Khan v Trident Safeguards Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,Lord Justice Wall,Lord Justice Buxton,LORD JUSTICE MAURICE KAY,Lady Justice Arden |
| Judgment Date | 26 July 2005 |
| Neutral Citation | [2003] EWCA Civ 1239,[2005] EWCA Civ 1144,[2004] EWCA Civ 624 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2003/0166,Case No: A1/2003/1136–1138,A2/2005/1112 |
| Date | 26 July 2005 |
[2003] EWCA Civ 1239
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Lord Justice Keene
A1/2003/0166
The Applicant appeared in person
The Defendant did not attend and was unrepresented
(Approved by the Crown)
Tuesday, 12 August 2003
The applicant in this matter seeks permission to appeal against a decision of the Employment Appeal Tribunal ("EAT"), dated 15 January 2003 dismissing at a preliminary hearing Mr Khan's appeal against a decision of an Employment Tribunal sitting at London Central, promulgated on 10 June 2002. The applicant worked as a security officer for the respondent company, which I understand is itself a company engaged in providing security.
In 2001 he brought a complaint of racial discrimination against his employer. The present proceedings are not directly concerned with that. However, he requested 18 days' leave on 21 May of that year in order to deal with the case, a period to begin on 16 June. This request was granted by the operations manager, Mr Kerr. Someone wrote on the request form which had been submitted by the applicant "10X paid. 8X unpaid." Mr Khan for his part had not intended that eight days be unpaid. He went on leave and he was duly paid for ten days. Initially he was not paid for the remaining eight days.
The position as found by the Employment Tribunal was that employees were normally paid the balance of any holiday pay that was due within three to four weeks of their return to work. So Mr Khan complained to Mr Kerr, who failed to act promptly and then went on leave but returned on 24 September and saw the applicant on that day. Mr Kerr agreed that the outstanding money should have been paid and he arranged for payment to be made. Indeed it was then made on 4 October. Mr Kerr apologised for the delay in payment.
The Employment Tribunal to whom Mr Khan presented a complaint of discrimination by way of victimisation under section 2 of the Race Relations Act 1976 found that there was considerable confusion as to the company's policy regarding the payment of holiday pay. But it was satisfied that it was the marking "8X unpaid" put on Mr Khan's request form which led to his not being paid the balance until October. It concluded that Mr Khan had suffered less favourable treatment in this way. It also held that there was a protected act within the scope of section 2 of the 1976 Act, namely his earlier application to an Employment Tribunal raising the complaint of racial discrimination.
Consequently the issue was whether the less favourable treatment experienced by Mr Khan was done by reason of the fact that Mr Khan had made the earlier complaint to the Employment Tribunal, that is to say the protected act. The Tribunal reminded itself of the dicta in King v The Great Britain China Centre [1992] ICR 516. It noted Mr Kerr's explanation for failing to pursue the matter promptly, namely that he thought payment would be made in due course, and the Tribunal was not prepared in those circumstances to infer that the failure was caused by Mr Kerr's knowledge of the protected act. As for the reason why the words "8X unpaid" had been inserted the Employment Tribunal said this, towards the end of its reasons:
"It is not known who inserted those words or anything about the state of mind of the person concerned. It seemed to the Tribunal that an error in administration was the more likely explanation and it was not satisfied that there were any facts from which it could properly be inferred that the Respondent victimised Mr Khan in this respect."
Mr Khan challenged these conclusions on appeal to the EAT. He also raised a point about the procedure in the EAT. That came about in this way. On the first day of the hearing an issue arose about certain documents. When he had seen the original documents Mr Khan suggested that the documents in the agreed bundle had been tampered with. It was therefore agreed that it was reasonable for the respondent company to call evidence to deal with this point. The witness who could deal with it was not present on that day but he was available the following day. So far so good. However the witness, a Mr Brown, was also able to give some evidence about the delay in paying Mr Khan. Mr Brown's evidence had not been exchanged in advance, for obvious reasons, and Mr Khan objected to him giving evidence on the delay issue as well. On that point the Employment Tribunal said this:
"5. It seemed to the Tribunal that in the interests of a fair hearing it should hear evidence from Mr Brown as indicated by the Respondent. The matters objected to by Mr Khan might come out in any event if he gave evidence on the documents. On the other hand, it was also in the interests of justice that Mr Khan had time to consider Mr Brown's evidence. The Tribunal did not consider it necessary to adjourn to another day but it considered it reasonable to adjourn for an hour to enable Mr Khan to think about Mr Brown's evidence and to prepare his cross-examination and any alterations which he might wish to make to his final submissions."
I should add that Mr Brown's evidence was by this stage on the second day, 14 May, in the form of a manuscript witness statement.
In the event Mr Khan was not prepared to adopt the course suggested by the Tribunal of having an hour's adjournment and he declined to cross-examine Mr Brown. He decided to rely instead upon written submissions which he would hand in to the Tribunal and which he asked them to read and to take into account.
The Employment Appeal Tribunal regarded the lower court's procedural decision as coming within its case management responsibilities and it saw nothing unfair in the way in which the Employment Tribunal had acted. As to the substantive issue of the inference to be drawn about victimisation the EAT concluded that the lower tribunal had correctly directed itself as to the law and it also concluded that the Employment Tribunal was entitled to decline to draw the inference that the less favourable treatment was the result of knowledge of the protected act.
The applicant now raises a number of grounds of appeal to this court against the EAT's decision. In the written grounds of appeal a point is taken about the role of a preliminary hearing of the EAT. This has not been pursued orally by Mr Khan this morning, but it is right that I should deal with it since I indicated to him that I had read the papers and that he need not cover matters already set out in the papers. What is said in the appellant's notice is that all that he had to do at a preliminary hearing of the EAT was to identify points of law for the full hearing to consider; and it is said that that was done. Of course in a sense that is right, but only if one correctly understands what is meant by that. The matter is accurately put in the EAT's rules of procedure which identify the purpose, or one of the purposes, of a preliminary hearing, as being "to determine whether the grounds in the notice of appeal raise a point of law which gives the appeal a reasonable prospect of success at a full hearing." It is that last clause which is crucial. To my mind it is quite evident that the EAT did not regard Mr Khan's appeal to it as having a reasonable prospect of success. I cannot see that the EAT went wrong in the way in which it approached its task at a preliminary hearing of this nature.
As for the points actually raised before the EAT and pursued this morning by Mr Khan, they essentially consist of two matters. The first is what one might call the substantive grounds as to the inference to be drawn from the facts, and secondly, there is the procedural ground about what happened over Mr Brown's evidence.
On the substantive matters Mr Khan says that it was perverse of the Employment Tribunal to say that there was confusion over the company's policy towards the payment of holiday pay. He points out that the company was a substantial one, having some 1200 employees. Moreover, he contends that insufficient reasons were given by the Employment Tribunal for not drawing the inference that the discrimination was the result of his earlier complaint to the Employment Tribunal. He relies upon the case of Anya v University of Oxford [2001] EWCA Civ 405. The same points are also presented by him in terms of there being no evidence to support the Tribunal's conclusion and that it misdirected itself in relation to the case of King, to which I have already referred.
On the substantive issue there was evidence on which the Employment Tribunal was entitled to find that there was considerable confusion as to the company's policy in respect of the payment of holiday pay. It sets out the different approaches and the different understandings on this matter at paragraph 11 of its reasons. I cannot see for one moment that this can be described as a perverse finding.
As for the argument that the Employment Tribunal gave insufficient reasons, I quite accept that it is important that reasons given by a tribunal on matters of this kind are adequate and clear so that the recipients on both sides can understand why it is that the tribunal has reached the conclusion which it has.
But here, the Tribunal referred to Mr Kerr's explanation given to it that he thought that payment would be made in due course. It is clear that the Tribunal accepted that explanation. It was entitled to do that. It heard Mr Kerr give evidence before it orally and it heard him cross-examined. It was not...
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