References to my South African Background

In his outline submission, Grattan’s lawyer, Simon Rice-Birchall of Eversheds Solicitors, argued his case that Grattan plc had not caused a breach of the implied contractual term of mutual trust and confidence by implementing their Stop and Search policy. Quoting from the case Woods v W M Car Services (Peterborough) Ltd, he wrote that a Tribunal should

"look at the employer’s conduct as a whole and determine whether it is such that it its cumulative effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it".

He continued

"There is therefore a strong element of objectivity built into the test, and the employer should not have to take account of extreme viewpoints: the Applicant stated in evidence that he had lived in South Africa for many years."

Mr Rice-Birchall did not try to explain how living in South Africa causes someone to have an extreme viewpoint. He did not even try to explain why objecting to random body and mobile ‘phone searches is an extreme viewpoint. Perhaps the authorities that placed restrictions on random searches by British policemen and customs officers have extreme viewpoints. If so, I doubt that it is the result of their having lived in South Africa.

Try replacing "South Africa" in Mr Rice-Birchall’s sentence with the names of other countries, such as Canada, Zimbabwe, Egypt, Pakistan, Palestine, Israel, Russia, Germany and England. I never really believed that Mr M Humphreys the Chairman, or even the lay members of the Tribunal, would take Mr Rice-Birchall’s assertion seriously. None the less, I countered by telling the Tribunal that my South African background could not be relevant to the case.

Imagine my amazement when I read the last sentence in paragraph 39 of the Tribunal’s Decision: -

"He strongly objected to this policy, no doubt influenced by his experiences and observations in South Africa some years ago."

Obviously, I had underestimated the connotations of the words "South Africa", and their effect on the average English person’s mind.

Initially, I had not planned to mention this subject in my application, to the original Tribunal, for a review of their decision. I regarded bias as a subject more appropriate for discussion before the EAT, as I did not think it appropriate that a Tribunal should judge itself on such an issue. In fact, I did make an accusation of bias in my original application to the EAT, for which there was a deadline. However, it was obvious from the EAT’s reply that accusations of bias against a Tribunal are very risky for the appellant. (More on that subject later.) On the other hand, Tribunals are the sole judges of the facts. If they had found, as a fact, that I would not have objected to the policy if I had not lived in South Africa, how could I appeal without an accusation of bias? In the end I did complain to the Tribunal, at the hearing concerning my application for a review. (Actually, I told them off quite heatedly, and to their credit they mostly listened in appalled silence.) However, they did not mention South Africa when verbally delivering their decision about my application, which they did on the same day.

On March 28^th 2003, I wrote a letter to the Tribunal that I think is self-explanatory. Its content was: -

In paragraph 18 of their "DECISION ON APPLICATION FOR REVIEW", the Tribunal wrote: -

"At the original hearing, the word apartheid was not used. We understood him to be making an analogy, between the employers’ actions and an oppressive regime. At the original hearing we did not hear any evidence about what had happened or not happened to Mr. Trotter in that country. The reference in paragraph 39 to his experiences should not be read to infer that he had suffered ill treatment in South Africa but in conjunction with the word observations to describe his knowledge of an oppressive regime."

(As a matter of fact, I did think that any random Stop and Search policy, especially when it came to body searches and reading data stored on mobile ‘phones, was oppressive. However, when I mentioned South Africa, I was not comparing Grattan’s Stop and Search policy with apartheid or any other oppressive policy. That would have had no bearing on the subject being discussed at the time. Mr Rice-Birchall had argued that because the majority of Grattan’s employees had not shown that they objected to the policy, it followed that they that they had agreed to it. If I could think of a single example of a policy (not necessarily Stop and Search) for which majority silence did not mean majority agreement, it would contradict Mr Rice-Birchall’s argument. Having lived in South Africa, apartheid was the first such policy that came to mind. (I did not mention apartheid by name, as no intelligent person with reasonable general knowledge would think of Stop and Search, when asked to name a South African policy to which most people had not consented.)

If I had not lived in South Africa, I might have referred to another policy. If I could think of a benevolent policy for which silence did not imply agreement, its name could replace "apartheid" without changing the point that I had made. I meant no more than what I said; i.e. that submission to a policy does not prove that those submitting to it agreed to its implementation. In fact, a lay member of the Tribunal (as I mentioned in the above letter) had made the same point. I wonder which policy she would have named, if she had been asked for an example to prove her point. Perhaps I should be flattered that the Tribunal thought that my words, like Shakespeare’s, were fraught with hidden meanings and subtle connotations.)

At least, the Tribunal admitted that they had heard no evidence about my experiences in South Africa. Therefore, contrary to what they had stated in paragraph 39 of their original decision, they could not have found as fact that

I still felt that before proceeding with my appeal, I had to emphasise to the EAT that the Tribunal could not have found, as a fact, that my objection to Grattan’s Stop and Search policy was a result of my South African background. I raised the subject at the preliminary hearing. The Chairman said on behalf of the EAT that in their opinion, it was unfortunate that the Tribunal had chosen to refer to a history of which they had no knowledge, but that it was not relevant, as the reasons for my objection to the policy were clear.

Why did I not, in the end, use bias as grounds for an appeal? The reputation of the English for fair play extends even as far as La Manche, and the value that England’s Establishment places on that reputation is well known throughout the world. Apparently in ignorance of the irony, England protects that reputation by means of dire threats against anyone who challenges it. Those who appeal on the grounds of bias can be ordered to pay costs if they lose their case. It is a brave, if not foolhardy, appellant who, believing himself to be the victim of one unfair decision, is confident that he could not be the victim of another. That is doubly true, bearing in mind that the appellant has to not only convince the EAT that he was a victim of bias, but also that the Tribunal’s decision would otherwise have been necessarily different.

The Tribunal stated that their reference to my South African background "should not be read to infer that he had suffered ill treatment in South Africa…". I daresay. The Tribunal could see at a glance that I was not a victim of apartheid. In the long term, however, the joke is not on me.