was not offered earlier during the hearing before us.
As to point (c) we add that given the fact that Mr Malhotra was acting in person we would not have placed much reliance upon it if the question as to why Mr Malhotra had included the date 1 August 1997 in his Originating Application had not been the subject of earlier submission and assertion by Mr Malhotra and questions by us which took place before our attention had been drawn by counsel for Price Waterhouse to the application made by Mr Malhotra to the Commission for Racial Equality dated 22 September 1997.
(a) his applications were not finally rejected by the letter dated 18 July but by the letter dated 1 August 1997, and
(b) it was the letter dated 1 August which set the date for the purposes of calculating the time limit in which he had to make his claim,
we record that we are satisfied that Mr Malhotra was not deliberately seeking to mislead us. In our judgment he is now convinced that the relevant date is 1 August 1997 (or the date when that letter was received) and this has coloured his recollection of events.
Point (2) - Just and Equitable Extension
(a) the identification of the date of the act complained of turns primarily on correspondence,
(b) in July Mr Malhotra informally consulted the Commission for Racial Equality and was told that there were strict time limits,
(c) in September Mr Malhotra thought that the starting date for such time limits was 18 July, and
(d) Mr Malhotra was applying for senior posts and his case is that he is a man of intelligence and common sense well able to ascertain and comply with relevant time limits both in connection with legal proceedings and business decisions.
Bias and Procedural Unfairness
"We accept that there is jurisdiction for a Tribunal to discontinue a hearing and order a re-hearing (Charman v Palmers Scaffolding Ltd (1979) ICR 335 and Automobile Proprietary Ltd v Healy (1979)ICR 809). But those cases also make it clear that that power should be exercised most sparingly and only for very good reason; a bare allegation of bias is not sufficient. We take it to be axiomatic that justice before a Tribunal must not only be done but also be manifestly seen to be done. That applies as much in our view to a Tribunal such as the Industrial Tribunal as it does to a formal court of law. Not only must there be no bias on the part of the Tribunal but also the Tribunal must not give the appearance of bias. Where there is an allegation of bias based on the conduct of one or more members of a Tribunal at a hearing, the test is, in our view, an objective one: would the reasonable observer present at the hearing, not being a party, or associated with a party, to the proceedings but knowing the issues, reasonably gain the impression of bias. That impression may be given by the appearance of a closed mind against a party on a matter which falls for decision by the Tribunal when that party has not yet presented all his evidence relevant to the point or had the opportunity of addressing the Tribunal on that evidence."
"... The test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand. ..."
In his speech in the Pinochet case at  2 WLR 284 E/G Lord Browne-Wilkinson raises, but leaves open, the point that this test may need to be reviewed in the light of subsequent decisions. The possible review is to determine whether that test should be modified to make the relevant test the question:
"whether the events in question give rise to a reasonable apprehension or suspicion on the part of a fairminded and informed member of the public that the judge was not impartial"
In our view it is not easy to identify in the abstract the distinctions between an objective test based on the appearance of a real danger of bias and one based on reasonable apprehension or suspicion of bias save, in the general sense, that the former is a more stringent and difficult test to satisfy for a person alleging apparent bias. In this case it has been unnecessary for us to consider the distinctions between the tests because we have adopted the course of considering first what is in our view the less stringent test (i.e. one based on reasonable apprehension or suspicion of bias) and have concluded on that basis that Mr Malhotra has failed to establish bias. It follows in our view that he also fails the test based on the need to establish a real danger of bias.
"How can a white Chairman know and feel when the 'Date of Incident' regarding the act of direct / indirect discrimination occurred."
(a) who should be appointed to a senior job, and
(b) the application of a statutory test, and
(c) who should win a case before the Courts
decision-makers can and regularly do apply their minds strictly to the issues and merits relevant to the particular decision.
(a) having rejected Mr Malhotra's assertion of actual bias we are concerned with an objective appraisal,
(b) the opinions and impressions of the parties and any observer they produce and whose observations they seek to rely on are therefore not decisive although, of course, they are of some relevance,
(c) it will be an unusual case where it would be necessary to determine whether the assertions made by the parties or witnesses they produce do not in fact represent their true beliefs and opinions and thus, in other words, whether they are not telling the truth as to their opinions and beliefs, and
(d) this is not a case in which we are of the opinion that a dispute as to what can be described as 'primary fact' (e.g. as to an incident or exchange during the hearing) needs to be resolved.
(i) it is undesirable that members of a Tribunal should be called upon to give oral evidence,
(ii) generally they should not have to do so, and
(iii) generally, as here, allegations of bias and procedural unfairness made against members of an Employment Tribunal can, and should be dealt with by this Tribunal without hearing oral evidence
we do not agree that as a matter of policy or public interest Members of an Employment Tribunal should never be ordered to give oral evidence on such issues.
(a) As regards the initial decisions on time limits
(i) The allegation that there is no complete record of the preliminary hearing from a tape recording or independent person.
In our judgment this is not an allegation which demonstrates any bias.
(ii) The allegation that the Chairman was a white male hearing an Applicant of Indian origin.
In our judgment this is an allegation by Mr Malhotra that could be classified as an allegation of actual bias. We have already dealt with it and rejected it.
(iii) The allegation that the Chairman twisted the facts as recounted by the Applicant.
In our judgment this allegation is not made good. It was clearly open to the Chairman to disbelieve Mr Malhotra and to accept evidence given by the witnesses he heard who were called on behalf of Price Waterhouse. In any event, as we have already explained, in our judgment the factual elements of the Chairman's decision turn on an interpretation of the correspondence and effectively accepted facts (e.g. that Mr Malhotra had consulted the Commission for Racial Equality in July on an informal basis and at that time had been told by them that there were strict time limits).
(iv) The allegation that the Chairman constantly interrupted the Applicant.
We accept that the Chairman would have interrupted the Applicant and that Mr Malhotra feels that he did so constantly. However, in our judgment, it is part of the function of a Chairman to ensure that litigants (whether they are represented or not) deal with relevant points (and so far as practical, relevant points only). In our judgment it is clear from the Extended Reasons that the Chairman in this case identified the relevant points and, having seen Mr Malhotra present his case before us, we are quite confident that he put before the Chairman all matters that he wanted him to consider in respect of those points.
(v) The allegation that the Chairman failed to give the Applicant assistance as a litigant in person.
In our judgment this is simply a bare allegation of a subjective view which is not made out. Mr Malhotra's case is that he is an intelligent man who is more than capable of being appointed to positions requiring skill and the ability to express oneself. He demonstrated to us that he is quite capable of expressing himself clearly and in "getting his points over". Further, as we have said, we are satisfied that the interruptions of the Chairman were to focus attention on the relevant matters and that Mr Malhotra "got his points over" on those matters.
(vi) The allegation that the Chairman's "demeanour" suggested bias.
Again in our judgment this is simply a bare allegation of a subjective view which is not made out. In respect of this allegation (and the other points on bias made by Mr Malhotra) we comment that in our judgment the statement dated 25 February 1998 made by a Mr Tim Williams which Mr Malhotra has put before us, does not establish bias. In this statement which is not sworn Mr Williams says that he was an observer at the preliminary hearing and that the Chairman hearing the case appeared to him to be biased. As we have explained, we proceed on the basis that this was the subjective view of both Mr Williams and Mr Malhotra. However, as we have further explained, this does not determine the issue. In our judgment on the evidence before us we have concluded on the balance of probability that an objective observer with a knowledge of the issues would not have concluded that the hearing was being conducted unfairly or that the Chairman was biased.
(b) As regards failure to exercise the section 68(6) discretion.
(i) The allegation that the Chairman has "totally misinterpreted" the law under section 68 of the Race Relations Act 1976.
For the reasons we have given in our judgment this is simply wrong.
(ii) The allegation that the Chairman accepted prepared statements from the Respondents when two of the witnesses lied on oath.
In our judgment it is part of the function of a Chairman of an Employment Tribunal to determine issues of fact.
(iii) The allegation that the Chairman failed sufficiently to consider the Commission for Racial Equality dimension and the involvement of the Commission for Racial Equality.
In our judgment the Extended Reasons show that this is simply wrong. Further, we comment that in our judgment Mr Malhotra's arguments based on the involvement of the Commission for Racial Equality are somewhat disingenuous. This is because he accepted before us, and indeed accepts in his original Notice of Appeal, that he did not receive any advice from the Commission for Racial Equality as to the relevant date until 22 October 1997. It follows that any advice he received on that date as to the relevant date was after the three month time limit had expired if the relevant date was 30 June 1997 or 18 July 1997 or the date upon which the letters of those dates were received by Mr Malhotra. Further, so far as the involvement of the Commission for Racial Equality is concerned, it should be remembered that in the letter dated 22 January 1998 they assert that Mr Malhotra had contacted them informally in July and that he had then been advised that there was a strict three month time limit. Further, in making his application to the Commission for Racial Equality Mr Malhotra had identified that he was finally rejected on 18 July 1997.
(iv) The allegation that the Chairman as a white male is not able to " ... know and feel when the 'Date of Incident' ... occurred".
In our judgment this is an allegation by Mr Malhotra that could be classified as an allegation of actual bias. We have already dealt with it and rejected it.
(v) The allegation that the Chairman failed to exercise his discretion.
In our judgment the Extended Reasons show that the Chairman did exercise his discretion and, in our judgment, in doing so he made no error of law and indeed clearly reached the correct conclusion.
(vi) The allegation that the Chairman failed to consider all the facts.
In our judgment the Extended Reasons show that the Chairman did consider the relevant facts and that he took the correct approach. Amongst other things they show that:
(a) he had regard to the nature of Mr Malhotra's complaint and the background,
(b) he had regard to the relevant letters and refers to the letters of 30 June 1997, 18 July 1997 and 1 August 1997,
(c) he had regard to the involvement of the Commission for Racial Equality and
(d) he had regard to Mr Malhotra's education and intelligence.
Finally, we mention that an issue was raised particularly on the preliminary hearing as to whether during the hearing before the Employment Tribunal Mr Malhotra had stated that he had worked for, or that he had a background with, East European Secret Services. Mr Malhotra denies that he ever said this and he is supported in this assertion by a further unsworn statement from Mr Tim Williams and from the fact that the notes of a Karen Birch, who is a barrister employed by Price Waterhouse who attended at the Employment Tribunal, do not indicate that he made any such assertion. Although in our judgment the point is a "red herring" we mention that it arose because it was raised by the Chairman in his comments dated 21 May 1998 on Mr Malhotra's first affidavit and in the Chairman's later comments dated 16 November 1998 he states as follows:
"I have been through my notes - I did not record the comment about the Applicant advising East European Secret Services but I do recall that he said it - it struck me a being quite unusual - it was irrelevant to the issues and was not necessary to record. I did record that Mr Malhotra gave evidence that he had advised 'the Polish Chamber of Commerce and a Polish Minister'."