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United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Duggal v. Connex South Eastern Ltd  UKEAT 639_99_1412 (14 December 2000)
Cite as:  UKEAT 639_99_1412
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|At the Tribunal|
|On 27 October 2000|
THE HONOURABLE MR JUSTICE CHARLES
MRS MS B SWITZER
MR T C THOMAS CBE
Transcript of Proceedings
|For the Appellant||IN PERSON|
|For the Respondents||MR J TODD
Mr M Smith
14-20 Chiswell Street
London EC1Y 4TW
MR JUSTICE CHARLES:
"(i) The Applicant's claim for victimisation fails
(ii) The Applicant's claim for direct discrimination under the provisions of the Race Relations Act 1976 fails
(iii) The Applicant was unfairly dismissed.
(iv) The chances of the Applicant's employment being terminated in any event is put by the Tribunal at 75%."
"(1) that the Tribunal do not order reinstatement of the Applicant
(2) that the Tribunal orders the Respondents to pay [to] the Applicant compensation in the total sum of £5,179.65
(3) a recoupment order is made.
As can be appreciated from this decision, the matters in respect of the remedy were generally complex, not helped by the distance from the effective date of termination of employment. The Tribunal was greatly assisted by counsel for both parties in resolving these issues."
"3. Arising out of his various submissions we have concluded that there are arguable points of appeal which should be aired at a full appeal hearing on certain issues. Those issues are as follows:
(1) His appeal against the decision of the Employment Tribunal to reduce his compensatory award by 75%. That is the matter which is identified in paragraph 1(b) of his further and better particulars of the Notice of Appeal received by this tribunal on 30th April 1999.
(2) His appeal against the decision of the tribunal at the remedies hearing which limited the period of loss for the purposes of calculation of compensation to the period from the date of dismissal up to 6th August 1996. That is the ground identified as ground 6(2) in his Notice of Appeal dated 16th August 1999.
(3) The decision of the tribunal not to award any compensation in respect of loss of travel benefits set out in the second half of paragraph 11 of the tribunal's reasons on remedies and identified by Mr Duggal in paragraph 6(i) of his Notice of Appeal dated 16th August 1999. In respect of that particular ground of appeal we direct that there should be available to the Employment Appeal Tribunal which hears this appeal the document described in paragraph 11 of the tribunal decision as 'his pro forma template for his loss claims'."
In paragraph 4 of that judgment His Honour Judge Wilkie QC continued as follows:
"4 As to the remainder of the various grounds of appeal put forward by Mr Duggal in respect of these various decisions of the tribunal, we have concluded that they disclose no reasonably arguable case and accordingly they are dismissed at this stage. In deference to Mr Duggal's efforts in setting out his case, we shortly summarise below the essential reasons for our decision."
"I am writing concerning above referred appeals the hearing for which is due to take place on 27th October, 2000. The grounds of appeal permitted for this hearing have been restricted by the EAT at their preliminary hearing. The other grounds, which were dismissed at preliminary hearing stage, included my allegation of bias on the part of the ET besides other issues. My further attempts to argue those grounds, first at the request for 'Review' to the EAT and then an application for leave to appeal to the CA have come to nothing.
With the introduction of the Human Rights Act, 1998, on 2nd of October, under Section 7 of this Act, I intend to rely on this Act and thereby raise the issue of the breach of the Article 6(1) of the Convention. In that, it is alleged that I have not had a 'fair' hearing of my complaints by an 'impartial' tribunal.
Therefore, I am seeking leave to either amend my notice of appeal or in the alternative leave to file a fresh notice of appeal under the Human Rights Act, 1998, for the reasons stated in the above paragraph. Could you kindly advice me for the appropriate course to take.
In the event of my application is granted, it may well be a case that the original estimation of ½day for the hearing may not be sufficient and perhaps a full day may be more suitable?"
"Thank you for your letter of 22nd September, with enclosure.
We must make the obvious point that this proposed amendment is put forward very late in the day although should the EAT allow it, the Respondent will be in a position to deal with it at the hearing on 27th October.
However it seems to us that the amendment should not be allowed because the particular provision upon which the Appellant must rely (Section 7(1)(b) Human Rights Act) does not apply to acts that take place before the coming into force of this section. As Section 7(1)(b) comes into force on 2nd October 2000, it seems to us the Appellant is unable to rely on it.
We look forward to receiving the EAT's decision in relation to the Appellant's application in due course, along with a copy of the index for the appeal bundle please."
The hearing before us
(a) we would reserve judgment,
(b) we would hear Mr Duggal on his application to add further grounds and on the grounds identified by His Honour Judge Wilkie QC,
(c) we would hear the Respondent on those points,
(d) we would hear Mr Duggal in reply, and
(e) if in our reserved judgment we were to find in favour of Mr Duggal on his application to add further grounds, we would set another hearing date to enable him to expand on those grounds orally and for the Respondent to deal with them.
(1) In respect of his claim for unfair dismissal the Employment Tribunal had asked itself the wrong question and had made no mention of what is now section 98(4) of the Employment Rights Act (and was then section 57(3) of the Employment Protection (Consolidation) Act 1978). In this context he said that in addition to a failure to refer to the relevant statutory provisions the Employment Tribunal erred in law because there was no evidence upon which it could found its conclusion as to the reason for his dismissal and it was wrong for the Employment Tribunal to infer what that reason was.
(2) In respect of his claim for discrimination by way of victimisation, he said that the Employment Tribunal erred in law by not asking itself the correct statutory question and further or alternatively, in not explaining how it had reached its conclusion by reference to that statutory question. He also said that the Employment Tribunal was manifestly wrong to say that something that had occurred in 1986 was not relevant when it had allowed him to base his claim on matters that were outside the three month time limit set by the Act.
(3) Mr Duggal made a number of further points. In respect of some of these he placed blame on the Counsel who had represented him before the Employment Tribunal rather than on the Employment Tribunal itself. However, we shall treat all the complaints as ones made against the Employment Tribunal as well. He identified the following key points:
(i) A point relating to documents and disclosure. He asserted that the Respondent did not comply with the order for discovery and the Employment Tribunal was wrong to regard his application for further discovery as a "fishing expedition". In particular he submitted that all documents relating to the staff at the Charing Cross ticket office were not disclosed, the files produced at the hearing were not sufficient and the computerised attendance sheets should have been produced. Mr Duggal asserted that the lack of full disclosure meant there was not (and could not be) a proper and fair hearing on the issues of fact and the Employment Tribunal regarded the Respondent's case with favour on this important issue.
(ii) A point relating to what he asserts was important oral evidence. He submitted that there was no reference in the Extended Reasons to the evidence of two independent witnesses who he had called (a Mr Hamid and a Mr Farren) who, he said, were long-serving employees who gave evidence to the effect that they had never known an employee with the length of service that Mr Duggal had being dismissed on the ground of sickness. Mr Duggal says that this evidence was powerful evidence in support of his claim that there was direct discrimination and thus that the Employment Tribunal should have found this to be the case by inference or otherwise. He said that the fact that this evidence was not mentioned in the Extended Reasons was an error of law. His argument was that this evidence made the inference of direct race discrimination inevitable.
(iii) A point relating to perjury. He submitted that he was a victim of injustice in respect of the conclusion of the Employment Tribunal that the comparators, or control group, he was advancing were not appropriate comparators because if the Employment Tribunal had taken them into account they would not have been comparing like with like. He said that this conclusion of the Employment Tribunal was based on lies and that he was wrongly made out by the Respondent to be a malingerer. In this respect his position was that the Employment Tribunal had reached its conclusion on evidence that was untrue and that this was unfair.
(4) Mr Duggal also said that this Tribunal and the Court of Appeal had erred in not allowing him to pursue the claims made in his original Notices of Appeal based on the points referred to in paragraph (3) above and more generally his allegations of bias or impartiality therein.
"6 As to his appeal against the tribunal's substantive decision, we are constrained to record that in our judgment the decision of the Employment Tribunal was a long and carefully constructed judgment which dealt comprehensively with the history of the matter and, save for the matters referred to above, came to entirely proper conclusions both as a matter of legal analysis and as a matter of finding facts on the basis of the evidence which was placed before it. It is worth commenting that the tribunal found in Mr Duggal's favour in concluding that he had been unfairly dismissed. Mr Duggal, notwithstanding that finding, sought by his appeal, inter alia, to challenge the conclusion of the tribunal that the reason for dismissal was one of capability. In our judgment that was an entirely correct legal construction of the facts found by the tribunal, namely that the reason for his dismissal concerned his history of absence through sickness which was governed by the respondent's managing for absence procedure. Thus there is, in our judgment, no arguable point of law in this respect.
7 Under the heading of perversity, Mr Duggal has raised a range of issues referring to the tribunal's treatment of comparators, the question of availability of documents, the tribunal's conclusion in respect of victimisation, the question of the raising an inference from primary facts, and the reference to ACAS and NCRE Codes of Practice. We have considered each of these aspects of the matter carefully and, in particular, have considered his detailed submissions on these matters which are contained in his documentation in support of his application for a review. On each of these issues we are satisfied that the tribunal made no error of law nor did they make decisions of fact which were not properly open to them in the light of the evidence. It seems to us that in respect of those issues Mr Duggal, as is his right, simply disagrees with the findings made by the tribunal. That, however, is not sufficient to give rise to an arguable appeal and that is what we find.
8 Also under the heading of perversity Mr Duggal raises points which the tribunal took on board in the sense that they found that he was unfairly dismissed. We have already indicated that there are points in relation to that finding which are worthy of ventilation at a full hearing. However, in so far as he links those criticisms to his allegations of discrimination and victimisation, again, in our judgment, the tribunal made findings which were open to it on the evidence and made no errors of law in the application of the primary facts as found by them. Accordingly, we find that there is no reasonably arguable case to advance to a full hearing in those respects.
10 Before us he sought to argue that the evidence of Mr Smith was manifestly fraudulent and that the tribunal, on the basis of the documentation before it, ought to have identified this and dealt with the case accordingly. In our judgment, having looked at the material placed before us in support of this contention, the point is simply not made out nor is it, in our judgment, seriously arguable. Accordingly on this basis too, we say that there is no reasonably arguable point of appeal."
We repeat that in paragraph 4 of his judgment, His Honour Judge Wilkie QC made it clear that in respect of all the various grounds of appeal put forward by Mr Duggal, save for those identified by His Honour Judge Wilkie QC in paragraph 3 of his judgment, this Tribunal concluded that they did not disclose any reasonably arguable case and accordingly they were dismissed.
Mr Duggal's application to add new grounds of appeal
(A) In our judgment the argument advanced by the Respondent in its letter referred to in paragraph 9 above is correct. To advance his new arguments Mr Duggal would rely on s. 7(1)(b) and s. 7(6) which defines the legal proceedings referred to in s. 7(1)(b). Section 22(4) makes specific and limited provision as to the retrospective effect of the Human Rights Act 1998 in relation to s. 7(1)(b). In our judgment:
(i) the act or acts that Mr Duggal wishes to argue are in breach of his Convention Rights took place at the times of the hearings before the Employment Tribunal and therefore before the coming into force of s. 7(1)(b), and
(ii) this has the consequence that the part of s. 22(4) that provides for retrospective effect does not apply because the proceedings were not brought by, or at the instigation of, a public authority.
In his written submissions Mr Duggal referred us to extracts from the speeches of Lord Cooke and Lord Hobhouse in Reg v Director of Public Prosecutions ex parte Kebilene  UKHL 43 (28 October 1999) and  3 WLR 972. In our judgment those passages do not support an argument that the Human Rights Act 1998 has retrospective effect in this case. This is because the Kebilene case was concerned with proceedings brought by a public authority as to which s. 22(4) does provide that s. 7(1)(b) is to have a retrospective effect. As we have said, here the proceedings were not brought by, or at the instigation of, a public authority and therefore what Lord Hobhouse refers to as "the only element of retrospectivity which s 22(4) introduces" does not exist. We also note that a little later in his speech Lord Hobhouse says: "Neither section 6 or section 7 is retrospective" (see  3 WLR at 1008G). We add that we do not accept an argument (which was not raised by Mr Duggal) that because:
(i) Convention Rights existed before the coming into effect of the Human Rights Act and at that time after exhausting domestic remedies a litigant could seek to challenge the fairness of a trial or hearing in the European Court of Human Rights on the basis of Convention Rights, and further or alternatively
(ii) it would be unlawful for this Tribunal as a public authority to act in a way that is incompatible with a Convention Right,
in this appeal we should assess questions of fairness and bias or impartiality in respect of the hearings before the Employment Tribunal by applying Articles of the Convention as part of our law. In our judgment, and even though the relevant issues can be said to relate to procedural as opposed to substantive matters, this argument is giving a retrospective effect to the Human Rights Act 1998 which is contrary to the general presumption against retrospectivity and the specific provisions of s. 22 thereof. It follows that in our judgment on an appeal to this Tribunal on grounds that an Employment Tribunal has acted unfairly the "act" referred to in s. 22(4) is the hearing before the Employment Tribunal and not the hearing of the appeal before us. Naturally this conclusion does not mean that in assessing what was fair and whether there was bias or impartiality we could not take the Convention, and decisions in respect of it, into account in the manner that this was done before the Human Rights Act 1998 came into effect.
(B) Alternatively and on the basis that the above conclusion is wrong and in determining issues of bias or impartiality and unfairness at the Employment Tribunal we should apply Convention Rights and therefore the effect and application of the Human Rights Act 1998 is equivalent to a decision of the House of Lords that is declaratory of what the law has always been (albeit the Court if Appeal have earlier held it to be different) in our judgment we would then have a discretion to determine whether or not Mr Duggal should be allowed to raise the points he now wishes to argue (see Setiya v East Yorkshire Health Authority IRLR 348) and in the exercise thereof we would refuse to allow him to do so.
The points identified by HH Judge Wilkie QC on the Preliminary Hearing
A Final Word