|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Singh v Glasgow University & Anor (Race Discrimination)  UKEAT 0006_11_1007 (10 July 2012).
Cite as:  UKEAT 0006_11_1007
[New search] [View without highlighting] [Printable RTF version] [Help]
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX
At the Tribunal
Judgment handed down on 10 July 2012
(1) GLASGOW UNIVERSITY
Transcript of Proceedings
(The Appellant in Person)
Dundas & Wilson CS LLP
20 Castle Terrace
The Claimant appealed against a decision by an Employment Judge discharging a party from proceedings, on the grounds of apparent bias. An issue arose as to the authenticity of a document prepared by another party. One of the other parties was the Chairman of the Judicial Appointments Board for Scotland and Claimant submitted that:
“the honourable learned judge in Scotland would resist accepting the possibility that the document of 3 August 2005 was a forgery; the implications of such a finding would have an adverse impact career‑ and income‑wise, because the third respondent, [was]chairman of the Judicial Appointments Board for ………..The honourable judge should and ought to have acknowledged the fact he was acting as judge in his own cause which he cannot do.”
No fair‑minded observer would regard the Employment Judge as having been acting in his own cause.
The Claimant drew attention to press reports in Scotland of a speech by Lord Hope reported in the Daily Herald in Scotland of 20 November 2011 who quoted remarks made to him by the late Lord about “a corrosive anti‑English sentiment’ in the Scottish Courts system. The article is headed “Scottish court system is anti‑English”.
Dr Singh submitted that he suffered from what he described as a “double‑whammy” in Scotland; firstly, he was a member of an ethnic minority, and, secondly, he speaks with a distinct English accent.
The background to the speech was that there is a vigorous debate taking place in Scotland as to the desirability of Scottish cases being decided by the Supreme Court in London, where the majority of Justices are English or from Northern Ireland. No fair‑minded observer would conclude that Lord Hope was in any way suggesting that Scottish courts would be biased against English litigants. The Employment Appeal Tribunal regarded Dr Singh’s suggestion that he could not receive a fair hearing in the Scottish courts as being an unacceptable slur on the integrity of the Scottish judiciary and rejected the suggestion that he had not received a fair hearing.
HIS HONOUR JUDGE SEROTA QC
1. This is the Judgment on a part‑heard appeal by the Claimant from a decision of the Employment Tribunal at Glasgow, Employment Judge Cape presiding, on 23 February 2010, when he gave permission to discharge or sist Professor Gusterson from the proceedings. Dr Singh sought to appeal on a number of grounds and was permitted to go to a full hearing by Wilkie J on 31 January 2011, solely in relation to the decision concerning Professor Gusterson and then only on the ground that the Employment Judge had allegedly failed to deal with an allegation by the Claimant (which, before me, he had maintained was a central plank of his case) that a document dated 3 August 2005 was a forgery.
2. I delivered Judgment and adjourned the appeal part‑heard on 6 June 2011, and remitted a question to the Employment Tribunal under the Burns/Barke procedure to explain if the issue as to whether the letter of 3 August 2005 purporting to be signed by Professor Gusterson was a forgery was addressed, and also to permit the Claimant to apply to the Employment Tribunal for a review based on “new” documents. I refer to my previous Judgment, and I do not intend to repeat its contents.
The decision of the Employment Tribunal of 14 September 2011 (EJ Cape)
3. Employment Judge Cape decided that he would hold a review hearing, but in the event he declined to review his earlier decision, as I shall explain in due course. I do not have before me any appeal against the Employment Judge’s refusal to review his decision. The issues determined by the Employment Judge were set out at paragraph 7 of his decision:
“The issue for determination was whether when such matters as the claimant could make out in respect of the document of 3 August 2005 were given their proper weight and taken into account along with the other matters material to the decision in respect of whether the second respondent should be sisted as a party to the proceedings or, if already sisted, should be retained as a party, the decision taken following the hearing on 29 January 2010 should be confirmed, varied or revoked.”
4. At paragraphs 9‑17 the Employment Judge set out the Claimant’s case in relation to the additional documents and in relation to the document of 3 August 2005. He recorded the Respondents’ case at paragraphs 18‑20, and at paragraphs 21‑34 set out his findings of fact in relation to the documents, different versions of certain documents and the destruction and loss of others. He went on to set out the law relating to reviews by Employment Tribunals of their decision set out in rules 34 and 36 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations.
“Insofar as the issue as to the authenticity of the document of 3 August 2005 was raised at the hearing on 29 January 2010, the position was this. There was no oral evidence on the matter. In the claimant’s submissions (running to 22 paragraphs) the only mention of the said document was in the final line of paragraph 22 – an assertion ‘It is likely to be a forged document’. In support of that assertion, the claimant referred to an e‑mail purportedly written by one Jim Renilson. Mr Renilson was not called as a witness. Nothing was led to authenticate such expertise as he claimed. He does not purport to be a hand‑writing expert and says only that he has been ‘involved in’ forensic investigations and regularly lectured at the FBI Laboratory and at New York City Crime Lab. The subject of the lectures is not stated.”
“Mr Renilson’s e‑mail shows that he was provided only with a photocopy and acknowledges that ‘… from a photocopy it is impossible to be precise as to the veracity of the original’. He offers an opinion that ‘… prima facie the photocopy you provided does smack of a dumb forgery …’ but repeats that without the original ‘I am unable to be definite’. Mr Renilson concludes ‘I advise a full forensic examination’.”
7. The Employment Judge explains at paragraph 40 that the authenticity of the letter was not addressed in the original Reasons of the Employment Tribunal because it had not been significantly developed in submissions, nor had it been explained why, if the document was forged, Professor Gusterson should be a party.
9. The Employment Judge declined to make his own comparison of various signatures of Professor Gusterson. He was quite correct to adopt this course. It is not appropriate for Judges to act as amateur graphologists by comparing various signatures or alleged signatures to determine if a particular signature is or is not genuine. The Employment Judge was completely correct in what he said at paragraph 43:
“As to the document being a forgery, the claimant sought to show me copies of signatures appended by the second respondent to other documents at other times and to invite me to make my own comparison of the signature of the document of 3 August 2005 with the examples provided by the claimant. In the cross‑examination of Mr Black the claimant sought to invite Mr Black to express an opinion as to whether the signatures differed. I was neither prepared to make my own comparison of the signatures nor to allow Mr Black to be questioned on that matter for this reason. The books are replete with cases that concern the admissibility of expert opinion evidence as to the authenticity of hand‑writing and as to the identity of the author of a manuscript item. Expert opinion evidence is admissible precisely because the evidence concerns a matter which is not to be regarded as within the knowledge or expertise of the judge or jury hearing the case. I am simply not qualified to express an opinion on whether the same hand signed the document of 3 August 2005 as made the sample signatures provided by the claimant and there is no reason to suppose that Mr Black has such expertise.”
10. The Employment Judge went on to ask himself what wrong had been done by the second Respondent if the document was indeed a forgery and not signed by him such as to weigh heavily in the balance against the prejudice to him in being added as an additional Respondent. The Employment Judge noted that the Claimant’s explanation appeared to be that when questioned by the police Professor Gusterson confirmed the authenticity of the document. The Employment Judge, however, was “satisfied that the document is not a forgery and is what it purports to be”. He then goes on to explain his reasoning, and notes that the originals of the material documents were held by the First Respondent, whose agent had intimated to the Claimant that it would facilitate their inspection by an expert. The Claimant did not take up that offer. At paragraphs 45‑56 the Employment Judge gives ten reasons why he is not satisfied that the document is a forgery.
11. The Employment Judge then went on to deal with the Claimant’s argument that the document of 3 August 2005 was intended by Professor Gusterson to deceive as to the true reason for the rejection of the Claimant’s application for employment. The conclusions of the Employment Judge are set out at paragraphs 57‑64, and he concluded at paragraph 64:
“On the evidence before me, the claimant has not made out even a prima facie, case that the account set out by the second respondent was intended to practice deceit and give a false account of the decision making on the claimant’s application for employment.”
12. Having reconsidered his earlier conclusions and his present conclusions that the document was not a forgery or intended to deceive, he repeats that on the evidence before him the allegation of forgery was unfounded and the allegation of deceit unsubstantiated.
13. The Employment Judge accepted that the Claimant believed Professor Gusterson was a culprit at the heart of and responsible for the decision not to offer him employment with the First Respondent, and that it was important to the Claimant that Professor Gusterson be called to account for his actions. He had given due weight to that consideration; however, he also noted the Claimant’s delay in seeking to sist Professor Gusterson for four years after the decision complained of, during which time Professor Gusterson had destroyed his papers. At paragraph 69 he concluded that the delay by the Claimant in seeking to sist Professor Gusterson, coupled with the circumstances that led to the claim being struck out, had prejudiced Professor Gusterson and severely impaired his ability to defend himself against the Claimant’s claim. By his reasonable act of destroying documents, at a time when it was reasonable for him to do so, that prejudice was aggravated by the fact that the First Respondent had lost its recruitment file. Indeed, The Employment Judge considered that the second Respondent’s ability to defend the claim the Claimant sought to make against him, “would be so impaired as to make almost impossible a fair trial of the claim against the second respondent”.
“I observe that urgent progress is required with this case. It will be listed for a Hearing with a 10 day time estimate. Parties will be asked to provide details of inconvenient dates in January and February 2012.”
I would respectfully agree, and hope that the claim can be heard as soon as possible.
15. As I have already said, I am not dealing with an appeal against the review decision. The only appeal with which I have to deal relates to the manner in which the Employment Judge dealt with the letter of 3 August 2005.
Further submissions of the Claimant
16. Dr Singh attacks the findings of the Employment Judge and submits that they are perverse. He asserts that the very high threshold of establishing a perversity appeal, as set out in Yeboah v Crofton  IRLR 634, is met. He also maintains that he decision to revoke the order to sist was also perverse.
17. I shall explain the perversity alleged. Dr Singh’s case revolves around evidence given by Mr Black, who was the First Respondent’s Director of Human Resources. Mr Black gave evidence that he had been given a copy of a version of the letter of 3 August 2005 on 12 August 2005. The Employment Judge (paragraph 28) accepted his evidence. Later, at paragraph 51, the Employment Judge stated that he saw nothing sinister in Mr Black now being unable to recall to whom he delegated the task of extracting information for inclusion in the reply to the Claimant’s questionnaire:
“It is entirely understandable that a heard of department would delegate the task of extracting or compiling information to a subordinate and that, at this distance in time [since 2005], the detail as to the person to whom the task was delegated cannot be recalled.”
18. Dr Singh pressed me to accept that it was quite perverse of the Employment Judge to accept that in a number of respects Mr Black’s memory had (understandably) faded with the passage of time, but that he could nonetheless recall the precise date when he had been given a copy of the version of the letter of 3 August 2005.
21. Dr Singh also maintains that the Employment Judge gave insufficient reasons for his decision, which was not, therefore, Meek v City of Birmingham District Council  IRLR 250 compliant. There was no proper explanation as to why, although the Claimant maintained he was the best candidate, neither he nor any other candidate was considered to be of sufficient standard.
22. Dr Singh then asserts that the decision was tainted by bias. He asserts there was both actual and perceived or apparent bias. In particular, the Employment Judge accepted that recollection fades, but nonetheless made findings favourable to the Respondents as to the credibility of Mr Black; this, it is said, showed that the Employment Judge was biased. Further, it was irrational to sist and then remove Professor Gusterson and Sir Muir Russell on the same evidence. Dr Singh reminded me that the Employment Judge had already taken “great umbrage” at him; I refer to his skeleton argument at pages 10 and 11, in which Dr Singh maintains:
“As explained to Judge Serota at the hearing of 6 June 2011, that the appellant noted at the PHR of 29 January 2010 that the judge was considering to revoke his Order, that was given without notice, on the same evidence that led him to make it. In reply the honourable judge replied on 29 January 2010 that: ‘I gave the Order because you wrote the ET1 as if they were guilty’. To which the appellant replied: ‘The wonder would be if I had not’. The honourable learned judge in Scotland took great umbrage to that reply.
Knowledge that I had told the honourable judge Serota of the happenings in Scotland would not have advanced the appellant’s cause with the honourable learned judge in Scotland; notably the judgment of HHJ Serota arrived on the first day (19 August 2011) of the hearing in Glasgow. Consciously or subconsciously, the honourable learned judge in Scotland would resist accepting the possibility that the document of 3 August 2005 was a forgery; the implications of such a finding would have an adverse impact career‑ and income‑wise, because the third respondent, chairman of the Judicial Appointments Board for Scotland upon which Lady Smith has been a member at the material time, had used that very document in his ET3 defence (see paragraph of honourable judge Wilkie’s judgment; page 7/8 of the bundle submitted to the court on 6 June 2011). The honourable judge should and ought to have acknowledged the fact he was acting as judge in his own cause which he cannot do.”
23. Dr Singh submitted to me that a fair‑minded observer would regard the Employment Judge as having been acting in his own cause because he would be motivated to favour Sir Muir Russell, as he was the Chairman of the Judicial Appointments Board for Scotland.
24. Dr Singh then went on to submit that he did not receive a fair hearing because the Scottish courts are anti‑English. In this regard he drew attention to a speech by Lord Hope reported in the Daily Herald in Scotland of 20 November 2011. The article is headed “Scottish court system is anti‑English”. The background to the speech is a vigorous debate taking place in Scotland as to the desirability of Scottish cases being decided by the Supreme Court in London, where a majority of Justices are English or from Northern Ireland. Speaking at the annual conference of the Scottish Association for the Study of Offending in Dunblane, Lord Hope quoted remarks made to him by the late Lord Rodger about “a corrosive anti‑English sentiment” in the Scottish system, adding that this sentiment can be “a real obstacle to progress”. The Daily Express of 1 December 2011 also referred to Lord Hope’s comment as to the corrosive anti‑English sentiment. The article continued:
“The comments by Lord Hope of Craighead, former Lord Justice General and Lord President, the highest‑ranking judiciary position in Scotland, seem to mark the continuation of a row started earlier this year when Scottish ministers accused the London‑based Supreme Court and its judges of eroding Scots law and threatened to withdraw funding. […]”
25. Dr Singh submitted that he suffered from what he described as a “double‑whammy” in Scotland; firstly, he is a member of an ethnic minority, and, secondly, he speaks with a distinct English accent.
27. Dr Singh sought to suggest that I had inadvertently made a mistake in my original Judgment when summarising the evidence that the post for which Dr Singh had not been hired had been advertised not once but twice. Dr Singh suggested this may have led the Employment Judge in some way into error, and into believing that the post had been advertised twice and that the Claimant had been rejected twice. It is possible that I took the reference to the post having been advertised on two occasions from the Claimant’s skeleton argument for the hearing on 6 June 2011, in which he refers to the post having been advertised on two occasions.
The Respondents’ submissions
28. The Respondents drew my attention to the finding by the Employment Tribunal that, contrary to the Claimant’s assertion that the allegation that the document of 3 August 2005 was a forgery was a “central argument”, it was in fact given no prominence at all, and my attention was drawn to paragraphs 38‑41 of the review Judgment, to which I have referred.
29. The Employment Tribunal has found that the document was not a forgery, and there was no prima facie case that the document was intended to practice a deceit. The evidence of Mr Renilson had been rejected, and the appeal should be dismissed.
30. The relevant legal principles as to bias are not in doubt. They are the same in England and Wales, and in Scotland, and indeed are most helpfully and well set out in Dr Singh’s skeleton argument. Bias is well defined by the House of Lords in Re Medicaments and Related Classes of Goods (No. 2)  WLR 700 per Phillips LJ:
“37. Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him.”
“There are three categories of bias which can undermine the impartiality of the tribunal: actual bias, bias giving rise to automatic disqualification, and situations where there is a real danger or possibility of bias.
Actual bias. This arises where a judge (i.e. any judicial decision‑maker) allows his decision to be influenced by partiality or prejudice. As the Court of Appeal pointed out in Locabail v Bayfield Properties IRLR at 99, para 3) instances of actual bias are very rare and, in any event, difficult to prove:
‘The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists.’”
32. The principle encompasses cases where the Judge has a pecuniary or proprietary interest in the outcome of the litigation, as in Grand Junction Canal v Dimes  3 HLCaS 759, a case in which the Lord Chancellor, who sat in the case, owned shares in the Respondent company. As Harvey notes, the rule has been extended to a limited class of non‑financial interests, such as “the promotion of a cause in which the judge is involved together with one of the parties”; see R v Bow Street Metropolitan Stipendiary Magistrate Ex Parte Pinochet Ugarte (No. 2)  AC 119. In this case, a member of the House of Lords panel, Lord Hoffmann, was the director of a charity that intervened in extradition proceedings. Lord Browne‑Wilkinson said at page 132:
“The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or pecuniary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or pecuniary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair‑minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
35. As Dr Singh pointed out, the perception of bias includes the perception of unconscious bias; see Lord Steyn in Lawal v Northern Spirit  ICR 556. The fair‑minded and informed observer is someone who is “neither complacent nor unduly sensitive or suspicious” (Gillies v Secretary of State for Work and Pensions  WLR 781 per Baroness Hale at 39, citing the Australian case of Johnson v Johnson  201 CLR 488).
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has ‘grave doubts’ about the decision of the Employment Tribunal, it must proceed with ‘great care’, British Telecommunications PLC v Sheridan  IRLR 27 at para 34.”
“The appeal tribunal has no jurisdiction to hear appeals on issues of fact decided by an employment tribunal. Its jurisdiction is confined to hearing appeals on arguable errors of law. It will be an error of law for a tribunal to make a finding of fact when there is no evidence to support it; or to make a finding which can be shown to be perverse, although as is also well‑known an attempt to establish perversity poses enormous difficulties. A litigant’s subjective assessment and assertion that a tribunal’s finding is perverse is often simply a reflection of his disagreement with the finding, whereas the making good of a case that it is perverse normally involves the scaling of the steepest of mountains. Subject to perversity considerations, provided there was evidence on the basis of which a tribunal could make the findings of fact that it did, there will be no error of law in its making of them and the appeal tribunal cannot entertain appeals against them.
These considerations are commonly not appreciated by litigants [who, like Dr Singh, are party litigants]; and their notices of appeal to the appeal tribunal often amount to nothing more than a bid to re‑argue the facts. That is to ask the appeal tribunal to perform an exercise that it has no jurisdiction to perform.”
38. The issue of the credibility of Mr Black was entirely a matter for the Employment Judge. It is impossible to say that his decision was perverse, or anything like it. He was entitled to accept that in certain regards, understandably, his recollection had failed, but on this particular point he had a clear recollection. The Employment Judge was entitled to accept this evidence and act upon it.
39. When I gave Judgment in the Employment Appeal Tribunal I attempted to summarise the facts. I have already mentioned this matter, but Dr Singh has suggested that I inadvertently referred to the fact that the post for which Dr Singh unsuccessfully applied had been advertised on two occasions. He suggested that it was unclear if the Employment Tribunal on review approached the case on the basis of its original findings or my “erroneous” statement. This point does not appear to have been raised at all before the Employment Tribunal, so no Meek issues arise. I am satisfied there is nothing in this point; the Employment Judge had no reason to revisit its findings. It is not relevant in any case, as the First Respondent’s position consistently has been that there were no satisfactory applicants after either advertisement. Also, I do not see how it impinges on the central point in the appeal, namely how the Employment Tribunal dealt with the letter of 3 August 2005. I have already mentioned that Dr Singh in his submission for the hearing of 6 June 2011 himself refers to the post being advertised on two occasions.
40. I have already indicated that Dr Singh’s case on perversity comes nowhere near the high threshold referred to by Mummery LJ. He is attempting to reargue the facts, which are a matter for the Employment Tribunal alone. I have already made clear that the Employment Judge was correct to prevent the Claimant cross‑examining other lay witnesses as to the authenticity of Professor Gusterson’s signature on the impugned document.
41. I now turn to deal with my conclusions on the allegations of bias. Employment Judge Cape was in no position different to any Judge in Scotland. No fair‑minded and well‑informed bystander would think for one minute that a Scottish Judge would be influenced in any way by the fact that Sir Muir Russell was Chairman of the Judicial Appointments Board for Scotland. The fair‑minded and well‑informed bystander would regard the suggestion of possible bias, or the appearance of possible bias in those circumstances, as being fanciful. That is my opinion also, and such a suggestion is unworthy of Dr Singh.
42. In relation to Dr Singh’s submissions on a generalised bias and anti‑English sentiment in Scottish courts based on the speech of Lord Hope, I would observe that his comments must be seen in their context, which was in the course of a vigorous political debate in Scotland about cases involving Scots law being heard in London by the Supreme Court with a majority of Justices drawn from outside Scotland. I do not believe that Lord Hope was in any sense suggesting that Scottish courts would in any way be biased against English litigants. I regard Dr Singh’s suggestion that he could not receive a fair hearing in the Scottish courts as being an unacceptable slur on the integrity of the Scottish judiciary. I do not believe for one minute that any Scottish Judge would either consciously or unconsciously be biased against an English litigant by reason of the debate to which I have referred or for any other reason. I have no doubt that Judges in Scotland will, as they have always done, treat all litigants of whatever ethnicity, nationality or religious persuasion with the scrupulous fairness they have always displayed.
44. The Respondents have made submissions to the effect that I should make an order for expenses against Dr Singh. I shall give both parties the opportunity of making further written submissions, which are to be lodged within 21 days of the date this Judgment is handed down. I shall give my decision based on written submissions, without the need for an oral hearing.
45. I draw Dr Singh’s attention to rule 34B(2) of the Employment Appeal Tribunal Rules 1993 so that he has the opportunity, should he wish to avail himself of it, to provide information as to his ability to pay expenses. The parties should not read from this paragraph any suggestion that I have formed a view as to the merits of the Respondents’ application for expenses.