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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hope v. HM Prison Service Agency & Anor [2001] UKEAT 0636_01_1611 (16 November 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/0636_01_1611.html Cite as: [2001] UKEAT 636_1_1611, [2001] UKEAT 0636_01_1611

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APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON 14 St James' Gardens Leyland Preston PR26 7XA


 


MR JUSTICE MAURICE KAY

1. This is a preliminary hearing of Mr Hope's appeal against the decision of an Employment Tribunal sitting in Manchester. The Appellant had made complaints of discrimination by reference to The Sex Discrimination Act 1975.
2. The Appellant was an employee of the Prison Service for many years in which capacity he achieved high office. He was a Governor Grade 5 at Garth Prison at the time of the hearing before the Employment Tribunal. The hearing itself lasted some ten days as had been anticipated in advance. The decision of the Employment Tribunal was that the Appellant had not been discriminated against.
3. The Employment Tribunal had before it some eight applications to which the Respondents were firstly HM Prison Service Agency and secondly Mr Lockwood, to whom we shall refer in more detail later. By each of the applications the Appellant complained that he had been discriminated against by way of victimisation contrary to Section 4. By the time the hearing took place the complaints of the Appellant were identified by reference to nine headings by the Employment Tribunal. These complaints were as follows:

i) that the Appellant failed to obtain four posts that he applied for;

ii) that the Respondents failed to deal properly with his complaints;

iii) that Mr Lockwood retained control of his management and in doing so caused him to suffer a detriment;

iv) that Mr Lockwood failed to correct an internal briefing document about the Applicant in a timely or adequate fashion;

v) that employees of the Prison Service attempted to interfere to the Appellant detriment with his application for sick leave excusal;

vi) that the Prison Service failed to adequately support the Appellant in his dispute with the Prison Officers Association;

vii) that the Prison Service and Mr Lockwood failed to inform the Appellant that it was investigating his counter-allegations against an official of the Prison Officers Association, a Mr Whitworth and failed to inform him of the outcome of the investigations;

viii) that an employee, or employees of the Prison Service had sent anonymous offensive letters to the Appellant because he had brought proceedings against the Prison Service and/or the Prison Service had failed to properly investigate who had sent such letters to him;

ix) that an employee of the Prison Service, a Mr Parkin, had made a sarcastic and inappropriate remark about the Appellant to a third party;

The lengthy hearing about these matters was one at which the Appellant represented himself as he has today. We would wish at this stage to pay tribute to the way in which he has done so. He has presented his arguments in a way that was restrained, courteous, articulate and intelligent.

4. The decision of the Employment Tribunal contained within paragraph 4 is a summary of the law setting out the relevant part of Section 4 and referring to the leading cases of King v The Great Britain China Centre [1991] IRLR 513 and Nagarajan v London Regional Transport [1999] IRCR 877. That summary of the law is beyond reproach. The remainder of the lengthy decision, which had to be lengthy in view of the duration of the hearing and the number of issues raised, is in the form of an assessment of the evidence. Beginning with an overview the Employment Tribunal expressed its view that the Appellant is a man

"who rightly prides himself upon his honesty and integrity"

about which the Tribunal had no doubts. Referring to Mr Lockwood, whose status by the time of the hearing was one of Assistant Director and Area Manager in the Prison Service, the Employment Tribunal noted that the Appellant had submitted that Mr Lockwood was

"corrupt, nepotistic, dictatorial, an abuser of authority and a downright liar"

However, the view of the Employment Tribunal was that those descriptions were not accurate. They found Mr Lockwood to be an honest witness with a

"management style that was fair but robust"

They also found his evidence to be substantially reliable notwithstanding some mistakes. They made other observations by way of overview but those set the scene because undoubtedly the Appellant and Mr Lockwood were the leading players in this drama. Over a part of the decision stretching to some eight pages the Employment Tribunal made a number of clear findings of fact. Having done so they proceeded to consider the nine complaints which they had identified at the outset.

5. So far as the first complaint is concerned, that relating to the Appellant failure to obtain

four separate postings for which he had applied, there is a careful analysis of the evidence about each of those applications and the ways in which they were processed. The Tribunal rejected the drawing of certain adverse inferences which had been invited by the Appellant and came to the conclusion, in relation to each of the applications, that the Appellant had not failed to obtain the posts in question as a result of any discrimination or victimisation.

6. The second complaint was that the Respondent had failed to deal properly with the Appellant's complaints. The Appellant thought that he been "fobbed off" in various ways. The Tribunal concluded

"From the evidence we heard we are satisfied that Mr Lockwood did take both the applicant and his complaints seriously"

Again the Employment Tribunal engaged in a detailed analysis of these matters but effectively acquitted the Respondents of the allegations or complaints which the Appellant was making.

7. The third complaint related to the suggestion that Mr Lockwood had retained control of the management of the Appellant thereby causing him to suffer a detriment. The finding in relation to that was expressed as follows

"Put simply we are satisfied that up until 1st April 2000, Mr Lockwood was the line manager of the applicant's line manager and thus he had overall responsibility for the applicant. After 1^st April 200 Mr Lockwood ceased to have any overall responsibility for the applicant because this was transferred to the applicant's new Area Manager, Mr Fitzpatrick"

and a little later

"There is no evidence before the Tribunal that either before 1^st April 2000 or after this date that Mr Lockwood interfered with the applicant's personnel affairs to his detriment".

8. The fourth complaint was the one to the effect that Mr Lockwood had failed to correct an internal briefing document prepared about the Appellant in July 1999 in a timely or adequate fashion. Again we do not go into the detail which it was necessary for the Employment Tribunal to embark upon. We simply note that they concluded that whether or not the applicant had brought proceedings, Mr Lockwood would have dealt with this document and the corrections to it in precisely the same manner. The Tribunal did not find that the Appellant was treated less favourably.
9. The fifth complaint was to the effect that Mr Lockwood, or some other member of staff had attempted improperly to interfere with the Appellant's sick leave excusal application. In the event, the Appellant was granted sick leave refusal and suffered no financial detriment. The Tribunal found no bad faith, observing that if they had found bad faith, they would have found discrimination. They found that the Appellant was not treated less favourably by reason of the fact that the briefing document was sent to a doctor, and they did not find that whoever sent the document did so because the Appellant had brought proceedings against the Respondents.
10. The sixth allegation related to the dispute which the Appellant was involved in with the Prison Officers Association, it being his case that the Respondents failed adequately to support him. Dealing with that the Employment Tribunal said

"the applicant accepts that the stance of the Prison Service would probably be that it was a dispute between the POA and one of its members which the Prison Service should not become involved in. we consider this as an entirely appropriate concession for the applicant to make".

The Employment Tribunal made further findings about that before concluding

"In regard to this allegation we are not satisfied that the Respondents treated the appliacant less favourably than they would have treated other persons in the circumstances".

11. The seventh complaint was that the Respondents had failed to inform the Appellant that they were investigating his counter-allegations against Mr Whitworth and also that they had failed to inform him about the outcome of that investigation. The Employment Tribunal came to the conclusion that the Appellant was mistaken in his evidence that he had not been aware that Mr Knott was investigating his counter-allegations against Mr Whitworth. The report of Mr Knott had concluded that it would not be appropriate to take Code of Discipline action against either Mr Hope or Mr Whitworth. The Employment Tribunal said

"Unfortunately neither the applicant nor Mr Whitworth were told of the outcome of the report. It appears that legal advice was received which suggested that copies of the report should not be provided because if Mr Hope received a copy of the report it would breach the duty of confidentiality owed towards Mr Whitworth and visa versa. Although such advice may be legally questionable it was applied to both men".

The Employment Tribunal considered that the failure to inform the Appellant of the outcome was regrettable but it was clear that he had been treated in exactly the same manner as Mr Whitworth.

12. The eighth allegation involving the anonymous letters resulted in a finding by the Employment Tribunal that on a balance of probabilities the letters were not sent to the Appellant because he had issued proceedings against the Respondent. It was far more likely that they were sent to him because he had brought proceedings against the Prison Officers Association. The member of management who had looked into the matter had genuinely and reasonably believed that the police were better equipped to carry out the investigations at that time and that there was no useful purpose to be served by the Prison Service carrying out its own investigations.
13. The final allegation concerned the evidence of a Miss Banks who was an administrative officer at Garth Prison. Her evidence was that on 13^th August 1999, Mr Parkin, a governor at Wymott Prison, had telephoned her and in the course of the conversation he had said "I am phoning about Mr Hope and his many litigations" in a manner which Miss Banks considered to be sarcastic. She reported that to Mrs Hope who in turn told the Appellant. Miss Banks told the Tribunal that she had had no dealings with the Appellant's case either before or after the telephone call. The Tribunal accepted her unchallenged evidence but went on to say that it did not find that by reason of the particular words used by Mr Parkin, it could be held to amount to less favourable or detrimental treatment of the Appellant.
14. Having looked at all those matters individually, the Employment Tribunal then correctly looked at them as a whole before concluding in this way

"Having regard to the evidence in this case, the wording of Section 4 of the 1975 Act and the to relevant case law, we do not find that the applicant has been discriminated against by way of victimisation either when considering each of his allegations separately or when considering the evidence as a whole. Mr Lockwood gave evidence that he had no doubt that the applicant honestly believed that he has been a victim of unfair treatment. We fully endorse this view".

That then was the decision of the Employment Tribunal contained in what all three members of this Tribunal consider to be a most impressive 22 page document. We turn now to Mr Hope's submissions to us in which ha has sought to identify points of law which might give rise to a successful appeal.

15. His first submission was that he had been prejudiced in the litigation by the mismanagement, neglect and incompetence of the Respondents and/or the Treasury Solicitor in the preparation of the case. He referred to Art 6 of the European Convention of Human Rights but of course English law by itself is equally concerned to ensure that persons receive a fair trial. The Appellant was able to draw our attention to some of the interlocutory hearings that preceded the ten day hearing. There had been a detailed direction hearing on 21^st February 2000. It is abundantly clear that the Appellant's allegations of mismanagement and neglect in the preparation of the case by or on behalf of the Respondents are well founded. We observe that on 6^th November 2000, in other words approximately two weeks before the case was originally scheduled to begin, there was a directions hearing in which the Chairman of the Employment Tribunal was rightly critical of what he described as

" wholesale neglect by the Treasury Solicitor to comply with the directions made in November 1999 and February 2000".

He, as no doubt everybody else, was anxious to ensure that the ten days that had been set aside for the case would not have to be vacated in whole or in part. At the hearing, he accordingly made further orders in an attempt to bring the matter to a full state of preparation. The hearing had been scheduled to being on Monday 20^th November but on that day the Employment Tribunal was unable to hear the parties. Whether this was a result of another case overrunning or for some other reason, we know not. On the next day, Tuesday 21^st November, the Appellant complained with justification that the large amount of documentation for which the Treasury Solicitor bore responsibility as to the preparation had not been delivered to him until the Friday evening before the commencement of the hearing, that is the Friday evening of 17^th November. This was clearly unacceptable and the Employment Tribunal accepted it to be such. The Appellant needed time for further preparation. In the event he was given time for further preparation and arrangements were made for the case to start a week later on 28^th November. The result of that was that where as originally a ten day slot had been found commencing on 20^th November, now there were only some four days of that slot remaining. The Appellant was unhappy about that and unhappy in particular about the Tribunal hearing his case before adjourning to a more distant date when it would hear the Respondent's evidence if that is roughly how the time was to be divided.

16. This is not an unfamiliar complaint in litigation, be it in Employment Tribunals, County Courts or elsewhere. It is always undesirable that proceedings should be bifurcated in that way. The Appellant was pressing the Tribunal to find an early ten day slot when the matter could be heard, as it were, in one go. However, as very often happens, that proved not to be possible and torn between the alternatives of adjourning the case into the long distant future for a ten day slot or availing the parties of the time available in the following week before adjourning to a time in February and March, the Employment Tribunal opted for the latter course. In the event, the hearing took place, commencing on 28^th November for four days before being adjourned to 26^th February when it continued until 5^th March. We well understand the frustration of a litigant about that. The nature of litigation is that one party wins and one party loses and it is understandable that it is the one who loses who always feels the greater frustration about it not least when he had flagged up his fears at the outset. However, in our judgment although the Respondents and the Treasury's solicitor bore the responsibility for this regrettable logistical development it cannot found a ground of appeal in the present case.
17. The second matter addressed by the Appellant was one of bias. Reduced to its essentials, this submission is little more than a complaint that the important findings of the Employment Tribunal went against the Appellant. The Appellant told us that he had had the benefit of a conference with an ELASS representative this morning and he frankly admitted that whilst he retains a feeling of injustice about the proceedings, he accepts that as a matter of law, the allegation of bias is one that simply does not get off the ground.
18. His third point relates to the third complaint considered by the Employment Tribunal, namely the continuing control of the Appellant's management by Mr Lockwood. By indication what the Appellant says about this, if it were well founded, might also have consequences in relation to Mr Lockwood's credibility generally. It arises in this way - a week or so before the hearing had been due to start, the Appellant received a letter from Mr Wheatley, Deputy Director General of the Prison Service responding to a letter from the Appellant about management responsibility. The letter includes this paragraph

" Therefore Ian Lockwood has had the overall responsibility for dealing with all aspects of your employment, including the lodged Employment Tribunals, which I understand are to be heard in week commencing 20 November.

As you may know, there has been a reorganisation of areas resulting in Ian Lockwood taking responsibility for a different area. Since he was aware of the issues in your case, it is right that he should continue to take the overall personnel responsibility".

During the period of the adjournment between December and February, there was then an exchange of correspondence between the Appellant and Mr Lockwood and Mr Lockwood's reply in a letter dated 1^st February 2001 says this

" You refer to a letter to you from Mr Wheatley in which he explains the personnel management structure in the Prison Service and how this has been affected by the recent reorganisation of the area groupings of establishments. As you are probably aware, as a result of this reorganisation, HMP Garth is now within the Lancashire and Cumbria Area. This means that your present line management chain is through the Governor of HMP Garth, Mr John Illingsworth, to the Area Manager for the Lancashire and Cumbria Area, Mr Tony Fitzpatrick. Since the reorganisation I have ceased to have responsibility for your personnel management. I am, of course, involved in the part-heard proceedings before the Employment Tribunal in Manchester but that arises from the fact that I am named as Respondent in those proceedings".

When Mr Lockwood came to give evidence in February, he referred to that letter. The Appellant refers to it as "manufactured evidence". It seems to us that that is not a sustainable point. The letter is in the form of a reply to the enquiry of the Appellant. What was important was not what Mr Lockwood said in the latter but what evidence he gave to the Tribunal and whether the Tribunal accepted that evidence. Clearly they did. To the extent that there is any inconsistency between Mr Lockwood's letter and the letter from Mr Wheatley, that inconsistency was resolved by the Employment Tribunal in favour of Mr Lockwood. The Appellant complains that he wanted Mr Wheatley to give evidence because of what had been said in the previous letter and had applied for a witness order, which application had been refused. However, none of that seems to us to be the point. The nub of this case really went to an assessment by the Tribunal of Mr Lockwood and his evidence and so far as that is concerned, the conclusions which the Employment Tribunal reached having seen Mr Lockwood, no doubt, at some length, are not ones to which this Tribunal would feel able to interfere.

19. The Appellant's fourth submission is that the Employment Tribunal did not properly apply the principles of law to which it referred particularly when making mention of King v The Great Britain China Centre. In our judgment, there is nothing in that ground at all.
20. The fifth ground of appeal relates to the witnesses who were and/or were not called at the hearing. There is something of a history so far as this is concerned. The Appellant had originally asked the Treasury Solicitor to adduce some twenty-six witnesses. The Chairman who dealt with that suggestion at the Directions Hearing in February 2000 had poured cold water on it. He had gone on to say in his decision,

" I have explained that it should not be necessary to call so many witnesses and the parties will collaborate on the question on what evidence each of those witnesses is to give, in the hope that the witness will give such a statement, which can be agreed between the parties, thus saving the need for their attendance.

Subject to that the Respondent will call six witnesses and has given details to the Applicant of who they are".

It is common occurrence that litigants in person, to whom we imply no discourtesy either generally or in relation to Mr Hope, often consider that the hearing of their cases calls for more evidence from more witnesses than their opponents are minded to call. It was entirely up to the Respondents as to which witnesses they called. We appreciate that the Appellant has a sense of frustration that he was not provided with witness statements from the other twenty prospective witnesses. We appreciate that when he sought orders from the Employment Tribunal he did not succeed in obtaining them. All that seems to fall well within the realms of proper case management, it being the duty of Employment Tribunals to control the amount of evidence that is rehearsed before them and to limit it as to such that is necessary for the proper resolution of the issues. No doubt this Employment Tribunal considered that that resolution could fairly and justly take place on the basis of the evidence that was heard. We do not consider it arguable that there is a ground of appeal in relation to this although we do appreciate that the Appellant has a genuine feeling of having been mislead in that he thought he was going to receive statements from people who were not going to be called as witnesses when in the event he did not. To a very large extent, this case turned on how the Employment Tribunal assessed the Appellant and Mr Lockwood in particular, and we do not see that any point of law can now arise as to this procedural history and the case management to which it was subjected.

21. The final submission made by the Appellant is that no proper investigation of his complaints has been made "even now". In particular he is referring to complaints about the selection course. He says that he suffered a detriment from that lack of proper investigation and that if one had taken place, it might have produced a picture, presumably in the form of a report, which might have informed a more knowledgeable decision by the Employment Tribunal. In a sense, his complaints about the lack of investigation were themselves part of the material being looked into by the Employment Tribunal. It reached conclusions about that and whatever shortcomings may be perceived, it is abundantly clear that the Employment Tribunal was wholly satisfied that none of those decisions were infected by discrimination or victimisation.
22. It follows from that rather lengthy discourse that we have come to the conclusion that the grounds of appeal sought to be advanced by the Appellant, whilst put forward with skill and in a most attractive way, nevertheless do not contain within them anything that would have any prospect of success at a full hearing. In those circumstances we shall not allow this matter to proceed to a full hearing and the appeal will be dismissed.